Potier v Regina [2006] NSWCCA 300

New South Wales Court of Criminal Appeal

CITATION: Potier v Regina [2006] NSWCCA 300

HEARING DATE(S): 13 September 2006

JUDGMENT DATE: 13 September 2006

JUDGMENT OF: Hunt AJA at [1]; Barr J at [1]; Johnson J at [1]

DECISION: Leave to appeal refused

CATCHWORDS: Unsuccessful application for adjournment of trial after legal representatives of accused granted leave to withdraw during trial - inference Judge drew, that the applicant was at fault for their departure, clearly open to Judge on material before him - applicant proposes to withdraw legal professional privilege and applies in s 5F appeal to call fresh evidence from counsel to negate that inference - procedure not appropriate in circumstances of this s 5F appeal - trial judge in far better position to consider the fresh evidence in the context of the trial as a whole - leave to appeal refused.

LEGISLATION CITED: Criminal Appeal Act 1912, s 5F

PARTIES: Malcolm Huntley Potier (Appellant) The Crown

FILE NUMBER(S): CCA 2006/2094

COUNSEL: Apellant in person T R Bailey (Crown)

SOLICITORS: Apellant in person Director of Public Prosecutions (Crown)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 05/11/0013

LOWER COURT JUDICIAL OFFICER: Shadbolt DCJ

LOWER COURT DATE OF DECISION: 7 September 2006

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IN THE COURT OF CRIMINAL APPEAL

CCA2006/2094 13 SEPTEMBER 2006

HUNT AJA BARR J JOHNSON J

POTIER v REGINA JUDGMENT 1 THE COURT: The applicant (Malcolm Huntley Potier) seeks to raise fresh evidence before this Court in support of his application pursuant to s5F of the Criminal Appeal Act 1912 for leave to appeal in relation to a number of matters, but principally against the decision of the trial Judge (Judge Shadbolt) refusing his application for an adjournment after his counsel and solicitor had been granted leave to withdraw from the trial. The adjournment was sought by the applicant for the purpose of retaining fresh legal representation in the trial, which is still continuing. 2 The fresh evidence which the applicant seeks to present is that of his counsel who had appeared for him in order to explain the reason for their departure, such evidence to be unconstrained by the legal professional privilege which the applicant has. The purpose of such evidence being to negate the inference which the Judge drew from the statements made to him by counsel under the constraint of that privilege. The inference which the Judge drew, which was clearly open to him on the material before him, was that the applicant was at fault for the departure of his counsel. 3 We do not accept that such a procedure would be appropriate in the circumstances of this s5F appeal, when it is open to the applicant to renew his application before the Judge with that fresh evidence to support it. If such an application is made to the Judge, we expect that the Judge would be in a far better position to consider the fresh evidence in the context of the trial as a whole, and to reconsider whether the obvious difficulties for an accused in the applicant's position in conducting the trial without is sufficient to warrant an adjournment or the abortion of the trial resulting from what is said to have been the Judge's incorrect inference at the trial — albeit based on the material before him — that the applicant was at fault 4 We therefore do not consider that a ground has been made out for the grant of leave, but we draw to the attention of the applicant the provisions of s 5F(6) of the Criminal Appeal Act which reads: If leave to appeal under this section is refused by the Court of Criminal Appeal, the refusal does not preclude any other appeal following a conviction on the matter to which the refused application for leave to appeal related. 5 By way of explanation, it is pointed out to the applicant that all the arguments he has put before us would be open for him to repeat before this Court in the event that he is convicted 6 Leave to appeal is refused. **********