Potts v The Queen - [2019] ACTCA 17

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

COURT OF APPEAL

Case Title:

Potts v The Queen

Citation:

[2019] ACTCA 17

Hearing Date:

16 April 2019

Decision Date:

5 July 2019

Before:

Burns J

Decision:

See [48]

Catchwords:

APPEAL – Application for leave to appeal out of time – issues raised by applicant – setting of time limits and the validity of the Court Procedures Rules 2006 (ACT) – whether an order was made by the trial judge from which an appeal may lie – whether a conviction was recorded for the purposes of the Court Procedures Rules 2006 (ACT) – the effect of the Human Rights Act 2004 (ACT) – consideration of the proposed grounds of appeal – self‑induced intoxication – verdict of guilty to statutory alternative

Legislation Cited:

Court Procedures Act 2004 (ACT) s 7(1)

Court Procedures Rules 2006 (ACT) Ch 5; Divs 5.4.4, 5.4.7; subdiv 5.4.7.2; rr 5000, 5402, 5500, 5510(3)

Crimes Act 1900 (ACT) s 20, 23, 25

Criminal Code 2002 (ACT) Pt 2.3; ss 33(3), 34, 58(2)

Federal Court of Australia Act 1976 (Cth)

Human Rights Act 2004 (ACT) ss 21, 22(4)

Supreme Court Act 1933 (ACT) ss 37E, 37J(1)

Cases Cited:

Cobiac v Liddy (1969) 119 CLR 257

Director of Public Prosecutions Reference No 1 of 2017 [2019] HCA 9

Doney v The Queen (1980) 171 CLR 207

Duff v The Queen (1979) 29 FLR 315

Griffiths v The Queen (1977) 137 CLR 293

Hinton v The Queen [2000] FCA 1019; 115 A Crim R 74

Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344

Irving v Askew (1870) 5 QB 208

Maxwell v The Queen (1995) 184 CLR 501

Musgrove v McDonald (1905) 3 CLR 132

Parker v The Queen [2002] FCAFC 133

Perejmibida v Skelcher [2002] WASCA 2; 127 A Crim R 549

R v Prasad (1979) 23 SASR 161

The Queen v Collins [2004] ACTSC 48

The Queen v Meyboom [2012] ACTCA 2; 256 FLR 450

Viro v The Queen (1978) 141 CLR 88

Parties:

Bradley Lyle Leslie Potts (Applicant)

The Queen (Respondent)

Representation:

Counsel

J Masters (Applicant)

K McCann (Respondent)

Solicitors

Marjason & Marjason Solicitors (Applicant)

ACT Director of Public Prosecutions (Respondent)

File Number:

ACTCA 7 of 2019

Decision under appeal:

Court/Tribunal: Supreme Court of the ACT

Before: Murrell CJ

Date of Decision: 22 October 2019

Case Title: R v Potts

Court File Numbers: SCC 229 of 2017; SCC 230 of 2017

BURNS J

1. On 24 July 2018, a jury returned verdicts of guilty to charges of making a threat to kill, unlawfully causing grievous bodily harm and assault occasioning actual bodily harm against the applicant. The charges arose out of an incident at the Alexander Maconochie Centre (the AMC) on 15 January 2017, when the applicant assaulted his cell-mate, Marshall Steen, and then assaulted Corrections Officers. The applicant was initially charged with recklessly inflicting grievous bodily harm on one of the Corrections Officers, however the jury returned a verdict of not guilty on that…

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 Potts v The Queen

Details

AGLC: Potts v The Queen [2019] ACTCA 17
Case: [2019] ACTCA 17
Decision Date: 5 July 2019

CaseChat Overview and Summary

The applicant, Bradley Lyle Leslie Potts, sought leave to appeal out of time against convictions for making a threat to kill, unlawfully causing grievous bodily harm, and assault occasioning actual bodily harm. These convictions arose from an incident at the Alexander Maconochie Centre where the applicant assaulted his cell-mate and corrections officers. The Crown had appealed against the sentences imposed, and the applicant's attempt to file a cross-appeal against his convictions was initially deemed invalid. The applicant subsequently filed an application for leave to appeal out of time against the convictions, which was refused by the registrar, leading to the present application before the Supreme Court of the Australian Capital Territory.

The central legal issues before the Court were whether the time limits set by the Court Procedures Rules 2006 (ACT) for appeals were valid, given the applicant's right to appeal under the Supreme Court Act 1933 (ACT). The Court also had to determine if an appealable order had been made by the trial judge, whether a conviction had been formally recorded for the purposes of the Court Procedures Rules, and the impact of the Human Rights Act 2004 (ACT) on these procedural matters. Furthermore, the Court considered the applicant's proposed grounds of appeal, including whether the trial judge erred in allowing the jury to consider a statutory alternative charge, the fairness of the hearing in light of the Human Rights Act, and the refusal to allow the jury to consider the applicant's self-induced intoxication.

The Court addressed the validity of the Court Procedures Rules by reference to the Court Procedures Act 2004 (ACT), which grants the rule-making committee power to establish rules of practice and procedure. The Court noted that the entitlement to appeal is found in the Supreme Court Act, and that the Court Procedures Rules govern the practice and procedure for such appeals. The Court considered the definition of "appeal" within the Rules, which includes appeals against a conviction recorded or sentence imposed. The Court also examined the applicant's grounds of appeal, including the submission that the trial judge erred in allowing the jury to consider a statutory alternative charge and in refusing to allow the jury to consider the issue of involuntary intoxication, which the applicant argued impacted his right to a fair hearing under the Human Rights Act.

The Court ultimately refused the application for leave to appeal out of time. The Court found that the applicant had not demonstrated sufficient grounds to justify an extension of time, particularly in light of the delay in lodging the appeal and the lack of a comprehensive explanation for that delay. The Court also addressed the applicant's proposed grounds of appeal, finding that they did not establish an arguable case for setting aside the convictions.

Orders