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Court of Criminal Appeal 23 August 2023

Humphreys v R

[2023] NSWCCA 205

Sexual offencesAssault & violence
CRIME APPEAL APPEAL AGAINST CONVICTION SEXUAL OFFENCES WHETHER CROWN RE WHERE ADMISSION NOT OBJECTED TO

Citation: Humphreys v R [2023] NSWCCA 205
Court: Court of Criminal Appeal, NSW
Date: 23 August 2023
Judges: Simpson AJA, Harrison J, Dhanji J

Background

The appellant was an interstate truck driver who met the complainant through a dating app. The two agreed to meet, and he drove her to Eastern Creek in his truck, where they consumed drugs and engaged in consensual sexual activity. The Crown's case was that subsequent sexual conduct, including anal intercourse, occurred without the complainant's consent and that the appellant also choked and assaulted her before ejecting her from the truck without driving her home.

The appellant was tried before a jury in the District Court. The jury returned verdicts of guilty on one count of sexual intercourse without consent and one count of assault occasioning actual bodily harm. The jury acquitted him of a further count of sexual intercourse without consent and the choking count, and two additional counts were dismissed by direction of the trial judge mid-trial.

On appeal, the appellant challenged the conduct of the Crown's case at trial. He pointed to aspects of the Crown's closing address and the late admission of an exhibit during his own case as grounds warranting a new trial.

  • Whether the Crown's closing address impermissibly invited the jury to draw adverse inferences from the appellant's exercise of his right to silence during his electronically recorded police interview (ERISP)
  • Whether the Crown's submission that certain lines of cross-examination of the complainant "could only have come from" the appellant misrepresented the state of the evidence
  • Whether, taken together, these two aspects of the Crown's address caused a miscarriage of justice
  • Whether the late tender of a certificate of drug test results (admitted after the Crown's case had closed) gave rise to a miscarriage of justice

Decision

Ground 1: The Crown's closing address

Harrison J (with whom Simpson AJA and Dhanji J agreed) held that neither aspect of the Crown's closing address, alone or in combination, caused a miscarriage of justice. On the right-to-silence point, the appellant's own counsel had not challenged the Crown's remarks at trial, and the trial judge gave the jury a clear direction that no adverse inference could be drawn from the appellant's exercise of that right. The failure to seek any further corrective direction after the Crown's comments was, in Dhanji J's view, likely a deliberate tactical choice to avoid drawing further attention to the transgression.

On the second aspect, the Crown had submitted in closing that certain lines of cross-examination of the complainant "could only have come from" the appellant himself, implying they were grounded solely in instructions he personally provided. Harrison J found these remarks were of little if any significance to the ultimate result. The context was that the nature of the encounter between the appellant and complainant was, from the outset, known to involve consensual sexual activity, and the cross-examination topics were not surprising given the agreed facts. No objection was taken at the time, and the remarks added nothing capable of saving the ground when combined with the right-to-silence point.

Dhanji J added that while the Crown was entitled to refer to the appellant's ERISP answers to demonstrate his level of alertness and comprehension during the interview (a genuine issue at trial), it was not permissible to invite the jury to draw adverse inferences from his choice to exercise the right to silence in that interview. His Honour noted that prosecutors must tread carefully in this area. However, the curative direction given by the trial judge, combined with the absence of any further complaint from defence counsel, meant no miscarriage arose on the facts of this case.

Ground 2: The late tender of the drug test certificate

The drug test results either went to matters irrelevant to the significant issues at trial or could not have caused any forensic disadvantage to the appellant. Critically, defence counsel had not objected to the tender at trial. That absence of objection engaged Rule 4.15 of the Supreme Court (Criminal Appeal) Rules 2021, which precluded the appellant from raising the objection for the first time on appeal. This ground was without merit.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • The Court of Criminal Appeal confirmed that a Crown prosecutor acts impermissibly when closing submissions invite the jury to draw adverse inferences from an accused's exercise of the right to silence during a pre-trial police interview, even though a blanket prohibition on comment (under s 20 of the Evidence Act 1995 (NSW)) applies only to an accused's choice not to give evidence at trial.
  • Where a trial judge gives clear corrective directions on the right to silence and defence counsel does not seek any further direction, a court on appeal may conclude that the direction was sufficient and that no miscarriage of justice resulted.
  • Prosecutors must also exercise caution when drawing inferences about the instructions an accused may have given to counsel, as such remarks risk misrepresenting the evidentiary foundation for defence cross-examination: see R v Abdallah [2001] NSWCCA 506.
  • No miscarriage of justice arises from impugned Crown conduct where the remarks were not objected to at trial, were of little practical significance to the verdict, and were accompanied by adequate curative directions.
  • Under Rule 4.15 of the Supreme Court (Criminal Appeal) Rules 2021, failure to object to the tender of evidence at trial can preclude a party from raising that objection as a ground of appeal.

Legislation and Cases Referenced

Legislation
- Evidence Act 1995 (NSW), s 20 (prohibition on prosecutorial comment on an accused's election not to give evidence at trial)
- Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 4.15 (restriction on raising objections not taken at trial)

Cases
- R v Abdallah (2001) 127 A Crim R 46; [2001] NSWCCA 506 (caution required when Crown draws inferences from instructions given by an accused to counsel)