Baker v New South Wales Police

[2013] NSWSC 57

Supreme Court

New South Wales

Medium Neutral Citation:	Baker v New South Wales Police [2013] NSWSC 57
Hearing dates:	31 January 2013
Decision date:	07 February 2013
Jurisdiction:	Civil
Before:	Latham J
Decision:	Amended Summons dismissed with costs
Catchwords:	JUDICIAL REVIEW - nature of judicial review - Commonwealth Constitution, s 80 - no right to trial by jury in the Local Court - no right to trial by jury in the Supreme Court - Commonwealth Constitution is not a law of the Commonwealth - Commonwealth Constitution, s 72 - magistrates are validly appointed under the Local Court Act - Governor of New South Wales is validly appointed
Legislation Cited:	Supreme Court Act 1970 NSW Constitution Magna Carta 1297 Petition of Right 1627 Habeas Corpus Act 1640 Bill of Rights 1688 Imperial Acts Application Act 1969 (NSW)
Cases Cited:	Craig v South Australia (1995) 184 CLR 163 Attorney General (NSW) v Quin (1990) 170 CLR 1 Sergi v Director of Public Prosecutions [1991] NSWCA 244 Byrnes v R (1999) 199 CLR 1 Road Transport (Safety and Traffic Management) Act 1999 (NSW) Road Transport (General) Act 2005 (NSW) Galea v New south Wales Egg Corporation [1989] NSWCA 81 Sankey v Whitlam (1978) 142 CLR 1 Wilson v State of New South Wales [2001] NSWSC 880 Perpetual Ltd v Kelso [2008] NSWSC 906 St George Bank v Udowenko [2010] NSWSC 1289
Category:	Principal judgment
Parties:	Cyril Brett Baker - (Plaintiff) NSW Police Force - (Defendant)
Representation:	Solicitors Sef-Represented - (Plaintiff) G Namey - (Defendant)
File Number(s):	12/106554

Judgment

1. The plaintiff filed an amended summons in this Court on 14 May 2012 seeking judicial review under s 69B of the Supreme Court Act 1970 (NSW) of proceedings against him in the Tamworth and Quirindi Local Courts for traffic offences. He was convicted of failing or refusing to undergo a breath test, refusing to produce a licence and state name, exceeding the speed limit by more than 10km per hour, and failing or refusing to undergo a breath analysis.

1. The summons claims prerogative relief in the nature of certiorari and mandamus, seeking the setting aside of the orders of the Local Court on the basis that the plaintiff was deprived of his "inalienable right to trial by jury" and requiring two magistrates and two prosecuting police officers "to perform their duty ... as a servant of the Crown". The plaintiff further seeks damages in the sum of $250,000.00.

1. The claim for damages is outside the ambit of judicial review for the reasons explored below. The plaintiff's argument is that he was entitled to a trial by jury on the summary charges against him and that, following the setting aside of the orders, any further proceedings against him in the Local Court on these charges must be before a jury.

1. A further document headed "Challenge to the Jurisdiction of the Court" was filed by the plaintiff on 24 April 2012. It seeks an order from the Court that the judicial review proceedings be heard by a jury, and that a jury find that this Court has no jurisdiction to hear the judicial review proceedings without a jury.

1. This latter relief claimed by the plaintiff appears internally inconsistent, in that, assuming that the Court has no jurisdiction to entertain the proceedings without a jury, it follows that it has no power to make any order, including that the matter proceed before a jury (assuming that such an order was available). However, putting that issue to one side, there are fundamental flaws in the plaintiff's argument with respect to his asserted right to trial by jury on summary charges and before this Court.

Judicial Review

1. The availability of certiorari proceeds from the exercise of this Court's original jurisdiction in supervising the acts of an inferior court, that is the Local Court. Judicial review is not an appellate procedure which is capable of generally reviewing the order or decision of the Local Court or substituting that order or decision with one that this Court thinks should have been made. Certiorari allows the original order or decision to be quashed on one or more of a number of distinct grounds, usually jurisdictional error (which includes a failure to observe procedural fairness), fraud and error on the face of the record : Craig v South Australia (1995) 184 CLR 163 at 175 - 6.

1. To the extent that an inferior court falls into jurisdictional error, it does so if it :-

mistakenly asserts or denies the existence of jurisdiction or if it misapprehends or disregards the nature or limits of its functions or powers in a case where it correctly recognises that jurisdiction does exist. Jurisdictional error is at its most obvious where the inferior court purports to act wholly or partly outside the general area of its jurisdiction in the sense of entertaining a matter or making a decision order of the kind which wholly or partly lies outside the theoretical limit of its functions and powers.

Craig at 177

1. The Court is not concerned with the merits of the decision below. The extent of this Court's power on a judicial review application is to declare and enforce the law which determines the limits of the power of the inferior court and governs the exercise of that power. The scope of judicial review is defined "not in terms of the protection of individual interests but in terms of the extent of power and the legality of its exercise." : Attorney General (NSW) v Quin (1990) 170 CLR 1 at 36. It is no part of a judicial review exercise to award damages for any type of jurisdictional error committed by the inferior court.

1. Judicial review is therefore solely concerned with questions of law. It is not within the ambit of judicial review to revisit issues of fact. Putting to one side the other bases of the plaintiff's case, there is no warrant to order a jury in circumstances where questions of fact do not arise.

1. It is within the discretion of the Court to make orders in the nature of prerogative relief. One factor against the exercise of discretion to make such orders is where a more convenient and satisfactory remedy exists, such as a statutory right of appeal. Where, as here, an appeal lies from conviction or sentence from the Local Court to the District Court, and where the plaintiff proposes to exercise that right, the discretion to grant relief ought be sparingly exercised : Sergi v Director of Public Prosecutions [1991] NSWCA 244.

The Plaintiff's Submissions

1. The plaintiff filed 28 pages of written submissions. Those submissions are repetitive and difficult to follow. At the hearing of the matter, the plaintiff was given the opportunity to speak to his written submissions, but declined to do so after he was informed that a jury would not be ordered to determine the matter. The plaintiff maintained that this Court had no jurisdiction to hear the matter in the absence of a jury. What follows is a summary of the plaintiff's argument as it appears from the written submissions.

1. Essentially, the plaintiff contends that :-

(1) He has a right to trial by jury and that s 8 of the Local Court Act 2007 (NSW) and s 40 of the Supreme Court Act 1970 (NSW) are inconsistent with s 80 of the Constitution and are thereby invalid, and

(2)   The magistrate erred in denying the plaintiff a jury trial on the traffic offences, and

(3)   The appointment of magistrates to the Local Court and judges to the higher courts are invalid on the ground that the Governor-General of Australia and the Governor of NSW have not been validly appointed.

The Right to Trial by Jury

1. The plaintiff claims an "inalienable and constitutional right to trial by jury" by calling in aid s 80 of the Constitution, Magna Carta 1297, the Petition of Right 1627, Habeas Corpus Act 1640 and the Bill of Rights 1688. All but the Constitution are imperial enactments listed in Schedule 2 to the Imperial Acts Application Act 1969 (NSW).

1. Section 80 of the Constitution provides that the trial on indictment of any offence against any law of the Commonwealth shall be by jury. The section is therefore clearly limited on its face to offences against the Commonwealth. Section 80 has no application to offences under State law : Byrnes v R (1999) 199 CLR 1 at 31 - 31 and 38 - 39

1. The proceedings in the Local Court related to traffic offences that were dealt with summarily under State law, being offences against the Road Transport (Safety and Traffic Management) Act 1999 (NSW) and the Road Transport (General) Act 2005 (NSW).

1. The proceedings in this Court as I have already explained, are in the nature of judicial review proceedings which arise out of the plaintiff's convictions on the traffic offences. These proceedings are not in relation to an offence against the law of the Commonwealth.

1. The plaintiff's reliance on the Imperial Acts Application Act is misguided. Section 6 of that Act effectively preserved the specific imperial enactments in the Second Schedule of the Act to the extent that they were not affected by State Acts from time to time in force in New South Wales. Assuming that there was legislation preserved by section 6 of the Imperial Acts Application Act that enshrined the right to a trial by jury in NSW, any State legislation providing otherwise would nonetheless be valid and effective. In the Galea v New South Wales Egg Corporation [1989] 81 NSWCA 81, Kirby P noted that s 6 allowed for the modification of the continuing application of the Imperial Acts by any future legislation enacted by State Parliament.

1. The Local Court proceedings were conducted according to the Criminal Procedure Act 1986 (NSW) and the Local Court Act 2007 (NSW). That legislation in summary provides that the Local Court proceedings the subject of this application are to be dealt with by a single magistrate of the Local Court. The offences are summary offences pursuant to s 6 (1) (c) of the Criminal Procedure Act because the maximum penalty for all of the offences does not exceed imprisonment for more than two years. Section 7 (1) of the Criminal Procedure Act provides that an offence that may be dealt with summarily is to be dealt with by the Local Court. The Local Court is established pursuant to s 7 of the Local Court Act. Section 8 provides that all proceedings in the court are to be heard and determined by a magistrate.

1. The proceedings in this Court are governed by s 40 of the Supreme Court Act which provides that a single judge shall constitute the Court. Section 85 (1) provides that proceedings in any Division of the Court are to be tried without a jury, unless the Court orders otherwise.

1. Accordingly, there is no right to trial by jury in the Local Court or in this Court.

1. The plaintiff's argument with respect to the invalidity of the State legislation relies upon s 109 of the Constitution which provides that any law of the State to the extent that it is inconsistent with a law of the Commonwealth is invalid. However, the Constitution is not a law of the Commonwealth : Sankey v Whitlam (1978) 142 CLR 1 at 31, 73 - 74, 92 - 93, and 106.

1. In any event, s 80 of the Constitution does not restrict the legislative power of the State in that it only applies to indictable offences under Commonwealth law.

1. Challenges to the validity of s 40 of the Supreme Court Act on the basis of s 80 of the Constitution have previously been considered and rejected by this Court. In Wilson v State of New South Wales [2001] NSWSC 880 this argument was put and rejected by Dunford J. To similar effect are other decisions : Perpetual Ltd v Kelso [2008] NSWSC 906 and St George Bank v Udowenko [2010] NSWSC 1289.

The Validity of Judicial Appointments

1. The plaintiff relies upon s 72 of the Constitution which provides that Justices of the High Court and judicial officers in other courts created by Federal Parliament shall be appointed by the Governor-General. He relies upon a number of e-mails which were provided to the Court as annexures to his written submissions. Those e-mails appear to be responses from the Privy Council indicating that no order exists by which various past Governors-General of Australia have been appointed.

1. The next limb of the plaintiff's argument is that the magistrate at Tamworth Local Court was not validly appointed under the Local Court Act because the Governor of New South Wales had not been validly appointed.

1. Once again, the plaintiff's argument is misguided. Section 72 of the Constitution applies only to the appointment of judicial officers to courts created by the Parliament of the Commonwealth. Magistrates are appointed pursuant to s 13 of the Local Court Act whereby the Governor of the State may, by Commission under the Public Seal of the State, appoint any qualified person to be a magistrate. The plaintiff has not identified any irregularity in the appointment of magistrates under the Local Court Act.

1. Similarly, there is no evident irregularity in the appointment of the Governor of New South Wales. Neither the Privy Council nor the Governor-General of Australia appoints the Governor of New South Wales. The person occupying that office is appointed under the Public Seal of the State.

1. In conclusion, there is no merit in any of the plaintiff's arguments. The Amended Summons is dismissed with costs.

Decision last updated: 26 March 2013