Nudd v Australian Federal Police
[2008] QCA 60
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- Unreported Judgment
- Appeal Determined (QCA)
- Nudd v Australian Federal Police[2008] QCA 60
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Nudd v Australian Federal Police[2008] QCA 60
Nudd v Australian Federal Police[2008] QCA 60
SUPREME COURT OF QUEENSLAND
PARTIES: | KEVIN PHILIP NUDD COMMONWEALTH OF AUSTRALIA ATTORNEY-GENERAL FOR THE COMMONWEALTH |
FILE NO/S: | SC No 1700 of 2007 |
Court of Appeal | |
PROCEEDING: | Miscellaneous Application – Civil General Civil Appeal |
ORIGINATING COURT: | |
DELIVERED ON: | 20 March 2008 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 28 February 2008 |
JUDGES: | McMurdo P, Mackenzie AJA, Mullins J Separate reasons for judgment of each member of the Court, each concurring as to the order made |
ORDER: | 1. Appeal dismissed with costs2. “Application to Court of Appeal” struck out |
CATCHWORDS: | APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – INTERFERENCE WITH DISCRETION OF COURT BELOW – IN GENERAL – GENERAL PRINCIPLES – where Queensland Justice of the Peace issued warrant for apprehension of appellant – where appellant in United States at time warrant issued – where appellant subsequently arrested in United States and extradited to Australia – where appellant convicted of offence under Customs Act 1901 (Cth) – where appellant unsuccessfully appealed conviction and sentence – where appellant sought declarations that his arrest warrant and extradition were invalid and an abuse of process had occurred – where trial division judge dismissed appellant’s application on basis that there was no utility in declarations sought – whether trial division judge erred in exercising his discretion to dismiss application Crimes Act 1914 (Cth) Customs Act 1901 (Cth), s 223B Extradition Act 1988 (Cth), s 41 Judiciary Act 1903 (Cth), s 68 Service and Execution of Process Act 1992 (Cth) Justices Act 1886 (Qld), s 57 Penalties and Sentences Act 1992 (Qld), s 188(1)(c) Police Powers and Responsibilities Act 2000 (Qld), s 374 Ainsworth & Anor v Criminal Justice Commission (1992) 175 CLR 564; [1992] HCA 10, cited Application of Pearson (1999) 46 NSWLR 148; [1999] NSWSC 143, cited Forster v Jododex Australia Pty Ltd (1972) 127 CLR 421; [1972] HCA 61, cited Grierson v R (1938) 60 CLR 431; [1938] HCA 45, cited Mickelberg v R (1989) 167 CLR 259; [1989] HCA 35, cited Nudd v R (2006) 225 ALR 161; [2006] HCA 9, cited Perrier v Kerr in his capacity as Minister for Justice for the Commonwealth of Australia, unreported, Federal Court of Australia, Ryan J, VG 865 of 1995, 19 August 1997, cited R v Collie, unreported, Supreme Court of Victoria Court of Criminal Appeal, No 190 of 1992, 18 December 1992, cited R v MAM [2005] QCA 323; CA No 118 of 2005, 30 August 2005, cited R v Nudd [2004] QCA 154; CA No 258 of 2003, 14 May 2004, cited R v Nudd [2007] QCA 40; CA No 287 of 2006, 15 February 2007, cited R v Saxon (1998) 101 A Crim R 71, cited R v Smith [1968] QWN 50, cited |
COUNSEL: | The appellant appeared on his own behalf S A McLeod for the respondents |
SOLICITORS: | The appellant appeared on his own behalf Australian Government Solicitor for the first respondent Blake Dawson for the second and third respondents |
[1] McMURDO P: The appeal should be dismissed with costs and the “Application to Court of Appeal” struck out for the reasons given by Mackenzie AJA.
[2] MACKENZIE AJA: This is an appeal against dismissal of an application in the trial division for declarations that an arrest warrant issued for the arrest of the applicant pursuant to s 57 of the Justices Act 1886 (Qld) was invalid, that his extradition from the United States was invalid and that an abuse of process had occurred. After being extradited to Australia, he was, on 22 July 2003, convicted in the Supreme Court of Queensland of an offence under s 223B of the Customs Act 1901 (Cth) of being knowingly concerned in the importation of cocaine into Australia. The appellant, who was self represented, also filed an “Application to Court of Appeal” seeking identical orders to those sought in the appeal. This application should be struck out.
[3] There were consequential applications in the present proceedings in the trial division by all three respondents for orders that the originating application be struck out as an abuse of process and that certain subpoenas be set aside. The subpoenas were discharged by consent. No specific orders were made on the applications to strike out, but since the applicant’s application was dismissed in any event, no further mention need be made of these applications.
[4] The issue before this Court is a narrow one. It is whether in exercising his discretion to refuse the declarations, the judge of the trial division erred in any way that entitles the appellant to the relief he seeks here. The arguments addressed to us by the appellant on the law and, in some respects, the merits were essentially identical to those addressed to the trial judge.
[5] To understand the context in which the judge of the trial division dismissed the application, it is desirable to set out the history of the matter. On 6 May 2001 a warrant for the apprehension of the appellant for an offence of being knowingly concerned in the importation of cocaine into Australia was obtained following an application by officers of the first respondent to a Justice of the Peace for the State of Queensland. That warrant was passed on to the Commonwealth Attorney-General’s Department to accompany a request made by the Australian Government to the United States of America for the provisional arrest of the applicant, who was in the United States of America. The appellant was arrested in the United States on 29 May 2001. The formal request for extradition was made on 18 July 2001.
[6] On 20 December 2001 an order was made in a United States District Court in California certifying the extradition of the appellant. During the course of those proceedings an opinion by a Queensland barrister denying the validity of the Queensland warrant was in evidence. The opinion concentrated only on the terms of the Justices Act and did not refer to any Commonwealth legislation except by identifying the Customs Act as the source of the charge; in particular s 68 of the Judiciary Act 1903 (Cth) was not referred to. In any event, the judge in California held, on the basis of authority accepted by both attorneys as binding, that it was not open to him in those proceedings to question the validity of the warrant.
[7] The appellant then filed a petition for a writ of habeas corpus, which was denied on 31 December 2001. He was subsequently extradited from the United States, arriving in Sydney on 28 February 2002 and being brought to Brisbane on same day. He was remanded in custody. Before his removal from the United States occurred, he had appealed to the United States Court of Appeals for the Ninth Circuit, but a stay of extradition pending appeal was denied. A request to proceed in forma pauperis was also made. That application was denied, apparently on 18 March 2002, and a guillotine order requiring payment of the filing fee within 21 days was made. The appeal was subsequently struck out because the appellant had failed to comply, no doubt because the correspondence had failed to reach him because he was, by that time, already in Australia.
[8] The appellant pleaded not guilty but was convicted by a jury of the Customs Act offence. He appealed against his conviction. The sole ground of appeal was that the conduct of his case at trial was so incompetent that it led to a miscarriage of justice. On 14 May 2004, the Court of Appeal dismissed his appeal (R v Nudd [2004] QCA 154).
[9] The appellant then sought and obtained special leave to appeal to the High Court. On 9 March 2006, the High Court dismissed his appeal (Nudd v R (2006) 225 ALR 161). The effect of the reasons was that while counsel had been incompetent, there was a very strong prosecution case based on objective evidence and there had therefore been no substantial miscarriage of justice.
[10] On 5 October 2006, he filed an application for an extension of time in which to appeal against conviction. Issues concerning the validity of the arrest warrant initially issued in Queensland and the extradition process were raised in the notice of appeal but on 13 November 2006 he wrote to the Registry and abandoned those grounds. He relied on the remaining ground that the trial was inconsistent with the constitutional requirements governing the due process of the trial in that it did not conform to Chapter III of the Australian Constitution. The argument actually pursued related to asserted failure of the trial judge to consider properly the exercise of discretion to complete the trial with 11 jurors.
[11] Before that matter was heard by the Court of Appeal, he applied under s 188(1)(c) of the Penalties and Sentences Act 1992 (Qld) to re-open his sentence. During the course of that application, he sought orders that the arrest warrant and the extradition be declared invalid. The judge who had presided at his trial declined to make those orders and dismissed the application on 25 January 2007. Not surprisingly, she took the view that those matters were not appropriate to be raised on an application to re-open sentence within the confines of s 188(1)(c).
[12] Then, on 15 February 2007, the Court of Appeal dismissed the application for leave to extend time within which to appeal (R v Nudd [2007] QCA 40). In doing so, the Court acted on the principle that the applicant, having already had one unsuccessful appeal, had no further right of appeal. (Grierson v R (1938) 60 CLR 431; R v Smith [1968] QWN 50; Mickelberg v R (1989) 167 CLR 259; R v MAM [2005] QCA 323).
[13] The issues raised by the appellant in the trial division in support of the making of the declarations were the following:
1.Because the appellant was indisputably in the United States at the time the warrant of apprehension was issued, it was invalidly issued by a Queensland Justice of the Peace. The justice did not have jurisdiction to issue the warrant under the Justices Act. Any warrant should have been issued under the Crimes Act 1914 (Cth). There had also been a doubt expressed by the Australian authorities as to the validity of the warrant. (It was correctly suggested by the judge during the course of the argument below that the last point was based on a misapprehension as to the meaning of a passage in correspondence. The passage in the relevant e-mail, upon reading it, does not support the appellant’s contention. It said no more than that it was the interaction between Commonwealth and State law that allowed the warrant to be issued, in the context of a discussion of whether it was necessary to explain the intricacies in detail to the United States lawyers).
2.No United States warrant authorising the appellant’s detention there existed. (This raised a disputed question of fact, since the respondents denied that the assertion was correct. The documentation in the record does not include any such warrant, but that is not conclusive against its existence. The last correspondence from the respondents to the appellant merely asserted that it was not relevant to these proceedings).
3.The extradition proceedings were not commenced in the United States within the time prescribed by s 374 of the Police Powers and Responsibilities Act 2000 (Qld). (As the judge of the trial division observed, that had no application to the case because it relates only to extradition within Australia).
4.The Commonwealth Attorney-General’s Department’s advice to the Minister for Customs and Justice prior to his signing the extradition request contained false or misleading information. (This proposition was disputed by the respondents and therefore raised an unresolved issue of fact).
5.Because the applicant had appealed to the United States Court of Appeals, but had been extradited before the appeal had been heard, there was an abuse of process.
6.It was also an abuse of process for the appellant to be transported from Los Angeles to Sydney and, after being held in Sydney for a period of hours, then transported to Brisbane without an extradition order having been obtained to bring him from New South Wales to Queensland. (In argument in this Court, the appellant conceded that he was in the custody of Commonwealth Officers throughout the transit period. If that ground relies on the Service and Execution of Process Act 1992 (Cth), it lacks any substance, as it does not apply to this situation – see also Extradition Act 1988 (Cth), s 41).
[14] The respondents’ stance was that the appellant’s originating application was no more than a disguised attempt to challenge his criminal conviction. Reliance was placed, for this submission, on the formulation of the appellant’s argument which essentially was that the invalidity of the arrest warrant and the issues concerning abuse of process which had led to unlawful arrest and extradition from the United States of America rendered every subsequent criminal proceeding null and void and liable to be vacated by law. It was submitted that the appellant’s application amounted to an abuse of process. It was legally misconceived and the relief sought was futile. The issues of lack of utility and whether declaratory relief ought to be given where criminal process had been exhausted, and relief was sought to call the conviction into question by means of civil proceedings were taken up early in the hearing in the trial division.
[15] The judge of the trial division said in his reasons for refusing the application that none of the complaints of invalidity of process and impropriety of conduct on the part of officers of the Commonwealth looked to have merit. However, it was unnecessary to consider either the challenges to the processes and decisions that attended the issuing in Queensland of a warrant for the appellant’s apprehension or the American extradition proceedings that resulted in his return to Australia to face trial. He concluded that the declarations sought should be refused on the footing that the grant of such relief could not serve a useful purpose.
[16] He then said that a declaration that the extradition process had miscarried could not affect the validity of the appellant’s conviction and sentence. However, if such a declaration were to be made, there would be mischievous potential in granting that relief in that it would cast a cloud over the outcome of the criminal proceedings at trial and on appeal. He continued:
“There is nothing attractive about the notion that, having decided not to rely on the challenges now propounded to defend the criminal charges, he might in civil court (sic) obtain a remedy calling his convictions into question.
The administration of justice, and public confidence in it, would not be advanced by facilitating the kind of collateral challenge to the finality of the determinations of his criminal proceedings which the applicant’s success in obtaining the declarations now sought would involve.”