Jakaj v Kinnane (No 2)

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.