Citation: Potier v Regina [2011] NSWCCA 204
Court: Court of Criminal Appeal, Supreme Court of New South Wales
Date: 6 September 2011
Judge(s): Basten JA; Simpson J; Garling J
Background
The applicant had been convicted in 2001 of two counts of soliciting the murder of his former de facto wife, and subsequently convicted of a third similar offence following a 2006 trial. Multiple appeals and related applications had been brought over the ensuing years. At the time of this application, an appeal against conviction remained pending in the Court of Criminal Appeal.
The applicant sought bail pending the outcome of that appeal. A single judge, RA Hulme J, had refused bail on 18 October 2010. The present application asked the full Court of Criminal Appeal to review that refusal.
Before considering the merits of any bail application, however, the Court identified a threshold jurisdictional question that had not been raised by either party: did the Court of Criminal Appeal have power to review RA Hulme J's decision, and in what capacity had his Honour actually been sitting when he refused bail?
Legal Issues
- Whether the Court of Criminal Appeal had power to grant bail under s 30 of the Bail Act 1979 (NSW).
- Whether a single judge could constitute the Court of Criminal Appeal for the purpose of hearing a bail application.
- In what capacity RA Hulme J had been sitting when he refused bail: as a judge of the Court of Criminal Appeal, or as a judge of the Common Law Division of the Supreme Court.
- Whether the Court of Criminal Appeal had jurisdiction to review the bail refusal, and under which provision of the Bail Act.
Decision
The Court first examined the source of power to grant bail under s 30 of the Bail Act 1979 (NSW), which confers that power on the Court of Criminal Appeal where an appeal is pending. The definition of "Court of Criminal Appeal" in s 4 of the Bail Act expressly includes "a Judge of that Court," suggesting a single judge can exercise the power. However, the Court noted that this definitional extension raised questions about whether a single judge could constitute the Court of Criminal Appeal for this purpose, given that the Criminal Appeal Act 1912 (NSW) ordinarily requires the Court to be constituted by at least three judges.
The Court then turned to the more practical question of how RA Hulme J's judgment had been recorded. The published judgment bore a title indicating he was sitting in the Court of Criminal Appeal, but the hearing transcript and an ex tempore version of the judgment indicated he was sitting in the Common Law Division of the Supreme Court. These two documents were inconsistent with each other.
The Court concluded that the inconsistency was most likely the result of a clerical error in the title of the published judgment. Having regard to the interests of justice, and noting that one interpretation would deny the applicant a right of review while the other would preserve it, the Court resolved the ambiguity in the applicant's favour. RA Hulme J had been sitting in the Common Law Division, not the Court of Criminal Appeal.
This conclusion had an important procedural consequence. Because the refusal had been made in the Common Law Division, the Court of Criminal Appeal had power under s 45(1)(b) of the Bail Act to review it. The Court confirmed jurisdiction to proceed and resolved the matter accordingly.
Orders Made
• The judgment of R A Hulme J on the application for bail by Mr Potier was delivered in the Common Law Division of the Supreme Court, and this Court has the power to review this decision by way of a review under s 45(1)(b) of the Bail Act.
Key Takeaways
- The Court of Criminal Appeal resolved an ambiguity between a published judgment and its hearing transcript by concluding that RA Hulme J had been sitting in the Common Law Division of the Supreme Court, not in the Court of Criminal Appeal, when he refused bail.
- Where two documents bearing on the constitution of a court are inconsistent, a party asserting that a judge was not properly constituted must place evidence before the court to establish that fact; the court is not required to conduct its own factual investigation.
- Under s 45(1)(b) of the Bail Act 1979 (NSW), the Court of Criminal Appeal has power to review a bail determination made in the Common Law Division, a jurisdictional pathway that depended entirely on resolving in which capacity the primary judge had been sitting.
- The definition of "Court of Criminal Appeal" in s 4 of the Bail Act to include "a Judge of that Court" raises unresolved questions about whether a single judge can constitute the Court of Criminal Appeal for bail purposes, given the ordinarily multi-judge constitution required by the Criminal Appeal Act 1912 (NSW).
- Choosing between competing interpretations of procedural records, the Court favoured the construction that preserved the applicant's right of review, treating the published title as the product of a clerical slip rather than an accurate record of the court's constitution.
Legislation and Cases Referenced
Legislation:
- Bail Act 1979 (NSW), ss 3, 4, 9D, 28, 30, 30AA, 44, 45, 46
- Criminal Appeal Act 1912 (NSW), ss 3, 6, 22
- Supreme Court Act 1970 (NSW), ss 38–41
- Migration Act 1958 (Cth), s 189
- Constitution, s 73
Cases:
- Burrell v The Queen [2008] HCA 34; 238 CLR 218
- Director of Public Prosecutions (Cth) v Cassaniti [2006] NSWCCA 335; 204 FLR 152
- Director of Public Prosecutions (NSW) v Moradian; Saliba and Sparos [2010] NSWCCA 27
- Gallagher v The Queen [1986] HCA 26; 160 CLR 392
- Mickelberg v The Queen [1989] HCA 35; 167 CLR 259
- Petroulias v R [2010] NSWCCA 95
- Regina v JS (No 2) [2007] NSWCCA 309; 179 A Crim R 10
- Regina v Potier [2011] NSWCCA 170
- Potier v R [2010] NSWCCA 231
- Potier v Regina [2006] NSWCCA 27
- R v Potier [2005] NSWCCA 336
- R v Wilson (1994) 34 NSWLR 1
- Stewart v The King [1921] HCA 17; 29 CLR 234
- Grierson v The King [1938] HCA 45; 60 CLR 431