Citation: Potier v R [2010] NSWCCA 231
Court: Court of Criminal Appeal, New South Wales
Date: 18 October 2010
Judge(s): RA Hulme J (sitting as a single judge)
Background
The applicant had been convicted twice of soliciting to murder, first following a trial in 2001 and again following a second trial in 2006. Both matters were contested on, among other grounds, the authenticity of intercepted telephone recordings made in May 2000. The applicant had remained in custody since his arrest in 2000 and was, at the time of this decision, pursuing avenues to challenge both convictions.
A central theme across both trials was whether the telephone recordings relied upon by the prosecution were authentic. The applicant contended the Crown had failed to disclose Telstra telephone records that, he argued, would have supported the defence case on authenticity. He claimed he only became aware of these records after both trials had concluded.
Against that backdrop, the applicant made two procedural applications to a single judge of the Court of Criminal Appeal: one to cross-examine a police officer about compliance with an earlier order to produce documents, and another to compel a juror from the first trial to attend and give evidence.
Legal Issues
- Whether the applicant was entitled to cross-examine a police officer about compliance with an Order to Produce, including questions going beyond the scope of production itself.
- Whether a juror from the applicant's first trial could be required to attend and give evidence about how the jury may have reacted to evidence that was not placed before them at trial.
Decision
Application to cross-examine on compliance with the Order to Produce
Hulme J acknowledged that cross-examining a witness on whether an order to produce has been fully complied with can, in appropriate circumstances, be a legitimate forensic exercise. However, the court was not persuaded that there had been anything other than complete and acceptable compliance with the Order to Produce issued on 29 June 2008. The Commissioner of Police had produced all recordings then currently available, including four that had not previously been disclosed. An explanation was provided by a senior technical officer: advances in the technical equipment used by the Telecommunications Interception Branch had enabled retrieval of previously inaccessible recordings.
The questions the applicant wished to put to the witness went beyond the scope of what is permissible in a compliance inquiry. Those questions extended into matters such as the alleged inauthenticity of the recordings and who may have been responsible, which were not properly the subject of this procedural mechanism. The application was dismissed.
Application for a juror to attend and give evidence
The applicant sought evidence from a juror at his first trial, hoping the juror would say that the jury would have acquitted had the Telstra records been placed before them. Hulme J identified three independent and insurmountable obstacles to this application.
First, it is well established that courts cannot receive evidence about juror deliberations. Second, even if that prohibition did not apply, any evidence obtained from the juror would be of minimal value: the juror would be reconstructing thoughts from a trial held approximately nine years earlier and speculating about the views of fellow jurors. Third, and most fundamentally, a Court of Criminal Appeal considering a fresh or new evidence ground does not ask what the actual jury would have thought. The court makes its own independent assessment of the evidence and determines what impact it may have had on the outcome of the trial. A juror's retrospective opinion on that question is simply irrelevant.
Orders Made
- Both applications dismissed.
Key Takeaways
- Cross-examination on compliance with an order to produce is permissible in appropriate cases, but only to the extent necessary to determine whether compliance has in fact occurred. Questions ranging beyond that into the merits of the underlying dispute are impermissible.
- It is a settled principle that courts cannot receive evidence about the discussions or deliberations of jurors. This Court of Criminal Appeal confirmed that principle applies equally to applications compelling juror attendance in the context of appeal proceedings.
- Where a fresh or new evidence ground is raised on appeal, the Court of Criminal Appeal conducts its own independent assessment of what impact the evidence may have had on the trial's outcome. A juror's retrospective view on that question is irrelevant to that inquiry, following Gallagher v The Queen (1986) 160 CLR 392 and Mickelberg v The Queen (1989) 167 CLR 259.
- Speculative or reconstructed juror evidence, particularly about events many years prior, carries little probative weight even setting aside the prohibition on receiving such evidence.
- In dismissing both applications, the court reinforced that procedural mechanisms available to unrepresented appellants have defined boundaries and cannot be used as broad vehicles to reopen the merits of a concluded trial.
Legislation and Cases Referenced
Legislation
- Criminal Appeal Act 1912 (NSW), s 22
Cases
- Burrell v The Queen [2008] HCA 34; 238 CLR 218
- Gallagher v The Queen [1986] HCA 26; 160 CLR 392
- Malcolm Huntley Potier v Director of Public Prosecutions and Anor, unreported, Court of Criminal Appeal, 1 March 2005
- Mickelberg v The Queen [1989] HCA 35; 167 CLR 259
- Potier v Regina [2006] NSWCCA 27
- R v Potier [2005] NSWCCA 336
- Regina v Potier [2004] NSWCCA 136