R v Nudd

Case [2007] QCA 40


SUPREME COURT OF QUEENSLAND

CITATION:

R v Nudd [2007] QCA 40

PARTIES:

R
v
NUDD, Kevin Philip

FILE NO/S:

CA No 287 of 2006
SC No 58 of 2003

DIVISION:

Court of Appeal

PROCEEDING:

Application for Extension (Conviction)

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED EX TEMPORE ON:


15 February 2007

DELIVERED AT:

Brisbane

HEARING DATE:

15 February 2007

JUDGES:

de Jersey CJ, Keane JA and Mullins J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

The application for extension of time within which to appeal is dismissed

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PRACTICE: AFTER CRIMINAL APPEAL LEGISLATION – MISCELLANEOUS MATTERS – QUEENSLAND – PROCEDURE – EXTENSION OF TIME, NOTICE OF APPEAL AND ABANDONMENT - where applicant's previous appeal against conviction dismissed - where applicant's appeal to High Court dismissed -  where applicant seeks extension of time in which to appeal on different grounds - whether court has jurisdiction to entertain a further appeal


Criminal Code 1899 (Qld), s 668D
Supreme Court Act 1991 (Qld), s 8(1)


Grierson v The King (1938) 60 CLR 431, cited

Mickelberg v The Queen (1989) 167 CLR 259, cited

R v AP [2003] QCA 445, distinguished

R v MAM [2005] QCA 323, cited 

R v Pettigrew [1997] 1 QdR 601; [1996] QCA 235, distinguished
R v Smith [1968] QWN 50, cited

COUNSEL:

A J Kimmins for the applicant
G R Rice for the respondent

SOLICITORS:

N R Barbi for the applicant
DPP (Commonwealth) for the respondent

THE CHIEF JUSTICE:  I invite Justice Keane to deliver the first judgment.

KEANE JA: On 22 July 2003, the applicant was convicted upon the verdict of a jury of being knowingly concerned in bringing into Australia a quantity of cocaine in contravention of section 223B of the Customs Act 1901 (Cth). He was subsequently sentenced to a term of imprisonment.

The applicant appealed against his conviction to this Court, and upon that appeal being dismissed on 14 May 2004, to the High Court of Australia; that appeal was dismissed on 9 March 2006.

The applicant asserts that he was subsequently advised that his conviction might be challenged on the ground that the requirements of Ch III of the Constitution of the Commonwealth of Australia were not observed at his trial.  In this regard, early in the trial, one juror was excused and the trial proceeded before the remaining jurors.  The applicant seeks an extension of time within which to appeal again to this Court.

Initially, the applicant based his application for an extension of time to appeal his conviction on a proposed new ground that the circumstances attending his conviction did not conform to the requirements of CH III of the Constitution in that he an inalienable right to trial by jury of 12 persons.

In an argument presented to the Court by Mr Kimmins of Counsel on the applicant's…

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AGLC
R v Nudd [2007] QCA 40
Case
[2007] QCA 40
Decision Date

CaseChat Overview and Summary

In the matter of R v Nudd, the appellant sought an extension of time to appeal his conviction and sentence for certain criminal offences. The case originated in the Queensland Supreme Court, where the appellant was initially convicted, and subsequently appealed to the Court of Appeal and then to the High Court, both of which dismissed his appeals. The appellant now seeks an extension of time to appeal on different grounds, arguing that he was unaware of the grounds until after the relevant time periods had expired. The court was required to determine whether it had the jurisdiction to entertain a further appeal, given that the appellant's previous appeals had been dismissed. The court considered the relevant statutory provisions and case law in determining whether an extension of time was appropriate in the circumstances of this case.

The court found that the statutory provisions governing the extension of time for appeals did not provide for extensions in circumstances such as those presented by the appellant. The court held that the statutory provisions were clear and unambiguous, and that the appellant's argument that he was unaware of the grounds for appeal until after the relevant time periods had expired did not constitute a sufficient ground for an extension of time. The court also noted that the appellant had had ample opportunity to investigate the grounds for appeal during the previous appeals, and that he had failed to do so. The court held that the appellant's previous appeals had been dismissed on the basis of substantive legal arguments, and that there was no basis for a further appeal on different grounds.

In light of the above, the court dismissed the appellant's application for an extension of time within which to appeal. The court held that it did not have the jurisdiction to entertain a further appeal, given that the appellant's previous appeals had been dismissed and there was no basis for a further appeal on different grounds. The court noted that the statutory provisions governing appeals were clear and unambiguous, and that the appellant's arguments did not constitute sufficient grounds for an extension of time. The court held that the appellant's previous appeals had been dismissed on the basis of substantive legal arguments, and that there was no basis for a further appeal on different grounds. The court dismissed the application for an extension of time within which to appeal.

Orders

Orders of the court

The application for extension of time within which to appeal is dismissed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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