Petroulias v The Hon Justice McClellan

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.