R v Higgins [2013] NSWDC 322

District Court New South Wales

Medium Neutral Citation: R v Higgins [2013] NSWDC 322 Decision date: 19 April 2013 Before: Cogswell SC DCJ Decision: Convictions set aside. Catchwords: CRIMINAL LAW - Appeal - principles applicable to appeal from Local Court convictions - weight to be given to reasons of magistrate at first instance - standards of proof differ for criminal charge and apprehended violence order - reasonable doubt. Legislation Cited: Crimes (Appeal and Review) Act 2001 (NSW), ss 18, 20(1). Cases Cited: Charara v R [2006] NSWCCA 244; 164 A Crim R 39. Category: Principal judgment Parties: Joshua Higgins (Appellant) Regina (Respondent) Representation: Counsel: LW Nicholls (Appellant) Solicitor: L Graham, Office of Director of Public Prosecution (Respondent) File Number(s): DC 2011/00396523

Judgment 1This is a case which involves a collapsing marriage where the husband and the wife were also involved in running a business. One of the parties, the wife, had a concern that her husband had been using drugs and had mental health problems and was behaving uncharacteristically. I do not know whether that apprehension was correct or not. 2The husband and the wife became engaged in a series of arguments and clashes with each other. The wife reported the series of clashes to the police and claimed that she was assaulted. She obtained an apprehended domestic violence order, but in addition, the police charged the husband with three crimes which were common assault and assault occasioning actual bodily harm. 3The case went before the Local Court where her Honour, Magistrate Barry, found that the three offences were proved to her satisfaction beyond reasonable doubt and she convicted the husband of the three offences. 4The husband has appealed against those convictions and the hearing of the appeal was conducted before me and it is for me. It is for me to resolve the case. I should say something at the outset about the principles which I apply in determining the appeal. The case is governed by the Crimes (Appeal and Review) Act 2001 (NSW). Section 18 of that Act provides that an "appeal against convictions is to be by way of re-hearing on the basis of evidence given in the original Local Court proceedings". There is provision for fresh evidence, which is not relevant in this case. 5The appellant husband is Mr Joshua Higgins. The respondent to the appeal is the Director of Public Prosecutions, who took over the case from the police. Ms L Graham, who appeared on the appeal for the DPP, took me to the authorities about the conduct of these appeals. Her submissions have had the effect of altering the way that I have been conducting appeals such as this. I have been placing too little weight on the reasons given by the magistrate at first instance. Ms Graham has reminded me of what the Court of Criminal Appeal said in Charara v R [2006] NSWCCA 244; 164 A Crim R 39 in the judgment of the then Mason P with whom David Kirby and Hoeben JJ, as his Honour then was, agreed. The President observed that the authors of a particular text expressed the view that a District Court Judge "may not have regard" to the reasons of the magistrate from whom a conviction appeal is being brought. The learned President observed that the point had not been argued, but offered some observations. His Honour observed at [23] - "The District Court is impliedly directed to consider the reasons because the stated appellate function could not properly take place without reference to them." His Honour went on in the following paragraph to note that the "Local Court reasons will doubtless include an explanation why the conviction was entered at first instance, including an assessment of the credibility issues touching any factual dispute. Without reference to the reasons the District Court would be driven to speculation or deciding the issue entirely afresh. Neither such course would be consonant with the statutory scheme. In civil appeals, the court of appeal is not entitled to ignore the reasons in which findings based on credibility are to be found.... There is no basis in principle for a different approach in the criminal law." 6I make two preliminary observations before considering the three convictions which are appealed against. The first observation is this. There is a distinction between the standard of proof required to find a person guilty of an offence and the standard of proof required for a court to issue an apprehended domestic violence order. The standard required before a person can be convicted is the usual standard of proof beyond reasonable doubt. I am informed that the standard required for the issue of an apprehended domestic violence order is on the balance of probabilities. That is a significant distinction. 7The second observation I make concerns the finding which her Honour Magistrate Barry made about the wife who gave evidence before her Honour in the proceedings. Her Honour expressed the view "that the evidence of the victim is highly credible. She was an impressive and compelling witness. She was clearly a reluctant witness." Her Honour then "found the complainant to be a compelling and truthful witness." It is important that I take into account that view and finding by her Honour because her Honour had the advantage of seeing the witness and hearing her evidence and an appreciation of the atmosphere of the trial. 8I turn now to consider the three offences which her Honour found Mr Higgins guilty of. It is convenient to consider the offence which was last in time first. That is said to have taken place on 19 November 2011. Ms Higgins said that there was an argument at their home. She walked outside and her husband "got me from behind". She had the feeling that she had "been pulled back" and that he "pulled down and he started - like, started dragging me across the front yard and I ended up just letting go". She said that she immediately drove to the police station after that event. She presented at the police station, she said, with "cuts on my hands" and she also had "cuts all over the back of my shoulder". She apparently went to the doctor two days later. The ground outside over which she said she had been dragged contained wood chips. 9Mr Higgins' legal representative called a witness in Mr Higgins' case, who gave evidence about that incident. That witness was Mr Higgins' mother, Ms Elizabeth Bennett. She said that she was at the home when the events described by Ms Higgins were said to have occurred. She said that she saw that Ms Higgins "fell backwards onto the wood chip" and that she fell fairly hard. She was then asked whether she thought it was an accident and she said "Yes". It was put to her by the police prosecutor that rather than a mutual struggle (or something lesser than that) Mr Higgins pulled Ms Higgins from behind, causing her to fall down. Ms Bennett answered clearly "No he didn't". She also denied that her son "then dragged her some way across the lawn or the yard". She said that she did not see any injuries on Ms Higgins. 10Before I could be satisfied beyond reasonable doubt that that offence is proved, I have to be sure that there is no reasonable possibility that the account given by Ms Bennett could be true. That is the sort of direction I give to a jury. Ms Bennett was cross-examined, but from my reading, was not unsettled at all in the cross-examination. Indeed, Ms Higgins, perhaps understandably, acknowledged in cross-examination that she was a "good lady", referring to her in general terms. I cannot see any particular reason for rejecting the account given by Ms Bennett. The learned Magistrate said that she did "not accept her evidence". Her Honour went on to say that Ms Higgins' evidence in relation to the charge was corroborated by photographs taken by the police. However, those photographs were taken some five days later. As I say, I do not have a reason for rejecting Ms Bennett's account which must raise a reasonable doubt about the account given by Ms Higgins. I do regard the photographs as persuasive, but note that they were taken some five days later. My reasonable doubt is increased by the fact that Ms Higgins attended the police station in what, on her account, was a distressed and dishevelled state, bleeding and with wood chips, but there was no evidence called in the prosecution case from the police about any observations consistent with that, nor were there any photographs. I also take into account the direction which I would give a jury, that in a case such as this, where it is one word against another, I must be very certain about the evidence of the complainant. In addition, I take into account that Mr Higgins was regarded by a witness as a man of good character who would not over-react in a stressful situation. 11For those reasons, despite the finding of her Honour that Ms Higgins was a very impressive witness, I am not satisfied beyond reasonable doubt that the count has been proved. I immediately add that that is not the same as a finding that I reject Ms Higgins' account. I have given weight to the finding made by the Magistrate. I have no doubt that Ms Higgins was a very impressive witness. But I have come to that conclusion because of the very high standard required of the criminal law before someone can be found guilty of a criminal offence and for the reasons that I have given, I entertain a reasonable doubt about whether or not that offence occurred. 12I turn now to evidence about the first offence which is said to have occurred on 11 October 2011. That is the first time that there was some violence between the parties. There was some pushing and, in addition, Ms Higgins said that Mr Higgins "tried to strangle me". She went on to say that he "put his hands across, around my throat and it was, like, holding onto my throat while I'm trying to get away from him". She ended up hiding in the bathroom and she heard her husband leave and eventually her mother arrived. Ms Higgins evidently had some photographs taken after that incident. She referred to those photographs at page 13 of her evidence on 15 May 2012, but they were not produced in court. 13To my mind, I must also entertain a reasonable doubt about that count. There are two specific reasons. One is that the photographs said to have been taken by or on behalf of Ms Higgins were not produced. The second is that the mother, who would have been, it seems to me, in a position to observe her daughter's distress and any marks the result of the attempted strangling, was not called to give evidence. These omissions are matters of concern when a judicial officer needs to make a finding of guilt beyond reasonable doubt. In addition, I take into account my own finding made in relation to the third and last count that there was a doubt about Ms Higgins' evidence caused by the evidence of Ms Bennett. I also take into account in relation to that charge evidence of Mr Higgins' good character and the fact that Ms Higgins was an essential witness for the prosecution. 14I turn finally to the second incident which is said to have occurred on 16 November 2011 when Ms Higgins said that her husband threw the phone at her and threatened her. The nature of the threat was that he said that he was looking for a knife to kill her. He later on grabbed her. Because I have doubts about the evidence on the last count and because of Mr Higgins' good character and the fact that I must be very clearly satisfied beyond reasonable doubt about the evidence of Ms Higgins, I also entertain a doubt about that count. 15I was assisted by both written and oral submissions by Ms L Graham and by Mr L W Nicholls of counsel, who appeared for the appellant, Mr Higgins. Ms Graham pointed out that realistically, in a case such as this involving a domestic dispute with alleged physical violence, there is a limit on the amount of evidence that might be called. I think she is right about that and to treat cases which are relatively less serious than other cases with the same degree of attention which may be required for a far more serious case, would lead to considerable hold-up in the administration of justice. I do not criticise the procedures involved. Nevertheless, as I observed at the beginning of this judgment, there are two standards involved. The standard required for the issue of an apprehended domestic violence order is lower. If somebody is charged with criminal offences, then the standard remains beyond reasonable doubt. It is very high and is sometimes described as the highest standard known to the law. 16For the reasons that I have given, I entertain a reasonable doubt about the guilt of Mr Higgins of all three charges and I propose to allow his appeal and I acquit him. 17The formal order which I make is this. Under s 20(1) of the Crimes (Appeal and Review) Act 2001, I determine these appeals against convictions by setting aside the three convictions. HIS HONOUR: Thank you Mr Nicholls. Thank you Ms Graham. Thank you both again and thank you Ms Graham for shifting my thinking on that legal issue. Appreciated. Thanks for your help, Mr Nicholls.