Higgins v R (No 2)

[2022] NSWCCA 82

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Higgins v R (No 2) [2022] NSWCCA 82

Hearing dates:

On the papers

Date of orders:

20 April 2022

Decision date:

20 April 2022

Before:

Payne JA at [1]
Rothman J at [1]
Bellew J at [1]

Decision:

Dismiss the application for a certificate under s 2 of the Costs in Criminal Cases Act 1967 (NSW).

Catchwords:

CRIMINAL PROCEDURE — costs — application for certificate under Costs in Criminal Cases Act 1967 (NSW) — successful appeal against conviction for sexual assault — where complainant’s credibility a central issue at trial — whether institution of proceedings unreasonable

Legislation Cited:

Costs in Criminal Cases Act 1967 (NSW), ss 2, 3, 3A

Criminal Appeal Act 1912 (NSW), s 6

Criminal Procedure Act 1986 (NSW), ss 294A, 294AA

Cases Cited:

Allerton v Director of Public Prosecutions (1991) 24 NSWLR 550

Beatson v R [2015] NSWCCA 17

Higgins v R [2020] NSWCCA 149

Mordaunt v Director of Public Prosecutions [2007] NSWCA 121; (2007) 171 A Crim R 510

R v Manley (2000) 49 NSWLR 203; [2000] NSWCCA 196

Steven Alan Cox v R (No 2) [2017] NSWCCA 129

Category:

Costs

Parties:

Peter Higgins (Applicant)
Crown (Respondent)

Representation:

Counsel:
P Skinner (Applicant)
B Baker (Respondent)

Solicitors:
Thompson Madden (Applicant)
Director of Public Prosecutions (Respondent)

File Number(s):

2016/21031

Publication restriction:

Pursuant to s 578A of the Crimes Act 1900 (NSW) and s 15A of the Children (Criminal Proceedings) Act 1987 (NSW) there is a non-publication order of information or material that identifies or is likely to lead to the identification of the complainant.

 Decision under appeal 

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

6 May 2019

Before:

English DCJ

File Number(s):

2016/21031

Judgment

1. THE COURT: On 3 July 2020, this Court allowed an appeal against conviction brought by the applicant, Peter Higgins. The Court quashed the convictions on counts 1, 2 and 4, and entered verdicts of acquittal on counts 1, 2, 4 and 5 in the indictment: Higgins v R [2020] NSWCCA 149. ^[1]

   1. Count 5 was strictly in the alternative to count 4 and did not need to be considered by the trial judge in light of the verdict of guilty in relation to count 4.

2. On 4 November 2021, the applicant filed an application pursuant to the Costs in Criminal Cases Act 1967 (NSW) (the Costs Act) seeking that the Court grant him a certificate under that Act so that he may apply for payment of his legal costs.

Underlying trial proceedings

3. On 5 October 2017, the applicant was charged with six counts of sexual assault alleged to have been committed against the complainant, then a student at the school where the applicant was teaching, in 1974-75. The applicant pleaded not guilty to all counts on the indictment and the matter proceeded to trial before English DCJ.

4. On 6 May 2019 the primary judge delivered a verdict of guilty in respect of counts 1, 2, and 4, and on 13 September 2019 the primary judge sentenced the applicant to concurrent terms of imprisonment with a combined total term of 7 years and 6 months and a non-parole period of 3 years and 6 months.

The relevant legislation

5. The Costs Act provides one means by which a defendant to criminal proceedings can recover legal costs where they are successful in those proceedings. Its purpose is to relieve a person who has been acquitted of the financial burden of defending themselves in criminal proceedings, but without casting any criticism on police or prosecutors: Steven Alan Cox v R (No 2) [2017] NSWCCA 129 at [4(3)]; see also Allerton v Director of Public Prosecutions (1991) 24 NSWLR 550 at 561-562 (Kirby P, Meagher and Handley JJA agreeing).

6. The Act establishes a two-stage process by which the defendant first applies to the Court for a certificate, and then applies to the Director-General for payment of costs incurred in the proceedings to which the certificate relates.

7. Sections 2 and 3 of the Act govern the first stage relating to the granting of a certificate by the Court. Those provisions relevantly provide:

2   Certificate may be granted

(1)   The Court or Judge or Magistrate in any proceedings relating to any offence, whether punishable summarily or upon indictment, may—

(a)   where, after the commencement of a trial in the proceedings, a defendant is acquitted or discharged in relation to the offence concerned, or a direction is given by the Director of Public Prosecutions that no further proceedings be taken, or

(b)   where, on appeal, the conviction of the defendant is quashed and—

(i)   the defendant is discharged as to the indictment upon which he or she was convicted, or

(ii)   the information or complaint upon which the defendant was convicted is dismissed,

grant to that defendant a certificate under this Act, specifying the matters referred to in section 3 and relating to those proceedings.

…

3   Form of certificate

(1)   A certificate granted under this Act shall specify that, in the opinion of the Court or Judge or Magistrate granting the certificate—

(a)   if the prosecution had, before the proceedings were instituted, been in possession of evidence of all the relevant facts, it would not have been reasonable to institute the proceedings, and

(b)   that any act or omission of the defendant that contributed, or might have contributed, to the institution or continuation of the proceedings was reasonable in the circumstances.

(2)   (Repealed)

8. A certificate is not to be granted unless the Court is satisfied as to each of the matters specified in s 3(1), namely that it would have been unreasonable for the prosecution to institute proceedings if it had been in possession of evidence of all of the relevant facts, and that any act or omission of the defendant which contributed to the initiation or continuation of the proceedings was reasonable. The applicant bears the onus of satisfying the Court to this effect: Mordaunt v Director of Public Prosecutions [2007] NSWCA 121; (2007) 171 A Crim R 510 at [36(d)].

9. The phrase “all the relevant facts” as employed at s 3(1)(a) is relevantly defined in s 3A of the Act as follows:

3A   Evidence of further relevant facts may be adduced

(1) For the purpose of determining whether or not to grant a certificate under section 2 in relation to any proceedings, the reference in section 3(1)(a) to all the relevant facts is a reference to—

(a)   the relevant facts established in the proceedings, and

(b)   any relevant facts that the defendant has, on the application for the certificate, established to the satisfaction of the Court or Judge or Magistrate, and

(c)   any relevant facts that the prosecutor, or in the absence of the prosecutor, any person authorised to represent the Minister on the application, has established to the satisfaction of the Court or Judge or Magistrate that—

(i)   relate to evidence that was in the possession of the prosecutor at the time that the decision to institute proceedings was made, and

(ii)   were not adduced in the proceedings.

…

10. The task of the Court, in relation to s 3(1)(a), is to answer a hypothetical question addressed to evidence of “all of the relevant facts”, whether those facts were discovered before the applicant’s arrest and committal, after his committal and before trial, during the trial, or afterwards admitted under s 3A: Allerton at 559-560; Beatson v R [2015] NSWCCA 17 at [10].

The parties’ submissions

11. While the applicant for a certificate bears the onus of satisfying the Court as to both matters specified at s 3(1), the only real controversy was the matter identified at s 3(1)(a): whether, if the prosecution had been in possession of all of the relevant facts, it would not have been reasonable to institute the proceedings. The respondent did not challenge the applicant’s assertion that no act or omission on his part contributed, or might have contributed, to the institution or continuation of the proceedings against him.

12. The applicant submitted that the relevant facts of his case were such that, if the Crown had in its possession evidence of all of those facts, it would not have been reasonable for the proceedings to have been instituted. The relevant facts relied on by the applicant were both facts known to the Crown before proceedings were instituted, and facts which emerged after charges were laid.

13. The applicant pointed to the following facts known to the Crown before the applicant was first charged as “powerful exculpatory evidence” which diminished the strength of the Crown’s case and caused the laying of charges to be unreasonable:

1. the passage of time and delay in the complaint;

2. the lack of corroboration of the complaint, except by the complainant’s mother;

3. the lack of any tendency evidence;

4. matters relating to the credibility of the complainant and of his mother, including the “incongruity” of the “brutal” scenario of sexual assault described by the complainant in circumstances of easy discovery by an alleged perpetrator against whom no other complaints had been made despite there being further opportunities to commit sexual assaults;

5. the applicant’s consistent denials over many years of the allegations, including in civil litigation, under special caution in two detailed ERISPs, and when confronted by the complainant and his mother in a “pretext conversation” situation recorded by listening device; and

6. the denials by the applicant’s co-accused of the allegations against him.

14. The applicant also relied on the following facts emerging after proceedings were commenced, but which are relevant to this Court’s assessment as to the reasonableness of instituting proceedings if they were known beforehand:

1. the complainant’s mother, an important corroborative witness of the complainant, had given inconsistent evidence as to the person who had walked in on the applicant whilst he was sexually abusing her son and who subsequently drove him home;

2. the decision to interview the complainant and his mother together as part of the Royal Commission into Institutional Responses to Child Sexual Abuse caused both their evidence to be tainted;

3. evidence going to proof of counts 3 and 6 was omitted at trial;

4. there were numerous inconsistencies in the complainant’s evidence at trial, inconsistencies between the complainant’s evidence and contemporaneous documentary evidence, and other problems with the complainant’s credibility;

5. the applicant made “cogent and consistent” denials in his testimony at trial; and

6. there was “consistent and powerful evidence” of the applicant’s good character over decades of public life, given by seven witnesses of diverse backgrounds.

15. The applicant submitted that the Crown’s case was further weakened by the peculiar circumstance that his co-accused (who was charged as an accessory after the fact to the applicant’s offences) died before he could be jointly tried with the applicant. As the applicant was no longer to be tried jointly with his late co-accused, evidence about statements and actions attributed to his co-accused were inadmissible in a trial of the applicant alone.

16. The applicant also contended that the Court should give substantial weight in its assessment of his application to the unfair nature of the trial against him, relying on observations by this Court as to the errors made by the trial judge and the majority finding that the verdicts were unreasonable. The consequence of that unfair trial was that at 80 years of age, as a first offender and in frail health, the applicant served nearly 14 months in prison for a crime which substantially tarnished his standing and reputation.

17. Finally, the applicant stated that as a Patrician Brother who had taken a vow of poverty, his legal costs were borne entirely by his religious order, which exists purely for charitable and benevolent purposes and has limited resources.

Consideration

18. One matter may immediately be addressed. The question whether it was reasonable to prosecute the applicant is not concerned with the errors made by the trial judge or the means by which the applicant’s legal costs were paid. Those issues must be put to one side.

19. The only question is whether, having regard to all of the relevant evidence, it was not reasonable for the prosecution to institute the proceedings.

20. It is well established that where there are questions about the credibility of witnesses, it will generally not be unreasonable for a prosecutor to allow those questions to be decided by the tribunal of fact, usually a jury. The administration of justice usually leaves to the tribunal of fact determinations about the credit of witnesses.

21. There is no single bright line test as to when it would not be reasonable for a prosecution to have been instituted: Beatson at [14]. The reasonableness of a decision to institute proceedings is not based on any test of whether there is a reasonable prospect of conviction, whether a reasonable jury would be likely to convict, whether there was reasonable suspicion which might justify an arrest, or whether the prosecution was malicious: Mordaunt at [36(h)]; R v Manley (2000) 49 NSWLR 203; [2000] NSWCCA 196 at [12]. Nor is the fact that the applicant was acquitted, or that this Court allowed his appeal, necessarily determinative of the issue: Mordaunt at [36(k)], [36(l)], [36(n)]; Beatson at [13].

22. A decision to institute proceedings will generally not be unreasonable where questions of witness credibility or reliability are in issue. As stated by McColl JA (with whom Beazley and Hodgson JJA agreed) in Mordaunt at [36(m)]:

“Section 3 calls for an objective analysis of the whole of the relevant evidence, and particularly the extent to which there is any contradiction of expert evidence concerning central facts necessary to establish guilt, or inherent weakness in the prosecution case; matters of judgment concerning credibility, demeanour and the like are likely to fall on the other side of the line of unreasonableness, being matters quintessentially within the realm of the ultimate fact finder, whether it be Judge or Jury; it is not sufficient to establish the issue of unreasonableness in favour of an applicant for a certificate that, in the end, the question for the jury depended upon word against word; in a majority of such cases, it would be quite reasonable for the prosecution to allow those matters to be decided by the jury; it would be different where the word upon which the Crown case depended had been demonstrated to be one which was very substantially lacking in credit.” (citations omitted)

23. Similarly in Beatson at [14], Hoeben CJ at CL (Johnson and Davies JJ agreeing) considered that:

“… the cases indicate that where the issue is word against word which involves an assessment of credibility, then generally it would be less likely that the requisite affirmative opinion would be formed that it was unreasonable for the prosecution to be instituted.”

24. The question under s 3(1)(a) is whether, if the prosecution had available to it evidence of all the relevant facts, it would not have been reasonable to institute proceedings. The answer to this question must turn on the precise and peculiar facts and circumstances of the case.

25. We are not satisfied in the present case that if the prosecution had available to it evidence of all the relevant facts, as defined, it would not have been reasonable to institute the proceedings. The relevant facts relied on by the applicant do not, either separately or in combination, render it unreasonable for the prosecution to be instituted.

26. First, the fact that the complainant delayed for many years in complaining so there was a consequent lapse of time before proceedings were instituted does not render it unreasonable for the prosecution to have instituted the proceedings. The law expressly recognises that there may be many reasons why a complainant does not make an immediate complaint: Criminal Procedure Act 1986 (NSW), s 294A.

27. Secondly, the paucity of evidence corroborating the complaint of sexual assault does not render the institution of proceedings unreasonable in circumstances where the law expressly prohibits any warning to the tribunal of fact that there is a danger in convicting on the uncorroborated evidence of a complainant: Criminal Procedure Act, s 294AA(2).

28. Thirdly, even though the allegations were isolated in nature, the complainant’s evidence in the present case was that the alleged abuse ended when the applicant was interrupted sexually assaulting the complainant. It was not unreasonable for a proceeding to be commenced seeking resolution of this issue to be addressed by the tribunal of fact.

29. Fourthly, the applicant’s consistent denials of the offences and the evidence of his good character do not demonstrate that the institution of a prosecution was necessarily unreasonable. Regrettably, it is not uncommon that sexual offences committed against children are committed by persons who are otherwise of good character and who adamantly deny their wrongdoing.

30. Fifthly, the matters relied on in relation to the evidence given by the complainant’s mother do not create a doubt about the reliability or credibility of the complainant. As was observed in the applicant’s appeal, although the complainant’s mother had given inconsistent statements as to the identity of the person who drove her son home after he was sexually assaulted, the true source of that error may well have been an investigator at the Royal Commission who made an incorrect note: at [72].

31. This leaves to be addressed the issue of the credibility of the complainant. As explained above, it will generally be reasonable for a prosecutor to allow questions of credibility in a “word on word” case to be decided by a jury. This is not a case where the complainant’s account has been shown to be “plainly wrong” as was the case in Cox. As Payne JA said in the principal judgment:

“The question posed by this ground is one of fact which the Court must decide by making its own independent assessment of the evidence and determining whether, notwithstanding that there is evidence upon which the trial judge might have convicted, nonetheless it would be dangerous in all the circumstances to allow the verdict of guilty to stand. I have concluded that this is such a case. This is one of those rare cases where the evidence in the record itself contains discrepancies, displays inadequacies, is tainted and otherwise lacks probative force in such a way as to lead me to conclude that, even making allowance for the advantages enjoyed by the trial judge, there is a significant possibility that an innocent person has been convicted. It follows that the applicant is entitled to be acquitted of all charges.”

32. For present purposes three matters referred to in that conclusion bear emphasis. First, this was a case where the Court was embarking upon its own independent assessment of the evidence as required by the Criminal Appeal Act 1912 (NSW). The fact that the verdict was unreasonable within the meaning of s 6(1) of that Act does not necessarily mean that the institution of the proceedings was not reasonable. Secondly, the Court concluded that “there is evidence upon which the [tribunal of fact] might have convicted”. Thirdly, despite the existence of that evidence, this was one of those rare cases where an acquittal should be entered. In an historical child sexual assault case, where the essential issues could properly be characterised as word against word, and despite the considerable hurdles facing a successful prosecution, it was not a case where we are satisfied that it would have been unreasonable for the prosecution to institute proceedings if it had been in possession of evidence of all of the relevant facts.

33. For those reasons, we are not satisfied that the issue identified in s 3(1)(a) is made out. The Court makes the following order:

1. Dismiss the application for a certificate under s 2 of the Costs in Criminal Cases Act 1967 (NSW).

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Endnote

Decision last updated: 20 April 2022