Kumar v R [2023] NSWCCA 156

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Kumar v R [2023] NSWCCA 156 Hearing dates: 19 June 2023 Decision date: 28 June 2023 Before: Adamson JA at [1]; Price J at [104]; Dhanji J at [105] Decision: (1) Refuse leave to appeal pursuant to r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW) in respect of ground 3. (2) Grant leave to appeal in respect of ground 1. (3) Dismiss the appeal. Catchwords: CRIME — Appeals — Appeal against conviction — aggravated sexual assault without consent — unreasonable verdict — whether evidence sufficient to establish that complainant was asleep or unconscious — whether complainant had consented while awake but did not remember due to substantial intoxication — complainant's flashbacks inconsistent with applicant's version of events CRIME — Appeals — Appeal against conviction — directions given by trial judge — whether miscarriage of justice as a result of directions with respect to elements of the offence — direction that if jury accepted applicant's version it could have regard to reasonable possibility that complainant had consensual sexual intercourse while substantially intoxicated — no substantial miscarriage of justice Legislation Cited: 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 Cited: 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 Category: Principal judgment Parties: Vishant Kumar (Applicant) Rex (Respondent) Representation: Counsel: S Odgers SC (Applicant) G Newton SC (Respondent)