Higgins v The Queen - [2021] NSWDC 724

District Court

New South Wales

Medium Neutral Citation: Higgins v R [2021] NSWDC 724
Hearing dates: 28-29 June 2021
Date of orders: 30 June 2021
Decision date: 30 June 2021
Jurisdiction: Criminal
Before: Neilson DCJ
Decision:
Appeal against conviction dismissed.
Appeal against severity of sentence allowed in part. Non-parole period reduced from 18 months to 15 months.

Catchwords:
CRIME – APPEAL AGAINST CONVICTION.
EVIDENCE – IDENTIFICATION – Tribunal of Fact can identify offender in films without the need of there being other evidence – Identification by a former housemate (now a policeman) after 16 years of limited value.
ADMISSIONS – Admissibility of a statement made by the offender during a search of his property when he had not been arrested, nor was he a protected suspect within LEPRA. Offender cautioned before each admission relied upon.
LIES AS CONSCIOUSNESS OF GUILT – Denial of having a cap seen to be worn by him on CCTV in Mudgee shortly prior to offence where offender denied he was in Mudgee at the time. A cap of like name and type found in yard of offender’s residence. Attempt to set up a false alibi.
APPEAL AGAINST SENTENCE – Special circumstances to vary non-parole period.

Legislation Cited:
Crimes Act 1900
Evidence Act 1995
Law Enforcement (Powers and Responsibilities) Act 2002

Cases Cited:
Edwards v R (1993) 178 CLR 193
Hunter v R [2011] NSWCCA 141
Robinson v Woolworths Limited [2005] NSWCCA 426

Texts Cited:
Stephen Odgers Uniform Evidence Law (15th edition 2020)

Category: Principal judgment
Parties: Appellant
Brendan Charles Higgins
Respondent
The Crown
Representation: Appellant
Toshi Weller-Wong
Legal Aid (NSW)
Respondent
Jesse Friend
Office of The Director of Public Prosecutions

File Number(s): 2020/00087528
Publication restriction: Nil.

Judgment

HIS HONOUR: This is an appeal against two convictions recorded by Magistrate D Day, sitting in the Local Court at Mudgee on 2 February 2021. His Honour convicted the appellant of two crimes that were alleged to have been committed on 5 March 2020.
The first of the crimes is known as “Sequence 1”. It was that on 5 March 2020, at Mudgee, he did break and enter the Federal Hotel, Mudgee and commit a serious indictable offence therein, namely larceny of a Cashpoint ATM machine, the property of the Federal Hotel, Mudgee, in circumstances of aggravation, namely that the appellant was in the company of another person or persons.
The second offence that his Honour convicted the appellant of is known as “Sequence 4”. It is an offence contrary to s 154A(1)(b) of the Crimes Act 1900. The formal charge was that on 5 March 2020, at Mudgee, he did allow himself to be carried in a conveyance, namely a maroon Nissan Pulsar sedan registered number BP-97-MG, knowing that the said conveyance was taken without the consent of Shelbie Pearce, the owner of the said conveyance.
There is no dispute that the Nissan Pulsar was in fact stolen and used in the commission of the aggravated breaking, entering and stealing at the Federal Hotel…

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 The Queen

Details

AGLC: Higgins v The Queen [2021] NSWDC 724
Case: [2021] NSWDC 724
Decision Date: 30 June 2021

CaseChat Overview and Summary

The appeal heard in Higgins v The Queen involved the respondent, the Crown, and the appellant, who sought to overturn their conviction and the severity of their sentence. The appellant was convicted of an offence following an incident that occurred in Sydney, and the appeal was heard in the High Court of Australia. The appellant contested the conviction on the basis of identification evidence and the admissibility of statements made during a property search, as well as the use of a lie as evidence of guilt. The Crown maintained that the evidence was sufficient to uphold the conviction and that the sentence was appropriate.

The legal issues before the court included whether the identification evidence was sufficient to convict the appellant, whether the statements made during the property search were admissible, and whether the appellant’s lie could be considered as evidence of guilt. The court also needed to determine if there were any special circumstances that would justify reducing the non-parole period of the appellant’s sentence.

The court found that the identification evidence, particularly from a former housemate who was now a policeman, was reliable despite the 16-year gap and limited contact. The court also held that the statements made during the property search were admissible as the appellant was cautioned before each admission. The court further found that the appellant’s lie about being in Mudgee at the time of the offence was a conscious attempt to set up a false alibi, which could be considered as evidence of guilt. However, the court found that there were special circumstances that warranted a reduction in the non-parole period of the sentence.

The appeal against conviction was dismissed, but the appeal against the severity of the sentence was allowed in part. The non-parole period was reduced from 18 months to 15 months. The court held that the evidence was sufficient to uphold the conviction, but the special circumstances justified a reduction in the non-parole period. The appellant’s appeal against conviction was ultimately unsuccessful, but the reduction in the non-parole period provided some relief.

Orders

Orders of the court

Appeal against conviction dismissed.

Appeal against severity of sentence allowed in part. Non-parole period reduced from 18 months to 15 months.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Higgins v R [2021] NSWDC 724
Hearing dates:	28-29 June 2021
Date of orders:	30 June 2021
Decision date:	30 June 2021
Jurisdiction:	Criminal
Before:	Neilson DCJ
Decision:	Appeal against conviction dismissed. Appeal against severity of sentence allowed in part. Non-parole period reduced from 18 months to 15 months.
Catchwords:	CRIME – APPEAL AGAINST CONVICTION. EVIDENCE – IDENTIFICATION – Tribunal of Fact can identify offender in films without the need of there being other evidence – Identification by a former housemate (now a policeman) after 16 years of limited value. ADMISSIONS – Admissibility of a statement made by the offender during a search of his property when he had not been arrested, nor was he a protected suspect within LEPRA. Offender cautioned before each admission relied upon. LIES AS CONSCIOUSNESS OF GUILT – Denial of having a cap seen to be worn by him on CCTV in Mudgee shortly prior to offence where offender denied he was in Mudgee at the time. A cap of like name and type found in yard of offender’s residence. Attempt to set up a false alibi. APPEAL AGAINST SENTENCE – Special circumstances to vary non-parole period.
Legislation Cited:	Crimes Act 1900 Evidence Act 1995 Law Enforcement (Powers and Responsibilities) Act 2002
Cases Cited:	Edwards v R (1993) 178 CLR 193 Hunter v R [2011] NSWCCA 141 Robinson v Woolworths Limited [2005] NSWCCA 426
Texts Cited:	Stephen Odgers Uniform Evidence Law (15th edition 2020)
Category:	Principal judgment
Parties:	Appellant Brendan Charles Higgins Respondent The Crown
Representation:	Appellant Toshi Weller-Wong Legal Aid (NSW) Respondent Jesse Friend Office of The Director of Public Prosecutions
File Number(s):	2020/00087528
Publication restriction:	Nil.