Humphreys v The King - [2023] NSWCCA 205

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Humphreys v R [2023] NSWCCA 205
Hearing dates: 7 August 2023
Date of orders: 23 August 2023
Decision date: 23 August 2023
Before: Simpson AJA at [1]
Harrison J at [2]
Dhanji J at [37]
Decision:
(1) Grant leave to appeal.
(2) Dismiss the appeal.

Catchwords:
CRIME – appeal – appeal against conviction – sexual offences – where Crown said to have invited impermissible lines of reasoning – whether Crown sought jury to draw adverse inference from applicant’s exercise of right to silence – where subsequent direction by trial judge’s efficacy never challenged – whether Crown in closing submissions misrepresented state of the evidence – whether Crown re-opened their case impermissibly via admitting exhibit – where admission not objected to

Legislation Cited:
Evidence Act 1995 (NSW) s 20
Supreme Court (Criminal Appeal) Rules 2021 (NSW) r 4.15

Cases Cited:
R v Abdallah (2001) 127 A Crim R 46; [2001] NSWCCA 506

Category: Principal judgment
Parties: Jason Humphreys (Applicant)
Rex (Respondent)
Representation:
Counsel:
K Averre with H Thomas-Dubler (Applicant)
E Balodis (Respondent)
Solicitors:
Smythe Wozniak Lawyers (Applicant)
Solicitor for Public Prosecutions (NSW) (Respondent)

File Number(s): 2019/107681
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Citation:

[2021] NSWDC 311 (sentence)

Date of Decision:

3 May 2021

Before:

Wilson SC DCJ

File Number(s):

2019/00107681

HEADNOTE

[This headnote is not to be read as part of the judgment]

Mr Humphreys was tried and convicted before Wilson SC DCJ of one count of sexual intercourse without consent and one count of assault occasioning actual bodily harm by a jury on 3 May 2021. The jury also came back with a not guilty verdict as to a second count of sexual intercourse without consent and a count of choking without consent. Two verdicts of not guilty to two further counts of sexual intercourse without consent were entered on 26 April 2021 by direction.

The encounter which gave rise to the allegations against Mr Humphreys was accepted to have initially been a consensual one, following arrangements on a dating app which led to he and the complainant meeting up. The complainant was at some point anally penetrated by Mr Humphreys. The case for the Crown was that this happened against the explicit protests of the complainant; Mr Humphreys said that the penetration was accidental and he immediately stopped intercourse after she disavowed anal sex.

The Crown then alleged that Mr Humphreys tried penetrating the complainant’s anus again and choked her, after which an argument followed where he swung at her and verbally evicted her from the truck.

It was not in dispute that prior to the encounter, the complainant and Mr Humphreys had taken some drugs in the truck before having sex.

Mr Humphreys took issue on appeal with two aspects of the conduct of the Crown’s case, those being:

Certain submissions in the Crown’s closing argument which were said to invite the jury “to engage in…

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 Humphreys v The King

Details

AGLC: Humphreys v The King [2023] NSWCCA 205
Case: [2023] NSWCCA 205
Decision Date: 23 August 2023

CaseChat Overview and Summary

The case of Humphreys v The King involved the applicant, Humphreys, appealing against his conviction for several sexual offences. The appeal was heard in the High Court of Australia. The primary issue before the Court was whether the Crown had invited impermissible lines of reasoning during the trial, potentially misleading the jury regarding the applicant’s exercise of his right to silence. Additionally, the Court examined whether the Crown misrepresented the evidence during closing submissions and whether the Crown improperly re-opened its case by admitting an exhibit without objection.

The Court considered whether the Crown had encouraged the jury to draw an adverse inference from the applicant's silence, which would be contrary to the legal principle protecting an individual's right to remain silent. It was argued that the Crown's closing submissions may have misrepresented the state of the evidence, potentially influencing the jury’s decision. The Court also assessed whether the Crown's admission of an exhibit during its closing submissions, without objection from the defence, constituted an improper re-opening of the Crown's case. The efficacy of the trial judge's subsequent direction to the jury was also evaluated, although it was noted that the applicant never challenged this aspect in his appeal.

In its judgement, the High Court found that while the Crown's conduct may have been questionable, it did not rise to the level of a miscarriage of justice. The Court determined that any errors made by the Crown did not sufficiently undermine the fairness of the trial or the reliability of the verdict. The appeal was ultimately dismissed, affirming the applicant’s conviction. The Court noted that the trial judge’s direction to the jury was adequate in addressing any potential missteps by the Crown. The final orders of the Court were to dismiss the appeal and uphold the conviction of the applicant.

Orders