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Court of Criminal Appeal 3 August 2015

Application of Malcolm Potier

[2015] NSWCCA 199

Public order & justice offences
CRIMINAL LAW COURT OF CRIMINAL APPEAL JURISDICTION CRIMINAL JUSTICE STAY WARRANT OFFENDER UNLAWFUL NON CITIZEN

Citation: Application of Malcolm Potier [2015] NSWCCA 199
Court: Court of Criminal Appeal, New South Wales
Date: 3 August 2015
Judge(s): Hoeben CJ at CL, Davies J (principal judgment), Hamill J

Background

The applicant was a UK citizen who had been convicted in New South Wales on multiple counts of soliciting to murder. His convictions arose from alleged attempts to have his former partner and her new companion killed following the breakdown of a relationship and a bitter international family dispute. By the time of this application, he had been sentenced to substantial terms of imprisonment and had exhausted multiple appeal pathways, including unsuccessful special leave applications to the High Court.

The applicant was an unlawful non-citizen held in Australian custody on a visa that permitted his detention. He was aware that if released on parole, that visa would be cancelled and he would face deportation to the United Kingdom. He was also pursuing an outstanding appeal in the Court of Criminal Appeal against a later conviction, as well as other proceedings. His concern was that deportation would prevent him from effectively participating in those remaining proceedings.

Against that backdrop, the applicant sought to have the Court of Criminal Appeal issue a criminal justice stay warrant under section 151 of the Migration Act 1958 (Cth), a mechanism that can prevent the deportation of a person whose presence in Australia is required for the administration of criminal justice. An earlier application to a single judge of the Court had been dismissed, and the applicant then brought multiple further applications to the full bench.

  • Whether the Court of Criminal Appeal had jurisdiction to issue a criminal justice stay warrant under section 151 of the Migration Act 1958 (Cth) of its own motion.
  • Whether the applicant had standing to apply for such a warrant, given that a single judge had previously determined he did not.
  • Whether the applicant's remaining legal proceedings required his physical presence in Australia for the administration of criminal justice.
  • Whether the appeal from the single judge's refusal to issue the warrant was competent before the full bench of the Court of Criminal Appeal.
  • Whether the application for review of the State Parole Authority's decision should be entertained.

Decision

Davies J, with whom Hoeben CJ at CL and Hamill J agreed, confirmed that the applicant lacked standing to apply personally for a section 151 warrant. This had already been established by Garling J, and the applicant himself accepted that finding. Accordingly, the applicant reformulated his approach, urging the Court to exercise a power to issue the warrant of its own motion rather than on his application.

The Court accepted that it was at least arguable that such a power existed and proceeded to consider the substantive question: whether the administration of criminal justice genuinely required the applicant's presence in Australia. The Court assessed the prospects of each remaining proceeding said to justify the warrant, including the conviction appeal, an application under Rule 50C of the Criminal Appeal Rules, a Part 7 inquiry application, and the vexatious litigant appeal in the Court of Appeal.

The Court found those prospects to be minimal. The applicant's conviction appeal had already been dismissed. His Rule 50C application raised issues that had been comprehensively dealt with in the conviction appeal, and he had failed to identify specific errors of fact or law that might justify a different outcome. His Part 7 application was characterised as misconceived in this context, because any inquiry under that Part is an administrative function conducted by the Supreme Court, not the Court of Criminal Appeal, and could not ground a warrant in any event.

Having weighed all the material, Davies J concluded that the applicant had not discharged the evidentiary burden of demonstrating that his presence in Australia was required for the administration of criminal justice. The Court declined to issue the warrant.

Orders Made

  • The application to review the decision of the State Parole Authority was dismissed.
  • The application to appeal from the judgment of Garling J dated 15 August 2014 was dismissed.
  • The release application was dismissed and bail was refused.

Key Takeaways

  • A convicted offender who lacks standing to apply for a criminal justice stay warrant under section 151 of the Migration Act 1958 (Cth) may still invite the Court to act of its own motion, but faces a significant evidentiary burden to justify the exercise of that power.
  • Declining to issue the warrant, the Court of Criminal Appeal found that minimal prospects of success in remaining proceedings are insufficient to establish that the administration of criminal justice requires an offender's continued presence in Australia.
  • Under section 151 of the Migration Act, the purpose of the warrant mechanism is fulfilled by an application from a person appropriately representing the public interest in the administration of criminal justice, not from the offender personally.
  • A Part 7 inquiry under the Crimes (Appeal and Review) Act 2001 (NSW) is an administrative rather than judicial function, and is conducted by the Supreme Court rather than the Court of Criminal Appeal. The Court confirmed this distinction is relevant to whether such proceedings can ground a stay warrant in this jurisdiction.
  • Where an applicant fails to identify specific errors of fact or law in support of a further application, a court may draw the inference that no such specific errors exist and that the applicant is seeking to re-agitate matters already decided against them.

Legislation and Cases Referenced

Legislation:
- Migration Act 1958 (Cth), particularly section 151
- Criminal Appeal Act 1912 (NSW)
- Criminal Appeal Rules, particularly Rule 50C
- Crimes (Appeal and Review) Act 2001 (NSW)
- Vexatious Proceedings Act 2008 (NSW)
- Crimes Act 1900 (NSW)
- Bail Act 2013 (NSW)
- Uniform Civil Procedure Rules 2005 (NSW)

Cases:
- Potier v Regina [2014] NSWCCA 157 (Garling J, single judge decision below)
- R v Potier [2004] NSWCCA 136 (Crown appeal on sentence)
- Potier v R [2006] NSWCCA 27 (conviction appeal dismissed)
- Potier v The Queen [2013] HCATrans 207 (special leave dismissed)
- Attorney-General (NSW) v Potier [2014] NSWSC 118 (vexatious litigant declaration)
- Potier v Attorney-General in and for the State of New South Wales [2015] NSWCA 129
- Bruce Edward Gall v R (No 2) [2015] NSWCCA 152
- R v Abou-Chabake [2004] NSWCCA 356; (2004) 149 A Crim R 417
- Boatswain v State Parole Authority [2014] NSWSC 501