R v Addley - [2018] QCA 125

SUPREME COURT OF QUEENSLAND

CITATION:

R v Addley [2018] QCA 125

PARTIES:

R
v
ADDLEY, Christopher Kevin
(appellant)

FILE NO/S:

CA No 278 of 2017
DC No 1972 of 2016

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Brisbane – Date of Conviction: 16 November 2017 (Shanahan DCJ)

DELIVERED ON:

19 June 2018

DELIVERED AT:

Brisbane

HEARING DATE:

17 May 2018

JUDGES:

Sofronoff P and Fraser and Philippides JJA

ORDERS:

1.   Appeal allowed.

2.   The verdict on count 2 is quashed.

3.   A retrial on count 2 is ordered.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – PARTICULAR CASES – WHERE APPEAL ALLOWED – where the appellant was convicted on one count of using electronic communication with intent to procure a person the appellant believed was under the age of 16 years to engage in a sexual act – where the appellant was a user of the adult social networking application Grindr – where the appellant communicated, via Grindr, with a female police officer posing as a fictitious 14 year old boy named “Mack Jones” – where the appellant and Mack exchanged messages pertaining to a prospective sexual encounter – where Mack communicated to the appellant that he was 14 years old – where the appellant and Mack arranged to meet in person – where the appellant gave evidence that he believed Mack to be 18 years old and that he believed that Mack’s claims that he was 14 years old were part of a sexual fantasy roleplay – where criminal responsibility under s 218A and s 218B of the Criminal Code (Qld) can arise where in fact the other person is under the age of 16 years, or where the accused believes that the other person is under the age of 16 years – where s 218A(9) and s 218B(8) provide a defence to a charge under s 218A or s 218B, respectively, where an accused can prove that they believed on reasonable grounds that the person was at least 16 years – where Mack was a fictitious person and so the basis of the appellant’s criminal responsibility was his belief about Mack’s age, rather than Mack’s actual age – where the trial judge directed the jury that the defence under s 218A(9) would apply if the appellant could prove that he believed on reasonable grounds that Mack was at least 16 years of age – where, in a case in which the other person is not in fact under the age of 16 and so a contravention of the provision is due to the accused’s belief that the other person is under 16, the defence under s 218A(9) cannot be of relevance, because it would only be made out in circumstances where the elements of the offence itself are not satisfied – where the direction to the jury to consider the defence under s 218A(9) was a misdirection – where the defence under…

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 R v Addley

Details

AGLC: R v Addley [2018] QCA 125
Case: [2018] QCA 125
Decision Date: 19 June 2018

CaseChat Overview and Summary

In the case of R v Addley, the appellant was convicted on one count of using electronic communication with intent to procure a person he believed to be under the age of 16 to engage in a sexual act. The appellant had communicated via the social networking application Grindr with a female police officer posing as a 14-year-old boy named "Mack Jones." The appellant exchanged messages with Mack regarding a prospective sexual encounter, arranged to meet him in person, and gave evidence that he believed Mack to be 18 years old, considering Mack's claims of being 14 years old to be part of a sexual fantasy roleplay. The case reached the court to determine whether the trial judge's direction to the jury regarding the availability of a particular defence constituted a misdirection that led to a miscarriage of justice.

The legal issues before the court included whether the trial judge's direction to the jury regarding the defence under s 218A(9) of the Criminal Code (Qld) was correct, and if not, whether this misdirection was likely to have confused the jury or led them into an impermissible path of reasoning. The court had to consider whether the defence under s 218A(9), which allows for a defence where the accused believed on reasonable grounds that the other person was at least 16 years old, was applicable when the other person was not actually under 16, and thus the basis of the appellant's criminal responsibility was his belief about the other person's age. The court also examined whether the misdirection was likely to have confused the jury or led them into an impermissible path of reasoning, such that a substantial miscarriage of justice was occasioned.

The court determined that the trial judge's direction to the jury that the defence under s 218A(9) was an available defence was a misdirection. The court found that the defence under s 218A(9) is not relevant in cases where the other person is not in fact under the age of 16, as it would only apply in circumstances where the elements of the offence itself are not satisfied. The court held that the misdirection was likely to have confused the jury and led them into an impermissible path of reasoning, resulting in a substantial miscarriage of justice. Consequently, the court allowed the appeal, quashed the verdict on count 2, and ordered a retrial on that count.

The final orders of the court were to allow the appeal, quash the verdict on count 2, and order a retrial on that count. This decision underscores the importance of correct legal directions to the jury, particularly in cases involving offences predicated on the accused's beliefs about the age of the other person.

Orders

Orders of the court

1. Appeal allowed.

2. The verdict on count 2 is quashed.

3. A retrial on count 2 is ordered.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v Addley [2018] QCA 125
PARTIES:	R v ADDLEY, Christopher Kevin (appellant)
FILE NO/S:	CA No 278 of 2017 DC No 1972 of 2016
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	District Court at Brisbane – Date of Conviction: 16 November 2017 (Shanahan DCJ)
DELIVERED ON:	19 June 2018
DELIVERED AT:	Brisbane
HEARING DATE:	17 May 2018
JUDGES:	Sofronoff P and Fraser and Philippides JJA
ORDERS:	1. Appeal allowed. 2. The verdict on count 2 is quashed. 3. A retrial on count 2 is ordered.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – PARTICULAR CASES – WHERE APPEAL ALLOWED – where the appellant was convicted on one count of using electronic communication with intent to procure a person the appellant believed was under the age of 16 years to engage in a sexual act – where the appellant was a user of the adult social networking application Grindr – where the appellant communicated, via Grindr, with a female police officer posing as a fictitious 14 year old boy named “Mack Jones” – where the appellant and Mack exchanged messages pertaining to a prospective sexual encounter – where Mack communicated to the appellant that he was 14 years old – where the appellant and Mack arranged to meet in person – where the appellant gave evidence that he believed Mack to be 18 years old and that he believed that Mack’s claims that he was 14 years old were part of a sexual fantasy roleplay – where criminal responsibility under s 218A and s 218B of the Criminal Code (Qld) can arise where in fact the other person is under the age of 16 years, or where the accused believes that the other person is under the age of 16 years – where s 218A(9) and s 218B(8) provide a defence to a charge under s 218A or s 218B, respectively, where an accused can prove that they believed on reasonable grounds that the person was at least 16 years – where Mack was a fictitious person and so the basis of the appellant’s criminal responsibility was his belief about Mack’s age, rather than Mack’s actual age – where the trial judge directed the jury that the defence under s 218A(9) would apply if the appellant could prove that he believed on reasonable grounds that Mack was at least 16 years of age – where, in a case in which the other person is not in fact under the age of 16 and so a contravention of the provision is due to the accused’s belief that the other person is under 16, the defence under s 218A(9) cannot be of relevance, because it would only be made out in circumstances where the elements of the offence itself are not satisfied – where the direction to the jury to consider the defence under s 218A(9) was a misdirection – where the defence under…