Potier v R

COUNSEL: Ms Dowling for the Crown Applicant in person

SOLICITORS: Solicitor for Public Prosecutions

IN THE COURT OF CRIMINAL APPEAL 2005/14700

18 October 2010 Malcolm Huntley POTIER v Regina Judgment 1 HIS HONOUR: Malcolm Huntley Potier has applied for bail in respect of a matter in which an appeal is pending in the Court of Criminal Appeal. The power of the Court to grant such an application is provided by s 30 Bail Act 1978. 2 Mr Potier was charged with solicit to murder in 2002 and that matter was the subject of a trial in the Sydney District Court in August to October 2006 which resulted in a verdict of guilty. On 13 November 2006 he was sentenced to imprisonment for 12 years with a non-parole period of 7 years from 7 August 2006. He is eligible for release on parole on 6 August 2013.

3 A notice of intention to appeal was filed but subsequently expired. Mr Potier was later granted leave by Hoeben J to file a further notice of intention to appeal. Notwithstanding no notice of appeal has yet been filed, by virtue of the provisions of s 10(2) of the Criminal Appeal Act 1912, an appeal against conviction is taken to be pending in the Court.

4 Section 9D of the Bail Act 1978 applies to the application because it is in respect of a "serious personal violence offence" as defined in s 9D(4), and Mr Potier has a previous conviction for a "serious personal violence offence". In October 2001 he was found guilty by a jury of two counts of solicit to murder committed in May 2000. As a consequence, bail is not to be granted unless the Court is satisfied that "exceptional circumstances" justify the grant of bail.

5 Moreover, s 30AA applies because the application is in respect of a matter where an appeal is pending in the Court of Criminal Appeal. As a consequence, bail shall not be granted unless the Court is satisfied that "special or exceptional circumstances" exist justifying the grant of bail.

6 Mr Potier has advanced the application on three bases: 1. "That the respondent is invited to support this application; 2. That the applicant's continued inability to progress his appeals to the Supreme Court of New South Wales and High Court of Australia deny him his constitutional rights; and 3. That without such a grant of bail the applicant is unable to comply with the orders made in the High Court of London."

7 He has supported the application with voluminous documentary material and forwarded further material and submissions after my judgment was reserved. I have taken it all into account and consider so much of it that is relevant in what follows.

The first basis 8 What Mr Potier contends in relation to the first basis of the application is to this effect. He appealed to this Court in respect of the convictions recorded in the District Court in 2001 ("the first matter"). That appeal was dismissed: Potier v Regina [2006] NSWCCA 27. He contends that there is a factual error in the judgment of McClellan CJ at CL at [49]. He asserts an intention to appeal to the High Court of Australia, arguing that this factual error should be met with the same consequences as one that was made in Burrell v The Queen [2008] HCA 34; 238 CLR 218 that is, that the judgment of this Court would be set aside and his appeal against those convictions would be remitted for rehearing. He then contends that there is a high prospect of success in this Court and his convictions will be quashed.

9 As I understand the argument, this would have ramifications for the intended appeal that is presently pending in this Court ("the second matter"). In the trial that occurred in the District Court in 2006 the Crown placed evidence before the jury of the applicant's conduct that brought about the convictions in 2001 and, indeed, placed evidence before the jury of the fact of those convictions. The evidence of his conduct in respect of the two counts of solicit to murder in May 2000 was relied upon by the Crown as tendency and coincidence evidence. With Mr Potier being vindicated in respect of the May 2000 offences, he will then argue that placing such evidence before the jury in his second trial in 2006 led to a miscarriage of justice.

10 Mr Potier appears to assume that establishing that there is a factual error in the judgment of this Court is all that he will need to do in order to succeed. That is not the case.

11 The situation is potentially different, and significantly so, from that in Burrell v The Queen. There the initial judgment of the Court contained a number of errors as to the evidence in the trial. This had the potential to affect the Court's assessment of various grounds, particularly one asserting that the verdict was unreasonable and could not be supported having regard to the evidence.

12 In the present case, the issue is a discrete one, being whether a document from Telstra was disclosed by the Crown to the defence. If it was not, as Mr Potier contends, the argument on the appeal was that it was available to be considered as fresh evidence. The document is said to be relevant in that it supported Mr Potier's contention that some of the intercepted telephone conversations relied upon by the Crown at trial had been fabricated. The judgment proceeded upon an understanding that the document had in fact been disclosed to the defence before the trial. That would appear to be unlikely, given that the document was sought from Telstra by the police officer in charge of the case by a letter which expressed the need for urgency with the statement, "the defense (sic) likely to conclude their case tomorrow, Thursday, 11th October 2001". The document provided by Telstra in fact is dated 11 October 2001.

13 There may have been some confusion with another document which was in issue in the appeal. There was a complaint about whether Mr Potier's representatives had been forewarned that the prosecution would be calling a witness from Optus Cable and Wireless. It was in relation to that issue that counsel for the Crown on the appeal tendered correspondence which was said to show that a statement by the witness had been served prior to the trial.

14 Before any conclusion could be reached that Mr Potier's confidence in success on appeal is well founded, he would need to establish a high likelihood that a number of things would occur, including that (a) the High Court would grant an extension of time in which to apply for special leave to appeal after so much time has elapsed since delivery of the judgment of this Court; (b) it would regard the matter as being of sufficient significance that it would grant special leave to appeal; (c) that it would allow the appeal and remit the matter to this Court for rehearing; (d) that this Court would accept that the Telstra material had not been disclosed as Mr Potier contends and that it would treat it as "fresh evidence" in the sense discussed in cases such as R v Abou-Chabake [2004] NSWCCA 356; 149 A Crim R 417 per Kirby J at [63]; and (e) that this Court would conclude that there had been a miscarriage of justice. The material that Mr Potier has placed before the Court on this bail application falls well short of establishing any of these matters.

The second basis 15 The second basis advanced by Mr Potier is to the effect that being in custody denies to him the facilities and materials that are necessary for him to pursue an application for special leave to appeal to the High Court in relation to the first matter, and an appeal to this court in relation to the second matter. In relation to the proposed proceedings in the High Court he points to a number of rules of the High Court as to the preparation and filing of submissions that he is incapable of complying with whilst he is in custody. In relation to both proposed appeal proceedings he argues that he has been denied access to typing facilities for nearly a year and has had requests for access to legal resources denied.

16 Mr Potier is presently being held at the Parklea Correctional Centre. On the hearing of the application the Crown read an affidavit sworn by Ms Ainslie Bowden, the acting area manager at that facility. She deposes that Mr Potier is housed as a Special Management Area Placement inmate. Ms Bowden indicates that five computers were recently made available for use by the SMAP inmates and that Mr Potier had availed himself of such access. She also indicates that requests can be made to her for typing and printing facilities which can be arranged.

17 It is notable that in relation to this and other applications I heard on 8 October 2010 Mr Potier has placed a considerable volume of documentary material before the Court. I note that it includes both handwritten and typed correspondence between himself and the Registrar of the Court and others. He has the facility to send and receive correspondence by both mail and fax. The material before me includes an extremely detailed analysis of telephone intercept material that was relied upon by the Crown at his trials. Finally I note that Mr Potier is obviously not completely denied access to legal resources. For example, within the material he has filed in support of the application is a list of authorities in which he cites numerous decisions of this Court, the High Court and courts in other jurisdictions. The citations even descend to the nomination of specific paragraph references in the judgments. The list also includes reference to legislation and a recent article in the Australian Law Journal.

18 I accept that Mr Potier has some limitations in his ability to prepare and prosecute proceedings but I am not persuaded that this is to any undue extent. I do not accept the contention that he is being denied his "constitutional rights".

The third basis 19 The third basis of the application relates to proceedings in the Family Division of the High Court of Justice in London. Mr Potier is the defendant in those proceedings. An order was made by a judge of that Court that the matter be listed for what is termed a "jurisdictional hearing" on 1, 2 and 3 November 2010. A minute of the orders made by that judge on a date which is not specified, includes that a request had been made to a "Family Liaison Judge" in Australia to request the relevant prison authorities to permit the defendant to participate in the hearing by way of video link. There is nothing before me as to whether that facility will be available. Mr Potier seems to be of the view that the video link facilities will not be available and so he will be unable to appear in the proceedings in November.

20 I do not see how this can be a basis, either alone or in combination with other matters, to warrant a grant of bail. It would certainly not be the case that I would grant bail in order to permit Mr Potier to travel to London to appear. In this regard, I note that Mr Potier first came to Australia in December 1999 after a de facto relationship broke down. The couple had a young daughter whom Mr Potier brought with him to Australia with the use of false passports. In February 2000 he was detained at the Villawood Detention Centre, presumably as an illegal immigrant: Potier v Regina [2006] NSWCCA 27 at [6]. In these circumstances, it cannot be said that the Crown's fear that Mr Potier is a flight risk is unfounded.

Conclusion 21 Where an applicant for bail pending appeal to this Court relies upon his/her prospects of success in the appeal, it must be shown that the ground(s) of appeal are not merely arguable but are "very likely to succeed": see R v Wilson (1994) 34 NSWLR 1 per Kirby P at 6. In the same case (at 7), Hunt CJ at CL said: "What must be established is a ground of appeal which is certain to succeed - and one which can be seen without detailed argument to be certain to succeed. It is not sufficient to show a merely arguable ground of appeal, or even one which has a reasonable prospect of success".

22 On either statement of the test I am not persuaded that the applicant has established special or exceptional circumstances to justify a grant of bail. The other matters relied upon, either alone or in combination with all that has been put, are also inadequate to overcome the s 30AA hurdle.

23 The application for bail is refused. **********

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