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R v Addley

 

[2018] QCA 125

 

SUPREME COURT OF QUEENSLAND

 

CITATION:

R v Addley [2018] QCA 125

PARTIES:

R
v
ADDLEY, Christopher Kevin
(appellant)

FILE NO/S:

CA No 278 of 2017

DC No 1972 of 2016

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Brisbane – Date of Conviction: 16 November 2017 (Shanahan DCJ)

DELIVERED ON:

19 June 2018

DELIVERED AT:

Brisbane

HEARING DATE:

17 May 2018

JUDGES:

Sofronoff P and Fraser and Philippides JJA

ORDERS:

  1. Appeal allowed.
  2. The verdict on count 2 is quashed.
  3. A retrial on count 2 is ordered.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – PARTICULAR CASES – WHERE APPEAL ALLOWED – where 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 – where the appellant was a user of the adult social networking application Grindr – where the appellant communicated, via Grindr, with a female police officer posing as a fictitious 14 year old boy named “Mack Jones” – where the appellant and Mack exchanged messages pertaining to a prospective sexual encounter – where Mack communicated to the appellant that he was 14 years old – where the appellant and Mack arranged to meet in person – where the appellant gave evidence that he believed Mack to be 18 years old and that he believed that Mack’s claims that he was 14 years old were part of a sexual fantasy roleplay – where criminal responsibility under s 218A and s 218B of the Criminal Code (Qld) can arise where in fact the other person is under the age of 16 years, or where the accused believes that the other person is under the age of 16 years – where s 218A(9) and s 218B(8) provide a defence to a charge under s 218A or s 218B, respectively, where an accused can prove that they believed on reasonable grounds that the person was at least 16 years – where Mack was a fictitious person and so the basis of the appellant’s criminal responsibility was his belief about Mack’s age, rather than Mack’s actual age – where the trial judge directed the jury that the defence under s 218A(9) would apply if the appellant could prove that he believed on reasonable grounds that Mack was at least 16 years of age – where, in a case in which the other person is not in fact under the age of 16 and so a contravention of the provision is due to the accused’s belief that the other person is under 16, the defence under s 218A(9) cannot be of relevance, because it would only be made out in circumstances where the elements of the offence itself are not satisfied – where the direction to the jury to consider the defence under s 218A(9) was a misdirection – where the defence under s 218A(9) requires that the belief that the other person was at least 16 years of age be based on reasonable grounds but the belief required under the offence in s 218A(1) has no regard to the reasonableness or otherwise of the accused’s belief – whether the giving of the direction by the trial judge that s 218A(9) was an available defence was likely to have confused the jury and/or led them into an impermissible path of reasoning, such that a substantial miscarriage of justice was occasioned

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

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

R v Webb [2018] QCA 102, cited

COUNSEL:

B J Power for the appellant

C W Heaton QC for the respondent

SOLICITORS:

Legal Aid Queensland for the appellant

Director of Public Prosecutions (Queensland) for the respondent

  1. SOFRONOFF P:  The appellant frequented a website called “Grindr”.  This website is used by gay or bisexual men to contact each other with a view to forming sexual relationships.  Although the website states that it is a condition of use that the user be 18 years old or older, there is no requirement to verify a user’s age.
  2. On 8 December 2015 one of these users appeared to be Mack Jones, but he did not exist.  He was a persona to hide the identity of the real person accessing the site.  This was Detective Sergeant Catherine Ford who was working with the Child Safety Sexual Crimes Group within Queensland Police.  Users of Grindr establish an account to which he can attach a “profile” containing such personal details as he wishes to publicise.  Detective Sergeant Ford’s “Mack Jones” profile gave out no more information than the purported name and that Mack Jones was 18 years old.  There was a photograph showing the rear of a well-toned young man’s head and shoulders.  He might have been 18 or he might have been younger.
  3. On 8 December the appellant contacted Mack Jones on Grindr.  The appellant’s own profile revealed his actual name, his photograph and a description of him as “white, muscular, 178cm and 110kg”.
  4. After some initial greetings the appellant asked Mack Jones whether he “Got pics” to which Detective Sergeant Ford replied “Not reely … don’t want anyone knowing im on hre …”.
  5. The appellant then began writing messages with an explicit sexual content.  At 4.03 pm he sent:

“I love hot discreet fun.”

  1. He sent a photograph of his own erect penis.  He asked Mack Jones to send him a “cock” pic.  Detective Sergeant Ford replied “Hmm, in the mall haha, bit hard”.  The appellant asked whether he had any photographs on his phone but Detective Sergeant Ford replied “No new phone yesterday …”.
  2. She then immediately sent a further message saying:

“Well new to all this so experimenting if u know what i mean … im not 18 hey.”

  1. That message was sent at 4.12 pm and the following exchange then took place:

“APPELLANT:  What are u into

DETECTIVE SERGEANT FORD:  Just Fooled around with one dud at school is all …

APPELLANT:  Did u play with he’s cock and suck it

DETECTIVE SERGEANT FORD:  Yeh

APPELLANT:  Did he blow

DETECTIVE SERGEANT FORD:  Don’t say anything hey…only 14 almost 15…yeah he did

The appellant then sent two images.

The exchange continued:

DETECTIVE SERGEANT FORD:  Nice

APPELLANT: My x bf isn’t out muscle boy 25

DETECTIVE SERGEANT FORD:  Okay cool

APPELLANT:  U like he’s cock

DETECTIVE SERGEANT FORD:  Yeh course

APPELLANT:  Would u blow him and fuck him

DETECTIVE SERGEANT FORD:  Yeh…haven’t fucked anyone yet…

DETECTIVE SERGEANT FORD:  Sounds stupid hey

APPELLANT:  Lol no not really

DETECTIVE SERGEANT FORD:  Shutup lol

DETECTIVE SERGEANT FORD:  Still there??

APPELLANT:  Yeah man sorry just getting stuff out for gym

DETECTIVE SERGEANT FORD:  K…

APPELLANT:  So are u keen to fool around nothing serious

APPELLANT:  (image sent)

APPELLANT:  (image sent)

DETECTIVE SERGEANT FORD:  Yeh guess so hey

APPELLANT:  I’m discreet straight acting

DETECTIVE SERGEANT FORD:  Sweet

APPELLANT:  I’d go with the flow nothing full on but keen to let u fool around with me and take it as it comes

DETECTIVE SERGEANT FORD:  Okay…what would u wanna do with me man

APPELLANT:  I’d love to chill watch movie fool around letting u rub my cock and balls and I’d do the same take it as it comes

APPELLANT:  I love rimming and foreplay

APPELLANT:  Would u be into that

DETECTIVE SERGEANT FORD:  Hmmm sweet…as long as u don’t care bout me bein 14 hey…not experienced like u man…

APPELLANT:  I’m open to anything with u one on one discreet

DETECTIVE SERGEANT FORD:  Sounds good man.”

  1. The conversation continued until just after 7.30 pm.  During that period “Mack” informed the appellant that he was not able to drive and that he lived with his parents who believed that he was out with friends.  “Mack” said that he was inexperienced and nervous.  The appellant replied:

“Trust me u don’t need to be nervous.”

  1. He received this reply:

“Sweet sounds like me…as long as ur cool with an inexperienced 14 yo lol.”

  1. The appellant replied, “Lol”.
  2. The appellant agreed to meet “Mack” outside Hungry Jacks in the Queen Street mall.  When he went there he was arrested.
  3. None of this evidence was challenged.
  4. The appellant gave evidence.  He said that he believed that “Mack Jones” was 18 years old.  He said that he believed this because the website was only open to people 18 years old and older and because “Mack” had said he was 18 years old.  “Mack’s” profile picture did not suggest to the appellant that “Mack” was younger than 18.  He said that a lot of people “basically state their age and then, you know, turn it into role-play of changing things to get gratification of something in a sexual way”.  He said that this “happens all the time”.
  5. The indictment against the appellant contained two counts.  Count 1 alleged that the appellant, being an adult, engaged in conduct in relation to “Mack Jones”, a person whom the appellant believed to be under 16 years, with intent to expose “Mack Jones” to indecent matter without legitimate reason.  Although a document described as “particulars” was marked for identification, that document contains nothing more than a restatement of the two counts on the indictment.  It appears, however, that the parties understood that this charge concerned the appellant’s conduct in sending two images of himself at 4.39 pm.  The first of these photos showed the upper part of the appellant’s body.  The appellant was wearing trousers but no shirt.  The second photograph also showed the upper part of the appellant’s body but, on this occasion, he was wearing a blue singlet.
  6. The second charge alleged that the appellant used electronic communication with intent to procure “Mack Jones”, a person the appellant believed was under 16 years, to engage in a sexual act.
  7. The jury acquitted the appellant on count 1 and found him guilty on count 2.
  8. Section 218A of the Criminal Code provides, relevantly:

“(1) Any adult who uses electronic communication with intent to procure a person under the age of 16 years, or a person the adult believes is under the age of 16 years, to engage in a sexual act, either in Queensland or elsewhere, commits a crime.

Maximum penalty – 10 years imprisonment.

  1. The adult is liable to 14 years imprisonment if –
  1. the offence involves the adult –
  1. going to a place with the intention of meeting the person.

  1. For subsection (1), it does not matter that the person is a fictitious person represented to the adult as a real person.
  1. Evidence that the 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.
  1. It is a defence to a charge under this section to prove the adult believed on reasonable grounds that the person was at least 16 years.”
  1. Section 218B provides, relevantly:

“(1) Any adult who engages in any conduct in relation to a person under the age of 16 years, or a person the adult believes is under the age of 16 years, with intent to –

  1. expose, without legitimate reason, the person to any indecent matter, either in Queensland or elsewhere;

commits a crime;

  1. For subsection (1), it does not matter that the person is a fictitious person represented to the adult as a real person.
  1. Evidence that the 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.
  1. It is a defence to a charge under this section to prove the adult believed on reasonable grounds that the person was at least 16 years.
  1. It can be seen that ss 218A and 218B each provide for two difference offences.  The first offence has an element that the relevant person is actually under the age of 16 years.  The second offence has as its central element that the accused believes that the relevant person is under the age of 16 years.
  2. In the case of an offence against ss 218A or 218B concerning a person who is actually under the age of 16 years the offence is established irrespective of any belief held by the accused.  The Crown must prove the use of electronic communication with an intention to procure a person to engage in a sexual act and must prove that that person is actually aged under 16 years.  The accused’s belief is irrelevant unless the accused invokes the defence provided for by subsections 218A(9) and 218B(8) respectively.
  3. Unlike s 24 of the Criminal Code, which also concerns a reasonably based mistaken belief, these defences place the onus of proof upon the accused.  Section 24 is a matter for the Crown to disprove.
  4. The defences afforded by ss 218A(9) and 218B(8) are not novel.  They have existed for many years in the case of other sexual offences against young persons.  For example, it is a defence to a charge of sodomy against a person under the age of 18 for the accused to prove pursuant to s 208(3) that he believed, on reasonable grounds, that the person in respect of whom the offence was committed was 18 years of age or older.  Similarly, s 215 which creates the offence of having or attempting to have unlawful carnal knowledge of a child under 16 years affords a defence under subsection (5) if the accused proves that he or she believed, on reasonable grounds, that the child was 16 years or older.
  5. On the other hand, the second offence in ss 218A and 218B includes as an element that the person whom the accused intended to procure to engage in a sexual act was “a person the [accused] believes is under the age of 16 years”.  This is a fact which the prosecution must establish beyond a reasonable doubt in the ordinary way.
  6. Although ss 218A(9) and 218B(8) purport to furnish defences “to a charge under this section”, it is plain that these defences can only be invoked by a person charged with the offence in which it is an element that the person against whom the offence was committed was in fact under the age of 16 years.  There could be no occasion for a person charged with the second offence to invoke a defence placing a burden on the accused to prove a state of mind when the onus is already on the Crown to prove state of mind.
  7. But for the addition of the second offence into ss 218A and 218B, those provisions would have been direct analogues of ss 208 and 215 to which I have referred.  The inclusion of the second offence into a provision that already contains one offence has the appearance of a policy afterthought, a process in which no consideration was then given to the coherence as a whole of the draft sections afterwards.  This could explain the choice of language.  The expression “a charge under this section” raises the problem that confronted Shanahan DCJ because “a charge” might refer to either offence.
  8. In R v Shetty[1] Keane JA, with whom McPherson JA and McMurdo J agreed, explained the relationship between the offence provisions and the defence provisions as follows:

[13] Section 218A(8) and (9) are to be understood in terms of their association with the operative part of s 218A, which is to be found in s 218A(1). An analysis of s 218A(1) shows that the section creates an offence where:

  1. an adult;
  1. uses electronic communication;
  1. with intent to do an act in relation to a person:
  1. who is in fact under the age of 16 years or 12 years, as the case may be ("the age element"); or
  1. who the adult believes is under the age of 16 years or 12 years, as the case may be ("the belief element").

[14] Where the Crown fails to prove either the factual element or the belief element, a prima facie contravention of s 218A(1) is not made out. Where a prima facie case is not made out there is no need to resort to the defence provided by s 218A(9). Where the belief element is not established by the Crown, the Crown will not have proved a prima facie case of a contravention of s 218A(1) unless the Crown establishes the factual element. Therefore, the only occasion for s 218A(9) to operate "as a defence" is where a prima facie case of a contravention of s 218A is made out, ie where the factual element is proved by evidence that the person is in fact under 16 years or 12 years of age.”

  1. In this appeal the Crown correctly accepted that this was the correct construction of these provisions.  Shetty was applied in R v Webb.[2]
  2. After the evidence in the case had concluded Shanahan DCJ invited counsel to address him about the directions he should give the jury concerning these defences.  His Honour was concerned about two matters.
  3. First, his Honour expressed the view, with respect rightly, that the defence sections were not expressed in a way that would limit their application to only one of the offences created by ss 218A(1) and 218B(1) respectively.  Counsel gave him no assistance on this point of construction.  Neither counsel referred his Honour to Shetty, although reference to that case would immediately have avoided the problems that then arose.  Defence counsel submitted that it “was only older authority which sought to limit [the defences to cases of an actual person] but that’s, as your Honour said, not the wording of the section”.  This “older authority” was not named but it must have involved a misreading of Shetty.
  4. Second, it is clear from his Honour’s comments, during the course of submissions and from his summing up, that his Honour was concerned to ensure that the appellant was not disadvantaged by being denied an available defence.
  5. The position of defence counsel was that the direction ought to be given.  The prosecutor’s position was merely to take no objection to a direction that the defence was applicable.  Neither counsel gave the matter any consideration at all, as far as can be gleaned from the transcript, and so his Honour was not given the assistance to which he was entitled.
  6. As a result, Shanahan DCJ directed the jury in relation to count 1 as follows:

“Now, as I said, our law also provides a specific defence to this charge.  It is a defence for the defendant to prove, on the balance of probabilities, that the defendant believed on reasonable grounds that the person was at least 16.  So our law provides an actual defence to this charge.  Having said that it is a defence, the onus is then on the defendant to actually prove that defence, but the standard that he has to achieve is a lesser one.  It’s the civil standard of proof known as the balance of probabilities, that is, it’s more probable than not.  So it’s not the standard of beyond reasonable doubt.  The defence is to the standard of the balance of probabilities.  So there’s an onus on the defendant, if he wants to raise this defence, to actually establish it on the balance of probabilities, and what he has to prove on the balance of probabilities is that he believed, on reasonable grounds, that the person was at least 16.

Now, this defence is also raised as a result of the defendant’s evidence before you.  His evidence is plainly that he believed the person was age 18.  What you need to consider is whether he has established, on the balance of probabilities, that that defence is made out, in other words, that he believed on reasonable grounds that the person was at least 16.  He specifically gave evidence that he did not so believe, and his evidence was based on the fact that the platform was an adult dating site that people had to assert that they were at least 18 years of age to access it, that a profile was created that he accessed in relation to this Mack Jones, which indicated that he was 18.  His evidence is that whatever was later said didn’t change his mind that he believed the person he was communicating with was at least 18 years of age.

If you accept his evidence on the balance of probabilities, that is, that it’s more probable than not that he believed that the person was at least 16, that’s the end of the matter.  His defence is established, and you would find him not guilty.  If you don’t find that, however, you still need to return to the Crown case, because the Crown have to convince you beyond reasonable doubt that he believed the person was under 16.  So it’s a bit of a complex picture, I suppose, ladies and gentlemen.  The best way to approach it, I would have thought, is to consider whether the defence had made out the defence, and if they had not, then you return to the Crown case to see whether the Crown have proved its case beyond a reasonable doubt, although it’s the same issue.  The Crown have got to prove beyond a reasonable doubt the accused’s belief that the person he was communicating with was under 16.”

  1. His Honour gave similar directions in relation to count 2:

“No offence against the provision is committed unless the defendant has been proved beyond reasonable doubt to have intended to procure a person the defendant believed to be under 16.  So, as I say, it’s this element which is in issue in relation to this charge as well.  But, again, in relation to this particular offence, the law provides the same defence.  In other words, it is a defence for the defendant to prove on the balance of probabilities that the defendant believed on reasonable grounds that the person was at least 16.  To prove that, there is an onus upon the defendant, because it is a defence, and the defendant must prove again, on the balance of probabilities that he believed on reasonable grounds that the person was at least 16.  As I say, that’s the civil standard of proof.  It means more probable than not, and it’s a lesser standard than that is on the Crown of beyond a reasonable doubt.

Again, you’ve got the defendant’s evidence to that effect.  Whether you accept his evidence or not is a matter for you.  If you accept his evidence on the balance of probabilities that he believed, on reasonable grounds, that the person was at least 16, you would find him not guilty.  Again, even if you reject his evidence as to that, the prosecution must still establish beyond reasonable doubt that he had a belief that the person was under 16.  And, again, as I say, it’s this element which is in issue.  So, again, I would have thought the logical way to deal with this charge is firstly to consider the defence.  If the defence is made out on the balance of probabilities, you would find the defendant not guilty.

If you reject his evidence, then you still need to consider the prosecution case to decide whether the prosecution has proved beyond reasonable doubt that he believed the person was under the age of 16.  Now, although it’s the same issue, there are two ways of approaching it, quite frankly.  Firstly, the defendant’s defence, and, secondly, whether the prosecution has proved this element beyond a reasonable doubt.  So, again, it’s the same issue in reality as is contained in the first charge.”

  1. A little more than an hour after the jury had retired, Shanahan DCJ received a message that said:

“What is the consequence of failing to prove the defence, on the balance of probabilities, that [the appellant] thought Mack was over 16?”

  1. The correct answer was that the defence was a red herring and had no bearing whatsoever upon the task that the jury had to perform.
  2. His Honour directed the jury as follows:

“As I say, that’s a defence that can be established by the defendant on the balance of probabilities.  If you were to reject that defence then, obviously, it hasn’t been made out to the required standard.  But, then, you need to look at the prosecution case to see whether the prosecution has proved, beyond reasonable doubt, that he believed the person was under the age of 16.  So it’s not the end of the matter if you reject the defence, you then have to consider all the evidence in the trial to see if the Crown has proved beyond reasonable doubt that he believed the child, the person, was under the age of 16.”

  1. On a number of occasions during the summing up Shanahan DCJ had observed that belief as an element of the defence and belief as an element of the offence were “the same issue”.  Thus, after telling jury that if they rejected the appellant’s evidence they had then to consider whether the prosecution had proved the necessary element, his Honour directed that “although it’s the same issue, there are two ways of approaching it, quite frankly”, namely, on the one hand, the element that the prosecution had to prove and, on the other hand, “the defendant’s defence”.
  2. It is accepted by the Crown in this appeal that these were misdirections.  However, the Crown submits that these misdirections did not result in a substantial miscarriage of justice.  In my view they did for the following reasons.
  3. The paths to verdicts of guilty and not guilty are different in the two categories of offence.
  4. In the case of a fictional person, as here, the possibilities for the jury were:
    1. The jury is satisfied that the accused believed on reasonable grounds that the person was at least 16: a verdict of acquittal.
    2. The jury is satisfied that the accused believed, but without reasonable grounds, that the person was at least 16: a verdict of acquittal.
    3. The jury is satisfied that the accused had no belief one way or the other: a verdict of acquittal.
    4. The jury is not satisfied that the accused believed the person was under 16: a verdict of acquittal.
    5. The jury is satisfied that the accused actually believed that the accused was under 16: a verdict of guilty.
  5. In the case of a real person under the age of 16 in which the defence is raised, the possibilities are:
    1. The jury is satisfied that the accused believed on reasonable grounds that the person was at least 16: verdict of acquittal.
    2. The jury is satisfied that the accused believed, but without reasonable grounds, that the person was at least 16: verdict of guilty.
    3. The jury is satisfied that the accused had no belief one way or another: verdict of guilty.
    4. The jury is not satisfied that the accused believed that the person was under 16: verdict of guilty.
    5. The jury is satisfied that the accused actually believed that the person was under 16: verdict of guilty.
  6. The clumping of these two distinct paths together was an invitation to confusion as appears from the following passage in the summing up:

The issue in relation to each charge is the same, whether the prosecution has proved beyond a reasonable doubt that the defendant believed the person he was communicating with was under 16, and an allied one is whether the defendant has established on the balance of probabilities that, on reasonable grounds, he believed the person was above that age.  The issue seems to be the same in relation to each of the counts …”

  1. Not least, the misapplication of the defence was prone to cause misunderstanding because proof of the element of belief that the Crown had to establish involved no requirement to prove that an accused’s subjective believe was a reasonable one – although if the case is a circumstantial one, as most such cases are, then the reasonableness of the grounds for the alleged belief will bear on whether the inference is reasonably open.  On the other hand, the defence, when it applies, obliges an accused to show that the belief was reasonably based.
  2. That the jury was indeed confused appears from its note that I have already referred to.
  3. Although it appears that the jury was not prepared to find, on the balance of probabilities, that the appellant actually held a reasonably based belief that the person was over 16, the question remained, has the Crown satisfied the jury beyond a reasonable doubt that the appellant actually believed that “Mack” was under 16?  In considering that question, although the jury was not prepared to accept the appellant’s evidence, what he had said remained relevant to whether the jury was prepared to draw the inference sought by the Crown.  That is to say, evidence that the jury might reject as the basis for a positive finding in his favour might yet serve to raise a doubt about a finding in favour of the Crown.  The issue and the onus of proof are different.  Yet the directions about the defence may well have had the effect that, having disposed of the issue of the defence, the jury then looked at the Crown evidence alone to decide its verdict.  Such an approach would have been wrong.  It is true that Shanahan DCJ told the jury that they had to look at “all the evidence in the trial to see if the Crown has proved beyond a reasonable doubt that he believed” the person to be under 16.  But that was said after the jury had been told that it had to “look at the prosecution case” after first considering whether it would accept or reject the defendant’s explanation.  It is not clear to me that the jury could have understood its proper task.
  4. For these reasons I have concluded that the misdirections resulted in a miscarriage of justice.  The appeal should be allowed and the verdict quashed.  There should be a new trial on count 2.
  5. FRASER JA:  I agree with the reasons for judgment of Sofronoff P and the orders proposed by his Honour.
  6. PHILIPPIDES JA:  I agree with the reasons of Sofronoff P and the orders proposed.

Footnotes

[1]  [2005] 2 Qd R 540; [2005] QCA 225.

[2]  [2018] QCA 102.

Editorial Notes

  • Published Case Name:

    R v Addley

  • Shortened Case Name:

    R v Addley

  • MNC:

    [2018] QCA 125

  • Court:

    QCA

  • Judge(s):

    Sofronoff P, Fraser JA, Philippides JA

  • Date:

    19 Jun 2018

  • Selected for Reporting:

    Editor's Note

Litigation History

Event Citation or File Date Notes
Primary Judgment DC1972/16 (No Citation) 16 Nov 2017 Date of Conviction (Shanahan DCJ).
Appeal Determined (QCA) [2018] QCA 125 19 Jun 2018 Appeal allowed; verdict on count 2 quashed and retrial ordered: Sofronoff P and Fraser and Philippides JJA.

Appeal Status

{solid} Appeal Determined (QCA)