2
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For this assessment I observed two parts of the Criminal Trial of R v Amit Kumar, in the Supreme Court of Victoria. The first observation made was on Monday 9th April 2018, beginning at 11:15am, in Court room 1. This part of the Trial was the Evidence-in-Chief, consisting of the examination-in-Chief of five witnesses and the cross-examination of two, in accordance with the Evidence Act 2008 Section 28 Order of examination.
The first witness observed was Dr Pan is the Plastic surgeon/ Dermatological Specialist that treated the victims’ (Mr. Idrees) physical injuries. These injuries being, a range of lacerations to the face, neck, arm and hands, he was not cross-examined by the defence.
Witness number 2 was the Councillor/ Psychotherapist (Thomas) who had 6 counselling sessions with the victim (Mr. Idrees) beginning 27th
June 2017. Thomas stated victim still has on going symptoms of anger, fear, trauma and flashbacks from the incident.
Samantha Logan, a Forensic Biology Officer for Vic Police, was the third witness examined. She stated what DNA was found on each piece of evidence collected and tested. The defence Barrister Cross-examined Samantha focusing his questioning around the details of the DNA testing process and the lack of evidence tested for DNA and hypothetical outcomes if more DNA testing was done. I believe the defence took this approach to show that the DNA was not definitive evidence that proved the charges.
Occupational Hand Therapist, Kate Rainer, was the fourth witness to be examined. She treated the victims’ (Mr. Idrees) hand injuries which involved on going hypersensitivity, and significant loss of strength which has only slightly improved. She was not cross-examined.
The fifth and final witness examined was Detective Senior Constable Justin Shields. He was questioned on the events leading up to Mr. Kumars’ arrest at Caulfield police station, the evidence collected at the crime scene, as well as phone calls made by the accused (Mr. Kumar) in regards to the incident whilst in custody awaiting trial. Mr. Shields was then cross-examined by the defence. This round of questioning was focused on the lack of evidence collected from the scene and the fact that Mr. Shields had never personally attended the scene. The defence also questioned the decision made by Victorian Police not to have a forensic officer examine the injuries on the accused’s hands in relation to the incident, even though photos were taken and questions asked in relation to them.
The Second observation commenced on Friday 20th April 2018 at 11:00am. This part of the trial was the Closing addresses in accordance with Criminal Procedure Act 2009 Sections 234 and 235. Proceedings commenced with the Prosecutions closing statement and concluded with the first half of the Defences closing statement. The Prosecution based his statement on outlining and explaining what the jury must prove in regards to each charge. In the last hour of the day I observed the start of the defences closing statement. The defence closing statement was solely based upon the inconsistencies and unreliability of both victims witness statement, in an effort to create reasonable doubt in the juries minds.
4. We first attended the Supreme Court of Victoria to observe the Prosecution’s evidence part of a trial on Monday 9Th
April 2018. At first, I noticed the very grand, traditional style of the huge building that is the Supreme Court. Walking in the doors we were greeted by two very friendly security guards who scanned our bags and our persons for anything prohibited in the court, for safety reasons. During this first observation we sat in the raised public gallery and as a result we were unable to hear the proceeding clearly and were also unable to visually see some of the jury members, the accused and the police escorts. During this part of the hearing there were no tip staff available, therefore a Junior Associate Judge stood in, he seemed to really enjoy doing the announcements. Surprisingly, at this stage in the trial, the accused seemed very relaxed, easy going and during breaks casually conversed and laughed with the police escorts.
Going into the second observation (Closing statements) on Friday 20th
April 2018, we chose to sit in the lower public gallery, almost directly behind the accused. Therefore we had a significantly better view of the entire court room, but we were also able to hear everything that was said very clearly, to the point where at times we could hear the judge breathing. After the Prosecution finished his closing statement the jury and the public were sent out of the court room, as the court had to deliberate over whether a particular jury member had a ‘lack of attentiveness’ because he fell asleep during proceedings on more than one occasion, as a result he was excused from the jury, only leaving the required 12 members.
During both observations it was clear that both the Prosecution and Defence Barristers were very experienced and skilled their professions.
5. a
Once the Victorian police have charged, and in our case, remanded the accused, the indictable matter is then referred to the Office of Public Prosecutions (OPP) (Office of Public Prosecutions Victoria, 2018).
The OPP prepare and present prosecutions against people who commit serious (Indictable) offences, on behalf of the Victorian community. The Director of Public Prosecutions (DPP) is responsible for making the key decisions in the prosecution process, including whether or not to prosecute. The OPP also has a Solicitor of Public Prosecutions (SPP). The SPP is responsible for management of the OPP staff, budget and briefing Crown Prosecutors, Associate Crown Prosecutors, Solicitor Advocates and barristers to appear in criminal proceedings on behalf of the DPP (Office of Public Prosecutions Victoria, 2018).
The Steps of the Pre-Trial court process is as follows:
1. Filing Hearing – A short Administrative hearing to set the time and date for the Committal Mention and the service of the hand-up brief, which is required at least 42 days before the committal mention hearing (Magistrates' Court of Victoria, 2018).
2. Committal Mention Hearing – This is also a short administrative hearing. The purpose of this hearing if to set a date and time for the Committal Hearing as well as determining any disclosure, issues or objections in regards to the evidence and witnesses to be involved in the trial (Magistrates' Court of Victoria, 2018).
3. Committal Hearing – The committal hearing is held in the Magistrates’ Court. The OPP will present all relevant evidence to Magistrate. Then the Magistrate will decide if there is enough evidence to send the accused person to the County Court or the Supreme Court for trial, as well as OPP all the relevant evidence is presented to the magistrate by the prosecution. (Office of Public Prosecutions Victoria, 2018).
4. Post-Committal Directions Hearing – This is the last step before the Trial begins. The directions hearing is held within 24 hours of the completion of the committal hearing, usually the same day or the following morning. The purpose of this hearing is to set a date and time for then Trial to begin as well as issues, strengths and weaknesses of the case. A timetable is also set for the filing of the prosecution opening, defence response and evidentiary notices as required under the Evidence Act 2008 (Vic) and the Jury Directions Act 2013 (Vic) (Supreme Court of Victoria, 2018).
5. Criminal Trial
b
Bail is the conditional and sometimes temporary release of an accused person who is in custody. This can happen when the accused enters an undertaking to appear before the court at a later date. The court or police can refuse bail if there is an unacceptable risk that the accused will not appear on the specified day at court, or if it is thought that the accused may commit other offences whilst on bail, endanger the public or interfere with witnesses. Some special conditions that may be attached to the accused being granted bail are surrendering of a passport, regular reporting to a police station, counselling, behavioural programs or the requirement not to contact or interfere with witnesses (Law Institute Victoria, 2018).
In the case of R v Amit Kumar, Mr. Kumar lodged an application for bail in November of 2017. He was required to show cause as to why detention was not justified and that there was no ‘unacceptable risk’ attached to his possible release.
Justice Priest determined that he did not have confidence that the accused would not be in the position where he would be able to threaten, intimidate or otherwise interfere with the trial and its witnesses. This decision is based on the likelihood of the trial being further delayed and his repeated breaches of Family Violence Intervention Orders against the same victims. Justice Priest also considered the accused was on bail for the similar charges while the current offence was committed and that he continues to attempts to contact the victims while in custody, resulting in both the victims and his ex-wife, Ms. Sema Sema, reporting that they would fear for their safety if the accused was released on bail. The bail application was refused (Bail Application by Amit Kumar, 2017).
6. The Court of Appeal, Criminal Division, within the Supreme Court of Victoria, hears appeals against convictions and sentences imposed by the County and Supreme Courts. All appeals made by defendants require leave or approval from the Court. To appeal a conviction in the Supreme Court the defendant must file an application for leave to appeal and written copy of their case, within 28 days of the date of sentence (Supreme Court of Victoria, 2018). The application must comply with the Supreme Court (Criminal Procedure) Rules 2008, Criminal procedure act 2009 section 275 (How appeal is commenced) as well as Practise note SC CA 1 Criminal Appeals (Judicialcollege.vic.edu.au, 2013). This particular practice note was written to ensure that any issues at Trial in regards to matters of fact and law are identified and properly examined. Its purpose is also to ensure that appeal grounds are established and argued only with reference to what took place at trial (Supreme Court of Victoria, 2017).
All criminal appeal processes must also comply with the Criminal Procedure act 2009 Chapter 6—Appeals and Cases Stated (Judicialcollege.vic.edu.au, 2013).
In reference to the case I observed, Amit (the accused) would have to apply for ‘Leave to Appeal against Conviction’ as his case includes indictable offences and is being heard within the Supreme Court, in doing so Amit must complete the Court of Appeal Form 6-2A (Supreme Court of Victoria, 2018).
Part 3: Criminal Law
Question 1
. Legislation and Penalties
Contravening a family violence safety notice intending to cause harm or fear
Family Violence Protection Act 2008 (Vic) - Section 123
Maximum Penalty:
2 Years Imprisonment, 240 Penalty units or both (Victorian Legislation and Parliamentary Documents, 2008).
Aggravated Burglary
Crimes Act 1958 (Vic) – Section 77
Maximum Penalty:
25 Years Imprisonment (Level 2) (Victorian Legislation and Parliamentary Documents, 1958).
Attempted Murder
Crimes Act 1958 (Vic) – Section 3 Punishment for Murder
Crime Act 1958 (Vic) – Section 321P Penalties for Attempts
Maximum Penalty:
25 Years Imprisonment (Level 2) (Victorian Legislation and Parliamentary Documents, 1958).
OR
Intentionally Cause Serious Injury
Crimes Act 1958 – Section 16
Maximum Penalty:
20 Years Imprisonment (Level 3) (Victorian Legislation and Parliamentary Documents, 1958).
OR
Recklessly Cause Serious Injury
Crimes Act 1958 – Section 17
Maximum Penalty:
15 Years Imprisonment (Level 4) (Victorian Legislation and Parliamentary Documents, 1958).
Question 2. Elements
In regards to the case I observed, the prosecution is to prove to the jury that the accused is guilty of the below offences ‘beyond reasonable doubt’. If the Defence Barrister can put any ‘reasonable doubt’ in the minds of the jury, the accused will be found not guilty.
Contravening a family violence safety notice intending to cause harm or fear
There are three elements to prove for this offence, these being:
- the accused has been served with a family violence safety notice;
- the accused received the explanation prescribed under s35; and
- the accused contravened the notice (Judicial College of Victoria, 2018).
Aggravated Burglary
For the prosecution to prove that the accused committed Aggravated Burglary, they must first prove the accused committed ‘Burglary’ as stated under the Crimes Act 1958 section 77(1)(a). These elements are:
- Entered a building (or part of a building)
- Did so as a trespasser and (in this case)
- Commit an offence punishable by imprisonment for a term of five years or more involving either:
(a) An assault to a person in the building or part in question
or
(b) Damage to the building or to property in the location (Judicial College of Victoria, 2018)
Once the elements of Burglary has been proved, the prosecution has to then prove the accused is guilty of the ‘Aggravated’ part which is stated in section 77 (1) Crimes Act 1958 by either:
(a) having a firearm, offensive weapon or explosive with them upon entering
or
(b) knowing a person is inside that does not know you are entering (Judicial College of Victoria, 2018)
Attempted Murder
According to the Crimes Act 1958 Section 312M, A person who attempts to commit an indictable offence is guilty of the indictable offence of attempting to commit that offence. Therefore the prosecution must prove the conduct constituting an attempt were committed in reference to the elements of murder.
Elements of Murder -
1. The accused committed acts which caused the victim’s death
2. The accused committed those acts voluntarily
3. The accused committed those acts while either:
a)
intending to kill someone or cause them really serious injury
or
b)
Knowing that it was probable that death or really serious injury would result.
4. The accused did not have a lawful justification or excuse for those acts (such as self-defence, provocation, duress or sudden or extraordinary emergency) (Judicial College of Victoria, 2018).
Elements/ Conduct constituting an Attempt
–
1. The accused to have intended to commit an indictable offence.
2. The accused’s conduct was both,
(a) More than merely preparatory to the commission of the offence; and
(b) Immediately and not remotely connected with the commission of the offence (Judicial College of Victoria, 2018).
OR
Intentionally Cause Serious Injury
If the accused is not found guilty of Attempted Murder he could be charged with intentionally cause serious injury instead. The elements for this charge are outlines in the Crimes Act 1958 Section 16.
1. The complainant suffered a "serious injury" – The Crimes Act 1958 Section 15 outlines the definition of serious injury as either ‘endangers life’ or ‘is substantial and protracted’
2. The accused caused the complainant’s serious injury
3. The accused intended to cause serious injury
4. The accused acted without lawful justification or excuse (Judicial College of Victoria, 2018).
OR
Recklessly Cause Serious Injury
The accused will be charged with recklessly cause serious injury if the Prosecution cannot prove that he had intention to cause the injuries. Crimes Act 1958 Section 17 outlines the elements of this charge, these elements are:
1. The complainant suffered a “serious injury”;
2. The accused caused the complainant’s serious injury;
3. The accused was reckless about causing serious injury; and
4. The accused acted without lawful justification or excuse (Judicial College of Victoria, 2018).
Question 3. Defences
Self Defence
– Amit (The accused) is claiming Self-Defence and stating that Mohammad Idrees (Victim) attacked him first, even though there is evidence that could show his defence could be a lie.
This evidence is a phone call the accused made to his Ex-Wife, Ms. Sema Sema, on the 26th
August 2016 stating ‘both parties in court are lying, it is just the better liars that will win the case’.
There are two pieces of legislation within the Crimes Act (Vic) 1958 that outline Self-Defence in relation to the observed case.
- Crimes Act 1958 (Vic) Section 9AC – Murder ‘Self-Defence’ states that, A person is not guilty of murder if he or she carries out the conduct that would otherwise constitute murder while believing the conduct to be necessary to defend himself or herself or another person from the infliction of death or really serious injury (Victorian Current Acts, 2018).
- Crimes Act 1958 Section 332K states that a person is not guilty of an offence if done so in self-defence. This defence can be used if the person believes that the conduct is necessary in self-defence and the conduct is a reasonable response in the circumstances as the person perceives them (Victorian Current Acts, 2018).
Other possible defences
Mental Impairment
– Amit’s (the accused) family and both his Ex’s have reported opinions and specific occasions representative of mental health issues, therefore Amit could have tried to build a defence of Mental Impairment. In this case the defence would have to build up evidence based on completely different factors such as mental health assessments, previous and current doctors reports.
The Crimes (Mental Impairment and unfitness to be tried) Act 1997 Part 4 - Section 20 Defence of Mental Impairment, outlines the requirement for this defence (Victorian Current Acts, 2018).