Nudd v Minister for Home Affairs
[2010] FCA 1037
FEDERAL COURT OF AUSTRALIA
Nudd v Minister for Home Affairs [2010] FCA 1037
Citation: Nudd v Minister for Home Affairs [2010] FCA 1037 Parties: KEVIN PHILIP NUDD v MINISTER FOR HOME AFFAIRS File number: QUD 145 of 2010 Judge: COLLIER J Date of judgment: 23 September 2010 Catchwords: ADMINISTRATIVE LAW – application pursuant to s 5 Administrative Decisions (Judicial Review) Act 1977 (Cth) for an order of review of the decision of the Minister for Home Affairs – applicant currently serving prison sentence for conviction of being knowingly concerned in the importation into Australia of more than a commercial quantity of cocaine contrary to s 233B(1) Customs Act 1901 (Cth) – Minister refused applicant’s petition to refer case to the Court of Appeal of Queensland under s 672A(a) Criminal Code 1899 (Qld) – consideration of principles in Martens v Commonwealth (2009) 108 ALD 83 relating to the exercise of the referral power – whether Minister failed to consider properly the validity of the applicant’s arrest warrant – whether the Minister failed to address or consider alleged fresh evidence – whether the Minister failed to consider properly the process of extradition to which the applicant was subjected – whether the Minister failed to consider properly the compliance of the trial with Constitutional and other requirements – whether the Minister failed to review the court transcript of the applicant’s trial
Held: application for an order of review of the decision of the Minister for Home Affairs dismissed with costs
Legislation: Constitution Ch III, s 80
Administrative Decisions (Judicial Review) Act 1977 (Cth) s 5
Crimes Act 1914 (Cth) s 3ZA
Customs Act 1901 (Cth) s 233B(1)
Extradition Act 1988 (Cth)
Judiciary Act 1903 (Cth) s 68(1)
Criminal Code 1899 (Qld) s 672A
Jury Act 1995 (Qld)
Justices Act 1886 (Qld) s 57Cases cited: Attorney-General in and for the United Kingdom v Heinemann Publishers Australia Pty Ltd (1988) 165 CLR 30 cited
Martens v Commonwealth (2009) 108 ALD 83 applied
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 cited
Nudd v Australian Federal Police [2007] FCA 2114 cited
Nudd v Australian Federal Police [2007] QSC Civil Jurisdiction No 1700 of 2007 cited
Nudd v Australian Federal Police [2008] QCA 60 cited
Nudd v R (2006) 225 ALR 161 cited
Nudd v R [2008] HCASL 40 cited
R v Nudd [2003] QSC SC No 58 of 2003 cited
R v Nudd [2004] QCA 154 cited
R v Nudd [2007] QCA 40 citedDate of hearing: 28 July 2010 Place: Brisbane Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 63 Counsel for the Applicant: The Applicant appeared in person Counsel for the Respondent: Mr S McLeod Solicitor for the Respondent: Australian Government Solicitor
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
QUD 145 of 2010
BETWEEN: KEVIN PHILIP NUDD
ApplicantAND: MINISTER FOR HOME AFFAIRS
Respondent
JUDGE:
COLLIER J
DATE OF ORDER:
23 SEPTEMBER 2010
WHERE MADE:
BRISBANE
THE COURT ORDERS THAT:
The application be dismissed with costs.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
QUD 145 of 2010
BETWEEN: KEVIN PHILIP NUDD
ApplicantAND: MINISTER FOR HOME AFFAIRS
Respondent
JUDGE:
COLLIER J
DATE:
23 SEPTEMBER 2010
PLACE:
BRISBANE
REASONS FOR JUDGMENT
This proceeding was commenced by the applicant, Mr Nudd, pursuant to s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (“ADJR Act”). Section 5 of the ADJR Act permits a person who is aggrieved by a decision to which the Act applies to apply to the Court for an order of review on the grounds that, inter alia, the decision involved an error of law.
At all times Mr Nudd has been self-represented. During the proceeding the Minister was represented by Counsel.
Mr Nudd seeks reviewed a decision of the Minister of 25 February 2010, whereby the Minister refused to refer Mr Nudd’s case to the Court of Appeal of Queensland under s 672A(a) of the Criminal Code 1899 (Qld) (“the Code”). I note that in that decision the Minister also refused to recommend to the Governor-General that Mr Nudd’s petition for a pardon be granted, however this aspect of the Minister’s decision is not being pressed by Mr Nudd in these proceedings.
By his amended application filed 1 June 2010 Mr Nudd seeks an order from this Court remitting the matter to the Minister for further consideration according to law, and costs.
Background to the current proceedings
On 22 July 2003 following a trial before Philippides J and a jury in the Supreme Court of Queensland, Mr Nudd was convicted of the offence of being knowingly concerned in the importation into Australia, by yacht from the United States, of more than a commercial quantity of cocaine contrary to s 233B(1) of the Customs Act 1901 (Cth): R v Nudd [2003] QSC SC No 58 of 2003. Mr Nudd was sentenced to 22 years imprisonment with a non-parole period of 11 years, a term he is currently serving.
Section 672A of the Code, pursuant to which Mr Nudd has sought the Minister to refer his case to the Court of Appeal of Queensland, provides:
Pardoning power preserved
Nothing in sections 668 to 672 shall affect the pardoning power of the Governor on behalf of Her Majesty, but the Crown Law Officer, on the consideration of any petition for the exercise of the pardoning power having reference to the conviction of any person or to any sentence passed on a convicted person, may--
(a) refer the whole case to the Court, and the case shall be heard and determined by the Court as in the case of an appeal by a person convicted; or
(b) if the Crown Law Officer desires the assistance of the Court on any point arising in the case with a view to the determination of the petition, refer that point to the Court for its opinion thereon, and the Court shall consider the point so referred and furnish the Crown Law Officer with its opinion thereon accordingly.
The application of s 672A of the Code where a person seeks referral of a case to the Court of Appeal of Queensland in respect of an offence under Commonwealth (as distinct from State) criminal law was considered in detail by Logan J in Martens v Commonwealth (2009) 108 ALD 83. In that case his Honour held, inter alia, that:
·Section 68(1) of the Judiciary Act 1903 (Cth) provides for Commonwealth criminal law to be administered in each State on the same footing as State law.
·In the Executive Government of the Commonwealth, Ministerial consideration of an application for referral of a case to the Court of Appeal pursuant to s 672A of the Code falls to the Minister for Home Affairs.
·The decision of the Minister to decline to exercise power under s 672A of the Code is reviewable under the ADJR Act.
I respectfully apply the reasoning of Logan J in Martens 108 ALD 83 to the circumstances before me. I accept that the Minister is the decision-maker in the circumstances of this case in terms of s 672A of the Code, and that the Minister’s decision is subject to review under the ADJR Act. In any event, I do not understand these issues to be in contention between the parties.
Mr Nudd submits that the Minister’s decision is subject to review on five grounds. In summary these grounds are as follows:
1.Failure of the Minister properly consider the legal opinion of barrister Mr Bruce Mumford to the effect that the warrant issued for Mr Nudd’s arrest had been issued in error.
2.Failure by the Minister to properly consider fresh evidence which had been suppressed by the authorities.
3.Failure by the Minister to consider that Mr Nudd had been extradited from the United States before his appeal could be heard and determined by the US Court of Appeal.
4.Failure by the Minister to properly consider that the trial judge had erred in respect of her dismissal of one juror, including ordering that the trial proceed before the jury constituted by the remaining jurors.
5.Failure by the Minister to review the Court transcripts of Mr Nudd’s trial, in that the Minister referred to the defence of “disassociation” allegedly raised by Mr Nudd’s counsel. In fact, that defence was never raised.
On this basis, I now turn to the history to this proceeding.
History of litigation
Previous litigation
Issues relevant to Mr Nudd’s conviction under the Customs Act have seen considerable litigation across various jurisdictions. Relevant decisions have been as follows.
1. R v Nudd [2003] QSC SC No 58 of 2003
As I noted earlier in this judgment, Mr Nudd was convicted of an offence under the Customs Act 1901 (Cth), relating to his being knowingly concerned in the importation of cocaine into Australia by yacht from the United States.
2. R v Nudd [2004] QCA 154
The applicant appealed his conviction to the Court of Appeal of the Supreme Court of Queensland on the grounds that his conviction involved a miscarriage of justice. Specifically, he argued that his Counsel had been incompetent as demonstrated primarily by Counsel’s failure to call evidence and substantially challenge the Crown case through cross-examination. On 14 May 2004 the Court of Appeal dismissed the appeal, finding that there had been no miscarriage of justice.
3. Nudd v R (2006) 225 ALR 161
Following the decision of the Court of Appeal, the applicant successfully obtained special leave to appeal to the High Court. The applicant again relied on the ground that his conviction involved a miscarriage of justice because of the incompetence of his counsel. On 9 March 2006, the High Court by majority dismissed the appeal. While acknowledging that there had been some incompetence demonstrated by his Counsel at the trial, the majority determined that there had been no substantial miscarriage of justice because there was a very strong prosecution case based on objective evidence.
Following the decision of the High Court the applicant instigated a number of further appeals against his conviction on various grounds.
4. R v Nudd [2007] QCA 40
On 5 October 2006 the applicant filed an application in the Supreme Court of Queensland for an extension of time in which to appeal against his original conviction. On 13 November 2006 the applicant abandoned two of the grounds initially relied upon in the application relating to issues regarding the validity of the arrest warrant and the ensuing extradition process. Ultimately, the applicant relied on the sole ground that the circumstances of his conviction failed to satisfy the requirements of Ch III of the Constitution. Counsel on the applicant’s behalf argued that the trial judge failed to consider appropriately the exercise of her discretion in continuing the trial with 11 jurors instead of 12. (Notably, this ground and the two abandoned grounds are being pressed in the application before this Court in the present matter.)
On 15 February 2007 the Queensland Court of Appeal dismissed the application. Noting that it is “distinctly odd” to apply for an extension of time to appeal when an appeal had, several years earlier, already been heard and determined, Keane JA (with whom the majority agreed) expressed significant reservations regarding the Court’s jurisdiction to entertain another appeal:
That the applicant wishes now to agitate grounds different to those previously argued on his behalf does not give rise to a jurisdiction in this Court to entertain further appeal against his conviction.
…
In the present case, this Court, years ago, dealt with the applicant’s appeal on its merits: see R v Nudd [2004] QCA 154. An appeal to the High Court from this Court’s decision was dismissed: Nudd v R [2006] 225 ALR 161.
The applicant had, in those appeals, every opportunity to agitate the point which he now seeks to agitate. Further, the point which the applicant seeks to agitate does not concern a “factual misapprehension shared by the parties and the Court [in the sense of R v Pettigrew [2007] 1 QD R 601]”.
5. Nudd v Australian Federal Police [2007] QSC Civil Jurisdiction No 1700 of 2007
On 30 July 2007 the applicant made a civil application in the Queensland Supreme Court for declaratory relief. The grounds upon which Mr Nudd relied were the two grounds abandoned in his previous matter before the Queensland Court of Appeal, namely grounds relating to the validity of the arrest warrant and the ensuing extradition process. In dismissing the application, Byrne J said:
None of the several complaints of invalidity of process and impropriety of conduct on the part of officers of the Commonwealth alleged looks to have merit. But it is unnecessary to consider either the challenges to the processes and decisions that attended the issue in this State of a warrant for his apprehension of the American extradition proceedings that resulted in his return to Australia to face his trial.
The declarations sought should be refused on the footing that the grant of such relief could not serve any useful purpose.
6. Nudd v Australian Federal Police [2007] FCA 2114
On 21 December 2007 the applicant applied to the Federal Court of Australia for judicial review of the decision made by an acting Queensland Magistrate on 6 May 2001 to issue the warrant for the arrest of the applicant. Concurrently, an appeal from the decision of Byrne J in Nudd v Australian Federal Police [2007] QSC Civil Jurisdiction No 1700 of 2007 was pending in the Court of Appeal of Queensland. In dismissing the application Logan J held, inter alia, that the Federal Court had no jurisdiction to entertain the application while a related criminal justice process decision was before an alternative court.
7. Nudd v Australian Federal Police [2008] QCA 60
In this proceeding Mr Nudd sought a review by the Court of Appeal of Queensland of the issue of the arrest warrant. This application was dismissed.
8. Nudd v R [2008] HCASL 40
A subsequent application by the applicant for special leave of the High Court to appeal the decision of the Court of Appeal in Nudd v Australian Federal Police [2008] QCA 60 was also dismissed.
Petition to Governor of Queensland and Commonwealth Attorney-General
On 7 May 2008 Mr Nudd’s solicitor wrote to the Governor of Queensland petitioning her Excellency to exercise her pardoning power pursuant to s 672A of the Code, and requesting that the matter be referred to the Commonwealth Attorney-General for consideration that, in turn, the case be referred to the Court of Appeal in Queensland.
Subsequently in 2009 Mr Nudd wrote to the Minister inquiring about the possibility of a pardon from the Governor-General or a referral by the Minister of his case to the Court of Appeal of Queensland. Correspondence was exchanged between the applicant and the Commonwealth Attorney-General’s Department, and between the applicant and the Department of the Minister for Home Affairs.
The Minister wrote to the applicant on 25 February 2010 refusing to recommend to the Governor-General that the applicant be granted a pardon and refusing to refer the matter to the Court of Appeal of Queensland. The decision of the Minister as communicated in that letter was in the following terms:
I refer to the application on your behalf for a pardon under the Royal Prerogative of Mercy (RPM) or the referral of your conviction to the Queensland Court of Appeal under section 672A of the Criminal Code 1899 (Qld).
I have considered the application dated 7 May 2008, the addendum to the application dated 26 February 2009, and comments from the Commonwealth Director of Public Prosecutions, the Australian Federal Police and the Mutual Assistance and Extradition Branch of the Attorney-General’s Department.
As you are aware, different tests are applied when considering whether to recommend that the Governor-General grant a pardon under the RPM and when considering applications under section 672A of the Queensland Criminal Code.
I will generally only recommend that the Governor-General grant a pardon where I am satisfied that an offender is:
•Morally and technically innocent of the offence, and that there is no remaining avenue of appeal against his or her conviction, or
•Morally and technically innocent of the offence and there are exceptional circumstances justifying the grant of a pardon, despite avenues of appeal remaining open to the offender, taking into account the need to respect the separation of powers between the executive and the judiciary.
No criteria are specified in section 672A of the Queensland Criminal Code to guide my decision on whether to refer a case to the Court of Appeal. However, in line with the decision of the Federal Court of Australia in Martens v Commonwealth of Australia [2009] FCA 207, I will only refer a matter to the Court of Appeal if the application presents evidence which might, arguably, when the whole case is considered, at least raise a significant possibility that the jury, acting reasonably, would have acquitted the applicant.
Having regard to all the relevant information, I am not satisfied that you are morally and technically innocent of the offence under paragraph 233B(1)(d) of the Customs Act 1901 of which you were convicted. Accordingly, I have decided not to recommend that the Governor-General grant you a pardon.
I have also decided that, considering the evidence presented in the context of the case as a whole, there is not a significant possibility that a jury acting reasonably would have acquitted you. Accordingly, I have decided not to refer your case to the Court of Appeal under section 672A of the Queensland Criminal Code.
It is clear that there is considerable overlap between the grounds of review raised before this Court by Mr Nudd, and issues put by Mr Nudd at that time to the Minister. This appears from the summary of reasons for the Minister’s decision attached to the Minister’s letter of 25 February 2010 in response to correspondence from Mr Nudd, as follows:
•Ground 1 – Warrant for your arrest not valid. You claim that your arrest warrant was not valid as you were not in Queensland at the time the warrant was issued and the alleged acts that led to the issuing of the warrant occurred overseas. This claim was considered by the Supreme Court of Queensland and dismissed. The Commonwealth Director of Public Prosecutions (CDPP) advises that the warrant was correctly issued under paragraph 57(a) of the Justices Act 1886 (Qld).
•Ground 2 – The yacht was not intercepted in Australian waters. You claim that Australian courts did not have jurisdiction to hear your case as the yacht was intercepted in international waters. You base this claim on a statement by a United States Customs Agent, Agent Lamas, that the yacht was 100 nautical miles off the coast of Australia. However, Agent Lamas was in the United States and did not take part in the interception of the yacht. The Australian Federal Police and the CDPP advise that your defence counsel conceded at trial that the boat was in Australian waters. The prosecution has strong evidence to prove the location of the interception of the yacht, including evidence from officers who intercepted the yacht and a Customs Coast Watch video of the interception, in which the Queensland coast is clearly visible.
•Ground 3 – The extradition process was flawed. You claim that the extradition process was flawed as there was insufficient evidence to show that you were involved in the importation of cocaine and because you were prematurely extradited from the United States while appeal proceedings against your extradition were still underway. The Mutual Assistance and Extradition Branch of the Attorney-General’s Department has advised that the extradition process was valid and complied with the requirements of the relevant Treaty and the Extradition Act 1988. In addition, the actions taken by the United States’ authorities are properly matters for the United States’ courts.
•Ground 4 – The number of jurors at the trial did not comply with constitutional and other requirements. You claim that your trial was invalid as it involved 11 jurors rather than 12, and because the trial judge did not identify a positive reason for continuing with only 11 jurors. You claim that this is inconsistent with the Jury Act 1995 (Qld) and section 80 of the Australian Constitution. You raised this ground in your application to the Queensland Court of Appeal for an extension of time in which to launch a further appeal of your conviction, after your appeals to the Court of Appeal and the High Court had been dismissed. The Court of Appeal dismissed your application for an extension of time on 15 February 2007. In dismissing your application, the Court noted that you had ample opportunity to raise your concerns about the jury in your previous appeals to the Court of Appeal and the High Court. Your claim about the jury was also referred to in your civil application for declaratory relief that was dismissed by the Supreme Court of Queensland on 30 July 2007. In dismissing that application the Judge stated that none of your complaints about invalidity of process and impropriety of Commonwealth officers’ conduct looked to have merit.
The CDPP advises that section 80 of the Constitution does not prescribe the number of jurors that should constitute a jury and that proceeding with 11 Jurors would be unlikely to constitute a miscarriage of justice.
•Ground 5 – Disassociation. You claim that you had disassociated yourself from your co-accused Mr Jackson and were no longer involved in the conspiracy at the time the yacht was intercepted. This issue was clearly addressed at trial, where the Trial Judge found that you were aware of, and involved in, the enterprise to a substantial level.
In his amended application Mr Nudd only sought review of the Minister’s decision so far as concerned the issue of referral of his case to the Court of Appeal pursuant to s 672A of the Code.
Consideration
In Martens 108 ALD 83, Logan J observed that it was relevant for the Minister, when considering an application requesting a reference under s 672A of the Code, to consider whether there was presented with the application evidence which might, arguably, when the whole case was considered, at least raise a significant possibility that the jury, acting reasonably, would have acquitted the applicant (at [51]). His Honour further observed:
The existence of a discretion [in the Minister] undoubtedly means that a convicted offender has no right to the reference of his case. That the reference power is discretionary indicates that it was contemplated that the Minister would make some evaluative judgment as to whether a reference ought to be made but not in so doing usurp the role that was consigned to an appeal court in the event of a reference. In this sense, the Minister is a “gatekeeper” who has a role in ensuring that the public interest in the administration of justice as furthered by the efficient allocation of judicial resources is not subverted by the referring of cases to the Court of Appeal which must inevitably fail. That the Court of Appeal on a reference itself had power to disregard grounds which it considered frivolous would not, in my opinion, prevent a Minister from refusing to refer a case where there was neither any new evidence nor even a ground of challenge not previously adversely considered, but care would need to be taken not to treat as frivolous a reasonable argument with which the Minister happened to disagree. (at [53])
I now turn to each of the grounds on which Mr Nudd seeks review of the decision of the Minister.
Ground 1
Mr Nudd’s first ground was that the Minister had failed to consider properly the legal opinion of barrister Mr Bruce Mumford, who advised that the warrant pursuant to which Mr Nudd was arrested was not issued in compliance with s 57 of the Justices Act 1886 (Qld) and s 3ZA of the Crimes Act 1914 (Cth). Further, Mr Nudd contended that in all the applications he has filed, no ruling has ever been made in respect of the exact validity of the arrest warrant.
In this case however it is clear that the Minister was well aware of the opinion of counsel concerning the validity of the relevant arrest warrant. Filed in these proceedings is the affidavit of Ms Michele Ann Brennan, Director of the Federal Offenders Unit of the Border Management and Crime Prevention Branch of the Attorney-General’s Department in Canberra (“the Unit”). Ms Brennan deposes that the Unit considers applications by federal offenders for, inter alia, their case to be referred to the Court of Appeal of Queensland pursuant to s 672A of the code, and makes submissions to the Minister in relation to whether he should so refer a case. A copy of the advice from Mr Mumford was clearly included in material provided by Mr Nudd’s solicitor addressed to the Governor-General. This material, Ms Brennan deposes, came to the attention of the Unit. In its memorandum to the Minister dated 17 February 2010 the Unit drew the Minister’s attention to Mr Nudd’s claim that his arrest warrant had been invalidly issued. Further, in that memorandum the Unit drew the Minister’s attention to the fact that Mr Nudd’s claim that his arrest warrant was invalidly issued was dismissed by the Supreme Court of Queensland in Nudd v Australian Federal Police [2007] QSC Civil Jurisdiction No 1700 of 2007.
I also note that in Nudd QCA 60 the Court of Appeal affirmed the decision of the trial judge in Nudd v Australian Federal Police [2007] QSC Civil Jurisdiction No 1700 of 2007. Mr Nudd’s application to the High Court for special leave to appeal from this decision of the Court of Appeal was dismissed in Nudd v R [2008] HCASL 40.
In my view it is not open on the facts for me to conclude that the Minister has failed to consider the claim of Mr Nudd that the relevant arrest warrant was improperly issued. In this case the Minister was clearly aware that the circumstances surrounding the issue of the arrest warrant had been a live issue in both the Supreme Court of Queensland and the Court of Appeal of Queensland, and that Mr Nudd was unsuccessful in both cases. Further, notwithstanding Mr Nudd’s reference to his advice from Mr Mumford, it is clear from the Minister’s correspondence with Mr Nudd that the Minister had also had regard to comments from the Commonwealth Director of Public Prosecutions that the arrest warrant had been properly issued, contrary to advice given to Mr Nudd. The extent to which the Minister weighed the material before him, including comments from Mr Mumford and the Commonwealth DPP, was clearly a matter for the Minister: cf Brennan CJ, Toohey, McHugh and Gummow JJ in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at [52].
In my view this ground of review cannot be substantiated.
Ground 2
Mr Nudd’s second ground related to fresh evidence which he claimed had previously been suppressed. In summary, Mr Nudd submitted that the failure of the Minister to address or consider this fresh evidence lay in three parts:
·The yacht was destined for New Zealand and was to be met by Mr Nudd’s co-accused Jorge Velarde Silva.
·US Customs Agent Leo Lamas deposed in an affidavit sworn 4 May 2001 that there was a conspiracy to import, possess and distribute a shipment of cocaine into the United States.
·The yacht bearing the shipment of cocaine was intercepted 100 nautical miles off the coast of Australia on the high seas.
In relation to this evidence, Mr Nudd submitted in summary:
·There was a significant possibility that the jury at the trial, acting reasonably, would have acquitted Mr Nudd, had the fresh evidence been presented to them.
·US Customs Agent Lamas was not cross-examined in relation to his affidavit, because this evidence had been withheld or suppressed from the defence.
·Mr Nudd was first charged with similar offences based on the same evidence in the United States on 4 May 2001.
·The evidence of US Customs Agent Lamas suggests that in fact Mr Nudd was involved in a conspiracy to distribute and possess with intent to distribute the cocaine in the United States.
·The Minister in his statement of reasons failed to address the following questions:
oWhy the affidavit of US Customs Agent Lamas was suppressed by the authorities;
oWhy the Commonwealth authorities extradited Mr Nudd before his appeal against extradition could be heard and determined by the US Court of Appeal;
oWhy the Australian authorities failed to file an “Official Diplomatic Note” within the 60 day time frame as a requirement for extradition for a person on foreign soil;
oWhy the Commonwealth authorities provided false and misleading information to the then Minister for Customs and Justice and to the US Department of Justice.
At the hearing, Mr Nudd submitted that this evidence had been suppressed by the US authorities, and copies had been faxed to the Commonwealth Director of Public Prosecutions and the Australian Federal Police to advise them of the reasons for his incarceration in the United States (TS p 4 ll 40-45). Further, Mr Nudd submitted that the Court could infer collusion between the Australian Federal Police and US Customs in relation to this evidence for the purpose of keeping him detained in the United States until the Australian arrest warrant arrived (TS p 6 ll 1-2).
In considering this submission, in my view the questions for this Court are:
·whether the Minister was presented with evidence which might, arguably, when the whole case was considered, at least raise a significant possibility that the jury, acting reasonably, would have acquitted Mr Nudd; and
·whether the Minister has failed to consider such evidence at all or failed to evaluate it by reference to such a test (cf Martens 108 ALD 83 at [51]).
In summary, the Minister submitted that he was cognisant of Mr Nudd’s contentions as to the existence of fresh or new evidence in respect of the alleged nature of the conspiracy and the location of the yacht at the time of its apprehension by Australian authorities, but that he rejected Mr Nudd’s contentions and that this decision exhibits no legal error.
On the facts before me it is not in dispute that the Minister was in receipt of comments of the Commonwealth Director of Public Prosecutions dated 25 November 2008, which comments had been sought in the context of the Minister’s consideration of Mr Nudd’s application for referral of his case to the Court of Appeal. The DPP’s comments to the Minister were, inter alia, that it was unclear when the affidavit of the US Customs Agent became available to Mr Nudd and therefore whether it could have been relied on by Mr Nudd at the various times when he sought to appeal his conviction before the Court of Appeal and the High Court. It is clear that the case before the High Court was that the yacht was intercepted in Australian waters, and that the views of Mr Lamas were not in issue (see, for example, comments of Callinan and Heydon JJ in Nudd v R (2006) 225 ALR 161 at [117] and [119]).
More particularly, however, the DPP’s comments to the Minister highlight the apparently undisputed facts that:
·Mr Lamas, on whose affidavit Mr Nudd relies, was not on board the yacht at the time of its interception and had no firsthand knowledge of where the interception occurred. It follows that his evidence was, at best, hearsay.
·Evidence concerning the location of interception of the yacht in Australian waters, namely in Moreton Bay en route to Brisbane, was adduced at Mr Nudd’s trial. This evidence was not disputed at the trial. Further, the Crown had disclosed to the defence, prior to trial, evidence supporting a finding that the yacht was intercepted in Australian territorial waters including an affidavit of an Australian federal agent.
·Co-accused of Mr Nudd did not raise the issue of the location of interception of the yacht at their respective trials, which logically would have occurred had the place of interception been in dispute.
·It has not been in contention in the numerous proceedings to which Mr Nudd has been a party that the destination of the yacht carrying the cocaine was Australia and that the place of interception was within Australian waters.
In the circumstances it is difficult to do otherwise than conclude that Mr Nudd’s submission that the evidence of US Customs Agent Lamas had been suppressed by (inter alia) the US authorities, with or without the alleged collusion of Australian authorities, is nothing more than an allegation. Further, and in any event, it appears on the facts of this case that the evidence of US Customs Agent Lamas has been considered by the Minister, and, in light of the other material previously before the Courts and also before the Minister, allocated little or no weight by the Minister. The questions posed by Mr Nudd to which he contends the Minister has given insufficient consideration are reflective of the inventiveness of Mr Nudd rather than the reality of issues required to be addressed by the Minister in this case. In the circumstances I do not consider that the Minister has failed to consider fresh evidence which might raise a significant possibility that a jury, in receipt of such evidence, would have acquitted Mr Nudd.
Ground 3
In both Ground 2 and Ground 3 of his submissions Mr Nudd challenged the consideration by the Minister of the process of extradition to which Mr Nudd was subjected. There is extensive overlap in this respect between those grounds. In relation to Ground 2 Mr Nudd submitted that the Minister failed to address the following questions:
·Why the Commonwealth authorities extradited Mr Nudd before his appeal against extradition could be heard and determined by the US Court of Appeal; and
·Why the Australian authorities failed to file an “Official Diplomatic Note” within the 60 day time frame as a requirement for extradition for a person on foreign soil.
In relation to Ground 3, Mr Nudd submitted that the Minister completely ignored the fact that Mr Nudd was extradited before an appeal against the extradition could be heard and determined by the US courts, and that the Minister failed to address the fact that the Australian government did not file an official diplomatic note, thereby not satisfying the terms and conditions of the extradition treaty between Australia and the United States which require valid documents to be lodged within 60 days.
At the hearing, Mr Nudd submitted that:
·“the Criminal Justice Division of the Attorney-General’s Department provided false and misleading information to the Minister of Customs and Justice to ensure that the Minister would sign the extradition order” (TS p 6 ll 14-18).
·This information can be found in para 3 of the letter to the Minister for Justice and Customs from the Criminal Justice Division of the Attorney-General’s Department received 12 July 2001 (p 65 exhibit KN-I affidavit of Kevin Nudd filed 24 June 2010) and relates to representations that the applicant was knowingly concerned with the importation of cocaine into Australia.
The case of the Minister in respect of this ground can be summarised as follows:
·The Minister considered Mr Nudd’s argument that he was extradited before his appeal could be heard by the US Court of Appeal and rejected it, concluding in part that the actions of the US authorities are matters for US Courts.
·Mr Nudd’s contentions in respect of extradition have already been canvassed before the Court of Appeal of Queensland.
·There was no basis for Mr Nudd’s argument that the Criminal Justice Division of the Attorney-General’s Department provided false and misleading information to the Minister of Customs and Justice to ensure that the Minister would sign the extradition order.
In my view the submission of the Minister to the effect that actions of the US authorities are matters for the US Courts accurately represents the position. It is not also appropriate for the Courts of this country to comment on the approach of US authorities or US Courts in respect of individual circumstances: Attorney-General in and for the United Kingdom v Heinemann Publishers Australia Pty Ltd (1988) 165 CLR 30 at 40-41.
The Minister was clearly aware of the decision of the Court of Appeal of Queensland in Nudd QCA 60 where the Court of Appeal considered Mr Nudd’s claim that his extradition from the United States was invalid and that an abuse of process had occurred, but held that the trial judge had not erred in refusing declaratory relief to Mr Nudd in respect of that claim.
The Minister also had before him comments from the Mutual Assistance and Extradition Branch of the Commonwealth Attorney-General’s Department dated 3 November 2008 in which the Department informed the Minister that the US response to Australia’s request for Mr Nudd’s extradition was in accordance with the Treaty between Australia and the United States on Extradition which came into force in 1976 (as amended by the Protocol done at Seoul in 1990), and that actions taken by Australian officials accorded with the Treaty and the Extradition Act 1988 (Cth). The comments of the Department before the Minister also included the following:
In response to Mr Nudd’s claim that false information was provided to the United States and the then Minister for Justice and Customs through the extradition request and correspondence from the Office of the Commonwealth Director of Public Prosecutions, we confirm that the allegations that Mr Nudd provided funds to import cocaine and arranged a recovery vessel to meet “Sparkles Plenty” off the coast of south-east Queensland were set out in some detail in the affidavit provided by the investigating AFP officer, which was before the then Minister for Justice and Customs and formed part of the extradition request that was made to the United States.
The Department cannot comment on the truth or otherwise of the information provided by the investigating officers in support of a request for extradition. The extradition process does not involve a finding of guilt or innocence, and the Department’s role in the making of a request for extradition is to examine the material provided by an investigator to ensure that the conduct constituting the alleged offence would meet the requirements of the relevant Treaty and the Extradition Act. (Annexure H to the affidavit of Michele Ann Brennan sworn 14 July 2010 pp 315-317)
The relevance of these comments is that the Minister had extensive material from relevant Commonwealth Departments before him (as well as the view of the Court of Appeal in Nudd QCA 60) as to the circumstances of Mr Nudd’s extradition from the United States. This material was relevant for consideration by the Minister in deciding whether to refer Mr Nudd’s case to the Court of Appeal of Queensland.
In relation to Mr Nudd’s claim that false and misleading information was provided to the Minister for Customs and Justice by reference to para 3 of the terms of the formal request for extradition of Mr Nudd from the United States, it is difficult to identify the basis of this claim. In written and oral submissions Mr Nudd drew my attention to para 3 of a note from the Attorney-General’s Department to the Minister for Justice and Customs preparatory to a formal request for the extradition of Mr Nudd from the United States, attached to letter dated 15 May 2001. In that note the following passage occurred:
It is alleged that, although Nudd was outside Australia during the period, he was knowingly concerned in the importation of the cocaine. More specifically it is alleged that Nudd was knowingly concerned in the importation of the cocaine in that he was a party to arranging the recovery vessel that was to meet the Sparkles Plenty off the coast of South East Queensland, further that he was the intermediary for communications between a further suspect Jorge Velarde and Peter Jackson. In addition to the above, it is alleged that Nudd provided funds to Velarde to partly finance the importation of the cocaine and had assisted in the planning of the importation. If Nudd is prosecuted and found guilty of this offence, he is liable to imprisonment for life or for such period as the court thinks appropriate.
I am not satisfied on the material before me that this information, contained in a note preparatory to a request for extradition, was false and misleading as claimed by Mr Nudd. As the note clearly states, the “information” was at that stage allegations against Mr Nudd based on information in the hands of relevant Australian authorities. Further, and in any event, it is clear that Mr Nudd was subsequently convicted of offences relating to importation of cocaine, and that numerous courts including the Court of Appeal and the High Court have held that no miscarriage of justice occurred in respect of that conviction.
In my view this ground of review is a further attempt of Mr Nudd to agitate grounds raised in previous Court proceedings. I am satisfied that the issues raised by Mr Nudd have been properly considered by the Minister. I am unable to see merit in this ground of review.
Ground 4
Ground 4 relates to the alleged failure by the Minister to properly consider the nature of the trial whereby Mr Nudd was convicted, specifically that one juror was dismissed and the trial judge ordered that the trial proceed before the jury constituted by the remaining jurors. In particular, Mr Nudd submitted that he had received legal advice that the procedure adopted at trial constituted a failure to comply with the provisions of the Jury Act 1995 (Qld), and that the Minister failed to consider this issue.
I note that this issue has also been raised by Mr Nudd before the Court of Appeal but that in R v Nudd [2007] QCA 40 the appeal was dismissed by the Court of Appeal. This is because their Honours took the view that Mr Nudd had had every opportunity to agitate this issue in earlier appeals but had not done so, and because in any event Mr Nudd had exhausted his rights of appeal against his conviction.
It is clear that the Minister was aware of this decision of the Court of Appeal, and the view taken by the High Court on an appeal from another decision of the Court of Appeal that no miscarriage of justice had occurred at Mr Nudd’s trial: Nudd 225 ALR 161.
Further it is clear that the Minister was aware of the view of the Commonwealth Director of Public Prosecutions that s 80 of the Constitution does not prescribe the number of jurors that should constitute a jury, and that proceeding with eleven jurors would be unlikely to constitute a miscarriage of justice.
In my view the Minister has properly considered this issue raised by Mr Nudd. I do not consider this ground of review substantiated.
Ground 5
In his fifth ground of review, Mr Nudd claims that the Minister clearly failed to review the court transcript of his trial in the Supreme Court of Queensland. The reason is because in the decision of 25 February 2010 the Minister suggested that the issue of Mr Nudd having disassociated himself from his co-accused at the time the yacht was intercepted was clearly addressed at trial, whereas in reality the disassociation defence was never raised at trial.
It is not surprising that the Minister understood that Mr Nudd had sought to disassociate himself from his co-accused when reference is made to the sentencing remarks of the trial judge. Her Honour said, inter alia:
Your counsel submitted that the evidence shows that you sought to disassociate yourself from the importation and that that is a matter to be considered in mitigation. In this respect your counsel relied, inter alia, on certain comments made by you to Peter Jackson, your failure to travel to Brisbane in March 2001 and the absence of evidence after 7 March 2001 of further contact or meetings with Jackson. However the comments relied upon in that regard by counsel merely indicate that you were not prepared to associate with certain individuals who you thought might draw attention to themselves.
I consider this ground of review to be a thinly-disguised attempt to reagitate issues canvassed and subsequently decided at Mr Nudd’s trial. That this is so appears from the “Applicant’s reply to adverse comments made by the Commonwealth DPP, AFP and the MAEP” dated 24 March 2009 and forwarded by Mr Nudd to the Attorney-General’s Department (exhibit KN-A affidavit of Kevin Nudd sworn 21 June 2010) in which Mr Nudd made submissions about events he alleged to have occurred (and which were canvassed at trial). However in any event it is difficult to identify why, even if Mr Nudd is correct in respect of this submission that he never sought to raise a defence of disassociation, an error by the Minister in making this assumption would constitute an error substantiating review of the Minister’s decision. Even if Mr Nudd had raised this defence, it was clearly unsuccessful because Mr Nudd was convicted as charged. If Mr Nudd had not raised the defence, there is no reason to conclude that he lacked the opportunity to do so at trial, and in any event the issue was clearly before the trial judge at Mr Nudd’s criminal trial as is evidenced by her Honour’s remarks.
In the circumstances the Minister was entitled to assume that Mr Nudd had sought – at least to some extent – to disassociate himself from his co-accused. This ground of review is not substantiated.
Conclusion
A review of the history of litigation involving Mr Nudd demonstrates endeavours by Mr Nudd to repeatedly agitate issues which were conclusively decided at his criminal trial and in appeals both in the Court of Appeal of Queensland and the High Court. In many ways, this application appears to be another attempt to do so. In conclusion, I consider it appropriate to note the voluminous material annexed to the affidavit of Ms Brennan, indicative of the evidently thorough and exhaustive investigation by the Minister and numerous government departments of Mr Nudd’s allegations and the considerable public resources which have been dedicated to analysis of Mr Nudd’s claims.
In my view, the issues raised by Mr Nudd have no merit. The application should be dismissed with costs.
I certify that the preceding sixty-three (63) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier. Associate:
Dated: 23 September 2010
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