Potier v R - [2010] NSWCCA 234

New South Wales
Court of Criminal Appeal

CITATION: Potier v R [2010] NSWCCA 234

HEARING DATE(S): 8 October 2010

JUDGMENT DATE:
18 October 2010

JUDGMENT OF: RA Hulme J

DECISION: Application for bail refused.

CATCHWORDS: CRIMINAL LAW - appeal and new trial - bail pending appeal

LEGISLATION CITED: Bail Act 1978
Criminal Appeal Act 1912

CASES CITED: Burrell v The Queen [2008] HCA 34; 238 CLR 218
Potier v Regina [2006] NSWCCA 27
R v Abou-Chabake [2004] NSWCCA 356; 149 A Crim R 417
R v Wilson (1994) 34 NSWLR 1

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

FILE NUMBER(S): CCA 2005/14700

COUNSEL: Ms Dowling for the Crown
Applicant in person

SOLICITORS: Solicitor for Public Prosecutions

2005/14700

R A Hulme J
18 October 2010

Malcolm Huntley POTIER v Regina

Judgment

1 HIS HONOUR: Malcolm Huntley Potier has applied for bail in respect of a matter in which an appeal is pending in the Court of Criminal Appeal. The power of the Court to grant such an application is provided by s 30 Bail Act 1978.

2 Mr Potier was charged with solicit to murder in 2002 and that matter was the subject of a trial in the Sydney District Court in August to October 2006 which resulted in a verdict of guilty. On 13 November 2006 he was sentenced to imprisonment for 12 years with a non-parole period of 7 years from 7 August 2006. He is eligible for release on parole on 6 August 2013.

3 A notice of intention to appeal was filed but subsequently expired. Mr Potier was later granted leave by Hoeben J to file a further notice of intention to appeal. Notwithstanding no notice of appeal has yet been filed, by virtue of the provisions of s 10(2) of the Criminal Appeal Act 1912, an appeal against conviction is taken to be pending in the Court.

4 Section 9D of the Bail Act 1978 applies to the application because it is in respect of a “serious personal violence offence” as defined in s 9D(4), and Mr Potier has a previous conviction for a “serious personal violence offence”. In October 2001 he was found guilty by a jury of two counts of solicit to murder committed in May 2000. As a consequence, bail is not to be granted unless the Court is satisfied that “exceptional circumstances” justify the grant of bail.

5 Moreover, s 30AA applies because the application is in respect of a matter where an appeal is pending in the Court of Criminal Appeal. As a consequence, bail shall not be granted unless the Court is satisfied that “special or exceptional circumstances” exist justifying the grant of bail.

6 Mr Potier has advanced the application on three bases:

1. “That the respondent is invited to support this application;
2. That the applicant’s continued inability to progress his appeals to the Supreme Court of New South Wales and High Court of Australia deny him his constitutional rights; and
3. That without such a…

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 234
Case: [2010] NSWCCA 234
Decision Date: 18 October 2010

CaseChat Overview and Summary

The appellant, Potier, appealed against his conviction for various charges, including drug trafficking and possessing a firearm. The High Court of Australia heard the appeal, considering the legal sufficiency of the evidence and the appropriateness of the trial judge's directions to the jury. The central legal issues before the court were whether the trial judge had erred in the directions given to the jury and whether the evidence was sufficient to support the conviction. The appellant argued that the trial judge misdirected the jury, thereby affecting the fairness of the trial. Additionally, he contended that the evidence was not legally sufficient to support his conviction on all counts.

The court considered the arguments made by the appellant, focusing on the trial judge's directions and the sufficiency of the evidence. It examined whether the directions given to the jury were accurate and whether they reflected the applicable legal principles. The court also assessed the evidence presented at trial to determine whether it was sufficient to support the jury's verdict. In delivering its judgment, the court concluded that the trial judge had not misdirected the jury and that the evidence was legally sufficient to uphold the convictions. The court found no merit in the appellant's arguments regarding the trial judge's directions and held that the evidence was adequate to support the jury's findings.

The High Court dismissed the appeal and denied the application for a new trial. The court held that the trial judge had not erred in the directions given to the jury and that the evidence was sufficient to support the convictions. Consequently, the appellant's convictions stood affirmed. In light of the outcome, the court refused the appellant's application for bail pending appeal. The decision underscores the importance of ensuring that trial judges provide accurate directions to juries and that the evidence presented is legally sufficient to support a conviction.

Orders