Judgment
1BATHURST CJ: I agree with Basten JA.
2BEAZLEY P: I agree with the reasons of Basten JA and the orders his Honour proposes.
3BASTEN JA: On 19 June 2006 the applicant, Faheem Khalid Lodhi, was found guilty on three charges for offences under s 101 in Pt 5.3 of the Criminal Code (Cth) in relation to "terrorist acts". He is presently serving a sentence of imprisonment imposed by Whealy J on 23 August 2006. His appeal against conviction and sentence was dismissed on 20 December 2007: Faheem Khalid Lodhi v Regina [2007] NSWCCA 360. On 13 June 2008 an application for special leave to appeal was refused: Lodhi v The Queen [2008] HCA Trans 225.
Application for investigation of juror
4On 10 January 2011 the solicitor then acting for the applicant wrote to the Sheriff of New South Wales, referring to the trial before Whealy J and stating:
"Information has since come to my attention that [a juror] had previously been diagnosed and treated for a mental health related illness. ... I have also been specifically informed that the delusions from which this juror suffered at times included paranoid delusions about being persecuted by terrorists. This information was not known during the trial, nor did the juror volunteer this information when the panel was informed about the nature of the charges. This now raises the question of whether this particular juror could be said to have been the subject of at least an apprehended bias, so as to lead to a possible miscarriage of justice. Indeed, it may also be that at the relevant time the juror was ineligible to serve as a juror, see s 6, clause 12, Schedule 2 Jury Act 1977."
5The letter then requested the Sheriff, with the consent of the Supreme Court, to carry out an investigation pursuant to s 73A of the Jury Act 1977 (NSW). On 12 June 2011, in response to a request for further information, the solicitor stated his belief that the juror had also been admitted to a mental health unit after the completion of the trial.
6On 21 June 2012 the Registrar of the Court of Criminal Appeal wrote to the solicitor advising that the Chief Judge at Common Law had "considered this matter and determined not to request an investigation by the Sheriff". That was the full effect of the letter: no reasons were provided. That, so far as this Court is aware, was the full extent of the correspondence: thus, no reasons were ever sought.
7On 18 July 2013 a summons was filed in this Court seeking leave to appeal from "the whole of the decision below" and, in the alternative, an order that "the order made by McClellan CJ at CL on 21 June 2012, refusing to consent to an investigation by the Sheriff in accordance with s 73A Jury Act 1977, be quashed". Further, consent under s 73A was sought from this Court.
Nature of application
8Section 73A of the Jury Act is a novel provision in this State, having commenced on 15 December 2004. It was enacted by the Jury Amendment Act 2004 (NSW). It is convenient to set out the section in full as it lies at the heart of the issues in this proceeding:
73A Investigation by sheriff of jury irregularities
(1) If there is reason (including a report under section 75C) to suspect that the verdict of a jury in a trial of any criminal proceedings may be, or may have been, affected because of improper conduct by a member or members of the jury, the sheriff may, with the consent of or at the request of the Supreme Court or District Court, investigate the matter and report to the court on the outcome of the investigation.
(2) Section 68A(1) does not prohibit the sheriff from soliciting information from a juror or former juror for the purpose of conducting such an investigation.
(3) Section 68B(1) does not prohibit a juror from disclosing information to the sheriff in connection with such an investigation.
(4) Section 139(2) of the Evidence Act 1995 applies in relation to any questioning conducted by the sheriff for the purpose of an investigation under this section (in the same way as it applies to official questioning by an investigating official).
(5) The sheriff may, despite sections 29 and 68, include a juror's name or other matter that identifies a juror in a report to the court under this section.
9The section confers power on the Sheriff, a State officer, subject to the consent or request of the relevant State court, to investigate any suspected "improper conduct" of a juror. It was appropriate for consent to be sought in this case from the Supreme Court, as the court which had conducted the trial. One issue, possibly relevant to the refusal of consent by the judge, is whether mental illness of a juror falls within the description of "improper conduct".
10Section 73A authorises an infringement of general law principles (as reflected in ss 29, 68, 68A and 68B of the Jury Act) governing the immunity of jurors from inquiry into their deliberations, and protection of their anonymity. There was no suggestion that an investigation under s 73A would infringe upon any essential characteristic of a trial by jury in a federal matter, protected by s 80 of the Constitution. Nor was it submitted that s 80 mandated any particular procedure to ensure that persons ineligible to serve as jurors were not empanelled.
11The power of the Sheriff to conduct an investigation was not in issue; nor did the issue raised in the present case touch upon the deliberations of the jury. Rather, the proceedings were directed to the refusal by a judge of the Supreme Court to consent to the Sheriff's exercise of the statutory power. Further, the alternative forms of relief noted above reflected uncertainty on the part of the applicant as to whether the impugned decision was made in the exercise of judicial power or executive power. If not in the exercise of judicial power, the applicant accepted that there was no right of appeal under s 101 of the Supreme Court Act 1970 (NSW).
12A further issue raised in the applicant's summons was whether he required leave to institute the present proceedings, pursuant to s 4 of the Felons (Civil Proceedings) Act 1981 (NSW). The Crown Advocate, appearing for the Attorney General of New South Wales, being the first respondent to the proceedings, conceded that such leave was not required but that, if it were required, it should be refused on the ground that the proceedings were bound to fail. For reasons which will be briefly explained below, the concession was correct.
13Underlying these issues was a fundamental question concerning the availability and source of any power of the kind sought to be exercised by the Sheriff. The applicant was convicted of an offence under federal law; his trial was undertaken in the exercise of federal jurisdiction. Being a trial on indictment for an offence against a law of the Commonwealth, he was entitled to be tried, and was tried, by a jury, in accordance with s 80 of the Constitution.
14The applicant's purpose underlying the request for an investigation by the Sheriff was to establish, if it were the fact, that the juror in question was either ineligible to sit on the jury which convicted him, or was otherwise biased in a way which gave rise to a miscarriage of justice. If either circumstance were established, as counsel indicated, the applicant would take any available steps to have his convictions set aside. Although his appeal to the Court of Criminal Appeal has already been determined and no further appeal is available, there remains the possibility that he could reagitate his application for special leave to appeal to the High Court (which was also rejected), or that he could invoke the executive powers available under Pt 7 of the Crimes (Appeal and Review) Act 2001 (NSW) ("the Appeal and Review Act") to have the matter referred to the Court of Criminal Appeal, which would then be required to deal with it as an appeal.
15After dealing with the application under the Felons (Civil Proceedings) Act, it is convenient to identify the nature of the decision made by the Chief Judge at Common Law, in order to determine the jurisdiction being exercised by this Court and the relief potentially available.
Application under Felons (Civil Proceedings) Act
16In Patsalis v State of New South Wales [2012] NSWCA 307 the Court accepted the State's concession that the applicant did not require leave under the Felons (Civil Proceedings) Act in order to challenge the legality of his incarceration and his entitlement to obtain access to legal documents whilst in custody: at [1] and [7] (Allsop P), [112] (Sackville AJA); at [45]-[55] I gave reasons why I thought the concession was correct. The proceedings in the present case do not merely seek to challenge an exercise of public power by the State, they seek relief with respect to a decision of a judge of this Court which is seen to stand in the way of a possible challenge to the validity of certain criminal convictions. Leave is not required on the approach accepted in Patsalis.
17To the extent that the applicant seeks a request from this Court to the Sheriff, in the exercise of an administrative function, no proceedings are involved and accordingly the Felons (Civil Proceedings) Act is not engaged.
Nature of decision of Supreme Court
18The consent sought from the Supreme Court would, if granted, permit the Sheriff to carry out an investigation into suspected improper conduct by a member of a jury. The section is broad enough to cover proposed investigations both during and after a trial. The function exercised by the Supreme Court in requesting or consenting to an investigation may not be the same in each circumstance. Thus, where reason to suspect improper conduct arises during the course of a trial, so that steps can be taken before the jury delivers their verdict, the judge required to give consent or make a request to the Sheriff will almost certainly be the trial judge. The power so exercised will then constitute part of the conduct of the trial and will thus constitute, if not an exercise of judicial power, at least the exercise of a power ancillary or incidental to the exercise of judicial power.
19In the present case, where the trial has been completed, the jury having delivered their verdict, the function being exercised by the Court takes on a different colour. It is possible that, where an appeal remains on foot or available, that the further steps by the Supreme Court can properly be described as ancillary to the exercise of judicial power: see Petroulias v The Hon Justice McClellan [2013] NSWCA 434. However, that is not this case; this being a case where no right of appeal remains available. The most plausible relief available, if a basis for submitting that there had been a miscarriage of justice were to arise, is the exercise of various powers under Pt 7 of the Appeal and Review Act. That being so, the Court is not exercising either judicial power or a power ancillary to the exercise of judicial power. It is closer to the supervisory powers with respect to proposed intrusions by other members of the executive (such as police officers) through the issue of a warrant. It is not in doubt that the issue by a judge of a warrant will typically involve an administrative function: see, for example, Hilton v Wells [1985] HCA 16; 157 CLR 57; Love v Attorney-General (NSW) [1990] HCA 4; 169 CLR 307 at 321.
20In Ousley v The Queen [1997] HCA 49; 192 CLR 69 McHugh J stated at 100:
"Once the issuing of a warrant is classified as an administrative act, a person affected by that act may seek judicial review of it and have it declared void or set aside by an appropriate court or tribunal. Furthermore, since the prevailing theory is that an administrative act or order made outside jurisdiction is void, a litigant, affected by the act or order, may challenge it collaterally."
21The warrant in Ousley was issued by a judge of the Supreme Court of Victoria authorising installation and use of a listening device. The case involved collateral review of the validity of the warrant by a County Court judge conducting a criminal trial. Thus, Gaudron J stated at 87:
"Once it is accepted, as it must be, that, even though issued by the Supreme Court, a warrant ... is not a judicial order but an instrument made in the discharge of an administrative function, it follows that its validity may be challenged in collateral proceedings, no matter the court in which those proceedings are heard."
22There were similar statements in the judgments of Toohey J at 80, Gummow J at 130 and Kirby J at 146. That analysis applies to the analogous circumstances of s 73A: accordingly, the power exercised by the Chief Judge at Common Law was an administrative power. It follows that there was no appeal from that decision: Patsalis v Attorney General for New South Wales [2013] NSWCA 343 at [23]-[24].
23It also follows that, whilst judicial review of that decision may be available pursuant to s 69 of the Supreme Court Act, this Court will not be exercising federal jurisdiction in conducting such a review, unless some further basis for such jurisdiction is identified. That is because the outcome of the review will not affect rights or obligations which have been determined by the exercise of federal jurisdiction nor will the review be concerned with a matter arising under a federal law: cf LNC Industries Ltd v BMW (Australia) Ltd [1983] HCA 31; 151 CLR 575. No Commonwealth agency or officer is a party the proceedings.
24That conclusion raises two further questions. The first is whether, and if so on what grounds, the Court may quash or otherwise review the decision of the Chief Judge at Common Law. The second is whether, without taking that course, this Court could itself exercise the power under s 73A and grant or refuse consent to the request that the Sheriff investigate. With respect to the latter question, there is no reason to suppose the Court is functus officio when one judge has refused consent, but in any event the application in these proceedings can be seen as a further request for consent. It is, however, appropriate to deal first with the application for review because demonstration of error on the part of the judge who refused consent may be a significant consideration in the exercise by this Court of its own discretionary power.
Ground of review
25The primary ground of review relied upon by the applicant in written submissions, but not expanded upon in oral argument, was the failure of the primary judge to give reasons.
26In Wainohu v State of New South Wales [2011] HCA 24; 243 CLR 181, the High Court invalidated New South Wales legislation conferring an "executive" function on certain judges of the Supreme Court, because the legislation expressly excluded any obligation to give reasons for their non-judicial decisions: at [59] (French CJ and Kiefel J) and [104] and [109] (Gummow, Hayne, Crennan and Bell JJ). However, that conclusion should be understood in its statutory context.
27The majority judgments explained that the principle of institutional integrity, as a condition of constitutional validity of legislation conferring functions on a State Supreme Court, is not a function of the separation of powers, but of the requirement of an integrated national system of courts under Ch III of the Constitution: see, eg, [52] (French CJ and Kiefel J). Nevertheless, to define the essential characteristics of a court is to distinguish the court as an institution from other arms of government. So much follows from the reasoning in Public Service Board (NSW) v Osmond [1986] HCA 7; 159 CLR 656, holding that administrative decision-makers are under no general law obligation to give reasons, absent a statutory requirement or some exceptional circumstance.
28Further, there is no constitutional imperative at the State level to draw the functional boundaries between the different arms of government, as is necessary with respect to the executive and judicial arms under the federal Constitution. In the exercise of State jurisdiction no clear-cut categorisation is required and, indeed, the appropriate categorisation may depend upon the circumstances for which that exercise is undertaken: see Campbelltown City Council v Vegan [2006] NSWCA 284; 67 NSWLR 372 at [108]-[109]. Even in the federal arena, it has been possible to speak of powers exercised by judges performing administrative functions as "quasi judicial in their nature": Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409 at 413 (Bowen CJ and Deane J, Smithers J agreeing), cited with apparent approval in Hilton v Wells by Gibbs CJ, Wilson and Dawson JJ at 69; see also Mason and Deane JJ in Hilton v Wells at 84, describing certain functions of a magistrate as "of a quasi judicial nature". Although that language was not used in Wainohu, the description of the process undertaken by a judge in determining whether or not to make a declaration that a particular organisation is a declared organisation involved the trappings of the exercise of judicial power, other than the obligation to give reasons: at [66]-[68] (French CJ and Kiefel J) and at [91]-[92] in the joint reasons of Gummow, Hayne, Crennan and Bell JJ. The latter passage concluded that "even if Pt 2 had entrusted the hearing and determination of applications thereunder to an administrator who is not a judge, there would be much to be said for the view that, in the absence of a contrary provision in Pt 2, this was one of those instances identified by Deane J in Public Service Board (NSW) v Osmond where there was to be discerned a statutory intent that the decision-maker was obliged to give reasons": at [92].
29By contrast, as the joint reasons also noted and as has long been accepted, there are incidental and interlocutory decisions made in the course of a judicial proceeding which, even if made by a court, will not require the giving of reasons: at [98].
30The decision to refuse consent in the present case was made in circumstances which bore no comparison to the judicial functions of the Supreme Court. There was not, and it was not suggested that there should have been, any formal application by a party, any possibility of opposition, any hearing or, as already found, any right of appeal. The statute itself was silent as to whether reasons should be given. In these circumstances, it is not possible to infer from the silence of the statute, even where the power is conferred on a Supreme Court judge, that there was an obligation to give reasons for a refusal, at least in the absence of any request. If there had been a request, other considerations might have arisen which need not be considered in this case.
31There being no other basis for setting aside the decision of McClellan CJ at CL, prerogative relief should be refused.
Further application
32As noted above, this conclusion does not dispose of the matters raised by the applicant before this Court. It remains necessary to consider whether consent to the investigation by the Sheriff should nevertheless be granted. The relevant issues to be addressed are as follows:
(a) whether there is power to carry out an investigation with respect to a federal conviction (power);
(b) whether there are grounds which would warrant an investigation (grounds);
(c) the extent to which an investigation would entrench upon the privacy of jurors and the immunity of their deliberations from revelation (intrusion), and
(d) whether, assuming a particular reason for suspicion was found to have substance, there was some practical consequence which could follow (utility).
33In support of the further application, the applicant proffered further evidence. It is necessary to summarise that material. It is also necessary to note an issue which was raised in the course of the hearing before the Court as to its admissibility.
(a) nature and basis of suspicion
34The original material supplied to the Sheriff, referred to at [4] above, was contained in a letter from the applicant's then solicitor, Mr Michael Doughty, who practised in Moss Vale. The further material was contained in an affidavit of Ms Abigail Bannister of Pitt Street, Sydney, who is the applicant's current solicitor. Ms Bannister recounted telephone conversations with two counsel, who were named, and a solicitor who was the original source of the information supplied to Mr Doughty. She spoke to the solicitor, who was also named. The solicitor told Ms Bannister that a person (X) who had been known to her for many years had volunteered that he or she had recently served as a juror on the applicant's trial. The solicitor stated that to her knowledge X had been diagnosed with schizophrenia and suffered from paranoid delusions. The solicitor told Ms Bannister that X suffered "from delusions of persecution by terrorists". Ms Bannister further stated that she had asked the solicitor for a statutory declaration setting out the conversation they had had, but the solicitor had ultimately declined, citing her own poor health in justification of her refusal.
35There is no evidence that this material was placed before the Sheriff, no doubt in part because the Supreme Court had already declined to consent to an investigation. However, the result is that the Sheriff has not sought further consent on the basis of the additional material. This Court may request the Sheriff to carry out an investigation in circumstances where the information has come to the Court otherwise than from the Sheriff, or where the Sheriff himself or herself has not proposed an investigation, if that course is otherwise appropriate.
36In considering this aspect of the matter, the Court is exercising an administrative function. Accordingly, no issue arises as to the admissibility of evidence or the form of the material. The only issue is whether the material is of sufficient substance to constitute "reason to suspect" within the terms of s 73A(1) and whether it should be investigated.
37The material now presented, read with the earlier material, is of the kind that would invite investigation. Although the terms of the allegation are reasonably precise, there are questions of timing, credibility and reliability which demand further investigation before it would be possible to identify a potential miscarriage of justice. Given that the matter raised concerns as to the mental health of a person who is believed to have been a juror at the applicant's trial, it is an investigation which can only properly proceed beyond the stage to which it was taken by Ms Bannister if undertaken by the Sheriff with the approval of the Court. If the matters of fact which have been identified are found to have substance, the possibility that there has been a miscarriage of justice cannot be dismissed as fanciful. Accordingly there are grounds for an investigation, if the subject matter falls within the terms of s 73A.
38The matter raised by way of suspicion goes to the eligibility of the person who is believed to have served as a juror on the applicant's trial. The categories of persons ineligible to serve, as set out in Sch 2 of the Jury Act, include the holders of certain offices (which are readily identifiable, such as a judge or coroner) together with two other categories which are less readily assessed. One is that a person is ineligible if "unable to read or understand English"; the other, being of present relevance, is a person who is unable "because of sickness, infirmity or disability, to discharge the duties of a juror": Sch 2, items 11 and 12 respectively.
39It is not necessary for present purposes to consider the precise scope of these factors, nor how they should be determined. It should be noted, however, that where a court, in the course of a trial, discovers that a juror was "mistakenly or irregularly empanelled, whether because the juror was disqualified or ineligible to serve as a juror", or became disqualified from serving or ineligible to serve or "engaged in misconduct in relation to the trial", the court is required to discharge the juror: s 53A(1). In that provision, "misconduct" means conduct that constitutes an offence against the Jury Act and "any other conduct that, in the opinion of the court ..., gives rise to the risk of a substantial miscarriage of justice in the trial": s 53A(2). The court also has a power to discharge a juror if satisfied that "the juror may not be able to give impartial consideration to the case because of ... any reasonably apprehension of bias or conflict of interest on the part of the juror or any similar reason": s 53B.
40While it is arguable that s 73A does not cover cases in which a person who was either disqualified or ineligible to serve as a juror in fact served, that would not prevent the court in which the trial was conducted, in the exercise of its inherent jurisdiction with respect to the conduct of a trial, and, in the case of the Supreme Court, with respect to the administration of criminal justice generally, from requesting the Sheriff to make inquiries. As explained in R v Kaddour [2004] NSWCCA 361; 61 NSWLR 378, the court should be "slow to construe legislation so that it prevents the court from taking what steps it should take to ensure that miscarriages of justice do not arise by reason of the identity of a juror and, perhaps, knowledge by a juror about a particular accused", the latter being the issue in that case: at [23] (Spigelman CJ, Buddin J and Smart AJ agreeing).
(b) power: relevance of federal conviction
41The trial of the applicant involved an exercise by the Supreme Court of federal jurisdiction. The primary source of law for the exercise of federal jurisdiction with respect to criminal proceedings is s 68 of the Judiciary Act 1903 (Cth). That section relevantly provides that the laws of a State respecting the trial and conviction of an offender on an indictment and respecting the hearing and determination of "appeals arising out of any such trial or conviction or out of any proceedings connected therewith" shall apply to persons charged with offences against the laws of the Commonwealth: s 68(1). The term "appeal" is defined in s 2 of the Judiciary Act to include "any proceeding to review or call in question the proceedings, decision or jurisdiction of any court or judge". The proposed investigation, if it were to bear fruit, was intended to provide a basis for setting aside the convictions for federal offences. It is necessary to consider how that could occur.
42Unlike the rejection of the appeal to the Court of Criminal Appeal, the refusal of the applicant's request for special leave to appeal to the High Court was not a final order in a proceeding inter partes and would not prevent the renewal of the application: Collins (alias Hass) v The Queen [1975] HCA 60; 133 CLR 120 at 122; Coulter v The Queen [1988] HCA 3; 164 CLR 350 at 356 (Mason CJ, Wilson and Brennan JJ) and at 360 (Deane and Gaudron JJ, dissenting, but not on this point). However, as a practical matter, the likelihood of the court granting an application to reopen is slight. As stated by Brennan J (for a Court comprising himself, Deane and McHugh JJ) in Cachia v St George Bank Ltd (1993) 68 ALJR 124, it is "generally not appropriate for this Court to permit an applicant to have two opportunities to argue his case, the second on an application to reopen an earlier decision to refuse special leave".
43In the present case, any ground of appeal relating to the ineligibility of a juror would raise an issue which had not been dealt with at trial, nor by the Court of Criminal Appeal. No doubt that would provide a possible basis for reopening an application dismissed when that ground was not available. But it is only an exceptional case in which the High Court is prepared to "forego the assistance that the judgments of the [courts below] will provide if the matter reaches this Court": Sanofi v Parke Davis Pty Ltd [No 1] [1982] HCA 9; 149 CLR 147 at 154 (Gibbs CJ, Stephen and Mason JJ). In any event, because the High Court deals with appeals in the strict sense of that term and not appeals by way of rehearing, that Court would not be able to address the factual issues which would arise: Mickelberg v The Queen [1989] HCA 35; 167 CLR 259 at 267 (Mason CJ), 274 (Brennan J) and 298 (Toohey and Gaudron JJ) although in respect of an appeal against a conviction in State jurisdiction.
44These factors would lead to the conclusion that there was a lack of utility in carrying out an investigation as proposed by the applicant, if the only purpose were to seek a reopening of his failed application for special leave to appeal.
45The alternative course identified by the applicant was that the investigation sought to be conducted by the Sheriff might constitute a step towards an inquiry under Pt 7 of the Appeal and Review Act. However, that raises a separate question as to whether such an inquiry is available in relation to the exercise of federal jurisdiction.
46In order to consider that matter it is necessary to address briefly the terms of Pt 7 of the Appeal and Review Act. In substance, it contains two separate procedures by which an offender may seek review of, or an inquiry into, a conviction or sentence at any time, which includes at a time after appeal rights have been exhausted. (Indeed that is the time at which the provisions are usually called upon.) The first procedure involves a petition to the Governor for a review of a conviction or sentence in the exercise by the Governor of the pardoning power, which was an historical incident of the Royal prerogative: Appeal and Review Act, s 76. Petitions to the Governor may result in an inquiry conducted by a judicial officer or referral of the case to the Court of Criminal Appeal to be dealt with as an appeal under the Criminal Appeal Act 1912 (NSW): s 77(1).
47The alternative course is to make an application to the Supreme Court for an inquiry into a conviction or sentence: s 78. If satisfied that there is "a doubt or question as to the convicted person's guilt, as to any mitigating circumstances in the case or as to any part of the evidence in the case", the Supreme Court may either direct an inquiry or refer the case to the Court of Criminal Appeal: s 79(1) and (2). Although a petition for executive clemency is dealt with by the Governor or the relevant Minister, in practice the same consequences flow and the same standard as to a relevant "doubt or question" is applied.
48Somewhat ambiguously, s 79(4) states with respect to an application to the Supreme Court:
(4) Proceedings under this section are not judicial proceedings. However, the Supreme Court may consider any written submissions made by the Crown with respect to an application.
49There are at least three separate "proceedings" referred to in s 79. These are:
(a) the consideration given to the application under s 78 by the Supreme Court;
(b) the inquiry by a judicial officer which may be directed by the Supreme Court, and
(c) a referral of the whole case to the Court of Criminal Appeal to be dealt with as an appeal under the Criminal Appeal Act.
The second sentence in s 79(4) suggests that the only proceedings identified as being "not judicial" in the first sentence refer to the consideration given by the Supreme Court to the application, rather than any step which may result from that consideration.
50Where either the Governor (under Div 2) or the Supreme Court (under Div 3) directs an inquiry by a judicial officer, the inquiry is undertaken pursuant to s 81 (in Div 4), which envisages the exercise of powers conferred by the Royal Commissions Act 1923 (NSW). It should therefore be characterised as an exercise of executive, rather than judicial power. By contrast, where the case is referred to the Court of Criminal Appeal, it will be dealt with as an appeal by that Court, in the exercise of judicial power.
51Further, s 74(2) provides that, in Pt 7, "a reference to a review of, or an inquiry into, a conviction or sentence includes a reference to a review of, or inquiry into, any aspect of the proceedings giving rise to the conviction or sentence". Although it is not necessary to decide the matter for present purposes, it may be assumed that an issue as to whether a juror was ineligible, and the consequences thereof, could be the subject of a review or inquiry.
52The next question is whether such a review or inquiry may be conducted in relation to a conviction for a federal offence. As the review or inquiry would not involve the exercise of judicial power, the terms of s 68 of the Judiciary Act are not engaged. Putting to one side a petition for executive clemency, it may be assumed that an application would be made to the Supreme Court in the event that the Sheriff's inquiries supported such a course. Again, the relevant inquiries having been undertaken, it is likely that the whole case would then be referred to the Court of Criminal Appeal to be dealt with as an appeal. At that stage an exercise in judicial power would be engaged and, because the convictions were under a federal law, it would involve an exercise of federal jurisdiction. Once that point is reached, the terms of s 68(2) would be engaged: the definition of "appeal" being sufficiently broad to pick up State laws resulting in appellate proceedings in circumstances where the initial statutory right of appeal had been exhausted.
53That such inquiries have been undertaken with respect to federal convictions was noted by Wood CJ at CL in what appears to be the only analysis of the issue in this jurisdiction, Application of Pearson [1999] NSWSC 143; 46 NSWLR 148. Being satisfied that the power of inquiry provided by the predecessor s 79(1)(a) did not involve judicial power and therefore was not picked up by s 68 of the Judiciary Act, the Chief Judge held that such a process was not available but that the Supreme Court could refer the whole of the case to the Court of Criminal Appeal: at [81]. Wood CJ at CL appears to have concluded that the power of the Supreme Court to consider an application, which could result in it referring the whole case to the Court of Criminal Appeal, was a power incidental to the exercise of judicial power. However, for the reasons outlined above, that reasoning would not apply under the present legislation: the Supreme Court, under s 79(1), exercises an administrative function, which requires no authority under Commonwealth law unless and until a step is taken which could result in a review of, or call in question, the federal conviction.
54In R v Martens (No 2) [2009] QCA 351; 235 FLR 371; 262 ALR 106, the Queensland Court of Appeal (by a majority, Chesterman JA, Muir JA agreeing, Fraser JA dissenting) held that the Court had such jurisdiction under s 672A of the Criminal Code (Qld). That provision involved reference to the Court of Appeal of a petition for the exercise of the pardoning power by the State Governor. It was thus equivalent to a petition under Div 2 of the Appeal and Review Act and differs from the circumstances of the present case.
55Fraser JA expressed the view that s 68(2) of the Judiciary Act did not confer on the Governor-General, in the exercise of federal executive power, a power to refer a matter to a State court: at [38]. The doubts raised in respect of that power (which is reflected in Div 2 of Pt 7 of the Appeal and Review Act) do not directly apply to Div 3, dealing with applications to the Supreme Court for an inquiry into a conviction or sentence. Fraser JA's approach differs from the reasoning set above, which does not require a conferral of federal power to exercise an administrative power under State law.
56Of more direct relevance for present purposes, Fraser JA also concluded that, even though proceedings once referred to the Court of Appeal could constitute an appeal for the purposes of the Judiciary Act, they did not involve an appeal "arising out of" the trial and conviction of the offender, but rather involved a case "arising out of a petition for mercy": at [50]. That reasoning could apply to an application to the Supreme Court under Div 3 of the Appeal and Review Act. However, I am not persuaded that it is necessarily correct. There is no reason why the case could not be characterised as "arising out of" both the conviction and the petition, each being a necessary pre-condition to the appeal.
57For the majority, Chesterman JA identified the critical issue as "whether s 68(2) of the Judiciary Act ... operates so as to confer (a) the power under s 672A of the Code to refer ... 'the consideration of any petition for the exercise of the pardoning power' ... on the Commonwealth Attorney-General; and (b) jurisdiction on the Court to hear a reference from the Commonwealth Attorney-General". Both Chesterman JA and Muir JA (in their separate reasons) placed reliance on the definition of "appeal" in s 2 of the Judiciary Act as including "any proceeding to review or call in question the proceedings, decision or jurisdiction of any court or judge". Chesterman JA concluded that "the proceeding which follows a reference to the Court pursuant to s 672A is an appeal and is to be determined as an appeal against conviction (or sentence)" and accordingly s 68(2) of the Judiciary Act conferred the relevant jurisdiction on the State court: at [84].
58Chesterman JA then considered a second objection, namely that s 68 did not pick up and confer on the Commonwealth Governor-General the executive power, on consideration of a petition, to refer the whole case to the Court. The conclusion that it did have that effect was derived from statements in various High Court judgments to the effect that if s 68(2) were to confer on an appellate court a right of appeal enjoyed under State law by a prosecutor, it would have to operate so as to allow a Commonwealth prosecutor to invoke the jurisdiction. It is not necessary, for present purposes, to determine whether the analogy is sound.
59The question is how, if at all, those powers could be picked up and applied in support of a proceeding, as yet uncommenced, in federal jurisdiction. That would appear to depend upon the construction of s 68 as picking up procedures incidental to the exercise of federal jurisdiction, albeit in the exercise of executive power.
60In a matter in the Victorian Court of Criminal Appeal the Commonwealth Director of Public Prosecutions appeared for the respondent in proceedings analogous to those under Pt 7 of the Appeal and Review Act, but "expressly conceded" that the Court had jurisdiction to entertain a reference from the Commonwealth Attorney: R v Collie (CCA (Vic), 18 December 1992, unrep).
61It is understandable that a court considering whether it has jurisdiction in a federal matter should look to the scope and effect of s 68 of the Judiciary Act. However, it does not follow from the fact that a matter is before the court, that all steps along the way must be supported by the operation of s 68. Rather the administrative steps, if involving coercive powers, may be sourced in State law. It is only where some step has a potential effect on a federal conviction that a federal source of power is required.
62The jurisdiction which this Court is called upon to exercise is, however, at one remove from a direct challenge to the conviction for a federal offence. This Court is being asked to review a decision by the Chief Judge with respect to the instigation of an inquiry which will not, of itself, affect the applicant's convictions. In addition, it is itself being asked to exercise the power of request or consent under the Jury Act.
63Any step which had a direct effect on a conviction would involve an exercise of judicial power and fall outside the category of executive procedures which were the subject of consideration in Crump v State of New South Wales [2012] HCA 20; 247 CLR 1; Elliott v The Queen [2007] HCA 51; 234 CLR 38 at [5]; cf Baker v The Queen [2004] HCA 45; 223 CLR 513 at [32]-[33]. Because no party argued to the contrary, it should be accepted that the State law applied of its own force with respect to the powers of the Sheriff and the executive power conferred on the Supreme Court.
64The question arising in the present case does not directly involve the possible means by which the applicant could challenge his conviction, if a sufficient basis were established. Rather, it concerns the means by which such a basis might be established and, in particular, the exercise by the Supreme Court and the Sheriff of powers which are, it is accepted, non-judicial.
(c) intrusion on juror's privacy
65Part of the general law protection of jurors extended to the rule that a juror could not give evidence which might impugn a verdict. In Ellis v Deheer [1922] 2 KB 113 Atkin LJ explained at 121:
"The reason why that evidence is not admitted is twofold, on the one hand it is in order to secure the finality of decisions arrived at by the jury, and on the other to protect the jurymen themselves and prevent their being exposed to pressure to explain the reasons which actuated them in arriving at their verdict."
66That principle did not, however, prevent evidence being taken from a juror that he (and, later, she) did not have a sufficient understanding of English to follow the trial: Ras Bahari Lal v The King-Emperor (1933) 50 TLR 1 at 2 (Atkin LJ). The result of these and other cases, discussed by the Court of Criminal Appeal in R v Emmett (1988) 14 NSWLR 327, show that the result of an inquiry into some impropriety, not revealing the deliberations of the jury, could be admitted on appeal and the verdict might be set aside: Ras Bahari Lal and Emmett itself; see also Re Portillo [1997] 2 VR 723 (Callaway JA, Southwell and Coldrey AJJA agreeing) directing that steps be taken to identify evidence of improper communications between the jury keeper and jurors, with the intent that such material be available on an application for leave to appeal.
67At the heart of the reasoning of the Court in Emmett was the proposition that the jury verdicts were irregularly obtained in circumstances where the Sheriff's officers illegally and improperly communicated with the jury in ways explained by Lee J at 329-330. He continued, at 331, referring to references to the Crown Prosecutor and the judge:
"They were harmless references, as I see them, and although in strictness a sheriff's officer should refrain from any personal comment about the crown prosecutor, the judge or counsel or anyone else, including witnesses involved in the trial, I do not consider that they play any part in the result of this appeal. But the balance of the allegations are of real significance. They imply that pressure was being put upon jurors by the sheriff's officer Bob to reach a verdict, that that sheriff's officer and possibly the sheriff's officers Kay and Tom took part in discussion with the jury about the case and that Bob and Kay expressed an opinion that the accused were guilty."
68Lee J concluded at 335:
"For the Court not to inquire into the matter would be for the Court to condone the exposure of the jury to influence in arriving at its verdict by the very persons entrusted to ensure that the jury shall conduct is deliberations only with all jurors present, in secrecy, in private and free from opinions or pressure from anyone whether connected with the trial or not. To say that jurors could not reveal misconduct by sheriff's officers in the jury room would for all practical purposes be to say that no one can reveal misconduct of sheriff's officers in the jury room."
69Lee J held that at least two jurors were "influenced to arrive at the verdict of guilty by the conduct of the sheriff's officer": 336D. Enderby J stated at 339C:
"In my judgment it is not essential to prove that the jurors, or some of them, were actually influenced by what happened. It is enough for there to be a real suspicion that they may have been so influenced. On the facts of this case I accept that at least two jurors were influenced."
70Grove J agreed with Lee J, although he did not accept that the comments regarding the prosecutor and the judge were inconsequential.
71The Jury Act contains a number of prohibitions on disclosure. First, there is a prohibition on disclosure of any information likely to lead to the identification of a juror, which is subject to an exception with respect to the disclosure of information by the Sheriff, including to a court, "for the purposes of an investigation or prosecution of a contempt of court or an offence relating to a juror or jury": s 68(1) and (4).
72Sections 68A and 68B prohibit the solicitation of information from a juror and the disclosure of information by a juror or former juror about:
(a) the deliberations of a jury, or
(b) how a juror, or the jury, formed any opinion or conclusion in relation to an issue arising in a trial or coronial inquest: s 68A(1), s 68B(1) and (2).
73In Emmett, Grove J noted that the evidence "in its peripheries had the result of exposing not only the matter of interaction between the keepers and the jury but as an incidental of some of the activity amongst the jury inter se": at 340G. He further noted at 341:
"The community's intent in protecting jurors from harassment after their service has been made explicit in the Jury Act 1977, ss 68 and 68A. The result of this appeal should not be seen as derogatory of that intent and cannot be taken to condone or in someway licence the pursuit and interview of jurors after a verdict has been returned simply as an investigating process undertaken by a disappointed litigant."
74The Court in Emmett may not have found it necessary to consider the operation of ss 68 and 68A as, in their present form, they did not commence until 15 January 1988. The relevant disclosures may have been made before that time. One question in the present case may be whether inquiries made by the Sheriff with or without the consent of the Court, would fall within the prohibition in s 68. If they would, the prohibition is lifted by s 73A(5).
75In the present case, the investigations proposed by the applicant would not intrude upon or reveal the deliberations of the jury. They would invade the privacy of a specific juror (if he or she could be identified), but that course is justified if a real issue as to qualification or eligibility is raised.
76The applicant asserted that the information supplied raised a suspicion that one of the jurors may have been unable "because of sickness, infirmity or disability, to discharge the duties of a juror", being item 12 in Sch 2 of the Jury Act identifying persons ineligible to serve as jurors. He contended that if a juror were ineligible at the time of trial, it would be open to him to argue that a miscarriage had been occasioned which would require the conviction to be set aside, referring to R v Petroulias [2007] NSWCCA 134; 73 NSWLR 134.
77The Jury Act distinguishes between persons who are "disqualified from serving as jurors" and persons who are "ineligible to serve as jurors". Petroulias was concerned with a person who was disqualified, it having been discovered in the course of the trial that one of the jurors was subject to a court order disqualifying him from driving a motor vehicle, a ground of disqualification provided in Sch 1, item 3. It is not necessary to consider whether the reasoning of the majority (Simpson J, Hoeben J agreeing) in Petroulias was correct, nor whether it would apply to an ineligible juror. The applicant was content to rely upon the fact that it was "open" to him to argue that a miscarriage had been occasioned.
78Secondly, he submitted that it would be arguable that, if the juror did have a level of paranoia as to persecution by terrorists, it might be concluded that a fair-minded and informed observer would hold a reasonable apprehension of lack of impartiality of the part of that juror, in accordance with the test articulated in Webb v The Queen [1994] HCA 30; 181 CLR 41 at 47 (Mason CJ and McHugh J), at 57 (Brennan J), and at 69 (Deane J).
79The submissions should be accepted: they demonstrate that an investigation would not lack utility.
Conclusions
80The Court should make the following orders:
(1) Dismiss the summons seeking leave to appeal from the decision of McClellan CJ at CL as incompetent.
(2) Dismiss the summons seeking review pursuant to s 69 of the Supreme Court Act 1970 of the decision of McClellan CJ at CL.
(3) In the exercise of its power under s 73A of the Jury Act 1977, and such other jurisdiction as may be available in the administration of criminal justice, the Court requests the Sheriff to investigate whether a member of the jury which convicted the applicant of charges under the Criminal Code (Cth) in June 2006 may have been ineligible to serve as a juror pursuant to Sch 2, item 12 of the Jury Act 1977.