Citation: Application of Malcolm Potier (No. 2) [2015] NSWCCA 249
Court: Court of Criminal Appeal
Date: 14 September 2015
Judge(s): Hoeben CJ at CL, Davies and Hamill JJ
Background
The applicant had previously brought a number of applications before the Court of Criminal Appeal, all of which were dismissed on 3 August 2015. Shortly after that decision, he applied under rule 50C of the Criminal Appeal Rules to re-open the judgment.
Rule 50C provides a narrow jurisdiction to re-open a concluded appeal or application in limited circumstances. The applicant identified four grounds on which he contended the earlier decision was affected by error, including alleged mistakes of law and fact, an error in handling his bail application, and a complaint about how the Court had assessed the prospects of a related re-opening application.
The Court declined to permit further submissions beyond the applicant's short written material, given the nature of the r 50C jurisdiction and the material already before it.
Legal Issues
- Whether the Court made an error of law by declining jurisdiction to hear certain matters
- Whether the Court made an error of fact concerning who had sought deferral of the applicant's parole hearing
- Whether the Court erred in refusing the bail application in the absence of Crown representations
- Whether the Court erred in considering the likely prospects of a separate, concurrent r 50C application when exercising its discretion to issue a warrant under s 151 of the Migration Act 1958 (Cth)
Decision
Ground 1: Alleged mistake of law on jurisdiction
The applicant maintained that the Court of Criminal Appeal, as a division of the Supreme Court of NSW, had jurisdiction to hear all matters he placed before it. The Court had addressed this submission in the principal judgment. The Court found the applicant's submission was misconceived and that no error had been demonstrated (at [8]-[9]).
Ground 2: Alleged mistake of fact on parole deferral
The applicant challenged an observation in the principal judgment that he had previously persuaded the Parole Board to adjourn consideration of his parole. The Court noted that this observation was supported by the evidence and was, in any event, only a background fact rather than a material finding bearing on the outcome. Whether it was correct or not did not alter the determination made (at [10]-[11]).
Ground 3: The bail application
The applicant argued that if the Court had acknowledged bail could not be dealt with in the absence of Crown representations, it should not have refused the application. The Court clarified that the transcript showed the applicant himself had accepted that the bail application could not be dealt with because the documents he lodged had arrived too late for Crown representations to be arranged. No error arose from the refusal (at [12]-[15]).
Ground 4: Consideration of prospects in the related r 50C application
The applicant contended the Court had no business assessing the likely success of his related r 50C application when deciding whether to issue a warrant under s 151 of the Migration Act 1958 (Cth). The Court explained that the prospects of any alteration to the earlier judgment were a legitimate and significant factor in the exercise of its discretion whether to issue such a warrant. No error was demonstrated in that approach (at [16]-[17]).
Overall conclusion
None of the four grounds raised a matter appropriate for resolution under r 50C. Each amounted to an attempt to re-argue matters already considered in the principal judgment (at [18]).
Orders Made
- Application refused
Key Takeaways
- Rule 50C of the Criminal Appeal Rules does not permit an applicant to re-argue matters that were already considered and determined in the principal judgment (at [18]).
- Background or contextual factual observations in a judgment, as distinct from material findings, will not ground a r 50C application merely because their accuracy is disputed, where correcting them would not alter the outcome (at [10]-[11]).
- When exercising a statutory discretion to issue a warrant under s 151 of the Migration Act 1958 (Cth), the Court of Criminal Appeal may legitimately take into account the likelihood that the judgment underpinning the application will be altered on any re-opening (at [17]).
- A bail application cannot proceed in the absence of an opportunity for Crown representations, and an applicant's own acceptance of that procedural position at the hearing is determinative of any later complaint about the refusal (at [12]-[15]).
- Consistent with the principles affirmed in Gall v R (No 2) and Miller v R, the r 50C jurisdiction is narrow and does not function as a general mechanism for dissatisfied applicants to advance fresh or repeated arguments (at [5]-[6]).
Legislation and Cases Referenced
Legislation
- Migration Act 1958 (Cth)
Cases
- Application of Malcolm Potier [2015] NSWCCA 199
- Bruce Edward Gall v R (No 2) [2015] NSWCCA 152
- Miller v R [2015] NSWCCA 205
- Potier v R [2015] NSWCCA 130