A NSW childcare operator behind bars over a $3.6 million government benefits fraud has failed to overturn her conviction after judges said the term “bogan” was not a racist description.
Melissa Jade Higgins contended her guilty verdicts should be set aside because multiple jurors may have exhibited bias against her in the form of “racist and derogatory comments” during her 2016 trial.
The then 29-year-old was jailed for seven years with a non-parole period of four years after being found guilty by a District Court jury of 81 offences – including 66 of obtaining financial advantage by deception.
Her scam involved wrongly claiming $3.6 million in government benefits through her Aussie Giggles childcare centre in Albury between September 2013 and March 2015.
She will be eligible for release on parole in May 2021.
The NSW Court Criminal Appeal on June 11 dismissed her convictions challenge, ruling she had not established that a juror irregularity deprived her of a fair trial.
The court adjourned her appeal in October 2018 so a NSW sheriff’s officer could carry out an investigation after a juror reported hearing “racist and derogatory” remarks about Higgins during the trial.
The investigator conducted interviews with all the jurors and reported back to the appeal court.
The juror who first reported the matter recalled the remark “lock her up and throw away the keys” but could not remember any racial comments being made about the accused.
One juror recalled more than one person saying something like “how can a bogan rip off the system like this” and “Oh my god how is someone from the country able to outsmart the government”.
Justices Mark Leeming, Ian Harrison and Peter Hamill noted none of the jurors nominated any specific racist remark having been made and many denied they heard any racist remark at all.
“The word ‘bogan’ is not a racist description,” Justice Harrison said.
Justice Hamill agreed, saying while the remark may be considered unfortunate, it bore 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,” he said.