Regina v Potier [2005] NSWCCA 256

New South Wales Court of Criminal Appeal

CITATION: Regina v Potier [2005] NSWCCA 256

HEARING DATE(S): 6 July 2005

JUDGMENT DATE: 6 July 2005

JUDGMENT OF: Grove J at 1; Howie J at 14; Rothman J at 15

DECISION: Application for bail refused

CATCHWORDS: CRIMINAL LAW AND PROCEDURE - LISTING BY APPLICANT IN PERSON OF MISCONCEIVED APPLICATION TO REVIEW BAIL - ORE TENUS APPLICATION ON HIS BEHALF BY COUNSEL FOR BAIL TO BE GRANTED - BAIL PENDING APPEAL - SPECIAL OR EXCEPTIONAL CIRCUMSTANCES NOT SHOWN - REFUSED ON MERITS - COMMENT ON UNDESIRABILITY OF ORIGINAL BAIL APPLICATIONS BEING MADE TO COURT OF CRIMINAL APPEAL

s 46 Bail Act 1978 LEGISLATION CITED: s 5F Criminal Appeal Act 1912

PARTIES: Regina v Malcolm Huntley Potier

FILE NUMBER(S): CCA 2002/2542; 2005/970

D. Frearson SC (Crown) COUNSEL: J. Conomos (Appearing Pro Bono)

SOLICITORS: S. Kavanagh (DPP)

LOWER COURT JURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S): 2001/3101

LOWER COURT JUDICIAL OFFICER: Johnson J

IN THE COURT OF CRIMINAL APPEAL 2002/2542

GROVE J HOWIE J ROTHMAN J

Wednesday 6 July 2005 REGINA v MALCOLM HUNTLEY POTIER Judgment 1 GROVE J: There is before the court an application for bail made by counsel appearing for the applicant, and who has appeared on a pro-bono basis. It is desirable to set out some history of how that application came to be made before the court today. 2 The applicant, then acting for himself, lodged two matters which were listed before the court. The second of these matters was an appeal, or rather an application for leave to appeal pursuant to s 5F of the Criminal Appeal Act 1912 concerning a refusal of Berman DCJ to grant a permanent stay of a trial presently fixed for hearing on 1 August next. That application is now not pressed. The other application expressed itself to be an application for review of a bail decision pursuant to s 46 of the Bail Act 1978. 3 Earlier this year the applicant had made an application for bail which was heard by Johnson J exercising the jurisdiction of the Supreme Court. Concurrently his Honour was asked to make orders in relation to production of material in respect of a pending appeal to this court and in so doing he was exercising the powers of a single judge sitting as the Court of Criminal Appeal pursuant to s 22 of the Criminal Appeal Act. It is plain however, that in dealing with the bail application he was sitting as a judge of the Supreme Court and, indeed, in his judgement he expressly stated that he was not sitting either as a trial judge or as the Court of Criminal Appeal. 4 The power of this court to review, set out in s 46, is to review a decision made by the court, however constituted, in relation to bail. Construction of the statute clearly demonstrates that that is a reference to the power of the court to review a decision made by this court itself, and, to the extent that the matter came before the court purporting to seek review of the bail decision made by Johnson J, sitting in the Supreme Court, it was misconceived. However, as I have indicated, counsel appearing now for the applicant, as there was a listing before the court and the applicant present, sought to make an application for bail. 5 There is no doubt that this court has explicit power to grant bail but it is limited to occasions where there is an appeal pending before the court or the other circumstances set out in s 30 of the Bail Act. There is in addition to the pending trial that I have mentioned, a pending appeal in this court following the conviction of the applicant some time ago on two counts of an indictment charging what I might call briefly, soliciting to murder. That conviction was followed by the lodgement of an appeal by the applicant and, alternatively, an application for leave to appeal against sentence. At the same time the Crown lodged an appeal seeking an increase in the sentence asserting that that imposed following trial was inadequate. 6 It is not necessary today to recite the long history of attempts to have the appeal brought on for hearing but it can be noted that eventually this court, differently constituted, heard the Crown appeal and the application for leave to appeal against sentence with the result that the applicant's initial sentence was increased. The appeal against conviction was struck out of the list with an indication that it could be restored when the applicant got the matter ready. There has now been fixed a date for hearing of that appeal before this court on 30 September next. 7 As the matter was listed before the court in the circumstances that I have related, this court has received submissions in support of the grant of bail without first ruling as to whether such an application ought be received. 8 Two matters were advanced on behalf of the applicant. In short, the first matter drew attention to the term of the indictment which pleaded that the applicant solicited an undercover police operative, with the assumed name of "M" to murder, respectively, two nominated intended victims. The assertion of the applicant is that the evidence at trial indicated that the actual perpetrator of the intended killing was not the undercover operative "M" but rather a person referred to as "Jacko". The submission is that the evidence does not support the indictment. 9 The second submission in support of bail today, has reference to the tender at trial of recorded telephone conversations said to be between the applicant and a woman named Conway (who had informed police concerning what she knew of the applicant's intention) and with the undercover operative "M". 10 The applicant has referred to the production of certain material which apparently relates to police investigations, some of which was said to have occurred during the course of trial but the ultimate submission is that the applicant wishes to substantiate a position that the recordings of these conversations have been doctored. 11 An application for bail pending the hearing of an appeal to this court is required by s 30AA of the Bail Act to have an applicant demonstrate that special or exceptional circumstances exist justifying the grant of bail. The two grounds which I have mentioned are so far short of indicating a high probability of success that in my view the barrier provided by s 30AA could not possibly be regarded as overcome. 12 That brings me back to the question as to whether this court should exercise its jurisdiction. It is unusual in the sense that this matter has been brought before the court on the misapprehension concerning s 46 that I have mentioned, and the applicant was later assisted by counsel. It seems to me that in that particular circumstance it is appropriate to receive the application but I would not wish it to be thought that in so doing that is an indication that it is appropriate for original bail applications to be brought before this court. There is ample facility for such matters to be heard by the allocated bails judge who sits daily in the Supreme Court. 13 As I have indicated, in my view the application is incapable of success and I propose that the application be refused. 14 HOWIE J: I agree. 15 ROTHMAN J: I agree. 16 GROVE J: The order of the court therefore is that the application for bail made today is refused. **********