R v Cleave

Case [2023] QCA 268

SUPREME COURT OF QUEENSLAND

CITATION:

R v Cleave [2023] QCA 268

PARTIES:

R
v
CLEAVE, William Charles
(appellant/applicant)

FILE NO/S:

CA No 138 of 2022
DC No 10 of 2022

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction & Sentence

ORIGINATING COURT:

District Court at Maryborough – Date of Conviction: 15 June 2022 (Everson DCJ)

DELIVERED ON:

22 December 2023

DELIVERED AT:

Brisbane

HEARING DATE:

18 August 2023

JUDGES:

Morrison and Dalton and Boddice JJA

ORDERS:

1.   Appeal against conviction is dismissed.

2.   Application for leave to appeal against sentence is refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – where the appellant was convicted of maintaining a sexual relationship with a child under 16 (count 1), two counts of involving a child in making child exploitation material (counts 2 and 10), seven counts of indecent treatment of a child under 16 (counts 3, 4, 5, 6, 7, 8 and 11) two counts of using electronic communication to procure a child under 16 (counts 9 and 12) and a count of possessing child exploitation material (count 13) – where the Crown’s case was supported by the complainant’s evidence, an eye-witness and text message evidence – whether the verdict is unreasonable or cannot be supported having regard to the evidence

CRIMINAL LAW – APPEAL AND NEW TRIAL – where the appellant also relied on other grounds of appeal including going to school with one of the juror’s children, that several jurors saw his transportation to the Court by the police, and that the jury were instructed that the appellant’s evidence was false – where, in addition, the appellant made other submissions in relation to the conduct of his counsel and the trial judge – whether there was any merit in relation to these other grounds of appeal

Corrective Services Act 2006 (Qld), s 181A(2)
Penalties and Sentences Act 1992 (Qld), s 161E

Dansie v The Queen (2022) 274 CLR 651; [2022] HCA 25, cited
M v The Queen (1994) 181 CLR 487; [1994] HCA 63, cited
Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12, cited
R v Miller (2021) 8 Qd R 221; [2021] QCA 126, cited

COUNSEL:

The appellant/applicant appeared on his own behalf
M A Green for the respondent

SOLICITORS:

The appellant/applicant appeared on his own behalf
Director of Public Prosecutions (Queensland) for the respondent

  1. MORRISON JA:  On 15 June 2022, the appellant was convicted after a three-day trial on the count of maintaining a sexual relationship with a child.

  2. The appellant, who was an unrepresented litigant before this Court, challenges his conviction on a number of grounds, some set out in his notice of appeal, while others were articulated in his outline on the appeal.  The grounds arising from the amended notice of appeal can be summarised as below, each contending that there was a miscarriage of justice because:

    (a)Ground 1 – application should have…

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AGLC
R v Cleave [2023] QCA 268
Case
[2023] QCA 268
Decision Date

CaseChat Overview and Summary

In the case of R v Cleave, the appellant was convicted of maintaining a sexual relationship with a child under 16, as well as various other offences including involving a child in making child exploitation material, indecent treatment of a child under 16, using electronic communication to procure a child under 16, and possessing child exploitation material. The appellant appealed against his convictions on multiple grounds, including the contention that the verdict was unreasonable or insupportable in light of the evidence. The appellant also argued that there were irregularities in the conduct of the trial, including the presence of a juror's child at the appellant's school, the visibility of the appellant's police transport to several jurors, and the jury's instruction that the appellant's evidence was false.

The court had to determine whether the verdict was unreasonable or insupportable in light of the evidence presented, and whether the appellant's other grounds of appeal had any merit. The Crown's case was supported by the complainant's evidence, an eyewitness, and text message evidence. The complainant's evidence was corroborated by the mobile phone records spanning April to September 2019. The court found that the evidence was sufficient to support the jury's verdict and dismissed the appellant's appeal against conviction. The court also rejected the appellant's other grounds of appeal, including the claim that the trial was unfair due to the presence of a juror's child at the appellant's school, the visibility of the appellant's police transport to several jurors, and the jury's instruction that the appellant's evidence was false.

The court concluded that all grounds of appeal had failed and dismissed the appeal against conviction. The court also refused the appellant's application for leave to appeal against sentence. The judges agreed with the order proposed by Morrison JA and with his reasons. The final orders were that the appeal against conviction is dismissed and the application for leave to appeal against sentence is refused.

Orders

Orders of the court

1. Appeal against conviction is dismissed.

2. Application for leave to appeal against sentence is refused.

Background

Background to the litigation

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Evidence

Evidence Before The Court

In addition, there were a number of admissions, particularly relating to mobile phone records from the appellant’s phone, spanning April to September 2019.[8] Those phone records, extending over 800 pages and 21,597 texts and images, were in evidence.[9]The complainant’s evidence[10][8]AB 1123.[9]Telephone logs, Exhibits 1-3.[10]Evidence in chief, AB 1171-1200; further evidence in chief and cross-examination at AB 97-116; further cross-examination at AB 137-141. The complainant’s evidence in chief was to this effect:(a)she was 17 when she gave her pre-recorded evidence;[11][11]She was born on 31 May 2004, and 15 years and five months when her s 93A statement was taken.(b)she was introduced to the appellant by a friend of hers, MSW, who had suggested that she “get with” the appellant; she thought she was introduced to him “about eight months ago”, and agreed that would be around February or March 2019;(c)at the time she met the appellant, whilst she had been living with her grandmother (NAN), she had gone to stay at MSW’s sister’s place for a couple of months; she then returned to NAN’s place; after she met the appellant, he would come around to NAN’s place to help NAN out, such as by fixing the stairs;(d)the appellant had a gold Commodore and he would take her driving; he initially told her that he was 25 years old, but she saw his driver’s licence which indicated he was 29; the appellant said he thought she would not want to be with him if she knew his real age;(e)she was 14 years old when she met the appellant, and he often used to drop her off at school; he knew what grade she was in at school;(f)she told the appellant that she did not think they should be in a relationship because he was double her age and the appellant told her not to worry about it; they started off as a friendship but moved towards a relationship after about three or four months (around June 2019), and the relationship became a sexual one;(g)she would have sex with the appellant in the back seat of his car at night; the appellant would use a condom, and she had a contraceptive rod implanted in her arm; she had that implanted before they had started a sexual relationship;(h)they had sex “a fair few” times; namely around “more than ten times”; in oral evidence she corrected this to “Almost every day”; she wanted the relationship to be sexual as much as he did; the appellant would pick her up from NAN’s place, go for a drive and get “Macca’s” and then have sex in the back seat of his car;(i)the appellant also digitally penetrated her vagina while in the back seat of the car;(j)she had met friends of the appellant; the appellant told her to say that she was 19 years old; she recalled he told her, in relation to the appellant’s boss, to say she was 19 or the appellant would get in trouble; when she met BRO she did not tell him she was 19 because BRO knew her real age;(k)they discussed the fact that she was under 16 and the appellant told her not to tell anyone;(l)the appellant would buy her things such as food and drinks, chocolates, lollies, flowers and cigarettes; he also bought her a mobile phone;(m)on a few occasions they had sent naked pictures to each other including pictures of her vagina[12] and breasts and his penis, and he had sent videos of himself masturbating; (n)she had ended the relationship by asking another woman (AKV) to tell the appellant she was breaking up with him; she had spent time with the appellant’s son; she had told MSW about the sexual relationship with the appellant, as well as another girl at school; AKV was 22 and was the appellant’s girlfriend, and they had a baby; she had moved into AKV’s house – she thought the appellant was in a relationship with AKV at the same time he was in a relationship with her; (o)the sexual relationship started when she was just turning 15, on 31 May 2019, and the appellant had been at her 15th birthday; she had sexual intercourse with the appellant from before her 15th birthday and it occurred almost every day, mostly in his car; and(p)she also identified a significant quantity of text messages as having been between herself and the appellant.[12]Asked if she sent closeups of her vagina she said “Kinda”.

Decision

Reasons for decision

This ground fails.Conclusion All grounds of appeal have failed. I would order:1.Appeal against conviction is dismissed.2.Application for leave to appeal against sentence is refused. DALTON JA: I agree with the order proposed by Morrison JA and with his reasons. BODDICE JA: I agree with Morrison JA.

Ratio Decidendi

Legal Principle Established

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