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Court of Criminal Appeal 6 July 2005

Regina v Potier

[2005] NSWCCA 256

Public order & justice offences
CRIMINAL LAW AND PROCEDURE BAIL PENDING APPEAL REFUSED ON MERITS

Citation: Regina v Potier [2005] NSWCCA 256
Court: Court of Criminal Appeal, New South Wales
Date: 6 July 2005
Judge(s): Grove J (primary judgment), Howie J, Rothman J (both agreeing)

Background

The applicant had been convicted on two counts of soliciting to murder and was awaiting both a pending appeal against conviction in the Court of Criminal Appeal and a separate trial. His sentence had previously been increased following a successful Crown appeal. The appeal against conviction had been struck out of the list and was subsequently re-listed for hearing on 30 September 2005.

Acting for himself, the applicant lodged two matters before the Court of Criminal Appeal. One was an application for leave to appeal against a refusal of a permanent stay of the upcoming trial, which was ultimately not pressed. The other purported to be an application to review a bail decision under section 46 of the Bail Act 1978. That bail decision had been made by Johnson J sitting in the Supreme Court, not in his capacity as the Court of Criminal Appeal.

By the time the matter was called, pro bono counsel had appeared for the applicant and made an oral (ore tenus) application for bail pending the appeal against conviction. The Court received the application in the particular circumstances but took the opportunity to address the procedural misstep that had brought the matter before it.

  • Whether the Court of Criminal Appeal had power under section 46 of the Bail Act 1978 to review a bail decision made by Johnson J sitting as a Supreme Court judge (as distinct from sitting as the Court of Criminal Appeal).
  • Whether the applicant had demonstrated "special or exceptional circumstances" under section 30AA of the Bail Act 1978 sufficient to justify bail pending his appeal against conviction.
  • Whether it was appropriate for original bail applications to be brought before the Court of Criminal Appeal rather than the Supreme Court bail judge.

Decision

On the section 46 review point, Grove J held that the power to review under that provision is limited to reviewing decisions made by the Court of Criminal Appeal itself. Because Johnson J had expressly stated he was not sitting as the Court of Criminal Appeal when he dealt with the bail application, the purported review application was misconceived and could not succeed on that basis.

The Court nevertheless proceeded to hear the bail application given the unusual circumstances, namely that the matter had already been listed and pro bono counsel was present. Grove J was clear that this should not be taken as a precedent for original bail applications being brought before the Court of Criminal Appeal. The Court noted that the Supreme Court's allocated bail judge sits daily and is the appropriate forum for such applications.

On the merits of bail pending appeal, the applicant advanced two grounds: first, that the evidence at trial did not support the indictment as pleaded, because the intended killer was a person other than the undercover operative named in the indictment; and second, that recorded telephone conversations tendered at trial had been doctored. Grove J found both grounds fell so far short of demonstrating a high probability of success that the section 30AA threshold of "special or exceptional circumstances" could not possibly be regarded as met. The application was refused.

Orders Made

  • Application for bail refused.

Key Takeaways

  • Section 46 of the Bail Act 1978 empowers the Court of Criminal Appeal to review only its own bail decisions. A bail decision made by a Supreme Court judge sitting in that court's general jurisdiction is not reviewable under that provision.
  • Under section 30AA of the Bail Act 1978, an applicant seeking bail pending an appeal must demonstrate special or exceptional circumstances. Grounds that fall well short of showing a high probability of success on appeal will not satisfy this threshold.
  • Refusing bail on the merits, the Court of Criminal Appeal found that neither a pleading discrepancy argument nor an allegation that recorded evidence had been doctored came close to meeting the section 30AA standard.
  • The Court of Criminal Appeal is not an appropriate forum for original bail applications. The Supreme Court's dedicated bail judge, who sits daily, is the proper avenue.
  • In exceptional procedural circumstances, the Court may exercise discretion to receive an application that would not ordinarily come before it, without that exercise of discretion setting any general precedent.

Legislation and Cases Referenced

Legislation:
- Bail Act 1978 (NSW), sections 30, 30AA, 46
- Criminal Appeal Act 1912 (NSW), sections 5F, 22

Cases cited: None cited in the judgment.