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Court of Criminal Appeal 21 November 2018

Higgins v R

[2018] NSWCCA 258

Fraud & dishonesty
CRIMINAL LAW CONVICTION APPEAL ADDITIONAL SHERIFF’S REPORT ORDERED APPEAL ADJOURNED

Citation: Higgins v R [2018] NSWCCA 258
Court: NSW Court of Criminal Appeal
Date: 21 November 2018
Judges: Hoeben CJ at CL; Harrison J; Schmidt J

Background

The appellant was convicted by jury of 81 counts of fraud-related offences, including obtaining a financial advantage from a Commonwealth entity, using forged documents, and dealing in proceeds of crime. Following the verdict, a juror sent an email raising concerns about the conduct of deliberations. That email prompted the trial judge to initiate a formal investigation by the Sheriff under s 73A of the Jury Act 1977 (NSW).

During that investigation, a juror who had been discharged before deliberations began reported having witnessed other jurors make "racist and derogatory comments" about the accused in the jury room. That observation was vague, lacked context, and was not corroborated by any other juror. The Sheriff's report did not explore it further.

The appellant appealed her convictions on three grounds: that the Sheriff's report was inadmissible; that the verdict should be set aside because of juror pressure, compromise, or time constraints; and, in the alternative, that if the report was inadequate, the Sheriff should be directed to conduct a further and more thorough investigation into juror bias.

  • Whether the Sheriff's report into alleged juror irregularity was admissible in the appeal proceedings
  • Whether the jury's verdicts should be set aside on the basis of juror pressure, compromise of verdicts, or time constraint pressures arising from the trial exceeding its estimated length
  • Whether alleged juror bias, in the form of racist remarks made during deliberations, deprived the appellant of a fair trial
  • Whether, if the initial Sheriff's report was inadequate, the Court should order a further investigation into juror bias allegations

Decision

Grounds 1 and 2: All three judges agreed that Grounds 1 and 2 should be dismissed. The concerns raised in the original juror email, about pressure and compromise during deliberations, were not established. The Court found those allegations should not be pursued further.

Ground 3 (the divided ground): The Court split 2-1 on whether to order a further Sheriff's investigation into the racist remarks allegation. Hoeben CJ at CL would have dismissed this ground, and accordingly the appeal in its entirety. Harrison J and Schmidt J formed the majority, ordering that the appeal be adjourned and a further targeted investigation conducted.

Hoeben CJ at CL reasoned that the reported remark was conclusory, vague, and uncontextualised. More fundamentally, his Honour held that any further investigation would inevitably probe the jury's deliberative processes, bringing it into conflict with the exclusionary rule protecting jury deliberations. His Honour drew on Petroulias v McClellan [2013] NSWCA 434 and the High Court's analysis in Smith v Western Australia [2014] HCA 3 to emphasise both the exclusionary rule and the principle of finality of verdicts.

Harrison J, agreeing with Schmidt J, accepted that the exclusionary rule was a real constraint but concluded that what was proposed in Ground 3 was a circumscribed investigation into objective facts, not an inquiry into the psychological dynamics of deliberations. The majority held that the Sheriff should obtain from the relevant juror an account of the specific words heard, when they were spoken, and in whose presence, and then seek accounts from other jurors about whether any such remarks were made or heard. That information would allow the Court to determine whether the remarks could properly be described as "racist or derogatory" and, if so, whether a miscarriage of justice of the kind contemplated in Webb and Hay v The Queen (1994) 181 CLR 41 had occurred.

Orders Made

  • The hearing of the appeal be adjourned.
  • The Sheriff be directed to conduct a further investigation under s 73A of the Jury Act 1977 into the juror bias matters identified by Schmidt J at [126] of the judgment.
  • Following receipt of the further report, a redacted copy be provided to the parties.
  • The appellant notify the Crown within 21 days whether she wishes to press the appeal further, in which case the matter be relisted for directions.
  • If the appellant does not seek to press the appeal further, she notify the Court within 21 days, whereupon orders dismissing the appeal will be entered.

Key Takeaways

  • The exclusionary rule protecting jury deliberations does not operate as an absolute bar to all post-verdict investigation, but its boundaries remain unsettled. As the High Court observed in Smith v Western Australia, whether particular evidence is "extrinsic" to deliberations cannot always be resolved by mechanical reference to the source of the evidence or the location of the relevant event.

  • A bare, uncontextualised report of racist remarks by a juror who did not participate in deliberations was insufficient, in the view of Hoeben CJ at CL, to justify further investigation, given the finality principle and the risk that any inquiry would encroach on protected deliberative processes.

  • The majority of the Court of Criminal Appeal held that a narrowly framed Sheriff's investigation directed solely at the specific words used, the timing, and the witnesses present would not necessarily constitute the kind of inquiry into psychological relationships between jurors condemned in Petroulias.

  • Under Webb and Hay v The Queen, the reasonable apprehension of bias test applies to jurors as it does to judges. Whether racist remarks during a trial could give rise to such apprehension, and thereby constitute a miscarriage of justice, was a question the majority considered required further factual foundation before it could be resolved.

  • Finality of verdict remains a significant countervailing consideration in post-verdict juror misconduct applications. The stronger the evidence underpinning an allegation of bias, the more compelling the case for permitting further scrutiny to overcome that finality interest.

Legislation and Cases Referenced

Legislation:
- Bail Act 2013 (NSW), s 22
- Criminal Appeal Act 1912 (NSW), s 12
- Jury Act 1977 (NSW), ss 68A, 68B, 68C, 73A, 75C
- Jury Amendment Act 2004 (NSW)
- Racial Discrimination Act 1975 (Cth), s 18C

Cases:
- Webb and Hay v The Queen (1994) 181 CLR 41; [1994] HCA 30
- Smith v The State of Western Australia (2014) 250 CLR 473; [2014] HCA 3
- Petroulias v The Honourable Justice McClellan [2013] NSWCA 434; (2013) 306 ALR 210
- NH v Director of Public Prosecutions [2016] HCA 33; (2016) 260 CLR 546
- R v Mirza [2004] 1 AC 1118
- R v Skaf (2004) 60 NSWLR 86; [2004] NSWCCA 37
- R v K (2003) 59 NSWLR 431; [2003] NSWCCA 406
- Lodhi v Attorney General of New South Wales (2013) 241 A Crim R 477; [2013] NSWCA 433
- Deputy Commissioner of Taxation v Dick [2007] NSWCA 190; (2007) 242 ALR 152
- Anthony Hordern & Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1; [1932] HCA 9
- Villis v R [2014] NSWCCA 74
- R v Higgins [2017] NSWSC 1257