R. v. Kumar
The Court held the trial judge did not err: no prohibited disclosure or mischief under rule 27.04 occurred, the evidence (bank transaction patterns and handwriting expert) provided a sufficient basis to disbelieve the appellant and support the conviction, and the restitution order and sentence were fit; accordingly...
Source-derived case information.
- Citation
- C40238
- Parties
- Respondent: Her Majesty the Queen; Appellant: Ashok Kumar
- Court
- Court of Appeal for Ontario
- Jurisdiction
- Canada
- Judgment Date
- 18 April 2005
- Procedural Posture
- Criminal / Court of Appeal Decision on Conviction and Sentence Appeal
- Outcome
- Conviction appeal dismissed; leave to appeal sentence granted and sentence appeal dismissed; restitution order and sentence upheld.
- Legal Topics
- Credibility of Witnesses, Pretrial Judge Presiding at Trial, Mistrial Motion, Restitution as Sentence Component, Sufficiency of Evidence, Handwriting Evidence, Bank Transaction Evidence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Her Majesty the Queen
Respondent
Ashok Kumar
Appellant
Procedural Posture
Criminal / Court of Appeal Decision on Conviction and Sentence Appeal
Legal Issues
- 1 Whether the trial judge erred by presiding at both the pretrial and the trial creating a need for a mistrial under rule 27.04
- 2 Whether the evidence (pattern of deposits, withdrawals and handwriting evidence) supported the conviction despite credibility issues
- 3 Whether the restitution order was appropriate and the sentence fit
Ratio Decidendi
The Court held the trial judge did not err: no prohibited disclosure or mischief under rule 27.04 occurred, the evidence (bank transaction patterns and handwriting expert) provided a sufficient basis to disbelieve the appellant and support the conviction, and the restitution order and sentence were fit; accordingly the conviction and sentence appeals were dismissed (leave to appeal sentence granted but appeal dismissed).
Court Disposition
Conviction appeal dismissed; leave to appeal sentence granted and sentence appeal dismissed; restitution order and sentence upheld.
Orders
- Conviction appeal dismissed
- Leave to appeal sentence granted
Full Case Text
Judgment text and source record
1 paragraphs
R. v. Kumar Collection Decisions of the Court of Appeal Date 2005-04-18 Docket numbers C40238 Judges MacPherson, James C.; Juriansz, Russell G.; MacFarland, Jean Louise Subject Criminal Decision Content DATE: 20050418 DOCKET: C40238 COURT OF APPEAL FOR ONTARIO RE: HER MAJESTY THE QUEEN (Respondent) – and – ASHOK KUMAR (Appellant) BEFORE: MACPHERSON, JURIANSZ and MACFARLAND JJ.A. COUNSEL: Robert B. McGee for the appellant Christine Tier for the respondent HEARD & RELEASED ORALLY: April 7, 2005 On appeal from the judgment of Justice Bruce C. Hawkins of the Superior Court of Justice dated October 22, 2002. ENDORSEMENT [1] The pattern of deposits, withdrawals and purchases from the appellant’s accounts provided a basis for the trial judge to disbelieve his testimony. While there were problems with the credibility of Mr. Gilray, his evidence and that of the handwriting expert provided sufficient support for the trial judge’s verdict. [2] The practice that a judge who hears a pretrial does not preside at trial should be assiduously followed. In this case, it was not discovered that the trial judge had presided at the pretrial until after the trial. The judge and counsel could not recall the pretrial. The pretrial conference report indicates that the appellant intended to plead not guilty. The mischief prohibited by rule 27.04, the disclosure of communications or discussion of a guilty plea to the trial judge, did not occur in this case. The trial judge committed no error in dismissing the appellant’s motion for a mistrial. [3] This is an appropriate case for a restitution order as a component of the sentence. The amount ordered by the trial judge reflects the complainant’s loss as established in the evidence. The sentence was fit. [4] The conviction appeal is dismissed. Leave to appeal sentence is granted, and the sentence appeal is dismissed. “J.C. MacPherson J.A.” “R.G. Juriansz J.A.” “J. MacFarland J.A.”