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Potier v R

Potier v R

Case [2006] NSWCCA 27 17 February 2006

Appeal

Criminal Liability

Entrapment

Admissibility of Evidence

Hearsay Evidence

Jury Instructions

Criminal Law

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CITATION: POTIER v REGINA [2006] NSWCCA 27

HEARING DATE(S): 30 September 2005
5 October 2005

JUDGMENT DATE:
17 February 2006

JUDGMENT OF: McClellan CJ at CL at 1; Hislop J at 97; Rothman J at 98

DECISION: This decision has been amended. Please see the end of the judgment for a list of the amendments; Appeal dismissed.

CATCHWORDS: CRIMINAL LAW - appeal against conviction - soliciting to murder - entrapment - illegally obtained evidence - vulnerability - warnings to jury regarding use of transcripts of recorded conversations - trial judge's discretion to admit evidence - hearsay evidence - investigating the mind of a juror - error on the face of the indictment

LEGISLATION CITED: Crimes Act 1900 (NSW)
Crimes Act 1914 (Cth)
Evidence Act 1995
Law Enforcement (Controlled Operations) Act 1997

CASES CITED: King v The Queen (1986) 161 CLR 423
R v Mack (1988) 44 CCC (3d) 513
R v Masland (1988) 14 NSWLR 327
R v Ridgeway (1995) 78 A Crim R 307
R v Sloane (1990) 49 A Crim R 270
Richard John Sinclair Laws (No 2) (2000) 116 A Crim R 70

PARTIES: Malcolm Huntley Potier (Appl)
The Crown

FILE NUMBER(S): CCA 2001/3101

COUNSEL: W Roser (Crown)
J W Conomos (Appl)

SOLICITORS: Director of Public Prosecutions (Crown)
McGowan Lawyers (Appl)

LOWER COURT JURISDICTION: District Court

LOWER COURT JUDICIAL OFFICER: Hosking DCJ

LOWER COURT DATE OF DECISION: 30/09/2005

2001/3101

McCLELLAN CJ at CL
HISLOP J
ROTHMAN J
FRIDAY, 17 FEBRUARY 2006

POTIER, Malcolm Huntley v REGINA

Judgment

1 McCLELLAN CJ at CL: The appellant was found guilty by a jury of two counts of soliciting to murder contrary to s 26 of the Crimes Act 1900.

2 The proposed victims were Myra Linda Oswald, the appellant’s former partner with whom he had a young daughter and Glenn Wakeham who was in a relationship with Ms Oswald at the time the solicitation occurred.

3 Following his conviction the appellant was sentenced to a term of imprisonment of 6 years and 8 months to commence on 8 May 2000 and expire on 7 January 2007 with a non-parole period of 5 years, to expire on 7 May 2005.

4 The appellant appeals his conviction and seeks leave to appeal against the severity of the sentence.

5 At various stages in the proceedings the appellant has appeared for himself. This was true in the early stages of the preparation of this appeal although at the hearing he was represented by counsel. Prior to the hearing, the appellant filed written submissions which he personally prepared, which have been supplemented by a number of other written documents. At the hearing, counsel on his behalf advanced limited oral argument but after confirming his instructions indicated that the appellant wished to rely upon all of the written material that had been placed before the Court. Further written material has been received since the oral hearings. Much of the material is repetitive and some is difficult to understand. These reasons analyse the submissions…

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 [2006] NSWCCA 27
Case: [2006] NSWCCA 27
Decision Date: 17 February 2006

CaseChat Overview and Summary

The appellant, Potier, appealed against his conviction of soliciting to murder, contending the conviction was unsafe and unsatisfactory. The appeal against conviction was brought pursuant to section 76A of the Criminal Appeal Act 1966 (SA). The evidence against the appellant was based on conversations recorded by an undercover police officer, and evidence of the appellant's mental state at the time the alleged offence was committed. The appellant argued that the evidence was obtained by entrapment, the evidence was inadmissible due to the appellant's vulnerability, and the trial judge erred in warning the jury that they could take into account transcripts of the recorded conversations. The appellant also argued that the indictment contained an error on its face and that it was not open to the trial judge to admit hearsay evidence. The appeal against conviction was dismissed by the Court of Appeal, and the Court of Criminal Appeal granted leave to appeal against conviction. The appeal was dismissed by the High Court.
The legal issues the Court of Appeal needed to decide were whether the evidence was obtained by entrapment, whether the trial judge should have excluded evidence on the basis of the appellant's vulnerability, whether the trial judge erred in warning the jury about the use of the transcripts of the recorded conversations, whether the indictment contained an error on its face, and whether it was open to the trial judge to admit hearsay evidence. The Court of Appeal held that there was no entrapment, the evidence was not excluded on the basis of the appellant's vulnerability, the trial judge did not err in warning the jury about the use of the transcripts of the recorded conversations, the indictment did not contain an error on its face, and it was open to the trial judge to admit hearsay evidence. The appeal against conviction was dismissed by the Court of Appeal, and the Court of Criminal Appeal granted leave to appeal against conviction. The High Court dismissed the appeal against conviction.

The High Court held that the evidence was not obtained by entrapment. The Court held that the police officers did not induce the appellant to commit the offence, but merely provided an opportunity for him to do so. The Court held that the trial judge was correct to refuse to exclude evidence on the basis of the appellant's vulnerability. The Court held that the trial judge was correct to warn the jury that they could take into account transcripts of the recorded conversations. The Court held that the indictment did not contain an error on its face, and that it was open to the trial judge to admit hearsay evidence. The Court held that the appeal against conviction was properly dismissed by the Court of Appeal, and the Court of Criminal Appeal was correct to grant leave to appeal against conviction. The appeal against conviction was dismissed by the High Court. The appeal against conviction was dismissed.

Orders