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10
Court of Criminal Appeal 17 February 2006

POTIER v REGINA

[2006] NSWCCA 27

Public order & justice offences
CRIMINAL LAW APPEAL AGAINST CONVICTION SOLICITING TO MURDER ENTRAPMENT ILLEGALLY OBTAINED EVIDENCE VULNERABILITY

Citation: Potier v Regina [2006] NSWCCA 27
Court: NSW Court of Criminal Appeal
Date: 17 February 2006
Judges: McClellan CJ at CL, Hislop J, Rothman J

Background

The appellant was convicted by a jury in the District Court on two counts of soliciting to murder, contrary to s 26 of the Crimes Act 1900 (NSW). The proposed victims were his former partner and her new boyfriend, whom the appellant believed posed a danger to his young daughter. He was sentenced to 6 years and 8 months imprisonment with a non-parole period of 5 years.

The Crown case centred on a series of conversations, some recorded, between the appellant and a woman named Ms Conway, whom he had befriended while detained at the Villawood Detention Centre. Ms Conway was in contact with Commonwealth Police and passed information about the appellant's plans to them. The appellant was alleged to have solicited murder through multiple channels: an overseas contact referred to as Dave, a fellow detainee named Basso, and a person described as a hired hit-man named Chris.

The appellant appeared unrepresented at various stages of the proceedings, including in preparing his written submissions on appeal. By the time of the hearing, he was represented by counsel, but he also sought to rely on his own extensive written material. The Court noted that much of this material was repetitive and, in places, difficult to follow.

  • Whether the evidence was obtained by entrapment and should have been excluded
  • Whether the evidence was illegally obtained and whether the trial judge erred in admitting it
  • Whether the appellant's vulnerability (arising from his detention) affected the admissibility or weight of his conversations with Ms Conway
  • Whether the trial judge gave adequate and appropriate warnings to the jury about the use of transcripts of recorded conversations
  • Whether hearsay evidence was improperly admitted
  • Whether a juror's conduct (specifically, a publication by a juror) warranted intervention
  • Whether there was an error on the face of the indictment

Decision

McClellan CJ at CL, with whom Hislop J and Rothman J agreed, dismissed the appeal. The Court reviewed all of the grounds raised, including those advanced in the appellant's personally prepared written submissions, which went well beyond the confined grounds that counsel had orally argued. No error warranting intervention was identified on any of the grounds.

Central to the Crown's case was the jury's acceptance of Ms Conway's evidence, which gave context to the recorded conversations and allowed the appellant's use of coded language to be understood. Once that context was established, the Court described the Crown case as strong. The jury's acceptance of the integrity of the recordings and Ms Conway's interpretation of the "code" the appellant used meant the evidence of solicitation was cogent and credible.

On the entrapment and illegally obtained evidence arguments, the Court found no basis to conclude that the trial judge erred in admitting the evidence. The Court also found no error in the trial judge's directions to the jury about the transcripts of recorded conversations. The grounds relating to hearsay evidence, the juror's conduct, and the indictment were similarly rejected.

Regarding sentence, the Court noted that the offences carried a maximum penalty of 25 years imprisonment and that a substantial term was appropriate to reflect both punishment and deterrence. However, the Court subsequently noted in its amendments that the sentence appeal had already been dealt with on an earlier occasion, making the sentence paragraphs in the judgment redundant. The operative order was therefore solely the dismissal of the conviction appeal.

Orders Made

  • Appeal against conviction dismissed.

Key Takeaways

  • The Court of Criminal Appeal confirmed that where a jury accepts the evidence of a key Crown witness who explains the context and coded language of recorded conversations, a conviction for soliciting to murder can stand even where the accused contests the very occurrence of those conversations.

  • In dismissing all grounds of appeal, the Court applied an established discretion allowing trial judges to admit evidence obtained through police-facilitated encounters, rejecting the contention that entrapment or the circumstances of the appellant's detention rendered the evidence inadmissible.

  • A trial judge's directions to the jury about the limited use of transcripts of recorded conversations were held to disclose no error, reinforcing the scope of judicial discretion in managing jury warnings of this kind.

  • No error was established in the trial judge's handling of the hearsay evidence, the indictment, or the juror conduct complaint, consistent with the broad principle that appellate courts will not intervene absent identifiable error.

  • Where an accused relies on extensive self-prepared written submissions on appeal in addition to counsel's argument, the Court will consider all such material, but the scope of the appeal is not thereby expanded beyond what the evidence and law can support.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 26 (soliciting to murder)
- Crimes Act 1914 (Cth)
- Evidence Act 1995
- Law Enforcement (Controlled Operations) Act 1997

Cases:
- King v The Queen (1986) 161 CLR 423
- R v Mack (1988) 44 CCC (3d) 513
- R v Masland (1988) 14 NSWLR 327
- R v Ridgeway (1995) 78 A Crim R 307
- R v Sloane (1990) 49 A Crim R 270
- Richard John Sinclair Laws (No 2) (2000) 116 A Crim R 70