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Higgs v The Queen

Higgs v The Queen

Case [2021] VSCA 90 12 April 2021

Appeal

Bail

Exceptional Circumstances

Criminal Law

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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…

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 90
Case: [2021] VSCA 90
Decision Date: 12 April 2021

CaseChat Overview and Summary

Higgs sought to appeal against his conviction and sentence, applying for bail pending the outcome of that appeal. The primary issue before the court was whether exceptional circumstances existed to justify the grant of bail while the appeal was being determined. A secondary issue was whether the prospects of success on appeal were sufficient to warrant bail. The court also had to consider the length of time Higgs had yet to serve before reaching his non-parole period.

The court examined the principles established in previous cases such as Re Zoudi, Cvetanovski, Agresta, Zirilli, and Visser. The applicant's prospects of success on appeal alone were not enough to warrant bail if exceptional circumstances were not present. The court noted that Higgs had a substantial term of imprisonment remaining before reaching his non-parole period, which was a factor against the grant of bail. While the court acknowledged that Higgs had raised arguable grounds for appeal, it found that these were not exceptional circumstances sufficient to warrant bail. The court was also mindful of the need to maintain public confidence in the criminal justice system and the potential risk to the community if bail were granted.

Based on the evidence and legal principles, the court found that exceptional circumstances had not been made out. The arguable grounds for appeal did not sufficiently justify the grant of bail, particularly given the substantial term of imprisonment Higgs still needed to serve. The court followed the decision in Re Zoudi and distinguished the cases of Cvetanovski, Agresta, Zirilli, and Visser, which did not apply to the unique circumstances of this case. Consequently, the application for bail was refused.

The final order of the court was that the application for bail pending the outcome of the appeal was dismissed. Higgs remained in custody pending the determination of his appeal against conviction and sentence.

Orders