Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Potier v The Responsible Officer, NSW State Parole Authority [2015] NSWCA 391 Hearing dates: 3 December 2015 Decision date: 03 December 2015 Before: Beazley P; Leeming JA Decision: 1. The summons filed 27 November 2015 and the notice of motion filed 27 November 2015 be dismissed with costs. Catchwords: APPEALS – application for leave – interlocutory application for criminal justice stay warrant – whether reasonable prospects of success – leave refused Legislation Cited: Crimes (Appeal and Review) Act 2001 (NSW), Pt 7 Crimes Act 1900 (NSW), s 474D Criminal Appeal Rules, r 50C Felons (Civil Proceedings) Act 1981 (NSW), s 4 Migration Act 1958 (Cth), ss 14, 151, 189 Supreme Court Act 1970 (NSW), s 23 Uniform Civil Procedure Rules, r 36.16 Cases Cited: Ah-See v Heilpern [2000] NSWSC 627 Application of Malcolm Potier [2015] NSWCCA 199 Bruce Edward Gall v R (No 2) [2015] NSWCCA 152 CSR Limited v Eddy [2005] HCA 64; 226 CLR 1 Lee v Minister for Immigration and Citizenship [2008] FCA 1023; 171 FCR 38 Potier v R [2014] NSWCCA 157 Potier v R [2015] NSWCCA 130 Potier v State of New South Wales [2014] NSWCA 359 Potier v The New South Wales State Parole Authority [2015] NSWSC 1775 Category: Principal judgment Parties: Malcolm Huntley Potier (Applicant) The Responsible Officer, NSW State Parole Authority (First Respondent) The Minister for the Department of Immigration and Border Protection (Second Respondent) The Commissioner for the Department of Corrective Services (Third Respondent) Representation: Counsel: Applicant in person Submitting appearance (First Respondent) A Markus (Second Respondent) AM Mitchelmore (Third Respondent) Solicitors: Crown Solicitor's Office (First and Third Respondent) Australian Government Solicitor (Second Respondent) File Number(s): 2015/349820 Publication restriction: Nil Decision under appeal Court or tribunal: Supreme Court Jurisdiction: Common Law Citation: [2015] NSWSC 1775 Date of Decision: 26 November 2015 Before: Hall J File Number(s): 2015/332753 [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] ex tempore Judgment 1. JUDGMENT of the COURT delivered by LEEMING JA: This is an application for leave to appeal from the interlocutory decision by the primary judge (Hall J) dismissing a notice of motion on 26 November 2015: Potier v The New South Wales State Parole Authority [2015] NSWSC 1775. The notice of motion sought the following orders: "(1) That the Court of its own Motion do receive and consider the Applicant's Information of the 18 November 2015. (2) That the Court do grant the Applicant a Warrant under section 151 of the Migration Act 1958 (Cth)". 1. It will be seen that the substantive order sought by Mr Potier is a warrant under s 151 of the Migration Act 1958 (Cth) ("the Act"). That section relevantly provides: "151 Certain warrants stay removal or deportation (1) If an unlawful non‑citizen is to be, or is likely to be, removed or deported, this Act does not prevent a court issuing for the purposes of the administration of criminal justice in relation to an offence against a law a warrant to stay the removal or deportation. (2) If a criminal justice stay warrant about a non‑citizen is in force, the non‑citizen is not to be removed or deported. …" 1. The applications before the primary judge, and in this Court, have been determined with extreme expedition, because the unchallenged evidence is that, unless a criminal justice stay warrant is issued, Mr Potier will be deported from this country in the next few days. 2. Mr Potier is a citizen of the United Kingdom, who lacks a visa entitling him to remain in Australia. He is therefore an "unlawful non-citizen" within the meaning of the Act: see s 14. That status potentially places Mr Potier within the scope of s 151. However, s 189 imposes obligations upon certain officers to detain him, and indeed although he has been granted parole, Mr Potier is presently in custody in Villawood Immigration Detention Centre. 3. Mr Potier has sought leave, if leave be required, pursuant to the Felons (Civil Proceedings) Act 1981 (NSW). Mr Potier is presently serving his sentence but has been granted parole. The fact that he is in custody by reason of his being an unlawful non-citizen does not engage the requirement to obtain leave in s 4 of that Act, which applies where a person is "in custody as a result of having been convicted of, or found to have committed, a serious indictable offence". 4. For many years previously, Mr Potier has been in prison serving sentences following his convictions on three charges of soliciting to murder. Mr Potier has, at all times, maintained his innocence, notwithstanding the guilty verdicts returned by two juries, and the dismissal of appeals against those convictions by the Court of Criminal Appeal. 5. The basis put forward by Mr Potier for obtaining a criminal justice stay warrant may be seen from the following passage in a document prepared by him in support of his application: "It is my intention to see the conclusion of all of my criminal appeals and enquiries both to the State of NSW and Commonwealth courts, for I have always, and still do now, proclaim my innocence and I believe it important that I be allowed to complete the process." Mr Potier elaborated on that orally in his address to this Court. 1. A highly abbreviated summary of the background is as follows. Mr Potier was tried and convicted of two counts of solicit to murder in 2002. His appeal to the Court of Criminal Appeal, and his application for special leave to appeal to the High Court, were dismissed. The sentence imposed for those offences has been wholly served. However, while in custody, Mr Potier was charged with a third count of solicit to murder. He was convicted of this offence in 2006, and sentenced to 12 years imprisonment, with a non-parole period of 7 years commencing 7 August 2006: Potier v State of New South Wales [2014] NSWCA 359 at [2]. His appeal against conviction was dismissed on 3 June 2015: Potier v R [2015] NSWCCA 130. It is a very substantial judgment of 598 paragraphs. Mr Potier has sought special leave to appeal from this judgment. That application appears not to have been determined. 2. In addition, Mr Potier has applied under r 50C of the Criminal Appeal Rules. Rule 50C was considered by the Court of Criminal Appeal in Bruce Edward Gall v R (No 2) [2015] NSWCCA 152. Hoeben CJ at CL said at [28] that: "Rule 50C is of limited application with an emphasis on correcting obvious mistakes in language used or results that did not reflect the intention of the Court." 1. Mr Potier also has made an application under either or both s 474D of the Crimes Act 1900 (NSW) (now repealed) and Pt 7 of the Crimes (Appeal and Review) Act 2001 (NSW) for an inquiry into his convictions. The details of those applications are not clear from the materials before the Court, although Mr Potier has informed the Court that they have not yet been determined. 2. The primary judge, sitting as the Duty Judge, gave a careful judgment, delivered very promptly two days after the matter was heard, setting out in some detail the procedural history of Mr Potier's criminal proceedings as well as the civil proceeding in which the notice of motion which had come before his Honour had been filed. Mr Potier accepted that he himself did not have standing to apply for such a warrant. His Honour accepted a submission by the Minister of Immigration and Border Protection that the Supreme Court did not have jurisdiction to issue a criminal justice stay warrant of its own motion. In reaching that conclusion, the primary judge noted that in Application of Malcolm Potier [2015] NSWCCA 199, the Court of Criminal Appeal had reached the contrary conclusion: at [56]. The primary judge formed the view that he was not bound by this aspect of the reasons of the Court of Criminal Appeal. His Honour said at [77]: "Whilst the Court of Criminal Appeal in Application of Malcolm Potier [2015] NSWCCA 199 proceeded on the basis that the Court of Criminal Appeal had jurisdiction under s 151 of the Act, I accept, as was submitted on behalf of the Minister, that that aspect of the decision is not binding on this Court, it does not form part of the ratio of the case. Further, the question of whether the Court had jurisdiction under s 151 was not addressed or argued in light of the relevant authorities: Written Submissions for the Minister at [24]. Unusually, as noted in those submissions there appears to have been no appearance for the Crown in those proceedings, Mr Potier appearing in person." 1. The primary judge also considered s 23 of the Supreme Court Act 1970 (NSW), but concluded that Mr Potier had failed to make out a case to establish that he had reasonable prospects in the proceedings instituted by him, which was necessary to support the exercise of the court's jurisdiction under that section: at [78]-[86]. At [85], his Honour said: "There is, in my opinion, an onus upon the plaintiff, in a case in which relief in the nature of a stay order is sought, to establish that he has reasonable prospects in the proceedings which have been instituted by him in this Court. That has not been established." 1. Mr Potier requires leave to appeal from what is plainly an interlocutory decision made by the primary judge. It may be acknowledged that there is a question whether what was said in the Court of Criminal Appeal about its jurisdiction under s 151 of the Migration Act was ratio or obiter dicta. On one view, it was the essential first step in the reasoning process, ultimately resulting in a rejection of Mr Potier's application. It is not necessary to express a concluded view on this point, because in any event, the primary judge was correct to proceed on the basis that his Honour was not bound by the Court of Criminal Appeal. There are at least two reasons for this. The first is that no appeal lies from the Common Law Division of the Supreme Court of New South Wales, exercising civil jurisdiction, to the Court of Criminal Appeal. As Bryson J said, when sitting in the Common Law Division in Ah-See v Heilpern [2000] NSWSC 627 at [38]: "The decision of the Court of Criminal Appeal is not strictly binding on a judge hearing an appeal under Pt 5 of the Justices Act 1902 because further appeal lies to the Court of Appeal and not the Court of Criminal Appeal: see Supreme Court Act 1970 s 101(1)(h). 'The essential basis for the observance of a decision by a tribunal by way of binding precedent is that that tribunal can correct the decisions of the court which is said so to be bound' per Barwick CJ in Viro v The Queen (1978) 141 CLR 88 at 93. See too Gibbs J at 120." That is not to deny that, as a matter of comity, a judge at first instance would ordinarily follow a decision of the Court of Criminal Appeal. 1. The second is that there was no contradictor, and no argument, on this question in the Court of Criminal Appeal, for which reason that Court appears not to have been taken to the decision of Lee v Minister for Immigration and Citizenship [2008] FCA 1023; 171 FCR 38, even though one aspect of the proceedings before the Court of Criminal Appeal was an appeal from a decision of Garling J in an earlier application which dealt with that decision: Potier v R [2014] NSWCCA 157. There is nothing to suggest, on the face of the reasons, that the Court of Criminal Appeal, which decided that appeal on the preliminary question of jurisdiction, was taken to that decision. 2. For those reasons, that part of the decision was not binding upon the primary judge: CSR Limited v Eddy [2005] HCA 64; 226 CLR 1 at [13]. 3. It is not necessary, for the purpose of determining this leave application, to express a concluded view on the questions of jurisdiction and power. Still less is it necessary to consider the more complex issues raised by the Minister's written submissions. 4. Either there was power to issue a criminal justice stay warrant or there was not. If there was not, then Mr Potier has no prospect of overturning the decision of the primary judge in an appeal. If, alternatively, there was power to issue a criminal justice stay warrant, then it remains necessary for Mr Potier to establish, at the least, a reasonable prospect that the power might be exercised in his favour. That would require overturning the conclusion drawn by the primary judge that Mr Potier had not established that he had reasonable prospects in the proceedings instituted by him. 5. In circumstances where Mr Potier has entirely exhausted his rights of appeal in relation to the first and second convictions, and, save for the possibility of an application for special leave, and a pending application under r 50C, has entirely exhausted his rights of appeal from the third conviction, no basis is shown for disturbing the decision of the primary judge. 6. Essentially the same submission was made to the Court of Criminal Appeal by Mr Potier, which considered in detail the undetermined application under r 50C, in [2015] NSWCCA 199 at [59]-[70], and concluded at [70]: "Having regard to the limited nature of a r 50C application and the material put forward by Mr Potier I consider that he has a minimal prospect of achieving a different outcome in his appeal. He, therefore, fails to show that any purpose of the administration of criminal justice requires his presence in this country." 1. In oral submissions, Mr Potier pointed to the administrative enquiry that was pending under Pt 7 of the Crimes (Appeal and Review) Act. That makes no difference to the outcome of this application for leave. Once again, this submission appears to have been made to the Court of Criminal Appeal, which said at [71]: "Mr Potier's reliance on his Pt 7 application is misconceived. Any enquiry conducted under this part is an administrative, not a judicial, function." 1. Mr Potier said that the prospects of the outcomes of his pending applications, both judicial and administrative, were "entirely speculative". But he has failed to establish any basis to depart from the assessment by the Court of Criminal Appeal earlier this year that they were "minimal", or otherwise to cast doubt upon the decision of the primary judge. It follows that there is no utility in granting leave to appeal, and the application for leave to appeal should be dismissed, with costs. 2. To the foregoing there is a qualification. Judgment on Mr Potier's r 50C application is to be delivered by the Court of Criminal Appeal this Friday. If the result of that judgment is such as to cause the appeal against conviction not to be dismissed, then the parties will be at liberty to apply to the Court pursuant to UCPR r 36.16 within the time limit there specified. 3. The orders therefore are that the summons filed 27 November 2015 and the notice of motion filed 27 November 2015 be dismissed with costs. ********** 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. Decision last updated: 08 December 2015