High Court hands down judgment in Rizeq v Western Australia

On 21 June 2017, the High Court handed down judgment in the matter of Rizeq v Western Australia, which seems set to become a landmark judgment in the topic of federal jurisdiction.

Mr Rizeq, a resident of New South Wales, was convicted by a Western Australian court of drug-related offences under the Misuse of Drugs Act 1981 (WA), after he was found guilty by 11 out of 12 jurors.

As his trial was a matter involving a State and a resident of another State, the Western Australian court was exercising federal jurisdiction conferred by s 39(2) of the Judiciary Act 1903 (Cth).  Section 79 of the Judiciary Act provides that State laws are binding on a court exercising federal jurisdiction.

Mr Rizeq sought to argue that this meant he was being tried for offences against a law of the Commonwealth, and therefore he could only be convicted by a unanimous jury verdict. Section 80 of the Constitution provides that trial on indictment of any offence against a law of the Commonwealth be by jury, and previous cases have established that this requires a unanimous verdict.

The Attorney-General for the State of Queensland intervened in support of Western Australia, as did the Attorneys-General of other States and the Commonwealth.  The Solicitor-General, Peter Dunning, QC and Felicity Nagorcka appeared on behalf of the Attorney-General, with James Potter instructing.

The High Court unanimously dismissed Mr Rizeq’s appeal.  The majority judgment (Bell, Gageler, Keane, Nettle and Gordon JJ) held that s 79 of the Judiciary Act did not operate to pick up and apply the relevant provision of the Misuse of Drugs Act as a law of the Commonwealth.  That law continued to apply as a Western Australian law.

By contrast, the provision of the Western Australian statute providing for majority jury verdicts (s 114(2) of the Criminal Procedure Act 2004 (WA)) could not apply to a Western Australian court exercising federal jurisdiction, as it was beyond the power of the Western Australian Parliament to enact such as a law.  Instead, s 79 of the Judiciary Act picked up and applied the text of s 114(2) as a Commonwealth law.

This meant that Mr Rizeq’s trial was of offences against a law of Western Australia rather than offences against a law of the Commonwealth, and he was therefore not entitled to the protection of a unanimous verdict afforded by s 80 of the Constitution.