R v Shetty

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.