R v Nudd

SUPREME COURT OF QUEENSLAND

CITATION: R v Nudd [2007] QCA 40

PARTIES: R v NUDD, Kevin Philip

FILE NO/S: CA No 287 of 2006 / SC No 58 of 2003

DIVISION: Court of Appeal

PROCEEDING: Application for Extension (Conviction)

ORIGINATING COURT: Supreme Court at Brisbane

DELIVERED EX TEMPORE ON: 15 February 2007

DELIVERED AT: Brisbane

HEARING DATE: 15 February 2007

JUDGES: de Jersey CJ, Keane JA and Mullins J / Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER: The application for extension of time within which to appeal is dismissed

CATCHWORDS: CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PRACTICE: AFTER CRIMINAL APPEAL LEGISLATION – MISCELLANEOUS MATTERS – QUEENSLAND – PROCEDURE – EXTENSION OF TIME, NOTICE OF APPEAL AND ABANDONMENT - where applicant's previous appeal against conviction dismissed - where applicant's appeal to High Court dismissed - where applicant seeks extension of time in which to appeal on different grounds - whether court has jurisdiction to entertain a further appeal / Criminal Code 1899 (Qld), s 668D / Supreme Court Act 1991 (Qld), s 8(1) / Grierson v The King (1938) 60 CLR 431, cited / Mickelberg v The Queen (1989) 167 CLR 259, cited / R v AP [2003] QCA 445, distinguished / R v MAM [2005] QCA 323, cited / R v Pettigrew [1997] 1 QdR 601; [1996] QCA 235, distinguished R v Smith [1968] QWN 50, cited

COUNSEL: A J Kimmins for the applicant / G R Rice for the respondent

SOLICITORS: N R Barbi for the applicant / DPP (Commonwealth) for the respondent

THE CHIEF JUSTICE: I invite Justice Keane to deliver the first judgment.

KEANE JA: On 22 July 2003, the applicant was convicted upon the verdict of a jury of being knowingly concerned in bringing into Australia a quantity of cocaine in contravention of section 223B of the Customs Act 1901 (Cth). He was subsequently sentenced to a term of imprisonment.

The applicant appealed against his conviction to this Court, and upon that appeal being dismissed on 14 May 2004, to the High Court of Australia; that appeal was dismissed on 9 March 2006.

The applicant asserts that he was subsequently advised that his conviction might be challenged on the ground that the requirements of Ch III of the Constitution of the Commonwealth of Australia were not observed at his trial. In this regard, early in the trial, one juror was excused and the trial proceeded before the remaining jurors. The applicant seeks an extension of time within which to appeal again to this Court.

Initially, the applicant based his application for an extension of time to appeal his conviction on a proposed new ground that the circumstances attending his conviction did not conform to the requirements of CH III of the Constitution in that he an inalienable right to trial by jury of 12 persons.

In an argument presented to the Court by Mr Kimmins of Counsel on the applicant's behalf, the focus of attention was not upon the notion of an inalienable constitutional right to trial by jury of 12 persons, but upon the asserted failure of the learned Trial Judge to give proper consideration to the exercise of the discretion to continue the trial with only 11 jurors.

At the outset, it must be said that it is distinctly odd to speak of an application for an extension of time within which to appeal against a conviction when an appeal against the conviction has been heard and determined several years ago.

The right of appeal to this Court is created by s 668D of the Criminal Code 1899 (Qld). Once this Court has decided an appeal to it on its merits, the right of appeal conferred by s 668D of the Code is exhausted, and this Court has no jurisdiction to entertain a further appeal. That this is so is well established in a long line of authorities: see Grierson v The King (1938) 60 CLR 431; R v Smith [1968] QWN 50; Mickelberg v The Queen (1989) 167 CLR 259, especially at 287; and R v MAM [2005] QCA 323.

That the applicant wishes now to agitate grounds different to those previously argued on his behalf does not give rise to a jurisdiction in this Court to entertain a further appeal against his conviction.

Counsel for the applicant sought to argue that the decision of this Court in R v Pettigrew [1997] 1 Qd R 601; [1996] QCA 235 supports the broad proposition that this Court may entertain a further appeal where that it is necessary to prevent injustice. It is not necessary to consider the limits of the proposition said by Mr Kimmins to be supported by R v Pettigrew in order to dispose of the argument advanced for the applicant. Two points are clear and suffice to dispose of this aspect of the application:

The decision in R v Pettigrew was concerned, at least so far as the majority of the Court was concerned, with the scope of section 8(1) of the Supreme Court Act 1991 (Qld), which provides that “the Court has all jurisdiction that is necessary for the administration of justice in Queensland.” That provision has no bearing upon the construction or operation of s 668D of the Criminal Code, which creates the right of appeal against a conviction. In particular, nothing in the judgments in R v Pettigrew casts doubt upon the authorities to which reference has already been made and which establish the true construction and operation of s 668D of the Code.

R v Pettigrew did not concern an attempt to challenge a conviction again after an appeal has been finally disposed of on the merits. Rather, it was concerned with the power of this Court to “set aside an interlocutory order refusing leave to appeal … based upon a factual misapprehension shared by the parties and the Court”: see R v Pettigrew [1997] 1 Qd R 601 at 615; [1996] QCA 235 at 23.

In the present case, this Court, years ago, dealt with the applicant's appeal on its merits: see R v Nudd [2004] QCA 154. An appeal to the High Court from this Court's decision was dismissed: see Nudd v The Queen [2006] 225 ALR 161.

The applicant had, in those appeals, every opportunity to agitate the point which he now seeks to agitate. Further, the point which the applicant seeks to agitate does not concern a “factual misapprehension shared by the parties and the Court”. The applicant also sought to rely on observations made in this Court in R v AP [2003] QCA 445 at [25], where the Court recognised the possibility of serial applications for an extension of time. But it is clear that these observations did not bear upon the true construction of s 668D of the Code, and the limits on the jurisdiction of this Court to entertain a challenge to a conviction after a trial before a jury.

The Court's jurisdiction would be no more extensive if the applicant relied upon the constitutional point which he initially sought to raise.

It is, in my respectful opinion, clear that this Court must apply the authorities which establish that this Court has no jurisdiction to entertain a further appeal. It would, accordingly, be futile to grant the applicant an extension of time to allow him to institute an appeal which this Court has no lawful authority to entertain. I would, therefore, dismiss the application for an extension of time within which to appeal.

THE CHIEF JUSTICE: I agree with everything Justice Keane has said. I add only this: when the statutory right of appeal has been exhausted, there are very strong policy reasons to discourage attempts like this to re-visit the merits of the conviction.

To that end, such attempts should peremptorily be nipped in the bud, and not encouraged by any suggestion the Court may, nevertheless, be prepared to re-look at the merits, even if in summary fashion. Otherwise, undesirable uncertainty will be injected into a criminal justice system of which hallmarks should be certainty and finality.

MULLINS J: I agree with the reasons of Justice Keane and the further observations of the Chief Justice.

THE CHIEF JUSTICE: The application for extension of time within which to appeal is dismissed.