Lodhi v Attorney General (NSW)

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Court of Appeal

New South Wales
Case Title: Lodhi v Attorney General of New South Wales
Medium Neutral Citation: [2013] NSWCA 433
Hearing Date(s): 5 August 2013
Decision Date: 18 December 2013
Before: Bathurst CJ at [1];
Beazley P at [2];
Basten JA at [3]
Decision:

(1) Dismiss the summons seeking leave to appeal from the decision of McClellan CJ at CL as incompetent.

(2) Dismiss the summons seeking review pursuant to s 69 of the Supreme Court Act 1970 of the decision of McClellan CJ at CL.

(3) In the exercise of its power under s 73A of the Jury Act 1977, and such other jurisdiction as may be available in the administration of criminal justice, the Court requests the Sheriff to investigate whether a member of the jury which convicted the applicant of charges under the Criminal Code (Cth) in June 2006 may have been ineligible to serve as a juror pursuant to Sch 2, item 12 of the Jury Act 1977.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords: ADMINISTRATIVE LAW - judicial review - whether juror in criminal trial ineligible - application to Sheriff to investigate - refusal by Supreme Court to consent to investigation - whether exercise of judicial or administrative function - whether ancillary to the exercise of judicial power - whether judge required to give reasons

CRIMINAL LAW - immunity of jury from investigation - effect on deliberations - power to investigate miscarriage in relation to conviction of federal offence

JURISDICTION - conviction for federal offence - request to NSW Sheriff to investigate improper conduct of juror - no appeal available against conviction - possible application under Part 7 of Crimes (Appeal and Review) Act 2001 (NSW) - whether exercise of federal jurisdiction

PROCEDURE - whether leave required to institute proceedings - leave not required under Felons (Civil Proceedings) Act 1981 (NSW), s 4

WORDS AND PHRASES - "improper conduct" - Jury Act 1977 (NSW), s 73A
Legislation Cited: Constitution, s 80; Ch III
Crimes (Appeal and Review) Act 2001 (NSW), ss 74, 76, 77, 78, 79, 81; Divs 2, 3, 4; Pt 7
Criminal Code (Cth), s 101; Pt 5.3
Criminal Code (Qld), s 672A
Felons (Civil Proceedings) Act 1981 (NSW), s 4
Judiciary Act 1903 (Cth), ss 2, 68
Jury Act 1977 (NSW), ss 29, 53A, 53B, 68, 68A, 68B, 73A; Sch 1, item 3; Sch 2, items 11, 12
Supreme Court Act 1970 (NSW), ss 69, 101
Cases Cited: Application of Pearson [1999] NSWSC 143; 46 NSWLR 148
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Details
Case
[2013] NSWCA 433
Decision Date

CaseChat Overview and Summary

In Lodhi v Attorney General (NSW), the applicant, who had been convicted of federal offences, sought a request from the Supreme Court of New South Wales to the Sheriff to investigate the alleged improper conduct of a juror. The applicant contended that this conduct rendered the juror ineligible to serve, potentially leading to a miscarriage of justice. The matter came before Bathurst CJ, Beazley P, and Basten JA of the Supreme Court of New South Wales.

The central legal issues before the Court were whether the Supreme Court's function in consenting to or requesting an investigation by the Sheriff into a juror's conduct was an exercise of judicial power or an administrative function, and whether such a function, in the context of a completed trial where no appeal was available, could be considered ancillary to the exercise of judicial power. The Court also considered whether the applicant was required to obtain leave to institute proceedings, particularly in light of the *Felons (Civil Proceedings) Act 1981* (NSW).

The Court reasoned that while a judge's consent to an investigation during a trial might be considered ancillary to judicial power, the situation changed once the trial was concluded and no appeal rights remained. In such circumstances, the function was not judicial or ancillary to judicial power, but rather akin to supervisory powers concerning executive intrusions, such as the issuing of warrants. The Court drew parallels with cases where the issuing of warrants by judges was classified as an administrative function, subject to judicial review. Consequently, the Court found that the *Felons (Civil Proceedings) Act* was not engaged as no proceedings were involved in the request for an investigation.

The Court dismissed the summonses seeking leave to appeal and review of the decision of McClellan CJ at CL as incompetent. However, in the exercise of its power under section 73A of the *Jury Act 1977* (NSW) and other available jurisdiction in the administration of criminal justice, the Court ordered that the Sheriff be requested to investigate whether a member of the jury that convicted the applicant of federal charges in June 2006 may have been ineligible to serve.

Orders

Orders of the court

(1) Dismiss the summons seeking leave to appeal from the decision of McClellan CJ at CL as incompetent.

(2) Dismiss the summons seeking review pursuant to s 69 of the Supreme Court Act 1970 of the decision of McClellan CJ at CL.

(3) In the exercise of its power under s 73A of the Jury Act 1977, and such other jurisdiction as may be available in the administration of criminal justice, the Court requests the Sheriff to investigate whether a member of the jury which convicted the applicant of charges under the Criminal Code (Cth) in June 2006 may have been ineligible to serve as a juror pursuant to Sch 2, item 12 of the Jury Act 1977.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

To the extent that the applicant seeks a request from this Court to the Sheriff, in the exercise of an administrative function, no proceedings are involved and accordingly the Felons (Civil Proceedings) Act is not engaged.Nature of decision of Supreme Court The consent sought from the Supreme Court would, if granted, permit the Sheriff to carry out an investigation into suspected improper conduct by a member of a jury. The section is broad enough to cover proposed investigations both during and after a trial. The function exercised by the Supreme Court in requesting or consenting to an investigation may not be the same in each circumstance. Thus, where reason to suspect improper conduct arises during the course of a trial, so that steps can be taken before the jury delivers their verdict, the judge required to give consent or make a request to the Sheriff will almost certainly be the trial judge. The power so exercised will then constitute part of the conduct of the trial and will thus constitute, if not an exercise of judicial power, at least the exercise of a power ancillary or incidental to the exercise of judicial power. In the present case, where the trial has been completed, the jury having delivered their verdict, the function being exercised by the Court takes on a different colour. It is possible that, where an appeal remains on foot or available, that the further steps by the Supreme Court can properly be described as ancillary to the exercise of judicial power: see Petroulias v The Hon Justice McClellan [2013] NSWCA 434. However, that is not this case; this being a case where no right of appeal remains available. The most plausible relief available, if a basis for submitting that there had been a miscarriage of justice were to arise, is the exercise of various powers under Pt 7 of the Appeal and Review Act. That being so, the Court is not exercising either judicial power or a power ancillary to the exercise of judicial power. It is closer to the supervisory powers with respect to proposed intrusions by other members of the executive (such as police officers) through the issue of a warrant. It is not in doubt that the issue by a judge of a warrant will typically involve an administrative function: see, for example, Hilton v Wells [1985] HCA 16; 157 CLR 57; Love v Attorney-General (NSW) [1990] HCA 4; 169 CLR 307 at 321. In Ousley v The Queen [1997] HCA 49; 192 CLR 69 McHugh J stated at 100:"Once the issuing of a warrant is classified as an administrative act, a person affected by that act may seek judicial review of it and have it declared void or set aside by an appropriate court or tribunal. Furthermore, since the prevailing theory is that an administrative act or order made outside jurisdiction is void, a litigant, affected by the act or order, may challenge it collaterally." The warrant in Ousley was issued by a judge of the Supreme Court of Victoria authorising installation and use of a listening device. The case involved collateral review of the validity of the warrant by a County Court judge conducting a criminal trial. Thus, Gaudron J stated at 87:"Once it is accepted, as it must be, that, even though issued by the Supreme Court, a warrant ... is not a judicial order but an instrument made in the discharge of an administrative function, it follows that its validity may be challenged in collateral proceedings, no matter the court in which those proceedings are heard."

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.