R v Kelly

Case [2021] QCA 134

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 2019

DIVISION:

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, applied

COUNSEL:

The appellant/applicant appeared on his own behalf
C W Wallis for the respondent

SOLICITORS:

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

  1. 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 appellant, in this case, was convicted of raping a girl between the ages of six and nine years old. The complainant was the only witness for the prosecution, providing pre-recorded oral testimony and recounting preliminary complaints. The appellant, who was the complainant's babysitter at the time of the offence, did not give or call any evidence. The appellant appealed against the conviction and sentence, arguing that the verdict was unreasonable and that the sentence was manifestly excessive. The court was required to determine whether the trial judge could have accepted the complainant's evidence as honest and reliable and whether the sentence was manifestly excessive.

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

The Court further stated:“An appellant who contends that the verdict of the jury was unreasonable or that it was unsupported by the evidence must identify the weaknesses in the evidence and must then also demonstrate that these weaknesses reduced the probative value of the evidence in such a way that the appellate court ought to conclude that even making full allowance for the advantages enjoyed by the jury there is a significant possibility that an innocent person has been convicted.”[8](a)Examination of the evidence(i)The complainant’s evidence[8]R v Miller [2021] QCA 126, [18] (emphasis in original). When the offence occurred, the complainant was between six and nine years of age. Her evidence consisted of a video recording of a police interview conducted on 14 September 2017 which was admissible under s 93A of the Evidence Act 1977 (Qld) and a video recording of her evidence in court on 21 November 2019 pursuant to, and in accordance with, s 21AK. The complainant told police that she had spoken to the chaplain at her school on the Tuesday prior to the interview. She said that she told the chaplain that the appellant had been touching her body.[9] She said that, because her mother was working at the time, the appellant and his wife would collect her (and, on occasions, her brother) from school. The appellant and his wife would care for her at their residence until her mother collected her.[10][9]RB124.112-116.[10]RB125.166-126.213. The complainant’s description of the offending during the police interview was as follows. The offending occurred in the loungeroom of the appellant’s house. The appellant was watching television on a reclining chair. Her two brothers were at the house but were asleep and her mother was still at work. The appellant’s wife was cooking dinner in the kitchen. The complainant approached the appellant, sat on his lap and cuddled with him. The appellant then put his hand inside the complainant’s long pants. He told her that he used to do this when she was little. The appellant put his hand through the side of her pants and down her underwear. His hand was touching her vagina and rubbing inside her “private part”.[11] The appellant had used his “pointing finger” when rubbing inside her vagina.[12] She did not experience any pain when the appellant’s finger was inside her vagina.[13] When this happened, the complainant jumped down from the recliner and went into one of the bedrooms where she waited for her mother to arrive.[11]RB130.381-387.[12]RB134.556-560.[13]RB134.562-569. The complainant’s recollection was that she thought she had told her grandmother, but that she may have only said to her grandmother that she was scared of the appellant.[14][14]RB127.229-231; RB130.397-407. The complainant told police that, following the offending, she had further contact with the appellant but attempted to avoid him on those occasions.[15] She said that, sometime after the offending, the complainant’s mother and the appellant had an argument and that this was the last occasion on which the complainant had contact with the appellant.[16][15]RB131.449-132.460.[16]RB132.475-477.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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