R v Webb - [2018] QCA 102

SUPREME COURT OF QUEENSLAND

CITATION:

R v Webb [2018] QCA 102

PARTIES:

R
v
WEBB, Callum James
(appellant)

FILE NO/S:

CA No 127 of 2017
DC No 1206 of 2017

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Brisbane – Date of Conviction: 14 June 2017 (Shanahan DCJ)

DELIVERED ON:

1 June 2018

DELIVERED AT:

Brisbane

HEARING DATE:

9 February 2018

JUDGES:

Sofronoff P and Morrison and McMurdo JJA

ORDERS:

1.   Allow the appeal.

2.   Set aside the conviction.

3.   Substitute a verdict of acquittal on count three of the indictment.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – where the appellant was charged with two counts of using electronic communication with intent to procure a person the appellant believed was under the age of 16 years to engage in a sexual act (counts one and three) and one count of grooming a child under 16 by exposing, without legitimate reason, a person the appellant believed was under the age of 16 years to indecent matter (count two) – where the appellant was an adult registered to use the social networking application Grindr – where a female police officer was also registered to use Grindr under the fictitious identity of a 14 year old boy called “Mack” – where the appellant used Grindr and text messages to communicate with Mack – where Mack sent the appellant messages informing the appellant that he was 14 years old – where the appellant and Mack exchanged messages discussing a potential sexual encounter (count one) – where the appellant sent Mack an image showing an erect penis in underpants (count two) – where the appellant and Mack exchanged further messages arranging a place to meet (count 3) – where the appellant gave evidence that he believed Mack to be aged 18 years old – where the jury acquitted the appellant on counts one and two but convicted him on count three – whether it was open to the jury to reject the appellant’s evidence that he believed that Mack was aged 18

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – INCONSISTENT VERDICTS – where the appellant submitted that the evidence suggested no fact or circumstance, between the occasion the subject of count two and that the subject of count three, by which the jury, if in doubt as to count two, could have been in no doubt as to count three – where counts two and three concerned messages sent on the same day – whether anything significant occurred between the times of counts two and three from which the jury might have become satisfied, beyond a reasonable doubt, that the appellant believed Mack was aged under 16 years when the jury was not so satisfied as to the appellant’s belief at the time of count two – whether there is a way by which the different verdicts on counts two and three can…

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 Webb

Details

AGLC: R v Webb [2018] QCA 102
Case: [2018] QCA 102
Decision Date: 1 June 2018

CaseChat Overview and Summary

In the case of R v Webb, the appellant was convicted on one count of using electronic communication with intent to procure a person the appellant believed was under the age of 16 years to engage in a sexual act, contrary to the Criminal Code (Qld). The appellant was acquitted on two other counts, one of which involved grooming a child under 16 by exposing, without legitimate reason, a person the appellant believed was under the age of 16 years to indecent matter, and the other of using electronic communication with intent to procure a person the appellant believed was under the age of 16 years to engage in a sexual act. The appellant appealed against his conviction on the basis that the verdict was unreasonable or insupportable having regard to the evidence, that there were inconsistent verdicts, and that the trial judge misdirected the jury about the defence provided by s 218A(9) and s 218B(8).

The court was required to determine whether it was open to the jury to reject the appellant’s evidence that he believed Mack was aged 18 years old. The court also had to consider whether there was a way by which the different verdicts on counts two and three could be reconciled, and whether the trial judge misdirected the jury about the defence provided by s 218A(9) and s 218B(8). The court found that the appellant’s evidence that he believed Mack was aged 18 years old was credible and that the jury ought to have accepted it. The court also found that the different verdicts on counts two and three could not be reconciled, and that the trial judge misdirected the jury about the defence provided by s 218A(9) and s 218B(8).

The court allowed the appeal, set aside the conviction, and substituted a verdict of acquittal on count three of the indictment. The court found that the verdict was unreasonable or insupportable having regard to the evidence, that there were inconsistent verdicts, and that the trial judge misdirected the jury about the defence provided by s 218A(9) and s 218B(8). The court held that the appellant’s evidence that he believed Mack was aged 18 years old was credible and that the jury ought to have accepted it. The court also held that the different verdicts on counts two and three could not be reconciled, and that the trial judge misdirected the jury about the defence provided by s 218A(9) and s 218B(8). The court concluded that the appellant’s conviction on count three was unsafe and unsatisfactory and that a new trial would not be in the interests of justice.

Orders

Orders of the court

1. Allow the appeal.

2. Set aside the conviction.

3. Substitute a verdict of acquittal on count three of the indictment.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v Webb [2018] QCA 102
PARTIES:	R v WEBB, Callum James (appellant)
FILE NO/S:	CA No 127 of 2017 DC No 1206 of 2017
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	District Court at Brisbane – Date of Conviction: 14 June 2017 (Shanahan DCJ)
DELIVERED ON:	1 June 2018
DELIVERED AT:	Brisbane
HEARING DATE:	9 February 2018
JUDGES:	Sofronoff P and Morrison and McMurdo JJA
ORDERS:	1. Allow the appeal. 2. Set aside the conviction. 3. Substitute a verdict of acquittal on count three of the indictment.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – where the appellant was charged with two counts of using electronic communication with intent to procure a person the appellant believed was under the age of 16 years to engage in a sexual act (counts one and three) and one count of grooming a child under 16 by exposing, without legitimate reason, a person the appellant believed was under the age of 16 years to indecent matter (count two) – where the appellant was an adult registered to use the social networking application Grindr – where a female police officer was also registered to use Grindr under the fictitious identity of a 14 year old boy called “Mack” – where the appellant used Grindr and text messages to communicate with Mack – where Mack sent the appellant messages informing the appellant that he was 14 years old – where the appellant and Mack exchanged messages discussing a potential sexual encounter (count one) – where the appellant sent Mack an image showing an erect penis in underpants (count two) – where the appellant and Mack exchanged further messages arranging a place to meet (count 3) – where the appellant gave evidence that he believed Mack to be aged 18 years old – where the jury acquitted the appellant on counts one and two but convicted him on count three – whether it was open to the jury to reject the appellant’s evidence that he believed that Mack was aged 18 CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – INCONSISTENT VERDICTS – where the appellant submitted that the evidence suggested no fact or circumstance, between the occasion the subject of count two and that the subject of count three, by which the jury, if in doubt as to count two, could have been in no doubt as to count three – where counts two and three concerned messages sent on the same day – whether anything significant occurred between the times of counts two and three from which the jury might have become satisfied, beyond a reasonable doubt, that the appellant believed Mack was aged under 16 years when the jury was not so satisfied as to the appellant’s belief at the time of count two – whether there is a way by which the different verdicts on counts two and three can…