Rizeq v Western Australia

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HIGH COURT OF AUSTRALIA

KIEFEL CJ,
BELL, GAGELER, KEANE, NETTLE, GORDON AND EDELMAN JJ

JOHN RIZEQ  APPELLANT

AND

THE STATE OF WESTERN AUSTRALIA  RESPONDENT

Rizeq v Western Australia

[2017] HCA 23

21 June 2017

P55/2016

ORDER

Appeal dismissed.

On appeal from the Supreme Court of Western Australia

Representation

M D Howard SC with J S Stellios and R R Joseph for the appellant (instructed by Minter Ellison Lawyers)

P D Quinlan SC, Solicitor-General for the State of Western Australia with R Young for the respondent (instructed by State Solicitor (WA))

S P Donaghue QC, Solicitor-General of the Commonwealth with K L Walker QC and G A Hill for the Attorney-General of the Commonwealth, intervening (instructed by Australian Government Solicitor)

M G Sexton SC, Solicitor-General for the State of New South Wales with S Robertson for the Attorney-General for the State of New South Wales, intervening (instructed by Crown Solicitor (NSW))

P J Dunning QC, Solicitor-General of the State of Queensland with F J Nagorcka for the Attorney-General of the State of Queensland, intervening (instructed by Crown Solicitor (Qld))

M E O'Farrell SC, Solicitor-General of the State of Tasmania with S K Kay for the Attorney-General of the State of Tasmania, intervening (instructed by Crown Solicitor for Tasmania)

R M Niall QC, Solicitor-General for the State of Victoria with S Gory for the Attorney-General for the State of Victoria, intervening (instructed by Victorian Government Solicitor)

C D Bleby SC, Solicitor-General for the State of South Australia with L K Byers for the Attorney-General for the State of South Australia, intervening (instructed by Crown Solicitor (SA))

Notice:  This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

Constitutional law (Cth) – Courts – State courts – Federal jurisdiction – Diversity jurisdiction – Where appellant resident of New South Wales – Where appellant indicted for offence against law of Western Australia – Where matter between State and resident of another State within meaning of s 75(iv) of Constitution – Where District Court of Western Australia exercising federal jurisdiction – Whether provisions of State Act picked up and applied as Commonwealth law – Whether s 79 of Judiciary Act 1903 (Cth) operates in respect of s 6(1)(a) of Misuse of Drugs Act 1981 (WA) – Whether s 79 of Judiciary Act 1903 (Cth) operates in respect of s 114(2) of Criminal Procedure Act 2004 (WA).

Criminal law – Appeal against conviction – Where trial by jury in federal jurisdiction – Where majority verdict of guilty returned – Whether unanimous jury verdict required by s 80 of Constitution – Whether majority jury verdict permitted under s 114(2) of Criminal Procedure Act 2004 (WA).

Words and phrases – "accrued jurisdiction", "diversity jurisdiction", "Federal Judicature", "federal jurisdiction", "jurisdiction", "matter", "picked up and applied", "power", "State jurisdiction", "State legislative capacity", "trial by jury".

Constitution, ss 75(iv), 80.
Criminal Procedure Act 2004 (WA), s 114(2).
Judiciary Act 1903 (Cth), ss 39(2), 79, 80.
Misuse of Drugs Act 1981…

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Details
Case
[2017] HCA 23
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered an appeal by John Rizeq, a resident of New South Wales, against his convictions for offences under the *Misuse of Drugs Act 1981* (WA). Mr Rizeq was indicted in the District Court of Western Australia, which was exercising federal jurisdiction because the matter was between a State and a resident of another State, as contemplated by s 75(iv) of the Constitution. The jury returned a majority verdict of guilty, which was accepted by the District Court under s 114(2) of the *Criminal Procedure Act 2004* (WA), leading to Mr Rizeq's conviction.

The central legal issues before the High Court were whether the provisions of the *Misuse of Drugs Act 1981* (WA) and the *Criminal Procedure Act 2004* (WA) were validly applied by the District Court when exercising federal jurisdiction, and whether s 80 of the Constitution, which mandates a jury trial, required a unanimous verdict in these circumstances. Specifically, the Court had to determine the operation of s 79 of the *Judiciary Act 1903* (Cth) in relation to the relevant State legislation.

The High Court reasoned that s 79 of the *Judiciary Act* is intended to fill gaps in Commonwealth law when a court is exercising federal jurisdiction, by adopting applicable State laws. However, it distinguished between provisions that define the offence itself and procedural provisions. The Court held that s 6(1)(a) of the *Misuse of Drugs Act 1981* (WA), which created the offence, applied directly and was not dependent on s 79 of the *Judiciary Act* for its force. In contrast, s 114(2) of the *Criminal Procedure Act 2004* (WA), which permitted majority verdicts, was a procedural provision that would be picked up and applied by s 79 of the *Judiciary Act* if necessary. Because the offence provision applied directly, s 80 of the Constitution was not engaged in a way that would invalidate the majority verdict.

The appeal was dismissed.

Orders

Orders of the court

Appeal dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

KIEFEL CJ BELL, GAGELER, KEANE, NETTLE AND GORDON JJ
In any event, if there are statements in these cases which are to be understood in the way for which the appellant contends, they cannot be regarded as concluding the question presently before the Court. The question whether s 79 of the Judiciary Act must pick up a provision like s 6(1)(a) of the MDA for it to have force and effect was neither argued nor discussed in those cases.Conclusion Section 79 of the Judiciary Act is directed to courts. Its purpose is to fill the gaps created by a lack of Commonwealth law governing when and how a court exercising federal jurisdiction is to hear and determine a matter and the inability of a State law to apply directly to that court whilst exercising federal jurisdiction. In such a case it is necessary that s 79 adopt the State provision and apply it. Section 114(2) of the Criminal Procedure Act is a provision of this kind. Section 6(1)(a) of the MDA is not. Its application was unaffected by the fact that the offence it created was tried in federal jurisdiction. It was not necessary for s 79 of the Judiciary Act to adopt it. Section 6(1)(a) of the MDA applied directly. It follows that s 80 of the Constitution was not engaged. The appeal should be dismissed. Introduction This appeal raises questions of systemic significance about the sources of law in federal jurisdiction and about the operation of s 79 of the Judiciary Act 1903 (Cth). The State of Western Australia, through its Director of Public Prosecutions, indicted Mr John Rizeq, a resident of New South Wales, in the District Court of Western Australia on two charges of offences against s 6(1)(a) of the Misuse of Drugs Act 1981 (WA). After a trial by a jury of 12 persons, the jury was unable to reach a unanimous verdict on either charge. The decisions of 11 of the 12 jurors were taken by the District Court to be verdicts of guilty under s 114(2) of the Criminal Procedure Act 2004 (WA). The District Court accordingly convicted Mr Rizeq of both offences. Mr Rizeq sought leave to appeal against the convictions to the Court of Appeal of the Supreme Court of Western Australia under Pt 3 of the Criminal Appeals Act 2004 (WA). The Court of Appeal granted leave to appeal on two grounds but dismissed the appeal[46]. Mr Rizeq now appeals, by special leave, to this Court from the dismissal by the Court of Appeal of his appeal on one of those grounds. [46]Hughes v Western Australia (2015) 299 FLR 197. Mr Rizeq's argument on the appeal proceeds from an uncontested premise. The premise is that the controversy as to his criminal liability which was the subject of his indictment by the State of Western Australia was a matter between a State and a resident of another State within the meaning of s 75(iv) of the Constitution, as a consequence of which the District Court was exercising federal jurisdiction under s 39(2) of the Judiciary Act in conducting the trial and entering the convictions[47].[47]See Momcilovic v The Queen (2011) 245 CLR 1 at 68-69 [99], 82 [139]; [2011] HCA 34.

Ratio Decidendi

Legal Principle Established

Established by: KIEFEL CJ, BELL, GAGELER, KEANE, NETTLE AND GORDON JJ

Full text does not contain this section.