Citation: Regina v Malcolm Potier [2011] NSWCCA 170
Court: Court of Criminal Appeal, New South Wales
Date: 28 July 2011
Judge(s): Whealy JA, McCallum J, Schmidt J
Background
The applicant was convicted in October 2001 of two counts of soliciting the murder of his former de facto wife and her new partner. A key element of the Crown case was recorded telephone conversations between the applicant and a prosecution informant. The applicant maintained throughout that those recordings had been altered or manufactured, pointing to discrepancies in telephone records that he said were consistent with the calls never having been made.
A conviction appeal was dismissed in 2006, after which the applicant was tried and convicted of a third soliciting-to-murder offence. The Crown had deliberately delayed that third trial so it could use evidence from the first trial, including the fact of conviction, as tendency and coincidence evidence. The appeal against the third conviction remained pending at the time of this judgment.
In October 2010, the applicant sought orders compelling two persons to attend and give evidence before the Court: a juror from his first trial and a former police officer. A single judge refused those applications, and this judgment determined the applications afresh under s 22(2) of the Criminal Appeal Act 1912.
Legal Issues
- Whether a juror from the first trial could be compelled to attend and give evidence about the jury's deliberations, in particular as to what impact telephone records (said to be fresh evidence) would have had on the jury's verdict
- Whether a police witness could be cross-examined about compliance with an order to produce telephone recordings, including questions directed at the authenticity of those recordings and the circumstances of their late disclosure
Decision
Juror examination. The Court confirmed that it is well established that courts may not receive evidence about the discussions and deliberations of jurors. The applicant sought to cross-examine the juror on the basis that the juror had written a book about the trial, and that the book revealed the recordings were central to the jury's verdict. The applicant argued this provided an opportunity to hear "best evidence" of what the jury would have made of the withheld telephone records. The Court rejected this argument. The prohibition on receiving evidence of jury deliberations applied regardless of the applicant's characterisation of the purpose of the examination.
The applicant also relied on a separate judgment from an earlier application involving the same juror, arguing it recognised an ability to call that person. The Court found this was a misreading of that judgment. Even setting aside the prohibition on juror evidence, the applicant's stated purpose of obtaining evidence for a bail application did not provide a proper basis for the order.
Police witness examination. The applicant sought to cross-examine a police technical officer about four recordings produced in response to a court order to produce, which had not been disclosed at the first trial. The officer had explained this by reference to advances in technology that allowed previously inaudible material to be retrieved. The applicant wished to explore why the recordings emerged a decade later, why there were discrepancies with web-trace records, and whether the recordings were authentic.
The Court accepted that a court may compel a witness to attend to examine whether an order to produce has been properly complied with. However, the Court found that the applicant's questions went beyond testing compliance and were directed at obtaining evidence for use at the conviction appeal itself. No basis had been established for doubting the order had been properly understood and complied with. The application was refused on that ground.
Orders Made
- Both applications dismissed.
Key Takeaways
- The Court of Criminal Appeal confirmed that the prohibition on receiving evidence of jury deliberations applies even where a juror has subsequently written about the trial and the applicant frames the examination as seeking "best evidence" on a specific factual question.
- A misreading of an earlier judgment should not be taken as authority for a proposition the court did not actually decide; the Court here rejected the applicant's characterisation of a prior separate judgment as recognising a right to call the juror.
- Where a court order to produce has been complied with, cross-examination of the producing witness is permissible only to test that compliance, not to conduct further inquiry or obtain evidence for use in substantive proceedings.
- Successive applications in the same long-running matter do not lower the threshold for compelled attendance of witnesses; the applicable legal principles remain constant regardless of the procedural history.
- In dismissing the applications, the Court left the underlying conviction appeal (and the unresolved questions about the telephone records) to be addressed through proper proceedings, including a contemplated special leave application to the High Court.
Legislation and Cases Referenced
Legislation
- Criminal Appeal Act 1912 (NSW), ss 22, 22(2)
- Jury Act 1977 (NSW)
Cases
- Burrell v R [2008] HCA 34; 238 CLR 218
- Gallagher v The Queen [1986] HCA 26; 160 CLR 392
- Mickelberg v The Queen [1989] HCA 35; 167 CLR 259
- R v Potier [2004] NSWCCA 136
- R v Potier [2005] NSWCCA 336
- Potier v R [2006] NSWCCA 27
- Potier v R [2010] NSWCCA 231