Potier v R

Court of Criminal Appeal (NSW)|2010-10-08|Before: Hulme J

CATCHWORDS: CRIMINAL LAW - appeal and new trial - procedure - application to cross examine as to compliance with order to produce - application for juror at trial to attend to give evidence as to possible impact upon verdict of "fresh evidence"

Burrell v The Queen [2008] HCA 34; 238 CLR 218 Gallagher v The Queen [1986] HCA 26; 160 CLR 392 Malcolm Huntley Potier v Director of Public Prosecutions and Anor, unreported, Court of Criminal Appeal, 1 March 2005 CASES CITED : Mickelberg v The Queen [1989] HCA 35; 167 CLR 259 Potier v Regina [2006] NSWCCA 27 R v Potier [2005] NSWCCA 336 Regina v Potier [2004] NSWCCA 136

PARTIES: Malcolm Huntley Potier (Applicant) Regina (Respondent)

Ms Dowling for the Crown COUNSEL: Mr Cahill for Commissioner of Police Applicant in person

SOLICITORS: Solicitor for Public Prosecutions State Crown Solicitors

1 - IN THE COURT OF CRIMINAL APPEAL 2005/14700

18 October 2010 Malcolm Huntley POTIER v Regina Judgment 1 HIS HONOUR: Mr Potier has made three applications that I heard on 8 October 2010. There are two applications that persons be required to attend and give evidence and in relation to those I was sitting as a single judge pursuant to s 22 of the Criminal Appeal Act 1912. The third application was for bail, a matter I deal with in a separate judgment.

2 It is necessary to trace some of the lengthy history of the two criminal prosecutions that Mr Potier has faced. In the first matter he was arrested on 9 May 2000 and charged with two counts of solicit to murder. He has remained in custody since. He was tried in the Sydney District Court in September - October 2001 and found guilty of both counts. A Crown appeal against the inadequacy of sentence was allowed: Regina v Potier [2004] NSWCCA 136. A tardily prosecuted appeal against conviction was dismissed: Potier v Regina [2006] NSWCCA 27. Despite the fact that the decision of the Court was given almost 5 years ago and that the total term of the sentences imposed expired almost 2 years ago, Mr Potier maintains an intention to apply for special leave to appeal against the convictions to the High Court of Australia.

3 Whilst awaiting sentence in the first matter, that is in April 2002, the applicant was again charged with solicit to murder. A trial took place in the Sydney District Court in August - October 2006 and he was again found guilty. A notice of intention to appeal was filed and has been extended on a number of occasions. Mr Potier maintains that he is still to determine the appropriate formulation of his grounds of appeal. The sentence in respect of that matter was one of 12 years with a non-parole period of 7 years. He will become eligible for parole consideration in 2013.

Application to cross-examine in relation to compliance with an order to produce

4 The prosecution case in respect of the first matter relied considerably upon evidence of intercepted telephone conversations that occurred in May 2000. The defence case involved an assertion that certain recordings were not authentic.

5 The Crown relied in the second matter upon tendency and coincidence evidence, that being the applicant's conduct that gave rise to the first matter. Thus, the intercepted telephone conversations of May 2000 were again relied upon in the trial for the second matter. Again, the defence case involved an assertion that certain recordings were not authentic.

6 Unremarkably, the applicant takes the view that anything that might have a bearing upon the question of the authenticity of the recorded conversations that occurred in May 2000 is relevant in respect of both matters. One matter that he has pursued is a question as to the Crown's compliance with its duty of disclosure in respect of Telstra records. His claim is that he only became aware of the existence of these records after the trials had concluded and that they have, at least, the potential to support his case that the telephone recordings are not authentic. I do not need to explore that issue any further but it serves to indicate the types of matters the applicant regards as relevant to his proposed appeal. It is also relevant to the second application.

7 On 29 June 2008 an Order to Produce was issued that was directed to the Commissioner of Police and required production, inter alia, of a certified copy of the original recordings made under telephone interception warrants. There was compliance in the sense that a number of recordings of telephone conversations were made available but there were four more than had had previously been disclosed.

8 Seemingly as a result of questions raised by the applicant as to the discrepancy just mentioned, a senior technical officer attached to the Telecommunications Interception Branch of the New South Wales Police Force was delegated the task of investigating how this situation came about. Having done so he made a statement of 20 March 2009 which was provided to the applicant. The effect of the explanation, in short, is that the technical equipment has undergone a number of enhancements in the past ten years and that it has the ability now to retrieve some recorded calls that it previously was unable to.

9 The applicant wishes to cross examine the officer (although I was informed by counsel who appeared for the Commissioner of Police that he has since left the Police Force). He indicated that he wants to obtain explanations about issues such as why it has taken ten years to produce these four recordings; the reason for discrepancies between the calls produced and "web trace" records of Optus Cable and Wireless; why at an earlier time there was a claim in respect of one of the four recordings that it was "blank"; why there is a difference in the length of some of the recordings recently produced when compared to those produced at trial; and whether the recordings are not authentic and, if so, how was this done and who was responsible.

10 I accept there is occasion where it would be a legitimate forensic exercise for an applicant to cross-examine an appropriate witness on a question of whether there has been complete compliance with an order to produce. Johnson J expressed a similar view in respect of an order to produce issued at the applicant's request in 2005: Malcolm Huntley Potier v Director of Public Prosecutions and Anor, unreported, Court of Criminal Appeal, 1 March 2005.

11 In this case, I am not persuaded that there has been anything other than complete and acceptable compliance by the Commissioner of Police with the Order to Produce of 29 June 2008. As Mr Cahill of counsel submitted, the Commissioner was required to produce, relevantly, a copy of all of the original recordings that were currently available and that has been done. The matters about which the applicant wishes to cross-examine the witness are beyond the scope of what is permissible and appropriate in such circumstances.

12 Mr Potier has also made an application which, in essence, is for the attendance of a juror at his first trial to give evidence. This juror subsequently wrote a book about his experience but names and certain details were changed in order not to identify the proceedings.

13 Central to this application are the Telstra records that I alluded to above. At the first trial an argument was advanced by the applicant's counsel that there was support for the claim that the telephone recordings were not authentic in that whilst there was a corresponding entry in the records of Optus Cable and Wireless for some of the calls, there was no such corresponding entry for others. The explanation given by an Optus employee when called by the Crown was that either the calls had not in fact been made, or that there was no record because such calls had been routed through Telstra exchanges.

14 It appears that counsel for the applicant in his closing address to the jury made some criticism of the Crown for having failed to adduce any evidence as to what the Telstra records may have revealed.

15 There is material suggesting that a police officer, at the direction of the Crown Prosecutor, made an inquiry of Telstra at a late stage of the first trial and received the relevant records in response. The applicant contends that those records also do not contain any record of the same calls that are not within the Optus records. However, the applicant contends that the Crown Prosecutor failed to disclose this to the applicant's representatives and that he only became aware of it at some stage after the trial. His contention is that the Telstra records would have lent further support to the defence case that the call recordings were not authentic.

16 Included in material annexed to the applicant's affidavit are what are said to be extracts from the juror's book. It seems that the juror recognised the importance in the Crown case of the intercepted telephone calls and the defence position that the recordings were not authentic. Reference was made by the juror to the evidence of the Optus employee that I mentioned above.

17 The applicant contends that there is a legitimate forensic purpose to be served by examining the juror to ascertain how the jury might have reacted if there had been placed before it the corresponding records from Telstra. He is hopeful of obtaining a response to the effect that the jury would have given more weight to the defence claims and that it would have acquitted.

18 I raised with Mr Potier how evidence of a juror at his first trial could have any relevance to an appeal against his conviction in the second trial. He informed me that in the second trial the Crown not only relied upon the May 2000 telephone recordings but also, in some fashion, placed evidence before the jury that he had been convicted in the first trial. As I understand it, the applicant believes that if he had evidence from the juror that there would have been an acquittal if the Telstra records had been produced at the first trial, that would be something he could place before the Court of Criminal Appeal when he obtains a rehearing of his appeal in that matter following successful proceedings in the High Court. He anticipates being successful in that jurisdiction because of what he says is a factual error in the judgment of the Court in Potier v Regina [2006] NSWCCA 27 at [49]. As occurred in Burrell v The Queen [2008] HCA 34; 238 CLR 218 he anticipates the High Court will remit the matter for rehearing. The applicant is of the view that a quashing of his convictions in respect of the first matter would demonstrate that the second trial miscarried in that the tendency and coincidence evidence and evidence of his earlier convictions was admitted.

19 There are a number of insurmountable problems for the applicant and they may be briefly stated. It is beyond question that it is impermissible for a court to receive evidence as to discussions and deliberations of jurors. The point is well made in the judgment of Buddin J in R v Potier [2005] NSWCCA 336 at [12] - [14]. That judgment was concerned with a similar application to issue a subpoena to the juror to be examined on the same issue (and others) in the context of the applicant's appeal against conviction concerning the first trial. The application was refused.

20 Even if that was not an insurmountable hurdle, another problem is that any evidence that the applicant did manage to derive from the juror would be of no real value. He would be reconstructing what his own thoughts might have been about an issue he was called upon to consider some 9 years ago and guessing what other jurors might have thought about it.

21 A further problem is that the thoughts of jurors as to how they might have reacted to some evidence that was not placed before them is an entirely irrelevant consideration to a Court of Criminal Appeal considering a fresh/new evidence ground. The Court is required to make its own assessment of the evidence and consider what impact it may have had upon the outcome of the trial: Gallagher v The Queen [1986] HCA 26; 160 CLR 392; Mickelberg v The Queen [1989] HCA 35; 167 CLR 259.

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