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 and inserting his finger into her vagina. SS was also awoken by Mr Victor kneeling between her and her sister with his hand down her underwear. SS believed she was digitally penetrated at some point during the incident. At trial, the Crown case was that Mr Victor committed the offences against KC and SS simultaneously. The facts of Counts 4 and 5 are that on 23 December 2020, police executed a search warrant at Mr Victor's residence. They seized a Toshiba laptop and a XPS Dell computer. The Toshiba laptop contained 444 images of child abuse, and the Dell computer contained 117. At trial, Mr Victor agreed both the laptop and desktop were in his possession, but it was disputed whether he knowingly possessed the child abuse images. The Court (Harrison CJ at CL, with Campbell and Sweeney JJ agreeing) held: As to Counts 1 and 2 (1) The notion of an inconsistency is that because of differences in accounts of the same incident the two versions cannot logically or factually stand together. That is not the case here. KC and SS gave evidence of what they remembered. Each was slightly different. So much is entirely unexceptionable and consistent with honest recollection: [14], [60]. (2) It is not significant that SS's recollection was of a simultaneous attack, but KC's evidence was not: [15], [60]. (3) Nothing arising from the account by AJ of what she remembers being told by KC or SS can be described as inconsistent with the evidence of the complainants. Apart from the fact that her version of what occurred bears little resemblance to the facts that underpin Counts 1 and 2, the evidence of AJ does not lead to a conclusion that the accounts given by the complainants are therefore wrong or unreliable: [17], [61]. (4) A reconciliation by the jury of differing accounts about whether Mr Victor's daughter was or was not present at the time of Counts 1 and 2 is not critical to their determination of the ultimate issue of his guilt: [21], [60]. (5) None of the so-called discrepancies was such that it must have caused the jury to have a reasonable doubt about whether the complainants were digitally penetrated by Mr Victor: [29], [60]. (6) It was open to the jury to understand the lawfully recorded "story" as admitting a sexual interest in KC on which Mr Victor acted on one occasion, even if he denied penetration: [38], [62]. As to Counts 4 and 5 (7) Viewed as a whole, the evidence relevant to each of the counts did not exclude, as a reasonable possibility, the suggestion that Mr Victor was not knowingly in possession of the impugned images: [55], [73]. JUDGMENT 1. HARRISON CJ at CL: On 6 March 2023, Gregory Victor was arraigned in the District Court at Sydney on an indictment containing six counts, namely: Count 1: sexual intercourse with KC without her consent and knowing that she was not consenting contrary to s 61D(1) of the Crimes Act 1900. Count 2: sexual intercourse with SS without her consent and knowing that she was not consenting contrary to s 61D(1) of the Crimes Act 1900. Count 3: assault and committed an act of indecency on JJ contrary to s 61E(1) of the Crimes Act 1900. Count 4: possess child abuse material (Toshiba laptop) contrary to s 91H(1) of the Crimes Act 1900. Count 5: possess child abuse material (XPS Dell computer) contrary to s 91H(1) of the Crimes Act 1900. Count 6: possess child abuse material (video cassette tapes) contrary to s 91H(1) of the Crimes Act 1900. 1. After a pre-trial ruling, Count 6 was no-billed by the Crown. Mr Victor thereafter stood trial before Whitford SC DCJ and a jury of twelve. On 20 March 2023, the jury returned verdicts of guilty on counts 1, 2, 4 and 5. Mr Victor seeks leave to appeal against his convictions on the single ground that the verdicts are unreasonable and cannot be supported having regard to the evidence. 2. On 12 May 2023, Mr Victor was sentenced to an aggregate sentence of imprisonment for 6 years with a non-parole period of 4 years. He will become eligible for release to parole on 1 October 2026. Mr Victor does not seek leave to appeal against his sentence. The Crown case at trial 1. In relation to Counts 1 and 2, KC and SS are twins. In 1985 they were 10 years old and were friends with Mr Victor's daughter NV. They occasionally had sleepovers at Mr Victor's house. On one such occasion, KC and SS slept in the loungeroom. At some point during the night, KC awoke to Mr Victor putting his hand down her underwear and inserting his finger into her vagina. SS was also awoken by Mr Victor kneeling between her and her sister with his hand down her underwear. SS believed she was digitally penetrated at some point during the incident. It was the Crown case that these offences occurred simultaneously. The Crown also relied upon the contents of a lawfully recorded conversation between KC and Mr Victor. 2. With respect to Counts 4 and 5, the police executed a search warrant at Mr Victor's residence on 23 December 2020 and seized a Toshiba laptop, and a Dell computer, among other items. The laptop contained a total of 444 child abuse images. The computer contained a total of 117 child abuse images. The evidence about these counts was contained in an agreed statement of facts. Defence case at trial 1. Mr Victor did not give evidence at the trial although he called three character witnesses. He also participated in an ERISP and denied the allegations: his case was that the offending alleged in Counts 1 and 2 did not happen. In the case of Counts 4 and 5, Mr Victor maintained that he was not knowingly in possession of the relevant child abuse material. Counts 1 and 2 1. Mr Victor submitted that regard ought to be had to what was said by the High Court in Pell v The Queen (2020) 268 CLR 163; [2020] HCA 12 at [39], namely that the Court is to proceed: "… upon the assumption that the evidence of the complainant was assessed by the jury to be credible and reliable. The court examines the record to see whether, notwithstanding that assessment – either by reason of inconsistencies, discrepancies, or other inadequacy; or in light of other evidence – the court is satisfied that the jury, acting rationally, ought nonetheless to have entertained a reasonable doubt as to proof of guilt." 1. Mr Victor submitted that the overall quality of the evidence of the complainants was lacking such that, even after making due allowance for the advantage of the jury, the Court would be satisfied that in the light of the inadequacies in the evidence, a jury acting reasonably ought to have entertained a reasonable doubt in respect of these counts. 2. Mr Victor relied in this Court upon a demonstration that the evidence given by the two complainants was both inconsistent and deficient. Inconsistencies 1. The Crown case was that Counts 1 and 2 were said to have been committed simultaneously. Mr Victor maintained in those circumstances that inconsistencies in the accounts of what occurred given by each complainant significantly inform the safety of the verdicts on these counts. 2. KC gave evidence of waking on the mattress in the loungeroom with Mr Victor kneeling next to it with his back towards SS. KC said that Mr Victor had his finger in her vagina and was moving it in and out. She gave the following evidence in cross-examination: "Q. Did you say anything at all to [SS] at breakfast about what Greg had done to you the night before? A. We – it was unspoken between us because we'd both seen what had occurred. At that stage I didn't know if it happened to [SS]. But [SS] had witnessed it occurring to me. No, we didn't say anything about it. We didn't discuss it until we left the house. Q. So you didn't know that anything happened to [SS]? A. Not that I recall. Q. You didn't see the accused doing anything to [SS] whilst you saw him doing things to you? A. No, not that I recall." 1. SS gave evidence-in-chief as follows: "Q. Could you tell the jury what happened? A. Yes. We were sleeping in the loungeroom, my sister and I, and I don't know what time it was but it was the middle of the night I woke up and Greg was crouched in between my sister and I, and I realised pretty quickly that he had his hand in my underwear and his hand inside my vagina and when I looked I could also tell that his hand was in my sister's underwear and it was happening at the same time. We just looked at each other in horror and didn't say anything and he left without saying a word and somehow we fell back to sleep." 1. SS's evidence in cross-examination was in these terms: "Q. It's your recollection that Mr Victor had a hand simultaneously in your pants and in [KC's] pants? A. Yes, that's my recollection. Q. Whilst his hand was in your pants and the other hand in [KC's] pants, did you and [KC] look at each other at that point? A. Yes, I remember looking at [KC]. Q. When you looked at [KC], [KC] was looking at you? A. That's my recollection, yeah, she looked terrified. Q. In terms of what he was doing with [KC], did you see what his hand was doing? A. It was in her – it was – he was doing the same thing. It was a simultaneous attack. … Q. Was there some sort of facial expression or gesture between the two of you? A. We were just looking in each other's eyes and just thinking, what the hell is going on. Q. How long were you looking in each other's eyes? A. I don't recall, as long as it was going on for." 1. Mr Victor submitted that there is an inconsistency between KC's account that his back was toward her sister whilst he was digitally penetrating her and also that she did not see Mr Victor do anything to her sister, while SS's account was of a "simultaneous attack" during which the girls were looking at each other in horror. That submission can be rejected immediately. The notion of an inconsistency is that because of differences in accounts of the same incident the two versions cannot logically or factually stand together. That is not the case here. KC and SS gave evidence of what they remembered. Each was slightly different. So much is entirely unexceptionable and consistent with honest recollection. Neither account makes the version given by the other any less credible or plausible. The differences between the complainants' recollections do not make their respective accounts any less plausible. 2. Nor is it significant that SS's recollection was of a simultaneous attack but KC's evidence was not. Mr Victor sought to emphasise the fact that KC does not assert that Mr Victor was digitally penetrating SS at the same time as he was digitally penetrating her and that KC did not see him do anything to SS. Indeed, KC did not know that anything had happened to SS until later. That is as may be. It is just the way each complainant recalled what happened. It is simply not correct to say that for that or any other reason, the respective versions cannot stand together. I am unable to understand, let alone accept, the submission that there is a "clear inconsistency" between them. Nothing arising from the evidence of the sisters casts any doubt upon the proposition that they were simultaneously penetrated. 3. Mr Victor also sought to highlight this so-called inconsistency by reference to evidence given by AJ to the effect that only one of the sisters complained of sexual misconduct to her and that only one of them was abused. That submission was based upon the following account given by AJ in a statement to police in 2020: "One afternoon prior to 1989, whilst playing in the backyard of [SS] and [KC's] house, one of them told me they had gone to [NV]'s house to stay the night and they were sleeping on mattresses in the loungeroom when NV's father came into the room and asked them to pull their underwear up into their buttocks, like a G-string and walk around. When they were telling me, I believed it to mean all three girls, [SS], [KC] and [NV]. Either [SS] or [KC] was then asked to sit on [NV]'s dad's lap, and he touched them to their vagina area over their underwear. I can't remember which twin this happened to. I believe one of the twins went home and the other stayed the night." 1. Nothing arising from this account by AJ of what she remembers being told can be described as inconsistent with the evidence of the complainants. Apart from the obvious fact that this version of what occurred bears little resemblance to the facts that underpin Counts 1 and 2, the evidence of AJ does not lead to a conclusion that the accounts given by the complainants are therefore wrong or unreliable. Far from raising a real doubt about these counts, as Mr Victor contends, AJ's evidence was no more or less than evidence that the jury were entitled to consider in the course of all of the evidence in the trial. On one view, it was evidence that the jury might well have had little difficulty putting to one side. 2. Mr Victor also sought to rely upon the question of whether or not his daughter was present in the room at the time of the events complained of as something pointing to an inconsistency arising on the evidence of the complainants. KC gave evidence that she was sleeping on a mattress on the floor of the loungeroom with her sister SS sleeping to her left. Mr Victor's daughter NV was said to have been sleeping on the lounge located at the end of the mattresses. On the other hand, SS gave the following evidence: "Q. Just pause there. Where were you sleeping… A. In the – in the loungeroom. Q What were you sleeping on? A. I think I was sleeping on a mattress on the floor. Q. Where was [KC] sleeping? A. She was to the left of me. Q. What was she sleeping on? A. I – I remember her being higher than me, so I thought she was on the couch. Q. Your friend Nikki Victor, where was she that night? A. I don't recall. I don't recall where she was. I mean, I don't recall." 1. SS had earlier given a police statement in which she had said in unqualified terms that KC was sleeping on the lounge and Nikki was asleep in her room. She was cross-examined about this: "Q. At any point after making this statement to the police have you spoken to KC about where she says the two of you were sleeping? A. She said we were in the loungeroom. Q. Did she tell you that you were on her left, or she was on your left? A. No. No. Q. Did she tell you that the two of you were on the mattresses on the floor? A. She – she actually, yeah, she did mention that. She said her recollection was that we were both on the floor. Q. When did she tell you that? A. Several weeks ago. Q. Were you in America or in Australia when she said that? A. I think I was in Australia. Q. You were in Australia just a couple of weeks ago? A. Yes. … Q. When you were talking to KC, whether it was in Australia or when you returned to the United States, did you talk to KC about whether or not Nikki was in the same room whilst this occurred? A. Yes. Yes, but we didn't talk about it. She mentioned it, and again, I said wow, that's not my recollection. … Q. Did you say also that you've spoken to KC after she's given evidence in the trial? A. Yes. Q. Did she tell you what she'd said in her evidence in the trial? A. Only so far as she felt Nikki was in the same room and that she was on the floor." 1. Mr Victor submitted that two significant issues arise concerning this evidence. First, there is what he described as "the obvious inconsistency" as to whether Mr Victor's daughter was present in the loungeroom at the time of the alleged offending. Secondly, the evidence on this issue is said to demonstrate that the complainants had discussed the allegations and the evidence. Mr Victor submitted that SS "curated" the evidence that she gave at trial to minimise any inconsistency between her evidence and that of KC. This is said to undermine the reliability and credibility of the evidence given by each complainant. 2. Once again, the fact that two witnesses give evidence that is different does not mean that it is relevantly inconsistent. A reconciliation by the jury of differing accounts about whether Mr Victor's daughter was or was not present at the time is not critical to their determination of the ultimate issue of his guilt. As the evidence of SS makes plain, she had a different recollection about whether Mr Victor's daughter was present. That difference says nothing about whether she ought to be disbelieved or doubted about her recollection that she was digitally penetrated by Mr Victor. It is certainly something to which trial counsel could point when dealing with the respective accounts of each complainant but it is not something which must have led the jury to have a reasonable doubt about the matters alleged in the indictment. 3. Moreover, I fail to understand the contention that SS "curated" her evidence. The cross-examiner in fact managed to elicit what must have been a patently honest response to questions about whether SS had spoken to her sister. SS's evidence could hardly be described as carefully chosen in any pejorative sense. Her evidence on this topic was in my view blandly guileless. Deficiencies 1. Mr Victor submitted that the evidence called in the trial did not include evidence of a complaint of digital penetration by either KC or SS to any third party. The evidence of AJ has been referred to earlier. HA, a childhood friend of the complainants, gave similar evidence of a conversation soon after the incident, in which KC told her: "…during a sleepover at Nikki's house, that Nikki's father had asked her to take her clothes off and – but leave her underpants on – to pull her underpants over her hips, and to walk around the coffee table while he was watching her." 1. The incident described by both AJ and HA is clearly not the incident that is said to give rise to Counts 1 and 2 on the indictment. Mr Victor submitted that the very specific complaint made to each woman "is inconsistent with the evidence of the complainants" and sought to emphasise that neither version of this complaint evidence was challenged by the Crown. That is in my view unsurprising. It must be apparent, or the jury were at least entitled to form the view, that the incident described by AJ and HA was unrelated to the events in the middle of the night when each complainant was in bed on a mattress and not taking her clothes off and parading around a coffee table in her underpants. 2. Neither complainant reported digital penetration to her parents. Their father told the police that the day after the alleged incident their mother had told him that Mr Victor had been tucking them into bed and touched them on their vaginas. He said he believed that the touching was over their underwear. The complainants' mother agreed that no complaint had been made to her of any form of digital penetration and that the complaint was limited to touching. Mr Victor relied upon this evidence of complaint to the extent that it failed to reveal digital penetration. 3. However, this analysis ignores the evidence of KC when asked whether she told her mother about what had occurred and whether Mr Victor had touched her on her vagina. KC said: "No. It was embarrassing and I was upset. I didn't go into exact specifics of how [Mr Victor] touched my vagina. I believe I said, '[Mr Victor] touched us' and I don't think my mother wanted too many more details, to be honest." 1. In response to a question about whether SS complained to her mother that Mr Victor had placed his finger in her vagina, SS said: "I don't know. I don't think you sort of have that language when you were 10, to say – you know, to give the graphic details. It's embarrassing when you are a child. So I think mum pretty much got the idea of what happened. Someone's hands are not supposed to be in your daughter's underwear. She didn't need a great deal of detail." 1. The version given by the complainants' father derived wholly from what their mother told him. 2. The jury had the distinct opportunity to see and hear the complainants. They were entitled to analyse and assess all of the evidence in the trial in order to determine whether the complainants' version could be accepted to the requisite standard. None of the so-called discrepancies was in my opinion such that it must have caused the jury to have a reasonable doubt about whether the complainants were digitally penetrated by Mr Victor. Recorded conversation 1. Evidence was led in the Crown case consisting of a lawfully recorded conversation between KC and Mr Victor on 22 July 2020. It was submitted on his behalf that the following important things emerge from that conversation. 2. First, Mr Victor firmly and repeatedly denied any form of digital penetration of either complainant. Secondly, he denied any form of sexual offending at all against SS. Thirdly, in the course of the conversation, Mr Victor told a story about a third person rubbing the outer areas of a girl's genitals. He never conceded that this "third person" story was about him and KC. Even if, on the contrary, that were to be accepted, nothing that was said by Mr Victor could constitute an admission of the acts constituting Counts 1 and 2. 3. Mr Victor's submissions in relation to the recorded conversation were limited. Having regard to what might be regarded as the highly damaging nature of the conversation between him and KC, that is hardly surprising. It is not convenient to set out that conversation in full in these reasons. However, the Crown's submissions in this Court contain the following summary. 4. Mr Victor's responses arguably evidenced his clear sexual attraction to KC when she was a child. He appears to relish sharing the highly sexualised story of "the man's" forbidden attraction to the young girl. His denial that he had digitally penetrated KC or SS, alike with his denial that the "story" he told was about him, has to be viewed in the light of the apparent preoccupation he displayed for not incriminating himself. Mr Victor said, for example, "if I admit, that this type of thing happened to you, I incriminate myself" and "I can't admit to you directly and incriminate myself…If you tell anybody that I admitted my guilt to you, I am fucked". Mr Victor showed similar concern about being overheard by people nearby and frequently asked KC to move so that would not occur. 5. The Crown submitted that there are a number of parallels between the "story" told by Mr Victor in the recorded conversation and the complainants' descriptions of the charged incident. It was in the middle of the night and the man approached the girl who had been sleeping and rubbed her vagina. The story suggests that the girl derived sexual pleasure from this encounter. Mr Victor says, "my fingers never went down your slit" and "I did not try and stick a finger in you" before moving a short time later to "he put his fingers on the pudenda. Two fingers were at the top of her slit and he just massage [sic]". 6. It is fair to say that this extensive recorded conversation between KC and Mr Victor offers an unusual understanding of the relationship between them. KC insists that she wants closure in the form of an acceptance by Mr Victor that he committed the charged act of digital penetration. Mr Victor does not admit that he did so. However, the lengthy interplay between Mr Victor and KC is a significant piece of evidence to which the jury were entitled to have regard. On one view of the conversation, it may well have left the jury satisfied that Mr Victor was guilty of the digital penetration charges notwithstanding his denials having regard to the extremely unusual way in which he insisted on fielding KC's questions. Be that as it may, it does not seem to me that the recorded conversation must have led the jury to entertain a reasonable doubt about his guilt. It does not, in the context of the whole of the evidence in the trial, lead me to consider that the verdicts on Counts 1 and 2 are unreasonable. 7. The evidence of KC and SS was clear and compelling. Each woman was adamant that Mr Victor had penetrated her vagina with his fingers. Each described feeling Mr Victor's finger "in" her vagina and how he moved it. KC described it as an "in and out motion". SS described it as Mr Victor's finger "moving around [inside her vagina]". Mr Victor confronted both girls the following morning before they went home. They were both described as "very upset" when they did so. KC made an immediate complaint to her mother in the presence of SS, referring to having been touched. Neither girl returned to Mr Victor's home again. 8. Mr Victor relied upon evidence of good character. It was an agreed fact that he had not been the subject of any other allegation of sexual misconduct or offending apart from the charged matters. Mr Victor had no criminal record. Mr Victor's wife, his daughter and his niece gave evidence that he was honest, caring, reliable and trustworthy. Mr Victor contended that the evidence of good character was powerful and persuasive and that when independently assessing the trial record to determine whether the evidence was sufficient to sustain the verdicts, evidence of good character was important when considering his denials and the likelihood of him having committed the offences. 9. However, the Crown submitted, and I accept, that the tone and content of the recorded conversation with KC, including the "sexy story" he told of the forbidden, sexual attraction of an adult male to a young girl, including detail of her "little budding breasts", may well have served to cast the favourable testimonials in a different light. Mr Victor's admission in his ERISP that he tickled the "tummy" of SS at least, close to her panty line, conduct which he accepted was inappropriate, may have had a similar effect. Moreover, as the Crown submitted, to the extent that evidence that was adduced in his case bore on Mr Victor's credibility, it was otherwise undermined by the arguable implausibility of explanations he gave in the ERISP for his conduct during the recorded conversation, including his insistence that the "story" he told was not related to KC. 10. I am not satisfied that it was not open to the jury to be satisfied beyond reasonable doubt that he was guilty of either Count 1 or Count 2. Neither verdict was unreasonable. I do not entertain a reasonable doubt that Mr Victor is guilty of these counts. Counts 4 and 5 1. There was no dispute that Mr Victor possessed the relevant computers or that child abuse material was on those devices. The only element in dispute was whether Mr Victor was knowingly in possession of that material. 2. The Crown case was circumstantial. There was no direct evidence that Mr Victor was knowingly in possession of child abuse material on either device. The findings of guilt relied upon inferential reasoning as to his knowledge of the possession of the material, which was the only element in dispute. 3. Mr Victor emphasised the test stated recently in Coughlan v The Queen (2020) 267 CLR 654; [2020] HCA 15 at [55]: "An assessment of the sufficiency of the evidence to support the verdict of guilt in a circumstantial case such as this one requires the appellate court to weigh all the circumstances in deciding whether it was open to the jury to draw the ultimate inference that guilt has been proved to the criminal standard. That inference will not be open if the prosecution has failed to exclude an inference consistent with innocence that was reasonably open." Mr Victor's submissions Count 4 1. The evidence concerning the results of the police examination of the laptop seized from Mr Victor's residence on 23 December 2020 was set out in Exhibit 9 at [18](a), namely: The Laptop (1) There were a total of 124,372 images and 2,507 videos on the laptop. (2) There were 86 Category 1 CAM images. (3) There were 358 Category 2 CAM images. (4) All of these Category 1 and Category 2 images had the same creation and last accessed times and dates. (5) The laptop contained a 'Games' folder. (6) The 'Games' folder had a number of programs and applications in it. (7) The 'Games' folder also contained subfolders (folders within folders). (8) Some of the subfolders contained further subfolders. (9) All of the Category 1 and Category 2 CAM images were located in subfolders somewhere within the 'Games' folder. 1. It was an agreed fact that the "creation date" is the time and date the file was first stored on the device. The "last accessed date" is the time and date the file was last opened and includes when a person views the file properties or opens the file. Where these two dates are the same, it indicates that the file has not been accessed, opened, or viewed on that device. 2. In these circumstances, Mr Victor submitted that the Crown case did not exclude the reasonable possibility that he was not knowingly in possession of the child abuse material located on the laptop. In circumstances where the entirety of the child abuse material on the laptop had the same creation date and last accessed date, and tendency reasoning is not available, there is an available and strong inference to be drawn that the applicant did not know the material was within the "Games" folder on the laptop. This is particularly so given the sheer quantity of images and videos on the laptop. Such an inference arises on the evidence and cannot be properly described as impermissible speculation or conjecture: The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 at [55]. 3. In this context, the Court would conclude that the jury, acting rationally, ought to have entertained a reasonable doubt as to proof of guilt in respect to count 4. Count 5 1. The evidence concerning the results of the police examination of the Dell computer seized from Mr Victor's residence on 23 December 2020 was set out in Exhibit 9 at [18](b), namely: The Computer (1) There was a total of 364,271 images and 16,855 videos on the computer. (2) There were 46 Category 1 CAM images. (3) 44 of these 46 Category 1 CAM images had the same creation and last accessed times and dates. (4) There were 71 Category 2 CAM images. (5) 69 of these 71 Category 2 CAM images had the same creation and last accessed times and dates; and (6) Police located other images that are alleged to be CAM which had been deleted and then forensically recovered by police. The recovered deleted items are not part of the charge in respect of count 4 or 5 because they had been deleted. There is no wrongdoing or adverse inference to be drawn from the CAM images which had been deleted and forensically recovered. 1. The arguments made above in respect to count 4 also apply to this count. 2. Given the large volume of images and videos on the computer, being close to 400,000 images, the limited number of images of child abuse material, being 117 images (the majority of which - all except 4 images - had the same creation and last accessed dates), and the fact other child abuse material had been previously deleted, the inference that Mr Victor was not knowingly in possession of the material on the relevant date was available and could not be excluded. As noted in the Agreed Facts, the deleted material did not form part of the charge and no adverse inference could be drawn from it. 3. In this context, the Court would conclude that the jury, acting rationally, ought to have entertained a reasonable doubt as to proof of guilt in respect to count 5. The Crown's submissions 1. The evidence in relation to Counts 4 and 5 established that the two devices on which child abuse material was located were owned and, more importantly, used by Mr Victor. He is described as having confirmed to police where "his" electronic devices were located, he was in a position to provide the passwords for those devices and he made admissions as to his use of them in the ERISP. 2. Viewed as a whole, the evidence relevant to each of the counts excluded, as a reasonable possibility, the suggestion that Mr Victor was not knowingly in possession of the impugned images. Child abuse material of a similar character (Category 1 and 2 images) was found across both devices. While the impugned images found on the laptop had the same creation and last access dates, indicating that they had not been accessed on that particular device, some of the images found on the computer did not. That the latter represented a small proportion of the images found on that device is not to the point. It demonstrates active engagement with the impugned images. It also plainly diminishes the significance (to Mr Victor's case) of the deletion of other child abuse material from the same device because it demonstrates that his practice was not to delete all such materials when he (on his case, unwittingly) came upon it. Further, the fact that the creation and access dates of the impugned images found on the computer ranged from 2015 to 2020 tends against any suggestion that the images were inadvertently downloaded in a cache of legal adult pornography. 3. Mr Victor's admission in the lawfully recorded conversation with KC that he had come across a "sexy story" in a "zip file" is indicative of deliberate engagement with child abuse material. Further, the story he told to KC during the same conversation, together with the other evidence, is capable of rebutting the suggestion that his possession of the material found on the laptop and computer was innocent and inadvertent. The story concerned a highly sexualised discussion of an adult man attracted to a young girl who went on to perpetrate a serious indecent assault upon her. 4. The Crown submitted that Mr Victor had not established that the verdicts of guilty in respect of Count 4 and/or Count 5 were unreasonable. Consideration 1. I am not satisfied that, viewed as a whole, the evidence relevant to each of the counts excluded, as a reasonable possibility, the suggestion that Mr Victor was not knowingly in possession of the impugned images. The laptop and the computer contained a very large number of images. Only a very small proportion of these were illegal. There is no evidence that they were accessed since the date when they were downloaded, or that they were even accessed on that date. The inference that Mr Victor was not knowingly in possession of the material on the relevant date in my opinion was available as a reasonable possibility and could not be excluded. 2. I am further confirmed in that view by the helpful analysis of these grounds in the judgment of Campbell J. Re-sentence 1. Mr Victor was sentenced to an aggregate sentence. His Honour nominated indicative sentences as follows: Count 1: imprisonment of 4 years and 6 months. Count 2: imprisonment of 4 years. Count 4: imprisonment of 1 year. Count 5: imprisonment of 1 year and 3 months. 1. Having regard to my conclusion with respect to Counts 4 and 5, it becomes necessary for Mr Victor to be re-sentenced. No submissions were received on the basis that this result might occur. In the circumstances, I consider that the proceedings should be remitted to his Honour Whitford SC DCJ for re-sentence on Counts 1 and 2. Orders 1. I consider that the following orders should be made: 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. 1. CAMPBELL J: I have had the considerable advantage of reading the judgment of Harrison CJ at CL in draft. Having conducted my own review of the evidence at trial, I agree with the orders proposed for the reasons his Honour expresses. I wish to add some reasons of my own which I do not conceive to be inconsistent with his Honour's reasoning. 2. Concerning Counts 1 and 2 I wish to add, as is obvious, ultimately, it was necessary for the jury to accept the evidence of KC and SS, individually, as reliable beyond reasonable doubt. While the matters raised by Mr Victor in this Court were relevant to the evaluation of the evidence of each of the complainants, perceived differences between the substance of the account of each of them and the content of the complaint evidence need not have been determinative. These differences were entirely understandable. As each complainant herself explained, young children, as they were in 1985, through shyness, shame, bewilderment or otherwise may not wish to describe the act perpetrated by an abuser in all its detail. But the jury was entitled to proceed on the basis that the relevance, and hence the real significance, of the complaint made to the mother of the complainants when they returned home the next day was that it was made at the first opportunity and was of conduct of a sexual nature. A complaint Mr Victor had "touched" them was understood by their mother, who passed along to their father, as touching of a sexual nature. 3. As Harrison CJ at CL points out, the jury would have been entitled to convict on acceptance of that body of evidence whether or not they formed the view that the other complaint evidence, to friends, added anything at all to the Crown case. Having said that it was open to them to accept that those complaints were of Mr Victor procuring each complainant to engage in conduct of a sexual type. 4. I am also of the view that the content of the lawfully recorded conversation (Exhibit 7) was damning. The jury were not entitled to use Mr Victor's denials against him. To the extent to which they did not accept them they were obliged to put them to one side and focus on evidence they did accept. However, there was much in what he said that constituted implied admissions notwithstanding his adoption of the device of purporting to tell a story. I agree with Harrison CJ at CL that it was open to the jury to understand the "story" as admitting a sexual interest in KC on which he acted on one occasion, even if he denied penetration. If the jury did not accept his denial, as I have said, they were obliged to disregard that part of his account. However, taking the admissions together with the evidence of KC, and other evidence they accepted, justified a finding of guilt beyond reasonable doubt. 5. While the evidence in relation to Count 2 was perhaps not quite as strong, and it could not be bolstered by the rejection of Mr Victor's denials or by the evidence only referable to KC, I agree that SS's own evidence and the admission in Mr Victor's ERISP (see [38] above) were sufficient to support the conviction. Like Harrison CJ at CL, I am of the view that neither verdict was unreasonable, and my review has not left me with a doubt about Mr Victor's guilt on these counts. 6. As Harrison CJ at CL summarised, Count 4 related to child abuse material ("CAM") on a Toshiba laptop seized from Mr Victor's residence during the execution of a search warrant. It contained 86 category 1 CAM images and 358 category 2 CAM images. Count 5 related to images on a XPS Dell computer seized at the same time, containing 46 category 1 CAM images and 71 category 2 CAM images. 7. The facts were agreed and set out in Exhibit 9. That evidence was supplemented by the oral evidence of Detective Senior Constable Joshua Hrvatin, the officer in charge of the police investigation, who had carried out the software-assisted inspection of the seized electronic devices. The oral evidence related to Count 5 in as much as his inspection revealed that the relevant images on the computer had been downloaded between 2015 to 2020. Nothing in the oral evidence derogated from the agreed facts that the creation date is the time and date the offending image was first stored on the device and the last access date is the time and date when the offending image was last opened including when the person first downloaded the material. Importantly, a "last access date" which is the same "creation date" indicates that the file has not been accessed, opened or viewed on that device. Of the images on the computer there were four, two falling into each category, that apparently did not have the same creation and last accessed date and time. There were no agreed facts or other evidence about when they had last been accessed. 8. As the learned trial judge instructed the jury the only issue on each count was whether the CAM "was relevantly possessed by Mr Victor at the relevant time and possession is a word that as a matter of law perhaps has a slightly more rigorous meaning than you might attribute to it in ordinary speech" his Honour continued: "From the point of view of the law the essence of the concept of possession is that at the relevant time a person intentionally had control over the object or thing in question. And, obviously, enough perhaps to intentionally have a thing in your control, you must have knowledge of its existence. In other words, you must know that it is in your custody." 1. As Harrison CJ at CL has said, the Crown, necessarily, relied upon circumstantial evidence to prove the legally requisite state of mind. The Crown argued that the only available rational inference from the agreed facts and the supplementary evidence of the officer in charge, which as I have said related to Count 5 only, was that Mr Victor intentionally had control over the images in question. 2. In relation to Count 4 the Crown argued: "You might think, ladies and gentlemen, his laptop wasn't some sort of magnet that just attracted child-abuse material from the iCloud, or whatever that's called - up there or the atmosphere. It was there, you'd find, ladies and gentlemen, beyond reasonable doubt, there because he knew that they were there in relation to [the] laptop." (My emphasis.) 1. In relation to Count 5, dealing with computer, the Crown argued: "… you might think, ladies and gentlemen, that using your common sense, his computer, he provides the password, there [are] a number of images that have the creation date and the last access date, they might be the same, but those images separately range over a number of years from 2015 to 2020 … And you might think, ladies and gentlemen, he must have known they were on his computer. He has possession. He has knowledge. " (My emphasis.) 1. It is clear that the essence of the Crown case in regard to each of Count 4 and Count 5 was, "he must have known". There was a complete absence of any engagement with the agreed fact that a common creation date and last access date meant that the images had not been "accessed, opened or viewed on [the] device". The fact that the images ranged over the years 2015-2020 did not in any way shape or form alter or reduce the hard nub of that agreed fact. As for the other 4 images on the computer, there was no evidence or agreed fact about when they had been created and accessed or in what circumstances. 2. Moreover, at trial, the Crown said nothing about the "zip file" containing the "sexy story" (see [53] above). And for my part I am of the view that it was impermissible for it to be raised for the first time on appeal denying Mr Victor the opportunity to deal with it by evidence or argument at trial. 3. At trial, in Mr Victor's defence, it was pointed out that he lawfully downloaded hundreds of thousands of images of adult pornography. It was also said, accurately, that the recovered CAM images were a tiny portion (0.3%) of the total images present on each of the laptop and the computer. The agreed facts demonstrated that a good deal of CAM had been deleted from the devices, Counsel argued: "… the Crown need to prove that the accused knowingly possessed the items. There's no direct evidence that the accused knew that the items were on the two devices. For example, there's no admission or evidence as to how they got on the devices. The Crown asks you to infer what the accused knew. His Honour will likely give you a direction about the drawing of inferences. The Crown must prove beyond reasonable doubt that the accused was knowingly in possession. Now, matters that would cause you to have a doubt as to whether the Crown has proved that to the high standard of beyond reasonable doubt are these; the provision of passwords, the cooperation with locating devices, his response when he was told that there was child abuse material on the devices. 'Bullshit'". Reference was made to the identity of the "creation" and "last access" dates and agreed fact [21], to the large collection of lawful adult pornography and, again, to the circumstance that child abuse material had been deleted. Counsel continued: "Now, when you're considering what inferences you might draw, you might draw an inference that the fact that there's deleted child abuse material on the computer means he's deleted child abuse material. When you're drawing inferences, you might infer that if he received an image of child abuse material, that he would delete it. The agreed facts demonstrate he has deleted child abuse material." Counsel argued "there is a real and tangible doubt" about Mr Victor being "knowingly in possession [of CAM]" and "Suspicion, gut feeling … it's not enough. It's not proof, and it's not proof beyond reasonable doubt". Reviewing this material for myself, while there may have been ground for the suspicion that Mr Victor "must have known" CAM was on his laptop and computer, on the whole of the circumstances established by the agreed facts and supplementary oral evidence of the officer in charge Mr Victor's guilt of Counts 4 and 5 was not the only rational inference available. In my opinion it was not open to the jury to be satisfied of that beyond reasonable doubt. 1. SWEENEY J: Having conducted my own review of the evidence, I agree with Harrison CJ at CL's conclusions in respect of all counts, his Honour's reasons and proposed orders. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 22 July 2024