Regina v Malcolm Potier

Judgment 1WHEALY JA: I agree with McCallum J. 2McCALLUM J: On 9 May 2000, Malcolm Potier was arrested and charged with two counts of soliciting a person to murder Mr Potier's ex de facto wife and her new partner. In October 2001, after a trial by jury, he was convicted of those offences. 3In April 2002, before being sentenced for the offences, Mr Potier was charged with a third offence of soliciting to murder, also relating to his ex de facto wife. 4Mr Potier was subsequently sentenced for the first two offences to two fully concurrent terms of imprisonment of 6 years and 8 months with a non-parole period of 5 years commencing on 8 May 2000. He appealed to this Court against his convictions and sought leave to appeal against the sentences imposed. The Crown lodged an appeal against the leniency of the sentences imposed. 5After a number of adjournments on the application of Mr Potier, the appeals were finally listed for hearing in 2004, but Mr Potier was still not in a position to pursue the conviction appeal. The Court proceeded to determine the two sentence appeals, refusing leave to Mr Potier to appeal against severity and allowing the Crown appeal: R v Potier [2004] NSWCCA 136. The Court did not vary the terms of the sentences imposed at first instance but accumulated one upon the other by two years and thus increased the aggregate non-parole period. 6On 17 February 2006, the conviction appeal was dismissed: Potier v R [2006] NSWCCA 27. Following the determination of that appeal, Mr Potier was tried for the third offence. It appears that the trial had been deliberately postponed until after the determination of the conviction appeal in respect of the first two offences, since the Crown sought to rely upon evidence adduced at the first trial, and the fact of Mr Potier's conviction for the first two offences, as tendency and coincidence evidence in support of the third offence. 7Mr Potier was convicted of the third offence in late 2006. The matters presently before the Court relate to his appeal to this Court against that conviction, which is still pending. 8In October 2010, Mr Potier made an application for orders compelling two persons (a juror at Mr Potier's first trial and a former police officer) to attend and be examined before the Court. RA Hulme J dismissed that application: Potier v R [2010] NSWCCA 231. 9His Honour heard the application sitting as a single judge pursuant to s 22 of the Criminal Appeal Act 1912. The application having been refused, Mr Potier is entitled, and has sought, to have it determined by the Court in accordance with s 22(2) of the Act. This judgment determines that application. 10Separately and on the same day as the determination of the application for orders compelling the attendance of witnesses, RA Hulme J dismissed an application by Mr Potier for bail pending the determination of the conviction appeal: Potier v R [2010] NSWCCA 234. Mr Potier has sought review of the bail decision, but that application has not yet been heard, having been adjourned at the hearing before us on the application of Mr Potier. Circumstances in which the application was brought 11Mr Potier was in migration detention at the time he was arrested for the first two offences. An important feature of the Crown case in respect of those offences was evidence of recordings of telephone conversations that allegedly took place between Mr Potier and a prosecution informant. Mr Potier put a case to the jury (and has maintained ever since) that those recordings had been altered or manufactured. 12Evidence was given during the first trial that police had obtained a "web trace" of the telephone line of the informant, the records of which disclosed that, as to nine recordings of telephone calls allegedly made by Mr Potier to the informant, five had failed to register as being received on the web trace. A witness called by the Crown (an employee of Optus Cable and Wireless) gave two alternative explanations for that fact: that the search methods of those administering the web trace were at fault and had failed to locate the missing calls and, alternatively, that the calls had not been made. 13The witness suggested that the issue could be resolved by obtaining Telstra's records of the telephone accounts for the telephones from which the calls were allegedly made. No such records were made available at the first trial. After putting a case to the jury that he should be given the benefit of the doubt as to whether the calls were in fact made, Mr Potier was convicted. 14As already noted, an appeal against that conviction was heard in 2006, before Mr Potier's trial for the third offence. The appeal was based, in part, on allegedly fresh evidence. Mr Potier claimed that, after he was convicted, he became aware that the Crown Prosecutor had sought and obtained the Telstra records referred to in the evidence of the Crown witness who gave evidence about the web trace. It is Mr Potier's contention that the telephone records reveal that the very same five telephone calls not detected on the web trace are also absent from the Telstra telephone records, suggesting a reasonable possibility consistent with Mr Potier's defence at the trial that the calls were never made (and, implicitly, that the purported recordings of those calls put in evidence at the first trial were recordings that had been altered or manufactured). 15The Court in that appeal held that the evidence was not "fresh" ( Potier v R [2007] NSWCCA 27 at [49] per McClellan CJ at CL, Hislop and Rothman JJ agreeing at [97] and [98] respectively): I have already referred to the position in relation to Mr Finlay's evidence. With respect to the Telstra material, the Crown tendered evidence on the appeal, which indicates that the relevant material was included in the Crown brief, which was provided to the appellant's solicitors before the trial. Accordingly, any submission that the material is fresh evidence, which could now be of assistance to the appellant, must be rejected. 16Mr Potier says that the decision of the Court was plainly wrong in that respect, being based on a misapprehension of the evidence (which revealed that the Telstra records, as opposed to the Optus records, formed no part of the police brief and indeed were not made available to Mr Potier until after his conviction). He proposes to make an application for special leave to appeal to the High Court against the decision on that basis, but has not yet done so, for want of a grant of Legal Aid. He expects the Crown to join in the application in light of the alleged misapprehension of the facts: cf Burrell v R [2008] HCA 34; 238 CLR 218 at 92-93, 131. 17The dismissal of the conviction appeal paved the path for the Crown to rely upon the evidence in the first trial as tendency or coincidence evidence in the second trial.