R v Nuttall[2013] QCA 219

SUPREME COURT OF QUEENSLAND

[1] 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.

[2] FRASER JA:  I agree with the reasons for judgment of Atkinson J and the orders proposed by her Honour.

[3] ATKINSON J:  The applicant, Gordon Nuttall, has applied for an extension of time within which to appeal against his conviction.  He was convicted on 27 October 2010 after a two week trial on five counts of official corruption and five counts of perjury.

[4] On 16 December 2010 he was sentenced to five years imprisonment to be served cumulatively upon sentences that had been imposed on 17 July 2009.  The applicant did not appeal against conviction or sentence.  The Attorney-General appealed against the sentences imposed and that appeal was heard on 10 May 2011 with judgment delivered on 7 June 2011: see R v Nuttall; Ex parte Attorney-General.[1]  The Attorney-General's appeal against sentence was allowed and the sentences for each offence of official corruption were increased to seven years imprisonment to be served cumulatively upon the sentences imposed on 17 July 2009.  A new parole eligibility date was fixed for 17 July 2015.

[5] The applicant's submissions as to why time should be extended were that he was unable to obtain a statement from defence counsel within the statutory period for appeal and that as the events described in that statement are the basis for his grounds of appeal, he could not file his appeal until that statement was obtained.  He asserted that he had been unable to obtain legal representation due to financial constraints and that his incarceration and lack of legal representation had severely limited his ability to obtain affidavits and to prepare an appeal properly.  The material on delay was supplemented by an affidavit by the applicant filed at the hearing which the respondent conceded adequately explained the delay.

[6] At the hearing, the applicant sought to rely upon an affidavit filed by his trial counsel, John Rivett and an affidavit from a solicitor, Neil Richardson.  Neither was required for cross-examination for the purposes of the application.  The court received the evidence for the limited purpose of determining whether the application should be granted.  Mr Rivett had supplied a statement to the applicant dated 15 December 2012.  The statement is not itself sworn but is exhibited to an affidavit from the applicant.  The affidavit differs in some respects from the statement and so it is the affidavit, as it is the evidence on affirmation, to which I shall refer.

[7] Mr Rivett says that he acted as counsel for the applicant in 2010 in the trial in which the prosecution case against the applicant was that one Brendan McKennariey made corrupt payments to him of over $100,000 partly paid into his bank account and into his credit card account and partly paid in cash.  The prosecution case was that Graham Doyle was a co-conspirator and received payments as well.

[8] Mr Doyle had not been charged.  Prior to the trial, Mr Rivett says he had a conversation with the Senior Prosecutor and asked him why they had not charged Mr Doyle.  Mr Rivett says he was told that the prosecution did not have quite enough evidence to convict Mr Doyle.  Mr Rivett says he had a pre-trial conference with Mr Doyle who told Mr Rivett that he was prepared to give evidence as he did not think he had anything to fear.  Mr Rivett said that Mr Doyle's evidence would be that he had two conversations with Mr McKennariey driving to and from a luncheon appointment with the applicant in late 1996 or early 1997.  He said that at that time Mr McKennariey had told him he was short of money.  Mr Rivett said that Mr Doyle would say that on the way to the lunch Mr McKennariey said to him "I'm going to have a little chat with Gordo about financing."  On the way home Mr Doyle would say that Mr McKennariey said to him "Gordo's sweet".  There are some other matters to which Mr Rivett refers that Mr Doyle would say but they are either hearsay or opinions of Mr Doyle which he would not be able to give in evidence.  Mr Doyle would further say that a couple of days later he noticed that Mr McKennariey was able to write cheques and pay bills.

[9] Mr Rivett said that his instructions from Mr Nuttall were that at this lunch Mr McKennariey had asked him for a loan and that subsequently Mr Nuttall had lent him $50,000 by way of a cheque and that payments which Mr Doyle made into the applicant's bank account and credit card in later years totalling about $50,000 were not corrupt payments but were repayments of this loan. Mr Rivett asserted that Mr Doyle's evidence if accepted would support the applicant's evidence in a vital way and cast doubt on the credit of Mr McKennariey.

[10] Mr Rivett deposed that in the pre-trial conference with Mr Doyle where he discussed with Mr Doyle the prospect that he might have to answer "curly" questions in cross-examination the answers to which might tend to incriminate him, he explained to Mr Doyle that he would have the option of claiming privilege whereby he could refuse to answer questions on the grounds that the answer would tend to incriminate him.  He explained that the trial judge would probably warn him about this whether he raised the issue or not.  Mr Rivett says he explained to Mr Doyle that if he were to claim privilege, it would severely hurt the applicant's chances of being acquitted as it would make the jury think both of them were guilty.  Mr Rivett told Mr Doyle that he did not want to call him to give evidence if there was "any remote chance" that he would claim privilege.  Mr Doyle then told Mr Rivett that he was totally confident of his position and would not ever claim privilege.  Mr Rivett accordingly resolved to recommend to the applicant that Mr Doyle should be called as a witness for the defence, while knowing there was still a risk in doing it.

[11] Mr Rivett said that on the fourth day of the trial, 26 October 2010, he cross-examined Mr McKennariey about the conversations with Mr Doyle.  Mr McKennariey denied that they happened and denied that the applicant had ever made him a loan.  Mr Rivett had not completed his cross-examination when court adjourned at the end of the day.  Senior Counsel for the prosecution then approached Mr Rivett and asked him if he intended to call Mr Doyle.  Mr Rivett said he thought he would.  Mr Rivett said he "assumed" that the prosecutor had reached this conclusion from the conversation with Mr Doyle that Mr Rivett had put to Mr McKennariey in cross-examination.  Senior Counsel then said to Mr Rivett, "well be careful because he is right on the edge of being charged already and I will be cross-examining him hard to try to get enough evidence to charge him."  Mr Rivett said that later that afternoon or early evening he had a telephone conversation with junior counsel for the prosecution who confirmed that they would cross-examine Mr Doyle to try to get enough evidence to charge him and that Mr Rivett was taking a big risk calling him.  Mr Richardson gave hearsay evidence about this telephone conversation but it is appropriate to refer to Mr Rivett's evidence since it was he who had the relevant conversations.

[12] Mr Rivett said that evening he called Mr Doyle and told him what the prosecutors had said, (Mr Rivett says in his affidavit that he "called Mr Doyle and relayed the Prosecutors' threats").  Mr Rivett told Mr Doyle that he wanted him to get independent legal advice and make sure he was prepared to give evidence without claiming privilege.  One of them, that is Mr Rivett or Mr Doyle, suggested that he would talk to Mr Doyle's brother, a barrister.  Mr Doyle saw Mr Rivett in his chambers the next morning and Mr Rivett says he told him he had spoken to his brother overnight who had given him advice not to give evidence at all, and, if he was forced to, then he should claim privilege at some point.

[13] Mr Rivett discussed this with the applicant before court and advised the applicant that in Mr Rivett's opinion it was too risky to subpoena Mr Doyle and as a result Mr Doyle was not called "to give this critical piece of evidence".  Mr Rivett says that it affected his cross-examination in that there was not much point in putting Mr Doyle's evidence denying the receipt of cash to Mr McKennariey knowing that Mr McKennariey would flatly deny the allegations and that he could not call Mr Doyle to give his version.  Mr Rivett said that if Mr Doyle were believed on this point then it would have impacted upon the jury's deliberations.

[14] If he were given an extension of time within which to appeal the applicant submitted that his grounds of appeal would concern what he referred to as "improper communications" on the part of Crown prosecutors to defence counsel.  The effect of those communications was, he asserted, that the defence was deprived of the opportunity to cross-examine the key prosecution witness adequately, and was deprived of the opportunity to call a witness and adduce evidence from that witness which directly rebutted the testimony of the prosecution's key witness.  The second proposed ground of appeal was that the failure of defence counsel to raise the improper communications with the trial judge during a voir dire and request a mistrial led to a further miscarriage of justice.

[15] The applicant submitted that the communications referred to between the prosecutors and Mr Rivett were improper and unfair as they were made with the sole intention of intimidating Mr Doyle in order that he not provide evidence at the applicant's trial.  Mr Doyle's decision not to provide evidence voluntarily at the trial deprived the applicant of the opportunity to rebut the evidence of Mr McKennariey as well as the opportunity to adduce further evidence from Mr Doyle which may have raised reasonable doubt in the minds of the jury.

[16] The applicant asserted that if the Crown prosecutors genuinely believed that there was a strong prospect of charging Mr Doyle with an offence as a direct result of his testimony, it was unreasonable to assume that they would reveal under any circumstances this forensic advantage to defence counsel.  He submitted that it was inexplicable that a highly experienced barrister would forego the opportunity to put Mr Doyle in a compromising position during cross-examination, as there is no doubt that the prosecutor would understand that doing so would severely damage the applicant's case.

[17] With regard to the second ground of appeal the applicant argued the miscarriage of justice was compounded by the failure of defence counsel to inform the trial judge of the "threats" and request a voir dire.  This, it was submitted by the applicant, would have provided defence counsel with an opportunity to request a mistrial on the basis that the Crown prosecutors' communications had substantially and improperly impaired his ability to present the applicant's case in the case against Mr Nuttall.

The respondent's submissions

[18] The respondent submitted that there was no merit in the proposed grounds of appeal.  The statements attributed to the prosecutors state the obvious.  They confirmed what Mr Rivett had predicted would be likely to happen and therefore enabled the applicant and his counsel to make an informed forensic decision and avoid the damaging effect on the applicant's case of a claim of privilege against self-incrimination by an alleged co-conspirator.  This did not raise an arguable ground of injustice and the evidence intended to be led was, at worst, irrelevant and, at best, equivocal, being equally consistent with a meeting between the applicant and Mr McKennariey in which corrupt payments were discussed.

Consideration

[19] In an application to extend time for a criminal appeal the court will examine whether there is any good reason shown to account for the delay and whether overall it is in the interests of justice to grant the extension.  Whether or not it is in the interests of justice to grant the extension of time may involve some assessment of whether the appeal seems to be a viable one: see R v Tait.[2]  The court will take into account the length of the delay, it being much easier to excuse a short than a long delay.  As R v Lewis[3] shows, however, even where there is no satisfactory explanation for bringing an appeal within time, the court should not refuse the application to extend time if the applicant is able to demonstrate that to refuse it would result in a miscarriage of justice.[4]

[20] In this case the respondent has conceded that the explanation for the long delay is sufficient.  However the respondent submitted that there were no merits in the proposed grounds of appeal. 

[21] The case against the applicant was that soon after he became the Minister for Industrial Relations in 2001, he promoted to his department a project introduced to him by Mr McKennariey for the training of Indigenous workers in workplace health and safety.[5]  The scheme which was promoted by Mr McKennariey and Mr Doyle involved the use of a front man, Mr McNeillage as the notional contractor.  Mr McKennariey and Mr Doyle were to be paid to provide the training.  Mr McNeillage, an innocent party, was used because those concerned knew that Mr McKennariey and Mr Doyle were out of political favour.

[22] The initial understanding of Mr McKennariey, Mr Doyle and the applicant was that the applicant would be paid money if the other two made a profit from the scheme.  Payment was eventually made to the applicant in respect of the scheme after he pressed Mr McKennariey for payment.

[23] The project was adopted by the department over the resistance of senior departmental officers.  The applicant was actively involved in ensuring that finance was provided for the project, was involved in ensuring that "the appropriate people were in place to drive [it]" and he received some $17,000 in respect of the project.

[24] Soon after the applicant's appointment as Minister for Health in 2004, Mr McKennariey introduced the applicant to a project for the treatment of waste water generated by hospitals.  This project, which the applicant promoted to his department, was also undertaken by the department over the resistance of departmental officers, who doubted whether there was any justification for its implementation.  It was abandoned after the applicant ceased to be Minister for Health.  However while it lasted, the project was very profitable for its promoters and significant sums became available for distribution to the applicant.  The arrangement between Mr McKennariey, Mr Doyle and the applicant was that any profit made by Mr McKennariey would be split between them.  Mr McKennariey was to keep the applicant's share for "life after politics" but, in October 2005, the applicant started pressing Mr McKennariey for payment and Mr McKennariey eventually succumbed.  About $130,000 was paid to the applicant by a series of payments between October 2005 and April 2006.

[25] The Crown case as revealed in the summing up was that Mr McKennariey and Mr Doyle were acting in combination and that an email from Mr Doyle to Mr McKennariey shows that the applicant was also involved in the scheme.  It was part of the prosecution case that Mr Doyle had been involved in some of the arrangements which were the subject of the charges against the applicant and was involved with Mr McKennariey in promoting the scheme.  The prosecution would therefore have treated Mr Doyle, if he gave evidence, as an accomplice in corrupt conduct and he would have been cross-examined to that effect.  Mr Rivett obviously realised that when he first had discussions with Mr Doyle about Mr Doyle giving evidence.  Mr Rivett understood that if Mr Doyle refused to answer questions because he claimed privilege against self-incrimination, calling Mr Doyle would harm rather than assist the defence case.  It appears that the Crown prosecutors quite properly and fairly warned defence counsel of the dangers for the defence case in calling Mr Doyle.  To do so can hardly be described as "threats".

[26] The applicant complains because he says that as a result of the statements made by the prosecutors, Mr Doyle was not called by the defence.  However, had the statements not been made by the prosecutors and Doyle been called then, if properly and independently advised, he would undoubtedly have claimed privilege against self-incrimination and damaged the defence case.  The trial judge would have advised him of his rights in that regard.  It was appropriate in the circumstances for the prosecutors to warn the defence of the way in which the Crown intended to run its case so that the defence could make an informed decision about how to run the trial upon accurate information instead of surmise.  This is consistent with the prosecutor's duty to act fairly.[6]  It was on the basis of that accurate information that the defence made a decision not to call Mr Doyle.  The decision made by the defence not to call Mr Doyle was a forensic tactical decision which in the circumstances is unable to be criticised.

[27] It is also a decision by which the applicant is bound.  As Gleeson CJ held in TKWJ v The Queen,[7] a decision by trial counsel as to whether or not to call certain witnesses is the kind of tactical decision routinely made by trial counsel by which their clients are bound.  The adversarial system proceeds on the assumption that parties are bound by the conduct of their legal representatives.  The decision by the applicant's counsel not to call Mr Doyle was entirely explicable and appears to have been forensically sound in the circumstances where it is more likely than not that his giving evidence would have been damaging to the applicant.  Informing the trial judge of what the prosecutors had said could not have made any difference to the way in which the trial proceeded.  It could not have led to a mistrial.

[28] As the respondent submitted, if a retrial were ordered on this ground, then the same problem would arise.  A trial without the evidence of Mr Doyle would be the same as the trial which has already been held; a trial with Mr Doyle would run the same obvious risk of damaging the defence case which led defence counsel to determine that the forensically wise decision was not to call him at the first trial.

[29] The evidence which the applicant sought leave to adduce would not have assisted him and so leave to adduce that evidence should be refused.  As the proposed appeal lacks any merit, the application for an extension of time within which to appeal the conviction should be refused.