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Supreme Court 6 August 2007

HIGGINS

[2007] NSWSC 848

Fraud & dishonesty
CRIMINAL LAW WHETHER INVESTIGATION INADEQUATE EVIDENCE NOT PRODUCED AT TRIAL FRESH EVIDENCE

Citation: HIGGINS [2007] NSWSC 848
Court: Supreme Court of New South Wales
Date: 6 August 2007
Judge(s): Fullerton J

Background

The applicant, Graham Patrick Higgins, was convicted in the District Court at Lismore following a jury trial for one count of fraudulently omitting to account under s 178A of the Crimes Act 1900. On 6 March 2006, Judge Black DCJ sentenced him to a non-parole period of 1 year and 9 months, with a balance of term of 1 year and 3 months. The conviction arose from allegations that the applicant had fraudulently endorsed a bank cheque belonging to a customer and arranged for funds to be disbursed across eight cheques plus cash.

Prior to this application, the applicant had exhausted his conventional appeal avenues. The Court of Criminal Appeal dismissed both a Crown appeal against sentence and the applicant's own appeal against conviction. The applicant had not sought leave to appeal to the High Court.

The applicant then sought an inquiry and review of his conviction under s 474D of the Crimes Act 1900 (since repealed), asking the Supreme Court to examine whether his conviction should be referred for further inquiry. By the time the application was determined, the relevant provisions had been re-enacted as Part 7 of the Crimes (Appeal and Review) Act 2001, and the application was dealt with under that scheme.

  • Whether the application triggered the statutory threshold under s 79(2) of the Crimes (Appeal and Review) Act 2001, namely whether there was a doubt or question as to the applicant's guilt, as to mitigating circumstances, or as to any part of the evidence
  • Whether alleged deficiencies in the investigation conducted by the Commonwealth Bank of Australia (CBA) and NSW Police were sufficient to raise doubt about the conviction
  • Whether evidence not produced at trial, including bank records and telephone records, gave rise to any material question warranting further inquiry
  • Whether alleged inaccuracies and inconsistencies in witness evidence at trial warranted a review

Decision

Fullerton J observed that the statutory scheme under Part 7 of the Crimes (Appeal and Review) Act 2001 is administrative in nature, not a judicial proceeding. The test is whether the material before the Court generates a doubt or question as to the convicted person's guilt, and the threshold has been described in earlier authority as requiring the material to cause "unease or a sense of disquiet" in allowing the conviction to stand.

The applicant raised a range of complaints about the conduct of the police and CBA investigation, including allegations that certain records were never obtained, that witness evidence was inaccurate or inconsistent, and that further forensic testing of a disputed signature was possible. Fullerton J addressed each complaint and was not satisfied that any of them had substance. In particular, the Court noted that some materials the applicant claimed were withheld could have been obtained by subpoena at trial, and the handwriting evidence had been professionally presented and cross-examined.

On the central question of guilt, Fullerton J found that the strength of the Crown's circumstantial case was considerable. The evidence established that the applicant was in the optimal position to carry out the fraud and that the circumstances surrounding the cashing of each cheque strongly supported the jury's verdict. The alleged investigative deficiencies did not diminish the weight of that evidence.

Fullerton J concluded that she entertained no doubt or question as to the applicant's guilt and dismissed the application.

Orders Made

  • Application dismissed.

Key Takeaways

  • Under Part 7 of the Crimes (Appeal and Review) Act 2001, the Supreme Court exercises an administrative rather than judicial function when considering applications for inquiry into a conviction or sentence.
  • The statutory threshold for directing an inquiry requires the material to raise a doubt or question as to guilt, mitigating circumstances, or any part of the evidence; earlier authority frames this as material that causes "unease or a sense of disquiet" in allowing the conviction to stand.
  • Complaints about investigative deficiencies will not necessarily raise the requisite doubt where the overall Crown case at trial was strong and the alleged gaps in investigation were not shown to be material.
  • Evidence that could have been obtained by subpoena at trial but was not will not readily found a post-conviction review application in the absence of any explanation for why it was not pursued.
  • In dismissing the application, the Supreme Court confirmed that the re-enactment of the review provisions into the Crimes (Appeal and Review) Act 2001 did not alter the substantive test or the administrative character of the process.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), including s 178A (fraudulently omitting to account) and former s 474D
- Crimes (Appeal and Review) Act 2001 (NSW), Part 7 (ss 76-88)
- Evidence Act 1995 (NSW), ss 84, 90
- Criminal Appeal Rules 1912 (NSW)

Cases:
- Application of Antoun El Hani [2007] NSWSC 330
- Eastman v Director of Public Prosecutions (ACT) (2003) 214 CLR 318
- Higgins v R [2007] NSWCCA 56
- R v Higgins [2006] NSWCCA 326
- R v Zhang [2000] NSWSC 1099
- Varley v Attorney General (NSW) (1987) 8 NSWLR 30