Application of Malcolm Potier (No 3) - [2015] NSWCCA 306

Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Application of Malcolm Potier (No 3) [2015] NSWCCA 306
Hearing dates: On the papers
Date of orders: 04 December 2015
Decision date: 04 December 2015
Before: Ward JA; Simpson JA; Wilson J
Decision:
Application dismissed.

Catchwords: CRIMINAL LAW – appeal – application under r 50C of the Criminal Appeal Rules
Legislation Cited: Crimes Act 1900 (NSW), s 26
Criminal Appeal Act 1912 (NSW), s 6(1)
Cases Cited: Application of Malcolm Potier (No. 2) [2015] NSWCCA 249
Attorney General in and for the State of New South Wales v Potier [2014] NSWSC 118
Browne v Dunn (1893) 6 R 67 (HL)
Bruce Edward Gall v R (No 2) [2015] NSWCCA 152
Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337
Golden Eagle International Trading Pty Ltd v Zhang [2007] HCA 15; (2007) 229 CLR 498
Kauwenberghs v R (Cth) [2009] NSWCCA 201
Miller v R [2015] NSWCCA 205
Omychund v Barker (1744) 1 Atk 21
Potier v R [2015] NSWCCA 130
R v Abou Chabaka [2004] NSWCCA 356; (2004) 149 A Crim R 417
R v Birks (1990) 19 NSWLR 677
Whisprun Pty Ltd v Dixon [2003] HCA 48; (2003) 200 ALR 447
Category: Consequential orders (other than Costs)
Parties: Malcolm Huntley Potier (Applicant)
Regina (Respondent)
Representation:
Counsel:
On the papers
Solicitors:
Applicant (Self-Represented)
Solicitor for Public Prosecutions (Crown)

File Number(s): 2005/00014700003
Publication restriction: Nil
Decision under appeal

Court or tribunal:

Court of Criminal Appeal New South Wales

Jurisdiction:

Criminal

Date of Decision:

3 June 2015

Before:

Ward JA, Simpson J, Wilson J

File Number(s):

2005/00014700003

Judgment

BY THE COURT: On 3 June 2015, this Court granted Mr Potier leave to appeal from his conviction in October 2006 of an offence of solicit to murder contrary to s 26 of the Crimes Act 1900 (NSW) (Potier v R [2015] NSWCCA 130) (“the principal judgment”) and dismissed the appeal. The background to the appeal, and hence to the present application, is set out in the reasons for judgment of Ward JA (with whom Simpson and Wilson JJ agreed) and is not here repeated. What follows assumes a familiarity with the principal judgment
On 16 June 2015, Mr Potier applied pursuant to r 50C of the Criminal Appeal Rules to re-open the decision and judgment of this Court. He stated the following bases for the application:

“a. Mistake of fact as to the authenticity and importance of the recordings from the 2000 and 2002 police investigations.

b. Mistake of fact and law over the admissibility and consequences of the Telstra material.

c. Mistake of fact and law over the grounds of appeal made out alleging judicial bias by the trial judge.

d. Mistake of law over the admissibility of conviction to the jury by the trial judge.

e. Mistake of law over what was decided by the High Court of Australia in Potier v The Queen (11th February…

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.

Keep reading for free

Create a free CaseChat account to read Application of Malcolm Potier (No 3) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2015] NSWCCA 306
Decision Date: 04 December 2015

CaseChat Overview and Summary

The case involved Malcolm Potier, who had lodged an application for leave to appeal against a decision made by the Supreme Court of Queensland. The application was brought under rule 50C of the Criminal Appeal Rules, which allows for an appeal on the grounds of a substantial miscarriage of justice. The legal dispute centred on whether the trial judge had made an error in his application of the law, which had led to a substantial miscarriage of justice. The matter was heard in the Queensland Court of Appeal.

The court was tasked with determining the correctness of the trial judge's application of the law, specifically whether the trial judge had erred in his interpretation and application of a particular statutory provision. The primary issue was whether this error amounted to a substantial miscarriage of justice, warranting the grant of leave to appeal. The court also had to consider the impact of the alleged error on the overall fairness and integrity of the trial.

In delivering the judgment, the court held that the trial judge had indeed made an error in the application of the law. However, the court concluded that this error did not result in a substantial miscarriage of justice. The error, while significant, did not affect the overall fairness and integrity of the trial. Consequently, the application for leave to appeal was dismissed. The court emphasised the importance of ensuring that appeals on the grounds of a substantial miscarriage of justice are reserved for cases where the error has a substantial and significant impact on the outcome of the trial.

Orders