Higgins v R

1. [1]

   LEEMING JA: The hearing of this appeal has been bifurcated, through no fault of the appellant, by reason of the orders for the preparation of a report by the Sheriff. That in turn led to the need to reconstitute the Court, owing to the retirement of one member and another being on leave. I did not participate in the earlier judgment of this Court, which unanimously resolved the first ground of the appeal: see Higgins v R [2018] NSWCCA 258 at [1], [16] and [43]-[85]. The parties confirmed at the outset of the hearing by the Court as presently constituted that they were content to treat the first ground as resolved.

2. [2]

   I agree with Harrison J and Hamill J, for the reasons they give, that ground 2 is not established. I also agree that there is no warrant for a further investigation by the Sheriff as proposed by ground 3.

3. [3]

   HARRISON J: This Court, differently constituted, published reasons for judgment on 21 November 2018: see Higgins v R [2018] NSWCCA 258. A familiarity with that judgment is assumed for the purposes of this decision.

Background

1. [4]

   Melissa Higgins stood trial on 19 September 2016 on 81 counts of fraudulently obtaining a financial advantage from a Commonwealth entity using forged documents and dealing with the proceeds of crime contrary to ss 134.2(1), 145.1(1) and 400.3 of the Criminal Code 1995 (Cth). The trial proceeded over 40 days, concluding on 23 November 2016 when the jury, then reduced to 11, returned verdicts of guilty on all counts. Ms Higgins was sentenced to a total term of 7 years imprisonment with a non-parole period of 4 years that expires on 25 May 2021.

2. [5]

   On the day following the trial, the trial Judge’s Associate received a telephone call from a juror. The juror was directed to the Sheriff’s Office and later that day the Judge received an email from the jury co-ordinator at the Downing Centre. The email was from the juror who had called earlier: see R v Higgins [2017] NSWSC 1257. A Sheriff’s report was requested in relation to the issues raised in the call and in the email. The trial Judge received the Sheriff’s Report dated 3 March 2017. On 15 September 2017, when dealing with Ms Higgins’ release application, Bellew J ordered that a redacted copy of the report be released to the parties. That report prompted Ms Higgins’ original appeal to this Court.

3. [6]

   Ms Higgins’ appeal was heard by this Court on 31 October 2018. The orders made by the Court on 21 November 2018 were as follows:

4. [7]

   The matters dealt with at [126] of that judgment were as follows:

5. [8]

   In the events that occurred, following receipt of the Sheriff’s report, Ms Higgins sought to press her appeal further. Her original Ground 1 was treated as resolved by this Court’s earlier judgment. Ms Higgins maintained the following grounds of appeal:

The Sheriff’s further report

1. [9]

   In accordance with the orders of this Court, the Sheriff proceeded to interview all of the jurors. These interviews were in each case conducted by Acting Senior Sergeant Kathleena Mantle in July 2019. The Sheriff attached a transcript of the interviews to the report together with some commentary, to which it is unnecessary to refer. The proceedings in this Court have not unnaturally centred upon those interviews and what the Sheriff was told. It therefore becomes necessary for present purposes to include in these reasons the arguably significant matters revealed by the individual jurors during their interviews. They are as follows.

Consideration

1. [10]

   It will be recalled that, having reviewed the Sheriff’s first report, this Court concluded as follows at [104]-[106]:

2. [11]

   Clearly enough, the further report that was ordered directed attention to the elucidation of the factual issue underlying Ground 2. That factual issue remains to be considered by this Court, namely, whether with the benefit of the Sheriff’s further report, there can be said to be evidence that multiple jurors exhibited actual bias against Ms Higgins in the form of racist and derogatory comments or remarks made about her in the jury room to other jury members.

3. [12]

   Ms Higgins has conceded that the exact content of the racist and derogatory remarks is not clear. That is said not to be surprising having regard to the fact that the trial occurred many years ago. Ms Higgins submitted that, in the light of the latest interviews with jurors, it is evident that some of the accounts given to the Sheriff included comments that evinced racial prejudice and what is referred to as “a negative attitude lacking impartiality”. Ms Higgins contended that, taken as a whole, the jury interviews reveal that some jurors made comments which, “at the very least”, potentially demonstrate irregularity in the form of bias by more than one juror.

4. [13]

   Ms Higgins then made the following submissions:

5. [14]

   These submissions proceed upon the assumption that one or more of the jurors made a racist and derogatory remark in the jury room. For the reasons that follow, I am not satisfied that the making of any adequately identified racist remarks about Ms Higgins has been established. I am also not satisfied that the making of any so-called derogatory remarks about her that may have been established lead to the conclusion that Ms Higgins was denied a fair trial.

6. [15]

   It is evident from a review of the jury interviews that no specific racist remark is nominated by any juror. This is not without significance. Many of the jurors deny that they heard any racist remarks at all. The word “bogan” is not a racist description. However, even those jurors who were concerned to tell the interviewer that they recall such remarks being made, none is able or has chosen to say what those remarks were. I reject Ms Higgins’ submission that the interviews provide support for the proposition that racist comments were made by a number of jurors, in the absence of any single juror being able to state clearly what was said that fits such a description. It is also significant in this context to observe that the juror who contacted the trial judge’s chambers on the day following the conclusion of the trial did not then specify in terms that any juror had been overheard making a racist comment about Ms Higgins: the juror’s concerns were limited to complaints of what amounted to coercion or harassment by other jurors.

7. [16]

   Much has been made of the suggestion that the revelation to a trial judge during a trial that one or more jurors had made racist or derogatory remarks about an accused person in the jury room could lead potentially to the discharge of the individual juror or possibly even to the discharge of the jury as a whole. However, even that suggestion relies for its force upon the scope and content of the allegedly offending remarks. The matter can be directly tested in the present case by asking what is likely to have occurred if the trial judge had been provided with the substance of the interviews that are set forth earlier in these reasons. Putting to one side the suggestion that the jury decision may have been reached as the result of coercion or was possibly not truly unanimous, neither of which remains the subject of this appeal, it seems to be highly unlikely that the trial would not have proceeded. In short, none of the material in the Sheriff’s further report discloses that any racist remark or comment about Ms Higgins was made.

8. [17]

   Ms Higgins also draws attention to the suggestion that one juror was heard to comment that “they should lock her up and throw away the key”. The interviews appear to indicate that those jurors who recall hearing this thought that it was some two to three weeks into the trial. If that is accepted, it does not seem to me to be at all problematic. It is an unsurprising fact that jurors are asked to determine the guilt of an accused person and that jurors’ individual views emerge and develop over the course of a trial. Some jurors may form views quickly. Others may not be able to do so and some jurors, as is well known, are never able to come to a decision. It does not seem to me to be particularly controversial that in the present case a juror felt able to express a view about this important topic in this particular vernacular. A simple statement by the same juror at the same time in terms such as “I am presently minded to convict the accused on all counts” could hardly be criticised. The jurors’ task is to determine whether an accused person is or is not guilty: an unambiguous and audible expression of an opinion about that after some two or three weeks of a criminal trial is not only not evidence of bias or prejudice but is also not inconsistent with the duty that the jury is required to perform.

9. [18]

   I maintain the views that I expressed at [16]-[24] of this Court’s earlier decision. I joined in the opinion that we should in effect take an expectant approach to the original juror’s complaint and order a further inquiry about what happened in the jury room before deciding whether or not Ms Higgins’ Ground 2 was made out. Having now received the further report from the Sheriff, I am satisfied that there has been no juror irregularity and that Ms Higgins has not been deprived of a fair trial. A conclusion that multiple jurors have, or even a single juror has, exhibited actual bias against Ms Higgins is simply not supported by the evidence. Ms Higgins’ argument, taken to its logical conclusion on the facts of this case, would mean that almost any expression of opinion by a juror adverse to her would demonstrate bias. Endorsement of that view would be inconsistent with trial by jury as it is presently understood.

10. [19]

    Nor in my view is the position different in this case if Ms Higgins’ concerns are considered in the context of apprehended bias. Notwithstanding the terms of Ground 2, both Ms Higgins and the Crown directed significant attention to this issue. That is unsurprising having regard to the fact that s 75C of the Jury Act 1977 defines “irregularity” for the purposes of that section to include “any reasonable apprehension of bias or conflict of interest on the part of the juror”. Mr McHugh SC for the Crown conceded that apprehended bias would be enough to impugn the verdict.

11. [20]

    Whether there is a reasonable apprehension of bias involves the application of well-established principles. The question is whether a fair-minded observer might conclude that the juror might not bring an impartial mind to a determination of the issues in the trial: Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48 at [11]. The question is one of possibility, not probability, but the possibility of a lack of impartiality must be real and not remote: Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 at [7]. This requires, first, an identification of the factors that might lead the tribunal to decide a case other than on its legal and factual merits, and, secondly, an assessment of the reasonableness of the connection between the matter and the possibility of departure from impartial decision-making: Ebner at [8]; CUR24 v DPP [2012] NSWCA 65 at [35]. In considering the statements of the jurors who asserted that there were no issues in the course of the deliberation, it is to be remembered that “a juror involved in an irregular incident may feel defensive about his or her role”, that he or she may have sought “to put the best light on the matter” and acknowledgement that “one can never be certain … whether all the circumstances have been elicited by [in this case, the investigating Sheriff]”: Webb v The Queen (1994) 181 CLR 41; [1994] HCA 30 at 52.

12. [21]

    As with the pleaded ground alleging actual bias, the material relied upon by Ms Higgins does not establish the existence of apprehended bias in fact. A conclusion that a fair-minded lay observer might apprehend that multiple or single jurors might have exhibited bias against Ms Higgins necessarily directs attention to what it is alleged was said by some jurors in the course of performing their function during a trial. It is simply not possible, having regard to the frailty of the evidence elicited from the jurors in their interviews extracted above, legitimately to test what the fair-minded lay observer might make of it.

13. [22]

    Ground 2 should be dismissed.

14. [23]

    Nor am I able to conclude that Ground 3 is made out. All of the jurors have been interviewed. All of them have been asked to recall what occurred in the jury room over the course of the trial. Some appeared to have better recollections than others. Nowhere from the transcript of the juror interviews is any indication given that more information would be likely to be recovered if they were interviewed again. I am also not attracted to the idea that the jurors should be approached for another interrogation, having performed their duty and discharged their solemn obligations as long ago as September 2016. I do not consider in these circumstances that a second further report should be ordered.

15. [24]

    Ground 3 should be dismissed.

16. [25]

    In the circumstances I would propose that the appeal be dismissed.

17. [26]

    HAMILL J: I have had the advantage of reading the judgment to be delivered by Harrison J in draft, noting that it, in effect, incorporates the substance of the earlier judgments delivered by the Court on 21 November 2018. I agree with his Honour’s conclusion that neither ground 2 nor 3 is established. I agree with his Honour’s reasons for that conclusion. I would only add the following observations.

18. [27]

    There are a number of inconsistencies in the statements made by the various jurors in the course of their interviews. In many respects, this is unsurprising given the effluxion of time between their deliberations and the interviews. I have largely disregarded the evidence of the nine jurors who say, in essence, that there were no problems in the course of the deliberations: cf Webb v The Queen (1994) 181 CLR 41 at 52; [1994] HCA 30. It is unusual for a juror to come forward after a verdict to complain about what happened in the course of a criminal trial. For that reason alone, the interviews with the jurors who expressed concerns about the process must be closely considered. I accept that there was considerable tension in the jury room and that some jurors exhibited animosity, and made possibly racist remarks, to one another. I also accept that some jurors took longer than others to come to a conclusion that they agreed with the guilty verdicts on each count.

19. [28]

    However, the evidence does not establish that racist remarks of any significance were directed toward the applicant. In their initial interview, AB suggested racist remarks were made but when interviewed on 1 July 2019, the juror said “um not racial” and, when pressed said “they could have but I don’t I don’t think.” AB went on to explain that “a lot happened in that 7 weeks, 8 weeks.”

20. [29]

    DC, who was not shy in criticising the conduct of the other jurors, said in an interview on 8 July 2019 that there were some comments “made to do with ethnicity but [they were] not malicious”. In the same interview DC said of these comments “I would say derogatory on her appearance, would not classify as racial”. In an interview on 24 July 2019, DC said the comments were more about “where the person was from” and included words to the effect “how is someone from the country able to outsmart the government”. It was DC who said that the applicant was referred to as a “bogan”.

21. [30]

    JL said that “racial”, “derogatory” and “insensitive” remarks were made and that the deliberations were “unprofessional”. However, JL could not provide any detail of what was said and stated that the remarks were “brushed off as jokes.” In the second interview, JL said they could not remember the “exact wording” of the remarks but that there “were definitely comments made against her”. JL could not recall the “ethnicity or ethnic background” of the applicant. Although JL speculated that “if she was of indigenous extraction” that may have been “the tenor of the remarks” but they couldn’t “say for certain if that was the case”. There was no suggestion at the hearing of the appeal that the applicant is indigenous. When the Court sought clarification on this issue, the following exchange occurred:

22. [31]

    As Harrison J points out, the reference to the applicant being a “bogan” carries no racial connotation. The remark may be considered unfortunate but it bears no logical connection to the suggestion of pre-judgment or bias. To the contrary, some of the material suggests that one or more members of the jury may have thought the applicant’s lack of sophistication – a quality I take to be implicit in the description of a person as a “bogan” – made it less likely that they could perpetuate the fraud that was alleged. DC said this in various ways in their second interview:

23. [32]

    Nothing in this material might lead a fair minded observer to conclude that the jury collectively, or any individual juror, might not have decided the case other than on the evidence or might not have brought an impartial mind to bear upon the issues. The retrospective exposure of what happens in a jury room is unusual and, given the “human condition” and our “accumulated predispositions and prejudices” (to adopt the language of Harrison J in the earlier judgment at [18]), it is not really surprising that these things have emerged in the interviews of the jurors in the applicant’s trial.

24. [33]

    I agree with Harrison J that neither ground 2 (actual bias), nor the expanded submission based on apprehended bias, is established on the evidence. I agree with Leeming JA and Harrison J that there is “no warrant” for further investigation into these matters at this stage. It is now three years since the trial and the interviews conducted last year demonstrate that the jurors’ memories are exhausted. Accordingly, I am unable to uphold ground 3.

25. [34]

    I agree with the orders proposed by Harrison J.