R v Kumar - [2012] NZHC 1912

NOTE: PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 139 CRIMINAL JUSTICE ACT 1985.

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2011-092-011460 [2012] NZHC 1912

THE QUEEN

v

PRAVIN FIA HARI PRASAD KUMAR

Hearing: 30-31 July 2012, 1 August 2012

Appearances: A M McClintock for Crown
S Lance for Accused

Judgment: 1 August 2012

Reasons: 1 August 2012

VERDICTS & REASONS FOR VERDICTS OF VENNING J

Solicitors: Crown Solicitor, Auckland
Copy to: S Lance, Auckland

R V KUMAR HC AK CRI-2011-092-011460 [1 August 2012]

Introduction

[1] The accused Pravin Fia Hari Prasad Kumar faces two counts of wilfully attempting to pervert the course of justice. He has pleaded not guilty to both counts.

[2] At the request of the accused this Court made an order that he be tried without a jury on the grounds that it was in the interests of justice to do so.

[3] The Crown charges Mr Kumar:

Count 1

On or about 8 June 2011 at Auckland he wilfully attempted to pervert the course of justice. The particulars are contacting SL via a telephone call at
9.29 a.m.

Count 2

On or about 13 June 2011 at Auckland he wilfully attempted to pervert the course of justice. The particulars are that he contacted SL via telephone calls on three occasions, 9.12 a.m., 10.59 a.m. and 1.03 p.m.

[4] The following are admitted facts for the purposes of s 9(2) of the Evidence

Act 2006:

(a) On 13 October 2009 the accused was convicted of the following charges against SL:

(i) kidnapping;

(ii) indecent assault (by touching SL’s breasts); and

(iii) sexual violation by rape.

(b) The convictions followed a trial that proceeded in the accused’s

absence because he chose not to attend.

(c) On 19 March 2010 the accused was sentenced on the above charges. (d) On 29 March 2010 the accused appealed his conviction to the Court

of Appeal. That appeal is yet to be heard.

[5] The charges before the Court arise out of the accused’s contact with SL after trial and before his appeal against conviction has been heard.

Directions

[6] Although this is a Judge alone trial I remind myself that I must reach my decision uninfluenced by prejudice or sympathy for anyone associated with the case. I decide this case solely on the evidence and after considering counsels’ addresses.

[7] Again, although well understood, I remind myself that the onus of proving the charges against the accused lies on the Crown. The starting point is that the accused is entitled to the presumption of innocence on both counts. The Crown must prove the accused guilty on each of the counts beyond reasonable doubt. I accept that this is a very high standard of proof which the Crown will have met in this case, only if, at the end of my consideration I am sure the accused is guilty of the particular charge. It is not enough for the Crown to persuade me the accused 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 R v Kumar

Details

AGLC: R v Kumar [2012] NZHC 1912
Case: [2012] NZHC 1912
Decision Date: 1 August 2012

CaseChat Overview and Summary

The case of R v Kumar involves a defendant, Pravin Fia Hari Prasad Kumar, who was convicted on charges of kidnapping, indecent assault, and sexual violation by rape against a complainant, SL. Kumar was sentenced for these offences and subsequently appealed his conviction. The charges before the court arise from Kumar's contact with SL after trial and before his appeal against conviction has been heard. Kumar was charged with two counts of wilfully attempting to pervert the course of justice. Kumar pleaded not guilty to both counts.

The legal issues the court had to decide included whether Kumar's actions had the tendency to adversely influence or interfere with the course of justice and whether Kumar used unlawful or improper means to persuade SL to change or withdraw her evidence. The court had to consider the nature of Kumar's interactions with SL, including the content of their conversations and Kumar's intentions during these interactions.

The court found Kumar not guilty of the first count but guilty of the second count. The court concluded that Kumar's actions during the first call did not have the tendency to achieve the end of perverting the course of justice. However, the content of the second call on 13 June showed that Kumar was pressuring SL to change her story about the incident, which had the tendency to cause her to change or withdraw her evidence. Kumar's conduct during this call was deemed improper, and the court found that there was a substantial risk that SL might change or withdraw her evidence under the pressure exerted by Kumar. The court found Kumar guilty on the second count and remanded him for sentencing.

Orders