Kumar v R [2023] NSWCCA 156

Kumar v R [2023] NSWCCA 156

It was open to the jury to conclude beyond reasonable doubt that the complainant was asleep or unconscious during sexual intercourse and did not consent. The case was conducted on that basis, and directions to the jury did not amount to miscarriage of justice as they required satisfaction beyond reasonable doubt of non-consent due to unconsciousness before convicting. The applicant's counsel rationally acceded to the direction to avoid a more prejudicial direction on intoxication and consent.

Jurisdiction
Australia
Judgment Date
28 June 2023
Procedural Posture
Criminal Appeal / Court of Criminal Appeal, Application for Leave to Appeal and Appeal Against Conviction
Outcome
Application for leave to appeal in respect of ground 3 refused; leave to appeal in respect of ground 1 granted; appeal dismissed.
Legal Topics
['appeal Against Conviction' 'aggravated Sexual Assault Without Consent' 'unreasonable Verdict' 'directions to Jury' 'consent and Intoxication' 'miscarriage of Justice']
['criminal Law'] ['appeal Against Conviction' 'aggravated Sexual Assault Without Consent' 'unreasonable Verdict' 'directions to Jury' 'consent and Intoxication' 'miscarriage of Justice']

Case Brief

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Procedural Posture

Criminal Appeal / Court of Criminal Appeal, Application for Leave to Appeal and Appeal Against Conviction

Legal Issues

  1. 1 ['Whether the verdict of guilty was unreasonable and not supported by evidence' 'Whether there was a miscarriage of justice due to directions regarding the elements of the offence, specifically on intoxication and consent']

Ratio Decidendi

It was open to the jury to conclude beyond reasonable doubt that the complainant was asleep or unconscious during sexual intercourse and did not consent. The case was conducted on that basis, and directions to the jury did not amount to miscarriage of justice as they required satisfaction beyond reasonable doubt of non-consent due to unconsciousness before convicting. The applicant's counsel rationally acceded to the direction to avoid a more prejudicial direction on intoxication and consent.

Court Disposition

Application for leave to appeal in respect of ground 3 refused; leave to appeal in respect of ground 1 granted; appeal dismissed.

Orders

  • ['Refuse leave to appeal pursuant to r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW) in respect of ground 3.' 'Grant leave to appeal in respect of ground 1.' 'Dismiss the appeal.']