Brownlee v The Queen S82/1998 [2000] HCATrans 19 (11 February 2000)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S82 of 1998

B e t w e e n -

ANTHONY JOHN BROWNLEE

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GAUDRON J

GUMMOW J

HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 11 FEBRUARY 2000, AT 12.33 PM

Copyright in the High Court of Australia

MR A.J. BROWNLEE appeared in person: Your Honours, good afternoon, Brownlee. I am the applicant. I should apologise in Court for my lack of representation.

GAUDRON J: We have read the papers, Mr Brownlee.

MR BROWNLEE: Thank you, your Honour. I intend to - - -

GAUDRON J: We will just take Mr Robertson's appearance first.

MR A. ROBERTSON, SC: May it please your Honours. I appear with MR R.J. BROMWICH for the respondent. (instructed by Commonwealth Director of Public Prosecutions.

GAUDRON J: Yes, thank you. Yes, Mr Brownlee.

MR BROWNLEE: Your Honours, in the main I intend to rely on the written submissions and only touch on each point briefly. I do though have a small housekeeping matter. I failed to include copies of the judgment in Valentine and Snow which, if I may, I now hand up.

GAUDRON J: Thank you.

MR BROWNLEE: And, unfortunately, I only made two copies, your Honour, so I apologise for that.

GAUDRON J: We will share.

MR BROWNLEE: Thank you. I should also thank the DPP for supplying those for me and, in fact, in paying for and producing the application books. Your Honours, this application encompasses three special points, as your Honours will see from page 33 of the application book.

GUMMOW J: Well, firstly, you need an extension of time.

MR BROWNLEE: Thank you, your Honour. That is what I ask for, my apologies, and my affidavit is there in support of that.

GAUDRON J: Yes.

MR ROBERTSON: That is not opposed, your Honour.

GAUDRON J: Yes. Well, in that case, time is extended.

MR BROWNLEE: Thank you, your Honours. My apologies. Moving to page 33 of the application book the three points of this appeal centre around section 80 of the Constitution - - -

GUMMOW J: Well, do they? Only around that? At page 47 there seem to be questions 3 and 4 about some irregularities alleged in the actual separation procedures.

MR BROWNLEE: Yes, that is correct, your Honour.

GUMMOW J: They do not look like very strong special leave grounds. Am I right in thinking, which is the thrust of it, that you are really relying on the section 80 point?

MR BROWNLEE: Yes, I am.

GUMMOW J: Right.

GAUDRON J: But what do you say that encompasses, the jury being constituted by 12 - - -

MR BROWNLEE: The jury being constituted by 12.

GAUDRON J: At all times?

MR BROWNLEE: Yes.

GAUDRON J: And do you think that there is any other issue involved in the section 80 point?

MR BROWNLEE: The point 2 on page 33 of the summary of argument which relates to the separation of juries while considering their verdict.

GAUDRON J: Yes, but only while considering their verdict?

MR BROWNLEE: Yes.

GAUDRON J: Yes.

MR BROWNLEE: And a point 3, which was not run in the CCA, which arose out of Wu's Case in this Court last June, relating to the reconstitution of the jury by his Honour after the dismissal of jurors.

GAUDRON J: Yes.

MR BROWNLEE: I did not include in the application book a copy of the transcript of the judgment in his Honour following the discharge of those two jurors and having another look at it recently I think possibly I should also hand up a copy of that judgment based on point 3.

GAUDRON J: Now, point 3, however, was not taken below?

MR BROWNLEE: That is right, yes, your Honour.

GAUDRON J: And, as you see it, it does not directly arise out of section 80?

GUMMOW J: It arises out of the Jury Act 1903 of New South Wales.

MR BROWNLEE: Well, it arises out of, yes, his Honour's failure to reconstitute the jury.

GAUDRON J: That does not sound like a promising ground for the grant of special leave, does it?

MR BROWNLEE: I grant, your Honour, that was put in only recently.

GAUDRON J: Yes.

MR BROWNLEE: The main point, of course, is that section 80, trial by jury, and what was meant by the framers in the late 1800s when they wrote the legislation formulating the effect of trial by jury and the fact a trial by jury historically has been 12 people and there is some background in detail in support of that in the application book items that follow.

GAUDRON J: Mr Brownlee, there is one point that we might alert you to and I do not know whether you would wish to consider it at this stage. If we were persuaded that there was a question to be determined with respect to section 80 of the Constitution, our inclination would be that the application to that extent should be referred to the Full Court and not be made the subject of a grant of special leave today, largely because that is a procedure that is sometimes taken where the issue is arguable but - - -

MR BROWNLEE: Certainly, your Honour, I am in the hands of the Court.

GAUDRON J: If you were otherwise successful with respect to section 80, you would not oppose that course?

MR BROWNLEE: Not at all.

GAUDRON J: Now, I think you should concentrate on this: ground 4 - is the final draft ground of appeal at page 30 now or have you done something more creative since then?

MR BROWNLEE: Page 30, the final amended draft notice of appeal, your Honour, is the final amended draft notice of appeal.

GAUDRON J: Good.

GUMMOW J: I do not know why you have got all the others really.

GAUDRON J: Now, grounds 4 and 5 in that notice you admit were not taken until the last moment.

MR BROWNLEE: Correct.

GAUDRON J: And you do not press them very - - -

MR BROWNLEE: I accept that.

GAUDRON J: Yes, you do not press them with great force. Ground 3, was that point taken?

MR BROWNLEE: Yes, it was, your Honour.

GAUDRON J: That point was taken.

MR BROWNLEE: Yes.

GAUDRON J: So there are, in effect, two - although you have put three points there, there are, in fact, two points with respect to section 80.

MR BROWNLEE: Separation of the jury and the trial by jury affecting 12.

GAUDRON J: Yes.

HAYNE J: Now, is the separation about which you complain separation at any time or separation after retirement?

MR BROWNLEE: After retirement.

HAYNE J: So that the point you would wish to agitate under ground 3 is separation of a jury pursuant to section 54(b) of the Jury Act did not - 54(b) being that part of the Jury Act which permits separation after retirement to consider the verdict?

MR BROWNLEE: Yes, your Honour.

GAUDRON J: Yes. Well, Mr Brownlee, we think we would be assisted by hearing from Mr Robertson.

MR BROWNLEE: Thank you, your Honour.

GAUDRON J: And if you could really direct yourself to whether this Bench should refer the application so far as it concerns the two section 80 matters to a Full Court.

MR ROBERTSON: So your Honour does not want to hear from me on the Wu matters, if I can call them that, that is the grounds numbered 4 and 5?

GUMMOW J: Not on the Jury Act construction point.

GAUDRON J: No.

MR ROBERTSON: Not on the Jury Act construction point.

GAUDRON J: Mr Brownlee frankly concedes that the points were not taken and we have indicated to him that his chances of obtaining special leave in those circumstances are limited.

MR ROBERTSON: Thank you, your Honours. In relation to what are called - on that page 30 there is actually two grounds numbered 2 but I will call that the first section 80 point, that is it is important, in our submission, to appreciate that it is not a question of - such as were considered by the United States Supreme Court in Williams v Florida. It is not a case of whether you can have a provision which says a jury shall be constituted by 10 or eight or six people.

GAUDRON J: No. I suppose the question is whether section - what is it, section 61 of the Judiciary Act?

MR ROBERTSON: Section 68.

GAUDRON J: Section 68 of the Judiciary Act can, consistently with section 80 of the Constitution, pick up those provisions of the Jury Act. That is essentially the question.

MR ROBERTSON: Yes. That is as we see the question.

GAUDRON J: Yes.

MR ROBERTSON: But the point I was endeavouring to make, your Honours, is that we are not dealing here with a question about if section 19 of the Jury Act had said a jury shall consist of some other number than 12. What is being dealt with here is the discharge of jurors during the course of the trial - two of them, as it happened - pursuant to section 22 of the Jury Act and the other significant matter which we would wish to emphasise and draw to the Court's attention is that, as appears from page 18 of the application book in the judgment of Mr Justice Grove in the Court of Criminal Appeal, as your Honours will see from the second full paragraph, "Two grounds of appeal only are pressed", and his Honour then sets out when the trial commenced:

29 April 1996 after the empanelment of twelve jurors. An estimated duration of four to six weeks -

and so on. The point is that about five lines below that his Honour says, which was the case, that the discharge of the first juror:

was made by the learned t

rial judge without objection on behalf of either the Crown or the defence.

And then the question about the overrun of the trial was raised and the second juror, who was a self-employed farmer - and I am now looking at two lines below C at line 22 or so:

The self-employed farmer was discharged from the jury on the application of counsel for the appellant,

Now, the point we would seek to make about that is that your Honours may recall that in Brown's Case in this Court Justice Wilson, although his judgment was a dissenting judgment, but only on the point of the question about whether a person could waive the right to trial by jury, but, your Honours, it is in - - -

GAUDRON J: Well, that is an interesting question, is it not?

MR ROBERTSON: Yes.

GAUDRON J: If section 80 applied, it applied, and it went to the whole composition of the trial.

MR ROBERTSON: Yes. I am not making a point that one can consent to section 80 not applying, but the point that his Honour made and why, in our respectful submission, the facts of this case make it an inappropriate matter to refer to the Full Court is that his Honour says at page 188 - and we supplied this judgment as No 1 of our bundle of material - his Honour says at page 188 point 8 of the page:

Of course, it has always been possible at common law for a trial to proceed, with the consent of the accused person, notwithstanding that one of the jurors has become incapable of continuing as a juror:

and his Honour refers to Reg v Charlesworth (1861) and Halsbury's Laws of England, a paragraph of which ascribes that position to some time in the 1750s. So it being a case where each juror, each of the two, was discharged with the consent of the present applicant, we would submit that it is not a good vehicle to raise the question generally about whether one can discharge jurors in a sense inconsistently with the common law, the point being that if one looks back to the enactment of the Constitution - - -

GAUDRON J: But if it is not competent for the legislature to enact a law picking up the provisions of the Jury Act, whether with or without consent, then it is not competent, is it?

MR ROBERTSON: No. No, I am not making that point, your Honour.

GAUDRON J: Yes.

MR ROBERTSON: I am making this point, that if one of the highly significant matters for discerning the content of section 80 is the state of the common law as at 1900, then a case where jurors have been discharged with the consent of the accused where, according to these authorities and references in Justice Wilson's judgment, that was a practice that had been contemplated by the common law for a substantial period of time means that the matter might go off on that point. So I am not making the point your Honour is making.

GAUDRON J: Yes, yes.

MR ROBERTSON: I certainly accept that you cannot waive your right to trial by jury, but we are talking about what the content of trial by jury is.

GAUDRON J: Well, what you are saying is it might not determine the total metes and bounds of section 80.

MR ROBERTSON: Well, it might not determine any of it in a sense because it might go off on that point that what was done here and, indeed, the provision made by section 22 of the Jury Act, is not inconsistent with what anybody may have had in mind either subjectively or objectively in 1900 and what might be - - -

GUMMOW J: What was the position at common law if a juror dropped dead before verdict?

MR ROBERTSON: The jury had to be reconstituted.

GUMMOW J: The trial abated, did it?

MR ROBERTSON: Well, there was a question as to whether it could continue with the other 11 plus one or whether you had to start again.

GUMMOW J: Was that ever really sorted out at common law?

MR ROBERTSON: Not so far as I am aware, your Honour.

GUMMOW J: Yes, that is what I thought.

HAYNE J: There was at least, was there not, some indication that there was a practice of take the remaining 11, reswear them and swear an extra?

MR ROBERTSON: Yes, yes. Certainly latterly I think that is correct to say, your Honour. Could I make two other points briefly in relation to this question. One is - and I do not direct this only at your Honour Justice Hayne, but there was well before Federation, and it is set out on page 20 in the middle of the page, a provision of the Victorian, that is the Colony of Victoria Juries Act in 1876, pre-Federation, which provided for a power referable to five-sixths, so presumably one had in mind 12 as the starting number, but anyway, "that the trial shall proceed with a number reduced in no case to less than five-sixths", so, again, that would be a factor no doubt in terms of what was contemplated in 1900. In Cheatle's Case the matter was - and I do not want to overstate - - -

GUMMOW J: The real question, I think, arises, Mr Robertson - these are all interesting questions and difficult questions - the real question that arises is whether that ground of appeal that is sought as so much of the application for special leave as raises the issues whether the trial of the applicant, section 68 of the Judiciary Act, was inoperative to pick up sections 22 and 54 by reason of section 80 of the Constitution, whether we should refer that into an enlarged Bench, dismissing the balance of the application for special leave.

MR ROBERTSON: Yes, that is point I am addressing, your Honour.

GUMMOW J: Well, these questions are going to arise sooner or later, I suspect.

MR ROBERTSON: Yes, but the point that I am making is that they might arise very much later where you have, as in this case, something that was done that would appear to be, on this limb of the argument, consistent with the common law as at Federation, so that it might go off on that point and, therefore, in our submission, as to that part of it, it would not be a suitable vehicle to refer to a Full Court. Perhaps the high point, if I can refer your Honours to this for completeness, and it will not take more than a moment, the high point of this matter is perhaps in Justice Kirby's judgment in Wu v The Queen 73 ALJR.

Your Honours will recall that the trial judge in that case had said there was no magic in the number 12. It was not a section 80 case, but his Honour Justice Kirby, who was dissenting, said a great deal about the number 12, but at the end of it all - and this is at page 1506 - his Honour says in paragraph [47]:

History, constitutional rights and State statutory provisions combine to require that a criminal jury must initially be, and should ordinarily remain, a jury of 12.

So although his Honour was the member of the Court with the most robust view, if I can put it that way, of the importance of 12, even his Honour contemplated that in terms of reduction of numbers rather than the number you are starting with, that - - -

GAUDRON J: But there may be a question as to the circumstances in which the numbers could be reduced.

MR ROBERTSON: Yes, although even in this case - and perhaps this comes back to my first point - where you have consent and no disputation as to it happening, does your Honour perhaps mean by that, well, it might be different if it was illness as opposed to some other cause?

GAUDRON J: Yes.

MR ROBERTSON: Yes, yes. Well, in this case neither was illness.

GAUDRON J: No.

MR ROBERTSON: One was - both arose because of the overrun of the original estimate of the trial.

GAUDRON J: Yes.

MR ROBERTSON: I will not say anything more about that point. The non-separation of a jury when considering their verdict, our submission is that, again, there was no invariable practice at Federation and that is what the Court of Criminal Appeal said at page 22 with reference to what Mr Justice Hood had done in Reg v Jeffers (1895) ALR 71 and we submit that what the Court of Criminal Appeal said as a matter of approach, that is that this second ground of the non-separation of a jury when considering its verdict is essentially procedural and not of the essence of the nature of trial by jury and that is the point shortly put and that was a practice that was known at the time of Federation.

The other point about the facts of this case is that, of course, because it was done without demur, there was no question of any juror, in fact, discussing material or it has not been suggested that a juror discussed material outside the scope of the jury room. So those are the factual matters which we would draw to the Court's attention as making it an unsuitable vehicle to be referred to a Full Court, if your Honour pleases.

GAUDRON J: Yes, thank you, Mr Robertson.

MR BROWNLEE: Just one thing, if I may, your Honour. Sorry.

GAUDRON J: Well, you can, but let me tell you first what it is proposed to do, unless, of course, you want to talk us into a different course, which you might not wish to do. It is proposed to grant an extension of time within which to bring the application for special leave; to refer to a Full Court so much of the special leave application as raises the question - now, this is a little bit technical and not the way you have put it - but raises the question whether section 68 of the Judiciary Act (Cth) validly operated at the time of your trial to pick up (a), section 22 of the Jury Act 1977 New South Wales, that is the ability to reduce the numbers, and (b), section 54(b) of the Act, that is the separation point, and otherwise the application for special leave to appeal will be dismissed. That is the Wu points. Now, that is what we would propose to do unless you wish to persuade us otherwise.

MR BROWNLEE: That will be fine, thank you, your Honour.

GAUDRON J: Very well. Now, there is one aspect to it, however, Mr Brownlee. It will be noted on the transcript that the Court would be assisted by the presence of counsel to appear for you and argue the matter when it is referred to the Full Court and we would ask you to obtain a copy of the transcript and take that to the New South Wales Bar Association and ask them whether they might take heed of what has been said.

MR BROWNLEE: Thank you, your Honour.

MR ROBERTSON: Your Honour, may I make one short point on that proposed form of order.

GAUDRON J: Yes.

MR ROBERTSON: That is really to remind your Honours that the form of the question whether section 68 validly operated to pick up - - -

GAUDRON J: Yes.

MR ROBERTSON: Section 68(2) is, in any event, expressly subject to section 80, so it might be "operated", yes.

GAUDRON J: That is right. Well, operated, yes.

MR ROBERTSON: If your Honours please.

GAUDRON J: Yes, thank you. Well, in that case there is one more matter. Mr Robertson, it will require section 78B notices. Will your side attend to those?

MR ROBERTSON: Yes. We have done so far and the answers were in the normal form, that is if it goes further, which it is. So we will do that again. We will write some further letters.

GAUDRON J: Yes.

MR ROBERTSON: We will write some further letters.

GAUDRON J: Yes, thank you.

MR ROBERTSON: Thank you, your Honours.

GAUDRON J: Thank you.

Very well. The formal orders are:

Extension of time granted;

Refer to the Full Bench so much of the special leave application as raises the issues whether section 68 of the Judiciary Act 1903 (Cth) operated at the trial of the applicant to pick up (a), section 22 of the Jury Act 1977 (NSW) and (b), section 54B of that Act.

Otherwise the application is dismissed.

It is not a matter in which there should be any order for costs.

MR BROWNLEE: I have a relationship with the Bar Association. I have been on their doorstep for months.

GAUDRON J: Thank you. We will take the matter of Arnoya v Metway at 2 o'clock.

AT 12.59 PM THE MATTER WAS CONCLUDED