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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
Date: 28 June 2023
Judge(s): Adamson JA at [1]; Price J at [104]; Dhanji J at [105]

Background

The applicant was convicted by a jury in the District Court at Parramatta of aggravated sexual assault without consent, contrary to s 61J of the Crimes Act 1900 (NSW), and acquitted of a charge of stealing. The Crown case was that the applicant had sexual intercourse with the complainant while she was asleep or unconscious as a result of heavy alcohol intoxication and while she was under his authority as a casual employee. The defence case was that the complainant had consented to and initiated the sexual intercourse while both parties were intoxicated.

The events occurred on 3 September 2020, following a day in which the applicant and the complainant consumed significant quantities of alcohol at a restaurant and in a hotel room. Hotel staff observed the complainant unable to walk independently, lying on a bench outside the hotel, and with vomit on her clothing. Scientific evidence established the presence of the applicant's semen in multiple areas. The applicant sought leave to appeal against his conviction on two grounds: that the verdict was unreasonable, and that the jury directions contained an error.

Legal Issues

  • Whether the evidence was sufficient to establish beyond reasonable doubt that the complainant was asleep or unconscious at the time of sexual intercourse, such that the guilty verdict was not unreasonable.
  • Whether the trial judge's elements direction caused a miscarriage of justice by suggesting the jury could convict even if not satisfied the complainant was asleep or unconscious.

Decision

Ground 1: Unreasonable verdict

The Court applied the test from Dansie v The Queen [2022] HCA 25, conducting its own independent assessment of the evidence while recognising the jury's primary responsibility for determining guilt and its advantage in seeing and hearing witnesses (at [79]). The applicant argued that the complainant's evidence that she could not remember events and therefore believed she had fallen asleep was insufficient lay opinion evidence, and that she had also lacked memory of other events during which she was demonstrably conscious (at [81]).

The Court rejected this argument. It found that the complainant's evidence of lack of memory formed only a small part of a broader Crown case (at [82]). The Court emphasised the following: the complainant had told the applicant she had a female partner specifically to discourage romantic interest (at [82]); hotel staff observed her seriously incapacitated before she returned to the room (at [84]); the complainant recalled flashbacks of being thrown onto the bed, the applicant pulling off her jeans, and lying face down with the applicant sitting on her legs (at [85]); and she woke wearing different jeans from her backpack with her underwear on backwards (at [85]). These matters were inconsistent with the applicant's account that the complainant had willingly initiated sexual contact (at [87]). The Court was satisfied it was open to the jury to find beyond reasonable doubt that the complainant was asleep or unconscious and had not consented (at [88]).

Dhanji J added that the complainant's condition during the second return to the hotel was materially worse than during the earlier period when she had been mobile. Her act of lying on the bench outside the hotel was suggestive of a desire to sleep, and her evidence of flashbacks distinguished the critical later period from the earlier period of alcohol-induced memory loss (at [107]-[108]).

Ground 3: Error in jury directions

The applicant argued that the trial judge's written elements direction was erroneous because it suggested the jury could convict even if not satisfied the complainant was asleep or unconscious at the time (at [90]). Rule 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW) applied because the applicant's trial counsel, having been extensively consulted during the drafting of the directions, made no objection to them (at [91]).

The Court found that the trial judge had correctly directed the jury that a not guilty verdict was required if they were not satisfied beyond reasonable doubt that the complainant was asleep or unconscious (at [92]). The Court accepted that part of the direction was potentially capable of causing confusion, but concluded that trial counsel had made a sound forensic decision not to object (at [94], [99]). Counsel's concern was to prevent the Crown from running an alternative case of non-consent based on intoxication under s 61HE(8) of the Crimes Act, which would have been far more damaging to the defence (at [99]). The direction as given was, in substance, protective of the applicant's position (at [99]). The Court refused leave to appeal under r 4.15 and found no substantial miscarriage of justice (at [101]). The Court also held that, even had leave been granted and the ground established, the proviso in s 6(1) of the Criminal Appeal Act 1912 (NSW) would apply because no substantial miscarriage of justice had actually occurred (at [102]).

Orders Made

  • Leave to appeal refused pursuant to r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW) in respect of ground 3.
  • Leave to appeal granted in respect of ground 1.
  • Appeal dismissed.

Key Takeaways

  • A conviction for aggravated sexual assault will not be unreasonable where the complainant's limited recollection forms only part of a broader body of circumstantial evidence, including observations by independent witnesses, physical findings, and inconsistencies in the accused's account (at [82]-[88]).

  • Where a complainant's memory loss during heavy intoxication extends over two distinct periods, courts may treat the periods differently based on observable differences in the complainant's physical condition during each (at [106]-[108]).

  • The Court of Criminal Appeal confirmed that a trial counsel's failure to object to a jury direction, following extensive consultation with the trial judge during the direction-drafting process, is a relevant indicator that the direction was neither erroneous nor prejudicial in the context of the trial as conducted (at [91]).

  • A forensic decision by defence counsel to accept a jury direction that carried a potential risk of confusion may nonetheless be objectively sound where the alternative, had an objection prompted reformulation, would have exposed the accused to a substantially more damaging legal basis for conviction (at [99], [112]).

  • Even where a direction has the potential to cause confusion, no substantial miscarriage of justice arises if, reading the directions as a whole, the jury would have been left in no doubt of the correct legal test for conviction (at [100]-[102]).

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
- Aravena v R (2015) 91 NSWLR 258; [2015] NSWCCA 288
- Dansie v The Queen [2022] HCA 25; (2022) 96 ALJR 728
- Edwards v R (2022) 107 NSWLR 301; [2022] NSWCCA 22
- Hofer v The Queen (2021) 95 ALJR 937; [2021] HCA 36
- Kalbasi v Western Australia (2018) 264 CLR 62; [2018] HCA 7
- M v The Queen (1994) 181 CLR 487 at 494-495; [1994] HCA 63
- Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12
- The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35