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8
Court of Criminal Appeal 3 June 2015

Potier v R

[2015] NSWCCA 130

Public order & justice offences
CRIMINAL LAW PROCEDURE EXTENSION OF TIME TO APPEAL WHETHER LEAVE BE GRANTED CRIMINAL LAW APPEAL AGAINST CONVICTION SOLICIT TO MURDER

Citation: Potier v R [2015] NSWCCA 130
Court: Court of Criminal Appeal, New South Wales
Date: 3 June 2015
Judge(s): Ward JA (with whom Simpson J and Wilson J agreed)

Background

The appellant was convicted by jury in October 2006 of soliciting a fellow prison inmate to murder his former de facto partner. The alleged solicitation occurred in early 2002 while the appellant was on remand at Long Bay Gaol, awaiting sentence on an earlier conviction for two counts of soliciting to murder the same woman and her new partner. Those earlier offences had taken place in May 2000 when the appellant was held at the Villawood Detention Centre.

Both sets of offences involved recorded conversations. The 2000 conversations were captured on listening devices authorised by warrant, involving the appellant and an acquaintance who had contacted police, as well as an undercover police operative. The 2002 conversations were recorded on a device placed in a fellow inmate's cell. The authenticity of the recordings was disputed throughout both trials and remained a central issue on appeal.

The appellant filed his application to appeal the 2006 conviction in September 2014, nearly eight years out of time, making an extension of time a preliminary requirement before the substantive grounds could be considered.

  • Whether an extension of time to appeal the 2006 conviction should be granted
  • Whether the trial judge demonstrated actual or apprehended bias
  • Whether the trial judge made erroneous rulings, including on adjournment applications, access to material, bail, legal aid, and the conduct of the trial
  • Whether tendency and coincidence evidence (principally evidence of the 2000 convictions) was wrongly admitted
  • Whether the audio recordings were properly admitted and adequately addressed in the summing up
  • Whether the summing up contained material misdirections
  • Whether the conduct of defence counsel amounted to error affecting the conviction
  • Whether the prosecution failed to discharge its disclosure obligations
  • Whether the prosecution's conduct at trial was improper or unfair
  • Whether fresh evidence should be admitted on appeal

Decision

Extension of time and general grounds: Ward JA noted that although an extension of time was technically required, the substantive grounds had been fully argued and were addressed on the merits. None of the grounds was found to have merit, leading to the conclusion that the extension of time should be refused. Leave to appeal was nonetheless granted and the appeal dismissed.

Bias: The court found no basis for a finding of either actual or apprehended bias on the part of the trial judge. Complaints about the judge's conduct during the trial, including rulings on adjournments, the withdrawal of counsel, termination of legal aid, bail, and various evidentiary decisions, were each examined and found not to disclose error or the reasonable apprehension of bias.

Recordings and summing up: The admission of the audio recordings was upheld. The court found the trial judge's rulings on the recordings, including the conduct of the Basha inquiry and voir dire, disclosed no error warranting intervention. Complaints about the adequacy of the summing up, including the directions given in relation to the prior conviction evidence, were assessed and rejected. The court found that, taken as a whole, the summing up adequately directed the jury.

Prosecution conduct and non-disclosure: Various complaints about the prosecution's conduct, including alleged non-disclosure relating to the Telstra material, overlap in telephone conversations, inconsistent evidence about the recordings, and the Crown's discussion with a witness before cross-examination, were each considered and rejected. The court found none of these matters, individually or cumulatively, established a miscarriage of justice.

Fresh evidence: The application to admit three bundles of tapes and discs as fresh evidence was refused. The court found that the material could have been obtained with reasonable diligence before or during the second trial. The defence team was aware of the existence of the Telstra material and had access to the master tapes, and a notice to produce similar to one issued in 2008 could have been sought at a timely stage in trial preparation. In any event, the court found that admission of the further recordings would not have been likely to cause a jury to entertain a reasonable doubt, and the appellant had not established a significant possibility that a jury acting reasonably would have acquitted him with that material before it.

Orders Made

• Leave to appeal be granted
• Appeal dismissed
• Application to adduce fresh evidence refused

Key Takeaways

  • An extension of time to appeal will be refused where none of the substantive grounds of appeal has merit, even where the delay is substantial (here, approximately eight years).
  • Fresh evidence will not be admitted on a criminal appeal where the applicant fails to demonstrate that the material could not have been obtained with reasonable diligence before or during trial, particularly where the existence of the material was known to the defence team at the time.
  • A significant possibility that a jury acting reasonably would have acquitted the appellant is required before fresh evidence will be admitted; it is not sufficient to show merely that the evidence was unavailable.
  • Complaints about a trial judge's rulings on adjournments, legal representation, legal aid, and access to materials will not establish apprehended bias without a demonstrated foundation for a reasonable apprehension that the judge was not bringing an impartial mind to the proceedings.
  • Where tendency evidence in the form of a prior conviction for an identical offence is admitted, the adequacy of directions to the jury depends on the summing up considered as a whole, not isolated passages.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 26
- Evidence Act 1995 (NSW)
- Criminal Appeal Act 1912 (NSW)
- Criminal Appeal Rules (NSW)
- Bail Act 1978 (NSW)
- Legal Aid Commission Act 1979 (NSW)
- Police Act 1990 (NSW)
- Police Legislation Amendment (Civil Liability) Act 2003 (NSW)

Cases:
- Antoun v R [2006] HCA 2; (2006) 224 ALR 51
- Burrell v The Queen [2008] HCA 34; (2008) 238 CLR 218
- Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337
- Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292
- Gilbert v The Queen [2000] HCA 15; (2000) 201 CLR 414
- Grey v R [2001] HCA 65; (2001) 184 ALR 593
- House v The King [1936] HCA 40; (1936) 55 CLR 499
- Crofts v The Queen [1996] HCA 22; (1996) 186 CLR 427
- Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd [2006] HCA 55; (2006) 229 CLR 577
- Browne v Dunn (1893) 6 R 67 (HL)
- Potier v R [2006] NSWCCA 27
- R v Potier [2004] NSWCCA 136