Higgins v The King - [2025] NSWDC 256

District Court

New South Wales

Medium Neutral Citation: Higgins v R [2025] NSWDC 256
Hearing dates: 14 July 2025
Date of orders: 14 July 2025
Decision date: 14 July 2025
Jurisdiction: Criminal
Before: Abadee DCJ
Decision:
See paragraphs [58]–[59].

Catchwords:
CRIME – appeals and reviews – appeal against refusal to annul convictions entered in Local Court – accused person is deliberately disruptive in proceeding – the judicial officer determined that he was not ‘present’ and proceeded to hear the matter in his absence
CRIME – interpretation – whether accused person ‘present’ – Criminal Procedure Act1986, s 196

Legislation Cited:
Crimes (Appeal and Review) Act2001 (NSW), ss 4, 8, 11A, 16A
Criminal Procedure Act1986 (NSW), ss 192–196
Local Court Act 2007 (NSW), s 24

Cases Cited:
DPP v Horstman [2023] NSWSC 213
Kelly v Fiander [2023] WASC 187
McKellar v DPP (2014) 240 A Crim R 285
Miller v DPP [2024] NSWCA 90
R v Kirsten (a pseudonym) [2024] NSWDC 401

Texts Cited:
D Rolph, Contempt (2023, The Federation Press)

Category: Principal judgment
Parties: Mr Christopher Edwin Higgins (Appellant)
Transport for NSW (Respondent)
Representation: In person (Appellant)
Mr J Kennedy (solicitor) (Respondent)

File Number(s): 2023/00200976; 2023/00209350
Publication restriction: Nil.
Decision under appeal

Court or tribunal:

Local Court of NSW

Jurisdiction:

Criminal

Date of Decision:

20 January 2025

Before:

Towney LCM

File Number(s):

2023/00200976; 2023/00209350

Reasons for judgment

(The is a revised version of reasons given ex tempore on 14 July 2025.)

Background

Mr Christopher Edwin Higgins, the appellant, was convicted and fined in the Downing Centre Local Court in respect of two instances of speeding, occurring on 5 April 2023 and 14 April 2023, contrary to r 20 of the Road Rules 2014 (NSW). In each instance, the charge featured the appellant driving at less than 10 km/h over the speed limit.
On 29 April 2024, the proceeding was dealt with in the appellant’s absence and the appellant was convicted and fined $330 for both offences. The Magistrate exercised power under s 196 of the Criminal Procedure Act 1986 (NSW). On 2 July 2024, an annulment application brought by the appellant in respect of the convictions entered on 29 April 2024 was heard before Local Court Magistrate Towney. The appellant was permitted to bring this application under s 4 of the Crimes (Appeal and Review) Act2001 (NSW) (the ‘CAR Act’). The appellant provided the Court with a medical certificate and the prosecution neither consented to nor opposed the annulment of the convictions entered on 29 April 2024. The appellant was invited to enter a plea of guilty or not guilty. Following his non-responsive answer, the matter continued for a period before it was adjourned, part-heard, to 30 July 2024. The appellant was notified that if he did not appear on that date, the matters would be determined in his absence.
On 30 July 2024, the matters were before Local Court Magistrate Denes. That day, the appellant appeared not to acknowledge his name, and refused to acknowledge…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Higgins v The King

Details

AGLC: Higgins v The King [2025] NSWDC 256
Case: [2025] NSWDC 256
Decision Date: 14 July 2025

CaseChat Overview and Summary

The appellant, Higgins, appealed against the refusal of the Local Court to annul convictions entered against him. The appeal stemmed from an incident where the appellant was deliberately disruptive during a proceeding in the Local Court. As a result, the judicial officer determined that Higgins was not present and proceeded to hear the matter in his absence, subsequently entering convictions against him. The core issue was whether the appellant was 'present' for the purposes of section 196 of the Criminal Procedure Act 1986.

The primary legal question before the court was the interpretation of the term 'present' as it applies to an accused person in a criminal proceeding under the Criminal Procedure Act 1986. Specifically, the court had to determine if the appellant's disruptive behaviour constituted a situation where he was not 'present' within the meaning of the statute. This involved examining whether the judicial officer had the authority to proceed with the hearing in the appellant's absence.

The court held that the term 'present' in section 196 of the Criminal Procedure Act 1986 includes physical presence and the capacity to participate in the proceeding. The appellant's deliberate and persistent disruption was such that he was unable to participate in the hearing, thereby justifying the judicial officer's decision to proceed in his absence. The court further found that the convictions were validly entered under these circumstances. Consequently, the appeal was dismissed.

The court's final orders were to dismiss the appeal and affirm the convictions entered by the Local Court. The court made no orders for costs.

Orders

Orders of the court

See paragraphs [58]–[59].

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Higgins v R [2025] NSWDC 256
Hearing dates:	14 July 2025
Date of orders:	14 July 2025
Decision date:	14 July 2025
Jurisdiction:	Criminal
Before:	Abadee DCJ
Decision:	See paragraphs [58]–[59].
Catchwords:	CRIME – appeals and reviews – appeal against refusal to annul convictions entered in Local Court – accused person is deliberately disruptive in proceeding – the judicial officer determined that he was not ‘present’ and proceeded to hear the matter in his absence CRIME – interpretation – whether accused person ‘present’ – Criminal Procedure Act1986, s 196
Legislation Cited:	Crimes (Appeal and Review) Act2001 (NSW), ss 4, 8, 11A, 16A Criminal Procedure Act1986 (NSW), ss 192–196 Local Court Act 2007 (NSW), s 24
Cases Cited:	DPP v Horstman [2023] NSWSC 213 Kelly v Fiander [2023] WASC 187 McKellar v DPP (2014) 240 A Crim R 285 Miller v DPP [2024] NSWCA 90 R v Kirsten (a pseudonym) [2024] NSWDC 401
Texts Cited:	D Rolph, Contempt (2023, The Federation Press)
Category:	Principal judgment
Parties:	Mr Christopher Edwin Higgins (Appellant) Transport for NSW (Respondent)
Representation:	In person (Appellant) Mr J Kennedy (solicitor) (Respondent)
File Number(s):	2023/00200976; 2023/00209350
Publication restriction:	Nil.
Decision under appeal	Court or tribunal: Local Court of NSW Jurisdiction: Criminal Date of Decision: 20 January 2025 Before: Towney LCM File Number(s): 2023/00200976; 2023/00209350