Higgins (a pseudonym) v The Queen - [2016] VSCA 47

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2015 0232

OSCAR HIGGINS (A PSEUDONYM)[1]	Applicant
v
THE QUEEN	Respondent

[1]To ensure that there is no possibility of identification, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the respondent.

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JUDGES:	REDLICH, WEINBERG, OSBORN JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	17 March 2016
DATE OF JUDGMENT:	18 March 2016
MEDIUM NEUTRAL CITATION:	[2016] VSCA 47
JUDGMENT APPEALED FROM:	R v [Higgins] (Ruling No 3) [2015] VSC 614R R v [Higgins] (Ruling No 4)

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PRACTICE AND PROCEDURE – Interlocutory appeal – Admissibility of evidence – Tendency evidence –Evidence Act 2008 s 97 – Whether state of mind on previous occasions relevant as evidence other than tendency evidence – Whether context and motive evidence admissible for purpose other than tendency purpose – O’Leary v The King (1946) 73 CLR 566 , Elomar v The Queen [2014] NSWCCA 303; Leonard v R (2006) 67 NSWLR 545; R v Adam (1999) 106 A Crim R 510, discussed – Evidence admissible for purpose other than tendency reasoning – Application for leave to appeal refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr M G O’Connell SC with Dr G Boas	Stary Norton Halpen
For the Respondent	Mr J W Rapke QC with Ms R J Sharp	Director of Public Prosecutions (Cth)

REDLICH JA
WEINBERG JA
OSBORN JA

The applicant is charged that between 18 May 2012 and 12 September 2012 he possessed a thing (‘Inspire’ magazine, Issue 9) in connection with assistance in a terrorist act contrary to s 101.4 of the Commonwealth Criminal Code 1995 (the ‘Code’).

The matter came on for trial on 15 October 2013. After pre-trial argument as to the elements of s 101.4 of the Code, his Honour delivered a detailed ruling. That ruling was the subject of an interlocutory appeal by the Crown. This Court upheld the trial judge’s ruling on 17 December 2013. That decision, in turn, was the subject of an application for special leave to the High Court, which was refused on 15 august 2014.

On November of 2014 a new indictment alleging the above count of possession of a thing contrary to s 101.4 of the Code was filed together with a Summary of Prosecution Opening.

On 12 December 2014 the Crown filed a Notice of Tendency Evidence attaching a table identifying 53 items of evidence. The notice stated that the proposed tendency evidence related to:

Whether the accused had the state of mind of intending to possess Inspire magazine.
The accused’s knowledge that Inspire magazine, issue 9, was connected with assistance in a terrorist act.
Whether Inspire magazine, Issue 9, was being used or was intended to be used in the activity of assisting in a terrorist act.

The applicant gave notice of his intention to object to the proposed tendency evidence. On 19 October 2015, pre-trial argument re-commenced. At that time, the Crown disavowed reliance…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Higgins (a pseudonym) v The Queen

Details

AGLC: Higgins (a pseudonym) v The Queen [2016] VSCA 47
Case: [2016] VSCA 47
Decision Date: 18 March 2016

CaseChat Overview and Summary

In Higgins v The Queen, the applicant sought an interlocutory appeal against the trial judge's decision to admit certain evidence. The case was a criminal trial where the applicant faced charges. The dispute centred on the admissibility of evidence, specifically whether certain evidence was relevant for a purpose other than to prove a tendency or propensity of the applicant to commit the offence. The High Court of Australia was the appellate court considering the matter.

The legal issues before the court were whether the state of mind of the applicant on previous occasions was relevant as evidence other than tendency evidence, and whether context and motive evidence could be admitted for a purpose other than the tendency purpose. The court was required to determine if the evidence was admissible under section 97 of the Evidence Act 2008 and if the evidence was relevant for a purpose other than the tendency reasoning. The court also needed to consider the relevant authorities, including O’Leary v The King, Elomar v The Queen, Leonard v R, and R v Adam.

The court held that the trial judge's decision to admit the evidence was correct. The court found that the evidence was relevant for a purpose other than to prove a tendency or propensity of the applicant to commit the offence. The court reasoned that the evidence was admissible under section 97 of the Evidence Act 2008 and was relevant for the purpose of proving context and motive. The court found that the evidence was not inadmissible solely because it had a tendency to prove a propensity or a state of mind on previous occasions. The court concluded that the evidence was admissible for a purpose other than the tendency reasoning, and the application for leave to appeal was refused.

Orders