R v Humphries - [2004] NSWCCA 370

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 AJ
19 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…

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 Humphries

Details

AGLC: R v Humphries [2004] NSWCCA 370
Case: [2004] NSWCCA 370
Decision Date: 19 October 2004

CaseChat Overview and Summary

The case of R v Humphries involved the accused, Humphries, who was charged with various counts of armed robbery, assault with intent to rob, and possessing a firearm. The dispute centred around whether the prosecution had adequately established the identity of the accused as the perpetrator of these crimes and whether the evidence collected against him was legally obtained and sufficient to support a conviction. The case was heard in the Supreme Court of New South Wales.

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