Regina v Malcolm Potier - [2011] NSWCCA 170

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Regina v Malcolm Potier [2011] NSWCCA 170
Hearing dates: Wednesday 4 May 2011
Decision date: 28 July 2011
Before: Whealy JA
McCallum J
Schmidt J
Decision:
Applications dismissed

Catchwords: CRIMINAL LAW - conviction appeal - applicant seeking to rely upon fresh evidence relating to earlier convictions relevant to conviction appealed from - application to cross-examine juror from earlier trial as to impact evidence would have had upon the jury's deliberations at that trial - application to cross-examine a police witness as to compliance with order to produce
Legislation Cited: Criminal Appeal Act 1912
Jury Act 1977
Cases Cited: Burrell v R [2008] HCA 34; 238 CLR 218
Gallagher v The Queen [1986] HCA 26; 160 CLR 392
Mickelberg & The Queen [1989] HCA 35; 167 CLR 259
R v Potier [2004] NSWCCA 136
R v Potier [2005] NSWCCA 336
Potier v R [2006] NSWCCA 27
Potier v R [2010] NSWCCA 231
Category: Interlocutory applications
Parties: Malcolm Potier (appellant)
Crown (respondent)
Commissioner of Police (respondent to order to produce)
Representation: Counsel
M Potier (self represented)
N Norman (for Crown)
M England (for Commissioner of Police)
Solicitors
M Potier (self represented)
Director of Public Prosecutions (NSW) - Sydney (for Crown)
Crown Solicitor's Office - Sydney (for Commissioner of Police)

File Number(s): 2005/14700
Publication restriction: None

Judgment

WHEALY JA: I agree with McCallum J.

McCALLUM J: On 9 May 2000, Malcolm Potier was arrested and charged with two counts of soliciting a person to murder Mr Potier's ex de facto wife and her new partner. In October 2001, after a trial by jury, he was convicted of those offences.

In April 2002, before being sentenced for the offences, Mr Potier was charged with a third offence of soliciting to murder, also relating to his ex de facto wife.

Mr Potier was subsequently sentenced for the first two offences to two fully concurrent terms of imprisonment of 6 years and 8 months with a non-parole period of 5 years commencing on 8 May 2000. He appealed to this Court against his convictions and sought leave to appeal against the sentences imposed. The Crown lodged an appeal against the leniency of the sentences imposed.

After a number of adjournments on the application of Mr Potier, the appeals were finally listed for hearing in 2004, but Mr Potier was still not in a position to pursue the conviction appeal. The Court proceeded to determine the two sentence appeals, refusing leave to Mr Potier to appeal against severity and allowing the Crown appeal: R v Potier [2004] NSWCCA 136. The Court did not vary the terms of the sentences imposed at first instance but accumulated one upon the other by two years and thus increased the aggregate non-parole period.

On 17 February 2006, the conviction appeal was dismissed: Potier v R [2006] NSWCCA 27. Following the determination of that appeal, Mr Potier was tried for the third offence. It appears…

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 Regina v Malcolm Potier

Details

AGLC: Regina v Malcolm Potier [2011] NSWCCA 170
Case: [2011] NSWCCA 170
Decision Date: 28 July 2011

CaseChat Overview and Summary

In the case of Regina v Malcolm Potier, the applicant sought to appeal his conviction on the basis of fresh evidence relating to his earlier convictions, which were relevant to the conviction he was appealing. The application included a request to cross-examine a juror from the earlier trial to ascertain the impact that the fresh evidence would have had on the jury's deliberations during that trial. Additionally, the applicant applied to cross-examine a police witness in relation to compliance with an order to produce certain documents. The appeal was heard in the Court of Criminal Appeal.

The primary legal issues before the Court were whether the fresh evidence presented by the applicant was admissible and, if so, whether it was sufficiently compelling to warrant a new trial. The Court also needed to determine whether the applications to cross-examine the juror and the police witness were permissible and whether they would provide any useful information in relation to the appeal. In addressing these issues, the Court considered the principles of finality in criminal convictions, the exceptions to those principles, and the rules governing the admissibility of fresh evidence.

The Court of Criminal Appeal held that the fresh evidence presented by the applicant was not admissible because it did not meet the strict criteria for exceptional circumstances that would justify departing from the principle of finality in criminal convictions. The Court further determined that the applications to cross-examine the juror and the police witness were not warranted as they would not provide any useful information in relation to the appeal. Consequently, the appeal was dismissed, and the conviction was upheld.

No further orders were made by the Court. The decision stands as a reminder of the high threshold that must be met for fresh evidence to be considered in a criminal conviction appeal, and the limited circumstances in which exceptions to the principle of finality will be permitted.

Orders