Lodhi v Attorney General of New South Wales [2013] NSWCA 433

Lodhi v Attorney General of New South Wales [2013] NSWCA 433

The refusal by the Supreme Court judge to consent to an investigation by the Sheriff under s 73A of the Jury Act 1977 (NSW) was an administrative act, not judicial, requiring no reasons; there was no legal error in that refusal. However, the Court itself, in the exercise of its administrative/criminal justice powers, is justified in requesting the Sheriff to investigate whether a juror in the applicant's trial may have been ineligible to serve due to mental illness, as credible grounds for suspicion exist and such investigation is permissible under s 73A.

Parties
Applicant: Faheem Khalid Lodhi; First Respondent: Attorney General of New South Wales; Second Respondent: The Hon Justice P D McClellan
Jurisdiction
Australia
Judgment Date
18 December 2013
Procedural Posture
Application for Judicial Review/leave to Appeal / Decision on Application for Leave to Appeal and Review
Outcome
Summons for leave to appeal and for review dismissed; Court itself requests Sheriff to investigate possible juror ineligibility.
Legal Topics
Judicial Review of Administrative Action, Jury Eligibility and Investigation, Powers of Courts Over Juries, Review of Conviction for Federal Offence, Requirements for Reasons, Protection of Jury Deliberations and Privacy
Administrative Law Criminal Law Jurisdiction Procedure Judicial Review of Administrative Action Jury Eligibility and Investigation Powers of Courts Over Juries Review of Conviction for Federal Offence +2 more

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Parties

Faheem Khalid Lodhi

Applicant

Attorney General of New South Wales

First Respondent

The Hon Justice P D McClellan

Second Respondent

Procedural Posture

Application for Judicial Review/leave to Appeal / Decision on Application for Leave to Appeal and Review

Legal Issues

  1. 1 Whether the Supreme Court Judge's refusal to consent to a jury investigation under s 73A of the Jury Act 1977 (NSW) is subject to judicial review or appeal
  2. 2 Whether a juror's alleged mental illness or bias gives rise to a suspected miscarriage of justice requiring investigation
  3. 3 Scope of State jurisdiction and administrative versus judicial powers in such investigations, especially for federal convictions

Ratio Decidendi

The refusal by the Supreme Court judge to consent to an investigation by the Sheriff under s 73A of the Jury Act 1977 (NSW) was an administrative act, not judicial, requiring no reasons; there was no legal error in that refusal. However, the Court itself, in the exercise of its administrative/criminal justice powers, is justified in requesting the Sheriff to investigate whether a juror in the applicant's trial may have been ineligible to serve due to mental illness, as credible grounds for suspicion exist and such investigation is permissible under s 73A.

Court Disposition

Summons for leave to appeal and for review dismissed; Court itself requests Sheriff to investigate possible juror ineligibility.

Orders

  • Dismiss the summons seeking leave to appeal from the decision of McClellan CJ at CL as incompetent.
  • Dismiss the summons seeking review pursuant to s 69 of the Supreme Court Act 1970 of the decision of McClellan CJ at CL.