R v Leafe
[2022] QCA 27
•4 March 2022
SUPREME COURT OF QUEENSLAND
CITATION:
R v Leafe [2022] QCA 27
PARTIES:
R
v
LEAFE, Joshua Ronald
(appellant)FILE NO/S:
CA No 291 of 2020
DC No 41 of 2018DIVISION:
Court of Appeal
PROCEEDING:
Appeal against Conviction
ORIGINATING COURT:
District Court at Gympie – Date of Conviction: 19 November 2020 (Cash QC DCJ)
DELIVERED ON:
4 March 2022
DELIVERED AT:
Brisbane
HEARING DATE:
16 November 2021
JUDGES:
Sofronoff P and Fraser JA and Boddice J
ORDERS:
1. Leave to adduce further evidence be granted.
2. The appeal be allowed.
3. The conviction set aside.
4. There be a new trial.
CATCHWORDS:
CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST CONVICTION – PARTICULAR GROUNDS OF APPEAL – where the appellant was convicted of one count of using electronic communications to procure a child under 16 years – where the appellant denied using the account used to communicate with the child – where the appellant’s employer maintained a diary for accountancy purposes – where diary entries indicated the appellant had worked on particular days – where defence counsel failed to cross-examine the employer concerning the diary entries – whether forensic decision not to cross examine – whether there has been a miscarriage of justice – whether the appeal should succeed
COUNSEL:
R Pearce for the appellant
C W Wallis for the respondentSOLICITORS:
Butler McDermott Lawyers for the appellant
Director of Public Prosecutions (Queensland) for the respondent
SOFRONOFF P: I agree with the reasons of Boddice J and the orders proposed.
FRASER JA: I agree with the reasons for judgment of Boddice J and the orders proposed by his Honour.
BODDICE J: On 18 November 2020, a jury found the appellant guilty of one count of using electronic communications to procure a child under 16 years.
On 19 November 2020, the appellant was convicted of the offence and imprisoned for 18 months, suspended after six months, for an operational period of 18 months.
The appellant appeals that conviction. The sole ground of appeal is:
“By preventing and/or failing to place before the jury evidence of the contemporaneous diary entry of 23 September 2017, the actions of the Crown Prosecutor and Defence counsel respectively, caused the Appellant to be wrongly deprived of a realistic chance of acquittal and a miscarriage of justice resulted.”
Background
The appellant was born on 6 August 1995. He was aged 22 at the time of the offence and 25 at sentence.
The Crown case at trial was that, between 30 August 2017 and 8 October 2017, the appellant used a mobile telephone to communicate with a person he believed to be a 14 year old girl, named Ashley. In fact, Ashley was a police officer.
At trial there was no dispute that whoever was communicating with Ashley was using a Facebook account registered in the appellant’s name. At issue was whether the person communicating with Ashley was the appellant.
Trial
The evidence at trial was in short compass. The Facebook messages relied upon by the Crown were the subject of formal admission.
It was accepted at trial that the case against the appellant was entirely circumstantial as there was no direct evidence that he had sent the messages.
A particular focus at the trial was an exchange of messages on 23 September 2017. On that date, a total of 37 messages were exchanged between 11.47 am and 5.58 pm. Twenty messages were sent to Ashley between 11.47 am and 2.35 pm.
A central piece of the Crown case related to evidence of the appellant’s employment on a farm owned by a retired legal practitioner, Timothy McSweeney. He gave evidence that he operated the farm, which was adjacent to a property on which the appellant was residing at the time.
Mr McSweeney also gave evidence that there was no mobile telephone or internet service on his property. It was common ground at trial that communication via Facebook required internet access.
The Crown case was that the appellant, whilst working on a property on 23 September 2017, had the opportunity to leave to attend his own residence, where there was internet access. This opportunity was the central plank to the Crown’s circumstantial case, that the appellant had sent the relevant messages to Ashley.
Mr McSweeney gave evidence that he kept a diary for accountancy purposes. The relevance of that diary, to the issues in dispute at trial, arose in the following exchanges between the prosecutor and Mr McSweeney:
“[PROSECUTOR]: Did you keep any contemporaneous – sorry. Did you keep any notes at the time of when you had engaged Joshua Leafe?---I maintained a basic diary. It’s not a great document, but it’s a document that I keep for a number of reasons. One is to record travelling, so for accountancy, to do depreciation on vehicles. The other was to keep a rudimentary check on who worked for – and particularly in Joshua’s case. So if he did four days in a month, I would note, you know – what I used to do is I would go to Brisbane Amamoor, Amamoor Brisbane, and that would be the time that I was there, and I always tried to make sure that he was there during the time so that I had someone to work with, because I’m – I’m in my sixties and farm work’s extremely difficult. So to have someone 20 to 25 years of age doing the heavy lifting while you’re directing them around is extremely beneficial. Two men together can do the work of three men separately, so it was just – I took every advantage of engaging him whenever I could. I wouldn’t go to Amamoor if I – to be on my own. That didn’t interest me. I would only go if he was available.[1]
…
So if we return to any records that you kept, would you record that he specifically had worked a day? I mean, what sort of things would you record?---Yeah, it’s not a perfect document, as I said, but there are indications. For example, on some days when I was being particularly diligent, I’d write down, “Joshua, 8 to 5, paid cash, 120 bucks.”[2]
…
If we focus on September 2017, which I appreciate was some time ago. So when were you first asked to remember these events?---There was a previous lawyer and he asked me to do a statutory declaration, which I see you’ve got. And you gave me a copy of that today. And I did two statutory declarations. One was a character reference and the other one was relative to dates that I could reasonably confirm.
All right.
HIS HONOUR: Mr McSweeney, sorry. I’m going to jump in there. I think that the question you were asked was not about content or things you might have said?---Yep.
It was, do you remember what time it was that you were first approached by someone who said, listen, can you recall what went on in September 2017?---I can only go by the date on the stat dec. It would have been, you know, in the month or two before that.
Right?---And I’ve got that here, if you want me to - - -
No, I’ll leave it to the lawyer to ask about that?---Yeah. But there was discussion about what was going on because, you know, I didn’t actually put my mind to it until such time as it became a serious matter.”[3]
[1]AB Vol 2 128/3-16.
[2]AB Vol 2 128/29-34.
[3]AB Vol 2 131/13-34.
Mr McSweeney said he had given copies of the diary to the investigating officer and the diary indicated when he was up at the property. He recalled specific dates of 6 and 7 September as dates he was at the property.
Thereafter, the following exchange occurred:
“… Are there any other specific dates that you can remember?---Yeah. I put it in my stat dec. The - - -
Sorry. No. You can’t --- ? ---I’m sorry.
I’m sorry. You can’t look at it?---I thought you gave me that to - - -
And I can’t show it to you?---I think it was the 19th, 20th, and that date was significant because some animals got out and we spent half the day chasing them around. …”[4]
[4]AB Vol 2 131/42 – 132/27.
Defence counsel’s closing address included the following:
“You’ve heard evidence from Mr McSweeney. He owns the neighbouring property to where Mr Leafe was living and working in Amamoor. At that time, he would often get Mr Leafe to do work for him on his property. You’ve heard from Mr McSweeney and from Ben Rose, the police officer, that there was no mobile or internet on Mr McSweeney’s property at the time. You will recall Mr McSweeney made notes about that in his diary about when he worked for him so that he could pay him. One of those particular notes is from the day of Saturday the 23rd September 2017, and he indicates that that was from 8 am to 5 pm.
So at a time when Mr Leafe was working for Mr McSweeney on Mr McSweeney’s property, where there’s no mobile reception or internet, the police officer was communicating with someone using a Facebook account under Mr Leafe’s name. Mr Leafe was working on a farm with no reception, yet apparently is messaging from 2.02 through to 2.35 pm from a farm with no reception. Ladies and gentlemen, that just can’t be. And you’ll see those messages in the annexure that you will get in the jury room and that is on page 20 of 23 of that annexure.
You can see --- that’s page 20 -- the date and time is on the side here: Saturday the 23rd September from 2.02 is the first message and it continues all the way through up until the top of the next page sometime between 2.17 and 2.23. So at a time when Mr Leafe is working on Mr McSweeney’s property, he’s supposedly also sending messages from the Facebook account. …”[5]
[5]AB Vol 1 25/19-32.
At the conclusion of defence counsel’s address, the trial Judge queried the reference to a diary entry of 23 September 2017 being consistent with the evidence, noting that Mr McSweeney had only spoken specifically about the days of 6 and 7 September and 20 September 2017. The trial Judge recorded that he would not say anything further about that date in summing up, other than a reference to the broad point being made that the appellant was working at the time of some of the messages.
In his summing up, the trial Judge said the following, in relation to this aspect of the evidence:
“… [Defence Counsel] went to some of the messages contained in the annexure to exhibit 7, suggesting that there were messages sent at times when, on the evidence, you would expect the defendant to be at work and to be outside of both mobile phone and internet reception. For instance, some messages on 23 September, where there were messages at about 2 pm, a time when she said you could expect the defendant was out working. She submitted that the defendant could not have sent at least those messages, and that is something which casts doubt on the idea that he wrote any of the other messages, as well.”[6]
[6]AB Vol 1 40/40-50.
Appellant’s submissions
The appellant submits that the exchanges between the prosecutor and Mr McSweeney establishes that the prosecution was in possession of the relevant diary entries (through the investigating officer); and that the diary contained entries relevant to the issues for determination by the jury.
The appellant accepts defence counsel chose not to cross-examine Mr McSweeney about those entries. However, the appellant submits the failure to do so appeared to be due to oversight rather than the result of any forensic determination. Accordingly, there is no reason why the appellant ought not to be afforded a new trial on the basis that relevant evidence in the prosecution’s possession was withheld from the jury, thereby denying the appellant of a fair chance of acquittal.
Respondent’s submissions
The respondent submits that evidence of the actual diary entries, whilst relevant, was not admissible as there was no evidence as to the contemporaneity of the recording of entries in that diary. Accordingly, at best, the diary was a prior consistent statement and, at worst, documentary hearsay. As there was no power for the prosecutor or defence counsel to refresh Mr McSweeney’s memory from such a document, there could be no miscarriage of justice occasioned by the conduct of the prosecutor or defence counsel. Further, defence counsel was aware of the existence of the document, as evidenced by the content of her closing address and chose not to elicit that evidence in cross-examination.
In any event, the respondent submits that those records lacked such precision, in the context of Mr McSweeney’s evidence as a whole, to not be probative of a conclusion that the appellant had no opportunity to access the internet while working on the property without being noticed as being absent from the property. That conclusion is submitted to arise from a consideration of the evidence of Mr McSweeney and of Mr Cave, who shared the residence with the appellant at the relevant time.
Leave to adduce evidence
In support of the ground of appeal, the appellant sought leave to adduce an affidavit by Mr McSweeney, annexing the diary entries and a statutory declaration, both of which were referred to in his evidence at trial.
Those documents, it was submitted, supported a conclusion that had Mr McSweeney been permitted to refresh his memory from the diary entries, he would have been able to give evidence relevant and material to an issue in dispute at trial, namely, whether the appellant was working on Mr McSweeney’s property on 23 September 2017.
Having regard to their relevance, I would give leave to adduce that further evidence.
Consideration
In circumstances where the central issue at trial was whether the appellant had sent the messages and, in particular, messages on the afternoon of 23 September 2017, evidence as to the appellant’s whereabouts on that day was highly relevant. Its relevance assumed a particular significance having regard to the fact that Mr McSweeney could also give evidence that his practice in relation to the keeping of a diary was that they were to record not only the days he was at the relevant farm but also the days the appellant worked with him at the farm.
That evidence, in the context of other evidence as to the limited ability for the appellant to leave the farm whilst working with Mr McSweeney, assumed particular significance in the context of a trial where a central thrust of the Crown’s final address was that the appellant had opportunity to leave the farm to attend his residence and thereby send the communications to Ashley on the afternoon of 23 September 2017.
Whilst defence counsel did not cross-examine Mr McSweeney in relation to the relevant diary entries, defence counsel, in address, specifically sought to use those diary entries. That use is consistent with defence counsel having overlooked such cross-examination rather than a forensic decision not to cross-examine on those matters. In those circumstances, the failure to cross-examine ought not to deprive the appellant of a fair opportunity to rely upon evidence which was not only relevant but of significant importance to the jury’s determination of whether the Crown had established the appellant’s guilt of the offences beyond reasonable doubt.
Having regard to the significance of this evidence, in the context of a trial where the central issue was whether the appellant sent the relevant messages, the absence of such evidence has resulted in a miscarriage of justice in that the appellant was denied a fair chance of acquittal of the offence.
Whilst the trial Judge, in summing up, did refer to the appellant’s opportunity to leave the farm, the discussion of those matters was general in nature and did not address the particular relevance of multiple messages being sent to Ashley on 23 September 2017, in determining whether the jury could be satisfied beyond reasonable doubt that the appellant sent the communications with Ashley. Accordingly, those general references were insufficient to overcome the denial of that fair chance of acquittal.
That conclusion renders any consideration of the application of the proviso unnecessary as it cannot be said that the admission of this evidence in the context of the other evidence led at trial could not have materially weakened the strength of the case against the appellant.
Orders
I would order:
(1) Leave to adduce further evidence be granted.
(2) The appeal be allowed.
(3) The conviction be set aside.
(4) There be a new trial.
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