GLEESON CJ, GUMMOW, KIRBY, HAYNE, CALLINAN AND HEYDON JJ
KEVIN PHILIP NUDD APPELLANT
AND
THE QUEEN RESPONDENT
Nudd v The Queen
[2006] HCA 9 9 March 2006
B22/2005
ORDER
Appeal dismissed.
On appeal from the Supreme Court of Queensland
Representation:
M J Byrne QC with C J N Eberhardt for the appellant (instructed by Graham Lawyers)
A J Rafter SC with G R Rice for the respondent (instructed by Director of Public Prosecutions (Commonwealth))
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Nudd v The Queen
Criminal Law – Trial – Miscarriage of justice – Competence of counsel – Alleged failure to take instructions – Alleged failure to understand elements of offence and relevant statutory provisions – Alleged failure to be familiar with applicable judicial decisions.
Appeal – Criminal appeal – Miscarriage of justice – Competence of counsel – Application of "proviso" – Whether denial of fair trial may sometimes without more amount to miscarriage of justice.
Legal practitioners – Criminal trial – Competence of counsel and of solicitor – Alleged failures to take instructions, to understand elements of offence and to consider applicable judicial decisions – Extent to which, if at all, alleged incompetence contributed to any miscarriage of justice – Whether in some circumstances miscarriage of justice includes denial of fair trial according to law without more.
Words and phrases – "on any ground whatsoever there was a miscarriage of justice".
Criminal Code (Q), s 668E(1).
GLEESON CJ. Following a trial in the Supreme Court of Queensland, before Philippides J and a jury, the appellant was convicted of being knowingly concerned in the importation into Australia of cocaine. He was sentenced to a lengthy term of imprisonment. He says that his conviction involved a miscarriage of justice, and blames his trial counsel.
The appellant appealed unsuccessfully to the Court of Appeal of the Supreme Court of Queensland[1]. The jurisdiction invoked was that conferred by s 668E of the Criminal Code (Q), which is in a form similar to the statutory provisions governing criminal appeals in the other Australian States and Territories[2]. The statutory ground of appeal was that there was a miscarriage of justice. That, as was said in R v Birks[3], Ignjatic[4], TKWJ v The Queen[5], and Ali v The Queen[6], defined the issue to be decided. The appellant's criticisms of the conduct of his trial counsel were relevant to the issue[7], but the issue was whether there was a miscarriage of justice.
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Nudd v The Queen [2006] HCA 9
Case
[2006] HCA 9
Decision Date
CaseChat Overview and Summary
The High Court of Australia heard an appeal by Kevin Nudd against a decision of the Queensland Court of Appeal. The dispute concerned allegations of serious professional incompetence on the part of Mr Nudd's trial counsel and instructing solicitor, which Mr Nudd argued amounted to a miscarriage of justice. The prosecution case involved Mr Nudd being charged under s 233B of the *Customs Act 1901* (Cth) with being "knowingly concerned" in the importation of a commercial quantity of cocaine.
The legal issues before the High Court included the extent to which alleged incompetence of legal representatives, specifically a failure to take full instructions, understand the elements of the offence, and be familiar with relevant judicial decisions, could lead to a miscarriage of justice. The Court was also required to consider whether a denial of a fair trial, without more, could constitute a miscarriage of justice under s 668E(1) of the *Criminal Code* (Qld).
The High Court, in dismissing the appeal, considered the variations in how Australian and overseas courts have addressed serious professional incompetence. It was noted that trial counsel acknowledged not having previously conducted a superior court criminal trial and that neither counsel nor the solicitor obtained a full proof of evidence from the appellant. This omission was attributed to counsel's belief that it might limit his arguments. The Court highlighted the significant dangers of such omissions, as a defence might only become apparent through a detailed understanding of the evidence. The communications between the appellant and his legal team were found to have primarily concerned fees, with insufficient attention paid to preparing the case or studying the relevant authorities on the elements of the offence. The Court ultimately found that the alleged incompetence did not, in the circumstances, amount to a miscarriage of justice.
Orders
Orders of the court
Appeal dismissed.
Background
Background to the litigation
In this Court, there have been slightly different explanations of the response which the law gives to instances of serious professional incompetence. As I shall show, such variations are also reflected in recent decisions of overseas courts of high authority. They find their foundation in the laws giving rise to relief or in the common presuppositions upon which the text of such laws are expressed and applied.The facts The background facts:The facts are stated in the reasons of Callinan and Heydon JJ[65]. As their Honours point out, it is necessary in cases of this kind, to consider the facts in some detail. Their comprehensive explanation of the prosecution case brought against Mr Kevin Nudd (the appellant) as well as of the defects in his representation at the trial and the appellant's newly propounded defences relieves me of repeating this material. [65]Reasons of Callinan and Heydon JJ at [116]-[148]. Trial counsel acknowledged that he had not previously conducted a criminal trial in a superior court. Neither he, nor his instructing solicitor, ever obtained a full and thorough proof of evidence from the appellant, containing the appellant's version of events, so far as the appellant was willing to provide this. This omission was found by the Court of Appeal to have occurred because trial counsel believed that obtaining such a statement from the appellant might in some way limit the choice of the arguments that he could advance before the jury[66]. In the hearing before this Court, it became clear that failure to secure a proper statement from a person accused of a serious criminal offence is not an accepted or common practice of the Queensland Bar in criminal or other trials[67]. The omission is clearly fraught with great dangers for the client. This is because only in the detailed understanding of the evidence may a defence, based on fact or law, appear to the trained eye of diligent legal representatives.[66]R v Nudd [2004] QCA 154 at [50], per McMurdo J.[67][2005] HCATrans 654 at 1072-1090, 3785-3800. Unfortunately, the communications revealed in the record between the appellant and the lawyers representing him at his trial mainly concerned legal fees. Similar attention was not lavished on the preparation of the case, either in recording the appellant's version of events or in studying the authority of the courts on the constituent elements of the federal crime with which the appellant had been charged[68]. [68]Under the Customs Act 1901 (Cth) ("Customs Act"), s 233B (as it provided then) of being "knowingly concerned" in the bringing into Australia of prohibited imports, being a quantity of cocaine not less than a commercial quantity. The Law and Justice Legislation Amendment (Serious Drug Offences and Other Measures) Act 2005 (Cth), repealed ss 233B and 235 of the Customs Act. By the amending Act, as from 6 December 2005, the offence of bringing into Australia prohibited imports is provided by s 233(1)(b) of the Customs Act. The amendments do not affect offences committed earlier.