Proceedings instituted by Mr Potier relating to the criminal proceedings against him
81Mr Potier was arrested for the first two counts of soliciting to murder on 9 May 2000. The committal proceedings in respect of those charges were heard in the Local Court at Burwood on 2 November 2000. Mr Potier was legally represented in those proceedings. His lawyer made an application for a direction from the magistrate to call and cross-examine eight of the prosecution witnesses. The application was opposed by the Crown and evidently argued at some length. After a short break in the proceedings, the learned magistrate gave his decision refusing to give the direction sought. At the conclusion of the committal proceedings, the magistrate committed Mr Potier for trial.
82Within two weeks after that date, the Crown Prosecutor found a bill of indictment against Mr Potier for the two offences. Five months later, Mr Potier filed an application for judicial review of the magistrate's decision refusing to give the direction that the witnesses be called and cross-examined. That is the first proceeding relating to the criminal proceedings relied upon by the Attorney General as vexatious.
83The application was determined by O'Keefe J: Potier v DPP [2001] NSWSC 514; (2001) 123 A Crim R 176 (pages 77 to 83 of exhibit A). Mr Potier sought orders in the nature of a prerogative writ. The test to be applied by the magistrate in determining whether to give the direction sought required either "special reasons why, in the interests of justice, the witness should attend to give oral evidence" (in the case of a victim) or "substantial reason why, in the interests of justice, the witness should attend to give oral evidence" (in the case of a witness other than a victim) (at [9]).
84O'Keefe J held (at [30]):
The determination by the magistrate did not in my opinion fall within the ambit of a decision which amounted to a non-performance, actual or constructive, of the duty to consider and determine which is inherent in section 48E. He applied the words of the statute to the facts before him, adopted the test in the authorities apparently agreed by the parties and came to his conclusion.
85O'Keefe J further noted that the relief sought by Mr Potier was discretionary. His Honour indicated that, even if the basis for the relief sought were established, he would not have exercised his discretion to grant it, largely for the reasons identified on behalf of the Director of Public Prosecutions. They were that the delay between the decision and the application for review was unexplained; that to grant the relief sought would intervene in the criminal justice process, contrary to the traditional disinclination of superior courts to do so; that it would be likely to result in another trial date's being aborted where two earlier dates for trial had already been vacated; that to remit the matter to the magistrate would serve no real function, since his Honour had already determined to commit Mr Potier for trial and that any contrary determination would be of no effect since the Crown had found a bill of indictment; the fact that the committal proceeding was at an end, having concluded with the magistrate's executive act of committing Mr Potier for trial and finally the fact that any prejudice could be addressed by seeking a Basha inquiry which would enable Mr Potier to cross-examine the relevant witnesses in the absence of the jury (named after the decision in Basha v R (1989) 39 A Crim R 337).
86The force of those considerations was overwhelming. I accept the submission on behalf of the Attorney General that the application was instituted without reasonable ground and that the proceedings were vexatious within the meaning of the Vexatious Proceedings Act.
87Before turning to the remaining applications relating to the criminal proceedings relied upon by the Attorney General in support of the present application, it may be helpful to explain the Crown case put against Mr Potier in support of the two charges of soliciting to murder. As already noted, the charges were based, in part, on conversations alleged to have taken place between Mr Potier and the woman he had met at an Internet café in Melbourne (I will refer to her as the witness) and also on conversations between Mr Potier and an undercover policeman.
88At Mr Potier's trial, the Crown brought forward tapes which were alleged to be recordings of those conversations. Mr Potier's defence included the contention that those recordings had been altered and that he had not said the things played to the Court in the way in which they had been presented to the Court. He contended that the recordings had been created by persons unknown. All of the impugned recordings were played to the jury.
89Mr Potier maintains that police obtained a "web trace" of the telephone of the witness. He further contends, in short, that information concerning the web trace was not made available to the defence until close to the end of his trial and that the information provided at that late stage supports his contention that the evidence of tape recordings relied upon by the Crown was not reliable. Specifically, Mr Potier contends that a number of the calls allegedly made to the witness do not appear on the web trace (and so could not have been made by him). He further alleges that there are calls which do appear on the web trace but which were not transcribed or submitted into evidence at his trial, suggesting selectivity in the presentation of the Crown case.
90Mr Potier further maintains that, while he was in detention at Villawood, he had access to only three individual pay phones. He says that web traces for those three pay phones show that he did not contact the witness at the times or for the duration claimed by the informant, Detective Laidlaw. Specifically, he says that the five calls absent from the witness's web trace are also absent from the web traces on the pay phones, which I understand he would say confirms his contention that those phone calls were never made.
91Mr Potier does not appear to allege that he did not contact the witness by telephone at all during the critical period at Villawood (2 May 2000 to 8 May 2000). Rather, his contention is that the web trace records, to which he did not have access until shortly towards the end of his trial, corroborate his contention that the alleged recordings were altered and were unreliable (I note that there is reference in one of the judgments of the Court of Criminal Appeal to his having spoken to the witness at some point using the telephone of another inmate - if that is right, it may provide an explanation for at least some of the alleged anomalies in the web trace that does not appear to be grappled with in Mr Potier's account of events: see R v Potier [2004] NSWCCA 136 at [24].
92Mr Potier was arraigned on the indictment alleging the first two offences of soliciting to murder on 19 September 2001 in the District Court. On that date, he sought rulings from the trial judge to have the evidence of the undercover policeman excluded at the trial on the basis that it was unlawfully or improperly obtained. The judge gave rulings indicating that he intended to allow the evidence to be introduced before the jury at the trial.
93Mr Potier made an application to Court of Criminal Appeal pursuant to s 5F of the Criminal Appeal Act 1912 challenging those rulings. That is the next vexatious proceeding relied upon by the Attorney General in the present application.
94The application was determined on 5 October 2001: R v Potier [2001] NSWCCA 404 (pages 84 to 87 of exhibit A). Mr Potier required leave to bring the application. The court noted that the rulings under challenge were rulings as to evidence and that, in accordance with well-settled authority, such rulings do not enliven the jurisdiction under s 5F. The court accordingly refused leave to appeal: at [17] per Studdert J; Wood CJ at CL and Bell J agreeing at [18] and [19] respectively.
95I accept, as submitted on behalf the Attorney General, that the application was instituted without reasonable ground and was accordingly vexatious as that term is defined in the Vexatious Proceedings Act.
96On 16 October 2001 Mr Potier was convicted on both counts on the indictment. Since that date, his entitlement to commence civil proceedings has been governed by the Felons (Civil Proceedings) Act, which imposes a requirement for leave to institute any civil proceedings. However, whether due to oversight or otherwise, that point was not taken against Mr Potier in a number of proceedings he instituted after that time.
97On 2 April 2002 Mr Potier was charged with a further offence of soliciting to murder relating to his ex de facto wife (to which I will refer as "the third charge"). The third charge was alleged to have been committed between 1 January and 8 February 2002. The Crown alleged that, during his trial for the first two counts, Mr Potier befriended another inmate in a prison van travelling between Court and gaol. The Crown case was that Mr Potier sought the prisoner's opinion as to his prospects of appeal and his likely sentence. The prisoner later reported that Mr Potier had said that the only solution to avoid a lengthy gaol sentence and to obtain custody of the child was to eliminate his former de facto. Further discussions were recorded by means of a listening device installed in the prisoner's cell.
98On 10 May 2002 Mr Potier was sentenced for the first two charges to concurrent sentences of imprisonment for 6 years and 8 months commencing on 8 May 2000 with a non-parole period of five years.
99The next proceeding relied upon by the Attorney General as vexatious is an application in the Supreme Court determined by Bell J on 25 June 2004 in Potier v Magistrate Maughan [2004] NSWSC 590 (pages 88 to 96 of exhibit A). The Felons (Civil Proceedings) Act was not raised in those proceedings.
100In July 2003 Mr Potier had attempted to commence criminal proceedings against Detective David Laidlaw, the informant in the criminal proceedings against him. In a statement of facts evidently prepared by himself, Mr Potier alleged that Detective Laidlaw had deliberately withheld information concerning the web trace until the penultimate day of the Crown case at the trial. Mr Potier alleged that, in doing so, Detective Laidlaw had committed an offence of attempting to pervert the course of justice contrary to s 319 of the Crimes Act 1900.
101A deputy registrar in the Local Court refused to sign the statement of facts as a court attendance notice. The reason recorded for the refusal was that the deputy registrar was of the opinion that the proceedings were frivolous, vexatious, without substance or had no reasonable prospect of success. Mr Potier applied for a review of that decision by a magistrate (the appropriateness of that course does not appear to have been in issue: but cf Potier v Magistrate O'Shane & Anor [2008] NSWSC 141 considered below). The magistrate also refused to issue the court attendance notice. Mr Potier then filed a summons in the Supreme Court seeking an order that the magistrate be directed to issue the court attendance notice or, in the alternative, that the Supreme Court issue the notice. Mr Potier clarified during argument that the application in the Supreme Court was not an appeal but sought relief in the nature of the prerogative writs in accordance with s 69 of the Supreme Court Act 1970.
102The procedure for a private informant to commence proceedings alleging the commission of an indictable offence had changed during Mr Potier's attempts to commence proceedings against Detective Laidlaw. Under the old procedure the requirement was for the informant to lay an information before a justice in accordance with the provisions of s 22 of the Justices Act 1902. Mr Potier conceded during argument before Bell J that the evidence fell short of establishing that he had succeeded in transmitting any such document to the chamber magistrate or registrar of the Court (at [21]).
103The principal issue determined by Bell J related to the new procedure, which required the private informant to issue a court attendance notice which then had to be signed by a registrar of the court. The Local Courts (Criminal and Applications Procedure) Rule 2003 (now repealed) required the registrar not to sign a court attendance notice if he or she was of the opinion that the proceedings were frivolous, vexatious, without substance or had no reasonable prospects of success (clause 57).
104Mr Potier's document was placed before the registrar after the commencement of the new scheme. As already noted, the registrar formed the relevant opinion and accordingly was required not to sign the court attendance notice. The application determined by the magistrate sought a review of that decision in accordance with the provisions of clause 61 of the Local Courts (Criminal and Applications Procedure) Rule 2003. The nature of such a review is not addressed in either the magistrate's reasons or in the judgment of Bell J. As with the previous matter, the appropriateness of seeking a review under that rule does not appear to have been in issue: but cf Potier v Magistrate O'Shane & Anor considered below.
105In his reasons for refusing to issue the court attendance notice, the magistrate said:
The two issues that are raised by the facts that you put before the registrar and now the Court are firstly, the admissibility or otherwise of evidence in the criminal trial, and that has been had. And secondly, the veracity or otherwise of that conviction. These are not matters in my view which would substantiate the issue of a court attendance notice ... to bring the person Laidlaw before the court to answer the charge. In my view the application is vexatious and certainly would have no reasonable prospect of success if brought before the Court.
106Bell J was not satisfied that those remarks revealed that the magistrate had misunderstood the nature of his jurisdiction in any of the ways identified in the decision of the Court of Appeal in Saffron v DPP (1989) 16 NSWLR 397. Accordingly, her Honour held that Mr Potier had not made good the claim for relief in the nature of mandamus, certiorari or otherwise.
107The Attorney-General submits that the proceedings in the Supreme Court were vexatious within the meaning of sections 6(b) and 6(d) in that they were instituted or conducted to harass or annoy Detective Laidlaw. Whilst the proceedings may have been misconceived or without substance, I do not think I can conclude on the strength of the limited evidence before me that that is the case.
108Alternatively, the Attorney General submits that the proceedings were vexatious within the meaning of s 6(c) in that they were instituted without reasonable ground. Having regard to the way in which the material relied upon on behalf of the Attorney General was presented (the proof of each "proceedings" consisting in a copy of the judgment determining the relevant application), it is not entirely clear whether the contention was that the underlying application to have a court attendance notice against Detective Laidlaw was without reasonable ground or, alternatively, whether the submission relates to the application in the Supreme Court for relief in the nature of the prerogative writs. A consideration of the statement of facts relied upon by Mr Potier in support of the issue of a court attendance notice (which is set out in full at [4] at the judgment of Bell J), reveals that the material relied upon by Mr Potier lacked any reasonable ground for the contention that Detective Laidlaw had any intention to pervert the course of justice. On that basis, I would accept that the underlying application to have a court attendance notice issued was without reasonable ground but I do not think such an application constitutes "proceedings" within the meaning of s 4 of the Vexatious Proceedings Act.
109The application determined by Bell J was unsuccessful but, as already noted, it does not necessarily follow that it was without reasonable ground. The issue in that application was whether the magistrate applied a wrong test, misconceived his duty, did not apply himself to the question which the law prescribed or misunderstood the nature of the opinion he had to form. Bell J was not satisfied that he did. However, having considered the terms in which his Honour expressed his reasons (set out at [105] above), I am not persuaded that the matter was unarguable.
110Although the magistrate expressed his conclusion in the terms of clause 57 of the Local Courts (Criminal and Applications Procedure) Rule (concluding that the application was vexatious and would have no reasonable prospect of success), his Honour's opinion appears (according to the stated reasons) to have been directed to the issue whether the conviction of Mr Potier should stand, whereas Mr Potier's application required attention to be directed to the unrelated issue whether there was a basis for contending that Detective Laidlaw had committed an offence. Accordingly, in my view, there was a respectable basis for putting the argument rejected by Bell J. I am not persuaded that the proceedings in the Supreme Court were vexatious within the meaning of the Act.
111The next vexatious proceeding relied upon by the Attorney General relates to a similar round of events arising from Mr Potier's attempt to commence criminal proceedings against the Crown Prosecutor who appeared at his trial and the solicitor who instructed the Crown. As in the case of Detective Laidlaw, Mr Potier sought the issue of a court attendance notice. That was refused by a registrar. An application for a review of that decision by a magistrate was also refused. Mr Potier then brought an application in the Supreme Court for prerogative relief against the magistrate. The application was determined by Kirby J on 12 August 2004: Potier v Huber [2004] NSWSC 720; (2004) 148 A Crim R 399 (pages 97 to 107 of exhibit A). The Felons (Civil Proceedings) Act was not raised in those proceedings.
112The application to the registrar sought the issue court attendance notices against the prosecutor and his instructing solicitor in respect of an alleged offence of concealing evidence contrary to s 317 of the Crimes Act 1900. The fact sheet prepared in support of the alleged offence contended that the witness in the trial (the Internet café proprietor) had provided a statement to the prosecutor and the solicitor disclosing that she had a close ongoing friendship with a detective in the Australian Federal Police to whom she had spoken regularly during her dealings with Mr Potier. The statement was obtained following a meeting with the prosecutor on 31 July 2001 but was not prepared until 10 September 2001. It was given to the defence on 12 September 2001.
113Mr Potier alleges that the AFP officer would have been important witness who could corroborate or contradict the contested evidence of the witness as to conversations she alleges she had with Mr Potier before police began recording their exchanges. The statement of facts alleged that the prosecutor and the solicitor deliberately suppressed and withheld all details of the potential witness (named Draffin) from 31 July until 10 September 2001.
114The reasons of the magistrate who refused the review of the registrar's decision concluded as follows (emphasis added):
The facts sheets disclose allegations which may, indeed, found the basis for an appeal and I note what has been put by Mr Potier in his submissions that it is not for me to have regard to any exercise of discretion with respect to any judicial act, that I am not to turn my mind in essence to anything other than to be a clearing house, but it is quite clear that I must be satisfied that there is some substance and that there is a prospect of success and I am not satisfied and the application is refused.
115Mr Potier was represented by a barrister in the proceedings before Kirby J. The first point argued was that the learned magistrate mistook the nature of her function. Specifically, the barrister relied on authority for the proposition that, under the Justices Act 1902, the role of the Justice of the Peace did not involve any exercise of discretion. The Justice of the Peace was not to concern himself with the merits of the complaint. Kirby J held that, following the introduction of the new regime for private prosecutions, the function of the registrar was quite different. His Honour held that the magistrate reviewing the registrar's decision was obliged to address the question of merit (taking "the case" at its highest) to determine whether it was without substance and whether there were reasonable prospects of success.
116The second ground argued was that the magistrate asked herself the wrong question when she stated "I must be satisfied that there is some substance and that there is a prospect of success". Counsel for the defendants acknowledged that her Honour had not formulated the test in the words of rule 57, but submitted that she had in substance addressed the correct test. Kirby J accepted that argument.
117Finally, counsel for Mr Potier submitted that there was a constructive failure to exercise jurisdiction in that there was no evidence capable of satisfying the test in rule 57 (which prohibits the registrar from signing a court attendance notice if of the opinion that the proceedings are frivolous, vexatious, without substance or have no reasonable prospects of success). Kirby J held that there was material before the magistrate on the basis of which she could have formed that opinion. However, as already noted, it does not follow that the argument put forward on behalf of Mr Potier was without reasonable ground. Particularly noting that it was conceded on behalf of the defendants that the magistrate had not formulated the test in the terms of the rule, I am not persuaded that the application determined by Kirby J was brought without reasonable ground or was otherwise a vexatious proceeding within the meaning of the Act. In reaching that conclusion, as with the attempt to prosecute Detective Laidlaw, I am not expressing any view as to the proposed charges but only as to the merits of the application for prerogative relief, which was concerned exclusively with the magistrate's discharge of her function.
118On 25 August 2004, the Court or Criminal Appeal determined the appeals arising from Mr Potier's conviction and sentence for the first two charges of soliciting to murder: R v Potier [2004] NSWCCA 136 (pages 108 to 122 of exhibit A). The Attorney General does not rely upon the appeals instituted by Mr Potier as vexatious proceedings in the present application. The Court refused Mr Potier's application for leave to appeal against the severity of the sentences imposed. The Court allowed a Crown appeal against the leniency of those sentences and imposed, instead, the following sentences:
In relation to count 2, a term of imprisonment for 6 years and 8 months commencing on 8 May 2000 with a non-parole period of 5 years;
In relation to count 1, a term of imprisonment for 6 years and 8 months commencing on 8 May 2002 with a non-parole period of 4 years and 3 months.
119The principal difference in the sentences imposed by the Court of Criminal Appeal was to accumulate the terms imposed for the two separate offences by two years. Mr Potier had also filed a conviction appeal but was not in a position to pursue that appeal at that stage. The Court determined that it should be struck out of the list subject to its being restored in the event of the Court being satisfied that it was ready to proceed.
120Following the determination of the appeals against sentence, but before seeking to have his conviction appeal re-listed in the Court of Criminal Appeal, Mr Potier made an application to the New South Wales Court of Appeal for prerogative relief seeking to have his convictions quashed on the basis that his trial constituted a denial of natural justice and so rendered the trial a nullity as being in excess of jurisdiction. The basis for that contention was, again, the complaint that police and the prosecution were in possession of information relevant to the issues at the trial but withheld or failed to disclose that information to him.
121The application in the Court of Appeal was determined on 26 August 2004: Potier v District Court of New South Wales [2004] NSWCA 303 (pages 123 to 125 of exhibit A). It is not clear whether the Felons (Civil Proceedings) Act was raised by the defendant in those proceedings. The requirement for leave was noted by the Court but not determined.
122The Court noted that there were other impediments to the application including the fact that the relief sought was discretionary and that Mr Potier's appeal against his convictions was still pending in the Court of Criminal Appeal. There was a question as to whether the Court had jurisdiction to grant the relief sought in any event. The Court dismissed the application.
123I accept, as submitted on behalf of the Attorney General, that the application was brought without reasonable ground and amounted to an abuse of process in circumstances where Mr Potier's appeal against conviction was pending in the Court of Criminal Appeal. On that basis, I am satisfied that the proceeding was a vexatious proceeding within the meaning of the Vexatious Proceedings Act.
124In September 2004, Mr Potier applied for bail in respect of the third charge (and that charge only). He was at that time serving the terms of imprisonment imposed following his conviction on the first two charges. The application for bail was refused by a magistrate on 13 September 2004.
125On 1 March 2005, Johnson J determined an application by Mr Potier in the Court of Criminal Appeal in respect of the production of documents by Detective Laidlaw (unreported, pages 126 to 130 of exhibit A). Although the application was unsuccessful, it is not relied upon by the Attorney General as a vexatious proceeding.
126Mr Potier then made an application to the Supreme Court for an order of certiorari, contending that he had been denied procedural fairness in the hearing of the bail application. The application was determined by Simpson J on 25 November 2004: Potier v Magistrate Moore [2004] NSWSC 1131 (pages 171 to 177 of exhibit A). That is the next proceeding relied upon by the Attorney General as vexatious.
127That appears to be the first occasion on which the requirement for leave under the Felons (Civil Proceedings) Act was raised and determined against Mr Potier. Simpson J held that even if the proceedings had been properly instituted in accordance with that Act, they would constitute an abuse of process. The basis for that conclusion was, in short, that the application was premised on the alleged failure of the Local Court to exercise its jurisdiction to grant bail in relation to the two charges in respect of which convictions had been entered and an appeal was pending in the Court of Criminal Appeal, whereas Mr Potier had made no application for bail in respect of those charges. I would respectfully accept the conclusion reached by Simpson J that the proceedings, if properly instituted, would have constituted an abuse of process. On that basis, I am satisfied that the proceedings were vexatious within the meaning of the Vexatious Proceedings Act.
128On 11 January 2005, Mr Potier was committed for trial in respect of the third charge of soliciting to murder. He then instituted proceedings in the Supreme Court seeking leave to appeal against orders made in the committal proceedings and seeking prerogative relief in respect of those proceedings. Leave under s 4 of the Felons (Civil Proceedings) Act to institute those proceedings was granted by McDougall J on 27 January 2005 (in an ex parte application brought during the Court vacation).
129The substantive application was determined by Johnson J on 13 April 2005: Potier v Magistrate Maloney & Ors [2005] NSWSC 336 (pages 178 to 190 of exhibit A). Mr Potier alleged that the magistrate had fallen into error in three respects. His arguments, and Johnson J's analysis of them, are set out in detail in the judgment at [52] to [67]. I do not think it is necessary for present purposes to descend into the detail of those arguments. The application was ultimately rejected for substantially the same reasons as those identified by O'Keefe in rejecting Mr Potier's challenge to his committal for trial in respect of the first two charges. In particular, Johnson J noted, as O'Keefe J had, that the fact that a bill of indictment had been found following the committal by the magistrate weighed against the grant of the discretionary relief sought (at [68]).
130In submitting that the application was vexatious, the Attorney General relied upon the fact that Johnson J noted that a magistrate's decision to commit for trial is purely executive and is not amenable to correction by the Supreme Court in the exercise of its supervisory jurisdiction by way of certiorari (at [43]). Noting that O'Keefe J had made the same point in relation to the challenge to the previous committal, the Attorney General submitted that the application determined by Johnson J was an abuse of process since it was an attempt to re-litigate an issue already tried. In light of the fact that other forms of relief were sought by Mr Potier, the whole of the proceeding cannot be characterised in that way. However, having regard to the strong discretionary factors against granting the relief sought, I would accept that the proceedings were instituted without reasonable ground and are accordingly vexatious within the meaning of the Act.
131The next proceeding relied upon by the Attorney General as vexatious is an application for bail made by Mr Potier in the Court of Criminal Appeal. The application was determined on 6 July 2005: R v Potier [2005] NSWCCA 256 (pages 131 to 134 of exhibit A).
132The application was originally constituted as a purported appeal against an earlier decision refusing bail. The decision under appeal was that of Johnson J sitting in the Supreme Court. The Court of Criminal Appeal held that, insofar as the application sought review of that decision pursuant to s 46 of the Bail Act 1978, it was misconceived. However, since a Court had been convened to determine the matter and Mr Potier was before the Court, the Court accepted that it should exercise its jurisdiction to determine an original application for bail pending the hearing of an appeal to the Court under s 30AA of the Bail Act. That section requires an applicant to demonstrate special or exceptional circumstances to justify the grant of bail.
133Mr Potier relied on two matters. The first may be regarded as specious. He argued that the indictment alleged that he had solicited an undercover operative with the assumed name of "M" to murder his former partner, where as the evidence at trial indicated that the actual perpetrator of the intended killing was not "M" but a person referred to as "Jacko". It is clear, however, that "M" was, according to the Crown case, the person Mr Potier solicited to make the relevant arrangements. The form of the indictment said nothing of the strength of the Crown case.
134As to the second point, while the position is not entirely clear from the judgment, it appears that Mr Potier again raised the issue of the alleged withholding of evidence relevant to his challenge to the reliability of the recorded conversations. The Court held that the two grounds relied upon by Mr Potier were "so far short of indicating a high probability of success" that "the barrier provided by s 30AA could not possibly be regarded as overcome". Whilst I have some reluctance in reaching the conclusion that an application for bail can amount to a vexatious proceeding, I would have to accept that those remarks reveal that the application was instituted without reasonable ground, with the result that the application must be regarded as a vexatious proceeding within the meaning of the Vexatious Proceedings Act.
135As at the date of determination of the bail application, Mr Potier's appeal against his convictions for the first two charges of soliciting to murder had been listed for hearing on 30 September 2005. On 16 September 2005 the Court of Criminal Appeal determined an application by Mr Potier that two named persons be required to attend and give evidence at the hearing of that appeal: R v Potier [2005] NSWCCA 336 (pages 135 to 142 of exhibit A). That is the next proceeding relied upon by the Attorney General as vexatious.
136Following Mr Potier's conviction on the first two charges, a book was published called "Secrets of the Jury Room" detailing the author's experiences as a member of a jury in a criminal trial. Mr Potier asserted that the book was written by one of the jurors at his trial, who was a professional journalist. He sought an order that the juror and the Director of Public Prosecutions be required to attend and give evidence at the hearing of his appeal against conviction. The book contained an author's note which stated that the details of the case had been altered and fictionalised, presumably to ensure that the trial in question could not be identified. The determination of Mr Potier's application was nonetheless conducted on the basis that the book had indeed been written about his trial.
137The Attorney General submitted that the proceedings were instituted to harass or annoy the jury member and the DPP. I am not satisfied, on the strength of the limited material before me (which consists only of the judgment), that that is the case.
138The more difficult issue is to determine whether the proceedings were an abuse of process (as being fundamentally without merit) or without reasonable ground. In separate judgments, Buddin J and Basten JA expressed different perceptions as to Mr Potier's basis for wishing to examine the juror. Buddin J thought it was abundantly clear that the matters Mr Potier sought to explore went directly to the deliberations of the jury (at [14]). That was not Basten JA's understanding (at [30]). Simpson J agreed with the reasons given by Buddin J and "largely agreed" with the additional remarks of Basten JA.
139The Court's unanimity in refusing the application was thus evidently confined to the proposition that the juror could give no evidence relevant to Mr Potier's appeal. Mr Potier wished to submit at his appeal that the jury, in its deliberations, placed significant probative value on evidence he said was wrongly admitted. The author's revelation of the jury's deliberations was said to be at odds with the secrecy of those deliberations, which is so jealously guarded at law.
140The Attorney General relied upon the long established practice of courts refusing to receive evidence from former jurors as to their deliberations in the jury room. That was referred to by the Court as "a fundamental problem" confronted by Mr Potier in his application (at [11] per Buddin J; Simpson J agreeing at [37]; in light of the different understandings of the members of the Court explained above, it is not clear to me whether the agreement of Basten JA at [29] is to be understood as having extended to this proposition).
141Apart from the issue of the jury's deliberations, Mr Potier evidently raised an issue as to whether the juror should be questioned about his impartiality in circumstances where he must at some point have made the decision to write a book about his experiences. Mr Potier argued that, if he made that decision before a verdict was reached, it may have fettered his impartiality.
142The Court was not so persuaded and noted that any matter to be investigated as to the conduct of the juror should properly be dealt with by the Sheriff in accordance with the provisions of the Jury Act.
143I have some sympathy for Mr Potier in respect of this particular issue. The publication of the book was an extraordinary event. It must have felt like an important development at a time when Mr Potier was preparing to conduct an appeal based on the alleged wrongful admission of evidence. However, having regard to the principles considered in the judgment, which are well-established, the proper conclusion is that the application was instituted without reasonable ground.
144Mr Potier's appeal against his first two convictions was heard on 30 September 2005 and determined on 17 February 2006: Potier v R [2006] NSWCCA 27 (pages 143 to 160 of exhibit A). The appeal was dismissed. The Attorney General does not rely upon the appeal as a vexatious proceeding.
145Mr Potier's trial on the third charge had been held up abiding the determination of the appeal. The trial commenced before Shadbolt DCJ in August 2006. Mr Potier was initially represented. During the trial, his lawyers sought and obtained leave to withdraw. Mr Potier sought an adjournment to retain new lawyers. The trial judge refused that application. Mr Potier then made an application to the Court of Criminal Appeal under s 5F of the Criminal Appeal Act 1912. That is the next proceeding relied upon by the Attorney General as being vexatious.
146The application was determined on 13 September 2006: Potier v R [2006] NSWCCA 300 (page 191 to 193 of exhibit A). In refusing the adjournment application, Shadbolt DCJ had drawn an inference that Mr Potier was at fault for the departure of his counsel. In the Court of Criminal Appeal, Mr Potier wished to adduce fresh evidence, waiving legal professional privilege, to rebut that inference. The Court did not consider that to be an appropriate procedure. Noting that the fresh evidence could equally be put before the trial judge, and that his Honour's refusal of an adjournment could be relied upon in any subsequent appeal in the event that Mr Potier were convicted, the Court refused leave.
147It does not follow that the application was brought without reasonable ground. The judgment of the Court in refusing leave is extremely brief (as is appropriate in a judgment on a question of leave). The terms of the judgment do not permit me to conclude with any confidence that the application was made without reasonable ground.
148Following the dismissal of his conviction appeal, Mr Potier wished to apply for special leave to appeal to the High Court. The rules of court required that the application be typed and that it be filed in person. A handwritten application forwarded to the High Court registry by Mr Potier was rejected. The Court wrote to Mr Potier explaining that the requirement to have the initiating document filed in person could be met by Mr Potier having someone else file it on his behalf. He nonetheless brought an application in the Supreme Court for the issue of a writ of habeas corpus seeking temporary release from custody so that he could prepare and file the application for special leave in accordance with the rules. That application came before Hidden J.
149A similar application was brought by Mr Potier following his conviction for the third count of soliciting to murder. In that application, Mr Potier sought a writ of habeas corpus to enable him to prepare his appeal to the Court of Criminal Appeal with better facilities and access to his legal team. That application came before Rothman J. Each of those applications is relied upon by the Attorney General as a vexatious proceeding for the purpose of the present application.
150The application heard by Rothman J, although brought second in time, was determined first: Potier v General Manager and Governor, MRRC [2007] NSWSC 1031 (pages 194 to 198 of exhibit A). His Honour noted that the proceedings were civil but does not appear to have been addressed as to the Felons (Civil Proceedings) Act (the coversheet to the judgment suggests that the respondent to the application made no appearance).
151Rothman J explained that the writ of habeas corpus is issued where the executive acts in a manner inconsistent with the liberty of the individual. It is used to bring an individual before a court to assess the lawfulness of his detention and, if considered unlawful, to order his release.
152Rothman J noted that Mr Potier had not submitted that his imprisonment was unlawful. He was imprisoned pursuant to an order of imprisonment following his conviction and sentence for the third offence. To issue the writ would have been inconsistent with the judgment of the Court having jurisdiction to make the order. Accordingly, his Honour dismissed the application.
153Hidden J also dismissed the application based on the need to prepare initiating process in the High Court: Potier v Ruddock & MRRC [2008] NSWSC 153 (pages 161 to 164 of exhibit A). His Honour had the assistance of counsel appearing for the respondent and noted the need for leave under the Felons (Civil Proceedings) Act, which was refused. His Honour noted that binding authority precluded the issue of a writ of habeas corpus in the circumstances relied upon by Mr Potier.
154I accept, as submitted on behalf of the Attorney General, that each of those applications was instituted without reasonable ground and is vexatious within the meaning of the Vexatious Proceedings Act.
155Before the hearing of his appeal against conviction in respect of the first two offences, Mr Potier made a second attempt to have a court attendance notice issued in the Local Court against (now) Superintendent Laidlaw for perverting the course of justice. The application was refused by a registrar. Mr Potier again sought review of that decision by a magistrate. The review application was after the appeal against conviction had been argued but before the determination of the appeal. The magistrate refused the application.
156Mr Potier again sought prerogative relief in respect of the magistrate's decision by application to the Supreme Court. The application was determined by Hidden J on 3 March 2008: Potier v Magistrate O'Shane & Anor [2008] NSWSC 141 (pages 199 to 208 of exhibit A).
157Hidden J noted (at [13]) that, although the matter before the magistrate had been characterised as a review of the decision of the registrar under clause 61 of the Local Courts (Criminal and Applications Procedure) Rule, in truth the jurisdiction exercised by the magistrate was that afforded by s 49(3) of the Criminal Procedure Act 1986, which requires a magistrate to determine whether a court attendance notice should be issued following the refusal of a registrar to do so.
158His Honour undertook a careful analysis as to the nature of the magistrate's decision, concluding that her Honour was exercising an administration function, albeit one to which "a judicial mind" was to be brought (see discussion at [13] to [21]). In fairness to Mr Potier, it may be noted that each of his two previous applications for prerogative relief following the refusal of a magistrate to issue a court attendance notice had been dealt with on the assumption that the jurisdiction exercised by the magistrate was a review of the decision of the registrar. In any event, the consequence of the conclusion reached by Hidden J was that the application before him ultimately fell to be determined according to whether the statement of facts presented by Mr Potier identified any basis for the charge he levelled against Superintendent Laidlaw. His Honour found that it did not, since the charge was premised on the alleged failure to disclose relevant material to the defence. As at the time of Mr Potier's trial in September and October 2001, there was no duty on a police officer to disclose material directly to the defence (at [36] to [37] of the judgment).
159It does not necessarily follow that the application was brought without reasonable ground. As previously noted in respect of the two earlier applications of this kind, I am not concerned with the question whether the underlying allegation against Superintendent Laidlaw as brought without reasonable ground, since I do not think the application for the issue of a court attendance notice is "proceedings" within the meaning of the Vexatious Proceedings Act (cf Hidden J's judgment at [15] to [16]). The "proceedings" with which I am concerned are the proceedings determined by Hidden J. Those proceedings required leave under the Felons (Civil Proceedings) Act. Hidden J thought that it was desirable that the case be determined on its merits, saying "there are questions of substance to be considered". His Honour granted leave under the Act. Mindful of that conclusion, I am not persuaded that the application was brought without reasonable ground.
160Separately, the Attorney General relied upon sections 6(b) and (d), contending that the proceedings were instituted or conducted to harass or annoy Superintendent Laidlaw. It is likely that the proceedings had that effect, but it is important not to confuse effect with purpose. On the strength of the material before me, I cannot be satisfied that that was Mr Potier's purpose in commencing the proceedings.
161Finally, the Attorney General submitted that the proceedings amounted to an abuse of process on the basis that the registrar's record of refusal in respect of the court attendance notice noted "that the application relied on substantially the same material as in the prior two applications". Hidden J's judgment reveals that the registrar's note was wrong in two respects. First, there had not been two prior applications to initiate a private prosecution against Superintendent Laidlaw. There had been only one. Secondly, the second application was not based on substantially the same material as the first. The first was based on an alleged failure to disclose the existence of an allegedly important witness. The second was based on the alleged failure to disclose the evidence concerning the web trace.
162In any event, the "proceedings" with which I am concerned are those determined by Hidden J, which were concerned with the question whether the decision of Magistrate O'Shane was amenable to prerogative relief. The issue determined by Bell J was whether the decision of Magistrate Maughan entailed a constructive failure to exercise jurisdiction. I do not think it can properly be concluded that the application determined by Hidden J sought to re-litigate issues already tried by Bell J.
163Following the refusal by Rothman J and Hidden J to grants writs of habeas corpus, Mr Potier made application directly to the High Court for a writ of habeas corpus, again contending that his custody was thwarting his ability to advance his application for special leave to appeal to that Court. The application was plainly instituted without reasonable ground and, in my view, was vexatious within the meaning of the Vexatious Proceedings Act. It was dismissed by Heydon J: Potier v General Manager Metropolitan Remand and Reception Centre [2009] HCA Trans 35 (pages 165 to 170 of exhibit A) on the basis that the factual premise (that Mr Potier was incapacitated from complying with the rules of court) was not established; that he had not validly invoked the jurisdiction of the Court and that the remedy of habeas corpus, being one available in order to secure the liberty of a person not properly detained, was not available to Mr Potier, who was lawfully detained. The third of those reasons echoed conclusions reached twice before (by Rothman J and Hidden J).
164The next proceedings relied upon by the Attorney General are four applications brought by Mr Potier for leave under the Felons (Civil Proceedings) Act to commence proceedings. The applications were determined by R S Hulme J on 9 March 2010: Potier v Arnott & Ors [2010] NSWSC 144 (pages 209 to 215 of exhibit A).
165His Honour's judgment records that he had, in earlier reasons published in respect of a request for pro bono assistance by Mr Potier, detailed at length the claims which Mr Potier sought to make against the various defendants in the proceedings. That earlier judgment was not placed before me on the present application. The nature of the proceedings sought to be commenced is nonetheless sufficiently clear from the judgment in evidence. The proceedings in respect of which leave was sought were:
(a)a claim against the Legal Aid Commission for its refusal to provide funding to Mr Potier to obtain evidence concerning the telephone calls relied upon by the Crown in respect of his first two convictions;
(b)a claim against the prosecutor in the first trial for allegedly withholding documents;
(c)a claim against the solicitors and counsel who appeared for him in his second trial for withdrawing from representing him during the trial;
(d)a claim against the Commissioner for Corrective Services for impeding him in the exercise of his right to appeal against his convictions.
166For reasons set out in the judgment, Hulme J was satisfied that none of the proposed proceedings had any prima facie ground. His Honour accordingly refused leave in respect of all four claims. I appreciate that the question whether the applications for leave were themselves vexatious is a separate question. I am satisfied that the reasons identified by Hulme J reveal that Mr Potier had no reasonable ground for seeking leave to commence any such proceedings.
167On 29 April 2010 Mr Potier applied by summons for leave to appeal out of time from that judgment. He also sought a direction from the Court for pro bono legal assistance. Those applications were determined by Handley AJA on 31 October 2011: Potier v Arnott [2012] NSWCA 5 (pages 10 to 17 of exhibit B). His Honour granted the extension of time but refused the application for referral for pro bono legal assistance. His Honour said (at [10]):
Since Mr Potier can only appear in person by leave [under the Felons (Civil Proceedings) Act] he might be thought a most appropriate recipient of pro bono assistance. However the Court should only invoke these provisions in proper cases lest unfair burdens be placed on practitioners who have volunteered for the pro bono panel.
168Handley AJA concluded that referral for pro bono assistance would be "a waste of the relevant barrister's time". His Honour gave detailed reasons for reaching that conclusion, to some extent endorsing the reasons of Hulme J for refusing the original application and in some respects qualifying or expanding upon those reasons. It does not follow, however, that the application for referral for pro bono assistance was vexatious. I am not persuaded that it was.
169Having read every judgment in proceedings instituted by Mr Potier that has been placed before me, I have concluded that Mr Potier is well able to articulate propositions that are logically sound or well-founded in common social notions of fairness. Apart from an absence of evidence to support the factual premises of his arguments, his principal difficulty has been that his arguments are often not legally correct. In my view it was appropriate for Mr Potier to seek referral to the pro bono scheme and, upon analysis, equally appropriate for Handley AJA to decline to make the referral. The making of the application, and its resolution, each served the function of the scheme. I do not accept that the application was vexatious. As already noted the application for an extension of time was granted and should accordingly not be considered vexatious.
170The extension of time having been granted, the appeal against Hulme J's decision was ultimately refused, for substantially the same reasons for which Handley AJA had refused to refer Mr Potier for pro bono assistance: see Application of Malcolm Huntley Potier [2012] NSWCA 222 (pages 1 to 10 of exhibit C). Noting that the proceedings were without any prima facie ground, the Court said they were "in a technical sense" an abuse of process: at [34]. I am satisfied that the appeal was also instituted without reasonable ground.
171The next proceeding relied upon by the Attorney General is an interlocutory application made by Mr Potier in his appeal against his conviction for the third offence of soliciting to murder. As already noted, that appeal remains on foot.
172In 2008, an order to produce had been issued to the Commissioner of Police seeking production of the recordings relied upon by the Crown at Mr Potier's first criminal trial. Advances in technology since the time of the trial enabled an additional four recordings to be produced (in addition to those produced at the trial). The Commissioner provided a statement from senior technical officer to explain how the additional recordings had been recovered. Mr Potier applied for leave to cross-examine the officer. He also made a further application for an order requiring the juror from his first trial to attend to give evidence, either in respect of the outstanding conviction appeal or to support an application for bail.
173The applications were determined by R A Hulme J sitting as a single judge of the Court of Criminal Appeal: Potier v R [2010] NSWCCA 231 (pages 216 to 220 of exhibit A). Although by that time the conviction appeal following the first trial had been determined, the issue of the reliability of the recordings of the intercepted conversations remained relevant. That is because, in the second trial, the Crown had relied upon Mr Potier's conduct giving rise to the first trial as tendency and coincidence evidence.
174R A Hulme J accepted that there is occasion where it would be a legitimate forensic exercise for an applicant to cross-examine an appropriate witness on a question whether there has been complete compliance with an order to produce. However, his Honour was not persuaded that there had been anything other than real and acceptable compliance in the case before him. His Honour held that the matters about which Mr Potier wished to cross-examine the technical officer were beyond the scope of what was permissible and appropriate in such circumstances.
175As to the application in respect of the juror, R A Hulme J noted that there were "insurmountable problems" for the applicant. His Honour reiterated the remarks of Buddin J in the earlier application that it is beyond question that it is impermissible for a court to receive evidence as to the discussions and deliberations of jurors. His Honour further noted that any evidence Mr Potier did manage to obtain would be of no real value, since the juror would be reconstructing his own thoughts well after the event and speculating as to the thoughts of the other jurors. Finally, his Honour noted that the deliberations of the jurors were entirely irrelevant to the fresh evidence or new evidence ground of appeal. In assessing such a ground, the Court of Criminal Appeal is required to make its own assessment of the evidence and consider what impact it may have had upon the outcome of the trial.
176In my view that reasoning, with which I would respectfully agree, reveals that Mr Potier's applications were instituted without reasonable ground.
177R A Hulme J also determined an application by Mr Potier for bail pending the determination of his appeal against his conviction in the second trial: Potier v R [2010] NSWCCA 234 (pages 227 to 231 of exhibit A). As in the earlier application, s 30AA of the Bail Act applied, requiring Mr Potier to satisfy the Court that "special or exceptional circumstances" existed justifying the grant of bail.
178The first basis for the application was an alleged factual error in the judgment of the Court of Criminal Appeal dismissing Mr Potier's conviction appeal. R A Hulme J noted that the judgment of McClellan CJ at CL, with whom the other two members of the Court agreed, proceeded upon an understanding that a document from Telstra alleged to be "fresh evidence" had in fact been disclosed to the defence before the trial. R A Hulme J said (at [12]):
That would appear to be unlikely, given that the document was sought from Telstra by the police officer in charge of the case by a letter which expressed the need for urgency with the statement, "the defence (sic) likely to conclude their case tomorrow, Thursday, 11th October 2001". The document provided by Telstra in fact is dated 11 October 2001.
There may have been some confusion with another document which was in issue in the appeal. There was a complaint about whether Mr Potier's representatives had been forewarned that the prosecution would be calling a witness from Optus Cable and Wireless. It was in relation to that issue that counsel for the Crown on the appeal tendered correspondence which was said to show that a statement by the witness had been served prior to the trial.
179However, R A Hulme J noted that, before any conclusion could be reached that Mr Potier's confidence in success on appeal was well founded, he would need to establish "a high likelihood" that a number of things would occur, perhaps most importantly including that the High Court would grant an extension of the time within which to apply for special leave after the lapse of so much time since the judgment of the Court of Criminal Appeal and that the Court would regard the fresh evidence as being of sufficient significance that it would grant special leave to appeal and allow the appeal and remit the matter to the Court of Criminal Appeal for re hearing. R A Hulme J held that Mr Potier's evidence fell "well short" of establishing any of the required matters.
180The second basis for the bail application was the repeated complaint that Mr Potier's conditions in custody were impeding his preparation of his appeal. His Honour accepted that there had been some limitations but not to any undue extent.
181The final basis for the application related to Mr Potier's need to participate in a hearing in family law proceedings in London. R A Hulme J said that he would certainly not grant bail to Mr Potier in order to permit him to travel to London to appear. It was not clear whether facilities could be made available for him to appear by video link.
182The application for bail was refused. However, in light of the complexity of the issues surrounding the alleged factual error in the judgment dismissing the appeal against conviction, I am not persuaded that the application was instituted without reasonable ground. I do not consider the bail application to have been a vexatious proceeding within the meaning of the Act.
183As already noted, the decision of R A Hulme J determining Mr Potier's application to have the technical officer and the juror attend to give evidence was made by his Honour sitting as a single judge of the Court of Criminal Appeal. Upon the refusal of that application, Mr Potier was entitled to have the application determined by the Court constituted by three judges: s 22(2) of the Act. Mr Potier exercised that right and his application was determined on 28 July 2011: R v Potier [2011] NSWCCA 170 (pages 221 to 226 of exhibit A).
184I wrote the main judgment in that case. I was of the view that both applications should be dismissed, for substantially the reasons given by R A Hulme J sitting alone. Whealy JA and Schmidt J agreed at [1] and [36] respectively. It follows that I am satisfied that the application was instituted without reasonable ground.
185The next judgment (in chronological order) is the decision of the Court of Criminal Appeal in Potier v R [2011] NSWCCA 204 (pages 232 to 244 of exhibit A). That was a judgment in an appeal instituted by Mr Potier seeking review of the bail application determined by R A Hulme J considered above. The judgment is not included in the Attorney General's chronology of proceedings relied upon as vexatious and does not appear to be relied upon as such. Judging from the content of the judgment (which deals primarily with the Court's jurisdiction to undertake the review sought) it reveals no basis for concluding that the application was vexatious.
186The next proceeding instituted by Mr Potier relating to the criminal proceedings against him was an application for leave under the Felons (Civil Proceedings) Act to commence proceedings against the Legal Aid Commission, in effect seeking prerogative relief on the strength of an asserted entitlement to have all of his legal aid applications then pending funded without delay. The application was determined by Johnson J on 1 December 2011: Potier v Legal Aid Commission of New South Wales [2011] NSWSC 1066 (pages 245 to 251 of exhibit A).
187Section 5 of the Felons (Civil Proceedings) Act provides that the Court shall not grant leave under that Act unless satisfied that the proceedings are not an abuse of process and that there is prima facie ground for the proceeding. Johnson J found that Mr Potier had not demonstrated an arguable case to as to satisfy the requirement of prima facie ground for the proceedings (at [50]). His Honour did not consider it necessary to determine whether the proceedings were an abuse of process (at [51]).
188His Honour noted that the Legal Aid Commission is charged with the responsibility of allocating necessarily limited resources in accordance with its statutory duties and the priorities it establishes from time to time (at [8]). In that statutory context, and after considering the five applications then on foot, his Honour was not satisfied that there was any arguable case for the prerogative and declaratory relief sought. I would respectfully agree with his Honour's reasoning on that issue and accordingly conclude that the application was vexatious within the meaning of the Vexatious Proceedings Act.
189In early January 2012, Mr Potier made another application for the issue of a writ of habeas corpus. That application was determined by Garling J on 16 March 2012: Potier v The General Manager NSPC, Area 2 Long Bay Correctional Centre [2012] NSWSC 233 (pages 1 to 9 of exhibit B). His Honour dismissed the application.
190The application was based on substantially the same grounds as those relied upon in support of the applications determined by Rothman J and Hidden J (considered above). Garling J was not satisfied that Mr Potier had put any material before the Court to suggest that his conviction was a nullity; nor that there was a high probability that either of his convictions would be set aside or that his ongoing imprisonment was a manifest injustice against which the Court would grant relief. His Honour dismissed the application. In doing so, his Honour noted the two earlier applications and said (at [57]):
Although I have not relied upon the fact that those applications have been unsuccessful, the fact is that my conclusion is not inconsistent with those decisions. The same result has been reached in each case by reason of an application of the same legal principles, namely that until Mr Potier can show that his imprisonment is unlawful because his conviction (and sentence) for the second offence is a nullity, there is no basis for his release from custody.
(His Honour's reference there to "the second offence" was a reference to the offence to which I have referred as the third offence.)
191I am satisfied that the application was instituted without reasonable ground and accordingly that it was a vexatious proceeding within the meaning of the Act.
192On 22 August 2012, Mr Potier made an application for referral to the pro bono legal panel in respect of these proceedings. The application was determined by Schmidt J, who made the referral sought: Attorney General in and for the State of New South Wales v Potier [2012] NSWSC 970 (pages 11 to 15 of exhibit C). The Attorney General does not rely upon that application as a vexatious proceeding.
193Mr Potier sought to appeal out of time against the decision of Garling J refusing to issue a writ of habeas corpus. His application for an extension of the time to file and serve a notice of appeal was refused by the President of the Court of Appeal on 23 October 2012: Potier v General Manager, Dawn De Loas Correctional Centre [2012] NSWCA 352 (pages 16 to 19 of exhibit C; and see the related procedural judgment in Potier v General Manager, Dawn De Loas Correctional Centre (No 2) [2012] NSWCA 353 at pages 20 to 21 of exhibit C).
194Allsop P noted that the difficulty with any application for a writ of habeas corpus by Mr Potier was the order of sentence which was made by a superior court of record and which has not been set aside. His Honour expressed the view that none of Mr Potier's submissions identified any coherent basis for dealing with that fundamental difficulty. On the strength of those remarks, which echo remarks made before to Mr Potier in respect of earlier applications, I am satisfied that the application for an extension of time was also instituted without reasonable ground and so was vexatious within the meaning of the Act.
195After the hearing of the present application, the Attorney General sought leave to reopen his case to adduce evidence of an application by Mr Potier to reinstate his application for special leave to appeal to the High Court against the dismissal of his appeal against conviction for the first two charges of soliciting to murder. The application was heard by the High Court (per Heydon J) on 11 February 2013. The application for special leave to appeal had been deemed abandoned in September 2012, after Mr Potier had failed to comply with directions as to the filing of the required documents.
196Heydon J was not persuaded that there was a sufficient explanation for the delay and dismissed the summons.