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Court of Criminal Appeal 18 October 2010

Potier v R

[2010] NSWCCA 234

Public order & justice offences
CRIMINAL LAW APPEAL AND NEW TRIAL BAIL PENDING APPEAL

Citation: Potier v R [2010] NSWCCA 234
Court: Court of Criminal Appeal, New South Wales
Date: 18 October 2010
Judge(s): RA Hulme J

Background

The applicant was convicted in the Sydney District Court in 2006 of soliciting to murder, following a trial in which the Crown relied on evidence of his earlier convictions for two similar offences committed in 2000. He was sentenced to 12 years imprisonment with a non-parole period of 7 years. An appeal against the 2006 conviction was technically pending before the Court of Criminal Appeal, though no formal notice of appeal had yet been filed.

The applicant also had a prior history before the Court. His appeal against the 2001 convictions for the earlier soliciting offences had been dismissed in 2006. He now sought bail pending the appeal against the 2006 conviction, advancing three separate bases to support the application.

The applicant appeared in person and filed extensive documentary material, including further submissions after judgment was reserved. The Crown opposed the application and tendered evidence from the relevant correctional facility.

  • Whether the applicant met the "exceptional circumstances" threshold under s 9D of the Bail Act 1978, applicable because the offence was a serious personal violence offence and the applicant had a prior conviction for such an offence
  • Whether the applicant met the "special or exceptional circumstances" threshold under s 30AA of the Bail Act 1978, applicable because bail was sought pending an appeal in the Court of Criminal Appeal
  • Whether the applicant's prospects of success on appeal, his ability to conduct appeal proceedings from custody, or the existence of overseas court proceedings could individually or collectively satisfy those thresholds

Decision

On the first basis, the applicant argued that a factual error in the Court's 2006 judgment dismissing his earlier appeal would, if corrected, lead to that appeal being remitted, which in turn would undermine the tendency evidence used against him in the 2006 trial. Hulme J found this argument required too many contingent steps to establish. The applicant would first need to obtain an extension of time, special leave to appeal, a successful appeal to the High Court, a remittal, and then a favourable finding on the fresh evidence question, before any flow-on effect on the 2006 conviction could arise. The material before the Court fell well short of establishing any of those matters.

On the second basis, the applicant argued that custody prevented him from complying with High Court filing requirements and accessing legal resources. Hulme J noted that evidence from the correctional facility showed computers had recently been made available to inmates in the applicant's placement and that the applicant had already used them. That basis was not made out.

On the third basis, the applicant pointed to family law proceedings in the High Court of Justice in London, listed for hearing in November 2010, which he said he would be unable to participate in from custody. Hulme J rejected this as a basis for bail, noting there was no evidence the video link facility requested would be unavailable, and separately that the applicant posed a flight risk given his history of travelling to Australia on false passports and his time in immigration detention.

Applying the test from R v Wilson (1994), Hulme J confirmed that bail pending appeal requires grounds that are not merely arguable, but are very likely or certain to succeed, assessable without detailed argument. None of the three bases advanced, individually or in combination, satisfied the "special or exceptional circumstances" threshold in s 30AA.

Orders Made

  • Application for bail refused.

Key Takeaways

  • Bail pending appeal in the Court of Criminal Appeal requires "special or exceptional circumstances" under s 30AA of the Bail Act 1978, a threshold that is distinct from and in addition to the "exceptional circumstances" requirement in s 9D where a serious personal violence offence and prior conviction are involved.
  • Under the test confirmed in R v Wilson, appeal grounds must be certain to succeed, and that must be apparent without detailed argument. Arguable grounds or grounds with reasonable prospects are insufficient.
  • Where bail pending appeal is sought on the basis of appeal prospects, the applicant carries the burden of demonstrating the strength of those prospects without requiring elaborate analysis of the materials at the bail stage.
  • A chain of multiple contingent steps required for a proposed appeal to succeed will, by its nature, make it very difficult to satisfy the high threshold for bail pending appeal.
  • Flight risk remains a relevant consideration even where the primary basis for the application does not explicitly raise it, as illustrated by the Court's assessment of the applicant's history with immigration authorities.

Legislation and Cases Referenced

Legislation:
- Bail Act 1978 (NSW), ss 9D, 30AA
- Criminal Appeal Act 1912 (NSW), ss 10(2)

Cases:
- Burrell v The Queen [2008] HCA 34; 238 CLR 218
- Potier v Regina [2006] NSWCCA 27
- R v Abou-Chabake [2004] NSWCCA 356; 149 A Crim R 417
- R v Wilson (1994) 34 NSWLR 1