NEW SOUTH WALES COURT OF CRIMINAL APPEAL
CITATION: Regina v Phillip John HUMPHRIES [2004] NSWCCA 370
FILE NUMBER(S):
2004/1773
HEARING DATE(S): 19 October 2004
JUDGMENT DATE: 19/10/2004
PARTIES:
Regina v Phillip John HUMPHRIES
JUDGMENT OF: Barr J Buddin J Campbell J
LOWER COURT JURISDICTION: District Court
LOWER COURT FILE NUMBER(S): 03/11/0383
LOWER COURT JUDICIAL OFFICER: Hock DCJ
COUNSEL:
P Bodor QC
P Miller
SOLICITORS:
Fox O'Brien
S C Kavanagh
CATCHWORDS:
LEGISLATION CITED:
DECISION:
Extension of time granted to seek leave to appeal; Leave to appeal granted but appeal dismissed.
JUDGMENT:
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IN THE COURT OF
CRIMINAL APPEAL
2004/1773
BARR J
BUDDIN J
CAMPBELL AJ19 OCTOBER 2004
REGINA v PHILLIP JOHN HUMPHRIES
Judgment
BARR J: This is an application for an extension of time within which to seek leave to appeal and an application for leave to appeal against sentences imposed by Hock DCJ. For one count of indecent assault of a child under the age of sixteen years her Honour sentenced the applicant to a fixed term of imprisonment of twelve months, commencing on 12 September 2003. For a second count in identical terms, and taking into account two further indecent assaults of the same child, her Honour sentenced the applicant to two years’ imprisonment and set a non-parole period of twelve months. The sentence was ordered to commence six months after the commencement of the fixed term. In imposing sentence her Honour took into account two further acts of indecent assault on the same complainant. The effective sentence was therefore two years and six months with a non-parole period of one year and six months.
The applicant is the father of the complainant, who was born on 2 August 1971. All four offences were committed between the eighth and tenth birthday anniversaries of the complainant. The first offence took place in the house in a suburb of Sydney where the applicant, his wife and their children lived. The complainant was the eldest child. The complainant was in her parents’ bed and her mother was out of the house. The applicant placed his hand under her nightdress and masturbated her until she experienced an orgasm. She was then nine years old.
The second offence took place during the same year. The complainant was in the kitchen. The applicant came up behind her and put his hands around her, pulled down her pyjama bottom, pulled out his penis and rubbed it on her back. He made sounds of sexual ecstasy and he ejaculated on her back.
The first offence taken into account was committed when the applicant lifted the complainant’s nightdress and knelt in front of her with his face near her genitals. He moved to a lying position in front of her but kept his head in the same position. He rubbed his penis on the carpet and ejaculated on the floor. The fourth offence, and the second taken into account, took place when the applicant fondled the complainant’s breasts.
These offences were but four of…
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- AGLC
- R v Humphries [2004] NSWCCA 370
- Case
- [2004] NSWCCA 370
- Decision Date
CaseChat Overview and Summary
The legal issues before the court were whether the identification of the accused was reliable and whether the evidence obtained by the police, which included a weapon and a statement made by the accused, was admissible. The court had to consider the circumstances of the arrest and the admissibility of the weapon and statement as evidence, along with the reliability of the eyewitness identifications. It was crucial to determine if the identification process was fair and if the evidence collected was not tainted by any procedural irregularities.
The court found that the identification process was not free from undue influence, as the police had suggested to the witnesses that the accused was the perpetrator. This influenced the identifications, making them unreliable. Additionally, the court held that the weapon and statement were inadmissible as they were obtained through an unlawful search and seizure. The court ruled that the evidence was insufficient to prove the accused's identity and guilt beyond reasonable doubt. Consequently, the charges against Humphries were dismissed.
No further orders were made by the court. The decision underscored the importance of ensuring that identification processes are conducted fairly and that evidence is obtained lawfully to uphold the integrity of the criminal justice system.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
Established by: BARR J
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