Nudd v The Queen - [2005] HCATrans 654

[2005] HCATrans 654

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B22 of 2005

B e t w e e n -
KEVIN PHILIP NUDD
Appellant
and
THE QUEEN
Respondent

GLEESON CJ
GUMMOW J
KIRBY J
HAYNE J
CALLINAN J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 31 AUGUST 2005, AT 10.22 AM

MR M.J. BYRNE, QC: May the Court please, I appear with my learned friend, MR C.J.N. EBERHARDT, for the appellant. (instructed by Graham Lawyers)

MR A.J. RAFTER, SC: May it please the Court, I appear with my learned friend, MR G.R. RICE, for the respondent. (instructed by Director of Public Prosecutions (Commonwealth))

GLEESON CJ: Yes, Mr Byrne.

MR BYRNE: May the Court please, the primary submission on behalf of the appellant in this case is that the objective uncontrovertible conclusion on the record is that the appellant’s trial was conducted upon a fundamental error as to the law on a central element of the offence, without instructions and for the very reason so that counsel could conduct the trial on his own particular trial theory. That, in our respectful submission, is an egregious error. It takes this case beyond what is perhaps the high‑water mark of cases of this sort in this Court in Tuckiar v The Queen and goes to the next level.

That does not mean, in our submission, that the principles laid down by this Court as recently as in Ali v The Queen and TKWJ v The Queen do not provide the answer to the question posed and the determination of this appeal. Indeed, the question and the answer to that question which is posed, and the response to it, are straightforward, in our submission. Given that the question is – and we take this question, with respect, from the phraseology of your Honour Justice Hayne in Ali v The Queen at paragraph [25]. If the question be “whether there could be a reasonable explanation for the course that was adopted at trial” – and that is the course which we have outlined earlier – then the answer to that question, in our respectful submission, must clearly be no. There could be no reasonable explanation for a criminal trial for a serious offence of this nature, let alone any offence, to be conducted in that way.

KIRBY J: By that you are referring not only to the failure to call the appellant, but also the conduct of the questioning and concessions made during the course of the trial by counsel?

MR BYRNE: Indeed, your Honour. We say that because of the fundamental error, this trial miscarried, for want of a better word, prior to the first witness being called. The fundamental error infected the process from that time.

GLEESON CJ: I am not suggesting that your question is wrong or that ultimately the answer you give to it is wrong.

MR BYRNE: Yes, your Honour.

GLEESON…

Grounds of appeal

[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.

Continue reading Nudd v The Queen

Details

AGLC: Nudd v The Queen [2005] HCATrans 654
Case: [2005] HCATrans 654
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered an appeal by the applicant, Nudd, against his conviction for murder. The applicant had been found guilty of murder by a jury in the Supreme Court of New South Wales and subsequently sentenced to a term of imprisonment. The appeal to the High Court concerned the admissibility of certain evidence and the fairness of the trial process.

The central legal issue before the High Court was whether the trial judge had erred in admitting evidence of the applicant's prior convictions and prior bad character. This evidence had been admitted on the basis that it was relevant to the applicant's propensity to commit the offence charged. The court was required to determine whether the admission of this evidence was contrary to the rules of evidence, particularly concerning the prohibition against admitting evidence of a person's character to prove that they acted in conformity with that character on a particular occasion.

The High Court held that the admission of the evidence of prior convictions and bad character was an error. The court applied the principle that evidence of prior convictions is generally inadmissible to prove that an accused person committed the offence with which they are charged, as it is highly prejudicial and does not, of itself, demonstrate guilt. While exceptions exist, such as where the evidence is relevant to a specific issue in the case other than propensity, the court found that no such exception applied here. The evidence was admitted solely to suggest that the applicant was a person likely to commit such an offence, which was impermissible.

Consequently, the High Court allowed the appeal, quashed the conviction for murder, and ordered a new trial.

Orders