Legal Research
Cases
Higgs v The King [No 2]

Higgs v The King [No 2]

Case [2023] VSCA 279 16 November 2023

Appeal

Bail

Exceptional Circumstances

Criminal Law

Type to search within this case.

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2021 0009

JOHN WILLIAM SAMUEL HIGGS	Applicant
v
THE KING [NO 2]	Respondent

---

JUDGES:	EMERTON P and BEACH JA
WHERE HELD:	Melbourne
DATE OF HEARING:	10 November 2023
DATE OF JUDGMENT:	16 November 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 279

---

CRIMINAL LAW – Appeal – Bail – Application for bail pending appeal – Where applicant previously refused bail pending appeal – Where applicant has 2 years and 4 months of non-parole period left to serve – Where applicant failed to pursue application for leave to appeal expeditiously since last bail application – Whether exceptional circumstances exist – Application for bail refused.

Criminal Procedure Act 2009, ss 310, 319A, 326A.

Re Zoudi (2006) 14 VR 580, Higgs v The Queen [2021] VSCA 90, applied; Cvetanovski v The Queen [2020] VSCA 126, Agresta v The Queen [2020] VSCA 334, Madafferi v The Queen [2021] VSCA 332, distinguished.

---

Counsel
Applicant:		Mr D Grace KC
Respondent:		Ms A Martin
Solicitors
Applicant:	Christopher James Lawyers
Respondent:	Mr J Carter, Acting Solicitor for Public Prosecutions (Cth)

EMERTON P
BEACH JA:

Introduction

On 24 May 2012, the applicant was found guilty of conspiracy to possess a border-controlled drug (MDMA) in a commercial quantity. On 30 April 2013, he was sentenced to 18 years’ imprisonment with a non-parole period of 14 years. King J declared 394 days of pre-sentence detention.[1]
[1]DPP (Cth) v Karam [2013] VSCA 133, [84]–[85].
On 26 August 2015, this Court refused an application by the applicant for leave to appeal against conviction.[2] The High Court subsequently refused an application by the applicant for special leave to appeal.[3]
[2]Higgs v The Queen [2015] VSCA 223.
[3]Higgs v The Queen [2016] HCASL 259.
On 14 January 2021, the applicant filed a second notice of application for leave to appeal against his conviction pursuant to s 326A of the Criminal Procedure Act 2009 (‘Criminal Procedure Act’). His proposed grounds of appeal relate to the alleged conduct of the former barrister, Nicola Gobbo. They are as follows:
1.By reason of the discovery of fresh evidence in relation to the actions of the applicant’s legal practitioner, a substantial miscarriage of justice has been occasioned.
Particulars
(1) Gobbo’s conduct in acting for and advising the Applicant during the period she was actively assisting police in securing evidence against him and providing information about him to police deprived the Applicant of independent counsel;
(2)Victoria Police and Gobbo exploited the privileges and obligations conferred upon Gobbo as a legal practitioner and an officer of the Court in order to obtain evidence against the Applicant which represents a defect in the resulting process so profound it offends the integrity and functions of the Court thereby constituting an abuse of process.
2.By reason of the discovery of fresh evidence, being the non-disclosure by the prosecution of Gobbo’s involvement in securing evidence against the Applicant, there has been a substantial miscarriage…

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 Higgs v The King [No 2]

Details

AGLC: Higgs v The King [No 2] [2023] VSCA 279
Case: [2023] VSCA 279
Decision Date: 16 November 2023

CaseChat Overview and Summary

In the matter of Higgs v The King [No 2], the applicant, Higgs, sought bail pending an appeal against his conviction and sentence. Higgs had previously been denied bail, and at the time of the application, he had two years and four months remaining on his non-parole period. The matter was heard in the Victorian Court of Appeal. Higgs argued that exceptional circumstances existed that warranted a reconsideration of his bail application.

The court was required to determine whether there had been any exceptional circumstances since the previous bail application that warranted a change in the decision. Given that Higgs had not pursued his application for leave to appeal expeditiously, the court considered this in the context of assessing the exceptional circumstances. The court also needed to weigh the interests of justice and the potential risks associated with granting bail.

The court found that there were no exceptional circumstances present to warrant a reconsideration of the bail decision. The court emphasised that Higgs had not acted expeditiously in pursuing his application for leave to appeal since the previous bail application. Furthermore, the court considered the significant period of time Higgs had left to serve on his non-parole period and the risk to the community if bail were granted. The application for bail was therefore refused.

No further orders were made.

Orders