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[2026] NSWCCA 66
Court of Criminal Appeal (NSW)
2026-05-29
Kirk JA at [1]; Lonergan J at [58]; Weinstein J at [59]
Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Baker v Commissioner of Police [2026] NSWCCA 66
Hearing dates: 22 May 2026
Date of orders: 22 May 2026
Decision date: 29 May 2026
Before: Kirk JA at [1];
Lonergan J at [58];
Weinstein J at [59]
Decision: (1) Extend time to appeal to 15 May 2026.
(2) Refuse leave to appeal.
Catchwords: CRIME – Appeals – Interlocutory appeal – subpoena issued for copies of Royal Assent, proclamation certificate, certificate of authority and listing in government gazette of various statutes – subpoena set aside by primary judge – legitimate forensic purpose said to be proof of invalidity of said statutes – no legitimate forensic purpose – leave to appeal refused APPEALS – Jurisdiction of appellate court – jurisdiction of Court of Criminal Appeal to hear appeal without jury – Court constituted by judges only – no legal basis for jury to determine criminal appeals CONSTITUTIONAL LAW – Commonwealth Constitution – applicant posted s 78B notices to Attorneys-General – notice not yet received by Attorneys-General – constitutional claims frivolous, unarguable and concluded – appeal of an interlocutory nature – expedition of appeal necessary for trial to commence – in the interests of justice to proceed CRIMINAL PROCEDURE – right to trial by jury in relation to pre-trial orders – s 80 of the Commonwealth Constitution applies only to laws of the Commonwealth – no inalienable common law right to a jury trial – no accrued statutory right pursuant to Magna Carta or early State legislation CONSTITUTIONAL LAW – consistency of Royal Style and Titles Act 1973 with Commonwealth and State Constitutions – validity of any subsequent Royal Assent – no inconsistency or invalidity
Original judgment source is linked above.
Legislation Cited: Australia Act 1986 (Cth) ss 2, 3
Australian Capital Territory (Self‑Government) Act 1988 (Cth) s 22(1)
Common Law Procedure Act 1899 (NSW)
Commonwealth Constitution ss 80, 109
Constitution Act 1902 (NSW) ss 5, 8A, 9A(2)
Criminal Appeal Act 1912 (NSW) s 5F
Criminal Procedure Act 1986 (NSW) ss 130, 130A, 131, 132, 227
District Court Act 1858 (NSW)
District Court Act 1912 (NSW)
District Court Act 1973 (NSW) ss 11, 76A
Imperial Acts Application Act 1969 (NSW) ss 6, 7
Interpretation Act 1987 (NSW) ss 13(a), 30(1)
Judiciary Act 1903 (Cth) s 78B
Magna Carta
Royal Style and Titles Act 1973 (Cth)
Supreme Court Act 1970 (NSW) s 5
Supreme Court (Criminal Appeal) Rules 2021 r 3.5
Supreme Court Procedure Act 1900 (NSW)
Cases Cited: ADCO Constructions Pty Ltd v Goudappel (2014) 254 CLR 1; [2014] HCA 18
Athavle v New South Wales (2021) 290 FCR 406; [2021] FCA 1075
Australian Competition and Consumer Commission v C G Berbatis Holdings Pty Ltd (1999) 95 FCR 292; [1999] FCA 1151
Baker v Attorney General for New South Wales [2013] NSWCA 329
Baker v New South Wales Police [2013] NSWSC 57
Baker v NSW Police Force [2014] NSWSC 907
Byrnes v The Queen (1999) 199 CLR 1; [1999] HCA 38
Galea v NSW Egg Corporation [1989] NSWCA 81
Glennan v Federal Commissioner of Taxation [2003] HCA 31; (2003) 77 ALJR 1195
Joosse v ASIC [1998] HCA 77; (1998) 73 ALJR 232
Kartinyeri v Commonwealth of Australia (1998) 195 CLR 337; [1998] HCA 22
Maules Creek Coal Pty Ltd v Environmental Protection Authority (2023) 112 NSWLR 507; [2023] NSWCCA 275
Newell v The King (1936) 55 CLR 707; [1936] HCA 50
NSW Commissioner of Police v Cottle (2022) 276 CLR 62; [2022] HCA 7
Prothonotary v Wilson [1998] NSWSC 26
Re Culleton [2017] HCA 3; (2017) 91 ALJR 302
Re Finlayson; Ex parte Finlayson (1997) 72 ALJR 73
Stephens v The Queen (2022) 273 CLR 635; [2022] HCA 31
Union Steamship Co of Australia Ltd v King (1988) 166 CLR 1; [1988] HCA 55
Vunilagi v The Queen (2023) 279 CLR 259; [2023] HCA 24
Wilson v State of New South Wales [2001] HCATrans 623
Texts Cited: Anne Twomey, The Constitution of New South Wales (Federation Press, 2004)
Category: Principal judgment
Parties: Cyril Baker (Applicant)
Commissioner of Police (Respondent)
Representation: Self-represented (Applicant)
A Deards, solicitor (Respondent)
Solicitors:
Makinson D’Apice (Respondent)
File Number(s): 2024/00171837 & 2024/00172272
Publication restriction: Nil
[This headnote is not to be read as part of the judgment]
The applicant, Cyril Baker, has been charged with two counts of intimidation with the intention of causing fear of physical or mental harm and two counts of using an offensive weapon with intent to commit an indictable offence. He was listed to face trial by jury in the District Court on 25 May 2026.
On 13 November 2025 he served a subpoena seeking production from the “NSW Police Force” of “(i) a Certified Copy of the Royal Accent [sic – Assent], (ii) a Certified Copy of the Proclamation Certificate (not Commencement Proclamation) signed by the Governor/Governor-General, (iii) a Certified Copy of the Certificate of Authority and, (iv) a Certified Copy of the Listing in the Government Gazette” in relation to some 25 statutes and other instruments. The Commissioner of Police filed a notice of motion seeking that the subpoena be set aside. At the hearing of the motion in the District Court, the applicant challenged the primary judge’s jurisdiction on the basis that the applicant had a right for the motion to be tried by jury and had filed a requisition to that effect. The primary judge determined that he had jurisdiction to proceed without a jury and granted the motion on the basis that the subpoena was without legitimate forensic purpose.
The applicant sought leave to appeal (out of time) on the basis that he had a legal right to have pre-trial matters determined by a jury sourced in either the Commonwealth Constitution, inalienable common law rights, or accrued statutory rights deriving from the Magna Carta or early State law. He also argued that the legislation which conferred jurisdiction on the primary judge was invalid for want of lawful Royal Assent due to inconsistency between the Royal Style and Titles Act 1973 (Cth) and the Commonwealth and State Constitutions, and that the subpoena had the legitimate forensic purpose of proving the invalidity of the statutes and instruments it listed along with “all legislation from all parliaments in the Commonwealth, coming into force since 1973”. The applicant argued that the appeal itself should be determined by a jury.
The applicant considered that the appeal involved a matter arising under the Constitution or involving its interpretation, and accordingly filed a notice pursuant to s 78B of the Judiciary Act 1903 (Cth) and posted it to the Attorneys-General. He told the Court at the hearing that he had not sought to send the notice electronically, and agreed that none of the Attorneys would have received it yet.
The Court (Kirk JA, Lonergan and Weinstein JJ agreeing) held, extending time but refusing leave to appeal:
(1) It was in the interests of justice for the matter to proceed despite the absence of due notice to the Attorneys-General pursuant to s 78B. The applicant’s constitutional claims may readily be described as frivolous, unarguable and concluded. The applicant was appealing interlocutory decisions and it was important that the appeal be dealt with expeditiously given his jury trial was listed to commence on the next business day after the hearing of the appeal: [23].
Re Finlayson; Ex parte Finlayson (1997) 72 ALJR 73; Glennan v Federal Commissioner of Taxation [2003] HCA 31; (2003) 77 ALJR 1195; Australian Competition and Consumer Commission v C G Berbatis Holdings Pty Ltd (1999) 95 FCR 292; [1999] FCA 1151, cited.
Re Culleton [2017] HCA 3; (2017) 91 ALJR 302; Athavle v New South Wales (2021) 290 FCR 406; [2021] FCA 1075, referred to.
(2) In the circumstances the time for filing the appeal should be extended: [26].
(3) There is no legal basis to suggest that this Court does not have jurisdiction or power to hear the application or that the applicant has a right to request the application be heard by a jury in this Court: [29].
(4) Leave to appeal should be refused. There is a significant public interest in the applicant proceeding to trial and having his charges determined without interruption by the appellate process. The applicant has previously made very similar submissions before the Supreme Court and the Court of Appeal. That an applicant disagrees with established legal principle does not, of itself, mean that the case raises an issue of legal principle worthy of a grant of leave to appeal. In any case, none of the issues raised by the applicant are reasonably arguable: at [32]-[34].
Maules Creek Coal Pty Ltd v Environmental Protection Authority (2023) 112 NSWLR 507; [2023] NSWCCA 275; Baker v Attorney General for New South Wales [2013] NSWCA 329; Baker v New South Wales Police [2013] NSWSC 57; Baker v NSW Police Force [2014] NSWSC 907, referred to.
(5) The applicant had no legal right to have pre-trial matters tried by a jury. Section 80 of the Commonwealth Constitution applies only to offences under federal laws: at [43]. It is within the plenary power of the State Parliament to regulate or dispense with jury trials in criminal matters at [44]. Any rights under the Magna Carta or early State law are capable of being overridden by later State law: at [45]-[51].
Byrnes v The Queen (1999) 199 CLR 1; [1999] HCA 38; Vunilagi v The Queen (2023) 279 CLR 259; [2023] HCA 24; Union Steamship Co of Australia Ltd v King (1988) 166 CLR 1; [1988] HCA 55, cited.
Newell v The King (1936) 55 CLR 707; [1936] HCA 50; Kartinyeri v Commonwealth of Australia (1998) 195 CLR 337; [1998] HCA 22; ADCO Constructions Pty Ltd v Goudappel (2014) 254 CLR 1; [2014] HCA 18; Stephens v The Queen (2022) 273 CLR 635; [2022] HCA 31; Galea v NSW Egg Corporation [1989] NSWCA 81; Prothonotary v Wilson [1998] NSWSC 26, referred to.
(6) There is no inconsistency of the kind asserted between the Royal Style and Titles Act and the Commonwealth or State Constitutions: at [52]-[55].
Joosse v ASIC [1998] HCA 77; (1998) 73 ALJR 232, cited.
Baker v Attorney General for New South Wales [2013] NSWCA 329, referred to.
(7) The subpoena had no legitimate forensic purpose. Any relevance it might have had was premised on the argument that the Royal Style and Titles Act is inconsistent with the Commonwealth or State Constitutions: at [56]-[57].
KIRK JA: The applicant is Mr Cyril Brett Baker, who identifies himself as “cyril brett baker”. He has been charged with two counts of intimidation with the intention of causing fear of physical or mental harm and two counts of using an offensive weapon with intent to commit an indictable offence. The charges relate to events in March and April 2024. Mr Baker was first charged in May 2024. He was due to face trial by jury in the District Court in December 2025 but that hearing was vacated. Mr Baker’s trial was subsequently listed to commence before Krisenthal DCJ (the primary judge) and a jury on 25 May 2026.
On 13 November 2025 Mr Baker served a Subpoena to Produce seeking production from the “NSW Police Force”. The Commissioner of Police filed a Notice of Motion dated 3 February 2026 seeking that the Subpoena be set aside. On 13 April 2026 the primary judge determined the Motion, deciding to set aside the Subpoena. That decision forms part of the subject of this appeal. On the same day his Honour rejected an application by the applicant challenging the jurisdiction of the Court, also rejecting an argument that such pretrial matters could not be determined without a jury.
The applicant filed a notice of appeal on 15 May 2026 in circumstances outlined below. The appeal concerned interlocutory decisions. Leave to appeal was required pursuant to s 5F(3) of the Criminal Appeal Act 1912 (NSW). The appeal was also filed out of time, being more than 14 days after the decisions, and the applicant thus required leave to extend the time to file the notice of appeal: Supreme Court (Criminal Appeal) Rules 2021 rr 3.5(1), (4) and (5). The only respondent identified in the notice of appeal was the Commissioner of Police. The Crown was not joined as a party and did not appear.
This Court heard the application on 22 May 2026. As I understood it from the applicant’s written documents and oral submissions, his core arguments were as follows:
The Court of Criminal Appeal ought to have empanelled a jury to determine the appeal.
The applicant had an inalienable right to have the pre-trial matters determined by a jury pursuant to s 80 of the Commonwealth Constitution, the common law and/or an accrued statutory right. The District Court therefore had no jurisdiction to determine pre-trial issues, such as the Motion challenging the Subpoena and the challenge to the Court’s jurisdiction, without a jury.
The Criminal Procedure Act 1986 (NSW) and the District Court Act 1973 (NSW), amongst other legislation, were invalid as a whole because they had not validly been given Royal Assent. Thus the primary judge erred in exercising powers pursuant to those statutes and had no jurisdiction.
The Subpoena had a legitimate forensic purpose, being to prove the invalidity of various pieces of legislation (including those impugned in this appeal) and his Honour erred in setting it aside.
At the end of the hearing the Court made the following orders:
Extend time to appeal to 15 May 2026.
Refuse leave to appeal.
These are my reasons for joining in the making of those orders. In what follows I first outline the background to the appeal, then refer to the significance of the notice served by the applicant under s 78B of the Judiciary Act 1903 (Cth), before addressing the application for an extension of time, followed by consideration of this Court’s jurisdiction and power to determine the appeal without a jury, then dealing with Mr Baker’s application for leave to appeal. I then address each of the core arguments made by him with respect to the decisions made by the primary judge.
You are required to produce the following documents or things to the Court:
(i) a Certified Copy of the Royal Accent,
(ii) a Certified Copy of the Proclamation Certificate (not Commencement Proclamation) signed by the Governor/Governor-General,
(iii) a Certified Copy of the Certificate of Authority and,
(iv) a Certified Copy of the Listing in the Government Gazette,
for each of the following Acts, Regulations or Rules of the relevant Parliaments or government department/entity:
- Police Act 1990 (NSW) No.47,
2. Crimes Act 1900 (NSW) No.40,
3. Crimes (domestic and Personal Violence) Act 2007 (NSW) No.80,
4. District Court Act 2007 (NSW) No.93,
5. Judicial Officers Act 1986 (NSW) No.100,
6. Fines Act 1996 (NSW) No.99,
7. Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) No.103,
8. Road Transport Act 2013 (NSW) No.18,
9. Road Rules 2014 (NSW) Reg 758 of 2014,
10. Criminal Procedure Act 1986 (NSW) No.209,
11. Civil Procedure Act 2005 (NSW) No.28,
12. Interpretation Act 1987 (NSW) No.15,
13. Bail Act 2013 (NSW) No.26,
14. Sheriff Act 2005 (NSW) No. 6,
15. The Director of Public Prosecutions Act 1986 (NSW) No.207
16. Local Court Rules 2009 (NSW) Reg 589 of 2009,
17. District Court Rules 1973 (NSW) No.1
18. Local Government Act 1993 (NSW) No.30,
19. Local Land Services Act 2013 (NSW) No.51,
20. Crimes Act 1914 (Cth) No.12,
21. Criminal Code Act 1995 (Cth) No. 12,
22. Australian Road Rules 2024 (Cth),
23. The Law Enforcement Conduct Commission Act 2016 (NSW) No. 61,
24. Public Spaces (Unattended Property) Act 2021 (NSW) No. 38 and,
25. Local Court Act 2007 (NSW) No. 93.
Mr Baker asks for a jury to determine the subpoena matter as, “laws can only be decided by a jury; they are the judges of the facts and the law.”
On 30 January 2026 Mr Baker filed a document titled “Requisition for trial by jury”. It was expressed as having been filed for “Defendant, Freeman and Sui Juris”. It included a section titled “Jury Requisition” which stated “The Defendant, cyril baker requires a trial by jury”.
The Commissioner’s Motion, dated 3 February 2026, sought that the Subpoena be set aside for lack of a legitimate forensic purpose. On 30 March 2026 the applicant filed various documents, including a “Notice of Special Appearance”, a “Requisition for Trial by Jury”, and a “Challenge to the Jurisdiction of the Court”.
On 13 April 2026 the matter was listed before Krisenthal DCJ. The following issues were dealt with:
Mr Baker was arraigned. He refused to answer on arraignment. Accordingly, his Honour entered pleas of not guilty pursuant to s 155 of the Criminal Procedure Act.
Mr Baker’s application challenging the jurisdiction of the Court was heard. His argument was premised upon the fact that he had filed a “requisition for trial by jury”, and accordingly his Honour was without jurisdiction to hold a hearing in the absence of a jury, including in relation to interlocutory matters. His Honour determined that he did have jurisdiction by virtue of s 130 of the Criminal Procedure Act and indicated his reasons would be provided at a later date. They were so provided on 14 May 2026.
The Motion was heard. His Honour set aside the Subpoena pursuant to s 227 of the Criminal Procedure Act on the ground that it lacked a legitimate forensic purpose, giving reasons ex tempore.
On 4 May 2026 Mr Baker filed a notice of appeal. On 7 May 2026 the parties appeared before the Registrar of this Court. Procedural orders were made. Mr Baker filed an amended notice of appeal later that day. On 11 May 2026 the Registrar made orders for the applicant to file and serve his grounds of appeal and submissions by 13 May 2026. By 14 May 2026 the applicant had not filed his grounds of appeal and submissions and was in default of the Registrar’s orders. The Registrar determined that the matter was not ready to proceed and that in substance there were no proceedings on foot. He directed the Registry to close the proceedings in this Court.
On 15 May 2026 the applicant filed a new notice of appeal which was the subject of this appeal. The decisions the applicant sought to challenge were as follows:
The dismissing of my Requisition for Trial by Jury request. The dismissing of my Challenge to the Jurisdiction of the Court. The dismissing/setting aside of my Subpoena to Produce to the NSW POLICE FORCE
That there be a peremptory stay of proceedings to allow a Special Jury to determine the Jurisdiction of the Court. That the matter be heard by a Jury. That the subpoena be allowed.
It was not in dispute that the substantive trial of the charges against the applicant will be before a jury. What the applicant sought was that the preliminary matters relating to the Subpoena and jurisdiction be determined by a jury. The applicant filed in support of his appeal a document titled “Appeal Grounds and Submissions in Support”. That document did not disclose grounds of appeal in an orthodox form. Nevertheless, that document, taken together with the s 78B notice and the applicant’s oral submissions, raised the issues identified above at [4].
On 19 May 2026 the applicant filed a notice pursuant to s 78B of the Judiciary Act. On the morning of 21 May 2026, the day before the listed hearing of this appeal, the applicant emailed the Registrar advising that:
I will post this morning, to all the Attorney-Generals of the States (not including NSW), Territories and the Commonwealth, the copies (8) of the 78B Notice filed yesterday.
It will take some time for them to reply, from previous experience, so I do request that you postpone the CCA hearing that you have scheduled for tomorrow, to a later date, to allow them time to reply.
The applicant considered that the appeal involved a matter arising under the Constitution or involving its interpretation, and accordingly filed a s 78B notice and posted it to the various Attorneys-General. He told the Court at the hearing that he had not sought to send the notice electronically, and agreed that none of the Attorneys would have received it yet.
Section 78B of the Judiciary Act relevantly provides:
(1) Where a cause pending in a federal court including the High Court or in a court of a State or Territory involves a matter arising under the Constitution or involving its interpretation, it is the duty of the court not to proceed in the cause unless and until the court is satisfied that notice of the cause, specifying the nature of the matter has been given to the Attorneys‑General of the Commonwealth and of the States, and a reasonable time has elapsed since the giving of the notice for consideration by the Attorneys‑General, of the question of intervention in the proceedings or removal of the cause to the High Court. …
(5) Nothing in subsection (1) prevents a court from proceeding without delay to hear and determine proceedings, so far as they relate to the grant of urgent relief of an interlocutory nature, where the court thinks it necessary in the interests of justice to do so.
In terms of s 78B, a cause does not “involve” a matter arising under the Constitution or involving its interpretation merely because someone asserts that it does. That is not to say that the strength or weakness of the proposition is critical. But it must be established that the challenge does involve a matter arising under the Constitution.
[14] Section 78B does not impose on the Court a duty not to proceed pending the issue of a notice no matter how trivial, unarguable or concluded the constitutional point may be. If the asserted constitutional point is frivolous or vexatious or raised as an abuse of process, it will not attach to the matter in which it is raised the character of a matter arising under the Constitution or involving its interpretation.
The issues raised by the applicant which might be said to relate to the Commonwealth Constitution are his submissions that:
the enactment of the Royal Style and Titles Act 1973 (Cth) constituted an unlawful amendment to the Constitution, such that any Royal Assent to any State or federal legislation given following its passage was invalid so that all such legislation is invalid;
the guarantee of a jury in trials on indictment “against any law of the Commonwealth” in s 80 of the Constitution applies to offences under State law.
As is explained further below, these claims may readily be described as frivolous, unarguable and concluded. Accordingly, the duty under s 78B(1) was not enlivened. In any event, the applicant was appealing interlocutory decisions and it was important that the appeal be dealt with expeditiously given his impending jury trial, which was listed to commence on the next business day after the hearing of this appeal. In the circumstances it was in the interests of justice for the matter to proceed despite the absence of due notice to the Attorneys-General: see further eg Re Culleton [2017] HCA 3; (2017) 91 ALJR 302 at [30]; Athavle v New South Wales (2021) 290 FCR 406; [2021] FCA 1075 at [4].
Due to the protracted process (5th application) the application for this appeal has taken a long time.
I did not know that interlocutory appeals are treated as Notice of Appeal and not Notice of Intention to Appeal and would therefore lapse, hence the reason for this re-application.
The respondent opposed an extension of time. The respondent directed attention to the various iterations of the applicant’s notice of appeal, the applicant’s non-compliance with the Registrar’s directions, and the Registrar’s decision ultimately to close the first attempted appeal. The respondent submitted that the Court should not extend time for leave to appeal because the appeal is one which lacks utility given the Commissioner is highly likely to have no documents to produce in response to the Subpoena.
There is some force in those submissions. However, the respondent identified no significant prejudice; the applicant is self-represented; he has given a plausible explanation about being confused about the procedural requirements; and the reasons of the primary judge on jurisdiction were not supplied till 14 May. In those circumstances I considered time for filing should be extended.
(1) This section applies to—
(a) proceedings (including committal proceedings) for the prosecution of offenders on indictment in the Supreme Court or in the District Court, and …
(3) Any other party to proceedings to which this section applies may appeal to the Court of Criminal Appeal against an interlocutory judgment or order given or made in the proceedings—
(a) if the Court of Criminal Appeal gives leave to appeal, or …
The Supreme Court shall for the purposes of this Act be the Court of Criminal Appeal, and the court shall be constituted by 3 or more Judges of the Supreme Court or in any other way provided by this Act.
The applicant is seeking to appeal interlocutory orders. The primary judge did not certify that the orders are proper ones for determination on appeal. Accordingly, the applicant required leave to appeal pursuant to s 5F(3) of the Criminal Appeal Act. He did not make submissions specifically addressed to the question of leave.
In Maules Creek Coal Pty Ltd v Environmental Protection Authority (2023) 112 NSWLR 507; [2023] NSWCCA 275 this Court said the following in relation to granting such leave:
[73] The fact that it is open to appeal the trial judge’s order does not mean that the court should grant leave to do so. There are well-established, significant reasons for exercising restraint in granting leave to determine interlocutory disputes in criminal matters. Thus leave will not be granted readily: R v Dinh (2000) 120 A Crim R 42; [2000] NSWCCA 536 at [34]. As Johnson J explained in Agius v R (2011) 80 NSWLR 486; [2011] NSWCCA 119 at [10]:
“[10] This Court has said that leave will only be granted where the decision which is the subject of the s 5F application is attended with sufficient doubt so as to warrant the matter being argued on appeal, or where the interests of justice otherwise require the intervention of the Court at this stage of the proceedings. The court should bear in mind the undesirability of interrupting criminal proceedings by the bringing of a s 5F application. (Citations omitted)”
…
[75] ... There is a long line of authority militating against interference in the conduct of criminal prosecutions through appeals against interlocutory decisions, referring to concerns as to the dangers of fragmenting the criminal justice process. …
[76] The importance of this principle has been stressed in many other decisions of the higher courts, including Re Rozenes*; Ex* parte Burd (1994) 68 ALJR 372 at 373; [1994] HCA 11; Chief Executive Officer of Customs v Jiang (2001) 111 FCR 395; [2001] FCA 145 at [7]–[12]; Carroll v Attorney-General for New South Wales (1993) 70 A Crim R 162; and Woodhouse v Director of Public Prosecutions [2015] NSWCA 40. The harm potentially done by delayed and undetermined criminal allegations, and the strong public interest in the expeditious finalisation of such matters, was emphasised in Seymour v Attorney-General (Cth) (1984) 4 FCR 498 at 501:
“The longer such an accusation remains unresolved the greater the risk of serious harm to the community. Those risks are multifarious: the fading of witness’s recollections, the diminution of public confidence in the administration of the criminal law, the prolonging of fears and hatreds which the resolution of criminal charges tends to allay, and uncertainty as to the course which the life of the accused is to take, and not infrequently uncertainty as to the courses of other lives, are perhaps the more obvious and the most common. Those considerations of public interest are of great weight …”
The applicant was first charged just over two years ago. One trial has already been vacated. There is a significant public interest in the applicant proceeding to trial and having his charges determined without interruption by the appellate process.
As for whether issues of public importance or of principle are raised, it is relevant in that regard that the applicant previously has made very similar submissions before the Supreme Court and the Court of Appeal: Baker v New South Wales Police [2013] NSWSC 57; Baker v NSW Police Force [2014] NSWSC 907; and Baker v Attorney General for New South Wales [2013] NSWCA 329 (Baker CA). The applicant acknowledged as much before the primary judge. Those arguments were unsuccessful. That an applicant disagrees with established legal principle does not, of itself, mean that the case raises an issue of legal principle worthy of a grant of leave to appeal. In any case, none of the issues raised by the applicant are reasonably arguable for the reasons outlined below.
I therefore joined in making the order refusing leave to appeal.
Section 131 of the Criminal Procedure Act provides for criminal proceedings on indictment to be tried by a jury in the Supreme and District Courts. Section 132 makes provision for trial by judge alone in certain circumstances. That provision is not relevant in this matter. As noted, the trial of the applicant on the four charges he faces is to proceed by way of jury trial.
The decisions of the primary judge with respect to the Subpoena and the challenge to jurisdiction were made in the context of ss 130 and 130A of the Criminal Procedure Act:
130 Trial proceedings after presentation of indictment and before empanelment of jury
(1) In this section, court means the Supreme Court or District Court.
(2) The court has jurisdiction with respect to the conduct of proceedings on indictment as soon as the indictment is presented and the accused person is arraigned, and any orders that may be made by the court for the purposes of the trial in the absence of a jury may be made before a jury is empanelled for the trial.
(3) If proceedings are held for the purpose of making any such orders after the indictment is presented to commence the trial and before the jury is empanelled—
(a) the proceedings are part of the trial of the accused person, and
(b) the accused person is to be arraigned again on the indictment when the jury is empanelled for the continuation of the trial.
…
130A Pre-trial orders and orders made during trial bind trial Judge
(1) A pre-trial order made by a Judge in proceedings on indictment is binding on the trial Judge in those proceedings unless, in the opinion of the trial Judge, it would not be in the interests of justice for the order to be binding.
(2) If, on an appeal against a conviction for an offence in proceedings on indictment, a new trial is ordered, a pre-trial order made by a Judge, or an order made by the trial Judge, in relation to the proceedings from which the conviction arose is binding on the trial Judge hearing the fresh trial proceedings unless—
(a) in the opinion of the trial Judge hearing the fresh trial proceedings, it would not be in the interests of justice for that order to be binding, or
(b) that order is inconsistent with an order made on appeal.
(3) If proceedings on indictment before a trial Judge are discontinued for any reason, a pre-trial order made by a Judge, or an order made by the trial Judge, in relation to those proceedings is binding on a trial Judge hearing any subsequent trial proceedings relating to the same offence as the discontinued proceedings unless, in the opinion of the trial Judge hearing the subsequent trial proceedings, it would not be in the interests of justice for the order to be binding.
(4) In this section, pre-trial order means any order made or given after the indictment is first presented but before the empanelment of a jury for a trial.
(5) To avoid doubt, this section extends to a ruling given on the admissibility of evidence.
The primary judge in this matter, sitting in the District Court, had jurisdiction to deal with the matter pursuant to s 130 once the indictment of the applicant had been presented in that Court and the applicant had been arraigned. Section 130(2) expressly contemplates that orders may be made by the Court for the purposes of the trial before a jury is empanelled. Section 130(3) sets out some mechanical consequential provisions premised on the fact that such orders may be made in the absence of a jury. Then s 130A deals with further aspects of pre-trial orders. Subsections (1) and (2) of that provision refer to such orders being “made by a Judge”, reflecting the fact that any such orders are made by a judge alone before a jury is empanelled. That point is also manifest in sub (4).
Thus there was clear statutory jurisdiction for the primary judge to determine the applications before him relating to the Subpoena and to the challenge to the District Court’s jurisdiction, and to do so without a jury. There is nothing remotely unorthodox about this. As the Court of Appeal stated in Baker CA at [13], “[t]he conventional role of a jury is to determine facts”.
As for ss 11 and 76A of the District Court Act, they provide:
11 Single Judge to constitute the Court
(1) All civil and criminal proceedings in the Court, and all business arising out of any such proceedings, shall, subject to this Act and the Jury Act 1977, be heard and disposed of before a Judge, who shall constitute the Court.
(2) Subsection (1) does not affect the provisions of this Act and the civil or criminal procedure rules concerning the hearing and disposal of civil and criminal proceedings and business before a registrar or other officer of the Court.
76A Action to be tried without jury unless jury required in interests of justice
(1) An action is to be tried without a jury, unless the Court orders otherwise.
(2) The Court may make an order under subsection (1) that an action is to be tried with a jury if—
(a) any party to the action—
(i) files, within the prescribed time, a requisition for trial with a jury, and
(ii) pays the fee prescribed by the regulations made under section 18 of the Civil Procedure Act 2005, and
(b) the Court is satisfied that the interests of justice require that the action be tried by a jury.
(3) A fee paid under this section is to be treated as costs in the action, unless the Court orders otherwise.
(4) This section does not apply to any action for defamation.
Note.
Section 21 of the Defamation Act 2005 makes provision for jury trials in defamation actions.
As regards s 11, legislation of the same legislature sharing a field of operation should be read together and harmoniously: NSW Commissioner of Police v Cottle (2022) 276 CLR 62; [2022] HCA 7 at [22]-[23]. The section thus is to be read together with ss 130, 130A, 131 and 132 of the Criminal Procedure Act. Those sections work in the way outlined above. Section 11 of the District Court Act is consistent with pre-trial orders under ss 130 and 130A being made by a judge alone.
As for s 76A, it applies to the civil, not criminal, jurisdiction of the District Court. It is contained within Pt 3 of the District Court Act which is entitled “The civil jurisdiction of the Court”, and ss 7 and 9 of the Act make clear that that Part applies to civil jurisdiction. It is not relevant here.
6 Preserved Imperial enactments
Each Imperial enactment mentioned in Part 1 of the Second Schedule to this Act … as it was in force in England on the twenty-fifth day of July, one thousand eight hundred and twenty-eight—
(a) is declared to have been in force in New South Wales on that day by virtue of the Imperial Act 9 George IV Chapter 83, and
(b) except so far as affected by any Imperial enactments or State Acts from time to time in force in New South Wales—
(i) is declared to have remained in force in New South Wales from that day,
(ii) shall from the commencement of this Act be in force in New South Wales, and
(c) is not repealed by section eight of this Act.
7 Enactments not affected by repeal
Nothing in this Act affects any Imperial enactment set out in the Third Schedule to this Act or any other Imperial enactment which independently of the provisions of the Imperial Act 9 George IV Chapter 83 is made applicable to New South Wales by the express words or necessary intendment of any Imperial enactment.
Part 1 of the Second Schedule included “(1297) 25 Edward I (Magna Carta) c 29”. It was suggested that this incorporated a right to trial by jury provided for by the Magna Carta which could not be extinguished. Insofar as the applicant’s argument is based on s 6, that argument relies on a provision of State law which gave continuing force to the relevant enactments, including Magna Carta. Such a provision of State law can be altered, overridden, amended or repealed by another provision enacted by that State: see eg Kartinyeri v Commonwealth of Australia (1998) 195 CLR 337; [1998] HCA 22 at [13], [16], [57], [72]. Thus there is no doubt that a State law may override the Magna Carta in its application to the State, along with any of the other Imperial enactments referred to in the Imperial Acts Application Act: see eg Galea v NSW Egg Corporation [1989] NSWCA 81; Prothonotary v Wilson [1998] NSWSC 26.
As for s 7 of the Imperial Acts Application Act, that is directed to the effect of that Act upon the Imperial enactments referred to in the section. In any event, the State has plenary power to repeal or override such enactments insofar as they have any continued application to the State, taking account of ss 2 and 3 of the Australia Act 1986 (Cth). The Criminal Procedure Act, as originally enacted, was assented to after the commencement of the Australia Act.
The second argument as to accrued rights was founded on s 30(1) of the Interpretation Act 1987 (NSW), which relevantly provides:
(1) The amendment or repeal of an Act or statutory rule does not—
…
(c) affect any right, privilege, obligation or liability acquired, accrued or incurred under the Act or statutory rule …
The applicant argued that s 30(1)(c) has the effect of preserving the effect of historical statutory rights to trial by jury. He said that “rights never die”. He asserted such rights were found in, for example, the Common Law Procedure Act 1899 (NSW). To that statute might be added the District Court Act 19**12 (NSW) or Supreme Court Procedure Act 1900 (NSW), the latter of which was the subject of much the same argument in an unsuccessful special leave application before the High Court in Wilson v State of New South Wales [2001] HCATrans 623.
It is doubtful that those statutes did create a right to trial by jury in respect of procedural matters. In any case, s 30(1)(c) of the Interpretation Act does not mean that State laws should be construed so as not to change or extinguish such rights with prospective effect. That would be an absurd interpretation as it would involve a presumption that Parliament did not mean to change the law when enacting new legislation doing exactly that. The position was explained by Gageler J in ADCO Constructions Pty Ltd v Goudappel (2014) 254 CLR 1; [2014] HCA 18 (citations omitted):
[49] Section 30 of the Interpretation Act applies if, and to the extent that, a provision of a regulation expressly or impliedly alters an Act or statutory rule by “amendment” (changing its legal meaning) or “repeal” (subtracting from the scope of its legal operation). By force of s 30(1)(c), unless the contrary intention appears in the regulation containing the provision effecting the amendment or repeal, such an amendment or repeal does not “affect any right, privilege, obligation or liability acquired, accrued or incurred under the Act or statutory rule”. The section is directed to the effect of a valid regulation rather than to the scope of regulation-making power.
[50] The general common law rule stated by Dixon CJ in Maxwell v Murphy [(1957) 96 CLR 261 at 266-7] takes over where s 30 of the Interpretation Act leaves off. The rule is that:
‘a statute changing the law ought not, unless the intention appears with reasonable certainty, to be understood as applying to facts or events that have already occurred in such a way as to confer or impose or otherwise affect rights or liabilities which the law had defined by reference to the past events.’
The applicant sought to impugn the validity of a number of pieces of legislation. However, the only statutes relevant to the decisions the subject of this appeal were the Criminal Procedure Act and the District Court Act. The gravamen of the applicant’s submissions was that the statutes were not validly enacted in the sense that they lacked “lawful” Royal Assent.
The Governor, in the name and on behalf of Her Majesty, assented to the District Court Act on 10 April 1973. That assent was recorded on page 1383 of issue 51 of the NSW Government Gazette on 19 April 1973. The Governor, in the name and on behalf of Her Majesty, assented to the Criminal Procedure Act on 23 December 1986. That assent was recorded on page 483 of issue 20 of the NSW Government Gazette on 30 January 1987. The NSW Government Gazette is publicly available. Relevant editions are searchable on the “Trove” website maintained by the National Library of Australia.
The applicant appeared to impugn any Royal Assent given at federal or State level since 1973 following the “disenfranchisement” of Queen Elizabeth II by the enactment of the “unlawful Queen of Australia … without approval by way of Referendum of the People”. The applicant is presumably referring to the Royal Style and Titles Act 1973 (Cth). Justice Hayne explained the futility of such arguments in Joosse v ASIC [1998] HCA 77; (1998) 73 ALJR 232 at [20]:
As I understand it, the principal burden of the argument is that an Act of Parliament, changing the style or title by which the Queen is to be known in Australia, worked a fundamental constitutional change. The fact is, it did not.
The primary judge allowed the Motion and set aside the Subpoena on the basis that it had no legitimate forensic purpose. The applicant submitted that the Subpoena had a legitimate forensic purpose because its production would “prove that these statutes, etc and all legislation from all parliaments in the Commonwealth, coming into force since 1973, are indeed not lawfully enacted”. As just explained, that argument is without merit. Thus the documents sought would not assist the applicant’s defence. The primary judge was correct to set aside the Subpoena.
The applicant also said that “no judge has any part in issuing subpoenas” with reference to ss 67-68 of the District Court Act 1858 (NSW). That Act is no longer in force. Nor can it be revived by a misconceived argument of accrued rights.
LONERGAN J: I agree with Kirk JA.
WEINSTEIN J: I agree with Kirk JA.
**********
Baker
Commissioner of Police
[2001] HCATrans 623
(2014) 254 CLR 1
(2021) 290 FCR 406
(1999) 95 FCR 292
(1999) 199 CLR 1
(2003) 77 ALJR 1195
(1998) 73 ALJR 232
(1998) 195 CLR 337
(2023) 112 NSWLR 507
(1936) 55 CLR 707
(2022) 276 CLR 62
(2017) 91 ALJR 302
(1997) 72 ALJR 73
(2022) 273 CLR 635
(1988) 166 CLR 1
(2023) 279 CLR 259
(2011) 80 NSWLR 486
(1994) 68 ALJR 372
(2001) 111 FCR 395
(1984) 4 FCR 498
(1957) 96 CLR 261