Nudd v Australian Federal Police

[2007] FCA 2114

FEDERAL COURT OF AUSTRALIA

Nudd v Australian Federal Police [2007] FCA 2114

ADMINISTRATIVE LAW – search warrants – application for judicial review under Administrative Decisions (Judicial Review) Act 1977 (Cth) of a decision to obtain a search warrant – application of s 9A Administrative Decisions (Judicial Review) Act – where s 9A Administrative Decisions (Judicial Review) Act excludes review of this decision from the jurisdiction of the Federal Court due to the pending appeal and nature of the proceeding before another court.

Customs Act 1901 (Cth), s 233B
Administrative Decisions (Judicial Review) Act 1977 (Cth), s 9A
Judiciary Act 1903 (Cth), s 39B
Justices Act 1886 (Qld), s 57

Nudd v R (2006) 225 ALR 161 cited

KEVIN PHILIP NUDD v AUSTRALIAN FEDERAL POLICE AND COMMONWEALTH OF AUSTRALIA
QUD374 OF 2007

LOGAN J
21 DECEMBER 2007
BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QUD374 OF 2007

BETWEEN:

KEVIN PHILIP NUDD
Applicant

AND:

AUSTRALIAN FEDERAL POLICE
First Respondent

COMMONWEALTH OF AUSTRALIA
Second Respondent

ATTORNEY GENERAL FOR THE COMMONWEALTH OF AUSTRALIA
Third Respondent

JUDGE:	LOGAN J
DATE OF ORDER:	21 DECEMBER 2007
WHERE MADE:	BRISBANE

THE COURT ORDERS THAT:

1.The application is dismissed.

2.The costs of, and incidental to today’s application, together with the costs of, and incidental to the substantive application, be taxed and paid by the Applicant. 

Note:   Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QUD374 OF 2007

BETWEEN:

KEVIN PHILIP NUDD
Applicant

AND:

AUSTRALIAN FEDERAL POLICE
First Respondent

COMMONWEALTH OF AUSTRALIA
Second Respondent

ATTORNEY GENERAL FOR THE COMMONWEALTH OF AUSTRALIA
Third Respondent

JUDGE:	LOGAN J
DATE:	21 DECEMBER 2007
PLACE:	BRISBANE

EX TEMPORE REASONS FOR JUDGMENT

1. This is an application for the judicial review of a decision by an acting Magistrate on 6 May 2001, to issue a warrant for the arrest of the Applicant, in respect of what was then alleged to be an offence against s 233B of the Customs Act 1901.  The basis of the application, although not explicitly stated in the document filed in the court, would seem to be the Administrative Decisions (Judicial Review) Act 1977.  For reasons that will transpire it matters not whether it is that statute or the Judiciary Act 1903, which is called in aid in some way to ground the relief sought, or at least a declaration in respect of the validity of that warrant. It is necessary to observe “then alleged”, because much has happened since 6 May 2001.

2. A convenient recitation of the events that are a background to this proceeding is to be found in the head note of the decision of the High Court in Nudd v R (2006) 225 ALR 161. What is there stated is as follows:

   “Police and customs officers intercepted a yacht in Moreton Bay on 3 May 2001.  On board they found 89 kilograms of cocaine.  There were two men on the yacht when it was boarded, a citizen of the United States, Peter Jackson and his son, Gareth Jackson.  They left Mexico in May 2000 on the yacht and sailed to Noumea.  From there they flew to Australia on 7 December 2000, where they remained until their visas expired in March 2001.  On 7 March 2001, Peter Jackson fled to the United States where he obtained a false United States passport.  On 28 March 2001, he flew from the United States to Noumea on the false passport.  He then sailed the yacht from Noumea to Moreton Bay where the boat was intercepted.  The part of the period of three months, in which the two men were in Australia, they lived in a motel in Sydney.  A listening device had been installed in their room to intercept telephone conversations.  Eleven of those conversations were between Peter Jackson and the appellant, - (whom I interpolate is the applicant presently before me) - , who was an Australian citizen and then living in Los Angeles.  The appellant was charged – (in other words, the present applicant was charged) – with being ‘knowingly concerned’ in the importation of cocaine into Australia contrary to section 233B of the Customs Act 1901. The intercepted conversations between the appellant and Jackson, the prosecution contended, showed clearly that the former was assisting, or attempting to assist in the resolution of the problems of making arrangements for the importation. The appellant was convicted by the Supreme Court of Queensland of the offence, charged and sentenced to 22 years imprisonment. An appeal to the Court of Appeal was dismissed. The appellant appealed to the High Court contending there was a miscarriage of justice because of the incompetence of counsel who: failed to understand and properly advise on the elements of the offence charge; failed to take appropriate instructions; failed to appreciate or advance two lines of defence reasonably open; made submissions of fact in error and/or without instructions to do so; failed to object to inadmissible and highly prejudicial material contained in the telephone intercepted tapes, being admitted.”

3. The conclusions reached by the High Court in that case were that Mr Nudd’s counsel was incompetent to a serious degree.  Notwithstanding that, the Court further concluded that he had not been deprived of a chance of an acquittal because the case against him was a strong one and effectively unanswerable. 

4. It is necessary to say something further about the chronology of events that led up to that High Court appeal.  As I have mentioned, on 6 May 2001 an arrest warrant sought to be impeached in these proceedings was issued.  On 28 February 2002, an extradition occurred with the result that Mr Nudd was returned to Australia and then remanded in custody.  He was convicted on 22 July 2003, before a Supreme Court Judge and a jury.  It was then that the sentence of 22 years imprisonment was imposed with a non-parole period of 11 years.  On 14 May 2004, his appeal against conviction, a sentence appeal having been abandoned, was dismissed.  The High Court proceeding that I have mentioned concluded with the dismissal of the appeal, following an earlier grant of special leave on 9 March 2006.

5. Since then, in a number of ways, in the Courts of the State of Queensland, Mr Nudd has sought to ventilate whether the original arrest warrant was valid. It suffices to note that none of those proceedings has been successful. The Respondents to the application have today sought its dismissal on the basis that it is an abuse of process. They particularly point to s 9A of the Administrative Decisions (Judicial Review) Act and its deprivation where it applies on this Court’s jurisdiction. 

6. One may note that the position ought not be any different were it the case that, in some way, it was the Judiciary Act 1903 that was called in aid in respect of the application. That is because there is in both the Judiciary Act 1903 in s 39B (3) and in the Administrative Decisions (Judicial Review) Act, s 9A, a coincidence of reference and definition. That coincidence is in the term “Related criminal justice process decision”. For that reason I consider only s 9A of the Administrative Decisions (Judicial Review) Act.  That section provides that relevantly in para (a):

   At any time when the prosecution for an offence against a law of the Commonwealth, a State or a Territory is before any court.

   Or, (b):

   An appeal arising out of such prosecution is before any court;

   No court has jurisdiction to hear, continue to hear or determine an application under this Act by the person who is or was the defendant in the prosecution in relation to a related criminal justice process decision.

7. Subsection (4) provides that:

   Appeal includes an application for a new trial and a proceeding to review or call in question the proceedings decision or jurisdiction of a court or judge.  Related criminal process decision in relation to an offence is defined to mean relevantly.

   (a):

   A decision including a decision in connection with the investigation, committal or trial of the defendant.

   And then (iii):

   A decision in connection with the issue of a warrant, including a search warrant or a seizure warrant.

8. At present there is pending before the Court of Appeal of the Supreme Court of Queensland, an appeal from a decision given by Byrne J on 13 July 2007, in which his Honour dismissed an application which, in essence, sought to challenge the arrest warrant I have mentioned. Arguably, the effect of s 9A is that having regard to the pending appeal and the nature of the proceeding before Byrne J, this Court has no jurisdiction under the Administrative Decisions (Judicial Review) Act to entertain the present application.

9. Further, a like conclusion would necessarily follow for the reason I have given in respect of any reliance on the Judiciary Act 1903. There is though, even assuming that s 9A does not apply to deprive this Court of jurisdiction, an underlying reason why it is that the Court ought not to entertain it. Before enlarging on that, I should out of deference to the precise argument given by Mr Nudd today, detail the bases of the substantive challenge that he seeks to make to the arrest warrant.

10. The essence of the challenge is to be found in his view as to the effect of s 57 of the Justices Act 1886 (Qld) in relation to the power of the acting magistrate to issue the arrest warrant. Section 57 of the Justices Act 1886 (Qld) materially provides that:

    If a complaint is made before a justice that a person is suspected of having committed an indictable offence within the justice’s jurisdiction, the justice may issue a warrant to apprehend the person and have the person brought before justices to answer the complaint and be further dealt with according to the law. 

11. The point that Mr Nudd seeks to advance in respect of that section is twofold. Firstly, he says that at the time when the warrant was issued he was not in Australia and, therefore, not within the jurisdiction to which reference is made in s 57 of the Justices Act. Secondly and in any event, in respect of s 57, he submits that the alleged offence is not one which occurred within the jurisdiction described in s 57. He is encouraged in the making of that submission by an opinion that his then solicitors received from a member of the Bar in Queensland in November 2001, in which the opinion is expressed that the first instance warrant issued on 6 May 2001 was issued improperly.

12. It is a noteworthy feature of that opinion that it contains no reference to the operation of Federal law in the application of State provisions to procedures for the arrest, committal, trial and appeal of Federal offenders. Tempting though it is in those circumstances to express a concluded view as to whether there is any merit whatsoever in the challenge made to the warrant, that is something I must not do, even apart from the operation of s 9A. A fundamental reason, and that to which I have earlier adverted, is that it would be subversive of the orderly operation of the Australian criminal justice system for this Court at this stage to express any opinion whatsoever in a concluded way as to the validity of that arrest warrant.

13. The reason for that was, with respect, precisely put by Byrne J in dismissing the application to the Supreme Court of Queensland on 30 July 2007.  His Honour stated:

    “The administration of justice and public confidence in it would not be advanced by facilitating the kind of collateral challenge to the finality of the determinations of his criminal proceedings which the applicant’s success in obtaining the declarations now sought would involve.”

14. I respectfully agree with that observation.  It applies with equal force in respect of the relief sought by Mr Nudd in the application filed in this Court.  It is to be remembered that a challenge of the kind which is now sought to be brought is one which, at the very latest at the trial in the Supreme Court could have been ventilated, if not at earlier points in time.  For those reasons then the application made by the respondents for the dismissal of Mr Nudd’s application should be granted.

I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan.

Associate:

Dated:       19 March 2008

Counsel for the Applicant:	Applicant appeared in person
Counsel for the Respondents:	Mr McLeod
Solicitor for the 1st Respondent:	Australian Government Solicitor
Solicitor for the 2nd and 3rd  Respondent	Blake Dawson Waldron
Date of Hearing:	21 December 2007
Date of Judgment:	21 December 2007