R v Vikas [2024] NSWDC 177

District Court New South Wales

Medium Neutral Citation: R v Vikas [2024] NSWDC 177 Hearing dates: 14 May 2024 Date of orders: 17 May 2024 Decision date: 17 May 2024 Jurisdiction: Criminal Before: Priestley SC DCJ Decision: See [Order] Catchwords: CRIME — Child sex offences — Intentionally sexually touch child >= 10 yrs & < 16 yrs Legislation Cited: Crimes Act 1900 Crimes (Appeal and Review) Act 2001. Cases Cited: Charara v R [2006] NSWCCA 244 Dyason v Butterworth [2015] NSWCA 52 Fox v Percy (2003) 214 CLR 118 Lunney v DPP [2021] NSWCA 186 Minister for Immigration and Border Protection v SZVFW 92018) 163 ALD McNabb [2021] NSWCA 298 Allesch v Maunz (2000) 203 CLR 172. Liberato v The Queen (1985) 159 CLR 507 Category: Principal judgment Parties: Rex (The Crown) Anthony Vikas (The Appellant) Representation: Stephenson for The Director of the Office of Public Prosecutions McMillan for The Appellant: File Number(s): 2021/00016297 Publication restriction: NA

JUDGMENT

Introduction 1. Anthony Vikas, the appellant, appeals his conviction in the Local Court of the offence provided for by section 66DB(a) of the Crimes Act 1900 that he did on 5 December 2020 intentionally sexually touch CH, a child 10 years or older and under 16 years, CH then being 13 years of age. 2. The appellant has a right to appeal by section 11 Crimes (Appeal and Review) Act (CARA). By section 18 of CARA such an appeal is to be by way of rehearing on the basis of evidence given in the original Local Court proceedings subject to any fresh evidence permitted by section 18(2) or as provided by section 19 with the recalling of a witness. No such applications were made in this case. 3. The approach to take in respect to an appeal under section 18 CARA has been the subject of numerous Court of Appeal and Court of Criminal Appeal decisions. The approach I take is based on cases such as Charara v R [2006] NSWCCA 244 and Dyason v Butterworth [2015] NSWCA 52 and is as follows: 4. An appeal against conviction is to proceed by way of a rehearing on the basis of evidence given in the original Local Court proceedings: s18(1) Crimes (Appeal and Review) Act 2001. 5. The appellate judge is to form their own judgment of the facts while recognising the advantage enjoyed by the magistrate who saw and heard the witnesses called in the hearing: Charara v R [2006] NSWCCA 244 at [18]. 6. The Court is entitled to consider the reasons of the magistrate including an assessment of credibility issues because the appellate function could not properly take place without reference to them: Charara v R [2006] at [23]-[24]. 7. The Court is obliged to give the judgment which in its opinion ought to have been given in the first instance: Fox v Percy (2003) 214 CLR 118 at [23]. 8. The Court is not obliged in every case to undertake a complete review of the whole evidence and form its own view of the appellant's guilt regardless of the issues raised by the appellant. The extent of the review will depend on the circumstances of the case and the kind of error alleged: Lunney v DPP [2021] NSWCA 186 at [44]. 9. The approach may also be described in the way stated by Justice Gageler in Minister for Immigration and Border Protection v SZVFW 92018) 163 ALD 1 as the "correctness standard" which was his Honour's way of describing the standard being spoken of in Fox v Percy. 10. Fairly recently the approach was, with respect, well put by Bell P as he then was from the case of McNabb [2021] NSWCA 298 at [25]: "the task for a District Court judge in hearing a section 18 appeal is to form his or her own judgment on the facts and to determine on the basis of the evidence that was before the magistrate (supplemented by any further evidence received pursuant to section 18 (2) of the CAR Act or as a result of the calling of a witness pursuant to section 19) whether that evidence was sufficient to demonstrate the appellant's guilt beyond reasonable doubt. If it did not, error will have been established. Error of law in reaching the conviction may also be established and the rehearing will involve the court reaching a fresh conclusion as to the appellant's guilt on the basis of evidence given in the local Court but without the error of law which tainted the result at first instance." 1. His Honour then went on to observe that a dismissal of a section 18 appeal against conviction will necessarily carry the conclusion that the magistrate did not commit "some legal factual or discretionary error" citing Allesch.