Citation: Victor v R [2024] NSWCCA 122
Court: Court of Criminal Appeal, New South Wales
Date: 19 July 2024
Judges: Harrison CJ at CL; Campbell J; Sweeney J
Background
The appellant was convicted by a jury in the District Court of two counts of sexual intercourse without consent (Counts 1 and 2) and two counts of possessing child abuse material (Counts 4 and 5). The sexual offence counts related to an incident in 1985 when the appellant allegedly digitally penetrated two 10-year-old twin sisters while they were sleeping during a sleepover at his home. The child abuse material counts arose after police executed a search warrant at the appellant's residence in December 2020 and seized a laptop and desktop computer containing a combined total of 561 images of child abuse material.
At trial, the appellant denied the sexual offences occurred and, while accepting physical possession of both devices, disputed that he knowingly possessed the child abuse images. He did not give evidence, but called character witnesses and had participated in an ERISP interview. The jury returned guilty verdicts on all four counts.
The appellant sought leave to appeal against all four convictions on the single ground that the verdicts were unreasonable and could not be supported having regard to the evidence.
Legal Issues
- Whether the verdicts on Counts 1 and 2 were unreasonable, given alleged inconsistencies and deficiencies in the complainants' accounts, including differences between the two complainants' recollections and the evidence of a third witness
- Whether a lawfully recorded conversation between the appellant and one complainant was capable of supporting the jury's guilty verdicts on Counts 1 and 2
- Whether the verdicts on Counts 4 and 5 were unreasonable because, on the circumstantial evidence available, guilt was not the only rational inference open to the jury
Decision
On Counts 1 and 2, the Court applied the test from Pell v The Queen, which requires the appellate court to assume the jury found the complainants credible and reliable, then examine whether a jury acting rationally ought nonetheless to have entertained a reasonable doubt. The Court rejected the submission that the differences between the two complainants' accounts constituted genuine inconsistencies. Minor variations in recollection of a traumatic event occurring decades earlier were described as entirely consistent with honest memory, not indicators of unreliability. The fact that one complainant recalled the attack as simultaneous while the other did not was not considered significant.
The Court also dismissed concerns arising from the account of a third witness, AJ, whose recollection of what she was told bore little resemblance to the specifics of the charged conduct. The Court held this did not render the complainants' accounts wrong or unreliable. A lawfully recorded conversation between the appellant and KC was found to have been capable of supporting an inference that he had acted on a sexual interest in her, even though he denied penetration in that recording. On this basis, the appeal against Counts 1 and 2 was dismissed.
On Counts 4 and 5, the Court reached the opposite conclusion. The Crown case was entirely circumstantial, with no direct evidence that the appellant knew the child abuse images were on the devices. The agreed facts showed that substantial volumes of child abuse material had been deleted from the devices, the appellant had cooperated with police and provided passwords, and he had reacted with apparent surprise when told child abuse material was present. The Court found that, viewed as a whole, the evidence did not exclude as a reasonable possibility that the appellant was not knowingly in possession of the images. Guilt was not the only rational inference available, and the convictions on those counts could not stand.
Orders Made
- Leave to appeal granted (to the extent necessary)
- Appeal against conviction on Counts 1 and 2 dismissed
- Appeal against conviction on Counts 4 and 5 allowed
- Convictions on Counts 4 and 5 quashed; acquittals entered on those counts
- Sentence imposed on 12 May 2023 quashed; proceedings remitted to the sentencing judge for re-sentencing on Counts 1 and 2
Key Takeaways
- Applying Pell v The Queen, the Court of Criminal Appeal confirmed that minor inconsistencies between complainants recounting the same traumatic incident from decades past do not, without more, render a verdict unreasonable. Natural variation in honest recollection is not the same as logical or factual incompatibility between accounts.
- A third party's imprecise recollection of what a complainant told them does not necessarily undermine the complainant's own evidence, particularly where that third-party account bears little resemblance to the charged conduct.
- In a circumstantial case involving possession of child abuse material, the Crown must prove beyond reasonable doubt that the accused knowingly possessed the material. Where the agreed facts disclose cooperation with police, deletion of material consistent with its unwanted receipt, and an absence of any direct evidence linking the accused to the images, guilt may not be the only rational inference available.
- Quashing two counts while upholding two others on the same appeal illustrates that an unreasonable verdict ground is assessed separately for each count, with the court conducting its own independent review of the evidence on each charge.
- Where convictions are quashed and acquittals entered on some counts, the remaining sentence requires re-examination. The Court here remitted the matter for re-sentencing on the surviving counts rather than re-sentencing itself.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 61D, 61E, 91H
Cases:
- Pell v The Queen (2020) 268 CLR 163; [2020] HCA 12
- Coughlan v The Queen (2020) 267 CLR 654; [2020] HCA 15
- The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35