New South Wales Court of Appeal CITATION : Potier v District Court of New South Wales & Anor [2004] NSWCA 303 HEARING DATE(S) : 26/08/04 JUDGMENT DATE : 26 August 2004 JUDGMENT OF : Ipp JA at 1; Tobias JA at 14; Wood CJatCL at 15 DECISION : Application dismissed with costs. CATCHWORDS : ADMINISTRATIVE LAW - Application for writ of certiorari to quash criminal convictions - Application for declaration that criminal trial was a nullity - Alleged non-disclosure by Crown of information relevant to the claimant's defence - Certiorari as a discretionary remedy - Relevance of alternative remedies - Where full rights of appeal available - Application dismissed. ND LEGISLATION CITED : Felons (Civil Proceedings) Act 1981 (NSW), s 4 CASES CITED : Clarkson v The Director of Public Prosecutions [1990] VR 745 Richards v Smyth (unreported, NSWCA, 24 December 1985) Malcolm Huntley Potier (Claimant) PARTIES : District Court of New South Wales (First Opponent) Director of Public Prosecutions (NSW) (Second Opponent) FILE NUMBER(S) : CA 40492/04 In Person (Claimant) COUNSEL : No Appearance (First Opponent) P Power (Second Opponent) SOLICITORS : I V Knight, Crown Solicitor (First Opponent) S C Kavanagh (DPP, NSW) (Second Opponent) LOWER COURT District Court JURISDICTION : LOWER COURT 00/21/3216 FILE NUMBER(S) : LOWER COURT Hosking DCJ JUDICIAL OFFICER : IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40492/04 DC 00/21/3216 IPP JA TOBIAS JA WOOD CJ at CL Thursday, 26 August 2004 MALCOLM HUNTLEY POTIER v DISTRICT COURT OF NEW SOUTH WALES & ANOR Judgment 1 IPP JA: On 19 September 2001 the claimant was arraigned in the District Court on two charges of solicit to murder. On 16 October 2001 the jury returned verdicts of guilty in respect of each charge. The claimant was sentenced to six years eight months imprisonment from 8 May 2000 (expiring on 7 January 2007) with a non-parole period of five years (expiring on 7 May 2005). 2 The claimant appealed to the Court of Criminal Appeal against his convictions and sentences. His appeal against sentence was heard on 21 April 2004 and judgment was then reserved. On that date his conviction appeal was adjourned to a date to be fixed dependent upon his certifying to the Court that he was ready to proceed. 3 The claimant now applies to the Court of Appeal for prerogative relief. He seeks the issuing of a writ of certiorari to quash his convictions. He also seeks a declaration that his criminal trial was a nullity. 4 In support of his application, the claimant asserts that certain information relevant to his defence came into the possession of the Crown Prosecutor and the Crown Solicitor as well as to an investigating police officer prior to the trial, and this information was not disclosed to him. 5 Relying on Clarkson v The Director of Public Prosecutions [1990] VR 745, the claimant argues that the failure of the prosecution and police to provide the information in question to him at his trial constituted a denial of natural justice and so rendered his trial a nullity as being in excess of jurisdiction. It is on this basis that he contends that a writ of certiorari should issue. 6 There are, however, several serious problems attendant upon this application. These include the jurisdiction of this Court, the fact that the claimant's appeal on conviction is still pending and has not been heard, and the fact that the application is not supported by affidavit but merely by assertions. Coupled with the latter aspect is the strength of the merits of his case. A further factor is that the claimant needs to obtain leave to proceed under s 4 of the Felons (Civil Proceedings) Act 1981 (NSW). 7 I will not express a concluded view as to the jurisdiction of this Court. In this regard see Richards v Smyth (unreported, NSWCA, 24 December 1985). 8 Certiorari is a discretionary remedy. In exercising this discretion, it is relevant to consider what alternative remedies are available to an applicant. As mentioned, the claimant's appeal on conviction is pending in the Court of Criminal Appeal. Control of that appeal is in the hands of the claimant himself. For whatever reason, that appeal has not progressed since the Court made its order on 21 April 2004. Unlike the claimant in Richards v Smyth, the claimant in the present case is presently in prison on long term imprisonment. There is no potential significant loss of liberty involved should this Court decline to exercise jurisdiction (other than that ordinarily involved in the system of administration of criminal justice). 9 The claimant has full rights of appeal available to him as arise from his appeal pending before the Court of Criminal Appeal. He can raise before the Court of Criminal Appeal all the points he now wishes to raise, provided he lays the evidentiary basis for them and obtains leave to do so. 10 The claimant suggested in argument this morning that all he needed to raise before this Court was an arguable case, whereas there was a stricter test before the Court of Criminal Appeal. In this, he misunderstands the proceedings for prerogative relief. An arguable case may be the requirement for an issue of a rule nisi for the issuing of a writ but not for final relief. The claimant would be in no worse position before the Court of Criminal Appeal than he is now. 11 There is no doubt that, if this Court does have prerogative jurisdiction, an issue on which I express no opinion, that jurisdiction should be exercised with great caution (Richards v Smyth) and only where there are special circumstances. Should that jurisdiction exist, I see no reason for this Court to exercise it in the present case. 12 I would add that the claimant has difficulties in establishing the evidentiary basis of the merits of his claim. I do not think that it is desirable that I express any further opinion on this aspect of the matter as it remains open for the claimant to raise the same issues that he has raised before this Court before the Court of Criminal Appeal. I would simply add that he would be well advised to obtain proper evidentiary support for his allegations. 13 In all the circumstances, I would dismiss the application with costs. 14 TOBIAS JA: I agree. 15 WOOD CJ at CL: I also agree. 16 IPP JA: That will be the order of the Court. ********** Last Modified: 11/08/2006 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.