R v Higgins - [2019] SASCFC 79

Supreme Court of South Australia
(Court of Criminal Appeal)
R v HIGGINS
[2019] SASCFC 79
Judgment of The Court of Criminal Appeal
(The Honourable Justice Stanley, The Honourable Justice Parker and The Honourable Auxiliary Justice David)
3 July 2019
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - IMPROPER ADMISSION OR REJECTION OF EVIDENCE
CRIMINAL LAW - GENERAL MATTERS - CRIMINAL LIABILITY AND CAPACITY - DEFENCE MATTERS - PROVOCATION - AVAILABILITY OF DEFENCE
CRIMINAL LAW - GENERAL MATTERS - ANCILLARY LIABILITY - COMPLICITY - COMMON PURPOSE OR JOINT CRIMINAL ENTERPRISE
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - HOMICIDE - MURDER
This is an appeal against a conviction for murder.
The appellant was tried for murder along with two other accused (Hunt and Gebhardt). The appellant was convicted of murder by verdict of a jury. Hunt was acquitted of murder and found guilty of manslaughter. Gebhardt was acquitted of all charges.
The prosecution case at trial was that the appellant and a group of men, including the two other accused, attended at Prion Court and Finnian Road seeking payment of drug debts. In the course of this undertaking at Finnian Road, the deceased hit the appellant on the back of the head with a metal pole. The deceased fled and was pursued by the three accused. After the deceased was knocked to the ground by Hunt, the appellant fatally wounded him with a knife.
The appellant advances three grounds of appeal:
1. The Learned Trial Judge erred in admitting the pre-Finnian Road conduct, said to have occurred at Prion Court.
2. The prosecution having opened their case to the jury and conducted their case at trial on the basis that the Appellant Higgins was the “stabber” the Learned Judge erred in allowing the Prosecution to advance an alternative pathway to guilt of murder, namely that Higgins, while not the “stabber”, could be guilty of murder by way of joint/extended joint enterprise with an unknown “stabber”.
3. The Learned Trial Judge erred in refusing to direct the jury regarding the partial defence of provocation in relation to the Appellant, Higgins.
Held, per David AJ (Stanley and Parker JJ agreeing), dismissing the appeal:
1. There was no room to suggest that either limb of provocation was made out (at [18]-[21]).
2. The discreditable conduct evidence was clearly admissible under s 34P(2) (at [23]-[27]).
3. The nature of the case, namely that accessorial liability was a live issue, and the time it was raised, allowing for witnesses to be recalled if necessary, precludes any question of unfairness (at [28]-[31]).
Criminal Law Consolidation Act 1935 (SA) s 275; Evidence Act 1929 (SA) ss 34P, 34R, referred to.
Lindsay v The Queen (2015) 255 CLR 272; R v Franco (2003) 139 A Crim R 228, applied.

R v HIGGINS
[2019] SASCFC 79
Court of Criminal Appeal: Stanley and Parker JJ, David AJ

STANLEY J: For the reasons given by David AJ I would refuse permission to appeal…

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 R v Higgins

Details

AGLC: R v Higgins [2019] SASCFC 79
Case: [2019] SASCFC 79
Decision Date: 3 July 2019

CaseChat Overview and Summary

The appeal concerned a criminal conviction for murder. The appellant, Higgins, argued that evidence of his conduct at Prion Court was improperly admitted at trial, and that the prosecution had improperly introduced an alternative basis for conviction, namely joint criminal enterprise, late in the proceedings. The appeal was heard by Stanley and Parker JJ and David AJ.

The primary legal issues before the appellate court were whether the trial judge erred in admitting evidence of the appellant's discreditable conduct at Prion Court, and whether the prosecution's late introduction of a joint criminal enterprise theory constituted a miscarriage of justice. The appellant contended that the Prion Court evidence was unfairly prejudicial and did not meet the requirements for admitting discreditable conduct evidence under section 34P of the *Evidence Act 1929* (SA). He also argued that the shift in the prosecution's case to include joint criminal enterprise, after initially presenting him as the principal offender, was unfair.

The appellate court dismissed the appeal on both grounds. Regarding the Prion Court evidence, the court found it was admissible under section 34P(2)(a) of the *Evidence Act 1929* (SA) because its probative value, in establishing the appellant's presence with co-accused, their possession of weapons, and the appellant's apparent leadership role, substantially outweighed any prejudicial effect. The court noted the trial judge had carefully directed the jury on the proper use of this evidence. Concerning the joint criminal enterprise, the court found that the prosecution's indication of this alternative basis for conviction was permissible, as it provided a pathway for conviction even if the jury had reasonable doubt about the appellant being the principal offender, and the trial judge had managed the proceedings appropriately.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

I would dismiss that ground of appeal.Ground 1 – discreditable conduct evidence The appellant argues, as his counsel did at trial, that the Prion Court incident should not have been led in evidence. The trial Judge ruled prior to trial, based on the declarations presented, that that evidence was admissible and, applying the requirements of s 34P of the Evidence Act 1929 (SA) (the Act), it should not be excluded. The appellant now argues that the evidence of Prion Court is plainly discreditable conduct and should not have been admitted. He further argues that s 34P(2), namely:(2) Discreditable conduct evidence may be admitted for a use (the permissible use) other than the impermissible use if, and only if— (a) the judge is satisfied that the probative value of the evidence admitted for a permissible use substantially outweighs any prejudicial effect it may have on the defendant; and (b) in the case of evidence admitted for a permissible use that relies on a particular propensity or disposition of the defendant as circumstantial evidence of a fact in issue—the evidence has strong probative value having regard to the particular issue or issues arising at trial.on the facts of the present case, does not make evidence of the discreditable conduct at Prion Court admissible. The respondent relies upon s 34P(2)(a) to justify admission, in that there is probative value in the evidence of Prion Court independent of any question of propensity, and that probative value clearly outweighs any prejudicial effect it may have on the appellant. In my view, the evidence was clearly admissible. I point out the following matters which were clearly explained by the Judge to the jury in accordance with s 34R(1) of the Act:1The evidence puts both the appellant and Hunt in each other’s company at Prion Court shortly prior to the incident at Finian Road;2The evidence establishes that they were travelling in Hunt’s ute along with three other men;3It is relevant to show that the group of men, when arriving at Prion Court, were armed with weapons;4That at Prion Court, they were not only armed with weapons, but were expecting some form of resistance; and5Both at Prion Court and at Finian Road the appellant seemed to be in charge. All of these matters are clearly relevant to the incident that took place at Finian Road. The trial Judge directed the jury carefully as to the proper use of the Prion Court evidence and also to the use that must not be made of it. The admission of that evidence was clearly correct and I would refuse permission to appeal on that ground.Ground 2 – joint criminal enterprise The case as presented by the prosecution in its opening, and indeed as indicated at a pre-trial conference, was that the appellant was the person who killed the deceased by stabbing him, and that the other two accused were guilty by way of accessorial liability, namely joint enterprise and extended joint enterprise. Near the end of the prosecution case, during discussion by counsel with the Judge about matters of law, the prosecutor indicated for the first time that there was an alternate route to conviction for the appellant other than as the principal offender. When addressing the trial Judge, the prosecutor said the following:MR PEARCE: I can.Could I just go back to the case of Mr Higgins? If the jury had a reasonable doubt that he was principal then, of course, there is still that liability open under joint enterprise or aid abet if they were not satisfied precisely what role he played.HIS HONOUR: Tell me about that again.MR PEARCE: If the jury have a reasonable doubt that he is the principal but he is part of a wider group that carried out this crime pursuant to a joint enterprise etc., then that pathway is still open in the case against Mr Higgins.

Decision

Reasons for decision

I would refuse permission to appeal on this ground.Conclusion I would refuse permission to appeal on grounds 1 and 2. I would dismiss the appeal on ground 3.

Ratio Decidendi

Legal Principle Established

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