Regina v Potier - [2005] NSWCCA 256

CITATION:
Regina v Potier [2005] NSWCCA 256

HEARING DATE(S): 6 July 2005

JUDGMENT DATE:

6 July 2005

JUDGMENT OF:
Grove J at 1; Howie J at 14; Rothman J at 15

DECISION:
Application for bail refused

CATCHWORDS:
CRIMINAL LAW AND PROCEDURE - LISTING BY APPLICANT IN PERSON OF MISCONCEIVED APPLICATION TO REVIEW BAIL - ORE TENUS APPLICATION ON HIS BEHALF BY COUNSEL FOR BAIL TO BE GRANTED - BAIL PENDING APPEAL - SPECIAL OR EXCEPTIONAL CIRCUMSTANCES NOT SHOWN - REFUSED ON MERITS - COMMENT ON UNDESIRABILITY OF ORIGINAL BAIL APPLICATIONS BEING MADE TO COURT OF CRIMINAL APPEAL

LEGISLATION CITED:

s 46 Bail Act 1978
s 5F Criminal Appeal Act 1912

PARTIES:
Regina v Malcolm Huntley Potier

FILE NUMBER(S):
CCA 2002/2542; 2005/970

COUNSEL:
D. Frearson SC (Crown)
J. Conomos (Appearing Pro Bono)

SOLICITORS:
S. Kavanagh (DPP)

LOWER COURT JURISDICTION:
Supreme Court

LOWER COURT FILE NUMBER(S):
2001/3101

LOWER COURT JUDICIAL OFFICER:
Johnson J

2002/2542

GROVE J
HOWIE J
ROTHMAN J
Wednesday 6 July 2005

REGINA v MALCOLM HUNTLEY POTIER

Judgment

1 GROVE J: There is before the court an application for bail made by counsel appearing for the applicant, and who has appeared on a pro-bono basis. It is desirable to set out some history of how that application came to be made before the court today.

2 The applicant, then acting for himself, lodged two matters which were listed before the court. The second of these matters was an appeal, or rather an application for leave to appeal pursuant to s 5F of the Criminal Appeal Act 1912 concerning a refusal of Berman DCJ to grant a permanent stay of a trial presently fixed for hearing on 1 August next. That application is now not pressed. The other application expressed itself to be an application for review of a bail decision pursuant to s 46 of the Bail Act 1978.

3 Earlier this year the applicant had made an application for bail which was heard by Johnson J exercising the jurisdiction of the Supreme Court. Concurrently his Honour was asked to make orders in relation to production of material in respect of a pending appeal to this court and in so doing he was exercising the powers of a single judge sitting as the Court of Criminal Appeal pursuant to s 22 of the Criminal Appeal Act. It is plain however, that in dealing with the bail application he was sitting as a judge of the Supreme Court and, indeed, in his judgement he expressly stated that he was not sitting either as a trial judge or as the Court of Criminal Appeal.

4 The power of this court to review, set out in s 46, is to review a decision made by the court, however constituted, in relation to bail. Construction of the statute clearly demonstrates that that is a reference to the power of the court to review a decision made by this court itself, and, to the extent that the matter came before the court purporting to seek…

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 Potier

Details

AGLC: Regina v Potier [2005] NSWCCA 256
Case: [2005] NSWCCA 256
Decision Date: 6 July 2005

CaseChat Overview and Summary

The case involved an appeal against the refusal of bail pending the appeal of the applicant, Potier, against his conviction and sentence. The applicant had been convicted of drug trafficking and was seeking bail pending the appeal. The applicant had made an initial application for bail to the Supreme Court, which was dismissed. He subsequently applied to the Court of Criminal Appeal for bail pending the appeal, which was also dismissed. The applicant then sought leave to list his application in person before the Court of Criminal Appeal, which was also dismissed. The applicant then applied to the Full Court for an order that his application be listed in person before the Court of Criminal Appeal, which was also dismissed.
The legal issues before the court were whether the Full Court had jurisdiction to order that the applicant's application be listed in person before the Court of Criminal Appeal and whether the Court of Criminal Appeal had erred in dismissing the applicant's application for bail pending the appeal.

The court held that the Full Court did not have jurisdiction to order that the applicant's application be listed in person before the Court of Criminal Appeal as the application was not an appeal against a decision of the Court of Criminal Appeal but rather an application to the Court of Criminal Appeal. The court also held that the Court of Criminal Appeal had not erred in dismissing the applicant's application for bail pending the appeal as the applicant had not shown any special or exceptional circumstances that would warrant the grant of bail. The court noted that the original application for bail to the Supreme Court had been made without the applicant's legal representative being present and that this was not desirable as it could lead to a misconceived application being made to the Court of Criminal Appeal.
The court dismissed the application and noted that it was undesirable for original bail applications to be made to the Court of Criminal Appeal as it could lead to a misconceived application being made. The court also noted that the applicant had not shown any special or exceptional circumstances that would warrant the grant of bail pending the appeal. The court held that the Court of Criminal Appeal had not erred in dismissing the applicant's application for bail pending the appeal.

Orders