R v Matthews - [2015] QCA 82

SUPREME COURT OF QUEENSLAND

CITATION:

R v Matthews [2015] QCA 82

PARTIES:

R
v
MATTHEWS, Glen Edward
(appellant)

FILE NO/S:

CA No 258 of 2013
DC No 180 of 2013

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Brisbane – Unreported, 16 September 2013

DELIVERED ON:

12 May 2015

DELIVERED AT:

Brisbane

HEARING DATE:

25 February 2015

JUDGES:

Margaret McMurdo P and Gotterson JA and Peter Lyons J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.   Allow the appeal.

2.   Set aside the conviction on Count 1 on the indictment presented against the appellant on the 7th February 2013.

3.   Enter a verdict of acquittal on the said Count 1.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL ALLOWED – where the appellant was convicted of an offence under s 218A(1)(b) of the Criminal Code in that he, being an adult, used electronic communication with intent to expose, without legitimate reason, a person he believed was under 16 years of age, to indecent matter – where the appellant was sentenced to 18 months’ imprisonment suspended after serving four months for an operational period of two years – where the appellant committed an indecent act in front of a webcam whilst in communication with a fictitious persona named Cilla Braxton – where the fictitious persona Cilla Braxton was set-up and operated by the QPS as part of Task Force Argos – where the appellant provided evidence that he held the belief that he was in communication with a person over the age of 16 years – whether there was a failure on the part of the prosecution to prove a necessary element of the charge, namely, that the appellant believed the person he was communicating with was under 16 years of age

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – IMPROPER ADMISSION OR REJECTION OF EVIDENCE – where Exhibit 1 tendered at trial did not reproduce a profile page on the motherless.com website at the time of the alleged offending – where Exhibit 1 contained a number of profile comments made by third parties after the date of the alleged offending – where no objection was taken to the tender of Exhibit 1 at trial and no direction was sought by defence counsel with respect to them – whether those comments made by third parties were highly prejudicial to the appellant such that a miscarriage of justice occurred, was substantial, and was beyond the application of the proviso in s 688E(1A)

Criminal Code 1899 (Qld), s 218A(1), s 218A(1)(B), s 218A(8), s 218A(9), s 688E(1A)

R v Shetty [2005] 2 Qd R 540; [2005] QCA 225, applied

COUNSEL:

J Shepley for the appellant (pro bono)
B J Power for the respondent

SOLICITORS:

No appearance for the appellant
Director of Public Prosecutions (Queensland) for…

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 Matthews

Details

AGLC: R v Matthews [2015] QCA 82
Case: [2015] QCA 82
Decision Date: 12 May 2015

CaseChat Overview and Summary

The appeal before the court involved the appellant, who had been convicted under s 218A(1)(b) of the Criminal Code for using electronic communication with intent to expose a person he believed to be under 16 years of age to indecent matter. The appellant was sentenced to 18 months’ imprisonment, suspended after serving four months, for an operational period of two years. The conviction arose from an incident where the appellant engaged in an indecent act in front of a webcam while communicating with a fictitious persona named Cilla Braxton, operated by the QPS as part of Task Force Argos. The central issues in the appeal were whether the prosecution had failed to prove the necessary element of the charge that the appellant believed the persona was under 16 years of age, and whether the admission of certain prejudicial evidence led to a miscarriage of justice.

The court found that a miscarriage of justice did occur due to the improper admission of Exhibit 1, which contained profile comments made by third parties after the date of the alleged offending. The court concluded that the comments were highly prejudicial and led to a substantial miscarriage of justice, beyond the application of the proviso in s 688E(1A). The court also determined that there was insufficient evidence to prove beyond reasonable doubt that the appellant believed the persona was under 16 years of age. The prosecution had not excluded the possibility that the appellant believed the persona to be at least 16 years old, as indicated by various pieces of evidence including the age profile on the website, the photographic image, and the appellant’s statements during the live chat and police interview.

The court allowed the appeal and set aside the conviction on Count 1 of the indictment. A verdict of acquittal was entered on Count 1, reflecting the court’s finding that the prosecution had not proven the necessary elements of the charge. The orders of the court included the allowance of the appeal, the setting aside of the conviction, and the entry of a verdict of acquittal on the said Count 1.

Orders

Orders of the court

1. Allow the appeal.

2. Set aside the conviction on Count 1 on the indictment presented against the appellant on the 7th February 2013.

3. Enter a verdict of acquittal on the said Count 1.

Background

Background to the litigation

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Evidence

Evidence Before The Court

In my view, a miscarriage of justice did occur because of the tender of Exhibit 1. The miscarriage of justice was substantial. It is beyond the application of the proviso in s 668E(1A). For these reasons, this ground of appeal must succeed.The weight of evidence ground of appeal As developed in oral argument, this ground of appeal contends that there was a failure on the part of the prosecution to prove a necessary element of the charge, namely, that the accused believed that the Cilla Braxton persona was under 16 years of age. To adapt the test formulated by Keane JA in Shetty, the prosecution had not excluded beyond reasonable doubt evidence tendered in its own case of a belief on the appellant’s part that the persona was at least 16 years of age. An assessment of whether the prosecution discharged that onus requires a comparison of the evidence relevant to the topic. The evidence supporting the existence of a belief on the appellant’s part that the persona was at least 16 years old consisted of the following. He had located the cilla14brisbane page on an adult pornographic website where some adults may pretend to be teenagers as part of a virtual sexual fantasy; those using that site must enter an age over 18 years; the Exhibit 18 photographic image of “Cilla Braxton” which he accessed via the Windows Live website, depicted a female adult in a bikini apparently over 16 years of age; the messages authored by him on 30 March 2012 clearly indicate that he thought that the person with whom he was corresponding was the person depicted in the Exhibit 18 photographic image; and, during the live chat which ensued that day, he referred again to the “tog pics” and expressed disbelief that his correspondent was 14 years old, saying that she was “more like 18+”. In addition, the appellant consistently told police in the interview that he did not believe that the persona was 14 years old. That the appellant in truth believed that the Cilla Braxton persona was under 16 years of age or, if not that, that he had reason to question his belief that she was at least 16 years of age, is suggested by other aspects of the evidence. The Windows Live profile page accessed by the appellant stated an age of 14 years and a birth date consistent with that age; the persona with whom he was corresponding twice professed no knowledge of a picture of herself in togs; on three occasions during the live chat, the persona said she was 14 years old; the photographic images, Exhibits 9, 11, 13 and 15 which appear to be of the same person and were sent by the persona to the appellant during the live chat, depicted a teenage girl who could have been under 16 years of age; and the appellant asked about the persona’s parents not knowing that she was online. To that may be added, if the sexual fantasy hypothesis is rejected, puzzlement that one might expect the appellant to have experienced over why it would be that someone whom he thought was 18 years old or older would insist that she was only 14 years old.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v Matthews [2015] QCA 82
PARTIES:	R v MATTHEWS, Glen Edward (appellant)
FILE NO/S:	CA No 258 of 2013 DC No 180 of 2013
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	District Court at Brisbane – Unreported, 16 September 2013
DELIVERED ON:	12 May 2015
DELIVERED AT:	Brisbane
HEARING DATE:	25 February 2015
JUDGES:	Margaret McMurdo P and Gotterson JA and Peter Lyons J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. Allow the appeal. 2. Set aside the conviction on Count 1 on the indictment presented against the appellant on the 7th February 2013. 3. Enter a verdict of acquittal on the said Count 1.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL ALLOWED – where the appellant was convicted of an offence under s 218A(1)(b) of the Criminal Code in that he, being an adult, used electronic communication with intent to expose, without legitimate reason, a person he believed was under 16 years of age, to indecent matter – where the appellant was sentenced to 18 months’ imprisonment suspended after serving four months for an operational period of two years – where the appellant committed an indecent act in front of a webcam whilst in communication with a fictitious persona named Cilla Braxton – where the fictitious persona Cilla Braxton was set-up and operated by the QPS as part of Task Force Argos – where the appellant provided evidence that he held the belief that he was in communication with a person over the age of 16 years – whether there was a failure on the part of the prosecution to prove a necessary element of the charge, namely, that the appellant believed the person he was communicating with was under 16 years of age CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – IMPROPER ADMISSION OR REJECTION OF EVIDENCE – where Exhibit 1 tendered at trial did not reproduce a profile page on the motherless.com website at the time of the alleged offending – where Exhibit 1 contained a number of profile comments made by third parties after the date of the alleged offending – where no objection was taken to the tender of Exhibit 1 at trial and no direction was sought by defence counsel with respect to them – whether those comments made by third parties were highly prejudicial to the appellant such that a miscarriage of justice occurred, was substantial, and was beyond the application of the proviso in s 688E(1A) Criminal Code 1899 (Qld), s 218A(1), s 218A(1)(B), s 218A(8), s 218A(9), s 688E(1A) R v Shetty [2005] 2 Qd R 540; [2005] QCA 225, applied
COUNSEL:	J Shepley for the appellant (pro bono) B J Power for the respondent
SOLICITORS:	No appearance for the appellant Director of Public Prosecutions (Queensland) for…