Higgs v The Queen
[2021] VSCA 90
•12 April 2021
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCR 2021 0009
| JOHN WILLIAM SAMUEL HIGGS | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | BEACH and EMERTON JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 8 April 2021 |
| DATE OF JUDGMENT: | 12 April 2021 |
| MEDIUM NEUTRAL CITATION: | [2021] VSCA 90 |
| JUDGMENT APPEALED FROM: | [2013] VSC 133 (King J) |
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CRIMINAL LAW – Appeal – Bail – Application for bail pending appeal – Whether exceptional circumstances exist – Prospects of success insufficient to justify grant of bail – Substantial term of imprisonment still to be served before non-parole period expires – Exceptional circumstances not made out – Re Zoudi (2006) 14 VR 580 applied – Cvetanovski v The Queen [2020] VSCA 126 and Agresta v The Queen [2020] VSCA 334 distinguished – Zirilli v The Queen [2020] VSCA 261 and Visser v DPP (Cth) [2020] 327 considered – Application for bail refused.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr D Grace QC with Ms C Dwyer | Stephen Andrianakis & Associates |
| For the Respondent | Mr K T Armstrong with Ms A Martin | Ms A Pavleka, Solicitor for Public Prosecutions (Cth) |
BEACH JA
EMERTON JA:
On 24 May 2012, the applicant was found guilty of conspiracy to possess a border-controlled drug, namely MDMA, in a commercial quantity. On 30 April 2013, he was sentenced to 18 years’ imprisonment, with a non-parole period of 14 years.[1] Pursuant to s 18(1) of the Sentencing Act 1991, the sentencing judge declared that the applicant had already served 394 days of imprisonment under this sentence.
[1]DPP v Karam [2013] VSC 133.
On 26 August 2015, the applicant’s applications for leave to appeal against conviction and sentence were refused.[2] On 14 October 2016, the High Court refused the applicant’s application 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, pursuant to s 326A of the Criminal Procedure Act 2009, the applicant filed a notice of application for leave to appeal against his conviction. In his notice of application for leave to appeal, the applicant advances two proposed grounds of appeal. The proposed grounds of appeal relate to the alleged conduct of the former barrister, Nicola Gobbo. Specifically, the grounds provide:
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 the same day as he filed his application for leave to appeal, the applicant filed a written case in support of that application, together with an affidavit sworn by him, an affidavit affirmed by his son (Luke Benjamin Higgs) and an affidavit sworn by his solicitor (Stephen Andrianakis).
On 12 March 2021, the applicant filed an application for bail, supported by a second affidavit affirmed by his son and a second affidavit sworn by his solicitor.
Applicant’s submissions
The applicant accepts that he must show exceptional circumstances in order to be granted bail.[4] In written submissions in support of his application for bail, the applicant identifies the following matters which, in combination, he submits demonstrate exceptional circumstances:
[4]Re Zoudi (2006) 14 VR 580, 588–9 [28] (Maxwell P, Buchanan, Nettle, Neave and Redlich JJA) (‘Zoudi’).
•the applicant’s prospects of success on his application for leave to appeal and consequential appeal;
•the likely delay in the hearing of this matter and ‘the consequences that will flow for the applicant’;
•the applicant’s age and ill-health;
•the availability of very substantial family support;
•the applicant’s willingness to observe very stringent bail conditions;
•the applicant’s previous observance of strict conditions of release; and
•the availability of a substantial surety.
In his written submissions, the applicant submitted that his prospects for success ‘are sufficiently strong so as to be considered as a highly relevant factor in meeting the test for bail’. In oral argument, the applicant contended that his prospects of success on appeal are strong, and that there is particular strength in ground 1. The applicant relied upon a number of documents which he contended showed that there was, at least, an informal retainer between himself and Ms Gobbo; as well as other documents which he contended showed that Ms Gobbo had, at various points in time, given information to her handlers, about the applicant.
The applicant submitted that if it is established that Ms Gobbo informed on him while being retained (formally or informally) to act on his behalf, then this would engage what the High Court said in AB v CD,[5] as follows:
Here the situation is very different, if not unique, and it is greatly to be hoped that it will never be repeated. [Ms Gobbo’s] actions in purporting to act as counsel for the Convicted Persons while covertly informing against them were fundamental and appalling breaches of [her] obligations as counsel to her clients and of [her] duties to the court. Likewise, Victoria Police were guilty of reprehensible conduct in knowingly encouraging [Ms Gobbo] to do as she did and were involved in sanctioning atrocious breaches of the sworn duty of every police officer to discharge all duties imposed on them faithfully and according to law without favour or affection, malice or ill-will. As a result, the prosecution of each Convicted Person was corrupted in a manner which debased fundamental premises of the criminal justice system. It follows, as Ginnane J and the Court of Appeal held, that the public interest favouring disclosure is compelling: the maintenance of the integrity of the criminal justice system demands that the information be disclosed and that the propriety of each Convicted Person's conviction be re-examined in light of the information. The public interest in preserving [Ms Gobbo’s] anonymity must be subordinated to the integrity of the criminal justice system.[6]
[5][2018] HCA 58; (2018) 93 ALJR 59 (‘AB v CD’).
[6]Ibid 62 [10] (citation omitted).
Counsel for the applicant also relied upon this Court’s decisions in Orman v The Queen[7] and Mokbel v Director of Public Prosecutions (Cth),[8] in which appeals were allowed because of the conduct of Ms Gobbo as described by the High Court and in those decisions.
[7][2019] VSCA 163 (‘Orman’).
[8][2020] VSCA 325 (‘Mokbel’).
With respect to the proportion of the applicant’s non-parole period which he has now served, the applicant submitted that, on the authority of Zoudi,[9] bail should now be granted. The applicant relied upon the following passage of Zoudi:
The fundamental principle, as Winneke P said in Ratcliffe and Lynch, is one of fairness. As his Honour said:
[I]t would be unfair for an applicant to be disadvantaged by the inability to have his appeal heard either before the expiry of his sentence or before the expiration of a substantial part of the custodial portion of the sentence.
The rule of law requires that like cases be treated alike. What matters is the date on which, as a matter of practical reality, the applicant for bail will be released from custody. As the figures show, in most cases the non-parole period is the custodial portion of the sentence. In the ordinary case, therefore, the expiry of the non-parole period should be treated in exactly the same way as the expiry of the non-suspended portion of a suspended sentence and the expiry of that part of a sentence which is directed to be served before release on recognisance. Of course, if the court forms the view, based on evidence relating to the applicant, that he/she is unlikely to be released on parole on the expiry of the non-parole period, the time lapse argument will not be relevant.[10]
[9](2006) 14 VR 580.
[10]Ibid 587–8 [25]–[26].
The applicant submitted that a substantial part of his non-parole period has now expired and, it being unfair for him to be disadvantaged by the inability to have his appeal heard earlier, bail should now be granted.
In relation to delay, the applicant submitted that there had been significant delay in the progress of this matter, caused by the prosecution’s failure to provide appropriate disclosure during the two years prior to the filing of the present application for leave to appeal.
Specifically, the applicant first requested disclosure from the Commonwealth Director of Public Prosecutions (‘the CDPP’) and other agencies in December 2018. Disclosure is not yet complete. The applicant submitted that further disclosure is likely to make his case stronger. The applicant contended that the benefit which will flow to him, if he were to succeed on appeal, will diminish over time: first, because he will have served a larger portion of his non-parole period; and secondly, because his capacity to benefit from release will lessen with each year given his age and health issues.
As to the applicant’s personal circumstances, emphasis was placed on the fact that he is 74 years of age and has ‘significant health complications’ as identified in the affidavit material.
Additionally, the applicant relied upon the fact that he has ’significant family support’ — his son Luke having offered to house the applicant ‘in an appropriate and pro-social household’.
With respect to the applicant’s bail history and willingness to observe strict conditions and a surety, the applicant submitted that his ‘faultless compliance with orders for conditional release’ as disclosed in the affidavit material is significant. Moreover, the applicant’s family have expressed their confidence in the applicant abiding by any conditions imposed in their willingness to offer sureties across two properties totalling more than $1.2 million. As the applicant has deposed, he understands that two households within his family would be homeless if his conduct on bail caused the surety to be forfeited.
Finally, the applicant contended that, in combination, his advanced age, health concerns, faultless past compliance with supervisory orders, significant family support, and the offer of a substantial surety, demonstrate that he is not an unacceptable risk,[11] were he to be granted bail. It was submitted that this was an additional matter to be taken into account, and told in favour of a grant of bail.
[11]See s 4E(1) of the Bail Act 1977 (‘the Act’).
The respondent’s material and contentions
In opposition to the application for bail, the respondent relied upon three affidavits, being:
•an affidavit affirmed by Alexandra Reid, an employee of the CDPP;
•an affidavit sworn by Federal Agent Sarah Brener of the Australian Federal Police; and
•an affidavit sworn by Jennifer Hosking, the Assistant Commissioner, Sentence Management Division, Corrections Victoria.
The respondent relied upon these affidavits for the purposes of putting in issue any suggestion that Ms Gobbo acted for the applicant in relation to his convictions; disputing the proposition that particular information provided by Ms Gobbo was essential for the purpose of obtaining particular warrants; establishing that any delay that might be caused by the applicant’s applications for disclosure would (having regard to the previous histories of similar applications) be likely to be of the order of 6 to 10 months, rather than a period of years; and establishing that the applicant’s medical conditions could be, and were being, appropriately managed in custody.
The respondent does not accept that the applicant was denied independent legal counsel, and does not concede that Ms Gobbo acted as the applicant’s legal practitioner at any time relevant to his current convictions. Records held by the respondent show that the applicant was legally represented by a number of legal practitioners, including experienced counsel, throughout his prosecution, and that Ms Gobbo did not appear for him. Further, the allegation that the CDPP became aware of certain facts as a result of information supplied by Ms Gobbo to Victoria Police is also disputed.
As to the applicant’s health, medical conditions and treatment, the respondent submitted that there was no evidence that the applicant’s medical conditions were not being, and could not continue to be, treated and managed appropriately in custody.
In summary, the respondent contended that the applicant had not demonstrated exceptional circumstances justifying a grant of bail, because:
(1)His substantive appeals will be heard well before the expiry of the non-parole period, which is not due to expire until 23 March 2026;
(2)He has ‘not demonstrated strong prospects of success on his conviction appeal’; and
(3)The other matters relied on by him (age and ill-health, family support, proposed bail conditions, previous observance of court conditions and the availability of a substantial surety) ‘do not constitute exceptional circumstances, whether alone or in combination with each other and any of the above matters’.
Consideration
It is well settled that bail pending appeal will only be granted in exceptional circumstances.[12] ‘Exceptional circumstances’ means circumstances which are ‘truly exceptional’.[13]
[12]Zoudi (2006) 14 VR 580, 588–9 [28]; Cvetanovski v The Queen [2020] VSCA 126, [2] (‘Cvetanovski’); Zirilli v The Queen [2020] VSCA 261, [2] (‘Zirilli’); Agresta v The Queen [2020] VSCA 334, [2] (‘Agresta’).
[13]Zoudi (2006) 14 VR 580, 589 [28(5)].
In the present case, the applicant still has years to serve before his non-parole period expires. In this respect, his position may be contrasted with the cases of Cvetanovski and Agresta where bail was granted because, in each case, there was a real risk that the applicant’s appeal would be rendered nugatory by the expiration of the relevant non-parole period, were bail not granted.
As to the applicant’s prospects of success on his application for leave to appeal, and on any appeal subsequent thereto, it 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[14] and Mokbel.[15]
[14][2019] VSCA 163, [8].
[15][2020] VSCA 325, [6].
It is neither possible nor appropriate, on this application, for this Court to attempt to resolve the various factual matters that are in dispute between the parties. 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)[16] shows, some of the matters sought to be agitated by the applicant in the present case may not necessarily be determined in his favour.[17]
[16][2020] VSCA 327 (‘Visser’).
[17]For example, as to the applicant’s reliance (in his written case on the application for leave to appeal) upon Ms Gobbo’s provision of the bill of lading, see Visser at [116]–[129].
In Visser, this Court dismissed an appeal, based on a petition of mercy, in which the appellant sought to overturn his conviction for conspiracy to possess the drugs the subject of the applicant’s conviction in the present case. While the appellant’s grounds of appeal in Visser included matters relating to the conduct of Ms Gobbo, it was no part of Mr Visser’s case that Ms Gobbo had ever acted for him. Counsel for the applicant sought to distinguish Visser on this basis. While the arguments in Visser were necessarily different from the arguments upon which the applicant placed emphasis in the present application, it seems to us that the analysis in Visser is capable of informing, at least to some extent, the potential strength of some of the arguments underlying the applicant’s proposed grounds of appeal.
With respect to the applicant’s argument that he has now served a substantial part of his non-parole period and therefore, on the authority of Zoudi, should be granted bail, we disagree. 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. What can be said, however, is the larger the amount of time still to be served, the greater the prospects of success will need to be before it might be said that exceptional circumstances exist justifying a grant of bail.
In our view, the applicant has not shown exceptional circumstances justifying a grant of bail. While the applicant might succeed on appeal, on the material as it presently stands we are not persuaded that his prospects of success are of sufficient strength to justify his release on bail while he still has years 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. To the contrary, there is in our view nothing that could be described as ‘truly exceptional’ in the present case.
In summary, the applicant has an application for leave to appeal which raises grounds which we are prepared to accept are at least arguable. However, he currently has a number of years to serve before his non-parole period expires. His application for leave to appeal (and any appeal consequential thereto) will likely be heard a number of years before his non-parole period expires. In this regard, his position is not very different from many applicants for leave to appeal in this Court. The circumstances of his case cannot be described as exceptional — much less, truly exceptional.
Conclusion
The applicant’s application for bail must be refused.
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