Kumar v The King - [2024] NZSC 78

IN THE SUPREME COURT OF NEW ZEALAND

I TE KŌTI MANA NUI O AOTEAROA

SC 87/2023
[2024] NZSC 78

BETWEEN	RICHARD RAJESH KUMAR Applicant
AND	THE KING Respondent

Court:	Ellen France, Williams and Miller JJ
Counsel:	Applicant in person K E Hogan for Respondent
Judgment:	24 July 2024

JUDGMENT OF THE COURT

The application for leave to appeal is dismissed.

____________________________________________________________________

REASONS

Introduction

Mr Kumar was convicted after trial of charges of theft in a special relationship in respect of two events which are referred to as Event 11 and Event 12.[1] He was sentenced to three months’ community detention, 100 hours’ community work and ordered to pay $10,165 in reparation.[2] Mr Kumar’s appeal to the Court of Appeal against conviction on the two charges was unsuccessful.[3] He now seeks leave to appeal to this Court.

Background

The factual narrative

[1]Crimes Act 1961, s 220(1)(a). He was acquitted of another charge of using a document under s 228 of the Crimes Act. That charge also related to Event 12.

[2]Prasad v R [2019] NZDC 19350 at [59].

[3]Chand v R [2023] NZCA 276 (Brown, Mallon and Downs JJ) [CA judgment].

Mr Kumar was one of a number of persons charged and convicted in relation to applications for, and receipt of, grants from gaming machine proceeds by a number of interconnected clubs in South Auckland. The clubs included Shree Sanatan Dharam Pratinidhi Sabha Manukau Branch Inc (Manukau Sanatan). Event 11 related to a grant of $30,000 paid by Four Winds Foundation Ltd (Four Winds) to Manukau Sanatan on 1 November 2012. Event 12 related to a grant of a little over $30,000 paid by Infinity Foundation Ltd (Infinity) to Manukau Sanatan on 14 November 2012.
The evidence forming the basis of the case against Mr Kumar is set out in some detail in the Court of Appeal judgment.[4] In essence, the Crown case in relation to Event 11 was that, in the context of obtaining grant funding, an inflated quote was obtained from The Rock Factory Ltd for items such as staging and that a refund of the over-payment to The Rock Factory Ltd was subsequently falsely treated as a donation. The over-payment was not repaid to Manukau Sanatan but to a soccer club, New Zealand Fiji Association Sanatan Football Club Inc (NZ Fiji Football).[5] Similarly, in relation to Event 12, the Crown said the relevant quote from Boom Boom Fireworks Ltd was inflated in order to obtain grant funding for fireworks in excess of what was required. Again, the Crown said that the refund for services not provided was falsely treated as a donation.

The offence provision in issue

[4]At [84]–[102].

[5]New Zealand Fiji Association Sanatan Football Club Inc was struck off the Incorporated Societies Register on 18 January 2011.

The two charges concerned alleged offences under s 220(1)(a) of the Crimes Act 1961. Section 220 relevantly provides as follows:
220 Theft by person in special relationship
(1)This section applies to any person who has received or is…

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 The King

Details

AGLC: Kumar v The King [2024] NZSC 78
Case: [2024] NZSC 78
Decision Date: 24 July 2024

CaseChat Overview and Summary

The applicant, Mr Kumar, sought leave to appeal against his conviction and sentence for charges of theft in a special relationship in respect of two events, referred to as Event 11 and Event 12. Mr Kumar was convicted after trial and sentenced to three months’ community detention, 100 hours’ community work, and ordered to pay $10,165 in reparation. His appeal to the Court of Appeal was unsuccessful, and he now seeks leave to appeal to the Supreme Court of New Zealand.

The legal issues the court was required to decide included whether the Court of Appeal’s assessment of the evidence and the verdicts were correct and whether there was a basis for the guilty verdicts. The court also needed to consider the new matters raised for the first time in the leave application, such as the failure to sever his trial from that of the co-defendants and the admissibility of evidence. The court had to determine if these new matters warranted a grant of leave to appeal.

The court found that the proposed appeal did not raise issues of general or public importance. The focus of the appeal was essentially on whether there was a basis in the facts for the guilty verdicts. The court highlighted that the Court of Appeal had thoroughly examined the elements of the offences and the evidential basis for the verdicts. The court noted that Mr Kumar was present at the relevant meeting, involved in obtaining quotes, and personally dictated the relevant invoice for the Rock Factory Ltd. The court concluded that nothing raised by Mr Kumar gave rise to any appearance of a miscarriage of justice. As for the new matters, the argument based on the lack of severance had insufficient prospects of success to warrant a grant of leave. The other new matters should have been raised in the Court of Appeal.

The application for leave to appeal is dismissed. The court held that the criteria for leave were not met.

Orders