SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCR 2021 0009
| JOHN WILLIAM SAMUEL HIGGS | Applicant |
| v | |
| THE QUEEN | Respondent |
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JUDGE: | IRVING ASJ |
WHERE HELD: | MELBOURNE |
DATE OF HEARING: | 6 September 2021 |
DATE OF JUDGMENT: | 5 November 2021 |
MEDIUM NEUTRAL CITATION: | [2021] VSCA 301 |
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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.
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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 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…
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- AGLC
- Higgs v The Queen [2021] VSCA 301
- Case
- [2021] VSCA 301
- Decision Date
CaseChat Overview and Summary
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.
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