Higgins v R [2020] NSWCCA 149
Higgins v R [2020] NSWCCA 149 · Read the judgment on AustLII
Catchwords: Co-conspirators rule – judicial notice
This decision reinforces previous authority in relation to the co-conspirators rule, and particularly the (in)admissibility of certain kinds of admissions made. It also draws specific attention to the test for the taking of ‘judicial notice’ of things, and emphasises the importance of the court giving parties the opportunity to comment before taking things into account based on its own experience.
In 1974 the applicant was a Patrician Brother and a schoolteacher. He was alleged to have committed a number of sex offences against the complainant (a student) in 1974 or 1975. In mid-2019 the applicant faced the third trial of those allegations: the first trial was abandoned when a co-accused died, and the second one was vacated when the trial judge expressed concerns about the applicant’s fitness. This third attempt, as it happens, was just as ill-fated as the first two. The matter was heard by judge alone, and the applicant was convicted. He appealed his convictions upon nine grounds, of which the CCA (Payne JA and Bellew J; Rothman J agreeing though for different reasons in relation to one ground) upheld or partially upheld eight. There is only space to deal with a couple of the grounds here.
The first error related to an error made in allowing evidence of an ‘admission’ made by the (deceased) co-accused to be used against the applicant. The complainant gave evidence that the co-accused had told him to tell his parents that he was late, missed the bus, fell over, and hurt his backside. The complainant’s mother also said that she had been told that by the co-accused. What had actually occurred, according to the complainant, was that he had been taken into a classroom by the applicant, where the applicant had inserted his penis into the complainant’s anus. They had been interrupted by the co-accused, who had then screamed at the applicant. The imputation being levelled by using the ‘admission’ of the co-accused was that they had conspired to hide the applicant’s behaviour – but there was no allegation in the trial that had been such a common purpose.
To lead the evidence, the Crown relied upon Evidence Act 1995 s 87(1)(c), which basically reproduces the common law ‘co-conspirators rule’. The effect of that rule (where it applies) is that if a co-accused makes a statement in furtherance of the common purpose alleged by the Crown, then that statement by the co-accused will be admissible as an admission against the accused (that is, it is used as an admission by them, even though they didn’t make it, and they weren’t there). In this case the problem seems to have been caused by the fact that s 87(1) commences by saying that the court ‘is to admit’ evidence of an admission if it meets one of the relevant criteria – one of which is that it was made in furtherance of a common purpose. However, earlier authority (R v Dolding (2018) NSWLR 314 – ‘Dolding’) provides that when that section says that a court ‘is to admit’ the evidence, that does not render the evidence admissible in the substantive proceedings (at [31] of this decision). All it does is make the material admissible on the voir dire, so that the court can then determine whether there was a common purpose, and if so whether the representation was made by the co-accused ‘in furtherance of’ that common purpose (at [32]-[37]). Moreover it has to be the common purpose actually alleged by the Crown – what is referred to with emphasis as ‘the common purpose’ rather than ‘a’ common purpose (at [39]). Moreover, this decision endorsed the statement in Dolding that where a representation is made in furtherance of a common purpose extraneous to the proceedings, it is difficult to see how it could pass the test for relevance (at [42]).
The other appeal ground particularly worth highlighting was one alleging that the trial judge had erroneously taken ‘judicial notice’ of three matters. The test for taking judicial notice is to be found in Evidence Act 1995 s 144. The CCA here drew particular attention to the requirement (both statutory in s 144(4), and found in case law) that the court is to give a party an opportunity to make submissions about anything it proposes to take into account in that way (at [104]-[105]). The trial judge had said that she was applying her common sense to the evidence before her. However, her Honour did not mention the statutory test in s 144, those findings did not meet the statutory test in s 144(1), and her Honour did not give the applicant the opportunity to make submissions as required by s 144(4). A miscarriage of justice was thereby occasioned (at [109]). One of the three examples should suffice: the trial judge had dismissed as ‘ludicrous’ a claim by the applicant that he had controlled a class of 44 boys aged 10 to 11 years old, in the 1970’s, without corporal punishment (except as a last resort). The trial judge referred to the (apparent) mantra of ‘spare the rod, spoil the child’ and said that corporal punishment by teachers continued until it was stopped in approximately 1995. On appeal, the Crown accepted that there was no evidence of these matters. The CCA found that they were not a matter of ‘common knowledge’, and even if they were (or if it was capable of being verified by reference to some ‘document the authority of which cannot reasonably be questioned’), then the applicant was not given opportunity to submit about it.
In this and other decisions particular criticism was levelled at the fact that this ‘judicial notice’ first appeared in the final judgment. It follows that practitioners should be on the lookout for any ‘common sense’ findings that they perhaps should have been asked about.
For those and other reasons, the appeal was upheld. The court held that in the particular circumstances of this case it was not in the interests of justice to order a retrial, given (amongst other things) the applicant’s age (82 years), the fact that he had been in custody for about 14 months after his conviction at the trial, the fact that this would be the fourth attempt at the trial, and because of the length of time since the events had occurred (46 years).