The Supreme Court has ordered the retrial of a man convicted last year of luring a teenage girl.

While the defendant, who cannot be identified for legal reasons, was found guilty by magistrate Auralee Cassidy after a trial, Puisne Judge Alan Richards ruled that the convictions could not be sustained.

In a judgment handed down this month, Mr Justice Richards said the question in the case was whether communications between the defendant and the girl had been made for the purpose of committing unlawful carnal knowledge.

However, he said the magistrate’s judgment left the impression that she did not think the defence put forward at trial was one that could have been raised.

He wrote: “It does not appear to me that anyone who had not seen the messages, as I have done, could discern from the judgment what it was about their content that left the magistrate in no doubt that they had been sent for the alleged purpose.”

Mr Justice Richards said that the magistrate also misstated the elements of the offences in her judgment, appearing to cite aspects of Nevada legislation rather than Bermuda law.

He added: “I am at a loss as to how it was that the magistrate came to direct herself on the elements of luring by reference to Nevada law, or the similarly phrased law of a third jurisdiction.

“Whatever the explanation may be, the result is that she clearly misdirected herself as to the requirements of Bermuda law in a number of ways.”

During the 2024 trial, the court heard that the defendant followed the victim on social media.

While the girl initially told the defendant she was 17 years old, after two weeks of communication she admitted that she was actually 15.

At the time, the defendant was 39.

The pair continued to communicate and met each other several times in the following months until, after several disagreements, she told her mother and forwarded numerous screenshots of their communications.

The defendant was arrested and was found guilty of two counts of luring, one in connection with oral communication and one in connection with written communication.

He later appealed his conviction before the Supreme Court, arguing that Ms Cassidy had misdirected herself on the law and the issues that she would consider.

While Adley Duncan, for the Crown, did not dispute the misdirections, he argued that the error had not disadvantaged the defendant, and increased the burden placed on the prosecution.

Mr Justice Richards largely agreed with the Crown, but found that Ms Cassidy had also diluted what the Crown was required to prove in one aspect.

He said that the defence case was that while the communications did take place, the defendant had no intention of having sexual relations with the victim until she was 16, and as such the messages were not for the intention of having unlawful carnal knowledge.

Mr Justice Richards said: “Given the nature of the communications involved, which were on any view sexually explicit, it will surprise many that this could be a viable defence.

“It would not have been had the appellant been charged, as I think he could have been, under Section 53 of the Telecommunications Act 1986 or Section 68 of the Electronic Communications Act 2011.

“However, this case concerned direct oral communication as well as messages, and Section 182E of the Criminal Code attracts a higher penalty than either of those sections.

“Further, a person convicted, and sentenced to a term of imprisonment under it, is required to register as a sex offender. One can understand, therefore, why this case was charged as it was.”

Mr Justice Richards said both the Crown and the defence relied on the written messages to support their case.

However, Ms Cassidy’s judgment said the only defences that could have been raised were that the defendant did not knowingly communicate or intend to communicate with a child, or that he had no knowledge the other party was a child.

Mr Justice Richards said: “Looking at the judgment as a whole, I think the respondent is right that the magistrate did correctly understand the defence that was being raised.

“Still, the manner in which she expressed herself here is apt to create the impression that she did not think that that defence was one that could have been raised in law.

“Had she directed herself in accordance with the law, as I believe it should be understood, the question for the magistrate on this evidence was a narrow one. Had the relevant communications been made for the purpose of committing unlawful carnal knowledge?”

Mr Justice Richards did not allow or dismiss the appeal — instead ordering that the matter be retried in Magistrates’ Court.

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