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Home / New Zealand

Kumar trial: Accused claims self-defence

NZME.
19 Jun, 2015 05:45 AM4 mins to read

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Arun Kumar was killed in his Auckland dairy. Photo / Supplied via Facebook

Arun Kumar was killed in his Auckland dairy. Photo / Supplied via Facebook

A boy who stabbed a west Auckland shopkeeper to death was retreating and trying to defend himself at the time, his lawyer says.

The 14-year-old is shown on CCTV stabbing dairy owner Arun Kumar in the neck, but defence lawyer Maria Pecotic said it was the victim who was advancing on her client after retrieving a metal object from behind the counter.

"When Mr Kumar picks up the pole, [the boy] defended himself. As he did so, he backs away," she said.

His 13-year-old co-accused, also before the High Court at Auckland, is charged with the manslaughter of Mr Kumar after the incident at the Henderson dairy on June 10, 2014.

The pair, who have name suppression, originally faced additional counts of assault with intent to rob but the Crown withdrew those charges yesterday.

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"It's not because there wasn't an attempt at a robbery, but that's not what this case is about. It's not about stealing something from the dairy, it's about Mr Kumar being killed by those young men," Crown prosecutor Kieran Raftery said.

Ms Pecotic was critical of the terminology of the prosecutor who called her client "a young man".

"Legally he is a child," she said. "It's wrong in law and you might think it is inappropriate to call [the defendant], a 14-year-old boy, a man."

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To fully understand what happened during the brief moments captured on CCTV footage inside the dairy, Ms Pecotic said, "we need to go back in time".

On April 12, 2009, the defendant suffered a serious head injury when he was hit by a car.

There was no follow-up medical care and he was back at school within two weeks, the court heard.

Ms Pecotic said an adult suffering a similar injury would have required about two years off work.

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"So this is a 13-year-old boy who goes into the dairy, you need to assess what was in his mind at the time," she told the jury.

"He was not an average 13-year-old without a brain injury, without a history of drug use and neglect, and not a man as the Crown has said."

After breaking down the video footage from inside the dairy, Ms Pecotic pointed out to the jurors that her client did not look at the till when he entered, instead focusing his attention on food and drink in the fridges.

"If [the defendant] had the intention to cause grievous bodily injury, he wouldn't have lifted his left hand towards Mr Kumar. He would've immediately used his right hand with the knife, I suggest," the lawyer said.

"When you're in the jury room, you'll be given all the exhibits. Look at the size of the pole and compare it to the size of the knife. The pole is much wider than a vacuum cleaner pipe and while hollow, is still solid and strong."

The manslaughter-accused's lawyer David Niven accepted it had been his client's idea to go out that morning and persuaded his co-defendant to join him.

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But he said there was barely any planning regarding what was to happen inside the dairy - a maximum of three minutes discussion.

Originally the boys had planned to break into a shoe shop, Mr Niven said, but found it boarded up and decided against it.

He said the jury would have to decide whether the younger accused assisted in the attempted robbery.

"And did he know what [the older boy] did was a probable consequences of carrying out the robbery?" Mr Niven asked.

The defence lawyer also drew the jury's attention to the CCTV, depicting the teen standing in the shop's doorway, which he said showed his client was not guilty.

"This is an instinctive reaction to what he sees in front of him - he steps backwards,"Mr Niven said.

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"If the plan was for the weapons to be used, this is the time you would use them, but he does the opposite. I suggest he was thinking: 'this is not what we talked about. This is not what we agreed'."

Earlier in the trial, the victim's wife Anita Kumar told the court the younger boy had stood by the door repeatedly yelling "give me the money", but his lawyer said the testimony of other witnesses made that unclear.

Mr Raftery yesterday said there would likely be a defence of "withdrawal" - essentially arguing he was not part of the criminal enterprise.

Mr Niven said the Crown had it got it wrong and that was not a factor the jurors had to consider.

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