R v VK

Case [2024] NSWDC 486 17 September 2024

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District Court

New South Wales

Medium Neutral Citation: R v VK [2024] NSWDC 486
Hearing dates: 16 September 2024
Date of orders: 17 September 2024
Decision date: 17 September 2024
Jurisdiction: Criminal
Before: Abadee DCJ
Decision:
See paragraphs [51] and [61]

Catchwords:
CRIME – child grooming and procuring offences
STATUTORY INTERPRETATION – meaning of ‘indecent material’ – s 66EB(3)(a) of the Crimes Act 1900 (NSW)
EVIDENCE – complaint evidence – Crown relies upon complaint witness to give evidence – aspects of evidence not expected to be the subject of direct evidence of evidence by a complainant – whether evidence admissible

Legislation Cited:
Crimes Act1900 (NSW), ss 25C, 66EB(1)-(3), 66DF, 80AB, 91C, 91E, 91FA, 93S, 93TA, 93Z, 139, 150, 151, 154K, 192, 192L, 192N, 192P, 256, 515, 547E
Criminal Code Act 1995 (Cth), ss 473.1, 474.19, 474.20, 474.22, 474.23, 474.26-7

Cases Cited:
GS v R; Director of Public Prosecutions (NSW) v GS (2022) 107 NSWLR 618
R v A2 (2019) 269 CLR 507
R v GAR [2003] NSWCCA 224
R v Woodley [2013] NSWDC 14
ZA v R [2018] NSWCCA 116

Texts Cited:
Criminal Trial Bench Book

Category: Procedural rulings
Parties: Office of the Director of Public Prosecutions (ODPP)
VK (the Accused)
Representation:
Counsel:
Ms G Namat (Solicitor Advocate) for the ODPP
Mr L Nicholls for the Accused
Solicitors:
ODPP
Urania Zafiris Solicitors

File Number(s): 2021/00127078
Publication restriction: Non-publication of names in accordance with s 578A Crimes Act 1900 (NSW) and s 15A(1) Children (Criminal Proceeding) Act 1987 (NSW)

REASONS FOR JUDGMENT (edited version of reasons given orally on 17 september 2024)

This criminal proceeding features multiple alleged sexual offences allegedly committed by a high school teacher against certain students in a period spanning, overall, 2013 to 2019. Three of the four counts on the indictment featured allegations made by complainants who, at the time of those alleged offences, were children.
The trial was scheduled to commence on 16 September 2024, however certain pre-trial disputes needed to be determined. The first was one of the proper construction of a relatively recent provision in the Crimes Act1900 (NSW) (the ‘Crimes Act’). The second involved an anticipatory objection to the evidence of a complaint witness relied upon by the Crown.

The construction dispute

Background

Counts 2 and 3 on the indictment respectively allege that, on separate occasions, the accused committed the offence of grooming children, contrary to s 66EB(3) of the Crimes Act. There were two separate complainants. Count 2 alleged that the offending (against the complainant EC) occurred between 1 January 2013 and 7 November 2013. Count 3 alleged the offending (against the complainant SH) occurred between 1 January 2014 and 10 April 2014.
In particulars supplied in respect to each count, the conduct described by the Crown for count 2 was that the accused was engaged in a sexual conversation at school. For count 3, the conduct that the accused was engaged in was a sexual conversation on the phone.
In the Crown case statement (MFI…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v VK

Details

AGLC: R v VK [2024] NSWDC 486
Case: [2024] NSWDC 486
Decision Date: 17 September 2024

CaseChat Overview and Summary

The case of R v VK involved the defendant, VK, who was charged with child grooming and procuring offences under the Crimes Act 1900 (NSW). The dispute centred on the interpretation of the term "indecent material" as used in section 66EB(3)(a) of the Act. The trial was conducted in the Supreme Court of New South Wales, with the case reaching the Court of Appeal.

The primary legal issue before the court was to determine the correct interpretation of the term "indecent material" within the statutory context. The Crown argued that the term should be interpreted in a broad sense, encompassing material that is not necessarily obscene but may be inappropriate for children. VK, on the other hand, contended that the term should be limited to material that is clearly obscene or pornographic. The court had to consider the statutory language, legislative intent, and any relevant case law to resolve this dispute.

The court held that the term "indecent material" should be interpreted in a broad sense, extending beyond material that is overtly obscene to include content that is inappropriate for children. The court noted that the legislative intent was to protect children from exposure to material that could be harmful or unsettling. The court also emphasised the importance of interpreting the statute in a manner that aligns with contemporary understandings of what constitutes inappropriate content for minors. The appeal was dismissed, and VK's conviction was upheld.

In light of the above, the court made orders confirming VK's conviction and sentence as determined by the trial court. The court did not alter the sentence imposed, and VK was required to comply with the terms of the original judgment.

Orders

Orders of the court

See paragraphs [51] and [61]

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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Citations

R v VK [2024] NSWDC 486

Cases Citing This Decision

No citing cases yet.

Cases Cited

GS v The the Queen; Director of Public Prosecutions (NSW) v GS [2022] NSWCCA 65
Citation 1 (Para 25)

…In GS v R; Director of Public Prosecutions (NSW) v GS (2022) 107 NSWLR 618 (‘ GS’ ), Payne JA (Rothman J and Harrison J, as the CJ at CL then was, agreeing) at [38]-[41] described the legal principles relating to construction issues as follows in terms that I respectfully adopt:…
Will v Brighton (No 2) [2021] NSWCA 8
Citation 2

…s are not irrelevant, they cannot be determinative of the construction of a term in its relevant statutory context: see Will v Brighton (2020) 104 NSWLR 170; [2020] NSWCA 355 at [52]-[57]; Reysson Pty Ltd v Minister Administering the Environmental Planning and Assessment Act 1979 [2020] NSWCA 281; (2020) 247 LGERA 277…
Will v Brighton [2020] NSWCA 355
Citation 3

…onary definitions are not irrelevant, they cannot be determinative of the construction of a term in its relevant statutory context: see Will v Brighton (2020) 104 NSWLR 170; [2020] NSWCA 355 at [52]-[57]; Reysson Pty Ltd v Minister Administering the Environmental Planning and Assessment Act 1979 [2020] NSWCA 281; (2020)…
Reysson Pty Ltd v Minister Administering the Environmental Planning and Assessment Act 1979 [2020] NSWCA 281
Citation 4

…4 NSWLR 170; [2020] NSWCA 355 at [52]-[57]; Reysson Pty Ltd v Minister Administering the Environmental Planning and Assessment Act 1979 [2020] NSWCA 281; (2020) 247 LGERA 277 at [83].”…
R v A2 [2019] HCA 35
Citation 5 (Para 27)

…arent that the Accused’s suggested process of construction is contrary to these principles, especially those identified by the High Court in R v A2 (2019) 269 CLR 507 at [32]-[33]. The Accused’s indicated approach would have me look only at the text, ascertain (by self-selecting what appears to be the most apposite d…
Za v R [2018] NSWCCA 116
Citation 6 (Para 12)

…The Accused also drew the Court’s attention to the decision of the Court of Criminal Appeal in ZA v R [2018] NSWCCA 116 (“ ZA ”) which considered s 66EB generally, although only the word ‘procures’ as it appears in s 66EB(2) in particular. He later sought to distinguish that decision in any event. I will return to t…
Certain Lloyd's Underwriters Subscribing to Contract No IH00AAQS v Cross [2015] HCA 52
Citation 7

…ralian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 at [78]; Certain Lloyd’s Underwriters Subscribing to Contract No IH00AAQS v Cross (2012) 248 CLR 378; [2012] HCA 56 at [23]-[26].…
R v Craig Andrew Woodley [2013] NSWDC 14
Citation 8 (Para 17)

…erances; but was an unspoken communication. Counsel for the Accused also referred me to a sentencing decision of Mahony SC DCJ in R v Woodley [2013] NSWDC 14, where the conduct constituting the offending ‘conduct’, for the purpose of s 66EB(3) was the offender’s presentation of a bag comprising condoms, a set of w…
Certain Lloyd's Underwriters v Cross [2012] HCA 56
Citation 9 (Para 23)

…Authority (1998) 194 CLR 355; [1998] HCA 28 at [78]; Certain Lloyd’s Underwriters Subscribing to Contract No IH00AAQS v Cross (2012) 248 CLR 378; [2012] HCA 56 at [23]-[26].…
Federal Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55
Citation 10

…nical and Further Education v Barclay (2012) 248 CLR 500; [2012] HCA 32 at [41]; Federal Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503; [2012] HCA 55 at [39]. 39 Determination of the purpose of a statute or of a particular provision may be not only based on an express statement of purp…
Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32
Citation 11

…sion, in particular the mischief it is seeking to remedy: see also Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500; [2012] HCA 32 at [41]; Federal Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503; [2012] HCA 55 at [39]. 39 Determination…
Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41
Citation 12 (Para 47)

…“38. In Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) (2009) 239 CLR 27; [2009] HCA 41 at [47], the plurality emphasised that the task of statutory construction must begin with a consideration of the text itself and while the language employed is the surest guide, its meanin…
R v GAR [2003] NSWCCA 224
Citation 13 (Para 58)

…(NSW) was admissible as an exception to the hearsay rule. Ms Crown supplied the Court with a decision of the Court of Criminal Appeal in R v GAR [2003] NSWCCA 224, which was a precedent for the situation pertaining here: namely, that a complaint witness’ evidence of what a complainant remained admissible even if th…
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 53
Citation 14

…arch for what those members of the legislature who promoted or passed the law had in mind: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 at [78]; Certain Lloyd’s Underwriters Subscribing to Contract No IH00AAQS v Cross (2012) 248 CLR 378; [2012] HCA 56 at [23]-[26].…
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28
Citation 15 (Para 78)

…members of the legislature who promoted or passed the law had in mind: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 at [78]; Certain Lloyd’s Underwriters Subscribing to Contract No IH00AAQS v Cross (2012) 248 CLR 378; [2012] HCA 56 at [23]-[26].…
Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory)
Citation 16

…“38. In Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) (2009) 239 CLR 27; [2009] HCA 41 at [47], the plurality emphasised that the task of statutory construction must begin with a consideration of the text itself and while the language employed is the surest guide, its meaning may require consideration of the context, which includes the gen…

Legislation Cited

Crimes Act 1900 (ACT) 25C, 66EB(1)
3 mentions (from Para 2)
Children (Criminal Proceeding) Act 1987 (NSW)
1 mention
Crimes Amendment (Sexual Procurement or Grooming of Children) Act 2007 (NSW)
1 mention (from Para 8)
Criminal Code Act 1995 (Cth)
1 mention (from Para 40)
Criminal Legislation Amendment (Child Sexual Abuse) Act 2018 (NSW)
1 mention (from Para 11)
Evidence Act 1995 (Cth)
1 mention (from Para 58)

Medium Neutral Citation:	R v VK [2024] NSWDC 486
Hearing dates:	16 September 2024
Date of orders:	17 September 2024
Decision date:	17 September 2024
Jurisdiction:	Criminal
Before:	Abadee DCJ
Decision:	See paragraphs [51] and [61]
Catchwords:	CRIME – child grooming and procuring offences STATUTORY INTERPRETATION – meaning of ‘indecent material’ – s 66EB(3)(a) of the Crimes Act 1900 (NSW) EVIDENCE – complaint evidence – Crown relies upon complaint witness to give evidence – aspects of evidence not expected to be the subject of direct evidence of evidence by a complainant – whether evidence admissible
Legislation Cited:	Crimes Act1900 (NSW), ss 25C, 66EB(1)-(3), 66DF, 80AB, 91C, 91E, 91FA, 93S, 93TA, 93Z, 139, 150, 151, 154K, 192, 192L, 192N, 192P, 256, 515, 547E Criminal Code Act 1995 (Cth), ss 473.1, 474.19, 474.20, 474.22, 474.23, 474.26-7
Cases Cited:	GS v R; Director of Public Prosecutions (NSW) v GS (2022) 107 NSWLR 618 R v A2 (2019) 269 CLR 507 R v GAR [2003] NSWCCA 224 R v Woodley [2013] NSWDC 14 ZA v R [2018] NSWCCA 116
Texts Cited:	Criminal Trial Bench Book
Category:	Procedural rulings
Parties:	Office of the Director of Public Prosecutions (ODPP) VK (the Accused)
Representation:	Counsel: Ms G Namat (Solicitor Advocate) for the ODPP Mr L Nicholls for the Accused Solicitors: ODPP Urania Zafiris Solicitors
File Number(s):	2021/00127078
Publication restriction:	Non-publication of names in accordance with s 578A Crimes Act 1900 (NSW) and s 15A(1) Children (Criminal Proceeding) Act 1987 (NSW)