R v Potier - [2001] NSWCCA 404

CITATION: R v Potier [2001] NSWCCA 404

FILE NUMBER(S): CCA 60629/01

HEARING DATE(S): 5 October 2001

JUDGMENT DATE:
5 October 2001

PARTIES :

Regina v Malcolm Huntley Potier

JUDGMENT OF: Wood CJ at CL at 18; Studdert J at 1; Bell J at 19

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 00/21/3216

LOWER COURT JUDICIAL
OFFICER : Hosking DCJ

COUNSEL : D.U. Arnott (Crown)
In person (Applicant)

SOLICITORS: S.E. O'Connor (Crown)

LEGISLATION CITED: Criminal Appeal Act
Crimes Act

CASES CITED:
R v Groves (unreported, NSWCCA, 2 April 1990)
Sergi v DPP (unreported, NSWCA, 10 September 1991)
R v Powch (1988) 14 NSWLR 136
R v Edelsten (1989) 18 NSWLR 213
R v Steffan (1993) 30 NSWLR 633

DECISION: Appeal refused.

IN THE COURT OF
CRIMINAL APPEAL

60629/01

WOOD CJ at CL

STUDDERT J

BELL J

REGINA v MALCOLM HUNTLEY POTIER

JUDGMENT

1 STUDDERT J: This is an application pursuant to s 5F of the Criminal Appeal Act . An indictment has been presented against the applicant in the District Court charging him with two counts of solicit to murder in contravention of s 26 of the Crimes Act . The applicant pleaded not guilty to those offences when arraigned before his Honour Judge Hosking SC on 19 September 2001. Following arraignment his Honour made rulings announced on 19 September but for which reasons were given on 25 September on various matters raised on the voir dire. Those rulings prompt the present application.

2 Whilst the applicant is legally represented at his trial, he appears in person before this Court on the present application. The trial judge granted no certificate under s 5F(3)(b) of the Criminal Appeal Act so that the applicant requires leaves of this Court to appeal under s 5F(3)(a), and the question as to whether leave should be granted is the threshold consideration.

“1. That the evidence obtained by the actions of the police be excluded from the trial and that the indictment be stayed.

2. That the jury be only given the original tapes of the alleged conversations between the accused and the undercover police operative.”

4 The undesirability of interrupting and/or fragmenting the criminal trial procedure has been emphasised by this court and appeals under s 5F are to be kept within strict confines: see R v Groves (unreported, NSWCCA, 2 April 1990). See also: Sergi v DPP (unreported, NSWCA, 10 September 1991) and in particular the judgment of Kirby P at pp 7-8.

5 As the expression of the grounds of the present application above set out indicates, the applicant seeks to challenge the decision of the trial judge as to the admissibility of evidence at the applicant’s trial now proceeding.

6 It is desirable to refer very briefly to the nature of the Crown case. It is alleged that the applicant solicited a person to murder his former de facto wife…

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 [2001] NSWCCA 404
Case: [2001] NSWCCA 404
Decision Date: 5 October 2001

CaseChat Overview and Summary

The case of Regina v Malcolm Huntley Potier is an application for leave to appeal under section 5F of the Criminal Appeal Act, brought before the Court of Criminal Appeal. The applicant, Malcolm Huntley Potier, has been indicted on two counts of solicitation to murder in contravention of section 26 of the Crimes Act. The application arises from rulings made by the trial judge, Hosking DCJ, during a voir dire concerning the admissibility of certain evidence in the applicant's trial. The applicant seeks to challenge the trial judge's rulings on the admissibility of evidence obtained through undercover police operations, including audio recordings of conversations between the applicant and an undercover police officer.

The primary legal issue before the Court of Criminal Appeal was whether the trial judge's rulings on the admissibility of evidence constituted an "interlocutory judgment or order" under section 5F of the Criminal Appeal Act, thereby permitting an immediate appeal. The applicant argued that the trial judge's decision to admit the evidence, which he claimed was obtained unlawfully or improperly, should be reviewed by the Court of Criminal Appeal. The Court had to determine whether the nature of the trial judge's rulings fell within the scope of "interlocutory judgment or order" that would allow for an appeal under section 5F.

The Court of Criminal Appeal held that the trial judge's rulings on the admissibility of evidence were not "interlocutory judgments or orders" within the meaning of section 5F of the Criminal Appeal Act. The Court relied on previous cases such as R v Powch, R v Edelsten, and R v Steffan, which established that rulings on the admissibility of evidence, whether made before or during the trial, are not considered interlocutory judgments or orders. The Court emphasised that such rulings are generally matters for the trial judge and are subject to appeal under section 5 of the Criminal Appeal Act after the trial is completed. The Court also noted the importance of maintaining the integrity of the trial process and keeping appeals under section 5F within strict confines. Consequently, the Court of Criminal Appeal refused the applicant's request for leave to appeal.

In light of the above, the Court of Criminal Appeal dismissed the application for leave to appeal, and the appeal was refused.

Orders