Application of Malcolm Potier (No. 2)

1. [1]

   This Court gave judgment on 3 August 2015 in relation to a number of applications made by the Applicant: Application of Malcolm Potier [2015] NSWCCA 199. All the applications were dismissed.

2. [2]

   On 17 August 2015 the Applicant applied under r 50C of the Criminal Appeal Rules to re-open the judgment of the Court. The basis of the application was said to be:

3. [3]

   The Applicant provided what were described as short submissions together with copies of correspondence with the Registrar of the Court. The Applicant concluded those submissions by saying that should the application be accepted the Applicant be permitted a reasonable opportunity to file a comprehensive argument. Because of the nature of the jurisdiction under r 50C and the material already provided by the Applicant the Court declined to permit any further submissions.

4. [4]

   Rule 50C provides:

5. [5]

   The jurisdiction under r 50C has recently been considered in two judgments of the Court. In Bruce Edward Gall v R (No 2) [2015] NSWCCA 152 Hoeben CJ at CL (with whom R A Hulme and Davies JJ agreed) considered a number of cases relevant to the rule and concluded:

6. [6]

   In Miller v R [2015] NSWCCA 205 Adams J (with whom Hoeben CJ at CL and Hidden J agreed) said:

7. [7]

   In the light of those principles we now deal with the four matters raised by the Applicant.

(a) Mistake of law over the Court’s inherent jurisdiction

1. [8]

   The mistake of law is said to arise because the Applicant (as he submitted) has always maintained that the Court of Criminal Appeal had jurisdiction to hear all matters. He submitted that the Court, being a division of the Supreme Court of NSW, has power and authority to consider all matters before it.

2. [9]

   The matter was considered at [44] of the principal decision. The Applicant’s submission is misconceived. No error is demonstrated.

(b) Mistake of fact over the status of the Applicant’s parole consideration

1. [10]

   The Applicant submitted that the Court made a mistake of fact in finding that it was the Applicant who had sought deferment of consideration for parole.

2. [11]

   In the principal judgment the Court made an observation in passing at [55] that the Applicant had changed his approach from earlier persuading the Parole Board to adjourn consideration of his parole to asking for the hearing of the Parole Board to be brought forward. The evidence supported that observation. It was not a material fact but a background fact only in relation to determining the power of this court to issue a criminal justice stay warrant. Whether it is correct or not does not alter the determination made. There is no basis for the assertion of error.

(c) Mistake of law over the rejection of the Applicant’s bail application

1. [12]

   The Applicant submitted that the Court acknowledged that any bail application to be considered would be after representations from the Crown and no such representations were before the Court. The Applicant submitted that if that was correct the Court could not decide the Applicant’s bail application, yet it did so.

2. [13]

   The transcript of the hearing before this Court included the following:

3. [14]

   In the absence of any representation from the Crown the bail application could not be dealt with. The documents lodged by the Applicant for bail had been received too late for such representation to be arranged. The Applicant accepted that that was so and that the bail application could not be dealt with.

4. [15]

   There was no error in the Court refusing the bail application.

5. [16]

   The Applicant’s submission, in substance, was that this Court should not have considered the likely success of the Applicant’s r 50C application in respect of the judgment of this Court in Potier v R [2015] NSWCCA 130. To do so, the Applicant submitted, was a misunderstanding of law and created a future prejudice for the Applicant in respect of that other r 50C application.

6. [17]

   In the principal judgment this Court made it clear at [56] that it had jurisdiction under s 151 of the Migration Act 1958 (Cth) to issue a warrant referred to in that section. The Court had a discretion whether to issue such a warrant. One consideration informing the discretion was whether there was likely to be any alteration to the judgment of this Court given on 3 June 2015. For reasons relying on Bruce Edward Gall v R (No 2) the Court’s opinion was that the judgment of 3 June 2015 was unlikely to be altered at least in a way that would result in a different outcome. That was a significant factor to be considered from the point of view of the Court’s discretion whether a warrant should be issued under s 151. No error is demonstrated in the approach that the Court took.

Conclusion

1. [18]

   None of the matters raised in this r 50C application is a matter appropriate to be dealt with under r 50C. The application attempts to re-argue matters already considered in the principal judgment. The application should be refused.