R v Nudd

[2004] QCA 154

SUPREME COURT OF QUEENSLAND

CITATION: 

R v Nudd [2004] QCA 154

PARTIES: 

R
v
NUDD, Kevin Philip
(appellant/applicant)

FILE NO/S: 

CA No 258 of 2003
SC No 58 of 2003

DIVISION: 

Court of Appeal

PROCEEDING: 

Appeal against Conviction & Sentence

ORIGINATING 
COURT: 

Supreme Court at Brisbane

DELIVERED ON: 

14 May 2004

DELIVERED AT: 

Brisbane

HEARING DATE: 

11 March 2004; 18 March 2004

JUDGES: 

Davies JA and White and McMurdo JJ
Separate reasons for judgment of each member of the Court,
each concurring as to the orders made

ORDER: 

1.	Appeal against conviction dismissed
2.	Application for leave to appeal against sentence is not pursued and is dismissed

CATCHWORDS: 

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – CONDUCT OF LEGAL PRACTITIONERS – where prosecution had to prove that the appellant was knowingly concerned in the importation of prohibited imports – where proof of the identity of the appellant in police intercepted telephone conversations and the real nature of those conversations was required – where appellant admitted certain facts at trial – where appellant did not call or give evidence – where appellant’s counsel appeared to concede the identity of the appellant in the intercepted conversations and appellant’s knowledge of the importation – where appellant was convicted – where appeal against conviction – where it is argued that counsel conducted the case on an incorrect understanding of “knowingly concerned in” – whether case was conducted in a way which is incapable of any reasonable explanation – whether appellant was denied a fair chance of acquittal – whether there was a miscarriage of justice

Customs Act 1901 (Cth), s 233B

R v Birks (1990) 19 NSWLR 677, cited
R v Leff (1996) 86 A Crim R 212, cited
R v Menniti [1985] 1 Qd R 520, considered
R v N [2003] QCA 505; CA No 77 of 2003, 14 November
2003, cited
R v N [2003] QCA 574; CA No 311 of 2003, 19 December
2003, applied
R v Paddon [1999] 2 Qd R 387; [1998] QCA 248; CA No
122 of 1998, 28 August 1998, cited
Re Knowles [1984] VR 751, cited
TKWJ v The Queen (2002) 212 CLR 124, applied
White v Ridley (1978) 140 CLR 342, considered

COUNSEL: 

M J Byrne QC, with C J Eberhardt, for the
appellant/applicant
G R Rice for the respondent

SOLICITORS: 

Graham Lawyers for the appellant/applicant
Commonwealth Director of Public Prosecutions for the
respondent

1. DAVIES JA: In my opinion the appeal should be dismissed substantially for the reasons given by McMurdo J and for the further reasons given by White J. The principal question was whether the failure to call the appellant, on the assumption that the appellant had given to his legal advisers instructions in terms of par 36 of his affidavit, would have been capable of reasonable explanation. In my opinion it would have been. For the reasons given by McMurdo J and White J,…