Attorney General in and for the State of New South Wales v Potier

Court of Criminal Appeal (NSW)|2015-12-04|Before: Ward JA, Simpson JA, Wilson J, Simpson J, Wilson JJ

Judgment

BY THE COURT: On 3 June 2015, this Court granted Mr Potier leave to appeal from his conviction in October 2006 of an offence of solicit to murder contrary to s 26 of the Crimes Act 1900 (NSW) (Potier v R [2015] NSWCCA 130) ("the principal judgment") and dismissed the appeal. The background to the appeal, and hence to the present application, is set out in the reasons for judgment of Ward JA (with whom Simpson and Wilson JJ agreed) and is not here repeated. What follows assumes a familiarity with the principal judgment
On 16 June 2015, Mr Potier applied pursuant to r 50C of the Criminal Appeal Rules to re-open the decision and judgment of this Court. He stated the following bases for the application: "a. Mistake of fact as to the authenticity and importance of the recordings from the 2000 and 2002 police investigations. b. Mistake of fact and law over the admissibility and consequences of the Telstra material. c. Mistake of fact and law over the grounds of appeal made out alleging judicial bias by the trial judge. d. Mistake of law over the admissibility of conviction to the jury by the trial judge. e. Mistake of law over what was decided by the High Court of Australia in Potier v The Queen (11th February 2013) and the application of the reasoning of that decision to the Telstra material used in the trial of the appellant and the consequences to and for this appeal. f. Certain other [unidentified] mistakes of fact and law."

Rule 50C

Rule 50C is framed in the broadest of terms. In sub r (1), it provides: "(1) The Court may set aside or vary an order if an application for the setting aside or variation is made before entry of the order."
However, it is important at the outset to note the limited operation of the jurisdiction conferred on the Court under r 50C to set aside or vary an order of the Court. This was recently considered in Bruce Edward Gall v R (No 2) [2015] NSWCCA 152 and Miller v R [2015] NSWCCA 205. The principles articulated in those cases were extracted in a decision in September this year, in which a r 50C application brought by Mr Potier in relation to a different decision was dismissed (Application of Malcolm Potier (No. 2) [2015] NSWCCA 249). Hence, Mr Potier is clearly on notice of the ambit of applications under r 50C. Indeed, he has forwarded to the Court, in addition to the "Short submissions" document referred to above, submissions addressing the application of r 50C of the Criminal Appeal Rules.
Put simply, r 50C does not confer jurisdiction on this Court to re-hear the merits of an appeal once it has been determined. Rather, it enables the Court to reconsider and correct its orders to rectify obvious mistakes and correctly to reflect its intention at the time of making the decision in question. In Miller v R, Adams J (with whom Hoeben CJ at CL and Hidden J agreed) noted that there is no jurisdiction under r 50C to re-visit orders or reasons where the contended misapprehension is merely an assertion that a conclusion made following consideration of the matter by the Court is wrong (at [39]).
The general description of the perceived mistakes that is contained in Mr Potier's application (extracted at [2] above) raises issues that were the subject of lengthy written submissions by Mr Potier on the hearing of his appeal against conviction. They have already been considered by this Court and were dealt with at some length in the principal judgment. On its face, the r 50C application demonstrates clearly that what Mr Potier is seeking to do is indeed to re-argue matters that have already been considered and dealt with by this Court. Insofar as Mr Potier contends that this Court erred in the conclusions reached on those issues, the appropriate avenue is an application for special leave to appeal to the High Court.
That this is so is amply demonstrated when reference is made to the "Short submissions" document forwarded by Mr Potier to the Court of Criminal Appeal Registrar, albeit expressly not filed as such. In those submissions, Mr Potier itemises various complaints, which are summarised and dealt with under the headings used by him, as follows.

(a) Importance of recordings

Mr Potier identifies the authenticity of the recordings as a central issue in the appeal proceedings and refers to his earlier submissions in which he says he detailed the importance of that issue. Mr Potier says that his purpose in tendering the recordings in the appeal proceedings was for the Court to establish for itself the authenticity of the recordings played to the jury at trial. He identifies a number of what he characterises as misapprehensions of fact or law in relation to the Court's treatment of that issue.
First, Mr Potier says that (at [45] of the principal judgment) the Court has misapprehended facts in stating that he denied conversations taking place with "A" (the prison informer). That involves a misreading of what was said at [45], which was that the case that Mr Potier in his submissions on his appeal had summarised as his defence case (in effect that "A" was trying to entrap him or that Mr Potier was playing a joke on A) was a case that was "clearly inconsistent with any denial that the recorded conversations with A took place; rather, it assumes that the conversations took place and seeks to explain away their significance". It was not there suggested that any such denial had been made by or on behalf of Mr Potier. Rather, the point there being made was that had there been a denial it would have been inconsistent with the defence case that Mr Potier acknowledged had been run. Earlier in the principal judgment ([39]) it was noted that Mr Potier had not himself given evidence in his second trial.
It was also noted (at [51]-[52]) that there was some inconsistency as to whether Mr Potier's statements to the judge in the second trial were disputing the conversations but that his final position appeared to have been that, while the voice on the audio recordings may have been his, there had been some alteration of the recordings so as to produce a manufactured compilation of a conversation that was not in fact the actual conversation that had taken place.
The complaint made by Mr Potier as to a misapprehension of fact in this respect is without foundation.
Mr Potier next says that it was an impossibility for Ward JA to state (at [525]-[526]) that she had listened to the 2 February 2002 recording and compared it to the transcripts, since the recording was blank.
The 2 February 2002 recording, and Mr Potier's complaint as to this recording, is referred to at [128]-[134] of the principal judgment. There, it is noted that Mr Potier had sought to tender a VHS recording of 2 February 2002 to show that there was no audio contained on that tape (save as to confirmation of date and time). The significance Mr Potier attached to that was that the version played to the jury did have audio on it. At [131], reference is made to the cross-examination Mr Potier had conducted of various police officers as to the provenance and integrity or authenticity of the tape recording of this conversation; the explanation given for this being that, using recognised signal processing techniques, a CD had been able to be produced from the master tape recording.
There was no issue at the second trial (or on the appeal) that the VHS recording made of the 2 February 2002 conversation was blank, save for confirmation of date and time. The argument raised by Mr Potier was as to the "enhancement" of the audio from that tape which had led to the version played to the jury.
What was referred to at [525]-[526] of the principal judgment was not the 2 February 2002 recording but the different sets of recordings of conversations in 2000. An issue had been raised as to a perceived inconsistency in the evidence of the police officers as to the recording of a conversation between "M" (an undercover police operative) and Mr Potier on 2 May 2000. That conversation was recorded by M on a listening device the details of which were the subject of a claimed public interest immunity. It was also the subject of a recording by other undercover branch operatives at a listening post. The tape produced at the listening post was blank, as noted at [523] of the principal judgment. The subject of the observation made in the first sentence of [525] was clearly the existence of the different sets of the 2000 recordings which were audible and hence able to be compared with the transcripts made of the conversations there recorded. No misapprehension of fact has been demonstrated in relation to this issue.
Next, Mr Potier says that there was a misunderstanding of fact in relation to a "highlight tape" of the 2000 recordings. Mr Potier had analysed the stop/start times of some of the recordings and maintained that the version played to the jury had had some 19 minutes added to it. That issue was considered at [524] of the principal judgment, where it was concluded that the analysis carried out by Mr Potier did not raise doubt as to the authenticity of the recordings, there referring to matters in support of that conclusion. Mr Potier's belief that the conclusion is incorrect does not amount to a misapprehension of the kind falling within the r 50C jurisdiction.
Mr Potier next argues that the misunderstanding of fact which he contends has been made (i.e, that the recordings were similar and accurate) led to a misunderstanding of the law, insofar as the recordings were not rejected as unreliable and should have been excluded. He submits that this Court has made a fundamental misapprehension of the law as to the import of the recordings and that this could not have been covered by the proviso contained in s 6(1) of the Criminal Appeal Act 1912 (NSW). No misapprehension of the applicable legal principles is here identified; rather the complaint is as to the application of those principles in the circumstances of this case. Again, the perceived error in this regard is not one that falls within the r 50C jurisdiction.
Finally, Mr Potier submits that it was a misapprehension of fact to state (at [421]) that in the trial judge's summing up the trial judge had not stated an opinion or made a finding of fact that the five "missing calls" were made by the defendant but, rather, was there summarising the defence argument as to those calls and emphasising that those five missing calls from the webtrace were calls said to have been made by the accused. Any error in the way in which the trial judge's summing up was properly to have been understood in that respect is, again, a matter for complaint on any subsequent appeal from this Court's decision. Paragraph 421 accurately records the way that this Court understands that part of the trial judge's summing up.

(b) Telstra material

The reference to the Telstra material is a reference to the Telstra call charge records that were not tendered or disclosed to the defence at Mr Potier's first trial (for separate offences in 2000 of solicit to murder). At the second trial, evidence was given as to an Optus webtrace carried out in respect of calls to and from a particular telephone number in 2000 (that being the telephone number of Ms Conway, who gave evidence as to various telephone calls with Mr Potier, the recordings of which were in evidence at both trials).
Mr Potier says that the Court misapprehended the evidence of Mr Finlay, who gave the relevant evidence as to the Optus webtrace, when it stated (at [57]) that Mr Finlay's evidence was not that there were only two possible explanations for calls not appearing on the webtrace (as Mr Potier contended); rather that Mr Finlay gave one explanation for this and accepted that there was another possible explanation. Reference to the transcript makes clear that Mr Finlay did not in terms say that there were only two possible explanations. The fact that Mr Potier understood the evidence to have that import does not establish any misapprehension of fact in this regard.
Mr Potier says that there was a further misapprehension of fact in relation to the Telstra material, that being that the Court should have deduced, from the fact that the Crown had produced no evidence that another phone had been used on the five occasions of "missing calls", that no such evidence existed or assisted the Crown's case and should have accepted that the statement made in a letter to Telstra (that three identified payphones had been used to make the calls) was correct. This is no more than a repetition of the submissions made by Mr Potier at the appeal and amounts to an impermissible attempt to re-argue the point.
Finally, in relation to the Telstra material, it is said that there is a misapprehension (at [61] of the principal judgment) of both fact and law, in that it was stated that it might be argued that the Telstra material was constructively available to the defence at the first trial since the defence was aware at that trial that the "missing calls" did not appear on the Optus webtrace and had elicited evidence from Mr Finlay as to alternative ways to investigate whether there was a record of those calls having been made. Mr Potier argues that until Mr Finlay was examined there was no way of knowing how to establish that the calls had not been made. He says that there was no dispute that the Crown withheld the Telstra material from the defence during the first trial and that it was obliged to disclose that material.
The observation with which Mr Potier takes issue was not one that played any determinative role in the consideration of his appeal, it being expressly noted (at [61]) that nothing turned on it for present purposes, since the existence of the Telstra material was certainly known to the defence by the time of the second trial. As to the complaint in relation to the Crown's breach of a duty of disclosure in this regard, this was dealt with elsewhere in the principal judgment's reasons in considering ground 7 of Mr Potier's grounds of appeal ([566]-[567]). The conclusion there reached was that even if there was a breach of the obligation of disclosure in respect of the Telstra material at the first trial, there was no substantial miscarriage of justice occasioned to Mr Potier in the second trial in this regard. That remains this Court's view. No error of principle has been identified in relation to this issue. Rather, Mr Potier's complaint is as to the conclusion reached by this Court on that issue. That is not a complaint that falls within the r 50C jurisdiction.

Mr Potier's complaint under this heading is, in essence, that this Court should have reached a different conclusion in relation to ground 4 of his grounds of appeal, in which it was contended that the trial judge had exhibited a number of instances of bias and had refused to accede to an application to disqualify himself for bias, causing the trial to miscarry. In his submissions on this issue, he reiterates arguments already put to the Court on his appeal and considered in the Court's judgment.
At the outset, it should be noted that Mr Potier does not point to any error in the identification of the legal principles to be applied in the context of applications as to bias (see [165]-[173] of the principal judgment). Rather, it is said that this Court made the following misapprehensions of fact and law.
First, a misapprehension of fact over the implications and consequences of Mr Potier having to disclose his defence whilst the prosecution case was ongoing. In Mr Potier's appeal grounds, such a complaint was raised as an instance of bias in the context of the trial judge requiring Mr Potier to identify why it was that Mr Potier wished to call the ex-wife of "A" to give evidence and as a complaint as to his Honour's rulings in relation to the requirement that Mr Potier indicate what he anticipated Mr MacKechnie (a solicitor in Scotland from whom he sought to adduce evidence) would say if called to give evidence. Those matters were considered at [312]-[316] and [321]-[335], respectively, of the principal judgment.
Mr Potier submits that "as a point of law" it was wrong for the trial judge to require defence disclosure whilst the prosecution case was ongoing and that the Court did not fully consider this issue. The issue was dealt with and reasons were given for this Court's findings on those grounds. Mr Potier's complaint does not fall within the r 50C jurisdiction.
Next, it is said that there was a misapprehension of law by dismissing the Crown's statement that a Birks [R v Birks (1990) 19 NSWLR 677] point of appeal had arisen. Mr Potier had, on the appeal, complained as to the trial judge's refusal to accede to his application for the jury to be discharged even after the Crown had raised the issue as to a potential "Birks" ground of appeal. As stated at [289], the fact that the Crown may have thought there might be a potential Birks ground of appeal was irrelevant to the question whether or not the trial judge erred in not discharging the jury at that point.
No error was identified in the statement of the principles to be applied in considering an application to discharge the jury (see [290]-[295]). Rather, Mr Potier's complaint is as to the conclusion reached as to whether error in the exercise of the trial judge's discretion, or bias, had been identified in this regard. Whether this Court erred in reaching the conclusion it did on that issue is not a matter falling within the ambit of the r 50C jurisdiction.
Next, it is said that there was a misapprehension of fact in the statement that there was a forensic decision by defence counsel not to cross-examine A further on the "Carlos matter", when the trial judge had refused to allow further cross-examination of the witness in front of the jury over the Carlos matter. This is a reference to the issue considered at [304]-[306] of the principal judgment.
The complaint by Mr Potier in this regard again involves a misreading of what was there said. The statement (at [306]) that "Mr Potier must be taken to have made a forensic decision not to pursue such questioning at the relevant time, through Counsel" (emphasis added) was a reference to the line of questioning that had been raised on the voir dire as to whether A had referred the "Carlos matter" to the authorities. The relevant time at which that line of questioning (which would have revealed to the jury that A had thought Mr Potier was joking in relation to that matter) was not pursued was at the conclusion of the voir dire, not later when Mr Potier unsuccessfully sought to revive questions over the Carlos matter. No misapprehension of fact is there identified.
Mr Potier also complains that this Court fell into error by accepting that a senior counsel of many years' standing (Mr Healey) would not be able to conduct his defence by further questioning witness A over the "Carlos matter" in such a way as not further to prejudice the defence. That, however, was not the issue. The question being considered in this context was whether there had been an error in the exercise of the trial judge's discretion, or evidence of bias, in his Honour not permitting further questioning in relation to that matter. The conclusion reached by this Court was that there was not. No misapprehension of fact or law is thereby revealed.
Next, it is said that Mr Potier's complaint as to lack of access to the Crown brief and subpoenaed material (addressed at [277]-[279] of the principal judgment) was not a complaint of denial of access to specific documents; rather, it was the fact that Mr Potier did not know what was there so that until access was given he could not be specific as to what he wanted to see. There was no misapprehension by this Court of the fact that Mr Potier had sought access to all the documents. At [279], it is noted that Mr Potier's response to the trial judge was that he was going to have to read all of the documents. His Honour's ruling, however, was based on the need to keep the documents under the control of the Court. The Court remains of the view that there was no appellable error disclosed by his Honour's ruling.
Mr Potier then says that a number of "grounds" of alleged bias were not addressed and this amounts to a "misunderstanding" of law. Presumably, by this, Mr Potier is referring to some of the alleged instances of bias; the relevant ground of appeal (4) referring to a "number of instances of unreasonable bias". Relevantly, ground 4 was that his Honour declined to excuse (i.e., disqualify), himself, causing the trial to miscarry. Mr Potier's complaint as to bias, in essence, was that it was the totality of the adverse decisions that demonstrated bias (see [164] of the principal judgment in which his submission to that effect is extracted).
Three instances of alleged bias with which it is said the Court did not deal are identified by Mr Potier.
First, Mr Potier refers to the complaint made as to the trial judge's refusal to allow "legitimate" questions of "A" as to his character and how the authorities treated him. This complaint was identified in Mr Potier's submissions on the appeal as going both to ground 3 and to ground 4. It was dealt with in the principal judgment at [337]-[346].
On the present application it is submitted that there was a misapprehension of fact as what was to be put to witness "A", namely, that a reading of The Sunday Telegraph article showed that "A" was a man who was an experienced liar and fraudster. It is said by Mr Potier that the trial judge's refusal to allow the jury to establish for themselves the true nature of the witness by cross-examination of such matters was, and is, a misapprehension of law.
At [337] of the principal judgment, it is noted that one area of cross-examination identified as the subject of the complaint was that which related to "A"'s fraud conviction. Other areas of cross-examination about which complaint was made were identified at [338]-[345], including (at [343]) the assertion that The Sunday Telegraph article revealed that A was duplicitous in his relationship and in his home life.
The Court considered the various matters which were raised in relation to this complaint and concluded that there was no error in the rulings about which complaint was made ([346]). It was not suggested that the making of those rulings, if not affected by error (as the Court concluded), was illustrative of bias but, for the removal of any doubt in that regard, the Court here confirms that it is of the view that none of those rulings demonstrates or gives rise to a reasonable apprehension of bias on the part of the trial judge.
Second, it is said that the Court misunderstood, and failed to consider, the issue before it as to public interest immunity. The complaints made by Mr Potier on this issue were identified under the heading "Public Interest Immunity" by reference to paragraph [18] of Mr Potier's written submissions on the appeal. Those were, first, as to the exclusion of questioning of "A" as to whether he had made similar allegations about any other wrongdoing while at Long Bay, and, second, as to the exclusion of questioning of Detective Sipos as to whether he had signed up "A" as a police informant. They were considered at [347] to [359] of the principal judgment.
Mr Potier says that public interest immunity was being "unfairly exercised" (presumably meaning that it was unfairly invoked or applied) against him in denying him the opportunity of asking how the authorities considered A as an informant "if he was considered to be a fantasy man who made things up" and that this was relevant to the strength of A's evidence.
The difficulty with Mr Potier's submission that there was a misunderstanding of, and therefore failure to deal with, his complaint in this regard is that it was expressly noted (at [353] of the principal judgment) that what Mr Potier was seeking to establish by questioning A about meetings with the authorities was "that the authorities deduced that he was making things up and ignored him". The trial judge rejected that line of questioning not only on the basis of the claimed public interest immunity but also because he considered it to be irrelevant (see [356]). The kind of questioning that Mr Potier now says was not considered in the context of his complaint as to public interest immunity was in fact considered and dealt with by this Court.
Finally, Mr Potier complains that this Court did not address his contention that the trial judge exhibited bias when allowing Crown evidence of transcripts of recordings before the jury "which had the effect of promoting them to a level of proof that no directions could cure" (referring to his submissions of 10 September 2014 pp 20-25), which it is said raised the issue as to the fact that contradictory evidence as to the authenticity of the recordings was not allowed before the jury by the trial judge. It is said by Mr Potier that the trial judge was obliged to allow a fair balance between the parties as to the evidence to go before the jury and that unacceptable preference was given to the Crown.
Mr Potier made a number of complaints in the appeal proceedings as to the admission of the audio recordings and the statements made by his Honour in relation to those recordings. They were dealt with from [388]-[412] of the principal judgment. As to the transcripts of the recordings, in distinction to the recordings themselves, it was noted (at [411]) that complaint had been raised as to the "refusal to allow contradictory evidence relating to the recordings to be played to the jury despite allowing Crown transcripts to be given to the jury". That complaint was dealt with as one raising an issue as to the summing up, having regard to the submission by Mr Potier, referred to at [425], to the effect that the trial judge had 'exceeded his obligation of even-handedness' by informing the jury that the [so-called "missing"] calls had been made by Mr Potier "ignoring" contradictory Crown evidence of Mr Finlay and passing this on as an opinion of fact. The complaint that this was an opinion of fact had been dealt with earlier. At [425] it was concluded that his Honour had fairly conveyed to the jury the substance of the dispute as to the audio recordings.
The "contradictory evidence" to which Mr Potier seems to have referred in his submissions on the appeal was the evidence of Mr Finlay as to the possible explanations for the missing calls not appearing on the webtrace. That evidence was before the jury. The complaint that this Court did not address a complaint made as to bias in the admission of the transcripts of the recordings, by reference to the manner in which the evidence of Mr Finlay was presented to the jury, has no foundation having regard to those parts of the principal judgment to which reference has been made. For completeness, it should be noted that there was a further complaint as to the conduct of the Crown (in ground 7) in the context of which there was also reference to the non-disclosure of the Telstra material. That was dealt with at [566]-[567] and [573].
If Mr Potier's complaint is now that this Court did not, in dealing with the matters raised in his appeal submissions, address a different aspect of his complaint as to the transcripts of the recordings, namely that there was bias in allowing them before the jury because no directions could cure the prejudice of so doing, then the suggestion of bias on the part of the trial judge in that regard must also be rejected. His Honour dealt with the various aspects of the complaints about the recordings and fairly conveyed the substance of the disputes in relation to the recordings and their authenticity to the jury. Admission of the transcripts cannot be said to have elevated the probative force of the recordings themselves.

(d) Admission of recordings

The next complaint by Mr Potier is that there is a misapprehension of fact evident from [388] to [401] of the principal judgment (which dealt with his complaints as to the rulings and statements made in relation to the audio recordings) namely that the Court mistakenly believed that there had been a full debate as to the admission of the recordings and their provenance. It is submitted that this was not the case because the trial judge had cut Mr Potier off in his arguments and had exhibited clear bias against him.
The paragraphs to which Mr Potier refers make clear that, in ruling on this aspect of the matter, close regard was paid to the transcript of proceedings before his Honour. The complaint made by Mr Potier is in substance a complaint as to the conclusion this Court reached having regard to the transcript of events as they occurred at the trial. That is not within the r 50C jurisdiction. No misapprehension of fact or law has been identified in this regard.

(e) "Exceeding" the Crown's submissions over the TV

This complaint relates to the perceived error in the trial judge's summing up as to the benefit that A had obtained by the fact that a television set had been placed in his cell (the recording device having been placed in the television set). The trial judge said that A did not receive any reward for what he did and refused Mr Potier's application that he redirect the jury on this aspect of the matter.
Mr Potier submits that this Court has made a misapprehension of fact and law by excusing the trial judge's conduct in refusing to accept that A had received any reward "and thereby promoting the Crown case to a position of strength". Reliance is placed on the fact that the Crown's own closing submissions were to the effect that the only reward A received was the TV. Mr Potier had argued on appeal that this was of importance when considering the adequacy of his Honour's warning to the jury about accepting evidence from prison informants.
This issue was considered at [438]-[441] of the principal judgment. Again, the complaint by Mr Potier on the present application goes to the conclusion that was reached by this Court on that issue. It does not fall within the r 50C jurisdiction. There was no misapprehension of fact or law on this issue.

(f) Evidence of defence witness MacKechnie

The same conclusion must be reached in relation to the complaint as to this Court's assessment of the complaints made by Mr Potier in his appeal in relation to the manner in which the trial judge treated Mr Potier's application to adduce evidence from Mr MacKechnie.
The misapprehension of fact that Mr Potier submits this Court made in this regard has not been clearly identified. In his "Short submissions" on this application Mr Potier again stressed the importance of Mr MacKechnie's evidence to his defence, that being that it would establish that Mr Potier always knew the crime he was accused of having solicited could never take place because Mr MacKechnie had told Mr Potier that his former de facto wife was not in Scotland at the time. Mr Potier emphasises that Mr MacKechnie had made it clear that he was prepared to come to the country or alternatively he would be prepared to participate by videolink. It is submitted that the defence was materially prejudiced by reason of the fact that the jury was not allowed to hear firsthand "from one of the most senior solicitors in Scotland" what he had told Mr Potier.
This issue is dealt with at [321] to [335] of the principal judgment. No misapprehension of fact or law has been demonstrated. Mr Potier simply cavils with the conclusion that was reached. That is not within r 50C jurisdiction.

(g) Rulings on privilege

It is next said by Mr Potier that this Court misapprehended the law in not considering that the trial judge on a number of occasions put Mr Potier in a position where he was "required to waive privilege" before his Honour would consider the applications before him. It is submitted that this severely damaged Mr Potier's ability to conduct the proceedings in accordance with the law and that this Court made a misapprehension of law in not considering these matters and misapprehensions of fact and law as to how a reasonably minded person would consider such conduct.
Reference is made in this context to the submissions made by Mr Potier on the appeal (10/9/14 pp 13-14). Those parts of Mr Potier's submissions deal with various matters, including denial of access to the subpoenaed material; the trial judge's refusal to disqualify himself for bias; the complaint that Mr Potier had been asked to indicate what witnesses he intended to call and what evidence they might give (and thus to disclose details of the defence case to the Crown) whilst the Crown case was ongoing; the refusal of bail to allow him to conduct his defence adequately; the refusal to allow him to call all of his defence witnesses; the complaints as to the refusal to allow evidence to be taken in person or by videolink from Mr MacKechnie; and (at the bottom of page 14) a complaint as to the admissibility of tendency and coincidence evidence and evidence of prior conviction.
This Court's decision as to various of those matters is elsewhere the subject of complaint on this application. Although grouped under the heading "rulings on privilege" none of those complaints is tied to any particular ruling on privilege as such. The only privilege that Mr Potier was "required", and even then only in a practical sense, to waive was legal professional privilege and that was in the context of his adjournment application in the circumstances of Mr Healey's withdrawal from the proceedings. Mr Potier chose on that occasion to waive privilege in order to seek to persuade the trial judge that he, Mr Potier, had not in effect engineered a situation where his first set of Counsel had withdrawn from the case.
No misapprehension as to the legal principles relating to bias or as to the facts is here demonstrated (even if one takes into account the whole of the matters to which reference is made at the nominated pages of Mr Potier's appeal submissions). Again, this is an example of Mr Potier seeking to challenge the conclusion reached by this Court as to bias and to re-argue his case (using the same arguments as he made, and which were considered by this Court, on the hearing of the appeal itself). This is not within the r 50C jurisdiction.

(h) Admission of previous conviction to jury

Under this heading, Mr Potier points out that the tendency and coincidence notice served by the Crown made no mention of his prior conviction and argues that this Court made a misapprehension of fact in stating that it was inevitable that Mr Potier's conviction for the earlier offences would be made known to the jury and that there had been no objection to this by defence Counsel.
At least in part, this again involves a misreading of the reasons for judgment. That is because [26] of the principal judgment (to which, along with [25], Mr Potier refers) recorded the basis on which the argument before his Honour in March 2006 had proceeded. It did not state any conclusion as to the inevitability of the previous conviction becoming known. The statement that no objection was taken to the fact that Mr Potier's conviction was not specifically listed in the tendency and coincidence notice is borne out by reference to the transcript of what occurred when Mr Potier was represented by Mr Terracini SC, contrary to the assertions now made by Mr Potier. True it is that Mr Healey subsequently raised issues in relation to the evidence of Mr Potier's prior conviction but that was not what was being addressed at [25]-[26] of the reasons.
As to the statement that it would have been a straightforward matter to excise, from the transcripts of the 2 and 6 February 2002 recordings, reference to the earlier conviction and to instruct Crown witnesses not to make reference to that conviction, that was not the submission made in March 2006 when the trial judge determined the admissibility of the tendency and coincidence evidence. In any event, the challenge made on the appeal by Mr Potier as to the admissibility of the tendency and coincidence evidence, and as to the evidence of the previous solicit to murder conviction, has already been considered by this Court (including a submission to the same effect as now repeated as to the fact that matters could have been excised from the transcripts). Mr Potier's real complaint now is not as to any misapprehension of fact but as to the outcome of the Court's consideration of that issue.
As to the perceived misapprehensions of law on the part of this Court, Mr Potier argues that they are twofold: first that there was an unfair prejudice against Mr Potier by the trial judge allowing specific conviction evidence and; second, that inadequate warnings were given to the jury as to how such evidence might be used.
This raises afresh the issue as to the admissibility of the tendency and coincidence evidence which has already been considered and determined by this Court. Mr Potier argues that the trial judge's instructions to the jury to satisfy themselves of guilt as to the first offences "does not bear examination at law" (emphasis as per his "Short submissions" on this application) and is a miscarriage of justice as the jury had incomplete facts to reach a conclusion "but did know that the earlier Jury had the full facts to reach their verdict" (again, emphasis as per his "Short submissions"). In essence, this is a repetition of the submissions made and considered when the appeal was determined (see [459]-[461] of the principal judgment). If this Court's conclusion on that aspect of the matter is incorrect, that is a question for another Court to determine. It is not appropriate on a r 50C application to seek to re-argue the issue.
Mr Potier goes on to argue that this issue is complicated by the fact that the first jury were not told of the existence of the Telstra material and its significance to the recordings so as to reach a fair verdict. That appears to raise issues relating to the reliability of the first conviction, a matter not open now to be re-argued in light of the High Court's refusal of special leave to appeal therefrom and in any event already considered (at [476]-[488] of the principal judgment).
Mr Potier also relies on a book written by one of the jurors after the first trial (referred to as a "non-fiction" book - Secrets of the Jury Room (MHP5)) as demonstrating the significance of the fact that the first jury did not know of the existence of the Telstra material. It is said that this Court had a "misapprehension of fact and import of these matters to a true verdict" and had this not been so this Court would have appreciated the errors of admission to the jury of the recordings and consequently the earlier convictions. Again, this simply challenges the conclusion reached by this Court on those matters. No misapprehension of any relevant fact or principle of law has been demonstrated. Mr Potier's complaint does not fall within the r 50C jurisdiction.

(i) High Court

Mr Potier under this heading takes issue with the reference made at [485]-[487] of the principal judgment to matters relating to the fate of his special leave application in relation to the first convictions.
Mr Potier says that the High Court in its decision did not make any conclusions or rulings as to the special leave application; that, rather, it declined to grant leave; and that the High Court could not receive fresh evidence but could only consider an error of law by this Court in an earlier judgment.
Paragraph [485] of the principal judgment does no more than set out the Crown's concession as to the Telstra material and what was argued by the Crown on the special leave application, as emerged from the transcript of that hearing, a copy of which was provided to this Court on the hearing of the appeal. Paragraph [486] records what should be uncontroversial, namely that leave to appeal was refused by the High Court in respect of the first convictions and Mr Potier was in his appeal seeking to argue that the first convictions were no longer sustainable. As to [487], no error of law has been identified in the statement of principle there repeated.
Rather, what Mr Potier now says is that there was a misapprehension of law by this Court in believing that the High Court could have quashed the conviction based on the "eventual concessions and disclosures" during the second trial about the Crown prosecutor's conduct when it could not have considered them; and that this also applied to the two sets of recordings. Reference is made to [72] of the principal judgment in this regard. What was there being considered was a submission made by Mr Potier in effect that the High Court could not have considered certain matters that had not occurred until the course of the second trial. It was noted that the High Court special leave application was in 2013, well after the second trial. No misapprehension of law has there been demonstrated.
Mr Potier also says that reference in the judgment to concessions made by Counsel appearing for him before the High Court are factually incorrect and were irrelevant to the High Court as they could not be considered. The concession referred to at [73] of the principal judgment was the concession by Counsel for Mr Potier that the call charge records were available to the defence by the time of the second trial. This was drawn from the transcript of the special leave application that, as already noted, was provided to this Court on the hearing of Mr Potier's appeal. Whether Mr Potier's Counsel was in error in the making of those submissions is irrelevant. They were made. As to whether they were capable of being considered by the High Court, it should be noted that the application for special leave was Mr Potier's application and that the application was one that focussed on the Telstra material being fresh evidence. If that had been considered to be of no relevance to the High Court's consideration it is difficult to understand how the submission made by Counsel could properly have been made at the time. In any event, nothing turned on this issue for the purposes of the disposition of Mr Potier's appeal from the second conviction.
It is further said that this Court made a misapprehension of law in assessing that the Crown's non-disclosure related only to the evidence of the second offence and that the obligation of ongoing disclosure must relate to all evidence that the Crown intended to use in its prosecution, which included the tenancy and coincidence evidence. The relevant non-disclosure for the purposes of the submissions that were made at the hearing of Mr Potier's appeal as to the Crown's conduct was non-disclosure of the fact that the Telstra material was available to it before the conclusion of the first trial. That material was known by the time of the second trial and cannot have caused the second trial to miscarry. No misapprehension of law has here been demonstrated.

(j) Grounds of appeal not fully considered by the Court in its decision

Under this heading, Mr Potier raises four matters that he contends this Court did not consider or consider fully; and which he characterises as a misapprehension of the law.
First, it is submitted that this Court did not consider the first instance of bias set out at [426] of the principal judgment: namely, that the trial judge informed the jury that the Crown case was that there was no evidence of the recordings being untrue (said to be factually incorrect) and refused to correct it. This was relied on as an instance of bias, although the ruling as to particular documents that Mr Potier sought to put before the jury to establish that this was factually incorrect was also identified as an instance of the error raised by ground 3 of the grounds of appeal.
What his Honour was clearly doing at p 47 of the summing up was summarising the Crown case. In that context, referring to the 2000 recordings, his Honour said: There is no doubt, the Crown says, that those tapes are genuine. The witnesses have attested to them, and you can use your own ears to see if that is Potier on the other end of those telephone calls. There is in fact no evidence of the contrary that they are not proper telephone calls, the provenance of which has been proved. Any suggestion that what was to be done was not to be illegal was merely a matter, the Crown would say, of Potier giving some alibi to himself lest the conversations with "M" were being overheard.
There was no error in his Honour summarising the Crown case as including the proposition that there was no evidence of the recordings being untrue. As to the complaint that this was factually incorrect, that raises the challenges made by Mr Potier to the provenance and integrity of the audio recordings. His Honour, in summarising the defence case, almost immediately reminded the jury of the challenge made to the provenance and validity of the telephone calls by reference to the five calls that could not be traced on the webtrace (p 48) and did so in terms that the defence case was that if the jury decided that some of the calls were questionable (because they could not be found on a webtrace) then the ripples of that would spread out to the other telephone calls and the jury would be dissatisfied of them too, raising many questions as to the provenance and validity of the calls.
After the summing up, his Honour acceded to the submission put by Mr Potier that he should also tell the jury that on the Telstra phone records that were obtained by Detective Laidlaw he could not locate those calls. After submissions by the Crown, Mr Potier added to that a reference to the letter that Detective Laidlaw had written to Telstra and asserted that it had said that the calls were made from the three payphones at the centre and his Honour refused to include reference to that as the letter was not in evidence (and did not, in his Honour's opinion, say that).
His Honour then redirected the jury to the effect that, as to the evidence of Detective Laidlaw, there was not only a search by that webtrace but also a search by Telecom on the three numbers in the Villawood Detention Centre that were available to inmates and the calls could not be found on that search either.
In those circumstances, the suggestion that the summing up and re-direction as to this issue provided evidence of bias must be rejected. His Honour drew the jury's attention both to what the Crown had said as to the recordings and what the defence case was in relation to the questionable provenance and validity of the 2000 recordings having regard not only to the missing calls on the webtrace but also to the fact that those calls could not be located on the Telstra call charge records.
Therefore, insofar as Mr Potier's complaint on the present application that the alleged instance of bias was not dealt with or considered fully at [426], it should be noted that the Court's view is that this allegation of bias was not made out.
The next issue said not to have been addressed in the Court's reasons was the issue of disclosure that was said to have been "fully ventilated" by Mr Potier in his 10 September 2014 submissions at pp 13-14. The topics addressed at those pages of the submissions have already been summarised above (at [57]). No reference is there made specifically to the issue of disclosure. Insofar as submissions in relation to disclosure were made elsewhere in Mr Potier's written submissions on the appeal, they related to the fact of disclosure of his earlier conviction (addressed in the Court's judgment and the subject of complaint concluded elsewhere in relation to the present application) and the ground expressly relating to matters relating to the audio recordings, which were comprehensively dealt with throughout the reasons for judgment.
Complaint is next made that the submissions as to the "best evidence" rule contained in Mr Potier's submissions of 5 January 2015 (p 2) were not considered. The submissions to which Mr Potier refers included the following, in relation to Mr Potier's application to adduce fresh or new evidence (ground 8 of his appeal): Best Evidence Rule In any consideration of a matter before a Court the "best evidence" is the original recordings - which were not played to the juries: not the altered versions and their supporting transcripts. This Court should satisfy itself of the truth of the matter, by receiving and hearing both sets of the recordings.
The application to adduce fresh (or new) evidence was considered at [589]-[595] of the principal judgment. The submission made by Mr Potier as to the "original recordings" being the "best evidence", not the "altered version" or the "supporting transcripts" was premised on there having been an alteration of the recordings and his contention that the recordings played to the jury were not genuine.
The classic statement of the "best evidence rule" is that of Lord Hardwicke in Omychund v Barker (1744) 1 Atk 21 at 49: "The judges and sages of the law have laid it down that there is but one general rule of evidence, the best that the nature of the case will admit" (cited in Golden Eagle International Trading Pty Ltd v Zhang [2007] HCA 15; (2007) 229 CLR 498 at [4] where Gummow, Callinan and Crennan JJ stated that the rule "has not fallen completely into desuetude" and that an aspect of the rule is that "courts should act upon the least speculative and most current admissible evidence available.").
The best evidence rule was not of relevance when considering and applying the test for admission of new evidence set out in R v Abou Chabaka [2004] NSWCCA 356; (2004) 149 A Crim R 417. Invocation by Mr Potier of the best evidence rule in support of ground 8 of his appeal grounds was not therefore of assistance to him. If Mr Potier maintains otherwise, then that is a matter for him to take on an appeal from the Court's decision. Moreover the fact that no reference was made to it in the reasons does not disclose a misapprehension of the law. It is not necessary for a Court in its reasons to mention every fact or argument relied on by the losing party relevant to an issue (see Whisprun Pty Ltd v Dixon [2003] HCA 48; (2003) 200 ALR 447 at [62]).
Finally, it is said that Mr Potier's detailed submissions as to the principles set out in his January 2015 submissions at pp 6-12 relating to the test in R v Abou Chabaka were not fully addressed and that they should have been. The test for the admission of new evidence as set out in that case was noted at [591]. There is no suggestion that the test was wrongly articulated. There was no need to recite all of the submissions made by Mr Potier in relation to that test (see Whisprun Pty Ltd v Dixon at [62]). If Mr Potier maintains that the test was wrongly applied then his course is to seek leave to appeal. This is not an appropriate issue to be determined by way of a r 50C application.

Other matters

Under the final heading of his "Short submissions" document, Mr Potier refers to the so-called "preliminary ground" that he had raised as a preface to his grounds of appeal, namely that he suffered substantially as a result of his inability to access legal precedent and adequate facilities to prepare for his appeal.
It is said by Mr Potier that to suggest that he had not suffered any prejudice as a result of those disabilities (Mr Potier there referring to what was said in the principal judgment at [151]) was a misapprehension of fact. Mr Potier maintains that it can reasonably be concluded that had he been given adequate facilities to research and argue his case then the outcome would certainly have been different.
In this regard, Mr Potier refers to passages in the principal judgment where reference is made to matters such as: the fact that Mr Potier did not attempt to identify any logical connection, as required on the test in Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337, between the matter identified as one that might lead the decision-maker to decide a question other than on its merits and the feared deviation from the course of deciding the question on its merits ([174]); his misconception of the rule in Browne v Dunn (1893) 6 R 67 (HL) ([363]); the generality of his complaint as to the inadequacy of the summing up ([413]); and his lack of familiarity with the Bar Rules as to conferring with a witness ([579]).
None of those matters reveals any prejudice suffered or likely to be suffered by Mr Potier as a result of his lack of legal qualifications or access to facilities that might have affected the outcome of his conviction appeal. Paragraphs 363 and 579 indicate why it is that his complaint based on the rule in Browne v Dunn and as to the Crown conferring with a particular witness prior to commencement of her cross-examination were doomed to fail. Paragraphs 174 and 579 do not demonstrate that Mr Potier's restrictions as a self-represented litigant in custody at the time caused him any prejudice because the approach taken by the Court as to the first was to examine each of the allegations of bias in order to ascertain whether there was a connection of the kind required by Ebner v Official Trustee in Bankruptcy and, as to the second, to examine the adequacy of the summing up as a whole, in order to consider Mr Potier's grounds of appeal in relation to those matters.
Mr Potier complains that the statement made by the Court to the effect that he had not provided any detail as to the denial of access to materials and facilities was incorrect and a misapprehension of fact, by reference to the grounds cited in Mr Potier's numerous applications to the Supreme Court for writs of habeas corpus and bail (cited and considered in Attorney General in and for the State of New South Wales v Potier [2014] NSWSC 118). The evidence relied upon by Mr Potier in those applications was not strictly before this Court, nor were those applications dealt with by the members of the Court hearing the conviction appeal, though Mr Potier certainly made complaint as to lack of assistance in his oral submissions to the Court. He made reference to the earlier applications in his chronology. On the present application, Mr Potier refers generally to the transcripts and to his supplementary exhibits (MHP5 pages 1 to 2) to his 5 November 2014 submissions as supporting his complaint in this regard.
Relevantly, however, nothing has been demonstrated to suggest particular prejudice arose above and beyond that which the Court recognised that any self-represented litigant in Mr Potier's position would have. There is nothing that leads this Court to conclude that there has been a miscarriage of justice in that respect or that the Court should re-open the conviction appeal proceedings or vary the decision or orders in those proceedings by reference to this issue.
Next it is said that the statement (at [362]) that there was no evidence from Mr Potier at the second trial that his earlier convictions were subject to an appeal is contradicted by the statement later in that paragraph that some of the evidence of A touched on the fact that Mr Potier was considering such an appeal. Read together, those statements are not, as suggested, contradictory. One is referring to a lack of evidence from Mr Potier on a particular topic; the other is referring to a third party to the effect that Mr Potier was 'considering' an appeal.
Mr Potier argues that in accepting that such evidence (i.e., that he was considering an appeal) was before the jury, it was a wrong decision at law by the trial judge not to allow a repeat of such evidence to be put to the jury by Mr Potier in his closing address and goes on to contend that there was a misapprehension of law "by denying that such evidence was not allowable to be put to the jury in Closing". Apart from the fact that there is a distinction between the bringing of an appeal (or pending appeal) and giving consideration to bringing an appeal, Mr Potier's complaint is one that goes to this Court's consideration of the issue. No misapprehension of fact or law falling within the scope of the r 50C jurisdiction has here been demonstrated.
Finally, Mr Potier argues that the principles in Kauwenberghs v R (Cth) [2009] NSWCCA 201 should be addressed. It is said that this Court has proceeded according to a number of misapprehensions of fact and law, particularly with reference to the recordings, bias and admission of conviction, and that those misapprehensions have affected consideration of the merits of the appeal. He maintains that had the Court adopted a correct understanding, particularly of the recordings issue, a different outcome would certainly have resulted. However, for the reasons set out above, the Court is not persuaded that there has been any misapprehension of fact or law affecting its consideration of the merits of the conviction appeal. The second question posed in Kauwenberghs (whether any such misapprehension was material to the outcome) therefore cannot arise.
The Court declines to make any order varying the judgment and orders made on 3 June 2015 or re-opening the appeal proceedings. Mr Potier's application under r 50C is dismissed.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 04 December 2015

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