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19
Court of Criminal Appeal 20 April 2022

Higgins v R (No 2)

[2022] NSWCCA 82

Sexual offences

Citation: Higgins v R (No 2) [2022] NSWCCA 82
Court: NSW Court of Criminal Appeal
Date: 20 April 2022
Judge(s): Payne JA, Rothman J, Bellew J

Background

The applicant had been convicted in 2019 of three counts of sexual assault alleged to have been committed against a school student in 1974 to 1975, when the applicant was a teacher. He was sentenced to a total term of seven years and six months imprisonment. On appeal in 2020, the Court of Criminal Appeal quashed those convictions and entered verdicts of acquittal, finding there was a significant possibility that an innocent person had been convicted: Higgins v R [2020] NSWCCA 149.

Following his successful appeal, the applicant applied for a certificate under the Costs in Criminal Cases Act 1967 (NSW). Such a certificate is the necessary first step to recovering legal costs from the government after a successful criminal defence.

The application required the Court to determine whether, had the prosecution possessed all relevant facts, it would have been unreasonable to institute proceedings. The applicant pointed to a range of matters known to the Crown before charges were laid, as well as facts that emerged during the proceedings, arguing the combination of these factors rendered the prosecution unreasonable from the outset.

  • Whether the Court should grant a costs certificate under s 2 of the Costs in Criminal Cases Act 1967 (NSW)
  • Specifically, under s 3(1)(a), whether the prosecution would not have been reasonable to institute if it had possessed evidence of all the relevant facts
  • Whether any act or omission of the applicant contributed to the institution or continuation of the proceedings (s 3(1)(b))

Decision

The Court explained the two-stage structure of the Costs in Criminal Cases Act 1967. A defendant must first obtain a court-issued certificate specifying that the prosecution would not reasonably have been instituted had all relevant facts been known, and that any conduct by the defendant contributing to the proceedings was reasonable. The applicant bears the onus of satisfying both limbs. The respondent conceded the second limb (s 3(1)(b)), so the application turned entirely on the first.

The applicant identified numerous matters said to make the prosecution unreasonable, including the lengthy delay before complaint, absence of corroboration beyond the complainant's mother, the complainant's mother's inconsistent evidence, procedural contamination arising from a joint interview before the Royal Commission, multiple credible denials by the applicant over many years, and significant credibility difficulties with the complainant exposed at trial.

The Court acknowledged all of these matters but declined to grant the certificate. The critical distinction the Court drew was between a verdict being unreasonable under the Criminal Appeal Act 1912 and the institution of proceedings being unreasonable under the Costs Act. The 2020 appeal succeeded because, despite there being evidence on which a tribunal of fact might have convicted, the overall state of the evidence was such that an innocent person might have been convicted. That conclusion did not translate into a finding that the prosecution should never have been brought.

The Court characterised the case as, at its core, one of word against word in an historical child sexual assault matter. Despite the considerable hurdles facing any such prosecution, and notwithstanding the credibility problems that emerged, the Court was not satisfied that it would have been unreasonable to institute the proceedings had all relevant facts been known. The application was dismissed.

Orders Made

  • The application for a certificate under s 2 of the Costs in Criminal Cases Act 1967 (NSW) was dismissed.

Key Takeaways

  • A finding on appeal that a verdict was unreasonable under s 6(1) of the Criminal Appeal Act 1912 does not automatically establish that the institution of proceedings was unreasonable under the Costs in Criminal Cases Act 1967. The two tests are distinct.
  • Under s 3(1)(a) of the Costs Act, the relevant question is hypothetical: whether it would not have been reasonable to institute proceedings had the prosecution possessed evidence of all relevant facts, including facts that emerged only during or after the trial.
  • The applicant bears the onus of satisfying the court as to both matters specified in s 3(1), and that onus is not discharged merely by succeeding on appeal.
  • In historical child sexual assault matters characterised as word against word, the Court of Criminal Appeal confirmed that the existence of significant credibility difficulties and corroboration concerns does not necessarily render a prosecution unreasonable for costs certificate purposes.
  • The purpose of the Costs Act is to relieve acquitted defendants of the financial burden of their defence, without casting criticism on police or prosecutors. This framing informed the Court's cautious approach to granting certificates.

Legislation and Cases Referenced

Legislation:
- Costs in Criminal Cases Act 1967 (NSW), ss 2, 3, 3A
- Criminal Appeal Act 1912 (NSW), s 6
- Criminal Procedure Act 1986 (NSW), ss 294A, 294AA

Cases:
- Higgins v R [2020] NSWCCA 149
- Allerton v Director of Public Prosecutions (1991) 24 NSWLR 550
- Mordaunt v Director of Public Prosecutions [2007] NSWCA 121; (2007) 171 A Crim R 510
- Steven Alan Cox v R (No 2) [2017] NSWCCA 129
- Beatson v R [2015] NSWCCA 17
- R v Manley (2000) 49 NSWLR 203; [2000] NSWCCA 196