Citation: Potier – Application for an inquiry into conviction pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 [2018] NSWSC 768
Court: Supreme Court of New South Wales
Date: 25 May 2018
Judge(s): Walton J
Background
The applicant was convicted by a jury in 2001 on two counts of soliciting to murder, contrary to s 26 of the Crimes Act 1900 (NSW). Following a successful Crown appeal against the original sentence, he was ultimately sentenced to 8 years and 8 months imprisonment in 2004. His convictions had already been the subject of multiple unsuccessful appeals before the Court of Criminal Appeal and a failed application to the High Court.
The central feature of the prosecution case was a series of recorded conversations between the applicant and an undercover police operative, and between the applicant and a civilian informant. In November 2008, the applicant obtained through a notice to produce what he described as the "original recordings," which included material not played to the jury at trial.
The applicant contended this material constituted "new evidence" that had not been disclosed before the 2001 trial. He argued it demonstrated that the recordings played to the jury were not genuine and had been altered or manufactured, and he sought a direction under s 79(1)(a) of the Crimes (Appeal and Review) Act 2001 (NSW) that an inquiry be conducted into his convictions.
Legal Issues
- Whether the material relied upon by the applicant gave rise to a "doubt or question" as to his guilt, or as to any part of the evidence at the 2001 trial, sufficient to engage the power under s 79(2) of the Crimes (Appeal and Review) Act 2001.
- Whether the recordings played to the jury had been altered or manufactured.
- Whether the Crown's non-disclosure of certain materials (including a phone account) raised any doubt or question about the convictions.
- Whether statements attributed to jurors in a published book could be taken into account.
- Whether the Court should separately exercise its discretion under s 79(3) to refuse the application on the basis that the matters raised had already received comprehensive judicial consideration.
Decision
Walton J refused the application. The threshold condition under s 79(2) requires that it "appear" there is a doubt or question as to the convicted person's guilt or as to any part of the evidence. The Court noted that this language is to be applied directly, without substituting the loosely framed "unease or disquiet" formulation that had appeared in older cases, following the Court of Appeal's direction in Sinkovich v Attorney General of New South Wales (2013).
On the recordings, the Court found no appearance of doubt or question. The applicant's contention that the recordings were altered or manufactured had already been thoroughly examined and rejected by the Court of Criminal Appeal on multiple occasions. The fact that additional portions of recording had not been played to the jury did not, in the Court's assessment, give rise to a genuine issue about the authenticity of the material that was tendered.
The Court also rejected the argument that the Crown's decision not to produce evidence of a particular phone account gave rise to doubt. Because the Crown case did not depend on calls being made from any particular phone, it was not obliged to lead such evidence. The applicant's representatives had been free to lead that evidence in support of the defence case and chose not to do so.
The applicant's reliance on a published book purportedly recording the concerns of a juror about the tapes was also rejected. The Court affirmed the position already taken by the Court of Criminal Appeal: it is not permissible to investigate the reasoning of the jury, whether directly or through any published account attributed to a juror.
Having found no doubt or question for the purposes of s 79(2), the Court considered it unnecessary to make a separate determination under s 79(3), although it acknowledged there was substance to the Crown's submission that the wide discretion in that subsection would independently have justified refusal, given the extensive prior judicial consideration of the same matters.
Orders Made
• The application that the Court direct that an inquiry be conducted into the 2001 convictions is refused.
Key Takeaways
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Under s 79(2) of the Crimes (Appeal and Review) Act 2001, the power to direct an inquiry is only enlivened where it "appears" there is a doubt or question as to the convicted person's guilt or as to any part of the evidence. The Supreme Court applied this statutory language directly, without resort to the older "unease or disquiet" formulation deprecated in Sinkovich.
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A s 78 application is an administrative act, not a judicial proceeding, and is not intended to provide a further avenue of appeal after ordinary avenues have been exhausted, nor an opportunity to re-run the trial on paper in pursuit of acquittal.
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The task under s 79 is tripartite: the court must address separately, where each arises, questions about guilt, mitigating circumstances, and the evidence. These are discrete components and not a single composite inquiry.
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Statements attributed to jurors in a published account cannot be taken into account in proceedings of this kind, consistent with the Court of Criminal Appeal's earlier ruling that investigation of a juror's reasoning is impermissible.
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Where matters raised in a s 78 application have already received comprehensive judicial consideration through prior appeals, s 79(3) provides an independent basis on which the Supreme Court may refuse to deal with the application, without needing to reach the s 79(2) threshold question.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), s 26
- Crimes (Appeal and Review) Act 2001 (NSW), ss 78, 79
Cases
- Application of Dunn [2005] NSWSC 857
- Application of Peter James Holland under s 78 Crimes (Appeal and Review) Act 2001 [2008] NSWSC 251
- Application of Visser (Newman J, 27 June 1994, BC9402667)
- Eastman v Director of Public Prosecutions (ACT) (2003) 214 CLR 318
- GAR v Attorney General of New South Wales (No 2) [2017] NSWCA 314
- Potier v Parole Authority of NSW [2016] NSWSC 39
- Potier v The Queen [2006] NSWCCA 27
- Potier v The Queen [2013] HCATrans 207
- Potier v The Queen [2015] NSWCCA 130
- R v Potier [2004] NSWCCA 136
- R v Emmett; R v Masland (1988) 14 NSWLR 327
- Richard John Sinclair Laws (No 2) (2000) 116 A Crim R 70
- Sinkovich v Attorney General of New South Wales (2013) 85 NSWLR 783; [2013] NSWCA 383
- Varley v Attorney General (NSW) (1987) 8 NSWLR 30