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Court of Criminal Appeal 28 June 2023

Kumar v R

[2023] NSWCCA 156

Sexual offences

Citation: Kumar v R [2023] NSWCCA 156
Court: Court of Criminal Appeal (NSW)
Date: 28 June 2023
Judges: Adamson JA (primary judgment); Price J (agreeing); Dhanji J (agreeing with additional reasons)

Background

The applicant was convicted by a District Court jury of aggravated sexual assault without consent under s 61J of the Crimes Act 1900 (NSW). The offence arose from events on 3 September 2020 at a hotel in Parramatta, where the complainant, a young Colombian woman, had accompanied the applicant under the pretext of a work-related visit.

The Crown's case was that the complainant became severely intoxicated after consuming alcohol provided by the applicant, fell asleep or lost consciousness in the hotel room, and was sexually assaulted while in that state. The complainant had no continuous memory of what occurred, but retained flashbacks of the applicant removing her pants and of being face down with the applicant positioned on her legs. Forensic evidence confirmed semen in her vagina, and she discovered on leaving the hotel that her underwear was on inside out and that she was wearing a different pair of jeans.

The applicant's case at trial was that the complainant had initiated and consented to sexual intercourse while both parties were intoxicated, and that neither party retained a reliable memory of events. He was acquitted on a related stealing charge. He then sought leave to appeal his conviction on two grounds: that the guilty verdict was unreasonable, and that the trial judge's directions to the jury caused a miscarriage of justice.

  • Whether the guilty verdict was unreasonable, on the basis that the evidence was insufficient to establish that the complainant was asleep or unconscious when the sexual intercourse occurred
  • Whether the complainant's evidence, given her significant intoxication and lack of continuous memory, could sustain the jury's findings beyond reasonable doubt
  • Whether directions given by the trial judge, to which defence counsel had agreed, caused a miscarriage of justice by misdirecting the jury on the elements of the offence
  • Whether, even if those directions were erroneous, any substantial miscarriage of justice actually resulted

Decision

Ground 1: Unreasonable verdict

The Court rejected the contention that the verdict was unreasonable. Applying Pell v The Queen (2020) 268 CLR 123, the Court assessed whether it was open to the jury, acting reasonably, to be satisfied of guilt beyond reasonable doubt. The complainant's evidence of what she did remember was accepted by the jury as credible and reliable, and portions of the applicant's own evidence corroborated aspects of her account. Crucially, the hypothesis that the complainant had consensual intercourse while awake could not accommodate the specific things she did recall, including the flashbacks of being prone with the applicant on her legs.

Dhanji J added that the complainant's evidence drew a meaningful distinction between the earlier period of intoxication, during which she was awake but later had no memory, and the later critical period when the intercourse occurred. During that later period, the complainant was not active. It was therefore open to the jury to be satisfied beyond reasonable doubt that she was asleep or unconscious when the intercourse took place, and that she had not consented and the applicant knew she was not consenting.

Ground 3: Jury directions

The impugned direction told the jury that, if they accepted the applicant's account of the complainant's behaviour, they could consider the reasonable possibility that she had intercourse with him while substantially intoxicated, but that intoxication alone did not establish absence of consent. Defence counsel had agreed to this direction at trial. The Court found that this agreement reflected a rational forensic decision: by accepting the direction, counsel shielded the applicant from the Crown running an alternative case that the complainant's intoxication itself vitiated consent, a potentially more damaging basis for conviction.

Considering the directions as a whole, the Court concluded the jury would have understood that conviction required proof beyond reasonable doubt that the complainant was asleep or unconscious. Leave to appeal on this ground was refused. The Court went further and held that even if leave had been granted and the ground established, the proviso in s 6(1) of the Criminal Appeal Act 1912 (NSW) would have applied, because no substantial miscarriage of justice had actually occurred.

Orders Made

No orders were made in this decision.

Key Takeaways

  • A guilty verdict for aggravated sexual assault will not be set aside as unreasonable where the complainant's evidence of what she did remember, taken together with corroborating aspects of the accused's own evidence, renders the defence hypothesis untenable on the whole of the evidence.
  • Where a complainant retained only flashbacks due to intoxication, those partial recollections can still be assessed by a jury for credibility and reliability; the absence of continuous memory does not automatically make the evidence insufficient.
  • Defence counsel's agreement to a jury direction can constitute a rational forensic decision, particularly where accepting that direction prevents the prosecution from advancing an alternative and potentially more damaging theory of liability.
  • Parties are generally bound by the conduct of their counsel in criminal trials, and a decision explicable as a forensic advantage will ordinarily not give rise to a miscarriage of justice, consistent with the principles in Edwards v R (2022) 107 NSWLR 301 and Nudd v The Queen (2006) 80 ALJR 614.
  • In dismissing the appeal, the Court confirmed that the s 6(1) proviso in the Criminal Appeal Act 1912 (NSW) remained available as a further basis for refusing relief even where a misdirection might otherwise be established, provided no substantial miscarriage of justice has in fact occurred.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61HE, 61J, 94
- Criminal Appeal Act 1912 (NSW), ss 5, 6
- Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 4.15

Cases
- Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12
- Kalbasi v Western Australia (2018) 264 CLR 62; [2018] HCA 7
- Hofer v The Queen (2021) 95 ALJR 937; [2021] HCA 36
- Edwards v R (2022) 107 NSWLR 301; [2022] NSWCCA 22
- Dansie v The Queen [2022] HCA 25; (2022) 96 ALJR 728
- The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35
- M v The Queen (1994) 181 CLR 487; [1994] HCA 63
- Aravena v R (2015) 91 NSWLR 258; [2015] NSWCCA 288