Nuttall & Anor, R. v

Factual and Procedural Background

Following a lengthy jury trial, Applicant 1 was convicted of two counts of conspiracy to place an explosive article with intent, one count of conspiracy to transfer criminal property, and two counts of failing to provide PINs or passcodes for electronic devices; Applicant 2 was convicted of the two conspiracy counts, the conspiracy to transfer criminal property, and one count of failing to comply with a notice to provide access details for a mobile phone. [Para 32][Para 33]

A co-defendant had pleaded guilty to the conspiracy counts and to two explosive-substance offences, but also stood trial on the criminal-property count; other defendants were acquitted. [Para 34][Para 35]

At sentence, Applicant 1 received an aggregate sentence of eight years and two months’ imprisonment, and Applicant 2 received an aggregate sentence of six years and six months’ imprisonment. [Para 36][Para 37]

Applicant 1 sought leave to appeal against conviction and sentence, and Applicant 2 sought leave to appeal against sentence only; the Registrar referred both applications to the full court. [Para 39][Para 40]

The prosecution case was that the conspiracy involved hoax explosive devices placed at a legal complex, surveillance and threatening notes directed at two barristers, and payments channelled through Applicant 2 to the co-defendant. [Para 46][Para 47][Para 50][Para 52][Para 54]

Legal Issues Presented

1. Whether Applicant 1’s convictions were unsafe because of alleged disclosure failures, an allegedly inadequate investigation, and asserted unfairness amounting to an abuse of process. [Para 64][Para 66][Para 73]
2. Whether the prosecution had failed to pursue reasonable lines of enquiry, such that undisclosed material should have been obtained and disclosed earlier. [Para 74][Para 76]
3. Whether the trial judge wrongly excluded bad character evidence relating to a third party, on the basis that it was neither important explanatory evidence nor substantially probative. [Para 79][Para 82][Para 96]
4. Whether the summing up was unbalanced, including its treatment of Applicant 1’s defence, the co-defendant’s evidence, and a prior conviction issue. [Para 100][Para 132][Para 136]
5. Whether count 4 was unsafe because the evidence of payments and their purpose was said to be unclear or speculative. [Para 101][Para 105][Para 149]
6. Whether the jury’s verdicts were unsafe because of alleged pressure arising from interruptions and lengthy deliberations. [Para 107][Para 113][Para 150][Para 152]
7. Whether the sentences imposed on Applicant 1 and Applicant 2 were manifestly excessive or inadequately reflected mitigation. [Para 154][Para 158][Para 167][Para 168]

Arguments of the Parties

Applicant 1’s Arguments

• Applicant 1 argued that repeated disclosure failures made the trial unfair under article 6 and the common law, and that the proceedings should have been stayed as an abuse of process. [Para 64][Para 66][Para 73]
• He also argued that the prosecution had pursued too narrow an investigation and had failed to conduct reasonable lines of enquiry into other possible sources of hostility towards the barristers. [Para 74][Para 76]
• He submitted that the exclusion of bad character evidence about a third party was wrong because it might have shown that person, rather than Applicant 1, inspired the conspiracy. [Para 79][Para 82][Para 96]
• He said the summing up was unbalanced, including by giving undue emphasis to parts of his cross-examination and by treating the co-defendant’s evidence in a way that undermined his case. [Para 100][Para 130][Para 136]
• He contended that count 4 left the jury to speculate about when payments were made and why they were made. [Para 101][Para 105]
• He further argued that the jury’s verdicts were unsafe because deliberations were interrupted and may have been pressured by time and practical constraints. [Para 107][Para 113]

Applicant 2’s Arguments

• Applicant 2 argued that the sentencing judge gave insufficient weight to his mitigation, including health-related considerations. [Para 154][Para 158][Para 168]
• Both applicants challenged the judge’s assessment of seriousness, saying the custodial terms were too severe in light of the counts charged and the way the offending was characterised. [Para 154][Para 157][Para 159]

The Crown’s Position

• The Crown submitted that the investigation was properly focused on the two barristers together, because the attack was directed at them as a team, and that the resulting limits on enquiry were reasonable. [Para 76][Para 77][Para 117]
• The Crown’s case was that eventual disclosure of the disputed material meant any complaint was really about timing, not ultimate unfairness. [Para 70][Para 72][Para 118]
• It was also said that the evidence justified the seriousness found by the sentencing judge, because the conspiracy was an attack on both the victims and the administration of justice. [Para 157][Para 159][Para 161]

Table of Precedents Cited

Court's Reasoning and Analysis

The court said it was only deciding leave applications, so a full merits judgment was unnecessary, but it nonetheless addressed the grounds in some detail. [Para 42]

On grounds 1 and 2, the court held that the investigation was sensibly confined to cases involving both barristers together, because the admitted facts showed the conspiracy was aimed at them as a team, and that there was no proper basis for treating the resulting disclosure complaints as rendering the trial unsafe. [Para 76][Para 77][Para 117]

It accepted that some material emerged late, but held that all complained-of material was eventually disclosed and deployed, so the alleged forensic disadvantage was too limited to undermine the verdicts. [Para 69][Para 70][Para 118]

On the bad character issue, the court upheld the judge’s exclusion ruling because the material about the third party did not explain the case, did not have substantial probative value on the real issue, and would have been a distraction. [Para 92][Para 96][Para 121][Para 122]

On the summing up, the court said the judge was entitled to summarise the evidence fairly, even if that meant repeating points that made Applicant 1’s position harder, and it rejected the claim that the judge had improperly disparaged the co-defendant’s evidence. [Para 122][Para 123][Para 130][Para 146]

On count 4, the court held that there was clear evidence of payments to the co-defendant through Applicant 2 and that, whether the money was payment for services or hush money, it became criminal property when received from criminal conduct. [Para 150]

On jury pressure, the court treated the interruptions in deliberations and the practical difficulties as routine in a long trial and found no basis for inferring improper pressure or unsafe verdicts. [Para 150][Para 152]

On sentence, the court endorsed the judge’s view that the offending was an exceptionally serious attack on the administration of justice, justifying a near-maximum sentence for the principal offenders and consecutive terms on the other counts. [Para 157][Para 161][Para 162][Para 163]

The court also held that Applicant 2’s health mitigation had been taken into account and did not justify interference with sentence. [Para 158][Para 168]

Holding and Implications

LEAVE TO APPEAL REFUSED on all conviction grounds advanced by Applicant 1 and on both sentence applications. [Para 153][Para 169]

The immediate consequence was that both applicants’ convictions and sentences remained in force, and the court indicated no broader new precedent beyond applying established principles to the facts of this case. [Para 153][Para 169]