Application of Malcolm Potier (No. 2) - [2015] NSWCCA 249

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Application of Malcolm Potier (No. 2) [2015] NSWCCA 249
Hearing dates: On the papers
Date of orders: 14 September 2015
Decision date: 14 September 2015
Before: Hoeben CJ at CL, Davies and Hamill JJ
Decision:
Application refused

Catchwords: CRIMINAL LAW – appeal – application under r 50C of the Criminal Appeal Rules – nature of the application – matters inappropriately raised under the rule – no error in principal judgment
Legislation Cited: Migration Act 1958 (Cth)
Cases Cited: Application of Malcolm Potier [2015] NSWCCA 199
Bruce Edward Gall v R (No 2) [2015] NSWCCA 152
Miller v R [2015] NSWCCA 205
Potier v R [2015] NSWCCA 130
Category: Consequential orders (other than Costs)
Parties: Malcolm Huntley Potier (Applicant)
Crown
Representation:
Counsel:
On the papers
Solicitors:
Unrepresented (Applicant)
Solicitor for Public Prosecutions (Crown)

File Number(s): 2005/14700
Decision under appeal

Court or tribunal:

Court of Criminal Appeal

Jurisdiction:

Criminal

Date of Decision:

3 August 2015

Before:

Hoeben CJ at CL, Davies & Hamill JJ

File Number(s):

2005/14700

Judgment OF THE COURT

This Court gave judgment on 3 August 2015 in relation to a number of applications made by the Applicant: Application of Malcolm Potier [2015] NSWCCA 199. All the applications were dismissed.
On 17 August 2015 the Applicant applied under r 50C of the Criminal Appeal Rules to re-open the judgment of the Court. The basis of the application was said to be:

(a)   Mistake of law over the Court’s inherent jurisdiction to hear and
consider other related matters before the Supreme Court of New South Wales.
(b)   Mistake of fact over the status of the Applicant’s parole consideration;
(c)   Mistake of law over the rejection of the Applicant’s bail application;
(d)   Mistake of law in making findings and/or conclusions on ongoing matters currently before the Court giving rise to potential unreasonable prejudice.

The Applicant provided what were described as short submissions together with copies of correspondence with the Registrar of the Court. The Applicant concluded those submissions by saying that should the application be accepted the Applicant be permitted a reasonable opportunity to file a comprehensive argument. Because of the nature of the jurisdiction under r 50C and the material already provided by the Applicant the Court declined to permit any further submissions.
Rule 50C provides:

50C Power to set aside or vary order
(1) The Court may set aside or vary an order if an application for the setting aside or variation is made before entry of the order.
(2) If an application for the setting aside or variation of an order is made within 14 days after the order is entered, the Court may determine the matter and (if appropriate) set aside or vary the order under sub-rule (1) as if the order had not been entered.
(3) Within 14 days after an order is entered the Court may of its own motion set aside or vary the order as if the order had not been…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2015] NSWCCA 249
Decision Date: 14 September 2015

CaseChat Overview and Summary

Malcolm Potier sought an appeal against his conviction, applying under rule 50C of the Criminal Appeal Rules. The nature of the dispute involved the grounds on which the appeal was based. The court to hear the application was the court of appeal. The legal issues the court was required to decide involved whether the grounds raised in the application were appropriately presented under rule 50C of the Criminal Appeal Rules, and whether any error in law was made in the principal judgment.

The court determined that the grounds raised by Potier were not appropriately presented under rule 50C of the Criminal Appeal Rules, as they were matters of fact or mixed fact and law, rather than purely legal issues. The court held that such matters should be raised through other avenues, such as an application for leave to appeal or a petition for special leave to appeal. The court further found that there was no error in the principal judgment, as the trial judge had correctly applied the law and there were no errors of fact or law that would warrant a retrial or appeal. The court dismissed the application, finding that the appeal was not appropriate under rule 50C of the Criminal Appeal Rules and that there was no error in the principal judgment.

The final orders of the court were that the application be dismissed, and that the conviction and sentence of the trial court stand. The court did not grant any relief to the applicant, and the decision of the trial court remained unaffected. The court emphasised the importance of following the correct procedures for appealing a criminal conviction and cautioned against raising inappropriate matters under rule 50C of the Criminal Appeal Rules.

Orders