Citation: R v Humphreys [2021] NSWDC 141
Court: District Court of New South Wales
Date: 20 April 2021
Judge(s): Wilson SC DCJ
Background
The accused faced charges including counts relating to alleged penile-anal penetration without consent. The trial had been listed in September 2020 but was vacated for a number of reasons, including the unavailability of a judge to commence proceedings.
Prior to the rescheduled trial in April 2021, the Crown Prosecutor conferred with the complainant on 18 March 2021. During that conference, the prosecutor read from four of the complainant's prior statements and recordings, and then asked her what her best memory was on the topic of anal penetration. Her accounts across those prior statements contained potential inconsistencies relevant to whether penetration had actually occurred.
The accused applied for a permanent stay of proceedings, arguing that the September 2020 police interview amounted to witness coaching and that the March 2021 conference by the Crown Prosecutor further contaminated the complainant's evidence, making a fair trial impossible.
Legal Issues
- Whether the officer in charge engaged in improper coaching of the complainant during the recorded interview on 14 September 2020
- Whether the Crown Prosecutor's conference with the complainant on 18 March 2021 constituted improper witness coaching or otherwise amounted to conduct justifying a permanent stay
- Whether the conduct of the Crown was such that proceeding to trial would compromise the integrity of the criminal justice system
Decision
Issue 1: The September 2020 police interview
The court rejected the contention that the officer in charge coached the complainant during the 14 September 2020 recorded interview. The early portions of the interview were conducted in a conventional, non-leading fashion, and the later, more specific questions drew upon answers the complainant had already volunteered (at [14]). There is nothing impermissible about returning a witness to their own earlier statements within the same interview and asking further questions about them (at [14]). The court also noted that the trial date was vacated because a judge was unavailable and for other reasons, and it described the submission that the adjournment was designed to let the complainant forget coaching as "utterly without foundation" (at [12]).
Issue 2: The March 2021 Crown conference
The court found the Crown Prosecutor's conference on 18 March 2021 to be entirely proper and appropriate (at [20], [24]). The prosecutor introduced the topic using the complainant's own words from her first police interview, accurately read from four prior statements, and then asked her for her best memory (at [15]-[18]). That methodology was considered appropriate to seek clarification of inconsistencies in prior accounts (at [16]). The court also noted that the Crown has a right and, in certain circumstances, an obligation to confer with complainants, as reflected in Clause 5.8 and Clauses 1.7 and 1.9 of the Prosecution Guidelines (at [25]-[26]).
Issue 3: Whether a permanent stay was warranted
The court found nothing in the Crown Prosecutor's conduct that came anywhere near the threshold required to justify a permanent stay (at [29]). To the contrary, the March 2021 conference was found to be not only appropriate but necessary to protect the interests of both the accused and the complainant, given the potential implications of the prior inconsistency for whether the charges could be sustained (at [26]-[29]).
Orders Made
- The accused's application for a permanent stay is refused
- The Notice of Motion dated 26 March 2021 is dismissed
Key Takeaways
- Returning a witness to answers they have already volunteered during a recorded interview, and asking further specific questions about those answers, does not constitute improper coaching (at [14]).
- The District Court confirmed that the Crown has both the right and, in some circumstances, an obligation to confer with complainants before trial, as reflected in Clause 5.8 and Clauses 1.7 and 1.9 of the Prosecution Guidelines (at [25]-[26]).
- Where a prosecutor reads accurately from a witness's prior statements and asks open questions about the witness's current recollection, such a conference is not witness coaching and does not ground an application for a permanent stay (at [20], [24]).
- A permanent stay requires conduct that seriously threatens the integrity of the criminal justice system; a pre-trial witness conference conducted in an appropriate and structured manner falls well short of that threshold (at [29]).
- Factual submissions unsupported by the transcript record, such as the claim that the trial was adjourned to allow a witness to forget alleged coaching, will be squarely rejected by the court (at [12]).
Legislation and Cases Referenced
Legislation
- None
Cases
- None