Citation: Application of Malcolm Potier (No 3) [2015] NSWCCA 306
Court: Court of Criminal Appeal of New South Wales
Date: 4 December 2015
Judge(s): Ward JA; Simpson JA; Wilson J
Background
The applicant had been convicted in 2006 of soliciting murder, contrary to s 26 of the Crimes Act 1900 (NSW). In June 2015, the Court of Criminal Appeal granted him leave to appeal against that conviction but dismissed the appeal on its merits (the "principal judgment"). The principal judgment addressed extensive written submissions from the applicant across a range of issues, including the authenticity of audio recordings, the admissibility of certain telephone records, alleged judicial bias at trial, and the admission of prior conviction evidence.
Shortly after the appeal was dismissed, the applicant filed an application under r 50C of the Criminal Appeal Rules seeking to re-open the Court's decision. He identified a list of alleged mistakes of fact and law, spanning virtually every major issue that had already been argued and determined on the appeal. This was, notably, the applicant's second r 50C application: an earlier application concerning a different decision had already been dismissed in September 2015.
Legal Issues
- Whether r 50C of the Criminal Appeal Rules confers jurisdiction on the Court of Criminal Appeal to re-examine the merits of a completed appeal
- Whether any of the applicant's identified complaints amounted to a genuine mistake of fact or law falling within the scope of the r 50C power
- Whether internal inconsistencies or errors were identifiable in the principal judgment of the kind r 50C is designed to correct
Decision
The Court confirmed the limited scope of r 50C. Although the rule is framed in broad terms, it does not authorise a court to re-hear the merits of an appeal that has already been determined. Its proper function is to enable a court to correct obvious mistakes and to ensure its orders accurately reflect its intention at the time of decision. A mere assertion that a concluded finding was wrong does not engage the jurisdiction.
On each of the specific complaints advanced, the Court found no misapprehension of fact or law within that limited jurisdiction. The complaint that the Court had misread the applicant's defence concerning the audio recordings was rejected: the principal judgment had not suggested the applicant denied that conversations took place, but rather that a denial would have been inconsistent with the defence he had actually run. The complaint that Ward JA could not have listened to the 2 February 2002 recording because it was blank was also rejected, consistent with the Court's earlier treatment of that recording in the principal judgment.
The remaining complaints, including those relating to alleged judicial bias, the admission of prior conviction evidence, and the proper application of High Court authority, were likewise found to be attempts to re-agitate matters already considered and determined on the appeal. The Court observed that the appropriate avenue for challenging conclusions reached by this Court is an application for special leave to appeal to the High Court of Australia, not a r 50C application.
The Court declined to find that any misapprehension of fact or law had affected its consideration of the conviction appeal, meaning the secondary question from Kauwenberghs v R (Cth) [2009] NSWCCA 201, namely whether any such misapprehension was material to the outcome, did not arise.
Orders Made
- The applicant's r 50C application was dismissed.
- No order was made varying the judgment and orders of 3 June 2015.
Key Takeaways
- Rule 50C of the Criminal Appeal Rules does not permit the Court of Criminal Appeal to revisit the merits of a completed appeal; it operates only to correct obvious mistakes or to ensure orders properly reflect the Court's intention at the time they were made.
- A bare assertion that a court reached the wrong conclusion on a contested issue is insufficient to engage the r 50C jurisdiction; a genuine, identifiable misapprehension of fact or law, distinct from a disagreement with the outcome, is required.
- Where an applicant seeks to challenge the conclusions of the Court of Criminal Appeal, the Court of Criminal Appeal itself confirmed that the correct avenue is an application for special leave to appeal to the High Court of Australia.
- No misapprehension having been established, the question of whether any such misapprehension was material to the outcome (as posed in Kauwenberghs v R) did not need to be addressed.
- In dismissing the application, the Court reinforced that the r 50C power is not a mechanism for convicted persons to obtain a second hearing of grounds already argued and rejected.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), s 26
- Criminal Appeal Act 1912 (NSW), s 6(1)
- Criminal Appeal Rules, r 50C
Cases
- Application of Malcolm Potier (No. 2) [2015] NSWCCA 249
- Attorney General in and for the State of New South Wales v Potier [2014] NSWSC 118
- Browne v Dunn (1893) 6 R 67 (HL)
- Bruce Edward Gall v R (No 2) [2015] NSWCCA 152
- Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337
- Golden Eagle International Trading Pty Ltd v Zhang [2007] HCA 15; (2007) 229 CLR 498
- Kauwenberghs v R (Cth) [2009] NSWCCA 201
- Miller v R [2015] NSWCCA 205
- Omychund v Barker (1744) 1 Atk 21
- Potier v R [2015] NSWCCA 130
- R v Abou Chabaka [2004] NSWCCA 356; (2004) 149 A Crim R 417
- R v Birks (1990) 19 NSWLR 677
- Whisprun Pty Ltd v Dixon [2003] HCA 48; (2003) 200 ALR 447