R v Shetty - [2005] QCA 225

SUPREME COURT OF QUEENSLAND

CITATION:

R v Shetty [2005] QCA 225

PARTIES:

R
v
SHETTY, Darshan Suresh
(appellant)

FILE NO/S:

CA No 8 of 2005
DC No 1089 of 2004

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

24 June 2005

DELIVERED AT:

Brisbane

HEARING DATE:

10 June 2005

JUDGES:

McPherson and Keane JJA and McMurdo J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

1.     Appeal against conviction allowed
2.     Conviction quashed
3.     Retrial ordered

CATCHWORDS:

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - MISDIRECTION AND NON-DIRECTION - WHERE GROUNDS FOR INTERFERENCE WITH VERDICT - PARTICULAR CASES - WHERE APPEAL ALLOWED - where appellant convicted after trial of one count of using the internet to procure a child under 16 years to engage in a sexual act contrary to s 218A Criminal Code 1899 (Qld) - where appellant had communicated with a person identified as "Kathy_volleyball" in an internet chat room - where Kathy_volleyball represented to the appellant, inter alia, that she was 14, went to high school and was a virgin - where appellant arranged to meet Kathy_volleyball in public - where it transpired that Kathy_volleyball was, in truth, a police officer - where s 218A(8) Criminal Code provides that "Evidence that a person was represented to the adult as being under the age of 16 years … is, in the absence of evidence to the contrary, proof that the adult believed the person was under that age" - where appellant gave evidence at trial that he did not believe the representations made to him by Kathy_volleyball and had no belief as to her age - where learned trial judge directed the jury that "telling you he didn't have any belief one way or another is not sufficient" and that "you proceed on the basis that he believed the person he was chatting to was under 16 years" - whether giving evidence that no belief was held as to a person's age is "evidence to the contrary" for the purposes of s 218A(8) Criminal Code

Acts Interpretation Act 1954 (Qld), s 14(1)(a)
Criminal Code 1899 (Qld), s 218A(1), s 218A(8), s 218A(9)

DPP v Hore; DPP v Askwith [2004] VSCA 192; No 7499 and No 7500 of 2003, 4 November 2004, cited

Hardman v Minehan [2003] NSWCA 130; (2003) 57 NSWLR 390, cited

R v SAO [2005] QCA 115; CA No 8 of 2005, 14 April 2005, cited

COUNSEL:

B G Devereaux for appellant
D L Meredith for respondent

SOLICITORS:

Legal Aid Queensland for appellant
Director of Public Prosecutions (Queensland) for respondent

McPHERSON JA: I agree with what has been written by Keane JA in this matter, including his Honour’s interpretation of s 218A of the Criminal Code, and in particular of s 218A(8) of it.

The appeal should be allowed; the conviction quashed;…

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 Shetty

Details

AGLC: R v Shetty [2005] QCA 225
Case: [2005] QCA 225
Decision Date: 24 June 2005

CaseChat Overview and Summary

The appeal in R v Shetty concerned the conviction of the appellant, who was found guilty of using the internet to procure a child under 16 years to engage in a sexual act. The case was heard and determined in the appellate court of Australia. The appellant had communicated with a person identified as "Kathy_volleyball" in an internet chat room. The person represented to the appellant, among other things, that she was 14 years old, attended high school, and was a virgin. Based on this communication, the appellant arranged to meet "Kathy_volleyball" in a public place. However, it later emerged that "Kathy_volleyball" was, in fact, a police officer. Section 218A(8) of the Criminal Code stipulates that evidence of a person being represented to an adult as being under 16 years is, in the absence of contrary evidence, proof that the adult believed the person was under that age. The appellant testified at trial that he did not believe the representations made to him by "Kathy_volleyball" and had no belief as to her age.

The legal issues in the appeal centred on whether giving evidence that no belief was held as to a person's age qualifies as "evidence to the contrary" within the meaning of section 218A(8) of the Criminal Code. The trial judge directed the jury that the appellant's evidence that he had no belief as to the age of "Kathy_volleyball" was not sufficient, and that the jury should proceed on the basis that the appellant believed she was under 16 years. The court had to determine whether this direction to the jury was appropriate, and whether it constituted a misdirection or non-direction that warranted interference with the verdict. The court also had to consider whether there were any other grounds to interfere with the verdict.

The appellate court found that the trial judge's direction to the jury was a misdirection, as it effectively disregarded the appellant's evidence and required the jury to proceed on an assumption that was not supported by the evidence. The court held that the appellant's evidence that he had no belief as to the age of "Kathy_volleyball" was indeed "evidence to the contrary" within the meaning of section 218A(8) of the Criminal Code. The court concluded that the misdirection had a significant effect on the outcome of the trial and that there were no other grounds to interfere with the verdict. The appeal against conviction was allowed, the conviction was quashed, and a retrial was ordered.

Orders

Orders of the court

1. Appeal against conviction allowed

2. Conviction quashed

3. Retrial ordered

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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CITATION:	R v Shetty [2005] QCA 225
PARTIES:	R v SHETTY, Darshan Suresh (appellant)
FILE NO/S:	CA No 8 of 2005 DC No 1089 of 2004
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	24 June 2005
DELIVERED AT:	Brisbane
HEARING DATE:	10 June 2005
JUDGES:	McPherson and Keane JJA and McMurdo J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDER:	1. Appeal against conviction allowed 2. Conviction quashed 3. Retrial ordered
CATCHWORDS:	CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - MISDIRECTION AND NON-DIRECTION - WHERE GROUNDS FOR INTERFERENCE WITH VERDICT - PARTICULAR CASES - WHERE APPEAL ALLOWED - where appellant convicted after trial of one count of using the internet to procure a child under 16 years to engage in a sexual act contrary to s 218A Criminal Code 1899 (Qld) - where appellant had communicated with a person identified as "Kathy_volleyball" in an internet chat room - where Kathy_volleyball represented to the appellant, inter alia, that she was 14, went to high school and was a virgin - where appellant arranged to meet Kathy_volleyball in public - where it transpired that Kathy_volleyball was, in truth, a police officer - where s 218A(8) Criminal Code provides that "Evidence that a person was represented to the adult as being under the age of 16 years … is, in the absence of evidence to the contrary, proof that the adult believed the person was under that age" - where appellant gave evidence at trial that he did not believe the representations made to him by Kathy_volleyball and had no belief as to her age - where learned trial judge directed the jury that "telling you he didn't have any belief one way or another is not sufficient" and that "you proceed on the basis that he believed the person he was chatting to was under 16 years" - whether giving evidence that no belief was held as to a person's age is "evidence to the contrary" for the purposes of s 218A(8) Criminal Code Acts Interpretation Act 1954 (Qld), s 14(1)(a) Criminal Code 1899 (Qld), s 218A(1), s 218A(8), s 218A(9) DPP v Hore; DPP v Askwith [2004] VSCA 192; No 7499 and No 7500 of 2003, 4 November 2004, cited Hardman v Minehan [2003] NSWCA 130; (2003) 57 NSWLR 390, cited R v SAO [2005] QCA 115; CA No 8 of 2005, 14 April 2005, cited
COUNSEL:	B G Devereaux for appellant D L Meredith for respondent
SOLICITORS:	Legal Aid Queensland for appellant Director of Public Prosecutions (Queensland) for respondent