Potier v The Queen

[2013] HCATrans 207

[2013] HCATrans 207

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney   No S21 of 2013

B e t w e e n -

MALCOLM HUNTLEY POTIER

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

HAYNE J
BELL J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 6 SEPTEMBER 2013, AT 10.58 AM

Copyright in the High Court of Australia

MR D.J. BREZNIAK:   May it please your Honours, I appear for the applicant.  (instructed by Malcolm Carr Solicitor)

MR L.A. BABB, SC:   May it please your Honours, I appear for the respondent.  (instructed by Solicitor for Public Prosecutions (NSW))

HAYNE J:   Yes, Mr Brezniak.

MR BREZNIAK:   The fresh evidence, which was material produced by Telstra, was not available at trial.  The debate about whether it is, or was, fresh evidence is largely a futile debate because the evidence itself could not have been obtained by the exercise of due diligence.  It was only in the trial when evidence of a witness whose name was Finlay was given that it became important to know what was at the other end, namely, the Telstra material.  It was only at that stage that the police officer got the evidence which ultimately was not disclosed – when I say ultimately, I mean during the short time left in the trial – to the man, the applicant.

The only other area that the respondent points to is the fact that there was another telephone, Mr Schofield, and that point is a red herring.  It is a red herring because the other phone theory falls because none of the calls which were played to the jury were on the web trace which was produced from Optus at the outset of the trial, or said to be at the outset of the trial.

Now, really, the significant question for this application is what was the significance of the fresh evidence to the trial?  My submission is that if you read the whole of the judge’s summing‑up you will see that the question of the phone conversations having been contrived or falsified got absolutely nowhere and it got nowhere because all that was before the court was what had been produced in the Optus web traces.  In other words, the applicant lost the opportunity – the applicant lost the chance of corroborating his attack upon the prosecution case by reason of the fact that the material which would have corroborated it was in the hands of the prosecution but not produced to him.  He was left, in effect, with a damp squib and one might say, reading the way in which the summing‑up explains the trial, that he had lost any real chance of acquittal.

BELL J:   Mr Brezniak, before the trial the applicant had had served upon him material that included the web trace.  Is that right?

MR BREZNIAK:   Yes, although his counsel did not know about it.  He made a call in the trial.  But, yes, apparently, yes.

BELL J:   Regardless of whether counsel happened to be aware of it or not.

MR BREZNIAK:   Yes.

BELL J:   The defence had been served with material which included the web trace.  From that it would have been open to make further inquiries had that been considered an appropriate course to take.

MR BREZNIAK:   Well, you would not have made that inquiry because you would have been satisfied that you had what you needed, namely, that you had the web trace which showed the absence of those five telephone calls.  It was only when the explanation was forthcoming from the witness, Finlay, that it became apparent that it would be important in substantiating or making good the challenge, that there was material to show that those calls were not made.  It was the theory of Mr Finlay which provided the cushion for the applicant at his trial. 

Had the evidence been available at the trial, the jury could have and we say, would have, been invited by the defence to conclude, consistent with the evidence of Mr Finlay, that the telephone calls did not take place.  Mr Finlay was the witness called by the Crown to explain the web trace records and it was precisely Mr Finlay’s evidence to which the defence could have and would have had recourse to support its claims that the calls never happened or were fabricated.

BELL J:   Mr Finlay posited that a possible explanation for the absence of five calls from the web trace was that the calls might have emanated from another service provider through an extra exchange or something of that character.  The material that came to light to Detective Laidlaw, close to the end of the trial, was that the three phones in the detention centre area to which the applicant had access were not the source of the calls.  There was no evidence about whether or not the calls from the office of the officer within the detention centre’s telephone service, to which the applicant had access, might have been the source of the calls.  Is that right?

MR BREZNIAK:   That is right.  Except that, since the trial, one has had the opportunity to look at all of the evidence – the times of the calls made from the gaol and none of calls are on the web trace.  In other words, the Schofield theory has no momentum.  It is truly, in my submission, to be described as a red herring.  He was called at the trial.  There was allowed the possibility at the trial that the calls could have been made from Schofield’s phone, but it does not go anywhere because we know that at the times of the calls they were not on the web trace.

So my submission is that that contention by the respondent is of no assistance to anyone and what we are left with is a Court of Criminal Appeal judgment which, in discussing the evidence on appeal, goes into and descends into detail on four of the five calls which were missing.  So one may conclude that the Court of Criminal Appeal was influenced by the importance of those calls.  It is arguable that those calls were no important than others but the Court of Criminal Appeal referred to those in some detail. 

But the attack on the calls was not just restricted to whether they were manufactured or whether they were the voice of the applicant.  He also said that there were discrepancies between the recorded lengths of the conversations and those played to the jury.  There was a discrepancy.  He also referred to the unexpectedly good quality of the conversations, considering that he was calling from the three telephones in the detention centre.  He also spoke of the circumstance that there was one call on 5 May 2001 which would have had to have been made simultaneously to the informant, Conway, and to the undercover agent, M.

So what really is being put in this application is that the very precise attack upon the prosecution case was unable to be made good by reason of the withholding from Mr Potier, from the applicant, of the precise evidence as would have assisted his attack.  He was deprived of that before the jury and when you read the summing‑up you see that really that did not go anywhere and that all he was left with, as the judge put it at page 72, was that there was no evidence on the web trace of some five missing calls.  One may – I do not know if it is speculation – but one might suggest that the presence of an absence – that the evidence of an absence of the caller would have made his attack upon that evidence much stronger.

The applicant referred to what was written on the subject in a book called “Secrets of the Jury Room” where it was said, and acknowledged, that what was of decisive importance in this trial were all of those conversations.  There was no other – if I might use the word – “objective” evidence in the trial, other than the phone calls.

HAYNE J:   Can I understand something of the chronology in this matter?  We are now considering this matter seven years after the Court of Criminal Appeal.  Is that right?

MR BREZNIAK:   That is so.

HAYNE J:   The relief you seek is a rehearing by the Court of Criminal Appeal.  Is that right?  The Court of Criminal Appeal, if it reheard the matter and accepted your argument, would order a new trial, would it not?

MR BREZNIAK:   It would.

HAYNE J:   I think the non‑parole period of your client has now expired.

MR BREZNIAK:   He has another five years of imprisonment, but the non‑parole period has expired.

HAYNE J:   The non‑parole period has gone.  As a matter of fact, do we know whether his detention has altered from detention in prison to immigration detention albeit, presumably, at Long Bay or some other institution?

MR BREZNIAK:   We know he remains a prisoner with the Department of Corrective Services.

HAYNE J:   Prisoner.  Yes, I see.  Is the ultimate question we have to decide whether it is in the interests of justice generally or in this particular case that there not only be a grant of an extension of time but whether there should be a grant of leave?

MR BREZNIAK:   We say it is a question that goes beyond this particular case.  It must go beyond this particular case because the circumstances of the delay for Mr Potier, for this applicant, involved proceedings in other courts to require the Legal Aid Commission to provide him legal aid to bring this matter to the court, repeated failures of his being able to file in this Court because of the requirement that there be personal attendance on the filing of documents.

HAYNE J:   I think he filed in 2005, did he not?

MR BREZNIAK:   In this Court.

HAYNE J:   It was, I think, deemed abandoned.  I may be mistaken but I think that there was an earlier application deemed abandoned.

MR BREZNIAK:   There was in February, your Honour, a recent application – the results from which relief is sought under the rules was part of the application.

HAYNE J:   Yes.  I am mistaken.  The first application was 9 December 2011.

MR BREZNIAK:   But what happened after this trial, of course, was that the evidence from this trial, including the conversations, was tendered as similar fact evidence in a later trial making, in my submission, his conviction in this later trial inevitable.  So there is a broader consequence of, we say, righting this injustice in circumstances where the Court would be disposed to have a hearing – grant leave in this matter. 

There have been three separate occasions, even recently, where the applicant has made application to the Supreme Court of New South Wales.  One was in a habeas corpus application and the court properly informed him that he had no ability to have that court reverse its own decision – the Court of Criminal Appeal.  So he is here now for this application.

Mr Potier in his hearing denied the content of the recorded conversations played to the jury.  In those circumstances, the prosecution case required the jury to accept beyond reasonable doubt that the conversations as recorded did occur and to reject Potier’s own denial.  That goes back the submission I have made that it was an essential part of – the missing evidence was an essential component in his defence and had he had it, he would have at least had the opportunity to take the matter and have a case to be dealt with by the court.  Those are my submissions.

HAYNE J:   Thank you, Mr Brezniak.  We will not trouble you, Mr Babb.

We are not persuaded that it would be in the interests of justice in this particular case or more generally to grant the lengthy application for extension of time within which to apply for special leave that would be needed in this matter or, if that extension were made, to grant special leave to appeal to this Court.  The application for extension of time and application for special leave are both refused.

AT 11.13 AM THE MATTER WAS CONCLUDED