Potier v Magistrate Moore & Anor

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

13411/04 Malcolm Huntley Potier v Magistrate A Moore & Anor

JUDGMENT 1 HER HONOUR: By handwritten summons filed in this Court on 20 October 2004, the plaintiff, Malcolm Huntley Potier, claims: "1) An order of certiorari against the first defendant as regards his deliberations, interim rulings and eventual findings in the Central Local Court in Sydney as regards the bail application heard in that Court on 8th and 13th September 2004. 2) Any other order that this Court may see fit to grant." 2 The summons named "Magistrate A Moore" as the first defendant and the Director of Public Prosecutions as the second defendant. Essentially, as I understand his argument, the plaintiff claims that, during the course of the hearing of an application under the Bail Act 1978, the first defendant denied the plaintiff procedural fairness. I will return to the substance of this claim in due course. 3 On the hearing of the summons the plaintiff appeared on his own behalf. The first defendant filed a submitting appearance. The second defendant, which had not filed an appearance, appeared conditionally. That was because the second defendant challenged the jurisdiction of the court to deal with the subject matter of the summons. That issue should be determined first.

jurisdiction 4 On 16 October 2001 the plaintiff was convicted in the District Court on two counts of soliciting to murder, contrary to s26 of the Crimes Act 1900. That section carries a maximum penalty of imprisonment for 25 years. On 10 May 2002 he was sentenced, on each count, to imprisonment for six years and eight months, commencing on 8 May 2000, with a non-parole period in each case of five years. On 25 August 2004 this Court (by a bench of which I was a member) allowed a Crown appeal against the manifest inadequacy of the sentences, and sentenced the plaintiff, on each count, to imprisonment for six years and eight months, with a non-parole period, in respect of one count, of five years, and in respect of the other of four years and three months. Instead of ordering that the sentences be served concurrently, as had occurred in the District Court, this Court fixed the first sentence to commence on 8 May 2000, and the second two years later, on 8 May 2002. The effective sentence thus imposed was of eight years and eight months with a non-parole period of six years and three months, the non-parole period expiring on 7 August 2006: Regina v Potier [2004] NSWCCA 136, unreported. 5 Ss4 and 5 of the Felons (Civil Proceedings) Act 1981 ("the Felons Act") are in the following terms: " 4 Leave to sue required for persons convicted of serious indictable offences A person who is in custody as a result of having been convicted of, or found to have committed, a serious indictable offence may not institute any civil proceedings in any court except by the leave of that court granted on application.

5 Grant of leave A court shall not, under section 4, grant leave to a person to institute proceedings unless the court is satisfied that the proceedings are not an abuse of process and that there is prima facie ground for the proceedings."

"Serious indictable offence" is defined in the Interpretation Act 1987 as an indictable offence (which is itself defined as an offence for which proceedings may be taken on indictment) punishable by imprisonment for life or for a term of five years or more. 6 The plaintiff has appealed against the convictions. He also sought, but was refused, leave to appeal against the sentences imposed. That application was refused in the judgment of this Court previously mentioned. He has not pursued the appeal against the convictions with any obvious vigour, and it has been struck out of the list, subject to its being restored in the event of the Court's being satisfied that it was ready to proceed. 7 The current position, then, is that the plaintiff is in custody as a result of having been convicted of two serious indictable offences, and is precluded, by s4 of the Felons Act, from instituting any civil proceedings in any court except by leave of the court granted on application. 8 The provisions of ss 4 and 5 were drawn to the plaintiff's attention. He did not accept that their provisions meant that he was not entitled to bring the present proceedings, and did not make any application for leave to do so. He argued, instead, that he had, on a number of previous occasions, brought proceedings in this Court, and that the Felons Act had not previously been raised against him. The proceedings to which he referred were:

(i) Potier v DPP [2001] NSWSC 514; 123 A Crim R 176. 9 This was a proceeding heard by O'Keefe J in June 2001. As recorded in the judgment of this Court on the Crown appeal, the plaintiff's trial commenced on 19 September 2001, and he was convicted just over a month later. There is nothing to suggest that, prior to the conclusion of that trial, the plaintiff was "a person who [was] in custody as a result of having been convicted of ... a serious indictable offence". 10 S4 of the Felons Act therefore had no application to the plaintiff at the time of this proceedings.

(ii) Potier v Magistrate Maughan [2004] NSWSC 590, unreported (per Bell J). 11 In these proceedings the plaintiff claimed prerogative orders, including an order that a Magistrate be directed, without delay, to issue a court attendance notice pursuant to the Local Court (Criminal and Applications Procedure) Rule 2003. Put shortly, he sought to have private criminal proceedings for an offence he identified as of "pervert the course of justice by omission" commenced against a police officer who had been involved in his prosecution on the solicit to murder charges. 12 There is nothing in the judgment to indicate that either of the then defendants invoked the provisions of the Felons Act.

(iii) Potier v Magistrate Huber [2004] NSWSC 720, per Kirby J. 13 This also was an application for prerogative relief, against a Local Court Magistrate, in respect of a refusal to issue court attendance notices. As with the previous matter, there is nothing in the judgment to suggest that the Felons Act point was taken by any of the then defendants. 14 That these defendants chose, either by deliberate decision or oversight, not to raise a jurisdictional issue in no way binds a subsequent defendant. There is no ruling of this Court that suggests that the provisions of ss4 and 5 have any meaning other than their ordinary and natural meaning. 15 The plaintiff did not refer to a fourth decision, but this was brought to my attention by the legal representative of the second defendant: Potier v District Court of NSW [2004] NSWCA 303. There the plaintiff applied to the Court of Appeal for prerogative relief, the object of that exercise being to quash the convictions of October 2001; he also sought a declaration that the trial was a nullity. Ipp JA, in an ex-tempore judgment, with which Tobias JA and Wood CJ at CL agreed, said: "6 There are, however, several serious problems attendant upon this application. ... A further factor is that the claimant needs to obtain leave to proceed under s 4 of Felons (Civil Proceedings) Act 1981(NSW). " 16 On this occasion, the second defendant has explicitly and clearly raised the law of the Felons Act. Unless and until an application for leave is made, that section leaves no room for the exercise of discretion. A person in the position of the plaintiff is not permitted to institute any civil proceedings. Where such a person purports to institute such proceedings, even where the relevant documentation is accepted by the Court Registry staff, the proceedings are a nullity and the Court has no jurisdiction to proceed to hear them. 17 Having regard to the plaintiff's unrepresented status, I considered whether, if leave were sought by him, it would be granted. In my view, provisions of s5 dictate that it would not. The proceedings the plaintiff has purported to institute would, if validly instituted, be an abuse of process for which there is no prima facie ground. Leave would, therefore, inevitably have been refused. 18 I shall explain my reason for coming to this conclusion.

the merits of the purported application 19 As I earlier indicated, even if an application for leave were made, it was bound to fail. That is because the proceedings the plaintiff seeks to institute are a plain abuse of process for which there is no prima facie ground. 20 I will outline briefly the case the plaintiff seeks to make.

facts 21 The plaintiff is facing a further charge of soliciting to murder. He has not been committed for trial on that charge. I will refer to this as "the third charge". It is, so far as the evidence goes, pending in the Local Court. 22 On 8 and 13 September 2004 the plaintiff appeared, unrepresented, in the Local Court before the first defendant in support of an application for bail in respect of that charge (and, it is significant to note, of that charge only). On 13 September 2004 the first defendant delivered judgment refusing the application. 23 According to the plaintiff, the prosecution intends, on the hearing of the third charge, to seek to adduce evidence of tendency and coincidence pursuant to ss 97 and 98 of the Evidence Act 1995, the evidence being, essentially, that of his conduct that gave rise to his convictions in October 2001. The plaintiff therefore sought to argue before the first defendant that those convictions were wrongfully obtained, and that they will, in all likelihood, be quashed when his appeal is determined. 24 The plaintiff's argument appeared to be this:

(i) The convictions were obtained by error and are likely to be set aside;

(ii) one consequence of (i) is that, on the prosecution of the third charge, the Crown will not have available to it evidence of tendency or coincidence as a result of the convictions;

(iii) the absence of such evidence will adversely affect the strength of the Crown case;

(iv) the strength of the Crown case is, by s32(1)(a)(iii) of the Bail Act , a matter which a court to which a bail application is made is obliged to take into consideration;

(v) the grounds of appeal against the convictions were, therefore, relevant to the first defendant's determination of the bail application. 25 During the course of the argument before the first defendant the plaintiff raised s30AA of the Bail Act 1978. That section relevantly provides as follows: " 30AA Limitation on power to grant bail

(a) an appeal is pending in the Court of Criminal Appeal against:

bail shall not be granted by the Court of Criminal Appeal or any other court unless it is established that special or exceptional circumstances exist justifying the grant of bail." (emphasis added)

Special note should be made of the italicised words in the suffix to the section. 26 In my opinion, the plaintiff's reliance on s30AA was misconceived. He insisted, when expressly asked on a number of occasions, that the bail application he made to the first defendant was an application only in relation to the third, as yet undetermined, charge. He specifically disclaimed any application to the first defendant under s30AA. It is, therefore, not material to consider what the words "or any other court" mean. The plaintiff sought to argue that those words conferred upon the Local Court jurisdiction to grant bail in relation to charges in respect of which a conviction had been entered and an appeal was pending in the Court of Criminal Appeal. The first defendant rejected this view. 27 When the plaintiff sought to raise these matters, the first defendant said: "I cannot go behind the conviction. This Court does not have the jurisdiction to go behind the conviction and it would be impertinent of this Court to even contemplate doing such." 28 The first defendant was quite correct in saying that he could not go behind the convictions. 29 He then proceeded to hear the plaintiff in respect of other bases of his application, and particularly his need to be free to prepare for the hearing and/or to obtain legal advice (s32(1)(b)(ii)). Having heard the application, the first defendant refused bail. 30 In the present proceedings the plaintiff stressed that this application was not to be construed as an application for bail. It was also not an appeal against the first defendant's refusal of bail. Rather, the plaintiff sought the relief mentioned above, which he characterised as "an order that the Magistrate do his duty." He sought to have the matter remitted to the first defendant for further hearing according to the law as the plaintiff construes it. His complaint was that the first defendant refused to entertain the application so far as it was based upon a challenge to the legitimacy of the 2001 convictions. 31 As I have earlier stated, I am of the firm view that the first defendant was entirely correct in declining to hear the plaintiff's argument in that respect. For that reason, even if leave were to be granted to the plaintiff under s4 of the Felons Act, his summons would fail. It would, therefore, be contrary to s5 to grant leave. 32 The legal representative of the second defendant also drew attention to some parts of s9 of the Bail Act. The original purpose of s9 appears to have been to create a presumption in favour of bail for certain offences, subject to exceptions stated within the section. The presumptions appear in subss(2) and (3). Over the years, the exceptions have come to dominate the section. S9(1) specifies that the section applies to all offences, except those specifically mentioned thereafter. By sub para (c) offences against s26 of the Crimes Act constitute one such exception. The only consequence of that is that s9 creates no presumption in favour of bail in respect of the offence with which the plaintiff is charged. As the plaintiff correctly pointed out, there is also no presumption against the grant of bail in respect of an s26 offence. 33 Counsel for the second defendant then pointed to subs(4) as disentitling the plaintiff to a grant of bail in any event. The subsection provides as follows: "(4) A person is not entitled under this section to be granted bail in respect of an offence to which this section applies , if: (a) the person is in custody serving a sentence of imprisonment in connection with some other offence, and (b) the authorised officer or court is satisfied that the person is likely to remain in custody in connection with that other offence for a longer period than that for which bail in connection with the firstmentioned offence would be granted." (emphasis added) 34 What the submission overlooks is the italicised words in the opening words of subs(4); subs(1), it will be recalled, specifies that s9 applies to all offences except, inter alia, offences against s26. The effect of subs(4) is to remove a presumption in favour of the grant of bail in the circumstances set out in sub-paras (a) and (b). It has no application to the offences with which the plaintiff is charged. 35 However, reliance on s9 was a subsidiary matter. 36 My conclusions are:

(i) The plaintiff is not entitled to institute the proceedings; (ii) the proceedings, if properly instituted, would constitute an abuse of process;

(iii) leave under s4 of the Felons Act , if sought, would be refused;

(iv) the summons must be dismissed. 37 The order I make is that the plaintiff's summons is dismissed.

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