Victor v The King - [2024] NSWCCA 122

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Victor v R [2024] NSWCCA 122
Hearing dates: 21 June 2024
Date of orders: 19 July 2024
Decision date: 19 July 2024
Before: Harrison CJ at CL at [1];
Campbell J at [59];
Sweeney J at [74]
Decision:
(1) To the extent necessary, grant leave to appeal.
(2) Dismiss the appeal against conviction on Counts 1 and 2.
(3) Allow the appeal against conviction on Counts 4 and 5.
(4) Quash the convictions on Counts 4 and 5 and direct the entry of acquittal on those counts.
(5) Quash the sentence imposed by his Honour Whitford SC DCJ on 12 May 2023 and remit the proceedings to his Honour for re-sentence on Counts 1 and 2.

Catchwords:
APPEALS – crime – appeal against conviction – unreasonable verdict – sexual intercourse without consent – whether inconsistent complainant testimony – whether deficiencies in complainant testimony – evidence of lawfully recorded conversation – whether verdicts cannot be supported having regard to the evidence
APPEALS – crime – appeal against conviction – unreasonable verdict – possess child abuse material – circumstantial case – absence of direct evidence – whether Crown failed to exclude the reasonable possibility that the applicant was not knowingly in possession of child abuse material

Legislation Cited:
Crimes Act 1900 (NSW), ss 61D, 61E, 91H

Cases Cited:
Coughlan v The Queen (2020) 267 CLR 654; [2020] HCA 15
Pell v The Queen (2020) 268 CLR 163; [2020] HCA 12
The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35

Category: Principal judgment
Parties: Gregory James Victor (Applicant)
Crown (Respondent)
Representation:
Counsel:
T Game SC with A Cook SC (Applicant)
M Millward (Respondent)
Solicitors:
Taylor Rose (Applicant)
Office of the Director of Public Prosecutions (Respondent)

File Number(s): 2020/214994; 2021/172123
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

20 March 2023

Before:

P Whitford SC DCJ

File Number(s):

2020/214994; 2021/172123

HEADNOTE

[This headnote is not to be read as part of the judgment]

On 20 March 2023, Gregory Victor was convicted by a jury following a trial before Whitford SC DCJ of two counts of sexual intercourse without consent and knowing they were not consenting, contrary to s 61D(1) of the Crimes Act 1900 (NSW) (“Counts 1 and 2”). He was also convicted of two counts of possessing child abuse material, contrary to s 91H(1) of the Crimes Act 1900 (”Counts 4 and 5”). Mr Victor appealed against his convictions on the single ground that the verdicts were unreasonable and could not be supported having regard to the evidence.

The facts of Counts 1 and 2 are that on one occasion in 1985, when KC and SS (twin sisters) were 10 years old, they had a sleepover at Mr Victor’s house with his daughter, NV. While they were asleep in the loungeroom, KC awoke to Mr Victor putting his hand down her underwear…

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 Victor v The King

Details

AGLC: Victor v The King [2024] NSWCCA 122
Case: [2024] NSWCCA 122
Decision Date: 19 July 2024

CaseChat Overview and Summary

In Victor v The King, the appellant appealed against his convictions for sexual intercourse without consent and possessing child abuse material. The appellant was convicted following a trial in the Supreme Court of Victoria. The trial judge found the evidence of the complainant to be credible and reliable, and that the appellant's defence was implausible. The appellant argued that the verdict was unreasonable, contending that the complainant's testimony was inconsistent and deficient, and that the evidence of a lawfully recorded conversation undermined the reliability of the complainant's testimony. The appellant also contended that the evidence was insufficient to support a conviction for possessing child abuse material, as the Crown had failed to exclude the reasonable possibility that he was not knowingly in possession of such material.

The court considered whether the verdict was unreasonable and whether it was open to the jury to convict the appellant of the charges. In relation to the sexual intercourse charge, the court found that the jury had been properly directed as to the complainant's credibility and the weight to be given to her testimony. The court rejected the appellant's argument that the complainant's testimony was inconsistent, finding that the inconsistencies did not go to the heart of her evidence. The court also rejected the appellant's argument that the recorded conversation undermined the complainant's credibility, finding that the conversation did not cast doubt on the complainant's testimony. In relation to the possession charge, the court found that the evidence was sufficient to support a conviction, as the appellant had failed to provide a satisfactory explanation for the presence of the child abuse material on his computer.

The court dismissed the appeal against conviction, finding that the verdict was open to the jury and was not unreasonable. The court found that the jury was entitled to accept the complainant's evidence and reject the appellant's defence, and that the evidence was sufficient to support a conviction for possessing child abuse material. The court noted that the absence of direct evidence did not preclude a conviction, as the jury was entitled to draw inferences from the circumstantial evidence. The court also found that the appellant's argument that the Crown had failed to exclude the reasonable possibility that he was not knowingly in possession of child abuse material was unavailing, as the evidence supported a finding that the appellant was knowingly in possession of such material.

Orders