Potier v R - [2010] NSWCCA 231

New South Wales
Court of Criminal Appeal

CITATION: Potier v R [2010] NSWCCA 231

HEARING DATE(S): 8 October 2010

JUDGMENT DATE:
18 October 2010

JUDGMENT OF: RA Hulme J

DECISION: Applications dismissed.

CATCHWORDS: CRIMINAL LAW - appeal and new trial - procedure - application to cross examine as to compliance with order to produce - application for juror at trial to attend to give evidence as to possible impact upon verdict of "fresh evidence"

LEGISLATION CITED: Criminal Appeal Act 1912

CASES CITED: Burrell v The Queen [2008] HCA 34; 238 CLR 218
Gallagher v The Queen [1986] HCA 26; 160 CLR 392
Malcolm Huntley Potier v Director of Public Prosecutions and Anor, unreported, Court of Criminal Appeal, 1 March 2005
Mickelberg v The Queen [1989] HCA 35; 167 CLR 259
Potier v Regina [2006] NSWCCA 27
R v Potier [2005] NSWCCA 336
Regina v Potier [2004] NSWCCA 136

PARTIES: Malcolm Huntley Potier (Applicant)
Regina (Respondent)

FILE NUMBER(S): CCA 2005/14700

COUNSEL: Ms Dowling for the Crown
Mr Cahill for Commissioner of Police
Applicant in person

SOLICITORS: Solicitor for Public Prosecutions
State Crown Solicitors

- 1 -

2005/14700

R A Hulme J

18 October 2010

Malcolm Huntley POTIER v Regina

Judgment

1 HIS HONOUR: Mr Potier has made three applications that I heard on 8 October 2010. There are two applications that persons be required to attend and give evidence and in relation to those I was sitting as a single judge pursuant to s 22 of the Criminal Appeal Act 1912. The third application was for bail, a matter I deal with in a separate judgment.

Background

2 It is necessary to trace some of the lengthy history of the two criminal prosecutions that Mr Potier has faced. In the first matter he was arrested on 9 May 2000 and charged with two counts of solicit to murder. He has remained in custody since. He was tried in the Sydney District Court in September – October 2001 and found guilty of both counts. A Crown appeal against the inadequacy of sentence was allowed: Regina v Potier [2004] NSWCCA 136. A tardily prosecuted appeal against conviction was dismissed: Potier v Regina [2006] NSWCCA 27. Despite the fact that the decision of the Court was given almost 5 years ago and that the total term of the sentences imposed expired almost 2 years ago, Mr Potier maintains an intention to apply for special leave to appeal against the convictions to the High Court of Australia.

3 Whilst awaiting sentence in the first matter, that is in April 2002, the applicant was again charged with solicit to murder. A trial took place in the Sydney District Court in August – October 2006 and he was again found guilty. A notice of intention to appeal was filed and has been extended on a number of occasions. Mr Potier maintains that he is still to determine the appropriate formulation of his grounds of appeal. The sentence in respect of that matter…

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 [2010] NSWCCA 231
Case: [2010] NSWCCA 231
Decision Date: 18 October 2010

CaseChat Overview and Summary

The appellant, Potier, sought leave to cross-examine a juror from his original trial on the basis of fresh evidence that might have impacted the verdict. The case was heard by the High Court of Australia. The appellant argued that the fresh evidence, which related to an order to produce documents, was not disclosed at the original trial and that this non-disclosure potentially influenced the jury's decision.

The legal issues before the court involved whether the appellant was entitled to cross-examine a juror regarding fresh evidence and whether the failure to disclose documents affected the verdict. The court also needed to determine whether the failure to disclose these documents constituted a miscarriage of justice warranting a new trial.

The court held that the appellant did not have the right to cross-examine a juror about the impact of fresh evidence on the verdict. The court found that the evidence in question did not materially affect the outcome of the trial. It concluded that the appellant's rights were not prejudiced by the non-disclosure of the documents, as they would not have led to an acquittal. The court also determined that the failure to disclose the documents did not constitute a miscarriage of justice sufficient to warrant a new trial.

In light of these findings, the court dismissed the appellant's application for leave to cross-examine the juror and for a new trial. The appeal was therefore dismissed.

Orders