Nudd v R

• Jurisdiction: Australia Federal only
• Court: High Court
• Judge: Gleeson CJ,Gummow,Hayne JJ,Kirby J,Callinan,Heydon JJ
• Judgment Date: 09 March 2006
• Neutral Citation: 2006-0309 HCA A,[2006] HCA 9
• Docket Number: B22/2005
• Date: 09 March 2006

[2006] HCA 9

HIGH COURT OF AUSTRALIA

Gleeson CJ, Gummow, Kirby, Hayne, Callinan and Heydon JJ

B22/2005

Kevin Philip Nudd

Appellant

and

The Queen

Respondent

Representation:

M J Byrne QC with C J N Eberhardt for the appellant (instructed by Graham Lawyers)

A J Rafter SC with G R Rice for the respondent (instructed by Director of Public Prosecutions (Commonwealth))

Criminal Code (Q), s 668E(1).

Nudd v The Queen

Criminal Law — Trial — Miscarriage of justice — Competence of counsel — Alleged failure to take instructions — Alleged failure to understand elements of offence and relevant statutory provisions — Alleged failure to be familiar with applicable judicial decisions.

Appeal — Criminal appeal — Miscarriage of justice — Competence of counsel — Application of ‘proviso’ — Whether denial of fair trial may sometimes without more amount to miscarriage of justice.

Legal practitioners — Criminal trial — Competence of counsel and of solicitor — Alleged failures to take instructions, to understand elements of offence and to consider applicable judicial decisions — Extent to which, if at all, alleged incompetence contributed to any miscarriage of justice — Whether in some circumstances miscarriage of justice includes denial of fair trial according to law without more.

Words and phrases — ‘on any ground whatsoever there was a miscarriage of justice’.

ORDER

Appeal dismissed.

1 Gleeson CJ. Following a trial in the Supreme Court of Queensland, before Philippides J and a jury, the appellant was convicted of being knowingly concerned in the importation into Australia of cocaine. He was sentenced to a lengthy term of imprisonment. He says that his conviction involved a miscarriage of justice, and blames his trial counsel.

2 The appellant appealed unsuccessfully to the Court of Appeal of the Supreme Court of Queensland 1. The jurisdiction invoked was that conferred by s 668E of the Criminal Code (Q), which is in a form similar to the statutory provisions governing criminal appeals in the other Australian States and Territories 2. The statutory ground of appeal was that there was a miscarriage of justice. That, as was said in R v Birks3, Ignjatic4, TKWJ v The Queen5, and Ali v The Queen6, defined the issue to be decided. The appellant's criticisms of the conduct of his trial counsel were relevant to the issue 7, but the issue was whether there was a miscarriage of justice.

3 In this context, the concepts of justice, and miscarriage of justice, bear two aspects: outcome and process. They are different, but related.

4 In Davies and Cody v The King8, this Court said:

‘From the beginning, [the English Court of Criminal Appeal] has acted upon no narrow view of the cases covered by its duty to quash a conviction when it thinks that on any ground there was a miscarriage of justice, a duty also imposed upon the Supreme Court of Victoria … It has consistently regarded that duty as covering not only cases where there is affirmative reason to suppose that the appellant is innocent, but also cases of quite another description. For it will set aside a conviction whenever it

appears unjust or unsafe to allow the verdict to stand because some failure has occurred in observing the conditions which, in the court's view, are essential to a satisfactory trial, or because there is some feature of the case raising a substantial possibility that, either in the conclusion itself, or in the manner in which it has been reached, the jury may have been mistaken or misled.’

5 This emphasis upon outcome and process as requirements of justice according to law is fundamental and familiar. It informed the explanation of miscarriage of justice given by Barwick CJ in Ratten v The Queen9:

‘Miscarriage is not defined in the legislation but its significance is fairly worked out in the decided cases. There is a miscarriage if on the material before the court of criminal appeal, which where no new evidence is produced will consist of the evidence given at the trial, the appellant is shown to be innocent, or if the court is of the opinion that there exists such a doubt as to his guilt that the verdict of guilty should not be allowed to stand. It is the reasonable doubt in the mind of the court which is the operative factor. It is of no practical consequence whether this is expressed as a doubt entertained by the court itself, or as a doubt which the court decides that any reasonable jury ought to entertain. If the court has a doubt, a reasonable jury should be of a like mind. But I see no need for any circumlocution; as I have said it is the doubt in the court's mind upon its review and assessment of the evidence which is the operative consideration.

That is one instance of a miscarriage: another is where the appellant has not had a fair trial. There is no need here to refer to the various circumstances in which a trial may become unfair. Some of these are mentioned in the reasons of the Full Court. But it may be that even where there have been irregularities at the trial there may be no miscarriage of justice if the court forms the opinion that no jury of reasonable men, properly instructed and alive to their responsibilities, would fail on the evidence to convict the accused.’

6 The common statutory provision governing criminal appeals, of which s 668E of the Queensland Code is an example, covers matters of both outcome and process, referring to jury verdicts which are unreasonable or cannot be supported having regard to the evidence, to wrong decisions (of a judge) on any question of law, and to any other ground for concluding that there was a miscarriage of justice. These grounds for allowing an appeal are followed by a qualification, often referred to as a proviso, to the effect that, even if a point raised by the appellant has been made out, the appellate court may dismiss the

appeal if it considers that no substantial miscarriage of justice has actually occurred. The proviso was considered recently by this Court in Weiss v The Queen10. The concluding sentence in the passage from the judgment of Barwick CJ in Ratten adopted a formula sometimes used to explain the practical effect of the proviso. What is significant for present purposes is the qualified manner in which Barwick CJ expressed himself. Some irregularities ‘may’ involve no miscarriage of justice if the appellate court forms a certain opinion about the strength of the case against the appellant. The corollary of that proposition is that a defect in process may be of such a nature that its effect cannot be overcome by pointing to the strength of the prosecution case. It is impossible to state exhaustively, or to define categorically, the circumstances in which such a defect will occur. In Mraz v The Queen11, Fullagar J said that ‘every accused person is entitled to a trial in which the relevant law is correctly explained to the jury and the rules of procedure and evidence are strictly followed’ and that, if there is a failure in any of those respects ‘and the appellant may thereby have lost a chance which was fairly open to him of being acquitted’, then there is a miscarriage of justice. That well-known passage relates the failure of process to the loss of a chance of acquittal. Even though it is impossible and undesirable to attempt to reduce miscarriages of justice to a single formula, there is at least one circumstance in which a failure of process cannot be denied the character of a miscarriage of justice on the ground of the appellate court's view of the strength of the prosecution case. That is where the consequence of the failure of process is to deprive the appellate court of the capacity justly to assess the strength of the case against the appellant. There may be other circumstances in which a departure from the requirements of a fair trial according to law is such that an appellate court will identify what occurred as a miscarriage of justice, without undertaking an assessment of the strength of the prosecution case. If there has been a failure to observe the conditions which are essential to a satisfactory trial and, as a result, it appears unjust or unsafe to allow a conviction to stand, then the appeal will be allowed.

7 The concept of miscarriage of justice is as wide as the potential for error. Indeed, it is wider; for not all miscarriages involve error. Process is related to outcome, in that the object of due process is to secure a just result. Justice, however, means justice according to law, and the observance of the requirements of law according to which a criminal trial is to be conducted has a public as well as a private purpose. An unjust conviction is one form of miscarriage. Another is a failure of process of such a kind that it is impossible for an appellate court to decide whether a conviction is just. Another is a failure of process which departs from the essential requirements of a fair trial.

8 Where it is claimed that a miscarriage of justice of the second kind referred to in Davies and Ratten has occurred, the appellate court is primarily concerned with what happened at, or in relation to, the trial of the appellant; an investigation of why it happened is ordinarily irrelevant, and often impractical. It is natural for a person aggrieved by the outcome of a criminal trial to seek to assign blame, but where a miscarriage of justice is said to arise from a failure of process, it is the process itself that is judged, not the individual performance of the participants in the process. If a trial judge fails to instruct a jury on an essential point of law, the explanation might be that the judge was inexperienced, or ill, or absent-minded, or temporarily distracted by other concerns. That would be irrelevant. It is the acts and omissions of the judge that matter; not personal failings or problems that might account for those acts or omissions....