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

1. 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.

2. 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.

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

4. 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 the jury, then reduced to 11, returned verdicts of guilty on all counts. Ms Higgins was sentenced to a total term of 7 years imprisonment with a non-parole period of 4 years that expires on 25 May 2021.

5. On the day following the trial, the trial Judge’s Associate received a telephone call from a juror. The juror was directed to the Sheriff’s Office and later that day the Judge received an email from the jury co-ordinator at the Downing Centre. The email was from the juror who had called earlier: see R v Higgins [2017] NSWSC 1257. A Sheriff’s report was requested in relation to the issues raised in the call and in the email. The trial Judge received the Sheriff’s Report dated 3 March 2017. On 15 September 2017, when dealing with Ms Higgins’ release application, Bellew J ordered that a redacted copy of the report be released to the parties. That report prompted Ms Higgins’ original appeal to this Court.

6. Ms Higgins’ appeal was heard by this Court on 31 October 2018. The orders made by the Court on 21 November 2018 were as follows:

(1) The hearing of the appeal be adjourned.

(2) The Sheriff be directed to conduct a further investigation under s 73A of the Jury Act into the matters dealt with at [126] of this judgment.

(3) Following receipt of that report:

(a) A redacted copy of the report be provided to the parties; and

(b) Ms Higgins notify the Crown within 21 days as to whether she wishes to further press her appeal, in which event she should approach the Registrar to have the matter relisted for further directions and listing.

(4) If Ms Higgins does not seek to press her appeal further, that she notify the Court within 21 days, whereupon orders dismissing the appeal will be entered.

7. The matters dealt with at [126] of that judgment were as follows:

(1) First, obtaining an account from the juror who reported having heard remarks which he or she described as having been “racist and derogatory”, as to the words which were heard spoken; when; and in whose hearing.

(2) Second, an account then being obtained from the other jurors as to whether any of them either made such remarks, or heard such words, or words to similar effect, being spoken; when; and in whose hearing.

8. In the events that occurred, following receipt of the Sheriff’s report, Ms Higgins sought to press her appeal further. Her original Ground 1 was treated as resolved by this Court’s earlier judgment. Ms Higgins maintained the following grounds of appeal:

Ground 2: The verdicts of the jury should be set aside as a juror irregularity has deprived [Ms Higgins] of a fair trial, where multiple jurors have exhibited actual bias against [her] in the jury room, to other jury members.

Ground 3: That should this Court consider that the Sheriff’s report thus far is inadequate then the Court should adjourn this appeal and order the Sheriff to conduct a further thorough and complete investigation with legal assistance and obtain affidavits from each juror with respect to the allegations of juror compromise and juror bias.

The Sheriff’s further report

9. In accordance with the orders of this Court, the Sheriff proceeded to interview all of the jurors. These interviews were in each case conducted by Acting Senior Sergeant Kathleena Mantle in July 2019. The Sheriff attached a transcript of the interviews to the report together with some commentary, to which it is unnecessary to refer. The proceedings in this Court have not unnaturally centred upon those interviews and what the Sheriff was told. It therefore becomes necessary for present purposes to include in these reasons the arguably significant matters revealed by the individual jurors during their interviews. They are as follows.

Interview with AB – 01/07/2019

…

AB: Ah I said what I really said was like one or two of them said like a remark like um saying lock her up and throw the key away and like um like and like people were laughing sort of and like the way they were responding to each other just wasn’t like grab

Mantle: Okay

AB: Yeah   

Mantle: Do you recall who those people were or who that person was?

AB: Um mm I think I think it was um this Chinese fellow

Mantle: Okay

AB: Yeah but like one other person said it and like they all it just wasn’t right

Mantle: Yeah Okay

AB: Everyone got into it and started saying things but I don’t I don’t remember

Mantle: Okay do you recall mentioning during the interview that some jurors made derogatory comments about the accused?

AB: Yep

Mantle: Okay and do you recall mentioning during that interview that jurors made racial comments about the accused?

AB: Um not racial

…

Mantle: Okay um so just if you can take a moment to think can you recall the actual remarks that were made?

AB: Lock her up and throw away the key

Mantle: Ah okay

AB: That’s one but I don’t remember any others

Mantle: Yep Okay

AB:   Like is like is this a remark like saying Yeah 100% she is guilty like

…

Mantle: Okay do you know when those comments were made

AB:   Do I know when um probably a few week oh it could have been like the third or fourth week

Mantle: Okay

AB: Maybe even the second you never know

…

Mantle: Okay Okay so can I just ask why did you regard these comments as derogatory or racial if they were racial?

AB: Because um the main reason of like of us being picked as a juror is to be like 100% free of like ah of creating an image of like someone or like something like we should be like just reading the reading the facts for what it is and listening for what it is and like and then and then like making a judgment like on those facts.

Mantle: Okay Okay did you discuss your concerns about those comments with anyone else?

AB: Um

Mantle: Besides my colleague that you spoke to later?

AB: I don’t think so

Mantle: No?

AB: I don’t think so

Mantle: Okay did anybody else discuss these comments with you?

AB: No

…

Mantle: Okay did you observe any conflict amongst the jurors?

…

AB: Um like there were just people like even for me, like one person was like she started saying something, and like she was being so rude to me and like she was saying something saying something and then like this other lady was like way being er she was like she was I can’t remember what she was saying but the other lady was like you are being really racist like to me

Mantle: Towards you?

AB: Yeah towards me

Mantle: So just to clarify um an another juror witnessed another juror being racist towards you yourself?

AB: Yeah yeah

…

Mantle: Okay and can you recall any racial comments being made towards the accused?

AB: Um I I can’t remember any

Mantle: Okay

AB: But I’m sure there was something thrown in there

…

Interview with JL – 9/07/2019

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Mantle: How long did you deliberate for?

JL: A few days after evidence, maybe about a week

Mantle: Can you describe for me the nature of the deliberations or the nature of the jurors while they were all in a group, interacting as a group?

JL: Two jurors had qualms about first six counts. I agreed there was not unanimous agreement. Some tended towards not guilty. There was bullying. <redacted> was foreman and delivered guilty. Another female juror (the lady with short black curly hair) was not very happy during delivery of verdict. Everyone else happy to be done with it. Issue was with holidays booked so created tension. It took a while. I agreed to verdict, but in good conscience we could not say it was unanimous

Mantle: What was the result of the deliberations that you know of?

JL: Guilty

…

Mantle: Do you recall some jurors making derogatory comments about the accused

JL: Yes, she must think we are idiots, who does she think she is. and both made these comments and took a dislike to defendant

Mantle: Do you recall any jurors making racial comments about the accused?

JL: Racist remarks were made but I can’t think of what they were. I believe it violates what was directed by Judge. The conduct in jury deliberation was unprofessional. After four weeks a comments was made by Mr was in competent. He was counsel for defence

Mantle: Do you recall any racial or derogatory comments towards other jurors?

JL: Yes, time to time insensitive and racial remarks that were brushed off as jokes. I can’t recall exact words

Mantle: Did you observe any conflict amongst jurors?

JL: Plenty of conflict. Foreman was , he was immature and the jurors were not happy with this. stated ‘I understand that you will see me as young fun and full of cum’. then replaced as foreman. was only there for the money and didn’t care. The artist (nickname) would draw rather than pay attention.

Mantle: Did you observe any other jurors, or yourself, make any racial comments towards another juror?

JL: As I have already said

Mantle: Did you observe any other jurors, or yourself, make any racial comments towards the accused Miss Higgins?

JL: Yes, as I said

Mantle: Is there anything else you wish to tell me in relation to this matter?

JL: No not really

Mantle: Another juror has reported that they heard a remark ‘lock her up and throw the key away’ Do you recall this?

JL: Yes, it was one of the older ladies, blond bob hair

…

Interview with JL – 16/07/2019

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Mantle: I asked you a question which was can you describe for me the nature of the deliberations or the nature of the jurors while they were all in a group,

JL: Yep

Mantle: …interacting as a group?

JL: Yes

Mantle: Your response to that was two jurors had qualms?

JL: Yep

Mantle: I agreed there was not unanimous agreement. Some tended towards not guilty. There was bullying. was foreman and delivered guilty. Another female juror the lady with short black curly hair

JL: Yep

Mantle: …was not very happy during the verdict?

JL: Yep

Mantle: Everyone else happy to be done with it. Issue was with holidays booked so created tension. It took a while.

JL: Mmm

Mantle: I agreed to verdict, but in good conscience we could not say it was unanimous.

JL: Yep

Mantle: Do you have anything further to expand on that?

JL: With um so with the lady mentioned with the short curly black hair ah that’s and after we delivered well after delivered the verdicts on our behalf ah she left immediately ah left sometime after that and then I left like about 15, 20 minutes after that um but was all together ah more than happy to just leave because she was very upset with how ah deliberation ah took place um yea and I would definitely say that there was no ah unanimity at all in the deliberations because ah and were ah ignored ah they expressed concerns um one of the ladies the the eastern European lady I I think she was from Slovenia uh she said that you know I’ve I’ve already missed my holiday you know in Darwin to see my son and this is ridiculous can this go on for any longer um to to which I and a few others said well it’s not about you or your holiday it’s about making sure that we do do our jobs properly which is to consider the evidence and deliver ah a unanimous verdict and she said well you know it’s taken long enough ah she’s clearly guilty um why why we taking any any ah longer how many more people will have to miss their holidays and ah move around the any arrangements they have made so it was just all motivated by selfishness honestly

…

Mantle: Do you recall any jurors making racial comments about the accused?

JL: Yep

Mantle: Your response to that Racist remarks were made but I can’t think of what they were I believe it violates what was directed by the judge?

JL: Yep

Mantle: The conduct of jury deliberation was unprofessional?

JL: Yep

…

Mantle: Can you expand on those racial comments?

JL: I can’t remember but I the exact wording of the remarks but there were definitely comments made ah against her um I because ah I’m not I’m not sure I don’t want to er um state definitively but it it could if if she this is me trying to ah go off three years um something that happened three years ago ah if she was of indigenous extraction then I I suspect that was what the tenor of the remarks were but I can’t say for certain if that was the case because I don’t remember what her ethnicity or ethnic background ah was or is rather um yep

…

Mantle: Okay. Do you have anything else that you wish to add?

JL: I just feel like we were pressed um particularly by the eastern European lady ah who served on the jury with us to into making ah a decision as quickly as possible um just because it was expedient for her and for her holiday um I had a holiday booked in December but I understood that the the nature of the cases is that whilst we are given an estimate that the case can and often does drag on for longer that um the stated estimate which I was happy to do I mean the at the end of the day this is the reality of being called for jury service and that was something that was explained to us by the judge again So I I don’t understand why ha um people were getting very antsy about it towards the end because we were told that whilst it said two to four weeks on the summons notice it could go on for longer and it went for just over 11 weeks so I I don’t understand why that should have any bearing on um a matter of justice really so it was just a bit bizarre because from the very beginning it was clear that certain people just wanted to get out as soon as possible and you know it was after we heard the first bits of evidence ah as mentioned in the phone call the phone interview lock her up and throw away the key yea someone did say that it was the older lady with the bob haircut ah not not the also similar haircut to the eastern European lady but yea she said lock her up and throw away the key and chuckled about it and we had afternoon tea and I just thought what was happening you know um we haven’t even heard ah cross examination we haven’t heard the def the the counsel the for defence give his ah the the ah defendants account of the events none none of that had happened and already someone had just made up their mind so I probably prejudice proceedings um at least as far as I can think

…

Interview with DC – 8/07/2019

...

Mantle: Can you describe for me the nature of the deliberations or the nature of the jurors while they were all in a group, interacting as a group?

DC: I think it was a very one sided conversation between jurors in the fact that some were wanting to go on holiday or had made up their minds before deliberations but at the end of the day it was not unanimous

Mantle: What was the result of the deliberations that you know of?

DC: Guilty on all charges

Mantle: Were you spoken to at a later date in relation to the nature of your jury service?

DC: Yes

Mantle: When did that occur?

DC: Immediately after verdict, we were given a pamphlet, if not unanimous, so I chose to call that number and was contacted about two weeks to one month later

Mantle: What did you tell the interviewer during that interview?

DC: I thought the decision was not unanimous and was pressured by other jurors. There were others that felt that way, but it seemed that others were not. Another juror started crying because she didn’t want to argue any more, she was extremely pressured. Basically nobody put their foot down and said hear her out. I was not taken seriously.

Mantle: Do you recall some jurors making derogatory comments about the accused?

DC: I do remember people making comments but I can’t remember who

Mantle: Do you recall any jurors making racial comments about the accused

DC: Some were made to do with ethnicity but it was not malicious

Mantle: Do you recall any racial or derogatory comments towards other jurors?

DC: Not that I can recall

…

Mantle: Did you observe any other jurors, or yourself, make any racial comments towards another juror?

DC: Yes they were made. To do with the juror that left sick, some were making comments to do with his race and persona

Mantle: Did you observe any other jurors, or yourself, make any racial comments towards the accused Miss Higgins?

DC: I would say derogatory on her appearance, would not classify as racial

…

Mantle: Another juror has reported that they heard a remark ‘lock her up and throw the key away’ Do you recall this?

DC: Yes

Mantle: Who, can you describe her?

DC: The elderly women that was their opinion from day dot. We had just heard Crown allegations and they had already decided. One of the women had short dyed blond hair and was very made up each day, she would be late 60’s and that is the lady that made the comment Yes that’s her. The other elderly lady didn’t make that comment but stated why do we need to deliberate when we already know that she is guilty. That was about two to three weeks into the trial.

…

Interview with DC – 24/07/2019

…

Mantle: Okay do you recall some jurors making derogatory comments about the accused. You answered I do remember making comments but I can’t remember who.

DC: Yeah I can’t remember who who the comments were but I do remember comments being made about like just like where the person was from and just that particular community and how um you know how someone of um how someone from that community can’t you know doesn’t necessarily have the um intellectual power to do something like this along those lines.

Mantle: Okay with that answer can you recall um people that other jurors that made those comments and what those comments actually were?

DC: Um it was more or less along the lines of like how can a bogan um how can a bogan rip off the system like this basically I don’t particularly remember I feel like it was more than one person that made that comment but I think I’m not going to name names because I don’t know names so it’s hard for me it’s hard for me to say that

Mantle: I understand. I asked you, do you recall any jurors making racial comments about the accused. You answered, some were made to do with ethnicity but it was not malicious. Can you expand on that at all?

DC: Um I don’t think when um um going moving forward with that questions I don’t think that the comments were made in a malicious way at at first I think it was just made like oh my god how is someone from the country able to outsmart the government you know what I mean I think at first they weren’t very they weren’t made maliciously I think it was more towards the end it was sort of more of malicious sort of because peoples um opinions of her had changed and so it became more of a malicious sort of situation.

Mantle: Okay, do you recall any racial or derogatory comments towards other jurors? You answered, not that I can recall.

DC: No not that I can recall no

…

Mantle: I asked you, did you observe any other jurors or yourself make any racial comments towards the accused Miss Higgins, you answered I would say derogatory on her appearance would not class as racial.

DC: Yeah it was yeah more to do with her appearance over her race because you know with her being Caucasian I mean most people in the room are Caucasian so it’s like we’re not really making that sort of its not a coloured joke it’s a it’s a yeah derogatory joke

Mantle: I asked you, another juror has reported that they heard a remark ‘lock her up and throw the key away’ Do you recall this. You answered yes. I asked you to describe her you answered the elderly women that was their opinion from day dot. We had just heard crown allegations and they had already decided. One women had short dyed blond hair and was very made up each day she would be her late 60’s and that is the lady that made the comment Yes that’s her. The other elderly lady didn’t make that comment but stated why do we need to deliberate when we already know that she is guilty. That was about two to three weeks into the trial.

DC: Yeah

Mantle: Do you have anything further to expand on that?

DC: Um again I don’t I can’t I don’t know the name but there were only two elderly women in our in our jury so I mean I know with if I like saw her I could point her out but I just don’t know her name so I can’t like be making comments like I as I did I described her as best as I could yeah she’s short she’s um I think she was like maybe she Baltic but like very heavy accent like yeah she wanted to go on a holiday to the Northern Territory I’m never going to forget it because she reminded us every single day but yeah that’s yeah I don’t know her name so unless I see her I’m not going to be able to point her out

Mantle: Okay thank you

Mantle: Is there anything else you wish to tell me in relation to this matter?

DC: Un I just sort of want to get this sorted like it’s not like it’s not like its burdening me or anything I just think um everybody is entitled to a fair trial and I think you know if that was me standing up on the blocks I wouldn’t want the jury judging me based on my colour based on what I wear based on the allegations are I want everybody deserves a fair manner I just want a fair manner for the accused regardless of it they are guilty or not

…

Interview with GF – 23/07/2019

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Mantle: Okay do you recall some jurors making derogatory comments about the accused?

GF: No

Mantle: Okay do you recall any jurors making racial comments about the accused?   

GF: No no

…

Mantle: Okay do you recall any racial or derogatory comments towards other jurors?

GF: No

Mantle: Okay did you observe any conflict amongst the jurors?

GF: Yes

…

Mantle: Okay thank you did you observe any other jurors or yourself, make any racial comments towards another juror?

GF: No

Mantle: Okay did you observe any other jurors or you yourself make any racial comments towards the accused Miss Higgins?

GF: No

Mantle: Okay another juror has reported that they heard a remark ‘lock her up and throw the key away’ Do you recall this at all?

GF: No

…

Interview with JB – 08/07/2019

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Mantle: Do you recall some jurors making derogatory comments about the accused?

JB: I don’t think there was anything derogatory, nothing offensive about defendant. If anything I just suppose anything that may come up as character judgments but nothing derogatory

Mantle: Do you recall any jurors making racial comments about the accused?

JB: No I can’t recall

Mantle: Do you recall any racial or derogatory comments towards other jurors?

JB: No, the jury got along well together

Mantle: Did you observe any conflict amongst jurors?

JB: There was tension, I remember as we were coming up with verdicts there was conflicting tension between majority who believed in the guilty and a select few jurors were sceptic about the verdict.

Mantle: Did you observe any other jurors, or yourself, make any racial comments towards another juror?

JB: No

Mantle: Did you observe any other jurors, or yourself, make any racial comments towards the accused Miss Higgins?

JB: No

…

Interview with MD – 08/07/2019

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Mantle: Do you recall some jurors making derogatory comments about the accused?

MD: No

Mantle: Do you recall any jurors making racial comments about the accused?

MD: No

Mantle: Do you recall any conflict between jurors?

MD: Those two same jurors who were. The lady she worked for homeless people

…

Mantle: Did you observe any other jurors, or yourself, make any racial comments towards the accused Miss Higgins?

MD: No definitely not

…

Interview with CD – 09/07/2019

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Mantle: Do you recall some jurors making derogatory comments about the accused?

CD: No

Mantle: Do your recall any jurors making racial comments about the accused?

CD: Not at all

Mantle: Do you recall any racial or derogatory comments towards other jurors?

CD: No

Mantle: Did you observe any conflict amongst jurors?

CD: No, there was heated discussion as normal

Mantle: Did you observe any other jurors, or yourself, make any racial comments towards another juror?

CD: No

Mantle: Did you observe any other jurors, or yourself, make any racial comments towards the accused Miss Higgins?

CD: No

…

Interview with TD – 08/07/2019

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Mantle: Do you recall some jurors making derogatory comments about the accused?

TD: I can’t recall

Mantle: Do you recall any jurors making racial comments about the accused?

TD: I don’t believe so

Mantle: Do you recall any racial or derogatory comments towards other jurors?

TD: Not that I recall

Mantle: Did you observe any conflict amongst jurors?

TD: So probably mid-way through the trial, prior to deliberations I do recall one or two minor conflicts. They were cases where I believe from my recollection, one juror felt she wasn’t being heard and we were not listening to her opinions. One instance I took that juror aside and asked her to explain to me what were her concerns. Then we discussed as a group and agreed to be careful how we approached after that. The issue was better after that. Her name may have been .

Mantle: Did you observe any other jurors, or yourself, make any racial comments towards another juror?

TD: No

Mantle: Did you observe any other jurors, or yourself, make any racial comments towards the accused Miss Higgins?

TD: No I don’t recall

…

Interview with AE – 15/07/2019

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Mantle: Do you recall some jurors making derogatory comments about the accused?

AE: Not from memory

Mantle: Do you recall any jurors making racial comments about the accused?

AE: No not racial

Mantle: Do you recall any racial or derogatory comments towards other jurors?

AE: No

Mantle: Did you observe any conflict amongst jurors?

AE: Just with their opinions not being heard

Mantle: Did you observe any other jurors, or yourself, make any racial comments towards another juror?

AE: No

Mantle: Did you observe any other jurors, or yourself, make any racial comments towards the accused Miss Higgins?

AE: No

…

Interview with FF – 08/07/2019

…

Mantle: Do you recall some jurors making derogatory comments about the accused?

FF: No

Mantle: Do you recall any jurors making racial comments about the accused?

FF: No

Mantle: Do you recall any racial or derogatory comments toward other jurors?

FF: No

Mantle: Did you observe any conflict amongst jurors?

FF: Not conflict not out of ordinary

Mantle: Did you observe any other jurors, or yourself, make any racial comments towards another juror?

FF: No

Mantle: Did you observe any other jurors, or yourself, make any racial comments towards the accused Miss Higgins?

FF: No

…

Interview with AW – 08/07/2019

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Mantle: Do you recall some jurors making derogatory comments about the accused?

AW: No, never

Mantle: Do you recall any jurors making racial comments about the accused?

AW: No never

Mantle: Do you recall jurors making derogatory comment toward other jurors?

AW: The lady from dept. of health became quite hostile and reluctant and volatile towards making a call and refused to participate. If she felt she wasn’t making any progress with her position, she took offence to not being listened to and walked out. She took offence during deliberations

…

Mantle: Did you observe any other jurors, or yourself, make any racial comments towards another juror?

AW: None whatsoever everyone was respectful and all jurors listened to others and no nastiness and no disrespect

Mantle: Did you observe any other jurors, or yourself, make any racial comments towards the accused Miss Higgins?

AW: No none whatsoever. We had a serious job to do based on evidence and everyone listened to the defence and everyone tried to do the right thing. It was sympathy towards the defendant by a couple of people

…

Interview with JL(2) – 19/07/2019

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Mantle: Do you recall some jurors making derogatory comments about the accused?

JL(2): Well yes, in the jury box a couple of guys was smirking but not sure if that was about accused. A comment was made about a witness. I made a comment that that was disrespectful. One of the young men that was dismissed kept calling for toilet breaks so he could get on his phone

Mantle: Do you recall any jurors making racial comments about the accused?

JL(2):   No I don’t

Mantle: Do you recall any racial or derogatory comments towards other jurors?

JL(2):   No not racial, I was harsh on the boys

Mantle: Did you observe any conflict amongst jurors?

JL(2):   There was conflict, I felt very stressed. I had a heart fibrillation on my way to jury. I would have been the most outspoken

Mantle: Did you observe any other jurors, or yourself, make any racial comments towards another juror?

JL(2):   My goodness no

Mantle: Did you observe any other jurors, or yourself, make any racial comments towards the accused Miss Higgins?

JL(2):   No not at all I find that incredulous [sic]

…

Consideration

10. It will be recalled that, having reviewed the Sheriff’s first report, this Court concluded as follows at [104]-[106]:

“[104] The report does not suggest that any ‘racist or derogatory remarks’ were made about Ms Higgins after this further direction was given, but it may be that Ms Higgins had already by then been denied the fair trial she was entitled to receive.

[105] There is no suggestion that the making of remarks of that nature were reported to the trial judge. Had they been, they would have been investigated. If established, they are likely to have led to the jurors who made them being discharged, because communication of such remarks to other jurors would have been contrary to the directions already given. That would also have suggested that some jurors were not bringing an impartial mind to the matters that they were called on to decide at the trial.

[106] Because, however, no such remarks were reported to the trial judge until the Sheriff’s report and the view taken by the trial judge was that no further steps needed to be pursued, in relation to what the report contained, there has been no investigation into what was actually said by other jurors. Thus it has not been established that any remarks made about Ms Higgins were properly described as having been ‘racist and derogatory’ or that she has been denied a fair trial.”

11. Clearly enough, the further report that was ordered directed attention to the elucidation of the factual issue underlying Ground 2. That factual issue remains to be considered by this Court, namely, whether with the benefit of the Sheriff’s further report, there can be said to be evidence that multiple jurors exhibited actual bias against Ms Higgins in the form of racist and derogatory comments or remarks made about her in the jury room to other jury members.

12. Ms Higgins has conceded that the exact content of the racist and derogatory remarks is not clear. That is said not to be surprising having regard to the fact that the trial occurred many years ago. Ms Higgins submitted that, in the light of the latest interviews with jurors, it is evident that some of the accounts given to the Sheriff included comments that evinced racial prejudice and what is referred to as “a negative attitude lacking impartiality”. Ms Higgins contended that, taken as a whole, the jury interviews reveal that some jurors made comments which, “at the very least”, potentially demonstrate irregularity in the form of bias by more than one juror.

13. Ms Higgins then made the following submissions:

“14. It is submitted that the confirmed existence of racist and derogatory remarks about the accused may well have or there is a real risk they may have poisoned the atmosphere in the jury room against the accused, whether that was consciously recognised by jurors or not. The subjective viewpoint of each juror, that deliberations were not affected, is not determinative, nor is it ultimately relevant to the test of apprehended bias in any event. For as [Schmidt J] reasoned (at [96]), the effect of any of the adverse remarks on the verdicts [is] of no consideration where a juror would have been discharged for such remarks if the judge had known of them at the time.

15. It is submitted that [Ms Higgins] has been denied a fair trial, as a fair-minded member of the public would have entertained a reasonable apprehension that the juror or jurors who made the racist and derogatory comments about [Ms Higgins], during the trial contrary to the directions of the trial judge, would not go on to be impartial.

16. It is submitted that the circumstances of juror bias in this case can give rise to a substantial miscarriage of justice and the convictions…should be quashed and a new trial ordered.”

14. These submissions proceed upon the assumption that one or more of the jurors made a racist and derogatory remark in the jury room. For the reasons that follow, I am not satisfied that the making of any adequately identified racist remarks about Ms Higgins has been established. I am also not satisfied that the making of any so-called derogatory remarks about her that may have been established lead to the conclusion that Ms Higgins was denied a fair trial.

15. It is evident from a review of the jury interviews that no specific racist remark is nominated by any juror. This is not without significance. Many of the jurors deny that they heard any racist remarks at all. The word “bogan” is not a racist description. However, even those jurors who were concerned to tell the interviewer that they recall such remarks being made, none is able or has chosen to say what those remarks were. I reject Ms Higgins’ submission that the interviews provide support for the proposition that racist comments were made by a number of jurors, in the absence of any single juror being able to state clearly what was said that fits such a description. It is also significant in this context to observe that the juror who contacted the trial judge’s chambers on the day following the conclusion of the trial did not then specify in terms that any juror had been overheard making a racist comment about Ms Higgins: the juror’s concerns were limited to complaints of what amounted to coercion or harassment by other jurors.

16. Much has been made of the suggestion that the revelation to a trial judge during a trial that one or more jurors had made racist or derogatory remarks about an accused person in the jury room could lead potentially to the discharge of the individual juror or possibly even to the discharge of the jury as a whole. However, even that suggestion relies for its force upon the scope and content of the allegedly offending remarks. The matter can be directly tested in the present case by asking what is likely to have occurred if the trial judge had been provided with the substance of the interviews that are set forth earlier in these reasons. Putting to one side the suggestion that the jury decision may have been reached as the result of coercion or was possibly not truly unanimous, neither of which remains the subject of this appeal, it seems to be highly unlikely that the trial would not have proceeded. In short, none of the material in the Sheriff’s further report discloses that any racist remark or comment about Ms Higgins was made.

17. Ms Higgins also draws attention to the suggestion that one juror was heard to comment that “they should lock her up and throw away the key”. The interviews appear to indicate that those jurors who recall hearing this thought that it was some two to three weeks into the trial. If that is accepted, it does not seem to me to be at all problematic. It is an unsurprising fact that jurors are asked to determine the guilt of an accused person and that jurors’ individual views emerge and develop over the course of a trial. Some jurors may form views quickly. Others may not be able to do so and some jurors, as is well known, are never able to come to a decision. It does not seem to me to be particularly controversial that in the present case a juror felt able to express a view about this important topic in this particular vernacular. A simple statement by the same juror at the same time in terms such as “I am presently minded to convict the accused on all counts” could hardly be criticised. The jurors’ task is to determine whether an accused person is or is not guilty: an unambiguous and audible expression of an opinion about that after some two or three weeks of a criminal trial is not only not evidence of bias or prejudice but is also not inconsistent with the duty that the jury is required to perform.

18. I maintain the views that I expressed at [16]-[24] of this Court’s earlier decision. I joined in the opinion that we should in effect take an expectant approach to the original juror’s complaint and order a further inquiry about what happened in the jury room before deciding whether or not Ms Higgins’ Ground 2 was made out. Having now received the further report from the Sheriff, I am satisfied that there has been no juror irregularity and that Ms Higgins has not been deprived of a fair trial. A conclusion that multiple jurors have, or even a single juror has, exhibited actual bias against Ms Higgins is simply not supported by the evidence. Ms Higgins’ argument, taken to its logical conclusion on the facts of this case, would mean that almost any expression of opinion by a juror adverse to her would demonstrate bias. Endorsement of that view would be inconsistent with trial by jury as it is presently understood.

19. Nor in my view is the position different in this case if Ms Higgins’ concerns are considered in the context of apprehended bias. Notwithstanding the terms of Ground 2, both Ms Higgins and the Crown directed significant attention to this issue. That is unsurprising having regard to the fact that s 75C of the Jury Act 1977 defines “irregularity” for the purposes of that section to include “any reasonable apprehension of bias or conflict of interest on the part of the juror”. Mr McHugh SC for the Crown conceded that apprehended bias would be enough to impugn the verdict.

20. Whether there is a reasonable apprehension of bias involves the application of well-established principles. The question is whether a fair-minded observer might conclude that the juror might not bring an impartial mind to a determination of the issues in the trial: Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48 at [11]. The question is one of possibility, not probability, but the possibility of a lack of impartiality must be real and not remote: Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 at [7]. This requires, first, an identification of the factors that might lead the tribunal to decide a case other than on its legal and factual merits, and, secondly, an assessment of the reasonableness of the connection between the matter and the possibility of departure from impartial decision-making: Ebner at [8]; CUR24 v DPP [2012] NSWCA 65 at [35]. In considering the statements of the jurors who asserted that there were no issues in the course of the deliberation, it is to be remembered that “a juror involved in an irregular incident may feel defensive about his or her role”, that he or she may have sought “to put the best light on the matter” and acknowledgement that “one can never be certain … whether all the circumstances have been elicited by [in this case, the investigating Sheriff]”: Webb v The Queen (1994) 181 CLR 41; [1994] HCA 30 at 52.

14. As with the pleaded ground alleging actual bias, the material relied upon by Ms Higgins does not establish the existence of apprehended bias in fact. A conclusion that a fair-minded lay observer might apprehend that multiple or single jurors might have exhibited bias against Ms Higgins necessarily directs attention to what it is alleged was said by some jurors in the course of performing their function during a trial. It is simply not possible, having regard to the frailty of the evidence elicited from the jurors in their interviews extracted above, legitimately to test what the fair-minded lay observer might make of it.

15. Ground 2 should be dismissed.

16. Nor am I able to conclude that Ground 3 is made out. All of the jurors have been interviewed. All of them have been asked to recall what occurred in the jury room over the course of the trial. Some appeared to have better recollections than others. Nowhere from the transcript of the juror interviews is any indication given that more information would be likely to be recovered if they were interviewed again. I am also not attracted to the idea that the jurors should be approached for another interrogation, having performed their duty and discharged their solemn obligations as long ago as September 2016. I do not consider in these circumstances that a second further report should be ordered.

17. Ground 3 should be dismissed.

18. In the circumstances I would propose that the appeal be dismissed.

19. HAMILL J: I have had the advantage of reading the judgment to be delivered by Harrison J in draft, noting that it, in effect, incorporates the substance of the earlier judgments delivered by the Court on 21 November 2018. I agree with his Honour’s conclusion that neither ground 2 nor 3 is established. I agree with his Honour’s reasons for that conclusion. I would only add the following observations.

20. There are a number of inconsistencies in the statements made by the various jurors in the course of their interviews. In many respects, this is unsurprising given the effluxion of time between their deliberations and the interviews. I have largely disregarded the evidence of the nine jurors who say, in essence, that there were no problems in the course of the deliberations: cf Webb v The Queen (1994) 181 CLR 41 at 52; [1994] HCA 30. It is unusual for a juror to come forward after a verdict to complain about what happened in the course of a criminal trial. For that reason alone, the interviews with the jurors who expressed concerns about the process must be closely considered. I accept that there was considerable tension in the jury room and that some jurors exhibited animosity, and made possibly racist remarks, to one another. I also accept that some jurors took longer than others to come to a conclusion that they agreed with the guilty verdicts on each count.

21. However, the evidence does not establish that racist remarks of any significance were directed toward the applicant. In their initial interview, AB suggested racist remarks were made but when interviewed on 1 July 2019, the juror said “um not racial” and, when pressed said “they could have but I don’t I don’t think.” AB went on to explain that “a lot happened in that 7 weeks, 8 weeks.”

22. DC, who was not shy in criticising the conduct of the other jurors, said in an interview on 8 July 2019 that there were some comments “made to do with ethnicity but [they were] not malicious”. In the same interview DC said of these comments “I would say derogatory on her appearance, would not classify as racial”. In an interview on 24 July 2019, DC said the comments were more about “where the person was from” and included words to the effect “how is someone from the country able to outsmart the government”. It was DC who said that the applicant was referred to as a “bogan”.

23. JL said that “racial”, “derogatory” and “insensitive” remarks were made and that the deliberations were “unprofessional”. However, JL could not provide any detail of what was said and stated that the remarks were “brushed off as jokes.” In the second interview, JL said they could not remember the “exact wording” of the remarks but that there “were definitely comments made against her”. JL could not recall the “ethnicity or ethnic background” of the applicant. Although JL speculated that “if she was of indigenous extraction” that may have been “the tenor of the remarks” but they couldn’t “say for certain if that was the case”. There was no suggestion at the hearing of the appeal that the applicant is indigenous. When the Court sought clarification on this issue, the following exchange occurred:

“HARRISON J: There’s reference, although it’s a bit opaque in JL's interview of 16 July 2019, there’s reference to her, I assume your client being of indigenous extraction that allowed to put - is if she was of indigenous extraction.

DALTON: Your Honours as I understand it that’s not correct, that’s JL using an example as opposed to suggesting that the accused was of indigenous extraction.

HARRISON J: Yes.

DALTON: Tab 3 I’m told by my learned friend, question 116 which is tab 3 - DC 116. Yes, good point, my learned friend. The DCC, yeah. This is one of the matters that I was referring to from the original port. Yeah, it was yeah, more to do with her appearance over her weight because you know with her being Caucasian. I mean most people in the room are Caucasian so it’s like we’re not really making that sort of - it’s not a coloured joke, it’s a yeah derogatory joke and there may be other evidence in the trial proper as to her ethnic background and I’ll seek to and have a note sent through to your Honours, either way in that regard.”

31. As Harrison J points out, the reference to the applicant being a “bogan” carries no racial connotation. The remark may be considered unfortunate but it bears no logical connection to the suggestion of pre-judgment or bias. To the contrary, some of the material suggests that one or more members of the jury may have thought the applicant’s lack of sophistication – a quality I take to be implicit in the description of a person as a “bogan” – made it less likely that they could perpetuate the fraud that was alleged. DC said this in various ways in their second interview:

“I do remember comments being made about like just like where the person was from and just that particular community and how um you know how someone of um how someone from that community can’t you know doesn’t necessarily have the um intellectual power to do something like this along those lines.”

“It was more or less along the lines of like how can a bogan um how can a bogan rip off the system like this basically I don’t particularly remember I feel like it was more than one person that made that comment.”

“I don’t think that the comments were made in a malicious way at at first I think it was just made like oh my god how is someone from the country able to outsmart the government you know what I mean.”

32. Nothing in this material might lead a fair minded observer to conclude that the jury collectively, or any individual juror, might not have decided the case other than on the evidence or might not have brought an impartial mind to bear upon the issues. The retrospective exposure of what happens in a jury room is unusual and, given the “human condition” and our “accumulated predispositions and prejudices” (to adopt the language of Harrison J in the earlier judgment at [18]), it is not really surprising that these things have emerged in the interviews of the jurors in the applicant’s trial.

33. I agree with Harrison J that neither ground 2 (actual bias), nor the expanded submission based on apprehended bias, is established on the evidence. I agree with Leeming JA and Harrison J that there is “no warrant” for further investigation into these matters at this stage. It is now three years since the trial and the interviews conducted last year demonstrate that the jurors’ memories are exhausted. Accordingly, I am unable to uphold ground 3.

34. I agree with the orders proposed by Harrison J.

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