Humphreys v R

1. [1]

   SIMPSON AJA: I agree with the orders proposed by Harrison J and with his Honour’s reasons therefor, and with the additional observations of Dhanji J.

2. [2]

   HARRISON J: On 21 April 2021, Jason Humphreys was arraigned before a jury panel on an indictment containing the following counts:

3. [3]

   On 26 April 2021, the jury returned verdicts of not guilty on counts 2 and 4 on the indictment at the direction of the trial judge. On 3 May 2021, the jury returned verdicts of guilty on counts 1 and 6 and not guilty verdict on counts 3 and 5.

4. [4]

   On 12 July 2021, Mr Humphreys was sentenced to an aggregate term of imprisonment of 4 years and 3 months with an aggregate non-parole period of 3 years and 2 months commencing on 4 November 2020 and expiring on 3 January 2024.

Background facts

1. [5]

   Mr Humphreys is an interstate truck driver. He and the complainant made contact via a dating app and agreed to meet up. Mr Humphreys picked up the complainant from near her home in Leichhardt and they agreed he would take her for a drive in his truck. They drove to Eastern Creek, where Mr Humphreys parked, and they entered the rear cabin of the truck, where they consumed drugs on Mr Humphreys’ bed.

2. [6]

   A short time later, Mr Humphreys and the complainant engaged in consensual sexual activity. The Crown case was that later sexual activity took place between them without the complainant’s consent. That included digital, anal and penile intercourse and forced oral sex. The complainant also maintained that she was choked and assaulted by Mr Humphreys and that she asked him to stop.

3. [7]

   The Crown alleged that Mr Humphreys became upset with the complainant because of her protests, and told her to leave his truck. He refused to drive her home. The complainant then approached a security guard who called 000 on her behalf.

4. [8]

   Counsel for Mr Humphreys commenced his opening by pointing out to the jury that there were a number of matters that were not in dispute. Those included that he and the complainant were in contact over social media, that on the night in question they agreed to meet up, that Mr Humphreys picked up the complainant and drove to Eastern Creek and that they consumed drugs and engaged in sexual activity in the cabin.

5. [9]

   Mr Humphreys’ counsel also informed the jury that it was not in dispute that at some stage during the sexual activity, the complainant became upset over the issue or topic of anal sex and that at some point thereafter she left the truck. Counsel told the jury that what would be in dispute was whether or not Mr Humphreys penetrated the complainant’s anus, whether she indicated that she did not consent to any such activity, and if she did indicate that she did not consent, whether any anal sex took place thereafter. It would also be in issue that Mr Humphreys made any attempt to strangle the complainant after the alleged anal sex incident.

6. [10]

   Mr Humphreys raises two grounds of appeal:

Ground 1

1. [11]

   Mr Humphreys submitted that there were two aspects of the Crown’s closing address that give rise to this ground of appeal. First, that the invitation to the jury to draw an adverse inference from Mr Humphreys’ exercise of his right to silence in his electronic interview and secondly, that the reference in the Crown’s closing address to the opening remarks of Mr Humphreys’ own counsel, together gave rise to a miscarriage of justice.

2. [12]

   The Crown’s closing address to the jury included the following remarks:

3. [13]

   After the Crown closing, counsel for Mr Humphreys raised the issue with his Honour in the absence of the jury:

4. [14]

   When the jury returned, and before counsel for Mr Humphreys’ closing address, his Honour gave the following direction:

5. [15]

   His Honour further directed the jury on silence in his summing up:

6. [16]

   Counsel for Mr Humphreys in this Court noted that there was no objection taken by his trial counsel to this direction but that it was the duty of the trial judge to remove the risk of any prejudice that might have been caused by the Crown’s remarks. If that could not be done by appropriate directions, the jury should have been discharged. However, as must be acknowledged, the trial judge was clearly of the view that the Crown had not engaged in any process of reasoning that sought illegitimately or impermissibly to suggest to the jury that an adverse inference could be drawn against Mr Humphreys by the exercise of his right to silence. There was no application to discharge the jury.

7. [17]

   In those circumstances, it was accepted by Mr Humphreys in this Court that, standing alone, nothing said by the Crown at trial or the way in which the trial judge dealt with it could give rise to a viable ground of appeal.

8. [18]

   Secondly, however, Mr Humphreys contended that the combined effect of the trial judge’s directions and the reference by the Crown in his closing address to the opening remarks of Mr Humphreys’ own counsel at trial, caused a miscarriage of justice. The Crown said this in his closing remarks:

9. [19]

   Mr Averre of counsel for Mr Humphreys in this Court referred to those remarks in his written submissions in these terms:

10. [20]

    Mr Averre submitted that the inference advanced, namely that this assertion could only have been based on Mr Humphreys’ instructions, was not correct since it was contradicted by the transcript of a police interview of the complainant conducted on 30 August 2019. That transcript was not tendered at the trial, although the complainant told police on that occasion that

11. [21]

    Mr Humphreys’ evidence-in-chief included him saying, “We discussed some drug taking and having some fun and basically seeing where it leads.”

12. [22]

    Mr Humphreys’ complaint in this appeal in these circumstances is that the Crown prosecutor at trial “misstated the state of the available evidence”. Furthermore, nothing was put to Mr Humphreys in cross-examination by the prosecutor in this regard.

13. [23]

    The Crown’s submissions in response to this contention were as follows:

Consideration

1. [24]

   This ground of appeal in my opinion yields to a common sense understanding of how the Crown presented its case and how Mr Humphreys responded to it. It does not appear to be controversial from Mr Humphreys’ perspective that he and the complainant agreed to meet up, having previously “discussed some drug taking and having some fun and basically seeing where it leads”. Whatever may have been Mr Humphreys’ evidence about what the words “having some fun” and “seeing where it leads” may have meant, it could hardly be seriously contended, in the circumstances of this case, that it would not have conveyed to a reasonable jury applying their understanding of human affairs that a sexual encounter was proposed or anticipated. The complainant agreed.

2. [25]

   Additionally, Mr Humphreys’ response to the Crown case was that the sex that they engaged in was consensual to the point when the complainant withdrew her consent after which no further sexual activity took place. In that context, an opening by Mr Phillips suggesting that the original agreement had been to meet up for sex is on the one hand an available description of what in fact occurred and a proposition of little if any significance in the ultimate result on the other hand. The issue of whether the complainant consented to everything that she alleges occurred is hardly dependent upon whether she and Mr Humphreys agreed in advance to have sex or only did so at some later stage.

3. [26]

   Moreover, the opening remarks of Mr Humphreys’ counsel would obviously have been made with Mr Humphreys present in court. The same counsel later led evidence from him about discussing some drug taking and having some fun. It is wholly unrealistic now in this Court to attempt on appeal to deconstruct what occurred in the trial by comparing counsel’s opening remarks to the jury with what Mr Humphreys said when questioned, where the obvious common sense dynamic of the trial was that the complainant and Mr Humphreys met up for the purpose of “fun” that possibly, if not obviously, involved the prospect of consensual sex.

4. [27]

   Far from the inference advanced by the Crown being incorrect or not available, namely that Mr Humphreys’ counsel’s assertion, that he and the complainant arranged to meet up for sex and that it could only have been based on Mr Humphreys’ instructions, it seems to me to have been a perfectly reasonable, if not an inevitable, inference to draw. The Crown’s submission, asserting that Mr Humphreys could have been the only source of the suggestion, was hardly “contradicted” by the fact that the complainant said the same thing in her interview with the police. The so-called contradiction is in any event of no significance: the overarching theme of the evidence from both the complainant and Mr Humphreys was arguably that the pair agreed in advance to meet up for activity that would most probably involve sex and the case was conducted upon that basis from the start.

5. [28]

   I also cannot accept that the Crown prosecutor had no basis for his submission concerning the suggested source of his instructions upon which Mr Humphreys’ counsel opened to the jury. By the time the submission was made, Mr Humphreys had given his evidence in the trial. There was no complaint about the Crown’s address or the suggestion that the impugned inference was not available. The absence of any complaint by Mr Humphreys’ counsel at the time seems to accord entirely with what the evidence suggested was happening in the trial. It cannot in my opinion amount to an attempt to suggest that Mr Humphreys tailored his evidence to suit the complainant’s version of what occurred simply by emphasising what his counsel said in opening to the jury just because Mr Humphreys did not in terms embrace the suggestion in his evidence. As I have already noted, the case was conducted upon the basis that Mr Humphreys and the complainant initially engaged in consensual sex. The jury could in my view have been left in no doubt that the point of difference between the two sides was the question of whether or not, and if so when, the complainant withdrew her consent. Rule 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW) is engaged.

6. [29]

   Finally, I note that Mr Averre submitted that “it is also of note that counsel for [Mr Humphreys] had not cross-examined the complainant on the prior inconsistent statement contained in her interview with the police when in cross-examination she had denied any prior discussion as regards having sex with [him]”. I do not understand this submission. First, as appears above, the complainant told the police in her interview that she spoke to Mr Humphreys on the phone about them going to meet up “and have really good sex”. That is hardly a denial to the police that she and Mr Humphreys had any prior discussion “as regards having sex” with him and is not a prior inconsistent statement. Moreover, secondly, the complainant was cross-examined at the trial about this and gave the following evidence that effectively accorded with what she told the police on 30 August 2019:

7. [30]

   I am unable to accept that any miscarriage of justice has been occasioned. Part one of this ground cannot succeed on its own and part two of this ground adds nothing that saves it. This ground of appeal should be dismissed.

Ground 2

1. [31]

   Mr Humphreys uncontroversially submitted that the Crown is obliged to present its case completely before the accused is called upon for his response to the Crown case and that it is only in “very exceptional circumstances” that the Crown should be permitted to re-open its case. In this case, between the examination-in-chief of Mr Humphreys and his cross-examination, a jury note was received which asked, “Was the complainant drug tested at or around the morning of the incident?”.

2. [32]

   The Crown indicated that there was a pathology certificate that referred to this issue. Counsel for Mr Humphreys raised no objection to an agreed fact being tendered by the Crown at the close of Mr Humphreys’ case. He also indicated that he had no objection to the trial judge telling the jury that the complainant was blood tested and that there was methylamphetamine in her system. The trial judge informed the jury of this and following cross-examination of Mr Humphreys the Crown tendered the certificate of analysis without objection.

3. [33]

   Mr Averre submitted in this Court that this could not be said to have been an exceptional case and there was no consideration given as to the principles relevant to the exercise of discretion to permit the Crown to re-open its case.

Consideration

1. [34]

   Quite apart from the fact that, in my view, Rule 4.15 of the Supreme Court (Criminal Appeal) Rules would be a complete answer to this ground, I have difficulty with the proposition that what occurred caused the trial to miscarry. The fact that the complainant was found to have methylamphetamine in her blood and urine was entirely consistent with evidence given by her and not the subject of contest. Furthermore, the evidence was either completely irrelevant to the significant issues in the trial or alternatively could not have caused any forensic disadvantage to Mr Humphreys in any event. However, most significantly, the course adopted at the trial was consented to by counsel for Mr Humphreys. No complaint is made that his counsel erred in some way in doing so.

2. [35]

   This ground of appeal is without merit.

Conclusion and orders

1. [36]

   I propose the following orders:

   1. (1)

      Grant leave to appeal.

   2. (2)

      Dismiss the appeal.

2. [37]

   DHANJI J: I agree with the orders proposed by Harrison J and with his Honour’s reasons for those orders. I would only add the following.

3. [38]

   Those who prosecute on behalf of the Crown have an important responsibility. There are many concerns that prosecutors are expected to be mindful of to ensure that an accused receives a fair trial. There are areas where, if a prosecutor is to tread, they must do so with caution. One such area is an accused’s choice to exercise the right to silence, either in whole or in part, prior to trial. (At trial there is, of course, an outright prohibition on comment by the prosecutor on an accused’s choice not to give evidence: s 20, Evidence Act 1995 (NSW).) In the present matter, the prosecutor was entitled to draw attention to answers given by the applicant in his record of interview with police to establish the applicant was aware of, and capable of exercising, his right to silence. That reflected on his level of alertness and comprehension at the time of the interview, which became an issue at trial. It was not, however, permissible to, as the prosecutor here did, make submissions suggesting an adverse inference should be drawn from the applicant’s exercise of his right. However, in the present matter, as Harrison J has pointed out, the trial judge gave clear directions to the jury that they could not draw an adverse inference from the applicant’s exercise of his right to silence. While his Honour did not directly address the prosecutor’s impermissible use of the evidence, the applicant’s counsel did not seek any further direction. The likely explanation, in my view, is that it was considered preferable not to draw further attention to the prosecutor’s transgression.

4. [39]

   Another area where caution on the part of prosecutors is advisable, is in the drawing of inferences as to what instructions an accused may have given to counsel: see R v Abdallah [2001] NSWCCA 506; (2001) 127 A Crim R 46 and the cases there discussed. However, in the present case, for the reasons given by Harrison J, no miscarriage of justice arose.