Citation: Higgins v R [2020] NSWCCA 109
Court: Court of Criminal Appeal
Date: 11 June 2020
Judge(s): Leeming JA, Harrison J, Hamill J
Background
The appellant was convicted following a 40-day jury trial on 81 counts of fraudulently obtaining a financial advantage from a Commonwealth entity using forged documents, and dealing with the proceeds of crime. The jury, reduced to 11 members by verdict, returned guilty verdicts on all counts in November 2016. The appellant was sentenced to seven years' imprisonment with a non-parole period of four years.
The day after the trial, a juror contacted the trial judge's Associate by telephone, raising concerns about events in the jury room. A Sheriff's report was commissioned and later released in redacted form to the parties. That report prompted the appellant's original appeal to the Court of Criminal Appeal, which in its earlier 2018 judgment adjourned the proceedings and ordered a further Sheriff's investigation into specific matters, including allegations of racist and derogatory remarks made by jurors during deliberations.
Following the further investigation, in which Acting Senior Sergeant Mantle interviewed all 11 jurors in July 2019, the appellant pressed two remaining grounds of appeal: that multiple jurors had exhibited actual bias against her in the jury room, and, in the alternative, that a further and more thorough investigation by the Sheriff should be ordered.
Legal Issues
- Whether the jury verdicts should be set aside on the basis that juror irregularity, specifically allegations of racist or derogatory remarks during deliberations, deprived the appellant of a fair trial (actual bias, and, as an expanded submission, apprehended bias)
- Whether the Sheriff's further report was inadequate such that an additional investigation with legal assistance and affidavits from each juror should be ordered
Decision
The court examined the content of the juror interviews in detail. The reporting juror (AB) had used the words "racist and derogatory" to describe what occurred but, on closer questioning, could not recall any racial comments directed at the appellant. The remark most clearly identified was "lock her up and throw away the key," accompanied by laughter. AB clarified that the concern about "racism" related more to conduct directed at AB personally during deliberations than to any remarks targeting the appellant.
Other jurors recalled comments such as "she must think we are idiots" and references to the appellant as a "bogan." The court considered that the word "bogan" carries no racial connotation. Hamill J noted that some of the interview material actually suggested certain jurors thought the appellant's perceived lack of sophistication made it less, not more, likely she could have perpetrated the fraud alleged. That reading of the evidence was inconsistent with a finding of prejudgment or bias against her.
Applying the fair-minded observer test for apprehended bias, neither Harrison J nor Hamill J was persuaded that an objective observer, aware of all the circumstances, would conclude that any juror might not have decided the case on the evidence or might not have brought an impartial mind to bear. The court accepted that jury deliberations inevitably reflect the "human condition" and accumulated predispositions, but held that what emerged from the interviews did not meet the threshold for either actual or apprehended bias.
On the third ground, the court declined to order a further Sheriff's investigation. By the time of the appeal hearing it was approximately three years since the trial, and the 2019 interviews had already demonstrated that the jurors' memories were substantially exhausted. No warrant for further inquiry was established.
Orders Made
No orders were made in this decision.
Key Takeaways
- The Court of Criminal Appeal confirmed that juror comments revealed through a Sheriff's investigation will not establish actual bias unless they demonstrate that a juror may have decided the case other than on the evidence; colourful or unfortunate remarks during deliberations do not automatically meet that threshold.
- Apprehended bias requires an objective fair-minded observer, aware of all the circumstances, to conclude that a juror might not have brought an impartial mind to bear; the expanded submission based on that test was also rejected on the facts of this case.
- A description of the appellant as a "bogan" was treated as carrying no racial connotation, and some interview material suggested the same remarks reflected doubt about the appellant's capacity to commit the alleged fraud, which cut against rather than in favour of a finding of prejudice.
- Refusing the order for a further Sheriff's investigation, the court found that the passage of approximately three years since the trial and the demonstrably exhausted memories of jurors meant no useful purpose would be served by additional inquiry.
- Under s 73A of the Jury Act 1977 (NSW), Sheriff's investigations into jury conduct serve an important function, but the court's willingness to order further investigation is not unlimited and will be assessed against practical utility at the time of the application.
Legislation and Cases Referenced
Legislation
- Criminal Code (Cth), ss 134.2(1), 145.1(1), 400.3
- Jury Act 1977 (NSW), s 73A
Cases
- Higgins v R [2018] NSWCCA 258
- R v Higgins [2017] NSWSC 1257
- CUR24 v DPP (2012) 83 NSWLR 385; [2012] NSWCA 65
- Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63
- Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48
- Webb v The Queen (1994) 181 CLR 41; [1994] HCA 30