Legal Research
Cases
Potier v The Queen

Potier v The Queen

Case [2014] NSWCCA 177 28 August 2014

Type to search within this case.

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Potier v R [2014] NSWCCA 177
Hearing dates: 27 August 2014
Decision date: 28 August 2014
Before: Leeming JA; Adams J; Fullerton J
Decision:
Order made on 27 August 2014:
Application for bail dismissed.

Catchwords: CRIMINAL LAW - bail - pending appeal - need to show special or exceptional circumstances - application dismissed
Legislation Cited: Bail Act 1978 (NSW), ss 9D, 22, 30AA
Bail Act 2013 (NSW), ss 5, 17, 22, 61, 67, 76, 71, 74, Schedule 3
Crimes (Appeal and Review) Act 2001 (NSW), Part 7
Vexatious Proceedings Act 2008 (NSW)
Cases Cited: Miles v R [2012] NSWCCA 88
New South Wales v Kable [2013] HCA 26; 87 ALJR 737
Petroulias v R [2010] NSWCCA 95
R v Wilson (1994) 34 NSWLR 1
Category: Interlocutory applications
Parties: Malcolm Huntley Potier (Applicant)
Regina (Respondent)
Representation: Counsel:
Applicant (Self-represented)
J Pickering SC (Crown)
Solicitors:
Malcolm Huntley Potier (Self-represented)
Solicitor for Public Prosecutions (Crown)

File Number(s): 2005/14700

Judgment

JUDGMENT of the COURT: These are our reasons for dismissing the application for bail immediately following the completion of the hearing on 27 August 2014.

Mr Malcolm Huntley Potier has been in custody since 9 May 2000 when he was arrested and charged with two counts of solicit to murder. He was tried and convicted, and a head sentence of 8 years and 8 months was imposed. His appeals to the Court of Criminal Appeal were dismissed (there were separate hearings of, first, a sentence appeal: R v Potier [2004] NSWCCA 136, and then a conviction appeal: Potier v R [2006] NSWCCA 27). Special leave to appeal to the High Court was sought, and refused.

The sentence has been wholly served. Mr Potier wishes to apply for a review under Part 7 of the Crimes (Appeal and Review) Act 2001 (NSW). Mr Potier maintained that he had in fact done so, but the Crown contended that, because of an order made under the Vexatious Proceedings Act 2008 (NSW) (as to which see further below), that had not occurred because leave was required and had not been obtained. We express no view on the point. For present purposes, it is sufficient to say that on any view, the review process, to the extent that it has started at all, remains at a preliminary stage.

While in custody, Mr Potier was charged with another count of solicit to murder. He was convicted of this offence in 2006, and sentenced to 12 years imprisonment with a non-parole period of 7 years commencing on 7 August 2006. He has an undetermined appeal, or application for leave to appeal, against that conviction, listed for hearing in November 2014.

Mr Potier has applied for bail before. By a reserved decision, R A Hulme J refused bail: Potier v R [2010] NSWCCA 234. His Honour noted that because of each of ss 9D and 30AA of the (former) Bail Act 1978 (NSW), bail could…

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 [2014] NSWCCA 177
Case: [2014] NSWCCA 177
Decision Date: 28 August 2014

CaseChat Overview and Summary

In the case of Potier v The Queen, the applicant, Malcolm Huntley Potier, sought bail pending the outcome of an appeal against his conviction and sentence for a charge of solicitation to murder. The application was heard by the New South Wales Court of Criminal Appeal and subsequently dismissed. Mr Potier had been in custody since 2000, following his conviction and sentencing for two counts of solicitation to murder. His appeals against both the conviction and sentence were dismissed, and an application for special leave to appeal to the High Court was refused. Mr Potier was subsequently convicted of another count of solicitation to murder, for which he was sentenced to 12 years imprisonment with a non-parole period of 7 years. The non-parole period for this sentence has now expired, and Mr Potier has applied for bail pending the outcome of his appeal against this second conviction.

The legal issues before the Court of Criminal Appeal related to the criteria for granting bail to an applicant who had already served a custodial sentence and was awaiting the outcome of an appeal. The Court considered whether there were special or exceptional circumstances that justified the grant of bail. The Court noted that the applicant had a history of vexatious litigation, and that his application for bail had been previously refused. The Court also noted that the applicant had been convicted of another serious offence while in custody, and that he had been denied parole. The Court concluded that there were no special or exceptional circumstances that warranted the grant of bail.

The Court of Criminal Appeal dismissed the application for bail, finding that there were no special or exceptional circumstances that justified the grant of bail. The Court noted that the applicant had a history of vexatious litigation, and that his application for bail had been previously refused. The Court also noted that the applicant had been convicted of another serious offence while in custody, and that he had been denied parole. The Court held that the applicant had not demonstrated any special or exceptional circumstances that warranted the grant of bail.

The Court made no orders for costs.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

JUDGMENT of the COURT: These are our reasons for dismissing the application for bail immediately following the completion of the hearing on 27 August 2014. Mr Malcolm Huntley Potier has been in custody since 9 May 2000 when he was arrested and charged with two counts of solicit to murder. He was tried and convicted, and a head sentence of 8 years and 8 months was imposed. His appeals to the Court of Criminal Appeal were dismissed (there were separate hearings of, first, a sentence appeal: R v Potier [2004] NSWCCA 136, and then a conviction appeal: Potier v R [2006] NSWCCA 27). Special leave to appeal to the High Court was sought, and refused. The sentence has been wholly served. Mr Potier wishes to apply for a review under Part 7 of the Crimes (Appeal and Review) Act 2001 (NSW). Mr Potier maintained that he had in fact done so, but the Crown contended that, because of an order made under the Vexatious Proceedings Act 2008 (NSW) (as to which see further below), that had not occurred because leave was required and had not been obtained. We express no view on the point. For present purposes, it is sufficient to say that on any view, the review process, to the extent that it has started at all, remains at a preliminary stage. While in custody, Mr Potier was charged with another count of solicit to murder. He was convicted of this offence in 2006, and sentenced to 12 years imprisonment with a non-parole period of 7 years commencing on 7 August 2006. He has an undetermined appeal, or application for leave to appeal, against that conviction, listed for hearing in November 2014. Mr Potier has applied for bail before. By a reserved decision, R A Hulme J refused bail: Potier v R [2010] NSWCCA 234. His Honour noted that because of each of ss 9D and 30AA of the (former) Bail Act 1978 (NSW), bail could not be granted unless the Court was satisfied that there were "special circumstances" and "special or exceptional circumstances" justifying the grant of bail. Mr Potier has brought a suite of other proceedings. No attempt is made in these reasons to identify most of them. They included an application to review the decision of R A Hulme J, which was the subject of a reserved decision in 2011 (Potier v R [2011] NSWCCA 204). It is sufficient to refer to the account given by McCallum J in Attorney General in and for the State of New South Wales v Potier [2014] NSWSC 118, where her Honour identifies more than 40 decisions, most of which were applications brought by Mr Potier. Her Honour made an order, subject to various qualifications, under the Vexatious Proceedings Act 2008 (NSW). From that order an application for leave to appeal is pending. What presently matters is that this application for bail is expressly excluded from the operation of that order: see at [219]. The non-parole period of Mr Potier's second sentence expired last year. The Parole Board has determined that Mr Potier is not suitable for parole. Mr Potier has challenged that decision, and it seems that there is to be a hearing of that challenge next week.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

Potier v The Queen [2014] NSWCCA 177

Most Recent Citation

Potier v State of New South Wales [2014] NSWCA 359

Cases citing this decision · 2 of 2 shown

Potier v Attorney General (NSW)
[2015] NSWCA 129 Para 130

…Potier [2014] NSWSC 131; Potier v Attorney General in and for the State of New South Wales [2014] NSWCA 256; Potier v R [2014] NSWCCA 157; Potier v R [2014] NSWCCA 177; Potier v The State of New South Wales [2014] NSWSC 1271; Potier v State of New South Wales [2014] NSWCA 359 and Attorney General in and for the Stat…
Potier v State of New South Wales
[2014] NSWCA 359 Para 1

…on: Potier v R [2011] NSWCCA 204. More recently Mr Potier applied for bail, again, but without success, from the Court of Criminal Appeal: Potier v R [2014] NSWCCA 177.…

View all 2 citing cases →

Cases cited in this decision · 10 of 10 shown

R v Potier
[2014] NSWSC 131 Para 1

…lt with expeditiously is explained by proceedings relating to a notice to produce Mr Potier issued, which was substantially set aside: see R v Potier [2014] NSWSC 131. From that decision Mr Potier has an undetermined application for leave to appeal.…
Attorney General in and for the State of New South Wales v Potier
[2014] NSWSC 118 Para 1

…[2011] NSWCCA 204). It is sufficient to refer to the account given by McCallum J in Attorney General in and for the State of New South Wales v Potier [2014] NSWSC 118, where her Honour identifies more than 40 decisions, most of which were applications brought by Mr Potier. Her Honour made an order, subject to vario…
New South Wales v Kable
[2013] HCA 26 Para 1

…ullity". That is simply not so. The conviction, and the sentence imposed consequent upon it, stand until set aside on appeal: New South Wales v Kable [2013] HCA 26; 87 ALJR 737.…
Miles v R
[2012] NSWCCA 88 Para 1

…In Miles v R [2012] NSWCCA 88, Schmidt J, with whom Hoeben JA and R S Hulme J agreed, wrote to similar effect.…
Potier v R
[2011] NSWCCA 204 Para 1

…y most of them. They included an application to review the decision of R A Hulme J, which was the subject of a reserved decision in 2011 ( Potier v R [2011] NSWCCA 204). It is sufficient to refer to the account given by McCallum J in Attorney General in and for the State of New South Wales v Potier [2014] NSWSC 118,…
Potier v R
[2010] NSWCCA 234 Para 1

…Mr Potier has applied for bail before. By a reserved decision, R A Hulme J refused bail: Potier v R [2010] NSWCCA 234. His Honour noted that because of each of ss 9D and 30AA of the (former) Bail Act 1978 (NSW), bail could not be granted unless the Court was satisfied that there were "special circumstances" and "spe…
Petroulias v R
[2010] NSWCCA 95 Para 1

…Subsequent authorities show that the formulation of Hunt CJ at CL puts the threshold too high. In Petroulias v R [2010] NSWCCA 95 Barr AJ, with whom Hodgson JA and Rothman J agreed, said at [34]:…
Potier v R
[2006] NSWCCA 27 Para 1

…eal were dismissed (there were separate hearings of, first, a sentence appeal: R v Potier [2004] NSWCCA 136, and then a conviction appeal: Potier v R [2006] NSWCCA 27). Special leave to appeal to the High Court was sought, and refused.…
R v Potier
[2004] NSWCCA 136 Para 1

…months was imposed. His appeals to the Court of Criminal Appeal were dismissed (there were separate hearings of, first, a sentence appeal: R v Potier [2004] NSWCCA 136, and then a conviction appeal: Potier v R [2006] NSWCCA 27). Special leave to appeal to the High Court was sought, and refused.…
R v Wilson
[1994] QCA 481 Para 1

…In R v Wilson (1994) 34 NSWLR 1, Kirby P said (at 6), with the agreement of Sheller JA, that it was necessary to show more than an arguable point, but that the applicant is most likely to succeed. Hunt CJ at CL put the matter still higher. His Honour said (at 7) "what must be established is a ground that is certain…

Legislation cited in this decision · 4

Bail Act 2013 (NSW)
17, 22, 5, 61, 67, 71, 74, 76 17 mentions (from Para 1)
Bail Act 1978 (NSW)
22, 30AA, 9D 3 mentions
Crimes (Appeal and Review) Act 2001 (NSW)
1 mention (from Para 1)
Vexatious Proceedings Act 2008 (NSW)
1 mention (from Para 1)

Medium Neutral Citation:	Potier v R [2014] NSWCCA 177
Hearing dates:	27 August 2014
Decision date:	28 August 2014
Before:	Leeming JA; Adams J; Fullerton J
Decision:	Order made on 27 August 2014: Application for bail dismissed.
Catchwords:	CRIMINAL LAW - bail - pending appeal - need to show special or exceptional circumstances - application dismissed
Legislation Cited:	Bail Act 1978 (NSW), ss 9D, 22, 30AA Bail Act 2013 (NSW), ss 5, 17, 22, 61, 67, 76, 71, 74, Schedule 3 Crimes (Appeal and Review) Act 2001 (NSW), Part 7 Vexatious Proceedings Act 2008 (NSW)
Cases Cited:	Miles v R [2012] NSWCCA 88 New South Wales v Kable [2013] HCA 26; 87 ALJR 737 Petroulias v R [2010] NSWCCA 95 R v Wilson (1994) 34 NSWLR 1
Category:	Interlocutory applications
Parties:	Malcolm Huntley Potier (Applicant) Regina (Respondent)
Representation:	Counsel: Applicant (Self-represented) J Pickering SC (Crown) Solicitors: Malcolm Huntley Potier (Self-represented) Solicitor for Public Prosecutions (Crown)
File Number(s):	2005/14700