R v Humphreys [2021] NSWDC 141

District Court New South Wales

Medium Neutral Citation: R v Humphreys [2021] NSWDC 141 Hearing dates: 20 April 2021 Date of orders: 20 April 2021 Decision date: 20 April 2021 Jurisdiction: Criminal Before: Wilson SC DCJ Decision: (1) the Accused's application for a permanent stay is refused; and (2) the Notice of Motion dated 26 March 2021 is dismissed. Catchwords: CRIME – Procedural Ruling – Application for Permanent Stay by reason of conduct of Crown Prosecutor Legislation Cited: None Cases Cited: None Texts Cited: ODPP Prosecution Guidelines (March 2021) Category: Procedural rulings Parties: Regina (ODPP) Jason Humphreys (Accused) Representation: Counsel: Dr A Hughes (ODPP) Mr D Phillips (Accused)

Solicitor: ODPP Solicitor (ODPP) Mr D Enright (Accused) File Number(s): 2019/107681; 2020/51911 Publication restriction: None

Judgment 1. By notice of motion dated 26 March 2021 the Accused sought an order that these proceedings be stayed as a result of the conduct of the Crown Prosecutor. The basis of the application was that, in the course of a conference with the complainant, the Crown sought, by asking leading questions to "reconcile inconsistencies" (Defence submissions April 2021 (MFI 1) Paragraph 6 (DS [3])) said to exist in previous accounts provided by the complainant. 2. That submission was rejected and the application for a stay refused. Reasons were reserved and are provided now.

Chronology Date Event 14 January 1981 Accused born (now 40 years of age) 17 October 1997 Complainant born (now 23 years of age) 7 April 2019 Date of alleged offending 7 April 2019 at 8:16am Complainant's first record of interview with police (Exhibit 1, Tab 3) 30 August 2019 Complainant's second record of interview with police (Exhibit 1, Tab 4) 29 July 2020 Statement by complainant to police (Exhibit 1, Tab 5) Trial due to commence in District Court at Parramatta (For transcript see Exhibit 1, Tab 9). 14 September 2020 When the matter was called at 9:30am before the List Judge the Court was informed by the Trial Advocate that the last contact they had with the complainant was late the previous week when she had flu-like symptoms and was going for a COVID test and that they were "trying to get hold of her this morning to find out what the result of that was and how she is feeling". The List Judge informed parties that he did not think that a trial judge would be available. The matter was stood over to Tuesday 15 September 2020 (Exhibit 1, Tab 10). 14 September 2020 Recorded interview between complainant and police (For transcript see Exhibit 1, Tab 6) Matter before List Judge at Parramatta. Mr Phillips of counsel for the Accused informed the List Judge that the complainant had been interviewed again by police on 14 September 2020 "to try and reconcile inconsistencies between the ERISP and her later statement" (T1.42). It was suggested that leading questions had been asked of the complainant by the officer in charge, which caused Mr Phillips to have "very real concerns" about the further statement (T2.1). 15 September 2020 Mr Phillips told the Court that he would be making an application that the further statement be excluded and that the witness not be able to refresh her memory from that statement (T2.7). No such application was made. It was conceded by the Trial Advocate that there were some questions asked by the officer in charge of the complainant "that perhaps could have been put in a better way" (T2.49). The Matter was adjourned to the next day in case a Judge became available (Exhibit 1, Tab 10). 16 September 2020 Matter before the List Judge at Parramatta who indicated that the trial would not commence. Mr Phillips of counsel indicated that he wished the trial date to be vacated. As it turned out, the Accused had not been brought to Court and the Matter was stood over to the next day (Exhibit 1, Tab 11). 17 September 2020 Matter again before the List Judge. Proceedings transferred from Parramatta to Sydney with a trial date set of 19 April 2021 (Exhibit 1, Tab 12). 18 March 2021 Conference with complainant conducted by Dr Hughes, (non-salaried) Crown Prosecutor with instructing solicitor (Exhibit A, Annexure C)