Higgins v Regina

LEGISLATION CITED: Crimes Act 1900 Evidence Act 1995

Em v Regina [2006] NSWCCA 336 Grant v The Queen (1975) 11 ALR 503 at 504 R v Frangulis [2006] NSWCCA 363 R v Higgins [2006] NSWCCA 326 CASES CITED: R v Ita (2003) 139 A Crim R 340 at 355-7 R v Swaffield (1998) 192 CLR 159 R v Villa [2005] NSWCCA 4 at [74] R v Wilson (2005) 62 NSWLR 346 at 352-353 R v Zhang [2000] NSWSC 1099, Simpson J Shepherd v The Queen (1990) 170 CLR 573 at 578

PARTIES: Graham Patrick Higgins - Appellant Crown - Respondent

COUNSEL: C Smith - Applicant DC Frearson SC/N Noman - Crown

SOLICITORS: SE O'Connor - Legal Aid Commission of NSW - Appellant S Kavanagh - Solicitor for Public Prosecutions - Respondent

IN THE COURT OF CRIMINAL APPEAL 2680/2006

SULLY J BELL J HOEBEN J

Friday 9 March, 2007 Graham Patrick HIGGINS v REGINA Judgment 1 SULLY J: I agree with Hoeben J. 2 BELL J: I agree with Hoeben J. 3 HOEBEN J: On 13 February 2006 the appellant appeared in the District Court and entered a plea of not guilty to a single count of fraudulently omitting to account contrary to s178A of the Crimes Act 1900. A voir dire took place as to the admissibility of two interviews relied upon by the Crown as admissions. The first was an interview between the appellant and Commonwealth Bank investigators on 8 September 2003 (the bank interview). The second was an interview between the appellant and police on 18 November 2003 (the police interview) that, in part adopted the bank interview. The trial judge ultimately ruled that both interviews were admissible and they were tendered at trial. 4 On 15 February 2006 the appellant was re-arraigned before the jury panel and the trial commenced. The trial judge summed up to the jury on 3 March 2006. That summing up included a direction as to circumstantial evidence. On 6 March the jury returned a verdict of guilty. On 6 April 2006 the trial judge sentenced the appellant to imprisonment for a non-parole period of 1 year and 9 months with a balance of term of 1 year and 3 months. 5 A Crown appeal against sentence was dismissed (R v Higgins [2006] NSWCCA 326). The appellant appeals against his conviction on the following grounds:

(1) The trial judge erred in admitting into evidence an interview between the appellant and Commonwealth Bank investigators that occurred on 8 September 2003 and an interview between the appellant and police that occurred on 18 November 2003.

(2) The trial judge erred in his direction to the jury regarding circumstantial evidence.

Nature of case 6 The appellant was the manager of the Tweed City Branch of the Commonwealth Bank. One of the bank's clients was an elderly lady, Mrs Loder, who had come into possession of a cheque for a sum of $78,303. The cheque represented the proceeds of sale of a property. Mrs Loder resided in a nursing home and her mobility was restricted. 7 The Crown case was that in early October 2001 Mrs Loder had instructed the appellant to invest the proceeds of the cheque, the appellant did not do so, did not account for the money and in effect used the money for his own purposes. Mrs Loder died on 17 February 2002. Among her possessions was a receipt dated 3 October 2001 issued by the Commonwealth Bank, Tweed City Branch, acknowledging the receipt of $78,303.08 from Mrs Loder. The receipt indicated that the amount was to be placed in a term deposit for twelve months at a rate of 4.35% interest per annum. 8 The appellant's case was that he had received the cheque from Mrs Loder and had received initial instructions to invest the money. The following day he had received a telephone call from Mrs Loder telling him that she did not wish to go ahead with the investment and the cheque was subsequently returned to her. Although the appellant had requested Mrs Loder to return the receipt, she had not been able to find it. The appellant said that Mrs Loder had subsequently instructed him to pay the proceeds of the cheque to eight people, which he did. 9 It was common ground that Mrs Loder's cheque was negotiated at the Tweed Heads Branch of the Commonwealth Bank on 3 October 2001. Eight bank cheques were issued, along with an amount of cash - $9,459.88. $43.20 was paid in bank fees. Between 4 October 2001 and 25 October 2001 the bank cheques purchased with Mrs Loder's cheque were cashed at the Commonwealth Bank, Tweed City Branch. The cashing of each cheque was authorised by the appellant. The evidence of the cheque payees was that they had not received the cheques, nor had they received the proceeds of any of the cheques.

The voir dire 10 Counsel for the appellant at trial objected to the admissibility of the bank interview and the police interview. Transcripts and audiotapes of those interviews were tendered on the voir dire. All persons who were present during interviews including the appellant gave evidence on the voir dire. 11 In the course of the voir dire the Crown described the intended use of the interviews as follows: "The evidence is important and probative in that the Crown's case is a circumstantial case and it is a case where the accused has given answers that could be seen to be admissions in the sense that they are both inconsistent, some of the answers, with the other facts surrounding circumstances. On occasions there's a failure to explain circumstances and there is, subject of course to argument, at least one lie that the Crown would seek to rely upon insofar as what was said to the fraud investigators as against the objective evidence that the Crown intends to lead. So, in that respect its probative value, in the Crown's submission is high." (T.28 15-2-06) 12 It was common ground that the following caution was given by the investigators to the appellant (Q.8) in the course of the bank interview: "Before we begin I wish to inform you that you are not obliged to answer any question unless you wish to do so, however whatever you say will be recorded and could be used in the bank's deliberations do you understand?" 13 It was common ground that the appellant knew at the time of the bank interview that the police were carrying out an investigation into the matter. The police had already spoken to him on two or three occasions. 14 It was the evidence of the appellant that he had willingly taken part in the bank interview, but that if he had been told that what he said to the bank investigators could be used as evidence in criminal proceedings, he would have "ceased the interview with the bank" until he had "a legal representative with him". The appellant agreed that he was not compelled to answer questions and in fact had declined to answer a question about his personal finances. The appellant agreed that he knew four days before the bank interview that he was entitled to have a third party "advisor" present at the interview if he so wished. The appellant said that he felt that he had to go to the interview and that he had no choice. Nevertheless, he had not told his superiors that he did not want to go because he was "quite happy to assist with the inquiry". 15 The police interview on 18 November 2003 was conducted under caution. In the course of that ERISP the appellant volunteered that the question of the cheques had already been canvassed in the bank interview and that he did not need to go through the questioning again. He said that he accepted that the interview with the bank was correct and that he did not wish to alter the content. He was afforded an opportunity to read through the bank interview and again confirmed that he had no dispute with its content. He subsequently corrected a matter in the bank interview at a later stage of the ERISP. 16 His Honour not only read the transcript of the bank interview but also listened to the audiotapes. His Honour made the following findings of fact:

(i) The interview was conducted in a courteous and considerate manner, which was in no way offensive or abusive.

(ii) The appellant was directed by a superior within the Commonwealth Bank organisation to attend the interview.

(iii) The appellant was fully aware that he had the opportunity to obtain whatever advice he wanted before attending the interview.

(iv) The appellant knew that the police were already looking into the matter.

(v) The appellant was a person in a significant position within the bank structure and that as a manager of a branch was familiar with seeking advice if he wanted it and was comfortable with being interviewed.

(vi) Although the appellant might now believe that he felt he had no option but to attend the meeting, at the time he had the option of seeking advice as to whether he should attend the interview, he had the option at all times of not answering any of the questions and he must have been aware that the contents of the interview might well be communicated to the police.

(vii) There was nothing to stop the appellant raising with the investigators what use they might make of the interview.

(viii) The appellant understood throughout the interview that he could refuse to answer questions.

(ix) The appellant was not misled by the caution into believing that the results of the interview would not be communicated to the police. 17 In relation to the police interview, his Honour made the following findings of fact:

(i) The appellant was given the appropriate caution.

(ii) He had taken the opportunity of speaking with his solicitor.

(iii) The appellant was comfortable with being interviewed by the police.

(iv) The appellant knew that he could take time out from the interview, that he could refresh his recollection by reference to documents and that he could refuse to answer questions.

Ground of Appeal 1 Challenge to Factual findings 18 The appellant challenged a number of his Honour's factual findings. It was submitted that the appellant would not have understood that the word "advisor" included a legal representative who could advise him in relation to the implications of the interview. Accordingly it was not open to his Honour to find that the appellant knew that he could obtain whatever advice he wanted before attending the interview. 19 The appellant gave evidence on the voir dire before his Honour and was cross-examined. By reference to the audiotapes and the transcript of the bank interview, his Honour was able to assess the performance of the appellant during that interview. His Honour was entitled to have regard to the senior position which the appellant held within the bank hierarchy. Against that background the finding which his Honour made was open to him. 20 It was submitted that it was not open to his Honour to find that the appellant was not misled by the inadequate caution provided in the bank interview. Implicit in that submission is the proposition that the caution should be read as meaning that the interview could only be used in the bank's deliberations and not for any other purpose. I do not so read the caution. Put at its highest all that could be said is that the caution did not specifically alert the appellant to the possibility that the bank interview could be used in criminal proceedings against him. For the reasons previously stated this finding was clearly open to his Honour. 21 It was submitted that his Honour erred in finding that the interview was conducted in a courteous and considerate manner and was in no way offensive or abusive. It was submitted that the bank interview was not courteous or considerate and the Court was referred to 120 of the 931 questions asked to demonstrate that fact. 22 Having read all of those questions in their context, I am satisfied that his Honour correctly characterised the tone of the bank interview. It is true that on a couple of occasions the bank investigators expressed incredulity concerning some answers provided to them. Even on those occasions, however, the tone could not be described as anything other than courteous and considerate. His Honour also had the advantage of hearing the audiotapes of the bank interview.

Section 84 of Evidence Act 23 Section 84 is in the following terms: "(1) Evidence of an admission is not admissible unless the Court is satisfied that the admission, and the making of the admission, were not influenced by:

(a) violent, oppressive, inhumane or degrading conduct, whether towards the person who made the admission or towards another person, or (b) a threat of conduct of that kind. (2) Subsection (1) only applies if the party against whom evidence of the admission is adduced has raised in the proceeding an issue about whether the admission or its making were so influenced." 24 It was submitted that the bank interview should have been excluded pursuant to s84 because the Crown could not exclude that the bank interview was not influenced by the oppressive conduct of senior bank staff and the investigators, or the threat of oppressive conduct on the part of either the bank or its investigators. The appellant relied upon a combination of factors to make out that submission. 25 The factors relied upon were as follows:

(i) The appellant was required to attend the bank interview in fear of penalty (akin to disciplinary proceedings).

(ii) There would have been adverse consequences to the appellant if he did not attend and participate in the interview.

(iii) The cross-examination of the appellant was substantial and wide ranging.

(iv) There was scepticism expressed by the bank investigators concerning some aspects of the account by the appellant.

(v) There was a suggestion in certain questions that answers such as "I don't know" would provoke ongoing questioning.

(vi) The bank interview was not conducted in a voluntary manner in that there was a requirement to attend and disciplinary action was a likely consequence of failing to attend.

(vii) Although the appellant was told that he could have an "advisor" present, he was not told what that meant.

(viii) There was inadequacy in the bank caution in failing to make it clear that the interview could be used in subsequent criminal proceedings. 26 I accept that s84 does not require the isolation of a single reason or a single incident of conduct provoking the confession. There may be a number of factors working together (R v Zhang [2000] NSWSC 1099, Simpson J). I also accept that there is no definition of "oppressive" in the Act and that the concept should not be limited to physical or threatened physical conduct but can encompass mental and psychological pressure. That said I am firmly of the view that nothing in the bank interview, either on its own or in combination, amounted to "oppressive conduct" as envisaged by s84. 27 The factual findings by his Honour are to the contrary. The most that can be said is that as part of his employment contract with the bank, the appellant was required to attend the interview. There was no evidence as to what consequences might follow a failure to attend but it was generally accepted that there would be some disciplinary consequences. Nevertheless, such requirements are a regular incident of employment and are not oppressive. 28 There is no basis for the submission that the responses given by the appellant were not voluntary, ie made in the exercise of a free choice to speak or be silent. He was well aware of his right to silence and invoked it on at least one occasion when asked about his private financial affairs. There was no evidence that his will was overborne in any way. 29 No error has been demonstrated in his Honour's conclusion that s84 of the Evidence Act did not operate to exclude the bank interview.

Section 90 of the Evidence Act 30 Section 90 of the Evidence Act is in the following terms: "In a criminal proceeding, the Court may refuse to admit evidence of an admission, or refuse to admit the evidence to prove a particular fact, if: (a) The evidence is adduced by the prosecution, and (b) Having regard to the circumstances in which the admission was made, it would be unfair to a defendant to use the evidence." 31 It was submitted that the unfairness to the appellant in the context of s90 was the use by the prosecution in criminal proceedings of the bank interview where the appellant was not made aware that that could occur but had only been told that the interview "could be used in the bank's deliberations". Reference was made to the appellant's evidence that if he had known that the interview could be used in criminal proceedings he would not have participated in it until after he obtained legal advice. 32 Reliance was placed upon R v Swaffield (1998) 192 CLR 159 at [53 - 54]: " [53] The term "unfairness" necessarily lacks precision; it involves an evaluation of circumstances. But one thing is clear: "The question is not whether the police have acted unfairly; the question is whether it would be unfair to the accused to use his statement against him ... Unfairness, in this sense, is concerned with the accused's right to a fair trial, a right which may be jeopardised if a statement is obtained in circumstances which affect the reliability of the statement."

[54] Unfairness then relates to the right of an accused to a fair trial; in that situation the unfairness discretion overlaps with the power or discretion to reject evidence which is more prejudicial than probative, each looking to the risk that an accused may be improperly convicted. While unreliability may be a touchstone of unfairness, it has been said not to be the sole touchstone. It may be, for instance, that no confession might have been made at all, had the police investigation been properly conducted. And once considerations other than unreliability are introduced the line between unfairness and policy may become blurred." 33 It was submitted that the Crown should not have been allowed to use the bank interview against the appellant because not only was the caution given to the appellant inadequate, it was positively misleading. Through it the appellant was led to believe that the bank interview could only be used for the purposes of the bank and not for any other purpose. 34 Implicit in that submission is the proposition that the bank investigators were in the same position as police officers and therefore subject to the statutory and common law restrictions imposed upon such officers when conducting interviews with suspects. I can see no basis for such an approach. 35 There was evidence of some co-operation between the bank investigators and the police before the interview with the appellant but in no way could the bank investigators be regarded as agents of the police. The bank investigators' focus as the interview reveals was on the interests of the bank. Their relationship with the police was far more remote than that of the insurance investigators in R v Frangulis [2006] NSWCCA 363, which was a relationship not disapproved by this Court. 36 His Honour's findings of fact are a barrier to this submission succeeding. Not only was the caution not misleading, his Honour found as a fact that the appellant had not been misled. As a matter of simple English I do not find the caution to be misleading. There is nothing in it nor in the bank interview to suggest that the appellant was led to believe that whatever he said in the interview could not be used in criminal proceedings against him. 37 Even if the appellant was misled by the caution (which his Honour did not accept) this is relevant to the exercise of the discretion under s90 but is not determinative of it. As is clear from the terms of the section itself the fundamental question is whether it would be unfair to the appellant to use the evidence at his trial. There was nothing said during the interview by the investigators to encourage such an incorrect understanding of the caution in the appellant. Even if no caution had been administered, I can see no reason why evidence of the bank interview could not have been led. It would have been admissible in the same way as an unguarded incriminating statement to a relative or a friend would have been. 38 Some assistance is provided by Em v Regina [2006] NSWCCA 336 where Giles JA was considering s90: "75 The appellant's choice to speak or be silent was affected, because he would not have spoken to the detectives if he had known the conversation was being recorded. But that is so in almost any instance of covert recording, and he was made well aware that he did not have to speak to them at all. It must be asked why did he speak to them and whether the circumstances pointed to unfairness if the evidence was used; I respectfully agree with the discussion of Howie J in the interlocutory appeal. 76 The appellant spoke to the detectives in the belief that, if the conversation was not recorded, evidence of the conversation could not be used against him. Even if, as the appellant submitted, should be inferred, the detectives were aware of that belief, I do not think there was thereby unfairness. Where the police are not responsible for an erroneous understanding which causes the accused to speak, more will be needed to make it unfair to use against the accused what the accused says. Hence the correct inquiry as to why the appellant had his belief, the answer being that the police were not responsible for it." 39 What is decisive in my opinion is the adoption by the appellant of the bank interview when he was interviewed by the police on 18 November 2003. On that occasion the appellant was given a full caution. He spoke to his solicitor before participating in the police interview. In the course of that interview he suggested to the interviewing officers that there was no point in them asking him further questions about how Mrs Loder's cheque was dealt with since he had already been comprehensively questioned on that subject by the bank investigators. He told the interviewing police officers that he accepted that the interview with the bank was correct and he did not wish to alter the content. The interviewing officers gave him the opportunity of re-reading his bank interview and again he adopted it as accurate. 40 No error has been demonstrated in his Honour's conclusion that s90 of the Evidence Act did not operate to exclude the bank interview.

Police interview 41 It was submitted that the police interview should have been excluded pursuant to s138 of the Evidence Act to the extent that the bank interview was adopted (ie those portions of the police interview obtained in consequence of the bank interview should have been excluded). 42 There was no impropriety or unlawful conduct by the investigating police. The appellant under caution adopted the bank interview. I have already indicated why there was no oppressive conduct or unfairness associated with the bank interview being used in the criminal proceedings against the appellant. It follows that the precondition for the operation of s138 of the Evidence Act has not been made out.

Ground 2 43 It was common ground that the Crown case at trial was a circumstantial one. It was also common ground that it was necessary for the trial judge to appropriately direct the jury as to the manner in which they were to approach the circumstantial evidence. It is the appellant's submission that the directions of the trial judge lacked the detail and emphasis required in the circumstances of the case to appropriately direct the jury as to the relevant law. 44 Specifically, the appellant's complaint was that the trial judge did not make it clear to the jury that in a circumstantial case:

(i) The onus of proof is on the Crown and as such any inference or conclusion sought to be drawn by the Crown from the facts must be a conclusion reached by the jury beyond reasonable doubt; and

(ii) any such conclusion must be the only reasonable explanation or inference to be drawn from those facts. That is, guilt should be the only rational or reasonable inference that could be drawn from the circumstances. 45 It was accepted by the appellant that counsel for the appellant at trial did not seek a redirection in relation to the circumstantial evidence and that consequently rule 4 of the Criminal Appeal Rules 1912 applies and the appellant requires leave to argue this ground. 46 The requirement to provide appropriate directions to a jury as to the manner in which they should approach circumstantial evidence is not absolute. The rationale for providing such directions was explained by Dawson J in Shepherd v The Queen (1990) 170 CLR 573 at 578: "Whilst a direction of that kind is customarily given in cases turning upon circumstantial evidence, it is no more than an amplification of the rule that the prosecution must prove its case beyond reasonable doubt. In many, if not most, cases involving substantial circumstantial evidence, it will be a helpful direction. In other cases, particularly where the amount of circumstantial evidence involved is slight, a direction in those terms may be confusing rather than helpful. Sometimes such a direction may be necessary to enable a jury to go about their task properly. But there is no invariable rule of practice, let alone rule of law, that the direction should be given in every case involving circumstantial evidence. It will be for the trial judge in the first instance to determine whether it should be given. As Barwick CJ speaking for the court observed in Grant v The Queen (1975) 11 ALR 503 at 504: "Where the circumstances of the case seem to require that some such direction be given, the summing up regarded as a whole may prove to be, and generally may be likely to be, inadequate. On the other hand, having regard to the circumstances of the case and the nature of the summing up, the failure to give the special direction may not in a particular case result in an inadequacy of the summing up as a whole. It may nonetheless be concluded from the terms of the summing up that the jury were fully instructed."" 47 The jury was fully apprised of the onus placed upon the prosecution. His Honour commenced his summing up by delivering the customary direction on the onus of proof and directing the jury that the appellant bore no onus. The jury was further directed on the onus of proof in the context of the direction of the appellant giving evidence. 48 Specifically the jury was directed on inferences and the relevant onus of proof. The direction was in the following terms: "Now the next matters of law that I want to talk to you about, are what are called inferences and coupled to an extent with what has been referred to you as circumstantial evidence. Now inferences, you are of course entitled to draw inferences from direct evidence. There is nothing unusual about that and we all do it, every day. Inferences are conclusions of fact rationally drawn from a combination of proved facts, and I do not think it will particularly help you to attempt to give illustrations of that, it is perfectly straight forward and you all know perfectly well what we are talking about. But when you are dealing with inferences in a criminal trial, you bear in mind first of all that you have to be satisfied of the guilt of the accused beyond reasonable doubt and therefore you should be very careful about drawing inferences. First of all, you examine any possible inferences to insure that it is a justifiable inference, and in the context of a criminal trial, where proof is required beyond reasonable doubt, you should not draw any inference from direct evidence unless it is the only rational inference in the circumstances. Now that overlaps with the situation about circumstantial evidence. What I will say to you at the moment about circumstantial evidence is, and I do not think it is any mystery to you, it is a series of objective facts, which if established, one party says lead to an inevitable conclusion. Now again, I am not going to give illustrations of that but the essential thrust of it, is that the facts you find established drive you inevitably to that one conclusion. It has to be the only rational conclusion to draw from the facts." (SU 4.8-5) 49 In dealing with the elements of the offence, the trial judge repeatedly directed the jury that the Crown has the onus of proof even when dealing with circumstantial evidence. His Honour directed the jury as to how to approach the circumstantial evidence in relation to those elements. His Honour delivered a specific direction as to circumstantial evidence, albeit in a somewhat condensed form. "Now that brings me back to just reminding you about circumstantial evidence. What we have spent the last days doing, is looking at what in fact happened to Mrs Loder's cheque, and a detailed examination of the circumstances surrounding what happened to it, with various matters brought, some of which are illustrated on the aide memoire that you have, all aspects of the evidence, you may think, are relied upon by both sides in support of their respective cases. The Crown essentially says, that the explanation given does not stand up to close examination, and in any event they say it is inherently incredible. The defence say, when you analyse the various aspects of the bases for criticism put forward by the Crown they are either neutral or unsound. The defence say there is nothing categorically pointing only one way, namely the guilt of the accused. Now the defence do not have to prove anything but you have the benefit of the respective sides making their cases to you, and the Crown say, well then you look at the overall picture here, perhaps to use the vernacular, his account about the instructions changing, and his explanation of what in fact happened does not stand up. It not only does not stand up, but it is demonstrably false and therefore shows dishonesty or fraud. The defence say you do not get anywhere near that if you analyse the evidence fairly. So those are the respective positions …" (SU, 10.7-11.5) 50 His Honour's directions need to be looked at in the context that both counsel addressed the jury with the defence addressing it at considerable length. His Honour invited counsel after he had summed up to raise further matters. Neither counsel took issue with the summing up. In the context of a relatively brief trial with limited issues, counsel is to be given credit for determining what assistance the jury required. 51 In the circumstances of this case, and keeping in mind the underlying rationale, I am not persuaded that error has been established in his Honour's directions as to circumstantial evidence. 52 The obligations of counsel and the consequences of a failure to raise a problem with respect to the summing up has been considered by this Court on many occasions - see R v Wilson (2005) 62 NSWLR 346 at 352-353; R v Villa [2005] NSWCCA 4 at [74]; R v Ita (2003) 139 A Crim R 340 at 355-7 and 365. The principles are well understood. This Court is entitled to conclude that the view I have reached that his Honour's directions considered in context were appropriate was the view of counsel who heard his Honour's remarks as they were delivered. 53 In my opinion leave to appeal on this ground should be refused.

Conclusion 54 The orders which I propose are as follows:

(1) In respect of Ground of Appeal 1, the appeal should be dismissed.

(2) In respect of Ground of Appeal 2, leave to rely upon the ground should be refused. **********

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