Nudd v Minister for Home Affairs

REASONS FOR JUDGMENT 1 The previous history of this matter appears from the reasons of the Full Court delivered on 19 August 2011 in Nudd v Minister for Home Affairs the Honourable Brendan O'Connor [2011] FCAFC 105. In that case the Full Court was concerned with an application for review pursuant to the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the "ADJR Act") of a decision by the Minister for Home Affairs (the "Minister"). By that decision the Minister declined to refer Mr Nudd's conviction to the Queensland Court of Appeal for consideration pursuant to s 672A of the Queensland Criminal Code (the "Criminal Code"). The apparent anomalies in that description of the matter are adequately explained in the Full Court's reasons. I do not propose to repeat them here. It is sufficient to say that I proceed upon the basis that the Commonwealth concedes that where a person has been convicted of a Commonwealth offence, he or she may apply for a favourable exercise of the Royal prerogative by the Governor of the relevant state, either pursuant to general principles associated with the Royal prerogative, or statutory provisions regulating the exercise of that prerogative. 2 In the present case Mr Nudd was convicted of the offence of being knowingly concerned in the importation into Australia of more than a commercial quantity of cocaine, contrary to s 233B(1) of the Customs Act 1901 (Cth) (the "Customs Act"). He was convicted in the Supreme Court of Queensland. His conviction was the subject of appeals to the Court of Appeal and to the High Court. Both were unsuccessful. He then asked the Minister to refer the matter to the Court of Appeal pursuant to s 672A of the Criminal Code, but was unsuccessful. He then applied to this Court for review of that decision pursuant to the ADJR Act. 3 Mr Nudd's conviction was based upon extensive observation and investigation in the United States and in other countries, which, on the Crown case led to a motor vessel being apprehended in Moreton Bay on 3 May 2001. A substantial amount of cocaine was on board. The Crown case was that Mr Nudd who, at most relevant times was in the United States, had been involved in a conspiracy to import, or had been knowingly concerned in the importation. The prosecution led evidence from a United States customs officer called Lamas concerning observations of Mr Nudd's activities in the United States. He also referred to information provided to him by Australian Federal Police officers. As a result of these observations and such information, Mr Nudd was arrested in the United States on 4 May 2001. He was charged with an offence against United States law, namely conspiring with others to knowingly and intentionally possess with intent to distribute more than five kilograms of cocaine. These proceedings were terminated on or about 22 May 2001. Shortly thereafter a request for extradition to Australia was made. He was eventually extradited, put on trial, and as I have said, convicted. 4 In the judicial review proceedings to which I have referred, he raised various matters, including the assertion that he had not had access to an affidavit, apparently sworn by Mr Lamas, for use in connection with the proceedings in the American courts. He said that had he had access to the affidavit at his trial, he would have been aware of certain information which may have assisted him in his defence. The relevant factual matters are not presently relevant. As I have said, Mr Nudd's application for judicial review was unsuccessful. He appealed to the Full Court but was again unsuccessful. 5 Following his loss in the Full Court he applied once again for the favourable exercise of the discretion. He again raised the question of his not having had access to Mr Lamas' affidavit. He suggested, and now suggests that such access would have allowed him to cross-examine Mr Lamas in such a way as to challenge his credibility as a witness. I am not presently sure of the extent to which the credibility of Mr Lamas' evidence would have been relevant, but it is not necessary that I investigate that matter further. On the second review, the Minister dealt with this matter as follows: The Full Court considered the issue of disclosure of the affidavit, and noted that you could not rely on the prosecution's disclosure obligation as now found in Chapter 62 Division 3 of the Criminal Code, as these provisions were inserted in 2003. The Court also noted there was some doubt as to whether the prosecuting authorities had in their possession the affidavit at the time of your trial, despite the fact that the affidavit had since been located on the Department's file. The Court was of the view that for abundance of caution the documents should have been disclosed. However, the Court noted that you did not demonstrate in any way that it might have strengthened your defence, and that it was of the view that it could not have done so. The court also cited earlier in its judgment comments made by the High Court on your matter, in that the case proved against the appellant was 'effectively unanswerable'. I am advised that your application does not establish that the withholding of the affidavit of Agent Lamas has resulted in a disadvantage that would have made a difference to the verdict. The questions that you say you would have put to Agent Lamas in relation to the affidavit all relate to the US charges against you, not the charges brought against you in Australia, and advice to me is that it is not clear how the affidavit would have assisted the defence in undermining Agent Lamas' credibility. In any event, the CDPP has confirmed that the document was not in its possession at the time of the trial. Judicial Warnings You claim that if the contents of the affidavit were known to the defence, the defence would have had a basis for persuading the trial judge to give the jury a warning in relation to the reliability of Agent Lamas' evidence. Your argument is premised on the basis that, if you had sought a warning on the basis that Agent Lamas' affidavit rendered his testimony unreliable, the judge would, "almost certainly have been asked and have been obliged to give a direction to the jury along the lines described in subsection 165(2) of the Evidence Act 1995 (Cth). However, subsection 165(3) clarifies that a judge may refuse such a request 'if there are good reasons' for doing so. The Full Court, in its consideration of Agent Lamas' affidavit, was of the view that the disclosure of the affidavit to the defence and trial court would not have assisted your case. Advice to me is that had the Full Court thought that the affidavit affected the reliability of Agent Lamas' evidence, it is highly unlikely that the court would have commented that: the appellant has not demonstrated any way in which [the documents relevant to the US charges, including Agent Lamas' affidavit] might have strengthened his defence. In our view, they could not have done so. As noted above, I am advised that the reference to importation to the US was an undetected error in Agent Lamas' affidavit, and that it is highly unlikely that a judge would have viewed this error as sufficient to warrant a warning that Agent Lamas' evidence may be unreliable. I therefore find no proper basis for making the decision you seek. 6 As I have said, this is an application pursuant to the ADJR Act. The grounds are said to be: 1. Improper exercise of power, s 5(2)(b) of the ADJR Act, 2. The Minister failed to take into account relevant considerations, in that the applicant's petition was based in part on 'unreliable evidence' of the Crown's principal witness, and grounds of challenge not previously considered, 3. The Minister failed to consider as a whole the applicant's Petition in its entirety, 4. The Minister erred in 'second guessing' what the Court of Appeal might make of (a) the non-discloser of evidence, (b) 'unreliable testimony' of the Crown's principal witness, (c) and if a 'judicial warning' as described in Subsection 165 (2) of the Evidence Act 1995 (Cth.) should have been given if the non-disclosed evidence was before the original Court. 5. The Minister failed to take into account or even properly consider all relevant authorities that the applicant referred to in his petition. The reference in paragraph 1 above to s 5(2)(b) should presumably refer to s 5(2)(e), however no such argument was advanced. 7 The application for review appears to be based upon a belief that Mr Lamas' affidavit discloses statements which are false, and that such falsity might have been used as a basis for attacking his credibility at the trial. The applicant submits that the following matters might have been put to him: Why did: • You the US Customs Agent file a Criminal Complaint/Arrest Warrant based on your sworn affidavit in regards to the accused, in which the petitioner was arrested in, and detained in the United States. • You the US Customs Agent swear your affidavit, before and witness by a United States District Judge, stating that their (sic) was a conspiracy to import into the United States, if this was not true. • You the US Customs Agent personally appeared in the US District Court on 3 separate occasions in relation to the alleged conspiracy by the accused to import into the United States, if this was not true. • You the US Customs/US Prosecutor file a document titled "Withheld from Case File" in relation to your Affidavit/statement of the US Customs Agent, thus suppressing, non-disclosure of your sworn statement from the defense and the accused. • You the US Customs/US authorities file a document titled; 'Order of Dismissal' to withdraw all charges that were filed by the you the US Customs agent some 14 days later, where by avoiding an appearance before the grand jury as you the US Customs/US authorities had no evidence to support the US offence of Conspiracy in relation to the accused. 8 The applicant's point seems to depend upon the fact that he was arrested on 4 May for an offence against United States law, which prosecution was terminated on or about 22 May in circumstances which do not appear from the material. It may well be an available inference that the United States authorities charged the applicant with the offence against US law as a way of "holding" him pending arrival of a request for extradition. However it does not necessarily follow that the charge was without merit or that, had extradition not been granted, they would not have re-instituted it. The basis on which he was held between the discontinuance of the proceedings on 22 May and the subsequent request for extradition is not clear. However it has not been suggested that anything turns upon that point. 9 As far as I can see from the statement of the offence as charged, and the content of Mr Lamas' affidavit, including the circumstances in which the vessel was intercepted and arrested in Moreton Bay, there was a sufficient basis for the US charge. Whether I am correct about that or not, there seems to be no basis upon which it could be assumed that the statements made by Mr Lamas, or his conduct would have yielded anything of benefit to the applicant in the conduct of his defence. As the Minister observed, the Full Court previously noted the strength of the case against him. Such strength was also identified by the High Court. 10 In any event, the application is for judicial review. It is not an appeal from a decision of the Minister. The question is whether or not he gave appropriate consideration to the particular matter, namely the possible use of Mr Lamas' affidavit, and otherwise to the subject matter raised by the applicant in his petition. As far as I can see, the substance of the applicant's petition depended on the Lamas affidavit. The Minister gave detailed consideration to that question, having regard to the advice that he had received. I see no basis for review of that decision. The application should therefore be dismissed. 11 I note that since the earlier decision of the Full Court, the High Court has delivered judgment in Moti v The Queen (2011) 245 CLR 456. I mention that decision only because there was, at some stage in this matter, a suggestion that there may have been misconduct by Australian authorities incidental to the applicant's extradition to Australia. I am not sure whether that decision has relevance to some of the observations made by the Full Court, nor am I sure that the challenge to such conduct was actually raised before the Full Court. 12 I order that the applicant pay the respondent's costs of the proceedings. I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett.