Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Humphreys v R [2023] NSWCCA 205 Hearing dates: 7 August 2023 Date of orders: 23 August 2023 Decision date: 23 August 2023 Before: Simpson AJA at [1] Harrison J at [2] Dhanji J at [37] Decision: (1) Grant leave to appeal. (2) Dismiss the appeal. Catchwords: CRIME – appeal – appeal against conviction – sexual offences – where Crown said to have invited impermissible lines of reasoning – whether Crown sought jury to draw adverse inference from applicant's exercise of right to silence – where subsequent direction by trial judge's efficacy never challenged – whether Crown in closing submissions misrepresented state of the evidence – whether Crown re-opened their case impermissibly via admitting exhibit – where admission not objected to Legislation Cited: Evidence Act 1995 (NSW) s 20 Supreme Court (Criminal Appeal) Rules 2021 (NSW) r 4.15 Cases Cited: R v Abdallah (2001) 127 A Crim R 46; [2001] NSWCCA 506 Category: Principal judgment Parties: Jason Humphreys (Applicant) Rex (Respondent) Representation: Counsel: K Averre with H Thomas-Dubler (Applicant) E Balodis (Respondent) Solicitors: Smythe Wozniak Lawyers (Applicant) Solicitor for Public Prosecutions (NSW) (Respondent) File Number(s): 2019/107681 Publication restriction: Nil Decision under appeal Court or tribunal: District Court of NSW Jurisdiction: Criminal Citation: [2021] NSWDC 311 (sentence) Date of Decision: 3 May 2021 Before: Wilson SC DCJ File Number(s): 2019/00107681 HEADNOTE [This headnote is not to be read as part of the judgment] Mr Humphreys was tried and convicted before Wilson SC DCJ of one count of sexual intercourse without consent and one count of assault occasioning actual bodily harm by a jury on 3 May 2021. The jury also came back with a not guilty verdict as to a second count of sexual intercourse without consent and a count of choking without consent. Two verdicts of not guilty to two further counts of sexual intercourse without consent were entered on 26 April 2021 by direction. The encounter which gave rise to the allegations against Mr Humphreys was accepted to have initially been a consensual one, following arrangements on a dating app which led to he and the complainant meeting up. The complainant was at some point anally penetrated by Mr Humphreys. The case for the Crown was that this happened against the explicit protests of the complainant; Mr Humphreys said that the penetration was accidental and he immediately stopped intercourse after she disavowed anal sex. The Crown then alleged that Mr Humphreys tried penetrating the complainant's anus again and choked her, after which an argument followed where he swung at her and verbally evicted her from the truck. It was not in dispute that prior to the encounter, the complainant and Mr Humphreys had taken some drugs in the truck before having sex. Mr Humphreys took issue on appeal with two aspects of the conduct of the Crown's case, those being: * Certain submissions in the Crown's closing argument which were said to invite the jury "to engage in impermissible lines of reasoning when attacking the case for [Mr Humphreys]"; * The tender of a certificate of drug test results admitted after the Crown's case had already closed The first of these grounds was further bifurcated with reference to two grounds which were said to cause a miscarriage of justice only when taken together: * A submission about some "no comment" answers given by Mr Humphreys during an ERISP, which was said to invite the jury to draw adverse inferences from the exercise of the right to silence (but which was also the subject of specific directions to the jury to not do this); and, * A submission that some lines of questioning in cross-examination of the complainant "could only have come from Mr Humphreys" [emphasis added], which was said to misrepresent the state of available evidence by implying that these lines of inquiry were not grounded in the available material. The Court held (granting leave to appeal but dismissing the appeal): Ground One: Per Harrison J (Simpson AJA and Dhanji J agreeing): 1. Nothing said by the Crown at trial regarding Mr Humphreys' ERISP, or the way in which the trial judge dealt with it could alone give rise to a viable ground of appeal. So much so was accepted by Mr Humphreys: [17] 2. Even factoring in the additional Crown attacks on the opening address made on behalf of Mr Humphreys, these remarks were not challenged at trial by Mr Humphreys' counsel. The remarks were of little if any significance in the ultimate result. The purpose of the meeting between the complainant and Mr Humphreys possibly if not obviously involved the prospect of consensual sex. Part one of this ground cannot succeed on its own and part two adds nothing that saves it: [25]-[30] Ground Two: 1. The results of the certificate went to matters either irrelevant to the significant issues at trial or alternatively could not have caused any forensic disadvantage, and in any event, an objection now to this tender is precluded by the activation of Rule 4.15: [34]. JUDGMENT 1. SIMPSON AJA: I agree with the orders proposed by Harrison J and with his Honour's reasons therefor, and with the additional observations of Dhanji J. 2. HARRISON J: On 21 April 2021, Jason Humphreys was arraigned before a jury panel on an indictment containing the following counts: Count Particulars 1 On 7 April 2019 at Eastern Creek in the State of New South Wales did have sexual intercourse without the consent of FR ("the complainant") and knowing that the said complainant had not consented to the sexual intercourse 2 On 7 April 2019 at Eastern Creek in the State of New South Wales did have sexual intercourse without the consent of the complainant and knowing that the said complainant had not consented to the sexual intercourse 3 On 7 April 2019 at Eastern Creek in the State of New South Wales did have sexual intercourse without the consent of the complainant and knowing that the said complainant had not consented to the sexual intercourse 4 On 7 April 2019 at Eastern Creek in the State of New South Wales did have sexual intercourse without the consent of the complainant and knowing that the said complainant had not consented to the sexual intercourse 5 On 7 April 2019 at Eastern Creek in the State of New South Wales intentionally choked the complainant without the consent of the complainant 6 In the alternative On 7 April 2019 at Eastern Creek in the State of New South Wales assaulted the complainant thereby complaining actual bodily harm. 1. On 26 April 2021, the jury returned verdicts of not guilty on counts 2 and 4 on the indictment at the direction of the trial judge. On 3 May 2021, the jury returned verdicts of guilty on counts 1 and 6 and not guilty verdict on counts 3 and 5. 2. On 12 July 2021, Mr Humphreys was sentenced to an aggregate term of imprisonment of 4 years and 3 months with an aggregate non-parole period of 3 years and 2 months commencing on 4 November 2020 and expiring on 3 January 2024. Background facts 1. Mr Humphreys is an interstate truck driver. He and the complainant made contact via a dating app and agreed to meet up. Mr Humphreys picked up the complainant from near her home in Leichhardt and they agreed he would take her for a drive in his truck. They drove to Eastern Creek, where Mr Humphreys parked, and they entered the rear cabin of the truck, where they consumed drugs on Mr Humphreys' bed. 2. A short time later, Mr Humphreys and the complainant engaged in consensual sexual activity. The Crown case was that later sexual activity took place between them without the complainant's consent. That included digital, anal and penile intercourse and forced oral sex. The complainant also maintained that she was choked and assaulted by Mr Humphreys and that she asked him to stop. 3. The Crown alleged that Mr Humphreys became upset with the complainant because of her protests, and told her to leave his truck. He refused to drive her home. The complainant then approached a security guard who called 000 on her behalf. 4. Counsel for Mr Humphreys commenced his opening by pointing out to the jury that there were a number of matters that were not in dispute. Those included that he and the complainant were in contact over social media, that on the night in question they agreed to meet up, that Mr Humphreys picked up the complainant and drove to Eastern Creek and that they consumed drugs and engaged in sexual activity in the cabin. 5. Mr Humphreys' counsel also informed the jury that it was not in dispute that at some stage during the sexual activity, the complainant became upset over the issue or topic of anal sex and that at some point thereafter she left the truck. Counsel told the jury that what would be in dispute was whether or not Mr Humphreys penetrated the complainant's anus, whether she indicated that she did not consent to any such activity, and if she did indicate that she did not consent, whether any anal sex took place thereafter. It would also be in issue that Mr Humphreys made any attempt to strangle the complainant after the alleged anal sex incident. 6. Mr Humphreys raises two grounds of appeal: Ground 1: The trial miscarried as a result of the prosecution closing address during which the prosecutor invited the jury to engage in impermissible lines of reasoning when attacking the case for the appellant. Ground 2: The trial miscarried as a result of the prosecution tender of a certificate of blood analysis, Exhibit J, in the course of the applicant's case. Ground 1 1. Mr Humphreys submitted that there were two aspects of the Crown's closing address that give rise to this ground of appeal. First, that the invitation to the jury to draw an adverse inference from Mr Humphreys' exercise of his right to silence in his electronic interview and secondly, that the reference in the Crown's closing address to the opening remarks of Mr Humphreys' own counsel, together gave rise to a miscarriage of justice. 2. The Crown's closing address to the jury included the following remarks: "If you accept what he said in Court now about being so tired that he just didn't know what was going on, you have to also believe that when he said to police he was getting tired, he was not being truthful there either. While we're dealing with that topic of him in the interview, you might think that his attempts to paint himself as confused in the police interview is nothing more than a cover, a way of distancing himself from things he said in that interview which were unhelpful to his case. I'd urge you to be extremely cautious about this claim to confusion in circumstances where he didn't tell anyone he was tired or on drugs, didn't ask for the interview to be stopped or delayed. … You'll also see, if you watch the interview again, that he was well capable of deciding whether to answer questions or not, he was able to recount details of things he said happened earlier that day. So I suggest to you that you just wouldn't accept his claim that he was confused, and that is another example of him saying things which he thinks are in his own personal self-interest in this case. Also, he was specifically asked by police why it was that [the complainant] was so upset. He said nothing to police about a previous rape; in fact when he was asked, 'Why would she leave your truck crying', he said, 'No comment'. He had the opportunity to tell police the exact reason he now says caused her to be upset, but he didn't. He was specifically asked what the argument was [sic, with] [the complainant] was about and this time he said that he couldn't remember, that's different to his earlier remark of no comment. He can't both know and not want to talk about it and not remember it. I suggest you might think that he's been deliberately evasive with police in that interview." 1. After the Crown closing, counsel for Mr Humphreys raised the issue with his Honour in the absence of the jury: "Mr PHILLIPS: … I also have a comment of my learned friend made about the ERISP which he's quite entitled to but he also made comment about the no comment answers. The accused has a right to silence if he wishes to exercise it and that should not have been subject to an adverse comment by my learned friend. HIS HONOUR: Well it wasn't in the adverse, it was in the context of explaining that your client was aware of the fact that he had a right to silence. MR PHILLIPS: Yes. Well those are the only two points I wanted to raise your Honour." 1. When the jury returned, and before counsel for Mr Humphreys' closing address, his Honour gave the following direction: "… no criticism is intended because there was nothing wrong in mentioning it; but in the course of addresses, the Crown referred to the fact that the accused, in the police interview, on occasion, said, 'no comment'. There is to be no adverse inference drawn from the fact that he chose not to answer certain questions, he has a right to silence which he exercised on occasions. I think the Crown's point really was that he was aware of the fact that he didn't have to answer the questions and you can use it for that purpose, but you can't use it to draw any adverse inference as to what the answer may have been or indeed speculate as to what the answer may have been." 1. His Honour further directed the jury on silence in his summing up: "In this case, it would be quite wrong if the accused, having listened to what the police said, that is, you do not have to say anything, and having decided to exercise his right to silence, in this case in part, later found that a jury was using that fact against him; you must not do that. It is important, therefore, that you bear in mind the accused not answering all the questions asked by the police cannot be used against him in any way at all." 1. Counsel for Mr Humphreys in this Court noted that there was no objection taken by his trial counsel to this direction but that it was the duty of the trial judge to remove the risk of any prejudice that might have been caused by the Crown's remarks. If that could not be done by appropriate directions, the jury should have been discharged. However, as must be acknowledged, the trial judge was clearly of the view that the Crown had not engaged in any process of reasoning that sought illegitimately or impermissibly to suggest to the jury that an adverse inference could be drawn against Mr Humphreys by the exercise of his right to silence. There was no application to discharge the jury. 2. In those circumstances, it was accepted by Mr Humphreys in this Court that, standing alone, nothing said by the Crown at trial or the way in which the trial judge dealt with it could give rise to a viable ground of appeal. 3. Secondly, however, Mr Humphreys contended that the combined effect of the trial judge's directions and the reference by the Crown in his closing address to the opening remarks of Mr Humphreys' own counsel at trial, caused a miscarriage of justice. The Crown said this in his closing remarks: "Then there's the question in the record of interview, question 253, where he was asked by police if he had any intentions of having sex when he picked the complainant up; he said no. But when Mr Phillips cross-examined on his behalf, he suggested to the complainant that this was a prearranged plan. Was he being untruthful to police or was he being untruthful in instructing his counsel to ask such questions? Relatedly, I note that when Mr Phillips opened, he said, 'We also say that both [the complainant] and Mr Humphreys had arranged to meet up for sex and both were eager to have sex'. His instructions to say those things to you in opening can only have come from Mr Humphreys. But contrast that with what the accused actually said in his evidence. He said that they were going somewhere to chill, listen to music, have some fun and see where it goes. You might wonder whether Mr Humphreys has tailored his evidence on this point after hearing the complainant's evidence where she denied that there was any prearranged plan to have sex when they met up. For at least those reasons, I suggest to you that you just wouldn't accept the evidence of the accused, either in his interview with police or his performance in Court. He was untruthful, he was evasive, he was inconsistent and overall not to be believed. Having rejected his account, you don't just automatically convict him though; what you're left with is the account of the complainant and her complaints to others, and you still have your job to assess that evidence." 1. Mr Averre of counsel for Mr Humphreys in this Court referred to those remarks in his written submissions in these terms: "This submission was made in the Crown's closing statement that an assertion made by Mr Phillips in his opening, to the effect that the complainant and the applicant had in fact agreed in advance that they were meeting up to have sex, was contradicted by the evidence of the applicant both in his ERISP and oral evidence, as well as by the complainant in cross-examination, and as such Mr Phillips' 'instructions to say those things to you in opening can only have come from Mr Humphreys'. The thrust of this submission was that an adverse inference could be drawn as to the applicant's credibility on the basis that his evidence was inconsistent with a submission made by counsel that could only have been based on his instructions." 1. Mr Averre submitted that the inference advanced, namely that this assertion could only have been based on Mr Humphreys' instructions, was not correct since it was contradicted by the transcript of a police interview of the complainant conducted on 30 August 2019. That transcript was not tendered at the trial, although the complainant told police on that occasion that "We a talk on the phone about, um, about how we're going to meet and have really good sex. He, he said he wanted to. And I said, 'Yeah, O.K. that's fine with me', the first time. And then the second time…". 1. Mr Humphreys' evidence-in-chief included him saying, "We discussed some drug taking and having some fun and basically seeing where it leads." 2. Mr Humphreys' complaint in this appeal in these circumstances is that the Crown prosecutor at trial "misstated the state of the available evidence". Furthermore, nothing was put to Mr Humphreys in cross-examination by the prosecutor in this regard. 3. The Crown's submissions in response to this contention were as follows: "33. The Crown Prosecutor's ultimate point was that Mr Humphreys, having denied that he had an intention to have sex with the complainant when he picked her up, must have instructed defence … counsel to the contrary, but when it came time to give evidence he had adopted a course that was consistent with the complainant and was therefore tailoring his evidence. The submission was only put as high as the jury being asked to consider whether that was a possible explanation. It is different to Decision Restricted [2021] NSWCCA 287 the authority to [sic, on] which the applicant relies: AWS [129]. This was not a confected theory of the Crown's but the posing of a possibility as to why there was such a difference between the defence opening and the applicant's evidence. It was a matter for the jury to consider, in the context of other arguments put by the Crown Prosecutor against an acceptance of the applicant's evidence. In that context, the submission the subject of this ground did not, it is submitted, loom large and as a result required no attention from the trial judge: Hofer v R [2019] NSWCCA 244 at [120]-[132]; Gardiner v R [2023] NSWCCA 89 at [159]. 34. Defence counsel made no objection concerning the Crown Prosecutor's submission. It strongly suggests that defence counsel was well aware that the submission was open. Furthermore, the lack of objection to the summing up of the trial judge, who did not advert to the Crown Prosecutor's submission in the summing up, raises Rule 4.15 of the Supreme Court (Criminal Appeal) Rules. The applicant submits that a miscarriage of justice arose through the Crown Prosecutor's submission: AWS [135]. For the reasons herein, no such miscarriage occurred." Consideration 1. This ground of appeal in my opinion yields to a common sense understanding of how the Crown presented its case and how Mr Humphreys responded to it. It does not appear to be controversial from Mr Humphreys' perspective that he and the complainant agreed to meet up, having previously "discussed some drug taking and having some fun and basically seeing where it leads". Whatever may have been Mr Humphreys' evidence about what the words "having some fun" and "seeing where it leads" may have meant, it could hardly be seriously contended, in the circumstances of this case, that it would not have conveyed to a reasonable jury applying their understanding of human affairs that a sexual encounter was proposed or anticipated. The complainant agreed. 2. Additionally, Mr Humphreys' response to the Crown case was that the sex that they engaged in was consensual to the point when the complainant withdrew her consent after which no further sexual activity took place. In that context, an opening by Mr Phillips suggesting that the original agreement had been to meet up for sex is on the one hand an available description of what in fact occurred and a proposition of little if any significance in the ultimate result on the other hand. The issue of whether the complainant consented to everything that she alleges occurred is hardly dependent upon whether she and Mr Humphreys agreed in advance to have sex or only did so at some later stage. 3. Moreover, the opening remarks of Mr Humphreys' counsel would obviously have been made with Mr Humphreys present in court. The same counsel later led evidence from him about discussing some drug taking and having some fun. It is wholly unrealistic now in this Court to attempt on appeal to deconstruct what occurred in the trial by comparing counsel's opening remarks to the jury with what Mr Humphreys said when questioned, where the obvious common sense dynamic of the trial was that the complainant and Mr Humphreys met up for the purpose of "fun" that possibly, if not obviously, involved the prospect of consensual sex. 4. Far from the inference advanced by the Crown being incorrect or not available, namely that Mr Humphreys' counsel's assertion, that he and the complainant arranged to meet up for sex and that it could only have been based on Mr Humphreys' instructions, it seems to me to have been a perfectly reasonable, if not an inevitable, inference to draw. The Crown's submission, asserting that Mr Humphreys could have been the only source of the suggestion, was hardly "contradicted" by the fact that the complainant said the same thing in her interview with the police. The so-called contradiction is in any event of no significance: the overarching theme of the evidence from both the complainant and Mr Humphreys was arguably that the pair agreed in advance to meet up for activity that would most probably involve sex and the case was conducted upon that basis from the start. 5. I also cannot accept that the Crown prosecutor had no basis for his submission concerning the suggested source of his instructions upon which Mr Humphreys' counsel opened to the jury. By the time the submission was made, Mr Humphreys had given his evidence in the trial. There was no complaint about the Crown's address or the suggestion that the impugned inference was not available. The absence of any complaint by Mr Humphreys' counsel at the time seems to accord entirely with what the evidence suggested was happening in the trial. It cannot in my opinion amount to an attempt to suggest that Mr Humphreys tailored his evidence to suit the complainant's version of what occurred simply by emphasising what his counsel said in opening to the jury just because Mr Humphreys did not in terms embrace the suggestion in his evidence. As I have already noted, the case was conducted upon the basis that Mr Humphreys and the complainant initially engaged in consensual sex. The jury could in my view have been left in no doubt that the point of difference between the two sides was the question of whether or not, and if so when, the complainant withdrew her consent. Rule 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW) is engaged. 6. Finally, I note that Mr Averre submitted that "it is also of note that counsel for [Mr Humphreys] had not cross-examined the complainant on the prior inconsistent statement contained in her interview with the police when in cross-examination she had denied any prior discussion as regards having sex with [him]". I do not understand this submission. First, as appears above, the complainant told the police in her interview that she spoke to Mr Humphreys on the phone about them going to meet up "and have really good sex". That is hardly a denial to the police that she and Mr Humphreys had any prior discussion "as regards having sex" with him and is not a prior inconsistent statement. Moreover, secondly, the complainant was cross-examined at the trial about this and gave the following evidence that effectively accorded with what she told the police on 30 August 2019: "Q. I'm also going to suggest to you that you understood that there was going to be consensual intercourse once you arrived at the location? A. Sorry, can you explain that again. Q. I'm going to suggest to you that you knew there was going to be consensual intercourse when you arrived at the location? A. Yes, when he said, 'Maybe a little bit of fun'. Q. When he referred to having a bit of fun, you knew that he was referring to sexual intercourse, didn't you? A. The second time he said it. Q. Shortly after arriving at Eastern Creek, sexual activity commenced between the two of you, didn't it? A. Yes. … Q. Before sex started you were fully aware that you were going to have sexual intercourse with him, weren't you? A. Yes." 1. I am unable to accept that any miscarriage of justice has been occasioned. Part one of this ground cannot succeed on its own and part two of this ground adds nothing that saves it. This ground of appeal should be dismissed. Ground 2 1. Mr Humphreys uncontroversially submitted that the Crown is obliged to present its case completely before the accused is called upon for his response to the Crown case and that it is only in "very exceptional circumstances" that the Crown should be permitted to re-open its case. In this case, between the examination-in-chief of Mr Humphreys and his cross-examination, a jury note was received which asked, "Was the complainant drug tested at or around the morning of the incident?". 2. The Crown indicated that there was a pathology certificate that referred to this issue. Counsel for Mr Humphreys raised no objection to an agreed fact being tendered by the Crown at the close of Mr Humphreys' case. He also indicated that he had no objection to the trial judge telling the jury that the complainant was blood tested and that there was methylamphetamine in her system. The trial judge informed the jury of this and following cross-examination of Mr Humphreys the Crown tendered the certificate of analysis without objection. 3. Mr Averre submitted in this Court that this could not be said to have been an exceptional case and there was no consideration given as to the principles relevant to the exercise of discretion to permit the Crown to re-open its case. Consideration 1. Quite apart from the fact that, in my view, Rule 4.15 of the Supreme Court (Criminal Appeal) Rules would be a complete answer to this ground, I have difficulty with the proposition that what occurred caused the trial to miscarry. The fact that the complainant was found to have methylamphetamine in her blood and urine was entirely consistent with evidence given by her and not the subject of contest. Furthermore, the evidence was either completely irrelevant to the significant issues in the trial or alternatively could not have caused any forensic disadvantage to Mr Humphreys in any event. However, most significantly, the course adopted at the trial was consented to by counsel for Mr Humphreys. No complaint is made that his counsel erred in some way in doing so. 2. This ground of appeal is without merit. Conclusion and orders 1. I propose the following orders: 1. Grant leave to appeal. 2. Dismiss the appeal. 1. DHANJI J: I agree with the orders proposed by Harrison J and with his Honour's reasons for those orders. I would only add the following. 2. Those who prosecute on behalf of the Crown have an important responsibility. There are many concerns that prosecutors are expected to be mindful of to ensure that an accused receives a fair trial. There are areas where, if a prosecutor is to tread, they must do so with caution. One such area is an accused's choice to exercise the right to silence, either in whole or in part, prior to trial. (At trial there is, of course, an outright prohibition on comment by the prosecutor on an accused's choice not to give evidence: s 20, Evidence Act 1995 (NSW).) In the present matter, the prosecutor was entitled to draw attention to answers given by the applicant in his record of interview with police to establish the applicant was aware of, and capable of exercising, his right to silence. That reflected on his level of alertness and comprehension at the time of the interview, which became an issue at trial. It was not, however, permissible to, as the prosecutor here did, make submissions suggesting an adverse inference should be drawn from the applicant's exercise of his right. However, in the present matter, as Harrison J has pointed out, the trial judge gave clear directions to the jury that they could not draw an adverse inference from the applicant's exercise of his right to silence. While his Honour did not directly address the prosecutor's impermissible use of the evidence, the applicant's counsel did not seek any further direction. The likely explanation, in my view, is that it was considered preferable not to draw further attention to the prosecutor's transgression. 3. Another area where caution on the part of prosecutors is advisable, is in the drawing of inferences as to what instructions an accused may have given to counsel: see R v Abdallah [2001] NSWCCA 506; (2001) 127 A Crim R 46 and the cases there discussed. However, in the present case, for the reasons given by Harrison J, no miscarriage of justice arose. ********** 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: 23 August 2023