R v Potier [2001] NSWCCA 404

New South Wales Court of Criminal Appeal

CITATION : R v Potier [2001] NSWCCA 404 FILE NUMBER(S) : CCA 60629/01 HEARING DATE(S) : 5 October 2001 JUDGMENT DATE : 5 October 2001

PARTIES : Regina v Malcolm Huntley Potier JUDGMENT OF : Wood CJ at CL at 18; Studdert J at 1; Bell J at 19

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 00/21/3216 LOWER COURT JUDICIAL Hosking DCJ OFFICER :

COUNSEL : D.U. Arnott (Crown) In person (Applicant) SOLICITORS : S.E. O'Connor (Crown)

LEGISLATION CITED : Criminal Appeal Act Crimes Act R v Groves (unreported, NSWCCA, 2 April 1990) Sergi v DPP (unreported, NSWCA, 10 September 1991) CASES CITED: R v Powch (1988) 14 NSWLR 136 R v Edelsten (1989) 18 NSWLR 213 R v Steffan (1993) 30 NSWLR 633 DECISION : Appeal refused.

IN THE COURT OF CRIMINAL APPEAL 60629/01 WOOD CJ at CL STUDDERT J BELL J

Friday 5 October 2001 REGINA v MALCOLM HUNTLEY POTIER

JUDGMENT 1 STUDDERT J: This is an application pursuant to s 5F of the Criminal Appeal Act . An indictment has been presented against the applicant in the District Court charging him with two counts of solicit to murder in contravention of s 26 of the Crimes Act . The applicant pleaded not guilty to those offences when arraigned before his Honour Judge Hosking SC on 19 September 2001. Following arraignment his Honour made rulings announced on 19 September but for which reasons were given on 25 September on various matters raised on the voir dire. Those rulings prompt the present application. 2 Whilst the applicant is legally represented at his trial, he appears in person before this Court on the present application. The trial judge granted no certificate under s 5F(3)(b) of the Criminal Appeal Act so that the applicant requires leaves of this Court to appeal under s 5F(3)(a), and the question as to whether leave should be granted is the threshold consideration. 3 The applicant has expressed the nature of the relief which he here seeks as follows: "1. That the evidence obtained by the actions of the police be excluded from the trial and that the indictment be stayed. 2. That the jury be only given the original tapes of the alleged conversations between the accused and the undercover police operative." 4 The undesirability of interrupting and/or fragmenting the criminal trial procedure has been emphasised by this court and appeals under s 5F are to be kept within strict confines: see R v Groves (unreported, NSWCCA, 2 April 1990). See also: Sergi v DPP (unreported, NSWCA, 10 September 1991) and in particular the judgment of Kirby P at pp 7-8. 5 As the expression of the grounds of the present application above set out indicates, the applicant seeks to challenge the decision of the trial judge as to the admissibility of evidence at the applicant's trial now proceeding. 6 It is desirable to refer very briefly to the nature of the Crown case. It is alleged that the applicant solicited a person to murder his former de facto wife and her then current partner. There was a child born of the applicant's relationship with his former de facto wife and since the breakdown of that relationship there has been litigation concerning the custody of the child. Indeed, Family Law Court proceedings were pending in this State between the applicant and his former partner in May 2000. The Crown alleges that between 2 May and 8 May 2000 the applicant solicited an undercover police officer "M" to murder the child's mother and her current partner. 7 On the Crown case, "M" had two meetings with the applicant on 2 May 2000 and on 8 May 2000. Additionally there were two telephone conversations between the two men within that period. When "M" visited the applicant he wore a concealed listening device which recorded the conversations. The two telephone conversations were also recorded. It is to be noted that his Honour found that the telephone intercepts and the recordings of the face to face conversations were authorised by appropriate warrants. 8 In proceedings on the voir dire, the applicant sought rulings from the trial judge that the evidence of "M" ought be excluded at the trial upon the basis that such evidence was unlawfully or improperly obtained. The applicant also sought the exclusion from evidence of what the Crown claimed to be transcripts of the conversations that took place between the applicant and "M" on the four occasions in question. The recordings were of poor quality and for this reason it was submitted it was unfair to the applicant that transcripts of such recordings be provided for the consideration of the jury. The rulings on these matters were unfavourable, and hence the application presently before this Court. 9 This Court has before it the transcript of the rulings made on 19 September 2001 and the transcript of the reasons expressed by the trial judge for such rulings on 25 September 2001. There can be no question but that his Honour's decision concerned rulings by him as to the evidence he intended to allow to be introduced before the jury at the trial. The decision which the applicant here wishes to challenge cannot be categorised in any other way. 10 Contrary to the applicant's submissions, I do not consider it to be appropriate for this Court to entertain now an appeal under s 5F of the Criminal Appeal Act as to the correctness of the rulings made by the trial judge. 11 Section 5F(3) affords opportunity for appeal "against an interlocutory judgment or order given or made in the proceedings" . There is no definition of "interlocutory judgment or order" in the Criminal Appeal Act . The applicant has submitted before this Court that the judge has made an interlocutory judgment or order for the purposes of the statute. However, it is now well settled by authority that a ruling on evidence whether made in advance of, or indeed in the course of a trial, is not an interlocutory judgment or order within the meaning of s 5F of the Criminal Appeal Act. 12 In R v Powch (1988) 14 NSWLR 136, it was held by this court that a ruling by a judge during the course of a criminal trial that a witness should not be recalled for further cross examination was one concerning a matter of procedure, being akin to a ruling on evidence, and that it did not come within the expression "interlocutory judgment or order" for the purposes of s 5F. 13 Then in R v Edelsten (1989) 18 NSWLR 213 a ruling as to the admissibility of evidence of tape recordings given in advance of the trial was determined not to be an interlocutory judgment or order for the purposes of s 5F. However, it is to be observed that in Edelsten the judge who gave the ruling was not the trial judge but a judge who was asked to give a ruling in advance of the trial. 14 In Groves (supra), in a joint judgment of this court, reference was made to the earlier decisions in Powch and Edelsten and the court said (at p 14): "As the decisions in Edelsten and Powch show, appeals under s 5F are to be kept within strict confines. This court should be slow to permit these decisions to be watered down by allowing parties to pursue as grounds for stay proceedings matters which are more properly the subject of rulings or decisions in the trial and are amenable to appeal under s 5." 15 In R v Steffan (1993) 30 NSWLR 633, in a joint judgment of this court, a comprehensive review of the authorities as to the application of s 5F was undertaken and the court concluded (at 639): "Accordingly, in our opinion, a ruling on evidence made in advance of or in the course of the trial, in either the Supreme Court or the District Court, is not an interlocutory judgment or order within the meaning of s 5F of the Criminal Appeal Act." 16 In my opinion, consistently with the above authorities, the rulings now sought to be challenged are not properly to be regarded as interlocutory judgments or orders for the purpose of s 5F so as to enliven the jurisdiction of this Court in the way in which the Court is asked to deal with this matter. It is not for this Court, during the course of the trial, to review rulings on evidence made by the trial judge. 17 Accordingly, I consider that leave to appeal should be refused and that is the order I propose. 18 WOOD CJ at CL: I agree. 19 BELL J: I also agree. 20 WOOD CJ at CL: The order of the Court will therefore be as Studdert J has proposed. **********