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Court of Criminal Appeal 25 February 2026

Kamal v R

[2026] NSWCCA 13

Sexual offences

Citation: Kamal v R [2026] NSWCCA 13
Court: Court of Criminal Appeal (NSW)
Date: 25 February 2026
Judge(s): Mitchelmore JA (primary judgment); Ierace J and McNaughton J agreeing

Background

The applicant was a general practitioner who practised at a medical centre in Leichhardt. In October 2022, a 23-year-old woman attended the practice for a pre-employment medical examination and was seen by the applicant. The Crown alleged that during the examination, the applicant engaged in sexual conduct under the guise of medical procedures. Specifically, it was alleged that while purporting to conduct a heart sounds examination, he circled the complainant's nipple with a stethoscope over her clothing (count 1); while purporting to conduct a hernia check, he cupped his hand over the complainant's vagina under her trousers but over her bodysuit and underwear (count 2); and then digitally penetrated her vagina (count 3).

The applicant was convicted by a jury in the District Court on all three counts. Count 1 and count 2 were charges of sexual touching without consent in circumstances of aggravation, contrary to s 61KD(1)(a) of the Crimes Act 1900 (NSW). Count 3 was a charge of sexual intercourse without consent in circumstances of aggravation, contrary to s 61J(1). The aggravating circumstance for each count was that the complainant was under the authority of the applicant by reason of him being her treating doctor. He was sentenced to an aggregate term of 7 years and 9 months' imprisonment with a non-parole period of 4 years and 3 months.

It was an agreed fact at trial that the pre-employment medical check did not require either a breast examination or a gynaecological examination. The applicant's defence on count 1 was that he had performed a proper heart sounds check. His defence on counts 2 and 3 was that the alleged conduct simply did not occur. He gave evidence at trial.

  • Ground 1 (Count 3): Whether the jury's verdict of guilty on the charge of sexual intercourse without consent (digital penetration) was unreasonable, having regard to: (a) the reliability of the complainant's evidence, including perceived inconsistencies in her complaint evidence; (b) the absence of the complainant's DNA on gloves recovered by investigators; and (c) whether CCTV evidence undermined the Crown case.

  • Ground 2 (Count 1): Whether the jury's verdict of guilty on the charge of sexual touching (stethoscope on nipple) was unreasonable, given that the touching occurred during a medical examination and expert evidence suggested the conduct could have had a proper medical purpose.

  • Ground 3 (Count 2): Whether the jury's verdict of guilty on the charge of sexual touching (cupping the vagina over clothing) was unreasonable, given a challenge to the physical plausibility of the alleged conduct based on the tightness of the complainant's trousers and the positioning of her clothing.

  • Sentence appeal (contingent): Whether, if one or more conviction appeals succeeded, the applicant should be resentenced for any remaining offences.

Decision

Count 3 – Digital penetration (Ground 1): Mitchelmore JA, delivering the primary judgment, found that on the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt of the applicant's guilt. The Court addressed the applicant's argument that inconsistencies in the complainant's complaint evidence — particularly the fact that she did not describe the most intimate details of the alleged assault when first reporting it — undermined her reliability. The Court found this was "wholly explicable" given the recency of the distressing event, its highly personal nature, and the workplace setting in which the initial complaints were made, including to a human resources manager with whom the complainant had no prior relationship. The Court also held that the absence of the complainant's DNA on the recovered gloves was not "so overwhelmingly exculpatory as to necessitate reasonable doubt," particularly in light of the strength of the complaint evidence overall. Finally, the CCTV footage was found not to be of a nature that called into question the reliability of the complainant's account.

Count 1 – Stethoscope on breast (Ground 2): The Court held that the relevant question was not whether the touching was or could have been medically justifiable, but whether a purpose of the touching was the applicant's sexual gratification. A medical justification might support an inference that touching was undertaken solely for a proper purpose, but it is not dispositive. That the expert evidence was consistent with the existence of a proper medical purpose did not foreclose the jury from finding beyond reasonable doubt that the touching was not solely for a proper medical purpose. Critically, the Court noted that the episode should be viewed "in its entirety," including the conduct constituting counts 2 and 3 — meaning the jury was entitled to draw inferences about the applicant's purpose on count 1 from the totality of his conduct during the examination.

Count 2 – Touching over clothing (Ground 3): The applicant argued that the complainant's own evidence about the abdominal check being conducted above the waistline of her pants, and a photograph showing the pants were too tight to permit the alleged conduct, rendered the verdict unreasonable. The Court rejected this, finding that the complainant's evidence was that the abdominal check was conducted above the waistline of her pants — not that her pants were above her own waistline. The photograph of the pants did not establish that they were too tight for the alleged conduct to have occurred, particularly when considered alongside the complainant's evidence.

Sentence appeal: As all three conviction appeals were dismissed, the contingent sentence appeal did not arise and leave to appeal against sentence was refused.

Orders Made

  • Leave to appeal against conviction was granted on all three grounds.
  • The appeal against conviction was dismissed on all grounds.
  • Leave to appeal against sentence was refused.

Key Takeaways

  • Complaint evidence need not be perfectly detailed to be reliable. The Court of Criminal Appeal recognised that victims of sexual assault may not describe the most intimate aspects of their experience in early disclosures, particularly in workplace settings or to unfamiliar people. Incomplete initial complaints were held not to automatically undermine reliability.

  • Where forensic evidence such as DNA is absent, this is not necessarily exculpatory. The absence of DNA on the applicant's gloves was treated as a relevant but not determinative factor, particularly where strong complaint evidence supported the Crown case.

  • A finding of sexual purpose is not foreclosed by a legitimate medical justification for the touching. Under the applicable provisions, the legal question is whether the touching was solely for a proper medical purpose. Even where expert evidence supports the existence of a legitimate medical reason for the contact, a jury may still conclude that the touching served an additional, improper purpose, particularly when the conduct is viewed in the context of the entire episode.

  • In assessing an accused's purpose, the Court of Criminal Appeal confirmed that a jury is entitled to draw inferences from the totality of the accused's conduct, not merely from the individual act charged. The conduct alleged in counts 2 and 3 was treated as relevant to determining whether the touching in count 1 was solely for a proper medical purpose.

  • Physical plausibility arguments must be precisely aligned with the evidence as actually given. The applicant's challenge to count 2, based on the tightness of the complainant's pants, was rejected because it rested on a mischaracterisation of the complainant's testimony. No error was established where the argument did not accurately reflect the evidence before the jury.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61HB, 61J, 61KD
- Criminal Appeal Act 1912 (NSW), ss 5(1), 6(1), 7(1)

Cases:
- Dansie v The Queen (2022) 274 CLR 651; [2022] HCA 25
- Inia v R [2020] NSWCCA 205
- M v The Queen (1994) 181 CLR 487; [1994] HCA 63
- R v Tau [2021] QCA 289
- The King v ZT (2025) 281 CLR 137; [2025] HCA 9
- Smith v R [2025] NSWCCA 104