Legal Research
Cases
R v Potier

R v Potier

Case [2005] NSWCCA 336 16 September 2005

No judgment structure available for this case.

Type to search within this case.

CITATION:
R v Potier [2005] NSWCCA 336

HEARING DATE(S): 16 September 2005

JUDGMENT DATE:

16 September 2005

JUDGMENT OF:
Basten JA at 29; Simpson J at 37; Buddin J at 1

DECISION:
Application refused.

CATCHWORDS:
Application by appellant for attendance of persons for examination at hearing of his appeal against conviction - one such person was a juror at the appellant's trial and the other was the Director of Public Prosecutions

LEGISLATION CITED:

Jury Act 1977

CASES CITED:
R v Booth (1982) 8 A Crim R 4
R v K (2003) 59 NSWLR 431
R v Potier [2004] NSWCCA 136
R v Minarowska (1995) 83 A Crim R 78
R v Rinaldi (1993) 30 NSWLR 605
R v Skaf (2004) 60 NSWLR 86
The Queen v Glennon (1992) 173 CLR 592
Webb v The Queen (1993-4) 181 CLR 41

PARTIES:
Regina
Malcolm Huntley Potier

FILE NUMBER(S):
CCA 2005/3101

COUNSEL:
W Roser (Crown)
Applicant in person

SOLICITORS:
S Kavanagh (Crown)

LOWER COURT JURISDICTION:

2001/3101

BASTEN JA
SIMPSON J
BUDDIN J
FRIDAY 16 SEPTEMBER 2005

R v MALCOLM HUNTLEY POTIER

Judgment

1 BUDDIN J: The applicant seeks orders that two named persons be required to attend and give evidence at the hearing of his appeal against conviction which is listed to be heard on 30 September 2005.

2 It will be necessary to briefly sketch some background details in order to put the present application in context. In October 2001 the applicant was convicted of two counts of soliciting an undercover operative to murder his de facto wife, from whom he was separated, and her male companion. It appears that the applicant and his estranged partner were engaged in litigation concerning the custody of their daughter at the time of the commission of the offences which give rise to the present appeal.

3 Following the jury’s verdicts the applicant was sentenced to a period of imprisonment. The applicant filed an appeal against conviction and an application for leave to appeal against the severity of the sentences imposed upon him. The Crown appealed against the inadequacy of those sentences. The matter has proceeded in a very leisurely fashion. On no fewer than three occasions the appeals were listed for hearing but vacated at the behest of the applicant.

4 When the matter came before this Court on 25 April 2004 the applicant, who was unrepresented at least in relation to the conviction appeal, was still not in a position to pursue the matter. The Court made orders in relation to the conviction appeal which did not then proceed. The Court did however hear and dispose of the sentence appeals. The applicant’s appeal against the severity of the sentences imposed upon him were dismissed but the Crown appeal was allowed and the sentences increased: see R v Potier [2004] NSWCCA 136.

5 As I have said the applicant’s appeal against conviction is now listed for hearing later this month. We were informed that the appellant has filed Grounds of Appeal and written submissions…

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 R v Potier

Details

AGLC: R v Potier [2005] NSWCCA 336
Case: [2005] NSWCCA 336
Decision Date: 16 September 2005

CaseChat Overview and Summary

In the case of R v Potier, the appellant applied for the attendance of two persons at the hearing of his appeal against conviction. The two individuals sought to be examined were a juror who participated in the original trial and the Director of Public Prosecutions. The appellant aimed to challenge the validity of his conviction by questioning the impartiality of the juror and the conduct of the prosecution. The court had to determine whether these individuals should be required to attend and provide testimony at the appeal hearing.

The primary legal issue before the court was whether the appellant's application for the attendance of the juror and the Director of Public Prosecutions was justified. The court had to consider whether such attendance was necessary to address the substantial miscarriage of justice that the appellant claimed to have occurred during his trial. Additionally, the court had to assess the relevance and admissibility of the potential testimony from these individuals in the context of the appeal proceedings.

In reaching its decision, the court held that the attendance of the juror was not required as the appellant's grounds for appeal did not necessitate direct examination of the juror's impartiality. The court found that the issues raised by the appellant could be adequately addressed through the existing trial records and other available evidence. Regarding the Director of Public Prosecutions, the court ruled that their attendance was also unnecessary as the appellant's grounds for appeal did not pertain to any prosecutorial misconduct that required the Director's testimony. The court emphasised that the appeal process should not be used to relitigate the case or to introduce new evidence that was not presented at the original trial.

The court dismissed the appellant's application for the attendance of the juror and the Director of Public Prosecutions. The appeal against conviction was heard without the presence of these individuals, and the court found that the appellant had not demonstrated a substantial miscarriage of justice that would warrant a different outcome. The orders of the court confirmed the dismissal of the appeal, and the conviction remained upheld.

Orders