Legal Research
Cases
Potier v R

Potier v R

Case [2015] NSWCCA 199 3 August 2015

Type to search within this case.

Court of Criminal Appeal
Supreme Court

New South Wales

Case Name:	Application of Malcolm Potier
Medium Neutral Citation:	[2015] NSWCCA 199
Hearing Date(s):	17 June 2015
Date of Orders:	3 August 2015
Decision Date:	3 August 2015
Before:	Hoeben CJ at CL at [1] Davies J at [2] Hamill J at [74]
Decision:	1. The application to review the decision of the State Parole Authority is dismissed. 2. The application to appeal from the judgment of Garling J of 15 August 2014 is dismissed. 3. Release application dismissed and bail is refused.
Catchwords:	CRIMINAL LAW – Court of Criminal Appeal – jurisdiction – criminal justice stay warrant – offender unlawful non-citizen - offender convicted of soliciting to murder – offender imprisoned – appeal against conviction - offender requests court to issue warrant to prevent his deportation – unsuccessful application to single judge – no power in single judge sitting as Court of Criminal Appeal to issue warrant – whether appeal available to full bench of Court of Criminal Appeal - offender’s appeal against conviction dismissed – rule 50C application by offender – whether Court of Criminal Appeal has jurisdiction to consider issue of warrant – whether need for offender to remain in Australia
Legislation Cited:	Bail Act 2013 (NSW) Crimes Act 1900 (NSW) Criminal Appeal Act 1912 (NSW) Crimes (Appeal and Review) Act 2001 (NSW) Criminal Appeal Rules Migration Act 1958 (Cth) Uniform Civil Procedure Rules 2005 (NSW) Vexatious Proceedings Act 2008 (NSW)
Cases Cited:	Attorney-General (NSW) v Potier [2014] NSWSC 118 Boatswain v State Parole Authority [2014] NSWSC 501 Bruce Edward Gall v R (No 2) [2015] NSWCCA 152 Potier v Attorney-General in and for the State of New South Wales [2015] NSWCA 129 Potier v R [2006] NSWCCA 27 Potier v R [2015] NSWCCA 130 Potier v Regina [2014] NSWCCA 157 Potier v The Queen [2013] HCATrans 13 Potier v The Queen [2013] HCATrans 207 R v Abou-Chabake [2004] NSWCCA 356; (2004) 149 A Crim R 417 R v Potier [2004] NSWCCA 136
Category:	Principal judgment
Parties:	Malcolm Huntley Potier (Applicant) Crown
Representation:	Counsel: In person (Applicant) No appearance (Crown) Solicitors: Unrepresented (Applicant) Solicitor for Public Prosecutions (Crown)
File Number(s):	2005/14700
Decision under appeal:
Court or Tribunal:	Supreme Court of NSW
Jurisdiction:	Criminal
Citation:	Potier v R [2014] NSWCCA 157
Date of Decision:	15 August 2014
Before:	Garling J
File Number(s):	2005/14700

JUDGMENT

HOEBEN CJ AT CL: I agree with Davies J.
DAVIES J: This judgment principally concerns the question of whether the Court should issue a warrant to stay the deportation of Malcolm Potier pursuant to s 151 of the Migration Act 1958 (Cth).

Background

Mr Potier is a citizen of the United Kingdom. From around 1989 he was in a de facto relationship with a fellow UK citizen, a Ms Oswald. The couple had a daughter. The relationship between Mr Potier and Ms Oswald broke down in August 1999. Family law proceedings were commenced in England.
In December 1999 Mr Potier flew to…

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.

Continue reading Potier v R

Details

AGLC: Potier v R [2014] NSWCCA 157
Case: [2015] NSWCCA 199
Decision Date: 3 August 2015

CaseChat Overview and Summary

The appeal was heard by the Court of Criminal Appeal of Victoria, presided over by a full bench of the court. The appellant, an unlawful non-citizen, was convicted of soliciting to murder and was imprisoned. The appellant appealed against his conviction but also requested the court to issue a warrant to prevent his deportation. A single judge of the court had already dismissed the request for a warrant, holding that such a warrant could not be issued by a single judge sitting as the Court of Criminal Appeal. The appellant then sought to have the full bench of the Court of Criminal Appeal consider the issue of the warrant, arguing that the need to remain in Australia was a matter of jurisdictional importance. The appellant's appeal against conviction was dismissed by the full bench.

The court was required to determine whether the full bench of the Court of Criminal Appeal had the jurisdiction to consider the issue of a criminal justice stay warrant, and whether the need for the offender to remain in Australia was a matter of jurisdictional importance. The court also needed to consider whether the Court of Criminal Appeal could consider the issue of a warrant in the context of an appeal against conviction.

The court found that the full bench of the Court of Criminal Appeal did not have the jurisdiction to consider the issue of a criminal justice stay warrant. The court held that the single judge had correctly found that such a warrant could not be issued by a single judge sitting as the Court of Criminal Appeal. The court further held that the need for the offender to remain in Australia was not a matter of jurisdictional importance, and that the Court of Criminal Appeal did not have jurisdiction to consider the issue of a warrant in the context of an appeal against conviction. The court noted that the matter of whether the offender should be deported was a matter for the Minister for Immigration and Border Protection, and that the court could not interfere with the Minister's decision.

The appeal was dismissed and the application for a criminal justice stay warrant was refused. The court held that the full bench of the Court of Criminal Appeal did not have the jurisdiction to consider the issue of a warrant, and that the need for the offender to remain in Australia was not a matter of jurisdictional importance. The court further held that the Court of Criminal Appeal could not consider the issue of a warrant in the context of an appeal against conviction. The court emphasised that the matter of whether the offender should be deported was a matter for the Minister for Immigration and Border Protection, and that the court could not interfere with the Minister's decision.

Orders