Nudd v Minister for Home Affairs

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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 57
Cases 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 cited
Date 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
Applicant
AND:

MINISTER FOR HOME AFFAIRS
Respondent

JUDGE:

COLLIER J

DATE OF ORDER:

23 SEPTEMBER 2010

WHERE MADE:

BRISBANE

THE COURT ORDERS THAT:

The application be…

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Details
Case
[2010] FCA 1037
Decision Date

CaseChat Overview and Summary

The case of Nudd v Minister for Home Affairs concerns Mr. Nudd, who has sought a judicial review of a decision by the Minister for Home Affairs not to refer his criminal conviction and sentence to the Court of Appeal of Queensland under section 672A of the Australian Constitution. Mr. Nudd was convicted in 2003 of being involved in the importation of a significant quantity of cocaine into Australia and was sentenced to 22 years imprisonment. He now contends that his case should be referred to the Court of Appeal under the discretion afforded to the Minister by section 672A of the Constitution. The court was required to determine whether the Minister’s decision was legally sound and if there were any grounds for review under the Administrative Decisions (Judicial Review) Act 1977 (ADJR Act).

The court found that the Minister's decision was legally valid and there were no grounds for review. The court noted that the Minister, as the decision-maker, was entitled to make an evaluative judgment on whether to refer the case to the Court of Appeal. The court examined each of Mr. Nudd's grounds for review, including the validity of the arrest warrant, the existence of fresh evidence, the impact of extradition on his appeal, the trial judge's handling of the jury, and the misunderstanding of the defence presented at trial. The court found that the Minister had adequately considered all the relevant issues and the application for review lacked merit.

Ultimately, the court dismissed Mr. Nudd's application for judicial review, finding that the Minister's decision was not legally flawed. The court highlighted the extensive investigation and resources that had already been dedicated to Mr. Nudd’s claims. The court concluded that the issues raised by Mr. Nudd were without merit and that the application should be dismissed with costs.

Orders

Orders of the court

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Background

Background to the litigation

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 preservedNothing 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.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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.