Case: Nudd v R [2006] HCA 9 ; (2006) 225 ALR 161
Outcome: cited
A convenient recitation of the events that are a background to this proceeding is to be found in the head note of the decision of the High Court in Nudd v R [2006] HCA 9 ; (2006) 225 ALR 161. What is there stated is as follows: "Police and customs officers intercepted a yacht in Moreton Bay on 3 May 2001. On board they found 89 kilograms of cocaine. There were two men on the yacht when it was boarded, a citizen of the United States, Peter Jackson and his son, Gareth Jackson. They left Mexico in May 2000 on the yacht and sailed to Noumea. From there they flew to Australia on 7 December 2000, where they remained until their visas expired in March 2001. On 7 March 2001, Peter Jackson fled to the United States where he obtained a false United States passport. On 28 March 2001, he flew from the United States to Noumea on the false passport. He then sailed the yacht from Noumea to Moreton Bay where the boat was intercepted. The part of the period of three months, in which the two men were in Australia, they lived in a motel in Sydney. A listening device had been installed in their room to intercept telephone conversations. Eleven of those conversations were between Peter Jackson and the appellant, - (whom I interpolate is the applicant presently before me) - , who was an Australian citizen and then living in Los Angeles. The appellant was charged (in other words, the present applicant was charged) with being 'knowingly concerned' in the importation of cocaine into Australia contrary to section 233B of the Customs Act 1901 . The intercepted conversations between the appellant and Jackson, the prosecution contended, showed clearly that the former was assisting, or attempting to assist in the resolution of the problems of making arrangements for the importation. The appellant was convicted by the Supreme Court of Queensland of the offence, charged and sentenced to 22 years imprisonment. An appeal to the Court of Appeal was dismissed. The appellant appealed to the High Court contending there was a miscarriage of justice because of the incompetence of counsel who: failed to understand and properly advise on the elements of the offence charge; failed to take appropriate instructions; failed to appreciate or advance two lines of defence reasonably open; made submissions of fact in error and/or without instructions to do so; failed to object to inadmissible and highly prejudicial material contained in the telephone intercepted tapes, being admitted." 3 The conclusions reached by the High Court in that case were that Mr Nudd's counsel was incompetent to a serious degree. Notwithstanding that, the Court further concluded that he had not been deprived of a chance of an acquittal because the case against him was a strong one and effectively unanswerable. 4 It is necessary to say something further about the chronology of events that led up to that High Court appeal. As I have mentioned, on 6 May 2001 an arrest warrant sought to be impeached in these proceedings was issued. On 28 February 2002, an extradition occurred with the result that Mr Nudd was returned to Australia and then remanded in custody. He was convicted on 22 July 2003, before a Supreme Court Judge and a jury. It was then that the sentence of 22 years imprisonment was imposed with a non-parole period of 11 years. On 14 May 2004, his appeal against conviction, a sentence appeal having been abandoned, was dismissed. The High Court proceeding that I have mentioned concluded with the dismissal of the appeal, following an earlier grant of special leave on 9 March 2006. 5 Since then, in a number of ways, in the Courts of the State of Queensland, Mr Nudd has sought to ventilate whether the original arrest warrant was valid. It suffices to note that none of those proceedings has been successful. The Respondents to the application have today sought its dismissal on the basis that it is an abuse of process. They particularly point to s 9A of the Administrative Decisions (Judicial Review) Act and its deprivation where it applies on this Court's jurisdiction. 6 One may note that the position ought not be any different were it the case that, in some way, it was the Judiciary Act 1903 that was called in aid in respect of the application. That is because there is in both the Judiciary Act 1903 in s 39B (3) and in the Administrative Decisions (Judicial Review) Act , s 9A , a coincidence of reference and definition. That coincidence is in the term "Related criminal justice process decision". For that reason I consider only s 9A of the Administrative Decisions (Judicial Review) Act . That section provides that relevantly in para (a): At any time when the prosecution for an offence against a law of the Commonwealth, a State or a Territory is before any court. Or, (b): An appeal arising out of such prosecution is before any court; No court has jurisdiction to hear, continue to hear or determine an application under this Act by the person who is or was the defendant in the prosecution in relation to a related criminal justice process decision.