Queensland University of Technology Law and Justice Journal
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ANTHONY GRAY[*]
If anyone is possessed of an ambition to fill up ‘gaps’ in the
Constitution by restoring safeguards to the people, (they) may start by
endeavouring to secure that the right of trial by jury in serious cases
should
be made effective, for, as it is, s 80 means little more than this ‘if an
offence against Commonwealth law is triable before a Superior Court and a jury
and if it
is so tried, then it shall be so
tried’.[1]
This paper
attempts to address the challenge presented by Evatt J, writing extra-judicially
of the High Court’s narrow interpretation
of the right to trial by jury,
conferred on the Australian people in s 80 of the Constitution. What
could have been a strong protection of what many consider to be a fundamental
right has been rendered impotent by the High Court’s
interpretation of the
section. Ironically, the effect of the section’s current interpretation
is that what could have been
a protection from Federal Government abuse of
process only operates when the Federal Government decides that it should
operate.
It is this kind of perversity that has led respected members of the
High Court to describe the current interpretation of the section
as one
involving mockery.[2]
Only a few references need be made here to demonstrate the fundamental regard
in which the right to trial by jury has been held by
legal scholars. Lord Atkin
described the right as ‘ingrained ... in the British constitution and in
the British idea of justice’.[3]
Lord John Russell held it was to trial by jury that the Government of England
owed the attachment of its people to the
laws.[4] Blackstone called it the
‘grand bulwark of English liberties which cannot but subsist so long as
this palladium remains sacred
and
inviolate.[5] He said:
the
antiquity and excellence of this trial for the settling of civil property has
already been explained at large. And it will hold
much stronger in criminal
cases; since in times of difficulty and danger, more is to be apprehended from
the violence and partiality
of judges appointed by the crown, in suits between
the sovereign and the subject, than in disputes between one individual and
another,
to settle the metes and boundaries of private property. Our law has,
therefore, wisely placed this strong and twofold barrier of
a presentment (grand
jury/subsequently committal) and a trial by jury between the liberties of the
people and the prerogative of
the
Crown.[6]
The United States
Supreme Court noted that country’s protection of the right:
Those
who wrote our constitutions knew from history and experience that it was
necessary to protect against unfounded criminal charges
brought to eliminate
enemies and against judges too responsive to the voice of higher authority. The
framers of the constitution
strove to create an independent judiciary but
insisted upon further protection against arbitrary action. Providing an accused
with
the right to be tried by a jury of his peers gave him an inestimable
safeguard against the corrupt or overzealous prosecutor and
against the
compliant or biased or eccentric
judge.[7]
Deane J described
it as a:
deep seated conviction of free men and women about the way in
which justice should be administered in criminal cases. That conviction
finds a
solid basis in an understanding of the history and functioning of the common law
as a bulwark against the tyranny of arbitrary
punishment.[8]
Trial judges
themselves have expressed reservations about the wisdom of running a major
indictable offence trial without a
jury,[9] and the right is considered
fundamental in international
law.[10]
Something needs to be said of the history of the fundamental right to trial
by jury from its creation and recognition in Great Britain
to its eventual
adoption in Australian law prior to the drafting of s 80. To understand why s
80 may have been created, it is helpful to appreciate the context and the long
history of the right to trial by jury.
Though some have sourced the right
to trial by jury to the Magna
Carta[11] in
1215,[12] the better view seems to
be that the English jury practice was originally adopted centuries earlier by
the French kings in the exercise
of their prerogatives. Maitland states that
the French inquisition practice ‘perished, transplanted to England where
it grew
and flourished, and became that trial by jury which after long centuries
Frenchmen introduced into modern France as a foreign, an
English,
institution’.[13] This
original crude form of jury trial was then adopted in the Assize of Clarendon,
an enactment of King Henry II in 1166. The
Assize called for inquiry to be
made, by the oath of twelve men, as to which persons were ‘publicly
suspected’ of robbery,
murder or theft, or harbouring those who had
committed such an
offence.[14]
As originally
conceived by the French, however, if the king wished to know something, he would
employ an inquisitor (investigator)
to enquire of the relevant people, such as
those living in the area where the dispute or contested events
happened.[15] These neighbours were
initially witnesses to the action, and reflects the original role of what we now
call ‘jury’ members
in Great Britain as being witnesses rather than
independent umpires.[16] The idea
of neighbours as witnesses to the legal action eventually evolved to the
position that jurors were not necessarily witnesses,
but rather independent
arbiters of the truth.[17]
It is both interesting and instructive to consider briefly the development of
and experience of the right to trial by jury in Great
Britain in the centuries
before the establishment of British colonies in Australia and the United States.
No doubt the British and
American experiences were in the minds of the Founding
Fathers when drafting the Australian guarantee. As Griffith CJ himself stated
in R v Snow:
the rationale and the essential function of that
guarantee are the protection of the citizen against those who customarily
exercise
the authority of government; legislators who might seek by their laws
to abolish or undermine ‘the institution of trial by
jury’ with
all that was connoted by that phrase in constitutional law and in the common law
of England’ (emphasis
added).[18]
One need
hardly comment on the influence of Griffith in the drafting of the Commonwealth
Constitution, so these comments are considered to be especially
significant in the discussion of the right to trial by jury.
The origin
of what we now recognize as trial by jury seems to have originated in the
practice of the French kings of using the oaths
of neighbours to determine a
dispute involving the king’s interests. These enquiries by neighbours
were known as inquisitions.
The king also had power to grant this novel process
to private litigants if he wished. This process was then extended to criminal
matters. The traditional process of private accusation in criminal matters was
dispensed with, being seen as insufficient for the
peace of the realm.
‘The king finds himself strong enough to order that the men of a district
be sworn to accuse before royal
officers, those who have been guilty of crime.
These royal officers ... sent out to receive such accusations and hold such
inquisitions’.[19]
Use
of what we might consider to be jury trials grew rapidly in Great Britain from
this adoption. By the fourteenth century, it had
already become an ancient
prerogative to have one’s guilt judged by twelve laymen, regardless of the
seriousness of the charge.
The inquisition (what we now know as the committal)
would take place with what came to be known as a grand
jury.[20] The actual trial would be
decided by a ‘petit’
jury.[21] Originally, a person
could be a member of both the grand jury and the petit jury, but eventually this
practice was discouraged.
As the volume of cases continued to grow, it became
infeasible for trials of every criminal charge to be dealt with through this
process.[22]
It is recorded
that around the time of King Henry VII, penal statutes began to restrict the
grand jury’s scope of activity,
by authorizing justices to initiate
prosecutions themselves, apart from the indictment process. For example, 11 HEN
VII c3 allowed
justices ‘by their own discretion to hear and determine all
offences and contempts’ other than
felonies.[23] As the number of
offences increased, it became increasingly difficult to arrange for a jury trial
for offences, as well as to find
suitable people to act as jurors. Parliament,
while initially resisting King Henry VII’s moves, eventually gave more
power
to justices to hear and determine matters without resorting to juries.
This was particularly the case with newly created offences,
such as petty
disorders, swearing, drunkenness, embezzlement, and wage-bargaining. Later it
was extended to excise legislation,
trade laws, and game acts.
An
interesting question is whether one can identify a principle upon which the
decision was made to entrust an issue to a justice
rather than a jury.
Frankfurter and Corcoran conclude there was no science to this:
There
was no unifying consideration as to the type of criminal offense subjected to
summary trial nor any uniformity in the number
of magistrates before whom the
various offenses were tried. Although the great majority of instances were
aptly described as petty
violations, some bordered closely on serious felonies
and were punished with appropriate severity. The controlling factor seems
less
the intrinsic gravity of the offense, judged by its danger to the community,
than the desire for a swift and convenient
remedy.[24]
Although most
offences triable summarily were punishable by fine only, a number were
punishable by a term of imprisonment. While
in most of these instances, the
maximum jail term was 12 months, there were exceptions. For example, one
English statute punishing
the burning of houses at night, made the felony
punishable by transportation to a penal colony for seven
years.[25]
There is
substantial literature documenting the expansion in Britain of the number of
criminal cases which could be heard by a judge
sitting
alone.[26]
The experience
with jury trials in Great Britain has been briefly traced here, which shows the
evolution and flexibility of the institution
of jury trial from its original
conception. There has been a history of continual refinement and modification
of the incidents of
trial by jury through the
centuries.[27]
While the historical material available is understandably limited and not
available in detail, it is clear that there was no immediate
adoption of
something like a jury system upon the arrival of the First
Fleet.[28] An 1787 Act authorised
the establishment of a court of criminal judicature in the penal settlement of
New South Wales.[29] However, the
court was to comprise a judge together with six navy or army officers. The
strong military presence on the court,
resembling in many ways a court-martial,
reflected the nature of the settlement as a penal colony. This system might
have been suitable
in the early days, but as the number of free settlers and
emancipists grew, the military nature of court proceedings grew increasingly
incongruous.[30] It has been
suggested that the military tribunal could be manipulated by Macarthur and
others and could not be relied on to be impartial,
especially when military
interests were
involved.[31]
Reflecting the
need for some changes to the adjudication system in the fledgling settlement,
the 1823 Act[32] created a jury
system for civil cases, with the main qualification for service on the jury
being property ownership. There is a
record in 1825 of the first civil case to
be heard by a jury in the colony of New South
Wales.[33] Changes made to the
criminal system required that the officers take an oath of the same nature as
(non-military) jurors in England
made.
As early as 1824, there is a
record of the New South Wales Supreme Court Chief Justice Forbes, strongly
advocating jury trial.[34] Reform
proposals from the New South Wales Executive Council in that year were prepared
at the request of Lord Bathurst in England.
They included the proposal that the
trial of all crimes and misdemeanours should take place before juries comprised
of six officers
or magistrates nominated by the Governor and six inhabitants of
the colony proposed by the
sheriff.[35] The proposals were
supported by Governor Darling.
However, the English authorities
continued to resist calls for the general introduction of trial by jury. They
were influenced by
reports from John Bigge who advocated continuing the
military-based system, on the basis that the officers were less likely to come
into contract with the general population, and so be prejudiced by local
jealousies and disputes, than would members of a
jury.[36] James Stephen rejected
juries due to the then makeup of the New South Wales population, ‘there
would be no chance of equal
justice being done by any juries which could be
empanelled’.[37] Criminal
cases continued to be heard by a judge and a panel of seven commissioned
officers (called a ‘jury’ but not
resembling the then-established
English practice of appointing citizens with no particular background). There
is some evidence that
during some Quarter Sessions, trial by jury was adopted as
a matter of standard practice. This was, however, contrary to the express
provisions of the 1823 Act.
Again in 1828, the House of Commons
considered and refused an argument from some colonists for guaranteed jury
trial. Importantly
though, the House passed a law allowing the Crown to
authorise the Governor of New South Wales to make necessary provision for
further
introduction and application of the
right.[38] Newly appointed Governor
Bourke was determined to take advantage of this right. He implemented
legislation in 1832 which conferred
a right to trial by jury in cases where the
Governor or a public official might have a personal interest. In 1833, he
narrowly secured
support for his Bill entitling a person accused of crimes and
misdemeanours to a jury trial of 12
persons.[39] It was agreed that a
convicted person who had served their time might be eligible for jury service.
Civil matters would also be
heard by a jury of
12.[40]
This development was
as much a victory for the rights of the accused as it was for the broader
political struggle occurring within
the colony, which would eventually embrace
representative institutions rather than autocratic governance. Competence to
serve on
juries also meant competence to vote for and be a member of the
representative political institutions which would eventually be granted
to the
colony.[41]
There is little
historical evidence of the development of the practice of holding summary trials
in the colonies. However, Evatt
documented that in 1922, while 857 prisoners
were convicted upon indictment, 5,666 had been convicted in police (magistrates)
courts,
presumably after a summary trial. Figures from 1923 showed similar
results, with 907 prisoners convicted upon indictment, and 5,571
convicted in
the police courts. In other words, about 85% of the total number of persons
imprisoned during the year had been convicted
summarily of offences.
It
is interesting to consider in what circumstances a jury trial, as opposed to a
summary proceeding, would take place in each of
the colonies. Again, there is
scant evidence of this. It seems however that the New South Wales Government at
one stage conferred
limited jurisdiction on a magistrate to deal (summarily)
with ‘indictable’
offences.[42] This tends to support
the views of Deane J in Kingswell v R that ‘indictment’
referred to the form of proceedings, and did not necessarily prescribe a form of
trial, namely trial
by jury, although in practice the two were often
connected.[43] Reports of the
practices in other colonies/States state that ‘all criminal issues on
indictment are determined by a jury of
twelve’ but unfortunately do not
explain the basis on which proceedings are brought upon indictment or
summarily.[44] There is no
reference to police (magistrates) courts in the discussion of any other colony
than New South
Wales.[45]
However, there is
authority for the statement that trial on indictment otherwise than by trial by
jury was unknown to the Australian
colonies prior to federation. Wilson J makes
this point in Brown, citing R v Alice Short as authority for the
proposition.[46] That case involved
the accused being charged with murder, and convicted of manslaughter. After all
jurors had been sworn, one of
them became ill, and could not continue. Another
juror was found, and sworn in. However, the remaining 11 jurors were not
re-sworn.
The Supreme Court of New South Wales was in no doubt in that case
that the conviction could not stand. It is rejected by them in
that case that
the accused could have consented to a trial (at least for murder) without a
properly constituted jury. The High Court
unanimously held in Cheatle v The
Queen that ‘by the time of federation, the common law institution of
trial by jury had been adopted in all the Australian colonies
as the method of
trial of serious (emphasis added) criminal
offences.[47]
Summarising the
Australian experience, we see for historical reasons an initial denial of an
accused’s right to trial by jury
in the newly established penal colony,
but a gradual acceptance of its desirability. By the time of federation, the
right to trial
by jury was well established, at least for serious
offences.[48] Alice Short was not
able to waive this right in 1898 because the right was well-established in the
colonies by then, having been
(belatedly) adopted from England and reflecting
the English interpretation of the fundamental importance of the
right.[49]
It is instructive to consider the experience of another former British
colony in its recognition of the right to trial by jury prior
to the recognition
of that right in the United States
Constitution.[50] It has
been noted of this consideration that ‘all of the colonies, to some extent
at least, re-lived the experience of the
mother country, and resorted to summary
jurisdiction for minor offenses with full loyalty to their conception of the
Englishman’s
right to trial by
jury’.[51]
For example,
the practice in New York from at least 1685 was that justices of the peace were
given jurisdiction to deal with drunkenness,
swearing and Sabbath-breaking,
without jury involvement. In the early 1700s, this was extended to laws
relating to fish and game,
liquor sales, forest fires, servants, cattle,
vagrancy and later grand larceny. Some offences that could be dealt with
summarily
could be punished by jail terms.
Denial of the right to trial
by jury in some cases was one of the reasons for separation contained in the
Declaration of Independence (1776), but reliance on summary trials
continued after independence from Britain.
The New York courts’ use
of the pre-existing practice in relation to jury trials has been interesting in
cases involving interpretation
of the New York Constitution. For example, in
cases such as Murphy v
People[52] and Jackson v
Wood,[53] the Supreme Court
relied upon the implication of the colonial practice for taking trials for petty
larceny out of the jury requirements.
The Court of Appeals in 1878 declared the
constitutional protection of trial by jury not applicable to prosecutions for
assault
and battery which, under colonial law, had been dealt with
summarily.[54] This leads
Frankfurter and Corcoran to the conclusion that ‘in New York, the
available limits of a criminal procedure which
dispenses with trial by jury have
not been found in the language of its Constitution. They have been drawn
from colonial
history’.[55]
While
there is little evidence of the distinction in Australia made between offences
which could be heard summarily and those which
required jury trial, the
distinction was made explicit by the Court of Errors and Appeals in a New Jersey
case:
the real underlying historically established test depends upon the
character of the offence involved rather than upon the penalty
imposed. The
offence must be a petty and trivial violation of regulations established under
the police power of the state in order
that the offender may be summarily tried,
convicted, and punished without indictment by a grand jury and without trial by
a petit
jury. It must, of course, be assumed that the punishment for such a
petty and trivial offence must also be comparatively petty and
trivial ... the
theory, as I understand it, that gave rise to the distinction at common law and
in subsequent statutes, is that the
convenience and benefit to the public
resulting from a prompt and inexpensive trial and punishment of violations of
petty and trivial
police power regulations are more important than the
comparatively small prejudice to the individual resulting from his being
deprived
of the safeguard of indictment before having to answer and of trial by
a jury when held to answer. This, of course, is the converse
of the rule with
regard to serious offences, crimes and misdemeanours, where, for the
preservation of the liberties of the people,
the security afforded the
individual by his right to trial by jury is more important than the mere
convenience of the public arising
from a speedy and inexpensive summary
trial.[56]
In summary, the
experience in both Australia and the United States has been the implementation
of the British experience of trial
by jury as a general principle, subject to
exceptions given the petty nature of the offence.
There is also ample
authority in the United States context for interpreting their constitutional
protection to trial by jury in the
light of its meaning in the common law. For
example in American Publishing Co v
Fisher,[57] the Supreme Court
concluded that a unanimous verdict was required to meet the requirements of the
Sixth Amendment right to trial
by jury, reasoning that ‘unanimity was one
of the peculiar and essential features of trial by jury at the common
law’.
Section 80 of the Commonwealth Constitution seems to confer a
guarantee of trial by jury, at least for Commonwealth
offences.[58] However, previous
decisions of the High Court have clearly not given it a broad operation and
rendered the guarantee a frail one
at best, as we shall see.
Two
questions which arise upon reading the section:
(a) the meaning of the phrase
‘trial on indictment of any offence’; and
(b) why the clause
applied only to a law of the Commonwealth, when the Founding Fathers had left
the topic of crime, criminal law
and criminal process to the States.
A logical place to start in addressing the first question is to consider the
Convention Debates, accepting they are an imperfect record
of the intentions of
the drafters of the Constitution, and their persuasiveness in
interpreting a clause of the Constitution is a matter for conjecture more
than 100 years after the document was
drafted.[59]
Griffith’s 1891 draft of the clause confined the guarantee to
‘indictable offences’. During debate in Melbourne
in 1898, Isaacs
put the view that the guarantee could be evaded, through the Commonwealth
redefining the word indictable so that
any offence could be defined as
non-indictable, thus rendering the supposed protection impotent. He noted that
it was for Parliament
to decide what would be an indictable offence and what
would not be. If the Parliament wished to, it could say that murder was not
an
indictable offence, and the trial could lawfully take place without a
jury.[60] Wise, O’Connor and
Barton apparently were concerned with this suggestion. They asked whether
public sentiment would ever
tolerate the punishment of imprisonment for an
offence which was not triable on indictment. This has been taken as a
suggestion
that Wise, at least, attributed to the public an understanding of
indictment as being a necessary precursor to
imprisonment.[61]
Interestingly,
Barton moved an amendment to change ‘trial of all indictable
offences’ to ‘trial on indictment of
any offence’. His
reasoning was that:
There will be numerous Commonwealth enactments which
would prescribe, and properly prescribe, punishment and summary punishment; and
if we do not alter the clause in this way they will have to be tried by jury,
which would be a cumbrous thing, and would hamper the
administration of justice
of minor cases entirely (emphasis
added).[62]
Quick and Garran
state the object of this amendment ‘was to allow summary punishment of
minor offences and contempts, even though
they might be
indictable’.[63] The majority
of the High Court in Cheng[64]
relied on the acceptance of this amendment as evidence that it was intended
to provide Parliament with complete discretion over the
availability of jury
trials.
However, it is argued here the above conclusion is not
necessarily correct. It seems that Barton believed that a jury trial should
not
be available to those accused of minor crimes, in case the courts would be
clogged. This is an unremarkable concern which finds
support in the history of
the English system. However, it seems from his singling out of ‘minor
offences’ in making
the above comment that it was implicit in his mind
that a right to jury trial would be automatic for those accused of serious
crimes
(however defined). And further, that Barton had no quibble with such a
position. The author is not the only one with this view
of the comments of
Barton.[65]
La Nauze asks
the obvious question – when the potential for the section to be
meaningless was so clear, why was it let through?
His answer is
that:
presumably, they were perfectly confident, for the reasons implied
by Sir Owen Dixon, that trial by jury would not be in danger in
the types of
cases in which it was sanctioned by centuries of tradition. Most of these
cases, in any event, would in the first instance
be within the jurisdiction of
State courts; neither States nor Commonwealth would seek to abolish or evade the
use of juries where
it was necessary to justice as conceived by the
electors.[66]
The High Court has until now accepted a literal reading of the words of
the section. As Higgins J put it in Archdall, ‘if there be an
indictment, there must be a jury; but there is nothing to compel procedure by
indictment’.[67] This
approach, which has been unquestioningly accepted by most High Court judges
hearing s 80 matters,[68] is
considered by the writer to be fundamentally wrong. Others have questioned its
precedent value, given that the judgment contains
no
reasoning.[69] It has been called
by some commentators a decision of ‘dubious
pedigree’.[70]
It is
argued that the chief error made in this reasoning is the meaning of
‘trial on indictment’. The orthodox view is
that these words mean
‘trial initiated by a procedure which involves trial by jury’.
However, if read in this way, the
section is tautological. Literally, it reads
that ‘a trial by jury shall be by jury’. This is clearly a
ridiculous
outcome, and one reason why a literal approach should not be taken to
the section.
Dixon and Evatt JJ were similarly unimpressed with the
orthodox view:
It is a queer intention to ascribe to a Constitution; for
it supposes that the concern of the framers of the provision was not to ensure
that no one should be held guilty of a serious
offence against the laws of the
Commonwealth except by the verdict of a jury, but to prevent a procedural
solecism, namely the use
of an indictment in cases where the legislature might
think fit to authorize the court itself to pass upon the guilt or innocence
of
the prisoner. There is high authority for the proposition the
Constitution is not to be
mocked.[71]
They found the
orthodox view ‘treats (the) constitutional provision as producing no
substantial effect (which) seems rather
to defeat than to ascertain its
intention’.[72]
McHugh J in Cheng v The
Queen,[73] though
eventually accepting the orthodox narrow view regarding the scope of the
section, admitted that so interpreted, ‘the
section serves little
purpose’.[74]
One
might wonder about the wisdom of continuing to interpret a provision in such a
fundamental document as the Australian Constitution in a way that even
some of its adherents admit render the section
impotent.[75] This is even more so,
when one realizes that potentially, the section could be used to strongly
protect rights which many great
judges and legal scholars agree are fundamental
in a democratic society.
A better way of viewing the requirement for a trial on indictment to be heard
by a jury may be to ascribe to ‘trial on indictment’
a different
meaning. One meaning could be that the English understood a trial on indictment
to be a two-stage process, which in
that country came to involve a grand jury
deciding the prima facie case question, and then a petit jury assessing guilt.
Perhaps
if the ‘indictment’ is used to describe the two-stage
process, rather than the requirement for a jury, some interpretation
difficulties would disappear from the section. The next question would be then
on which occasions this two-stage process was used.
The answer might be, only
in relation to serious charges, however defined. This was certainly the English
experience – once
generally accepted, trial by jury was initially used for
all criminal proceedings, only to be subsequently progressively limited
as minor
matters were transferred to the magistrates for consideration without a
jury.[76] Let us consider whether
there is any historical support for this interpretation.
The historical
evidence in relation to England is not precise in determining the meaning of the
phrase ‘trial on indictment’
or the word ‘indictment’.
Writing of English criminal history, Beattie writes ‘the main record of
those courts
was the indictment, the formal charge against the prisoner that was
normally drawn up by a clerk of the court, and read in summary
form when the
prisoner was arraigned ... The indictment contained the name of the accused and
his occupation and residence, and it
stated the date, place and nature of the
crime ... By the seventeenth century, the clerks were listing on the back of the
bill the
names of witnesses sworn in court. On the reverse side is also to be
found the verdict of the grand jury, which either sent the
accused to trial or
discharged him on the grounds there was no case to be
answered’.[77]
A
reading of The Constitutional History of England gives another sense in
which the word ‘indict’ is used.
Maitland[78] uses the phrase
‘the trial of a man for crime by a petty jury after a grand jury has
indicted him’. This indicates the
nature of an indictment as a two stage
process. Maitland then goes on to consider the English practice from the Norman
conquest,
where initially criminal matters were heard by appeal or private
accusation, which led to trial by battle. He notes that gradually
under Henry
II and his heirs, parties to a dispute could purchase from the king the
privilege of having questions tried by an inquest
of neighbours (similar to the
originally French practice of inquisitions). This was known as the indictment.
If the inquest found
there was a case to answer, the matter would proceed to
trial. This originally involved trial by ordeal but then itself evolved
into
trial by neighbours.
The conclusion reached on the English historical
material available is that originally sourced in France, trial on indictment was
closely associated with a jury trial. However, it was not associated in the
modern way, whereby there is initially a committal before
a magistrate alone,
followed by a jury trial. The traditional way was that the committal would be
by jury, followed by trial by
ordeal, combat etc. Later, these alternate ways
themselves also gave way to jury trial. Juries were thus initially involved in
both stages of the process. So the word ‘indictment’ and the phrase
‘trial by indictment’ certainly contemplated
the use of juries; but
also contemplated a two-stage process of determining guilt. It may be an error
to equate ‘trial by
indictment’ with ‘trial by
jury’.
Both the Australian and American courts have considered the meaning of
the right to trial by jury by referring to the historical practice
in England.
There is clear authority for reading s 80 in light of the common law existing at
the time. In considering the question of unanimous jury verdicts, the High
Court in Cheatle concluded:
in 1900, it was an essential feature
of the institution (jury trials) that an accused person could not be convicted
otherwise than
by the agreement ... of all the jurors. It is well settled that
the interpretation of a constitution such as ours is necessarily
influenced by
the fact that its provisions are framed in the language of the English common
law, and are to be read in the light
of the common law’s
history.[79]
An earlier
reference to the Convention Debates on s 80 indicates the belief of the one who
proposed an amendment to it that the right to jury trial would continue to exist
for those accused
of serious crimes, as it had at common
law.[80]
If the High Court is
impressed with the history of the right in confirming that the right is an
absolute one, as it did in Cheatle, is it not logical to consistently
conclude that the history of the right is that it is particularly fundamental in
serious criminal
cases (however defined). If the Supreme Court of New South
Wales was convinced in 1898 that Alice Short could not have elected to
have her
murder charge heard by a judge sitting alone, is this not evidence that prior to
federation, an accused had an absolute
right to trial by jury in serious
criminal cases, and this position needs to be reflected in how we interpret and
apply s 80?[81]
Professor Scott wrote of the evolving meaning of trial by jury in the
following terms:
only those incidents which are regarded as fundamental,
as inherent in and of the essence of the system of trial by jury, are placed
beyond the reach of the legislature. The question of the constitutionality of
any particular modification of the law as to trial
by jury resolves itself into
a question of what requirements are fundamental and what are inessential, a
question which is necessarily,
in the last analysis, one of degree. The
question, it is submitted, should be approached in a spirit of open-mindedness,
of readiness
to accept any changes which do not impair the fundamentals of trial
by jury. It is a question of substance, not
form.[82]
The High Court in
Cheatle v The Queen[83]
indicated its interpretation of the right to trial by jury would be influenced
by what it saw as the ‘essential’ characteristics
of that right,
influenced by history. In deciding in that case that the section required that
the verdict be unanimous, the unanimous
judgment took solace in the fact that
‘in 1900, it was an essential feature of the institution that an accused
person could
not be convicted otherwise than by the agreement or consensus of
all the jurors’.[84] The
court concluded that neither the exclusion of females nor the existence of some
property qualification was an essential feature
of the jury system in the
Australian colonies as at 1900.
This reasoning was continued by members
of the Court in Brownlee v The
Queen.[85] Gleeson CJ and
McHugh J referred with apparent approval to the functional approach applied in
the United States for determining
the validity of legislation regulating
juries,[86] in compiling their own
list of ‘essential
features’.[87] Gleeson CJ and
McHugh J considered whether it was, or should today be, an essential requirement
of jury trial that the jury be sequestered
during its deliberations. They
acknowledged that the incidents of jury trials changed dramatically over the
centuries, and would
continue to do so. Given this, it could not be said that
all of the characteristics of jury trial at any given time were considered
essential. On the facts, the requirement that the jury be kept isolated during
deliberations was not an essential
one.[88] The contemplation in State
legislation of its departure did not offend s 80 of the Constitution.
Though Kirby J took a different view as to the importance of the history
of the s 80 provision, he agreed the enquiry should be as to the essential
characteristics of trial by jury, and agreed that sequestration of
the jury
while deliberating was not one of
them.[89] His Honour referred with
approval to United States precedents on a similar issue which considered
‘the function that the particular
feature perform(ed) and its relation to
the purposes of the jury trial’. Function here was not limited to the
function of
the jury as at the time of federation, but could embrace subsequent
developments in relation to jury
usage.[90]
The logical
extension to these arguments by the various judges in Brownlee is this
– how essential is it to the proper functioning of the jury process that
it be used whenever the court is hearing a
‘serious’
charge?
The author submits that it is essential, and their own reasoning
should have led the court to the conclusion that the orthodox view
as to the
scope of s 80 was incorrect. How can it be seriously argued, for example, that
the right to a unanimous verdict was ‘essential’, but
the
requirement to use a jury at all for some kinds of case was not? As the High
Court (unanimously) itself said in Cheatle, a decision confirmed in
subsequent cases Cheng and Brownlee, ‘by the time of
federation, the common law institution of trial by jury had been adopted in all
the Australian colonies as
the method of trial of serious criminal
offences’,[91] and ‘by
1900, trial by jury was firmly established by legislation in each of the
federating colonies as the universal method
of trial of serious
crime’.[92]
With
respect, how can it be seriously suggested in the 21st century that
the requirement for a jury trial in serious crime was not
an essential
requirement regarding juries at the time of federation? Yet the orthodox view
requires that we accept unanimity as
an essential feature of jury trial as at
the start of federation, but not the right to have a jury trial itself, at least
for serious
offences.
Recall here the dissenting judgment of Dixon and Evatt JJ in
Lowenstein where their Honours concluded that an intention to produce
some real operative effect should be conceded to the section, and that
its
supposed protection should not be rendered illusory by an interpretation that
allows the very body against whom the right would
be exercised to determine
whether the right should or should not
apply.[93]
Gaudron J in
Cheng v The Queen[94] took
the view that s 80 conferred a substantive right on individuals. Kirby J agreed
that the section should not be seen as a ‘withered guarantee
of no
substantive use to those facing trials for federal
offences’.[95] As such, it
had to be interpreted according to the settled principle that constitutional
guarantees are to be construed liberally
and not pedantically confined. The
existing interpretation of the provision rendered the protection largely
ineffective.[96]
The right to
trial by jury is considered to be one of the most important rights that a
citizen in a democracy possesses. Many references
were made earlier in the
article to comments from esteemed judges and legal scholars reflecting upon the
great tradition and importance
of this right, both to do justice in respect of a
citizen accused of a crime, but to reinforce the public’s involvement in
and respect for legal
processes.[97]
Given the fundamental importance of this right, the author believes it
justifies the court reconsidering the orthodox narrow view
of s 80, which
renders the potentially great protection what might be considered a frail
shield. It may be that the founding fathers did
not conceive s 80 as a section
which would act as a strong protection of
rights.[98] This may be because
they did not think that this was necessary, influenced as they were by Diceyan
thinking regarding Parliament’s
law-making power, causing them to decline
to include an express bill of
rights.[99]
However, the
author agrees with the proposition accepted by all members of the High Court in
Cheng and Brownlee – the intention of the founding fathers,
and the history leading up to federation, is not the only guide to how the
section
can and should be interpreted today. It is not inconceivable that s 80
in the 21st century has more of a role in protecting the rights of
accused persons than the founding fathers intended when they drafted
the
Constitution. This is not considered to be unfaithful to the intention
of the founding fathers.[100]
Some judges have rejected an interpretation of s 80 that would confine it
to the meaning
intended (even if such could be ascertained) by the founding
fathers (presumably objectively) when the clause was finally approved.
Kirby J
in Cheng found that the framers of the Constitution ‘did not
intend, nor did they enjoy the power to require, that their subjective
expectations, wishes or hopes should control
all succeeding generations of
Australians who live under the protection of the
Constitution’.[101]
Kirby J in Brownlee v The Queen referred to the dilemma for those
who adhere to the 1900 criterion in construing our Constitution:
Either they must indulge in false history, laying emphasis on
exceptional straws in the wind to ascribe extraordinary prescience to
the
framers. Or they must embrace counter-factual fictions about what those framers
would have intended. Or they are forced to
adopt a hybrid criterion that in
respect of the sex and property qualifications of jurors mentioned in
Cheatle, gives a passing nod to the intention of the framers in 1900 but
hurries back to the attributed features of the trial by jury as
a contemporary
institution according to the generally accepted standards of a modern democratic
society.[102]
He did not
agree that the views of the founding fathers as to the meaning of s 80 was
determinative or even significant in determining the meaning of the section
today.[103]
Once the above argument is accepted, the answer to this question seems
obvious. The founding fathers intended that the status quo
in the colonies that
existed at the time of federation would continue post-federation. We have
already seen evidence that by the
time of the late 1800s, it was an established
right of an accused in the colonies, at least in serious cases, to have the
matter
heard by a jury. The founding fathers knew that the States would be
regulating criminal law. They assumed that the right of the
accused to trial by
jury in serious cases would continue in the States, as it had in the colonies,
and they wanted to apply the same
right to any serious offences that might later
be created by the new Federal Government.
They wanted to be sure,
however, that not all cases would need to be heard by a jury, taking on board
the experience in other countries
with trials for petty offences sometimes being
(inefficiently) dealt with by a jury. To ensure this flexibility, they required
that
only certain trials, those on indictment, required a jury trial. However,
it is submitted this was not intended to, and should not,
mean that the
Commonwealth Parliament could absolutely decide whether trials should proceed
upon indictment or summarily. If this
were the intention, surely the founding
fathers would not have included the provision at all. The idea was that the
Commonwealth
would have discretion to provide that minor federal offences be
dealt with summarily, but that for serious offences, the trial would
be by way
of jury, as had been the experience in the Australian colonies up until the time
of federation.
Further support for this view appears in the judgment of
Gaudron J in the Kable
case.[104] Her Honour in that
case emphatically rejected any suggestion that the Commonwealth
Constitution was intended to permit different grades or qualities of
justice. If this is so, it can be argued that given in the colonies the
right
to trial by jury was regarded as automatic for all serious offences, the
Constitution should not be presumed to have intended to create a
different regime for criminal offences created by the new Commonwealth
Parliament.
The High Court in Kable was particularly concerned
with legislation which would undermine public confidence in the judiciary by
conferring inappropriate
powers on it. It is at least arguable that allowing a
Chapter III Commonwealth court to determine the guilt or otherwise of an accused
for a serious offence,[105]
without jury involvement, would undermine public confidence in the system of
administration of justice. De Tocqueville understood
the political importance
of a jury’s involvement in law enforcement generally:
Political
laws owe their chief support to the enforcement of the penal laws; if this
support be wanting, the law sooner or later loses
its force. He who is invested
with decisions of political matters, is in truth the master of society. But the
institution of the
jury places the people, or at least a class of the people, in
the judgment seat. This institution in fact, therefore, places the
direction of
society in the hands of the people, or of the class from which the juries are
taken.[106]
Accepting the criticism that where one draws the line between an offence that
is serious and thereby warranting a jury trial can seem
somewhat
arbitrary,[107] there is a
respectable body of opinion to suggest that any offence punishable by more than
one year’s imprisonment should be
considered an indictable offence, and
require a jury trial to determine the matter. Indeed, that is as least the
starting presumption
contained in the Commonwealth’s Crimes Act
1914.[108] This was also the
conclusion reached by Deane J in
Kingswell,[109] taking into
account the general practice in the Australian colonies at the time of
federation and the general practice in England
at the time. The author
respectfully agrees with such a suggestion. The section should be interpreted
to require that a trial for
the offence of any provision the maximum punishment
of which is at least one year’s imprisonment should be heard by a
jury.[110]
This article argues for a broad reading to be given to s 80, entitling a
person accused of a ‘serious crime’ against Commonwealth
law to a
jury trial. This has been justified on the basis of:
• The long
history of jury trials in the common law system and their great importance in
our system of criminal procedure.
• The adoption of jury trials for
most trials in the Australian colonies prior to federation.
• That one
of the essential aspects of a jury trial is its use in serious
cases.
• The High Court has used the ‘essential aspects of a jury
trial as at 1900’ to justify the continuing requirement
of some aspects of
jury trials, though not (yet) on the fundamental issue of whether or not jury
trial is available at all.
• That the right is a fundamental one that
should not be taken away at the whim of the Parliament.
• That the
limited rights conferred by the Constitution should be read expansively
in modern times, in accordance with modern requirements, while still paying
regard to the intentions of
the framers of the Constitution.
A
broad reading of s 80 is justified also when one considers why the protection in
s 80 applies only to Commonwealth offences, when the founding fathers well knew
that criminal law would largely be a State issue. It
reflects their
understanding that the status quo in the States would remain, that jury trial be
used for all serious offences. Section 80 sought to expand the status quo then
existing in the States to the newly created Commonwealth.
Section 80 has
been mocked for too long. It is time to give it substantive effect.
[*] BBus(Hons) GDipLegPrac LLM QUT, PhD UNSW. Head of
Department, Law, Faculty of Business, University of Southern Queensland. Thanks
to an anonymous reviewer for helpful comments
on an earlier draft.
[1]H Vere Evatt, ‘The Jury System in Australia’ (1936) 10 Australian Law Journal (Supp) 49, 64.
[2] Kirby J in Cheng v The Queen [2000] HCA 53; (2000) 203 CLR 248, 332 ‘Section 80
appears in the Constitution. It has been mocked and evaded in Australia for too
long’, and Dixon and Evatt JJ in R v Federal Court of Bankruptcy; ex
parte Lowenstein [1938] HCA 10; (1938) 59 CLR 556, 581-582:
A cynic might suggest the
possibility that s 80 was drafted in mockery; that its language was carefully
chosen so that the guarantee it appeared on the surface to give should be
in
truth illusory. No court could countenance such a suggestion and ... an
intention to produce some real operative effect (should
be) conceded to the
section ... there is high authority for the proposition that the Constitution is
not to be mocked.
[3] Lords
Debates 5th series, vol 87, 1054. In Ford v Blurton 38 TLR
805 he considered that:
Trial by jury ... is an essential principle of our
law. It has been the bulwark of liberty, the shield of the poor from the
oppression
of the rich and powerful. Anyone who knows the history of our law
knows that many of the liberties of the subject were originally
established and
are maintained by the verdicts of juries in civil cases. Many will think that
at the present time the danger of
attack by powerful private organizations or by
the encroachments of the executive is not diminishing. It is not without
importance
that the right now taken away is expressly established as part of the
American Constitution’. Lord Devlin in Trial by Jury (1966)
declared ‘trial by jury is more than an instrument of justice and more
than one wheel of the constitution; it is the
lamp that shows that freedom lives
... the first object of any tyrant ... would be to make Parliament utterly
subservient to his
will, and the next to overthrow or diminish trail by jury,
for no tyrant could afford to leave a subject’s freedom in the hands
of
twelve of his countrymen (164).
[4]
English Government 394. Refer also to Blackstone’s Commentaries
on the Laws of England (1st ed, 1966 rep) Book III 379-381,
Book IV 342-344. William Forsyth in his book History of Trial by Jury
(1875) 449 claims that ‘the whole establishment of Kings, Lords and
Commons and all the laws and statutes of the realm have
only one great object,
and that is, to bring twelve men into a jury
box’.
[5] W Blackstone,
Commentaries on the Laws of England (1876 ed vol 4)
342-343.
[6] Ibid 360, 349-350.
He was concerned with the growing trend to summary offences:
And however
convenient these may appear at first, yet let it be again remembered, that
delays, and little inconveniences in the forms
of justice, are the price that
all free nations must pay for their liberty in more substantial matters; that
these inroads upon this
sacred bulwark of the nation are fundamentally opposite
to the spirit of our constitution; and that, though begun in trifles, the
precedent may gradually increase and spread, to the utter disuse of juries in
questions of the most momentous concern’. Lord
Devlin observed that a
tyrant would firstly make Parliament subservient to his will, and then
‘overthrow or diminish trial
by jury.
He concluded jury trial was
more than an instrument of justice and more than one wheel of the
Constitution: ‘It is the lamp that shows that freedom lives’
(Lord Devlin, Trial by Jury (1978)).
[7] Duncan v Louisiana
[1968] USSC 152; (1968) 391 US 145, 156. Professor Joseph Story in his Commentaries on the
Constitution of the United States (1833:1970 rep Vol III 653) wrote:
The
great object of a trial by jury in criminal cases is to guard against a spirit
of oppression and tyranny on the part of rulers,
and against a spirit of
violence and vindictiveness on the part of the people ... The sympathies of all
mankind are enlisted against
the revenge and fury of a single despot ...In such
a course there is a double security against the prejudices of judges, who may
partake of the wishes and opinions of the government, and against the passions
of the multitude, who may demand their victim with
a clamorous precipitancy.
Alexis De Tocqueville in Democracy in America noted:
The
institution of the jury ... places the real direction of society in the hands of
the governed, and not in the hands of the government
... He who punishes the
criminal is ... the real master of society ... all the sovereigns who had chosen
to govern by their own authority,
and to direct society instead of obeying its
direction have destroyed or enfeebled the institution of the jury: at 282-83.
Refer more recently to the Supreme Court in Apprendi v New Jersey
[2000] USSC 57; (2000) 530 US 466 confirming the fundamental importance of jury trial by
requiring that facts that would increase the maximum jail term for the offender
must also be proven and accepted by the jury beyond reasonable doubt, and the
Supreme Court in Jones v United States [1999] USSC 21; (1999) 526 US 227, 247-248, noting
the founders’ fears that the right could be lost not only by gross denial,
but by erosion. The Sixth Amendment
to the United States Constitution
guarantees the right to trial by an impartial jury ‘in all criminal
prosecutions’. Article 3, section 2 cl 3 of that Constitution also
guarantees that the trial of all crimes will be by jury, excluding
impeachment.
[8] Kingswell v
R [1985] HCA 72; (1985) 159 CLR 264, 298. His Honour added it was part of the
‘structure of government and distribution of judicial power adopted by,
and for
the benefit of, the people of the federation as a whole’. Brennan
J in Brown v The Queen [1986] HCA 11; (1986) 160 CLR 171, 197 described trial by jury as
‘the chief guardian of liberty under the law and the community’s
guarantee of sound administration
of criminal justice’, Murphy J in Li
Chia Hsing v Rankin [1978] HCA 56; (1978) 141 CLR 182, 198 stated that ‘the
judicature provisions of our Constitution should be read in the light of
the deep attachment of the people for whom the Constitution was made to
trial by jury for criminal offences ... the jury system is the main social
defence against governmental or other oppression,
the main instrument for
preserving the liberties of the people’, see Justice Murphy, ‘Trial
by Jury: The Scope of Section 80 of the Constitution’ in D Challinger (ed)
The Jury (1986). Gaudron J in Cheng v The Queen [2000] HCA 53; (2000) 203 CLR
248, 277 noted that ‘trial by jury is so deeply embedded in our judicial
process that its importance in protecting the liberty
of the individual from
oppression and injustice needs no elaboration’. Kirby thought that
‘the role of the jury in our
legal tradition, in mitigating the operation
of laws sometimes considered excessive, would have been well known to the
founders of
the Australian Commonwealth’, 329
G Fricke presents one
practical effect of introducing jury trial in Northern Ireland prosecutions.
Jury trials were suspended in
that country in relation to certain offences. The
acquittal rate of courts trying these offences without juries subsequently
declined
from 57% in 1973 to 33% in 1981. In relation to other offences, the
acquittal rate in jury trials increased from 38% to about 60%
in Northern
Territory during a similar period. Fricke uses this example to justify his view
that ‘judges who are regularly
called upon to hear criminal prosecutions
without juries become case-hardened and prosecution-minded’: G Fricke,
Trial by Jury (Research Paper No. 11, Parliament of Australia
Parliamentary Library, 1996-97).
[9] In R v Marshall (1986)
43 SASR 448, 496-499, a trial judge presiding alone over a murder charge
expressed misgivings; see also Justice Hennan, ‘Trial by Judge
Alone’ (1995) 4 Journal of Judicial Administration 240; Justice
Hidden ‘Trial by Judge Alone in New South Wales’ (1997) 9 Judicial
Officers’ Bulletin 41; J Willis, ‘Trial by Judge Alone’
(1998) 7 Journal of Judicial Administration
144.
[10] Article 14(1) of the
International Covenant on Civil and Political Rights, to which Australia
is a signatory, requires that everyone shall be entitled to a fair and impartial
hearing by a competent, independent
and impartial jury established by law; the
Sixth Amendment to the United States Constitution also guarantees the
right to trial by jury in criminal
matters.
[11] Article 39 of
which stated that ‘no freemen (sic) shall be taken or imprisoned except by
the lawful judgment of his peers
or by the law of the
land’.
[12] For example,
Justice Harlan speaking for the United States Supreme Court in Thompson v
Utah [1898] USSC 77; (1898) 170 US 343, 349, stated that: ‘when Magna Carta
declared that no freeman should be deprived of life etc, but by the judgment of
his peers or by the law of the land, it referred
to a trial by twelve
jurors’. See also N Blake ‘The Case for the Jury’ in M
Findlay and P Duff (eds) The Jury Under Attack
(1988).
[13] F Maitland, The
Constitutional History of England (1968)
122.
[14] see Professor R H
Helmholz ‘The Early History of the Grand Jury and Canon Law’ (1983)
50 University of Chicago Law Review
613
[15] Maitland, above n
13, 120-131.
[16] See Justice
McHugh ‘Jurors’ Deliberations, Jury Secrecy, Public Policy and the
Law of Contempt’ in M Findlay and
P Duff (eds) The Jury Under
Attack (1988).
[17] A
development noted by Maitland, above n 13,
211.
[18] [1915] HCA 90; (1915) 20 CLR 315,
323.
[19] Maitland, above n 13,
121-122.
[20] Refer to A Bruce
‘The Judge and the Grand Jury’ (1932-1933) 23 American Institute
of Criminal Law and Criminology 16; and A Lieck, ‘Abolition of the
Grand Jury in England’ (1934-1935) 25 American Institute of Criminal
Law and Criminology 623.
[21]
A French word for small, reflecting the French roots of the practice. Further
information concerning these arrangements may be
found in S F C Milson
Historical Foundations of the Common Law (2nd ed, 1981)
409-413, and in J Baker, An Introduction to English Legal History
(3rd ed, 1990) 87-90,
576-579.
[22] F Frankfurter and
T Corcoran, ‘Petty Federal Offenses and the Constitutional Guarantee of
Trial by Jury’ (1926) 39 Harvard Law Review 917,
924.
[23] It was appropriate
that contempt offences could be heard by a judge without a jury because the
judge had seen the facts himself,
and thus did not need members of a jury to
give evidence as witnesses: J Baker, An Introduction to English Legal
History (1990) 583. Refer also to Lord Devlin, ‘The Conscience of the
Jury’ (1991) 107 Law Quarterly Review
398.
[24] Frankfurter and
Corcoran, above n 22, 927.
[25]
22 and 23 CAR II c7, noted in Frankfurter and Corcoran, above n 22, 927.
Current examples in Commonwealth statutes where offences
may be treated
summarily exist although the maximum imprisonment is greater than 12 months.
Section 24C of the Crimes Act, dealing with seditious enterprises,
carries a maximum term of imprisonment of three years. Section 232A of the
Customs Act 1901 (Cth) creates the offence of rescuing goods that have
been seized, destroying goods or documents to prevent their seizure and
assaulting
officers in the execution of their duty. It provides that an
offender should be liable upon summary conviction to imprisonment for
two years.
Similarly, the legislation unsuccessfully challenged in Zarb v Kennedy
(1968) 121 CLR 383 provided for two years’ imprisonment for an offence
which was to be heard
summarily.
[26] R Burn,
Justice of the Peace (1776), referred to by Frankfurter and Corcoran;
Blackstone, Commentaries (1769) 276, 281 deploring the growth of
practices threatening the ‘disuse’ of juries, J Beattie, Crime
and the Courts in England 1660-1800 (1986) 315, Maitland, above n 13, 231.
This expansion was not free of criticism, with one author lamenting that
‘such powers
were appropriate only for minor offences, but even so they
infringed the principle that a man should only be judged by his peers,
and they
were regarded with deep suspicion by the superior judges’: J Baker, An
Introduction to English Legal History (1990) 584, and another lamenting that
some of those chosen to act as magistrates were unfit for their work and others
were actually
corrupt: Sir G Cross and G D H Hall, The English Legal
System (4th edition, 1964).
[27] A point noted by the High
Court in Brownlee v The Queen (2001) 207 CLR 278, 286 (Gleeson CJ and
McHugh J), 291 (Gaudron Gummow and Hayne
JJ).
[28] Vere Evatt, above n 1,
53.
[29] 27 Geo III
c2.
[30] Early advocates of a
jury system for all criminal trials in the colony included William Balmain,
Captain Bligh, and Ellis Bent,
who had been appointed Deputy Judge-Advocate in
the colony: The Committee of Inquiry of 1812 agreed with the views of Captain
Bligh
that the inhabitants of the colony were anxious ‘not to be so much
in the power of the military’ and ‘to have some
kind of justice that
might bring them nearer to their brethren in Great Britain’, Melbourne,
Early Constitutional Development in Australia (1963) 40-42.,
51.
[31] Fricke, above n 8,
3.
[32] 4 Geo IV c96.
[33] J M Bennett, ‘The
Establishment of Jury Trial in New South Wales’ [1961] SydLawRw 4; (1961) 3 Sydney Law
Review 463.
[34] Sydney
Gazette, 21 October, 1824: ‘it would not merely be against the express
language of Magna Charta (sic) to try free British
subjects, without the common
right of a jury, but against the whole law and constitution of England’.
The judge was said to
have issued a mandamus, the result of which was that a
complete system of civil jury trial was set in motion at the Quarter Sessions
level. The Executive Council of New South Wales would later wholeheartedly
agree with the jury system, mandating it for both civil
trials and criminal
trials, with half of the jury in a criminal case to be commissioned officers,
and the other half local residents.
In 1832, a bill was passed providing for
criminal cases to be heard by 12 civil inhabitants of the colony where the
Governor or
any Member of the Executive Council might have some personal
interest in the case, and this entitlement to jury trial in criminal
cases was
extended to crimes and misdemeanours generally in the colony by an 1847 Act (11
VIC no20).
[35] Melbourne, above
n 30, 124.
[36] Ibid,
76-77.
[37] Ibid,
148.
[38] Section 6 9 George IV
c83.
[39] In other colonies, the
process was easier: the first jury trial took place in Victoria in 1839, and the
other colonies soon followed:
see M Chesterman, ‘Criminal Trial Juries in
Australia: From Penal Colonies to a Federal Democracy’ (1999) 62 Law
and Contemporary Problems
69.
[40] 2 Wil IV c3, extended
by various laws including 4 Wil IV c12, the number of jurors in civil cases
reduced to four in New South Wales
by 8 Vic
c4
[41] D Neal, The Rule of
Law in a Penal Colony (1991) 170; and ‘The Political Significance of
the Jury’ in D Challinger (ed), The Jury (1986), proceedings of the
Australian Institute of Criminology Seminar on the Jury. Links between juries
and political stability
also appear in Lord Devlin, The Judge (1981)
127.
[42] Evatt refers to a 1924
New South Wales law which ‘extended the jurisdiction of the magistrates so
as to cover a certain number
of indictable offences, including larceny, where
the amount involved did not exceed 10 pounds’. Previously, those accused
of indictable offences had a guaranteed right to trial by jury. Wilson J in
Brown v The Queen refers to R v Alice Short as authority for the
proposition that ‘trials on indictment otherwise than by jury were unknown
in the Australian colonies
prior to
1900’.
[43] [1985] HCA 72; (1985) 159 CLR
264, 305-306.
[44] This is
considered unusual, because the Evatt article goes into detail on the extent to
which charges are dealt with summarily,
rather than by jury, in New South Wales.
The lack of reference to what was happening in other States may reflect a
difficulty in
obtaining satisfactory evidence of the practice in other States.
It is considered unlikely to reflect that summary jurisdiction
was not available
in those other States.
[45] J
Quick and R Garran, Commentaries on the Constitution (1901) do not shed
light on this issue, but conclude that ‘the distinction ... between
indictable offences and offences punishable
in a summary way ...(should be
interpreted such that the s80 protection should) extend to all prosecutions
which are substantially in the nature of an
indictment’.
[46] (1898)
19 NSWR 385.
[47] [1993] HCA 44; (1993) 177 CLR
541, 549, to like effect Kingswell v R [1985] HCA 72; (1985) 159 CLR 264, 304 (Deane
J).
[48] Deane J stated in
Kingswell v R [1985] HCA 72; (1985) 159 CLR 264, 306 that the founding fathers were
presumably aware of the distinction between trials on indictment and summary
offences when agreeing
to a draft of the section. Deane J concludes that the
practice at the time of federation was that offences punishable by at least
one
year’s imprisonment be heard by jury: at
309.
[49] Griffith CJ in R v
Snow [1915] HCA 90; (1915) 20 CLR 315, 323 saw s 80 as designed to make sure that the
‘institution of trial by jury with all that was connoted by that phrase in
constitutional
law and in the common law of England’ should be applied.
Deane J noted in Kingswell at 300, that when British settlements were
established in other parts of the world, trial by jury was claimed as a
‘birthright
and inheritance’ under the common law.
[50] Connecting the United
States experience with the Australian, the High Court noted in Cheatle v
The Queen [1993] HCA 44; (1993) 177 CLR 541, 556 that ‘one would expect that
it was the intention of the framers of our Constitution to carry over into s 80
any settled interpretation of the words of that central command in the United
States provision’. Kirby J in Cheng also connected the two
countries’ experience: ‘The United States inherited, in virtually
all jurisdictions, as did this
country, the common law of England. It received
the traditions and practices of English criminal procedure, including trial by
jury’,
330, and ‘the concepts and history that underlie the United
States jurisprudence are equally applicable here. They are relevant
because the
textual differences are immaterial’,
332.
[51] F Frankfurter and T
Corcoran, ‘Petty Federal Offenses and the Constitutional Guarantee of
Trial by Jury’ (1926) 39 Harvard Law Review 917, 936. Again, this
seems to have occurred for reasons of expediency. Some evidence of this is
found in a Pennsylvanian law of 1700,
defining the jurisdiction of the justices.
Introducing a system of summary proceedings for minor cases, it reasoned
‘whereas
many times, persons for misdemeanours, the fine of which is but
small, being presented by the grand jury ... have been put to great
charges by
reason of the fees that have been accrued thereupon, for prevention whereof
(this law has been enacted)’: 2 Pennsylvania
Statutes c21,
19.
[52] (1824) 2 Cow (NY)
815.
[53] (1824) 2 Cow (NY)
819.
[54] People ex rel
Murray v Justices (1878) 74 NY 406, to like effect People v Craig
(1909) 195 NY 190.
[55]
Frankfurter and Corcoran, above n 51, 949. A similar result eventuated in
Connecticut, where the summary jurisdiction which existed
in that colony was
thought to have been implicitly incorporated in its constitution of 1818, though
the document actually stated
that trial by jury was a right of the accused in
all criminal cases. The provision was read down on the basis it was never
intended
to take from judges the long-standing power to deal with petty offences
without resorting to a jury trial (Goddard v State (1838) 12 Conn 448,
455). One might refer also to Pennsylvania, where again the guarantee of jury
trial has been read down to not apply to summary
prosecution for minor offences.
As Judge Strong (later of the United States Supreme Court) noted:
it was a
right the title to which is founded upon usage, and its measure is therefore to
be sought in the usages which prevailed at
the time when it was asserted ...
Summary convictions for petty offences against statutes were always sustained,
and they were never
supposed to be in conflict with the common law right to a
trial by jury. The ancient as well as modern British statutes at large
are full
of Acts of Parliament authorizing such convictions: Byers v Commonwealth
(1862) 42 Pa St 89.
[56] Katz
v Eldredge (1922) 97 NJL 123,
151.
[57] [1897] USSC 87; (1897) 166 US 464,
468; see also Patton v United States [1930] USSC 74; (1930) 281 US 276, 297 (allowing
limited exceptions to this principle); Johnson v Louisiana [1972] USSC 105; (1972) 406 US
356 and Apodaca v Oregon [1972] USSC 103; (1973) 406 US 404; R Rutland, The Birth of
the Bill of Rights 1776-1791
(1983).
[58] ‘The trial on
indictment of any offence against any law of the Commonwealth shall be by jury,
and every such trial shall be
held in the State where the offence was committed,
and if the offence was not committee within any State, the trial shall be held
at such place or places at the Parliament prescribes’. The section
appears to be based on equivalent provisions in the United
States
Constitution, Article 2 s 2 cl 3 of which requires that the trial of all
crimes be by jury, held in the state where the offence was committed, but when
not committed
within any State, by such places as the Congress
directs.
[59] In Cole v
Whitfield [1988] HCA 18; (1988) 165 CLR 360, 390 the High Court, discussing the use of the
Convention Debates, stated that:
Reference to ... history ... may be made,
not for the purpose of substituting for the meaning of the words used the scope
and effect
– if such could be established – which the founding
fathers subjectively intended the section to have, but for the purpose
of
identifying the contemporary meaning of the language used, (and) the subject to
which that language was
directed.
[60] Convention
Debates (Melbourne 1898)
1894.
[61] A Simpson and M Wood,
‘A Puny Thing Indeed – Cheng v The Queen and the
Constitutional Right to Trial by Jury’ [2001] FedLawRw 5; (2001) 29 Federal Law Review
95, 108
[62] Official Record
of the Debates of the Australasian Federal Convention (Melbourne 4 March
1898) 1895.
[63] Quick and
Garran, above n 45, 807.
[64]
Cheng v The Queen [2000] HCA 53; (2000) 203 CLR
248.
[65] Simpson and Wood,
above n 61, 109, noting that Barton reinforced this qualification several times
while explaining his proposal:
The original draft meant that, however small
might be the offence created by any Commonwealth enactment, supposing an offence
that
should be punishable summarily, it would, nevertheless, have to be tried by
jury ... The better way, however, is as we suggest, that
where there is a power
of punishing a minor offence summarily, it may be so punished summarily. But
where an indictment has been
brought the trial must be by jury’:
Official Record of the Debates of the Australasian Federal Convention
(Melbourne 1898 Vol 5) 194. Further evidence is found at 1895: ‘There
will be numerous Commonwealth enactments which would
prescribe, and properly
prescribe, punishment and summary punishment; and if we do not alter the clause
in this way they will have
to be tried by jury, which would be a cumbrous thing,
and would hamper the administration of justice of minor cases entirely
(emphasis added).
A further mischief Barton perhaps saw was a situation
where s 80 compelled a jury trial for some minor offence, by reason only of its
historical classification as an indictable offence at common
law, for example
criminal contempt. Historically, this crime was an indictable offence, but a
practice had long developed of allowing
it to be dealt with summarily.
[66] J La Nauze, Making of
the Australian Constitution (1972) 228. This fits with the Founding Fathers
general (Diceyan-influenced) antipathy towards explicit rights protection. It
was
unnecessary due to their faith in the Parliamentary process. Cockburn at
the Convention Debates, for example, wondered whether any
of the colonies had
ever attempted to deprive a person of life, limb or property without due
process, and was concerned comments
such as ‘pretty things these States of
Australia; they have to be prevented by provisions in the Constitution from
doing the grossest injustice’ would be made by observers if an express
Bill of Rights were included: Convention Debates (Melbourne 1898 vol 1)
688.
[67] R v Archdall and
Roskruge; Ex Parte Brown [1928] HCA 18; (1928) 41 CLR 128, 138-139. McHugh J reiterated
this view in Cheng v The Queen [2000] HCA 53; (2000) 203 CLR 248, 291: ‘The
literal meaning of s 80 is very clear: trial by jury is required only where the
trial is on
indictment’.
[68] R v
Federal Court of Bankruptcy; Ex Parte Lowenstein [1938] HCA 10; (1938) 59 CLR 556 (Dixon
and Evatt JJ dissenting), Zarb v Kennedy [1968] HCA 80; (1968) 121 CLR 283, Li Chia
Hsing v Rankin [1978] HCA 56; (1978) 141 CLR 182 (Murphy J dissenting), Kingswell v R
[1985] HCA 72; (1985) 159 CLR 264 (Brennan and Deane JJ dissenting), Brown v The Queen
[1986] HCA 11; (1986) 160 CLR 171 (Brennan and Deane JJ dissenting on this point), Cheng v
The Queen (20001) [2000] HCA 53; 203 CLR 248 (Gaudron and Kirby JJ dissenting on this
point), Brownlee v The Queen (2001) 207 CLR 278 (Kirby J dissenting on
this point).
[69] Simpson and
Wood, above n 61, 103-104 point out that by today’s standards, the
court’s refusal in Archdall to provide reasons taints its precedent
authority, citing Gleeson CJ ‘Judicial Legitimacy’, an address to
the Australian
Bar Association Conference, New York, 2 July 2000 for the
observation ‘decisions of the High Court are not subject to the usual
form
of judicial accountability, that is to say, the appeals process. The only form
of accountability which applies is the requirement
to give reasons’.
Others to have expressed reservations with the courts’ reliance on
Archdall include G Williams, Human Rights Under the Australian
Constitution (1999) 107 and M Coper, Encounters With the Australian
Constitution (1987), 326:
Despite the absence of any supporting
reasoning, this (Archdall) peremptory decision sealed the fate of section
80. As has happened at various times in the development of Australian
constitutional law, the issue quickly assumed the aura of being
settled, even
though it had not been the subject of full discussion, and it maintained that
aura through constant repetition ...
of the bare assertion that it was
settled.
[70] J Willis,
‘Paying Lip Service to the Jury’ in Dennis Challinger (ed), The
Jury (1986) 37, noted that ‘for reasons best known to itself, (the
High Court has) refused to give s 80 any real
effect’.
[71] R v
Federal Court of Bankruptcy; Ex Parte Lowenstein [1938] HCA 10; (1938) 59 CLR 556, 581-582;
Deane J agreed in Kingswell at
307.
[72] Ibid 584. Even McHugh
J, who accepts the majority orthodox view, admitted in Cheng that the
result is that the section serves little purpose,
289.
[73] [2000] HCA 53; (2000) 203 CLR 248,
289.
[74] Kirby J lamented that
the effect of the orthodox view of s 80 was that the section ‘might just
as well not have been included in the Constitution’,
307.
[75] As Barwick CJ
lamented, but declined to address, ‘what might have been thought to be a
great constitutional guarantee has
been discovered to be a mere procedural
provision’: Spratt v Hermes [1965] HCA 66; (1965) 114 CLR 226,
244.
[76] Reference has already
been made to this English trend. Beattie wrote of the trend still occurring
hundreds of years after it had
commenced:
In the nineteenth century numerous
minor property offences and assaults were transferred to the jurisdiction of
magistrates acting
summarily. This had begun in the eighteenth century and had
gone far enough to worry libertarians like Blackstone who deplored the
growth of
practices that threatened ‘the disuse of juries.
However, as at 1800,
all felonies and many misdemeanours continued to be tried before juries: J
Beattie, Crime and the Courts in England 1660-1800 (1968)
315.
[77] Ibid 19, Professor
Helmholz, ‘The Early History of the Grand Jury and the Canon Law’
(1983) 50 University of Chicago Law Review
613.
[78] Maitland, above n 13,
126.
[79] Cheatle v The
Queen [1993] HCA 44; (1993) 177 CLR 541, 552; one may also recall the comments of Griffith
CJ in Snow [1915] HCA 90; (1915) 20 CLR 315, 323 that the requirement of s 80 involved
an adoption of the institution of trial by jury with all that was connoted by
that phrase in constitutional law and the
common law of
England.
[80] Barton at the 1898
Convention, in moving an amendment, commented that if the Court had to hear all
cases involving Commonwealth
offences by jury, this would ‘hamper the
administration of justice of minor cases entirely’. This is submitted to
imply
that the section was not intended to take away the then common law right
to a jury trial in ‘serious’ cases: Official Record of the
Debates of the Australasian Federal Convention (Melbourne 4 March 1898),
1894. (After quoting these remarks, McHugh J in Cheng concludes that the
words of the section show ‘the freedom of the Parliament to choose which
offences should be classified as
indictable and which should be classified as
summary, so that the Parliament could control which offences against the law of
the
Commonwealth should be tried by jury’, 295). The author cannot agree,
with respect, that this is a reasonable summation of
the available historical
literature from the Convention Debates. The comments by Barton are
taken, to the contrary, to mean the continuation of the common law right to
trial by jury. If the founding
fathers had doubted whether it would continue,
they would have guaranteed it in the wording of s
80.
[81] This view is
inconsistent with the comment of McHugh J in Cheng v The Queen (2000) 203
CLR 249, 295 that: ‘whether one looks at text, history or purpose, the
answer is the same: the approach to the construction of s 80 accepted by the
majority in Kingswell and by this court in earlier cases is correct.
Section 80 is not a great guarantee of trial by jury for serious
matters’.
[82] A W Scott,
‘Trial by Jury and the Reform of Civil Procedure’ (1918) 31
Harvard Law Review 669, approved of by Brandeis J in Ex Parte
Peterson [1920] USSC 123; (1920) 253 US 300,
310.
[83] [1993] HCA 44; (1993) 177 CLR
541.
[84] It added that it
was:
Well settled that the interpretation of a constitution such as ours is
necessarily influenced by the fact that its provisions are
framed in the
language of the English common law, and are to be read in the light of the
common law’s history. In the context
of the history of the criminal trial
by jury, one would assume that s 80’s directive that the trial to which it
refers must be by jury was intended to encompass that element of unanimity:
Cheatle
v The Queen [1993] HCA 44; (1993) 177 CLR 541,
552.
[85] (2001) 207 CLR 278;
see for discussion J McConvill and M Joy, ‘Approaching Constitutional
Trial by Jury: Brownlee v The Queen (2001) 6 Deakin Law Review
217.
[86] Their Honours referred
to Williams v Florida [1970] USSC 150; (1970) 399 US 78, where the United States Supreme
Court stated that the essential feature of a jury lay in the interposition
between the accused and
his accuser of the commonsense judgment of lay persons,
and in the community participation and shared responsibility resulting from
that
group’s determination of guilt or innocence.
[87] The list included
independence, representativeness and randomness of selection, the need to
maintain the prosecution’s obligation
to prove the case beyond a
reasonable doubt, and the protection of the integrity of the jury’s
verdict, 289; Gaudron Gummow
and Hayne JJ to like effect, 298. Refer also to
Ng v The Queen [2003] HCA 20; (2003) 197 ALR 10. The concept of essential aspects of
jury trials is discussed further in J Stellios, ‘Brownlee v The Queen:
Method in the Madness’
[2001] FedLawRw 14; (2001) 29(2) Federal Law Review 319 and
‘The High Court’s Recent Encounters with Section 80 Jury
Trials’ (2005) 29 Criminal Law Journal 139. Refer also to M
Findlay, ‘The Role of the Jury in a Fair Trial’ in M Findlay and P
Duff (eds), The Jury Under Attack
(1988).
[88] Gaudron Gummow and
Hayne JJ reached the same conclusion, adopting similar reasoning, Brownlee v
The Queen (2001) 207 CLR 278,
301.
[89] Brownlee v The
Queen (2001) 207 CLR 278,
330.
[90] Citing Williams
[1970] USSC 150; (1970) 399 US 78, 99-100: per Kirby J in Brownlee
329.
[91] Brownlee v The
Queen (2001) 207 CLR 278,
549.
[92] Brownlee v The
Queen (2001) 207 CLR 278,
551.
[93] R v Federal Court
of Bankruptcy; ex parte Lowenstein [1938] HCA 10; (1938) 59 CLR 556,
581-582.
[94] [2000] HCA 53; (2000) 203 CLR
248, 277-278.
[95] Cheng v
The Queen [2000] HCA 53; (2000) 203 CLR 248, 307. Even Callinan J in Cheng
expressed ‘disquiet about a proposition that might leave it entirely
for the legislature to define what is, and what is not
to be an offence charged
on indictment, and its elements’, 344, but felt justified in adhering to
the orthodox narrow view
because there had not been any occasion of abuse of the
orthodox view (dismissed as ‘no answer at all’ by Kirby J at
324).
[96] McConvill and Joy,
above n 85, 344, 359, claim that an important consideration for the Australian
people is the extent to which
their Constitution protects and upholds
basic human rights and freedoms, including trial by jury. They concluded that,
as a result, ‘it becomes
the duty of the High Court to interpret and apply
the Australian Constitution in such a way so as not to impugn these
rights and freedoms unless coherent and principled judicial reasoning
necessitates this.
In Brownlee, it is submitted, the court failed to
adhere to this duty’.
[97]
Graham Fricke has commented on the benefit jury trials bring in terms of
reducing conflict and calming tensions, citing the Eureka
Stockade and
subsequent trials as a prime example: ‘The Eureka Trials’ (1997) 71
Australian Law Journal
59.
[98] Some writers have also
expressed reservations about s 80 being seen in terms of
‘rights-protection’: see J Stellios, ‘The Constitutional Jury
– A Bulwark of Liberty?’
[2005] SydLawRw 5; (2005) 27 Sydney Law Review 113;
however Chesterman, above n 39. states that in a general context of not having a
Bill of Rights in the Constitution, the fact the founding fathers saw fit to
include s 80 is a ‘striking testament to the importance attributed to the
criminal jury trial by Australian politicians and lawyers one
hundred years
ago’.
[99] Cockburn at
the Convention Debates, for example, wondered whether any of the colonies had
ever attempted to deprive a person of
life, limb or property without due
process, and was concerned comments such as ‘pretty things these States of
Australia; they
have to be prevented by provisions in the Constitution from
doing the grossest injustice’ would be made by observers, Convention
Debates (Melbourne, 1898, vol 1)
688.
[100] As the unanimous
court held in Cole v Whitfield [1988] HCA 18; (1988) 165 CLR 360,
385:
Reference to the history of (sections of the Constitution) may be made,
not for the purpose of substituting for the meaning of the words used the scope
and effect – if such could be
established – which the founding
fathers subjectively intended the section to have, but for the purpose of
identifying the
contemporary meaning of language used (emphasis
added).
[101] Cheng v The
Queen [2000] HCA 53; (2000) 203 CLR 248, 321. Kirby J, 34, reiterated this view in
Brownlee v The Queen (2001) 207 CLR 278, 314 ‘the text of the
Constitution must be given meaning as its words are perceived by
succeeding generations of Australians’. It is ‘impossible seriously
to suggest that the conduct of trial by jury in 1900 remains the universal
criterion for the understanding of those words as they
appear in the
Constitution today ... because, by definition, the world of the framers
was not that of today’s Australians, it is misleading, and prone
to result
in serious error, to accept as the applicable principle of constitutional
interpretation the intention of those who framed
it.
[102] (2001) 207 CLR 248,
325
[103] Cf J Goldsworthy,
‘Interpreting the Constitution in its Second Century’ [2000] MelbULawRw 27; (2000) 24
Melbourne University Law Review 677, 710. Professor Goldsworthy believes
that an attempt to ascertain the original, intended meaning of the Constitution
must, at the very least, be the starting point in giving meaning to its
provisions.
[104] Kable v
Director of Public Prosecutions (NSW)(1996) [1996] HCA 24; 189 CLR 51,
103.
[105] The relationship
between s 80 and Chapter III courts in the Commonwealth Constitution is
considered by J Stellios, ‘The Constitutional Jury – ‘A
Bulwark of Liberty?’ [2005] SydLawRw 5; (2005) 27(1) Sydney Law Review
113.
[106] A De Tocqueville,
Democracy in America (1969) 729; an earlier version was cited by J
Macarthur, in New South Wales: Its Present State and Future Prospects
(1837) 111, reflecting its relevance in the Australian
context.
[107] McHugh J in
Cheng v The Queen [2000] HCA 53; (2000) 203 CLR 248, 297-298. The author does
not accept that this difficulty precludes the courts reaching a conclusion on
which offences are ‘serious’
enough to warrant a jury trial, given
the fundamental nature of the right being discussed. It is accepted that this
distinction
does not appear in the Constitution, but the High Court has
previously found that certain principles implicitly underlie the Constitution
and affect its interpretation: see for example Nationwide News v Wills
[1992] HCA 46; (1992) 177 CLR 1 – it seems less of a leap to interpret an existing
express provision in the Constitution in such a way than to imply rights
of which nothing at all is expressed in the
Constitution.
[108]
Section 4G provides that federal offences punishable by imprisonment for a
period exceeding 12 months are indictable offences, but
it adds the words
‘unless the contrary intention
appears’.
[109] [1985] HCA 72; (1985)
159 CLR 264, 319, as have some commentators – G Fricke, above n 8, 2; cf
Dixon and Evatt JJ in R v Federal Court of Bankruptcy; ex parte
Lowenstein [1938] HCA 10; (1938) 59 CLR 556, 583 would have required any crime for which a
possible punishment was imprisonment to be heard by a jury, as would have
Brennan
J (Kingswell v R [1985] HCA 72; (1985) 159 CLR 264,
294).
[110] This is similar to
the conclusion reached in the Report of the Advisory Committee to the
Constitutional Commission – Individual and Democratic Rights (1987)
45.
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