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Higgins v R

Higgins v R

Case [2007] NSWCCA 56 9 March 2007

Appeal

Admissibility of Evidence

Res Judicata

Jury Directions

Circumstantial Evidence

Criminal Law

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New South Wales
Court of Criminal Appeal

CITATION: Higgins v Regina [2007] NSWCCA 56

HEARING DATE(S): 22/02/2007

JUDGMENT DATE:
9 March 2007

JUDGMENT OF: Sully J at 1; Bell J at 2; Hoeben J at 3

DECISION: In respect of Ground of Appeal 1 appeal is dismissed.; In respect of Ground of Appeal 2, leave to rely upon that ground is refused.

CATCHWORDS: Conviction appeal - evidence - statement made to bank investigators - admissions - whether interview oppressive in terms of s84 Evidence Act 1995 - whether unfairness under s90 of Evidence Act established - application of discretion under s90. - Summing up - whether jury adequately directed as to circumstantial evidence - redirection not asked for at trial.

LEGISLATION CITED: Crimes Act 1900
Evidence Act 1995

CASES CITED: Em v Regina [2006] NSWCCA 336
Grant v The Queen (1975) 11 ALR 503 at 504
R v Frangulis [2006] NSWCCA 363
R v Higgins [2006] NSWCCA 326
R v Ita (2003) 139 A Crim R 340 at 355-7
R v Swaffield (1998) 192 CLR 159
R v Villa [2005] NSWCCA 4 at [74]
R v Wilson (2005) 62 NSWLR 346 at 352-353
R v Zhang [2000] NSWSC 1099, Simpson J
Shepherd v The Queen (1990) 170 CLR 573 at 578

PARTIES: Graham Patrick Higgins - Appellant
Crown - Respondent

FILE NUMBER(S): CCA 2006/2680

COUNSEL: C Smith - Applicant
DC Frearson SC/N Noman - Crown

SOLICITORS: SE O'Connor - Legal Aid Commission of NSW - Appellant
S Kavanagh - Solicitor for Public Prosecutions - Respondent

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 04/51/0051

LOWER COURT JUDICIAL OFFICER: Black DCJ

LOWER COURT DATE OF DECISION: 06/04/2006

2680/2006

SULLY J
BELL J
HOEBEN J
Friday 9 March, 2007

Graham Patrick HIGGINS v REGINA

Judgment

1 SULLY J: I agree with Hoeben J.

2 BELL J: I agree with Hoeben J.

3 HOEBEN J: On 13 February 2006 the appellant appeared in the District Court and entered a plea of not guilty to a single count of fraudulently omitting to account contrary to s178A of the Crimes Act 1900. A voir dire took place as to the admissibility of two interviews relied upon by the Crown as admissions. The first was an interview between the appellant and Commonwealth Bank investigators on 8 September 2003 (the bank interview). The second was an interview between the appellant and police on 18 November 2003 (the police interview) that, in part adopted the bank interview. The trial judge ultimately ruled that both interviews were admissible and they were tendered at trial.

4 On 15 February 2006 the appellant was re-arraigned before the jury panel and the trial commenced. The trial judge summed up to the jury on 3 March 2006. That summing up included a direction as to circumstantial evidence. On 6 March the jury returned a verdict of guilty. On 6 April 2006 the trial judge sentenced the appellant to imprisonment for a non-parole period of 1 year and 9 months with a…

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 The Queen [2007] NSWCCA 56
Case: [2007] NSWCCA 56
Decision Date: 9 March 2007

CaseChat Overview and Summary

Higgins appealed against his conviction for various criminal charges. The central issue was the admissibility of statements made to bank investigators, which the prosecution intended to use as evidence. The appeal was heard in the High Court of Australia. The legal issues the court had to address included whether the statements were obtained in a manner that rendered them inadmissible under section 84 of the Evidence Act 1995 and whether the admission of such statements resulted in unfairness to the defendant under section 90 of the same Act.

The court examined the circumstances under which the statements were obtained and whether they were made under oppressive conditions, which would exclude them under section 84. The court also assessed whether the admission of these statements constituted such unfairness as to render the trial unfair under section 90. In making its decision, the court considered the trial judge's direction to the jury regarding the weight to be given to circumstantial evidence, particularly since the defence did not request a redirection during the trial. The court concluded that the trial judge had adequately directed the jury on the handling of circumstantial evidence.

Ultimately, the court found that the statements were admissible, and there was no unfairness warranting exclusion under section 90. The court also held that the summing up of the trial judge was appropriate, ensuring the jury was adequately directed. As a result, Higgins' appeal was dismissed, and his conviction was upheld.

Orders