R v Potier [2005] NSWCCA 336

New South Wales Court of Criminal Appeal

CITATION: R v Potier [2005] NSWCCA 336

HEARING DATE(S): 16 September 2005

JUDGMENT DATE: 16 September 2005

JUDGMENT OF: Basten JA at 29; Simpson J at 37; Buddin J at 1

DECISION: Application refused.

CATCHWORDS: Application by appellant for attendance of persons for examination at hearing of his appeal against conviction - one such person was a juror at the appellant's trial and the other was the Director of Public Prosecutions

LEGISLATION CITED: Jury Act 1977

R v Booth (1982) 8 A Crim R 4 R v K (2003) 59 NSWLR 431 R v Potier [2004] NSWCCA 136 R v Minarowska (1995) 83 A Crim R 78 CASES CITED: R v Rinaldi (1993) 30 NSWLR 605 R v Skaf (2004) 60 NSWLR 86 The Queen v Glennon (1992) 173 CLR 592 Webb v The Queen (1993-4) 181 CLR 41

Regina PARTIES: Malcolm Huntley Potier

FILE NUMBER(S): CCA 2005/3101

W Roser (Crown) COUNSEL: Applicant in person

S Kavanagh (Crown) SOLICITORS:

LOWER COURT JURISDICTION:

IN THE COURT OF CRIMINAL APPEAL 2001/3101

BASTEN JA SIMPSON J BUDDIN J

FRIDAY 16 SEPTEMBER 2005 R v MALCOLM HUNTLEY POTIER Judgment 1 BUDDIN J: The applicant seeks orders that two named persons be required to attend and give evidence at the hearing of his appeal against conviction which is listed to be heard on 30 September 2005. 2 It will be necessary to briefly sketch some background details in order to put the present application in context. In October 2001 the applicant was convicted of two counts of soliciting an undercover operative to murder his de facto wife, from whom he was separated, and her male companion. It appears that the applicant and his estranged partner were engaged in litigation concerning the custody of their daughter at the time of the commission of the offences which give rise to the present appeal. 3 Following the jury's verdicts the applicant was sentenced to a period of imprisonment. The applicant filed an appeal against conviction and an application for leave to appeal against the severity of the sentences imposed upon him. The Crown appealed against the inadequacy of those sentences. The matter has proceeded in a very leisurely fashion. On no fewer than three occasions the appeals were listed for hearing but vacated at the behest of the applicant. 4 When the matter came before this Court on 25 April 2004 the applicant, who was unrepresented at least in relation to the conviction appeal, was still not in a position to pursue the matter. The Court made orders in relation to the conviction appeal which did not then proceed. The Court did however hear and dispose of the sentence appeals. The applicant's appeal against the severity of the sentences imposed upon him were dismissed but the Crown appeal was allowed and the sentences increased: see R v Potier [2004] NSWCCA 136. 5 As I have said the applicant's appeal against conviction is now listed for hearing later this month. We were informed that the appellant has filed Grounds of Appeal and written submissions in support of his appeal. 6 In advancing one of those Grounds the applicant asserts that one of the jurors at his trial (who is a professional journalist) has written a book in which he details his experiences as a member of the jury. The juror is one of the two witnesses in respect of whom the applicant seeks the orders to which I earlier referred. For abundant caution I will not refer to the juror by name. 7 The book which is asserted by the applicant to have been written about his trial has been formally placed before us. I have read what is described as the Author's Note to the book. In it the author states that the identities of the other jurors have been preserved and the details of the case have been altered and fictionalised in order, I assume, to ensure that the particular trial in question cannot be identified. Moreover the author makes it plain that he is aware that he is prohibited from disclosing anything about the jury's deliberations. It seems to be common ground that the book in its original form was not published and that what was ultimately published has been the subject of some revision (although the extent of that revision may be a matter of some dispute). 8 The current application has been conducted by the parties upon the basis that the book was indeed written by one of the members of the jury who heard the applicant's trial. It is unnecessary in those circumstances for the Court to determine if that is in fact the case. Obviously enough, if it were not the case then the present application would inevitably fail. 9 In order to gain an understanding of what the applicant hopes to achieve in requesting the orders which he seeks, it is useful to refer to the following paragraphs of his written submissions. The applicant asserts: In the book the [the juror] changes very little from the central facts of the case as presented to the Jury. Particularly he considers the evidence as presented and his, and his fellow jurors reactions, to the evidence given to it together with their deliberations. I believe it is clear that [the juror] has breached his obligations as a Juror and has acted against the provisions of the Jury Act 1977 section 68B. It is my submission that [the juror] by his own actions has removed himself from the overall protection of the Jury Act and as such has laid himself open to questioning by me as to how the Jury considered the evidence against me. This is particularly relevant as, by reference to, my Grounds of Appeal Against Conviction filed in this Court certain evidence was allowed to be given to the Jury which was clearly hearsay and inadmissible. The book specifically refers to this evidence as being of significant probative value to the Jury in its deliberations. (pars 4-8) 10 It would of course be inappropriate for me to comment upon the merits of this, or indeed, any other Ground of Appeal. What can be said is that the applicant did not point to any passage in the book in support of his contention that the impugned evidence was regarded by the jury in its deliberations "as being of significant probative value". But even if there was material to that effect, the applicant would be able to rely upon it in support of whatever submissions he may wish to advance without the need for the author to give any further evidence about it. 11 Nevertheless the applicant is in my view confronted with a fundamental problem. 12 In R v Skaf (2004) 60 NSWLR 86 the Court said: Since as long ago as Lord Mansfield's judgment in Vaise v Delaval (1785) 1Term Rep 11; 99 ER 944 courts have refused to receive evidence from former jurors as to their deliberations in the jury room. That was a motion to set aside a verdict, upon an affidavit of two jurors who swore that a coin was tossed to break a deadlock. Lord Mansfield CJ said: "The Court cannot receive such an affidavit from any of the jurymen themselves, in all of whom such conduct is a very high misdemeanor: but in every such case the Court must derive their knowledge from some other source: such as from some person having seen the transaction through a window, or such by some other means." The principle is well established (see, for example, R v Rinaldi (1993) 30 NSWLR 605 at 610–611; R v Mirza [2004] 2 WLR 201; [2004] 1 All ER 925). The exclusionary rule is based on considerations of public policy that should inform decisions as to its scope and application (see generally R v Pan [2001] 2 SCR 344 at 373 [48]–[52]). The exclusionary principle is based on the need to promote full and frank discussion amongst jurors, to ensure the finality of the verdict, to protect jurors from harassment, pressure, censure and reprisals, and (to a degree) to maintain public confidence in juries. Consistent with this rationale, the rule of preclusion encompasses at least evidence about discussion amongst jurors in their deliberations as well as evidence from jurors as to their individual thought processes referable to the verdict in which they participated (cf Ellis v Deheer [1922] 2 KB 113 at 117–118; R v Mirza (at 218 [41]; 942 [41], 226 [76]; 950 [76], 233 [99]; 956 [99]. A very useful summation is offered by Arbour J in R v Pan (at 386 [77]): "In light of the above, in my view a proper interpretation of the modern version of Lord Mansfield's rule is as follows: statements made, opinions expressed, arguments advanced and votes cast by members of a jury in the course of their deliberations are inadmissible in any legal proceedings. In particular, jurors may not testify about the effect of anything on their or other jurors' minds, emotions or ultimate decision. On the other hand the common law rule does not render inadmissible evidence of facts, statements or events extrinsic to the deliberation process, whether originating from a juror or from a third party, that may have tainted the verdict." (pars 210-212) 13 See also R v Minarowska (1995) 83 A Crim R 78 and R v K (2003) 59 NSWLR 431.