Pottinger v The Queen

This matter came before the High Court of Australia on an application for special leave to appeal by Jamie Allan Pottinger. The applicant sought an extension of time within which to appeal, with the central difficulty being the unavailability of the trial judge's summing up to the jury at the time the appeal was heard by the Court of Appeal.

The legal issues before the High Court concerned the proper approach to appeals where crucial trial documentation, such as the summing up, is not available to the appellate court. Specifically, the Court considered whether counsel's failure to address potential prejudice arising from pre-trial publicity and identification evidence before the Court of Appeal, due to the absence of the summing up, was fatal to the applicant's case. The Court also examined the duty of counsel during a trial to raise issues concerning the summing up or to seek directions when faced with potential prejudice.

The High Court, through the questioning of Brennan J and Dawson J, highlighted the responsibility of trial counsel to address issues of prejudice and the summing up at the time of trial. The Court noted that the Court of Appeal had commented on the unfortunate nature of appellate processes being initiated without full knowledge of the trial proceedings. The applicant's counsel acknowledged the difficulty but argued that the absence of the summing up prevented a proper assessment of the merits of the appeal, particularly concerning the impact of pre-trial publicity. However, the Court expressed concern that counsel's duty to raise such matters at trial appeared to have been "shelved."