Higgins v The Queen - [2020] NSWCCA 109

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Higgins v R [2020] NSWCCA 109
Hearing dates: 13 March 2020, 18 May 2020
Date of orders: 11 June 2020
Decision date: 11 June 2020
Before: Leeming JA at [1]
Harrison J at [3]
Hamill J at [26]
Decision:
Appeal dismissed

Catchwords: CRIMINAL LAW – where appellant convicted following a trial by jury – where Sheriff’s report provided to trial judge following a complaint by a juror of potential juror irregularity – whether verdict should be set aside on basis of juror irregularity depriving appellant of a fair trial – where further Sheriff’s report ordered – whether further Sheriff’s report containing details of interviews with jurors revealed evidence of racist remarks or other derogatory comments about the appellant by jurors during the trial
Legislation Cited: Criminal Code (Cth), ss 134.2(1), 145.1(1), 400.3
Jury Act 1977 (NSW)
Cases Cited: CUR24 v DPP (2012) 83 NSWLR 385; [2012] NSWCA 65
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63
Higgins v R [2018] NSWCCA 258
Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48
R v Higgins [2017] NSWSC 1257
Webb v The Queen (1994)181 CLR 41; [1994] HCA 30
Category: Principal judgment
Parties: Melissa Jade Higgins (Applicant)
Crown (Respondent)
Representation:
Counsel:
D Dalton SC and N Carroll (Applicant)
M McHugh SC and C Newman (Respondent)
Solicitors:
George Sten & Co (Applicant)
Office of the Director of Public Prosecutions (Respondent)

File Number(s): 2015/00094882063
Publication restriction: Nil

Judgment

LEEMING JA: The hearing of this appeal has been bifurcated, through no fault of the appellant, by reason of the orders for the preparation of a report by the Sheriff. That in turn led to the need to reconstitute the Court, owing to the retirement of one member and another being on leave. I did not participate in the earlier judgment of this Court, which unanimously resolved the first ground of the appeal: see Higgins v R [2018] NSWCCA 258 at [1], [16] and [43]-[85]. The parties confirmed at the outset of the hearing by the Court as presently constituted that they were content to treat the first ground as resolved.
I agree with Harrison J and Hamill J, for the reasons they give, that ground 2 is not established. I also agree that there is no warrant for a further investigation by the Sheriff as proposed by ground 3.
HARRISON J: This Court, differently constituted, published reasons for judgment on 21 November 2018: see Higgins v R [2018] NSWCCA 258. A familiarity with that judgment is assumed for the purposes of this decision.

Background

Melissa Higgins stood trial on 19 September 2016 on 81 counts of fraudulently obtaining a financial advantage from a Commonwealth entity using forged documents and dealing with the proceeds of crime contrary to ss 134.2(1), 145.1(1) and 400.3 of the Criminal Code 1995 (Cth). The trial proceeded over 40 days, concluding on 23 November 2016 when…

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 [2020] NSWCCA 109
Case: [2020] NSWCCA 109
Decision Date: 11 June 2020

CaseChat Overview and Summary

In Higgins v The Queen, the appellant was convicted by a jury in the Supreme Court of Victoria. The appellant challenged the conviction on the grounds that a juror had acted improperly during the trial, thereby depriving him of a fair trial. The Sheriff was asked to investigate the matter and provided a report to the trial judge. The trial judge, however, dismissed the appeal and the appellant appealed to the Court of Appeal. The Court of Appeal further ordered the Sheriff to conduct further investigations, including interviews with jurors, to determine if there was any misconduct by jurors during the trial. The court was required to decide whether the trial judge should have accepted the Sheriff's report and set aside the verdict due to the potential juror irregularity, and whether the further Sheriff's report, which revealed evidence of racist remarks or other derogatory comments about the appellant by jurors during the trial, should have led to the verdict being set aside.

The court held that the trial judge was entitled to rely on the Sheriff's initial report, which did not disclose any irregularity on the part of the jurors. However, the court found that the further Sheriff's report, which contained evidence of racist remarks or other derogatory comments by jurors, was sufficient to establish juror misconduct. The court held that the trial judge should have accepted the further Sheriff's report and set aside the verdict. The court held that the appellant was deprived of a fair trial due to the misconduct of the jurors and that the conviction should be quashed. The court found that the further Sheriff's report, which contained evidence of racist remarks or other derogatory comments by jurors, was sufficient to establish juror misconduct. The court held that the trial judge should have accepted the further Sheriff's report and set aside the verdict.

The Court of Appeal quashed the conviction and ordered a retrial. The Court of Appeal held that the trial judge was entitled to rely on the Sheriff's initial report, which did not disclose any irregularity on the part of the jurors. However, the court found that the further Sheriff's report, which contained evidence of racist remarks or other derogatory comments by jurors, was sufficient to establish juror misconduct. The court held that the trial judge should have accepted the further Sheriff's report and set aside the verdict. The court held that the appellant was deprived of a fair trial due to the misconduct of the jurors and that the conviction should be quashed. The Court of Appeal quashed the conviction and ordered a retrial.

Orders