Menon v The King; Onley v The King - [2025] NSWCCA 56

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Menon v R; Onley v R [2025] NSWCCA 56
Hearing dates: 19 March 2025
Decision date: 17 April 2025
Before: Ward ACJ at [1];
Leeming JA at [2];
Harrison JA at [70]
Decision:
In each of 2017/148776 and 2024/441558 brought by Mr Menon, and 2017/149208 and 2024/464440 brought by Mr Onley:
1. Dismiss the applications for leave to appeal from the decision of Sweeney J made on 14 November 2024.
2. Dismiss the application made in this Court for a request to the sheriff to conduct an investigation.
3. Vary the non-publication orders made on 19 March 2025 so as to extend to paragraphs 50-63 of these reasons.
4. Note that in the first instance, these reasons will be provided only to the parties and not published on CaseLaw.
5. Any application to vary the extent to which the non-publication order applies to these reasons to be made by notice of motion and supporting materials and submissions to be filed and served within 14 days of today, with any materials and submissions in response from any other party to be filed and served within 14 days thereafter, and any materials or submissions in reply to be filed and served within 7 days thereafter, with a view to any such application being determined on the papers.

Catchwords:
CRIME – application for request to sheriff for investigation of potential juror impropriety pursuant to s 73A of Jury Act 1977 (NSW) – application dismissed by judge – whether application could be renewed in appellate court on same basis – where judge who presided over trial had already investigated the matter – where previous investigation took place 18 months ago in immediate aftermath of incident – where previous investigation obtained evidence on oath – prospects of second investigation resulting in different evidence speculative – application refused
JURISDICTION – nature of decision by Supreme Court judge to refuse application for request for sheriff to conduct investigation – nature of purported appeal from refusal of such application – availability of appeal under s 5F or s 22 of Criminal Appeal Act 1912 (NSW) – whether right of appeal under s 101 of Supreme Court Act 1970 (NSW) excluded by s 17 – whether decision judicial or administrative – whether decision amenable to judicial review

Legislation Cited:
Civil Procedure Act 2005 (NSW), ss 56-60
Constitution, Ch III
Court Suppression and Non-publication Orders Act 2010 (NSW), s 8
Crimes (Appeal and Review) Act 2001 (NSW), s 78
Criminal Appeal Act 1912 (NSW), ss 5F, 22
Criminal Code Act 1995 (Cth), ss 11.5, 135.4, 400.3
Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth)
Jury Act 1977 (NSW), ss 68, 73A, Sch 8
Jury Amendment Act 2024 (NSW)
Supreme Court Act 1970 (NSW), ss 17, 64, 69, 101

Cases Cited:
Attorney-General (Cth) v Huynh [2023] HCA 13; 408 ALR 684
Bajramovic v Calubaquib [2015] NSWCA 139; 71 MVR 15
Brimaud v Honeysett Instant Print Pty Ltd (1988)…

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.

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Details

Case: [2025] NSWCCA 56
Decision Date: 17 April 2025

CaseChat Overview and Summary

Two appellants, Menon and Onley, sought an appeal against the refusal of a Supreme Court judge to grant their application for a request to the sheriff to investigate potential juror impropriety under section 73A of the Jury Act 1977 (NSW). The trial judge had dismissed the application, and the appellants argued that this decision should be subject to appeal. The primary legal issue was whether the refusal of an application for a sheriff's investigation could be appealed under sections 5F or 22 of the Criminal Appeal Act 1912 (NSW) and whether the Supreme Court Act 1970 (NSW) section 101 right of appeal was excluded by section 17. The appellants also questioned whether the decision was judicial or administrative and if it was amenable to judicial review.

The court examined the nature of the decision made by the Supreme Court judge and whether it was judicial or administrative. It considered whether the refusal of the application was a decision that could be reviewed by the appellate court under the Criminal Appeal Act 1912 (NSW). The court noted that the refusal of such an application was likely a judicial decision, and the appealability of such a decision under the Criminal Appeal Act 1912 (NSW) was scrutinised. The court determined that the refusal of the application was a judicial decision and thus subject to appeal under the Criminal Appeal Act 1912 (NSW). However, it also noted that the Supreme Court Act 1970 (NSW) section 101 right of appeal was excluded by section 17, meaning that the refusal of the application for a sheriff's investigation could not be appealed on the same basis.

In light of the above, the court dismissed the appeal. The court found that the refusal of the application for a sheriff's investigation was a judicial decision, but it was not subject to appeal on the same basis due to the exclusion of the Supreme Court Act 1970 (NSW) section 101 right of appeal by section 17. The court concluded that the decision was final and could not be appealed further on the same grounds.

Orders