Citation: Baker v Commissioner of Police [2026] NSWCCA 66
Court: NSW Court of Criminal Appeal
Date: 29 May 2026
Judge(s): Kirk JA (primary judgment); Lonergan J and Weinstein J (both agreeing)
Background
The applicant faced four criminal charges in the District Court: two counts of intimidation with intent to cause fear of physical or mental harm, and two counts of using an offensive weapon with intent to commit an indictable offence. His jury trial was listed to commence on 25 May 2026.
Before the trial began, the applicant served a subpoena on the NSW Police Force seeking certified copies of Royal Assent documentation, proclamation certificates, certificates of authority, and Government Gazette listings for some 25 statutes. The Commissioner of Police moved to have the subpoena set aside. At the hearing of that motion, the applicant also challenged the primary judge's jurisdiction, arguing that a jury was required to determine any pre-trial matter. The primary judge rejected both challenges, set the subpoena aside for want of legitimate forensic purpose, and confirmed the court's jurisdiction to proceed without a jury.
The applicant then sought leave to appeal to the Court of Criminal Appeal (out of time) from those two interlocutory decisions. The appeal itself was heard on 22 May 2026, three days before the trial was due to start.
Legal Issues
- Whether the applicant was required to serve valid s 78B notices on the Attorneys-General before the Court could proceed to hear arguments touching on constitutional matters.
- Whether the Court of Criminal Appeal had jurisdiction to determine this appeal, or whether the applicant was entitled to have the appeal heard by a jury.
- Whether leave to appeal should be granted from the interlocutory decisions of the primary judge.
- Whether the applicant had a right to have pre-trial matters determined by a jury, derived from s 80 of the Commonwealth Constitution, the common law, or accrued statutory rights under Magna Carta or early State legislation.
- Whether the Royal Style and Titles Act 1973 (Cth) was inconsistent with the Commonwealth Constitution or the NSW Constitution Act 1902, thereby invalidating any subsequent Royal Assent to legislation.
- Whether the subpoena had a legitimate forensic purpose.
Decision
Issue 1: Section 78B notices and whether to proceed
The applicant had posted (by ordinary mail) notices to the Attorneys-General under s 78B of the Judiciary Act 1903 (Cth), which requires notice before a court proceeds to hear a matter involving constitutional questions. He confirmed at the hearing that none of the Attorneys-General had yet received those notices. The Court found it was nevertheless in the interests of justice to proceed. The constitutional arguments raised were characterised as frivolous, unarguable, and already concluded by existing authority. Given the interlocutory nature of the appeal and the imminent jury trial, expedition was necessary.
Issue 2: Time for filing the appeal
Although the notice of appeal was filed more than 14 days after the decisions under challenge, the Court extended time to file.
Issue 3: Leave to appeal
The Court refused leave to appeal. There is a significant public interest in a criminal accused proceeding to trial without interruption by appellate proceedings. The applicant had previously advanced very similar arguments before the Supreme Court and the Court of Appeal, and his disagreement with established legal principle did not, of itself, create a question of law worthy of leave. None of the grounds raised were reasonably arguable.
Issue 4: The right to a jury for pre-trial matters
The applicant argued that s 80 of the Commonwealth Constitution, the common law, and accrued statutory rights derived from Magna Carta and early State legislation each conferred an inalienable right to jury determination of pre-trial matters. The Court rejected all three bases. Section 80 applies only to trials of indictable offences against Commonwealth law, not State offences. There is no inalienable common law right to trial by jury in criminal matters. Any rights historically derived from Magna Carta or early State statutes are capable of being overridden by later State legislation, and the Criminal Procedure Act 1986 (NSW) expressly confers jurisdiction on the District Court to make pre-trial orders before a jury is empanelled. There was equally no legal basis for the Court of Criminal Appeal itself to be constituted with a jury.
Issue 5: Validity of Royal Assent and the Royal Style and Titles Act 1973 (Cth)
The applicant contended that the Royal Style and Titles Act 1973 (Cth) was inconsistent with the Commonwealth and State Constitutions, which would, on his argument, have rendered all subsequent Royal Assent to legislation invalid. The Court rejected this argument, relying on Joosse v ASIC and earlier decisions in which the same applicant had run identical arguments. A statutory change to the style or title by which the Queen is known in Australia does not work a fundamental constitutional change. The references in the Constitution Act 1902 (NSW) to "Her Majesty" are addressed by s 13(a) of the Interpretation Act 1987 (NSW), which provides that references to the Sovereign are references to the Sovereign for the time being, without regard to style or title.
Issue 6: Legitimate forensic purpose of the subpoena
Because the Royal Style and Titles Act argument failed entirely, the documents sought by the subpoena could not advance the applicant's defence. The subpoena had no legitimate forensic purpose, and the primary judge was correct to set it aside.
Orders Made
- Leave to appeal refused.
Key Takeaways
- Section 80 of the Commonwealth Constitution applies only to trials of offences against Commonwealth law; it confers no right to jury determination of pre-trial matters in State criminal proceedings.
- The NSW State Parliament has plenary power to regulate, and dispense with, jury involvement in criminal proceedings, including pre-trial procedural hearings, and any rights formerly derived from Magna Carta or early State statutes can be overridden by later State legislation.
- Under ss 130 and 130A of the Criminal Procedure Act 1986 (NSW), a judge in the District Court has express statutory jurisdiction to make pre-trial orders and set aside subpoenas before a jury is empanelled.
- A statutory change to the style or title of the Sovereign does not affect the constitutional validity of subsequent Royal Assent to legislation; the Royal Style and Titles Act 1973 (Cth) is not inconsistent with either the Commonwealth Constitution or the NSW Constitution Act 1902.
- Where s 78B notices have been posted but not yet received, a court may proceed without them if the constitutional arguments raised are frivolous, unarguable, and concluded, and where expedition is required in the interests of justice.
Legislation and Cases Referenced
Legislation
- Commonwealth Constitution, ss 80, 109
- Royal Style and Titles Act 1973 (Cth)
- Judiciary Act 1903 (Cth), s 78B
- Australia Act 1986 (Cth), ss 2, 3
- Criminal Appeal Act 1912 (NSW), s 5F
- Criminal Procedure Act 1986 (NSW), ss 130, 130A, 131, 132
- District Court Act 1973 (NSW), ss 11, 76A
- Constitution Act 1902 (NSW), ss 5, 8A, 9A(2)
- Interpretation Act 1987 (NSW), ss 13(a), 30(1)
- Imperial Acts Application Act 1969 (NSW), ss 6, 7
- Magna Carta
- Supreme Court (Criminal Appeal) Rules 2021, r 3.5
Cases
- Joosse v ASIC [1998] HCA 77; (1998) 73 ALJR 232
- Byrnes v The Queen (1999) 199 CLR 1; [1999] HCA 38
- Vunilagi v The Queen (2023) 279 CLR 259; [2023] HCA 24
- Union Steamship Co of Australia Ltd v King (1988) 166 CLR 1; [1988] HCA 55
- Stephens v The Queen (2022) 273 CLR 635; [2022] HCA 31
- Re Culleton [2017] HCA 3; (2017) 91 ALJR 302
- Re Finlayson; Ex parte Finlayson (1997) 72 ALJR