Attorney-General (NSW) v Potier

(1) Review of the Parole Board's decision

1. The Court of Criminal Appeal has no jurisdiction to review a decision of the State Parole Authority. The Court which has jurisdiction over that authority is the Supreme Court of NSW. If it is sought to review the Authority's processes and decisions an application must be made to that Court under Pt 59 of the Uniform Civil Procedure Rules 2005 (NSW). For the limitations on this see Boatswain v State Parole Authority [2014] NSWSC 501.
2. This application fails.

(2) Bail

1. This Court has jurisdiction under s 61 of the Bail Act 2013 (NSW) to grant bail. The definition of proceedings for an offence in s 5 include proceedings on an appeal against conviction or sentence.
2. It is clear from the correspondence that the deferral by the Parole Authority of its consideration of the matter has been, at least since 2014, at the request of Mr Potier. Having successfully persuaded them again to defer consideration in May 2015 because Mr Potier had the result of neither of his appeals, he then sought to bring that consideration forward immediately after the decision of this Court was handed down on his conviction appeal. That seems to have been because of the importance to Mr Potier of appearance by AVL in the English proceedings at a hearing in July.
3. At the hearing, the Court made clear to Mr Potier that it could not deal with any bail application in the absence of a representative of the Crown. In any event, Mr Potier would face a considerable hurdle in obtaining bail whilst he is held in prison parole refused. In the first place, he would need to show special or exceptional circumstances: s 22(1)(a).
4. The application for bail is refused.

(3) Appeal from Garling J

1. Section 22 of the Criminal Appeal Act 1912 (NSW) sets out the powers of the Court that may be exercised by a Judge of the Court. None of those enumerated matters includes the power of this Court to issue a criminal justice stay warrant under s 151 of the Migration Act. The better view is that Garling J had no power to hear Mr Potier's application although the only significance of that, given that his Honour refused the application, is that there can be no appeal to this Court from his Honour's determination. Section 22(2) is significant in that regard. It provides: (2) If the judge refuses an application on the part of the appellant to exercise any such power in the appellant's favour, the appellant is entitled to have the application determined by the court. (emphasis added) Whilst Garling J refused Mr Potier's application it was not an application to exercise any power set out in s 22(1).
2. In addition, this Court is a statutory court. It has only the jurisdiction given to it by any statute, principally the Criminal Appeal Act 1912. Apart from s 22(2) its rights to hear any appeal appear only in sections 5 - 5G of the Criminal Appeal Act. None of those sections has any relevance to the present application.
3. This application to appeal is refused.

(4) Power of the Court of Criminal Appeal to issue a warrant

1. Although Mr Potier accepts that he does not have the right to apply for the criminal justice stay warrant he seeks, he submitted that the Court should of its own motion issue such a warrant to prevent his deportation before the conclusion of his proceedings in this Court. He submitted that it is likely that he will be granted parole and then deported shortly afterwards. In his affidavit of 30 January 2015 he pointed to the fact that two days before the Parole Board was due to consider his parole he was required to speak to a Case Manager at Villawood Detention Centre.
2. He submitted that it would be manifestly unfair for him to be deported before there is finality in relation to his criminal convictions. He relied on his application under r 50C as well as on his Pt 7 application to show that there is, as yet, no finality with regard to his convictions.
3. Contrary to his earlier approach of persuading the Parole Board to adjourn consideration of his parole whenever a meeting of the Board was proposed, Mr Potier in his written submissions faxed to the Court on 11 June 2015 complained that the failure of the Parole Board to bring forward consideration of his parole and to grant it was causing a problem for him in conducting proceedings in the English courts. That submission appeared to provide a basis for him to submit that this Court ought to take the view that a criminal justice stay warrant was necessary in the interests of justice to conduct his outstanding proceedings both in New South Wales and in the United Kingdom.

Consideration

1. The present position is that this Court has jurisdiction under s 151 of the Migration Act to issue a warrant referred to in that section by reason of Mr Potier's application under r 50C. Until the r 50C application is determined Mr Potier's appeal must be regarded as not finalised.
2. Section 151 provides: Certain warrants stay removal or deportation (1) If an unlawful non-citizen is to be, or is likely to be, removed or deported, this Act does not prevent a court issuing for the purposes of the administration of criminal justice in relation to an offence against a law a warrant to stay the removal or deportation. (2) If a criminal justice stay warrant about a non-citizen is in force, the non-citizen is not to be removed or deported. (3) If a court issues a criminal justice stay warrant about a non-citizen, the applicant for the warrant is responsible for the costs of any maintenance or accommodation (other than immigration detention) of the non-citizen while the warrant is in force.
3. It is clear that nothing in the Migration Act imposes any obligation on the Court to issue such a warrant, nor does a person in the position of Mr Potier have any right to apply for such a warrant, a matter Mr Potier accepts. The section simply makes clear that the Court has the power to do so for the purposes of the administration of criminal justice. Such purposes would include the according of procedural fairness to a person in the position of Mr Potier. The matter is a discretionary decision for the Court.
4. The r 50C application will be heard by the bench who heard the appeal from Mr Potier's conviction. That bench (Ward & Simpson JJA and Wilson J) has directed that the application be determined on the papers and without any oral hearing. The parties have until a date in late August to lodge submissions.
5. Since consideration of the r 50C application is to be dealt with on the papers there is no particular need for Mr Potier to stay in Australia to further that application. Although the time has not yet arrived for his submissions to be lodged the mistakes which he identifies in his application do not suggest that he would be unable to lodge submissions from outside Australia. No evidence has been led to suggest that he could not finalise these submissions prior to the next consideration of his parole on 13 August 2015 and certainly before any subsequent action is taken to deport him.
6. Prior to the judgment of this Court of 3 June 2015 Mr Potier had submitted that he would need to be present in Australia in case a new trial was ordered by this Court. Although no submission to that effect was made in relation to his r 50C application, that could be the only basis for his needing to remain in Australia. The enquiry must be, therefore, about the likelihood of his r 50C application resulting in a different outcome for the appeal, and an outcome that resulted in a new trial being ordered. If Mr Potier cannot establish that he has reasonable prospects that the Court will order a new trial there would be no basis under s 151 for the Court to issue a stay warrant for the purposes of the administration of justice.
7. The principles applicable to the consideration of a r 50C application have been comprehensibly considered in Bruce Edward Gall v R (No 2) [2015] NSWCCA 152 by Hoeben CJ at CL, R A Hulme and Davies JJ agreeing. Hoeben CJ at CL said this: [28] By reference to those decided cases, Rule 50C is of limited application with an emphasis on correcting obvious mistakes in language used or results that did not reflect the intention of the Court. Rule 50C has been used: To correct a slip, being the omission of words to clarify an infelicitous or ambiguous expression. When doing so it was not altering the basis or rationale of the judgment as it was originally intended (R v Jones; R v Hili (No 2) [2010] NSW CCA 195; 79 NSWLR 143 at [49]. To overcome agreed difficulties where there was a gap of three months from the conclusion of the notional sentence on a count and the commencement of the notional sentence on the next count and it was appropriate to remedy that slip (R v AB (No 2). When the Court had not considered a ground of appeal (Baghdadi v R (No 2) [2012] NSWCCA 77). To effect the orders proposed in the reasons for judgment with the correct calculation of the aggregate head sentence (Akkawi, Mark v R; Akkawi, Paul v R (No 2) [2013] NSWCCA 72). To restructure sentences to achieve an aggregate non-parole period which reflected the Court's intention (KW v R (No 2) [2013] NSWCCA 84). To correct some minor accidental slips which included the numbering of the orders and some minor changes of wording, neither of which altered the substance of the reasons or the orders made (R v Ly (No 2) [2014] NSWCCA 91). [29] Three of the cases discussed above involved the applicant seeking orders which amounted to an appeal against the Court of Criminal Appeal's decision. In Alramadan (No 2) the Court took the view that the applicant was seeking to re-open the appeal so as to remedy deficiencies in the material presented at the hearing and held that such an approach "would appear to fall squarely within the impermissible purpose of seeking "by a back door method" to re-argue an unsuccessful appeal". It could not be justified on the criteria explained by Mason CJ in Autodesk Inc v Dyason (No 2) [1993] HCA 6; 176 CLR 300; Alramadan (No 2) at [12]. [30] In Kauwenberghs the Court did not consider that any of the issues in the grounds pursued by the applicant had been overlooked or were the subject of a misapprehension of a kind that enlivened the exercise of the Court's power under Rule 50C. Similarly, in PFC it was held that the substance of the oral submissions was an attempt to re-argue the appeal and the entirety of the submissions did not demonstrate any misapprehension of fact or law in the first judgment.
8. On their face the matters identified in paragraphs (a) to (e) of the Application under r 50C appear to be an attempt to reopen the appeal in a manner which simply enables the Applicant to reargue matters that were determined against him at the hearing of the appeal. The matters identified in paragraphs (a) to (d) were the four principal areas of dispute at the hearing of the appeal. They were dealt with comprehensively by Ward JA in her judgment with the agreement of Simpson J (as her Honour then was) and Wilson J. As framed, the errors are not said to be errors of form in the way Hoeben CJ at CL has categorised r 50C errors in Gall (No 2). They go only to the substance of what was decided in the Court's judgment.
9. This was made clear, no doubt unintended, by Mr Potier in his oral submissions in the present application. After Hoeben CJ at CL pointed out the limited nature of a r 50C application, Mr Potier said: Well, your Honour, if that be the case, and I'm not wishing to in any suggestion argue with your Honour, if I take a very simple example and this, your Honour, will just have to accept that what I am saying is true, one of the very critical issues that the Court of Criminal Appeal did consider in the conviction appeal was the fact that they have listened to recordings that are correctly identified and filed before the Court. Now, in particular, the Court of Criminal Appeal in its decision said that they'd listened to a particular recording that was tendered before the Court and compared it with the transcripts. Now it is a fact, and not a disputed fact, that the particular recording which was the original recorded medium which was provided and tendered to the Court by myself in the appeal is entirely blank so that the Court of Criminal Appeal in that very simple instance has misunderstood what was before them in that they have almost certainly referred to recordings that were not tendered to reach an unfortunate mistake of fact in that they believed that the recordings had audio on them when they don't and that is not an issue of dispute. They do not, they are blank. And so if that recording ‑ and I am making these things as simple as I possibly can without extending this debate ‑ if that recording is blank and it has been found to be blank and if the Court has found that it had audio on it, which is clearly wrong, that is a mistake of fact and bearing in mind that that recording was the one of two recordings only given to the jury and those recordings were the only independent evidence of the offences being committed, your Honours would conclude that there is a degree of concern about the fact that that recording, if it is blank, as I attest it to be, and I believe that that is referred to in the judgment, if it is blank, then obviously that will directly affect the conviction deliberations. So I think I can point quite simply to a number of instances which, as I say, I could discuss ad nauseam with your Honour which would obviously need to be fleshed out properly…
10. This issue was dealt with a number of times in the judgment, at [93], [109], [130], [136], [427], [523] and [590]. On the last mentioned occasion, the matter was being considered as part of an application by Mr Potier to lead further evidence about the matter. The application to lead the further evidence was rejected on the basis that it did not satisfy the test in R v Abou-Chabake [2004] NSWCCA 356; (2004) 149 A Crim R 417. The assertion of a mistake relating to this matter in the r 50C application leads me to the view that what Mr Potier is seeking is a re-opening of his appeal and that he is not prepared to accept the carefully considered determination of the Court when it goes against him. A reading of the whole judgment discloses that this has been his approach throughout the whole course of his criminal proceedings.
11. It is not clear what paragraph (e) is referring to. The judgment of the High Court in Potier v The Queen decided on 11 February 2013 ([2013] HCATrans 13) is not mentioned in the Court of Criminal Appeal's judgment at all. The special leave application that gave rise to this judgment was referred to at [15] but only to mention that it was abandoned. Paragraph (e) may be a reference to a special leave application determined adversely to the Applicant on 6 September 2013 ([2013] HCATrans 207). That application appeared to concern Mr Potier's complaint that material produced by Telstra was not available at the first trial, not the trial the subject of the recent determination by this Court.
12. Ward JA dealt in some detail with this special leave application of 6 September 2013 at [16], [47], [72]-[73], [124], [147], [477], [483], [485]-[487] and [554] of her judgment. It is worth setting out some of those paragraphs to demonstrate again that Mr Potier is simply not prepared to accept determinations of courts which are unfavourable to him: [72] In the present proceedings, Mr Potier has submitted that the evidence that the Crown prosecutor had the Telstra material (prior to the end of the first trial) could not have been considered by the High Court when the special leave application was determined because it was not known at that stage that there had been a "deliberate withholding" of that information. However, the special leave application was in September 2013. Mr Potier accepts that he knew from around January 2005 that the call charge records (i.e., the Telstra material) had been received. Acting Superintendent Laidlaw had been cross-examined on this very issue in August 2006, well before the High Court special leave application in September 2013. The High Court application focussed on the Telstra material as being fresh evidence not available at the first trial. Therefore, any allegation as to the deliberate withholding of this material was one that could have been raised at that stage. [73] On the special leave application, Mr Brezniak conceded to the High Court that the call charge records were available by the time of the second trial. He accepted that the material that came to light close to the end of the first trial was that the three phones in the detention centre area to which Mr Potier had access were not the source of the calls and that there was no evidence as to whether the calls from the office of Mr Schofield, the officer within the detention centre's telephone service, to which Mr Potier had access, might have been the source of the calls. … [483] Insofar as issue is taken by Mr Potier with the manner in which the Court of Criminal Appeal in 2006 considered his complaint as to the telephone call recordings and maintains that his ground of appeal was not in fact determined (because of the mistake that the Crown concedes was made at [49] of the Court's decision), he has been refused leave to appeal to the High Court in relation to those matters and the fact that he has sought to instigate an administrative inquiry into this is of no relevance to his present appeal. [484] For completeness, I note that the error in the 2006 appeal decision was that (at [49]), the presiding judge said: … With respect to the Telstra material, the Crown tendered evidence on the appeal, which indicates that the relevant material was included in the Crown brief, which was provided to the appellant's solicitors before the trial. Accordingly, any submission that the material is fresh evidence, which it could now be of assistance to the appellant, must be rejected. [485] The Crown concedes that the Telstra material was not included in the Crown brief provided to the defence before the trial and that this evidence emerged only towards the end of the trial. The Crown maintained, when this issue was raised before the High Court, that the Telstra material was not fresh evidence and did not meet the tests for the admission of fresh evidence set out in R v Abou-Chabake [2004] NSWCCA 356; (2004) 149 A Crim R 417 at [63] (see submissions dated 13 May 2013 at [22]-[27]). [486] The High Court refused leave to appeal from the first convictions. Mr Potier nevertheless seeks to maintain in this appeal (based on his arguments as to the 2000 recordings) that the first conviction is no longer sustainable. [487] The dismissal of his application for special leave to appeal by the High Court in September 2013 means that Mr Potier has exhausted all the avenues of appeal in respect of his convictions for the 2000 offences. This Court has no jurisdiction to entertain any appeal from those convictions (Grierson v The King [1938] HCA 45; (1938) 60 CLR 431 at 436; Burrell v The Queen [2008] HCA 34; (2008) 238 CLR 218)….
13. The other matters involving the Telstra Material, judicial bias and the admissibility of the first conviction were comprehensively dealt with by Ward JA. Mr Potier has not identified for the purposes of this hearing what the mistakes of fact and law are said to be. On the one hand, the way the complaints about mistakes are expressed suggest quite specific errors. On the other hand, the failure of Mr Potier to identify those errors leaves open the inference that the mistakes do not arise from specific errors - rather, he simply wishes to re-argue generally the matters put forward on the appeal which have already been determined unfavourably to him.
14. Mr Potier accepted that, because he has no right to apply for the warrant under s 151, what he needs to do is to put forward all the facts and circumstances from which he can argue that this Court should of its own motion issue such a warrant. In such circumstances, there is an evidentiary onus on him, which is not lightly discharged, to justify the issue of a warrant. His failure to identify the errors to enable this Court to assess his prospects of success on these grounds means that he has not discharged that onus.
15. Having regard to the limited nature of a r 50C application and the material put forward by Mr Potier I consider that he has a minimal prospect of achieving a different outcome in his appeal. He, therefore, fails to show that any purpose of the administration of criminal justice requires his presence in this country.
16. Mr Potier's reliance on his Pt 7 application is misconceived. Any enquiry conducted under this Part is an administrative, not a judicial function. Even if that is sufficient to provide a basis for a s 151 warrant whilst such enquiry is pending, the enquiry is conducted by the Supreme Court, not the Court of Criminal Appeal.
17. After consideration of all of the material the Court declines to issue a criminal justice stay warrant.
18. I propose the following orders: 1. The application to review the decision of the State Parole Authority is dismissed. 2. The application to appeal from the judgment of Garling J of 15 August 2014 is dismissed. 3. Release application dismissed and bail is refused.
19. HAMILL J: I agree with Davies J.

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: 03 August 2015