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Kumar v R

Kumar v R

Case [2016] NZCA 329 14 July 2016

Unlawful Act Manslaughter

Jury Directions

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IN THE COURT OF APPEAL OF NEW ZEALAND

CA264/2015
[2016] NZCA 329

BETWEEN	SHIVNEEL SHAHIL KUMAR Appellant
AND	THE QUEEN Respondent

CA310/2015
BETWEEN	BRYNE PERMAL Appellant
AND	THE QUEEN Respondent

Hearing:	12 May 2016
Court:	Harrison, Simon France and Woolford JJ
Counsel:	R M Mansfield for Appellant (CA264/2015) P L Borich and I A Jayanandan for Appellant (CA310/2015) M D Downs and Z R Johnston for Respondent
Judgment:	14 July 2016 at 10 am

JUDGMENT OF THE COURT

A The appeals against conviction are dismissed.

BThe appeals against the minimum periods of imprisonment are dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Harrison J)

Contents

Para No

Introduction  [1]
Background  [6]
Crown case  [21]
Conviction  [24]

Legal principles  [24]
Insufficient evidence  [38]
Series or sequence of events  [54]
Absence of evidence from Mr Kumar  [62]
Mr Permal’s withdrawal  [69]
Conclusion  [77]

Sentence [79]
Result [88]

Introduction

Shivneel Kumar and Bryne Permal were found guilty of murdering Shalvin Prasad following a trial before Venning J and a jury in the High Court at Auckland. Both were convicted and sentenced to life imprisonment with a minimum period of 17 years’ imprisonment.[1] Both appeal against their convictions and minimum periods of imprisonment.
[1]R v Kumar and Permal [2015] NZHC 954.
Mr Prasad’s badly burned body was found on the roadside one summer morning. He had earlier been doused with petrol and set alight while he was still alive. Messrs Kumar and Permal were the last people seen with Mr Prasad in the hours preceding his death. The three men were associates.
The Crown ran alternative cases of murder. One was that Messrs Kumar and Permal deliberately killed Mr Prasad by setting him alight knowing he was then alive (the execution case). The other was that before setting Mr Prasad alight they had assaulted him with such severity they believed he was dead and were disposing of his body by burning (the one transaction case). As Mr Downs for the Crown observed, both alternatives alleged premeditated murder. There was only one difference: on the one transaction case Messrs Kumar and Permal intended to kill Mr Prasad by the unlawful act of an assault but their intention was actually effected by the subsequent act of burning.
Messrs Kumar and Permal appeal against their convictions on the common grounds that the Crown could not prove its one transaction case on a correct application of the leading authorities; that Venning J erred in directing the jury there was a sufficient evidential basis to find them guilty of murder on the one transaction case; and that the Judge’s directions on the one transaction case were wrong or inadequate. Mr Kumar appeals on the additional ground that the Judge erred in a specific direction about the absence of evidence; Mr Permal appeals on the additional ground that the Judge’s directions on his defence of withdrawal from participation with Mr Kumar in Mr Prasad’s death were inadequate.
While not challenging their life sentences, Messrs Kumar and Permal both…

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 R

Details

AGLC: Kumar v The Queen [2016] NZCA 329
Case: [2016] NZCA 329
Decision Date: 14 July 2016

CaseChat Overview and Summary

In Kumar v R, the Court of Appeal of New Zealand dismissed the appeals of Shivneel Kumar and Bryne Permal against their convictions for the murder of Shalvin Prasad. Both appellants were found guilty of murdering Mr Prasad by setting him alight while he was still alive. The Court upheld the trial judge's directions to the jury on the one transaction theory of murder, rejecting the appellants' argument that the Crown had not proven its case according to the leading authorities. The Court also dismissed the appellants' appeals against the minimum periods of imprisonment imposed, finding that the circumstances of the offending justified the 17-year minimum term. The Court held that the murder was committed with a high level of cruelty and callousness, and that the appellants were fully cognisant of their conduct and its consequences.

Orders