Citation: Potier v R [2014] NSWCCA 177
Court: Court of Criminal Appeal, NSW
Date: 28 August 2014
Judge(s): Leeming JA; Adams J; Fullerton J
Background
The applicant had been in custody since 2000, originally convicted of two counts of soliciting murder. Those convictions were the subject of dismissed appeals and a refused application for special leave to the High Court, and the head sentence was fully served. He then sought a review under Part 7 of the Crimes (Appeal and Review) Act 2001 (NSW), though that process remained at a preliminary stage.
While serving his first sentence, the applicant was convicted in 2006 of a further count of soliciting murder, for which he received 12 years imprisonment with a seven-year non-parole period. An appeal, or application for leave to appeal, against that second conviction remained undetermined and was listed for hearing in November 2014. His non-parole period had expired the previous year, but the Parole Board had found him unsuitable for parole.
The present bail application was originally filed on 20 April 2013 under the former Bail Act 1978 (NSW). It was treated as a release application under the Bail Act 2013 (NSW) by operation of transitional provisions in that Act. Multiple prior bail applications had been refused, and the applicant had been the subject of a vexatious proceedings order covering more than 40 decisions, though that order expressly excluded the present bail application.
Legal Issues
- Whether the Court of Criminal Appeal had jurisdiction to hear the bail application given the pending appeal.
- Whether s 74 of the Bail Act 2013 (NSW), requiring new grounds before a further release application could be heard, barred the application.
- Whether the applicant had established "special or exceptional circumstances" justifying bail under s 22 of the Bail Act 2013 (NSW), which replicates the former s 30AA of the Bail Act 1978 (NSW).
- Whether the commencement of the Bail Act 2013 altered the threshold required under s 22, given the general risk assessment framework in s 17(3)(i).
Decision
The Court confirmed it had jurisdiction under s 61 of the Bail Act 2013, as the pending appeal fell within the broad definition of "proceedings for the offence" in s 5(1)(d). On s 74, the Court proceeded on the basis most favourable to the applicant, treating material in his 2013 affidavits as potentially constituting new grounds, and therefore heard the application on its merits.
The central question was whether s 22 of the Bail Act 2013 still required the applicant to demonstrate "special or exceptional circumstances." The applicant argued that s 17(3)(i), which directs a bail authority to consider whether an appeal has a reasonably arguable prospect of success, lowered the threshold. The Court rejected that argument. Section 22 is a specific provision expressed to apply "despite anything to the contrary in this Act," and it plainly overrides the general s 17 considerations where a conviction is subject to appeal.
The Court applied the threshold from Petroulias v R [2010] NSWCCA 95: an applicant must show considerably more than that grounds of appeal are arguable. On the first theme advanced, that prison conditions had compromised the applicant's access to documents and legal materials, the Court found no evidence that documents had been improperly read or that legal work had been rendered irreparably damaged. The applicant's extensive litigation history itself demonstrated that his access to courts had not been meaningfully impeded.
On the second theme, the applicant sought to rely on material going to the probable success of his appeal from the second conviction. The Court observed that such material raised significant issues of relevance and admissibility, and that it is not appropriate on a bail application to undertake the detailed analysis of evidence, including contested fresh evidence, that a substantive appeal would require. Nothing the applicant advanced came close to establishing the requisite special or exceptional circumstances, and the application was dismissed.
Orders Made
• Application for bail pending appeal refused
Key Takeaways
- Section 22 of the Bail Act 2013 (NSW) requires an applicant convicted at trial, with a pending appeal, to establish "special or exceptional circumstances" before bail can be granted. This requirement operates despite the general risk-assessment framework in s 17, because s 22 is expressly stated to apply "despite anything to the contrary in this Act."
- The Court of Criminal Appeal confirmed that s 17(3)(i), which asks whether an appeal has a reasonably arguable prospect of success, does not lower the s 22 threshold. The two provisions operate in different domains.
- Arguability of appeal grounds alone falls well short of "special or exceptional circumstances." The applicable standard, drawn from Petroulias v R and Miles v R, requires significantly more than a merely arguable ground.
- A bail application is not a substitute for the final hearing of an appeal. Detailed analysis and weighing of contested evidentiary material, including fresh evidence, is not appropriate at the bail stage.
- Under s 71 of the Bail Act 2013, the Court is required to deal with bail applications as soon as reasonably practicable. Lengthy delay in determining an application reinforces the obligation to resolve it without further adjournment, even where the applicant seeks more time to supplement submissions.
Legislation and Cases Referenced
Legislation
- Bail Act 1978 (NSW), ss 9D, 22, 30AA
- Bail Act 2013 (NSW), ss 5, 17, 22, 61, 67, 71, 74, 76, Schedule 3
- Crimes (Appeal and Review) Act 2001 (NSW), Part 7
- Vexatious Proceedings Act 2008 (NSW)
Cases
- Miles v R [2012] NSWCCA 88
- New South Wales v Kable [2013] HCA 26; 87 ALJR 737
- Petroulias v R [2010] NSWCCA 95
- R v Wilson (1994) 34 NSWLR 1
- Potier v R [2006] NSWCCA 27
- Potier v R [2010] NSWCCA 234
- Potier v R [2011] NSWCCA 204
- Attorney General in and for the State of New South Wales v Potier [2014] NSWSC 118
- R v Potier [2014] NSWSC 131