R v Humphrys - [2007] SASC 357

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v HUMPHRYS
[2007] SASC 357
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Doyle, The Honourable Justice White and The Honourable Justice Layton)
9 October 2007
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - MISDIRECTION AND NON-DIRECTION
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - OTHER OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - UNLAWFUL SEXUAL INTERCOURSE OR CARNAL KNOWLEDGE - PROOF, EVIDENCE AND PROCEDURE
Application for extension of time to file application for permission to appeal - appeal against conviction - five counts of unlawful sexual intercourse - whether Judge erred in failing to direct jury on effect of intoxication on reliability of complainant's evidence - whether Judge erred in failing to direct jury on standard of proof of uncharged acts.
Held: Judge pointed out potential weak spots in complainant's evidence - no need for further specific direction - no deficiency in summing up - Judge directed jury in accordance with existing authority.
R v Clifford (2004) 233 LSJS 157, distinguished.
Bedi v The Queen (1993) 61 SASR 269, discussed.
R v Nieterink (1999) 76 SASR 56; R v IK (2004) 89 SASR 406; The Queen, M, RB [2007] SASC 207; R v O, AE [2007] SASC 206; R v S, B [2006] SASC 319, considered.

R v HUMPHRYS
[2007] SASC 357
Court of Criminal Appeal: Doyle CJ, White and Layton JJ

DOYLE CJ: Mr Humphrys has applied for an extension of time within which to apply for permission to appeal against certain convictions.
A single Judge considered the application. The Judge’s view was that the proposed grounds of appeal had no reasonable prospect of success, and accordingly considered that leave to appeal should be refused. For that reason, she refused to grant an extension of time. That was an appropriate order to make.
Mr Humphrys has applied to have his application for an extension of time and for permission to appeal considered by the Full Court. The Full Court heard argument on the matter, on the basis that the argument would be treated as the hearing of the appeal, if the court were minded to grant an extension of time and to grant permission to appeal.
At the conclusion of the argument the Court ordered that the application for an extension of time be refused. It did so on the basis that the proposed grounds of appeal had no reasonable prospect of success, and that accordingly it was not appropriate to grant an extension of time. If the Court had considered that the proposed grounds of appeal had a reasonable prospect of success, it would have been an appropriate case in which to grant an extension of time.
What follows are my reasons for joining in the order that was made at the conclusion of the hearing of the appeal.
Mr Humphrys was convicted on five counts of unlawful sexual intercourse with AB, a boy under the age of 17 years. The offences were committed over a period of about two years. At the time of the offences the boy was aged about 14 years and about 15 years.
The first three counts related to an occasion when Mr Humphrys first met AB. It was about Christmas 2001. They met at a public toilet. AB was inhaling paint fumes at the time, and Mr Humphrys struck up a conversation with him. They engaged in further conversation and, a little later that day, on the prosecution case that led to acts of intercourse that were the subject of the first three counts.
Thereafter, and for about two years, the two remained in fairly regular contact. Mr Humphrys took AB on outings, gave him gifts, gave him money and so on. They spent quite a bit of time together. On the prosecution case, there were regular acts of intercourse, but these were not the subject of charges.
Count 4 was identified as an occasion when Mr Humphrys took AB to premises described as dedicated to “gay sex”. At this time AB was about 15 years of age. The relationship continued.
During the course of the relationship, the police spoke to AB about his relationship with Mr Humphrys. AB denied that any misconduct was occurring.
Count 5 occurred about Christmas 2002. It was identified as an occasion when Mr Humphrys treated AB roughly.
The relationship continued, and the gifts continued.
During 2003 Mr Humphrys moved to Melbourne. They remained in contact, and AB visited him from time to time. In September 2003 the Victorian police arrested Mr Humphrys, on charges arising from his relationship with AB. At this time AB declined to disclose details of his relationship to the police.
It was only in December 2003 that AB made allegations of misconduct to the police against Mr Humphrys.
In short, this was a relationship that continued for about two years. On the prosecution case, AB had plenty of opportunities to complain, and took none of them. Indeed, there were occasions when he either lied about the relationship, or refused to disclose things that he later alleged.
In his evidence AB said that there were occasions the subject of charges when he was affected by paint fumes. The occasion the subject of the first three counts was one such occasion. AB said that the paint fumes affected his consciousness somewhat.
AB also referred to occasions on which he was affected by drugs or alcohol.
It is apparent that AB was leading what can only be described as a disturbed life.
Mr Humphrys did not give evidence at trial. He made no admissions to the police. He told the police that he was trying to help AB with his life. Mr Humphrys said that he was acting as a father to AB, helping him out from time to time, and trying to keep him on the right track.
The defence case at trial was that AB was making up the allegations of misconduct, and that they could not have occurred as AB said they did. The defence was that AB changed his story to fit the facts. Counsel for Mr Humphrys pointed to inconsistencies in AB’s evidence. Counsel pointed to the fact that AB did not take opportunities that he had to inform the police about misconduct by Mr Humphrys. Mr Humphrys said that AB made the allegations he did, only after Mr Humphrys had refused requests from AB for money. It was put to AB that the complaint he made was made about two weeks after Mr Humphrys refused to give him money on a particular occasion, and that because of this AB turned against Mr Humphrys.
Ground 1 is that the Judge erred in not directing the jury in specific terms to the effect that on his own evidence AB was significantly intoxicated at the time of four of the five counts, and when a number of the uncharged acts occurred. The Judge should have told the jury to consider how the intoxication might have affected AB’s ability to perceive the events around him, and to recall events, and how the intoxication might have affected the reliability of his evidence generally.
I do not accept this submission.
The Judge reminded the jury of the evidence in considerable detail. On my reading of her summing up, when relevant she referred to the fact that paint sniffing was taking place, or that drugs or alcohol were being used. In my view it is fair to say that she reminded the jury of the potential weak spots in AB’s evidence. That is, she identified to the jury aspects of the evidence of AB that might give rise to a doubt about his evidence. It cannot be said that potential frailties in his evidence were not identified.
The Judge directed the jury on a number of occasions about the need for proof beyond reasonable doubt.
She reminded them that he was only 14 or 15 years of age at the time of the incidents. She reminded them of the possible significance of his failure to disclose the relationship to police, and of inconsistencies in his evidence. She fairly summarised the defence case.
In particular, at p 56 she warned the jury that it would be dangerous to convict Mr Humphrys on the evidence of AB alone, unless “after scrutinising the evidence with great care, considering the circumstances in which you are to evaluate it and paying heed to the warning, you are satisfied of its truth and accuracy”.
The defence case was that AB was deliberately fabricating his evidence. A motive was identified. It was not suggested to AB, or as part of the defence case, that he suffered from hallucinations or from such an impaired memory that he would think things had happened that had not happened. The defence case was not based on AB’s recall of events being unreliable due to drugs or paint or alcohol. It was that AB was deliberately fabricating the events the subject of the charges.
In considering this proposed ground of appeal, it is appropriate to have regard to the manner in which the case was conducted. It is also appropriate to have regard to the issues put to the jury. It is relevant that there was no request for such a direction at the time. The warning that the Judge gave also is relevant.
Having regard to all these matters, I am satisfied that it is not reasonably arguable that the Judge’s summing up was deficient in this respect. The directions that the Judge gave to the jury were adequate to the occasion, and were adequate having regard to the manner in which the case was contested before the jury.
I would refuse permission to appeal on this ground, as it is not reasonably arguable.
Grounds 2 and 3 are that the Judge should have directed the jury that they could not rely on the evidence of the uncharged acts unless those uncharged acts were proven beyond reasonable doubt. There is also a complaint about the direction to the jury on how they could and could not use the evidence.
As I have already said, the Judge gave the jury directions, in traditional terms, that the offence must be proven beyond reasonable doubt. No criticism can be made of those directions. The Judge said that if she referred to facts being proved, or to the jury being satisfied, she meant proved beyond reasonable doubt, or satisfaction beyond reasonable doubt.
When referring to the uncharged acts, the Judge told the jury that they must be satisfied that they occurred. She told the jury that if they were not satisfied, they should disregard the evidence altogether.
In that respect, the directions that the Judge gave were consistent with the course of authority in this Court: see R v Nieterink (1999) 76 SASR 56 at [86]; R v IK (2004) 89 SASR 406 at [78]-[86]. Some differences of approach within this Court emerged in the decision in The Queen v M, RB [2007] SASC 207, but so far the decision in Nieterink has not been overturned. It continues to be followed and, in my opinion, should be followed. I refer to my reasons in R v M, RB at [26]-[27] and at [55]-[60].
I am aware that the High Court has granted special leave to appeal in a case or cases that might lead to a review of the decision in Nieterink, and later cases. However, for the time being this Court should adhere to the course that it has so far followed.
It follows that as the Judge directed the jury in accordance with existing authority, as counsel for the applicant acknowledged in the course of his argument, as things stand in this Court the appeal cannot succeed. It would not be appropriate to refrain from deciding the case until the High Court has given its decision in the cases in which it has granted special leave to appeal. There is no way of knowing how long that will take. To follow this course of action in a case that raises the questions of the directions to be given in relation to uncharged acts would result in an unacceptable number of appeals remaining undisposed of.
I add that this is not one of those cases in which the uncharged acts were relied upon as an indispensable link in the process of reasoning to guilt. It cannot be argued that for that reason it was necessary for the jury to be told that they must be satisfied beyond reasonable doubt that the uncharged acts, or particular uncharged acts, occurred. Nor is it one of those cases in which, because of a lack of particularity, the evidence of the charged acts cannot be separated from or distinguished from the course of conduct constituted by the uncharged acts, as was the case in R v Clifford [2004] SASC 104; (2004) 233 LSJS 157. On this point I refer to R v IK at [76], [125] and at [151].
I am satisfied in any event that the jury would have understood the Judge’s direction as meaning that they should act on this evidence only if satisfied beyond reasonable doubt that it was reliable.
The Judge gave the jury adequate directions about the use of the evidence. She told the jury that the evidence of a continuing sexual relationship might explain the continuing contact between Mr Humphrys and the boy, and the absence of any complaint. She warned the jury, in the usual terms, against reasoning in an impermissible manner. The directions cannot be criticised.
I would refuse permission to appeal on these grounds. They are not reasonably arguable.
I turn to ground 4.
This ground complains about something the Judge said almost at the end of her directions to the jury. Almost at the very end she told the jury:
If you determine that there is a reasonable possibility on the evidence you have heard that the accused did not do the act which in each case is the subject of the charge, considering each charge separately, then you must give him the benefit of the doubt and find him not guilty of that charge.
Taken in isolation, that direction might be said to contain within it the suggestion of a reversal of the onus of the burden of proof.
But when it is taken in the context of the summing up as a whole, I am satisfied that the jury would not have been in any way misled by it. It is not reasonably arguable that this amounted to a misdirection.
I would refuse permission to appeal on ground 4.
As the proposed grounds lack merit, it is appropriate to refuse to extend the time for the filing of the notice of appeal.
WHITE J: I agree with the reasons of the Chief Justice.
LAYTON J:
Introduction
On 15 September 2006, the applicant was convicted by a jury in the District Court of five counts of unlawful sexual intercourse with a person under the age of 17 years. The victim, AB, was a young male aged about 14 or 15 at the time of the offences.
The applicant sought an extension of time within which to apply for permission to appeal against his convictions. The applicant sought permission to appeal on four grounds, primarily concerning two topics: First that the trial Judge did not give specific directions to the jury on the topic of the victim’s intoxication in relation to counts 1, 2, 3 and 5, and second, that the trial Judge misdirected the jury about uncharged acts in relation to their use and the standard of proof.
A single Judge of this Court refused to grant an extension of time on the basis that none of the proposed grounds were reasonably arguable, such as to warrant the granting of permission to appeal. The applicant renewed his application to the Full Court. The hearing of this application took place on 18 September 2007. At the conclusion of the hearing the Full Court ordered that the application for an extension of time be refused. The Court indicated that it would publish reasons at a later date.
I agree with the Chief Justice’s reasons for the order made on 18 September 2007, and I also provide these further reasons in relation to grounds 1, 2 and 3. I have also set out some additional factual background of the circumstances of the offending and the victim’s evidence at trial.
The prosecution case
Counts 1, 2 and 3
The prosecution case was that counts 1, 2 and 3 occurred on the first day when AB first met the applicant, which was a few weeks before Christmas 2001. Each of these three counts were alleged to have occurred in toilets near a playground at Port Adelaide and were acts of fellatio.
AB gave evidence that he met the applicant at a toilet block in a Port Adelaide car park. At the time, AB was in Grade 10 at high school and was on school holidays. AB gave evidence that he had been “chroming”, that is, spraying paint in a bag and inhaling it. He had gone into a cubicle in the toilets where he met the applicant who was coming out of one. They had a general conversation about chroming and smoking cannabis. They then walked out through a car park to a playground. AB gave evidence that they were sitting on the swings and the applicant put his hand on him, just above the groin area. AB said that he did not do anything and he just sat there “pretty blank”, to use his words he was a bit “der” as a result of the chroming. AB said that he went to the toilets and the applicant followed him and soon after the three acts of fellatio occurred.
Subsequent to this offending, there was further communication between the applicant and AB. The applicant arranged for AB to obtain employment at a bakery where he also was employed. There the pair worked together and saw each other on a daily basis.
AB gave evidence of other uncharged sexual conduct between himself and the applicant after the acts in counts 1, 2, 3 and before the acts in count 4. These uncharged acts were:
·Performing an act of fellatio near a train line;
·Performing an act of fellatio and attempting anal intercourse at the applicant’s house at Hendon;
·The applicant engaged in sexual activity of some kind with AB up to two to three times a week and altogether about 15 incidents of fellatio and one of anal sexual intercourse.
AB also gave evidence that the applicant paid him money, bought him clothes, books and jewellery, gave him money for cigarettes and bus tickets and other money for day-to-day to activities. AB went out with the applicant and was introduced at times as his son, or nephew, or grandson. AB said that on many occasions the applicant told AB that he loved him.
At about this time, around 25 February 2002, the applicant suddenly disappeared. AB did not know where he was and became angry and upset. He was admitted to the Women’s and Children’s Hospital after he became drunk, broke down and tried to slit his wrist and smash things. He had attempted suicide and was suffering from depression. He later found out that the applicant’s disappearance was due to him serving a prison sentence between 24 February 2002 and 7 August 2002.
The applicant returned to work at the bakery after release and the relationship between AB and the applicant resumed. Further unspecified uncharged sexual activities were alleged to have occurred at Seaton prior to count 4.
Count 4
Count 4 was that the applicant performed an act of fellatio on AB on premises in Adelaide some time between 1 August 2002 and 28 February 2003.
In late 2002, just before AB’s 15^th birthday, the applicant suggested that they go to a place in the city where there are facilities, which includes rooms, a spa and a pool for homosexual sexual activity. The applicant and AB went into one of the rooms and AB gave evidence that the applicant committed two acts of fellatio on him.
AB also gave evidence of a further uncharged act alleged to have occurred at around Christmas 2002 whilst the applicant was living at the Portland Hotel. The incident occurred after the applicant and AB had been shopping together. AB said that whilst they were shopping he was drinking “watermelon red bears”. He said that he had about eight during the day and was drunk. AB later smoked some cannabis and then went to the applicant’s room at the Portland Hotel at about 6 or 7 pm. After showing a pornographic movie, the applicant performed an act of fellatio on him and later had anal sexual intercourse with a condom.

A week or so later, count 5 was alleged to have occurred.
Count 5
Count 5 was that the applicant engaged in anal sexual intercourse with AB at the Portland Hotel at Port Adelaide between 1 October 2002 and 31 March 2003.
AB gave evidence that he was drunk and had smoked cannabis. He described being in “a bit of a state” when he was at the applicant’s room at the Portland Hotel. He said that the applicant had anal sexual intercourse without using a condom.
AB also gave evidence of further uncharged acts when the applicant shifted to Melbourne in 2003 and AB visited him. He said that he visited the applicant on some eight occasions and that unspecified acts of fellatio and anal sexual intercourse took place. He also gave specific evidence of one such occasion when he saw the applicant who was living at a Brunswick hotel. After watching a pornographic movie, the applicant allegedly engaged in two specific acts of fellatio and anal intercourse.
The defence case
The applicant elected not to give evidence. He told police that he was helping AB out, and was trying to give him some direction in life. He strongly denied the allegations made against him.
The defence case was that AB’s allegations were fabricated and his evidence was fraught with inconsistencies and smacked of reconstruction. It was suggested that the allegations were only made after the applicant refused to give AB money, and were thus motivated by spite. Defence counsel also pointed to AB’s failure to report the applicant’s conduct to the police on earlier occasions as a reason for questioning AB’s credibility and reliability.
Ground 1 - Intoxication
The applicant complains that the trial Judge did not properly direct the jury about the victim’s admitted intoxication at around the time of the commission of counts 1, 2, 3 and 5.
There is no binding authority that a trial Judge must give an intoxication direction to a jury in every case in which a witness gives evidence that he or she has consumed drugs contemporaneously with the alleged commission of an offence. As in all cases, a direction is required if it is materially relevant in a particular case. As Duggan J, with whom Bollen and Mullighan JJ agreed, said in Bedi v The Queen: [1]
Intoxication may also be of relevance in the assessment of the reliability of the witnesses. If there is evidence of intoxication capable of having some bearing on these issues it is the duty of the trial judge to identify that evidence for the jury and relate it to those issues with appropriate directions on the law
[1] (1993) 61 SASR 269, 273.
With regard to evidence of intoxication in relation counts 1, 2 and 3, the trial Judge in her summing up accurately reflected AB’s evidence in relation to “chroming”. With regard to count 5, the trial Judge accurately reflected AB’s evidence, which was that he was drunk, had smoked cannabis and was in “a bit of a state”.
The trial Judge gave a warning to the jury with regard to AB’s reliability and truthfulness as a witness. First, in the context of alleged inconsistencies between his evidence and statements made to police, the trial Judge directed the jury to examine any discrepancies or inconsistencies “critically”. Later in her summing up, the trial Judge gave a warning:
I warn you, ladies and gentlemen, that it would be dangerous to convict the accused on the evidence of [AB] alone unless, after scrutinising his evidence with great care, considering the circumstances in which you are to evaluate it and paying heed to the warning, you are satisfied of its truth and accuracy.
The first question is whether or not in the present case intoxication was relevant to the assessment of AB’s reliability and whether it had a bearing on the facts in the case.
There was no cross-examination to suggest that AB’s evidence should be disbelieved on the basis of intoxication by any drug. There was no cross-examination to the effect that as a result of the taking of drugs and alcohol, AB had fabricated his evidence or that his evidence was a confabulation. There was also no point taken by the applicant as to any inadequacy or failure by the trial Judge to adequately summarise the applicant’s case. The applicant therefore now seeks to raise an issue on appeal which differs from the way the defence was conducted at trial. At trial, the alleged inconsistencies and reconstruction were not linked to the taking of drugs. To now rely on such an alternative approach is impermissible.
As the trial Judge appropriately brought the jury’s attention to the above matters, there was no need, in my view, for a further specific direction to be given on intoxication in the circumstances of this case.
I would refuse permission to appeal on this ground.
Grounds 2 and 3– uncharged acts
These two grounds concern whether the Judge erred in directing the jury about uncharged acts, namely their permissible use and the standard of proof.
The Court of Criminal Appeal in R v Nieterink,[2] R v IK,[3] and R v M, RB[4], has indicated the approach which should be taken by a trial judge in relation to uncharged acts. In substance, the preferred approach has been that, save for cases such as when uncharged acts form an indispensable link in the chain of reasoning to guilt, it may not be necessary for proof of such acts to be beyond reasonable doubt; such acts may better be characterised as circumstantial evidence explaining the complainant’s conduct.
[2] (1999) 76 SASR 56.
[3] (2004) 89 SASR 406.
[4] [2007] SASC 207.
This latter point was not specifically decided, but instead the Court concluded that rather than confuse a jury with different standards of proof, the jury should be given one standard only on such acts. This could be conveyed in the general directions about the standard of proof, which is beyond a reasonable doubt. In addition, the jury should be specifically told how such evidence can and cannot be used. In particular the jury should be warned against propensity reasoning.
More recently in the cases of R v O, AE[5] and R v M, RB[6], certain members of this Court have expressed differing views as to the approach in Nieterink. The High Court has granted special leave in respect of these two cases, as well as the case of R v S, B.[7] as to whether the Nieterink approach is correct. Until such time that the High Court deliberated on the matter, I agree with the Chief Justice that Nieterink should be followed. Moreover, whilst this case raises the issues discussed in Nieterink and subsequent cases, it seems that on any view, including the differing views so far expressed in this Court, the trial Judge’s directions were appropriate.
[5] [2007] SASC 206.
[6] [2007] SASC 207.
[7] [2006] SASC 319.
The trial Judge in her summing up specifically stated:
If, during the course of my summing up, I refer to facts to be proved or of which you must be satisfied, I mean proved, or satisfied beyond reasonable doubt.
The Judge again reiterated the standard of proof as being beyond reasonable doubt in relation to each of the counts, as well as generally.
When dealing with uncharged acts, the trial Judge referred to the requirement that the jury be “satisfied”, which is to be understood from the general direction as requiring proof beyond reasonable doubt. I am not persuaded by the applicant’s argument that because the additional words “beyond reasonable doubt” were not used at that point, the jury could have doubted that the standard of proof was other than proof beyond reasonable doubt. No other standard of proof was given to the jury.
The trial Judge also correctly warned the jury about propensity reasoning, namely that it would be quite wrong to reason that by the proof of the uncharged acts the appellant was therefore the sort of person who committed offences of that sort, or that he was the sort of person who would have committed the offences and must be guilty.
The Judge, in accordance with the approach in Nieterink, specifically directed the jury as to the relevance and use of uncharged acts. It had not been argued that the uncharged acts formed an indispensable link in the process of reasoning of guilt for any of the five counts. The Judge indicated that the only relevance was to place the five charges against the applicant in context. For example, to understand why AB would continue to have further contact with the accused and make no complaint and to give a context to the relationship may provide an explanation for AB’s behaviour in the circumstances of the alleged offences. The trial Judge also expressly stated that the jury were to consider each of the offences separately and to decide whether or not the prosecution had proved each count beyond reasonable doubt.
The charged acts have particularity and appear to be distinguishable from the uncharged acts. But insofar as the uncharged sexual acts may be regarded as so interwoven with the charged acts such that on one view they may require proof beyond reasonable doubt, the direction by the trial Judge meets that requirement. Likewise, in relation to giving the context of a relationship of a sexual nature, the direction was appropriate.
To the extent that it could be argued that the uncharged sexual acts may be regarded as a course of conduct to which the proof beyond reasonable doubt standard was required, again the direction of the trial Judge meets that requirement.
In short, the direction by the trial Judge was in accordance with Nieterink and does not offend the differing views expressed by some other members of this Court.
I would refuse permission to appeal on these grounds.
Conclusion
For these reasons, and for the reasons given by the Chief Justice, I agree with the order made on 18 September 2006 refusing an extension of time within which to apply for permission to appeal.