Higgins v R [2020] NSWCCA 149

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Higgins v R [2020] NSWCCA 149 Hearing dates: 1 June 2020 Date of orders: 3 July 2020 Decision date: 03 July 2020 Before: Payne JA at [1] Rothman J at [181] Bellew J at [192] Decision: (1) Leave to appeal granted; (2) Reject the tender of: (a) paragraphs [2] to [15] of the affidavit of Mr Madden affirmed 1 April 2020; and (b) the reports of Mr Anastopoulos; (3) Appeal allowed; (4) Quash the applicant's convictions; (5) Enter verdicts of acquittal on counts 1, 2, 4 and 5 in the indictment. Catchwords: EVIDENCE – hearsay – exceptions – admissions – where evidence admitted as a previous representation of a common purpose by former co-accused – whether evidence can only be admitted as a previous representation of the common purpose alleged in the proceedings – whether evidence improperly admitted CRIMINAL PROCEDURE – trial – judge alone – where applicant gave evidence he does not swear – where applicant slipped and made an exclamation as leaving the witness box – where trial judge alleged he swore – whether trial judge erred in holding that the applicant swore – whether trial judge erred in refusing application to discharge herself EVIDENCE – corroboration – meaning of corroboration – whether trial judge erred in finding that complainant's evidence was corroborated CRIMINAL PROCEDURE – trial – judge alone – directions – where trial judge requested to direct herself to approach evidence with caution due to the witness' age and ill health – whether trial judge erred in giving no weight to the effect on reliability of the witness' evidence CRIMINAL PROCEDURE – trial – judge alone – delay – where 44 year delay in applicant being brought to trial – where trial judge requested to direct herself that applicant was under a forensic disadvantage because of delay – whether trial judge erred in refusing to do so CRIMINAL PROCEDURE – trial – judge alone – verdict by direction – where trial judge gave Markuleski direction – whether trial judge erred in properly considering implications of directed verdicts EVIDENCE – character evidence – good character – whether trial judge erred in dismissing good character evidence EVIDENCE – judicial notice – matters of common knowledge – where trial judge took judicial notice of church practices of moving priests from parish to parish when complaints arose – whether trial judge erred in doing so CRIME – appeals – appeal against conviction – unreasonable verdict Legislation Cited: Crimes Act 1900 (NSW), ss 79, 81, 81A Criminal Appeal Act 1912 (NSW), ss 6(2), 8(1) Criminal Procedure Act 1986 (NSW), s 293A Evidence Act 1995 (NSW), ss dictionary, 55, 56, 59, 65, 81, 87, 103, 135, 136, 137, 144, 165, 165B Evidence Amendment Act 2007 (NSW), schedule Cases Cited: Ahern v The Queen (1988) 165 CLR 87; [1988] HCA 39 Doney v The Queen (1990) 171 CLR 207; [1990] HCA 51 Elzahed v State of New South Wales (2018) 97 NSWLR 898; [2018] NSWCA 103 Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29 Gallagher v The Queen (1986) 160 CLR 392; [1986] HCA 26 Gattellaro v Westpac Banking Corporation [2004] HCA 6; (2004) 78 ALJR 394 Lee v The Queen (1998) 195 CLR 594; [1998] HCA 60 Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30 M v The Queen (1994) 181 CLR 487; [1994] HCA 63 MacKenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35 Mickelberg v The Queen (1989) 167 CLR 259; [1989] HCA 35 Parker v The Queen (1997) 186 CLR 494; [1997] HCA 15 Pell v The Queen [2020] HCA 12; (2020) 94 ALJR 394 R v Abou-Chabake [2004] NSWCCA 356; (2004) 149 A Crim R 417 R v Dolding (2018) 100 NSWLR 314; [2018] NSWCCA 127 R v Macraild (Court of Criminal Appeal (NSW), 18 December 1997, unrep) R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290 R v Scott Alan May (No 2) [2008] NSWSC 595 R v Taufahema (2007) 228 CLR 232; [2007] HCA 11 R v Watt [2000] NSWCCA 37 SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13 Thornton v R [2017] NSWCCA 86 Tripodi v The Queen (1961) 104 CLR 1; [1961] HCA 22 Woods v Multi-Sport Holdings Pty Ltd (2002) 208 CLR 460; [2002] HCA 9 Category: Principal judgment Parties: Peter Higgins (Applicant) Crown (Respondent) Representation: Counsel: P Skinner with MSM Voleynik (Applicant) B Baker (Respondent)