Law Article by: Geoff Harrison | Sydney Criminal Barrister | Sydney Criminal Lawyer | Published 31/05/2012
The test in relation to bias or whether a judicial officer should disqualify him/herself from hearing a matter has been phrased in a number of different ways. However, the test is essentially whether a fair minded person observing the proceedings with knowledge of the factual background would apprehend that the judicial officer could not bring an impartial and unprejudiced mind to the issues before the court.
An example of where this was raised albeit unsuccessful is set out below.
Potier v R  NSWCCA 130 (3 June 2015)
Court of Criminal Appeal
New South Wales
|Case Name:||Potier v R|
|Medium Neutral Citation:|| NSWCCA 130|
|Hearing Date(s):||10 November 2014|
|Date of Orders:||3 June 2015|
|Decision Date:||3 June 2015|
|Before:||Ward JA at ;
Simpson J at ;
Wilson J at 
|Decision:||1.Leave to appeal is granted.
2.The appeal is dismissed.
|Catchwords:||CRIMINAL LAW – procedure – extension of time to appeal – whether leave be granted
CRIMINAL LAW – appeal against conviction – solicit to murder –- bias – whether actual bias – whether apprehended bias - trial judge’s discretion to admit evidence – tendency and coincidence evidence – evidence of prior conviction of solicit to murder – audio recordings – adequacy of summing up – rulings at trial - conduct of defence at trial – conduct of Crown at trial – duty of disclosure – conduct of defence counsel
CRIMINAL LAW – appeal against conviction – application to adduce fresh evidence
|Legislation Cited:||Bail Act 1978 (NSW)
Crimes Act 1900 (NSW)
Criminal Appeal Act 1912 (NSW)
Criminal Appeal Rules (NSW)
Evidence Act 1995 (NSW)
Legal Aid Commission Act 1979 (NSW)
Police Act 1990 (NSW)
Police Legislation Amendment (Civil Liability) Act 2003(NSW)
|Cases Cited:||Antoun v R  HCA 2; (2006) 224 ALR 51
Barron v A-G (NSW) (1987) 10 NSWLR 215
Browne v Dunn (1893) 6 R 67 (HL)
Burrell v The Queen  HCA 34; (2008) 238 CLR 218
Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd  HCA 55; (2006) 229 CLR 577
Cooley v Western Australia  WASCA 160; (2005) 155 A Crim R 528
Cornwell v R  NSWCCA 59
Crofts v The Queen  HCA 22; (1996) 186 CLR 427
Dietrich v The Queen  HCA 57; (1992) 177 CLR 292
Director of Public Prosecutions (NSW) v Burns  NSWCA 265; (2010) 207 A Crim R 362
Ebner v Official Trustee in Bankruptcy  HCA 63; (2000) 205 CLR 337
Enever v R  HCA 3; (1906) 3 CLR 969
Fibre-Tek (Gold Coast) Pty Ltd v Skye Bennett  NSWSC 1100
Gardiner v R  NSWCCA 190; (2006) 162 A Crim R 233
George v Fletcher (Trustee)  FCAFC 148
Gilbert v The Queen  HCA 15; (2000) 201 CLR 414
Grey v R  HCA 65; (2001) 184 ALR 593; 75 ALJR 1708
Grierson v The King  HCA 45; (1938) 60 CLR 431
Heidt v Chrysler Australia Ltd (1976) 26 FLR 257
House v The King  HCA 40; (1936) 55 CLR 499
HSBC Bank Australia Ltd v Murtough  NSWSC 320
International Relief and Development Inc v Ladu  FCA 1216
Jago v District Court of New South Wales  HCA 46; (1989) 168 CLR 23; (1989) 41 A Crim R 307
Johnson v Johnson  HCA 48; (2000) 201 CLR 488
Lewis v Spencer  NSWSC 1383; (2007) 179 A Crim R 48
Mallard v R  HCA 68; (2005) 224 CLR 125
Micallef v ICI Australia Operations Pty Ltd  NSWCA 274
Michael Wilson & Partners Ltd v Nicholls  HCA 48; (2011) 282 ALR 685
Minister for Immigration and Multicultural Affairs v Jia Legeng  HCA 17; (2001) 205 CLR 507
Najjar v Haines (1991) 25 NSWLR 224
Nominal Defendant v Gabriel  NSWCA 52; (2007) 71 NSWLR 150
Pfennig v The Queen  HCA 7; (1995) 182 CLR 461
Potier v R  NSWCCA 27
Potier v R  NSWCCA 300
Potier v The Queen  HCA Trans 207
Qing An v R  NSWCCA 53
R v Abou-Chabake  NSWCCA 356; (2004) 149 A Crim R 417
R v Bartle  NSWCCA 329
R v Basha (1989) 39 A Crim R 337
R v Birks (1990) 19 NSWLR 677
R v Brown (Winston)  UKHL 33;  AC 367
R v Commonwealth Conciliation and Arbitration Commission; Ex parte The Angliss Group  HCA 10; (1969) 122 CLR 546
R v Courtney-Smith (No 2) (1990) 48 A Crim R 49
R v Ellis  NSWCCA 319; (2003) 58 NSWLR 700
R v Fletcher  NSWCCA 338; (2005) 156 A Crim R 308
R v Glennon  HCA 16; (1992) 173 CLR 592
R v Glover (1987) 46 SASR 310
R v Greer (1992) 62 A Crim R 442
R v Keane  2 All ER 478;  1 WLR 746
R v Lipton  NSWCCA 247; (2011) 82 NSWLR 123
R v Livingstone  NSWCCA 407; (2004) 150 A Crim R 117
R v Orchard  NSWCCA 342
R v Potier  NSWCCA 136
R v Reardon  NSWCCA 197; (2004) 60 NSWLR 454
R v Sandford (1994) 33 NSWLR 172; (1994) 72 A Crim R 160
R v Spiteri  NSWCCA 321; (2004) 61 NSWLR 369
R v Ulman-Naruniec  SASC 437; (2003) 143 A Crim R 531
R v Watson; Ex parte Armstrong  HCA 39; (1976) 136 CLR 248
Rajski v Scitec Corporation Pty Ltd  NSWCA 1
Re Barbara Ann Cameron and Gamester Pty Ltd v Rural Press Ltd; John Lindsay Parker and Timothy Roy Starkey  FCA 157; (1992) 35 FCR 211
RG v R  NSWCCA 173
Samadi v R  NSWCCA 330; (2008) 192 A Crim R 251
Setka v Gregor  FCAFC 64
Spencer v Bamber  NSWCA 274
State of New South Wales v Fahy  NSWCA 64; (2006) Aust Torts Reports 81-865
Vakauta v Kelly  HCA 44; (1989) 167 CLR 568
Webb v R  HCA 30; (1994) 181 CLR 41
Williams v The Queen  FCA 1868; (2000) 119 A Crim R 490
|Texts Cited:||Sheppard “Communications With Witnesses Before and During Their Evidence” (1987) 3 Australian Bar Review 28|
|Parties:||Malcolm Huntley Potier (Applicant)
Mr M Potier (Applicant in person)
Mr N Adams (Respondent)
Solicitor for Public Prosecutions (Respondent)
|Decision under appeal:|
|Court or Tribunal:||District Court of New South Wales|
|Date of Decision:||13 November 2006|
|JUDGMENT – WARD JA|||
|First Trial and 2002 offence|||
|Determination of appeals regarding 2000 offences|||
|Application to adduce tendency and coincidence evidence|||
|Conduct of second trial|||
|The “Telstra material”|||
|Production of the original 2000 recordings|||
|Summary of submissions as to the Conway recordings|||
|Summary of submissions re “M” recordings|||
|2 May 2000 meeting|||
|4 May 2000 telephone conversation|||
|5 May 2000 telephone conversation|||
|8 May 2000 meeting|||
|General complaint as to quality of recordings|||
|2 February 2002 recording|||
|6 February 2002 recording|||
|Summary of position re the Telstra material and the recordings|||
|Submissions in the present proceedings|||
|Preliminary Ground of Appeal|||
|Grounds of Appeal|||
|Ground 3 – Judge’s rulings; Ground 4 - Bias|||
|Adjournment Applications and the like|||
|Withdrawal of Mr Terracini SC on 3 August 2006|||
|Denial of right to consult and instruct counsel|||
|Mr Healey’s withdrawal – 7 September 2006|||
|Termination of legal aid|||
|Access by Mr Potier to material|||
|Refusal to discharge jury|||
|Refusal to disqualify for bias|||
|Manner of withdrawal of Counsel on 7/9/06|||
|Further questions on Carlos issue|||
|Rulings re witnesses/cross-examination|||
|Cross-examination of A|||
|Public Interest Immunity|||
|Browne v Dunn|||
|Rulings/statements re audio recordings|||
|Basha enquiry/provisional admission of audio recordings|||
|Voir dire re tape recordings|||
|Particular complaints as to statements made in summing up|||
|Refusal to accede to request for correction of statements in summing up|||
|Conclusion as to complaints re summing up|||
|Directions in relation to evidence of prior conviction|||
|Conclusion as to Grounds 3 & 4|||
Ground 1 – First Conviction not sustainable
Ground 2 – Admission of recordings
Ground 5 – Defence Team Legal Conduct
Ground 6 – Non-disclosure
Ground 7 – Respondent’s conduct
|Overlapping telephone conversations|||
|Intention to use recorded conversations in sentencing hearing|||
|Inconsistent evidence as to the two sets of recordings|||
|Pursuing second prosecution on an “infirm” basis|||
|Discussion with Ms Conway before her cross-examination|||
|Disparity in funding re witnesses|||
|Disquiet as to investigation/conviction|||
|Ground 8 – New Evidence|||
- WARD JA: Mr Potier was convicted in October 2006 of an offence of solicit to murder contrary to s 26 of the Crimes Act 1900 (NSW). The conduct in respect of which he was convicted was of soliciting a then fellow gaol inmate (“A”) to murder Mr Potier’s ex de facto wife, Ms Oswald. At the time of the commission of the offence, in early 2002, Mr Potier was in custody at Long Bay gaol awaiting sentence on an earlier conviction of two counts of solicit to murder, the intended victims in relation to those offences being Ms Oswald and her partner, Mr Wakeham. The earlier offences had taken place in May 2000, while Mr Potier was in detention at Villawood Detention Centre as an illegal immigrant. The timing of the later offence (which the Crown maintained was relevant to the question of motive) was before Mr Potier was due to be sentenced for the earlier offences.
- Following the jury’s guilty verdict on 3 October 2006, the trial judge, Shadbolt DCJ, sentenced Mr Potier on 13 November 2006 to imprisonment for 12 years to date from 7 August 2006 and to expire on 6 August 2018, with a non-parole period of 7 years to expire on 6 August 2013.
- On 15 September 2014, Mr Potier filed an application seeking to appeal against his 2006 conviction. An extension of time for the filing of that application is necessary given the lapse of time since his 2006 conviction and sentence.
- As is apparent from the above brief introduction, Mr Potier has been found guilty in two separate trials, the first in 2001 and the second in 2006, of successive offences of soliciting to murder Ms Oswald. As some of the evidence at the first trial was adduced at the second (which is the subject of complaint by Mr Potier) it is necessary to set out a brief summary of the successive trials.
- By way of general background, I note that Mr Potier is a citizen of the United Kingdom. From around 1989 he was in a de facto relationship with a fellow UK citizen, Ms Oswald. The couple had a daughter. The relationship between Mr Potier and Ms Oswald broke down in August 1999. Family Law proceedings were commenced in England.
- In December 1999, Mr Potier flew to Australia with the couple’s daughter using false passports. In February 2000, following information provided to the federal police by an acquaintance he had made after his arrival in this country (Ms Conway), Mr Potier was detained and held in custody, first in Melbourne at the Maribyrnong Detention Centre and then in Sydney at the Villawood Detention Centre. Ms Oswald, who came to Australia in early 2000 to search for her daughter, had by then begun a relationship with a former acquaintance, Mr Wakeham.
- Ms Conway was in contact with Mr Potier while he was in detention. She contacted police to report conversations with Mr Potier in which, according to her, Mr Potier was seeking her assistance to arrange for the murder of Ms Oswald and Mr Wakeham. The police obtained listening device interception warrants in respect of Ms Conway’s home telephone and arranged for an undercover police operative (“M”) to contact Mr Potier. M did so both by telephone and in person at the Villawood Detention Centre. A number of conversations between Mr Potier and each of Ms Conway and M, respectively, were recorded, as authorised by warrants the lawfulness of which is not challenged. The authenticity of those recordings remains hotly contested by Mr Potier.
First trial and 2002 offence
- Mr Potier was charged with two counts of soliciting M to murder Ms Oswald and Mr Wakeham between 2 and 8 May 2000, while Mr Potier was in detention at Villawood (the 2000 offences).
- Mr Potier’s first trial took place between 19 September 2001 and 16 October 2001. The evidence given by Ms Conway and M at that trial is summarised in the later Court of Criminal Appeal judgment in which Mr Potier’s conviction appeal was dismissed (Potier v R  NSWCCA 27). Relevantly, it was Ms Conway’s evidence that Mr Potier had adopted the expression “gathering evidence” as a code for killing Ms Oswald and Mr Wakeham. An understanding of that code assisted in interpreting the conversations between Mr Potier and M. Recordings of the respective conversations were played to the jury.
- Mr Potier was represented by counsel at his first trial. He gave evidence at that trial.
- Mr Potier was found guilty by jury verdict on 16 October 2001 and was convicted of those two counts of soliciting to murder. On 18 October 2001, Mr Potier filed a notice of appeal against conviction.
- Before his sentencing for the 2000 offences, the events the subject of the second trial took place. Between 1 January 2002 and 8 February 2002, a number of conversations between Mr Potier and a fellow prison inmate “A” were recorded on a listening device placed in a TV set in A’s cell. The Crown’s case was that in those conversations Mr Potier again solicited the murder of Ms Oswald. Mr Potier was charged in relation to this offence in April 2002.
- On 10 May 2002, Mr Potier was sentenced on each of the 2000 offence count to imprisonment for 6 years and 8 months to commence on 8 May 2000 and to expire on 7 January 2007, with a non-parole period of 5 years to expire on 7 May 2005.
- On 29 June 2002, the Crown filed a notice of appeal against the inadequacy of the sentence. Mr Potier in turn appealed against the sentence.
Determination of appeals regarding 2000 offences
- The respective sentence appeals in relation to the 2000 offences were heard on 21 April 2004 separately from, and before, Mr Potier’s conviction appeal. On 25 August 2004, the Court of Criminal Appeal (Wood CJ at CL, Simpson and Bell JJ) refused Mr Potier leave to appeal against sentence and allowed the Crown appeal (R v Potier  NSWCCA 136), re-sentencing Mr Potier to a total term of imprisonment of 8 years and 8 months to commence on 8 May 2000 and to expire on 7 January 2009, with a total non-parole period of 6 years and 3 months to expire on 7 August 2006. On 11 October 2004, a special leave application to the High Court was filed by Mr Potier in relation to this decision. This was later abandoned.
- Mr Potier’s conviction appeal, which had in the meantime been struck out of the list subject to being restored when it was ready to proceed, was heard on 30 September 2005 and 5 October 2005. On 17 February 2006, the Court of Criminal Appeal (McClellan CJ at CL, Hislop and Rothman JJ) dismissed Mr Potier’s appeal against conviction (Potier v R  NSWCCA 27). On 6 September 2013, Mr Potier’s special leave application to the High Court relating to his convictions for the 2000 offences was dismissed by Hayne and Bell JJ (Potier v The Queen  HCA Trans 207).
- It was not until after the dismissal by the Court of Criminal Appeal in 2006 of Mr Potier’s appeal against his first set of convictions that the Crown proceeded with a bill of indictment in respect of the further solicit to murder offence alleged to have been committed by Mr Potier in early 2002.
- Mr Potier’s second trial commenced in August 2006.
Application to adduce tendency and coincidence evidence
- In March 2006, prior to the commencement of the second trial, the trial judge heard an application by the Crown for leave to adduce tendency and coincidence evidence, including the evidence given by Mr Potier in his first trial. The substance of the tendency and coincidence evidence was identified in an amended notice served on 2 March 2006.
- The substance of the tendency evidence sought to be adduced was that Mr Potier had a tendency to solicit others to murder his ex de facto wife. The substance of the coincidence evidence sought to be adduced was that Mr Potier had solicited others to murder his ex de facto wife on two separate occasions (those being the occasions the subject of the respective 2000 and 2002 offences).
- As to the 2000 offences, the documents within which the substance of the said tendency and coincidence evidence was said to be contained were identified in the amended notice. They included statements and transcripts of evidence from various witnesses in the first trial, including particular pages of an electronically recorded police interview (ERISP) given by Mr Potier on 9 May 2000 and the whole of the transcript of the evidence given at the trial by Mr Potier. Also included were the monitored conversations and telephone calls and extracts from the listening device/telephone interception transcripts of the conversations between Mr Potier and each of Ms Conway and M.
- As to the 2002 offence, the documents within which the tendency and coincidence evidence was said to be contained included the listening device transcripts of conversations between Mr Potier and A on 2 and 6 February 2002.
- On the hearing of the Crown’s application to adduce tendency and coincidence evidence, Mr Potier was represented by Mr Terracini SC, appearing with Ms Moen and Ms Byrne of counsel.
- Mr Terracini informed his Honour that no objection was taken to the adequacy of the notice. Objection was taken to the whole of the proposed tendency and coincidence evidence on the basis that its conceded significant probative value did not substantially outweigh its prejudicial effect (Evidence Act 1995, ss 97 and 101(v)). Nevertheless, the stated position of the defence was that, even if the balance of the tendency and coincidence evidence were to be admitted, the transcript of the evidence given by Mr Potier in his first trial should be excluded. Mr Terracini submitted that the evidence given by Mr Potier at the first trial should not be admitted unless he gave an inconsistent version of that evidence at the forthcoming trial.
- No objection was raised to the effect that the fact of Mr Potier’s conviction was not specifically listed in the tendency and coincidence notice. Furthermore, the Crown made clear on that occasion its position that one of the important non-tendency uses of the evidence of conviction was that it provided a motive for the offence.
- The argument before his Honour in March 2006 proceeded on the basis that it was inevitable that Mr Potier’s conviction for the earlier offences would be made known to the jury; indeed that was the basis for the defence submission as to the prejudicial effect of the proposed tendency and coincidence evidence. There was no submission by the defence on that occasion to the effect that reference should not be made to Mr Potier’s conviction for the 2000 offences.
- Both Ms Conway and M were cross-examined on the voir dire by Mr Terracini. Among other things, M was cross-examined as to the references to notes in the transcript of one of the recordings. This related to a conversation on 5 May 2000. M gave evidence that there was a problem with the piece of equipment which had been used; that it was a technical problem of which he was not aware prior to using the equipment; and that, once he finished the telephone conversation with Mr Potier and replayed that version of it, he realised that there were problems with missing parts of the conversation. M said that he thought that STIB (State Technical Investigation Branch), a section within the Special Services Group attached to the New South Wales police, had been asked to analyse the tape and that the cause of the problem could not be determined - “there was just a stopping and starting possibly of the tape with the actual set tape”. M also gave evidence that the recording equipment was locked away after use.
- It should be noted that the Commissioner for Police in due course claimed and was granted public interest immunity in respect of information that would divulge details of the technology and equipment used in the investigations concerning Mr Potier. (A claim was also made for immunity as to the methodology used in solicit to murder cases investigations but it is not clear that this latter issue was finally determined. Nothing turns on this.)
- Consistently with the Crown’s tendency and coincidence notice, the Crown submitted that the conduct of the accused according to the evidence of the witnesses at the first trial could demonstrate that the accused had a tendency to have a particular state of mind, that is of murderous intent, towards Ms Oswald at the time of the subsequent offence; and that the conduct in the first trial was relevant to the credibility of two or more witnesses, on the basis that common sense and experience rendered it objectively improbable that similar allegations would be independently made by such witnesses unless they were true.
- On 24 March 2006, the trial judge gave judgment on the Crown’s application. His Honour gave leave to the Crown to adduce, as both tendency and coincidence evidence, the recordings played at the first trial of the conversations with Ms Conway and M but not the evidence of Mr Potier at that trial. His Honour said that he came to the same conclusion as to the admissibility of the evidence whichever of the Ellis (R v Ellis  NSWCCA 319;  NSWCCA 319; (2003) 58 NSWLR 700) or Pfennig (Pfennig v The Queen  HCA 7; (1995) 182 CLR 461) tests applied; being of the view both that the prejudicial quality of the evidence was substantially outweighed by its probative value and that, if the evidence of Ms Conway and M were to be accepted, there would be no rational hypothesis consistent with Mr Potier’s innocence.
- His Honour observed that the fact that Mr Potier had been convicted (of the first offences) could not be avoided, since much of the conversation between Mr Potier and A was about the likely outcome of Mr Potier’s plan. A’s evidence, in that regard, was to the effect that Mr Potier had expressed to him the belief that if there were “no Ms Oswald” his appeal would succeed. On the present application, Counsel who prepared certain of the submissions, but did not appear, for Mr Potier points to the illogicality of such a belief. That, however, goes only to whether the jury accepted A’s evidence as to the relevant conversations. That a belief such as A says was expressed by Mr Potier might be unfounded or illogical is beside the point.
Conduct of second trial
- The second trial was listed to commence on 7 August 2006. Mr Potier’s defence was at that stage being funded by the Legal Aid Commission. Shortly before the commencement of the trial, an application was made by Mr Potier’s then Counsel (Mr Terracini) for leave to withdraw from the proceedings, indicating that this was on the basis that he was not able to conduct the case in accordance with Mr Potier’s instructions and at the same time comply with his duty to the Court. His Honour granted that leave. There was a re-assignment of legal aid to permit Mr Healey and Mr Lowe of Counsel to be retained in the matter, instructed by the same solicitor who had had the conduct of the matter at the time of Mr Terracini’s withdrawal, Ms McGowan.
- Mr Potier’s second trial in fact did not commence until 14 August 2006. Shortly thereafter, the jury was discharged when it was discovered that one of the jurors had a very poor command of English. The trial re-commenced on 16 August 2006.
- In the course of the Crown’s opening, the jury was told that Mr Potier had come to Australia under a false name and a false passport. (One of Mr Potier’s complaints in this Court is that the trial judge referred in summing up to the jury to his entry to Australia on a false passport even though he, Mr Potier, had not given evidence of that fact. However, evidence to that effect was given at the second trial by Ms Conway and there was no evidence to dispute that. Furthermore, in the recorded conversation with M on 2 May 2000, Mr Potier can be heard confirming to M that he came to Australia on a forged passport.)
- The jury was also told that Mr Potier had been found guilty of the first offence but caution was sounded as to the use to be made of that information.
- In Mr Healey’s opening to the jury, he informed the jury that Mr Potier challenged the recordings in the trial that had led to his conviction (i.e., the first trial) and said that they were unreliable.
- On 7 September 2006 (day 15 of the second trial), Mr Healey was granted leave for him and Mr Lowe to withdraw from the matter. This occurred at a time when A, the prison informant, was under cross-examination. Mr Healey’s withdrawal was precipitated by an incident that had occurred the day before, to which I will refer later, and which had prompted Mr Healey to request, unsuccessfully, that the jury be discharged. It will be referred to as the “Carlos” incident. Leave was also granted for Ms McGowan to withdraw. As a consequence, Mr Potier was thereafter unrepresented.
- His Honour refused Mr Potier’s application to adjourn the hearing following the withdrawal of his legal representation and refused Mr Potier’s next application, which was for the judge to disqualify himself for apprehended bias. Thereafter, Mr Potier had the conduct of his own defence. He made further unsuccessful applications for the adjournment of the hearing and for the jury to be discharged, in circumstances to which I will refer in due course. Meanwhile, on 13 September 2006, his legal aid was terminated.
- Mr Potier chose, as was his right, not to give evidence himself in his second trial. He called evidence from a number of prison inmates or former inmates: Mr Prasad, who described the pay phones in the “lockups” and said A was a “show-off” and a “gossiper”; Mr Hughes, who said that A was something of a gaol house lawyer and prone to exaggeration; Mr Parkes, who said he did not like A because he gave out incorrect legal advice and “big-noted” himself, and who gave evidence as to the time it took to get a television set in prison; and Mr McPhall, who said he thought A was a rumour monger and a gaol lawyer, who “big noted himself”, exaggerated and invented things, and was “a bit of a joke”; and who gave evidence that in gaol a television was a “number one possession”.
- Mr Potier also sought to call evidence in person or by videolink from a solicitor in Glasgow, Mr Edward MacKechnie. The Crown refused to meet the cost of Mr Potier adducing that evidence in that manner. The trial judge initially ruled against Mr Potier’s application to adduce evidence from Mr MacKechnie on the basis that it was not relevant but shortly thereafter revisited this ruling, being persuaded that the proposed evidence might have some tenuous relevance to one of the ways in which he understood Mr Potier was seeking to defend the allegations. Mr MacKechnie’s sworn statement was ultimately read to the jury with the consent of the Crown. He was not cross-examined on that statement.
- Mr MacKechnie’s statement included that Ms Oswald, a close friend, had told him during the period October 2001 to March 2002 that she was not living in Scotland and that he had told this to Mr Potier at the same time; and therefore that at the time of the alleged offence (January – February 2002) Mr Potier knew that Ms Oswald was not with her parents in Scotland or in Scotland at all. Mr Potier maintains the relevance of this lies in two respects: first, to show that he, Mr Potier, knew all along that A was never serious (because A thought Ms Oswald was in Scotland) and, secondly, that Mr Potier was having a joke at A’s expense (because A was “in fantasy land”).
- Mr Potier also sought to call evidence from A’s ex-wife (to show A’s true character – in essence to prove that A had given false evidence to the Court that he was still married); from Mr Wakeham (as to whether he had made certain threats to Ms Conway); and from a former inmate named Warren Richards (to say that Mr Potier had told him he was playing a joke on A and to say that A was regarded as “out with the fairies”).
- In the course of discussion in the absence of the jury on 19 September 2006, his Honour clarified with Mr Potier the defences he was seeking to raise. Mr Potier agreed that his case in defence was a combination of the following: that the recorded calls were not his; a defence of mental ill-health; that A had malevolently tried to entrap him and that Mr Potier was humouring him; and that he was playing a joke on A because he was privy to information in January/February 2002 that Ms Oswald was not in Rhynie (her parents’ home) but elsewhere in Scotland.
- Mr Potier, in his submissions on this appeal, summarises his defence case in broadly similar terms as being that: A was “a joke, lair, fantasy man” prone to exaggeration and often “out with the fairies”; that he was playing a joke on A; that he did not believe that A was serious; that he knew that Ms Oswald was in England, not with her parents in Aberdeenshire, and therefore that nothing could or would happen to her; and that A had a strong motive to lie, in that he wanted and was given a TV in his cell. (The listening device recording the conversations in A’s cell had been placed in the TV.) Nothing further was raised as to any defence based on his mental health.
- Pausing there, the case that A was trying to entrap him or that Mr Potier was playing a joke on A is clearly inconsistent with any denial that the recorded conversations with A took place; rather, it assumes that the conversations took place and seeks to explain away their significance.
- As noted earlier, the jury returned a guilty verdict on 3 October 2006 and Mr Potier was sentenced on 13 November 2006. His non-parole period has now expired.
- In the period after his conviction and sentence, Mr Potier has pursued or been party to various court proceedings both in Australia and in the United Kingdom. For present purposes, the most relevant is his application for special leave to appeal to the High Court from his conviction in the first trial. That application focussed on issues in relation to the authenticity or integrity of the 2000 recordings (see  below). Mr Potier was represented by Mr Brezniak of Counsel on that application, which was dismissed in September 2013, thus bringing to finality Mr Potier’s appeals from his conviction on the first trial.
- On 15 September 2014, Mr Potier filed the present application to appeal from his conviction in his second trial.
- The integrity of the respective audio recordings is at the heart of much of Mr Potier’s complaint as to the reliability of his conviction in the first trial and that in his second trial. It is therefore convenient, before addressing the specific grounds of appeal, to summarise what Mr Potier contends to be the position in relation to the respective sets of recordings and his complaints in relation thereto.
- In his first trial, at which Mr Potier had the benefit of legal representation throughout, the Crown relied on recordings of conversations between 2-9 May 2000 between Mr Potier and each of Ms Conway and M. Mr Potier maintained that those recordings (the 2000 recordings) had been altered, manufactured or created by some unknown method. His position as to whether it was his voice on the tapes was somewhat unclear.
- In the second trial, in the absence of the jury, his Honour asked Mr Healey at one point whether there was some contravening view that the conversations had not taken place. Mr Healey’s response was that this was “yet to be determined”. Mr Healey later informed the Court that Mr Potier was suggesting there had been alterations to the recordings or “products” of the conversations with M. Mr Healey said that it had “always” been the defence’s position that Mr Potier disputed the authenticity or integrity of all recordings; that Mr Potier disputed the conversations and that Mr Potier was suggesting alteration of the products of the telephone recordings of the conversation.
- Though Mr Potier later made statements to his Honour as to whether he was disputing the conversations which were on their face inconsistent (I refer to these later), his final position appears to have been that, while the voice on the audio recordings may have been his, there had been some alteration of the recordings (the equivalent perhaps of an audio “cut and paste”) so as to produce a manufactured compilation of a conversation that was not in fact the actual conversation that had taken place.
The “Telstra material”
- In the first trial, the defence was served with a statement made on 27 June 2000 by an officer of Cable & Wireless Optus (Mr David Finlay). That company was Ms Conway’s telephone provider. In that statement, Mr Finlay explained a process known as a “webtrace” by which information such as call charges from the Optus network is derived electronically.
- Annexed to Mr Finlay’s statement was a webtrace that had been carried out by Cable & Wireless Optus of calls to and from Ms Conway’s telephone number for the period from 22 April 2000 to 12 May 2000. The significance attributed by the defence to that webtrace is that it did not record or register five of the nine calls allegedly made to Ms Conway by Mr Potier in May 2000 (the “missing calls”).
- Mr Finlay gave an explanation at the first trial as to why telephone calls made to Ms Conway’s landline might not appear on the Optus webtrace. That explanation related to whether calls forwarded from a Telstra exchange were forwarded to an Optus exchange or switch where the number being called was “attached” or were forwarded to an Optus exchange where the number was “not attached”; since that affected what number would appear in the relevant search field. The webtrace process involved manually searching records on the switch by way of entry into the system of a particular telephone number and the requested time period. Obviously, the conclusion to be drawn from this evidence was that if the incorrect number was entered into the relevant search field the webtrace might be unreliable or inaccurate.
- Mr Finlay explained that a call could be on the system but not found when the webtrace was conducted. He accepted the propositions put to him by defence counsel that: first, he could not say categorically that there was a call at a particular time if it were not on the webtrace and, second, that “another” explanation for the non-appearance of a call on the webtrace was that it “just could not have been made at all”.
- Mr Potier understands the import of Mr Finlay’s evidence to be that there are only two possible explanations for the fact that five of the nine telephone calls did not register or appear on the webtrace of Ms Conway’s telephone: that the wrong search methods had been used or that the calls had not been made. That was not Mr Finlay’s evidence. Rather, Mr Finlay gave one explanation for calls not appearing on the webtrace and accepted that there was another possible explanation as put to him in cross-examination; he did not in terms say that there were only two possible explanations. A third possible explanation that would accord with Mr Finlay’s explanation of the webtrace process, and one which assumes some relevance in light of later events, would appear to be that the correct search methods were used but the correct telephone number from which the call was made had not been identified.
- Mr Finlay also said, when cross-examined, that if one knew the number of the party making the call then a better option would be to go to that number and check that number. He accepted the proposition put to him by defence counsel that the “only other way” (i.e., the only way to identify whether a call had been made to Ms Conway’s telephone number from a Telstra number, apart from the Optus webtrace) was to find the call charge records for the Telstra numbers.
- On 10 October 2001, shortly prior to the conclusion of the first trial and unbeknownst to the defence at that stage, Detective Inspector Laidlaw wrote to Telstra with an urgent request for a call charge record search on three specified telephone numbers (referable to three Telstra payphones at the Villawood Detention Centre) and a statement outlining the results of such a search for production in the criminal proceedings. That letter included the following statement, which Mr Potier treats as an admission on the part of the Crown that the calls were made from one of those three payphones:
A number of telephone calls have been legally intercepted between the accused and the police informant. Investigators conducted a ‘webtrace’ via Cable Wireless Optus on the informant’s landline, however due to the inefficiency of that trace a number of intercepted telephone [sic] do not appear. These calls all originate from the nominated Telstra payphones from the V.I.D.C. Therefore the Crown Prosecutor seeks to rectify this by the supply of Call Charge Records from these services. (my emphasis)
- A statement dated 11 October 2001 was prepared on Telstra letterhead by the Administrative Officer Law Enforcement Liaison at Telstra, in which information was provided as to the results of that search. Annexed to the statement were the call charge records for the nominated three Telstra payphones for the period 1-9 May 2000. It is not disputed that the five missing calls were not recorded as calls made from any of those phones.
- The Telstra call charge records, not tendered or disclosed to the defence in the first trial, are referred to by Mr Potier in his submissions as the “Telstra material”. Mr Potier emphasises that the existence of the Telstra material was not known to the defence during his first trial. The defence was, however, aware that the missing calls did not appear on the Optus webtrace and had elicited evidence from Mr Finlay as to alternative ways to investigate whether there was a record of those calls having been made. Hence, it might be argued that the Telstra material was constructively available to Mr Potier at that first trial. Nothing, however, turns on this for present purposes, since the existence of the Telstra material was certainly known to the defence by the time of the second trial.
- The suggestion that the 10 October 2001 letter from Detective Inspector Laidlaw constituted some form of binding admission by the prosecution that the missing calls had been made from one of the nominated three payphones (and no other telephone in the detention centre), such that the prosecution cannot now be heard to argue that the fact that the calls were missing from the Optus webtrace is of no significance, cannot be sustained.
- The Police Act 1990 (NSW) establishes the police force in this State. In State of New South Wales v Fahy  NSWCA 64; (2006) Aust Torts Reports 81-865 Basten JA held that the NSW Police Force is not a legal entity in its own right. Although the Police Legislation Amendment (Civil Liability) Act 2003 (NSW) had, for the avoidance of doubt, provided that a police officer was an employee of the Crown for the purposes of that Act, this was repealed in July 2004. Nevertheless, at common law, a member of the police force was regarded at least in some sense as a servant of the Crown (see Enever v R  HCA 3; (1906) 3 CLR 969). However, Detective Inspector Laidlaw was not the prosecuting authority. He was an investigating officer. There is no basis to suggest that he had any personal knowledge of which, if any, of the available telephones might have been used to make the disputed “missing” calls. The statement made in his letter of 10 October 2001 can at best reflect his assumption that those telephones were the ones that had or may have been used.
- Even if Detective Inspector Laidlaw’s statement could otherwise have bound the Crown, admissions made other than in the formal course of proceedings (such as the statement relied upon in this letter) have been said to have merely an evidentiary significance, the so-called “admitting” party being entitled to dispute the accuracy of the admission – by evidence that it was influenced by mistake, misunderstanding or ignorance, or that it was otherwise inaccurate or unreliable (see Nominal Defendant v Gabriel  NSWCA 52; (2007) 71 NSWLR 150 at  – albeit in the civil context).
- In the present case, Detective Inspector Laidlaw made clear in his evidence at the second trial that it had simply been his assumption that the calls were made from one of the pay phones. He said there were other telephones in the detention centre to which inmates could have access. There was also evidence at the first trial from a Mr Schofield, an officer at the Long Bay correctional centre, to the effect that on occasion inmates, including Mr Potier, had used a telephone in his office to make telephone calls.
- There is therefore room for doubt as to the evidentiary significance of a statement made in a letter written by someone not party to the conversations and not present at the time that any of the missing calls were made (assuming for this purpose that the calls were made); and obviously written in the context of an urgent enquiry as to the call charge records for telephones from which it was believed or assumed those calls had been made.
- It is not suggested that any search was made of call records referable to Mr Schofield’s telephone in order to exclude the possibility that the missing calls had been made from that telephone.
- In those circumstances no more than nominal, if any, weight could be attached to the statement in Detective Inspector Laidlaw’s 10 October 2001 letter.
- As noted, by the time of the second trial, Mr Potier and his then defence team were aware of the existence of the Telstra material. This was because it had been disclosed in an affidavit filed on 13 January 2005 in the course of the 2006 Court of Criminal Appeal conviction appeal proceedings. The relevant call charge records for the three Telstra payphones in the detention centre were annexed to that affidavit.
- In the course of the second trial, Acting Superintendent Laidlaw was asked “if” he had received the Telstra call charge records on 11 October 2001 what he believed he did with them. His response was that he believed he had “[b]rought it to the notice of the Crown Prosecutor”. While the question to which he gave that answer was framed hypothetically, Acting Superintendent Laidlaw later in the course of the cross-examination confirmed that he was quite sure that he had given the Telstra material to the Crown Prosecutor. He said that he assumed it would have been served on defence counsel, from which answer it is apparent that he professed no personal knowledge of whether that had occurred.
- Mr Potier points outs that, in the course of the defence summing up to the jury in the first trial, his then Counsel had emphasised the missing calls from the webtrace and had said:
The police with all their resources if they had ever checked the [Optus] web trace ... would have realised that these calls weren’t there and if they had taken place you might well think that they could have through contact with Telstra, have obtained call charge records which would establish just that.
from which it seems he concludes that the significance of the missing calls, and hence the relevance of the Telstra material, must have been clear to the prosecution. Acting Superintendent Laidlaw was cross-examined to that effect at the second trial.
- In the present proceedings, Mr Potier has submitted that the evidence that the Crown prosecutor had the Telstra material (prior to the end of the first trial) could not have been considered by the High Court when the special leave application was determined because it was not known at that stage that there had been a “deliberate withholding” of that information. However, the special leave application was in September 2013. Mr Potier accepts that he knew from around January 2005 that the call charge records (i.e., the Telstra material) had been received. Acting Superintendent Laidlaw had been cross-examined on this very issue in August 2006, well before the High Court special leave application in September 2013. The High Court application focussed on the Telstra material as being fresh evidence not available at the first trial. Therefore, any allegation as to the deliberate withholding of this material was one that could have been raised at that stage.
- On the special leave application, Mr Brezniak conceded to the High Court that the call charge records were available by the time of the second trial. He accepted that the material that came to light close to the end of the first trial was that the three phones in the detention centre area to which Mr Potier had access were not the source of the calls and that there was no evidence as to whether the calls from the office of Mr Schofield, the officer within the detention centre’s telephone service, to which Mr Potier had access, might have been the source of the calls.
- Mr Brezniak dismissed the last possibility as a red herring on the basis that there were no calls from that telephone on the Optus webtrace. There appears, however, to be a circularity of reasoning in that last proposition, since it was apparently agreed by Mr Finlay that calls missing from the Optus webtrace might be able to be found by reference to a search of the call charge records of the party making the call – hence it would be necessary to obtain call charge records from Mr Schofield’s telephone number in order to exclude that possibility.
Production of the original 2000 recordings
- On 27 June 2008, an order to produce was issued by the Supreme Court, at the request of Mr Potier, requiring the Commissioner of Police to produce the following (Appendix 7 to Mr Potier’s submissions):
- (1) A certified copy of all of the original recordings obtained under [identified warrants] in October 2001.
- (2) A certified copy of the recordings played to the jury obtained under [an identified warrant] in October 2001.
- (3) Copies of any technical analysis carried out on the recordings by any persons identifying the same.
- (4) Copies of any reports, advices, communications of any kind concerning the modification of the recordings obtained under the warrants in October 2001.
- (5) Copies of all communications relating to items 1 to 4 of above identifying the sender and recipient, together with dates between your servants and agents and representatives of the Crown Solicitor’s Office, Director of Public Prosecutions or Crown Prosecution Service.
- In its terms, the order to produce called only for material in relation to the 2000 recordings. The Commissioner produced a number of recordings in answer to that order to produce. Mr Potier says that these include four recordings not previously disclosed to the defence.
- It is necessary to descend into some detail as to precisely what recordings were produced in answer to the order to produce, given the significance that Mr Potier attaches to that material.
- On 23 October 2008, the matter was before a Registrar in the Court of Criminal Appeal. Counsel appearing for the Commissioner of Police, Ms England, informed the Court that there was production (in answer to par 1 of the order to produce), with no objection to access, of: one disc of telephone intercept material, four discs of listening device material and a two page statement dated 30 September 2008 of a police officer, Mark Alan Jones, certifying the listening device discs. She informed the Court that there was also production, again in answer to par 1 of the order to produce, of three discs of telephone intercept material in respect of which there was an objection to access on privacy grounds.
- Ms England explained that the discs in respect of which there was an objection to access contained records of 319 telephone calls on Ms Conway’s telephone, interspersed with which were the calls by Mr Potier to Ms Conway.
- Nothing was produced in answer to par 3 of the order to produce, on the basis that the event had not occurred. Orders 4 and 5 were opposed.
- As to par 2 of the order to produce, there was apparently an agreement reached with Mr Potier limiting this to the material listed in a document headed “List of recordings played to jury from first trial” that had been provided by Mr Potier. After taking instructions, Ms England then informed the Court that all of the material that had already been produced in answer to par 1 of the order (by which, somewhat confusingly, she referred to the three compact discs) answered par 2 of the order to produce.
- Mr Potier took issue with the proposition that material produced in answer to par 1 of the order to produce also answered par 2 of the order to produce. He referred to an affidavit that had been sworn in the 2006 conviction appeal proceedings that he said identified that there were two distinct and separate versions of the recordings (i.e., as I understand it, the original recordings obtained under warrant and the recordings played to the jury). He pressed for the production of the two sets of the 2000 recordings.
- On 13 November 2008, two sets of recordings were produced. According to the transcript, on that occasion the Crown tendered an affidavit of Detective Senior Constable Robert Hollows, in which he stated that he had collected the original compact discs of the “paragraph 2 material” from the office of the DPP, had made copies and had returned the copies and originals to the DPP.
- On that occasion, Mr Potier took issue with the statement by Ms England on the previous occasion that the “event” referred to in par 3 of the order to produce had not happened.
- Mr Potier drew attention to a document (attached to Mr Potier’s submissions with the annotation “MFI 13”) that was a redacted version of an STIB job report on NSW Police Service letterhead dated 26 June 2001.
- In that report, reference is made to four exhibits – an unmarked compact disc, and three cassettes. The report states that two of the cassette tapes “were affected by interference caused by the mobile phone” and that this inference cannot be removed or the product improved. In relation to the other cassette tape, the report states that the recording is “affected by some form of inference which leaves short bursts of blank portions between the conversation” and that the missing conversation is not on the tape and hence this problem cannot be improved. As to the compact disc, the report states that it is a computer data CD and cannot be played in a CD player; and that “[w]e do not have the equipment to work on this CD”. Pausing here, this job report is consistent with evidence given by M at the first trial, namely that recordings had been sent to STIB for analysis but STIB was not able to identify the problem.
- The report also states that the two cassette tapes and a third item (the description of which has been redacted) have been copied onto three individual compact discs. This report can only be referring to the 2000 recordings since it predates the events of 2002.
- The contention made by Mr Potier to the Court in November 2008 was that the document marked as MFI 13, i.e., the STIB job report to which I have referred above, fell within par 3 of the order to produce (and hence should have been produced). Nothing flowed from that, however, presumably because Mr Potier had in his possession a copy of the STIB job report anyway.
- What can be discerned from the above is that, as a result of the production in November 2008 of documents in answer to the June 2008 notice to produce, Mr Potier obtained access to two sets of the 2000 recordings, those being: first, the certified original recordings made in the telephone interception branch (referred to by the registrar as the “raw format”) (the par 1 material) and, second, a set of the recordings played to the jury in the first trial (of the particular conversations identified in the list Mr Potier had prepared, to which I will refer as the “jury recordings”) (the par 2 material).
- Mr Potier complains that the existence of two sets of the 2000 recordings (i.e., the raw format and the jury recordings) was not disclosed either to the jury (presumably referring to the jury in the first trial) or to the Court of Criminal Appeal in 2006. He maintains that a comparison of the two sets of recordings shows that it was wrong for the Crown to tell the jury that the recordings played to them were genuine.
- Pausing there, it does not follow that, if the recording of only a particular number of conversations was played to the jury (being extracted, so to speak, from an original recording containing a large number of irrelevant conversations), that which was played to the jury was not a genuine recording of the relevant conversations. From my review of the transcript of the second trial, there was no suggestion at any stage that what had been played to the jury at the first trial was the whole of the telephone conversations recorded on the listening device on Ms Conway’s landline (in respect of which the Court and Mr Potier were informed there were a large number of unrelated conversations).
- Mr Potier also says that it was false to say that the recordings played in both trials were from an original copy retained in the telephone interception branch.
- His submissions in relation to this issue seem, at least to some extent, to conflate the 2000 recordings and the 2002 recordings because Mr Potier refers to the “first 2 February recording” being blank and that this was only discovered by him when the respondents produced the original recordings in accordance with the order to produce. However, the only relevant 2 February recording could be a recording taken in 2002 and the 2002 recordings were not the subject of the 2008 order to produce. (I will come back to Mr Potier’s complaint as to the February 2002 recording shortly.)
Summary of submissions as to the Conway recordings
- In his submissions in these proceedings, Mr Potier makes three points as to the 2000 recordings of conversations between himself and Ms Conway.
- First, he says that, insofar as it is suggested that the missing calls were not shown on the Telstra material because another telephone had been used, this is inconsistent with the letter from Detective Inspector Laidlaw to Telstra (MHP3), namely that these were the pay phones that had been used. (This relies upon the statement in that letter being some form of binding admission against the Crown, which as I have explained above it is not.)
- Second, he says that the suggestion that another phone may have been used cannot be accepted because at the time the calls were made, according to the webtrace, Ms Conway’s phone was not receiving calls from any number and, further, that during the period from 2 to 9 May 2000, there were no phone calls from any number of the same length of the recordings that were played, therefore, he says the calls were not made. (This submission does not take into account the possibility that the Optus webtrace had not registered a call to Ms Conway’s phone from another telephone, the call charge records for which have never been obtained.)
- Third, Mr Potier says that the police did carry out investigations as to whether any other phones were used to contact Ms Conway (referring to Detective Inspector Laidlaw’s evidence T 364.40-50) and that there is no evidence that another phone was used. That involves a misreading of Detective Inspector Laidlaw’s evidence. Moreover, at the first trial there was evidence raising the possibility that another telephone had been used; namely that of Mr Schofield. Reference was made to this in the evidence given by the then Acting Superintendent Laidlaw at the second trial. (The Crown maintains that it was not obliged to prove the phone from which the calls were made; that it has established the provenance of the recordings; and that Ms Conway gave evidence identifying the voices of Mr Potier and herself on the recordings and as to what was said in the conversations.)
- Mr Potier also raises particular issues as to the conversations with Ms Conway that were recorded on 2, 5 and 8 May 2000, to which I refer when considering the challenge he makes to the authenticity of the recordings of conversations with M below.
Submissions of Mr Potier re recordings of conversations in 2000 with “M”
- Mr Potier has prepared a schedule (MHP 6) in which he sets out his analysis of the list of the recordings played to the jury of his conversations in 2000 with each of Ms Conway and M. In that document he highlights the five calls missing from the Optus webtrace and points to various discrepancies he has identified between the length of the original recordings and those played to the jury. He has also raised an issue as to one of the phone conversations overlapping with another.
- It appears that Mr Potier has prepared that analysis based at least in part on a comparison between the start/stop times of the recordings shown in the police audio log in relation to the listening device that recorded the meetings with M and the length of the recordings played to the jury.
- The recordings of conversations with M where Mr Potier has identified a difference between the length of the recordings obtained under warrant and the recordings as played to the jury or has otherwise challenged the timing of the recordings are: first, his meeting with M on 2 May 2000; a telephone conversation with M on 4 May 2000; a telephone conversation with M on 5 May 2000; and a meeting with M on 8 May 2000.
2 May 2000 recording of meeting with M
- As to the meeting on 2 May 2000, Mr Potier notes that the officer recorded the start/stop times at the beginning and end of the recording as being 7pm to 7.30pm but that the tape played to the jury was 34 minutes in length. He concludes that there were four extra minutes on the recording played to the jury; by inference suggesting that those were added to the recording in some fashion.
- Mr Potier also places emphasis on what he maintains was directly inconsistent evidence given by two police officers as to the 2 May 2000 recorded meeting, his submission being that one of the two officers must have been lying.
- The meeting between M and Mr Potier was recorded by M on a listening device. The precise details as to this device and the mechanics of its operation were the subject of a claim for public interest immunity by the Commissioner of Police. While that conversation was being recorded on M’s listening device it was also being monitored at the listening post in the undercover branch.
- Detective Chief Inspector Jones gave evidence as to his involvement in the investigation into the 2000 offences. He had assisted between 6.59pm and 7.30pm on 2 May 2000 in monitoring, from the listening post in the undercover branch, the conversation between M and Mr Potier at the Villawood Detention Centre.
- His evidence was that there had been an attempt separately to record the conversation using equipment at the listening post but that the machine had failed to record the conversation. He postulated that that could have been due to operator error but conceded that, as with any equipment, there could have been a malfunction. Asked whether any suggestion that there was a second tape in existence of that conversation (i.e., apart from the recording made by the device which M had with him at the meeting) could be excluded, Detective Chief Inspector Jones said that there was a tape but there was nothing recorded on the tape and it had not been produced to the Court. He identified an entry in the police tape log book that he said referred to that particular tape (being the entry previous to that comprising M’s recording).
- Relevantly, Detective Chief Inspector Jones also gave evidence that he had been at the Special Services Group premises later that evening; had seen the constable produce a piece of technical equipment to replay a portion of the conversation between M and Mr Potier; and had seen the constable produce a compact disc (which he identified as tape numbered 2377 in the log). This is clearly a reference to the recording that was made on the listening device that M had with or on him during the meeting with Mr Potier.
- The evidence that Mr Potier says is directly inconsistent with the above is evidence from Acting Superintendent Laidlaw, which he says was to the effect that an audiotape was generated at the listening post and that it did have a recorded conversation on it (Mr Potier referring to the evidence given in the transcript at T 346 and T 356).
- Acting Superintendent Laidlaw’s evidence (at T 346) was that the entire conversation between M and Mr Potier recorded on 2 May 2000 “was recorded on audiotape” and that together with other undercover branch operatives he monitored the conversation. None of that is inconsistent with Detective Inspector Jones’ evidence, from which it is apparent that he thought that the conversation was being recorded in the listening post at the time that the conversation was being monitored. Acting Superintendent Laidlaw then said that at the conclusion of the conversation with Mr Potier, the audiotape was later copied and handed to a Detective Platt. He was not asked whether he had listened to the tape at that stage or, if he did, whether the tape was blank. To this point the only potential inconsistency in the evidence is whether a copy of the audiotape generated at the listening post (which according to Detective Chief Inspector Jones was blank) had been provided to the investigating officers or not.
- Acting Superintendent Laidlaw was further cross-examined as to his statement that the entire conversation had been recorded on audio tape. He said that the original of the tape was with the undercover branch and went on to say “I won’t go into specifics on how it was recorded, obviously for methodology reasons, but I believe it is with them” (T 356.25). That answer strongly suggests that what Acting Superintendent Laidlaw was there referring to was the recording made on the device that was with M, since it was that device that was the subject of the claimed immunity.
- He then agreed that at the end of the conversation on 2 May 2000 Detective Platt was given an audio tape of the conversation so that it could be transcribed; said it was a copy not the original; and said that that was produced at the conclusion of the conversation. He also agreed that in his statement he had said that he was given an audio cassette tape that he had caused to be transcribed.
- What emerged from the course of that cross-examination does not permit a finding that either of the police officers was lying and it was not put to either of them that he was.
- The most likely explanation of any inconsistency in the above evidence is confusion as to the different modes of recording and, in particular, to the device that was used by M (which was the subject of the claim for public interest immunity). Such confusion, without any disrespect to Mr Potier’s then counsel, was apparent from the questioning of Detective Chief Inspector Jones (see from T 277-279), which led to discussion, in the absence of the jury, as to how, as a technical matter, the compact disc of the 2 May 2000 conversation was produced. Counsel for the Commissioner of Police made it clear that the public interest immunity related to the assumption that counsel for the defence had made in questioning Detective Chief Inspector Jones to the effect that the recording and the equipment were distinct. This led to information being provided on a confidential basis to the trial judge and to counsel for the defence, which Mr Healey indicated was of assistance to him in elucidating the matter.
- From the questioning of Detective Chief Inspector Jones that followed, it is apparent that it was the recording by M (not the VHS audiotape that had been produced at the listening post) that was forwarded to the STIB for possible “enhancement”.
- The cross-examination of Detective Chief Inspector Jones and Acting Superintendent Laidlaw on this topic was described by counsel for Mr Potier as going to “the issue of the authenticity or integrity” of three things – the technical equipment used; the technical equipment used to replay the recording; and the compact disc. Mr Healey informed the Court, in the absence of the jury, that Mr Potier did not accept that the compact disc (MFI 3 at the second trial – item 2377 in the police tape log book) was a genuine record of what had been played in court and that Mr Potier was suggesting that there had been alterations to the “products” of the conversation.
4 May 2000 recording of telephone conversation
- The evidence of Detective Chief Inspector Jones was that on 4 May 2000 he was present at the Special Services Group premises at about 5.40pm when M made a telephone call which was recorded. He says that at the completion of the call M handed him a cassette tape and he replayed a portion of the conversation from that tape to M. Details of that tape (marked MFI 4 at the second trial) were entered into the tape log book at entry 2378.
- Mr Potier’s schedule (MHP 6) records the time difference between the two recordings of this telephone conversation as approximately one second. He makes no specific submission in relation to this call.
5 May 2000 recording of telephone conversation
- Detective Chief Inspector Jones gave evidence that on 5 May 2000 he had a telephone conversation with M in relation to a telephone call the latter had made to Mr Potier on that date that was only partly recorded. He said that he had listened to part of that recording (MFI 5). He was not sure if he had listened to it in its entirety. He recalled that there were parts of the conversation that were not recorded on the tape.
- As to this telephone conversation, Mr Potier maintains that the records of M’s mobile phone account shows that this call overlapped by some five minutes with the conversation that it is alleged Mr Potier was having with Ms Conway on 5 May 2000 (which did register on the Optus webtrace). Mr Potier says that the Optus webtrace shows that the conversation with Ms Conway finished, after 11 minutes, at 19.42; whereas M’s phone account shows a ten minute phone call finishing at 19.45. Mr Potier also maintains that with the 5 May 2000 telephone conversation with Ms Conway there is a discrepancy of around 11 minutes between the length of the actual telephone intercept recording and that played to the jury (although he does not point to any particular content in the conversation as having been either added to the former or excised from the latter).
- As to the 5 May 2000 call, Mr Potier says that the transcripts were incorrect in that it was suggested in the transcript that things had been said, in terms of having been actually recorded, but that M’s notes show things that were not recorded. He submits that this leads to an inference that what was on the tapes was factually incorrect.
8 May 2000 meeting
- Detective Chief Inspector Jones also gave evidence that on 8 May 2000, he had a further conversation with M at Special Services Group premises during which M handed him a cassette tape. He played a portion of that tape and M initialled the tape and it was recorded as 2381 (MFI 8). Similarly, on 8 May 2000 he said that he assisted with Detective Platt and Senior Constable Brown in monitoring a conversation between M and Mr Potier and was present when a portion of that conversation was played and the tape was labelled and entered with details 2382 (MFI 6) and 2383.
- As to the 8 May 2000 meeting between Mr Potier and M, Mr Potier maintains that the start/stop times of the recording in the police log reveal a 33 minute recording but that the recording played to the jury was only 30 minutes. He also points to notes in the transcript referring to “break in tape” whereas he maintains there was no break in the recording to the jury.
- In his schedule (MHP 6), Mr Potier also notes differences of around four minutes and eight minutes in the recordings of two telephone conversations with Ms Conway on 8 May 2000.
General complaint as to quality of the recordings
- Mr Potier describes certain of the original recordings as being bad recordings or having a “bad echo”. The perceived discrepancy between the recorded lengths of various of the 2000 conversations and the recordings played to the jury, as well as the contention that one call on 5 May 2000 would have had to have been made simultaneously to Ms Conway and to M; as well as discrepancies as to the quality of the 2000 recordings, were all matters raised in submissions on the High Court special leave application.
- At the second trial, the evidence included not only the telephone recordings from the first trial and an electronically recorded police interview (ERISP) with Mr Potier in 2000, but also the listening device recordings made on 2 February 2002 and 6 February 2002 of conversations between Mr Potier and A.
- Mr Potier complains that it was not until 2009 (after his second trial) that he discovered that there were two sets of material in relation to the 2002 recordings – the original on VHS and a “highlight tape” on CD. That complaint is contradicted by the evidence to which Mr Potier also points (from Detective Sipos) to the effect that the 2 February 2002 recording to the jury (Exhibit M at the trial) was from a “highlight tape”.
- Mr Potier calls into question the provenance of the highlight tape because he says that the evidence of the police was that the VHS tapes were included in the evidence log but the highlight tape was just kept in a drawer and not in safe keeping.
2 February 2002 recording
- The first of the 2002 recordings about which Mr Potier raises issues is one made on 2 February 2002.
- Marked “MFI 1” in the present proceedings is a copy of a letter dated 17 September 2014 from Mr Potier to the Registrar enclosing further supplemental submissions dated 17 September 2014 and enclosing two VHS audio tapes. The first of those (marked Supplemental Exhibit MHP 1) is described as a VHS audio tape provided by the police of the alleged conversation of Mr Potier and A on 2 February 2002 “taken from Master Tape stored as exhibit”.
- Mr Potier seeks to tender the VHS recording of 2 February 2002 (his supplementary exhibit MHP 3), to show that there is no audio contained on that tape. Mr Potier notes that what was entered into the police evidence log book was described as being blank (save as to confirmation of date and time) with no audio on it; whereas the version played to the jury did have audio on it.
- At the second trial, Mr Potier cross-examined various police officers as to the provenance and integrity or authenticity of the tape. Relevantly, the VHS tape of the 2 February 2002 conversation between A and Mr Potier was taken from secure storage and delivered to Sergeant Van Dyke of the STIB for “enhancement”. Sergeant Van Dyke gave evidence that he had produced a CD from the master tape recording. The sergeant confirmed that his task was to process the VHS in an attempt to improve the intelligibility of the voices. He said that “using recognised signal processing techniques” he produced an STIB compact disc.
- In cross-examination by Mr Potier, Sergeant Van Dyke explained that he had prepared a pro forma statement as to the processing of the disc because of privilege in relation to the particular techniques involved in forensic signal processing. He said that the “enhancement” process was not capable of adding to a recording nor of removing answers from a recording. The sergeant confirmed that he had produced one STIB compact disc. He gave evidence that some portions of the tape were unable to be improved, referring to negative signal and noise ratio.
- The second tape enclosed with the 17 September 2014 further supplemental submissions (marked Supplemental Exhibit MHP 2) is described as a VHS audio tape provided by the police of the alleged conversation of Mr Potier and A on 6 February 2002 “not jury version”. The supplemental exhibit also contains the statement “Jury version taken from highlight tape not stored as exhibit”. Also part of “MFI 1” is what purports to be the transcript of the recording played to the jury of the 6 February 2002 conversation.
- Mr Potier has prepared an analysis of the highlight tape (MHP10) which he says shows that the tape was stopped roughly halfway through the recording played to the jury and not restarted. Mr Potier submits that the highlight tape played to the jury is therefore not the highlight tape as recorded because it has had 19 minutes of extra recordings put onto the end of it after it was stopped.
6 February 2002 recording
- Reference is also made to the evidence of Senior Constable Maglicic of STIB (T 822) to the effect that exhibit M (a disc that Mr Potier describes as the original recording of the 6 February 2002 conversation but which elsewhere is identified as a recording of the 2 February 2002 conversation) was not produced by the audio video signalling process section.
- Mr Potier maintains that this evidence shows that some person in the police force has altered the original recording of the 2 and 6 February 2002 conversations to add to the recording the alleged conversations. He makes this submission on the basis that: the only recording mediums placed in the police log book in 2002 were the VHS master tapes; the recording of 2 February 2002 was entirely blank but, after enhancement, it contained a full audio product; and that the conversation of 6 February 2002 comes from the highlight tape not entered into the police log book and that recording is noted as having been stopped approximately halfway through the conversation played to the jury.
Summary of position re the Telstra material and the recordings
- In summary, as at the time of, or at least by the end of, the second trial the position is that: Mr Potier was aware of the existence of the Telstra material (and had been since the filing of the January 2005 affidavit in the 2006 conviction appeal proceedings); he was aware that the Crown had, or at least may have had, that material before the end of the first trial (as per the cross-examination in August 2006 of Acting Superintendent Laidlaw); he was aware from the evidence of Detective Sipos that the 2 February 2002 recording played to the jury was from a “highlight” tape; and he knew that Sergeant Van Dyke had carried out what was referred to as forensic signal processing as a result of which the Crown maintained that the intelligibility of the voices on the original VHS tape recording had been improved.
- Furthermore, the Crown maintains that all recordings, including all 13 master tapes, were copied and supplied in advance of the second trial to junior counsel for the defence and points to the fact that Mr Potier did not dispute this when it was raised before the trial judge on 8 September 2006. The Crown also points to the evidence of Detective Sipos in this regard (T 734).
- Mr Potier nevertheless complains that nothing was disclosed in the second trial as to the “unusual” nature of the recordings or that there were two sets of recordings or that the Crown had (by the end of the first trial) received the Telstra material.
- Three sets of tapes/discs were marked for identification during the appeal hearing. In his 8 January 2015 supplemental submissions, Mr Potier identifies the respective MFI’s as follows:
MFI 1 as the two VHS tapes of alleged recordings of 2 and 6 February 2002.
MFI 2 as the two sets of recordings of alleged conversations between Mr Potier and Ms Conway between 2 and 9 May 2000, together, he believes, with alleged conversations of 4 and 5 May 2000 with M.
MFI 3 as the recordings of the alleged meetings of 2 and 8 May 2000 between Mr Potier and M.
- Mr Potier has sought to tender the tapes marked MFI 3. The Crown objects to that tender. I will deal with it in relation to ground 8 of the appeal. Suffice it to note at this stage that Mr Potier maintains that the discs marked MFI 3 were produced (with other material) in answer to the June 2008 order to produce and he relies on these as the actual tape recordings of the conversations between himself and M on 2 and 8 May 2000 (see AT 43; 10/11/14).
- Mr Potier in his submissions has requested the Court to consider the authenticity of all recordings played to the juries and to listen to the recordings at the same time as reading the transcripts of the recordings.
- In this regard, Mr Potier submits that in the conversations with M there were two conversations in effect being recorded and that they differ in style and content – namely, that while M talked about the solicitation of the murder of two people, he, Mr Potier, is recorded as repeatedly emphasising “Do nothing illegal” and “Get the evidence needed for the Family Court”. Mr Potier also maintains that the response recorded on the transcript as “mmm” to the question whether he wanted the persons “knocked” cannot be heard on the recordings. Hence, Mr Potier emphasises the importance of listening to the original material.
- For the reasons set out in due course, leave to tender MFI 3 should be refused but, even if it were to be admitted, it does not assist Mr Potier.
Submissions in the present proceedings
- Numerous submissions were filed on behalf of, or by Mr Potier. So that there is no doubt as to the material that was put before this Court by Mr Potier, those documents are listed below. As at the time of the hearing of the appeal, the Court had been provided by Mr Potier with:
- (1) Grounds of appeal against conviction submissions filed 10 September 2014 (referring to various documents copies of which were attached and described as MHP1 – MHP 14 respectively), with 5 appendices.
- (2) Further supplemental written submissions dated 17 September 2014 and filed 25 September 2014 (including supplemental exhibits described as MHP 1 – MHP 3 respectively).
- (3) Final submissions in conviction appeal (Part 1 of 2) dated 3 November 2014 and filed 4 November 2014.
- (4) Final submissions in conviction appeal (Part 2 of 2) dated 5 November 2014 filed 5 November 2014.
- The Crown filed submissions on 21 October 2014 and submissions in response to Mr Potier’s further ground of appeal on 30 October 2014. The Crown also prepared a summary of trial which was filed on 20 October 2014.
- Provided to the Court at the hearing of the appeal was a copy of the transcript of proceedings before the High Court on the special leave application in 2013 and the summary of argument filed on behalf of, or by Mr Potier in the High Court of Australia on 23 April 2013, dated 25 June 2013 and signed by Mr Brezniak, Counsel who appeared for Mr Potier on that application.
- After judgment was reserved Mr Potier also sought leave (which the Court granted) to file further submissions that he indicated would be prepared by Counsel as to the adequacy of the trial judge’s directions on the s 91 issue (as to admission of the fact of conviction). Leave was granted for Counsel’s submissions to be filed on that issue, Mr Potier having indicated that Mr Brezniak of Counsel had agreed to prepare them. Those submissions were ultimately filed, but expressed to be incomplete, on 23 January 2015. They extended beyond the scope of the leave that had been granted, to include submissions not only on the adequacy of the s 91 directions but also as to the admissibility of the tendency and coincidence evidence per se and the admission of evidence as to the fact of conviction. Mr Potier also filed submissions on 8 January 2015 in relation to the issue of the audio recordings. The Crown filed submissions in response to Mr Potier’s submissions on 30 January 2015. On 27 February 2015, Mr Brezniak filed an expanded version of the 23 January 2015 submissions. The Crown objected to reliance on those additional submissions but was given leave to reply to the additional material.
- I have taken into account all those submissions in preparing these reasons. I have also, as Mr Potier urged the Court to do, listened to the various audio recordings. That exercise was quite unproductive in terms of revealing any obvious lack of authenticity in the recordings but was instructive in dispelling any suggestion that the jury could not have been satisfied beyond reasonable doubt that what Mr Potier was talking about with M (when he referred to evidence being gathered) was something that did not bear the innocent explanation that Mr Potier seeks to ascribe to it.
Preliminary Ground of Appeal
- Before proceeding to the specific appeal grounds raised in Mr Potier’s notice of appeal, I note that in his written submissions Mr Potier has raised as a preliminary ground of appeal an allegation that the Crown has “deliberately and with conscious intent” denied him “all forms of access” to legislation and decisions of the courts. Similar complaint was made in the course of Mr Potier’s oral submissions. No detail is provided in Mr Potier’s submissions of instances where he claims he has been denied access to such material, although the transcript of various procedural hearings before Garling J in 2014 records a number of complaints by Mr Potier as to an inability to have access to his legal papers and facilities to review his electronic material.
- Mr Potier’s written submissions on this appeal make reference to various authorities and legislation, from which it is apparent that Mr Potier has had at least some access to the material to which he contends the Crown has denied him access. It is not apparent from the material submitted by Mr Potier that he has been prejudiced in his ability to articulate the basis for his appeal by any delay in access to his papers. He has had considerable time to prepare his appeal.
- No doubt there have been limitations on Mr Potier’s ability to prepare his submissions as a result of Mr Potier’s incarceration. However, it is also pertinent to note that Mr Potier has had numerous proceedings on foot – on 14 October 2014, he indicated that he had on foot, apart from the present proceedings, an application for administrative inquiry into his first conviction; an appeal from Garling J’s refusal to grant a writ of habeas corpus; an appeal regarding an application for a criminal justice stay warrant; an application before the European Court of Human Rights in Strasbourg; a judicial review application before the administrative court of the High Court in London; an appeal to the Court of Criminal Appeal in London; an application in the Chancery Division of the High Court in London; a part-heard judicial review application before the Supreme Court in Queensland; and an appeal from a decision of McCallum J declaring him to be a vexatious litigant.
- This complaint does not relate to the conduct of the second trial nor does it support any submission that that trial miscarried. (That issue is raised by ground 7 of the appeal.) Rather, it appears to be a complaint that these appeal proceedings involve a miscarriage of justice. He submits that these proceedings have “a real danger of miscarrying due to the substantial imbalance of resources available to each party to allow them to adequately argue their positions on appeal”. He invokes the decision of Jago v District Court of New South Wales  HCA 46; (1989) 168 CLR 23;  41 A Crim R 307 and submits that this Court has a positive and binding obligation to intervene to rectify this situation.
- In Jago, the High Court considered the trial judge’s responsibilities to ensure a fair trial and to avoid abuses of process, not specifically in relation to self-represented litigants, in the context of considering the circumstances in which criminal proceedings may be permanently stayed where there has been an unreasonable delay in the pre-trial process. It is not authority for the proposition that the substantial imbalance of resources of itself is a ground to uphold an appeal such as this.
- The duty of a trial judge where there is a self-represented accused is to give information and advice as is necessary to ensure that he or she receives a fair trial so that the accused is put in a position where he or she is able to make an effective choice as to the exercise of his or her rights during the course of the trial. The judge has a duty to ensure that there is no procedural disadvantage occasioned by the litigant’s unfamiliarity with the court process (see Rajski v Scitec Corporation Pty Ltd  NSWCA 1).
- It is apparent from a review of the transcript of various of the procedural hearings conducted by Garling J in the case management of the appeal proceedings, that his Honour was careful to ensure that procedural issues were drawn to Mr Potier’s attention and to make directions to facilitate Mr Potier’s ability to prepare his appeal.
- Considerable latitude has been extended to Mr Potier in the time allowed for, and manner of, the filing of submissions in these proceedings. It is also apparent that Mr Potier has had the benefit of at least some legal advice (from Mr Brezniak) from time to time in relation to these appeal proceedings. There is, in my opinion, no basis for complaint by Mr Potier as to any miscarriage of the appeal proceedings due to limitations on his ability to prepare submissions while incarcerated or due to the disparity in resources available to him as opposed to those available to the Crown.
Grounds of appeal
- Mr Potier has set out 8 grounds of appeal in his application filed on 15 September 2014. Those have been supplemented informally by an additional ground 1 in circumstances to which I refer in due course. The headings to the particular grounds are as articulated in Mr Potier’s submissions. There is considerable overlap between various of the grounds, as is apparent from the way in which Mr Potier has interleaved references to them in his submissions.
- Ground 4 alleges bias on the part of the trial judge. The High Court has said that an appellate court dealing with allegations of bias, coupled with other discrete grounds of appeal, must deal with the issue of bias first because bias strikes at the validity and acceptability of the trial and its outcome (Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd  HCA 55; (2006) 229 CLR 577 at ). In the present case it cannot be said that the complaint of bias is discrete from the remaining grounds of appeal (there being considerable overlap, for example, between ground 4 and ground 3, which challenges various rulings of the trial judge, as well as with grounds 1 and 5).
- In the circumstances, what I propose to do is first to deal, together, with grounds 3 and 4 of Mr Potier’s grounds of appeal (raising the issues of the correctness of his Honour’s reasons and bias), before turning to the remaining issues.
Ground 3 – Judge’s rulings; Ground 4 - Bias
- These grounds are expressed as follows:
3. That the Presiding Judge made a substantial series of Rulings against the Defence as a whole during the Trial which caused the Trial to miscarry.
4. That the Presiding Judge exhibited a number of instances of unreasonable bias against the Appellant and when called upon to excuse himself declined so to do thereby causing the Trial to miscarry.
- I have extracted from Mr Potier’s submissions the particular instances identified by him as relating to grounds 3 and 4. Mr Potier has listed the issues he seeks to raise under these grounds in a schedule attached to his 3 November 2014 (Part 1 of 2) submissions. For the most part the list in the schedule conforms to the issues extracted from the written submissions though on occasion there are some differences in expression. There is also a degree of repetition throughout the submissions as to the complaints that Mr Potier makes in these grounds.
- In Mr Potier’s schedule, he groups the complaints as to his Honour’s rulings under the headings “Pre-Trial”, “During Trial” and “Sentencing Hearing”. I propose to deal with the challenged rulings and the bias allegations together under broad headings relating to the substance of the complaints. (In relation to the particular complaints I have noted in square brackets where in Mr Potier’s schedule of issues he has indicated that the issue is dealt with in his written submissions.)
- Mr Potier maintains that each of the challenged rulings stands in its own right as a valid ground of appeal but submits that, together, they demonstrate overwhelmingly that there has been a miscarriage of justice. As to bias, he relies to a large extent on the number of adverse rulings made by his Honour, though particular rulings (such as the refusal to grant an adjournment of the trial in circumstances where Mr Potier then had no legal representation) are emphasised as demonstrating bias. Mr Potier’s submission is that:
The issue I take with his Honour in terms of how he conducted the issues was that if you look at the decisions that were made, in my opinion and my submission a number of them could quite easily have been said, well that was really in his discretion but the totality of them clearly takes it past that.
- Before turning to the particular issues raised by Mr Potier, it must be noted that where challenge is made to the correctness of rulings made by the trial judge on matters of evaluative judgment or in the exercise of his Honour’s discretion, what must be demonstrated by Mr Potier is error in the House v The King sense (House v The King  HCA 40; (1936) 55 CLR 499 at 504-5), namely that his Honour made an error of legal principle; made a material error of fact; took into account some irrelevant consideration or failed to take into account or give sufficient weight to a relevant consideration; or arrived at a result so unreasonable or unjust as to bespeak error of that kind (see also Micallef v ICI Australia Operations Pty Ltd  NSWCA 274 at ). In general, no attempt was made to identify such an error.
- As to bias, although Mr Potier said that he was alleging both actual and apprehended bias, nothing was put before the Court as going to actual, as opposed to apprehended, bias.
- Actual bias may arise through interest or by reason of relationship, friendship, enmity or other factor (R v Watson; Ex parte Armstrong  HCA 39; (1976) 136 CLR 248 at 258). The state of mind of a judge that needs to be demonstrated to establish actual bias is one “so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented” (Setka v Gregor  FCAFC 64 at , applying Minister for Immigration and Multicultural Affairs v Jia Legeng  HCA 17; (2001) 205 CLR 507 at 532).
- No basis for an allegation of actual bias is apparent. The transcript demonstrates that his Honour considered the submissions put to him by both the Crown and the defence in relation to the matters that arose for determination during the course of the trial. Even if his Honour had incorrectly made all of the adverse rulings about which Mr Potier complains that would not of itself warrant a conclusion of actual bias.
- Apprehended bias arises where a fair-minded person might reasonably suspect the judge of prejudging the case or might reasonably apprehend that the judicial officer might not bring an impartial and unprejudiced mind to the resolution of the question that he or she is required to decide (see Webb v R  HCA 30; (1994) 181 CLR 41; R v Commonwealth Conciliation and Arbitration Commission; Ex parte The Angliss Group  HCA 10; (1969) 122 CLR 546; Johnson v Johnson  HCA 48; (2000) 201 CLR 488; Ebner v Official Trustee in Bankruptcy HCA 63; (2000) 205 CLR 337).
- The hypothetical observer is taken to be a reasonable person (Director of Public Prosecutions (NSW) v Burns  NSWCA 265; (2010) 207 A Crim R 362 at  per Beazley J citing Johnson v Johnson at  – ). The hypothetical observer would not come to a hasty conclusion based on the appearance evoked by an isolated episode of temper or remarks to the parties or their legal representatives taken out of context (George v Fletcher (Trustee)  FCAFC 148 at ).
- Observations made in the course of argument (such as his Honour’s comments in the course of the withdrawal and adjournment applications) even if of a robust kind will not necessarily demonstrate bias. It is well recognised that in the course of a hearing there may be exchanges and even robust expression of views without leading to a conclusion that there was a reasonable apprehension of bias (Antoun v R  HCA 2; (2006) 224 ALR 51 at  &  per Kirby J, see also: Johnson v Johnson [at 493]; Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd at ).
- In the case of apprehended or ostensible bias the matter is determined by an objective examination of relevant facts (Spencer v Bamber  NSWCA 274 at ). All the relevant circumstances of the particular case may be taken into account in applying the test, though only such knowledge of matters of legal or other specialist practice and process as can reasonably be attributed to the lay observer (including, perhaps, matters of which the observer would inform himself or herself before reasonably forming any firm apprehension) will be taken into account (Vakauta v Kelly  HCA 44; (1989) 167 CLR 568 at 584-585 per Toohey J; Najjar v Haines (1991) 25 NSWLR 224 at 239-240 per Rogers JA).
- The application of the test for apprehended bias requires: first, the identification of what it is said might lead the decision-maker to decide a question other than on its merits; and, second, articulation of the logical connection between the matter identified and the feared deviation from the course of deciding the question other than on its merits (Ebner v Official Trustee in Bankruptcy at , as confirmed by the High Court in Michael Wilson & Partners Ltd v Nicholls  HCA 48; (2011) 282 ALR 685 at ; ).
- Perhaps unsurprisingly, since Mr Potier has no legal qualifications, he did not attempt to identify any such logical connection. I have therefore considered each of the instances of alleged bias to assess whether there is anything that might satisfy the test set out in Ebner v Official Trustee in Bankruptcy.
- In summary, none of the instances of alleged bias, taken individually or collectively, constitutes conduct that would in my opinion cause a fair-minded observer reasonably to suspect that the trial judge was not bringing or would not in the future bring an objective and impartial mind to the rulings and determinations he was required to make during the course of the trial. Nor is there any error in the House v The King sense revealed in the rulings made in the exercise of his Honour’s discretion. Therefore, grounds 3 and 4 have not been made out. The reasons for that conclusion by reference to the particular complaints that have been made are as follows.
Adjournment applications and the like
- Under this heading I have grouped together the complaints made by Mr Potier as to the refusal by his Honour to grant various adjournment applications, his Honour’s refusal to grant Mr Potier bail to prepare his case, and the complaint that his Honour placed Mr Potier in an impossible situation following the withdrawal of Mr Potier’s legal representation and denied Mr Potier access to material necessary for his defence or going to the preparation of the trial. As articulated by Mr Potier, those complaints are as follows.
Withdrawal of Mr Terracini SC on 3 August 2006
● the trial judge’s refusal to allow an adjournment after the withdrawal of Mr Terracini SC so that Mr Potier could adequately instruct replacement counsel and so that replacement counsel could adequately prepare [grounds 3 & 4]; [AWS 10]
● the trial judge’s misunderstanding as to reasons why Mr Terracini SC withdrew prior to start of trial [ground 3 – judge’s rulings] [AWS 11]
- The first refusal of an adjournment of which complaint is made relates to the application made following Mr Terracini’s withdrawal from the matter on 3 August 2006. It is necessary to set out in some detail the background to this (and the subsequent adjournment applications) in order to put his Honour’s respective adjournment rulings in context.
- The trial had been listed to commence on 7 August 2006. On 31 July 2006, Mr Potier, appearing without legal representation on this occasion notwithstanding that Mr Terracini was still retained in the matter at this stage, brought an application (having joined the Attorney-General and the Legal Aid Commission thereto) before the trial judge in which he complained as to legal aid funding issues or difficulties and sought a stay of the trial.
- The transcript reveals that, during the course of the discussion as to the stay application, his Honour observed that Mr Terracini was present (apparently on another matter) in the courtroom. Mr Terracini did not suggest to the Court that he would not be appearing at the forthcoming trial. Mr Potier’s stay application was dismissed. No complaint is made about this.
- On 2 August 2006, a further application was made for the vacation of the 7 August 2006 trial date. On that occasion, Mr Healey of Counsel appeared on behalf of Mr Potier, instructed by Ms McGowan (Mr Terracini’s instructing solicitor). The Crown foreshadowed an application the following day by Mr Terracini to seek leave to withdraw.
- Ms McGowan gave evidence in support of the application to vacate the trial date. Ms McGowan’s evidence was that, following a conference that had been held with Mr Potier at the gaol that or the previous day, Mr Terracini and his junior had withdrawn as Counsel. Ms McGowan was restricted in what she could say to the Court about the circumstances of Counsel’s withdrawal due to the need to preserve legal professional privilege. Ms McGowan gave evidence that she needed funding approval from the Legal Aid Commission in order to retain replacement Counsel. That was the basis for the adjournment application.
- His Honour refused at that stage to adjourn the proceedings. In so doing, his Honour expressed the view that if replacement Counsel were to be found the Legal Aid Commission would be obliged to extend funding (as indeed it did with no delay once leave was granted for Mr Terracini to withdraw).
- On 3 August 2006, as had been foreshadowed the previous day, Mr Terracini sought leave (for himself and junior counsel) to withdraw from the matter. He informed the Court that an impasse that could not be overcome had been reached “in terms of the future conduct of the case and how it is to be conducted”. In that regard he referred to applications “in terms of adjournments whilst other matters proceed” and an unidentified issue which he indicated legal professional privilege precluded him from elucidating.
- Mr Terracini also informed the trial judge that he would not be advising the Legal Aid Commission that Mr Potier’s case had been insufficiently funded, nor would he indicate to the Legal Aid Commission that it had either incorrectly or capriciously refused any application that the defence representatives had made to assist Mr Potier. Those statements were obviously inconsistent with, and it was open to his Honour to conclude reflected adversely on the reliability of, the basis on which Mr Potier had brought his stay application on 31 July 2006.
- As recorded in his Honour’s reasons for granting leave to counsel to withdraw, Mr Terracini informed the Court that:
...in every case there has to be at least an acceptance by an accused that the advice he has been given is sound and acceptance that there has to be a method of conducting a trial which of course does not seek to manipulate the trial process. ...
There are certain issues about which Mr Potier wants done an[d] it’s our view that certain matters not only shouldn’t be done but can’t be carried out in the version that he requires it. (my emphasis)
- This can only be understood as a reference to the Bar Rule pursuant to which a barrister may return a brief if the barrister’s advice as to the preparation or conduct of the case, not including its compromise, has been rejected or ignored by the instructing solicitor or the client as the case may be (Rule 99). That was certainly the understanding of the Crown as to the basis for the withdrawal of Counsel from the case as later explained to the Court of Criminal Appeal on 13 September 2006.
- A note prepared by Mr Potier setting out Mr Potier’s understanding of the reasons for his then Counsel’s withdrawal was included in the appeal books in these proceedings as a confidential attachment to Mr Potier’s submissions on this appeal (MHP 6). Mr Potier did not wish to waive legal professional privilege in the advice, although indicated a preparedness to do so if necessary. Given that the document represents no more than Mr Potier’s stated understanding of the position at the time and, more importantly, that it was not available to the trial judge at the time, there is no useful purpose to be served by a waiver of legal professional privilege in relation to that document. Its contents cannot have informed his Honour’s assessment at the time so cannot be relevant when considering whether his Honour had erred in the exercise of his discretion or whether his conduct in refusing the application gave rise to a reasonable apprehension of bias. This complaint is therefore without foundation.
- In a subsequent application to the Court of Criminal Appeal in September 2006 seeking to appeal the refusal of a later adjournment application, Mr Potier informed the Court that Mr Terracini had been wrong in advising as to “a particular inclusion of a particular type of evidence”, since Mr Healey had subsequently advanced that evidence without objection from the Crown. Whether or not that be the case is irrelevant. What is relevant is that it was open to the trial judge on 3 August 2006 to conclude, from what had been said in Court on 2 and 3 August 2006, that defence counsel considered themselves bound to withdraw from the case not only because advice given by them to Mr Potier had not been accepted but also because they considered that his instructions could not be carried out consistently with their view as to their ethical obligations to the Court. The inconsistency between Mr Terracini’s statements as to a lack of any funding or other legal aid difficulties and what Mr Potier had said on 31 July 2006 was also a matter open to be taken into account by his Honour in that context.
- In his reasons for judgment when granting leave to withdraw his Honour referred to the stay application that had been made (on 31 July) on the basis of insufficient payment of counsel; that Mr Terracini had specifically denied any funding problems; and that the application had wasted the time of the Crown Prosecutor, instructing solicitors, the barristers appearing for the Attorney-General and the Commissioner of Police, and the legal aid solicitors. His Honour also noted that Mr Potier’s solicitor (Ms McGowan) had said that Mr Healey and Mr Lowe were prepared to accept the brief subject to Legal Aid Commission approval.
- His Honour expressed the view that, though the brief was voluminous, the matter was not of great intricacy or complexity. His Honour also expressed the opinion that Mr Potier had manufactured the situation (in which his barristers had withdrawn from the case a week before the trial commenced) himself and said that “this Court is not to have its list radically re-arranged because of the manipulation of the particular accused”.
- His Honour made clear on 3 August 2006 his intention that the trial would commence on 7 August 2006, as listed, whether or not Mr Potier had legal representation.
- His Honour’s discretion did not miscarry. His Honour took into account the relevant matters. The complaint that his Honour misunderstood the reasons for Mr Terracini’s withdrawal fails to take into account the fact that those reasons were not available to his Honour at the time (nor is there any evidence even now from Mr Terracini as to those reasons). All that was before his Honour in that regard was what Mr Terracini had said in open court, which put his Honour on notice that experienced senior counsel considered that his client’s instructions were inconsistent with the manner in which the matter could ethically be conducted. His Honour’s comment as to the manipulation of the list, understood in the context of what had occurred the previous week and the observations made by Mr Terracini (which his Honour could have expected not to have been lightly made), does not reveal bias.
- As to the complaint that his Honour did not allow time so that replacement counsel could adequately prepare the matter, as already noted the trial did not in fact commence on 7 August 2006. Presumably this was because, after his Honour’s judgment on 3 August 2006, an application was made by Mr Potier to the Court of Criminal Appeal for a stay of the trial. That application was ultimately withdrawn, following which Mr Healey, who had by then been retained to appear at the trial, made an application on 11 August 2006 to the trial judge for an adjournment of the trial (then listed to commence on 14 August 2006). Mr Healey confirmed the reassignment of legal aid in the matter and to there being “extreme difficulties”, which appears to be a reference to difficulties in preparation of the matter for a trial commencing on 14 August 2006. Part of that difficulty may well have been the time taken up in the appellate proceedings that were not pursued, but in any event it appears that replacement counsel had around a week after the reassignment of legal aid to prepare for the trial.
- His Honour did not accede to the application for an adjournment beyond 14 August 2006. His Honour expressed the opinion that the difficulties were not insurmountable and the suspicion that if the trial did not start then there would be further delays.
- Relevantly, however, his Honour also indicated that he would go to any length to see that Mr Healey was not inconvenienced (giving as an example the possible situation where Mr Healey had not read a witness’ previous evidence before that witness came to give evidence in the present trial). Although his Honour said that the trial would start on 14 August 2006, he also said that any such adjournment applications (to meet Counsel’s difficulties in preparation) would be dealt with as they arose.
- In context, therefore, the refusal on 11 August 2006 of an adjournment to the starting date of the trial would not raise a reasonable apprehension of bias. The suspicion that his Honour there expressed of there being further delays if the trial did not then start was one that his Honour no doubt had formed based on the events that had preceded the withdrawal of Mr Terracini. That suspicion was not without some foundation.
- No error in the exercise of his Honour’s discretion has been revealed. His Honour clearly took into account the need for efficient case management of the trial and the ability to accommodate any difficulties caused by the short time counsel had had to prepare by the grant of short adjournments as and when the need arose.
- For completeness, I note that when the second trial commenced, on 14 August 2006, a further application for an adjournment was made (and rejected). It is not clear whether Mr Potier takes issue with the refusal of this particular adjournment application. If he does, then for the same reasons as those already given, no bias and no appellable error is shown in the making of this ruling. Mr Healey did not point to any particular difficulty in preparation at that time. Moreover, it is tolerably clear that no prejudice resulted to Mr Potier from the refusal of this application. By 18 August 2006, only two days after the re-commencement of the trial, Mr Healey was able to inform his Honour that counsel “are almost on top of it [the brief] at the moment” (though seeking an adjournment, which was allowed, before the commencement of cross-examination of Ms Conway, the Crown’s first witness).
Denial of right to consult and instruct counsel
● the trial judge’s refusal to allow defence counsel time to receive instructions from Mr Potier during the trial; [ground 3 – judge’s rulings] [AWS 11]
- This complaint relates to an incident on day 9 of the trial, 28 August 2006, when Mr Potier still had the benefit of legal representation. The transcript records that Mr Healey raised with his Honour, in the absence of the jury, that the accused had been late to Court and that the defence team had been able to see him for only five minutes before Mr Potier was taken away. Mr Healey’s request to the judge was whether efforts might be made to assist the defence to “give them time”.
- It is clear that Mr Healey was not requesting an adjournment of the trial at that stage but was raising a complaint as to the time taken for Mr Potier to be transported from the gaol that day. His Honour said that he could not really assist in that (i.e., presumably in the arrangements by which corrective services transported prisoners to court for court hearings) but went on to say that if the defence needed to get instructions on the run “we will just pause”.
- Mr Potier maintains that denial of the right to consult and instruct defence counsel is of itself a ground for retrial as it is a denial of natural justice. There is no substance to Mr Potier’s complaint in this regard. Mr Healey did not seek an adjournment to obtain instructions on the particular occasion to which Mr Potier has referred; nor has any prejudice been shown from the late arrival of Mr Potier to court on that occasion.
- In the period that Mr Healey represented Mr Potier, as Mr Potier in fact concedes (in his first submissions p 11) his Honour granted adjournments on a number of occasions to permit Mr Healey to seek instructions (the first being on the very day the trial commenced when Mr Healey sought and was granted an adjournment until midday to obtain instructions as to a potential Bashaenquiry).
Mr Healey’s withdrawal – 7 September 2006
● the trial judge’s refusal to grant application for adjournment after withdrawal of Mr Healey of Counsel; [ground 3 – judge’s rulings]
- This complaint arises out of what has been referred to as the “Carlos” incident. Some detail is needed in order to explain that incident (which features as the basis for numerous of Mr Potier’s complaints).
- By 6 September 2006, Mr Healey was in the process of cross-examining A, the prison informant whose evidence was that Mr Potier had solicited him to arrange the murder of Ms Oswald. On that day, A gave what Mr Healey described as an answer that was “totally out of the blue” to a question by Mr Healey. In Mr Potier’s initial submissions of 10 September 2014 he asserted that the answer that had been given came “as a major shock to all present”.
- The question arose during the course of cross-examination by Mr Healey as to what was set out in the transcript of one of the conversations recorded in A’s cell (the 2 February 2002 conversation). A was asked to explain the statement “you get Carlos”. He was asked a very open-ended question, namely “what is that about?”. This was one in a succession of similar questions, the thrust of the cross-examination being to ascertain A’s explanation of what was contained in the transcript and then to put to him that the explanation was false.
- A’s answer was as follows:
A: At that stage you know my memory is telling me that, I remember Malcolm Potier wanted Carlos killed. He was another inmate in the goal.
A: ... and I think that was a note to me in order to see if I could arrange to spread the word to get him killed for a thousand dollars.
- Mr Healey immediately asked to speak to the judge in the absence of the jury. Mr Healey was given a short time to take some instructions and then informed his Honour that the answer was totally out of the blue; that he had instructions that a man called Carlos had been Mr Potier’s cellmate and was in the same wing but had moved to another cell; that there had never been any suggestion of violence or problems between the two; and that what was set out on that page of the transcript was complete nonsense and nothing could be made of it.
- In the debate with his Honour that followed, there was some confusion as to what instructions Mr Healey had had about that topic before the question was asked. However, the exchanges between Mr Healey and the trial judge can only be understood as conveying that Mr Healey’s instructions before asking the question were limited to what had been indicated to his Honour (as summarised at  above). Mr Healey did not suggest (nor could he, consistently with the basis on which objection was being made to the answer given to the question, have suggested) that he had instructions, before asking the question, that what was in the transcript related to a suggestion that a fellow prisoner be killed.
- Mr Healey maintained that A had simply volunteered that answer. His Honour clearly did not accept that characterisation of what had happened. He pointed out that Mr Healey had asked the question and that the witness had answered it. His Honour commented, in the course of that exchange, that Mr Healey had brought this on himself and that he should not have asked the question in the way he did (an observation that would best be characterised as part of the robust exchange of views between bench and bar in the absence of the jury).
- Mr Healey indicated that his cross-examination of A had been seeking to establish the “unreliability of the expressions” (in the transcript) and that A was fantasizing.
- Mr Healey then sought another adjournment to talk to his client, indicating that consideration had to be given to whether there be a request to abort the trial, and informing his Honour, that Mr Potier had asked for advice as to whether this fresh issue might affect his chance of acquittal.
- Having been given a further opportunity to discuss the matter with Mr Potier, Mr Healey then informed his Honour that Mr Potier wished him to ask A on the voir dire some questions such as whether he had reported that information (i.e., that Mr Potier wanted Carlos killed) to the prison authorities or police officers. The Crown had no objection to the asking of further questions but foreshadowed that the answers might lead to “a fuller development of this new and unfortunate point” that had arisen.
- The Crown in that context raised concern as to a possible Birks point of appeal. The reference to a Birks point of appeal (i.e., an appeal on the ground of incompetence of counsel as considered in R v Birks (1990) 19 NSWLR 677) was obviously made in anticipation that Mr Potier might attempt to rely on the Carlos question as a subsequent ground of appeal based on incompetence of counsel (Mr Potier having unsuccessfully raised a Birks point on appeal after his first trial). The Crown pointed out that there was further reference to Carlos in the transcript which it submitted lent some credence to A’s answer.
- The Crown submitted that, by way of “cure”, his Honour should give a suitable direction to the jury.
- His Honour then indicated his perception that there was a risk that if Mr Healey continued on with this issue that the trial might be so “muddled” as to require that it be aborted and observed that, if Mr Healey’s cross-examination was intended to put forward that A was an agent provocateur and made up stories, then the making of what the defence would contend was a further (albeit unexpected) one might not be to the accused’s disadvantage. His Honour also expressed a doubt as to the wisdom of asking A a further question that the Crown had suggested would probably amplify what A had already said.
- Mr Healey took issue with the Crown’s suggestion (which he described as fanciful) as to the Birks point and in that context said “if I was to take up his suggestion, it would mean that this counsel would withdraw on the Crown’s assertion, from representing this accused in this trial”.
- I interpose to note that at this point it can be assumed that Mr Potier (who was present in Court and had apparently been following the course of proceedings sufficiently closely to have immediately sought advice at the time as to how the matter might affect his chances of acquittal) must by now have understood the significance of the so-called Birks point as being that it might lead to the withdrawal of counsel. As noted, Mr Potier had raised a Birks point of appeal, unsuccessfully, in relation to his conviction in the first trial. He presumably had also heard reference by his Honour to the possibility that the trial might become so muddled as to require that it be aborted.
- This assumes some significance in light of the course Mr Potier ultimately took, as will shortly be outlined.
- Mr Healey then confirmed that Mr Potier saw the advantage of asking A on a voir dire whether he conveyed the Carlos information to the authorities and Mr Healey said that if A said no, then Mr Potier would wish that to be put to the witness in the presence of the jury to show that “he makes it up as he goes along”. Mr Healey added:
He understands, and I am not going to quarrel with your Honour’s first wise suggestion [apparently a reference to giving the jury a direction and not pursuing the matter further], but at the end of that subject that the answer was given, the accused wished to give me certain instructions to abort the trial. I have got to follow his instructions and the course which I suggest [i.e. for there to be a voir dire], I act thereafter.
- The Crown indicated that it might have to re-examine A to re-establish his credibility.
- It was in that context that his Honour acceded to the request for a voir dire to be held. A’s evidence on the voir dire was that he did not report the Carlos matter to the authorities. A also gave evidence to the effect that he thought Mr Potier was joking about wanting to have Carlos killed.
- However, after taking further instructions from Mr Potier, Mr Healey did not proceed as had been foreshadowed (i.e., to move to elicit that same evidence from A in the presence of the jury). Instead, Mr Healey said he was instructed to apply for a discharge of the jury on the basis of irremediable prejudice, referring to the “unsolicited” answer.
- His Honour refused to discharge the jury for the reason that the answer that had been given was a result of the course chosen by counsel in cross-examination of A. His Honour indicated that he proposed to give the jury a direction to disregard that evidence; to tell them that it formed no part of the Crown’s case and that it would be irrelevant and unfair to both the accused and the Crown to take it into account.
- His Honour also decided at that point that there should be no further reference to the Carlos issue because otherwise the Crown would re-examine and the defence would be back with the same problem. His Honour indicated that if Mr Healey asked him to direct the jury to disregard the answer, then the matter would not be able to be revisited. Mr Healey appeared to accept that.
- When the jury returned his Honour gave the kind of direction that had been foreshadowed.
- At some point that day, Mr Potier handed, through his solicitor, to Mr Healey a note. Following the luncheon adjournment, in the absence of the jury, Mr Healey again raised the matter of the Carlos incident. He informed his Honour that during the luncheon adjournment he had had a conference with Mr Potier in which Mr Potier had raised concerns that he was not receiving a fair trial. Mr Healey indicated that there was uncertainty as to whether Mr Potier wished Counsel to remain in the trial and indicated that he would need to seek a ruling from the Bar Council as to his position.
- His Honour at that time made it clear that Mr Potier should know that if he either withdrew his instructions or made the position intolerable for counsel the only option he would have would be to conduct the trial himself. His Honour recognised that Mr Potier would face very severe difficulty in conducting his own trial but said that he did not want Mr Potier to labour under any misapprehension that he could cause any delay in the trial because of this issue; and that if Mr Healey were not his Counsel the trial would go on. His Honour also expressed his opinion that the conduct of the trial at Mr Healey’s end had been beyond reproach; and that in circumstances where virtually the whole of the first trial had been replayed in the second, this material did not count very much one way or the other. The note that Mr Potier had handed to Mr Healey was later read onto the transcript but at this point the trial judge was unaware of its contents.
- On 7 September 2006, Mr Healey formally applied for leave to withdraw. He advised his Honour that he had taken advice from senior counsel; that the operation of both parts of Rule 101 of the Bar Rules necessitated his withdrawal; and that Mr Lowe was also in the same position.
- At the relevant time, Rule 101 of the Bar Rules was as follows:
101. A barrister who has reasonable grounds to believe that there is a real possibility that the barrister may cease to be solely a disinterested advocate by becoming also a witness in the case or a defender of the barrister’s own personal or professional conduct against criticism must return the brief as soon as it is possible to do so without unduly endangering the client’s interests, unless:
(a) the barrister believes on reasonable grounds that:
(i) allegations which involve the barrister in that way have been raised in order to remove the barrister from the case; and
(ii) those allegations can be met without materially diminishing the barrister’s disinterestedness; and
(b) a member of a Professional Conduct Committee of the Bar Association who is Senior Counsel approves of the barrister keeping the brief after the barrister has informed that Senior Counsel of the circumstances.
- Ms McGowan also sought leave to withdraw on the basis of her lack of experience and said that her client had instructed her that it would be unfair for her to continue without Counsel. She indicated that she had earlier (in the context of her position when Mr Terracini withdrew) obtained advice from the Law Society’s Professional Standards Committee and that that advice continued to apply.
- The Crown referred to the fact that Mr Potier had previously raised a Birks argument in respect of the conduct of the first trial and said:
... in the absence of any further indication from the defence [sic], particularly Mr Healey, as to the reasonable grounds for his application to withdraw in accordance with the Bar rules [sic], one is left to conclude that in an eerily coincidental way with the withdrawal of Mr Terracini, that the accused has, if you like, sought to compromise yet another legal team’s instructions, in such a way that without actually dismissing them or terminating their instructions, they are nevertheless forced into a situation where they submit they are so compromised that they must withdraw.
In my submission the accused may be hoping to capitalise on a distinction between terminating instructions and effectively sacking his lawyer, and the situation where he would say through no fault of his counsel [sic] withdraw leaving him unrepresented.
- In his Honour’s reasons granting leave to withdraw he said that both Mr Healey and Mr Lowe had indicated that they were minded to withdraw and that Ms McGowan was in no position to conduct the case and had considered that the advice from senior counsel also applied to her. His Honour said: “As this is the second set of counsel who have been confronted by the same problem, I can only conclude it is one of Potier’s own making and he must bear the sole responsibility for what has occurred”.
- Nothing in the above reveals any basis for a reasonable apprehension of bias on the part of his Honour in the manner in which his Honour dealt with the withdrawal of the second set of Counsel. I consider later the complaint raised by Mr Potier as to the manner in which the withdrawal of Counsel was done before the jury.
- Following the grant of leave for his defence team to withdraw, Mr Potier applied for an adjournment of the trial. The Crown opposed the adjournment.
- In ruling on that adjournment application, his Honour said that the case largely comprised telephone intercepts and recordings; that no one would know the case better than the accused and that Mr Potier had instructed counsel on two occasions and neither had raised problems in receiving instructions, which indicated to his Honour that Mr Potier was well aware of the matters he wanted to put before the jury and quite capable of doing so. His Honour said that no one was in a better position than Mr Potier to be in command of the case he sought to put, and that he had been warned as to the consequences of his actions and said: “that he has compromised yet another set of counsel can only be seen as a deliberate act on his part”.
- Bearing in mind the course of events (so far as they were then known to his Honour) to that stage, it cannot be said that his Honour’s refusal to grant an adjournment demonstrated any error in the exercise of his discretion. Nor did it demonstrate bias.
- An application for his Honour to disqualify himself for apprehended bias was then made and rejected. It is also the subject of complaint. I deal with this as part of the group of complaints directly relating to the Carlos incident.
Termination of legal aid
● the trial judge’s refusal to allow an adjournment under s 57 of the Legal Aid Commission Act (in circumstances where an appeal from the withdrawal of legal aid had been the subject of preliminary submissions by Mr Potier) [relied on for both grounds 3 & 4]; [AWS 16]
- On 15 September 2006, there was a further application for the adjournment of the trial consequent upon the withdrawal of Mr Healey, by which time legal aid for Mr Potier had been withdrawn.
- The background to this is that, following the ruling on 7 September 2006, Mr Potier brought an application to the Court of Criminal Appeal pursuant to s 5F of the Criminal Appeal Act 1912(NSW) for leave to appeal from the trial judge’s refusal to grant an adjournment. It was contended on that application that the trial judge had erred in drawing the inference that Mr Potier was at fault for being in the position that he was unrepresented at the trial. In the course of that application, Mr Potier sought to adduce fresh evidence, namely to call Mr Healey (thereby waiving legal professional privilege) so as to explain the reason for his withdrawal.
- The Court of Criminal Appeal (Hunt AJA, Barr and Johnson JJ) did not consider that the adducing of fresh evidence was an appropriate procedure when it was open to Mr Potier to renew his application for an adjournment before the trial judge with that fresh evidence to support it and refused Mr Potier leave to appeal from that decision (Potier v R  NSWCCA 300). Their Honours made the observation (at ) that the inference the judge had drawn (that Mr Potier was at fault for the departure of his counsel) was clearly open to the trial judge on the material before him. Hunt AJA commented, in the course of argument on that application (on which Mr Potier places reliance as supporting his contention that the trial judge was biased) that the course of Mr Potier representing himself would be a disaster in such a complex matter.
- The trial then resumed on 14 September 2006. On that occasion, a solicitor representing the Legal Aid Commission, Mr Kirkwood, informed the Court that legal aid had been withdrawn with effect on 13 September 2006 for reasons that he could not reveal without breaching legal professional privilege, although he was able to indicate that the departure of Mr Healey was a consideration that came into the decision.
- Mr Potier informed the trial judge that he had lodged a preliminary application, appealing that decision to the Legal Aid Review Committee and submitted that this acted as a stay of the proceedings, invoking s 57 of the Legal Aid Commission Act 1979 (NSW). (He also invoked Article 14(3) of the International Covenant of Civil and Political Rights.) Mr Potier submitted that the trial judge should rule on the application for a stay having regard to s 57 of that Act first, since, if his Honour ruled on that application in his favour, it would not be necessary for Mr Healey to divulge his instructions.
- Section 57 of the Legal Aid Commission Act provides for a stay of proceedings where the Court is satisfied: that a party has appealed or intends to appeal in accordance with s 56 to a Legal Aid Review Committee; that such an appeal is competent; that the appeal or intention to appeal is bona fide and not frivolous or vexatious or otherwise intended improperly to hinder or delay the conduct of the proceedings, and that there are no special circumstances that prevent the Court from so doing.
- The purpose of s 57 was explained in Lewis v Spencer  NSWSC 1383; (2007) 179 A Crim R 48 by Rothman J as being to ensure that, so far as practical, persons without the means to be represented are not tried and convicted in the absence of representation, when there is a possibility that, after their application for legal aid has been dealt with, they will be properly represented. His Honour noted that representation of parties in proceedings aided not only the parties themselves but also the administration of justice.
- The determination of the bona fides of an appeal is one that has to be determined objectively. It is a question as to whether the appeal is being pursued for relevant purposes. Whether the applicant subjectively believes that the application or appeal is bona fide is not sufficient to prove that it is objectively of that nature (see Re Barbara Ann Cameron and Gamester Pty Ltd v Rural Press Ltd; John Lindsay Parker and Timothy Roy Starkey  FCA 157; (1992) 35 FCR 211; Heidt v Chrysler Australia Ltd (1976) 26 FLR 257).
- There is some debate as to whether there is any more than an evidentiary onus on the party opposing an adjournment to establish circumstances sufficient to engage either of the sub-sections in s 57, in order to overturn the prima facie position that, an appeal having been lodged or an intention to appeal having been indicated, the proceedings are to be adjourned (see Rothman J in Lewis v Spencer at ; Fibre-Tek (Gold Coast) Pty Ltd v Skye Bennett  NSWSC 1100; HSBC Bank Australia Ltd v Murtough  NSWSC 320). It is not necessary here to explore that issue.
- The circumstances before his Honour, when considering whether he was satisfied that the appeal to the Legal Aid Review Committee was frivolous, vexatious or intended to hinder or otherwise delay the proceedings, included those from which it was open to his Honour to infer that Mr Potier had manufactured a situation in which both sets of counsel had been forced to withdraw from the proceedings. The relevant circumstances also included that Mr Potier’s legal aid had been withdrawn by the Legal Aid Commission for the reasons proffered by the solicitor for the Legal Aid Commission appearing before his Honour, Mr Kirkwood.
- As made clear in his Honour’s subsequent reasons on the dismissal of the adjournment application, the trial judge considered that the fact that Mr Healey and Mr Lowe were the second set of counsel forced to withdraw from the case prima facie put in question the bona fides of the appeal and therefore it became necessary to consider the circumstances of Mr Healey’s withdrawal.
- In response to the suggestion by Mr Potier that if Mr Kirkwood from the Legal Aid Commission were to confirm that two of the reasons for withdrawal of funding did not concern Mr Healey, then Mr Healey would not be pivotal to the deliberations under s 57 of the Act, his Honour said:
All the relevant material I have to take into consideration includes not only Mr Healey's withdrawal, but it also includes Mr Terracini's withdrawal from the case as well.
It is important to me because it shows a pattern of behaviour, and even as I see it, without knowing the full facts which are apparent, that would be as much as anything else that would convince me that your appeal may be vexatious.
- Mr Potier waived privilege in relation to the disclosure of the contents of the letter from the Legal Aid Commission withdrawing legal aid. The letter was read onto the transcript by Mr Kirkwood:
Ground 1. You have failed on numerous occasions to co-operate with the Legal Aid Commission and the representatives engaged by the commission on your behalf.
Ground 2. You have failed on numerous occasions to heed advice provided to you by the commission and/or the legal representatives engaged by the commission on your behalf.
Ground 3. You have through your actions forced the withdrawal of the legal representatives engaged by the commission on your behalf on numerous occasions just prior to or during the hearing of the matter.
- His Honour reviewed that letter and said that it confirmed the view he had that the application was vexatious, whereupon Mr Potier said that if that was the case then “with the greatest regret” he would have to waive the privilege in respect of Mr Healey. His Honour made it clear on at least three occasions that it was up to Mr Potier whether he chose to waive privilege. There followed this exchange:
ACCUSED: My perception of threat, and this is mine not yours, I know you are not threatening me, my perception is this, if I do not waive privilege, I do not get an adjournment. If I do [not] get an adjournment, I am going to be defending this matter tomorrow morning, and that's going to give me enormous--
HIS HONOUR: An applicant in the Court has the carriage of the matter and the responsibility of the application. You are the applicant, you remain the applicant for the adjournment. It is a matter entirely for you what evidence you place before me. So far I see no evidence to persuade me that any adjournment is appropriate in these circumstances. If you wish to call some evidence, do so.
- Shortly before that exchange, his Honour had said to Mr Potier:
Let me put it this way to you, Mr Potier, if the appeal was the result of the withdrawal of instructions and withdrawal from the case by Mr Healey, if that was one of the reasons for Legal Aid to refuse or withdraw legal aid, then in order for me to form the view it was not frivolous and vexatious, that is your appeal, having regard to the fact that the second set of counsel have withdrawn, under circumstances which have not been entirely clear to me, then unless I am convinced that it isn't frivolous or vexatious, that does not form grounds for an adjournment of these proceedings. So unless you waive privilege and Mr Healey can come into court and tell me why he withdrew and what transpired between you, then the case is unaltered.
So in order that the Gordian knot be cut, you would have to waive privilege. If you don't want to do that, that's a matter entirely for you. Then I shall not have regard to section 57, because I would regard your appeal, having regard to all the circumstances, as being frivolous and vexatious. It is a matter entirely for you.
- Mr Potier ultimately waived legal professional privilege in respect of the advice given at the 6 September 2006 conference and Mr Healey was called to give evidence on the voir dire. Questioned by Mr Potier on this issue, Mr Healey stated his opinion that he did not consider that the raising by the Crown of R v Birks was a matter of concern or a relevant issue.
- At Mr Potier’s request, Mr Healey read onto the transcript the note written to him by Mr Potier on 6 September 2006, as follows:
I have to put on records with you my worry about what Crown has said R v Birks and yourself. My concern is this, am I accepting and thereby giving up a ground of appeal? What the Crown says is your mistake in the, “Carlos” questions in light of his Honour's ruling about not aborting the trial and you not being able to further cross-examine I do feel that a major damage could have been done to my defence.
- In the cross-examination by the Crown that followed, Mr Healey gave evidence as to the advice he had given in conference with Mr Potier. Given the significance attributed to the Carlos incident and the fact that it led to the withdrawal of Mr Potier’s legal representation, that should be set out in full:
Q. Once that piece of paper had been read by you would you go on to tell his Honour what your response to the accused was?
A. Your Honour, I said to the accused, I will not disabuse you of some of your view although I do not angry [sic.; scil agree] with it. I will need to withdraw if you feel that you may lose a chance to be acquitted.
Q. What with [sic; scil did] he say?
A. He said, “I’m not asking you to withdraw and I’m not sacking you.”
Q. You said?
A. I said, “Well, don't raise it. If I withdraw the judge will force you on without counsel. You will not get an adjournment.”
Q. He said?
A. “I do not like attitude of the judge.” He is quite negative towards me and I feel that he is blackmailing me.”
Q. And you replied?
A. I said, “It is your case. If you feel that the competence of counsel, Birks, is really an issue, then in my view the CCA rarely gives credence to it, especially not in a case like this. I think that we should just should [sic] go on.
A. And he said, “It is not your fault. I am one hundred percent in the belief that you are correct in what you have said. The judge has drifted into error and I’m worried ... that he has impeded your cross-examination. I’m very worried about it.”
A. And I said to him, “Are you asking me to form a view that I can not adequately represent you and I will have to withdraw?” The accused said, “If it leaves me in a situation where I have to represent myself then, so be it.” I said, “If you feel that you are going to lose in the Court of Criminal Appeal are you saying that I should withdraw?” He said, “The judge gave directions to the jury and I cannot get back what has been said, especially in this case. The jury may think that I am a murderer or a psychopath and I am not going to be blackmailed by that judge.” I said, “Do you have no confidence in counsel, or that counsel cannot discharge his duties?” He said, “I believe that you can, but the Crown has said Birks’ case applies and I am in a situation where I cannot say that I have not lost a chance in the CCA if you remain. Can I? That is the dilemma that I have.” I said, “I think that your concern is academic and splitting hairs. If I withdraw you have Peter and Frances.” He said, “That is a grossly unfair. I don’t want Peter and Frances is not able to conduct my defence.
I said, “You must put aside what has happened and allow me to continue to represent you, but you must listen to my advice.” He said, “I cannot. It is a problem if the trial is allowed to continue with the ‘A’ stuff in front of the jury. (1), you can tell the judge that you are threatening to withdraw from appearing for me unless he allows you to ask questions of ‘A’ on the Carlos issue, or, (2) that you, Healey, will act to withdraw from appearing for me on my instructions to you, upon my worries set out in number 4 to the damage caused and you continuing to appear. I also ask you to have the judge disqualify himself as I feel that he is biased against me and I feel that I can not get a fair trial.”
I said, “I can not do that and I will not be a party to manipulating the system of justice. The judge has made his decision and you can appeal against that later if you are convicted.” He said, “Well, I'm not going to be blackmailed by any judge who will not allow my counsel to ask a question. If I am without counsel he must discharge the jury. I do not want to continue the trial with this judge. The competence of my counsel having been raised by the Crown in Birks may impinge upon my right to appeal against his Honour's refusal to abort the trial if you continue to act for me. I said, “You can continue to retain me and continue with the trial. You will not lose your chance of appeal against the refusal of the judge to discharge the jury. The accused said, “You are asked that question then ‘A’ buckets shit on me about Carlos.”
I said, “The CCA will not uphold that argument on a Birks point in my opinion and you still have the argument about refusing to abort the trial anyway.” And accused said, “How will I ever know?” I said, “I can not answer that for you, Malcolm. You can continue to use me and keep me as your counsel, but I can not be party to manipulation of the legal system. I am either in or out. You can either withdraw the point or I may take the view that I should withdraw. It is clearly an academic argument that you are raising. You can withdraw your instructions or I may have to withdraw.”
I then came up to court with my instructing solicitor and spoke to Mr Lowe and raised the matter with the Crown and your Honour in chambers and sought further time to speak to the accused. At about 2.15pm I went to the cells with Ms McGowan and Mr Lowe of counsel and spoke with the accused, I raised the issue of the note with him again and we spoke until about 2.30pm.
I said, “I have seen the judge and I need to clarify with you what will happen if I withdraw. The judge has indicated that the trial will continue and that Mr Lowe can continue to act for you.” Mr Potier said, “No, if the leader goes, so does Mr Lowe. Your solicitor is not competent to run technical arguments and issues.” I said, “Exactly, the trial will continue at 3pm today without counsel unless you withdraw your concern about me continuing to act for you. You will need to martial the brief and you will not lose the opportunity of ground of appeal based on his Honour's refusal to abort the trial. The issue is only one of splitting hairs. You have an unenviable situation that you have put yourself into mounted on tenuous ground of appeal based on the Birks point. To put to me as your counsel that I should withdraw if I am the subject of a possible ground of appeal is ridiculous. I not go wish to withdraw and you should withdraw point 4 in writing if I am to continue.
He said, “I do not want you to withdraw.” I said, “Well, then there is only one thing to do, and that is it to withdraw your feelings about the Birks point and what follows.” The accused said, “I will not be blackmailed by any judge. I won’t bow to blackmail. He wants to bury me without trace. My feelings are that if you did withdraw I would stand up at 3pm and ask him to abort the trial. If his Honour won't abort the trial then I want to go to the cells. I do not want to participate because he is biased against me. I won’t play games and they can finish without me. I have clearly marked my territory. It is beyond my capacity to conduct the trial without counsel. If you have to withdraw then there is a mistrial. It is the only way I can see to deal with a blackmail threat.” He said, “If the judge forces me on then I will refuse to speak. I will not conduct my defence and I will go down to the cells and not return to court. They can hear the evidence without me and convict me in my absence.”
I said, “Then that will be a complete failure for you, Malcolm, and serves no good purpose whatsoever. I cannot agree with your point of view. You could see yourself in custody for many years if you continue with these views.” He said, “I do not like being blackmailed. It goes against everything I have fought for. The judge knows that I cannot defend myself if you walk out.” I said “I am not going to walk out on you, Malcolm.” He said “Well, whatever. He is putting myself in a situation where I need to accept the Crown is right and you are wrong. I have to form a view today that you are right and the Crown is wrong, I believe. I accept that I am not qualified to pass an opinion or I am incapable of forming a reasonable view. I may be wrong.” I said, “In life we all take chances. You go to the races, you bet on horses on a proper founded basis.” He said, “I don't gamble on things I cannot afford to lose.” I said, “I’m only using that as an analogy. You will not lose your chance and right to appeal.” He said, “If the trial is to continue then I am being forced into position by the Crown.”
I said “Surely you are not frightened of him?” He said “I am not frightened of anyone. It goes against my principles to submit to blackmail”. I said “If I thought that you were right, I would support you.” He said “I cannot submit to blackmail”. Mr Lowe said, “We appreciate your views, withdraw what you wrote. Are you prepared do that?” He said “We are debating the issue now. We have 15 minutes to go”. I said “It seems to me that you are playing gamesmanship. We need a decision now, we start at 3pm, and it may be with or without me. It would be better to go on with counsel. If I am a catalyst then abandon your instructions”. He said “I am not happy with the judge’s attitude, it is not very fair, and he is threatening you and me and assisting the Crown. I will let you know at 3pm”. I left the cell complex and came back to court.
At 3 o’clock Mr Potier arrived from the cells and said “I have not changed my mind and I am not going to allow any judge to blackmail me. You will have to represent me because I cannot represent myself. Can I put a statement on the record, will he allow me this” I said “Not while you have counsel. Either you withdraw that note or I may need to withdraw”. Following that I made certain applications to your Honour to seek advice from other parties. I did so. (my emphasis)
- Mr Potier did not re-examine Mr Healey to suggest that this account of the conference was inaccurate. Mr Potier did, however, deny the proposition put to him by the Crown that he had written the note as a device to abort the trial.
- The evidence thus before his Honour included evidence from Mr Healey as to the use to which Mr Potier had said he intended to put his state of lack of representation, so as to cause the jury to be discharged. In those circumstances, no error was shown in the trial judge’s refusal to allow an adjournment notwithstanding the prima facie position under s 57 of the Legal Aid Commission Act.
- His Honour then proceeded to dismiss Mr Potier’s application for an adjournment of the trial. In his Honour’s reasons, he said:
It becomes clear from the evidence of Mr Healey that the accused, thinking that he might have an appeal based upon the incompetence of counsel, did not wish to compromise it by allowing counsel to continue. ...
On several occasions Mr Healey asked him to put aside point 4 of his written instructions and to allow him to continue.
The accused then set out actions which should be undertaken by counsel which represented clear manipulation of the legal system. When Mr Healey declined to be party to any such venture Potier accused the Court of blackmailing him. At one stage Mr Healey said “You can withdraw your instructions or I may have to withdraw”. It became clear to Mr Healey that Potier did not wish the trial to continue before this Court as presently constituted.
At a subsequent conversation at 2.15pm Mr Healy told Potier that Mr Lowe could continue to act, but Potier said “No, if the leader goes then so does Mr Lowe. Your solicitor [Ms McGowan] is not competent to run technical arguments and issues”.
He refused point blank to withdraw his written instructions, threatened that he would not appear in the Court if he were forced on, and despite Mr Healey’s best efforts to have him see the logic of the situation and the seriousness of the consequences which would follow upon the course he seemed determined to pursue, and despite being given time to consider his position, Potier remained adamant that his instructions in writing would not be withdrawn, and Mr Healey had in my view no option but to withdraw.
The circumstances are entirely of Mr Potier’s creation and if fault is to be apportioned then it lies entirely with him. Nothing that I have heard causes me to change a view that firstly, Mr Potier has created situations where both sets of counsel have been forced to withdraw, and secondly, that the Legal Aid Commission exercised its discretion appropriately and indeed, it has a statutory duty under s 12(a) of the Act to refuse him legal aid, and, thirdly, that an appeal to the Legal Aid Review Committee would be frivolous and vexatious, and, in the light of the inevitability of the failure, designed solely to abort this trial. (emphasis as per original)
- His Honour went on to state that Mr Potier had never lacked representation because even when Mr Healey was so compromised that he was forced to withdraw, Mr Potier had the services of Mr Lowe of counsel and Ms McGowan, solicitor, both of whom he had dismissed.
- Although Mr Potier subsequently took issue with his Honour’s suggestion that he had dismissed Mr Lowe and Ms McGowan, there was a basis for his Honour’s conclusion that he had effectively done so.
- As to Mr Lowe, the transcript records Mr Healey informing his Honour that Mr Lowe considered himself in the same position as Mr Healey (i.e., that he had been put in a position where he was required under the Bar Rules to withdraw) and in that sense the statement that Mr Lowe had been dismissed would not strictly be accurate. However, it is also clear from the transcript, following the evidence given by Mr Healey, that his Honour understood that evidence to be to the effect that, up until the time of and during the conversation that Mr Potier had with Mr Healey and Mr Lowe, the position was that if Mr Healey withdrew Mr Lowe could have continued (in which case Mr Potier would not have been without counsel) but that what occurred in that conference amounted to the effective dismissal of Mr Lowe. That would explain his Honour’s characterisation of the situation as being one where Mr Healey withdrew but Mr Lowe was effectively dismissed.
- As to Ms McGowan, while she did indicate to his Honour that she had obtained similar legal advice as to her position as that obtained by Mr Healey, she also indicated that Mr Potier had not wished her to continue without Counsel. Mr Healey’s evidence supports the conclusion that Mr Potier had made it clear that he did not wish Ms McGowan to continue the trial without Counsel and in that sense she too was effectively dismissed.
- Nothing, therefore, turns on the fact that his Honour had referred, in his reasons for refusing the adjournment, to Mr Healey being the only member of the defence legal team who had withdrawn.
- Mr Potier’s submissions in this Court were that if Mr Healey was correct in withdrawing “due to the error of ‘Carlos’”, there is and was no justification for Mr Lowe or Ms McGowan also to withdraw and all that should have happened was that the trial continue with a lesser but experienced representation. Two difficulties with that submission must be pointed out. First, the withdrawal of Mr Healey was not over the “error” of the Carlos question, as such. Rather, Mr Healey was placed in a position where he considered he was required to withdraw because Mr Potier had made clear he wished to maintain a Birks ground of appeal in relation to the questioning of A over the Carlos matter (by reference to the applicable Bar Rules) and, secondly, as a result of what Mr Healey considered to be Mr Potier’s attempt to encourage him to manipulate the Court process. Secondly, the evidence of Mr Healey makes it clear that not only did Mr Lowe consider himself to be in the same position as Mr Healey but also that Mr Potier had made it clear that he did not wish his trial to continue with the representation of Mr Lowe or that of Ms McGowan alone.
- His Honour considered that, by his actions qua his Counsel and his solicitor, Mr Potier had placed himself well outside the range of the considerations referred to in Dietrich v The Queen  HCA 57; (1992) 177 CLR 292 at 315. That conclusion was well open to his Honour given the more complete explanation of events by then available to him as to the circumstance in which Mr Healey had withdrawn as counsel.
- It is apparent that his Honour was mindful of the potential application of s 57 of the Legal Aid Commission Act, had concluded that the evidence gave rise to a prima facie view that the exception applied, considered the evidence before him and concluded, for cogent reasons, that s 57 did not, in the circumstances, mandate a stay of the proceedings. No error has been shown in that regard. Nor is the ruling one that discloses bias, or any basis for an apprehension of bias.
- Mr Potier relies on the observation made by Hunt AJA in the Court of Criminal Appeal on 13 September 2006 (at the time of Mr Potier’s unsuccessful application for leave to appeal from the trial judge’s refusal to grant the adjournment sought on 7 September 2006), to the effect that it would be a “disaster” for the trial to continue without legal representation for the defence. Mr Potier says that, if that assessment be right, then that decision was clearly a question of bias.
- The observation made by Hunt AJA does not assist Mr Potier to establish actual or apprehended bias on the part of the trial judge. Clearly, it would have been preferable not only in Mr Potier’s own interest but in the interest of efficient trial management for Mr Potier to have had the benefit of legal representation. His Honour was clearly conscious of that, given that he had been careful to ensure that Mr Potier understood what the consequences of not withdrawing the Birks point might be. The fact that, by reason of the withdrawal of counsel and the refusal of an adjournment, he would not have a legal representative going forward in the trial could quite readily be seen as likely to cause difficulty in the efficient running of the trial.
- However, the refusal to grant an adjournment involved no appellable error. His Honour, by that stage, had been able to form a view as to the complexity of the trial and the ability of Mr Potier to understand and express the case he was seeking to put to the jury; and took those matters into account in refusing the adjournment.
- Thereafter, the trial continued with Mr Potier representing himself. At the conclusion of the day’s hearing on 15 September 2006, Mr Potier made a further application that the jury be discharged on the grounds of prejudice occasioned to Mr Potier by his counsel.
- In the context of this application Mr Potier said that he had reviewed matters of the previous day and that it appeared clear that Mr Healey, Mr Lowe and Ms McGowan did “have prior knowledge of Carlos” before they asked the questions and that they did know what A was going to say. The basis for this submission was not made clear. It directly contradicts what was said by Mr Healey (in Mr Potier’s presence) when Mr Healey made the initial objection to the “Carlos” answer. (Mr Healey’s position on that occasion, as noted earlier, was that he had instructions that Carlos was a former cellmate and that what was on the relevant page of the transcript was nonsense.)
- On 18 September 2006, Mr Potier pressed his application for the discharge of the jury. He said:
The basis is your Honour in the simplest terms Mr Healey, as your Honour recalls, asked the witness “A” about Carlos and following on from that there was considerable difficulty as we all know. The belief that I had, and I think the Crown and everybody else, was that there was no pre-warning of what the significance of the evidence Carlos was going to give. It turns out upon my reviewing of the very central brief that the Crown provided that it was very clear about the significance of Carlos and I freely admit that I missed it, but nevertheless it exists and counsel should have picked it up and I am concerned that it has created a problem.
- His Honour expressed the opinion that it had not created a problem because he had told the jury to disregard it. He further stated that it formed no part of the Crown case against Mr Potier and that, having looked at Mr Healey’s evidence, he was of the view that Mr Potier wished to take advantage of this. His Honour’s view was that it was not a matter that would cause him to discharge the jury.
- The Crown prosecutor, in the course of the discussion on this application, referred his Honour to a contemporaneous note of 20 January 2002 by A (MFI 20) in which there were words to the effect “a thousand dollars offered to have Carlos whacked” as supporting the credence of the answer that A had given on 6 September 2006.
- For the same reasons as earlier, no basis for complaint arises out of the above. His Honour had considered the background to the application, including the circumstances in which Mr Potier had (on Mr Healey’s evidence) made a conscious decision to proceed without seeking to adduce before the jury the answer from Carlos to the effect that A thought that Mr Potier had been joking about Carlos. The instructions that Mr Healey said he had been given at the time he asked the question were that the transcript was complete nonsense. There was no suggestion that Counsel had instructions that this was an area to be avoided in cross-examination because there had been allegations that Mr Potier had offered money for Carlos to be killed.
- Even if this was an instance where the compressed time for preparation by Counsel had caused an unwise question to be asked, the means for dealing with the problem caused by the answer had been well and truly canvassed over the course of 6/7 September 2006. His Honour’s assessment was that in the circumstances it was not necessary for the jury to be discharged because the effect of the warning given to the jury (and his refusal to allow further questions on that topic) would remove the potential prejudice. Reasonable minds might differ on that question. However, no appellable error (or bias) is there disclosed and in light of the whole of the evidence before the jury, it cannot be concluded that there was any miscarriage of justice in the trial having proceeded as it did after the giving of the Carlos answer.
Access by Mr Potier to material
● the trial judge putting Mr Potier in an “impossible position” following the withdrawal of his legal team in September 2006 (by forcing the trial to continue but denying access to the Crown brief and associated material) [ground 3 – judge’s rulings] [AWS 16]
● the trial judge’s refusal to allow Mr Potier access to Crown brief and subpoenaed material or to material before the Court; [grounds 3 & 4] [AWS 16] [ground 3 – judge’s rulings] [AWS 13]
● the trial judge’s refusal to allow appellant any time to master the 22,000 pages of material [ground 3 – judge’s rulings] [AWS 12]
- The above grounds appear broadly to be a complaint as to the effect of his Honour’s refusal to grant an adjournment of the trial following the withdrawal of Mr Potier’s legal representation. His Honour had clearly taken into account Mr Potier’s involvement in the giving of instructions as something indicating his familiarity with the matter. Moreover, this was the second time that the incidents in 2000 were to be put to a jury. Mr Potier must have been aware of what was being put against him in relation to those incidents.
- Insofar as the complaint extends to a complaint to allow Mr Potier access to the Crown brief or subpoenaed material, this involves a misrepresentation of what occurred.
- Complaint is made about the trial judge’s refusal to allow Mr Potier access to subpoenaed material. The issue arose on 7 September 2006 after Mr Potier had taken over the cross-examination of A. At the close of the day’s hearing, in the absence of the jury, Mr Potier sought access to the subpoenaed documents. His Honour asked which documents and Mr Potier’s response was that he was going to have to read them all. His Honour made it clear that he needed to keep the documents under the Court control so the documents could not leave the Court without his permission. His Honour indicated that if there was reason to call on a document he could do so and he would be given it. He said that Mr Potier could certainly have access to documents. The difficulty was that Mr Potier had not identified particular documents to which he wished to have access. There is no appellable error disclosed by that ruling.
● the trial judge’s refusal to grant bail so that Mr Potier could conduct his defence adequately; [ground 3 – judge’s rulings] [AWS 14]
- Mr Potier complains that his Honour refused a request for bail for the purpose of enabling Mr Potier to conduct his defence adequately. Mr Potier refers in his submissions to the making of a bail application in circumstances where he had no way of contacting his intended witnesses because he was in custody.
- At the time of the second trial, s 9D of the Bail Act 1978 (NSW) precluded the grant of bail to a person in respect of a serious personal violence offence, if the person was a repeat offender, unless the court was satisfied that exceptional circumstances justified the grant of bail. Mr Potier was at the time serving a term of imprisonment for the same very serious personal violence offence (as defined in s 9D(4)(a)) for which he was now being tried. Exceptional circumstances were therefore necessary to be shown for bail to be granted in respect of the subsequent offence. Mr Potier did not point to any such exceptional circumstances. Nor did he identify any error of discretion in the refusal of bail. Appellable error on the part of the trial judge was not established.
- This group of complaints relates again to the Carlos incident. Again, I will consider them broadly in the order in which they arose in the course of the trial. Some of the complaints overlap with those I have considered under the previous headings.
● the trial judge’s conduct in “blackmailing” Mr Potier to withdraw the note handed to Mr Healey of Counsel after the “Carlos matter” was raised “and thereby give up his Right of Appeal to this Court on His Honours Rulings” and refusing to permit the defence to correct the false impression that the “entirely unpredicted” evidence of A (on the Carlos matter) had created; [ground 4 - bias]
● the trial judge informing Mr Potier, without knowing contents of note that had been sent to his solicitor for Counsel putting on record his concerns about Carlos matter and judge’s ruling that he had two options – to conduct the defence himself or to withdraw contents of note; [ground 3 – judge’s rulings] [AWS 12]
- These complaints, which overlap but which I have set out separately as the varied formulations raise slightly different issues in some respects, go to the fact that the trial judge made it clear to Mr Potier, through Mr Potier’s then counsel, on 6/7 September 2006 the likely consequences, in terms of his continued representation by counsel at the trial, if Mr Potier did not withdraw the note to which Mr Healey had made reference.
- Insofar as complaint is made that his Honour did so without knowing the contents of the note at that stage, nothing turns on this. Mr Healey had informed his Honour in general terms that an issue had been raised as to whether Mr Potier’s chances of acquittal had been compromised. There was reference to a note that had been handed up. The nature of the issue, as it was explained to his Honour, was that a complaint had been made as to Mr Healey’s conduct of the matter in relation to the asking of the Carlos question. His Honour did not need to see the contents of the note, nor was it relevant that it might have contained other instructions, in order to form the view that it was appropriate to draw to Mr Potier’s attention that if the note (or whatever complaint it contained as to Mr Healey’s conduct of the defence) were not withdrawn then Mr Healey might be forced to withdraw. Mr Healey had informed his Honour in effect that this was the position.
- Mr Potier apparently perceived this, at the time, as blackmail, having regard to his discussion in conference with Mr Healey. That accusation is untenable. His Honour was quite properly seeking to make clear to Mr Potier that he could not assume that the trial would be adjourned if his Counsel were to withdraw and that he therefore understood what the consequences of not withdrawing whatever were the allegations that had put Mr Healey in a position where he considered he might have to withdraw. No bias is there shown.
- Whether or not the relevant question was one that might have given rise to a Birks ground of appeal, the accusation that his Honour was “blackmailing” Mr Potier to withdraw such a ground of appeal has no foundation.
- Mr Potier maintains that if his Honour had allowed continuation of cross-examination on the Carlos issue, then there would have been no need for him to write the note in the terms that he did to Mr Healey. That is speculation at best. Mr Potier says that the note dealt with two matters – the Carlos question and the consequences of the ruling that no further questions could be asked. Read onto the transcript the note was as follows:
Reference is made to the fact that the Crown raised the Birks issue in relation to the Carlos evidence, this was raised by Mr Potier as part of his ground of appeal relating to the Judge’s rulings but it is not clear how it is maintained that the Crown’s conduct amounts to a ground of appeal against his Honour’s rulings.
- Mr Potier complains that he was informed by the Judge (who at that stage did not know the contents of the note that Mr Potier had given to his solicitor) that he had two options – to conduct the defence himself or to withdraw the contents of the note. Again, no error is shown in that exchange. His Honour was putting Mr Potier on notice of the potential consequences if he did not withdraw the note (whatever that note might have said) in circumstances where his Honour was being informed by Mr Healey that if the note, relevantly, raised issues as to his competence as counsel and might cause him to have to withdraw.
Refusal to discharge jury
● the trial judge’s refusal to discharge jury once “Carlos” matter came to jury’s attention; [ground 3 – judge’s rulings] [AWS 11] – even after Crown informed Court that a R v Birks ground of appeal had been created [AWS 16]
- After his Honour refused the adjournment application on 7 September 2006, Mr Potier’s next application was for the jury to be discharged. His Honour refused that application. The fact that the Crown may have thought that there might be a potential Birks ground of appeal is irrelevant to the question whether his Honour erred in not discharging the jury at that point.
- The question whether to discharge the jury is one within the trial judge’s discretion. It has been recognised that the test requires a high degree of necessity in preventing a miscarriage of justice (Crofts v The Queen  HCA 22; (1996) 186 CLR 427 at 432; Williams v The Queen  FCA 1868; (2000) 119 A Crim R 490 at ).
- In Crofts v The Queen, Toohey, Gaudron, Gummow and Kirby JJ said (at 440):
No rigid rule can be adopted to govern decisions on an application to discharge a jury for an inadvertent and potentially prejudicial event that occurs during a trial. The possibilities of slips occurring are inescapable. Much depends upon the seriousness of the occurrence in the context of the contested issues; the stage at which the mishap occurs; the deliberateness of the conduct; and the likely effectiveness of a judicial direction designed to overcome its apprehended impact.
- The underlying principle is that an accused must receive a fair trial according to law.
- His Honour, in the discussion with Counsel on 6 September 2006, clearly had regard to the impact that the unexpected (though not unsolicited) “Carlos” answer would have on the fairness of Mr Potier’s trial and whether a judicial direction to disregard that evidence was likely to overcome its apprehended impact. What is clear from his Honour’s observations is that he was not persuaded that the giving of that answer was necessarily inconsistent with the case that Mr Potier’s Counsel indicated he was seeking to run (namely, that A was someone who made up stories) and he considered that the answer that had been given was something that was a risk taken in cross-examination (and in that sense had been a result of the course adopted in cross-examination).
- His Honour acceded to the course that Mr Healey had indicated he had instructions to pursue, namely to adduce evidence from A on the voir dire that would be consistent with Mr Potier’s case that A made up stories. Mr Healey then, after having had the opportunity to take instructions from Mr Potier, chose without explanation not to pursue the course of adducing that evidence before the jury. His Honour was entitled to infer that a forensic decision had been made at that stage not to seek to ameliorate the unexpected damage that might have been done to the defence case.
- It is clear that his Honour recognised that the Carlos answer was potentially prejudicial to the defence (it being described as an unfortunate development in the case) but accepted the Crown submission that it could be remedied by an appropriate direction to the jury and gave a strongly worded direction for the jury to disregard the answer. It is recognised that in considering the principle of fairness account may be taken as to whether any prejudicial effect may be overcome by an appropriate direction (Samadi v R  NSWCCA 330; (2008) 192 A Crim R 251; Qing An v R  NSWCCA 53); and that a jury is generally likely to follow an instruction to ignore evidence that has been struck out (R v Bartle  NSWCCA 329; see also: R v Glennon  HCA 16; (1992) 173 CLR 592 and Gilbert v The Queen  HCA 15; (2000) 201 CLR 414).
- In those circumstances no error in the exercise of his Honour’s discretion not to discharge the jury has been identified. Nor has any bias been demonstrated in the making of that decision.
Refusal to disqualify himself for bias
● the trial judge’s refusal to disqualify himself for apprehended bias following the withdrawal of Mr Healey of Counsel; [relied on for both grounds 3 & 4]] [AWS 13]
- Complaint is made as to the trial judge’s refusal to disqualify himself for apprehended bias. This related to the application, made after the refusal to grant the adjournment and the withdrawal of Mr Healey as counsel, by Mr Potier that the judge disqualify himself on the basis of apprehended bias. The basis for the apprehension of bias was identified as being his Honour’s refusal to discharge the jury and his refusal to grant an adjournment after the withdrawal of Mr Healey. That was also dismissed. It follows from the conclusion that nothing leading up to this ruling gave rise to a reasonable apprehension of bias that the mere fact that this application was refused does not in itself demonstrate bias. Nor was any error identified in the making of this decision such as would warrant appellate intervention.
Manner of withdrawal of counsel on 7 September 2006
● the trial judge allowing the defence team to withdraw in front of jury (after the Carlos matter raised) and refusing to allow Mr Potier to address on those matters; [ground 4 – bias] [AWS 16]
● the trial judge’s refusal to allow appellant to address jury as to reasons why defence team had withdrawn [ground 4 – bias] [AWS 16]
- The Crown raised with his Honour whether or not he might invite Mr Healey and Ms McGowan to withdraw in front of the jury, referring to Greer’s case (R v Greer (1992) 62 A Crim R 442)where the Court considered that no injustice had been done by the withdrawal of counsel in front of the jury for the reason that the jury might speculate some unfairness to the accused if counsel “simply disappeared”. His Honour expressed some doubt as to whether this was the best course and whether it would abate the possibility of jury speculation.
- His Honour sought Mr Potier’s view on that issue. Mr Potier did not demur from the proposal that the withdrawal of counsel take place in front of the jury. He said that he agreed that the jury should have some form of explanation as to why there was a withdrawal.
- It may be inferred that his Honour did so in order to prevent jury speculation that some unfairness to Mr Potier had been occasioned by the withdrawal of counsel. Whether or not such speculation was likely, there was a rational basis for making that ruling. It does not evidence bias nor was it suggested that there was an error in his Honour’s exercise of discretion.
- Mr Potier’s real complaint seems to be that he was not permitted to address the jury “fully” on the reasons for counsel’s withdrawal. He expressed a desire to do so but without waiving legal professional privilege. His Honour warned Mr Potier that if he took that course (of “full disclosure”) and put anything to the jury that was contrary to the truth, the Crown might call Mr Healey to prove that it was false. Mr Potier took issue with the suggestion that any explanation he might give to the jury would be false.
- His Honour refused to allow Mr Potier to address the jury as to why Counsel had withdrawn. It is apparent that his Honour considered that to permit Mr Potier to do so would in all probability lead to the re-opening of the Carlos issue and its amplification in the minds of the jury to the potential disadvantage of Mr Potier. Mr Potier’s complaint of bias in this regard cannot be sustained; nor was any error identified in the exercise of discretion in that ruling.
- I note that when the basis for Mr Healey’s withdrawal was subsequently explored on the voir dire, it became apparent that Mr Potier’s explanation for Counsel’s withdrawal would likely have given rise to the very outcome his Honour had predicted, since Mr Potier’s version of events at that stage differed markedly from that of Mr Healey.
Further questions on Carlos issue
● the trial judge’s direction that defence be barred from asking witness A further questions on Carlos matter; [relied on for both grounds 3 & 4] [AWS 12; 16-17]
- Mr Potier complains that he was denied the opportunity to ask further questions on the Carlos matter – both to put the matter in context and to prove that A was lying and making up stories. He maintains that if his Honour had allowed continuation of cross-examination on the Carlos issue then there would have been no need for him to write the note to Mr Healey in the terms that he did. (Mr Potier points out that his note dealt with two matters: the asking of the Carlos question and the consequences of the ruling that no further questions could be asked.)
- However, as the transcript makes evident, the opportunity for A to be questioned as to the Carlos answer was afforded to Mr Potier (in the absence of the jury), which meant that any further adverse answer was not given in the presence of the jury. The purpose of the questioning that his Honour allowed to be pursued on the voir dire (as to whether A had referred the Carlos matter to the authorities) went to the credence A had placed in that matter. However, as noted earlier, that line of questioning was not pursued at the conclusion of the voir dire or at a later stage. Nor was any application made to tender the answer given by A on the voir dire in evidence at the trial. Instead it appears that a forensic decision was made to press for the discharge of the jury, rather than pursue such line of questioning.
- The refusal to permit further questioning on this aspect of the matter, i.e., the Carlos answer, does not bespeak bias. Rather, his Honour made it clear that he was seeking to prevent unfairness to the defence by preventing further potentially prejudicial evidence to be adduced on that matter. It was the decision of the defence not to pursue the foreshadowed line of questioning that would have revealed to the jury that A had not reported the Carlos threat to the authorities and that A had thought Mr Potier was joking in relation to that matter. There may have been sound forensic reasons for not so doing – the Crown has pointed to other statements recorded in the transcript that might have lent credence to the Carlos answer; moreover, the Crown had foreshadowed an intention to re-examine A in order to re-establish his credibility if the defence continued with the Carlos line of questioning. Nevertheless, neither error nor bias is demonstrated by his Honour on this issue. Mr Potier must be taken to have made a forensic decision not to pursue such questioning at the relevant time, through Counsel.
Rulings re witnesses/cross-examination
- I consider under this heading, Mr Potier’s complaints as to rulings made in relation to various of the witnesses or potential witnesses, including further complaint as to the cross-examination of A. In summary, no error or bias is shown by those rulings – his Honour making it clear that Mr Potier would be permitted to challenge A’s character but, for particular reasons which his Honour articulated, refused to allow particular areas of questioning.
- At the outset I note that while Mr Potier still had the benefit of legal representation, Mr Healey identified those of the Crown witnesses at the first trial that Mr Potier wished to be produced for cross-examination, those being: Mr Wakeham, (the relevance of whose evidence relating to a suggestion by Ms Conway that she had received a phone call from somebody supposedly threatening her family); Mr Finlay (who had carried out the Optus webtrace), and Ms Hosie (the de facto partner of a prison inmate (Mr Basso) to whom Ms Conway said moneys had been given at the direction of Mr Potier to arrange for Ms Oswald and Mr Wakeham’s murder before M became involved).
- One week after Mr Potier had assumed the conduct of his defence, he raised the problem of how he would be able to communicate with his witnesses. He said that he had no ability to obtain proofs from them and had no ability to bring them to Court. The explanation for there being no proofs of evidence of the defence witnesses prior to the trial (at a time when Mr Potier did have legal representation) was not clear.
- For the most part, the Crown arranged for those witnesses whose evidence was in the Crown brief to be available to give evidence at the trial. In some instances the Crown did not, or was unable or unwilling to, do so, as will shortly be seen. Mr Potier has raised complaint in respect of this both as to the manner in which the Crown conducted the case having regard to its duty of fairness (ground 7) and as to the conduct by the defence of his case (ground 5).
- Mr Potier makes particular complaint about rulings in relation to various of the witnesses or proposed witnesses: the former wife of A; Mr Wakeham; and Mr MacKechnie. Complaint is also made that his Honour refused to allow legitimate areas of cross-examination of A. I consider those complaints in groups relating to the particular witnesses.
● the trial judge requiring Mr Potier to disclose details of the defence case (relating to the former wife of witness A) while the Crown case was ongoing; [ground 4 - bias] [AWS 13]
● the trial judge’s refusal to allow A’s ex wife to be called as a rebuttal witness; [ground 4 - bias] [AWS 13,14,18]
● the trial judge’s refusal to permit Mr Potier to call the former wife of witness A as a witness (elsewhere reference is to the trial judge’s refusal to allow him to call all of his defence witnesses); [ground 3 – judge’s rulings] [AWS 13, 18]
- These complaints, which to an extent overlap, all relate to a witness identified by Mr Potier as A’s ex-wife. Mr Potier said that he wished to call her in order to demonstrate that A’s evidence at the trial that he was still married to her was a lie. A’s answer had been: “She is still my wife”.
- This was linked to a line of questioning that Mr Potier wished to pursue in relation to the contents of a The Sunday Telegraph article that had been written about A in which reference was made to A having led a “double life”, with a wife and a mistress who believed that he was no longer married to the first wife. The relevance of the former Mrs A’s evidence in this regard was peripheral in the extreme.
- Whatever the jury might have considered as to the morality of conduct of that kind it does not have a close relationship to the kind of conduct that Mr Potier wished to suggest A had now engaged in – namely duplicitous behaviour with a view to obtaining a reward or benefit while he was in prison. More relevant in that regard might be thought to be that he was serving a sentence for fraud – a matter of which the jury was aware and his Honour gave a clear caution as to the acceptance of A’s evidence as a prison informant. Other than to the extent that a lie as to whether he was still married might have cast doubt on his credibility, there was no suggestion that A’s ex-wife had any relevant evidence to give on the issues in Mr Potier’s trial.
- His Honour made it clear that he considered any evidence A’s ex-wife might give would be irrelevant to the trial. No error has been shown in relation to that decision. Nor does the ruling demonstrate any bias.
- This complaint is linked to Mr Potier’s complaint that he was not permitted to put into evidence the contents of The Sunday Telegraph article, which I consider in due course.
● the trial judge’s refusal to require the Crown to call Mr Wakeham (T 359); [ground 3 – judge’s rulings] [AWS 19]
- Complaint is made as to his Honour’s refusal to require the Crown to call Mr Wakeham. I have referred above to the indication given by Mr Healey that Mr Potier wanted each of Mr Wakeham, Ms Hosie and Mr Finlay available for cross-examination. The Crown indicated that it had no way of contacting Ms Hosie and that all it had was her evidence from the first trial. His Honour asked Mr Potier to explain what relevance evidence as to the money bore to the content of the telephone calls. Mr Potier’s position was that Ms Conway had stolen the money. The Crown indicated it had tried to locate Ms Hosie in the past and would still continue to do so. No complaint seems now to be made as to the lack of an opportunity to cross-examine Ms Hosie.
- The Crown then said Mr Wakeham would not be called. The Crown prosecutor indicated that he had considered the defence’s request and the authorities and that the Crown was not going to call him. Mr Healey indicated that he would consider the position.
- His Honour did not make a ruling requiring the Crown to call Mr Wakeham and it does not appear that he was ever asked to make such a ruling.
- Mr Wakeham had given evidence in the first trial. Mr Potier apparently wished to cross-examine him as to allegations that he, Mr Wakeham, had made threatening telephone calls to Ms Conway. No error on the part of the trial judge has been pointed to in this regard. There is no basis for Mr Potier’s complaint on this issue.
● the trial judge’s refusal to allow Mr Potier the right to call MacKechnie in person or by video link (reference being made to the fact that the Attorney-General had funded the cost of Ms Oswald giving evidence); [relied on for grounds 3 & 4]; [AWS 14; 21]
● the trial judge’s requirement that Mr Potier identify what evidence Mr MacKechnie would give before close of Crown case – see also complaint that defence was obliged to disclose details of defence case to Crown while Crown case ongoing - [ground 3 – judge’s rulings] [AWS 14]
- Mr MacKechnie is a solicitor in Glasgow who was a friend of both Mr Potier and Ms Oswald. After Mr Potier had assumed the conduct of his defence, he indicated that he wished to call Mr MacKechnie to give evidence. The Crown opposed this (on the basis of relevance and cost). His Honour initially ruled against Mr Potier’s application for Mr MacKechnie to attend to give evidence in person (which would have required the issue of a subpoena and the Crown to bear the cost of his travel to Australia for that purpose) or by videolink, on the basis that the evidence was not relevant. His Honour subsequently revisited that ruling and permitted, with the Crown’s acquiescence, a statement sworn by Mr MacKechnie to be read to the jury. The Crown arranged for the statement to be taken by liaison with police in the United Kingdom.
- Mr Potier’s first complaint is that his Honour refused to allow Mr MacKechnie to give any evidence until Mr Potier had identified what evidence he would give i.e., had requested him to disclose his defence, while the Crown case was ongoing. There is no basis for that complaint. The issue arose in the following context: Mr Potier requested, in the absence of the jury, that a witness he wished to call give evidence by videolink. His Honour said he would have to consider that and would have to know firstly where the witness was and noted that it was very late to make those arrangements so that for technical reasons it might not be possible and he would have to consider the part that the witness would play in the defence in order to possibly to allow that.
- Mr Potier indicated that the person was a very senior solicitor in Scotland and that he expected that the evidence he would give would be that he knew Mr Potier and Ms Oswald for many, many years; met and spoke to Ms Oswald on many occasions after Mr Potier was taken into custody; and that Ms Oswald told him certain things which he communicated to Mr Potier. This was hardly any forced disclosure of his case let alone one that would have caused any prejudice to his defence.
- His Honour then said that, for the moment, putting aside the financial aspect, the best thing Mr Potier could do, would be to write down in paragraph form what it is that Mr Potier said the witness would say. His Honour said that if the evidence lay outside what they anticipated, then he would raise the matter with the Crown.
- The matter was again raised on the next day of the trial, in the absence of the jury. Mr Potier gave to his Honour a confidential note of the proposed evidence. His Honour indicated that if Mr Potier wished the note to be confidential then he would simply indicate that he would not take any steps in that regard and would publish reasons later. Therefore, no prejudice in that having been made available to the prosecution could be asserted.
- The following day, his Honour considered that the evidence was inadmissible and said that it was impossible to rule in Mr Potier’s favour on his application to allow Mr MacKechnie to be called in person or by videolink unless the Crown saw the note and consented to the document signed by Mr MacKechnie going into evidence. This, together with the refusal to allow Mr MacKechnie to be called in person, is the basis for Mr Potier’s second complaint.
- His Honour’s initial ruling against the videolink, for reasons that his Honour said he would deliver later, was on the basis of the perceived irrelevance of the evidence. His Honour later revisited that ruling as to irrelevance because he did see some relevance in the evidence albeit that it was of a hearsay nature. Ultimately, his Honour permitted the sworn statement to be read to the jury.
- In revisiting the initial ruling (that the evidence was irrelevant and hearsay and there was little point pursuing it further because should the Crown object to the evidence he would have to rule it inadmissible) on the following day, (19 September 2006), his Honour explained that his preliminary view had arisen out of the fact that so far in his case three defences had been put forward. His Honour said that the document represented a fourth. As a consequence, his Honour said he was applying the other three defences which he sought of the circumstances and not as he saw the fourth defence. His Honour said it would nevertheless still be inadmissible but that if the Crown raised no objection to it or allowed to go before it by way of a document before the jury, then that would be a matter for the Crown. So his Honour indicated that that matter had reached an impasse that unless Mr Potier was prepared for the Crown to absorb the view that he now put forward as a defence, it would be impossible for him to make a decision in his favour. Mr Potier said he thought it was so important to this defence that he would not wish the opportunity of not presenting it to the jury and was more than happy for his Honour to discuss the matter with the Crown.
- His Honour summarised what he understood the defence to be as at that point as follows:
So far the accused has put forward the defence that the maker of the calls was not him, that the calls are not his.
And that is over all of the calls and taped interviews. Secondly, that he would raise a defence of mental ill health, and, thirdly, that A was malevolently arranging a set of circumstances to entrap him or to put words into his mouth and that he was merely humouring A, and a fourth one is that he was, the accused, was playing a trick on A. It wasn’t A misleading him but him misleading A.
Now, the reason he wants this solicitor to be called in his defence by some means or other is that he has been in contact, that is the solicitor, with both Potier and Ms Oswald, he was a solicitor to both of them at some stage and he seems to have implied a personal friend. He has contacted the accused whilst he has been held in custody here. He has informed the accused that Mr Oswald has informed him that she no longer resided in January, or did not reside in January and February in Rhynie, she was elsewhere in the UK. And he was privy therefore to information that she was not in Scotland and in consequence sending A off in the direction of Scotland to do his wishes was a trick being played on A.
- His Honour considered the evidence sought to be adduced from Mr MacKechnie had a tenuous kind of relevance, the foundation for that having built up in questions to Ms Oswald to the point that she was not residing in Rynie between the beginning of January and end of February and that Mr Potier wanted the evidence to show that he was possessed of this knowledge so that whatever he was telling A could only be in the manner of a joke and in consequence of which he lacked the necessary mens rea to be guilty of the offence.
- Mr Potier agreed with his Honour’s suggestion that the Crown be permitted to see the letter in case his Honour might have misrepresented Mr Potier’s position.
- The Crown then suggested that the Scottish police could interview the solicitor and have a proof of evidence at short notice, which is what ultimately occurred. All of this discussion was in the absence of the jury.
- The matter was revisited on 22 September 2006. The Crown indicated to his Honour that the Crown would be prepared for the draft affidavit of Mr MacKechnie to be read to the jury and his Honour said that in those circumstances he would not make any attempt to have a videolink. His Honour thought that that would be sufficient. Mr Potier said that he felt the jury should actually be able to see the person so that they could attribute the statement to a human being and judge the truthfulness or otherwise of his evidence by seeing him like all other crown witnesses. His Honour said:
Well, I have to balance the inconvenience to all concerned, the fact is that we are in a different time zone, and that it is enormously expensive and takes time to arrange, it might be days and it might be weeks, and the conduct of the trial at present, and the fact that you have raised this but recently, and that all these efforts have been made on your behalf. And taking all of that into consideration I think that the agreement that the Crown gives is the best that can be achieved at this stage. And that is all that I will possibly require of the Crown.
- Mr Potier asked for an explanation as to the use that the defence could make of that document. His Honour explained that the document, insofar as it recounted facts related to Mr MacKechnie by Ms Oswald, was hearsay; that the Crown was prepared to waive any objection in relation to the hearsay but had indicated there would be a difficult hole in the submissions Mr Potier might wish to make, were he not to give evidence (that is, that having received that information Mr Potier believed it to be true). His Honour said:
His Honour: Now I’m not making a ruling on this you. Haven’t [sic] indicated to the Court whether you intend to give evidence or not, and you may not in any event give it. I’m not making any ruling, just explaining what the situation is to you as the Crown pass [sic: has] explained it to me. It is a matter for you. But don’t – I don’t want you to think that you are under any constraints to give evidence or not to give evidence. That is entirely a matter for your choice, you know, with respect to the value of that the respective risks and detriments. I don’t want to go into that again. Does that explain that matter to you.
Accused: It does, your Honour, and helps me a great deal. I just wanted to avoid the possible pitfall of, if I decided not to give evidence and I referred to that affidavit, whether the Crown could hold that against me, which I think was in essence what the issue was.
His Honour: Let me put it in a nutshell. If you were to say, “I received this information from Mr MacKechnie and in consequence of which I believed Oswald was otherwise than in the United Kingdom or in Scotland, then you will have to be stopped, because you would be giving evidence from the dock”.
- No prejudice is shown by the fact that Mr MacKechnie was not cross-examined in person over the videolink. It was not suggested that his evidence should be disbelieved because he had not been cross-examined. Further, insofar as complaint is now made as to the requirement that the defence was obliged to disclose details of the defence case to the Crown while the Crown case was ongoing, by reference to what occurred (T863-864; T947), there is no basis to this complaint. It was a forensic decision made by Mr Potier in the circumstances set out above to provide details in advance of the evidence that he sought to adduce from Mr MacKechnie.
Cross-examination of A
● the trial judge’s refusal to allow further questions of A (after the Carlos matter was raised) to show the true character of A; [grounds 3 & 4] [AWS 21-22]
● the trial judge’s refusal to allow “legitimate areas of cross-examination” of A [ground 3& 4] [AWS 17, 18]
- Various areas of cross-examination are the subject of this complaint.
- One area related to the content of an article from The Sunday Telegraph (MFI 25), which related to A’s fraud conviction. Mr Healey showed A a copy of that article. A’s response was that almost all of the factual matters contained in the article were “false, misleading and created by lie creators”.
- Mr Healey questioned A as to various matters referred to in the report, such as whether or not he had repaid the moneys ordered by the District Court. A agreed that he had not repaid any of the moneys. A said that he understood the allegation against him was that he had received funds and disbursed them on his living expenses and he denied it. A said that he did not receive any of the funds. His Honour then rejected a question as to whether or not he was maintaining two homes. The relevance of that question to the proceedings was not apparent. It seems to have been put as going to A’s credit. There was no error in rejecting the question.
- In the same context, Mr Potier refers to discussion between Mr Healey and the trial judge as to the proposed questioning by Mr Healey of A’s health, in the context of a voir dire, held on 4 September 2009 in relation to the application for suppression of A’s name. Reference was also made to an appeal A had brought from his sentencing by the same trial judge. His Honour expressed the view that he was disinclined to have the medical practitioners brought to Court because he considered that it would not bear at all, or very little, on his decision in the matter and having regard to the costs and the disruption occasioned. The Crown noted that the central question on that limited application was whether or not to exercise the discretion to grant a suppression order, the most pressing reason of which was not A’s ill health but that A was a prison informant.
- His Honour ultimately admitted the medical certificates as business records but was not prepared to waste the resources of both the doctors of the Crown to bring them to Court to give evidence in accordance with those statements and considered that this was not unfair to Mr Healey’s position because it did not bear on the question of protecting the privacy of the witness.
- The next area of cross-examination about which complaint was made was at T 438-440. The Crown tendered a handwritten note made by A recording details that A said the accused had given to him in preparation for the communication of his wish that Ms Oswald be killed. His Honour queried the basis of the tender, suggesting that it was a self-serving document in the hands of A. The Crown said that it contained information peculiarly within the knowledge of the accused when he was in prison with A. Mr Healey objected to the tender on the basis that it was self-serving; was made in the absence of Mr Potier; and there was no date as to when it came into being and in what precise circumstances. Mr Healey accepted that A could give evidence that certain things were told to him and that he had put them down in the document. However, he objected to A refreshing his memory from the note on the basis that he contended that the original document would have to be produced and that it was unfair to the accused to have a witness of this kind “pulling himself up by the boot straps”. His Honour pointed out that the tender of the document might have that effect, but that there could be no objection to A giving evidence that certain things were told to him by the accused. Ultimately, Mr Healey’s position was that the issue was one of fairness and there would be no basis for objection as long as A did not read from the note directly and he produced the original document.
- His Honour indicated that A could refresh his memory from the note if it was a contemporaneous document but rejected the tender of the documents (MFI 18 and 19). Complaint is made by Mr Potier as to what then was recorded (at T443) where the Crown made the foreshadowed application for leave for A to refresh his memory by reference to MFI 18, Mr Healey objected if A was going to read the note onto the record; and his Honour permitted him to do so on the basis that it was very much the same thing as refreshing his memory from the notes on an ongoing basis for which leave had already been given.
- The next complaint related to what occurred when, during the cross-examination of A, Mr Healey handed up MFI 25 which was a copy of an article published in The Sunday Telegraph. Mr Healey was asked to explain the relevance of the document to the defence and he responded that the accused maintained that A was a person who had engaged in duplicitous activities in the past evidenced by the facts relating to A’s convictions and referred to the “facts” set out in the article. Mr Healey accepted that the term “facts” in this context might be journalistic licence at least to some extent. Mr Healey nevertheless sought to rely on the document to supply the jury with knowledge of a man who it was said was duplicitous in his relationship and his home life (if it was correct that he was maintaining two homes as reported in the article and that neither of the parties knew he was conducting a double life).
- His Honour initially indicated that Mr Healey could cross-examine on those areas but said that he was not entitled to put to A the kinds of concessions contained in the article (T500). After further debate, his Honour rejected any more questions on MFI 25 on the basis that it was designed only to embarrass A, who was not the author of the article in The Sunday Telegraph (T501).
- The next area of cross-examination referred to was at T538-539 in the context of the examination of A on the voir dire following his “Carlos” answer. It is not clear to what question Mr Potier is there referring. Certainly no question by Mr Healey was rejected at that point in the transcript. Mr Potier’s reference to The Sunday Telegraph article is that it related to threats by A and A’s allegation that his Honour was corrupt.
- No error in the rulings about which complaint was made has been shown.
Public Interest Immunity
● the trial judge’s grant of public interest immunity to exclude questioning of A if he had made similar allegations about any other wrongdoing while at Long Bay; [ground 3 – judge’s rulings] [AWS 18]
● the trial judge’s refusal to allow Mr Potier to ask Detective Sipos if he had signed up A as a police informant; [ground 3 – judge’s rulings] [AWS 18]
- Complaint is made that his Honour granted public interest immunity to exclude particular questioning of A (namely as to whether he had made similar allegations about any other wrongdoing while he was in jail) and as to his Honour’s refusal to allow Mr Potier to ask Detective Sipos if he had signed up A as a police informant.
- As to the first, after Mr Potier had assumed the conduct of his defence and the cross-examination of A resumed, he asked A (on 7 September 2006): “And did you make any other reports to Corrective Services or the police about any other wrongdoing whilst you were at Long Bay?”.
- An objection was made by Counsel representing the Commissioner of Police, Ms England. His Honour asked the jury to step down and argument as to the objection that had been taken was held in the absence of the jury. His Honour asked Mr Potier what he intended to put to the witness so that he could understand the objection taken by Ms England. Mr Potier referred to a particular entry in some notes that A had prepared which referred to a meeting on 31 January with two named individuals. Ms England asked that the court be closed, and it was.
- A claim was then made for public interest immunity on the basis that a witness cannot properly be asked to disclose to what, if any, extent he or she may have assisted police in matters other than the one being heard in Court. In support of that claim, Ms England relied on a number of affidavits, two of which were confidential. The confidential affidavits were not provided to Mr Potier.
- His Honour was satisfied as to the claim for public interest immunity, ruled against the question that had been asked and ordered A not to answer it.
- Mr Potier then indicated that what he sought to ask A was whether he was a habitual or established police or Corrective Services informant. His Honour pointed out that A had already been asked that question by Mr Healey and that A had denied it and that there the matter must end. His Honour did not accept the proposition by Mr Potier that the relevant entry in A’s notes contradicted his earlier denial that he was an habitual or established police or Corrective Services informant but his Honour went on to explain to Mr Potier that the matter he wished to raise could only go to A’s credit and that his Honour did not consider that there was any substantially probative value in that material going before the jury. His Honour’s view was that this material would be confusing and would deflect the jury.
- Mr Potier submits on this appeal that he wished to question A about meetings with the authorities about other potential offences in order to establish before the jury how such complaints were received and dealt with, and what was their final outcome. He submits that it was reasonable to deduce (from the document which is MHP 8) that A had made other reports. He submits that if, as he suspects, the result was “that the authorities deduced that he was making things up and ignored him”, this was highly relevant to the jury’s assessment of A’s evidence.
- It is clear that his Honour considered the material that had been put before him in ruling on the question. His Honour rejected the question on the basis of the claimed public interest immunity but also because he considered it to be irrelevant. No appellable error or bias is shown in that instance.
- It is also clear that what his Honour was encouraging Mr Potier to do was to focus on the case that he had to meet (in particular the accuracy and the validity of the taped conversations and the evidence that A had given). His Honour pointed out to Mr Potier that it would not make any difference to his case if A were a paid informer of the police.
- His Honour said:
I would like you to understand it as well because there are more of these issues. I am trying to keep you focussed on the case you have to meet and to see that you, as it were, put the best case you possibly can before the jury. I can assure you I would not constrain you in any relevant evidence in your cross-examination. But I am going to constrain you in that because first of all there is public interest immunity but much more important than that is that it is irrelevant.
- A similar issue arose on 11 September 2006 when Mr Potier, in the absence of the jury, sought clarification from his Honour as to the ruling that he was not permitted to question A about being a police informant. By that stage, A had been examined, cross-examined, re-examined and excused from further attendance. His Honour reminded Mr Potier that he had acceded to a claim to public interest immunity by the Crown Solicitor’s Office; that there was no evidence before the jury that A had informed the police of anything except the matter regarding Mr Potier; and that he was not prepared to have A recalled.
- Mr Potier then indicated that he wanted to question Detective Sipos as to whether he had signed A up as a police informant. His Honour said that he could not do so because there was no basis for asking the question. Mr Potier asserted that he did have some other documents but said he would not labour the point. His Honour pointed out that the only document he had seen was the handwritten note in A’s handwriting where there was a reference that had been the subject of the public interest immunity claim.
- The matter was left there. No error has been demonstrated in that regard.
● the trial judge’s refusal to allow the defence to inform the jury that his earlier convictions were to be the subject of an appeal; [grounds 3 & 4] [AWS 15]
- Reference is here made to an exchange between Mr Potier and his Honour (T 1153).
- Before the commencement of his address to the jury, Mr Potier asked, in the absence of the jury, whether it would be permitted for him to tell the jury that his conviction appeared still outstanding on the first matter. His Honour’s response was that this was not in evidence and he could not do so. There is no error shown in that ruling.
- There was a very simple basis on which His Honour did not permit Mr Potier to inform the jury that these earlier convictions were the subject of appeal: Mr Potier did not give evidence in his defence and so there was no evidence of that fact. That said, some of the evidence of A touched on the fact that Mr Potier was considering an appeal; so that if the jury accepted the evidence of A, it was already aware of that possibility.
Browne v Dunn
● the trial judge’s refusal to give a Browne v Dunn direction over certain evidence; [ground 3 – judge’s rulings] [AWS 15]
- Mr Potier next complains about what he refers to as the trial judge’s refusal to give a Browne v Dunn (Browne v Dunn (1893) 6 R 67 (HL)) direction over certain evidence. Reference is made to what was said at T118/119. Mr Potier’s complaint involves what is an understandable misconception of the rule in Browne v Dunn.
- The rule in Browne v Dunn is an accepted rule of professional practice that, subject to various qualifications, a cross-examiner must put to a witness the matters in respect of which it is intended that the evidence of that witness will be contradicted (R v Birks at 686D per Gleeson CJ, McInerney J agreeing; R v Orchard  NSWCCA 342 at  per Rothman, Fullerton and Beech-Jones JJ). As stated by Gleeson CJ in R v Birks at 688A, the “central purpose of the rule is to secure fairness in the conduct of adversary proceedings.”
- In Browne v Dunn , Lord Herschell LC formulated the rule at 70-71 (Lord Halsbury agreeing) as follows :
...it seems to me to be absolutely essential to the proper conduct of a case, where it is intended to suggest that a witness is not speaking the truth on a particular point, to direct his attention to the fact by some questions put in cross-examination showing that that imputation is intended to be made, and not to take his evidence and pass it by as a matter altogether unchallenged...I have always understood that if you intend to impeach a witness you are bound, whilst he is in the box, to give him an opportunity of making any explanation which is open to him; and, as it seems to me, that is not only a rule of professional practice in the conduct of a case, but is essential to fair play and fair dealing with witnesses.”
- The issue is irrelevant in the present case because his Honour’s statement in relation to Browne v Dunn was by way of guidance to defence counsel, at defence counsel’s instigation, as to whether it would be necessary for there to be cross-examination seriatim on particular issues. His Honour was indicating the circumstances in which, if a general solution to the topic could be found, his Honour would not give a Browne v Dunn direction, i.e., would not make a direction or comment contrary to the defence by reference to the defence not having put a particular matter to the witness.
- Mr Healey, who was then appearing for Mr Potier, asked his Honour whether he would be contravening the rule in Browne v Dunn by not putting to, say witness M, the issues that the accused raised in cross-examination by the Crown on the last occasion as to whether or not certain tapes or recordings were accurate and whether or not he had said certain things. Mr Healey wanted to know whether, if he did not put directly to M what the accused had said, there would be a Brown v Dunn direction.
- His Honour said that it was not for him to give rulings in advance on Brown v Dunn but indicated that he had never made any strict application of Brown v Dunn. He said that if someone were to assert that a witness is a liar and it had not been put to the witness that he had told lies, then Brown v Dunn would “rear its ugly head”.
- Mr Healey reported that, in essence, Mr Potier’s evidence in the first trial and his instructions to date were that some of the things that were included in the M evidence were not said. His Honour indicated that that would need to be put to the witness. Mr Healey said he would certainly put some of those things but referred to as the tedious nature of going through all of that ad nauseam. His Honour’s response was that: “I can assure you if you can overcome those problems in a general sense, then as far as I am concerned, you get no direction from me on Browne v Dunn”.
- That was hardly a ruling contrary to Mr Potier. His complaint on this issue is misconceived.
● the trial judge’s admission of tendency and coincidence evidence and evidence of conviction; [ground 3 – judge’s rulings] [AWS 10] [AWS 14-15]
- This complaint will be dealt with in addressing grounds 1 and 2 of the grounds of appeal.
● the trial judge’s rulings on defence documents [AWS 20/21]; [ground 3 – judge’s rulings]
- Mr Potier complains as to his Honour’s rulings in relation to a number of what he refers to as “defence documents”, itemised in his submissions as follows:
- (1) the Cable and Wireless Optus webtrace (MHP 12) that showed the five missing calls – MFI 51;
- (2) Detective Inspector Laidlaw’s letter to Telstra of 10 October 2001 – MFI 15 (MHP 3);
- (3) the reply from Telstra 11/October 2001 – MFI 16 (MHP 3);
- (4) extract from the defence closing address to the jury in the first trial (T 376.52-53);
- (5) affidavit of Ms Conway in Family Court proceedings;
- (6) transcripts of evidence of Ms Hosie (MFI 49);
- (7) medical records of the appellant whilst at the Villawood Detention Centre;
- (8) edited parts of evidence of corrective services officer Donaldson allowed by his Honour (MFI 34);
- (9) A’s charge sheet – judge’s remarks at sentencing and judgment of Court of Criminal Appeal relating to A’s appeal against conviction (Appendix 3);
- (10) affidavit of Mr MacKechnie (MFI 53 and 54).
- As to items 1 – 4, Mr Potier submits that this material was central to the defence contention that the calls had been manufactured or altered by methods and persons unknown. Mr Potier submits that the Crown’s entire case rested on the accuracy of those recordings and submitted that it was reasonable that contrary evidence as to the bona fides of that material should be placed before the jury.
- The fact that five of the calls to Ms Conway on which the Crown relied had not registered on the Optus webtrace was a matter well and truly canvassed in the second trial. The webtrace was an exhibit in the proceedings (Ex 6). Mr Finlay’s evidence as to the webtrace was before the jury as was the evidence of Acting Superintendent Laidlaw, His Honour in summing up to the jury referred to the defence contentions as to the serious doubt raised by the fact that those calls had not registered on the webtrace. His Honour redirected the jury, at Mr Potier’s request, to remind the jury of the evidence of Acting Superintendent Laidlaw to the effect that there was not only a search by the webtrace but that there was also a search by Telecom on the three numbers in the Villawood Detention Centre, which were the three phones it was said were available to inmates and those calls could not be found on that search either. There is no basis to Mr Potier’s complaint in this regard.
- As to item 4, there is no basis for Mr Potier’s complaint that an extract of closing submissions in the first trial was not put to the jury. In cross-examination of Acting Superintendent Laidlaw on 29 August 2006, Mr Healey read out to the witness part of the transcript from Mr Lucas’ closing address to the jury at the first trial in which Mr Lucas had referred to the call charge records. Mr Healey read onto the transcript the following part of that closing address:
We are told about call charge records. The police with all their resources if they had ever checked the web trace which is Ex 6 would have realised that these calls weren’t there and if they had taken place you might well think they could have through contact with Telstra, have obtained charge call records which would establish just that
The calls were made and making likely the reason they are not recorded on the web trace is the alternative explanation given in evidence before you
- Acting Superintendent Laidlaw accepted that Mr Lucas had said what was there transcribed. He also agreed that it appeared clear that what defence counsel was there saying was that the police could, through contact with Telstra, have obtained charge call records which would establish that the calls were made.
- The complaint that Mr Potier now makes seems to be that his Honour rejected the question next put to Acting Superintendent Laidlaw, namely that it would appear quite clear that “counsel for the accused is in his address to the jury, decrying the lack of the Telstra records on the 12th October, do you agree with that?”. It is clear from the transcript that his Honour was rejecting the question in the form in which it had been put.
- The relevant page of the transcript was marked for identification (MFI 16) at Mr Healey’s request. It was not tendered. The relevant evidence (i.e., that Acting Superintendent Laidlaw had been present when Mr Lucas had summed up to the jury and had said what was recorded on the transcript) was adduced. It was a matter for submission as to what should be drawn from that. There was no error identified in his Honour’s rejection of the question that called for Acting Superintendent Laidlaw to interpret Mr Lucas’ closing address to the jury in the first trial.
- As to Ms Conway’s Family Court affidavit, Mr Potier does not identify what in that affidavit should have been put before the jury. Ms Conway was cross-examined at some length.
- The complaint as to items 6 and 10 is that those were “records of evidence read to the jury”, as opposed to the evidence having been adduced from the respective witnesses in person. Mr Potier appeared to accept that Ms Hosie could not be located by the Crown (and hence her evidence at the previous trial was read out to the jury) but places emphasis on the lack of evidence from Mr MacKechnie in person. I have dealt with that complaint earlier in these reasons.
- As to item 7, Mr Potier does not identify the particular medical records and does not identify their relevance to the issues on this appeal. It does not appear that he pursued a defence based on mental ill health.
- In relation to item 8, it appears that what Mr Potier is complaining about relates to an information report dated 11 January 2002 (which was marked for identification: MFI 34) that had been prepared by a corrections officer at Long Bay gaol, Mr Donaldson. Mr Donaldson identified that document as the first information report that he did after he had spoken to A at the request of another officer. Mr Donaldson said that part of his duties involved recording and passing on to his superior officer intelligence and information obtained from prison inmates. The text of the report was not read onto the record nor was MFI 34 tendered. Mr Donaldson instead was asked to explain what he did as a result of what he had been told by A, that being that he had contacted the police unit, as a result of which he spoke to Detective Sipos.
- Mr Potier cross-examined Mr Donaldson, by reference to MFI 34, as to the process by which he had reviewed “POI [person of interest] taped phone calls”. It is not clear what complaint Mr Potier now makes about the evidence adduced from Mr Donaldson. He refers to MFI 34 as an edited document. If by that he means that it was a document parts of which were redacted, then that may readily be explicable if the discussion with A related to matters other than simply Mr Potier. In any event, MFI 34 is not before this Court and there is nothing to suggest that any complaint by Mr Potier arising out of the examination and cross-examination of Mr Donaldson has any force.
- As to item 9, Mr Potier argues that the documents in relation to A’s previous offence were central; in particular, to show how the trial judge had himself assessed A’s credibility, truthfulness and conduct and as to the making of threats to that judge in the presence of a number of witnesses.
- The fact that A had been convicted of fraud was known to the jury. His Honour’s assessment of A’s credibility in those earlier proceedings was not relevant to the jury’s assessment of his credibility in the matter at hand. As to the making by A to other prison inmates of allegations that the trial judge was corrupt, that was put to A in cross-examination; he denied it; another prison inmate, Mr McPhall, gave evidence that A had made such allegations. Although Mr Potier sought that his Honour redirect the jury as to the denial by A of having considered the trial judge to be corrupt whereas Mr McPhall had given evidence to that effect he said that it was a matter he did not “press particularly”. His Honour’s summing up made clear the caution that the jury was required to exercise when considering the evidence of A. The same caution would apply to the evidence of other prison inmates such as Mr McPhall. There is no basis for Mr Potier’s complaint as to this issue.
- No error is shown in relation to the above matters.
Rulings/statements in relation to audio recordings
- The complaints made by Mr Potier in relation to the admission of the audio recordings into evidence and as to statements made by his Honour in relation to those recordings cover a variety of matters. I will approach them in groups, so far as possible in the order in which the issues arose in the trial.
Basha enquiry/provisional admission of audio recordings
● the trial judge’s refusal, in relation to the authenticity of recordings, to have a Basha enquiry prior to start of trial; [ground 3 – judge’s rulings] [AWS 18]
● the admission of the recordings on a provisional basis to the jury without proper prior rulings [ground 3 – judge’s rulings] [AWS 19]
- As to the refusal to have a Basha enquiry on the authenticity of the audio recordings from the first trial, Mr Potier’s initial submissions were to the effect that he accepted that this was open to the judge’s discretion but that, had his Honour subsequently ruled that they were inadmissible, his refusal to hold a Basha enquiry at that earlier point in the trial would have meant that a long costly trial was not aborted until near its end. At its highest this is a complaint that the interests of efficient case management might have led to a different conclusion than that which the trial judge reached. However, the possibility that a different conclusion might have been made does not demonstrate that there was any appellable error in the conclusion that his Honour reached; nor does this submission take the matter very far when it is clear that his Honour was ultimately satisfied as to the provenance of the recordings.
- Mr Potier asserts that his Honour’s willingness to admit the evidence provisionally (regardless of the eventual submissions which at that stage the judge had not yet heard) demonstrated a pre-disposition to allow the evidence regardless of any defence submissions. That criticism cannot be sustained.
- At the commencement of the (shortly to be aborted) trial on 14 August 2006, after Mr Healey had applied for and been refused an adjournment of the trial, Mr Healey applied for, and was granted, a short adjournment to midday in order to obtain instructions from Mr Potier. He foreshadowed an application for a Basha enquiry that he said Mr Potier wanted in relation to the “committal material”, i.e., a separate hearing in the absence of a jury as to that issue to overcome any prejudice towards the accused (see R v Basha (1989) 39 A Crim R 337 at 229-240; R v Sandford (1994) 33 NSWLR 172; (1994) 72 A Crim R 160 at 190). The foreshadowed enquiry, though not further described on that occasion, must have been as to the authenticity of the audio recordings – an application for which was made on 16 August 2006.
- Before the second jury was empanelled on 16 August 2006 Mr Healey indicated that he had instructions to require the Crown strictly to prove its case in relation to the tapes. The Crown said it proposed to tender the tapes on the undertaking that in due course, during the Crown case, their authenticity and provenance would be proved.
- Mr Healey then made the application that had been foreshadowed two days earlier. He sought to have the authenticity of the tapes proved by the Crown and their “non-interference” established before the tapes were played to the jury; or for there to be a “Basha” enquiry. His Honour rejected that request. His Honour noted that if the Crown proved provenance that would be the end of that challenge and that, if it did not, the defence would be in a very good position. His Honour indicated that in the meantime it was open to the defence to make its own enquiries.
- The decision whether or not to hold a Basha enquiry is discretionary. Some factors for consideration in the exercise of such a discretion were outlined by Hunt CJ at CL in R v Sandford. At p 190-191, his Honour said:
I maintain my belief in the obvious value of such a procedure ... provided (and these are important provisos) that the accused has demonstrated – in advance – the particular issue which he intends to pursue, that the judge is satisfied that there is at least a serious risk of an unfair trial if the accused is not given the opportunity to do what otherwise would have been done at the committal proceedings, that the procedure is not used inappropriately in order to try out risky questions which may otherwise prove to be embarrassing in the presence of the jury, and provided also that such an examination is not permitted to interrupt the trial itself significantly: cf Courtney-Smith (No 2) (1990) 48 A Crim R 49 at 59-60.
- The onus lies on the accused to demonstrate that the prejudice which he or she would otherwise suffer during the trial is unacceptable such that it would result in an unfair trial (R v Sandford at p 191, citing Barron v A-G (NSW) (1987) 10 NSWLR 215 at 219, 233, 233, 247 and R v Basha at 338).
- In the present case, the Crown undertook to prove the provenance of those recordings. It is apparent from his Honour’s comment above that his Honour was not persuaded that the provisional admission of the audio recordings, on that undertaking would occasion such prejudice to Mr Potier that it would result in an unfair trial. No appellable error has been demonstrated in his Honour’s decision not to hold a Basha enquiry at that stage but rather to allow the provisional admission of the recordings on the Crown’s undertaking to establish provenance. In hindsight it is clear that to have held a Basha enquiry at that point would have caused a not insignificant disruption to the efficient conduct of the trial.
● the trial judge’s refusal to hear Mr Potier on his application to exclude the material; [ground 3 – judge’s rulings] [AWS 19]; refusal to allow reasonable argument over admission of tapes – at end of Crown case not before jury had heard them [ground 4 – bias] [AWS 19]
- The above complaint by Mr Potier that the trial judge had refused to hear from him on his application to exclude the audio recordings is a reference to what is recorded as having occurred on 22 September 2006.
- On that occasion the Crown invited his Honour to hear submissions and rule on the question whether he was satisfied that provenance of the listening device and telephone intercept material had been established. The Crown submitted that the provenance of both sets of recordings (the 2000 and the 2002 recordings) had been established and that any complaint as to the integrity of the material was a matter for the jury.
- The Crown pointed to the evidence of both M and Ms Conway, in relation to the 2000 recordings, in particular that both identified their voices and that of Mr Potier on the recordings and gave evidence that the recordings were accurate recordings of the conversations they had had with him. A similar submission was made as to the integrity of the 2002 recordings. The Crown referred to the matters that had been raised by Mr Potier as to the missing calls and as to the issue as to the master and highlight tapes in respect of the 2002 recordings, reminding his Honour of Detective Sipos’ evidence that the reason for producing a compact disc rather than a highlight tape in relation to the 2 February 2002 conversation was that help was needed from the STIB branch to enhance and remove the background noise and that the same problem did not arise in relation to the 6 February 2002 recording.
- Mr Potier’s complaint that he was not heard on the application to exclude the material is untenable. Immediately after the Crown’s submissions, his Honour called on Mr Potier to respond. Mr Potier raised various matters as to the audio recordings and then his Honour said he was going to abandon the enquiry or the submissions at that stage and would not give any judgment on the issue (i.e., the issue as to the provenance of the audio recordings) but would bear it in mind.
- There is simply no basis for Mr Potier to complain that he was not given an opportunity to be heard on the matter. If his complaint is that his Honour did not rule on the question of provenance at that time, then the difficulty Mr Potier confronts is that the time at which such a ruling was to be made was a matter within his Honour’s discretion in the expeditious conduct of the trial. Moreover, it is not apparent that Mr Potier appreciates that there is a distinction between the provenance of the audio recordings and the integrity of those recordings.
- No appellable error is here revealed.
● the trial judge’s refusal to allow all questions by Mr Potier as to methods used and reliability in relation to “enhancement” of tapes by STIB; [ground 3 – judge’s rulings] [AWS 19]
- Mr Potier complains that his Honour refused to allow questions as to the methods used, and reliability of those methods, in relation to the enhancement of tapes by STIB. The particular recording to which this relates is the recording of A’s cell conversation with Mr Potier on 2 February 2002. His Honour’s ruling on this issue followed from the grant of public interest immunity in relation to the listening device used in A’s cell. Information was provided to the Court (and to Mr Healey) on a confidential basis identifying the ground on which public interest immunity was claimed and what the Commissioner was trying to protect. Mr Healey did not suggest that there was no proper basis for the claim for immunity. Public interest immunity was held to apply in relation to information that may lead to the disclosure of the particular transmitting devices or divulging the technique of equipment used by the police in particular cases. In those circumstances no complaint can be made as to the refusal by his Honour to permit questioning of the kind Mr Potier now complains he was not permitted to ask.
● the trial judge’s statement that Mr Potier had denied it was his voice on the recordings, when Mr Potier maintains that he had not up to then given evidence; [grounds 3 & 4] [AWS 19]
- This complaint relates to statements made during exchanges between his Honour and Mr Potier on 22 September 2006, in the course of Mr Potier’s response to the Crown submissions as to the provenance of the audio recordings. That discussion was in the absence of the jury.
- On that occasion, his Honour asked Mr Potier whether he was disputing that it was his voice on the tapes (in context there referring to the audio recording of the alleged conversation between Mr Potier and M on 5 May 2000). Mr Potier’s response was:
I have never adopted a position to deny those may well be my voices, I never adopted a position contrary to that. My position has always been that that is not what the conversation is about, that these were a compilation. That has always been my position right from the first trial. It has never changed.
- His Honour queried that response, saying: “You told me earlier in this trial that you disputed it was your voice on the tapes, have you changed that”. Mr Potier said that he did not remember saying that. His Honour’s recollection was, however, supported by reference back to an earlier exchange with Mr Potier on 11 September 2006. On that occasion, in the course of an exchange as to what amounted to strict proof as to the authenticity of the recordings, again in the absence of the jury, his Honour asked Mr Potier directly what his position was – that he was not the caller or the recipient of the call or that someone was imitating his voice. Mr Potier’s response was:
My position has never changed, your Honour, with respect, those calls were not made by me.
I have always disputed those calls.
It has always been the Crown case that all of the calls together made up the evidence of the crime. I have never changed my position. And what I am saying is that there is now a very real question mark, rather than to debate the matter in great detail, there as [sic] very very, well, real question mark over the authenticity of those calls.
- Having regard to the above exchanges, there is no basis to Mr Potier’s complaint. The fact that he had not given evidence was irrelevant. His Honour was clearly there referring to what Mr Potier had said in the course of discussion in the absence of the jury as to what the defence position was in relation to the relevant calls. There was no ruling involved and nothing in the exchange either demonstrates bias or could be said to have in any way adversely affected Mr Potier’s trial. All of that discussion was in the absence of the jury. Mr Potier makes a similar complaint as to a statement made by his Honour in the summing up. I consider that in due course.
Voir dire re tape recordings
● the complaint that (in the course of the voir dire held as to the admissibility of the tapes) the trial judge stated that Mr Potier had denied it was his voice on the recordings (when Mr Potier had not up to then given evidence) and did not allow Mr Potier the opportunity of reasonable debate over the admission of the material; [ground 4 - bias] [AWS 19]
- This repeats the complaint considered above, as well as the complaint considered earlier as to lack of opportunity to make submissions as to the admissibility of the tapes. I have already concluded there was no bias demonstrated in his Honour’s rulings on those matters. To the extent that this complaint also encompasses a complaint as to the summing up, it will be considered shortly.
● the trial judge’s statement that there was nothing inculpatory on the highlight tapes that were not transcribed/heard by the defendant (when not all the VHS tapes were in evidence); [ground 4 - bias] [AWS 20]
- This complaint is a reference to an exchange, in the absence of the jury, on 8 September 2006 in which Mr Potier suggested that the Crown’s obligation of disclosure obliged it to provide a transcript of the contents of all of the highlight tapes, whereas he had only seen transcripts of recordings from two of the five highlight tapes. His Honour said:
I don’t know of course what may be in them, but I do know that if there is anything inculpatory they would have been tapes number 3, 4 and 5. So you can be rest assured there is nothing inculpatory in them.
- In context, his Honour was clearly proceeding on the assumption that if there had been anything inculpatory on the tapes that had not been transcribed, the Crown would have disclosed this. The Crown, having been invited to enlighten his Honour as to this issue, confirmed that as far as it was aware the other three highlight tapes had not been transcribed. Significantly, however, the point was made that in any event all 13 of the master tapes had been copied and supplied to, and were still in the possession of, the defence. Moreover, Mr Potier has now had access to the audio recordings and, unsurprisingly, has not suggested that there was anything inculpatory on them. Nor has he pointed to anything of an exculpatory nature on those recordings that was not disclosed.
- There is no basis to this complaint.
● the trial judge’s refusal to allow contradictory evidence relating to the recordings played to the jury despite allowing Crown transcripts to be given to the jury [ grounds 3 & 4] [AWS 21; 23];
- This complaint raises an issue in respect of the summing up and will be dealt with under the next group of complaints.
● the trial judge informing the jury that Mr Potier had made missing calls [ground 4 – bias] [AWS 22]; and had told jury that if call was not registered it did not mean it had not been made – contrary to Finlay evidence [ground 4 – bias] [AWS 22-23]
- This complaint goes to what was said in the summing up and will be considered below.
- Various areas of the trial judge’s summing up to the jury have been challenged as errors that caused the trial to miscarry and/or that evidence judicial basis. At the outset, Mr Potier makes a general complaint as to the adequacy of the summing up (on unidentified grounds), inviting this Court to consider its adequacy as a whole and pointing to his position as a self-represented accused. He also takes issue with certain statements made by his Honour and to his Honour’s refusal to correct certain matters in relation to what was said in the summing up. Submissions were also filed as to the adequacy of the direction given to the jury as to Mr Potier’s conviction.
- I will deal first with the complaint as to the adequacy of the summing up generally, before turning to Mr Potier’s particular complaints both as to statements made in the course of the summing up and his Honour’s refusal to correct matters in the summing up, and finally to the submissions as to whether his Honour erred in the directions given to the jury in relation to the fact of Mr Potier’s earlier conviction.
● the summing up generally – adequacy of warnings that judge should have given to jury where appellant self-represented [ground 3 – judge’s rulings] [AWS 22]
- I do not propose to summarise the whole of the summing up. His Honour properly cautioned the jury as to a number of relevant matters.
- First, his Honour cautioned the jury to be very careful when looking at A’s evidence. His Honour emphasised that it needed to be scrutinised with great care, having regard to the fact that he was a prison informant.
- His Honour referred to the police explanation for the fact that the television set was left in A’s cell. His Honour went on to say that A had asked for no reward and accepted no reward. There had been some suggestion that A might have gone back to the court to have his sentence re-opened. The reference to A not asking for or accepting a reward is explicable when understood in that context. His Honour said that this could be put on the credit side. In light of his Honour’s warning as to the need to scrutinise carefully the credit of prison informants, there was no inadequacy in the summing up on this issue.
- Second, his Honour gave standard directions as to how the jury could permissibly use (and how they could not use) the tendency and coincidence evidence. No complaint can be made as to the adequacy of these directions. I consider shortly the reference that his Honour made to the fact of Mr Potier’s first conviction.
- His Honour, having described the relevant similarities to which the Crown had pointed, then said:
The Crown says that the first crime was so similar to the crime for which he now stands indicted that it would be improbable that the two crimes did not have the same author. Although he has been convicted by a jury of that first crime in 2000, it is necessary for you to look to the evidence afresh and decide whether, on that evidence, you would be satisfied beyond reasonable doubt that he committed the offence in 2000. If that be so, and if you do come to that conclusion, it is a matter for you, having regard to the circumstances of the first crime, in comparison to the circumstances of the second crime, to determine if it assists you in rationally coming to a view that the author of both crimes must be the same person, namely, the accused.
Now, it only has that function. If the evidence fails to persuade you, firstly of the guilt beyond reasonable doubt in the first matter, then it should simply be put to one side and disregarded, and it certainly is not to be used just to show the accused in a discreditable light. If it does so satisfy you, then you can use it to determine if the two crimes were committed by the same person.
The Crown adduced all of this evidence of the trial in which “M” was the undercover agent because it indicates, if accepted, that the accused had a tendency to harbour murderous intentions towards Ms Oswald. It was adduced in that respect only for that purpose and for no other purpose. It is not permissible for you to conclude that because he had committed one crime, he would, by that reason, commit another. (my emphasis)
Particular complaints as to statements made in summing up
● the trial judge’s statement to the jury in summing up that the “missing” calls were made by the accused; [ground 4 - bias] [AWS 22]
- This is a reference to his Honour’s statement that:
[Mr Potier] says that the two matters (the propositioning of A or the solicitation of A to murder Ms Oswald) have to be considered together, and you should look at the Crown case and examine it closely. If you decide that some of the telephone calls because they could not be found on a web trace were questionable, the ripples of that would spread out to the other telephone calls, and you would be dissatisfied of them too. It raises very many questions about the prevenance and the validity of those telephone calls. Of those twenty-five calls and the M conversations, five of them could not be traced. I will remind you, they were calls made by the accused. (my emphasis)
- That statement, in context, was not a statement of opinion or finding of fact by his Honour that, to the extent that they were disputed, the five “missing calls” were made by the accused. His Honour was there summarising the defence argument as to the questions raised by the fact that five calls were missing from the webtrace and he is emphasising that those five missing calls are calls that are said to have been made by the accused.
- That is clear from the fact that, when speaking of the audio recordings, his Honour emphasised that it was necessary (for the jury to convict Mr Potier) that it accept the identification given by the witnesses in the case of the voices on the recordings. His Honour noted that the jury had heard Mr Potier talking in the court and could assess for themselves whether it was his voice on the tapes. His Honour also noted that there was some small amount of independent evidence, including that at Villawood he said other detainees could be heard picking up the telephone, having Mr Potier described to them and then a few moments later “Mr Potier picking up the phone and answering that it was “Mal speaking””.
- There is no basis for the complaint that his Honour was making a statement of fact to the jury on which it was bound to place weight.
● the trial judge’s statement in summing up that if a call had not registered on webtrace it did not mean it had not been made (which is said to be a central misdirection to the jury) and refusing to redirect on this issue; [ground 4 - bias] [AWS 22-23]
- His Honour directed the jury that it would be incorrect to infer from the fact that there is no record of a telephone call emanating from a particular telephone that the call was not made. His Honour explained that it might have been made from a different telephone or on a phone that for some reason the call was not recorded. Mr Potier takes issue with this and submits that the evidence of Mr Finlay was to the contrary. I have considered earlier the evidence of Mr Finlay in relation to that issue. There was no error in the summing up in this respect.
● the trial judge “exceeding his obligation of even-handedness” by informing the jury that the calls had been made by Mr Potier “ignoring” contradictory Crown evidence of Mr Finlay and passing this on as an opinion of fact; [ground 4 - bias] [AWS 22-23]
- I have referred above to the context in which his Honour referred to the missing telephone calls being made by Mr Potier and to the reason that I do not accept that Mr Finlay’s evidence provides the support Mr Potier thinks it does for the allegation that the absence of the calls on the webtrace means they cannot have been made. In any event, his Honour fairly conveyed to the jury the substance of the dispute as to the audio recordings.
● the trial judge informing the jury that the Crown case was that there was no evidence of the recordings being untrue (said to be factually incorrect) and refusing to correct this; [ground 4 - bias] [AWS 23]
● the trial judge in summing up telling the jury in relation to the recordings that Mr Potier was the speaker because he had identified himself as such (said to be untrue as Mr Potier had not given evidence); [ground 4 - bias] [AWS 23]
- Mr Potier complains that this statement was untrue as he had not given evidence. The statement, however, does not refer to evidence given by Mr Potier at trial but as to what is recorded in the conversation itself. When his Honour said in the summing up that there was evidence that Mr Potier was the speaker because he identified himself and he was identified by other prisoners, his Honour is clearly referring to the fact that the person whose voice on the audio recordings had been identified as that of Mr Potier had answered by identifying himself as Mal.
● the trial judge’s statement that the MHP3 letter had not been put to Acting Superintendent Laidlaw in cross-examination (which Mr Potier says was incorrect) and refusing to rectify references in summing up to the Telstra material; [ground 4 - bias] [AWS 23]
- I have referred earlier to the contradiction perceived by Mr Potier as between the evidence of Acting Superintendent Laidlaw and Detective Sergeant Jones as to the blank VHS tape of the 2 May 2000 recording. Mr Potier has complained that his Honour refused to correct a statement made in the summing up as to this issue and that in so doing his Honour said that the letter of 10 October 2001 (from then Detective Laidlaw) to Telstra had not been put to Acting Superintendent Laidlaw. Mr Potier says that this was incorrect.
- The cross-examination of Acting Superintendent Laidlaw was carried out by Mr Healey. Acting Superintendent Laidlaw was taken to the document now referred to by Mr Potier as MHP 3. Relevantly, however, it was not put to the police officer that he had any personal knowledge of the telephone that had been used by Mr Potier to make the calls. Indeed, Acting Superintendent Laidlaw’s evidence made clear that he did not. His evidence was that he gave those telephone numbers to Telstra to carry out the call charge search because they were the only payphones there and that he did not do anything in relation to any other telephones attached to the centre to which Mr Potier may have had access.
- In those circumstances, no error is shown in his Honour’s refusal to re-direct on this issue in the summing up.
● the trial judge informing jury of matters not before the Court; [ground 4 - bias] [AWS 25]
- This complaint relates to what was said by his Honour in the context of his Honour’s directions as to the use of the tendency evidence as to Mr Potier’s entry into the country on a forged passport.
- In the course of his summing up, his Honour made a couple of references to Mr Potier’s entry into the country on a forged passport. The first was when giving the jury an example of a permissible inference. His Honour told the jury that if they accepted that Mr Potier came here on a forged passport and that he was for a while at the detention centre then it would be a reasonable inference that he was an alien illegally in the country.
- Later, his Honour said:
You have to bear in mind that he had been in this country once before. He had followed Ms Oswald here and had proceedings in the Family Law Court. He had returned within a day or so of Ms Oswald’s return, and certain custody arrangements had been made which broke down when he took the child and returned to this country on a forged passport, and kept the child here without Ms Oswald’s knowledge of his whereabouts.
- Mr Potier’s complaint is that he had not given evidence in the trial and therefore this was not a matter in evidence before the Court.
- What that submission ignores is that there was evidence from Ms Oswald that she had found a false passport with Mr Potier’s photograph on it, after he failed to return their daughter from an access visit, and evidence from Ms Conway that Mr Potier had told her that the passports had been “blown”. It was not disputed that Mr Potier was in detention first in Melbourne, where Ms Conway visited him, and in Sydney, where M visited him. In light of that evidence it was clearly open to the jury to conclude that the reason Mr Potier was at the Villawood Detention Centre in 2000 was that he had entered the country on a false passport and had been detained as an illegal immigrant.
- Moreover, on the 2 May 2000 recording of the meeting between Mr Potier and M at Villawood, Mr Potier tells M that he had come to the country on a forged passport and had been “banged up” for that.
- No error is shown in his Honour’s reference in the summing up to the forged passport, nor in the fact that his Honour did not say anything further about it when re-directing the jury after the summing up (which is one of the errors in relation to the re-direction relied upon by Mr Potier (see AWS 22)).
Refusal to accede to Mr Potier’s request for correction of some statements in summing up
- After his Honour finished his summing up to the jury, and in their absence, he invited the Crown and Mr Potier to raise with him any matters arising out of that summing up. Mr Potier raised a number of matters that he wished his Honour to consider. His Honour re-directed on all but two of the five matters to which Mr Potier referred. He now complains as to the refusal to correct the following matters.
● the trial judge’s refusal to correct what is said to have been his error in summing up as to the benefit that A obtained by TV when this was put to him for redirection; [ground 4 - bias] [AWS 24]
● the trial judge’s refusal to revise his summing up in relation to the TV is also said to have an import on the adequacy of the trial judge’s warnings to the jury on accepting evidence from prison informants; [ground 4 - bias] [AWS 24]
- In the course of the summing up on 28 September 2006 (T 11) his Honour said that A did not receive any reward for what he did. Mr Potier takes issue with this because he maintains that A did receive a benefit in the form of the television set (into which the listening device had been placed) which was left in his cell.
- In the summing up, his Honour noted that A had received a television set but referred to the police explanation that, had it been safer for the police to have taken the television set from him they would have done so but that A had become a bailee of the television set, the keeper of it, “simply because, as the police explained, it was a matter of security that a television set could not just arrive and just disappear without questions being asked by other prisoners”.
- A’s evidence was that he did not ask for a television set and did not suggest that the device be put in the television set; and that it was something of a “white elephant”. He denied that he was seeking a reward or that he had sought to make life more pleasant by acquiring a television set. All of that evidence was summarised by the judge in the summing up.
- Mr Potier submitted to the trial judge after the summing up that the jury should be given the option of considering whether the television set was a gift. Mr Potier maintains that this issue has an import on the adequacy of his Honour’s warnings about prison informants. Mr Potier argues that his Honour should have given the jury a s 165 warning rather than informing the jury that A was a “bailee” of the TV. I have considered the adequacy of his Honour’s caution as to the care to be taken in assessing the evidence of prison informants such as A in the context of the summing up generally. There was no error in refusing to redirect on the possibility that the television set was a gift. His Honour fairly summarised the evidence in relation to the explanation given by the police for leaving the television set in the cell.
● Other corrections sought re summing up
- The second matter which Mr Potier raised at the conclusion of the summing up related to the Telstra material. Mr Potier asked his Honour to mention that the Telstra phone accounts also could not locate those calls. He also wished to correct his Honour’s statement that he had not put to Acting Superintendent Laidlaw the statement in his 2001 letter to Telstra that the calls were from the three payphones.
- His Honour redirected to remind the jury that a search had been made through Telstra of the three payphones.
- Third, Mr Potier noted that in cross-examination Ms Oswald had conceded that at the time of the alleged offence she was not in Scotland. His Honour agreed to correct that.
- Fourth, Mr Potier noted that Mr McPhall had given evidence that Mr Potier had told him in January 2002 that Ms Oswald was not in Scotland and that Mr McPhall had given evidence that A considered the trial judge to be corrupt.
- Fifth, Mr Potier asked the trial judge to consider (“only ... to consider, no more”) that where there is no record of a phone call the jury might choose to rely on documentary evidence to support a view as to whether a conversation had taken place or not. His Honour refused to redirect on this issue.
- In his written submissions, Mr Potier complains of a sixth matter (about which he says his Honour should have redirected the jury, although this was not put to his Honour) namely that his Honour had taken the jury to extensive parts of the tendency and coincidence evidence; and that his Honour had referred to his conviction, which Mr Potier says exceeded the tendency and coincidence notice. As noted earlier, no complaint was made at the trial that the fact of conviction was not specified in the tendency and coincidence notice. I consider the adequacy of the directions given in relation to the fact of the conviction shortly.
- There is no basis for the complaint made as to his Honour’s refusal to correct the various matters referred to above.
● inadequate directions to the jury re use of audio material that had led to a conviction; [ground 3 – judge’s rulings] [AWS 22]
- This complaint must relate to the 2000 recordings, since those were the only recordings that had led to a conviction by the time of the second trial. A review of the trial judge’s summing up shows that his Honour referred to the issues that had been raised by the defence as to the audio evidence and properly drew the jury’s attention to the missing five calls from the Optus webtrace.
- His Honour referred to the defence case that: there were a number of questions raised over the intercepted telephone calls; the five telephone calls which were not found on the webtrace would give the jury grounds for consideration that “all was not well” with these interceptions; the first recorded conversation was longer than M said; and that the original transcript of the 2 May 2000 conversation did not have printing on it were also matters raised that would cause concern. His Honour noted Mr Potier’s submission that it was unbelievable that a device such as the listening device used to record the conversation would have malfunctioned and yet there appears to have been this malfunction which was never really explained.
- His Honour reminded the jury that the defence case was that the evidence of Ms Conway in her conversations to Mr Potier and to the police was duplicitous and that the missing telephone calls must be suspect and would raise a serious doubt as to the interceptions (the missing calls being calls allegedly made to Ms Conway by Mr Potier on 3 May, 5 May, 7 May and two on 8 May 2000).
- His Honour adequately dealt with the challenges made by Mr Potier to the authenticity of the recordings, particularly bearing in mind that Mr Potier did not proffer any technical analysis of the recordings to support the contention that the recordings had been in any way altered or manipulated or artificially compiled.
Conclusion as to above complaints re summing up
- His Honour summarised his understanding of the respective Crown and defence cases. His Honour did not, and made it clear to the jury that he should not be taken to, make any finding of fact. Any errors in summing up were not evidence of bias.
- As to the refusal to correct matters in the summing up, the transcript shows that his Honour gave Mr Potier an opportunity to address him, in the absence of the jury, as to any matters that arose out of the summing up; considered each of Mr Potier’s submissions; and acceded to some of them. No bias is shown by his Honour’s refusal to correct matters he considered had either already been dealt with or were unnecessary to address. Nor was any appellate error there revealed.
- Insofar as this complaint relates to the adequacy of directions in relation to the evidence of prior conviction, I deal with this below.
Directions in relation to evidence of prior conviction
- In the course of the appeal, Mr Potier took issue with the adequacy of the directions given by his Honour in the summing up in relation to the use that could be made of the fact of his previous conviction. As noted, leave was given for Mr Potier to file submissions from Counsel on that issue.
- Before turning to those submissions, I extract from the summing up the particular reference to the conviction that was made prior to what his Honour said as to the use of tendency and coincidence evidence:
Now, the Crown explained at the commencement of this case that certain evidence did not relate to the matter which had occurred in Long Bay and for which [A] had the listening device in his cell. The Crown tendered evidence from a number of witnesses from a trial which had happened in the previous year. ... It has not done this to discredit the accused, nor must you take the view that because he had committed one crime, he has committed the crime which is contained within this indictment. That form of reasoning is not allowed. (my emphasis)
- His Honour then went on, as extracted earlier, to direct the jury in effect that before they could take into account the tendency and coincidence evidence they had to be satisfied beyond reasonable doubt that Mr Potier had committed the offence in 2000. Although briefly stated, what his Honour was clearly directing the jury was that they could not use the fact that an earlier jury had convicted Mr Potier of soliciting the murder of Ms Oswald in 2000 as establishing that he had the tendency to harbour murderous intentions that the Crown said he had. Rather, the jury had to consider afresh the evidence as to the 2000 offence and to be satisfied beyond reasonable doubt as to his guilt on that offence, before considering whether it established a tendency or enabled them to conclude that it was so improbable that the conduct was a coincidence, as to assist them in concluding beyond reasonable doubt that he had committed the 2002 offence.
- Mr Brezniak submits that the direction that the jury consider afresh and come to a view as to whether they would be satisfied beyond reasonable doubt as to the earlier offence was one that was impossible for the jury to follow. That submission is made on the basis that the jury could not decide Mr Potier’s guilt in respect of the first offence because not all of the evidence at the first trial was before it; the jury were not directed by the trial judge as to how to consider the evidence from the first trial; and the jury did not have the summing up given at the first trial. That submission leaves out of account the fact that the evidence that was not adduced at the second trial, but had been before the jury in the first, was largely if not wholly evidence that had been excluded on Mr Potier’s own application – i.e., his evidence at the first trial.
- Complaint is also made that the jury were informed that Mr Potier had been convicted at that trial upon the evidence which the jury were to look at afresh. That ignores the fact that what the jury were being told to do was to assess the evidence of the 2000 offence; not to rely on the fact of the earlier jury verdict.
- Mr Brezniak also submits that without the trial judge’s summing up and the warnings and directions given to the jury at the first trial, this jury could not have decided afresh on the evidence before it that it would be satisfied beyond a reasonable doubt that Mr Potier committed the offence in 2000. This submission suffers from the practical difficulty that, as most of the evidence (other than Mr Potier’s own evidence) from the first trial was put before the jury in the second trial, the judge’s summing up and warnings covered that evidence. It was hardly necessary for the jury to be cautioned as to the same matters twice.
- Criticism is made of the direction that the jury form a conclusion as to the guilt and innocence of Mr Potier at the first trial. However, in essence what the trial judge was clearly seeking to do was to impress upon the jury the need for the jury to be satisfied beyond reasonable doubt as to the evidence relied upon as similar fact or tendency evidence. That direction can only have assisted Mr Potier in ensuring that the jury were properly conscious of the high standard of proof required before they placed weight on that evidence. Mr Brezniak, however, submits that the jury could not have been unaffected in its task of making up its own mind about the facts in the previous trial once it had knowledge of the circumstance that the appellant was convicted upon those facts and hence evidence of conviction upon those facts subverted the integrity of the process upon which the jury was directed it must embark.
- It is submitted that, without direction or warning as to the legal effect of evidence of conviction, as provided for in s 91(1) and (2) of the Evidence Act 1995 (NSW), the jury could not have appreciated that the fact of conviction did not assist it in determining the alleged similar facts as directed by the trial judge. The relevance of those provisions of the Evidence Act is that evidence of the decision, or of a finding of fact, in the first trial is not admissible to prove the existence of the fact that was in issue in that proceeding (s 91(1)) and that such evidence may not be used to prove the existence of that fact even if it is relevant for another purpose (s 91(2)).
- His Honour, however, made it clear, when directing the jury that they must determine afresh the issue of guilt in the first trial, effectively told the jury to ignore the fact that a finding of guilt had previously been made in relation to the 2000 offence. That was the clear import of the direction that his Honour gave as set out earlier in these reasons.
- Mr Brezniak submitted that it was necessary, once the evidence tendered at the second trial extended to the admission of evidence as to the earlier conviction, and in light of the direction to the jury to look at the evidence afresh, for appropriate and emphatic warnings by the judge to be given and that none were.
- In particular, Mr Brezniak contends that at a minimum the jury should have been referred to:
●The need to exclude consideration of the fact of conviction in the exercise of considering afresh the evidence of the previous trial
●The danger of misunderstanding or misconceiving the task the jury was directed to embark upon “to consider the evidence afresh” were it to take into consideration the fact of conviction
●The matters which were advanced by the accused at trial in relation to the conviction and how these were to be understood in the context of this warning
●The fact that conviction evidence was led only for the reason of “context” and therefore had no role in any consideration of the guilt or innocence of the accused in his previous trial
●The fact that the conviction evidence was led for reasons of context alone gave it no role or function (and was not to be used) by the jury to assist it to a conclusion against the accused in its task of considering the evidence afresh
●The fact that the conviction evidence was led was not to be used by the jury in coming to a conclusion against the accused at his current trial (emphasis as per original)
- It is submitted that the admission into evidence of proof of conviction in an earlier trial without any warning about the dangers of relying upon such evidence must have diverted the jury from any proper consideration of the claim to similar fact evidence upon which the trial judge directed the jury in his summing up; that the admission of evidence of previous conviction was a matter of great prejudice to Mr Potier and that the admission of evidence of previous conviction was in the circumstances of his trial of such significance as to undermine the safety of the conviction at that trial. It is submitted that the tender of evidence of conviction that any or proper judicial warning guidance as to how the jury was to consider that evidence was almost to be of such importance to its determination of the similar factual question as to result in a verdict being unsafe and unsatisfactory in all of the circumstances of the case.
- The warnings that Mr Brezniak says should have been given at a minimum largely boil down to the proposition that the jury should have been told that they could not take into account the fact that Mr Potier had been convicted at the first trial when determining whether they were satisfied beyond reasonable doubt of his guilt in relation to the 2000 offence and then determining whether that amounted to evidence of tendency or coincidence that could rationally assist them in determining guilt in relation to the second offence.
- His Honour’s very clear direction to the jury as to the need for it to consider “afresh” the evidence of the first offence and be satisfied beyond reasonable doubt of that offence, even though Mr Potier had been convicted by another jury of that first offence, was sufficient to direct the jury in the circumstances of this case to the task they were required to undertake. His Honour’s explanation of the way the prosecution case was put made it clear that the fact of conviction was part of the context in which the conduct alleged in respect of the second offence had occurred.
- Insofar as the submission is made that a failure to give warnings of the kind Mr Brezniak has listed is such that the verdict is unsafe and unsatisfactory, no such ground of appeal was raised but in any event on the whole of the evidence before this Court (and including the material that Mr Potier now seeks to tender as “fresh” evidence), the verdict cannot be seen as unsafe or unsatisfactory.
- The complaint made as to the adequacy of the directions given in this regard is not made good.
- The matter was listed for a sentencing hearing on 10 November 2006. Mr Potier relies on what occurred on that occasion as evidence of bias and maintains that his Honour erred in that ruling.
● the trial judge’s refusal to stay the sentencing hearing listed for 10 November 2006 for more than 20 minutes, although Mr Potier’s application for a review of the refusal of legal aid for that hearing was only determined the day before [ground 4 - bias] [AWS 28]
● the trial judge’s refusal to have regard to the findings of the Court of Criminal Appeal the previous day to adjourn proceedings [ground 3 – judge’s rulings] [AWS 28]
- On that occasion, Counsel appearing for Mr Potier sought an adjournment on the basis that legal aid had only just been granted and she needed time to prepare for the sentencing hearing. His Honour granted only a short adjournment for that purpose, whereupon Counsel withdrew on the basis that she could not adequately represent Mr Potier. There is no basis for that complaint. His Honour had already experienced a history of last minute adjournment applications. The fact that the Court of Criminal Appeal had made certain observations the day before was not a ruling that bound his Honour nor had any order been made staying the hearing.
- In any event, the later refusal to adjourn the sentencing hearing cannot demonstrate bias during the trial. It was a decision unconnected with the conduct of the trial. No complaint is made by Mr Potier as to the sentence ultimately imposed.
Conclusion as to Grounds 3 & 4
- For the above reasons neither of grounds 3 and 4 is made out.
Ground 1 - First conviction not sustainable
- As set out in Mr Potier’s initial grounds of appeal, this ground was expressed as follows:
That the earlier Convictions, the subject of the “Tendency & Coincidence” evidence are no longer sustainable, together with the fact that this evidence had led to earlier convictions, which was put to the Jury in this Trial. This Conviction is the subject of an ongoing Inquiry before the Supreme Court of New South Wales File Ref 72013/2016. Ultimately t he [sic] convictions will be quashed, by this Court, thereby rendering this Trial a nullity. (emphasis as per original)
- In the course of the case management of the appeal proceedings, following discussion on 7 October 2014 with Counsel then appearing for Mr Potier (Mr Brezniak) as to what was intended by the above ground 1, in circumstances where the High Court had denied special leave to appeal from the 2006 Court of Criminal Appeal convictions and a collateral attack on the validity of the first convictions could not be maintained, Mr Brezniak prepared and filed in Court on 13 October 2014 a draft additional ground of appeal in a document entitled “Further Ground of Appeal”, that being:
That (in circumstances where this Court in its decision, (2006) NSWCCA 27, was mistaken, in its conclusion concerning prosecution disclosure to the defense [sic] – prior to that trial – the previous trial of the appellant – of evidence which became available to the defense [sic] only after that trial), a miscarriage of justice resulted from the admission into evidence against him, at his trial, of evidence of the convictions recorded against the Appellant at his previous trial for offences of the same or similar kind involving the same alleged intended victim and the claimed means and method by which the offence charged against him, at his trial, was to be committed. (emphasis as per original)
- On 14 October 2014, at a directions hearing before Garling J, Mr Potier complained that he and his Counsel had not been able to finalise that additional ground of appeal due to disruption when he was moved to Junee for a psychiatric evaluation without notice to him and did not have all his papers. On that occasion, Mr Potier explained that the trial judge was probably right at law in allowing tendency and coincidence evidence on the first conviction (though he ultimately did not abandon any appeal ground in relation to this) but had erred in allowing the jury to be told that he had been convicted on that earlier matter the subject of the tendency and coincidence evidence.
- Mr Potier agreed that his argument was as Garling J there expressed it to be, in effect, that the trial judge by permitting the prosecutor to tell the jury in opening that an earlier jury had returned a conviction, gave a measure of strength or veracity to the tendency and coincidence evidence which it may otherwise not have had.
- Mr Potier nevertheless said that there was a secondary argument following on from that – referring to his argument as to the unreliability of the recordings played to the jury that Mr Potier said called into question the first convictions.
- Mr Potier accepted when the matter was before Garling J on 14 October 2006 that this additional ground of appeal was correctly articulated by his Honour as being:
In light of material which has come to light, it constituted a miscarriage of justice for the jury to be told that there was a valid conviction after the first trial
- Although it seemed to be accepted by Mr Brezniak when the matter was before Garling J on 7 October 2014 that what was proposed was an amendment to ground 1 in the original grounds of appeal filed on 15 September 2014, at the hearing of the appeal Mr Potier informed this Court that he was not abandoning ground 1 as initially framed; rather, he was relying on both that and the additional ground.
- Insofar as issue is taken by Mr Potier with the manner in which the Court of Criminal Appeal in 2006 considered his complaint as to the telephone call recordings and maintains that his ground of appeal was not in fact determined (because of the mistake that the Crown concedes was made at  of the Court’s decision), he has been refused leave to appeal to the High Court in relation to those matters and the fact that he has sought to instigate an administrative inquiry into this is of no relevance to his present appeal.
- For completeness, I note that the error in the 2006 appeal decision was that (at ), the presiding judge said:
... With respect to the Telstra material, the Crown tendered evidence on the appeal, which indicates that the relevant material was included in the Crown brief, which was provided to the appellant’s solicitors before the trial. Accordingly, any submission that the material is fresh evidence, which it could now be of assistance to the appellant, must be rejected.
- The Crown concedes that the Telstra material was not included in the Crown brief provided to the defence before the trial and that this evidence emerged only towards the end of the trial. The Crown maintained, when this issue was raised before the High Court, that the Telstra material was not fresh evidence and did not meet the tests for the admission of fresh evidence set out in R v Abou-Chabake  NSWCCA 356; (2004) 149 A Crim R 417 at  (see submissions dated 13 May 2013 at -).
- The High Court refused leave to appeal from the first convictions. Mr Potier nevertheless seeks to maintain in this appeal (based on his arguments as to the 2000 recordings) that the first conviction is no longer sustainable.
- The dismissal of his application for special leave to appeal by the High Court in September 2013 means that Mr Potier has exhausted all the avenues of appeal in respect of his convictions for the 2000 offences. This Court has no jurisdiction to entertain any appeal from those convictions (Grierson v The King  HCA 45; (1938) 60 CLR 431 at 436; Burrell v The Queen  HCA 34; (2008) 238 CLR 218). The Crown correctly submits that the only aspect of the first trial that may be of relevance on this appeal is the admissibility of the tendency and coincidence evidence (which will be dealt with in ground 2 below) and the fact that Mr Potier’s conviction was put before the jury (which is the thrust of the additional ground of appeal).
- Ground 1, as originally framed, is therefore unsustainable.
- As to the additional ground of appeal, this rests on whether the trial judge erred in permitting the fact of Mr Potier’s previous conviction to be put before the jury. (As noted above, in the course of discussion before Garling J as to what was meant by this additional ground of appeal, Mr Potier conceded that it was within the trial judge’s discretion to admit the tendency and coincidence evidence.)
- Mr Potier’s complaint that the fact of the conviction was not part of the evidence identified in the tendency and coincidence notice, and therefore that reference to it went beyond the ambit of the notice, cannot be sustained. First, there was no complaint by Counsel as to the adequacy of the notice. Second, and more importantly, properly analysed, the fact that Mr Potier had been convicted of the earlier offence was not being adduced as tendency or coincidence evidence. Rather, the fact of the conviction was put forward as part of the conduct comprising the offence, since it was part of the disclosures made by Mr Potier to A, and hence his Honour accepted that it would inevitably have been disclosed. It was relied upon by the Crown as providing motive for Mr Potier to solicit A to murder Ms Oswald and it necessarily put A’s evidence into context.
- A’s evidence was that Mr Potier had told him that he had been approached by a juror in the first trial; that he thought an appeal court would quash his first conviction, and that if Ms Oswald was dead there would be no victim to give evidence in a retrial. His Honour accepted that the fact that Mr Potier had been convicted could not be avoided.
- As Mr Healey acknowledged, Mr Terracini did not challenge the admissibility of evidence of the fact of the prior conviction. Mr Brezniak’s latest submissions now seek to put in issue whether the fact of the conviction was necessarily required to be made known to the jury.
- By way of background, after a short adjournment at the commencement of the trial on 14 August 2006, Mr Healey, in the absence of the jury, asked his Honour to revisit the issue as to whether the Crown could lead evidence of conviction at the first trial, acknowledging that Mr Terracini had previously made no objection to this.
- The Crown made it clear that it did not seek to adduce evidence of the fact of the conviction to show tendency. The Crown informed his Honour (as it had in March 2006) that the purpose of leading that evidence was to provide a clear view of Mr Potier’s motivation to commit the offence (namely, that Mr Potier had thought that he had a chance to have the 2000 convictions set aside in the Court of Criminal Appeal if Ms Oswald was dead). The Crown also indicated that the conviction was part of the “essence of the story itself”, given what A said Mr Potier had told him.
- His Honour refused Mr Healey’s application under s 137 of the Evidence Act for his Honour to review the use of the word “conviction” (as opposed to the evidence of tendency and coincidence that had been permitted to be led).
- Mr Potier now contends that it was not necessary, for the Crown to make out the case it alleged against him, that it tender evidence of the fact of conviction at the previous trial. In particular it is submitted that the fact he was in custody (insofar as that was relied upon as part of the similar or identical facts) did not require disclosure of the offence of which he had been convicted, since could have been in custody on any matter. That, however, ignores the relevance of Ms Oswald being dead to his perceived prospects of appeal for the charge of which he had earlier been convicted.
- He also submits that the two occasions on which he was in custody were not identical because when he was at the detention centre he had not been convicted of any offence.
- As to the link between the evidence of A and the fact of conviction, it is submitted that the evidence of A that Mr Potier had told him about an approach by a juror was “essentially irrelevant to proof of the fact of an intention to kill and excisable from evidence for that reason in any event”. As to the evidence of A, that Mr Potier had told him that if Ms Oswald was dead there would be no-one to give evidence in a re-trial Mr Potier says that did not require evidence of conviction. That submission faces the difficulty that the very fact of discussion of a re-trial pre-supposes a conviction for something.
- Next, Mr Potier submits that whatever motive the Crown says he had for the “elimination” of Ms Oswald was the same and no different from that which Mr Potier had for and in respect of the circumstances giving rise to the trial in 2000. I understand this to be a submission that the motivation was to secure his child from the harm perceived from Mr Wakeham, but I cannot see how it assists the submission that the fact of conviction should not have been admitted.
- Mr Potier submits that the Court should reject the Crown submission that the evidence of conviction was admissible on a non-tendency basis and says there is no explanation as to why evidence of the prior conviction would reveal a motive for the crime charged or would put other admissible evidence into context.
- Mr Brezniak, in his most recent submissions, submits that there is no inextricable link between the fact of the conviction and the alleged motive on the part of Mr Potier, emphasising that the only passage in the recordings which refers to sentence is that which is set out from p 8 in the folder of transcript of 2 February 2002 (as set out at [2.3] of the 27 February submissions). Mr Brezniak submits that it would have been a simple matter to have excluded the reference to that evidence in A’s evidence in chief.
- Evidence of the conviction placed in context the fact that Mr Potier was in custody at the time of the 2002 offences. The relevance of context evidence generally lies in assisting the evaluation of the other evidence going to a fact in issue in the proceedings such as to answer (see RG v R  NSWCCA 173 at ) to answer hypothetical questions that may be raised by the jury about the allegations giving rise to the charges in the indictment.
- The fact of the conviction was part of the context in which Mr Potier had a motive to have his ex-wife killed and the timing of the forthcoming appeal was relevant in that regard. (I interpose to note that the jury did not need to be told of his intention to appeal – it was apparent from the recorded conversations that Mr Potier must have been appealing because it was in that context that it was suggested that if there was no victim the conviction would not be upheld.)
- It was clearly within the trial judge’s discretion to admit the evidence of Mr Potier’s prior conviction. No error has been shown in the exercise of that discretion. His Honour clearly had regard to the prejudice to Mr Potier of evidence as to the fact of conviction and was satisfied nevertheless that such evidence should be admitted on the basis that both the test in Pfennig and that in Elliswere satisfied.
- The additional ground 1 is not made out.
Ground 2 – Admission of recordings
- Ground 2 of the grounds of appeal contends:
2. That the Crown Evidence, recordings claimed to have been obtained under warrant by the servants of the Commissioner for Police New South Wales, played to the Jury are unreliable and should not have been admitted by the Presiding Judge.
- It is not clear whether by this ground Mr Potier maintains that his Honour erred in admitting the 2000 recordings as part of the tendency and coincidence evidence or, as the Crown understands the additional ground 1 to encompass, Mr Potier is contending that there was a miscarriage of justice because potentially fabricated evidence was admitted (as tendency and coincidence evidence or otherwise). I deal with both for completeness.
- As to the first, no error was demonstrated in the trial judge’s decision to admit, as part of the tendency and coincidence evidence, the 2000 recordings.
- The amended tendency and coincidence notice satisfied the requirements outlined by Simpson J in Gardiner v R  NSWCCA 190; (2006) 162 A Crim R 233 at , explicitly identifying the fact or facts in issue upon which the Crown asserted the evidence would bear and the tendency/coincidence sought to be proved. Mr Terracini conceded there was no issue with the notice.
- The exercise to be carried out in determining the admissibility of tendency evidence under s 97 of the Evidence Act was explained by Simpson J (with whom McClellan CJ at CL agreed) in R v Fletcher  NSWCCA 338; (2005) 156 A Crim R 308 at - .
- In the present case, it was expressly conceded by Mr Terracini that the evidence had significant probative value. What was in issue was whether its significant probative value substantially outweighed its prejudicial effect. The Crown expressly acknowledged the prejudice that would flow from evidence of conviction, indicating that it was prepared to accept the application of the stricter Pfennig test for the admissibility of the tendency and coincidence evidence because of that.
- In Fletcher, her Honour noted (at ) that the s 97(1) exercise is predictive and evaluative, not a scientific exercise, and that where evidence “to be adduced” is relevant to the exercise, the exercise must be undertaken on the assumption that that evidence will be given substantially as anticipated. A decision to admit or reject evidence tendered under s 97(1) must be based upon the information and material available to the judge at the time the decision is made (at ) and is a decision involving a degree and value judgment.
- Such a decision is reviewable on appeal only on the principles stated in House v The King (see  above). No such error has been identified in the present case.
- As to the second way in which the complaint appears to be made, the evidence now relied upon as undermining the reliability of the 2000 recordings, such that it is said they should have been excluded at the second trial, is a combination of the Telstra material and the fact that there were two sets of the 2000 recordings (the original recording taken by the telephone intercept branch and the recording played to the jury).
- The existence of the Telstra material was known prior to the second trial. Neither Mr Terracini nor Mr Healey applied for the exclusion of the 2000 recorded telephone conversations that it was alleged Mr Potier had made while at the Villawood Detention Centre on the basis of non-disclosure of the Telstra material at the first trial, though Mr Healey sought an enquiry as to the provenance of the recordings and called on the Crown strictly to prove their provenance.
- The Crown submits that the Telstra material was neither fresh nor new evidence and that the absence of the five calls from both the webtrace and the Telstra call charge records was explicable and was of no real significance, referring to the manner in which the Crown put its case at the first trial (see submissions -).
- The Crown argues that the fact that experienced senior and junior counsel did not take this point is reflective of the lack of importance accorded to it at the time of the trial or that it was not perceived by trial counsel or Mr Potier to be something providing any forensic advantage to the defence, from which it is submitted it can be concluded that there was no miscarriage of justice by reason of the asserted error in relation to the Telstra material. The Crown invokes r 4 of the Criminal Appeal Rules in this regard. In relation to the Telstra material, the Crown also relies upon the proviso in s 6(1) of the Criminal Appeal Act and submits that no substantial miscarriage of justice has actually occurred.
- The Crown maintains that the prosecution case was overwhelming, based on the recorded conversations. As to the provenance of the 2000 recordings, it maintains that this was proved and that, as his Honour observed, the question of provenance of the recordings receded in importance in circumstances where there was evidence from each of Ms Conway and M as to what was said and where each had identified Mr Potier as the speaker. The Crown notes that the jury had heard from Mr Potier over a considerable period of time and were able to make up their own minds not only from the content of the recordings but from the voice itself as to the genuineness of the recordings. Mr Potier himself appeared to accept, and not dispute, the force of that contention during debate at the trial.
- The Crown also points to the inconsistency in the defence case, which was that Mr Potier was not a party to the recorded conversations but at the same time he sought to maintain that both A and M were seeking to entrap him.
- As to the second matter, the reliance placed by Mr Potier on the material produced in answer to the June 2008 notice to produce, namely the two sets of the 2000 recordings, the Crown maintains that the conclusion drawn by Mr Potier from his analysis of the recordings is not one that is open to the Court. In particular, it points out that there is no evidence to support the assertion by Mr Potier that the audio recordings have been fabricated or manipulated so as to secure a conviction. Again, the Crown invokes the s 6(1) proviso. It submits that in the face of cogent evidence from Ms Conway and M, who identified their voices and that of Mr Potier on the recordings, the provenance and continuity of the audio recordings (and similarly, as I understand it, the complaint as to where the highlight tape or working copy was kept) is of little or no importance. I agree.
- Mr Potier concedes that the existence of the Telstra material was known at the time of the second trial but complains that this was three and a half years after it should have been disclosed by the Crown. It is submitted that it is not just the “withheld” Telstra material that caused the conviction appeal to miscarry but the further disclosures such as there being two different sets of recordings must take the Court to consider the argument and maintains that the respondent should have disclosed those facts and not misled the Court, juries and defence into believing that the said recordings were genuine.
- In his November submissions (Part 2 of 2), Mr Potier says that he did not dispute that this was his voice on the recordings but that he did dispute “that he had been involved in the calls as played to the jury”. The distinction, as I understand it, is that Mr Potier maintains that the recordings were not genuine and had been altered and/or manufactured by persons and methods unknown. It is submitted that this was put to the jury in the first trial and that, had the Crown disclosed what was now known about the recordings, his defence would have been substantially enhanced. Mr Potier firmly believes that a comparison of the two sets of recordings will enable this Court to establish for itself the truth of those recordings. He maintains that the s 6(1) proviso is not applicable, where the issue is not whether the voice on the recordings sounded like him but the issue is whether the recordings were genuine.
- The difficulty with this submission is that Mr Potier does not point to anything added to or excised from the original recordings or master tape to warrant a conclusion that there has been a material alteration between the two sets of recordings. True it is that the VHS tape produced at the telephone interception listening post of the 2 May 2000 meeting with M is blank. However, that does not cast doubt on the recording produced from the listening device that M had with him at the time. Similarly, there is interference on the recording of the 5 May 2000 telephone conversation but there was no attempt to hide that and it was a matter for the jury whether they accepted M’s version of the missing words.
- The analysis that Mr Potier has carried out as to the stop/start times of some of the recordings and the length of the recordings played to the jury does not raise doubt as to the authenticity of the recordings, particularly in circumstances where (for example) M’s notation of the time of commencement and cessation of the recording on the listening device used on 2 May 2000 was based on his watch, which may or may not have been accurate. The significance placed by Mr Potier on the “overlapping” calls on 5 May 2000 is similarly weakened by the fact that on at least one recording, Ms Conway is informed by an officer at the detention centre that Mr Potier is on another conversation at the time.
- Given the weight Mr Potier has placed on the different sets of 2000 recordings, I have listened to them. Not only do they not support a conclusion that there has been an alteration or manipulation of Mr Potier’s voice on the recordings (since the conversations flow in an apparently cohesive fashion and without obvious breaks, other than where there is apparently technical interference with the recording on the 5 May 2000 recording which was apparent at the trial). Similarly, the recordings made in A’s cell do not reveal any obvious unexplained breaks.
- Insofar as complaint is made of the transcription of the recordings, from my review of the transcripts while listening to the different sets of recordings it is apparent that there are some errors of transcription (mainly where the transcript records something as inaudible but where I was able to discern what had been said or where there is an obvious error in the words transcribed – such as where M annotated the transcript of the 2 May 2000 recording).
- Mr Potier directed attention to the transcribed response “mmm” to the question whether he wanted them “knocked”. Listening to the tape without the benefit of any high definition headphones or the like I could not hear the response “mmm”, though I could not exclude the possibility that it would be audible if there were better quality equipment available to listen to it. However, there are sufficient other references in the transcripts to be able comfortably to be satisfied that there is no innocent explanation for the transaction that Mr Potier was seeking to arrange with M, particularly when the recordings with M and with Ms Conway are placed in chronological order. I need only refer to Mr Potier’s concern that no harm come to his daughter, who he said was always with her mother, when the evidence was gathered on the mother; or his insistence at the short time frame for the evidence to be gathered by reference to the fact that after the court case Ms Oswald would be out of the country straight away; or his unconcern at the fact that once the evidence was gathered on the woman his daughter would be left alone (saying she would not be alone for long).
- The suggestion that Mr Potier was asking M to track down an unidentified prostitute in Townsville for the purposes of evidence in the court case does not make sense in circumstances where the whole of the discussion to that point (2 May 2000) was to provide descriptions of the house, cars, and people, including Ms Oswald at Mr Wakeham’s house and is inconsistent with Mr Potier’s adamance that the evidence be gathered before Ms Oswald came down to Sydney. Another telling exchange is that, when M said that after the evidence was gathered the police were likely to come to see Mr Potier, he said that he would expect that – and then emphasised the need for M to do nothing illegal. Unsurprisingly, Ms Conway herself pointed out to Mr Potier that what he was asking to be done could hardly be done legally. Mr Potier’s discussion with Ms Conway at around that time can only be understood as Mr Potier using the reference to gathering evidence was a code to cloak the proposed activity in a semblance of legality.
- The submission that the audio recordings are unreliable and should not have been admitted by the trial judge is not sustained. Far from a review of the recordings giving rise to a sense of disquiet, taken together with the evidence given at the trial they make untenable the suggestion that the jury’s verdict was unsafe and unsatisfactory. There has been no substantial miscarriage of justice attendant upon the admission of the audio recordings. The proviso in s 6(1) would apply even if there had been an error in the admission of the recordings.
- Ground 2 is not made out.
Ground 5 – Defence Team Legal Conduct
- Ground 5 is the contention:
5. That Defence Counsel and Solicitors, by their actions, did create a situation whereby the Appellant was materially prejudiced in the conduct of the Trial thereby causing it to miscarry.
- The conduct identified in Mr Potier’s submissions in relation to this ground is for the most part conduct connected with the Carlos incident. Ironically, perhaps, Mr Potier appears to be raising the very Birks ground of appeal that was foreshadowed by the Crown on 6 September 2006 and that led to the withdrawal of his legal representation and, indirectly at least, the termination of his legal aid.
- I have set out earlier in some detail the course of events in relation to the asking of the Carlos question and what followed.
- Where Mr Potier has been inconsistent on this issue is as to the content of the instructions that his defence team had in relation to Carlos and the reference in A’s notes to getting Carlos.
- In his first written submissions, for example, Mr Potier has said that the answer came as a shock to all present. That is consistent with Mr Healey saying that the answer was totally out of the blue. However, on 15 September 2006, Mr Potier seemed to argue that Counsel in fact did have express instructions on this issue. In other submissions to this Court, Mr Potier maintains that the defence team had specific instructions in relation to that matter. It is not clear precisely to what instructions he is there referring. There is, however, no evidence that the defence team had instructions that would have made the asking of the question a matter of flagrant incompetence, such as, for example, that the reference in the notes was to a discussion about getting rid of Carlos. The only evidence is to the contrary, namely the explanation Mr Healey gave on oath as to the advice he gave in conference with Mr Potier from which one could only infer that Mr Healey did not have instructions that would have enabled him to predict the answer.
- Mr Potier next complains about the stance taken by Mr Healey when given Mr Potier’s note, following his Honour’s refusal to discharge the jury or to permit further questioning of A on the matter. At that point, Mr Healey, as noted earlier, disclosed to the trial judge that he might have difficulties continuing to act and that he would have to consult with others.
- The course that Mr Healey took when confronted with Mr Potier’s complaint as to the Carlos matter cannot be criticised. He acted properly in seeking an opinion as to his professional and ethical obligations and the advice he received was that he was required to withdraw from the matter. The trial judge rightly noted that there could be no criticism of Mr Healey’s conduct in so doing. No complaint can be made as to Mr Healey’s conduct in that regard.
- Furthermore, Mr Potier’s complaint as to the position in which he was placed by the Carlos question fails to take into account that the decision not to question A before the jury (to elicit the evidence that had been obtained in the voir dire), and instead to seek the discharge of the jury, was a decision taken after he had had the opportunity to discuss the matter with his counsel. The Crown submits that the inference must be drawn that Mr Potier had given the instructions to proceed in that fashion and that it was perceived that there was a forensic advantage to the defence in so doing. That is borne out by the evidence given by Mr Healey on 15 September 2006.
- In R v Birks, the Court of Criminal Appeal considered the circumstances in which conduct of the case by defence counsel may lead to the quashing of a conviction. There, after directions had been given to the jury which invited the jury to treat the conduct of the defence counsel as a relevant factor when engaging in their own decision making process and when forming views as to the credibility of the accused, defence counsel informed the trial judge that the failure to cross-examine the complainant about certain matters had been the result of his own oversight.
- Gleeson CJ noted (at p 390) that, as a general rule, a party is bound by the conduct of his or her counsel and that counsel have a wide discretion as to the manner in which proceedings are conducted. His Honour went on to say (at ) that:
It sometimes happens that a person who has been convicted of a crime seeks to have the conviction set aside on the ground that counsel at the trial has acted incompetently, or contrary to instructions. It is well settled that neither of these circumstances will, of itself, attract appellate intervention. At the same time, the Courts acknowledge the existence of a power and duty to quash a conviction in some cases. The difficulty is to find, in the authorities, a formula which adequately and accurately defines the class of case in which a Court of Criminal Appeal will intervene. A common them running through the cases, however, is that such intervention is a matter about which the Courts are extremely cautious.
- At , his Honour summarised the relevant principles, the third of which was:
However, there may arise cases where something has occurred in the running of a trial, perhaps as the result of “flagrant incompetence” of counsel, or perhaps from some other cause, which will be recognised as involving, or causing, a miscarriage of justice. It is impossible and undesirable to attempt to define such cases with precision. When they arise, they will attract appellate intervention.
- The two features in Birks which his Honour considered took it out of the ordinary run were first, that the matter about which Counsel had virtually failed to cross-examine at all went to the whole issue in relation to a serious charge and second, that there were various ways in which the problem, once it had become apparent during the cross-examination of the appellant could have been dealt with. It was being put to the appellant that the story he gave in evidence was different from that which he had given his lawyers when in fact it was not. There was available evidence to support him and to rebut the inference that the jury was invited to draw from Counsel’s conduct. His Honour said:
The failure to deal with the matter was not the result of a deliberate, even if perhaps unwise, tactical decision to make as little fuss as possible about subjects on which it was thought that the less that was said the better. This was not a matter of taking a calculated risk. The barrister simply did not know what to do, and so, until it was too late, he did nothing.
- In the present case, there can be no such complaint. The Carlos question by itself, though unwise, does not give rise to a Birks ground of appeal. Mr Potier must be taken to have given instructions not to pursue a course which would have enabled him, by eliciting before the jury the answers given in the voir dire, to minimise any prejudice that was suffered as a result of what he maintained was an unexpected answer. This is not a case where there has been flagrant incompetence of counsel involving a miscarriage of justice. The Crown’s submission to the effect that Mr Potier was the author of any misfortune caused by the decision not to cross-examine A on whether he had disclosed the Carlos matter to authorities has force.
- Mr Potier next complains that there was no basis for his junior counsel (Mr Lowe) or solicitor also to withdraw. To the extent that Mr Potier’s instructions in conference were to invite them to participate in a manipulation of the trial with which they could not ethically agree (as seems the case from the evidence given by Mr Healey on 15 September 2006), it was Mr Potier’s own conduct that led to the withdrawal of both Mr Lowe and Ms McGowan. He had, in any event, indicated that if Mr Healey went then so too must Mr Lowe go; and he had indicated both his concern at Ms McGowan’s ability to represent him without counsel and his unwillingness for her to do so. Therefore, there is no basis for an argument that the defence team’s conduct in withdrawing from the case was in any way improper or causative of a miscarriage of justice.
- Finally, Mr Potier is critical of his defence legal team for not having made contact with a former prison inmate, Mr Warren Richards, in order to obtain evidence from him. Mr Potier has included in the appeal books a handwritten affidavit setting out the evidence that Mr Richards says he would have been prepared to give had he been asked to do so. There was some evidence given at the trial as to the attempts that had been made by the Crown to locate Mr Richards (who it was thought was an associate of Neddy Smith and was unlikely to cooperate with the police).
- Even if there is some fault on the part of the defence team in this regard, and without exploring the instructions that were given by Mr Potier at the relevant time no such conclusion could be reached, it is evident from a review of the contents of Mr Richard’s affidavit that it is very general in its terms and would not have materially advanced Mr Potier’s defence. There was already evidence from a number of other prison inmates as to the way in which A was regarded by them. Mr Richards’ own views on this issue would not have assisted Mr Potier and his evidence of the “joke” that he says Mr Potier said was being played on A suffers from the problem that it is vague and depends on the veracity of Mr Potier in any event.
- There is no basis for a conclusion that the conduct of the defence legal team caused the trial to miscarry. Ground 5 is not made out.
Ground 6 – Non-disclosure
- Ground 6 is the contention:
6. That documents that were in the position [sic; possession] of the Crown Prosecution Service, or should have been, in their possession were withheld from the Defence. These documents should have been disclosed to the Defence prior to the start of the Trial and their failure to disclose caused the Trial to miscarry.
- The Crown’s duty to disclose is an incident of its duty of fairness to the accused. The test in in R v Reardon  NSWCCA 197; (2004) 60 NSWLR 454 correctly encapsulates in New South Wales the prosecution’s duty of disclosure (see R v Spiteri  NSWCCA 321; (2004) 61 NSWLR 369 at  and R v Livingstone  NSWCCA 407; (2004) 150 A Crim R 117; at , ). That test (Hodgson JA adopting that in R v Keane  2 All ER 478 at 484;  1 WLR 746 at 752) is as follows in respect of the content of the duty of a prosecutor to disclose information (at ):
... the prosecution must disclose documents which are material ... documents are material if they can be seen, on a sensible appraisal by the prosecution, (a) to be relevant or possibly relevant to an issue in the case, (b) to raise or possibly raise a new issue the existence of which is not apparent from the prosecution case, or (c) to hold out a real (as opposed to a fanciful) prospect of providing a lead on evidence going to either (a) or (b). This view was approved by the House of Lords in R v Brown (Winston)  UKHL 33;  AC 367 at 376–7, with the comment that “an issue in the case” must be given a broad interpretation. Category (c) makes it clear that the duty is not limited to matters that would be admissible in evidence.
- Hodgson JA's statement of relevant principles was approved in Cornwell v R  NSWCCA 59; at  and R v Lipton  NSWCCA 247; (2011) 82 NSWLR 123 at . In R v Spiteri, Simpson J (Grove and Shaw JJ agreeing) said at -:
In Brown [ AC 367;  UKHL 33;  3 All ER 769] ... it was held that the prosecution duty of disclosure did not extend to disclosing material relevant only to the credibility of defence (as distinct from prosecution) witnesses. Even less, in my view, does the duty extend to disclosing material relevant only to the credibility of the accused person himself or herself; and even less does it extend to obliging the Crown to disclose material that would deter an accused person from giving false evidence or raising an issue of fact which might be shown to be false.
- Her Honour noted at  that the reference to material which might assist the defence has to be considered in the context of the trial under consideration and that the Crown cannot be expected to disclose material in its possession which might assist a defence of which it has no notice and cannot be expected to foresee.
- The prosecution’s duty to disclose is a continuing one (R v Glover (1987) 46 SASR 310; Cooley v Western Australia  WASCA 160; (2005) 155 A Crim R 528 at ) and extends to disclosing material relevant to sentence proceedings (R v Lipton  NSWCCA 247; (2011) 82 NSWLR 123 at ).
- The consequences of non-compliance with the duty to disclose were considered in Grey v R  HCA 65; (2001) 184 ALR 593; 75 ALJR 1708. There, the majority (Gleeson CJ, Gummow and Callinan JJ) held that where the Crown has not complied with its duty of disclosure, the question is whether the non-disclosure resulted in a miscarriage of justice. (See also Mallard v R HCA 68; (2005) 224 CLR 125.)
- The present appeal challenges the conviction in the second trial. Therefore any ground of appeal in respect of non-disclosure must relate to that trial. Even if there had been a breach of the duty of disclosure at the first trial by the failure to disclose to defence counsel the Telstra material, and the Crown does not concede that the evidence supports such a conclusion, this relates to the validity of the conviction in the first trial, a matter that is beyond the jurisdiction of this Court to entertain in light of the dismissal by the High Court of Mr Potier’s special leave application.
- The only recordings of which Mr Potier could have been unaware by the time of the second trial could be the material produced in answer to the order to produce. That material could only have related to the 2000 recordings having regard to the terms of the order to produce and what was said at the time the material was produced.
- Mr Potier has acknowledged that his defence legal team were provided prior to the second trial with all of the master tapes in relation to the 2002 recordings (T 694; 8/9/06). The “enhancement” of the 2002 tapes, which enabled audio material from those tapes to be played to the jury at the second trial was a matter about which evidence was given at the second trial.
- The Crown submits that Mr Potier has failed to establish that due diligence would have been unlikely to ascertain the existence of the Telstra material and has failed to establish that any alleged non-disclosure has resulted in a miscarriage of justice and hence has not satisfied the test in R v Livingstone at -.
- At the time of the second trial, as summarised earlier, the Telstra material had already been disclosed and the existence of the master tapes and highlight tapes in relation to the 2002 recordings was known by then (Mr Potier conceded that all 13 master tapes had been served on the defence legal team while Mr Terracini was briefed in the matter). Even if there was an obligation on the Crown also to disclose that there was both an original (raw format) recording of the relevant 2000 conversations and another set of the recordings as played to the jury, no miscarriage of justice has been shown to have resulted from that for the reasons set out earlier.
- If the question for this Court is whether the appeal against conviction in the second trial should be allowed because of a question as to the reliability of the earlier conviction based on the alleged non-disclosure of the Telstra material, then it must be answered in the negative. In my opinion no substantial miscarriage of justice has been shown to have occurred as a result of admission of the 2000 recordings. By the time of the second trial the Telstra material was known to the defence and was able to be relied upon for whatever inference might have reasonably been able to be drawn therefrom.
- Mr Potier has not lost a chance which was fairly open to him of being acquitted, or a real chance of acquittal, by reason of the admission of the 2000 recordings. The provenance and quality of the recordings were well and truly in issue at the second trial and, as the Crown emphasises, the jury was in the position where they could assess for themselves matters such as whether it was Mr Potier’s voice that had been heard on the respective sets of recordings and the contention by Mr Potier that the recordings had been manipulated or altered in some fashion.
- As to the Crown points out, the case that Mr Potier sought to run in relation to the 2002 recordings was that A was seeking to entrap him or that he was playing a trick on A or humouring him. That is inconsistent with a denial that it was his voice on the recordings or that the conversations had been in some way artificially produced or altered. Similarly, Mr Potier’s argument on this appeal that the recorded conversations with M show that there were in effect two parallel conversations going on at the same time (M speaking of persons being knocked and he speaking of legally gathering evidence) ignores the clear inference to be drawn from the statements made in the course of the conversations as a whole.
- No substantial miscarriage of justice has been established from any irregularity in the length of the recordings played to the jury or matters of that kind.
- Ground 6 is not made out.
Ground 7 – Respondent’s conduct
- Ground 7 relates to the conduct of the case by the Crown, namely:
7. That the overall conduct of the Respondents, servants and agents demonstrates an intention to disrupt the course of justice, thereby causing both Trials to miscarry. That such conduct does create a sense of unease and disquiet; this Court does intervene and quash the Conviction.
- In the course of Mr Potier’s written submissions he broadly identifies a number of areas of complaint in this regard.
- First, complaint is again made in this context as to the non-disclosure and “deliberate withholding” of the Telstra material (which Mr Potier says he had always assumed was deliberately withheld by the police but discovered in 2006 had been disclosed to the Crown during the course of the first trial, in October 2006). Mr Potier points to the evidence of Acting Superintendent Laidlaw in the second trial as to what he did with the Telstra material and asserts that the evidence given was that he knew it had not been given to defence counsel.
- That involves a gloss on the actual evidence given on this subject. Acting Superintendent Laidlaw believed he would have given the material to the Crown prosecutor; agreed that he was quite sure that he did; and said he assumed it would have been given to defence counsel. He agreed that he understood the significance of the material (although it was not put to him what the significance of it was other than that there had been statements made in summing up as to the absence of any Telstra records). The Crown does not concede that there was any breach of the obligation of disclosure but in any event submits, and I agree, that there was no substantial miscarriage of justice occasioned to Mr Potier in the second trial even if there was such a breach during the first.
Overlapping telephone conversations
- Mr Potier also complains of the failure by the Crown to explain that M’s telephone account (MHP 11) showed that he was speaking to Mr Potier at the same time as Ms Conway (referring to MHP 6 and MHP 12). The Crown’s response to this is that Mr Potier’s commentary on the tapes (MHP 12) is not evidence and there has been no attempt by Mr Potier to reconcile the items now sought to be tendered with the items listed on the June 2008 order to produce.
- In any event, for the reasons set out above, the complaint as to this issue does not establish a miscarriage of justice.
Intention to use recorded conversations in sentencing hearing
- Thirdly, Mr Potier complains that Detective Sipos’ evidence (at T 762-764) to the effect that if the investigation failed to produce enough evidence for a charge in relation to the 2002 offences, he would use A to try and increase the sentence that might be given at the then forthcoming sentencing hearing for the first offence, reflects on the conduct of the Crown case. Detective Sipos agreed that his idea had been that if the solicit to murder investigation did not produce anything it might be that A could give evidence in relation to Mr Potier’s sentencing for his previous conclusions. He said it had gone nowhere.
- Even if such an intention could be characterised as improper, it has nothing to do with the conduct of the second trial.
Inconsistent evidence as to the two sets of recordings
- Mr Potier also points in this context to what he says was the inconsistent evidence by the two police officers (Acting Superintendent Laidlaw and Detective Sergeant Jones) as to the 2 May 2000 recording and the non-disclosure of the 2 “substantially different” sets of the 2000 recordings. I have considered this above. I do not accept that the conclusion drawn by Mr Potier from this evidence, that one of the police officers must have been lying, is correct. The substance of this complaint that goes to the provenance of the recordings and has already been dealt with.
Pursuing second prosecution on an infirm basis
- Mr Potier further complains that the Crown proceeded with the second trial knowing that “this was on an infirm basis”. In this regard, he refers to the Crown having admitted, in May 2011, that the Court of Criminal Appeal erred at  of its 2006 judgment. Mr Potier complains that the Crown did not correct that error, but took advantage of it. For the reasons already given, the non-disclosure of the Telstra material during the first trial did not cause the second trial to miscarry.
- Back in March 2006, I note that Mr Terracini (T 319.10) had made clear that the defence was not suggesting that there was any impropriety in the way that Mr Potier had been prosecuted the second time (the defence contention being, however, that the Crown had “chosen to adopt a certain course to try and get [Mr Potier] to say things, capable of interpretation that he committed a very very serious offence, knowing themselves it was impossible to carry out”.
- There is no basis to the complaint that the Crown acted in some way improperly or without sufficient cause in the investigation or prosecution of the suspected offence.
Discussion with Ms Conway before her cross-examination
- As a further matter, Mr Potier complains that the Crown on 15 September 2006 tendered a statement from Ms Conway who had commenced giving evidence some days earlier. Mr Potier says that this was prepared with the assistance of the NSW Police and Crown Prosecutors Office (T 829) and was a flagrant breach of the court rules that witnesses are not allowed to discuss their evidence with those questioning them during the giving of their evidence.
- Ms Conway’s evidence in chief was disrupted by illness. Before her cross-examination was due to commence, Mr Healey had asked for a short adjournment. This was granted. When the trial resumed on 21 August 2006, Ms Conway was ill. Other witnesses were interposed.
- On 15 September 2006, before her cross-examination had commenced, the Crown recalled Ms Conway who then gave evidence that, since giving her earlier evidence, she had contacted the Crown prosecutor and his instructing solicitor to alert them to some further information she wished to give evidence about. She had then given a fresh statement to Detective Sipos. The new evidence related to her recollection of where certain money she said she had received from Mr Potier had been changed from English to Australian currency. Mr Potier complains that the Crown had spoken with Ms Conway before her cross-examination.
- Mr Potier’s complaint reveals his lack of familiarity with the relevant Bar Rules. What is precluded under the Bar Rules is conferring with a witness while the witness is under cross-examination. Ms Conway’s cross-examination had not yet commenced at the time that she contacted the Crown prosecutor to advise that she had further information about which she wanted to give evidence.
- In International Relief and Development Inc v Ladu  FCA 1216 the practice in this regard in Victoria and other Australian jurisdictions was considered in the context of an application given for leave to confer with a witness before the commencement of re-examination. Kenny J referred to the relevant Victorian Bar Rules which precluded a barrister from conferring with a witness while the witness was under cross-examination, even if the witness is a client or party to the proceedings, unless one of the two exceptions to the rule applied. Her Honour considered that there might be a question as to what extent if at all that rule applied where the cross-examination of the relevant witness had apparently concluded and re-examination was about to commence but did not consider it necessary to say anything further about that subsidiary question.
- Her Honour noted that there had been a practice in at least some Commonwealth jurisdictions that Counsel would not speak with his or her own witness while that witness was under oath (or, perhaps, only under cross-examination) at least without leave of the Court or the consent of the opposing party (or perhaps, without informing either the Court or the opposing party), referring to an article by a former Federal Court judge in the 1997 Australian Bar Review (Sheppard “Communications With Witnesses Before and During Their Evidence” (1987) 3 Australian Bar Review 28 at 36-38).
- The New South Wales Bar Rule at the relevant time refer to speaking to the witness while the witness is in under cross-examination. This had not occurred by the relevant stage. Mr Potier’s complaint has no substance.
Disparity in funding re witnesses
- Mr Potier also complains that the Attorney-General funded the calling of Ms Oswald (“the alleged victim”) to give evidence but was not prepared to fund Mr MacKechnie to give evidence personally or by video-link. There is no substance to this complaint.
- True it is that the Crown’s duty of fairness and impartiality is informed by the inequality of resources between the Crown and accused and brings with it an obligation to make available all material that may assist the defence (R v Lipton  NSWCCA 247 at , , ; R v Ulman-Naruniec  SASC 437; (2003) 143 A Crim R 531 at , ).
- However, it is clear from the transcript of what occurred that the trial judge’s concern was as to the feasibility and inconvenience to the efficient management of the trial if he were to accede to the request that Mr MacKechnie give his evidence personally or by videolink. Arrangements were then made for Mr MacKechnie’s sworn statement to be read (the Crown not objecting to the inadmissibility of parts of it that were clearly hearsay). It was not suggested that the jury should place less weight on this evidence because Mr MacKechnie was not cross-examined.
- The jury was capable of considering, in light of all the evidence, whether to accept Mr Potier’s evidence that he was playing a joke on A, and the plausibility of this at a time when he was awaiting sentence for conduct of the very same kind as the purported joke.
Disquiet as to investigation/conviction
- Finally under this ground of appeal, Mr Potier says that he seeks a finding that this Court “has a genuine feeling of disquiet and uneasiness about the methods adopted by the Servants of the Respondent, including the commissioner for Police NSW to obtain, and retain, convictions against him”. There is no basis on the material before this Court for any such conclusion to be drawn.
- Ground 7 is not made out.
Ground 8 – New Evidence
- Ground 8 is:
8. That evidence previously unknown to the Appellant, and not available to the Jury, should be considered to be “new evidence” for consideration by this Court.
- The claimed new evidence, in essence, is identified as being that the police had two different sets of recordings from the first investigation. He refers to the blank VHS tape of the listening post recording of the 2 May 2000 meeting; complains of the lack of continuity of evidence in relation to the highlight tape; and he complains that the 6 February 2002 conversation was played from the highlight tape and that the police running sheet shows it being stopped 19 minutes before the end of the recording played to the jury.
- The test for the admission of new evidence is that set out in R v Abou-Chabake. There, Kirby J noted that a verdict will be quashed and a new trial ordered only where: the evidence is fresh; it is credible or at least capable of belief or plausible; and it would, in the context of the evidence given at trial, have been likely to have caused the jury to have entertained a reasonable doubt about the guilt of the accused (or, if there be a practical difference) there is a significant possibility that the jury acting reasonably would have acquitted the accused.
- What Mr Potier ultimately seeks to tender as new evidence are the three bundles of tapes and discs marked for identification as MFI 1-3 in these proceedings.
- It has not been demonstrated that any of that material could not have been obtained with reasonable diligence prior to or during the second trial. The defence team knew of the existence of the Telstra material; it was conceded that the defence team had been provided with all of the “master tapes”; there had been reference to highlight tapes and the whereabouts of those tapes (and integrity of those tapes) was a matter on which cross-examination was conducted during the second trial. Anything ultimately obtained under the order to produce dated June 2008 could logically have been obtained had a similar notice been issued at an opportune time in the preparation for the second trial. It is hardly as if Mr Potier was not aware that the case against him rested to a large degree on the taped conversations and he says that his position was always that he disputed them.
- In any event, the jury was made aware of the defence argument in relation to the tapes and was in a position to assess from the recordings played to them whether the voice on the recordings was that of Mr Potier and to judge whether, as he contended, the 2000 recorded conversations had been altered by someone or some unknown method and whether the 2002 recorded conversations amounted to him humouring A or whether in fact they disclosed an intention to solicit A to murder Ms Oswald. In the context of the whole of the evidence, the admission of the further sets of recordings that comprise MFI’s 1-3 would not have been likely to have caused the jury to entertain a reasonable doubt as to the guilt of Mr Potier. Put in another way, he has not established that there is a significant possibility that, with the admission of this further material, the jury acting reasonably would have acquitted him.
- The application to adduce fresh evidence should be refused. Ground 8 of the grounds of appeal is not made out.
- None of the appeals grounds has merit and for that reason it would be appropriate to refuse the extension of time to appeal. However, as the grounds have been argued and dealt with, I would propose that leave to appeal be granted and the appeal dismissed.
- SIMPSON J: I agree with Ward JA.
- WILSON J: I agree with Ward JA.