Rizeq v State of Western Australia [2017] HCA 23: Federal or State Laws in Jury Trials

In John Rizeq v The State of Western Australia [2017] HCA 23 (21 June 2017), the  High Court of Australia has unanimously dismissed an appeal from the Court of Appeal of the Supreme Court of WA relating to two drug convictions (see Rizeq v The State of Western Australia [No 2] [2015] WASCA 165 (24 August 2015) and Rizeq v The State of Western Australia [2015] WASCA 81 (29 April 2015)) .

Background

The appellant in this matter had been convicted on two charges in the WA District Court  of offences under the Misuse of Drugs Act 1981 (WA) (the MD Act) section 6(1)(a).  

In the WA District Court, although a jury of 12 persons had been unable to reach a unanimous verdict on either charge at trial, the decisions of 11 of the 12 jurors were taken by the WA District Court to be verdicts of guilty under the Criminal Procedure Act 2004 (WA) (the CP Act) section 114(2) . The WA District Court then proceeded to convict the appellant of both offences.  

At all relevant times, the appellant was a resident of NSW and his trial involved a matter ". . . between a State and a resident of another State" within the meaning of the Constitution (Cth) section 75(iv) [Original jurisdiction of High Court]. The District Court therefore, was exercising federal jurisdiction under the Judiciary Act 1903 (Cth) section 39(2).

The appellant's appeal to the WA Court of Appeal [see [2015] WASCA 165 and [2015] WASCA 81)] was dismissed. By grant of special leave, the appellant appealed to the High Court Australia.

Appeal to the High Court

The appellant argued that, because the WA District Court was exercising Federal jurisdiction in his trial, WA law was incapable of valid application to the determination of his criminal liability in that trial.  The appellant argued that the MD Act section 6(1)(a) could not and did not apply as a law of WA. Instead it was picked up and applied as a law of the Commonwealth by the operation of the Judiciary Act 1903 (Cth) section 79 [State or Territory laws to govern where applicable].  The result of the application of section 79, the appellant argued, was that his trial was a trial on indictment of offences against a law of the Commonwealth for which, by operation of the Constitution (Cth) section 80 [Trial by jury], the verdicts of the jury were required to be unanimous. 

The High Court’s Decision

Unanimously dismissing the appeal, the High Court held that the appellant's trial was for offences against the laws of a State, not of offences against a law of the Commonwealth, and that the Constitution (Cth) section 80 had no application.  The Judiciary Act 1903 (Cth) section 79  was not needed, and was not engaged, to pick up and apply the MD Act section 6(1)(a) as a law of the Commonwealth.

It was held that a State Parliament is incapable of commanding a State court as to the manner of its exercise of Federal jurisdiction. Judiciary Act 1903 (Cth) section 79 is a law enacted by the Commonwealth Parliament to ensure that the exercise of Federal jurisdiction is effective.  Judiciary Act 1903 (Cth) section 79 fills a gap in the law governing the exercise of Federal jurisdiction which exists by reason of the absence of State legislative power, by picking up the text of a State law governing the exercise of State jurisdiction and applying that text as Commonwealth law to govern the manner of exercise of federal jurisdiction.  The operation of  Judiciary Act 1903 (Cth) section 79  is limited to making the text of State laws of that nature apply as Commonwealth law to bind a court in the exercise of federal jurisdiction - it has no broader operation.  The MD Act section 6(1)(a)  is a law "squarely within State legislative competence" and outside the operation of section 79. 

Further, it was  held that, Judiciary Act 1903 (Cth) section 79 was needed and was engaged to “pick up” and apply the text of the CP Act section 114(2)  as a law of the Commonwealth.  The CP Act section 114(2), being a law governing what is to be taken to be the verdict of a jury, can apply to a WA court only when that court is exercising WA jurisdiction. The Judiciary Act 1903 (Cth) section 79 operated to apply the text of s114(2) as a Commonwealth law to a WA court when that court was exercising Federal jurisdiction, except as otherwise provided by the Constitution (Cth) or by some other Commonwealth law. 

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John Rizeq v The State of Western Australia [2017] HCA 23 (21 June 2017) and High Court supporting materials and summaries.

Rizeq v The State of Western Australia [No 2] [2015] WASCA 165 (24 August 2015) and Rizeq v The State of Western Australia [2015] WASCA 81 (29 April 2015))