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6
Court of Criminal Appeal 3 July 2020

Higgins v R

[2020] NSWCCA 149

Sexual offences
EVIDENCE HEARSAY EXCEPTIONS ADMISSIONS ACCUSED TRIAL

Citation: Higgins v R [2020] NSWCCA 149
Court: Court of Criminal Appeal, New South Wales
Date: 3 July 2020
Judge(s): Payne JA (primary judgment), Rothman J, Bellew J

Background

The applicant, a religious brother, was charged in 2017 with six counts of sexual assault alleged to have occurred in 1974 and 1975 at a Liverpool school where he taught. The complainant was a student at the school at the time. This was the applicant's third trial: the first was abandoned following the death of a co-accused, and the second was vacated after concerns about the applicant's capacity were raised (and later resolved).

After a judge-alone trial in April and May 2019, the trial judge convicted the applicant on three counts: committing an indecent act with a male, committing an indecent assault on a male, and buggery, all under now-repealed provisions of the Crimes Act 1900 (NSW). The trial judge directed verdicts of acquittal on two further counts after the Crown accepted there was no case to answer on those charges.

The applicant appealed his conviction on nine grounds, challenging evidentiary rulings, the trial judge's approach to corroboration, delay, good character evidence, judicial notice, and the overall reasonableness of the verdicts.

  • Whether evidence of the conduct and statements of the deceased co-accused, Brother Downey, was properly admitted as admissions by the applicant under s 87 of the Evidence Act 1995 (NSW)
  • Whether the trial judge correctly found that the applicant swore as he left the witness box
  • Whether the complainant's evidence was legally corroborated
  • Whether the trial judge erred in failing to warn herself about the potential unreliability of the complainant's elderly and allegedly unwell mother
  • Whether the trial judge properly recognised the forensic disadvantage to the applicant arising from the 44-year delay before trial
  • Whether the trial judge properly considered the implications of directing acquittals on counts 3 and 6 for the credibility of the complainant on the remaining counts
  • Whether good character evidence was properly assessed
  • Whether the trial judge improperly took judicial notice of church practices of relocating priests when complaints arose
  • Whether the guilty verdicts were unreasonable or unsupported by the evidence

Decision

Admitted evidence of co-accused (Ground 1): Under s 87 of the Evidence Act, evidence of a representation made by a person sharing a common purpose with a party can only be treated as an admission of that party where the representation was made in furtherance of the common purpose alleged in the proceedings. No common purpose had been alleged between the applicant and Brother Downey in relation to any count the applicant faced. Accordingly, the trial judge erred in admitting evidence of Brother Downey's conduct and statements, and the material should have been rejected.

Corroboration, delay, and the directed acquittals (Grounds 3, 5, and 6): The Court found that what the trial judge characterised as corroboration of the complainant's evidence was, in fact, the complainant's own evidence and did not meet the legal meaning of corroboration. On delay, a 44-year gap between the alleged offending and trial meant the applicant faced a significant forensic disadvantage, and the trial judge erred in not finding this. Critically, when the trial judge directed acquittals on counts 3 and 6 because the complainant's in-court evidence did not align with his earlier statements on those matters, her Honour was required to assess what that inconsistency meant for the complainant's credibility on the remaining counts. Instead, the trial judge treated the departure from those statements as enhancing the complainant's credibility. The Court held this was an error.

Judicial notice (Ground 8): The trial judge took judicial notice of church practices of transferring priests when complaints arose, and made findings about those matters without satisfying the statutory test in s 144(1) of the Evidence Act. The trial judge also failed to give the applicant the opportunity to make submissions as required by s 144(4). The Court held this occasioned a miscarriage of justice.

Unreasonable verdict (Ground 9): Payne JA, with Bellew J agreeing, conducted an independent assessment of the evidence and concluded that the record contained discrepancies, inadequacies, tainted evidence, and a lack of probative force such that there was a significant possibility an innocent person had been convicted. The Court therefore ordered acquittals on all charges. Rothman J took a narrower view, not finding the verdict unreasonable on the evidence alone, but agreed that an acquittal was appropriate given the applicant's age, the death of the only independent witness, and the cumulative miscarriage of justice. All three judges agreed the applicant should not face a new trial.

Orders Made

• The applicant is to be acquitted of all charges brought against him
• The orders proposed by Payne JA are to be made

Key Takeaways

  • Under s 87 of the Evidence Act, evidence of a representation made in furtherance of a common purpose can only be admitted as an admission against a party where that common purpose is the one actually alleged in the proceedings. A common purpose with a deceased co-accused in prior proceedings does not, without more, satisfy this requirement.

  • A trial judge conducting a judge-alone trial who directs acquittals on some counts because the complainant's evidence departs from earlier statements must assess the effect of that inconsistency on credibility in relation to the remaining counts. Treating the inconsistency as credit-enhancing, rather than credit-damaging, constitutes a legal error.

  • Judicial notice under s 144 of the Evidence Act requires both satisfaction of the statutory test and an opportunity for the parties to make submissions. Taking judicial notice of contested social or institutional practices without meeting these requirements can occasion a miscarriage of justice.

  • In this appeal, the Court of Criminal Appeal confirmed that where multiple substantial trial errors accumulate and the evidence is sufficiently tainted, the court may enter acquittals rather than order a retrial, particularly where the passage of time, the death of key witnesses, and the overall miscarriage of justice make a new trial an inadequate remedy.

  • Significant forensic disadvantage arising from a 44-year delay in bringing charges to trial requires express recognition by the trial judge. Failure to acknowledge such disadvantage constitutes an error.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 79, 81, 81A (now repealed)
- Criminal Appeal Act 1912 (NSW), ss 6(2), 8(1)
- Criminal Procedure Act 1986 (NSW), s 293A
- Evidence Act 1995 (NSW), ss 55, 56, 59, 65, 81, 87, 103, 135, 136, 137, 144, 165, 165B
- Evidence Amendment Act 2007 (NSW)

Key Cases:
- Ahern v The Queen (1988) 165 CLR 87; [1988] HCA 39
- Doney v The Queen (1990) 171 CLR 207; [1990] HCA 51
- M v The Queen (1994) 181 CLR 487; [1994] HCA 63
- MacKenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35
- Pell v The Queen [2020] HCA 12; (2020) 94 ALJR 394
- R v Dolding (2018) 100 NSWLR 314; [2018] NSWCCA 127
- R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290
- R v Taufahema (2007) 228 CLR 232; [2007] HCA 11
- Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29
- Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30