Nudd v The Queen [2006] HCA 9

HIGH COURT OF AUSTRALIA

GLEESON CJ,

GUMMOW, KIRBY, HAYNE, CALLINAN AND HEYDON JJ

KEVIN PHILIP NUDD APPELLANT

AND

THE QUEEN RESPONDENT

Nudd v The Queen

[2006] HCA 9

9 March 2006

B22/2005

ORDER

Appeal dismissed.

On appeal from the Supreme Court of Queensland

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))

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

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".

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

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 Birks[3], Ignjatic[4], TKWJ v The Queen[5], and Ali v The Queen[6], 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 King[8], this Court said: