R v Emes - [2019] SASCFC 75

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v EMES
[2019] SASCFC 75
Judgment of The Court of Criminal Appeal
(The Honourable Justice Kelly, The Honourable Justice Nicholson and The Honourable Justice Hinton)
1 July 2019
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION - EXPRESSION OF JUDGE'S OWN OPINION
CRIMINAL LAW - PROCEDURE - SUMMING UP
Appeal against conviction. The appellant was convicted after a trial by jury of one count of Maintaining an Unlawful Sexual Relationship with a Child contrary to s 50(1) of the Criminal Law Consolidation Act 1935 (SA). The issue on appeal was whether certain comments made by the trial Judge to the jury about the text message evidence were unnecessary and whether those comments deprived the appellant of a fair trial by failing to exhibit sufficient judicial balance.
Held, per Kelly J (Nicholson and Hinton JJ agreeing), allowing the appeal, quashing the conviction and remitting the matter for retrial:
1. The trial Judge's comments in favour of the prosecution case, made with the authority of the Judge, were apt to create a danger or a substantial risk that the jury might actually be persuaded of the appellant's guilt.
2. The Judge's focus upon the text messages improperly skewed the balance in favour of the prosecution.
Criminal Law Consolidation Act 1935 (SA), referred to.
McKell v The Queen (2019) 93 ALJR 309, applied.
R v O'Neill (1988) 48 SASR 51; R v Machin (No 2) (1996) 68 SASR 526; R v Webb (1997) 68 SASR 545; R v D (1997) 68 SASR 571, considered.

R v EMES
[2019] SASCFC 75
Court of Criminal Appeal: Kelly, Nicholson and Hinton JJ
KELLY J.
Introduction

The appellant appeals to this Court by permission against a conviction for one count of Maintaining an Unlawful Sexual Relationship with a Child contrary to s 50(1) of the Criminal Law Consolidation Act 1935 (SA).
The primary issue on appeal is whether the trial of the appellant miscarried by reason of certain comments made by the trial Judge during the course of his summing up to the jury.
The appellant complains firstly that the Judge’s comments were unnecessary for performance of the Judge’s duty to direct the jury fairly and accurately, and secondly, that the comments did not exhibit sufficient judicial balance, thus depriving the appellant of a fair trial.
For the reasons which follow, I would allow the appeal and remit the matter to the District Court for retrial.
Background
The prosecution case against the appellant was that he sexually abused the grandson of his wife when the child was between the ages of approximately five to 14 years of age.
At the date of trial, the child, who I will refer to as J, was 21 years old. The appellant was 83 years of age at the time of trial.
Numerous types of sexual conduct were particularised on the Information and J gave evidence about them…

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 Emes

Details

AGLC: R v EMES [2019] SASCFC 75
Case: [2019] SASCFC 75
Decision Date: 1 July 2019

CaseChat Overview and Summary

In *R v Emes*, the appellant, an 83-year-old man, appealed his conviction for sexual abuse against his wife's grandson, referred to as J, who was 21 at the time of trial. The allegations encompassed a range of sexual acts occurring when J was between the ages of five and 14. The appeal was heard by Kelly, Nicholson, and Hinton JJ.

The central legal issues before the court concerned the admissibility of text messages exchanged between the appellant and the complainant in September 2014, and the judge's summing up to the jury. The prosecution sought to tender these messages as admissions by the appellant, while the defence initially objected on grounds of provenance and relevance. The objection regarding provenance was withdrawn after the prosecution confirmed the phone number belonged to the appellant.

The court allowed the appeal, finding that the judge's summing up contained misdirections and non-directions that prejudiced the appellant. Specifically, the judge expressed his own opinion on the guilt of the appellant and the credibility of the complainant, which is impermissible. The judge also failed to adequately direct the jury on the limited purpose for which the text messages could be considered, particularly in light of the appellant's age and the complainant's age at the time of the alleged offences. The court held that the judge's conduct in expressing his personal views and failing to provide proper directions amounted to a miscarriage of justice.

Consequently, the appeal was allowed, the conviction was quashed, and the matter was remitted to the District Court for a retrial.

Orders

Orders of the court

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Background

Background to the litigation

For the reasons which follow, I would allow the appeal and remit the matter to the District Court for retrial. Background The prosecution case against the appellant was that he sexually abused the grandson of his wife when the child was between the ages of approximately five to 14 years of age. At the date of trial, the child, who I will refer to as J, was 21 years old. The appellant was 83 years of age at the time of trial. Numerous types of sexual conduct were particularised on the Information and J gave evidence about them at the trial. They included allegations that the appellant touched J’s penis on more than one occasion, tongue kissed J on more than one occasion, performed an act of fellatio upon J on more than one occasion, touched J’s anus on more than one occasion, inserted his tongue and his finger into J’s anus on more than one occasion, inserted his penis into J’s anus, and caused J to perform an act of fellatio upon him. Prior to the empanelment of the jury, the prosecution sought to tender evidence of a telephone text interchange between the appellant and the complainant in September 2014 on the basis that the texts were admissible and relevant as a voluntary statement by the appellant against interest, that is, an admission. The appellant’s counsel objected to the tendering of the text messages on two grounds. Firstly, on the basis of the provenance of the material and secondly, on the basis of relevance. The appellant withdrew the objection based on the provenance of the material after the prosecution produced a statement confirming the phone number from which the relevant text messages were received belonged to the appellant. The text messages sought to be tendered by the prosecution are set out in full below.Hi mate didn’t know u had another phone how’s thingswho’s this?It’s papathings are fine. yourself?Ye goodHow did you get my number?From mum if u don’t want me to have it i’ll delete it what’s the problemI don’t really care, but the thing is Chelsea has just given birth to our son and daughter today, and I don’t want you apart of their lives because of the disgusting things you did to me as a kid.I think thats unfair when u started it congratulations any wayHow would I learn that shit at the age I was? I remember when you still lived with Nanna and you would try and be a sly cunt about it. It’s disgusting how it continued for years and the only way it stopped was when I left home and didn’t see you. I don’t think you would understand how it has fucked with my head for years. How can someone that is meant to be a loved family member play with a child as young as 6? Watching porn with a 70+ year old man sucking you off when your barely even a teenager. I’ve always lied to everyone about things we used to get up to when I visited. I told people I wanted my children to have nothing to do with you in a nice manner, didn’t say anything about those things, but mum asked so I told her.When did u tell ur mum because i really luv t all but i don’t think that caused u to do what u done it was other peoplehow the fuck could it be other people’s fault?I’m talking about the People u mixed withI had no friends when all this started.Look can i ring uI’m in the hospitalK text me when it’s a good timeI don’t want to talk.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

KELLY J

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Ratio Decidendi

Legal Principle Established

Established by: KELLY J

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