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Court of Criminal Appeal 8 August 2025

Kumar v R

[2025] NSWCCA 119

Sexual offences
CRIME APPEALS APPEAL AGAINST CONVICTIONS MISCARRIAGE OF JUSTICE ESTABLISHED MIXED VERDICTS GUILTY VERDICTS NOT UNREASONABLE

Citation: Kumar v R [2025] NSWCCA 119
Court: Court of Criminal Appeal, NSW
Date: 8 August 2025
Judges: Wright J, Weinstein J, Rigg J (Rigg J delivering the principal judgment, Wright and Weinstein JJ agreeing)

Background

The applicant was convicted by jury in the District Court on 4 July 2023 of two counts of sexual touching and one count of sexual intercourse without consent, all in circumstances of aggravation (the complainant being under his authority). The offences related to an incident on 19 March 2021. The applicant was acquitted on three further counts arising from a separate incident two days earlier, on 17 March 2021.

The applicant operated a cleaning business and employed the complainant, who had started working for him approximately six weeks before the alleged offences. The complainant did not drive, so the applicant transported her to and from work sites. The trial turned significantly on the credibility of both the complainant and the applicant.

The applicant was sentenced to an aggregate term of three years and six months' imprisonment, with a non-parole period of 22 months that expired in May 2025. He sought leave to appeal his convictions, raising two grounds: a miscarriage of justice arising from how the knowledge of absent consent element was put to the jury, and an alleged inconsistency between the guilty and not-guilty verdicts.

  • Whether a miscarriage of justice arose from the Crown advocate misstating, in closing address, the available bases for proving the accused's knowledge of the absence of consent.
  • Whether the trial judge's summing-up compounded that error by directing the jury to consider what the applicant "thought" or "believed", rather than confining the inquiry to actual knowledge.
  • Whether the guilty verdicts on counts 4 to 6 were inconsistent with the acquittals on counts 1 to 3 such that the convictions were unsafe.

Decision

Ground 1: Miscarriage of justice established

Before the trial judge gave his directions, defence counsel successfully applied to limit proof of knowledge of absent consent to actual knowledge only, excluding recklessness and the alternative of an unreasonable belief in consent. However, the Crown advocate's closing address, delivered before the judge ruled on that application, had already told the jury that knowledge could be established in those additional ways. The summing-up then made reference to the notions of "thought" and "belief" without clearly correcting the Crown's broader framing or directing the jury to confine itself to actual knowledge. Rigg J found that this combination of error and misdirection gave rise to a miscarriage of justice, applying the High Court's recent decision in Brawn v R [2025] HCA 20.

The Court rejected the Crown's reliance on Xu v R [2023] NSWCCA 93 and BQ v The Queen (2024) 279 CLR 124, distinguishing those cases on the particular circumstances present here. The Crown's alternative argument, that the proviso should be applied to preserve the convictions, was not pressed strongly and was rejected. The Court noted this was not a case where the proviso could properly operate, given that the trial turned substantially on credibility and that the jury may well have accepted, or at least regarded as reasonably possible, the applicant's account that the complainant was consenting on 17 March 2021.

Ground 2: Verdicts not inconsistent

The Court dismissed the second ground. The evidence supporting counts 4 to 6 was materially stronger than that supporting counts 1 to 3. Even if the jury harboured doubts about the complainant's credibility in relation to the first incident, it was logical and reasonable for the jury to accept her evidence regarding the second incident beyond reasonable doubt. Rigg J found there was a rational explanation for the divergent verdicts, and the convictions were not unreasonable by virtue of their relationship to the acquittals.

Orders Made

  • Time for filing the Notice of Appeal extended to the date of filing.
  • Leave to appeal granted under s 5(1) of the Criminal Appeal Act 1912 (NSW) in respect of both grounds, and pursuant to r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW) in respect of Ground 1.
  • Appeal allowed.
  • Convictions and sentence quashed.
  • Re-trial of the applicant ordered.
  • Matter remitted for mention at the District Court at Newcastle on 14 August 2025.

Key Takeaways

  • A miscarriage of justice can arise from the combined effect of a Crown advocate misstating the law on knowledge of absent consent in closing address and a subsequent summing-up that fails to clearly correct or confine the jury's approach to the legally permissible basis.
  • Where a trial judge accedes to a defence application limiting proof of knowledge to actual knowledge, any ambiguity in the subsequent directions that permits the jury to reason through alternate pathways (such as recklessness or unreasonable belief) will not be remedied by the ruling alone.
  • Brawn v R [2025] HCA 20 was applied as the governing authority; the Court distinguished Xu v R and BQ v The Queen on their facts, indicating that the outcome on such grounds is highly fact-sensitive.
  • Mixed verdicts do not automatically render guilty verdicts unsafe. Where there is a rational explanation for the divergence, grounded in materially stronger evidence for some counts or legitimate credibility assessments varying between incidents, the convictions will not be characterised as unreasonable.
  • Rigg J observed, without deciding the question, that several factors weigh against re-prosecution: the applicant's non-parole period has expired, and conveying the significance of the acquittals and the credibility issues surrounding the first incident will present real difficulties at any new trial.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW)
- Criminal Appeal Act 1912 (NSW)
- Supreme Court (Criminal Appeal) Rules 2021 (NSW)

Cases
- Brawn v R [2025] HCA 20; (2025) 99 ALJR 872 (applied)
- BQ v The Queen (2024) 279 CLR 124; [2024] HCA 29 (distinguished)
- MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53 (applied)
- MacKenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35 (applied)
- Jones v The Queen (1997) 191 CLR 439; [1997] HCA 12 (considered)
- Hanna v R [2023] NSWCCA 182 (considered)
- Collins v R [2020] NSWCCA 198 (considered)
- Darby v R [2016] NSWCCA 164 (considered)
- CTM v The Queen (2008) 236 CLR 440; [2008] HCA 25
- Banditt v The Queen (2005) 224 CLR 262; [2005] HCA 80
- De Silva v The Queen (2019) 268 CLR 57; [2019] HCA 48
- He Kaw Teh v The Queen (1985) 157 CLR 523
- Liberato v The Queen (1985) 159 CLR 507; [1985] HCA 66
- M v The Queen (1994) 181 CLR 487; [1994] HCA 63
- Fleming v The Queen (1998) 197 CLR 250; [1998] HCA 68
- Kural v The Queen (1987) 162 CLR 502
- AH v R [2019] NSWCCA 152
- Cabot (a pseudonym) v R [2018] NSWCCA 265
- Ewen v The Queen [2015] NSWCCA 117; (2015) 250 A Crim R 544
- Ganiji v R [2019] NSWCCA 208
- Lee v R [2023] NSWCCA 203