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) Evidence in Support of Stay Application 1. The Accused relied upon an affidavit of Christoper Wozniak, the Accused's solicitor, sworn 26 March 2021. 2. Also tendered was the Crown Bundle (Exhibit 1). Affidavit of Mr Wozniak 26 March 2021 1. In paragraph 4 of the affidavit of Mr Wozniak it was stated "on 14 September 2020 at the commencement of the Trial the defence was notified by the ODPP that its Witness was ill and otherwise unavailable". The transcript of proceedings before Judge Hanley SC on 14 September 2020 (Exhibit 1, Tab 9) makes it clear that was not the case. I have already extracted above what was said by Mr Chatterton, the Trial Advocate on 14 September 2020. It went on further than the suggestion that the complainant had flu-like symptoms the previous week and was to get a COVID test, and that they were trying to get hold of her that morning to see how she was feeling. She was plainly available as it was later that morning that she engaged in the audio record of interview with the officer in charge (Exhibit A, Annexure A). 2. Further, Mr Wozniak stated that: On or around 15 September 2020 the defence sought an undertaking from the ODPP that it would not provide the witness with any previous records of interview or statements. 1. In an affidavit of the ODPP solicitor, Kelly Anderson, sworn 31 March 2021 (Exhibit 1, Tab 7), Ms Anderson stated: On Monday 29 March 2021 I spoke with Mr Andrew Chatterton, previous advocate in this matter, who advised that no undertaking was given to the defence in respect of the complainant transcript dated 14 September 2020. 1. That is consistent with what it was said by Mr Chatterton in his affidavit of 9 April 2021 (Exhibit 1, Tab 8), in which he stated: At no time did I provide an undertaking to Mr David Phillips or Mr Christopher Wozniak that the transcript of 14 September 2020 would not be used to refresh the complainant's memory. 1. The absence of an undertaking on behalf of the Crown is also consistent with the statement by Mr Phillips of counsel on 15 September 2020 that he would be making an application to exclude the material (Exhibit 1, Tab 10, T2.7). The Crown Bundle 1. The Crown Bundle (Exhibit 1) contains a copy of the indictment, the Crown case statement, transcripts of interview and/or statement of the complainant, the affidavit of Ms Anderson, the affidavit of Mr Chatterton, and the transcripts of the proceedings at Parramatta between 14 September 2020 and 17 September 2020. Submissions in support of the application (MFI 1) 1. It was submitted on behalf of the Accused that the problems for the Crown "are the inherent inconsistencies" in the complainant's statements (DS [3]). As for the events of September 2020, it was submitted that "what in fact appears to have happened was that the police were trying to reconcile inconsistencies in her evidence in respect of the indictment". The basis for that submission remains unclear. Further, it was submitted that the complainant was interviewed by police on the first day of the trial, and that the officer in charge "resorted to leading questions to correct her evidence" (DS [4]). Counsel for the Accused submitted that "this amounted to witness coaching, which is not permitted". 2. It was submitted by counsel for the Accused that the trial date was vacated to allow for the complainant to "forget the witness coaching that had occurred" (DS [5]). This submission is contrary to the facts as established by the transcript, and utterly without foundation. The trial date was in fact vacated for a number of reasons, not the least of which was the unavailability of a Judge to commence the trial. 3. In addresses, counsel for the Accused was prepared to forgive what he described as coaching by the officer in charge, given the passage of time between September 2020 and the trial date in April 2021. He was troubled, however, by the fact that in March 2021 the Crown Prosecutor again conferenced the complainant and sought to clarify the inconsistency relating the anal sex, the subject of 2 counts on the indictment. 4. Before moving to that, I should pause to observe that having carefully considered the transcript of the recorded interview of 14 September 2020, I do not accept that the officer in charge engaged in coaching of the complainant. The early parts of the interview were conducted in a conventional, non-leading fashion. The parts of the transcript of the recording complained of by counsel for the Accused as being leading in nature resulted from the interviewer drawing upon answers given by the complainant voluntarily to non-leading questions earlier in the interview. There is nothing impermissible about an interviewer taking a witness back to statements made in the course of the interview and asking further, more specific questions. I reject the submission that the officer in charge coached the complainant in the interview which occurred on 14 September 2020. 5. In any event, as already stated, the Accused's counsel was prepared to let that lie. The basis of the application for a permanent stay was enlivened by the fact that on 18 March 2021 the Crown Prosecutor re-conferenced the witness. The conference note (Exhibit A, Annexure C) is an accurate note of what occurred during the conference. It began with Mr Hughes making the following statement: I'm going to talk to you about what happened after the consensual stuff. The bit where you say "sticking it up my bum". 1. The words used by counsel to introduce the topic were precisely the same words used by the complainant in her very first interview with the police on 7 April 2019. In my view, it was an entirely appropriate manner to introduce the topic in order to seek clarification as to any inconsistencies in her previous accounts. 2. Counsel then read to the complainant the relevant portions of her first record of interview dated 7 April 2019 (Exhibit 1, Tab 3), her second record of interview dated 30 August 2019 (Exhibit 1, Tab 2), her statement of 29 July 2020 (Exhibit 1, Tab 3), and finally the record of the interview sought to be impugned by the defence of 14 September 2020 (Exhibit 1, Tab 4). 3. After counsel had accurately read from those 4 source documents, the previous statements relating to the topic in question, he then said to the complainant "today, what's your best memory?". 4. That then led the complainant to describe that the Accused's penis entered her anus a little bit but not all the way. 5. In my view, there was nothing at all improper about the manner in which the Crown Prosecutor conferenced the witness on that occasion. 6. In his written submissions (MFI 1) counsel for the Accused submitted that his client could not have a fair trial and that it was necessary to stay the proceedings in order to protect the integrity of the criminal justice system. 7. It was submitted that the complainant had given her account on the day of the incident and "that is where the matter should have stopped" (DS [20]). He further submitted that "the continued efforts by the prosecution to perfect only raised more inconsistencies" (DS [20]), and that any contamination or corruption of (the complainant's) evidence should have been avoided (DS [21]). 8. The complaint made by counsel for the Accused about the 14 September 2020 interview was curious as, on one view of the question and answer at the top of page 8, the complainant said that she did not know whether she was anally penetrated by the Accused. This is a matter which could and was in fact used by counsel for the Accused in the cross-examination of the complainant and the officer in charge. Consideration 1. I have already considered and found that there was nothing improper about the manner in which the Crown Prosecutor interviewed the complainant on 18 March 2021. In fact, in my view, the manner in which the interview was conducted was entirely proper, precise and appropriate. 2. In exchanges in the course of addresses, I reminded counsel for the Accused that the Crown has the right to interview complainants. Clause 5.8 of the Prosecution Guidelines (March 2021) specifically provides for consultation with the victim. 3. The need for the consultation with the victim in March 2021 or at any time prior to the adjourned trial date in April 2021 was necessary by reason of the potential inconsistency in her prior statements about whether she was anally penetrated by the Accused. The Crown has an ongoing obligation to consider whether to proceed with prosecutions (see Clauses 1.7 and 1.9 of the Guidelines). Clause 1.9 in particular provides for the Crown to reconsider a prosecution decision, and if it is in the interests of justice to do so, it may reverse a decision if: * significant new facts warrant it; * the decision was the result of fraud or improper conduct; or * the decision was made on an erroneous basis. 1. This was raised with the Prosecutor. A matter in his mind was whether or not the indictment should be amended to allege attempt rather than actual anal penetration. 2. If the statement by the complainant of 14 September 2020 was to stand and be evidence at trial, then the allegation that there was sexual intercourse without consent by reason of penile-anal penetration could not be made out. 3. In my opinion, the conference which took place on 18 March 2021 was not only appropriate, but necessary in order to protect the interests of both the Accused and the complainant. There has been nothing in the conduct of the Crown Prosecutor which, in my view, would go anywhere near justifying a stay of the proceedings. 4. Accordingly, I make the following orders: 1. the Accused's application for a permanent stay is refused; and 2. the Notice of Motion dated 26 March 2021 is dismissed. ********** I certify that the previous 30 paragraphs are the reasons for the Judgment of his Honour Judge D Wilson SC. J Bailey Associate DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 29 April 2021