Jenkins v Director of Public Prosecutions

The applicant, Jenkins, sought prerogative relief from the Supreme Court of New South Wales against the Director of Public Prosecutions and the District Court of New South Wales. The dispute arose from a criminal trial where the jury, after separating without an order under section 54(1)(b) of the Jury Act 1977, was directed by the trial judge to continue deliberations, ultimately returning a guilty verdict. The applicant contended that this direction and the subsequent convictions were affected by jurisdictional error.

The primary legal issues before the Court were whether the trial judge's direction to the jury to continue deliberations, following their separation without a formal order, constituted jurisdictional error, and consequently, whether the jury's guilty verdicts and the resulting convictions were also affected by such error. The applicant argued that the Supreme Court retained supervisory jurisdiction to address these issues, notwithstanding potential avenues for appeal under the Criminal Appeal Act 1912. The respondents contended that the applicant had a right of appeal to the Court of Criminal Appeal and that prerogative relief was not available, particularly as the jury verdict was not considered an act of the District Court against which certiorari could issue.

The Court, in its reasoning, accepted that a jury verdict constitutes an act of the District Court, making relief in the nature of certiorari potentially available to quash a conviction in appropriate circumstances. However, the Court found that the applicant's claims were not properly brought before it. The Court noted that the applicant did not challenge the trial judge's refusal to discharge the jury as an interlocutory order, but rather focused on the consequences of that refusal. Crucially, the Court determined that the appropriate procedure for setting aside a conviction, where no challenge to the conviction itself was made, lay under the Criminal Appeal Act 1912, invoking the "merger principle".

Consequently, the Court dismissed the application. The applicant was also ordered to pay the respondents' costs.