Potier v R

[2015] NSWCCA 130

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:

Potier v R [2015] NSWCCA 130

Hearing dates:

10 November 2014

Date of orders:

03 June 2015

Decision date:

03 June 2015

Before:

Ward JA at [1];
Simpson J at [597];
Wilson J at [598]

Decision:

1.Leave to appeal is granted.
2.The appeal is dismissed.

Catchwords:

CRIMINAL LAW – procedure – extension of time to appeal – whether leave be granted

 

CRIMINAL LAW – appeal against conviction – solicit to murder –- bias – whether actual bias – whether apprehended bias - trial judge’s discretion to admit evidence – tendency and coincidence evidence – evidence of prior conviction of solicit to murder – audio recordings – adequacy of summing up – rulings at trial - conduct of defence at trial – conduct of Crown at trial – duty of disclosure – conduct of defence counsel

  CRIMINAL LAW – appeal against conviction – application to adduce fresh evidence

Legislation Cited:

Bail Act 1978 (NSW)
Crimes Act 1900 (NSW)
Criminal Appeal Act 1912 (NSW)
Criminal Appeal Rules (NSW)
Evidence Act 1995 (NSW)
Legal Aid Commission Act 1979 (NSW)
Police Act 1990 (NSW)
Police Legislation Amendment (Civil Liability) Act 2003 (NSW)

Cases Cited:

Antoun v R [2006] HCA 2; (2006) 224 ALR 51
Barron v A-G (NSW) (1987) 10 NSWLR 215
Browne v Dunn (1893) 6 R 67 (HL)
Burrell v The Queen [2008] HCA 34; (2008) 238 CLR 218
Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd [2006] HCA 55; (2006) 229 CLR 577
Cooley v Western Australia [2005] WASCA 160; (2005) 155 A Crim R 528
Cornwell v R [2010] NSWCCA 59
Crofts v The Queen [1996] HCA 22; (1996) 186 CLR 427
Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292
Director of Public Prosecutions (NSW) v Burns [2010] NSWCA 265; (2010) 207 A Crim R 362
Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337
Enever v R [1906] HCA 3; (1906) 3 CLR 969
Fibre-Tek (Gold Coast) Pty Ltd v Skye Bennett [2006] NSWSC 1100
Gardiner v R [2006] NSWCCA 190; (2006) 162 A Crim R 233
George v Fletcher (Trustee) [2012] FCAFC 148
Gilbert v The Queen [2000] HCA 15; (2000) 201 CLR 414
Grey v R [2001] HCA 65; (2001) 184 ALR 593; 75 ALJR 1708
Grierson v The King [1938] HCA 45; (1938) 60 CLR 431
Heidt v Chrysler Australia Ltd (1976) 26 FLR 257
House v The King [1936] HCA 40; (1936) 55 CLR 499
HSBC Bank Australia Ltd v Murtough [2010] NSWSC 320
International Relief and Development Inc v Ladu [2013] FCA 1216
Jago v District Court of New South Wales [1989] HCA 46; (1989) 168 CLR 23; (1989) 41 A Crim R 307
Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488
Lewis v Spencer [2007] NSWSC 1383; (2007) 179 A Crim R 48
Mallard v R [2005] HCA 68; (2005) 224 CLR 125
Micallef v ICI Australia Operations Pty Ltd [2001] NSWCA 274
Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48; (2011) 282 ALR 685
Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507
Najjar v Haines (1991) 25 NSWLR 224
Nominal Defendant v Gabriel [2007] NSWCA 52; (2007) 71 NSWLR 150
Pfennig v The Queen [1995] HCA 7; (1995) 182 CLR 461
Potier v R [2006] NSWCCA 27
Potier v R [2006] NSWCCA 300
Potier v The Queen [2013] HCA Trans 207
Qing An v R [2007] NSWCCA 53
R v Abou-Chabake [2004] NSWCCA 356; (2004) 149 A Crim R 417
R v Bartle [2003] NSWCCA 329
R v Basha (1989) 39 A Crim R 337
R v Birks (1990) 19 NSWLR 677
R v Brown (Winston) [1998] AC 367
R v Commonwealth Conciliation and Arbitration Commission; Ex parte The Angliss Group [1969] HCA 10; (1969) 122 CLR 546
R v Courtney-Smith (No 2) (1990) 48 A Crim R 49
R v Ellis [2003] NSWCCA 319; (2003) 58 NSWLR 700
R v Fletcher [2005] NSWCCA 338; (2005) 156 A Crim R 308
R v Glennon [1992] HCA 16; (1992) 173 CLR 592
R v Glover (1987) 46 SASR 310
R v Greer (1992) 62 A Crim R 442
R v Keane [1994] 2 All ER 478; [1994] 1 WLR 746
R v Lipton [2011] NSWCCA 247; (2011) 82 NSWLR 123
R v Livingstone [2004] NSWCCA 407; (2004) 150 A Crim R 117
R v Orchard [2013] NSWCCA 342
R v Potier [2004] NSWCCA 136
R v Reardon [2004] NSWCCA 197; (2004) 60 NSWLR 454
R v Sandford (1994) 33 NSWLR 172; (1994) 72 A Crim R 160
R v Spiteri [2004] NSWCCA 321; (2004) 61 NSWLR 369
R v Ulman-Naruniec [2003] SASC 437; (2003) 143 A Crim R 531
R v Watson; Ex parte Armstrong [1976] HCA 39; (1976) 136 CLR 248
Rajski v Scitec Corporation Pty Ltd [1986] NSWCA 1
Re Barbara Ann Cameron and Gamester Pty Ltd v Rural Press Ltd; John Lindsay Parker and Timothy Roy Starkey [1992] FCA 157; (1992) 35 FCR 211
RG v R [2010] NSWCCA 173
Samadi v R [2008] NSWCCA 330; (2008) 192 A Crim R 251
Setka v Gregor [2011] FCAFC 64
Spencer v Bamber [2012] NSWCA 274
State of New South Wales v Fahy [2006] NSWCA 64; (2006) Aust Torts Reports 81-865
Vakauta v Kelly [1989] HCA 44; (1989) 167 CLR 568
Webb v R [1994] HCA 30; (1994) 181 CLR 41
Williams v The Queen [2000] FCA 1868; (2000) 119 A Crim R 490

Texts Cited:

Sheppard “Communications With Witnesses Before and During Their Evidence” (1987) 3 Australian Bar Review 28

Category:

Principal judgment

Parties:

Malcolm Huntley Potier (Applicant)
Regina (Respondent)

Representation:

Counsel:
Mr M Potier (Applicant in person)
Mr N Adams (Respondent)

Solicitors:
Solicitor for Public Prosecutions (Respondent)

File Number(s):

2005/00014700003

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

13 November 2006

Before:

Shadbolt DCJ

File Number(s):

05/11/0013

INDEX

JUDGMENT – WARD JA

[1]

Background

[4]

First Trial and 2002 offence

[8]

Determination of appeals regarding 2000 offences

[15]

Second Trial

[18]

Application to adduce tendency and coincidence evidence

[19]

Conduct of second trial

[32]

Recordings

[49]

2000 recordings

[50]

The “Telstra material”

[53]

Production of the original 2000 recordings

[75]

Summary of submissions as to the Conway recordings

[94]

Summary of submissions re “M” recordings

[99]

2 May 2000 meeting

[102]

4 May 2000 telephone conversation

[116]

5 May 2000 telephone conversation

[118]

8 May 2000 meeting

[121]

General complaint as to quality of recordings

[124]

2002 recordings

[125]

2 February 2002 recording

[128]

6 February 2002 recording

[135]

Summary of position re the Telstra material and the recordings

[137]

Submissions in the present proceedings

[145]

Preliminary Ground of Appeal

[150]

Grounds of Appeal

[158]

Ground 3 – Judge’s rulings; Ground 4 - Bias

[161]

Legal Principles

[165]

Adjournment Applications and the like

[176]

Withdrawal of Mr Terracini SC on 3 August 2006

[177]

Denial of right to consult and instruct counsel

[199]

Mr Healey’s withdrawal – 7 September 2006

[203]

Termination of legal aid

[238]

Access by Mr Potier to material

[277]

Bail

[280]

Carlos incident

[282]

“Blackmail”

[283]

Refusal to discharge jury

[289]

Refusal to disqualify for bias

[297]

Manner of withdrawal of Counsel on 7/9/06

[298]

Further questions on Carlos issue

[304]

Rulings re witnesses/cross-examination

[307]

A’s ex-wife

[312]

Mr Wakeham

[317]

Mr MacKechnie

[321]

Cross-examination of A

[336]

Public Interest Immunity

[347]

Earlier Convictions

[360]

Browne v Dunn

[363]

Other rulings

[371]

Rulings/statements re audio recordings

[387]

Basha enquiry/provisional admission of audio recordings

[388]

Voir dire re tape recordings

[407]

Summing up

[413]

Particular complaints as to statements made in summing up

[420]

Refusal to accede to request for correction of statements in summing up

[437]

Conclusion as to complaints re summing up

[453]

Directions in relation to evidence of prior conviction

[456]

Sentencing hearing

[472]

Conclusion as to Grounds 3 & 4

[475]

Ground 1 – First Conviction not sustainable

Ground 2 – Admission of recordings

Ground 5 – Defence Team Legal Conduct

Ground 6 – Non-disclosure

Ground 7 – Respondent’s conduct

[476]

[506]

[531]

[548]

[564]

Telstra material

[566]

Overlapping telephone conversations

[568]

Intention to use recorded conversations in sentencing hearing

[570]

Inconsistent evidence as to the two sets of recordings

[572]

Pursuing second prosecution on an “infirm” basis

[573]

Discussion with Ms Conway before her cross-examination

[576]

Disparity in funding re witnesses

[583]

Disquiet as to investigation/conviction

[587]

Ground 8 – New Evidence

[589]

Conclusion

[596]

SIMPSON J

[597]

WILSON J

[598]

Judgment

1. WARD JA: Mr Potier was convicted in October 2006 of an offence of solicit to murder contrary to s 26 of the Crimes Act 1900 (NSW). The conduct in respect of which he was convicted was of soliciting a then fellow gaol inmate (“A”) to murder Mr Potier’s ex de facto wife, Ms Oswald. At the time of the commission of the offence, in early 2002, Mr Potier was in custody at Long Bay gaol awaiting sentence on an earlier conviction of two counts of solicit to murder, the intended victims in relation to those offences being Ms Oswald and her partner, Mr Wakeham. The earlier offences had taken place in May 2000, while Mr Potier was in detention at Villawood Detention Centre as an illegal immigrant. The timing of the later offence (which the Crown maintained was relevant to the question of motive) was before Mr Potier was due to be sentenced for the earlier offences.

2. Following the jury’s guilty verdict on 3 October 2006, the trial judge, Shadbolt DCJ, sentenced Mr Potier on 13 November 2006 to imprisonment for 12 years to date from 7 August 2006 and to expire on 6 August 2018, with a non-parole period of 7 years to expire on 6 August 2013.

3. On 15 September 2014, Mr Potier filed an application seeking to appeal against his 2006 conviction. An extension of time for the filing of that application is necessary given the lapse of time since his 2006 conviction and sentence.

Background

4. As is apparent from the above brief introduction, Mr Potier has been found guilty in two separate trials, the first in 2001 and the second in 2006, of successive offences of soliciting to murder Ms Oswald. As some of the evidence at the first trial was adduced at the second (which is the subject of complaint by Mr Potier) it is necessary to set out a brief summary of the successive trials.

5. By way of general background, I note that Mr Potier is a citizen of the United Kingdom. From around 1989 he was in a de facto relationship with a fellow UK citizen, 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.

6. In December 1999, Mr Potier flew to Australia with the couple’s daughter using false passports. In February 2000, following information provided to the federal police by an acquaintance he had made after his arrival in this country (Ms Conway), Mr Potier was detained and held in custody, first in Melbourne at the Maribyrnong Detention Centre and then in Sydney at the Villawood Detention Centre. Ms Oswald, who came to Australia in early 2000 to search for her daughter, had by then begun a relationship with a former acquaintance, Mr Wakeham.

7. Ms Conway was in contact with Mr Potier while he was in detention. She contacted police to report conversations with Mr Potier in which, according to her, Mr Potier was seeking her assistance to arrange for the murder of Ms Oswald and Mr Wakeham. The police obtained listening device interception warrants in respect of Ms Conway’s home telephone and arranged for an undercover police operative (“M”) to contact Mr Potier. M did so both by telephone and in person at the Villawood Detention Centre. A number of conversations between Mr Potier and each of Ms Conway and M, respectively, were recorded, as authorised by warrants the lawfulness of which is not challenged. The authenticity of those recordings remains hotly contested by Mr Potier.

First trial and 2002 offence

8. Mr Potier was charged with two counts of soliciting M to murder Ms Oswald and Mr Wakeham between 2 and 8 May 2000, while Mr Potier was in detention at Villawood (the 2000 offences).

9. Mr Potier’s first trial took place between 19 September 2001 and 16 October 2001. The evidence given by Ms Conway and M at that trial is summarised in the later Court of Criminal Appeal judgment in which Mr Potier’s conviction appeal was dismissed (Potier v R [2006] NSWCCA 27). Relevantly, it was Ms Conway’s evidence that Mr Potier had adopted the expression “gathering evidence” as a code for killing Ms Oswald and Mr Wakeham. An understanding of that code assisted in interpreting the conversations between Mr Potier and M. Recordings of the respective conversations were played to the jury.

10. Mr Potier was represented by counsel at his first trial. He gave evidence at that trial.

11. Mr Potier was found guilty by jury verdict on 16 October 2001 and was convicted of those two counts of soliciting to murder. On 18 October 2001, Mr Potier filed a notice of appeal against conviction.

12. Before his sentencing for the 2000 offences, the events the subject of the second trial took place. Between 1 January 2002 and 8 February 2002, a number of conversations between Mr Potier and a fellow prison inmate “A” were recorded on a listening device placed in a TV set in A’s cell. The Crown’s case was that in those conversations Mr Potier again solicited the murder of Ms Oswald. Mr Potier was charged in relation to this offence in April 2002.

13. On 10 May 2002, Mr Potier was sentenced on each of the 2000 offence count to imprisonment for 6 years and 8 months to commence on 8 May 2000 and to expire on 7 January 2007, with a non-parole period of 5 years to expire on 7 May 2005.

14. On 29 June 2002, the Crown filed a notice of appeal against the inadequacy of the sentence. Mr Potier in turn appealed against the sentence.

Determination of appeals regarding 2000 offences

15. The respective sentence appeals in relation to the 2000 offences were heard on 21 April 2004 separately from, and before, Mr Potier’s conviction appeal. On 25 August 2004, the Court of Criminal Appeal (Wood CJ at CL, Simpson and Bell JJ) refused Mr Potier leave to appeal against sentence and allowed the Crown appeal (R v Potier [2004] NSWCCA 136), re-sentencing Mr Potier to a total term of imprisonment of 8 years and 8 months to commence on 8 May 2000 and to expire on 7 January 2009, with a total non-parole period of 6 years and 3 months to expire on 7 August 2006. On 11 October 2004, a special leave application to the High Court was filed by Mr Potier in relation to this decision. This was later abandoned.

16. Mr Potier’s conviction appeal, which had in the meantime been struck out of the list subject to being restored when it was ready to proceed, was heard on 30 September 2005 and 5 October 2005. On 17 February 2006, the Court of Criminal Appeal (McClellan CJ at CL, Hislop and Rothman JJ) dismissed Mr Potier’s appeal against conviction (Potier v R [2006] NSWCCA 27). On 6 September 2013, Mr Potier’s special leave application to the High Court relating to his convictions for the 2000 offences was dismissed by Hayne and Bell JJ (Potier v The Queen [2013] HCA Trans 207).

17. It was not until after the dismissal by the Court of Criminal Appeal in 2006 of Mr Potier’s appeal against his first set of convictions that the Crown proceeded with a bill of indictment in respect of the further solicit to murder offence alleged to have been committed by Mr Potier in early 2002.

Second trial

18. Mr Potier’s second trial commenced in August 2006.

Application to adduce tendency and coincidence evidence

19. In March 2006, prior to the commencement of the second trial, the trial judge heard an application by the Crown for leave to adduce tendency and coincidence evidence, including the evidence given by Mr Potier in his first trial. The substance of the tendency and coincidence evidence was identified in an amended notice served on 2 March 2006.

20. The substance of the tendency evidence sought to be adduced was that Mr Potier had a tendency to solicit others to murder his ex de facto wife. The substance of the coincidence evidence sought to be adduced was that Mr Potier had solicited others to murder his ex de facto wife on two separate occasions (those being the occasions the subject of the respective 2000 and 2002 offences).

21. As to the 2000 offences, the documents within which the substance of the said tendency and coincidence evidence was said to be contained were identified in the amended notice. They included statements and transcripts of evidence from various witnesses in the first trial, including particular pages of an electronically recorded police interview (ERISP) given by Mr Potier on 9 May 2000 and the whole of the transcript of the evidence given at the trial by Mr Potier. Also included were the monitored conversations and telephone calls and extracts from the listening device/telephone interception transcripts of the conversations between Mr Potier and each of Ms Conway and M.

22. As to the 2002 offence, the documents within which the tendency and coincidence evidence was said to be contained included the listening device transcripts of conversations between Mr Potier and A on 2 and 6 February 2002.

23. On the hearing of the Crown’s application to adduce tendency and coincidence evidence, Mr Potier was represented by Mr Terracini SC, appearing with Ms Moen and Ms Byrne of counsel.

24. Mr Terracini informed his Honour that no objection was taken to the adequacy of the notice. Objection was taken to the whole of the proposed tendency and coincidence evidence on the basis that its conceded significant probative value did not substantially outweigh its prejudicial effect (Evidence Act 1995, ss 97 and 101(v)). Nevertheless, the stated position of the defence was that, even if the balance of the tendency and coincidence evidence were to be admitted, the transcript of the evidence given by Mr Potier in his first trial should be excluded. Mr Terracini submitted that the evidence given by Mr Potier at the first trial should not be admitted unless he gave an inconsistent version of that evidence at the forthcoming trial.

25. No objection was raised to the effect that the fact of Mr Potier’s conviction was not specifically listed in the tendency and coincidence notice. Furthermore, the Crown made clear on that occasion its position that one of the important non-tendency uses of the evidence of conviction was that it provided a motive for the offence.

26. The argument before his Honour in March 2006 proceeded on the basis that it was inevitable that Mr Potier’s conviction for the earlier offences would be made known to the jury; indeed that was the basis for the defence submission as to the prejudicial effect of the proposed tendency and coincidence evidence. There was no submission by the defence on that occasion to the effect that reference should not be made to Mr Potier’s conviction for the 2000 offences.

27. Both Ms Conway and M were cross-examined on the voir dire by Mr Terracini. Among other things, M was cross-examined as to the references to notes in the transcript of one of the recordings. This related to a conversation on 5 May 2000. M gave evidence that there was a problem with the piece of equipment which had been used; that it was a technical problem of which he was not aware prior to using the equipment; and that, once he finished the telephone conversation with Mr Potier and replayed that version of it, he realised that there were problems with missing parts of the conversation. M said that he thought that STIB (State Technical Investigation Branch), a section within the Special Services Group attached to the New South Wales police, had been asked to analyse the tape and that the cause of the problem could not be determined - “there was just a stopping and starting possibly of the tape with the actual set tape”. M also gave evidence that the recording equipment was locked away after use.

19. It should be noted that the Commissioner for Police in due course claimed and was granted public interest immunity in respect of information that would divulge details of the technology and equipment used in the investigations concerning Mr Potier. (A claim was also made for immunity as to the methodology used in solicit to murder cases investigations but it is not clear that this latter issue was finally determined. Nothing turns on this.)

20. Consistently with the Crown’s tendency and coincidence notice, the Crown submitted that the conduct of the accused according to the evidence of the witnesses at the first trial could demonstrate that the accused had a tendency to have a particular state of mind, that is of murderous intent, towards Ms Oswald at the time of the subsequent offence; and that the conduct in the first trial was relevant to the credibility of two or more witnesses, on the basis that common sense and experience rendered it objectively improbable that similar allegations would be independently made by such witnesses unless they were true.

21. On 24 March 2006, the trial judge gave judgment on the Crown’s application. His Honour gave leave to the Crown to adduce, as both tendency and coincidence evidence, the recordings played at the first trial of the conversations with Ms Conway and M but not the evidence of Mr Potier at that trial. His Honour said that he came to the same conclusion as to the admissibility of the evidence whichever of the Ellis (R v Ellis [2003] NSWCCA 319; (2003) 58 NSWLR 700) or Pfennig (Pfennig v The Queen [1995] HCA 7; (1995) 182 CLR 461) tests applied; being of the view both that the prejudicial quality of the evidence was substantially outweighed by its probative value and that, if the evidence of Ms Conway and M were to be accepted, there would be no rational hypothesis consistent with Mr Potier’s innocence.

22. His Honour observed that the fact that Mr Potier had been convicted (of the first offences) could not be avoided, since much of the conversation between Mr Potier and A was about the likely outcome of Mr Potier’s plan. A’s evidence, in that regard, was to the effect that Mr Potier had expressed to him the belief that if there were “no Ms Oswald” his appeal would succeed. On the present application, Counsel who prepared certain of the submissions, but did not appear, for Mr Potier points to the illogicality of such a belief. That, however, goes only to whether the jury accepted A’s evidence as to the relevant conversations. That a belief such as A says was expressed by Mr Potier might be unfounded or illogical is beside the point.

Conduct of second trial

32. The second trial was listed to commence on 7 August 2006. Mr Potier’s defence was at that stage being funded by the Legal Aid Commission. Shortly before the commencement of the trial, an application was made by Mr Potier’s then Counsel (Mr Terracini) for leave to withdraw from the proceedings, indicating that this was on the basis that he was not able to conduct the case in accordance with Mr Potier’s instructions and at the same time comply with his duty to the Court. His Honour granted that leave. There was a re-assignment of legal aid to permit Mr Healey and Mr Lowe of Counsel to be retained in the matter, instructed by the same solicitor who had had the conduct of the matter at the time of Mr Terracini’s withdrawal, Ms McGowan.

33. Mr Potier’s second trial in fact did not commence until 14 August 2006. Shortly thereafter, the jury was discharged when it was discovered that one of the jurors had a very poor command of English. The trial re-commenced on 16 August 2006.

34. In the course of the Crown’s opening, the jury was told that Mr Potier had come to Australia under a false name and a false passport. (One of Mr Potier’s complaints in this Court is that the trial judge referred in summing up to the jury to his entry to Australia on a false passport even though he, Mr Potier, had not given evidence of that fact. However, evidence to that effect was given at the second trial by Ms Conway and there was no evidence to dispute that. Furthermore, in the recorded conversation with M on 2 May 2000, Mr Potier can be heard confirming to M that he came to Australia on a forged passport.)

35. The jury was also told that Mr Potier had been found guilty of the first offence but caution was sounded as to the use to be made of that information.

36. In Mr Healey’s opening to the jury, he informed the jury that Mr Potier challenged the recordings in the trial that had led to his conviction (i.e., the first trial) and said that they were unreliable.

37. On 7 September 2006 (day 15 of the second trial), Mr Healey was granted leave for him and Mr Lowe to withdraw from the matter. This occurred at a time when A, the prison informant, was under cross-examination. Mr Healey’s withdrawal was precipitated by an incident that had occurred the day before, to which I will refer later, and which had prompted Mr Healey to request, unsuccessfully, that the jury be discharged. It will be referred to as the “Carlos” incident. Leave was also granted for Ms McGowan to withdraw. As a consequence, Mr Potier was thereafter unrepresented.

38. His Honour refused Mr Potier’s application to adjourn the hearing following the withdrawal of his legal representation and refused Mr Potier’s next application, which was for the judge to disqualify himself for apprehended bias. Thereafter, Mr Potier had the conduct of his own defence. He made further unsuccessful applications for the adjournment of the hearing and for the jury to be discharged, in circumstances to which I will refer in due course. Meanwhile, on 13 September 2006, his legal aid was terminated.

39. Mr Potier chose, as was his right, not to give evidence himself in his second trial. He called evidence from a number of prison inmates or former inmates: Mr Prasad, who described the pay phones in the “lockups” and said A was a “show-off” and a “gossiper”; Mr Hughes, who said that A was something of a gaol house lawyer and prone to exaggeration; Mr Parkes, who said he did not like A because he gave out incorrect legal advice and “big-noted” himself, and who gave evidence as to the time it took to get a television set in prison; and Mr McPhall, who said he thought A was a rumour monger and a gaol lawyer, who “big noted himself”, exaggerated and invented things, and was “a bit of a joke”; and who gave evidence that in gaol a television was a “number one possession”.

40. Mr Potier also sought to call evidence in person or by videolink from a solicitor in Glasgow, Mr Edward MacKechnie. The Crown refused to meet the cost of Mr Potier adducing that evidence in that manner. The trial judge initially ruled against Mr Potier’s application to adduce evidence from Mr MacKechnie on the basis that it was not relevant but shortly thereafter revisited this ruling, being persuaded that the proposed evidence might have some tenuous relevance to one of the ways in which he understood Mr Potier was seeking to defend the allegations. Mr MacKechnie’s sworn statement was ultimately read to the jury with the consent of the Crown. He was not cross-examined on that statement.

41. Mr MacKechnie’s statement included that Ms Oswald, a close friend, had told him during the period October 2001 to March 2002 that she was not living in Scotland and that he had told this to Mr Potier at the same time; and therefore that at the time of the alleged offence (January – February 2002) Mr Potier knew that Ms Oswald was not with her parents in Scotland or in Scotland at all. Mr Potier maintains the relevance of this lies in two respects: first, to show that he, Mr Potier, knew all along that A was never serious (because A thought Ms Oswald was in Scotland) and, secondly, that Mr Potier was having a joke at A’s expense (because A was “in fantasy land”).

42. Mr Potier also sought to call evidence from A’s ex-wife (to show A’s true character – in essence to prove that A had given false evidence to the Court that he was still married); from Mr Wakeham (as to whether he had made certain threats to Ms Conway); and from a former inmate named Warren Richards (to say that Mr Potier had told him he was playing a joke on A and to say that A was regarded as “out with the fairies”).

43. In the course of discussion in the absence of the jury on 19 September 2006, his Honour clarified with Mr Potier the defences he was seeking to raise. Mr Potier agreed that his case in defence was a combination of the following: that the recorded calls were not his; a defence of mental ill-health; that A had malevolently tried to entrap him and that Mr Potier was humouring him; and that he was playing a joke on A because he was privy to information in January/February 2002 that Ms Oswald was not in Rhynie (her parents’ home) but elsewhere in Scotland.

44. Mr Potier, in his submissions on this appeal, summarises his defence case in broadly similar terms as being that: A was “a joke, lair, fantasy man” prone to exaggeration and often “out with the fairies”; that he was playing a joke on A; that he did not believe that A was serious; that he knew that Ms Oswald was in England, not with her parents in Aberdeenshire, and therefore that nothing could or would happen to her; and that A had a strong motive to lie, in that he wanted and was given a TV in his cell. (The listening device recording the conversations in A’s cell had been placed in the TV.) Nothing further was raised as to any defence based on his mental health.

45. Pausing there, the case that A was trying to entrap him or that Mr Potier was playing a joke on A is clearly inconsistent with any denial that the recorded conversations with A took place; rather, it assumes that the conversations took place and seeks to explain away their significance.

46. As noted earlier, the jury returned a guilty verdict on 3 October 2006 and Mr Potier was sentenced on 13 November 2006. His non-parole period has now expired.

47. In the period after his conviction and sentence, Mr Potier has pursued or been party to various court proceedings both in Australia and in the United Kingdom. For present purposes, the most relevant is his application for special leave to appeal to the High Court from his conviction in the first trial. That application focussed on issues in relation to the authenticity or integrity of the 2000 recordings (see [50] below). Mr Potier was represented by Mr Brezniak of Counsel on that application, which was dismissed in September 2013, thus bringing to finality Mr Potier’s appeals from his conviction on the first trial.

48. On 15 September 2014, Mr Potier filed the present application to appeal from his conviction in his second trial.

Recordings

49. The integrity of the respective audio recordings is at the heart of much of Mr Potier’s complaint as to the reliability of his conviction in the first trial and that in his second trial. It is therefore convenient, before addressing the specific grounds of appeal, to summarise what Mr Potier contends to be the position in relation to the respective sets of recordings and his complaints in relation thereto.

2000 recordings

50. In his first trial, at which Mr Potier had the benefit of legal representation throughout, the Crown relied on recordings of conversations between 2-9 May 2000 between Mr Potier and each of Ms Conway and M. Mr Potier maintained that those recordings (the 2000 recordings) had been altered, manufactured or created by some unknown method. His position as to whether it was his voice on the tapes was somewhat unclear.

51. In the second trial, in the absence of the jury, his Honour asked Mr Healey at one point whether there was some contravening view that the conversations had not taken place. Mr Healey’s response was that this was “yet to be determined”. Mr Healey later informed the Court that Mr Potier was suggesting there had been alterations to the recordings or “products” of the conversations with M. Mr Healey said that it had “always” been the defence’s position that Mr Potier disputed the authenticity or integrity of all recordings; that Mr Potier disputed the conversations and that Mr Potier was suggesting alteration of the products of the telephone recordings of the conversation.

52. Though Mr Potier later made statements to his Honour as to whether he was disputing the conversations which were on their face inconsistent (I refer to these later), his final position appears to have been that, while the voice on the audio recordings may have been his, there had been some alteration of the recordings (the equivalent perhaps of an audio “cut and paste”) so as to produce a manufactured compilation of a conversation that was not in fact the actual conversation that had taken place.

The “Telstra material”

53. In the first trial, the defence was served with a statement made on 27 June 2000 by an officer of Cable & Wireless Optus (Mr David Finlay). That company was Ms Conway’s telephone provider. In that statement, Mr Finlay explained a process known as a “webtrace” by which information such as call charges from the Optus network is derived electronically.

54. Annexed to Mr Finlay’s statement was a webtrace that had been carried out by Cable & Wireless Optus of calls to and from Ms Conway’s telephone number for the period from 22 April 2000 to 12 May 2000. The significance attributed by the defence to that webtrace is that it did not record or register five of the nine calls allegedly made to Ms Conway by Mr Potier in May 2000 (the “missing calls”).

55. Mr Finlay gave an explanation at the first trial as to why telephone calls made to Ms Conway’s landline might not appear on the Optus webtrace. That explanation related to whether calls forwarded from a Telstra exchange were forwarded to an Optus exchange or switch where the number being called was “attached” or were forwarded to an Optus exchange where the number was “not attached”; since that affected what number would appear in the relevant search field. The webtrace process involved manually searching records on the switch by way of entry into the system of a particular telephone number and the requested time period. Obviously, the conclusion to be drawn from this evidence was that if the incorrect number was entered into the relevant search field the webtrace might be unreliable or inaccurate.

56. Mr Finlay explained that a call could be on the system but not found when the webtrace was conducted. He accepted the propositions put to him by defence counsel that: first, he could not say categorically that there was a call at a particular time if it were not on the webtrace and, second, that “another” explanation for the non-appearance of a call on the webtrace was that it “just could not have been made at all”.

57. Mr Potier understands the import of Mr Finlay’s evidence to be that there are only two possible explanations for the fact that five of the nine telephone calls did not register or appear on the webtrace of Ms Conway’s telephone: that the wrong search methods had been used or that the calls had not been made. That was not Mr Finlay’s evidence. Rather, Mr Finlay gave one explanation for calls not appearing on the webtrace and accepted that there was another possible explanation as put to him in cross-examination; he did not in terms say that there were only two possible explanations. A third possible explanation that would accord with Mr Finlay’s explanation of the webtrace process, and one which assumes some relevance in light of later events, would appear to be that the correct search methods were used but the correct telephone number from which the call was made had not been identified.

58. Mr Finlay also said, when cross-examined, that if one knew the number of the party making the call then a better option would be to go to that number and check that number. He accepted the proposition put to him by defence counsel that the “only other way” (i.e., the only way to identify whether a call had been made to Ms Conway’s telephone number from a Telstra number, apart from the Optus webtrace) was to find the call charge records for the Telstra numbers.

59. On 10 October 2001, shortly prior to the conclusion of the first trial and unbeknownst to the defence at that stage, Detective Inspector Laidlaw wrote to Telstra with an urgent request for a call charge record search on three specified telephone numbers (referable to three Telstra payphones at the Villawood Detention Centre) and a statement outlining the results of such a search for production in the criminal proceedings. That letter included the following statement, which Mr Potier treats as an admission on the part of the Crown that the calls were made from one of those three payphones:

A number of telephone calls have been legally intercepted between the accused and the police informant. Investigators conducted a ‘webtrace’ via Cable Wireless Optus on the informant’s landline, however due to the inefficiency of that trace a number of intercepted telephone [sic] do not appear. These calls all originate from the nominated Telstra payphones from the V.I.D.C. Therefore the Crown Prosecutor seeks to rectify this by the supply of Call Charge Records from these services. (my emphasis)

60. A statement dated 11 October 2001 was prepared on Telstra letterhead by the Administrative Officer Law Enforcement Liaison at Telstra, in which information was provided as to the results of that search. Annexed to the statement were the call charge records for the nominated three Telstra payphones for the period 1-9 May 2000. It is not disputed that the five missing calls were not recorded as calls made from any of those phones.

61. The Telstra call charge records, not tendered or disclosed to the defence in the first trial, are referred to by Mr Potier in his submissions as the “Telstra material”. Mr Potier emphasises that the existence of the Telstra material was not known to the defence during his first trial. The defence was, however, aware that the missing calls did not appear on the Optus webtrace and had elicited evidence from Mr Finlay as to alternative ways to investigate whether there was a record of those calls having been made. Hence, it might be argued that the Telstra material was constructively available to Mr Potier at that first trial. Nothing, however, turns on this for present purposes, since the existence of the Telstra material was certainly known to the defence by the time of the second trial.

62. The suggestion that the 10 October 2001 letter from Detective Inspector Laidlaw constituted some form of binding admission by the prosecution that the missing calls had been made from one of the nominated three payphones (and no other telephone in the detention centre), such that the prosecution cannot now be heard to argue that the fact that the calls were missing from the Optus webtrace is of no significance, cannot be sustained.

63. The Police Act 1990 (NSW) establishes the police force in this State. In State of New South Wales v Fahy [2006] NSWCA 64; (2006) Aust Torts Reports 81-865 Basten JA held that the NSW Police Force is not a legal entity in its own right. Although the Police Legislation Amendment (Civil Liability) Act 2003 (NSW) had, for the avoidance of doubt, provided that a police officer was an employee of the Crown for the purposes of that Act, this was repealed in July 2004. Nevertheless, at common law, a member of the police force was regarded at least in some sense as a servant of the Crown (see Enever v R [1906] HCA 3; (1906) 3 CLR 969). However, Detective Inspector Laidlaw was not the prosecuting authority. He was an investigating officer. There is no basis to suggest that he had any personal knowledge of which, if any, of the available telephones might have been used to make the disputed “missing” calls. The statement made in his letter of 10 October 2001 can at best reflect his assumption that those telephones were the ones that had or may have been used.

64. Even if Detective Inspector Laidlaw’s statement could otherwise have bound the Crown, admissions made other than in the formal course of proceedings (such as the statement relied upon in this letter) have been said to have merely an evidentiary significance, the so-called “admitting” party being entitled to dispute the accuracy of the admission – by evidence that it was influenced by mistake, misunderstanding or ignorance, or that it was otherwise inaccurate or unreliable (see Nominal Defendant v Gabriel [2007] NSWCA 52; (2007) 71 NSWLR 150 at [144] – albeit in the civil context).

60. In the present case, Detective Inspector Laidlaw made clear in his evidence at the second trial that it had simply been his assumption that the calls were made from one of the pay phones. He said there were other telephones in the detention centre to which inmates could have access. There was also evidence at the first trial from a Mr Schofield, an officer at the Long Bay correctional centre, to the effect that on occasion inmates, including Mr Potier, had used a telephone in his office to make telephone calls.

61. There is therefore room for doubt as to the evidentiary significance of a statement made in a letter written by someone not party to the conversations and not present at the time that any of the missing calls were made (assuming for this purpose that the calls were made); and obviously written in the context of an urgent enquiry as to the call charge records for telephones from which it was believed or assumed those calls had been made.

62. It is not suggested that any search was made of call records referable to Mr Schofield’s telephone in order to exclude the possibility that the missing calls had been made from that telephone.

63. In those circumstances no more than nominal, if any, weight could be attached to the statement in Detective Inspector Laidlaw’s 10 October 2001 letter.

64. As noted, by the time of the second trial, Mr Potier and his then defence team were aware of the existence of the Telstra material. This was because it had been disclosed in an affidavit filed on 13 January 2005 in the course of the 2006 Court of Criminal Appeal conviction appeal proceedings. The relevant call charge records for the three Telstra payphones in the detention centre were annexed to that affidavit.

65. In the course of the second trial, Acting Superintendent Laidlaw was asked “if” he had received the Telstra call charge records on 11 October 2001 what he believed he did with them. His response was that he believed he had “[b]rought it to the notice of the Crown Prosecutor”. While the question to which he gave that answer was framed hypothetically, Acting Superintendent Laidlaw later in the course of the cross-examination confirmed that he was quite sure that he had given the Telstra material to the Crown Prosecutor. He said that he assumed it would have been served on defence counsel, from which answer it is apparent that he professed no personal knowledge of whether that had occurred.

66. Mr Potier points outs that, in the course of the defence summing up to the jury in the first trial, his then Counsel had emphasised the missing calls from the webtrace and had said:

The police with all their resources if they had ever checked the [Optus] web trace … would have realised that these calls weren’t there and if they had taken place you might well think that they could have through contact with Telstra, have obtained call charge records which would establish just that.

from which it seems he concludes that the significance of the missing calls, and hence the relevance of the Telstra material, must have been clear to the prosecution. Acting Superintendent Laidlaw was cross-examined to that effect at the second trial.

72. In the present proceedings, Mr Potier has submitted that the evidence that the Crown prosecutor had the Telstra material (prior to the end of the first trial) could not have been considered by the High Court when the special leave application was determined because it was not known at that stage that there had been a “deliberate withholding” of that information. However, the special leave application was in September 2013. Mr Potier accepts that he knew from around January 2005 that the call charge records (i.e., the Telstra material) had been received. Acting Superintendent Laidlaw had been cross-examined on this very issue in August 2006, well before the High Court special leave application in September 2013. The High Court application focussed on the Telstra material as being fresh evidence not available at the first trial. Therefore, any allegation as to the deliberate withholding of this material was one that could have been raised at that stage.

73. On the special leave application, Mr Brezniak conceded to the High Court that the call charge records were available by the time of the second trial. He accepted that the material that came to light close to the end of the first trial was that the three phones in the detention centre area to which Mr Potier had access were not the source of the calls and that there was no evidence as to whether the calls from the office of Mr Schofield, the officer within the detention centre’s telephone service, to which Mr Potier had access, might have been the source of the calls.

74. Mr Brezniak dismissed the last possibility as a red herring on the basis that there were no calls from that telephone on the Optus webtrace. There appears, however, to be a circularity of reasoning in that last proposition, since it was apparently agreed by Mr Finlay that calls missing from the Optus webtrace might be able to be found by reference to a search of the call charge records of the party making the call – hence it would be necessary to obtain call charge records from Mr Schofield’s telephone number in order to exclude that possibility.

Production of the original 2000 recordings

75. On 27 June 2008, an order to produce was issued by the Supreme Court, at the request of Mr Potier, requiring the Commissioner of Police to produce the following (Appendix 7 to Mr Potier’s submissions):

1. A certified copy of all of the original recordings obtained under [identified warrants] in October 2001.

2. A certified copy of the recordings played to the jury obtained under [an identified warrant] in October 2001.

3. Copies of any technical analysis carried out on the recordings by any persons identifying the same.

4. Copies of any reports, advices, communications of any kind concerning the modification of the recordings obtained under the warrants in October 2001.

5. Copies of all communications relating to items 1 to 4 of above identifying the sender and recipient, together with dates between your servants and agents and representatives of the Crown Solicitor’s Office, Director of Public Prosecutions or Crown Prosecution Service.

76. In its terms, the order to produce called only for material in relation to the 2000 recordings. The Commissioner produced a number of recordings in answer to that order to produce. Mr Potier says that these include four recordings not previously disclosed to the defence.

77. It is necessary to descend into some detail as to precisely what recordings were produced in answer to the order to produce, given the significance that Mr Potier attaches to that material.

78. On 23 October 2008, the matter was before a Registrar in the Court of Criminal Appeal. Counsel appearing for the Commissioner of Police, Ms England, informed the Court that there was production (in answer to par 1 of the order to produce), with no objection to access, of: one disc of telephone intercept material, four discs of listening device material and a two page statement dated 30 September 2008 of a police officer, Mark Alan Jones, certifying the listening device discs. She informed the Court that there was also production, again in answer to par 1 of the order to produce, of three discs of telephone intercept material in respect of which there was an objection to access on privacy grounds.

79. Ms England explained that the discs in respect of which there was an objection to access contained records of 319 telephone calls on Ms Conway’s telephone, interspersed with which were the calls by Mr Potier to Ms Conway.

80. Nothing was produced in answer to par 3 of the order to produce, on the basis that the event had not occurred. Orders 4 and 5 were opposed.

81. As to par 2 of the order to produce, there was apparently an agreement reached with Mr Potier limiting this to the material listed in a document headed “List of recordings played to jury from first trial” that had been provided by Mr Potier. After taking instructions, Ms England then informed the Court that all of the material that had already been produced in answer to par 1 of the order (by which, somewhat confusingly, she referred to the three compact discs) answered par 2 of the order to produce.

82. Mr Potier took issue with the proposition that material produced in answer to par 1 of the order to produce also answered par 2 of the order to produce. He referred to an affidavit that had been sworn in the 2006 conviction appeal proceedings that he said identified that there were two distinct and separate versions of the recordings (i.e., as I understand it, the original recordings obtained under warrant and the recordings played to the jury). He pressed for the production of the two sets of the 2000 recordings.

83. On 13 November 2008, two sets of recordings were produced. According to the transcript, on that occasion the Crown tendered an affidavit of Detective Senior Constable Robert Hollows, in which he stated that he had collected the original compact discs of the “paragraph 2 material” from the office of the DPP, had made copies and had returned the copies and originals to the DPP.

84. On that occasion, Mr Potier took issue with the statement by Ms England on the previous occasion that the “event” referred to in par 3 of the order to produce had not happened.

85. Mr Potier drew attention to a document (attached to Mr Potier’s submissions with the annotation “MFI 13”) that was a redacted version of an STIB job report on NSW Police Service letterhead dated 26 June 2001.

86. In that report, reference is made to four exhibits – an unmarked compact disc, and three cassettes. The report states that two of the cassette tapes “were affected by interference caused by the mobile phone” and that this inference cannot be removed or the product improved. In relation to the other cassette tape, the report states that the recording is “affected by some form of inference which leaves short bursts of blank portions between the conversation” and that the missing conversation is not on the tape and hence this problem cannot be improved. As to the compact disc, the report states that it is a computer data CD and cannot be played in a CD player; and that “[w]e do not have the equipment to work on this CD”. Pausing here, this job report is consistent with evidence given by M at the first trial, namely that recordings had been sent to STIB for analysis but STIB was not able to identify the problem.

87. The report also states that the two cassette tapes and a third item (the description of which has been redacted) have been copied onto three individual compact discs. This report can only be referring to the 2000 recordings since it predates the events of 2002.

88. The contention made by Mr Potier to the Court in November 2008 was that the document marked as MFI 13, i.e., the STIB job report to which I have referred above, fell within par 3 of the order to produce (and hence should have been produced). Nothing flowed from that, however, presumably because Mr Potier had in his possession a copy of the STIB job report anyway.

89. What can be discerned from the above is that, as a result of the production in November 2008 of documents in answer to the June 2008 notice to produce, Mr Potier obtained access to two sets of the 2000 recordings, those being: first, the certified original recordings made in the telephone interception branch (referred to by the registrar as the “raw format”) (the par 1 material) and, second, a set of the recordings played to the jury in the first trial (of the particular conversations identified in the list Mr Potier had prepared, to which I will refer as the “jury recordings”) (the par 2 material).

90. Mr Potier complains that the existence of two sets of the 2000 recordings (i.e., the raw format and the jury recordings) was not disclosed either to the jury (presumably referring to the jury in the first trial) or to the Court of Criminal Appeal in 2006. He maintains that a comparison of the two sets of recordings shows that it was wrong for the Crown to tell the jury that the recordings played to them were genuine.

91. Pausing there, it does not follow that, if the recording of only a particular number of conversations was played to the jury (being extracted, so to speak, from an original recording containing a large number of irrelevant conversations), that which was played to the jury was not a genuine recording of the relevant conversations. From my review of the transcript of the second trial, there was no suggestion at any stage that what had been played to the jury at the first trial was the whole of the telephone conversations recorded on the listening device on Ms Conway’s landline (in respect of which the Court and Mr Potier were informed there were a large number of unrelated conversations).

92. Mr Potier also says that it was false to say that the recordings played in both trials were from an original copy retained in the telephone interception branch.

93. His submissions in relation to this issue seem, at least to some extent, to conflate the 2000 recordings and the 2002 recordings because Mr Potier refers to the “first 2 February recording” being blank and that this was only discovered by him when the respondents produced the original recordings in accordance with the order to produce. However, the only relevant 2 February recording could be a recording taken in 2002 and the 2002 recordings were not the subject of the 2008 order to produce. (I will come back to Mr Potier’s complaint as to the February 2002 recording shortly.)

Summary of submissions as to the Conway recordings

94. In his submissions in these proceedings, Mr Potier makes three points as to the 2000 recordings of conversations between himself and Ms Conway.

95. First, he says that, insofar as it is suggested that the missing calls were not shown on the Telstra material because another telephone had been used, this is inconsistent with the letter from Detective Inspector Laidlaw to Telstra (MHP3), namely that these were the pay phones that had been used. (This relies upon the statement in that letter being some form of binding admission against the Crown, which as I have explained above it is not.)

96. Second, he says that the suggestion that another phone may have been used cannot be accepted because at the time the calls were made, according to the webtrace, Ms Conway’s phone was not receiving calls from any number and, further, that during the period from 2 to 9 May 2000, there were no phone calls from any number of the same length of the recordings that were played, therefore, he says the calls were not made. (This submission does not take into account the possibility that the Optus webtrace had not registered a call to Ms Conway’s phone from another telephone, the call charge records for which have never been obtained.)

97. Third, Mr Potier says that the police did carry out investigations as to whether any other phones were used to contact Ms Conway (referring to Detective Inspector Laidlaw’s evidence T 364.40-50) and that there is no evidence that another phone was used. That involves a misreading of Detective Inspector Laidlaw’s evidence. Moreover, at the first trial there was evidence raising the possibility that another telephone had been used; namely that of Mr Schofield. Reference was made to this in the evidence given by the then Acting Superintendent Laidlaw at the second trial. (The Crown maintains that it was not obliged to prove the phone from which the calls were made; that it has established the provenance of the recordings; and that Ms Conway gave evidence identifying the voices of Mr Potier and herself on the recordings and as to what was said in the conversations.)

98. Mr Potier also raises particular issues as to the conversations with Ms Conway that were recorded on 2, 5 and 8 May 2000, to which I refer when considering the challenge he makes to the authenticity of the recordings of conversations with M below.

Submissions of Mr Potier re recordings of conversations in 2000 with “M”

99. Mr Potier has prepared a schedule (MHP 6) in which he sets out his analysis of the list of the recordings played to the jury of his conversations in 2000 with each of Ms Conway and M. In that document he highlights the five calls missing from the Optus webtrace and points to various discrepancies he has identified between the length of the original recordings and those played to the jury. He has also raised an issue as to one of the phone conversations overlapping with another.

100. It appears that Mr Potier has prepared that analysis based at least in part on a comparison between the start/stop times of the recordings shown in the police audio log in relation to the listening device that recorded the meetings with M and the length of the recordings played to the jury.

101. The recordings of conversations with M where Mr Potier has identified a difference between the length of the recordings obtained under warrant and the recordings as played to the jury or has otherwise challenged the timing of the recordings are: first, his meeting with M on 2 May 2000; a telephone conversation with M on 4 May 2000; a telephone conversation with M on 5 May 2000; and a meeting with M on 8 May 2000.

2 May 2000 recording of meeting with M

102. As to the meeting on 2 May 2000, Mr Potier notes that the officer recorded the start/stop times at the beginning and end of the recording as being 7pm to 7.30pm but that the tape played to the jury was 34 minutes in length. He concludes that there were four extra minutes on the recording played to the jury; by inference suggesting that those were added to the recording in some fashion.

103. Mr Potier also places emphasis on what he maintains was directly inconsistent evidence given by two police officers as to the 2 May 2000 recorded meeting, his submission being that one of the two officers must have been lying.

104. The meeting between M and Mr Potier was recorded by M on a listening device. The precise details as to this device and the mechanics of its operation were the subject of a claim for public interest immunity by the Commissioner of Police. While that conversation was being recorded on M’s listening device it was also being monitored at the listening post in the undercover branch.

105. Detective Chief Inspector Jones gave evidence as to his involvement in the investigation into the 2000 offences. He had assisted between 6.59pm and 7.30pm on 2 May 2000 in monitoring, from the listening post in the undercover branch, the conversation between M and Mr Potier at the Villawood Detention Centre.

106. His evidence was that there had been an attempt separately to record the conversation using equipment at the listening post but that the machine had failed to record the conversation. He postulated that that could have been due to operator error but conceded that, as with any equipment, there could have been a malfunction. Asked whether any suggestion that there was a second tape in existence of that conversation (i.e., apart from the recording made by the device which M had with him at the meeting) could be excluded, Detective Chief Inspector Jones said that there was a tape but there was nothing recorded on the tape and it had not been produced to the Court. He identified an entry in the police tape log book that he said referred to that particular tape (being the entry previous to that comprising M’s recording).

107. Relevantly, Detective Chief Inspector Jones also gave evidence that he had been at the Special Services Group premises later that evening; had seen the constable produce a piece of technical equipment to replay a portion of the conversation between M and Mr Potier; and had seen the constable produce a compact disc (which he identified as tape numbered 2377 in the log). This is clearly a reference to the recording that was made on the listening device that M had with or on him during the meeting with Mr Potier.

102. The evidence that Mr Potier says is directly inconsistent with the above is evidence from Acting Superintendent Laidlaw, which he says was to the effect that an audiotape was generated at the listening post and that it did have a recorded conversation on it (Mr Potier referring to the evidence given in the transcript at T 346 and T 356).

103. Acting Superintendent Laidlaw’s evidence (at T 346) was that the entire conversation between M and Mr Potier recorded on 2 May 2000 “was recorded on audiotape” and that together with other undercover branch operatives he monitored the conversation. None of that is inconsistent with Detective Inspector Jones’ evidence, from which it is apparent that he thought that the conversation was being recorded in the listening post at the time that the conversation was being monitored. Acting Superintendent Laidlaw then said that at the conclusion of the conversation with Mr Potier, the audiotape was later copied and handed to a Detective Platt. He was not asked whether he had listened to the tape at that stage or, if he did, whether the tape was blank. To this point the only potential inconsistency in the evidence is whether a copy of the audiotape generated at the listening post (which according to Detective Chief Inspector Jones was blank) had been provided to the investigating officers or not.

104. Acting Superintendent Laidlaw was further cross-examined as to his statement that the entire conversation had been recorded on audio tape. He said that the original of the tape was with the undercover branch and went on to say “I won’t go into specifics on how it was recorded, obviously for methodology reasons, but I believe it is with them” (T 356.25). That answer strongly suggests that what Acting Superintendent Laidlaw was there referring to was the recording made on the device that was with M, since it was that device that was the subject of the claimed immunity.

105. He then agreed that at the end of the conversation on 2 May 2000 Detective Platt was given an audio tape of the conversation so that it could be transcribed; said it was a copy not the original; and said that that was produced at the conclusion of the conversation. He also agreed that in his statement he had said that he was given an audio cassette tape that he had caused to be transcribed.

106. What emerged from the course of that cross-examination does not permit a finding that either of the police officers was lying and it was not put to either of them that he was.

107. The most likely explanation of any inconsistency in the above evidence is confusion as to the different modes of recording and, in particular, to the device that was used by M (which was the subject of the claim for public interest immunity). Such confusion, without any disrespect to Mr Potier’s then counsel, was apparent from the questioning of Detective Chief Inspector Jones (see from T 277-279), which led to discussion, in the absence of the jury, as to how, as a technical matter, the compact disc of the 2 May 2000 conversation was produced. Counsel for the Commissioner of Police made it clear that the public interest immunity related to the assumption that counsel for the defence had made in questioning Detective Chief Inspector Jones to the effect that the recording and the equipment were distinct. This led to information being provided on a confidential basis to the trial judge and to counsel for the defence, which Mr Healey indicated was of assistance to him in elucidating the matter.

108. From the questioning of Detective Chief Inspector Jones that followed, it is apparent that it was the recording by M (not the VHS audiotape that had been produced at the listening post) that was forwarded to the STIB for possible “enhancement”.

109. The cross-examination of Detective Chief Inspector Jones and Acting Superintendent Laidlaw on this topic was described by counsel for Mr Potier as going to “the issue of the authenticity or integrity” of three things – the technical equipment used; the technical equipment used to replay the recording; and the compact disc. Mr Healey informed the Court, in the absence of the jury, that Mr Potier did not accept that the compact disc (MFI 3 at the second trial – item 2377 in the police tape log book) was a genuine record of what had been played in court and that Mr Potier was suggesting that there had been alterations to the “products” of the conversation.

4 May 2000 recording of telephone conversation

116. The evidence of Detective Chief Inspector Jones was that on 4 May 2000 he was present at the Special Services Group premises at about 5.40pm when M made a telephone call which was recorded. He says that at the completion of the call M handed him a cassette tape and he replayed a portion of the conversation from that tape to M. Details of that tape (marked MFI 4 at the second trial) were entered into the tape log book at entry 2378.

117. Mr Potier’s schedule (MHP 6) records the time difference between the two recordings of this telephone conversation as approximately one second. He makes no specific submission in relation to this call.

5 May 2000 recording of telephone conversation

118. Detective Chief Inspector Jones gave evidence that on 5 May 2000 he had a telephone conversation with M in relation to a telephone call the latter had made to Mr Potier on that date that was only partly recorded. He said that he had listened to part of that recording (MFI 5). He was not sure if he had listened to it in its entirety. He recalled that there were parts of the conversation that were not recorded on the tape.

119. As to this telephone conversation, Mr Potier maintains that the records of M’s mobile phone account shows that this call overlapped by some five minutes with the conversation that it is alleged Mr Potier was having with Ms Conway on 5 May 2000 (which did register on the Optus webtrace). Mr Potier says that the Optus webtrace shows that the conversation with Ms Conway finished, after 11 minutes, at 19.42; whereas M’s phone account shows a ten minute phone call finishing at 19.45. Mr Potier also maintains that with the 5 May 2000 telephone conversation with Ms Conway there is a discrepancy of around 11 minutes between the length of the actual telephone intercept recording and that played to the jury (although he does not point to any particular content in the conversation as having been either added to the former or excised from the latter).

120. As to the 5 May 2000 call, Mr Potier says that the transcripts were incorrect in that it was suggested in the transcript that things had been said, in terms of having been actually recorded, but that M’s notes show things that were not recorded. He submits that this leads to an inference that what was on the tapes was factually incorrect.

8 May 2000 meeting

121. Detective Chief Inspector Jones also gave evidence that on 8 May 2000, he had a further conversation with M at Special Services Group premises during which M handed him a cassette tape. He played a portion of that tape and M initialled the tape and it was recorded as 2381 (MFI 8). Similarly, on 8 May 2000 he said that he assisted with Detective Platt and Senior Constable Brown in monitoring a conversation between M and Mr Potier and was present when a portion of that conversation was played and the tape was labelled and entered with details 2382 (MFI 6) and 2383.

122. As to the 8 May 2000 meeting between Mr Potier and M, Mr Potier maintains that the start/stop times of the recording in the police log reveal a 33 minute recording but that the recording played to the jury was only 30 minutes. He also points to notes in the transcript referring to “break in tape” whereas he maintains there was no break in the recording to the jury.

123. In his schedule (MHP 6), Mr Potier also notes differences of around four minutes and eight minutes in the recordings of two telephone conversations with Ms Conway on 8 May 2000.

General complaint as to quality of the recordings

124. Mr Potier describes certain of the original recordings as being bad recordings or having a “bad echo”. The perceived discrepancy between the recorded lengths of various of the 2000 conversations and the recordings played to the jury, as well as the contention that one call on 5 May 2000 would have had to have been made simultaneously to Ms Conway and to M; as well as discrepancies as to the quality of the 2000 recordings, were all matters raised in submissions on the High Court special leave application.

2002 recordings

125. At the second trial, the evidence included not only the telephone recordings from the first trial and an electronically recorded police interview (ERISP) with Mr Potier in 2000, but also the listening device recordings made on 2 February 2002 and 6 February 2002 of conversations between Mr Potier and A.

126. Mr Potier complains that it was not until 2009 (after his second trial) that he discovered that there were two sets of material in relation to the 2002 recordings – the original on VHS and a “highlight tape” on CD. That complaint is contradicted by the evidence to which Mr Potier also points (from Detective Sipos) to the effect that the 2 February 2002 recording to the jury (Exhibit M at the trial) was from a “highlight tape”.

127. Mr Potier calls into question the provenance of the highlight tape because he says that the evidence of the police was that the VHS tapes were included in the evidence log but the highlight tape was just kept in a drawer and not in safe keeping.

2 February 2002 recording

128. The first of the 2002 recordings about which Mr Potier raises issues is one made on 2 February 2002.

129. Marked “MFI 1” in the present proceedings is a copy of a letter dated 17 September 2014 from Mr Potier to the Registrar enclosing further supplemental submissions dated 17 September 2014 and enclosing two VHS audio tapes. The first of those (marked Supplemental Exhibit MHP 1) is described as a VHS audio tape provided by the police of the alleged conversation of Mr Potier and A on 2 February 2002 “taken from Master Tape stored as exhibit”.

130. Mr Potier seeks to tender the VHS recording of 2 February 2002 (his supplementary exhibit MHP 3), to show that there is no audio contained on that tape. Mr Potier notes that what was entered into the police evidence log book was described as being blank (save as to confirmation of date and time) with no audio on it; whereas the version played to the jury did have audio on it.

131. At the second trial, Mr Potier cross-examined various police officers as to the provenance and integrity or authenticity of the tape. Relevantly, the VHS tape of the 2 February 2002 conversation between A and Mr Potier was taken from secure storage and delivered to Sergeant Van Dyke of the STIB for “enhancement”. Sergeant Van Dyke gave evidence that he had produced a CD from the master tape recording. The sergeant confirmed that his task was to process the VHS in an attempt to improve the intelligibility of the voices. He said that “using recognised signal processing techniques” he produced an STIB compact disc.

132. In cross-examination by Mr Potier, Sergeant Van Dyke explained that he had prepared a pro forma statement as to the processing of the disc because of privilege in relation to the particular techniques involved in forensic signal processing. He said that the “enhancement” process was not capable of adding to a recording nor of removing answers from a recording. The sergeant confirmed that he had produced one STIB compact disc. He gave evidence that some portions of the tape were unable to be improved, referring to negative signal and noise ratio.

133. The second tape enclosed with the 17 September 2014 further supplemental submissions (marked Supplemental Exhibit MHP 2) is described as a VHS audio tape provided by the police of the alleged conversation of Mr Potier and A on 6 February 2002 “not jury version”. The supplemental exhibit also contains the statement “Jury version taken from highlight tape not stored as exhibit”. Also part of “MFI 1” is what purports to be the transcript of the recording played to the jury of the 6 February 2002 conversation.

134. Mr Potier has prepared an analysis of the highlight tape (MHP10) which he says shows that the tape was stopped roughly halfway through the recording played to the jury and not restarted. Mr Potier submits that the highlight tape played to the jury is therefore not the highlight tape as recorded because it has had 19 minutes of extra recordings put onto the end of it after it was stopped.

6 February 2002 recording

135. Reference is also made to the evidence of Senior Constable Maglicic of STIB (T 822) to the effect that exhibit M (a disc that Mr Potier describes as the original recording of the 6 February 2002 conversation but which elsewhere is identified as a recording of the 2 February 2002 conversation) was not produced by the audio video signalling process section.

136. Mr Potier maintains that this evidence shows that some person in the police force has altered the original recording of the 2 and 6 February 2002 conversations to add to the recording the alleged conversations. He makes this submission on the basis that: the only recording mediums placed in the police log book in 2002 were the VHS master tapes; the recording of 2 February 2002 was entirely blank but, after enhancement, it contained a full audio product; and that the conversation of 6 February 2002 comes from the highlight tape not entered into the police log book and that recording is noted as having been stopped approximately halfway through the conversation played to the jury.

Summary of position re the Telstra material and the recordings

137. In summary, as at the time of, or at least by the end of, the second trial the position is that: Mr Potier was aware of the existence of the Telstra material (and had been since the filing of the January 2005 affidavit in the 2006 conviction appeal proceedings); he was aware that the Crown had, or at least may have had, that material before the end of the first trial (as per the cross-examination in August 2006 of Acting Superintendent Laidlaw); he was aware from the evidence of Detective Sipos that the 2 February 2002 recording played to the jury was from a “highlight” tape; and he knew that Sergeant Van Dyke had carried out what was referred to as forensic signal processing as a result of which the Crown maintained that the intelligibility of the voices on the original VHS tape recording had been improved.

138. Furthermore, the Crown maintains that all recordings, including all 13 master tapes, were copied and supplied in advance of the second trial to junior counsel for the defence and points to the fact that Mr Potier did not dispute this when it was raised before the trial judge on 8 September 2006. The Crown also points to the evidence of Detective Sipos in this regard (T 734).

139. Mr Potier nevertheless complains that nothing was disclosed in the second trial as to the “unusual” nature of the recordings or that there were two sets of recordings or that the Crown had (by the end of the first trial) received the Telstra material.

140. Three sets of tapes/discs were marked for identification during the appeal hearing. In his 8 January 2015 supplemental submissions, Mr Potier identifies the respective MFI’s as follows:

MFI 1 as the two VHS tapes of alleged recordings of 2 and 6 February 2002.

MFI 2 as the two sets of recordings of alleged conversations between Mr Potier and Ms Conway between 2 and 9 May 2000, together, he believes, with alleged conversations of 4 and 5 May 2000 with M.

MFI 3 as the recordings of the alleged meetings of 2 and 8 May 2000 between Mr Potier and M.

141. Mr Potier has sought to tender the tapes marked MFI 3. The Crown objects to that tender. I will deal with it in relation to ground 8 of the appeal. Suffice it to note at this stage that Mr Potier maintains that the discs marked MFI 3 were produced (with other material) in answer to the June 2008 order to produce and he relies on these as the actual tape recordings of the conversations between himself and M on 2 and 8 May 2000 (see AT 43; 10/11/14).

142. Mr Potier in his submissions has requested the Court to consider the authenticity of all recordings played to the juries and to listen to the recordings at the same time as reading the transcripts of the recordings.

143. In this regard, Mr Potier submits that in the conversations with M there were two conversations in effect being recorded and that they differ in style and content – namely, that while M talked about the solicitation of the murder of two people, he, Mr Potier, is recorded as repeatedly emphasising “Do nothing illegal” and “Get the evidence needed for the Family Court”. Mr Potier also maintains that the response recorded on the transcript as “mmm” to the question whether he wanted the persons “knocked” cannot be heard on the recordings. Hence, Mr Potier emphasises the importance of listening to the original material.

144. For the reasons set out in due course, leave to tender MFI 3 should be refused but, even if it were to be admitted, it does not assist Mr Potier.

Submissions in the present proceedings

145. Numerous submissions were filed on behalf of, or by Mr Potier. So that there is no doubt as to the material that was put before this Court by Mr Potier, those documents are listed below. As at the time of the hearing of the appeal, the Court had been provided by Mr Potier with:

1. Grounds of appeal against conviction submissions filed 10 September 2014 (referring to various documents copies of which were attached and described as MHP1 – MHP 14 respectively), with 5 appendices.

2. Further supplemental written submissions dated 17 September 2014 and filed 25 September 2014 (including supplemental exhibits described as MHP 1 – MHP 3 respectively).

3. Final submissions in conviction appeal (Part 1 of 2) dated 3 November 2014 and filed 4 November 2014.

4. Final submissions in conviction appeal (Part 2 of 2) dated 5 November 2014 filed 5 November 2014.

146. The Crown filed submissions on 21 October 2014 and submissions in response to Mr Potier’s further ground of appeal on 30 October 2014. The Crown also prepared a summary of trial which was filed on 20 October 2014.

147. Provided to the Court at the hearing of the appeal was a copy of the transcript of proceedings before the High Court on the special leave application in 2013 and the summary of argument filed on behalf of, or by Mr Potier in the High Court of Australia on 23 April 2013, dated 25 June 2013 and signed by Mr Brezniak, Counsel who appeared for Mr Potier on that application.

148. After judgment was reserved Mr Potier also sought leave (which the Court granted) to file further submissions that he indicated would be prepared by Counsel as to the adequacy of the trial judge’s directions on the s 91 issue (as to admission of the fact of conviction). Leave was granted for Counsel’s submissions to be filed on that issue, Mr Potier having indicated that Mr Brezniak of Counsel had agreed to prepare them. Those submissions were ultimately filed, but expressed to be incomplete, on 23 January 2015. They extended beyond the scope of the leave that had been granted, to include submissions not only on the adequacy of the s 91 directions but also as to the admissibility of the tendency and coincidence evidence per se and the admission of evidence as to the fact of conviction. Mr Potier also filed submissions on 8 January 2015 in relation to the issue of the audio recordings. The Crown filed submissions in response to Mr Potier’s submissions on 30 January 2015. On 27 February 2015, Mr Brezniak filed an expanded version of the 23 January 2015 submissions. The Crown objected to reliance on those additional submissions but was given leave to reply to the additional material.

149. I have taken into account all those submissions in preparing these reasons. I have also, as Mr Potier urged the Court to do, listened to the various audio recordings. That exercise was quite unproductive in terms of revealing any obvious lack of authenticity in the recordings but was instructive in dispelling any suggestion that the jury could not have been satisfied beyond reasonable doubt that what Mr Potier was talking about with M (when he referred to evidence being gathered) was something that did not bear the innocent explanation that Mr Potier seeks to ascribe to it.

543. Finally, Mr Potier is critical of his defence legal team for not having made contact with a former prison inmate, Mr Warren Richards, in order to obtain evidence from him. Mr Potier has included in the appeal books a handwritten affidavit setting out the evidence that Mr Richards says he would have been prepared to give had he been asked to do so. There was some evidence given at the trial as to the attempts that had been made by the Crown to locate Mr Richards (who it was thought was an associate of Neddy Smith and was unlikely to cooperate with the police).

544. Even if there is some fault on the part of the defence team in this regard, and without exploring the instructions that were given by Mr Potier at the relevant time no such conclusion could be reached, it is evident from a review of the contents of Mr Richard’s affidavit that it is very general in its terms and would not have materially advanced Mr Potier’s defence. There was already evidence from a number of other prison inmates as to the way in which A was regarded by them. Mr Richards’ own views on this issue would not have assisted Mr Potier and his evidence of the “joke” that he says Mr Potier said was being played on A suffers from the problem that it is vague and depends on the veracity of Mr Potier in any event.

545. There is no basis for a conclusion that the conduct of the defence legal team caused the trial to miscarry. Ground 5 is not made out.

Ground 6 – Non-disclosure

548. Ground 6 is the contention:

6.   That documents that were in the position [sic; possession] of the Crown Prosecution Service, or should have been, in their possession were withheld from the Defence. These documents should have been disclosed to the Defence prior to the start of the Trial and their failure to disclose caused the Trial to miscarry.

549. The Crown’s duty to disclose is an incident of its duty of fairness to the accused. The test in in R v Reardon [2004] NSWCCA 197; (2004) 60 NSWLR 454 correctly encapsulates in New South Wales the prosecution’s duty of disclosure (see R v Spiteri [2004] NSWCCA 321; (2004) 61 NSWLR 369 at [20] and R v Livingstone [2004] NSWCCA 407; (2004) 150 A Crim R 117; at [44], [45]). That test (Hodgson JA adopting that in R v Keane [1994] 2 All ER 478 at 484; [1994] 1 WLR 746 at 752) is as follows in respect of the content of the duty of a prosecutor to disclose information (at [48]):

... the prosecution must disclose documents which are material ... documents are material if they can be seen, on a sensible appraisal by the prosecution, (a) to be relevant or possibly relevant to an issue in the case, (b) to raise or possibly raise a new issue the existence of which is not apparent from the prosecution case, or (c) to hold out a real (as opposed to a fanciful) prospect of providing a lead on evidence going to either (a) or (b). This view was approved by the House of Lords in R v Brown (Winston) [1998] AC 367 at 376–7, with the comment that “an issue in the case” must be given a broad interpretation. Category (c) makes it clear that the duty is not limited to matters that would be admissible in evidence.

550. Hodgson JA's statement of relevant principles was approved in Cornwell v R [2010] NSWCCA 59; at [210] and R v Lipton [2011] NSWCCA 247; (2011) 82 NSWLR 123 at [77]. In R v Spiteri, Simpson J (Grove and Shaw JJ agreeing) said at [17]-[23]:

In Brown [[1998] AC 367; [1997] 3 All ER 769] … it was held that the prosecution duty of disclosure did not extend to disclosing material relevant only to the credibility of defence (as distinct from prosecution) witnesses. Even less, in my view, does the duty extend to disclosing material relevant only to the credibility of the accused person himself or herself; and even less does it extend to obliging the Crown to disclose material that would deter an accused person from giving false evidence or raising an issue of fact which might be shown to be false.

551. Her Honour noted at [25] that the reference to material which might assist the defence has to be considered in the context of the trial under consideration and that the Crown cannot be expected to disclose material in its possession which might assist a defence of which it has no notice and cannot be expected to foresee.

552. The prosecution’s duty to disclose is a continuing one (R v Glover (1987) 46 SASR 310; Cooley v Western Australia [2005] WASCA 160; (2005) 155 A Crim R 528 at [57]) and extends to disclosing material relevant to sentence proceedings (R v Lipton (2011) 82 NSWLR 123 at [82]).

553. The consequences of non-compliance with the duty to disclose were considered in Grey v R [2001] HCA 65; (2001) 184 ALR 593; 75 ALJR 1708. There, the majority (Gleeson CJ, Gummow and Callinan JJ) held that where the Crown has not complied with its duty of disclosure, the question is whether the non-disclosure resulted in a miscarriage of justice. (See also Mallard v R [2005] HCA 68; (2005) 224 CLR 125.)

554. The present appeal challenges the conviction in the second trial. Therefore any ground of appeal in respect of non-disclosure must relate to that trial. Even if there had been a breach of the duty of disclosure at the first trial by the failure to disclose to defence counsel the Telstra material, and the Crown does not concede that the evidence supports such a conclusion, this relates to the validity of the conviction in the first trial, a matter that is beyond the jurisdiction of this Court to entertain in light of the dismissal by the High Court of Mr Potier’s special leave application.

555. The only recordings of which Mr Potier could have been unaware by the time of the second trial could be the material produced in answer to the order to produce. That material could only have related to the 2000 recordings having regard to the terms of the order to produce and what was said at the time the material was produced.

556. Mr Potier has acknowledged that his defence legal team were provided prior to the second trial with all of the master tapes in relation to the 2002 recordings (T 694; 8/9/06). The “enhancement” of the 2002 tapes, which enabled audio material from those tapes to be played to the jury at the second trial was a matter about which evidence was given at the second trial.

557. The Crown submits that Mr Potier has failed to establish that due diligence would have been unlikely to ascertain the existence of the Telstra material and has failed to establish that any alleged non-disclosure has resulted in a miscarriage of justice and hence has not satisfied the test in R v Livingstone at [49]-[50].

558. At the time of the second trial, as summarised earlier, the Telstra material had already been disclosed and the existence of the master tapes and highlight tapes in relation to the 2002 recordings was known by then (Mr Potier conceded that all 13 master tapes had been served on the defence legal team while Mr Terracini was briefed in the matter). Even if there was an obligation on the Crown also to disclose that there was both an original (raw format) recording of the relevant 2000 conversations and another set of the recordings as played to the jury, no miscarriage of justice has been shown to have resulted from that for the reasons set out earlier.

559. If the question for this Court is whether the appeal against conviction in the second trial should be allowed because of a question as to the reliability of the earlier conviction based on the alleged non-disclosure of the Telstra material, then it must be answered in the negative. In my opinion no substantial miscarriage of justice has been shown to have occurred as a result of admission of the 2000 recordings. By the time of the second trial the Telstra material was known to the defence and was able to be relied upon for whatever inference might have reasonably been able to be drawn therefrom.

560. Mr Potier has not lost a chance which was fairly open to him of being acquitted, or a real chance of acquittal, by reason of the admission of the 2000 recordings. The provenance and quality of the recordings were well and truly in issue at the second trial and, as the Crown emphasises, the jury was in the position where they could assess for themselves matters such as whether it was Mr Potier’s voice that had been heard on the respective sets of recordings and the contention by Mr Potier that the recordings had been manipulated or altered in some fashion.

561. As to the Crown points out, the case that Mr Potier sought to run in relation to the 2002 recordings was that A was seeking to entrap him or that he was playing a trick on A or humouring him. That is inconsistent with a denial that it was his voice on the recordings or that the conversations had been in some way artificially produced or altered. Similarly, Mr Potier’s argument on this appeal that the recorded conversations with M show that there were in effect two parallel conversations going on at the same time (M speaking of persons being knocked and he speaking of legally gathering evidence) ignores the clear inference to be drawn from the statements made in the course of the conversations as a whole.

562. No substantial miscarriage of justice has been established from any irregularity in the length of the recordings played to the jury or matters of that kind.

563. Ground 6 is not made out.

Ground 7 – Respondent’s conduct

564. Ground 7 relates to the conduct of the case by the Crown, namely:

7.   That the overall conduct of the Respondents, servants and agents demonstrates an intention to disrupt the course of justice, thereby causing both Trials to miscarry. That such conduct does create a sense of unease and disquiet; this Court does intervene and quash the Conviction.

565. In the course of Mr Potier’s written submissions he broadly identifies a number of areas of complaint in this regard.

Telstra material

566. First, complaint is again made in this context as to the non-disclosure and “deliberate withholding” of the Telstra material (which Mr Potier says he had always assumed was deliberately withheld by the police but discovered in 2006 had been disclosed to the Crown during the course of the first trial, in October 2006). Mr Potier points to the evidence of Acting Superintendent Laidlaw in the second trial as to what he did with the Telstra material and asserts that the evidence given was that he knew it had not been given to defence counsel.

567. That involves a gloss on the actual evidence given on this subject. Acting Superintendent Laidlaw believed he would have given the material to the Crown prosecutor; agreed that he was quite sure that he did; and said he assumed it would have been given to defence counsel. He agreed that he understood the significance of the material (although it was not put to him what the significance of it was other than that there had been statements made in summing up as to the absence of any Telstra records). The Crown does not concede that there was any breach of the obligation of disclosure but in any event submits, and I agree, that there was no substantial miscarriage of justice occasioned to Mr Potier in the second trial even if there was such a breach during the first.

Overlapping telephone conversations

568. Mr Potier also complains of the failure by the Crown to explain that M’s telephone account (MHP 11) showed that he was speaking to Mr Potier at the same time as Ms Conway (referring to MHP 6 and MHP 12). The Crown’s response to this is that Mr Potier’s commentary on the tapes (MHP 12) is not evidence and there has been no attempt by Mr Potier to reconcile the items now sought to be tendered with the items listed on the June 2008 order to produce.

569. In any event, for the reasons set out above, the complaint as to this issue does not establish a miscarriage of justice.

Intention to use recorded conversations in sentencing hearing

570. Thirdly, Mr Potier complains that Detective Sipos’ evidence (at T 762-764) to the effect that if the investigation failed to produce enough evidence for a charge in relation to the 2002 offences, he would use A to try and increase the sentence that might be given at the then forthcoming sentencing hearing for the first offence, reflects on the conduct of the Crown case. Detective Sipos agreed that his idea had been that if the solicit to murder investigation did not produce anything it might be that A could give evidence in relation to Mr Potier’s sentencing for his previous conclusions. He said it had gone nowhere.

571. Even if such an intention could be characterised as improper, it has nothing to do with the conduct of the second trial.

Inconsistent evidence as to the two sets of recordings

572. Mr Potier also points in this context to what he says was the inconsistent evidence by the two police officers (Acting Superintendent Laidlaw and Detective Sergeant Jones) as to the 2 May 2000 recording and the non-disclosure of the 2 “substantially different” sets of the 2000 recordings. I have considered this above. I do not accept that the conclusion drawn by Mr Potier from this evidence, that one of the police officers must have been lying, is correct. The substance of this complaint that goes to the provenance of the recordings and has already been dealt with.

Pursuing second prosecution on an infirm basis

573. Mr Potier further complains that the Crown proceeded with the second trial knowing that “this was on an infirm basis”. In this regard, he refers to the Crown having admitted, in May 2011, that the Court of Criminal Appeal erred at [49] of its 2006 judgment. Mr Potier complains that the Crown did not correct that error, but took advantage of it. For the reasons already given, the non-disclosure of the Telstra material during the first trial did not cause the second trial to miscarry.

574. Back in March 2006, I note that Mr Terracini (T 319.10) had made clear that the defence was not suggesting that there was any impropriety in the way that Mr Potier had been prosecuted the second time (the defence contention being, however, that the Crown had “chosen to adopt a certain course to try and get [Mr Potier] to say things, capable of interpretation that he committed a very very serious offence, knowing themselves it was impossible to carry out”.

575. There is no basis to the complaint that the Crown acted in some way improperly or without sufficient cause in the investigation or prosecution of the suspected offence.

Discussion with Ms Conway before her cross-examination

576. As a further matter, Mr Potier complains that the Crown on 15 September 2006 tendered a statement from Ms Conway who had commenced giving evidence some days earlier. Mr Potier says that this was prepared with the assistance of the NSW Police and Crown Prosecutors Office (T 829) and was a flagrant breach of the court rules that witnesses are not allowed to discuss their evidence with those questioning them during the giving of their evidence.

577. Ms Conway’s evidence in chief was disrupted by illness. Before her cross-examination was due to commence, Mr Healey had asked for a short adjournment. This was granted. When the trial resumed on 21 August 2006, Ms Conway was ill. Other witnesses were interposed.

578. On 15 September 2006, before her cross-examination had commenced, the Crown recalled Ms Conway who then gave evidence that, since giving her earlier evidence, she had contacted the Crown prosecutor and his instructing solicitor to alert them to some further information she wished to give evidence about. She had then given a fresh statement to Detective Sipos. The new evidence related to her recollection of where certain money she said she had received from Mr Potier had been changed from English to Australian currency. Mr Potier complains that the Crown had spoken with Ms Conway before her cross-examination.

579. Mr Potier’s complaint reveals his lack of familiarity with the relevant Bar Rules. What is precluded under the Bar Rules is conferring with a witness while the witness is under cross-examination. Ms Conway’s cross-examination had not yet commenced at the time that she contacted the Crown prosecutor to advise that she had further information about which she wanted to give evidence.

580. In International Relief and Development Inc v Ladu [2013] FCA 1216 the practice in this regard in Victoria and other Australian jurisdictions was considered in the context of an application given for leave to confer with a witness before the commencement of re-examination. Kenny J referred to the relevant Victorian Bar Rules which precluded a barrister from conferring with a witness while the witness was under cross-examination, even if the witness is a client or party to the proceedings, unless one of the two exceptions to the rule applied. Her Honour considered that there might be a question as to what extent if at all that rule applied where the cross-examination of the relevant witness had apparently concluded and re-examination was about to commence but did not consider it necessary to say anything further about that subsidiary question.

581. Her Honour noted that there had been a practice in at least some Commonwealth jurisdictions that Counsel would not speak with his or her own witness while that witness was under oath (or, perhaps, only under cross-examination) at least without leave of the Court or the consent of the opposing party (or perhaps, without informing either the Court or the opposing party), referring to an article by a former Federal Court judge in the 1997 Australian Bar Review (Sheppard “Communications With Witnesses Before and During Their Evidence” (1987) 3 Australian Bar Review 28 at 36-38).

582. The New South Wales Bar Rule at the relevant time refer to speaking to the witness while the witness is in under cross-examination. This had not occurred by the relevant stage. Mr Potier’s complaint has no substance.

Disparity in funding re witnesses

583. Mr Potier also complains that the Attorney-General funded the calling of Ms Oswald (“the alleged victim”) to give evidence but was not prepared to fund Mr MacKechnie to give evidence personally or by video-link. There is no substance to this complaint.

584. True it is that the Crown’s duty of fairness and impartiality is informed by the inequality of resources between the Crown and accused and brings with it an obligation to make available all material that may assist the defence (R v Lipton [2011] NSWCCA 247 at [76], [79], [80]; R v Ulman-Naruniec [2003] SASC 437; (2003) 143 A Crim R 531 at [136], [137]).

585. However, it is clear from the transcript of what occurred that the trial judge’s concern was as to the feasibility and inconvenience to the efficient management of the trial if he were to accede to the request that Mr MacKechnie give his evidence personally or by videolink. Arrangements were then made for Mr MacKechnie’s sworn statement to be read (the Crown not objecting to the inadmissibility of parts of it that were clearly hearsay). It was not suggested that the jury should place less weight on this evidence because Mr MacKechnie was not cross-examined.

586. The jury was capable of considering, in light of all the evidence, whether to accept Mr Potier’s evidence that he was playing a joke on A, and the plausibility of this at a time when he was awaiting sentence for conduct of the very same kind as the purported joke.

Disquiet as to investigation/conviction

587. Finally under this ground of appeal, Mr Potier says that he seeks a finding that this Court “has a genuine feeling of disquiet and uneasiness about the methods adopted by the Servants of the Respondent, including the commissioner for Police NSW to obtain, and retain, convictions against him”. There is no basis on the material before this Court for any such conclusion to be drawn.

588. Ground 7 is not made out.

Ground 8 – New Evidence

589. Ground 8 is:

8.   That evidence previously unknown to the Appellant, and not available to the Jury, should be considered to be “new evidence” for consideration by this Court.

590. The claimed new evidence, in essence, is identified as being that the police had two different sets of recordings from the first investigation. He refers to the blank VHS tape of the listening post recording of the 2 May 2000 meeting; complains of the lack of continuity of evidence in relation to the highlight tape; and he complains that the 6 February 2002 conversation was played from the highlight tape and that the police running sheet shows it being stopped 19 minutes before the end of the recording played to the jury.

590. The test for the admission of new evidence is that set out in R v Abou-Chabake. There, Kirby J noted that a verdict will be quashed and a new trial ordered only where: the evidence is fresh; it is credible or at least capable of belief or plausible; and it would, in the context of the evidence given at trial, have been likely to have caused the jury to have entertained a reasonable doubt about the guilt of the accused (or, if there be a practical difference) there is a significant possibility that the jury acting reasonably would have acquitted the accused.

591. What Mr Potier ultimately seeks to tender as new evidence are the three bundles of tapes and discs marked for identification as MFI 1-3 in these proceedings.

592. It has not been demonstrated that any of that material could not have been obtained with reasonable diligence prior to or during the second trial. The defence team knew of the existence of the Telstra material; it was conceded that the defence team had been provided with all of the “master tapes”; there had been reference to highlight tapes and the whereabouts of those tapes (and integrity of those tapes) was a matter on which cross-examination was conducted during the second trial. Anything ultimately obtained under the order to produce dated June 2008 could logically have been obtained had a similar notice been issued at an opportune time in the preparation for the second trial. It is hardly as if Mr Potier was not aware that the case against him rested to a large degree on the taped conversations and he says that his position was always that he disputed them.

593. In any event, the jury was made aware of the defence argument in relation to the tapes and was in a position to assess from the recordings played to them whether the voice on the recordings was that of Mr Potier and to judge whether, as he contended, the 2000 recorded conversations had been altered by someone or some unknown method and whether the 2002 recorded conversations amounted to him humouring A or whether in fact they disclosed an intention to solicit A to murder Ms Oswald. In the context of the whole of the evidence, the admission of the further sets of recordings that comprise MFI’s 1-3 would not have been likely to have caused the jury to entertain a reasonable doubt as to the guilt of Mr Potier. Put in another way, he has not established that there is a significant possibility that, with the admission of this further material, the jury acting reasonably would have acquitted him.

594. The application to adduce fresh evidence should be refused. Ground 8 of the grounds of appeal is not made out.

Conclusion

596. None of the appeals grounds has merit and for that reason it would be appropriate to refuse the extension of time to appeal. However, as the grounds have been argued and dealt with, I would propose that leave to appeal be granted and the appeal dismissed.

597. SIMPSON J: I agree with Ward JA.

598. WILSON J: I agree with Ward JA.

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Decision last updated: 03 June 2015