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Higgins v R (No 2)

Higgins v R (No 2)

Case [2022] NSWCCA 82 20 April 2022

Appeal

Costs

Criminal Law

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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

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.
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

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.
On 6 May 2019 the primary judge delivered a verdict of guilty…

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 (No 2)

Details

AGLC: Higgins v R (No 2) [2022] NSWCCA 82
Case: [2022] NSWCCA 82
Decision Date: 20 April 2022

CaseChat Overview and Summary

In this matter, the appellant, Higgins, sought a certificate under the Costs in Criminal Cases Act 1967 (NSW) for costs incurred in his successful appeal against a conviction for sexual assault. The appeal centred on the issue of the complainant's credibility, which was pivotal to the trial's outcome. The prosecution argued that the institution of the proceedings was not unreasonable, given the evidence presented and the trial judge's assessment of the complainant's credibility.

The central legal issue for the court was whether the institution of the criminal proceedings against Higgins was unreasonable. The court considered whether the prosecution had a case that was arguable on the merits, which is a threshold requirement for obtaining a certificate under the Act. The court examined the evidence, the trial judge's findings, and the outcome of the appeal to determine if the prosecution's case was unreasonable.

The court found that the prosecution's case was not unreasonable, as the trial judge had carefully considered the complainant's credibility and the evidence presented. The appeal's success did not necessarily mean that the prosecution's case was unreasonable; rather, it reflected the appellate court's different assessment of the evidence. The court concluded that the prosecution had an arguable case on the merits, and therefore, the appellant was not entitled to a certificate for costs under the Act.

The court dismissed the appellant's application for a certificate for costs. The appellant was ordered to pay the respondent's costs of the application, in accordance with the outcome of the appeal.

Orders