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District Court 17 September 2024

R v VK

[2024] NSWDC 486

Sexual offences
CRIME CHILD GROOMING AND PROCURING OFFENCES STATUTORY INTERPRETATION MEANING OF ‘INDECENT MATERIAL’ EVIDENCE COMPLAINT EVIDENCE

Citation: R v VK [2024] NSWDC 486
Court: District Court of NSW
Date: 17 September 2024
Judge(s): Abadee DCJ

Background

A high school teacher faced four counts on an indictment alleging multiple sexual offences against students over a period spanning 2013 to 2019. Three of the four counts involved complainants who were children at the time of the alleged offences.

Two counts (counts 2 and 3) alleged grooming of child complainants, contrary to s 66EB(3) of the Crimes Act 1900 (NSW). The Crown particularised the grooming conduct as sexual conversations: one in person at school, and one over the phone. Count 4 alleged common assault of a senior student in 2019, said to involve the accused physically pushing the complainant against a classroom wall.

Before trial, two pre-trial disputes required determination. The accused applied to quash counts 2 and 3, arguing that verbal utterances could not constitute "indecent material" within s 66EB(3)(a). The accused also objected to anticipated complaint evidence from the school's deputy principal on the ground of irrelevance.

Legal Issues

  • Whether the word "material" in s 66EB(3)(a) of the Crimes Act 1900 (NSW) is limited to physical or tangible items, such that verbal sexual conversation cannot constitute "indecent material" for the purposes of the child grooming offence.
  • Whether evidence from the school deputy principal, Ms Knapman, about what the complainant told her was admissible as complaint evidence, given that the complainant did not herself refer to all of that material in her own police statement.

Decision

Issue 1: Meaning of "indecent material" under s 66EB(3)(a)

The accused argued that the plain and ordinary meaning of "material" denoted something tangible or physical, and that the Court should resolve the question by reference to dictionary definitions without needing to consider context or extrinsic materials. Abadee DCJ rejected this approach as inconsistent with established principles of statutory interpretation, which require text, context, and purpose to be considered together from the outset, not sequentially (at [27]).

The Court found that the accused's preferred dictionary definitions did not unambiguously exclude oral utterances from the concept of "material." Several of the definitions the accused himself relied upon were capable of encompassing information or ideas conveyed by speech (at [28]-[31]). The accused's narrow construction was therefore not self-evidently the plain and ordinary meaning of the word (at [31]).

Turning to statutory context and legislative purpose, the Court emphasised that s 66EB(1) defines the relevant "conduct" broadly to include "communication" by any means, not only the provision of physical publications or images (at [34]). The Second Reading Speech for the amending Bill expressly singled out "sex talk" with children, and the practice of "introducing the child to explicit or inappropriate sexual concepts," as the very conduct s 66EB was designed to capture, including beyond electronic communications (at [43]-[44]). A construction that excluded sexual conversation would omit a common and clearly intended category of grooming conduct (at [45]).

The Court held that "material" in s 66EB(3)(a) is a protean word that, in context, encompasses exposure of a child to matter of a sexual character regardless of its form, including sexual conversation (at [50]). The application to quash counts 2 and 3 was refused (at [51]).

Issue 2: Admissibility of Ms Knapman's complaint evidence

The accused objected to paragraphs 37 and 38 of Ms Knapman's police statement on the ground of irrelevance, arguing that the complainant had not herself referred to much of the material in her own police statement. No hearsay objection or discretionary exclusion argument was raised (at [57]).

The Court found the anticipated evidence relevant. Complaint evidence under s 66 of the Evidence Act 1995 (NSW) is admissible even where the complainant does not recall or denies aspects of what was reported to the complaint witness, consistent with R v GAR [2003] NSWCCA 224 (at [58]). At least one of the impugned statements was capable of being treated as a relatively contemporaneous disclosure of the alleged assault underlying count 4. Beyond that, the evidence was relevant to the context of the alleged assault, the sexual nature of the accused's conduct, and the accused's state of mind, all of which bore on whether the conduct occurred at all (at [60]). The objection was rejected (at [61]).

Orders Made

  • The accused's application to quash counts 2 and 3 of the indictment was refused (at [51]).
  • The accused's objection to Ms Knapman's anticipated evidence was rejected (at [61]).

Key Takeaways

  • The District Court held that "material" in s 66EB(3)(a) of the Crimes Act 1900 (NSW) is not limited to physical or tangible items. In its statutory context, the word extends to sexual conversation that exposes a child to matter of a sexual character, regardless of form (at [50]).

  • A strictly text-first interpretive approach that treats dictionary definitions as determinative, deferring consideration of context and legislative purpose to a secondary or residual role, is inconsistent with the modern principles of statutory construction endorsed by the High Court and applied here (at [27]).

  • Legislative history and Second Reading Speech materials can be considered as part of the overall process of construction, not merely as a last resort when ambiguity is established. Here, the Attorney General's express reference to "sex talk" with children confirmed the broad intended reach of s 66EB (at [43]-[44]).

  • Under s 66 of the Evidence Act 1995 (NSW), complaint evidence from a witness who received a disclosure remains admissible even where the complainant does not refer to all of the reported material in their own police statement. The Court applied R v GAR [2003] NSWCCA 224 to confirm this position (at [58]).

  • Complaint evidence may be relevant not only as a contemporaneous report of an alleged incident but also as context going to the accused's state of mind and the probability that the alleged conduct occurred (at [60]).

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (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
- 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