Walker v The Queen

The parties before the High Court of Australia were the applicant, Mr. Walker, and the respondent, The Queen. The dispute concerned Mr. Walker's application for the removal of criminal proceedings against him from the District Court of New South Wales to the High Court, and an associated application for bail. Mr. Walker had been convicted of offences under the Crimes Act 1900 (NSW) but had not yet been sentenced.

The primary legal issues before the High Court were whether the proceedings should be removed to the High Court's jurisdiction, and whether bail should be granted pending the determination of that removal application. The applicant's argument for removal was predicated on the assertion that the customary criminal laws of the Noonuccal people, to which he, as a Noonuccal person residing in Queensland, was subject, had become part of the laws of New South Wales. He contended that the trial judge had failed to give adequate consideration to these laws, thereby raising a question of inconsistency with section 118 of the Constitution.

The Court considered the applicant's submissions regarding the survival and applicability of Aboriginal customary law, noting the lack of specificity regarding the particular Noonuccal or Bundjalung laws invoked and the fact that the convictions were for offences unrelated to customary law. The respondent argued that the applicant's grounds for removal, particularly concerning alleged bias and the failure to recognise customary law, were matters more appropriately dealt with by way of appeal to the Court of Criminal Appeal, rather than a removal application to the High Court. The Court also noted that the applicant had not provided sufficient detail to establish the specific customary law that was allegedly breached or how it applied to the offences for which he was convicted.

The Court ultimately determined that the application for removal was not yet properly before it, and that the bail application was being considered in the context of the existing convictions in the District Court. The Court indicated that if the matter were removed, the bail application would take on a different complexion. Given the lack of specificity regarding the customary law and the nature of the convictions, the Court found that the applicant had not demonstrated a likelihood of success in the removal application, nor had he established exceptional circumstances warranting bail at that stage.