Court of Appeal
New South Wales
Case Title: Petroulias v The Hon Justice McClellan Medium Neutral Citation: [2013] NSWCA 434 Hearing Date(s): 2 August 2013 Decision Date: 18 December 2013 Before: Bathurst CJ at [1];
Beazley P at [2];
Basten JA at [6]Decision: (1) Dismiss the summons in the Court of Appeal.
(2) To the extent that there was an application for reconsideration to the Court of Criminal Appeal, dismiss the application.
[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 - alleged improper conduct by jurors - application to Sheriff to investigate - refusal by Supreme Court to approve request for investigation - whether judicial or administrative function - whether judge required to give reasons
CONSTITUTIONAL LAW - conviction for federal offence - alleged misconduct of jurors - whether Sheriff can investigate under State law - whether power within scope of jurisdiction conferred by Constitution, s 80 - whether provisions of Jury Act 1977 (NSW) inconsistent with federal law
CRIMINAL LAW - federal offence - control of jurors - post-trial request to NSW Sheriff to investigate improper conduct of jurors - undetermined appeal extant - whether approval/refusal of investigation ancillary to exercise of judicial function - whether exercise of appellate federal jurisdiction
STATUTORY INTERPRETATION - whether statute creating offence in relation to soliciting information from juror displaces general law prohibition - power of Sheriff to investigate jury irregularities - Jury Act 1977 (NSW), s 68A and 73A - whether evidence of irregularities admissible on appealLegislation Cited: Constitution, ss 77(iii), 80
Criminal Appeal Act 1912 (NSW), ss 3, 5, 12, 22
Judiciary Act 1903 (Cth), ss 39, 68, 79, 80
Jury Act 1977 (NSW), ss 55DA, 68, 68A, 68B, 68C, 73A
Supreme Court Act 1970 (NSW), ss 17, 48, 69, 101Cases Cited: Director of Public Prosecutions (ACT) v Eastman (2002) 130 A Crim R 588
Ellis v Deheer [1922] 2 KB 113
Kable v Director of Public Prosecutions (NSW) [1996] HCA 24; 189 CLR 51
Kirk v Industrial Court of New South Wales [2010] HCA 1; 239 CLR 531
Lodhi v Attorney General of New South Wales [2013] NSWCA 433
Minarowski and Koziol (1995) 83 A Crim R 78
Momcilovic v The Queen [2011] HCA 34; 245 CLR 1
Osland v Secretary, Department of Justice (Vic) [2008] HCA 37; 234 CLR 275
R v Adams (Andrew) [2007] 1 Cr App R 34 (EWCA Crim Div)
R v K [2003] NSWCCA 406; 59 NSWLR 431
R v Kaddour [20014] NSWCCA 361; 61 NSWLR 378
R v Skaf [2004] NSWCCA 37; 60 NSWLR 86
Regina v Mirza [2004]…
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Details
- Case
- [2013] NSWCA 434
- Decision Date
CaseChat Overview and Summary
The applicant, Petroulias, sought judicial review of a decision by the Honourable Justice McClellan, Chief Judge at Common Law, who refused to approve a request for the Sheriff to investigate alleged improper conduct by jurors. The dispute arose in the context of an unresolved appeal by Petroulias against a conviction for a federal offence. The core of the matter concerned whether the Sheriff could investigate jury misconduct under New South Wales law, and whether such an investigation was ancillary to the exercise of federal judicial power.
The Court of Appeal was required to determine the nature of the power exercised by Justice McClellan in refusing the investigation request. Specifically, it had to consider whether this power was judicial or administrative. If judicial, the court had to assess whether it was part of or incidental to federal criminal proceedings, thereby engaging federal law, including relevant State laws picked up by the Judiciary Act 1903 (Cth). A further issue was whether the Court of Appeal, in exercising its judicial review jurisdiction, could consider the correctness of a judge's decision not to request an investigation under section 73A of the Jury Act 1977 (NSW). If the power was administrative, the court had to consider whether State law could operate of its own force in relation to a determination made in the exercise of federal judicial power.
The Court reasoned that the parties' submissions proceeded on the assumption that the characterisation of the power as judicial or administrative was critical. If judicial, it was assumed that federal law would apply, potentially including section 73A of the Jury Act. However, the Court noted that a non-judicial power does not engage the Commonwealth's legislative power to invest a State court with federal jurisdiction. The Court observed that the engagement of the Sheriff to investigate jury misconduct was not a new function introduced by section 73A, citing *R v Kaddour* as an example of prior Sheriff inquiries. The Court ultimately dismissed the summons in the Court of Appeal and, to the extent an application for reconsideration was made to the Court of Criminal Appeal, it was also dismissed.
The Court of Appeal was required to determine the nature of the power exercised by Justice McClellan in refusing the investigation request. Specifically, it had to consider whether this power was judicial or administrative. If judicial, the court had to assess whether it was part of or incidental to federal criminal proceedings, thereby engaging federal law, including relevant State laws picked up by the Judiciary Act 1903 (Cth). A further issue was whether the Court of Appeal, in exercising its judicial review jurisdiction, could consider the correctness of a judge's decision not to request an investigation under section 73A of the Jury Act 1977 (NSW). If the power was administrative, the court had to consider whether State law could operate of its own force in relation to a determination made in the exercise of federal judicial power.
The Court reasoned that the parties' submissions proceeded on the assumption that the characterisation of the power as judicial or administrative was critical. If judicial, it was assumed that federal law would apply, potentially including section 73A of the Jury Act. However, the Court noted that a non-judicial power does not engage the Commonwealth's legislative power to invest a State court with federal jurisdiction. The Court observed that the engagement of the Sheriff to investigate jury misconduct was not a new function introduced by section 73A, citing *R v Kaddour* as an example of prior Sheriff inquiries. The Court ultimately dismissed the summons in the Court of Appeal and, to the extent an application for reconsideration was made to the Court of Criminal Appeal, it was also dismissed.
Orders
Orders of the court
(1) Dismiss the summons in the Court of Appeal.
(2) To the extent that there was an application for reconsideration to the Court of Criminal Appeal, dismiss the application.
[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
The two cases involve a number of common issues. There are, however, two respects in which the cases are materially different. First, Mr Lodhi had exhausted his rights of appeal. He was dependent upon an exercise of executive discretion, or a further non-judicial inquiry, in order to maintain proceedings which could affect his convictions and sentences. The applicant still has an appeal on foot, unresolved, in the Court of Criminal Appeal. Secondly, Mr Lodhi's concern related to the eligibility of a member of the jury who may have suffered from a disabling mental condition. An investigation into that matter required no reference to the deliberations of the jury, nor to the possible consequences of the disability, if shown to have substance, on the actual deliberations. By contrast, the investigation sought by the applicant is primarily directed to the conduct of the jury during the trial and in the course of deliberations. These factors raise issues which did not need to be addressed (and were not addressed) in the matter of Lodhi.Nature of decision under s 73A The submissions of the parties proceeded on the basis that it was necessary to characterise the power being exercised by McClellan CJ at CL as either judicial or administrative. If it were judicial, it was assumed that it was either part of or "incidental to" the criminal proceedings which involved an exercise of federal jurisdiction. In that event, the law to be applied was federal law, which included State laws relevantly picked up for the purpose by s 68 of the Judiciary Act 1903 (Cth). The question then was whether those laws included s 73A of the Jury Act. In the event that there was an exercise of federal jurisdiction and it included the consideration of powers conferred by s 73A of the Jury Act, the next question was whether this Court could, in the exercise of judicial review pursuant to s 69 of the Supreme Court Act, consider the correctness of the decision of a judge of the Court not to request an investigation. If the power conferred by the Jury Act were merely administrative, and McClellan CJ at CL was exercising such a power, but not in his judicial capacity, different questions arose. The provisions of the Judiciary Act did not render s 73A applicable with respect to the exercise by the jury of its functions under federal law. (A non-judicial power will not engage the legislative power of the Commonwealth under s 77(iii) of the Constitution to invest a State court with "federal jurisdiction", which is the provenance of ss 39(2), 68, 79 and 80 of the Judiciary Act.) Thus, absent any federal law picking up s 73A, the next question is whether such a provision of State law could operate of its own force with respect to a determination made in the exercise of federal judicial power. The engagement of the Sheriff to conduct investigations into allegations of jury misconduct was not a function which commenced with the enactment of s 73A, in 2004. That is illustrated by the judgment in R v Kaddour [2004] NSWCCA 361; 61 NSWLR 378. In that case the applicant sought to identify a juror as a person who knew him and held adverse views regarding his character and reputation: at [2] (Spigelman CJ). Certain inquiries were made by the Sheriff, who supplied information to a single judge in the Common Law Division (Dunford J). Dunford J refused the applicant's request that the material obtained by the Sheriff be disclosed to the applicant, a course which Dunford J held was precluded by s 68 of the Jury Act. (There was no discussion as to whether Dunford J was sitting as a judge of the Court of Criminal Appeal when he made the order.) The report describes the proceedings as an appeal from a decision of Dunford J. Spigelman CJ held that s 68(4) of the Jury Act "limited as it is to contempt and an offence relating to a jury, does not encompass the full range of circumstances in which the identity of the juror can give rise to the need for disclosure in order to prevent a miscarriage of justice": at [22].
Ratio Decidendi
Legal Principle Established
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