Lodhi v Attorney General (NSW)

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.