Potier v The Queen

[2013] HCATrans 13

[2013] HCATrans 013

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney   No S401 of 2011

B e t w e e n -

MALCOLM HUNTLEY POTIER

Applicant

and

THE QUEEN

Respondent

Summons for reinstatement

HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON MONDAY, 11 FEBRUARY 2013, AT 9.52 AM

Copyright in the High Court of Australia

MR B. LEVET:   May it please, your Honour, I appear with my learned friends, MS A.B. PETRIE and MR M. LICHA.  (instructed by Malcolm Carr Solicitor)

MR L.A. BABB, SC:   May it please your Honour, Babb for the State.  (instructed by Solicitor for Public Prosecutions (NSW))

HIS HONOUR:   Now, Mr Levet, your client is moving on what affidavits?

MR LEVET:   Your Honour, on the affidavit of my instructing solicitor.

HIS HONOUR:   That is 18 December 2012?

MR LEVET:   Yes, your Honour.

HIS HONOUR:   Malcolm Carr.

MR LEVET:   Your Honour, I seek to tender ‑ ‑ ‑

HIS HONOUR:   Just to clarify things, he is not moving on the affidavit of Daniel Brezniak.

MR LEVET:   No, your Honour.

HIS HONOUR:   Is he moving on his own affidavit of 9 December 2011?

MR LEVET:   Yes, your Honour.

HIS HONOUR:   Thank you.  Now, you said you had some other material.

MR LEVET:   Yes, your Honour.  Can I tender, your Honour, a set of submissions and a summary of argument that I would seek to rely on also?  I apologise for delay ‑ ‑ ‑

HIS HONOUR:   During this pause might I ask, Mr Babb, have you seen this document called “Applicant’s Summary of Argument” and the other one called “Appellant’s Submissions”?

MR BABB:   Yes, your Honour, it was on the fax this morning when I arrived.

HIS HONOUR:   Yes, in the middle of the night it arrived.

MR BABB:   Yes, your Honour.

HIS HONOUR:   So I can understand it, I take it, Mr Levet, that the document called “Appellant’s Submissions” is really directed to today’s particular proceedings and the other document is, in effect, the one that should have been filed some time last year.

MR LEVET:   Yes, your Honour.  Your Honour, can I indicate in respect to both of them, particularly the outline of case document, there have been significant difficulties in getting what I might term “proper instructions” in relation to the matter.  The applicant is an educated person, understandably who is focused very much on this case and who has produced huge amounts of paperwork which were certainly referred to in the decision of the Court of Criminal Appeal and has ordered it in a way that is not altogether helpful for his cause, and has made claims which are not altogether helpful to his cause.

But, at the end of the day, when one analyses the material it does boil down to the fact that there was material which appears to have been withheld from the defence during the course of the trial and there appears to have been a mistake made by the Court of Criminal Appeal in its assertion that the material was incapable of being fresh evidence insofar as it had been served prior to the trial as part of the Crown brief.  I do not think it is necessarily in dispute that this simply could not have been the case.

HIS HONOUR:   I think that, at least in the first instance, what we have to concentrate on is the question of extending time or delay.  Why should there be a reinstatement now?

MR LEVET:   Your Honour, on this basis, it is conceded that there has been a significant delay in the institution of the proceedings.  It is conceded also that there has been delay in compliance with the rules since the proceedings were instituted.  My friend, in his very helpful submissions, deals with those two points as Nos 1 and 2 and then goes on to somewhat dismiss the merits.  I would look at it the other way.  I would look at the question of whether there are any merits, whether there has been a substantial injustice and then say that injustice cannot be cured or that injustice cannot be overridden by a failure to file his appeal in a timely manner and to prosecute it in a timely manner.

HIS HONOUR:   Well, let me say this, that if there were a complete absence of merits that counts against time being enlarged or reinstatement taking place.  But is extensive unexplained delay or insufficiently explained delay compensated for by claims that there are merits?

MR LEVET:   Your Honour, in a civil case, no.  There are significant laches in this case, but, in my respectful submission, in a criminal case, where the liberty of the subject is at stake if there is any arguable merit in the case then that merit should properly be argued so as not to bring justice into disrepute.

HIS HONOUR:   A success in your application today and success at all points thereafter is not going to improve the position of your client so far as liberty is concerned and after 13 August this year your client may well enjoy liberty, but probably not in Australia.

MR LEVET:   Indeed, your Honour, but it is a matter in respect of which he has incurred criminal convictions and in respect of which he has been sentenced to a period of imprisonment.  In the event that that were as a result of a substantial miscarriage of justice then that is something he ought be given the opportunity to put right.

HIS HONOUR:   That is why provision is made for appeals to this Court with time limits.  It is not directly in play today, although it would be if your present application succeeded, but there is more than four years delay, is there not, between the time when a challenge should have been made to the Court of Criminal Appeal and the time when it was made?

MR LEVET:   Yes, your Honour.

HIS HONOUR:   The more acute difficulty for today, I suppose, is simply the delay from the time when Mr Carr came into the case, which was 30 July last year until 10 September, and then from 10 September until 18 December when this summons was filed.  Your case is that if one is in prison it is difficult to attend personally at the Registry and it is also difficult to file the appropriate documents and do the work necessary to generate the appropriate documents.

MR LEVET:   Your Honour, it is more than that.  Where one has a person who, as this applicant is, very focused on his case and has produced a large amount of documentation and who wishes to talk about that large amount of documentation ad nauseam, it is very, hard to focus down on precisely what it is that is capable of sustaining an arguable case.  I note that Mr Odgers of Senior Counsel looked at the matter some time ago and concluded, as indeed I initially concluded, that there was no arguable case in relation to the matter.  It is only on an examination of the material, and on getting passed what the applicant thinks is his case that one can see that there is something actually there that is ultimately arguable.

In terms of taking instructions from a person – at the risk of giving some evidence from the Bar table – but in terms of taking instructions from a person who is in custody who has a huge amount of paperwork in relation to his matter, who one can only see for very limited periods because of the

nature of his accommodation and who wishes to use that time talking about the things which ultimately do not prove helpful to his case. 

Your Honour, that has been the difficulty over the last few months, but, having come to an outline of case documents, in my respectful submission, from the outline of case document it can be seen that the case is at least arguable and he should be given that opportunity.

HIS HONOUR:   Yes.  Have you anything ‑ ‑ ‑

MR BABB:   No, your Honour.

HIS HONOUR:   Very well.  What do you say on this delay group of questions, Mr Babb?

MR BABB:   Yes, your Honour.  In my submission the delay is not explained in any way by the affidavit.  The significant delay is from July through till the present time and there is simply no explanation by Mr Carr on the affidavit as to why there has been that further extensive delay and that in itself in this case is a matter for refusing the reinstatement of the application.

HIS HONOUR:   Yes, thank you. 

The applicant was convicted in October 2001 of two counts of soliciting to murder.  The intended victims were his ex‑partner and her new partner.  He was sentenced to concurrent terms of eight years and eight months imprisonment to date from 8 May 2000 and expiring on 7 January 2009. 

On 7 February 2006, the Court of Criminal Appeal of the Supreme Court of New South Wales dismissed the applicant’s appeal against those convictions.  In October 2006, he was convicted of a further count of solicitation to murder his ex‑partner and was sentenced to 12 years imprisonment.  That term was to date from 7 August 2006 to 6 August 2018, with a non‑parole period of seven years, expiring on 13 August 2013.  The applicant has lodged an appeal to the Court of Criminal Appeal which has not yet either been allowed or dismissed. 

On 9 December 2011, the applicant, who was then unrepresented, filed an application for special leave to appeal to this Court against the Court of Criminal Appeal’s orders of 7 February 2006. 

On 18 December 2012, the applicant filed a summons seeking an order that his application for special leave filed on 9 December 2011 be reinstated and consequential orders made.  The reason for that summons is that the application had been deemed to have been abandoned as a result of non‑compliance with the High Court Rules, rule 41.13.1.  Counsel for the respondent has pointed out that it is now about 14 months since the special leave application was filed.  That special leave application was itself filed well over four years out of time.

On the most favourable approach from the applicant’s point of view, the delay which is directly relevant to reinstatement, which must be explained, is the delay from 30 July to 10 September 2012 and delays since that time, in particular, the delay up to 18 December when the summons was filed. 

The applicant has been represented by his current solicitor since 30 July 2012, that is Mr Malcolm Carr.  Before and after Mr Carr commenced representing the applicant, officials in the Registry of this Court gave the applicant at least four extensions of the time within which particular documents were to be filed.  Those documents were an amended applicant’s summary of argument and an amended draft notice of appeal.  The last of those extensions was granted on 14 August 2012.  It granted an extension until 10 September.  The applicant was notified that any further application for an extension should be filed by 7 September.  No application for an extension was made and no amended summary of argument and amended draft notice of appeal was filed.  Accordingly, on 12 September 2012, the Registry informed the parties that the applicant’s application for special leave to appeal was deemed to have been abandoned. 

The applicant’s solicitor, Mr Carr, who saw the applicant on two occasions prior to 10 September 2012, has filed an affidavit pointing out the difficulties which the applicant has had in complying with the High Court Rules because of his inability to access the internet and to attend the Registry in order to file documents.  That affidavit filed on 18 December 2012 stated that the deponent had instructed counsel “to prepare all relevant documentation to enable compliance with the rules in respect of which the [applicant] was previously in default”.  The affidavit also said that the deponent had been advised that the documentation would shortly be to hand.

On 4 February 2013, the Registry informed Mr Carr that all written submissions were to be filed by 1.00 pm on Thursday, 7 February 2013 and served on the same day.  At 11.58 pm last night, a document headed “Applicant’s Submissions” was sent to the Registry.  They were submissions in support of the summons.  At the same time another document, headed “Applicant’s Summary of Argument”, was sent to the Registry.  This was to serve the office of one of the documents which should have been filed by 10 September 2013.  The other has not been filed or made available.

Although strictly speaking there is no evidence of this, Mr Levet, who responsibly presented the case for the applicant, made the following points in oral submissions this morning.  They, as I say, have not been verified by affidavit, but they have a certain force.  In a nutshell, Mr Levet said that where one is dealing with a person who is extremely focused on his case and has produced a large amount of documentation and wants to talk about it at great length it is hard to ensure that the case will be presented convincingly.  He submitted that it was difficult to get instructions from a person of that character who was in custody and can only be seen for limited periods of time and wants only to talk about things which do not actually help his case.

The applicant’s lack of access to the internet and his inability to attend the Registry personally have not prevented him from filing many documents in this Court, both in relation to his special leave application and in relation to other proceedings.  It can be said, I think, that there is no evidence of any specific reason for the delays between 10 September and 18 December last year.

Accepting what Mr Levet said about the peculiar personal characteristics of the applicant it seems to me that one cannot regard those factors as providing objectively reasonable explanations for delay.  A further difficulty is that even if the application for special leave were reinstated it could not succeed unless the delay in filing it for over four years was explained.  No specific explanation for that very long delay has been given in the material which is relied on now. 

The factor that numerous extensions of time were granted throughout 2012 without eliciting the desired documents is, I think, an unfavourable one.  Accordingly, in the circumstances, the applicant’s explanations for delay have to be viewed as lacking any sufficient force and, accordingly, the summons must be dismissed.

Please adjourn the Court.

AT 10.12 AM THE MATTER WAS ADJOURNED