Higgs v The King [No 2]
[2023] VSCA 279
•16 November 2023
| SUPREME COURT OF VICTORIA COURT OF APPEAL |
| S EAPCR 2021 0009 |
| JOHN WILLIAM SAMUEL HIGGS | Applicant |
| v | |
| THE KING [NO 2] | Respondent |
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| 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 |
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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.
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| 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 of justice.
On 12 March 2021, the applicant filed an application for bail. The application was based on what were submitted to be the applicant’s strong prospects of success on appeal and the proximity of the expiry of his non-parole period. In Re Zoudi,[4] this Court (Maxwell P, Buchanan, Nettle, Neave and Redlich JJA) confirmed that the imminent expiry of the custodial portion of a sentence was relevant to establishing exceptional circumstances justifying the grant of appeal bail. At the time, the applicant’s non-parole period still had five years to run.
[4](2006) 14 VR 580; [2006] VSCA 298 (‘Zoudi’).
On 12 April 2021, this Court (Beach and Emerton JJA) refused the application.[5]
[5]Higgs v The Queen [2021] VSCA 90 (‘First Bail Reasons’).
The applicant now applies again for bail. His ground for doing so is as follows:
The applicant’s non-parole period is likely to expire prior to his appeal being heard and determined by the Court of Appeal.
Relevant legal principles
Section 310 of the Criminal Procedure Act provides as follows:
(1)A prisoner within the meaning of the Corrections Act 1986 who appeals, or applies for leave to appeal, to the Court of Appeal may apply to the Court of Appeal to be granted bail.
(2)On an application under subsection (1), the Court of Appeal may grant the prisoner bail pending the appeal.
Section 310 does not specify the criteria to apply to this Court’s decision to grant or refuse bail. However, as we said in our first decision to refuse bail,[6] ‘[i]t is well settled that bail pending appeal will only be granted in exceptional circumstances.[7] “Exceptional circumstances” means circumstances which are “truly exceptional”’.[8] In determining whether exceptional circumstances exist, the expiry of the non-parole period is a relevant consideration, unless it appears that the applicant will not be released at or about that time.[9] However:
There is no hard and fast rule about how much of a term of imprisonment (or, in an appropriate case, a non-parole period) needs to expire before consideration should be given to granting bail pending an appeal. Each case will depend upon its own facts. Moreover, other factors will also likely be relevant — such as the potential strength or merit of an applicant’s proposed grounds of appeal.[10]
[6]First Bail Reasons [23].
[7]Zoudi (2006) 14 VR 580, 588–9 [28] (Maxwell P, Buchanan, Nettle, Neave and Redlich JJA); [2006] VSCA 298; Cvetanovskiv The Queen [2020] VSCA 126, [2] (Maxwell P, Beach and Weinberg JJA) (‘Cvetanovski’); Zirilli v The Queen [2020] VSCA 261, [2] (McLeish and Weinberg JJA); Agrestav The Queen [2020] VSCA 334, [2] (Maxwell P and Emerton JA) (‘Agresta’).
[8]Zoudi (2006) 14 VR 580, 589 [28(5)] (Maxwell P, Buchanan, Nettle, Neave and Redlich JJA); [2006] VSCA 298.
[9]Ibid 581 [2]–[4], 587–8 [26].
[10]First Bail Reasons [23] (Emerton P and Beach JA). See also Zoudi (2006) 14 VR 580, 588 [27] (Maxwell P, Buchanan, Nettle, Neave and Redlich JJA); [2006] VSCA 298.
The applicant’s submissions
The applicant submits that exceptional circumstances exist in his case for several reasons.
First, he submits that he only has 30 months to serve before his non-parole period expires. By the time his application for leave to appeal is listed and determined, he is likely to have served a substantial part of his custodial sentence. Indeed, it is possible that he will have already completed his custodial sentence. In so arguing, he contends that he is likely to be eligible for release when his non-parole period expires.
In this context, the applicant relies on Marotta v The Queen,[11] in which the High Court granted an applicant, who would have been eligible for parole approximately 21 months later, bail pending appeal. He also relies on Cvetanovski and Zoudi.
[11](1999) 73 ALJR 265 (‘Marotta’).
The applicant points to delays in disclosure that, he says, will likely push the hearing of his application for leave to appeal to a date at least 12 months from now, at which point the expiry of his non-parole period will be less than 18 months away. He refers to a request made on his behalf for documents from the Australian Criminal Intelligence Commission (‘ACIC’) which, he says, are ‘critical’ to his appeal. The applicant states that it is likely he will become engaged in lengthy litigation with ACIC.
The applicant’s solicitor has filed an affidavit to which he has exhibited correspondence with ACIC. In that correspondence, the applicant’s solicitor sought the release of certain documents that were the subject of this Court’s judgment in Zirilli v The King.[12] ACIC has said that it is still considering its position in light of Zirilli. The applicant’s solicitor deposes that he has not heard from ACIC since. He submits that the issue of disclosure may not be resolved for some time, and that this Court’s judgment in Zirilli is unlikely to bring about a speedy resolution of his request for disclosure from ACIC.
[12][2023] VSCA 64 (‘Zirilli’).
Secondly, the applicant submits that he has strong prospects of successfully appealing his conviction. He relies on his previous submissions and affidavit material in this regard, along with the successful prosecution of appeals in ‘Lawyer X’ matters in Mokbel v Director of Public Prosecutions (Cth)[13] and Orman v The Queen.[14] He submits further that those prospects have improved since the First Bail Reasons as in Karam v The King,[15] Osborn JA recognised a relationship similar to his own with Nicola Gobbo as giving rise to the kinds of obligations and consequences for which the applicant contends.
[13][2020] VSCA 325 (‘Mokbel’).
[14](2019) 59 VR 511; [2019] VSCA 163 (‘Orman’).
[15][2022] VSC 808 (‘Karam reference determination’).
The applicant submits that he does not pose a risk if released on bail. He has the support of his family and sureties are available. He has a history of complying with bail on previous occasions.
The respondent’s submissions
The respondent submits that the applicant’s current application only differs from his previous application for bail in two ways:
(a)The applicant now has approximately 2 years and 4 months of his non-parole period left to serve, in contrast to the 4 years and 11 months he had remaining to serve at the time this Court first refused him bail.
(b)Extensive disclosure has occurred and the Karam reference determination has been published. As a result, the applicant is well-informed, the factual dispute between the parties is likely to have narrowed, and there is no material reason for his case to not proceed in the near future.
The respondent argues that none of the changes give rise to exceptional circumstances. The applicant’s non-parole period does not expire until 31 March 2026. The respondent submits that the Court can be satisfied that the appeal will be heard prior to the expiration of the applicant’s non-parole period. While it is unlikely that the applicant’s application for leave to appeal will be heard within the next year, it is likely to be determined before 31 March 2026. This is so even on a pessimistic view of the likely hearing date, taking into account the uncertainty arising from a possible reference determination and the listing availability of the Court.
The respondent submits that the applicant has been provided with almost all the material he has sought. The only outstanding material is a small number of documents to be received from ACIC. In Zirilli, this Court described this material as ‘innocuous’ and as being neither helpful to Mr Zirilli nor so sensitive that its release would prejudice ACIC’s ability to carry out its functions.[16] There is no reason to believe that the ACIC material is ‘critical’ to the applicant’s case. To the contrary, one of the matters referred to by the applicant as critical concerns the provision of his phone number to the authorities so that calls could be intercepted. The Karam reference determination makes it quite clear how this occurred.
[16][2023] VSCA 64, [65] (Emerton P, Beach and McLeish JJA).
The respondent submits that the applicant is now well-informed about the nature and extent of Ms Gobbo’s informing on him and the extent to which that information was communicated to others within law enforcement. He has the benefit of the Karam reference determination. Furthermore, the Court’s pending judgment in Karam’s substantive appeal is also likely to narrow the legal issue in the applicant’s case. There is therefore no reason why the applicant cannot proceed with his substantive appeal in the very near future. While a reference determination may be necessary, it is unlikely that it would take as long as Karam’s.
As to prospects on appeal, the respondent submits that the applicant’s case is no more than ‘reasonably arguable’ and his prospects of success are insufficiently strong to justify his release on bail while he still has years to serve before his non-parole period expires. Although since the first refusal of bail, the Karam reference determination has been made and it will likely impact the applicant’s case, the consideration of the applicant’s prospects of success is unaffected as there remains a significant factual dispute. It is ‘neither possible not appropriate, on this application, for this Court to attempt to resolve the various factual matters that are in dispute between the parties’.[17]
[17]Quoting First Bail Reasons [26] (Beach and Emerton JJA).
According to the respondent, none of the fresh evidence exculpates the applicant or raises any doubts about his guilt. Insofar as the applicant argues that the fresh evidence bears on the admissibility of the evidence called at trial, this Court’s judgment in Visser v Director of Public Prosecutions (Cth)[18] and Osborn JA’s observations in the Karam reference determination reduce that argument’s likelihood of success.
[18][2020] VSCA 327 (‘Visser’).
The respondent submits that Mokbel[19] is distinguishable as Ms Gobbo did not appear as counsel for the applicant in his trial. Orman[20] is also distinguishable as Ms Gobbo did not pursue the principal evidence against the applicant while acting for him.
[19][2020] VSCA 325.
[20](2019) 59 VR 511; [2019] VSCA 163.
The respondent submits that Marotta is also distinguishable. In that case, the High Court’s grant of special leave was a significant factor in the grant of bail, and, by extension, an indication of the applicants’ prospects of success.
The respondent does not allege that the applicant would pose an unacceptable risk if granted bail. Nor does the respondent take issue with the applicant’s history of complying with bail conditions, the availability of family support, his willingness to abide by proposed bail conditions, and the availability of sureties.
Discussion
The applicant’s non-parole period will expire on 31 March 2026. In the First Bail Reasons, we concluded that the application for leave to appeal (and any appeal consequential thereto) would likely be heard a number of years before the applicant’s non-parole period expires.[21] In so concluding, we had assumed that the applicant would pursue his application for leave with some expedition having regard to the time he had already spent in custody.
[21]First Bail Reasons [30].
Our expectations, however, have not been met. The affidavits filed on the present application disclose that a more leisurely course has been taken by the applicant and his lawyers. Specifically, it appears that the applicant has taken no serious steps to progress his application for leave to appeal between early 2022 and the most recent spate of correspondence with ACIC commencing in August 2023. We were informed from the bar table that disclosure was completed —
(a) by VicPol in January 2022;
(b) by IBAC in April 2022;
(c) by Australian Border Force in July 2021;
(d) by Australian Federal Police in November 2021;
(e) by the respondent in October 2021.
ACIC produced the vast majority of the documents that were sought in September 2021. What remained and remains outstanding are the affidavits supporting the interception warrants that were issued in 2007.
While the applicant was pursuing the production of documents from the ACIC, the applicant’s solicitor’s evidence in this application is that the determination of the objections to production (articulated by the ACIC in September 2021):
… was put on hold pending the outcome of Zirilli v The King [2023] VSCA 64 in which the Court was considering, and has determined similar issues concerning Mr Zirilli.
More particularly, and notwithstanding that this Court’s decision in Zirilli did not result in an order requiring the ACIC to produce any documents to Mr Zirilli, the applicant appears to have done nothing to progress the resolution of the significant factual issues which are in dispute between the parties and which form the basis of his proposed grounds of appeal.[22] To that end, it does not appear that the applicant has even commenced the process of identifying the specific contested issues or matters which might be referred to the Trial Division for determination pursuant to s 319A of the Criminal Procedure Act.[23]
[22]First Bail Reasons [25].
[23]As to the mechanics of that process, see generally Karam v The Queen [2022] VSCA 23; Karam v The Queen [No 2] [2022] VSCA 163; and Karam v The King [2022] VSC 808.
If the applicant had moved with reasonable expedition to progress his application for leave to appeal, we have no doubt that that application (and any appeal if leave were granted) would have been heard years before the expiry of his non-parole period. While the expiry of a very significant portion (if not the whole of) the applicant’s non-parole period is a matter relevant in the determination of whether exceptional circumstances exist and whether bail should now be granted, an applicant for bail in this Court is not entitled to simply do little to progress his or her application for leave to appeal and then contend that, by reason of the delay caused by such an approach, bail should now be granted.
In any event, there remains a considerable period of time before the expiry of the applicant’s non-parole period, even if it takes 12 months to bring the application for leave to appeal on for hearing and the decision is reserved. By that stage, the application for leave to appeal (and any consequential appeal) in Karam will have been determined, and the issues arising for determination are likely to have been narrowed.
The applicant’s situation differs from those of the applicants in Cvetanovski, Agresta and Zoudi. In those cases, this Court granted bail pending appeal because it was clear that the non-parole period would expire, or be within months of expiring, before the appeals were determined. The applicant’s situation also differs from that of the applicant in Madafferi v The Queen.[24] In Madafferi, there existed the likelihood that Mr Madafferi would have served more than 80 per cent of his sentence before his appeal was heard and determined.[25] This Court refused the application for bail pending appeal, though it considered the fact that Mr Madafferi would have served a substantial portion of his sentence before his appeal was heard went some way to establishing exceptional circumstances.[26] The applicant will not have served more than 80 per cent of his sentence by the time of any appeal.
[24][2021] VSCA 332 (‘Madafferi’).
[25]See ibid [38] (Emerton and Osborn JJA).
[26]Ibid [43].
As to the applicant’s prospects on appeal, in the First Bail Reasons we said:
[I]t is to be noted that the affidavit material discloses serious factual issues which are in dispute between the parties. Specifically, notwithstanding the documents relied upon by the applicant, the respondent does not concede that Ms Gobbo acted for the applicant in relation to the current proceedings at any relevant time. While that is not determinative against the applicant in relation to his prospects of success, it potentially distinguishes his case from cases like Orman and Mokbel.[27]
[27]First Bail Reasons [25] (Beach and Emerton JJA) (citations omitted).
Referring to the disputed factual issues, we said:
Moreover, even if those disputes were to be resolved in the applicant’s favour, there are issues of some complexity which would then need to be resolved in the applicant’s favour in order for him to enjoy success in this Court. As this Court’s decision in Visser v Director of Public Prosecutions (Cth) shows, some of the matters sought to be agitated by the applicant in the present case may not necessarily be determined in his favour.[28]
[28]First Bail Reasons [26] (citations omitted).
Our views about the applicant’s prospects on appeal have not changed. None of Mokbel,[29] Orman[30] or Visser[31] is likely to be of any particular assistance to the applicant. Furthermore, we do not consider that the Karam reference determination is of any particular assistance to the applicant. The nature of his relationship with Ms Gobbo remains to be determined on the facts. On the material as it presently stands we are not persuaded that his prospects of success are sufficient to justify his release on bail while he still has a significant period to serve before even his non-parole period expires. The other matters relied upon by the applicant which are personal to him (age, medical conditions, family support, proposed bail conditions, previous observance of court orders and the availability of a substantial surety) do not, either alone or in combination, amount to exceptional circumstances.
[29][2020] VSCA 325.
[30](2019) 59 VR 511; [2019] VSCA 163.
[31][2020] VSCA 327.
Conclusion
Although there is no dispute about the applicant’s willingness and ability to meet the conditions of bail, the applicant has not established exceptional circumstances justifying the grant of bail.
Bail is refused.
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