Nudd v The Queen - [2005] HCATrans 162

[2005] HCATrans 162

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B36 of 2004

B e t w e e n -
KEVIN PHILIP NUDD
Applicant
and
THE QUEEN
Respondent
Application for special leave to appeal

KIRBY J
HAYNE J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON MONDAY, 21 MARCH 2005, AT 9.32 AM

MR M.J. BYRNE, QC: May the Court please, I appear with my learned colleague, MR C.J.N. EBERHARDT, for the applicant. (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 Commonwealth Director of Public Prosecutions)

MR BYRNE: May the Court please, the application is sought in these circumstances where an accused person is charged with a serious offence against Commonwealth law, and the three scenarios which we put forward are these. Counsel has not taken the accused’s instructions because such instructions might interfere with the way in which counsel wishes to conduct the trial. Counsel then proceeds to conduct the trial on the basis of a fundamental error as to an element of the offence. Thirdly, all tactical forensic decisions are made by defence counsel on the basis of the error of law and in the ignorance of an accused’s instructions.

We ask in those circumstances whether (a) the accused, who was serving 22 years, has had a fair trial; (b) whether it could objectively be said that any competent counsel would have so acted; and (c) was there in the course of the trial, or before the trial, any rational informed choice by the applicant, which are the tests enunciated by this Court as to whether or not a miscarriage of justice has occurred.

KIRBY J: Just clarify for me the fact that no statement was apparently taken of your client and it is said that that is justified because of counsel’s desire to avoid embarrassing instructions, but during the course of the trial the judge asked, “Is what you’re putting put on instructions?” So it does not seem that that is a very good tactic, or useful tactic for avoiding that sort of question, which is bound to arise. Just tell me what happens in practice in that respect?

MR BYRNE: What seems to have happened, your Honour Justice Kirby, in this situation is that, as the Court of Appeal has found, and the reference is at application book 190, line 15, the trial counsel deliberately did not take instructions. Then, as your Honour points out to me, it was, as I understand the scenario, during the course of final address by defence counsel when he made a concession which was reasonably important, namely, whether the voice on the tapes was that of the applicant – he firstly denied that he had said that, then said if he had said it it was by way of semantic error and then confirmed…

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 162
Case: [2005] HCATrans 162
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 Queensland and subsequently sentenced to life 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. The applicant argued that this evidence was unduly prejudicial and should have been excluded to ensure a fair trial. A further issue related to the adequacy of the judge's directions to the jury regarding the use of this evidence.

The High Court examined the principles governing the admissibility of evidence of prior convictions and bad character, particularly in the context of criminal trials. Their Honours applied the established legal principles that such evidence is generally inadmissible unless it has a specific relevance to a fact in issue in the current proceedings, beyond merely demonstrating a propensity to commit crime. The Court considered whether the evidence in question met this threshold and whether the jury directions adequately mitigated any potential prejudice.

The High Court allowed the appeal, quashed the conviction, and ordered a new trial.

Orders