Medium Neutral Citation: Higgins v R [2020] NSWCCA 149
Hearing dates: 1 June 2020
Date of orders: 3 July 2020
Decision date: 03 July 2020
Before: Payne JA at [1]
Rothman J at [181]
Bellew J at [192]
Decision:
(1)   Leave to appeal granted;
(2)   Reject the tender of:
(a)   paragraphs [2] to [15] of the affidavit of Mr Madden affirmed 1 April 2020; and
(b)   the reports of Mr Anastopoulos;
(3)   Appeal allowed;
(4)   Quash the applicant’s convictions;
(5)   Enter verdicts of acquittal on counts 1, 2, 4 and 5 in the indictment.

Catchwords:
EVIDENCE – hearsay – exceptions – admissions – where evidence admitted as a previous representation of a common purpose by former co-accused – whether evidence can only be admitted as a previous representation of the common purpose alleged in the proceedings – whether evidence improperly admitted
CRIMINAL PROCEDURE – trial – judge alone – where applicant gave evidence he does not swear – where applicant slipped and made an exclamation as leaving the witness box – where trial judge alleged he swore – whether trial judge erred in holding that the applicant swore – whether trial judge erred in refusing application to discharge herself
EVIDENCE – corroboration – meaning of corroboration – whether trial judge erred in finding that complainant’s evidence was corroborated
CRIMINAL PROCEDURE – trial – judge alone – directions – where trial judge requested to direct herself to approach evidence with caution due to the witness’ age and ill health – whether trial judge erred in giving no weight to the effect on reliability of the witness’ evidence
CRIMINAL PROCEDURE – trial – judge alone – delay – where 44 year delay in applicant being brought to trial – where trial judge requested to direct herself that applicant was under a forensic disadvantage because of delay – whether trial judge erred in refusing to do so
CRIMINAL PROCEDURE – trial – judge alone – verdict by direction – where trial judge gave Markuleski direction – whether trial judge erred in properly considering implications of directed verdicts
EVIDENCE – character evidence – good character – whether trial judge erred in dismissing good character evidence
EVIDENCE – judicial notice – matters of common knowledge – where trial judge took judicial notice of church practices of moving priests from parish to parish when complaints arose – whether trial judge erred in doing so
CRIME – appeals – appeal against conviction – unreasonable verdict

Legislation Cited:
Crimes Act 1900 (NSW), ss 79, 81, 81A
Criminal Appeal Act 1912 (NSW), ss 6(2), 8(1)
Criminal Procedure Act 1986 (NSW), s 293A
Evidence Act 1995 (NSW), ss dictionary, 55, 56, 59, 65, 81, 87, 103, 135, 136, 137, 144, 165, 165B
Evidence Amendment Act2007 (NSW), schedule

Cases Cited:
Ahern v The Queen (1988) 165 CLR 87; [1988] HCA 39
Doney v The Queen (1990) 171 CLR 207; [1990] HCA 51
Elzahed v State of New…

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 v R

Details

AGLC: Higgins v R [2020] NSWCCA 149
Case: [2020] NSWCCA 149
Decision Date: 03 July 2020

CaseChat Overview and Summary

Higgins was charged with various sexual offences against a complainant. The case was heard by a judge sitting alone in the Supreme Court of Victoria. The applicant contested the admissibility of evidence provided by a former co-accused, arguing it should only be admitted as a previous representation of the alleged common purpose. The applicant also raised concerns about the trial judge's handling of evidence regarding his refusal to swear, the lack of corroboration for the complainant's evidence, and the judge's approach to the reliability of the complainant's evidence due to her age and ill health. Additionally, the applicant argued that the significant delay in the trial prejudiced his case, and that the trial judge erred in dismissing evidence of his good character and in taking judicial notice of church practices. The applicant further contended that the trial judge improperly considered the implications of a directed verdict and erred in finding the verdict to be unreasonable.

The legal issues before the court involved the admissibility and weight of evidence provided by a former co-accused, the trial judge's handling of the applicant's refusal to swear, the sufficiency of corroboration for the complainant's evidence, the approach to the reliability of the complainant's evidence, and the impact of a significant delay in bringing the applicant to trial. The court also considered whether the trial judge erred in dismissing evidence of the applicant's good character and in taking judicial notice of church practices. Finally, the court examined whether the trial judge properly considered the implications of a directed verdict and whether the verdict was unreasonable.

The court found that the evidence provided by the former co-accused was properly admitted as it was a previous representation of a common purpose and not limited to the common purpose alleged in the proceedings. The court held that the trial judge did not err in finding that the applicant swore, despite his exclamation as he left the witness box. Regarding corroboration, the court found that the complainant's evidence was sufficiently corroborated. The court also found that the trial judge did not err in giving no weight to the reliability of the complainant's evidence due to her age and ill health, and did not err in refusing to direct herself that the applicant was under a forensic disadvantage because of the delay. The court concluded that the trial judge properly considered the implications of a directed verdict and did not err in finding the verdict to be reasonable. The court further found that the trial judge did not err in dismissing evidence of the applicant's good character and in taking judicial notice of church practices.

The court dismissed the appeal against conviction, finding the verdict to be reasonable.

Orders