FEDERAL COURT OF AUSTRALIA

Nudd v Minister for Home Affairs [2011] FCAFC 105

THE COURT ORDERS THAT:

1.    the appellant’s notice of motion filed on 28 June 2011 be dismissed;

2.    the appeal be dismissed; and

3.    the appellant pay the respondent’s costs of the appeal.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

BACKGROUND

1    The appellant was charged in the Supreme Court of Queensland with 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”). On 22 July 2003 he was convicted and sentenced to imprisonment for a period of 22 years with a non-parole period of 11 years. The appellant appealed against his conviction, alleging a miscarriage of justice caused by the incompetence of his counsel at the trial (the “appeal against conviction”). The Court of Appeal of the Supreme Court of Queensland dismissed his appeal. The High Court granted him special leave to appeal (the “High Court appeal”). Once again the appellant argued that there had been a miscarriage of justice as a result of his counsel’s incompetence. The High Court concluded that incompetence had been demonstrated but that, nonetheless, there was no miscarriage of justice, given the strength of the Crown case. The appeal was dismissed. See Nudd v R (2006) 80 ALJR 614.

THE CASE

2    The facts of the case are summarized in the report of the decision in the High Court appeal (per Callinan and Heydon JJ) at [117]-[148]. We will not set them out in detail. It is sufficient to say that:

    on 3 May 2001 a yacht was intercepted in Moreton Bay, carrying a cargo of cocaine;

    the yacht was manned by one Jackson1;

    he had sailed from Mexico to Noumea and on to Moreton Bay;

    the appellant was living in the United States;

    his alleged involvement in the importation consisted of various acts of assistance or encouragement performed outside of Australia;

    much of the evidence against the appellant was derived from intercepted telephone conversations;

    a warrant for the appellant’s arrest was issued by a Justice of the Peace in Queensland;

    he was arrested in the United States on a charge of committing an offence against United States law; and

    he was subsequently extradited from the United States to Australia to stand trial.

3    In the reasons for judgment in the High Court appeal at [20] Gleeson CJ said:

The case against the appellant was overwhelming.

4    At [109] Kirby J said:

Ultimately, what convinces me the trial was not unfair (and hence that there was no miscarriage of justice of the second category) is that the prosecution evidence against the appellant was so detailed, overwhelming and in large part uncontested, that it left no significant possibility of an acquittal, otherwise open, had the appellant been differently and competently represented at the trial. In short, like Callinan and Haydon JJ, I regard the case proved against the appellant as “effectively unanswerable”.

5    Callinan and Heydon JJ said at [159]:

In the end we have come to the conclusion that the appellant was not deprived of a chance of an acquittal despite the incompetence of his counsel at the trial. This is so because we consider the case against the appellant to have been a strong one, and indeed one which was effectively unanswerable.

6    Nothing in the joint judgment of Gummow and Hayne JJ suggests a substantially different view of the facts. Their Honours considered that to the extent that there was any apparently available answer to the Crown case, successful exploitation of it would have required the appellant to give evidence, a course which their Honours, at [30], described as “fraught with danger”.

further litigation

7    One might have expected that such a comprehensive failure in the High Court would have marked an end of the matter. However the appellant has continued to pursue all avenues which might lead to the setting aside of his conviction. On 5 October 2006 he applied to the Court of Appeal for an extension of time in which to appeal (the “CA application”). Initially he sought to raise three issues, namely the validity of the arrest warrant pursuant to which he was extradited from the United States of America, the validity of the extradition process itself and the correctness of the trial Judge’s decision to discharge a juror and continue the trial with 11 jurors. Eventually, he sought only to proceed on the third ground. His application was unsuccessful, the Court of Appeal holding that his statutory right of appeal had been exhausted by his earlier appeal. An application for special leave to appeal to the High Court against that decision was refused (the “High Court application”). Kirby and Heydon JJ acknowledged that there was substantial authority for the proposition that there could be no second appeal to the Court of Appeal. Further, their Honours observed that the decision in Brownbee v The Queen (2001) 207 CLR 278 was contrary to the appellant’s complaint that his conviction by a jury of eleven was unconstitutional. Finally, their Honours considered that any challenge to the trial Judge’s exercise of her discretion (to discharge a juror and continue with 11 jurors) ought to have been raised at the trial and was not.

8    The appellant also applied to the Supreme Court in its civil jurisdiction for a declaration as to the invalidity of his conviction (the “declaration application”). Byrne J dismissed his application upon the ground that declaratory relief would serve no useful purpose and might inappropriately cast doubt upon the validity of the conviction. On appeal (the “declaration appeal”) the Court of Appeal upheld the decision. The appellant has also previously sought, in this Court, to challenge the validity of the warrant pursuant to which he was arrested and extradited from the United States. Logan J held that then pending proceedings in the Supreme Court engaged Commonwealth statutory provisions which deprived this Court of jurisdiction in the matter.

the petition

9    On 7 May 2008 the appellant’s solicitor petitioned the Governor of Queensland for a pardon pursuant to s 672A of the Queensland Criminal Code (the “Code (Q)”), requesting that her Excellency refer the matter to the Attorney General of the Commonwealth for consideration. Section 672A provides:

672A Pardoning power preserved

Nothing in sections 668 to 672 shall affect the pardoning power of the Governor on behalf of Her Majesty, but the Crown Law Officer, on the consideration of any petition for the exercise of the pardoning power having reference to the conviction of any person or to any sentence passed on a convicted person, may –

(a)    refer the whole case to the Court, and the case shall be heard and determined by the Court as in the case of an appeal by a person convicted; or

(b)    if the Crown Law officer desires the assistance of the Court on any point arising in the case with a view to the determination of the petition, refer that point to the Court for its opinion thereon, and the Court shall consider the point so referred and furnish the Crown Law Officer with its opinion thereon accordingly.

10    At first blush it seems curious that such a provision in state legislation should apply to a conviction for an offence against a law of the Commonwealth. However it is said that s 68 of the Judiciary Act 1903 (Cth) (the “Judiciary Act”) allows the Attorney-General of the Commonwealth to refer such a conviction to the Court of Appeal pursuant to s 672A(a). Both the appellant and the respondent (the “Minister”) seem to accept that proposition. There is authority for it. We proceed on that basis without determining its correctness.

11    On 27 October 2008 the Official Secretary at Government House in Brisbane wrote to the appellant’s solicitor, indicating that the Governor of Queensland did not have power to grant pardons in respect of Commonwealth offences, and that the petition should be presented to the Governor-General. It seems, however, that the appellant had, himself, already contacted the Attorney-General’s Department (the “Department”) by letter dated 23 April 2008. In a response dated 13 May 2008 an officer of the Department explained that under Commonwealth arrangements the Governor-General might grant a pardon in exercise of the royal prerogative of mercy. On 5 August 2008 another officer wrote to the appellant’s solicitor. She had apparently seen the letter of 7 May 2008 to the Governor. The officer set out the Commonwealth system in relation to pardons and advised that a reference to the Court of Appeal pursuant to s 672A was also possible. She enquired whether the appellant wished to seek a pardon or to pursue the process prescribed by s 672A. In the event, the Minister considered the availability of both forms of relief.

12    On 26 February 2009 an officer of the Department wrote to the appellant advising that consultations concerning his petition had resulted in certain issues being raised which were adverse to his case and inviting his comments. The appellant provided such comments on 24 March 2009. On 25 May 2009 and 23 July 2009 the appellant wrote, enquiring as to the progress of his petition. On 18 August 2009 he was advised that the Department was currently reviewing its processes for assessing such matters in light of the decision of this Court in Martens v Commonwealth of Australia (2009) FCR 207, and would finalize its consideration of his application after the review was completed. On 25 February 2010 the Minister wrote to the appellant, setting out the criteria which he had adopted in considering the petition and advising that:

    he was not satisfied that the appellant was morally and technically innocent of the relevant offences and therefore would not recommend a pardon; and

    as there was no significant possibility that a jury, acting reasonably, would have acquitted the appellant, he had decided not to refer the case to the Court of Appeal.

13    Detailed reasons were given. The Minister identified five different “grounds” advanced by the appellant in support of his application. The five grounds were:

    that the original warrant was invalid;

    that the yacht upon which the importation occurred was intercepted outside of Australian territorial waters;

    that there were defects in the extradition process by which the appellant was extradited from the United States to Australia for trial;

    that conviction by a jury of 11 was “unconstitutional” and/or the trial Judge erred in discharging a juror and continuing with only 11 jurors; and

    that the appellant had dissociated himself from his co-offenders prior to the time at which the yacht was intercepted.

14    Such grounds have subsequently constituted the framework within which these proceedings have been conducted. However the second ground may have been wider than as described above. It may have been further widened in the course of these proceedings.

15    The Minister summarized his reasons for rejecting each ground as follows:

•    Ground 1 – Warrant for your arrest not valid. You claim that your arrest warrant was not valid as you were not in Queensland at the time the warrant was issued and the alleged acts that led to the issuing of the warrant occurred overseas. This claim was considered by the Supreme Court of Queensland and dismissed. The Commonwealth Director of Public Prosecutions (CDPP) advises that the warrant was correctly issued under paragraph 57(a) of the Justices Act 1886 (Qld).

•    Ground 2 – The yacht was not intercepted in Australian waters. You claim that Australian courts did not have jurisdiction to hear your case as the yacht was intercepted in international waters. You base this claim on a statement by a United States Customs Agent, Agent Lamas, that the yacht was 100 nautical miles off the coast of Australia. However, Agent Lamas was in the United States and did not take part in the interception of the yacht. The Australian Federal Police and the CDPP advise that your defence counsel conceded at trial that the boat was in Australian waters. The prosecution has strong evidence to prove the location of the interception of the yacht, including evidence from officers who intercepted the yacht and a Customs Coast Watch video of the interception, in which the Queensland coast is clearly visible.

•    Ground 3 – The extradition process was flawed. You claim that the extradition process was flawed as there was insufficient evidence to show that you were involved in the importation of cocaine and because you were prematurely extradited from the United States while appeal proceedings against your extradition were still underway. The Mutual Assistance and Extradition Branch of the Attorney-General’s Department has advised that the extradition process was valid and complied with the requirements of the relevant Treaty and the Extradition Act 1988 [sic]. In addition, the actions taken by the United States’ authorities are properly matters for the United States’ courts.

•    Ground 4 – The number of jurors at the trial did not comply with constitutional and other requirements. You claim that your trial was invalid as it involved 11 jurors rather than 12, and because the trial judge did not identify a positive reason for continuing with only 11 jurors. You claim that this is inconsistent with the Jury Act 1995 (Qld) and section 80 of the Australian Constitution. You raised this ground in your application to the Queensland Court of Appeal for an extension of time in which to launch a further appeal of your conviction, after your appeals to the Court of Appeal and the High Court had been dismissed. The Court of Appeal dismissed your application for an extension of time on 15 February 2007. In dismissing your application, the Court noted that you had ample opportunity to raise your concerns about the jury in your previous appeals to the Court of Appeal and the High Court. Your claim about the jury was also referred to in your civil application for declaratory relief that was dismissed by the Supreme Court of Queensland on 30 July 2007. In dismissing that application the Judge stated that none of your complaints about invalidity of process and impropriety of Commonwealth officers’ conduct looked to have merit.

The CDPP advises that section 80 of the Constitution does not prescribe the number of jurors that should constitute a jury and that proceeding with 11 Jurors would be unlikely to constitute a miscarriage of justice.

•    Ground 5 – Disassociation. You claim that you had disassociated yourself from your co-accused Mr Jackson and were no longer involved in the conspiracy at the time the yacht was intercepted. This issue was clearly addressed at trial, where the Trial Judge found that you were aware of, and involved in, the enterprise to a substantial level.

judicial review

16    On 15 March 2010 the appellant applied, purportedly pursuant to the Judiciary Act, the Administrative Decisions (Judicial Review Act) 1977 (Cth) (the “ADJR Act”) and the Code (Q), for review of the Minister’s decision upon the following grounds:

1)    Improper exercise of power,

2)    The Minister failed to take into account relevant considerations, in that the applicants [sic] petition was based on fresh evidence and grounds of challenge not previously considered,

3)    The Minister failed to consider on the whole of the evidence as it now stands, that the applicant has presented an arguable case on the authorities for setting aside of the conviction … .

17    The appellant sought orders that the matter be remitted to the Minister for further consideration according to law and for costs. On 1 June 2010 he filed an amended application which deleted the references to the Judiciary Act and the Code (Q) as relevant “legislation and statutes”. His grounds were unchanged as was the relief sought. However, at the hearing before Collier J, the appellant pursued only his application for review of the decision not to refer the matter to the Court of Appeal. Collier J dismissed the application. This is an appeal from that decision. The parties appear to have proceeded on the basis that review under the ADJR Act was, and is available. We proceed on that basis, again without considering its correctness.

18    The Minister’s approach seems to have been based on the decision in Martens. In that case Logan J held that a relevant consideration, in exercising the power conferred by s 672A, was whether evidence was offered which might, arguably, raise a significant possibility that the jury, acting reasonably, would have acquitted. His Honour considered that such evidence had been offered, that the Minister had failed to consider it and that such failure constituted a ground of review pursuant to ss  5(1)(e) and 5(2) of the ADJR Act. We doubt whether the proposition in question should be taken as stating exhaustively the circumstances in which exercise of the power may be appropriate. Section 672A prescribes no criteria for its exercise. Although, as suggested by the Minister, a significant doubt about the correctness of a conviction would no doubt be a justifiable basis for taking either of the two contemplated courses, that may not be the only basis for doing so. It is, for example, possible that public concern about a conviction might lead to the conclusion that for political reasons or reasons of public interest, one or other of the approaches prescribed in s 672A should be adopted in order to quell such public concern, even if the decision-maker does not accept that there is any reason to doubt the correctness of the conviction or the fairness of the trial.

19    At first instance the appellant’s case seems to have been that the Minister failed adequately to consider the five grounds identified above, presumably relying upon the ground specified in s 5(1)(e) of the ADJR Act as expanded by s 5(2)(b) (failing to take a relevant consideration into account) and/or s 5(2)(g) (an exercise of a power which is so unreasonable that no reasonable person could have so exercised the power). The primary Judge considered the Minister’s treatment of each ground, concluding that the appellant had not demonstrated failure to consider any of the various matters raised by him. Her Honour concluded that there was no demonstrated basis for upsetting the Minister’s decision. Although the primary Judge seems not to have expressly dealt with any ground arising out of s 5(2)(g), it is relatively clear that her Honour’s views concerning the various criticisms of the decision must have led to her rejecting that ground.

the appeal

20    The appellant attacks the decision of the primary Judge upon the grounds that her Honour:

•    … erred in failing to find that the evidence presented was, in fact, fresh evidence which had been suppressed by the authorities.

•    … erred in failing to properly consider whether in combination of an improperly issued arrest warrant, unlawful extradition, failure of the trial judge to comply with the Jury Act of Queensland, and disassociation, together with the fresh evidence that was presented, warranted a referral to the [Minister] for further consideration according to law. The judge wrongly considered each factor separately and in isolation.

•    … wrongly characterized the case in that a substantial miscarriage of justice had been made out.

21    In arguing his appeal the appellant referred to each of the five grounds identified by the Minister. We will adopt the same approach.

Validity of the warrant

22    The appellant had, at an early stage, obtained advice from counsel that the warrant, pursuant to which he was arrested in the United States, was invalid. He provided this advice to the Minister and asserts that the latter failed properly to consider it. The appellant also submits that the validity of the warrant has never been considered by a court.

23    The advice is, in some places, a little unclear, but it seems that counsel considered that the Justice of the Peace who issued the warrant was not authorized to do so because the informant had alleged an indictable offence, and because the alleged “offending behaviour” occurred outside of Queensland. The Minister observed that this claim had been considered in the Supreme Court and dismissed. This appears to have been a reference to the declaration application before Byrne J and the declaration appeal in the Court of Appeal. The Minister also observed that he was advised that the warrant was valid. The primary Judge concluded that the Minister had appropriately considered the advice. Her Honour seems also to have considered that the validity of the warrant had been determined by the Supreme Court. In those circumstances, her Honour concluded that the appellant had not demonstrated any deficiency in the Minister’s approach to this matter.

24    Although the validity of the warrant was raised before Byrne J, his Honour disposed of the matter on the basis that declaratory relief should not be granted for discretionary reasons. His Honour did not decide the substantive question. The appeal was dismissed on the same basis. In any event the real issue is not whether the Minister considered the advice, but whether he considered the challenge to the validity of the warrant. In our view that matter is irrelevant to the application for referral to the Court of Appeal. In no way could it bear upon the fairness of the appellant’s trial or the reliability of the verdict. Notwithstanding that view, we propose to consider the validity of the warrant.

25    The Justice issued the warrant pursuant to s 57 of the Justices Act 1886 (Qld) (the “Justices Act”). His power to do so was conferred by s 29 of the Justices of the Peace and Commissioners for Declarations Act 1991 (Qld). Pursuant to s 28 of that Act, Justices, acting within the scope of their respective capacities, are Justices of the Peace for the whole of the State. Pursuant to s 57 of the Justices Act, a Justice who receives a complaint that a person is suspected of having committed an indictable offence within his or her jurisdiction, (that is, within Queensland) may issue a warrant. The reference to an “indictable offence” demonstrates that one of the bases of invalidity raised in counsel’s advice was clearly without merit. The Minister understood the appellant to assert that as he was not within Queensland at the time that the warrant was issued it was invalid. However s 57 requires only that there be a suspicion that an indictable offence has been committed within Queensland. Hence the appellant’s assertion had no merit.

26    The appellant further asserts that the warrant was invalid because his relevant conduct occurred outside of Queensland. The appellant was charged with being knowingly concerned in the importation of a prohibited import on 3 May 2001. An essential element of the offence was importation. The words “import” and “importation” are not defined for the purposes of the Customs Act. However the words have been held to mean “…landing them (goods), or bringing them within a port for the purpose of landing them in the country or place in relation to which importation is regulated.” See R v Bull (1974) 131 CLR 203 per Barwick CJ at 212, and Gibbs J at 254-255, Stephen and Mason JJ concurring with Gibbs J in this regard. It is true that the appellant’s conduct, which is said to constitute his involvement in the importation, occurred outside of Australia, although some of it involved telephone conversations with persons in Australia. The prosecution case was that his conduct was designed to facilitate the importation which occurred within Australian and within Queensland.

27    Pursuant to s 4 of the Justices Act an indictable offence is one which may be prosecuted on indictment in the Supreme Court or the District Court. In general such offences are created by the Code (Q). Section 12(3) of the Code (Q) deals with acts or omissions outside of Queensland which, together with acts or omissions occurring within Queensland would constitute an offence if all of the acts or omissions occurred in Queensland. It also deals with conduct which causes events to occur in Queensland, such that had the conduct occurred in Queensland, it would constitute an offence. In each case the section deems the overseas conduct to be an offence. Section 13 deals with conduct outside of Queensland which enables, aids, counsels or procures the commission of an offence in Queensland, deeming such conduct to be an offence. It may be that these sections are substantive rather than procedural, and that s 68 of the Judiciary Act does not apply them in the case of Commonwealth offences. Similar provisions appear in Pt 2.7 of Ch 7 of the Criminal Code 1995 (Cth). However whether that Code applies to the present offence is unclear and has not been argued. In any event, the relevant conduct involved telephone conversations to Australia which prompted conduct by others in Australia, leading to the importation. Further, the importation occurred in Queensland. In those circumstances, we conclude that the appellant was suspected of having committed an indictable offence in Queensland.

28    Sections 370 and 371 of the Police Powers and Responsibilities Act 2000 (Qld) also authorize the issue of warrants by Justices. An officer of the Australian Federal Police (the “AFP”) may not be a police officer for the purpose of applying for such a warrant (see the Dictionary), but s 68 of the Judiciary Act would nonetheless pick up the power for present purposes. There is no geographical limitation upon such power. That legislation commenced on 1 July 2000.

29    The warrant was valid, at least on the basis that there was an alleged importation into Queensland, a matter to which we now turn.

The yacht was not intercepted in Australian waters – allegedly fresh evidence

30    This heading refers to one of three relevant statements in an affidavit by a US Customs Officer, Leo Lamas, which affidavit was filed in support of an application for the appellant’s arrest in the United States on a charge arising under US law. The appellant now claims that such statements comprise fresh evidence which, with his other grounds, should have led the Minister to conclude that a jury may have acquitted had all of that evidence been before it. He also submits that the existence of these statements was concealed from him by the American authorities, acting in collusion with the AFP. The appellant asserts that Mr Lamas said that:

    … “the yacht was destined for New Zealand and was to be met by the [appellant’s] co-accused Jorge Verlarde Silva”;

    …“there was a conspiracy to import, possess and distribute that shipment of cocaine in the United States”; and

    … “the yacht was intercepted 100 nautical miles off the coast of Australia on the high seas”.

31    Both the Minister and the primary Judge seem to have dealt only with the third aspect of this allegedly fresh evidence. The history of the matter suggests that the appellant has, on two occasions, extended the ambit of this aspect of the case. As we understand it, the appellant asserted in his petition only that Mr Lamas’s affidavit comprised fresh evidence showing that the yacht was intercepted 100 nautical miles off the Australian coast. In his response to the Minister’s subsequent invitation to comment upon adverse matters, the appellant also asserted that the affidavit contained fresh evidence that there was to be an importation into the United States. The Minister did not deal with the latter matter. The primary Judge referred to both matters and to the assertion that the yacht was to travel to Australia via New Zealand. However her Honour commented only upon the interception point.

32    The appellant’s approach to this aspect of the case has been clouded by his perception that he could rely upon various provisions dealing with the prosecution’s disclosure obligations now contained in Ch 62 Div 3 of the Code (Q). However these provisions were inserted in 2003 with effect from 5 January 2004. They therefore did not apply to the appellant’s trial. The previous position in Queensland appears from the annotations to s 618 of the Code (Q) in Carter’s Criminal Law of Queensland (14th ed, Butterworths, 2004) at paras 618.15 and 618.20. In general the obligation was to disclose any statement in the possession of the prosecution which was in substantial conflict on a material issue with evidence given by the witness in the witness box. Further, the prosecution was obliged either to call any credible witness known to it, who could speak to material facts which tended to show the accused to be innocent, or to make a written statement available to the defence. Whether or not that was an exhaustive statement of the prosecution’s duty prior to the enactment of the current provisions, it appears to be sufficiently wide for the purposes of this case.

33    The appellant has, in fact, misstated the substance of Mr Lamas’s evidence concerning the route to be taken by the yacht. He seems to be referring to para 10(b) of the affidavit where Mr Lamas stated:

A person known to the [confidential informant] as “Velarde” was to meet the skipper of the ‘Sparkles Plenty’ near New Zealand in the near future; … .

34    However at para 10(c) he continued:

The “Sparkles Plenty” was en route to Australia via New Zealand.

35    These statements appear in an affidavit which describes an anticipated importation into Australia. The appellant’s point is presumably that if the yacht was sailing to Australia via New Zealand, there was a possibility that the cocaine was destined for New Zealand. However the passage suggests that the purpose in sailing via New Zealand was to meet Velarde. In any event this information was obtained on 23 May 2000, almost a year prior to the interception of the yacht. The evidence in the case, as summarised in the High Court decision at [118]-[141], suggested that during that period, the scheme had not proceeded entirely according to plan. It seems that in the end, the yacht sailed from Noumea to Australia without travelling to New Zealand. Further, there was evidence of intended distribution in Australia. This appears at [126] in the High Court reasons and at [14] in the Court of Appeal’s reasons for dismissing the appeal against conviction. The evidence disclosed references to the possibility of chartering a separate vessel for the last leg of the journey. In summary, there was not only evidence that the yacht, with its cargo, was intercepted in Australia, but also evidence from telephone intercepts that the intention was that the cocaine be distributed in Australia.

36    Assuming that the prosecution knew, or should be taken to have known about this matter, perhaps it should have been disclosed to the appellant. However, in so saying, we are counselling an abundance of caution. It is difficult to identify the use to which the appellant could have put the information. At a trial, assuming that Mr Lamas’s statement was received in evidence, it would have done no more than demonstrate that about a year before the importation, the offenders were proposing, in the near future, to travel to Australia via New Zealand, apparently to meet Velarde near New Zealand. The information came from an unidentified source, through another US Customs officer, to Mr Lamas. The fact that the actual voyage to Australia occurred a year later suggests that it was not the voyage said to be imminent in May 2000. In light of the other evidence of proposed distribution in Australia and the actual importation, it is difficult to believe that the jury would have placed any weight upon such alleged “evidence”. At best, it may have suggested a line of enquiry. If the appellant wanted to investigate such line of enquiry, he should have done so and placed any helpful outcome before the Minister. In any event, as the matter was not raised with the Minister, it cannot be a basis for a challenge to his decision.

37    The appellant also asserts that Mr Lamas said in his affidavit that there was a conspiracy to import the cocaine into the United States and to possess and distribute it there. At para 67 Mr Lamas said:

Based on the foregoing facts, and my training and experience, I believe there is probable cause to believe that Kevin Philip Nudd violated Title 21, United States Code, Section 846, by being involved in a conspiracy to distribute and to possess with the intent to distribute cocaine in the United States.

38    The affidavit was sworn in support of an application for a warrant to arrest the appellant “for violations of Title 21, United States Code, Section 846, conspiracy to distribute and to possess with the intent to distribute cocaine, a Schedule II controlled substance.” The criminal complaint recited the offence as being that:

On or about a date unknown and continuing to on or about May 3 2001, in Los Angeles county, within the Central District of California, defendant Kevin Philip Nudd and others known and unknown to the Grand Jury, conspired and …. with each other to knowingly and intentionally (a) possess with intent to distribute and (b) distribute more than five (5) kilograms of a mixture or substance containing a detectable amount of cocaine, a Schedule II controlled substance, in violation of Title 21, United States Code, Section 841(a)(1) ….

39    There was no allegation of importation into the United States or of possession or distribution there. There is no evidence of the relevant United States law. It may be that the appellant’s conduct in the United States would have constituted an offence against US law, even if the cocaine was bound for Australia. When one reads the affidavit it is quite clear that Mr Lamas was contemplating importation into Australia. At para 4 he states that the AFP was investigating a group of persons, including the appellant, “who are allegedly involved in a conspiracy to import cocaine into Australia, in violation of Australian law …”. He then refers to aspects of the AFP investigation. At para 6, he refers to information provided to him by the AFP that the appellant and others “… are part of an international narcotics trafficking organisation importing cocaine into Australia…”, and that “… the vessel being used to transport the narcotics, the Sparkles Plenty, was en route to Australia with cocaine aboard.” He then says that he was informed that on 3 May 2001 the vessel had been intercepted “approximately 100 nautical miles off the eastern coast of Australia”. There is a summary of various aspects of the evidence concerning the alleged importation, including an account of visits to Australia by Velarde and the Jacksons, and of conversations with a person called “Kevin” who was thought to be the appellant. Although there is also substantial discussion of activity within the United States, there is no suggestion anywhere in the material, other than para 67, that the cocaine was destined for importation into that country and distribution there.

40    We consider that the reference to the United States in para 67 can only be an undetected error brought about by Mr Lamas’s involvement in other cases involving possession and distribution within, and importation into the United States. Nobody reading the affidavit as a whole could possibly conclude that Mr Lamas was referring to the possibility that cocaine was destined for the United States. In those circumstances the statement would have been of no assistance to the appellant. There is no basis for inferring that a jury, properly directed, might have declined to convict upon the basis of such “evidence”.

41    We turn to the site at which the yacht was intercepted. The question was not in issue at the trial. The Minister was advised that at the outset of the trial, defence counsel conceded that the yacht was intercepted in Australian territorial waters. He had previously viewed a Customs Coast Watch video of the interception in which the Queensland coast was clearly visible. The Minister was also advised that in light of that concession, the prosecution did not, at the trial, lead other available evidence which placed the yacht within the Port of Brisbane at the time of interception. Notwithstanding the concession at the trial, the appellant now seeks to dispute that matter, relying on Mr Lamas’s statement that the yacht was intercepted 100 nautical miles off the Queensland coast. That information was supplied to him by an AFP officer, Ms Wright.

42    Were we considering this matter as a criminal appeal based on allegedly fresh evidence, the fact that the prosecution had evidence available as to the location of interception might not have been an answer to the appellant’s complaint of non-disclosure. If there was reason to believe that the appellant’s concession would not have been made had Mr Lamas’s statement been disclosed to him, then he may well have been entitled to have the evidence considered by a jury. Mr Lamas’s statement, by itself, would not have been sufficient for the appellant’s purposes at the trial. It may have put him on notice of the need to investigate the location of the interception. However, even with knowledge of Mr Lamas’s statement, the appellant has apparently not located any evidence which he could have used at the trial. He does not claim to have tried to contact Ms Wright. Further, the appellant would have had to explain the circumstances in which the concession was made, identifying ways in which the defence may have been differently conducted had he known of Mr Lamas’s statement. There is no such explanation. In any event, we are not considering a criminal appeal. We are rather hearing an appeal from a refusal to review the Minister’s decision. In reaching that decision the Minister could properly have taken into account evidence available to the prosecution at the trial, subject only to his giving the appellant notice of that evidence and an opportunity to comment upon it.

43    In fact Mr Lamas’s statement, itself, offers an explanation of this anomaly. It seems that in the same conversation Ms Wright told him that “Sparkles Plenty” was to meet with a second vessel, at a point which was 100 nautical miles off the eastern coast of Australia. One might readily infer that Mr Lamas conflated the two pieces of information. In any event, in the absence of an explanation as to how Mr Lamas’s evidence may have affected counsel’s decision to concede that the vessel was intercepted in Moreton Bay, there is no reason to believe that the provision of that statement to the appellant might have affected the course of the trial or its outcome.

The extradition process was flawed

44    We commence by observing that we doubt whether any deficiency in the extradition process could influence the Minister’s decision not to refer the matter to the Court of Appeal. It could not in any sense go to the fairness of the appellant’s trial or the reliability of the verdict.

45    The appellant’s point seems to be that he was extradited whilst appeal proceedings were still in train in the US courts. The appellant previously also asserted that the Australian government had not filed an official diplomatic note, and therefore had not satisfied the terms and conditions of the extradition treaty between Australia and the United States. He also previously submitted that the Department had supplied false and misleading information to the Minister in connection with the extradition request. In dealing with the appellant’s petition, the Minister acted on advice from the Department that the extradition process was valid and was, in any event, a matter for the United States authorities and courts. The Minister also accepted that the question of the validity of the appellant’s extradition had already been canvassed before the Court of Appeal, and that there was no basis for his argument that the Attorney-General’s Department had provided false and misleading information. On appeal, the appellant seems only to pursue the complaint that he was extradited whilst his appeal was pending in the US courts.

46    We note that despite the Minister’s statement to the contrary, the validity of the extradition has not been determined in the Queensland courts. The question was raised before Byrne J. His Honour suggested that the appellant’s prospects of success were not substantial. However the matter was disposed of on the discretionary basis to which we have referred. The Court of Appeal upheld that decision. It appears from the reasons of the Court of Appeal that an earlier attempt had been made to raise the issue before the trial Judge in an application to re-open the sentencing process. Her Honour declined to deal with the matter, apparently on the basis that it was not relevant to that application. Thus the appellant correctly asserts that no Australian court has considered the validity of the extradition process.

47    Details of court proceedings in the United States appear in the Court of Appeal reasons concerning the declaration appeal. At [5]-[7] Mackenzie J observed:

[5]    To understand the context in which the judge of the trial division dismissed the application, it is desirable to set out the history of the matter. On 6 May 2001 a warrant for the apprehension of the appellant for an offence of being knowingly concerned in the importation of cocaine into Australia was obtained following an application by officers of the first respondent to a Justice of the Peace for the State of Queensland. That warrant was passed on to the Commonwealth Attorney-General’s Department to accompany a request made by the Australian Government to the United States of America for the provisional arrest of the applicant, who was in the United States of America. The appellant was arrested in the United States on 29 May 2001. The formal request for extradition was made on 18 July 2001.

[6]    On 20 December 2001 an order was made in a United States District Court in California certifying the extradition of the appellant. During the course of those proceedings an opinion by a Queensland barrister denying the validity of the Queensland warrant was in evidence. The opinion concentrated only on the terms of the Justices Act and did not refer to any Commonwealth legislation except by identifying the Customs Act as the source of the charge; in particular s 68 of the Judiciary Act 1903 (Cth) was not referred to. In any event, the judge in California held, on the basis of authority accepted by both attorneys as binding, that it was not open to him in those proceedings to question the validity of the warrant.

[7]    The appellant then filed a petition for a writ of habeas corpus, which was denied on 31 December 2001. He was subsequently extradited from the United States, arriving in Sydney on 28 February 2002 and being brought to Brisbane on [sic] same day. He was remanded in custody. Before his removal from the United States occurred, he had appealed to the United States Court of Appeals for the Ninth Circuit, but a stay of extradition pending appeal was denied. A request to proceed in forma pauperis was also made. That application was denied, apparently 18 March 2002, and a guillotine order requiring payment of the filing fee within 21 days was made. The appeal was subsequently struck out because the appellant had failed to comply, no doubt because the correspondence had failed to reach him because he was, by that time, already in Australia.

48    The primary Judge accepted that the validity of the extradition process was a matter for the United States authorities and the United States courts. Her Honour also noted that the Minister was “clearly aware of the decision of the Court of Appeal of Queensland in Nudd QCA 60 where the Court of Appeal considered Mr Nudd’s claim that his extradition from the United States was invalid and that an abuse of process has occurred, but held that the trial Judge had not erred in refusing declaratory relief …”. However, as we have pointed out, this seems to have been a misunderstanding of those proceedings. In any event, the appellant had adequate opportunity to agitate the validity of his extradition in the United States courts. He did so and lost. Whether his extradition should have been delayed pending appeal was a matter for those courts.

49    Although the matter has not received much attention in these proceedings, it is worth noting that extradition is not primarily a creature of statute. It is a matter of agreement between governments. See Aughterson EP, Extradition: Australian Law and Procedure (Law Book Company Limited, 1995) at 2 and Nicholls C, Montgomery C and Knowles JB, The Law of Extradition and Mutual Assistance (2nd ed, Oxford University Press, 2007) at 101. The Extradition Act 1988 (Cth) (the “Extradition Act”) merely facilitates such agreements. It deals primarily with extradition from Australia, authorizing the government to give effect to extradition arrangements and regulating the procedure. It says little about extradition to Australia. The primary provisions concerning that subject are in Pt IV. Section 40 provides that extradition may only be requested on the authority of the Attorney-General. Section 41 provides that when a person is extradited to Australia, the government must surrender him or her to the appropriate authorities for trial. This is the case whether or not the extradition is pursuant to a request under s 40. In those circumstances, it seems that once the appellant had been handed over to the Australian authorities for extradition, they were obliged to act pursuant to s 41. Any irregularity in the extradition procedure was irrelevant for the purposes of Australian law. Any right to judicial review in Australia is limited to the decision to seek extradition or decisions taken in the course of making that decision.

50    There is nothing in this point.

The number of jurors

51    The appellant has argued that on a charge for a Commonwealth offence, conviction by a jury comprising fewer than 12 is not permissible, even where a juror is excused during the trial. He also challenges the way in which the trial Judge exercised her discretion to excuse the juror and to order that the trial continue with only 11 jurors. The appellant sought to raise these grounds in the CA application. The Court held that he had no right to another appeal. On the application for special leave to appeal against that decision, the High Court pointed out that the decision in Brownlee v The Queen (2001) 207 CLR 278 was authority for the proposition that a trial for an offence against Commonwealth law could continue where the jury had been reduced to ten by the discharge of jurors pursuant to relevant state legislation. In other words, there is settled authority for the proposition that such a trial is not inconsistent with the Constitution. As to any attack upon the trial Judge’s exercise of her discretion, the High Court considered that the point should have been taken at the trial. Those considerations seem to us to be absolute answers to the assertion by the appellant that these matters ought to have led the Minister to refer the matter to the Court of Appeal.

Disassociation

52    The appellant asserts that he had, prior to the interception of the yacht, withdrawn from whatever arrangements were in place concerning the commission of the offence. The Minister considered that the issue had been addressed at the trial. As much appears from the reasons of McMurdo J in the appeal against conviction at [45]. Further, the trial Judge, in sentencing the appellant, said:

Your counsel submitted that the evidence shows that you sought to disassociate yourself from the importation and that that is a matter to be considered in mitigation. In this respect your counsel relied, inter alia, on certain comments made by you to Peter Jackson, your failure to travel to Brisbane in March 2001 and the absence of evidence after 7 March 2001 of further contact or meetings with Jackson. However, the comments relied upon in that regard by counsel merely indicate that you were not prepared to associate with certain individuals who you thought might draw attention to themselves.

Indeed, after those comments were made you in fact met with Jackson at LA airport and I am satisfied that you did so in respect of the importation of the drugs. Furthermore, the evidence indicates that your stated purpose in travelling to Brisbane was related to a gym business which you wish to set up and I am not able to draw the inference contended for by your counsel in respect of your failure to travel to Brisbane. I am unable to find that you disassociated yourself from the venture as urged by your counsel.

53    The Minister was clearly correct in concluding that the matter had been considered at trial. There can be no sensible basis for revisiting the matter.

Conclusion

54    In addition to his reliance upon each of these grounds, the appellant asserts that their cumulative effect, with the evidence at trial, ought to have led the Minister to refer the matter to the Court of Appeal. Where fresh evidence emerges, it must be considered in the context of the evidence otherwise led at the trial. However we cannot see how the overall effect of the evidence at trial and the “fresh” evidence is of any benefit to the appellant. The validity of the warrant and any flaws in the extradition process simply do not go to the fairness of the trial or to the reliability of the verdict, particularly given the operation of s 41 of the Extradition Act. The question concerning the number of jurors has no merit and must be completely discounted. The question of disassociation ought to have been raised before the jury and apparently was. As to the “fresh” evidence concerning the location of the yacht at the time of interception, no proper basis has been demonstrated for allowing the appellant to depart from the concession made at trial. As to the other two areas of “fresh” evidence, both depend upon inaccurate readings of Mr Lamas’ affidavit. Further, for reasons which we have given, any apparent significance does not withstand close examination. In the circumstances there was no substantial basis upon which the Minister could have referred the matter to the Court of Appeal.

ONE FINAL MATTER

55    On 16 June 2011, after these reasons had been prepared, the appellant wrote to the District Registrar, advising her that he had received certain documents from the Department pursuant to the Freedom of Information Act 1982 (Cth) (the “FOI Act”). It seems that in late 2010, the appellant had made a request under the FOI Act. At the date of hearing of this appeal (4 March 2011) the Department had not finally responded but did so on 13 May 2011. On 28 June 2011 the appellant again wrote to the Registrar, attaching the documents received from the Department and a notice of motion seeking an order that the:

Appeal Application … be reopened on the grounds that:

The Appellant recently received evidence/documents from the Commonwealth Attorney General’s FOI Department that clearly establishes that the authorities had evidence in their possession which was withheld from the Applicant’s defence team during the course of the trial and appeal process.

56    The disclosed documents were:

    the criminal complaint dated 4 May 2001 prepared by the US Customs Service, pursuant to which the appellant was initially arrested in the United States;

    the order dated 18 May 2011, dismissing that complaint; and

    a third document, being a number of pages identified as FOI 2 to FOI 24, all of which are blank other than for short statements relating to the Freedom of Information process.

57    The Department referred to the “supporting affidavit of the US Customs Service dated 4 May 2011”, presumably that of Mr Lamas. We infer that the blank pages are supposed to represent his affidavit after deletion of the material to the release of which the Department objected. Various reasons were given for such non-disclosure. The complaint, the affidavit and the order were all before this Court for the purposes of the appeal, the appellant having obtained them through sources in the United States. However, at the hearing, there was some doubt as to whether such documents had been in the possession of the prosecuting authorities at the time of the appellant’s trial. As we understand the appellant’s point, it is that as the Department now has those documents, it probably had them at the time of the trial, and that they should have been disclosed to him.

58    There are numerous difficulties with this line of reasoning. First, it does not necessarily follow that the Department had the documents in question at the time of the trial. However such an inference might be drawn. Secondly, possession by the Department did not necessarily mean that the prosecution’s duty of disclosure was engaged. The Department may not have forwarded the documents to it. However we hope that the Department would have done so, had they been relevant. More significantly, it may be that the grounds upon which the Department has resisted disclosure of the affidavit would also have prevented some or all of its content being made available to the prosecution or the defence at the trial.

59    In the end, these questions are of only academic interest. First, the fact that the Department possesses these documents was not before the Minister. Secondly, we have proceeded upon the basis that the documents were in the possession of the prosecution at the trial. We have said that if so, then out of an abundance of caution, they should have been disclosed. However the appellant has not demonstrated any way in which they might have strengthened his defence. In our view they could not have done so.

ORDERS

60    The appellant’s notice of motion and appeal must be dismissed with costs.

Associate:

Dated:    19 August 2011

1. See R v Nudd [2004] QCA 154 at [13], but see Nudd v R (2006) 80 ALJR 614 at [118].