Kumar v Police - [2018] NZHC 1163

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2017-404-000450

[2018] NZHC 1163

BETWEEN
RAVIKASH KUMAR

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 21 May 2018

Counsel:

SJ Lance for Appellant

CA Robertson for Respondent

Judgment:

23 May 2018

JUDGMENT OF DOWNS J

This judgment was delivered by me on Wednesday, 23 May 2018 at 9 am.

Registrar/Deputy Registrar

Solicitors/Counsel:
SJ Lance, Auckland.
Kayes Fletcher Walker Ltd, Manukau.

KUMAR v POLICE [2018] NZHC 1163 [23 May 2018]

The case

[1] Mr Ravikash Kumar pleaded guilty to five charges of breaching a protection order. Mr Kumar appeals conviction on the basis he did not want to plead guilty, but was given no effective choice by his counsel, Mr Nicholas Wintour. Both gave evidence in person before me.1 It is common ground the appeal turns on my assessment of their evidence; presenting a defendant with a fait accompli in relation to plea entry would constitute a miscarriage of justice.2

[2]A sentence appeal is also pursued.

Background

[3] The offending concerned Mr Kumar’s wife, S, who obtained a protection order on 29 September 2011.3 It involved three separate sequences after 10 July 2017, when she and the couple’s two children left for a refuge:

(a)On 16 July 2017 Mr Kumar visited the refuge and drove past it twice. Mr Kumar also telephoned S four times. In the preceding days, Mr Kumar had contacted the Police and told them he had identified S’s location through tracking her mobile phone. Police twice warned Mr Kumar to leave his wife alone.

(b)On 24 and 25 July 2017, Mr Kumar sent S text messages framed to imply they had been sent by another. Mr Kumar also called his wife.

(c)On 4 August 2017 Mr Kumar mistakenly telephoned S when handling his mobile phone. But he then sent her a text message: “Sorry don’t call Police by mistake pressed please”.

[4]Mr Wintour acted from 27 July. Mr Kumar pleaded guilty on 31 August.

1      So too, Mr Kumar’s uncle. His evidence did not materially advance either party’s case.
2      Hall v R [2015] NZCA 403, [2018] 2 NZLR 26 at [65].
3      Mr Kumar threatened to kill her two days earlier. He also assaulted her and committed wilful damage the preceding month.

The competing accounts

[5]Mr Kumar filed an affidavit. So too Mr Wintour.

[6] In his affidavit, Mr Kumar said he told Mr Wintour he wanted to plead not guilty. Mr Kumar said Mr Wintour first raised the prospect of guilty pleas on 31 August—the day he entered them:

…. Mr Wintour came downstairs to see me in the cells. He said that he had made a ‘deal’ with Police that I would “be out of here today if you plead guilty”.

He said he had met with my uncle and discussed the case and told him that I should plead guilty if he (Ravikash) wants to go home.

I told him that I thought I had…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Kumar v Police

Details

AGLC: Kumar v Police [2018] NZHC 1163
Case: [2018] NZHC 1163
Decision Date: 23 May 2018

CaseChat Overview and Summary

The case of Kumar v Police was heard by Downs J in the High Court of New Zealand. The appellant, Mr Kumar, pleaded guilty to five charges of breaching a protection order and appeals his conviction, arguing that he did not want to plead guilty but was given no effective choice by his counsel, Mr Wintour. The appeal hinges on the assessment of the evidence provided by Mr Kumar and Mr Wintour regarding the circumstances leading up to the plea. Mr Kumar contends that he was presented with a fait accompli, while Mr Wintour asserts that he provided realistic legal advice and that Mr Kumar voluntarily agreed to plead guilty. The case also involves a sentence appeal, where it is argued that a non-custodial response would have been appropriate.

The primary legal issues in the case revolve around whether Mr Kumar was adequately informed of his options and whether his decision to plead guilty was truly voluntary. The court must determine whether Mr Wintour provided effective legal advice and whether the plea process was conducted in a manner that respects Mr Kumar's autonomy. Additionally, the court examines whether the sentence imposed was appropriate given the nature and circumstances of the offences.

Downs J concluded that Mr Wintour's evidence was accurate and that of Mr Kumar was not. The court found that Mr Wintour had provided realistic legal advice and that Mr Kumar had voluntarily entered guilty pleas following this advice. The court held that the sentence of six and a half months' imprisonment was not manifestly excessive, considering the repeated breaches of the protection order, Mr Kumar's history of violence, and the nature of the offences. The appeal was dismissed.

The final orders of the court were that the appeal against conviction and sentence be dismissed. The court emphasized the importance of signed instructions to capture a defendant's fundamental choices in relation to criminal charges, highlighting the value of record-keeping in protecting both client and practitioner and preventing revisionist history.

Orders