SUPREME COURT OF QUEENSLAND
CITATION:
R v Kelly [2021] QCA 134
PARTIES:
R
v
KELLY, James William
(appellant/applicant)FILE NO/S:
CA No 126 of 2020
DC No 41 of 2019DIVISION:
Court of Appeal
PROCEEDING:
Appeal against Conviction & Sentence
ORIGINATING COURT:
District Court at Warwick – Date of Conviction: 12 June 2020 (R v Kelly [2020] QDC 116); Date of Sentence: 19 June 2020 (Barlow QC DCJ)
DELIVERED ON:
18 June 2021
DELIVERED AT:
Brisbane
HEARING DATE:
31 May 2021
JUDGES:
Sofronoff P and Morrison JA and Flanagan J
ORDERS:
1. Appeal dismissed.
2. Application for leave to appeal against sentence refused.
CATCHWORDS:
CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – where the appellant was convicted after trial by judge alone of one count of rape – where the complainant was between six and nine years of age at the time of the offence – where the allegation was one of a single instance of digital penetration – where the appellant was the complainant’s babysitter and was approximately 67 years of age at the time of the offence – where the Crown’s evidence was largely comprised of the complainant’s pre-recorded oral testimony and oral evidence of the complainant’s preliminary complaints – where the appellant neither gave nor called evidence – whether it was open to the trial judge to accept the complainant’s evidence as honest and reliable
CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant was convicted after trial by judge alone of one count of rape – where the particulars of the offending were that the applicant digitally penetrated an eight-year-old girl while the applicant was her babysitter – where the applicant was 59 years older than the complainant – where the applicant had no criminal history, a good work record and had previously been a worthwhile member of the community – where the applicant was sentenced to a period of three years’ imprisonment – where no parole eligibility date was set – whether the sentence was manifestly excessive
Criminal Code (Qld), s 349
Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29, cited
Fleming v The Queen (1998) 197 CLR 250; [1998] HCA 68, cited
R v Harris[2021] QCA 96, applied
R v Miller[2021] QCA 126, appliedCOUNSEL:
The appellant/applicant appeared on his own behalf
C W Wallis for the respondentSOLICITORS:
The appellant/applicant appeared on his own behalf
Director of Public Prosecutions (Queensland) for the respondent
THE COURT: On 12 June 2020, his Honour Judge Barlow QC, sitting without a jury, found the appellant guilty of one count of rape. The trial was heard on 2 and 3 June 2020. His Honour published his reasons on 12 June 2020.[1] On 19 June 2020, the appellant was sentenced to three years’ imprisonment with seven days of…
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- AGLC
- R v Kelly [2021] QCA 134
- Case
- [2021] QCA 134
- Decision Date
CaseChat Overview and Summary
The court held that the appellant had failed to demonstrate that the trial judge was not open to accepting the complainant's evidence as honest and reliable. The court found that the complainant's evidence was consistent, clear, and compelling, and that there were no inconsistencies or improbabilities that would undermine its reliability. The court also held that the sentence was not manifestly excessive, noting the seriousness of the offence and the need to deter similar conduct. The court found that the sentence was appropriate and did not interfere with it.
The final orders of the court were that the appeal against conviction was dismissed, and the application for leave to appeal against sentence was also refused.
Orders
Orders of the court
1. Appeal dismissed.
2. Application for leave to appeal against sentence refused.
Background
Background to the litigation
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Evidence
Evidence Before The Court
Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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