Kumar v The King

Case [2025] NSWCCA 119


Court of Criminal Appeal


Supreme Court


New South Wales

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Medium Neutral Citation: Kumar v R [2025] NSWCCA 119
Hearing dates: 7 May 2025
Date of orders: 8 August 2025
Decision date: 08 August 2025
Before: Wright J at [1]
Weinstein J at [2]
Rigg J at [3]
Decision:

(1) Extend the time for the applicant to file the Notice of Appeal to the date of filing.

(2) Grant leave to appeal under s 5(1) of the Criminal Appeal Act 1912 (NSW) in respect of both Ground 1 and 2, and pursuant to r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW) in respect of Ground 1.

(3) Allow the appeal.

(4) Quash the convictions and sentence.

(5) Order that there be a re-trial of the applicant.

(6) Remit the matter for mention at the District Court at Newcastle on 14 August 2025.

Catchwords:

CRIME – appeals – appeal against convictions – whether a miscarriage of justice arose in the trial – bases upon which knowledge of absence of consent left to jury – whether the Crown advocate’s misstatement amounted to a miscarriage of justice – whether the judicial direction to the jury regarding knowledge of lack of consent resulted in a miscarriage of justice – miscarriage of justice established – mixed verdicts – whether the guilty verdicts were inconsistent with the not guilty verdicts – guilty verdicts not unreasonable – extension of time and leave to appeal granted – appeal allowed – convictions and sentence quashed – re-trial ordered

Legislation Cited:

Crimes Act 1900 (NSW)

Criminal Appeal Act 1912 (NSW)

Supreme Court (Criminal Appeal) Rules 2021 (NSW)

Cases Cited:

AH v R [2019] NSWCCA 152

Banditt v The Queen (2005) 224 CLR 262; [2005] HCA 80

BQ v The Queen (2024) 279 CLR 124; [2024] HCA 29

Brawn v R [2025] HCA 20; (2025) 99 ALJR 872

Cabot (a pseudonym) v R [2018] NSWCCA 265

Collins v R [2020] NSWCCA 198

CTM v The Queen (2008) 236 CLR 440; [2008] HCA 25

Darby v R [2016] NSWCCA 164

De Silvav The Queen (2019) 268 CLR 57; [2019] HCA 48

Ewenv The Queen [2015] NSWCCA 117; (2015) 250 A Crim R 544

Fleming v The Queen (1998) 197 CLR 250; [1998] HCA 68

Ganiji v R [2019] NSWCCA 208

Hanna v R [2023] NSWCCA 182

He Kaw Teh v The Queen (1985) 157 CLR 523

Jones v The Queen (1997) 191 CLR 439; [1997] HCA 12

Kural v The Queen (1987) 162 CLR 502

Lee v R [2023] NSWCCA 203

Liberato v The Queen (1985) 159 CLR 507; [1985] HCA 66

M v The Queen (1994) 181 CLR 487; [1994] HCA 63

MacKenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35

MDP v The King [2025] HCA 24

MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53

Norris v The Queen (2007) 176 A Crim R 42;

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AGLC
Kumar v The King [2025] NSWCCA 119
Case
[2025] NSWCCA 119
Decision Date

CaseChat Overview and Summary

The appellant, Kumar, was convicted of multiple charges including aggravated sexual assault, aggravated indecent assault, and deprivation of liberty. The case was heard in the High Court of Australia, which was asked to determine whether a miscarriage of justice had occurred during the trial that warranted the overturning of the convictions. Kumar challenged the validity of his convictions on several grounds, arguing that the trial judge’s directions to the jury regarding the knowledge of lack of consent and the prosecutor's misstatements during the trial amounted to a miscarriage of justice. The court was required to decide whether these issues were significant enough to undermine the fairness of the trial and the reliability of the verdicts.

The court examined the arguments regarding the trial judge's directions and the prosecutor's statements. It determined that the directions given to the jury concerning the knowledge of lack of consent were ambiguous and potentially misleading. Additionally, the prosecutor's misstatements during the trial, where the prosecution claimed Kumar was acquitted of deprivation of liberty in a previous case, were found to be incorrect and prejudicial. The court concluded that these errors created a substantial risk that the jury did not correctly apply the law, leading to a miscarriage of justice. The court also considered the mixed verdicts, finding that the guilty verdicts were not unreasonable in light of the evidence presented, but the overall trial was compromised.

The High Court allowed the appeal, quashed the convictions and sentence, and ordered a re-trial. The court granted an extension of time and leave to appeal, recognising the significance of the errors made during the original trial. The mixed verdicts, while not inherently inconsistent, were overshadowed by the miscarriage of justice that occurred. The court's decision emphasised the importance of clear and accurate legal directions and the necessity of scrupulous adherence to the truth during trials to preserve the integrity of the judicial process.

Orders

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Background

Background to the litigation

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Evidence

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Decision

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