CITATION: POTIER v REGINA [2006] NSWCCA 27 HEARING DATE(S): 30 September 2005
5 October 2005
JUDGMENT DATE:
17 February 2006JUDGMENT 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 1997CASES 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 70PARTIES: Malcolm Huntley Potier (Appl)
The CrownFILE 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
FRIDAY, 17 FEBRUARY 2006McCLELLAN CJ at CL
HISLOP J
ROTHMAN J
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…
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- AGLC
- Potier v R [2006] NSWCCA 27
- Case
- [2006] NSWCCA 27
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CaseChat Overview and Summary
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
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Background
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Evidence
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Decision
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Ratio Decidendi
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