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

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:

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 The Queen

Details

AGLC: Potier v The Queen [2013] HCATrans 207
Case: [2013] HCATrans 207
Decision Date

CaseChat Overview and Summary

The case of *Potier v The Queen* concerned an appeal to the High Court of Australia following a conviction for murder. The appellant, Potier, had been found guilty of murder by a jury in the Supreme Court of Victoria and subsequently appealed to the Court of Appeal of Victoria, which dismissed his appeal. The central dispute revolved around the admissibility of certain evidence and the directions given to the jury by the trial judge.

The High Court was required to determine whether the trial judge had erred in admitting evidence of the appellant's prior convictions and whether the judge's directions to the jury regarding the use of that evidence were adequate. Specifically, the court considered whether the prejudicial effect of admitting the prior convictions outweighed their probative value, and whether the jury had been properly instructed on the limited purpose for which such evidence could be considered.

In their joint judgment, Hayne and Bell JJ held that the admission of the prior convictions was an error. Their Honours reasoned that the evidence of prior convictions was not relevant to any issue in the trial, including the appellant's identity or propensity to commit the offence. The court found that the prejudicial effect of this evidence was substantial and that the jury directions were insufficient to mitigate this prejudice. The legal principle applied was that evidence of prior convictions is generally inadmissible unless it has a specific, relevant probative value that outweighs its prejudicial impact.

The High Court allowed the appeal, quashed the conviction, and ordered a new trial.

Orders