Jakaj v Kinnane (No 2) - [2020] ACTCA 28

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL

Case Title:	Jakaj v Kinnane (No 2)
Citation:	[2020] ACTCA 28
Hearing Date:	7 May 2020
DecisionDate:	11 June 2020
Before:	Burns, Elkaim and Mossop JJ
Decision:	The orders of the Court are: 1. Appeal dismissed. 2. No order as to costs.
Catchwords:	JUDICIAL REVIEW – APPEAL – Appeal from primary judge’s judicial review of a decision of a magistrate – whether Territory courts’ jurisdiction depends upon judges and magistrates swearing or affirming allegiance to the Queen – whether the prosecution must give evidence that legislation is validly passed – whether appellant discriminated against under s 117 of the Constitution – whether prosecution required to be brought in the name of the Crown – appeal dismissed JUDICIAL REVIEW – APPEAL – Notice of Appeal in the form of written submissions – jurisdictional point taken but no oral submissions made in support of the appeal – whether reasons required to be given for dismissal of appeal
Legislation Cited:	Acts Interpretation Act 1901 (Cth), ss 6, 15A Australian Capital Territory (Self-Government) Act 1988 (Cth), ss 7, 22 Australian Road Rules, r 300 Bill of Rights 1688 1 Will and Mary sess 2 c 2 Commonwealth of Australia Constitution Act 1900 (Imp), cls 2, 5, s 42, 58, 117, 118 Court Procedures Rules 2006 (ACT), r 3356(5), Div 6.10.2 Crimes Act 1900 (ACT), s 282 Crimes (Forensic Procedures) Act 2000 (ACT), s 92 Director of Public Prosecutions Act 1990 (ACT), s 6(c)(ii) Evidence Act 2011 (ACT), ss 141, 143 High Court of Australia Act1979 (Cth) Interpretation Act 1967 (ACT), s 20 Interpretation of Legislation Act 1984 (Vic), s 53 Judiciary Act 1903 (Cth), s 80 Justice (Northern Ireland) Act 2002 (UK), s 19 Legislation Act2001 (ACT), s 26 Magistrates Court Act 1930 (ACT), Sch 1, ss 10P, 19, 25, 54, 114, 208(1)(c) Magistrates Court (Civil Jurisdiction) (Amendment) Act 1997 (ACT) Oaths and Affirmations Act 1984 (ACT), s 6 Road Transport (Safety and Traffic Management) Regulations 2000 (ACT), regs 5, 11 Supreme Court Act 1933 (ACT), Sch 1, s 19 Supreme Court (Amendment) Act (No 2) 1993 (ACT) Supreme Court (Amendment) Act (No 7) 2001 (ACT)
Cases Cited:	Acuthan v Coates (1986) 6 NSWLR 472 Capital Duplicators Pty Ltd v Australian Capital Territory (1992) 177 CLR 248 Flowers v State of New South Wales [2020] NSWSC 526 Heyward v Bishop [2015] ACTCA 58; 73 MVR 426 Jakaj v Kinnane [2019] ACTSC 71 Jakaj v Kinnane [2020] ACTCA 19 Makucha v Sydney Water Corporation [2013] NSWCA 177 Palmer v City of Gosnells [2013] WASC 446
Parties:	Eduard Jakaj (Appellant) Magistrates Court of the Australian Capital Territory (First Respondent) Damien Kinnane (Second Respondent)
Representation:	Counsel Self-represented (Appellant) K McCann (Second Respondent)
Solicitors Self-represented (Appellant) ACT Director of Public Prosecutions (Second Respondent)
File Number:	ACTCA 16 of 2019
Decision under appeal:	Court/Tribunal: Supreme Court of the ACT Before: McWilliam AsJ Date of Decision: 22 March 2019 Case Title: Jakaj v Kinnane Citation:

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Jakaj v Kinnane (No 2)

Details

AGLC: Jakaj v Kinnane (No 2) [2020] ACTCA 28
Case: [2020] ACTCA 28
Decision Date: 11 June 2020

CaseChat Overview and Summary

The Full Court of the Supreme Court of the Australian Capital Territory considered an appeal from a primary judge's decision concerning the judicial review of a magistrate's determination. The appellant, Mr. Jakaj, challenged the validity of his prosecution and conviction, raising several grounds related to the jurisdiction of Territory courts, the validity of legislation, and alleged discrimination. The respondent was Mr. Kinnane.

The central legal issues before the Full Court were whether the jurisdiction of Territory courts was contingent upon their judges and magistrates taking an oath or affirmation of allegiance to the Queen, whether the prosecution bore the onus of adducing evidence to prove the validity of the legislation under which the appellant was charged, and whether the appellant had been discriminated against contrary to section 117 of the Australian Constitution. Additionally, the Court considered whether prosecutions in the Territory were required to be instituted in the name of the Crown.

The Court dismissed the appeal, finding no merit in the appellant's arguments. It held that the jurisdiction of Territory courts was not dependent on the swearing of allegiance by their judicial officers. Furthermore, the Court determined that the prosecution was not required to prove the validity of legislation, as legislative validity is presumed. The Court also found no evidence of discrimination under section 117 of the Constitution and concluded that prosecutions in the Territory need not be brought in the name of the Crown. The Court noted that the appellant's notice of appeal was in the form of written submissions and that no oral submissions were made in support of the appeal, and therefore no reasons were required for the dismissal of the appeal.

The appeal was dismissed, and no order was made as to costs.

Orders

Orders of the court

The orders of the Court are:

1. Appeal dismissed.

2. No order as to costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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