Re Grinter; Ex Parte Hall

(2004) 28 WAR 427; [2004] WASCA 79

Western Australia Court of Appeal

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Interrogate

Catchwords

1. Constitutional Law (Cth)
2. › Federal jurisdiction
3. › State courts exercising federal jurisdiction
4. › Picking up of State laws
5. › Whether State procedural law 'picked up' by Judiciary Act 1903 (Cth) s 68
6. › Whether compulsory witness examination procedure part of 'examination and commitment for trial on indictment'
7. › Judiciary Act 1903 (Cth), ss 68, 79
8. › Justices Act 1902 (WA), s 102
1. Constitutional Law (Cth)
2. › Separation of powers
3. › Judicial power
4. › Whether compulsory examination of witnesses by prosecution is exercise of judicial power or power incidental to judicial power
5. › Whether power is executive or administrative in character
6. › Justices Act 1902 (WA), s 102
1. Criminal Law
2. › Committal proceedings
3. › Nature and evolution of committal process
4. › Abolition of preliminary hearings in Western Australia
5. › Whether new committal regime retains judicial character
6. › Justices Act 1902 (WA), Pt V Div 2
1. Practice and Procedure
2. › Prerogative writs
3. › Certiorari and prohibition
4. › Quashing of summonses issued without jurisdiction
5. › Whether witness summoned under invalid procedure entitled to relief

Quick Take

Section 102 of the Justices Act 1902 (WA), which permits compulsory examination of witnesses by the prosecution before committal mention, cannot be used in proceedings for Commonwealth criminal offences because it is not picked up by s 68 of the Judiciary Act 1903 (Cth). The procedure is characterised as an executive evidence-gathering power, not part of the procedure for 'examination and commitment for trial on indictment'. The broader question of whether s 102 is constitutionally invalid under the Kable principle remains open.