Potier v R

Judgment 1JUDGMENT of the COURT: These are our reasons for dismissing the application for bail immediately following the completion of the hearing on 27 August 2014. 2Mr Malcolm Huntley Potier has been in custody since 9 May 2000 when he was arrested and charged with two counts of solicit to murder. He was tried and convicted, and a head sentence of 8 years and 8 months was imposed. His appeals to the Court of Criminal Appeal were dismissed (there were separate hearings of, first, a sentence appeal: R v Potier [2004] NSWCCA 136, and then a conviction appeal: Potier v R [2006] NSWCCA 27). Special leave to appeal to the High Court was sought, and refused. 3The sentence has been wholly served. Mr Potier wishes to apply for a review under Part 7 of the Crimes (Appeal and Review) Act 2001 (NSW). Mr Potier maintained that he had in fact done so, but the Crown contended that, because of an order made under the Vexatious Proceedings Act 2008 (NSW) (as to which see further below), that had not occurred because leave was required and had not been obtained. We express no view on the point. For present purposes, it is sufficient to say that on any view, the review process, to the extent that it has started at all, remains at a preliminary stage. 4While in custody, Mr Potier was charged with another count of solicit to murder. He was convicted of this offence in 2006, and sentenced to 12 years imprisonment with a non-parole period of 7 years commencing on 7 August 2006. He has an undetermined appeal, or application for leave to appeal, against that conviction, listed for hearing in November 2014. 5Mr Potier has applied for bail before. By a reserved decision, R A Hulme J refused bail: Potier v R [2010] NSWCCA 234. His Honour noted that because of each of ss 9D and 30AA of the (former) Bail Act 1978 (NSW), bail could not be granted unless the Court was satisfied that there were "special circumstances" and "special or exceptional circumstances" justifying the grant of bail. 6Mr Potier has brought a suite of other proceedings. No attempt is made in these reasons to identify most of them. They included an application to review the decision of R A Hulme J, which was the subject of a reserved decision in 2011 (Potier v R [2011] NSWCCA 204). It is sufficient to refer to the account given by McCallum J in Attorney General in and for the State of New South Wales v Potier [2014] NSWSC 118, where her Honour identifies more than 40 decisions, most of which were applications brought by Mr Potier. Her Honour made an order, subject to various qualifications, under the Vexatious Proceedings Act 2008 (NSW). From that order an application for leave to appeal is pending. What presently matters is that this application for bail is expressly excluded from the operation of that order: see at [219]. 7The non-parole period of Mr Potier's second sentence expired last year. The Parole Board has determined that Mr Potier is not suitable for parole. Mr Potier has challenged that decision, and it seems that there is to be a hearing of that challenge next week. 8It was common ground that Mr Potier's application presently before the Court is dated so long ago as 20 April 2013. The seeming departure from the obligation in s 22 of the (former) Act and s 71 of the current Act that it be dealt with expeditiously is explained by proceedings relating to a notice to produce Mr Potier issued, which was substantially set aside: see R v Potier [2014] NSWSC 131. From that decision Mr Potier has an undetermined application for leave to appeal. 9The application for bail made in 2013 under the former Act is taken, by reason of cl 8 of Part 2 of Schedule 3 of the Bail Act 2013 (NSW), to be a release application under the current Act. 10The Court of Criminal Appeal unquestionably has power to hear the application, in light of the pending appeal: s 61, noting the wide definition of "proceedings for the offence" which extends to an appeal: s 5(1)(d). It was appropriate, in light of previous applications for bail, as well as the extensive and highly unusual procedural background, for the application to be heard and determined by this Court as constituted: s 67(2). 11Section 74 applies to this application, because there have been previous applications for bail which have been refused (these are deemed to have been, for the purposes of s 74, refusals on a release application under the 2013 Act: see cl 9 of Schedule 3). In those circumstances, s 74 requires the Court to refuse to hear the application unless there are grounds for a further release application. The Crown submitted that no such grounds were disclosed. Mr Potier maintained that there were. It was arguable that the material contained in Mr Potier's 2013 affidavits constituted new grounds, and the Court proceeded on the basis, favourable to Mr Potier, that s 74 did not prevent his application being heard. 12However, s 22 also applies because Mr Potier has been convicted and there is a pending appeal in this Court. It provides that bail is not to be granted or dispensed with "unless it is established that special or exceptional circumstances exist that justify that bail decision". Section 22 replicates the former s 30AA, which was considered and applied by R A Hulme J in 2010. 13In R v Wilson (1994) 34 NSWLR 1, Kirby P said (at 6), with the agreement of Sheller JA, that it was necessary to show more than an arguable point, but that the applicant is most likely to succeed. Hunt CJ at CL put the matter still higher. His Honour said (at 7) "what must be established is a ground that is certain to succeed - and which can be seen without detailed argument to be certain to succeed". 14Subsequent authorities show that the formulation of Hunt CJ at CL puts the threshold too high. In Petroulias v R [2010] NSWCCA 95 Barr AJ, with whom Hodgson JA and Rothman J agreed, said at [34]: "While I appreciate that the Court must look at the aggregate effect of all the matters relied on as constituting special or exceptional circumstances justifying the grant of bail, it is worth noting that, at least where the grounds of appeal are put forward as the only or the principal factor to demonstrate special or exceptional circumstances, an applicant has to show much more than that the grounds seem arguable." 15In Miles v R [2012] NSWCCA 88, Schmidt J, with whom Hoeben JA and R S Hulme J agreed, wrote to similar effect. 16Mr Potier submitted that under the Bail Act 2013, those decisions no longer applied. He relied on s 17(3)(i), which requires a bail authority to have regard to whether an appeal has a reasonably arguable prospect of success in determining whether there is an unacceptable risk. However, s 17(3)(i) is subject to s 22, which is a specific provision directed to the grant of bail when a conviction or sentence is subject to appeal, and which is expressed to be "Despite anything to the contrary in this Act". It is quite clear that it remains necessary for an applicant to establish "special or exceptional circumstances". 17There were two themes put forward by Mr Potier in support of his application. The first, which was originally formulated in his affidavits sworn in 2013 when the application was made, and was maintained in a letter dated 14 July 2014 repeating some of those concerns, is that he has had difficulties accessing computers for the purposes of printing documents, such that he was given a USB stick on which to store documents. He expressed concern that his documents have been examined for security purposes. He inferred that his documents have been read, and asserts that "the vast majority" would be covered by legal professional privilege. He also stated that "all of my legal work since 2010 has now been compromised, beyond repair". 18We would accept that it is more difficult for Mr Potier to prosecute proceedings while in prison. However, against this, it may be noted that (a) in most of Mr Potier's applications, he has acted for himself, and no question of legal professional privilege could arise, (b) there is no evidence to suggest that the documents have been read, or that the information used in them has been used in an improper way and (c) there is no basis for the conclusion that all of his legal work has been "compromised beyond repair". One thing that is clear from the procedural history is that Mr Potier has not been prevented from invoking the jurisdiction of the Supreme Court, and repeatedly, either before or after those affidavits were made. 19The second theme of Mr Potier's submissions was directed to the probable success of his appeal from the second conviction and application for review of the first. Mr Potier identified a deal of additional material on which he sought to rely. He relied on written submissions 13 August 2014, transcript, copies of recordings of phone conversations, and oral evidence he wished to adduce from a police officer. In oral address he referred to three matters, described by him as "fresh, cogent and compelling evidence". He claimed that he had never had a fair trial, that there had been a series of misconduct by the Crown, in failing to disclose material evidence and in relying on altered copies of tape recordings. He said that the evidence from the police officer would establish those matters beyond any doubt. 20Those matters were directed primarily to what occurred at the first trial. Mr Potier confirmed that the entirety of the testimonial evidence he sought to adduce from the police officer was directed to the evidence at the first trial. However, as Basten JA said in Potier v R [2011] NSWCCA 204 at [30]: "the applicant is not serving any sentence in respect of the first two offences. His custody relates solely to his conviction for the third offence. Any issue of bail arises only in respect of that offence." 21Mr Potier submitted that the material was relevant, because if his inquiry under Pt 7 succeeded and the first conviction (whose sentence has now been served in full) were quashed, then his second conviction "would be a nullity". That is simply not so. The conviction, and the sentence imposed consequent upon it, stand until set aside on appeal: New South Wales v Kable [2013] HCA 26; 87 ALJR 737. 22Mr Potier also submitted, principally in reply, that the material was relevant insofar as it had been relied on at his second trial. That may be so; it is not necessary for us to decide the question. However, what was perfectly plain is that Mr Potier was unable, either in the voluminous materials on which he relied, or in oral address, to demonstrate such a powerful case as to constitute special or exceptional circumstances. Mr Potier evidently wished to treat the bail application as the hearing of an appeal, including tendering fresh evidence. It must be remembered that the power of a court on hearing a bail application pending appeal is exceptional. The grant of bail undermines the result of a trial and a sentence, and does so without a full hearing as would occur on appeal. 23Furthermore, the substance of this application is based on the material and arguments sought to be relied on in the substantive appeal from the applicant's second trial. It is sufficient to say they raise significant problems of relevance and admissibility, quite apart from a detailed analysis of the evidence in two trials, subsequent proceedings and what is submitted to be fresh evidence which appears to be not only substantial but highly contentious. 24It is not appropriate on a bail application for the Court to analyse and weigh this material for the purpose of considering whether under s 22 of the Bail Act 2013, the applicant has established special or exceptional circumstances exist that would justify a grant of bail. 25The Court asked Mr Potier early in the hearing to identify the "special or exceptional circumstances" on which he relied. He was given 20 minutes to supplement his written materials. He was given an opportunity to reply to what had been said, briefly, by the Crown, challenging certain factual and procedural matters which it is not necessary to repeat here. 26At the conclusion of his address in reply, Mr Potier asked for more time. At one stage he said that he had expected to have a full day to do so, and had been told as much by the Court. Even if that was said (and we very much doubt that it was) it must have been plain from the fact that there were two conviction and three sentence appeals listed, in addition to his application for bail, that that would not occur. Further, it must have been plain that a bail application is not a substitute for the final hearing of an appeal. Mr Potier also asked to supplement what he had put orally by further written submissions. 27We refused Mr Potier's application to be heard further, either orally or in writing. We refused this application because nothing in the material to which Mr Potier had pointed in writing or orally came close to demonstrating the requisite special or exceptional circumstances, because there has already been a very lengthy delay in the determination of this application, and because s 71 of the Act requires this Court to deal with the application as soon as reasonably practicable.