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[2011] NSWCCA 170
Court of Criminal Appeal (NSW)
2011-05-04
Whealy JA, McCallum J, Schmidt J, Hulme J, Callum J
Original judgment source is linked above.
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.
Application for a juror to attend to give evidence 18The first issue in the present application relates to attempts by Mr Potier to secure the attendance of one of the jurors at his first trial to give evidence in respect of his bail application. He submitted that the application accordingly had to be decided as a preliminary issue before the determination of the bail application. 19Mr Potier alleges, and the Crown evidently accepts, that the juror in question wrote a book about his experience at the trial, changing names and some details of the trial in an attempt (apparently unsuccessful) not to identify the relevant proceedings. Mr Potier submits that the book reveals that the impugned recordings were critical to the jury's deliberations and the verdicts of guilty reached. He submits that, in determining the conviction appeal, this Court will have to consider what impact the fresh evidence (the Telstra records) would have had on the original jury trial for the first two offences. Mr Potier submits, further, that in the unusual circumstances of this case, the Court need not speculate as to that question since there is an opportunity for the Court to hear the "best evidence", namely, precisely what the juror in question would have thought about the "withheld" evidence. 20Although the task of this Court under s 22(2) is to determine the application afresh, it is convenient to begin by considering the reasons given by RA Hulme J for its refusal. His Honour held that the application faced a number of insurmountable problems. First, his Honour noted that it is beyond question that it is impermissible for a court to receive evidence as to discussions and deliberations of jurors, citing the judgment of Buddin J in R v Potier [2005] NSWCCA 336 at [12] to [14] (an application by Mr Potier to examine the same juror for the purpose of his conviction appeal following his first trial). 21Mr Potier submitted that the separate judgment of Basten JA in that case holds that "there was an ability to call this person". In my view, that submission derives from a misapprehension as to the import of his Honour's remarks. The Court gave its judgment ex tempore . The first judgment was given by Buddin J. His Honour proposed that the application be refused, for reasons including the proposition, based on well-established principle, that the applicant was not entitled to explore the deliberations of the jury by direct examination of the juror in the witness box (at [14]). 22Basten JA agreed, stating (at [29]): I agree. I would add only these comments. Firstly, there was no challenge to the proposition that it was within the power of the court to require either the juror or the director or both to attend: Criminal Appeal Act 1912 (NSW), section 12. 23It is clear, in my view, that his Honour was stating no more than that it was uncontroversial that the Court of Criminal Appeal has power under section 12 to order a compellable witness to attend and be examined before the Court. It is equally clear, in my view, that Basten JA was in agreement with Buddin J that the power should not be exercised in that case because the applicant was not entitled to explore the deliberations of the jury by direct examination of the juror in the witness box. 24The third Judge of the Court also agreed with Buddin J for the reasons given by his Honour: at [37] per Simpson J. It follows inexorably that RA Hulme J was correct to dismiss the present application for the same reasons. 25Mr Potier submitted that the protection enjoyed by jurors under Part 9 of the Jury Act 1977 has been given up by the juror in the present case by reason of his having published the book. That assumes that the only object of those provisions is to protect individual jurors. That is undoubtedly one their objects but a broader purpose is served by those provisions in my view, namely, the protection of the integrity of the administration of justice. 26In any event, Mr Potier's argument does not address the principles applied by RA Hulme J outlined above. 27His Honour gave two additional reasons for dismissing the application, with which I respectfully agree. First, his Honour said that even if the principles summarised in the judgment of Buddin J were not an insurmountable hurdle, any evidence that Mr Potier could derive from the juror would be of no real value, since the juror would be doing no more than to reconstruct what his own thoughts might have been about an issue he was called upon to consider some nine years ago and guessing what other jurors might have thought about it (at [20]). 28Secondly, RA Hulme J expressed the view (at [21]), with which I agree, that the thoughts of jurors as to how they might have reacted to some evidence that was not placed before them would be an entirely irrelevant consideration in a conviction appeal based on fresh evidence. As stated by his Honour, the task of the Court of Criminal Appeal in such a case is to make its own assessment of the evidence and to 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. 29In my view, for the reasons stated by RA Hulme J, the application for an order requiring the juror to attend to be examined before the Court, whether in respect of the conviction appeal or on the bail application, must be dismissed.
Application to cross examine a witness in relation to compliance with the order to produce 30The second order sought by Mr Potier was to compel a witness to attend and be examined as to the adequacy of the compliance by the Commissioner of Police with an order to produce issued on 27 June 2008 at the request of Mr Potier. The order required the Commissioner to produce a certified copy of each original recording made under telephone interception warrants granted in respect of the investigation of suspected offences involving Mr Potier. The Commissioner produced a number of recordings of telephone conversations including four recordings that had not previously been disclosed. 31A senior technical officer attached to the telecommunications interception branch of the police force provided a statement dated 20 March 2009 in which he said (in effect) that the existence of the additional recordings was explained by the fact that, since the first trial, technical advances have created the ability to retrieve material that was always present on the tapes but previously inaudible or otherwise unable to be retrieved. 32Mr Potier seeks to cross-examine the officer (or, since that particular officer is no longer with the police force, some other suitable technical officer) as to concerns he has surrounding those events. The issues Mr Potier wished to explore were why it has taken 10 years to produce the additional 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 this occurred and who is responsible. 33As noted by RA Hulme J at [10], it is uncontroversial that a court may compel a witness to attend for examination as to whether there has been proper compliance with an order to produce in an appropriate case. However, the proper occasion for such an order is to test whether there has been proper compliance. Questioning directed to further search and inquiry should not be permitted. 34It is plain, in my view, that Mr Potier's application seeks to question the witness (or a like expert) for the purpose of obtaining evidence for use at the hearing of the conviction appeal (and possibly the bail application). No basis has been established for doubting that the order to produce was understood and has been properly complied with. 35The order I propose is that the applications be dismissed. 36SCHMIDT J: I agree with McCallum J.
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 28 July 2011
Regina
Malcolm Potier