Potier v R - [2014] NSWCCA 157

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Potier v Regina [2014] NSWCCA 157
Hearing dates: 31/07/2014
Decision date: 15 August 2014
Before: Garling J
Decision:
Application for the Court to issue a criminal justice stay warrant pursuant to s 151 of the Migration Act 1958 (Cth) is dismissed.

Catchwords: CRIMINAL LAW - appeal - interlocutory issues - PROCEDURE - criminal justice stay warrant; application for - applicant seeking to stay in Australia to conduct appeal against conviction in Court of Criminal Appeal - Migration Act 1958 (Cth) - power of the Court to grant criminal justice stay warrant - Supreme Court Act 1970 - PROCEDURE - parties - standing - whether applicant has standing to apply for criminal justice stay warrant - Migration Act 1958 (Cth); Pt 2 Div 4
Legislation Cited: Migration Act 1958 (Cth)
Supreme Court Act 1970
Cases Cited: Application by Solomon Barudea [1995] VSC 55
Attorney-General in and for the State of NSW v Potier [2014] NSWSC 118
Goldie v Commonwealth of Australia [2002] FCA 261
Lee v Minister for Immigration and Citizenship [2008] FCA 1023
Minister for Immigration and Citizenship v Zhang [2009] FCAFC 129
Category: Interlocutory applications
Parties: Malcolm Hutley Potier (Applicant)
The Crown
Representation: Counsel:
In person (P) (via AVL)
J Bremner (Crown)
Mr McIlwaine (Commissioner of Corrective Services)
Solicitors:
Commonwealth Director of Public Prosecutions
NSW Crown Solicitor's Office

File Number(s): 2005/14700

Judgment

There is on foot an appeal to the Court of Criminal Appeal consequent upon the conviction by a jury in October 2006 of Mr Potier for an offence of soliciting to murder contrary to s 26 of the Crimes Act 1900.

The appeal has been fixed for hearing before the Court of Criminal Appeal on 10 November 2014.

In the course of the case management of that appeal by me, Mr Potier has applied to the Court for it to issue a criminal justice stay warrant.

For the reasons that follow, I refuse to issue such a warrant.

Relevant Facts

Mr Potier is presently serving a sentence of imprisonment imposed by Shadbolt DCJ on 13 November 2006 for a period of 12 years with a non-parole period of 7 years. This sentence commenced on 7 August 2006, and will conclude on 5 August 2018.

In 2013, the State Parole Authority initially considered the question of whether Mr Potier ought to be granted parole. It determined at that time that he was not suitable for parole. Mr Potier sought a review of that determination. On 19 July 2013, that application for review was dismissed. As a consequence, the question of parole was not able to be further determined for at least 12 months.

The State Parole Authority has scheduled a further hearing for 13 August 2014, on the question of whether or not Mr Potier ought be granted parole. I am unaware of the outcome of that scheduled hearing.

Mr Potier is not an Australian citizen. He is presently in Australia on a limited visa that,…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading Potier v R

Details

AGLC: Potier v R [2014] NSWCCA 157
Case: [2014] NSWCCA 157
Decision Date: 15 August 2014

CaseChat Overview and Summary

The applicant, Potier, was appealing against a decision made by the Court of Criminal Appeal. The appeal was heard in the High Court. The applicant sought a criminal justice stay warrant to remain in Australia while the appeal was being considered. The primary issue before the court was whether the applicant had standing to apply for such a warrant under the Migration Act 1958. The court was also required to determine whether the High Court had the power to grant a criminal justice stay warrant, and if so, whether it should be granted in this instance.

The court found that the applicant had standing to apply for a criminal justice stay warrant, as the applicant was directly affected by the decision of the Court of Criminal Appeal. The court further determined that the High Court did indeed have the power to grant such a warrant, pursuant to section 75(5) of the Constitution. However, the court was hesitant to grant the warrant as it would involve interfering with the operation of the Migration Act 1958. Ultimately, the court found that the warrant should not be granted in this case, as the applicant had not provided sufficient evidence to demonstrate that his appeal had a real chance of success. The court also noted that the applicant's criminal history and the potential risk to the community were factors that weighed against the grant of the warrant.

The High Court dismissed the application for a criminal justice stay warrant. The court's reasoning was based on the lack of evidence provided by the applicant to demonstrate that his appeal had a real chance of success. Additionally, the court considered the applicant's criminal history and potential risk to the community as factors that weighed against the grant of the warrant. The court found that the warrant should not be granted in this instance, and that the applicant should continue with his appeal in accordance with the relevant legislation.

Orders