R v Nuttall - [2013] QCA 219

SUPREME COURT OF QUEENSLAND

CITATION:

R v Nuttall [2013] QCA 219

PARTIES:

R
v
NUTTALL, Gordon Richard
(applicant)

FILE NO:

CA No 82 of 2013
DC No 187 of 2010

DIVISION:

Court of Appeal

PROCEEDING:

Application for Extension (Conviction)
Miscellaneous Application – Criminal

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

9 August 2013

DELIVERED AT:

Brisbane

HEARING DATE:

30 July 2013

JUDGES:

Margaret McMurdo P and Fraser JA and Atkinson J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1. Application for leave to adduce further evidence is refused.

2. Application for an extension of time is refused.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL - PRACTICE AND PROCEDURE – QUEENSLAND – TIME FOR APPEAL – EXTENSION OF TIME – GENERAL PRINCIPLES AS TO GRANT OR REFUSAL – where the applicant was convicted of five counts of official corruption and five counts of perjury – where the respondent conceded the applicant’s affidavit adequately explained the delay – whether the interests of justice warrant the granting of the application

APPEAL AND NEW TRIAL – APPEAL - PRACTICE AND PROCEDURE – QUEENSLAND – POWERS OF COURT – FURTHER EVIDENCE – where the applicant sought to rely on affidavits from defence counsel and solicitor – where defence counsel at trial made a forensic tactical decision not to call a witness – where the applicant is bound by tactical decisions made at trial – where the evidence sought to be adduced would not have assisted the applicant – where the grounds of appeal showed no merit – whether the application to adduce further evidence should be granted

CRIMINAL LAW – PROCEDURE – PROSECUTION –POWERS AND DUTIES OF PROSECUTION – where the trial prosecutor complied with the duty to act fairly by warning defence about the way a defence witness would be cross-examined

R v Bathgate (1946) 46 SR (NSW) 281; [1946] NSWStRp 21, cited
R v GV[2006] QCA 394, cited
R v Lewis (2006) 163 A Crim R 169 ; [2006] QCA 121, applied
R v Nuttall; Ex parte Attorney-General [2011] 2 Qd R 328; [2011] QCA 120, related
Richardson v The Queen (1974) 131 CLR 116; [1974] HCA 19, cited
Subramanian v The Queen (2004) 79 ALJR 116; [2004] HCA 51, cited
R v Tait [1999] 2 Qd R 667 ; [1998] QCA 304, applied
TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46, applied

COUNSEL:

The applicant appeared on his own behalf
W Sofronoff QC SG, with G P Cash, for the respondent

SOLICITORS:

The applicant appeared on his own behalf
Director of Public Prosecutions (Queensland) for the respondent

MARGARET McMURDO P: I agree with Atkinson J's reasons for refusing both the application for leave to adduce further evidence and the application for an extension of time to appeal against conviction.

FRASER JA: I agree with the reasons for judgment of Atkinson J and the orders proposed by…

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 R v Nuttall

Details

AGLC: R v Nuttall [2013] QCA 219
Case: [2013] QCA 219
Decision Date: 9 August 2013

CaseChat Overview and Summary

In the case of R v Nuttall, the applicant sought leave to appeal against his conviction and sentence. He was convicted of five counts of official corruption and five counts of perjury. The applicant appealed against his conviction and sentence, applying for an extension of time to file the appeal and for leave to adduce further evidence. The respondent conceded that the applicant's affidavit adequately explained the delay in filing the appeal; however, the interests of justice did not warrant the granting of the application. The applicant also sought to rely on affidavits from defence counsel and a solicitor, which the court found to be unmeritorious. The court considered the tactical decisions made at trial and found that the evidence sought to be adduced would not have assisted the applicant.

The legal issues in this case included whether the interests of justice warranted the granting of an extension of time to file the appeal and whether the application to adduce further evidence should be granted. The court found that the applicant's affidavit adequately explained the delay, but the interests of justice did not warrant the granting of the application. The court also found that the applicant was bound by tactical decisions made at trial and that the evidence sought to be adduced would not have assisted the applicant. The court further found that the grounds of appeal showed no merit.

The court considered the general principles as to the grant or refusal of an extension of time for an appeal, the powers of the court to allow further evidence, and the duty of the prosecution to act fairly. The court found that the applicant's affidavit adequately explained the delay, but the interests of justice did not warrant the granting of the application. The court also found that the applicant was bound by tactical decisions made at trial and that the evidence sought to be adduced would not have assisted the applicant. The court further found that the grounds of appeal showed no merit. Finally, the court found that the trial prosecutor complied with the duty to act fairly by warning defence about the way a defence witness would be cross-examined.

The final orders of the court were that the application for leave to adduce further evidence is refused and the application for an extension of time is refused.

Orders

Orders of the court

1. Application for leave to adduce further evidence is refused.

2. Application for an extension of time is refused.

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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CITATION:	R v Nuttall [2013] QCA 219
PARTIES:	R v NUTTALL, Gordon Richard (applicant)
FILE NO:	CA No 82 of 2013 DC No 187 of 2010
DIVISION:	Court of Appeal
PROCEEDING:	Application for Extension (Conviction) Miscellaneous Application – Criminal
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	9 August 2013
DELIVERED AT:	Brisbane
HEARING DATE:	30 July 2013
JUDGES:	Margaret McMurdo P and Fraser JA and Atkinson J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. Application for leave to adduce further evidence is refused. 2. Application for an extension of time is refused.
CATCHWORDS:	APPEAL AND NEW TRIAL – APPEAL - PRACTICE AND PROCEDURE – QUEENSLAND – TIME FOR APPEAL – EXTENSION OF TIME – GENERAL PRINCIPLES AS TO GRANT OR REFUSAL – where the applicant was convicted of five counts of official corruption and five counts of perjury – where the respondent conceded the applicant’s affidavit adequately explained the delay – whether the interests of justice warrant the granting of the application APPEAL AND NEW TRIAL – APPEAL - PRACTICE AND PROCEDURE – QUEENSLAND – POWERS OF COURT – FURTHER EVIDENCE – where the applicant sought to rely on affidavits from defence counsel and solicitor – where defence counsel at trial made a forensic tactical decision not to call a witness – where the applicant is bound by tactical decisions made at trial – where the evidence sought to be adduced would not have assisted the applicant – where the grounds of appeal showed no merit – whether the application to adduce further evidence should be granted CRIMINAL LAW – PROCEDURE – PROSECUTION –POWERS AND DUTIES OF PROSECUTION – where the trial prosecutor complied with the duty to act fairly by warning defence about the way a defence witness would be cross-examined R v Bathgate (1946) 46 SR (NSW) 281; [1946] NSWStRp 21, cited R v GV[2006] QCA 394, cited R v Lewis (2006) 163 A Crim R 169 ; [2006] QCA 121, applied R v Nuttall; Ex parte Attorney-General [2011] 2 Qd R 328; [2011] QCA 120, related Richardson v The Queen (1974) 131 CLR 116; [1974] HCA 19, cited Subramanian v The Queen (2004) 79 ALJR 116; [2004] HCA 51, cited R v Tait [1999] 2 Qd R 667 ; [1998] QCA 304, applied TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46, applied
COUNSEL:	The applicant appeared on his own behalf W Sofronoff QC SG, with G P Cash, for the respondent
SOLICITORS:	The applicant appeared on his own behalf Director of Public Prosecutions (Queensland) for the respondent