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Emery v R

Emery v R

Case [1999] TASSC 141 15 December 1999

Misdirection and Non-direction

Criminal Law

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[1999] TASSC 141

CITATION: Emery v R [1999] TASSC 141

PARTIES:  EMERY, Donald Alfred
  v
  R

TITLE OF COURT:  COURT OF CRIMINAL APPEAL (TAS)
JURISDICTION:  Appellate
FILE NO/S:  CCA 97/1998
DELIVERED ON:  15 December 1999
DELIVERED AT:  Hobart
HEARING DATES:  25 October 1999
JUDGMENT OF:  Underwood, Slicer and Evans JJ

CATCHWORDS:

Criminal Law - Appeal and new trial and inquiry after conviction - Particular grounds - Misdirection and non-direction - Where grounds for interference with verdict - Particular cases - Where appeal dismissed - Direction to jury - Whether failure to direct the jury about propensity evidence.

Criminal Code 1924 (Tas), s125A.
KBT v R (1996 - 1997) 191 CLR 417; Perry v R (1982) 150 CLR 580; Sutton v R (1983 - 1984) 152 CLR 528, applied.
R v Kemp [1997] 1 Qd R 383; R v Kemp (No 2) [1998] 2 Qd R 510; R v S [1999] 2 Qd R 89, followed.
Aust Dig Criminal Law [983]

Criminal Law - Appeal and new trial and inquiry after conviction - Miscarriage of justice - Tests - Misdirection and non-direction - Inadequate summing up - Whether failure to direct the jury about propensity evidence produced miscarriage of justice.

Criminal Code 1924 (Tas), s125A.
KBT v R (1996 - 1997) 191 CLR 417; R v Kemp [1997] 1 Qd R 383; R v Kemp (No 2) [1998] 2 Qd R 510; R v S [1999] 2 Qd R 89; Perry v R (1982) 150 CLR 580; Sutton v R (1983 - 1984) 152 CLR 528, referred to.
Aust Dig Criminal Law [953]

REPRESENTATION:

Counsel:
             Appellant:  R A Browne
             Respondent:  M A Stoddart
Solicitors:
             Appellant:  Legal Aid Commission
             Respondent:  Director of Public Prosecutions

Judgment Number: [1999] TASSC 141
Number of Paragraphs: 47

Serial No 141/1999

File No CCA 97/1998

DONALD ALFRED EMERY v THE QUEEN

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

UNDERWOOD J
SLICER J
EVANS J
15 December 1999

Order of the Court

Appeal dismissed.

Serial No 141/1999

File No CCA 97/1998

DONALD ALFRED EMERY v THE QUEEN

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

UNDERWOOD J
15 December 1999

I have had the advantage of reading the reasons for judgment of both my learned brother judges. I agree with their reasons and their conclusion that the appeal against conviction and the appeal against sentence should be dismissed.

An indictment for the crime of maintaining a sexual relationship with a young person prescribed by the Criminal Code, s125A, cuts across a fundamental rule of criminal pleading. The statutory prescription of the crime necessarily results in an indictment that is duplicitous. In many cases the inherent duplicity is compounded by the fact that the evidence may be such that the jury have to consider whether one or more of the unlawful sexual acts relied upon by the Crown constitutes any one of a number of the crimes within the scope of the section. This makes the task of the sentencing judge a…

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 Emery v R

Details

AGLC: Emery v The Queen [1999] TASSC 141
Case: [1999] TASSC 141
Decision Date: 15 December 1999

CaseChat Overview and Summary

In the Court of Criminal Appeal of Tasmania, Donald Alfred Emery appealed against his conviction and sentence for maintaining a sexual relationship with a young person under the age of 17 years. The Court of Criminal Appeal comprised Underwood, Slicer, and Evans JJ, and dismissed the appeal on both conviction and sentence. The appellant argued that the trial judge erred in failing to direct the jury against the dangers of propensity reasoning, but the Court found that the evidence presented was specific and discrete, and a direction on propensity would have been artificial. The Court also found that the sentence of four years' imprisonment was not manifestly excessive, as the appellant had exploited his position of trust to sexually abuse the complainant over a period of 13 months.

Orders