Eastman v Director of Public Prosecutions

Relevant Legislation

1. Section 78 of the Crimes (Appeal and Review) Act 2001 provides for applications to be made to this Court by a convicted person.
2. Section 79 relevantly provides: (1) After considering an application under section 78 or on its own motion: (a) the Supreme Court may direct that an inquiry be conducted by a judicial officer into the conviction or sentence, or (b) the Supreme Court may refer the whole case to the Court of Criminal Appeal, to be dealt with as an appeal under the Criminal Appeal Act 1912. (2) Action under subsection (1) may only be taken if it appears that there is a doubt or question as to the convicted person's guilt, as to any mitigating circumstances in the case or as to any part of the evidence in the case. (3) The Supreme Court may refuse to consider or otherwise deal with an application. Without limiting the foregoing, the Supreme Court may refuse to consider or otherwise deal with an application if: (a) it appears that the matter: (i) has been fully dealt with in the proceedings giving rise to the conviction or sentence (or in any proceedings on appeal from the conviction or sentence), or (ii) has previously been dealt with under this Part or under the previous review provisions, or (iii) has been the subject of a right of appeal (or a right to apply for leave to appeal) by the convicted person but no such appeal or application has been made, or (iv) has been the subject of appeal proceedings commenced by or on behalf of the convicted person (including proceedings on an application for leave to appeal) where the appeal or application has been withdrawn or the proceedings have been allowed to lapse, and (b) the Supreme Court is not satisfied that there are special facts or special circumstances that justify the taking of further action. ... (4) Proceedings under this section are not judicial proceedings. However, the Supreme Court may consider any written submissions made by the Crown with respect to an application.

Legal Principles

1. In Application of Peter James Holland under s 78 Crimes (Appeal and Review) Act 2001 [2008] NSWSC 251 ("Holland") Johnson J summarised the relevant authorities and referred at [8] to the need for there "to be available material which, as a matter of practical reality, gives rise to a relevant sense of unease or disquiet" (citing Application of Esposito (Hunt J, 14 July 1988, unreported); Application of Visser (Newman J, 27 June 1994, BC9402667); Application of Dunn [2005] NSWSC 857 at [9]).
2. His Honour further noted that an application under s 78 does not involve a judicial proceeding; rather, in determining such an application, the Court performs an administrative act (Holland at [5]; see Varley v Attorney General (NSW) (1987) 8 NSWLR 30 at 48-50; Eastman v Director of Public Prosecutions (ACT) [2003] 214 CLR 318 at 362 [124]). Although the Court's administrative function may be activated when the criminal justice systems runs its course, the procedure is not intended to provide a convicted person with yet another avenue of appeal after the usual avenues have been exhausted. Nor is it an opportunity to run the trial again on paper, with the ultimate submission that acquittal should result (Holland at [9]-[10]).
3. Section 79(1) provides that the Court may either direct an inquiry by a judicial officer or refer the whole case to the Court of Criminal Appeal to be dealt with as an appeal. This power is only enlivened, as stated above: "if it appears that there is doubt or question as to the question as to the convicted person's guilt, as to any mitigating circumstances in the case or as to any part of the evidence in the case" (s 79(2)).
4. In Sinkovich v Attorney General of New South Wales (2013) 85 NSWLR 783; [2013] NSWCA 383, Basten JA (with whom Bathurst CJ, Beazley P, Price and Beech-Jones JJ agreed) said that use of language drawn from earlier cases seeking to explain the "doubt or question" required in terms of an "unease or a sense of disquiet…" about the convicted person's guilt, any mitigating circumstances in the case or any part of the evidence in the case was to be deprecated (at [65]): [65] This language does not assist. There is no purpose served by adopting other words than the statutory language of "doubt or question". The "material" on which the judge may base an opinion is not improved or added to by a document setting out the subjective beliefs of the applicant. Nor is it necessary for the applicant to demonstrate subjective grievance, to establish an appropriate basis for seeking an inquiry. The form of the second proposed declaration is inapt.
5. In GAR v Attorney General of New South Wales (No 2) [2017] NSWCA 314 Simpson JA, provides assistance as to appropriate construction of s 79 at [62]-[66]: [62] To reiterate, by s 79 of the CAR Act, the Supreme Court may direct that an inquiry be conducted into a conviction or sentence, (or may refer "the whole case" to the Court of Criminal Appeal) if (and only if) it appears that there is a doubt or question as to the convicted person's guilt, as to any mitigating circumstance in the case, or as to any part of the evidence in the case. The task is not a composite one; it is tripartite. The section potentially calls for attention to three discrete and distinct issues. (I say "potentially" because not each issue will call for attention in each case. What is called for will depend upon the circumstances of the individual case.) There remain, however, three components to s 79, each of which is, as I have said, separate and distinct and needs, where it arises, to be addressed separately from the others. The three components are (in the sequence stated in the legislation): - the guilt of the convicted person; - any mitigating circumstances in the case; and - any part of the evidence in the case. In Sinkovich (at [27]) Basten JA also pointed out the tripartite nature of the exercise prescribed by s 29(4). [63] The second of the three heads prescribed for inquiry is peculiarly related to questions of sentence and can for present purposes be put to one side. The first and third relate to conviction, although the third could also relate to sentence. [64] In Sinkovich, Basten JA (with whom Bathurst CJ, Beazley P, and Price and Beech-Jones JJ agreed) likened the "overriding purpose" of Pt 7 to: "… the high value placed on freedom of the individual and the unwillingness to allow that liberty to be infringed because of commission of a criminal offence unless the offence has been established beyond reasonable doubt …" (at [52]) He added (reviewing the long history of the Pt 7 provisions and their predecessors) that: "… the need for a mechanism to resolve doubts or questions as to the soundness of a conviction or sentence, so as to avoid an unremediable miscarriage of justice, called for statutory intervention." [65] To that I would add that the inclusion of "any part of the evidence" in the trio of issues that could warrant the further investigation of a conviction by inquiry or appeal reflects the importance placed by the criminal justice system on, not only the outcome of criminal proceedings, but the integrity of the process by which the outcome is reached. The legislature could have, but expressly did not, confine the circumstances that might give rise to further investigation of a conviction to doubts or questions about the guilt of the convicted person. [66] That there appears to the judge to be a doubt or question about any part of the evidence is sufficient to warrant directing an inquiry or referring the case to the Court of Criminal Appeal, even if it is unlikely that the evidence in question was determinative (although the importance of the evidence, as well as the extent of any concerns about its integrity, may well be relevant to the exercise of the discretion to take one of the steps provided by s 79(2)).
6. The demands of the test required by s 79(2) were also succinctly summarised by Payne JA at [137]-[139] (citing the judgment of Basten JA in Sinkovich): [137] … First, that test is not a demanding one. I agree with Basten JA that the task is to be approached with a view to the overriding purpose of providing a means to address doubts as to compliance with the principle that liberty should only be infringed upon the commission of a criminal offence if commission of the offence has been established beyond reasonable doubt. [138] Secondly, the "doubt" or "question" the Supreme Court must harbour is one that applies to the finding of the applicant's guilt, as to any mitigating circumstances in the case or to any part of the evidence in the case. The breadth of those matters, where a "doubt" or "question" which enlivens the powers in s 79(1) may arise, tends to highlight the fact that no limitations should readily be implied into the statutory test. [139] Thirdly, the fact that the gatekeeper to either of the inquires provided for by s 79 is the Supreme Court itself emphasises the importance of the role and ensures, as Basten JA explained at [53] in Sinkovich, that it is exercised "responsibly and, no doubt, sparingly". Some matters relevant to the exercise of that gatekeeper role are identified in s 79(3) in the breadth of the considerations which may properly lead the Supreme Court to refuse to consider or otherwise deal with an application. Section 79(3)(b), in allowing for cases where the Supreme Court is "not satisfied that there are special facts or special circumstances that justify the taking of further action", throws further light on the breadth of the matters which may be taken into account in exercising this gatekeeper role.
7. Section 79(3) of the Crimes (Appeal and Review) Act 2001 provides that the Court may refuse to consider or otherwise deal with an application. Paragraphs (a) and (b) of s 79(3) are expressed to be without limitation of the general discretion conferred by the subsection.
8. The Crown submitted the matters raised on the present application were addressed in the trial leading to a further conviction in a trial in 2006 ("the 2006 trial") and in the applicant's appeal of conviction entered at that trial: Potier v The Queen [2015] NSWCCA 130 ("Potier Appeal No 2"). Accordingly, even if s 79(3)(a)(i) of the Crimes (Appeal and Review) Act 2001 does not strictly apply (because the matters raised in application were not fully dealt with in the proceedings giving rise to the 2001 convictions that the applicant seeks review), it is open to the Court to exercise the discretion conferred in s 79(3) by reason of the comprehensive judicial consideration that the matters which are the subject of the application have already received. In any event, it was submitted, having regard to the same matters, the Court may also decide to refuse the application on the basis that there is not the appearance of doubt or question as to the applicant's guilt or as to any part of the evidence in the case.

Background to the application

1. As stated above, the focus of the applicant's submissions is the recordings. However, in order to assess the grounds on which the applicant relies, it is necessary to outline some of the circumstances of the 2001 trial and the events that followed: 1. The applicant appealed to the Court of Criminal Appeal against the 2001 convictions. The Court of Criminal Appeal dismissed the appeal: Potier v The Queen [2006] NSWCCA 27 ("Potier Appeal No 1"). 2. In 2013, the applicant sought special leave to appeal the 2001 convictions, out of time, to the High Court of Australia. The application for an extension of time was heard at the same time as the application for special leave. The High Court dismissed both applications: Potier v The Queen [2013] HCATrans 207 ("the HCA application"). At this juncture I note that the present application was initially brought to this Court under Pt 13A Div 3 s 474D of the Crimes Act. However, the application was stayed pending the result of the HCA application. Following the decision of the High Court the application was re-enlivened and owing to legislative reform (namely, the repeal of Pt 13A of the Crimes Act; the former mechanism for applications of this kind) brought pursuant to Pt 7 of the Crimes (Appeal and Review) Act 2001. 3. The applicant was also convicted of a further offence to solicit to murder on 13 November 2006. He was sentenced to a period of 12 years' imprisonment, with a non-parole period of 7 years to expire on 6 August 2013 ("the 2006 conviction"). His appeal against the 2006 conviction was also dismissed: Potier Appeal No 2. 4. The applicant was released on parole in October 2015. Being an unlawful non-citizen, he was taken into immigration detention and subsequently removed from Australia to the United Kingdom (see Potier v Parole Authority of NSW [2016] NSWSC 39).
2. I will now address the 2001 trial and each subsequent event in turn and in greater detail, save for the applicant's removal from Australia to the United Kingdom.

The 2001 trial

1. The 2001 convictions, in respect of which the applicant seeks an inquiry, involved his soliciting the undercover officer to murder his former partner, Ms Myra Linda Oswald, and her then partner, Mr Glenn Wakeham.
2. The applicant and Ms Oswald were citizens of the United Kingdom, and lived there with their daughter, Sarah, until 1999. Following the breakdown of the relationship in August 1999, the applicant brought his daughter to Australia in December 1999, using false passports.
3. Ms Oswald followed the applicant to Australia to join her daughter, and took up residence with Mr Wakeham. The applicant became fixated with the idea that Mr Wakeham was a paedophile who would harm his daughter.
4. In January 2000, the applicant met Ms Conway, at an internet cafe in Melbourne of which her parents were the proprietors. The applicant initially gave her a false name, but subsequently disclosed that he had arrived in Australia on an illegal passport and had abducted his daughter.
5. In February 2000, the applicant was detained, as an unlawful citizen, and transferred to Villawood Immigration Detention Centre. However, he remained in telephone contact with Ms Conway. In the course of their conversations, the applicant sought to involve Ms Conway in his plans to expose Mr Wakeham as the paedophile he believed him to be, and to regain custody of his daughter. The applicant also informed Ms Conway that he and an associate in the United Kingdom, named "Dave", had a "Plan B" which involved killing Mr Wakeham.
6. Although killing Ms Oswald was not initially part of the applicant's plan, that changed on or about 23 March 2000, when he informed Ms Conway that he wanted the favour from Dave "doubled". After the applicant told Ms Conway, in early April 2000, that a detainee who was being released from the Villawood Immigration Detention Centre would carry out the killings in exchange for the applicant paying his bond, Ms Conway contacted the police.
7. On 27 April 2000, the applicant called Ms Conway when police officers were present at her residence. In the course of that conversation, Ms Conway told the applicant, on instructions, that she had met with an associate of a hit man, who wished to meet with the applicant at the Villawood Immigration Detention Centre.
8. The associate was in fact the undercover police officer, "M". He twice met with the applicant at the Villawood Immigration Detention Centre, on 2 and 8 May 2000, wearing a listening device on both occasions. The undercover officer also had two telephone conversations with the applicant, on 4 and 5 May 2000. In the course of their conversations on the above dates, the applicant solicited the undercover officer to arrange the murders of Mr Wakeham and Ms Oswald.
9. All four conversations were recorded, save for part of the telephone conversation of 5 May 2000 when the recording malfunctioned. As to that conversation, the undercover officer gave evidence at the trial that he endeavoured to replay the call as soon as it was completed. When he realised that portions of the conversation had not been recorded, he replayed the tape a number of times and made notes of what was missing to the best of his recollection.
10. In addition to the applicant's conversations with the undercover officer, the Crown relied on the recordings of 21 intercepted phone calls between the applicant and Ms Conway in the period 2-8 May 2000. In those conversations, the applicant discussed with Ms Conway the arrangements he had made with the undercover officer for the murder of Mr Wakeham and (of higher priority) Ms Oswald, which he referred to largely in code as "gathering legal evidence".
11. In terms of their relative significance to the Crown case, the conversations between the applicant and the undercover officer were highly important, being relied upon for the physical act of solicitation. The conversations with Ms Conway formed part of the context in which those physical acts took place.
12. Both the undercover officer and Ms Conway gave evidence at the trial and were cross-examined. They affirmed that the recordings before the jury of their respective conversations with the applicant were accurate. In cross-examination, Ms Conway expressly disagreed with the proposition that there had been any alteration to the recordings, stating that, having heard the recordings again, she recalled "virtually 97 per cent of everything that was said there from memory".
13. The applicant also gave evidence at the 2001 trial. He admitted that he had many conversations with Ms Conway when he was at the Villawood Immigration Detention Centre and that he had four conversations with the undercover officer. He also admitted that many of the recorded conversations in evidence contained his voice. However, the applicant contended that some of the recordings had been fabricated, and others had been tampered with, so as to make them appear incriminating. He suggested that the manipulation of the recordings could have been done by the police or by Ms Conway.
14. As part of his challenge to the authenticity of the recordings, the applicant relied on a "web trace" prepared by Ms Conway's telephone service provider, Optus, the contents of which did not include a record of five of the calls on which the Crown relied ("the web trace"). An employee of Optus, Mr David Finlay, gave evidence that, on occasion, a web trace may be incomplete because it would not record calls from a Telstra service that was forwarded through more than one exchange. In cross-examination, he accepted that another explanation for missing phone calls was that the calls were not made. The applicant's counsel made reference to this in his address to the jury.
15. The applicant also relied on the fact that there were some discrepancies in the length of the recordings, as reflected in the transcript and as reflected in the times given by the undercover officer. Both the undercover officer and Ms Conway were questioned about these discrepancies when cross-examined by the applicant's counsel, although ultimately his counsel did not refer to the issue in his closing address to the jury. The Crown Prosecutor made the following submission: Mr Lucas might point to what he would say were the differences in times with the tapes. Remember the accused made a lot about that? Tape 1 - I'm not going to delve too deeply into this. I'll leave it to you. I'll leave it to Mr Lucas to address you about it. There really is a very simple answer to it all but tape 1, which was 2 May 2000 - and I give this by way of example. The transcript records from approximately 7 to 7.30pm, in other words, 30 minutes. The defence says in fact that the tape is 34 minutes. Where's the other 4 minutes, they would say. There's a very simple and human explanation to that, and that is that Mal either looked at his watch, or looked at the clock on the car, and of course the watch and the car don't necessarily have the same time. He might have looked at his watch on one occasion, the car clock on another. Therein lies the reason perhaps for a difference in time. Not saying that this is what necessarily happened but there's a very rational reason for the difference in time. He said that the walk to the car, there's a difference in time there. There might be a difference in time, simply due to the fact that either the watch or the clock is slightly out. Tape 21, 8 May 2000, the defence say this is actually a 30 minute tape, whereas if you time it from 4.22 to 4.55 then that's 33 minutes. So the Crown says it's 33 minutes, the defence 30 minutes. I suppose they would say an extra 3 minutes has been added on. Just go to tape 21. You'll see there's a very easy explanation to this one. You'll see that it starts - the date is 8 May, the time is approximately 4.22. Yes, 4.22 to 4.55 is 33 minutes. If you go down further, you'll see what happened was that Mal started to time again from 4.24. ...If you count from 4.24 to 4.55, you've got 31 minutes. Take into the account a watch being out or looking at the different clock rather than his - the car clock rather than the watch, you've accounted for another one minute. Tape 9 - no need to turn this one up, probably - tape 9's 4 May - no let's turn it up. 4 May is: "Today's date is 4 May. The time is 5.40pm." There's an Exhibit D which is a telephone record which shows the call was actually made at 5.42, so 2 minutes out. Far from suggesting that Mal never made this call, surely that confirms that he did make the call.
16. Additionally, in respect of the phone call with the undercover officer on 5 May 2000, the applicant contended that the times of the recordings indicated that it allegedly took place at the same time as he was recorded as having been on the phone to Ms Conway.
17. In his address to the jury, the Crown Prosecutor reviewed the recordings and made the following submissions: 1. The web trace was an investigative tool, not a tool to be presented as conclusive evidence of precisely what phone calls were made. There were many reasons why the web trace records were not accurate, and it was not pretended that they were accurate. 2. As to the conversations with the undercover officer, the tapes revealed a request by the applicant to someone he believed could organise the murder of his victims. 3. To suggest that the recordings were fake was "ridiculous" in light of the various intimate facts known to the applicant that the recordings contained, such as his time in detention in Melbourne before transferring to the Villawood Immigration Detention Centre; the birthday of his daughter; and details of Family Court proceedings including an occasion when he saw his daughter. 4. In so far as the applicant was recorded as wanting to "gain legal evidence", it was "plainly ridiculous" that this was his purpose in speaking to the undercover officer: "Why, when speaking to the undercover officer, would he be concerned that Mal was wired up? Why would the accused be so disinterested in having a contact number for Mal, when his primary concern was the information that Mal would supposedly turn up on Glen Wakeham to advance the suggestion of paedophilia? Twenty thousand dollars is not legal evidence, members of the jury. That's money for a killing". In this context, the Crown Prosecutor also observed: (i) that M repeatedly referred to "doing the knock"; and (ii) that, in a specific conversation between the applicant and Ms Conway on 8 May 2000, she relayed information from the hit-man that "they had her all lined up for an accident but because the money wasn't there, she'll live another day". 5. The jury should accept Ms Conway as a witness of truth. 6. The Family Court proceedings, by which the applicant was seeking to obtain custody of his daughter, were not going well during this period, such that he needed a guarantee. 7. In his evidence, the applicant had told the jury "just a whole host of lies". Included in the Crown Prosecutor's submissions on this subject was the different sworn evidence the applicant had given, as between what he said on the voir dire regarding admission of the recordings and what he said to the jury, on the subject of whether it was his voice on the recordings with the undercover officer. On the voir dire, the applicant had said that the two conversations recorded by a listening device with the undercover officer did not include his voice; while in his evidence before the jury, the applicant agreed that one of those recordings substantially contained his voice.
18. In support of the submission listed above at [35(1)], the jury heard evidence from Mr Andrew Schofield, a Detention Supervisor at the Villawood Immigration Detention Centre, who said that the applicant used the phone in the office "on three or four occasions". Mr Schofield said it was not unusual for him to allow detainees to use the phone in his office, and indeed there were times when he had been directed by the Detention Manager to do so as the phones were so congested that detainees often had to look for another place for their calls.
19. Mr Schofield said the practice of allowing detainees to use the office phone was "just a frequent thing which was done". The applicant had also given evidence in chief that he had used Mr Schofield's phone "two or three times", because there was always a queue for the pay phones. In cross-examination on another topic, the applicant again admitted that he had used Mr Schofield's phone: I mean, Schofield, the officer concerned, I don't know whether I can say this, Schofield knew exactly what was going on, because it was all arranged in his office in his presence, on the phone. I'm sorry, I appreciate Schofield didn't say that because he wasn't asked that question but I mean, there was no secret about this"
20. In his summing up, Hosking DCJ gave the following directions to the jury in relation to the recordings and the transcripts: The recordings which the Crown relies upon between the accused and Debbie Conway and more directly, the accused and the undercover officer Mal, you will have with you in the jury room as exhibits H and J in the form of those CD's and I will ensure that there is some form of CD player in there so that you can play them again if you wish to do so. Although I told you during the course of the trial that in the ordinary course of events you and I do not get to see documents marked for identification. The bundle of transcripts which is marked for identification ten is an exception to that rule. Those transcripts have not been marked as an exhibit in the trial as have all the other exhibits that you will have because as I said earlier, the transcripts themselves are not the evidence, the evidence is the actual recordings themselves that is to say the sounds that you hear on the recording. I will repeat part of the important direction that I previously gave you in relation to these transcripts. The evidence of the conversation which the transcript purports to describe is not what the transcript says but rather the sounds on the recording itself. As I said earlier,171 the transcript is simply an attempt by somebody to record what they think can be heard on these recordings. You might think that the transcripts are substantially accurate, although not completely accurate. What is important is what you believe you can hear on the recordings and not what the person who prepared the transcript thought that they could hear. The transcripts were given to you simply to assist you in following what is said on the recordings themselves. As I said to you earlier, you must not form any conclusion of fact or draw any inference against the accused on the basis of anything contained in any of those recordings unless you are satisfied that the particular words can be heard on the recordings themselves. If the transcript suggests that the recording contains words which are said by the Crown to be against the accused, or you think are against the accused, then you should disregard those words unless and until you are satisfied that the recordings actually contain those words. There is one exception to this, and that is the recording of the telephone call between the accused and Mal on 5 May 2000 as per Tab B in the folder. That has in fact been tendered and is a separate exhibit, exhibit E. You will recall that in that conversation or during that conversation there are a series of what sounds like electronic noises where words are obscured and that the undercover officer said that he was obliged to supplement the words that can be heard with notes that he took. He said that in parts of that transcript, exhibit E and Tab 12 comprise his reconstruction of what was said where the actual words uttered cannot be heard. You will remember that evidence was given by the undercover officer that because of that poor recording, he said we, that is to say the police, took it to a technical section to see whether that recording could be enhanced, but that they were unable to enhance it and that he was unable to explain why those electronic noises appear on that recording. He said that he made those notes of what was said only a matter of minutes after the conversation actually took place. In relation to that particular recording and that particular exhibit, exhibit E or Tab 12 if you like, I give you this direction, if you think that any of the words which cannot be heard are critical then you must be satisfied that they were in fact spoken as alleged by the undercover officer before you can take them into account against the accused. Please remember that the accused says that that conversation simply did not occur. The accused has told you that it is not his voice on that recording and that that particular recording is a complete fabrication.
21. At the conclusion of his Honour's summing up, the applicant's counsel asked for a further direction in relation to the recordings of the applicant's conversations with the undercover officer. Although his Honour considered he had already dealt with the issue, his Honour gave the following further direction: Mr Lucas asked me to make clear to you, if I have not already made it clear, one matter. The one matter is this. As I have told you the Crown relies upon the conversations directly, these conversations, the four of them, between the undercover officer M and the accused to prove the soliciting with intent to murder. If you are not satisfied beyond reasonable doubt that the portions of those conversations that the Crown must rely on to prove the two solicitations as set out in the indictment, if you are not satisfied beyond reasonable doubt that those conversations occurred then it is your duty to acquit the accused. But put another way, if you have a reasonable doubt that those conversations ever took place in those terms at that time, you should acquit the accused.
22. His Honour had earlier observed that it was the Crown case, in relation to the recordings, that either the accused was not telling the truth or the truth was not being told by Ms Conway, the undercover officer, "and anyone else involved in the recordings".
23. In later sentencing the applicant, Hosking DCJ described it as "not surprising" that the jury rejected even a reasonable possibility that the applicant's account of the fabrication of the recordings was true: "I say 'not surprisingly' because in my view, the Crown case against the prisoner in relation to each of the two counts was strong to the point of being overwhelming".

The Telstra material

1. In 2004, in preparation for Potier Appeal No 1, the applicant issued a notice to produce to the police. In response to the notice, the police produced a letter dated 10 October 2001 from Detective Laidlaw to an officer of Telstra, Ms Foster, together with a statement of Ms Foster dated 11 October 2001. Ms Foster's statement annexed the call charge records for the three Telstra payphones at the Villawood Immigration Detention Centre for the period 1-9 May 2000. This material was referred to as "the Telstra material".
2. In his letter, Detective Laidlaw (the record shows his rank changed overtime) requested a call charge record search on three specified phone numbers, which were referable to three Telstra payphones at the Villawood Immigration Detention Centre, together with a statement outlining the results of that search for production in the proceedings. It was common ground that the five calls that were missing from the web trace were not recorded as calls from these three phones (see Potier Appeal No 2 at [60]).
3. In its later submissions resisting special leave to appeal to the High Court, the Crown summarised the issue of whether or not the statement was supplied to either the Crown or the applicant's representatives during the trial as follows: The issue arose during the applicant's trial for a further count of "solicit to murder". On 29 August 2006 Detective Laidlaw gave evidence in that trial to the effect that he "would say" he had received the Telstra material during the first trial on the 11/10/01 or on 12/10/01 by way of fax, and he believed he brought it to the attention of the then Crown Prosecutor or his instructing solicitor. When asked if he was quite sure he had given it to the Crown Prosecutor he said "Yes" (T p 366). However it was noted that the Telstra material only bore fax imprints from 2006 (T p 374). An earlier subpoena to the Crown seeking production of the documents concerning the Telstra material had produced the response that there were no such documents on the Crown file (District Court transcript of 18 July 2006 p 2).

Potier Appeal No 1

1. As summarised by McClellan CJ at CL in Potier Appeal No 1 at [48], the applicant contended on appeal that the trial judge erred in his directions regarding the recorded conversations. The applicant also relied on the Telstra material as "fresh evidence", in support of his contention that some of the recorded telephone conversations with Ms Conway had been fabricated.
2. The Crown contended that the Telstra material was not fresh, and that in any event it was of no relevance because the Crown did not assert that the calls which were missing from the web trace were made from the three payphones. The Crown relied in this respect on the evidence of Mr Schofield.
3. In so far as the applicant challenged the accuracy of the recordings, McClellan CJ at CL observed that the issue of accuracy was left to, and considered by, the jury (Potier Appeal No 1 at [67]). His Honour considered that the directions that the trial judge gave in relation to the recordings and the transcript thereof were adequate and appropriate (Potier Appeal No 1 at [69]; see also [54]). In his Honour's opinion, the trial judge's directions were both fair and adequately reflected the applicant's defence (Potier Appeal No 1 at [52]), referring on a number of occasions to the evidence of undercover officer and Ms Conway and the content of the recorded conversations (Potier Appeal No 1 at [50]). His Honour also observed that the trial judge was careful to put before the jury the applicant's response to that evidence and his challenge to it (Potier Appeal No 1 at [50]).
4. In relation to the applicant's reliance on the Telstra material, his Honour rejected its characterisation as fresh evidence on the basis that the material was included in the Crown brief (Potier Appeal No 1 at [49]). The Crown subsequently accepted that his Honour was wrong so to conclude (Potier Appeal No 2 at [483]-[485]).

Special leave to appeal to the High Court

1. The applicant sought special leave to appeal to the High Court more than 6 years out of time. The focus of the HCA application was the Court of Criminal Appeal's error in finding that the Telstra material had been served on his representatives in advance of the 2001 trial. On 6 September 2013 the HCA application was heard.
2. The Crown conceded that the Court of Criminal Appeal was wrong in its dismissal of the Telstra material as fresh evidence, in Potier Appeal No 1, on the basis that it had been served before the trial. However, the Crown contended that, if the Court of Criminal Appeal had addressed the requirements of fresh evidence, it could only have concluded that those requirements were not met and that the ground of appeal could not be made out or was otherwise untenable. In this context, the Crown made the following points: 1. Had they been regarded as relevant, the applicant could have sought Telstra's records by subpoena before the trial (noting that Mr Finlay's statement had been served several months in advance of the trial). 2. The Telstra material was not relevant to the issues at trial because the Crown did not purport to establish, nor did it need to establish, which phone or phones the applicant used to call Ms Conway. The Crown did not allege that the calls that were missing from the web trace were made from one of the three phones to which the Telstra material related and Mr Schofield's evidence established that the applicant had on several occasions used at least one other phone - being that in Mr Schofield's office - to call Ms Conway (Potier Appeal No 2 at [65] and [97]). 3. The crucial evidence in the Crown case was that of M and his conversations with the applicant, as supported by the recordings of those conversations. The Crown case in that regard was overwhelming.
3. The High Court, constituted by Hayne and Bell JJ, was not persuaded that it was in the interests of justice, either in the particular case or more generally, to grant the lengthy extension of time within which to apply for special leave or, if that extension were made, to grant special leave. The Court accordingly refused the application.

The 2006 trial

1. Following the Court of Criminal Appeal's dismissal of Potier Appeal No 1, the Crown proceeded with a bill of indictment against the applicant, on a further offence of solicit to murder.
2. The Crown alleged that, in early 2002, while the applicant was in custody at Long Bay gaol awaiting sentence on the earlier convictions, he solicited a fellow inmate, referred to as "A", to murder Ms Oswald. The evidence for the Crown centred upon a number of conversations between the applicant and inmate A, from 1 January to 2 February 2002, which were recorded on a listening device placed in a TV set in the applicant's prison cell (Potier Appeal No 2 at [12]). On 3 October 2006, the applicant was convicted on that further charge following a trial by jury in the District Court presided over by Shadbolt DCJ.
3. In support of the further charge, on a pre-trial application before Shadbolt DCJ, the Crown successfully applied for leave to adduce tendency and coincidence evidence. The evidence on which the Crown relevantly sought to rely included the monitored conversations and telephone calls between the applicant and each of Ms Conway and the undercover officer played at the first trial, and extracts from the listening device and telephone interception transcripts. In giving judgment on the voir dire on 24 March 2006, Shadbolt DCJ remarked: The offences would have to be seen as substantially similar and committed in circumstances which were substantially similar as they have the same alleged victims, precisely the same motivation, a similar modus operandi, the same use of primitive codes, the same offer of substantial sums of money and the same reliance on mere acquaintances. Indeed, looked at from short distance, they are identical and represent a continuum of the same criminal ideation. The probative value of this evidence is extremely high. That the accused, even before he spoke to [A], had been convicted of the self same offence, that of encompassing the death of his wife by inciting another to murder her, is highly relevant evidence that, still harbouring the same murderous intent, he solicited [A] to finish the task. It demonstrates, if nothing else, firstly, that his destructive urges in this regard continued [un]abated and secondly, that he went about this self-imposed task in precisely the same way and is telling evidence that [A] is a witness of truth in this regard.
4. In allowing the Crown to adduce this evidence over the applicant's objection, the trial judge expressed the view that its prejudicial quality was substantially outweighed by its probative value. His Honour further considered that, if the evidence of Ms Conway and M were to be accepted, there would be no rational hypothesis that was consistent with the applicant's innocence.
5. On the appeal from that conviction, the applicant took issue with the admission of the recordings that related to the 2001 convictions, which are the subject of the present application, relying on substantially similar grounds to those now advanced. Justice Ward, with whom Simpson and McCallum JJ agreed, rejected those arguments (to which I will return below).

The application

1. The applicant contended that the only independent evidence relied on by the Crown in the 2001 trial was the recordings before the jury and, in light of "new evidence", namely, the original recordings obtained after the 2001 trial, the recordings before the jury were discredited to such an extent that the 2001 convictions are no longer sound or sustainable. In addition to the recordings, over the course of his submissions, the applicant also specifically turned to criticise the evidence of Ms Conway, the undercover informant and Detective Acting Superintendent Laidlaw and submitted that beyond the evidence of those witnesses and the recordings "there was no evidence of substance supporting the Crown case".
2. In support of his application the applicant provided the following: initial short submissions dated 13 August 2015 (4 pages); legal submissions and references dated 19 January 2017 (6 pages); detailed submissions dated 19 January 2017 (36 pages); 20 exhibits (including: "CD of Trials, Evidence given and transcripts" (MHP 15), "Jury Version of conversations between Applicant and Conway" (MHP 16), "Original recordings of conversations between Applicant and Conway" (MHP 17), "Recordings of conversations between Applicant and M 2nd & 8th May 2000" (MHP 18) and "Recordings of conversations between Applicant and M 4th & 5th May 2000" (MHP 19)); and reply to respondent's submissions dated 25 May 2017 (14 pages).
3. I will deal with each aspect of the application, relying upon that material, under the following headings: the two sets of recordings; overlapping phone calls; evidence of two senior police officers; the Telstra material; the evidence of Mr Schofield and reliance upon the publication: Secrets of the Jury Room.

The two sets of recordings

1. The applicant disputed the authenticity of the recordings before the jury from the first investigation, made between 2-9 May 2000, and upon which the 2001 convictions were based. The applicant obtained the two sets of recordings in November 2008 in response to a notice to produce served in June 2008. The first set were identified as the certified original recordings made in the telephone interception branch of the police (which I have described as the original recordings) and the second set were the recordings before the jury in the 2001 trial. The applicant submitted the recordings before the jury were "the only independent evidence of the commission of the first offences".
2. The applicant's contentions with respect to the recordings as "new evidence" may be summarised as follows: 1. the recordings before the jury were not genuine and had been altered and/or manufactured by persons and methods unknown; and 2. the existence of the original recordings was only disclosed 8 years after the 2001 trial.
3. The recordings before the jury in 2001 were also before the jury in the 2006 trial. It was submitted that the Crown incorrectly presented the recordings to the jury as "genuine" and without "tampering or falsification of any conversations that had been had".
4. The applicant relied upon, inter alia, the following evidence to support its complaint in this respect: 1. In support of the alleged falsification of the recordings, the applicant pointed to discrepancies in the "stop/start" times as recorded by the undercover officer and the length of the recording itself (see MHP 2). 2. The applicant also referred to an alleged inconsistency between the recording and the transcript of a conversation between the applicant and an undercover officer. In the transcript of recording, the undercover officer asked: "And I am certain you want, you want them knocked basically" and the applicant is recorded as saying "mmm". It was contended that such a response cannot be heard on the recording and, further, such response neither indicates agreement nor disagreement. On appeal, Ward JA also confirmed that the response of "mmm" could not be heard: Potier Appeal No 2 at [527]. This is important, it was submitted, as an offence under s 26 of the Crimes Act requires a serious request made to a party to commit a murder. 3. Turning to a recording between the applicant and Ms Conway on 5 May 2000. It was contended the "original" copy of the recording was twice as long as the copy played before the jury (see MHP 16 and 17).
5. In light of the submissions put on this application, it was contended that the Court should find the recordings should have never been put to the jury at the 2001 trial. Further, the strength of the Crown's case was founded upon the recordings, which led to the applicant's conviction in the 2001 trial. The recordings were also led in the 2006 trial. Hence, it was also submitted that any finding as to the unreliability of the recordings would also directly affect the 2006 conviction.
6. In alternative, if the Court was of the view that the jury should, nonetheless, have heard each recording then, it was submitted, there was a need for "warnings of such a nature that would have substantially reduced their importance thereby producing, with a reasonable degree of probability, a different verdict".
7. Both sets of recordings were considered by the Court of Criminal Appeal in Potier Appeal No 2.
8. In her Honour's judgment (Potier Appeal No 2 at [91]), Ward JA rejected the applicant's contention that extracts played to the jury were not "genuine" on the basis that it was an extraction from an original tape and excluded a large number of irrelevant conversations. Further, in relation to the same, the applicant did not identify any material from the "master tape" to warrant a conclusion that there had been "a material alternation between the two sets of recordings" (at [523]).
9. Her Honour rejected the applicant's submissions with respect to a number of complaints which were also repeated on this application (Potier Appeal No 2 at [523]-[524]): [523] The difficulty with this submission is that Mr Potier does not point to anything added to or excised from the original recordings or master tape to warrant a conclusion that there has been a material alteration between the two sets of recordings. True it is that the VHS tape produced at the telephone interception listening post of the 2 May 2000 meeting with M is blank. However, that does not cast doubt on the recording produced from the listening device that M had with him at the time. Similarly, there is interference on the recording of the 5 May 2000 telephone conversation but there was no attempt to hide that and it was a matter for the jury whether they accepted M's version of the missing words. [524] The analysis that Mr Potier has carried out as to the stop/start times of some of the recordings and the length of the recordings played to the jury does not raise doubt as to the authenticity of the recordings, particularly in circumstances where (for example) M's notation of the time of commencement and cessation of the recording on the listening device used on 2 May 2000 was based on his watch, which may or may not have been accurate. The significance placed by Mr Potier on the "overlapping" calls on 5 May 2000 is similarly weakened by the fact that on at least one recording, Ms Conway is informed by an officer at the detention centre that Mr Potier is on another conversation at the time.
10. In light of the applicant's emphasis upon the two sets of recordings, Ward JA confirmed she listened to both and described the exercise as "quite unproductive in terms of revealing any obvious lack of authenticity in the recordings", but at the same time "instructive in dispelling any suggestion that the jury could not have been satisfied beyond reasonable doubt that what [the applicant] was talking about with [the undercover officer] (when he referred to evidence to being gathered) was something that did not bear the innocent explanation that [the applicant] seeks to ascribe to it" (Potier Appeal No 2 at [149] and [525]).
11. Further, as to the applicant's reliance upon Ward JA's inability to hear "mmm" in response to a particular question, it does not follow that the conclusion that the applicant agreed to the commission of the offence was not otherwise available on the evidence. Ward JA reached that very conclusion: "Listening to the tape without the benefit of high definition headphones… I could not hear the response 'mmm' … However, there are sufficient other references in the transcripts to be able comfortably to be satisfied that there is no innocent explanation for the transaction that [the applicant] was seeking to arrange with [the undercover officer], particularly when the recordings with [the undercover officer] and with Ms Conway are placed in chronological order" (Potier Appeal No 2 at [527]).
12. The applicant's submissions on this application do not add, in any meaningful way, to the argument previously considered by the Court Of Criminal Appeal in Potier Appeal No 2. The applicant has failed to point to any difference in dialogue, in words used, or any break in the recordings, such as might ground an inference that there was interference with the recordings. In my view, his submissions in this regard, do not give rise to the appearance of any doubt or question as to the authenticity of the recording or their accuracy.

Overlapping phone calls

1. The applicant submitted that the evidence relied upon by the Crown revealed that two "important conversations" with the applicant took place at the same time on 5 May 2000, one with Ms Conway and the other with the undercover officer, by reference to the phone account of the undercover officer and the copy of the web trace (see MHP 10 and MHP 11). The records showed that the applicant was on the phone to Ms Conway from 7.30pm and, at the same time, on the phone to the undercover officer from 7.35pm.
2. This overlap, it was contended, was not accounted for in transcript or the recordings themselves. Accordingly, it was submitted by the applicant, this discrepancy should call into serious question the overall nature of the evidence obtained by the police. In this respect, reference was also made to the malfunctioning of the undercover officer's recording device (the malfunction was not disputed).
3. The overlap was addressed and accounted for by the Crown prosecutor during the 2001 trial. The Crown prosecutor took the jury through the sequence of the calls and identified that the undercover officer's phone call to the applicant on 5 May 2000 was the one for which the recording was defective in part; the undercover officer, accordingly, took handwritten notes. The handwritten notes provided the following supplementation: 1. The undercover officer initially observed: "I'm just endeavouring to get through. The phones are busy at this stage"; and 2. When his call was answered, the undercover officer was told that the applicant was on another call. The undercover officer said to the Immigration Officer, "Just let him know it's Mal". There was a pause and the applicant came on the line and said, "Just listen. Debbie. I have just spoken to Debbie".
4. The evidence is consistent with the applicant not being on the phone simultaneously, but, rather, first speaking with Ms Conway and then to the undercover officer.
5. I do not find that the apparent prima facie overlap gives rise to the appearance of any doubt or question as to the authenticity of the existence of the two phone conversations.

Conflicting accounts of two senior police officers

1. The evidence at the 2001 trial was that the undercover officer wore a listening device on his visits to the Villawood Immigration Detention Centre, so as to record the face-to-face meeting with the applicant. For that purpose, on 2 May 2000, a Listening Post was set up. Two types of recording equipment were employed: a transmitting device to the Listening Post where the conversation was to be recorded (to produce a back-up copy) and a direct recorder worn by the undercover officer. On that day the recording failed and produced a blank tape.
2. The applicant submitted that, during the 2006 trial, two senior police officers gave "directly contradictory sworn evidence about a critical meeting [on 2 May 2000] only one of which can be true". The contradiction was between Detective Chief Inspector Jones and Detective Acting Superintendent Laidlaw. Both were present at the "Listening Post" set up by NSW Police for the alleged meeting of 2 May 2000.
3. As to the recording of the meeting, Detective Chief Inspector Jones gave evidence that the recorder at the Listening Post failed and a "blank tape" was generated and entered into the Police Log Book (see MHP 8). In contrast, Detective Acting Superintendent Laidlaw stated, in the 2006 trial, that he was given a copy of the audiotape made at the Listening Post (i.e. not from the undercover officer's recording device) and that it had a recorded conversation (see MHP 20). It was contended the evidence of Detective Acting Superintendent Laidlaw supports the submission that a copy of audio exists contrary to the evidence of Detective Chief Inspector Jones. This discrepancy, again, calls into serious question, it was submitted by the applicant, the overall nature of the evidence obtained by the police.
4. The applicant also placed reliance upon the evidence of Technical Police Officer Cvek and contended that following an order to produce the "blank tape" was produced and that "this further copy no contains audio of the alleged conversation". Reference was also made to the subsequent retrieval of audio by "enhancement" by the Technical Services Branch. The applicant contended that such evidence, again, should raise "serious concerns about the recording of, 2nd May 2000" and, in turn, similar concerns with respect to other recordings.
5. The applicant made this same submission to the Court Of Criminal Appeal in Potier Appeal No 2. Ward JA rejected it. Her Honour's reasons are extracted below (at [109]-[114]): [109] Acting Superintendent Laidlaw's evidence (at T 346) was that the entire conversation between M and Mr Potier recorded on 2 May 2000 "was recorded on audiotape" and that together with other undercover branch operatives he monitored the conversation. None of that is inconsistent with Detective Inspector Jones' evidence, from which it is apparent that he thought that the conversation was being recorded in the listening post at the time that the conversation was being monitored. Acting Superintendent Laidlaw then said that at the conclusion of the conversation with Mr Potier, the audiotape was later copied and handed to a Detective Platt. He was not asked whether he had listened to the tape at that stage or, if he did, whether the tape was blank. To this point the only potential inconsistency in the evidence is whether a copy of the audiotape generated at the listening post (which according to Detective Chief Inspector Jones was blank) had been provided to the investigating officers or not. [110] Acting Superintendent Laidlaw was further cross-examined as to his statement that the entire conversation had been recorded on audio tape. He said that the original of the tape was with the undercover branch and went on to say "I won't go into specifics on how it was recorded, obviously for methodology reasons, but I believe it is with them" (T 356.25). That answer strongly suggests that what Acting Superintendent Laidlaw was there referring to was the recording made on the device that was with M, since it was that device that was the subject of the claimed immunity. [111] He then agreed that at the end of the conversation on 2 May 2000 Detective Platt was given an audio tape of the conversation so that it could be transcribed; said it was a copy not the original; and said that that was produced at the conclusion of the conversation. He also agreed that in his statement he had said that he was given an audio cassette tape that he had caused to be transcribed. [112] What emerged from the course of that cross-examination does not permit a finding that either of the police officers was lying and it was not put to either of them that he was. [113] The most likely explanation of any inconsistency in the above evidence is confusion as to the different modes of recording and, in particular, to the device that was used by M (which was the subject of the claim for public interest immunity). Such confusion, without any disrespect to Mr Potier's then counsel, was apparent from the questioning of Detective Chief Inspector Jones (see from T 277-279), which led to discussion, in the absence of the jury, as to how, as a technical matter, the compact disc of the 2 May 2000 conversation was produced. Counsel for the Commissioner of Police made it clear that the public interest immunity related to the assumption that counsel for the defence had made in questioning Detective Chief Inspector Jones to the effect that the recording and the equipment were distinct. This led to information being provided on a confidential basis to the trial judge and to counsel for the defence, which Mr Healey indicated was of assistance to him in elucidating the matter. [114] From the questioning of Detective Chief Inspector Jones that followed, it is apparent that it was the recording by M (not the VHS audiotape that had been produced at the listening post) that was forwarded to the STIB for possible "enhancement".
6. The applicant has not identified any error in his Honour's reasons in rejecting his argument but seeks to re-agitate the same contentions on this application.
7. Finally, as to the applicant's reliance, in support of this submission, on the evidence of Technical Police Officer Cvek, I agree with the submissions of the Crown that such reliance is misplaced. The submission concerned a report produced by Officer Cvek which stated that, due to advances in technology, he had recovered audio product from four recordings, namely, telephone calls that took place on 3, 4 and 7 May 2000, none of which were related to the conversation between the undercover officer and the applicant on 2 May 2000.
8. I accept the reasoning provided by Ward JA and do not find that the apparent inconsistency between two sworn statements of Detective Chief Inspector Jones and Detective Acting Superintendent Laid provides the foundation for "doubt or question" as to the evidence provided and obtained by the police.

Telstra material

1. The applicant submitted there was a discrepancy between the calls said to be made by the applicant to Ms Conway, namely, five of the nine calls do not appear on the web trace of Ms Conway's phone: they were not recorded as ever being received. Further, the same five missing calls were absent from the Telstra material. In this respect, the applicant called into question the authenticity of the recording of those calls.
2. The applicant relied upon the evidence of Mr Finlay. It was submitted that his evidence confirmed that the non-registration of five missing calls could be attributed to one of two factors: (1) the call having been made but the search methods used were at fault, or (2) the calls were not made.
3. The applicant contended that the Telstra material in conjunction with the web trace supported the conclusion that the five missing calls were never made, particularly in the absence of "independent corroboration". (I note the applicant also rejected the Crown's "other phone used theory"). This was relied upon to support the submission that the recordings were manufactured to obtain and sustain convictions.
4. As to the late receipt of the Telstra material, it was contended by the applicant that Crown was aware of relevance of the evidence to the applicant at the 2001 trial and breached its obligation to disclose it.
5. The complaint being re-agitated by the applicant is misguided for the following reasons: 1. The Crown did not rely upon the web trace material as an accurate record of the calls which took place between the applicant and Ms Conway. Rather, the Crown relied upon the recordings and, in light of the applicant's contentions, it was left to the jury to accept or reject their authenticity. The Telstra material does not give rise to the appearance of any doubt or question as to the applicant's guilt. 2. The applicant's distillation of Mr Finlay's evidence, with respect to his explanation as to the five missing calls on the web trace, does not accurately record his evidence. In Potier Appeal No 2, as to the same, Ward JA observed (at [57]): Mr Potier understands the import of Mr Finlay's evidence to be that there are only two possible explanations for the fact that five of the nine telephone calls did not register or appear on the web trace of Ms Conway's telephone: that the wrong search methods had been used or that the calls had not been made. That was not Mr Finlay's evidence. Rather, Mr Finlay gave one explanation for calls not appearing on the web trace and accepted that there was another possible explanation as put to him in cross-examination; he did not in terms say that there were only two possible explanations. A third possible explanation that would accord with Mr Finlay's explanation of the web trace process, and one which assumes some relevance in light of later events, would appear to be that the correct search methods were used but the correct telephone number from which the call was made had not been identified. 1. Reliance was also placed by the applicant upon the evidence of Detective Acting Superintendent Laidlaw and an alleged admission as to the pay phones at the Villawood Immigration Detention Centre. This submission was again rejected by Ward JA (Potier Appeal No 2 at [63]): [63] …There is no basis to suggest that he had any personal knowledge of which, if any, of the available telephones might have been used to make the disputed "missing" calls. The statement made in his letter of 10 October 2001 can at best reflect his assumption that those telephones were the ones that had or may have been used. … [65] … Detective Inspector Laidlaw made clear in his evidence at the second trial that it had simply been his assumption that the calls were made from one of the pay phones. He said there were other telephones in the detention centre to which inmates could have access. There was also evidence at the first trial from a Mr Schofield, an officer at the Long Bay correctional centre, to the effect that on occasion inmates, including Mr Potier, had used a telephone in his office to make telephone calls. 1. During the 2001 trial, the applicant's representatives sought and were granted a short service subpoena addressed to Telstra. However, no further or new material was obtained from Telstra. The applicant's representatives stated that inquiries would be made to the Registry, but no further discussion was raised in the proceedings. 2. During the 2006 trial, the applicant's representatives were on notice of the evidence of the Telstra material (and that of Mr Schofield, discussed below) but did not seek to adduce any further evidence in relation to the phone records from Telstra.
6. Finally, in so far as the applicant relied on a perceived unfairness as to the time at which the material was disclosed to the prosecution, but not disclosed to the defence, in circumstances where the material was the subject of further consideration in the second trial, and was canvassed in detail in Potier Appeal No 2, I find there is nothing arising in the timing of receipt that gives rise to the appearance of any doubt or question in relation to the applicant's guilt in respect of the 2001 convictions.
7. The applicant relied upon its complaint with respect to the Telstra material in Potier Appeal No 1, Potier Appeal No 2 and as part of the HCA application. Whilst, it is accepted that the finding by the Court of Criminal Appeal in Potier Appeal No 1 was in part based on an erroneous factual premise, namely, that the material had been served as part of the Crown brief, the correct factual position was understood in the 2006 trial, Potier Appeal No 2 and in the HCA application.

The evidence of Mr Schofield

1. Mr Schofield gave evidence that the applicant used the phone in his office "on three or four occasions". He described the practice as not usual and this practice of allowing detainees to use the office phone was "just a frequent thing which was done". It was a response to the congestion at the payphones used by the detainees. His evidence was also confirmed by the applicant who said that he used Mr Schofield's phone "two or three times".
2. The applicant's contention, with respect to the evidence of Mr Schofield, concerned the failure of the Crown to produce evidence of any other phones being used, namely, the phone records of Mr Schofield. The applicant contended evidence was deliberately withheld: "it can only be assumed that it was treated the same way as the Telstra material and second sets of recordings".
3. The contention by the applicant, in this respect, is misconceived. As was noted by Ward JA, the Crown case did not rely upon the calls being made on any particular phone at the Villawood Immigration Detention Centre, it was not necessary for the Crown to lead evidence that the applicant contended was missing. It was, however, open to the applicant's representatives to lead such evidence in support of the positive defence that the calls did not occur. No such evidence was led, either in the second trial or on the appeal from that trial.
4. I do not find the decision of the Crown not to produce evidence of Mr Schofield's phone account, or any other phone, gives rise to a doubt or question as to the applicant's guilt or as to the evidence.

Reliance upon the publication: Secrets of the Jury Room

1. It was contended by the applicant that an extract of Secrets of the Jury Room (see MHP 6), revealed that the jury in the 2001 trial "[w]ere much concerned about the authenticity of the tapes and this was the deciding factor that led them to reach their verdict".
2. There is no proper basis for the Court to take into account of statements that are asserted to be the views of the jury as purportedly recorded by an individual juror. This submission was also rejected by the Court of Criminal Appeal in Potier Appeal No 1 (at [87]). McClellan CJ at CL observed: "In my opinion, it would not be permissible for this Court to investigate the mind of the juror either directly or by consideration of anything published in the book" (Potier Appeal No 1 at [86]). (See R v Emmett; R v Masland (1988) 14 NSWLR 327; see also Richard John Sinclair Laws (No 2) (2000) 116 A Crim R 70).

Conclusion

1. In the circumstances, the application that this Court direct that an inquiry be conducted into the 2001 convictions should be refused. There is not the appearance of doubt or question as to the applicant's guilt with respect to those convictions or as to any part of the evidence in the case of his 2001 trial for the purpose of s 79(2) of the Crimes (Appeal and Review) Act 2001.
2. There is substance to the Crown submissions that the discretion of the Court under s 79(3) is wide enough to refuse to consider or otherwise deal with the application by reason of the comprehensive judicial consideration that the matters, which were the subject of the application, have already received. However, I consider that, in view of the above determination, it is unnecessary to make a separate finding in relation to that issue. 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: 14 June 2018