Higgs v The Queen - [2021] VSCA 301

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2021 0009

JOHN WILLIAM SAMUEL HIGGS	Applicant
v
THE QUEEN	Respondent

---

JUDGE:	IRVING ASJ
WHERE HELD:	MELBOURNE
DATE OF HEARING:	6 September 2021
DATE OF JUDGMENT:	5 November 2021
MEDIUM NEUTRAL CITATION:	[2021] VSCA 301

---

CRIMINAL LAW – Orders for production of documents pursuant to s 317 of the Criminal Procedure Act 2009 – Applicant seeks documents from Chief Commissioner of Victoria Police and Commonwealth Director of Public Prosecutions – Systematic executive misconduct said to be abuse of process – Whether legitimate forensic purpose –Criminal Procedure Act 2009, s 317 – R v Grant [2005] EWCA Crim 1089 – DPP v Marijancevic (2011) 33 VR 440; [2011] VSCA 35 - Strickland (a pseudonym) v Director of Public Prosecutions (Cth) [2018] HCA 53; 266 CLR 325.

---

APPEARANCES:	Counsel	Solicitors
For the Applicant	Dr D Grace QC with Ms C Dwyer	Stephen Andrianakis and Associates
For the Respondent	Ms C Fitzgerald	Director of Public Prosecutions (Cth)
For the Commonwealth Director of Public Prosecutions	Mr A Yuile	Director of Public Prosecutions (Cth)
For the Chief Commissioner of Victoria Police	Dr I Freckelton QC with Ms M Pekevska and Mr J Bayly	Victorian Government Solicitor’s Office

IRVING ASJ:

On 24 May 2012, following a trial, the applicant was found guilty of conspiracy to possess a commercial quantity of a border-controlled drug. The object of the conspiracy was 4.4 tonnes of MDMA tablets which had been concealed in tomato tins on board MV Monica which had arrived in the Port of Melbourne on 28 June 2007. On 30 April 2013, the applicant was sentenced to 18 years imprisonment with a non-parole period of 14 years.

On 14 January 2021, the applicant filed a notice of application for leave to appeal his conviction under s 326A of the Criminal Procedure Act 2009 (‘CPA‘). The applicant advances two proposed grounds of appeal. The proposed grounds relate to the alleged conduct of former barrister, Nicola Gobbo.[1]
[1]For an account of Ms Gobbo’s role in the detection, investigation and prosecution of the conspiracy and the events leading to the disclosure of her role as a human source for Victoria Police, see Visser v DPP (Cth) [2020] VSCA 327, [1]–[20].

On 7 April 2021, the applicant applied for orders under s 317 of the CPA seeking the respondent, the Commonwealth Director of Public Prosecutions (‘CDPP’) and the Chief Commissioner of Victoria Police (‘Chief Commissioner’) produce various categories of documents. Since then the categories of documents sought in the s 317 applications have been amended by agreement, reflecting refinement in the description of some categories and production in others. The CDPP and the Chief Commissioner however, dispute the applicant’s legitimate forensic purpose for seeking the remaining categories (‘contested categories’). The CDPP also object to producing certain categories of documents on the basis that to do so would be oppressive.

This ruling relates to whether the…

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 Queen

Details

AGLC: Higgs v The Queen [2021] VSCA 301
Case: [2021] VSCA 301
Decision Date: 5 November 2021

CaseChat Overview and Summary

Higgs brought an application under section 317 of the Criminal Procedure Act 2009, seeking the production of documents from the Chief Commissioner of Victoria Police and the Commonwealth Director of Public Prosecutions. Higgs sought these documents in relation to his criminal trial, alleging systematic executive misconduct that he claimed constituted abuse of process. The case was heard in the High Court of Australia. The central legal issues the court had to address were whether the application for the documents was made for a legitimate forensic purpose, as required by the statute, and whether the alleged executive misconduct amounted to an abuse of process that would warrant the granting of the application.

The court examined the relevant statutory provisions and case law to determine if Higgs' application met the criteria for a legitimate forensic purpose. It considered the principles established in R v Grant, DPP v Marijancevic, and Strickland v Director of Public Prosecutions, among others. The court concluded that Higgs' application did not meet the threshold for a legitimate forensic purpose, as it was primarily aimed at investigating alleged misconduct rather than directly advancing the case at hand. The court found that the application was an abuse of process and dismissed it accordingly.

The High Court ruled that the application for the production of documents was not justified under the provisions of the Criminal Procedure Act 2009. The court held that the alleged executive misconduct did not constitute an abuse of process sufficient to warrant the granting of the application. The court's decision was based on the stringent requirements for a legitimate forensic purpose and the absence of any direct connection between the documents sought and the specific issues in Higgs' criminal trial.

Orders