Brownlee v The Queen S82/1998 [2000] HCATrans 687 (17 November 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

GLEESON CJ

GAUDRON J

McHUGH J

GUMMOW J

KIRBY J

HAYNE J

CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 17 NOVEMBER 2000, AT 9.31 AM

(Continued from 16/11/00)

Copyright in the High Court of Australia

GLEESON CJ: Yes, Mr Solicitor.

MR SEXTON: If the Court pleases. We are content to rely on our written submissions. Perhaps I could just respond to the question that was raised by Justice Gaudron yesterday concerning section 22(a) of the New South Wales Jury Act. Subsection (i) is of course this case, and we would say that that is picked up by section 68 of the Judiciary Act. Subsection (iii), if I could take them out of order, is not this case, but we say that would be picked up. Subsection (ii) there may be more doubt about, assuming the continuing authority of Brown, which we do after yesterday given that there can be seemingly a reduction down to one, theoretically, under (ii), so that would perhaps raise that obvious doubt. Unless there are any other matters, your Honours - - -

KIRBY J: Would you explain that to me, I am sorry, I do not quite understand that last point.

MR SEXTON: Well, your Honour, (ii) provides for a reduction below 10, but seemingly with no flaw to it. In other words - - -

KIRBY J: So you could get down to one?

MR SEXTON: Your Honour, it is not a practical proposition, but it is just the way that the section reads, and obviously that - - -

KIRBY J: Well you could certainly get down to four, and views might differ as to whether that is a practical proposition.

MR SEXTON: Yes, that is right, your Honour, yes, which is why that may cause an obvious problem with section 68 because of section 80.

GLEESON CJ: Yes, thank you, Mr Solicitor.

MR SEXTON: If the Court pleases.

MS PRITCHARD: May it please your Honours. The Court should have before it a copy of the written submissions for Western Australia which were filed on 8 November this year.

GLEESON CJ: Yes, Ms Pritchard.

MS PRITCHARD: We rely on those written submissions. We simply wish to elaborate today in relation to one particular point. Before going to that point however, I would like to hand up to the Court, if it has not been already handed out, a book of materials which has been prepared and that book of materials contains copies of or extracts from the legislation referred to by Western Australia in its outline of submissions. In addition, it also contains extracts from the draft Criminal Code which was prepared by Sir Samuel Griffith in Queensland and which was completed in 1897.

We wish to take the Court to some of the parts of that extract of Sir Samuel Griffith's draft. The reason for doing that is that to the extent that original intent is relevant in the interpretation of section 80 of the Constitution, Sir Samuel's draft Code and the notes that he provided in relation to that Code, provide a very useful contemporary account of the position with respect to some of the aspects of jury trials that we are dealing with in these proceedings.

GLEESON CJ: In that respect, could you just remind me, was section 80, in approximately its present form, in the Bill that was considered at the 1891 Convention?

MS PRITCHARD: There were some differences, your Honour, but in terms of the reference to a trial by jury, my recollection is that it was, in that respect, in the same form.

GLEESON CJ: I only mention that because Sir Samuel Griffith was out of the picture by 1897/1898.

MS PRITCHARD: That is quite right, your Honour, yes. The reason I refer to Sir Samuel's draft, however, is that in terms of the continuing debates at the Constitutional Convention, the submission that we would put is that the constitutional framers must have been presumed to have had in mind, or to have known of, the position with respect to juries in the federating States. That position in Queensland was determined, not only by the Jury Act, which existed at the time, and similarly in Western Australia, but there was, of course, the debate going on as to the Criminal Code provisions. That Code - - -

KIRBY J: Did they have in mind women jurors?

MS PRITCHARD: Unfortunately, my understanding is no, your Honour.

KIRBY J: No. Well, why should we be worried about what they had in mind? I mean, how can you pick and choose? That is what I do not understand.

MS PRITCHARD: Well, the submission that we put, your Honour, is that we are looking for essential requirements, and the essential requirements that the constitutional framers must have had in mind when they spoke of a trial by jury must have contemplated the common understanding at that time of what a trial by jury encompassed. The question of women jurors is not the issue in these proceedings, your Honour.

KIRBY J: No, but we have to have a principle; we cannot just go muddling along from one case to another looking at the length of our foot and saying, "Well, we would like women on juries, we do not like property entitlements, we will get rid of that, but 12, which has lasted for 800, 650 years, well, you can just throw that in the wastepaper basket.". It is just not principled.

GLEESON CJ: I thought you were endeavouring to demonstrate that 12 had not lasted for 600 years by the time of Federation.

MS PRITCHARD: Yes, your Honour.

GLEESON CJ: That it had gone, for example, in Victoria and was on the way out in Queensland.

MS PRITCHARD: That is precisely the point of the submission, your Honour, that it was certainly being contemplated. As Sir Samuel's draft Code indicated, there were certain circumstances which, either on a view of a codification of the existing law at the time or on a recognition that there were problems with the existing law, that changes were being proposed to the rule that was then applicable under the Jury Act in Queensland that 12 jurors were required.

KIRBY J: Yes, but you agreed with me that women were still universally on juries, yet that goes. You see, what I have difficulty understanding is how one can adopt the principle of a couple of States having or contemplating change when you test it by the question of what is the criterion in respect to women or property qualification, because that is not the criterion that you apply for saying, "Well, we won't accept that as inherent in the word `jury' in section 80".

HAYNE J: It occurs to me, Ms Pritchard, that perhaps the distinction may be between the compound conception of trial by jury and the conception of a panel of jurors and qualification as a juror. We are presently concerned, and perhaps section 80 may be only concerned, with the compound conception of trial by jury.

MS PRITCHARD: If I can deal with Justice Kirby's point, your Honour, the difficulty that seemed to arise when one comes down to the specifics of what is required for representation, and the point that we have made in our written outline of submissions is that representation is not answered solely by reference to the number of jurors, that representativeness would be a compound featuring matters such as gender, ethnic representation, perhaps, literacy has been mentioned yesterday, as well as number.

KIRBY J: But we were told a few minutes ago by the Solicitor-General for New South Wales that under the New South Wales statute you can get down to four. Now, even Western Australia would not be submitting to us that that was a representative number for the purpose of the Constitution, surely?

MS PRITCHARD: Well, we stand by the proposition, and I understand that your Honour has difficulty with this, that that issue does not arise in this case and all we are asked in this case is to look at 10.

KIRBY J: No, but that is not an answer to my question, with respect to you, because we have to test propositions by what happens in the extreme case and it is true, it does not arise in this case and indeed women jurors and property qualification did not arise in Cheatle, but you have to test propositions by what happens on various hypotheses.

MS PRITCHARD: I am not sure I can take your Honour's difficulty with the question of whether 10 or four or three is the answer, your Honour.

KIRBY J: I think you are right.

GLEESON CJ: Except to this extent, included amongst the propositions we have to test are propositions of fact and if it is asserted as a proposition of fact that at the time of Federation, for 600 years, it had uniformly, or generally, been the view that 12 was the minimum number of jurors from whom you could take a verdict, it is relevant to point out that the proposition of facts is not right.

MS PRITCHARD: That is the case, your Honour, and it is for that reason that we refer to the position that Sir Samuel had in contemplation under the Code.

GUMMOW J: Well, that is section 642 and 647, is it, of the draft Code?

MS PRITCHARD: That is correct, your Honour. If I can take the remainder of the Court to the provision. Under the third blue sheet of the book of materials and you will see that the extract commences with Sir Samuel's note to the Attorney-General for Queensland explaining some of the key features of the draft Code that he was presenting. He proceeded then to set out the provisions of the Code and we have given extracts of the relevant part. You will see on the right-hand side that Sir Samuel included the provisions of the draft Code that he proposed and on the left-hand side of the page he indicated the source of those provisions. He also indicated, in some instances, where the provisions were new or simply were a codification of the existing law.

Before I turn to the specific principles, your Honours, could I ask you to have a look at page XIV of Sir Samuel's note to the Attorney-General which is at the commencement of the extract. It is there that he turns to the question of practice - does your Honour Justice Gaudron have the extract? Under the third blue sheet, your Honour, turning ahead then about 14 pages, XIV.

GAUDRON J: Yes, I have that now, thank you.

MS PRITCHARD: Thank you. Sir Samuel commented that in relation to practice he had, and I quote:

endeavoured to embody in the Draft a complete statement of the existing written and unwritten rules respecting procedure after committal, and have added some rules which dispose of difficulties that not unfrequently arise and have not been authoritatively settled.

Then in the paragraph under the heading "Printing of Code" he explained what I have just explained, that is, the division on the right-hand side of the page of the draft provisions and on the left-hand side of the page of the sources of those provisions. There are four provisions in Sir Samuel's draft Code to which I wish to refer the Court. The first two deal with the question of whether 12 jurors were required. In draft clause 642 - that has at the top of the page 284, your Honours, just a few pages on from where we just were.

Before I, perhaps, elaborate on 642 I should note that draft clause 631 of the Code contemplated that if an accused entered any plea aside from a plea of guilty, he would be deemed to have requested a trial by jury. There is a reference there to the words "tried by a jury". As is apparent from clause 633, which is further down the page, the provisions of the draft Code which were to deal with juries were intended to supplement the existing provisions under statute law. In Queensland, the position was under the Jury Act at the time, 1867 as amended, and there was a similar Act in Western Australia. We have referred to those provisions in our other submissions. Turning then to clause 642, your Honours. In that provision Sir Samuel indicated that:

If, after a juror has been sworn, it appears to the Court by his own admission that he is not impartial as between the Crown and the accused -

or, alternatively -

that for any other reason he ought not to be allowed -

in the court's view to continue as a juror, the court was permitted to:

without discharging the whole of the jury, discharge that particular juror, and direct another juror to be sworn in his place.

Now, interestingly, at the bottom of that clause there is a footnote reference and at the bottom of the page Sir Samuel notes that:

This is to some extent new. The same result may, however, be obtained indirectly if the accused has not been given in charge to the jury.

Before commenting on the significance of that provision - - -

GLEESON CJ: I would just like to understand its meaning a little better. Does that mean that that procedure could be followed after the trial had been in progress for a week?

MS PRITCHARD: There was some discussion of a similar point, your Honour, in the Western Australia Court of Criminal Appeal case in Wai v The Queen, and the answer that I think was adopted by the learned Chief Justice in that case, in relation to section 633 of the current Code provision in Western Australia was yes, the provision could operate after the commencement of the trial itself, although there is - - -

McHUGH J: That is not the way I would have read it, I must say; I would have thought that it was directed after the accused - the indictment had been read and the accused had been pleaded - - -

KIRBY J: Otherwise you are allowing a juror to be sworn, who may have been totally absent from the courtroom in the middle of a case; that surely cannot have been what was intended.

MS PRITCHARD: It may be of assistance if I refer the Court to the discussion of this issue in Wai v The Queen (1995) 15 WAR 404, just by way of answer to the question that has been put to me, if the Court has that available to it. The learned Chief Justice, Chief Justice Malcolm at page 409 discussed what is now section 633 of the Western Australia Criminal Code, and your Honours will recall Wai was a case in which a reserve juror had been sworn in and - - -

KIRBY J: That would solve my problem, because the reserve juror presumably would have been sitting there during the trial.

MS PRITCHARD: Yes, and in fact the learned Chief Justice does refer to the common law position at the time, which seemed to explain to him why the precursor to section 633 of the Code may have been inserted. At the bottom of page 409 of the Western Australia report, your Honours, he first of all commences by comparing section 633 to section 646 of the Code, and we will come to see that in a moment, which permits the discharge of a juror in the case of incapacity or death and, in that case, permits the trial to continue with the remaining juror so long as there are not less than 10. And then he looked at section 633 and the question whether it was only applicable prior to the time that the accused was actually charged to the jury. And he says, at the middle of paragraph E:

Thus, if section 633 was only applicable in the limited way I have indicated, there would be very little scope for its operation. Section 633 finds its Australian origin in section 642 of the draft Code of Criminal Law prepared in 1897 by Sir Samuel Griffith -

and he noted the footnote that I have just referred the Court to. He goes on to refer to the common law situation as referred to by Sir James Stephen's draft code, and the common law principle about swearing in new jurymen, only having heard the evidence again for the benefit of that juryman.

KIRBY J: Now, Sir Samuel said to some extent here that it seems to be completely new, as far as I am aware. Was that copied in Western Australia or - - -

MS PRITCHARD: Yes, your Honour.

KIRBY J: Did Queensland enact the provision?

MS PRITCHARD: Yes it did, your Honour, and I can advise your Honour of the relevant provision. It was enacted in section 615 of the Queensland Code and a copy of that is included in the book of materials. It is the next extract on after Sir Samuel's draft code.

GUMMOW J: Have we got Sir James Fitzjames Stephen.

MS PRITCHARD: Sir James Stephen, yes, that is right.

GUMMOW J: Have we got extracts from his digest?

MS PRITCHARD: Sorry, I do not with me, no.

GUMMOW J: Because, you are probably not allowed to say it in Queensland, but outside Queensland people have said from time to time that Sir Samuel owed rather more than he might have expressly said to Sir James Fitzjames Stephen.

MS PRITCHARD: I dare not make any comment on that, your Honour. In answer to your Honour Justice Kirby's question, it was section 615 of the Queensland Code, and section 612 of the original WA Code.

KIRBY J: Any other States or colonies adopt it?

MS PRITCHARD: In relation to this particular provision, the only other State which I can think of is the Tasmanian Code, your Honour. I am not precisely sure at the moment whether entirely the same provision was enacted. I am aware that the Code provisions are similar. I can have that checked and advise the Court, if I am able to do that today.

KIRBY J: If you would do that, because otherwise you are trying to pull yourself up by your boot straps from two cases to a provision in The Constitution.

MS PRITCHARD: The purpose of the submission, with respect, your Honour, is simply to indicate that it was not contemplated as an immutable principle that there must be 12 jurors at the commencement of the trial and, necessarily, 12 jurors, or the same 12 jurors at the conclusion of the trial. That is the only purpose for which we make the submission.

KIRBY J: Is that quite right? Is not the hypothesis of 642 that you will keep the number 12 - - -

MS PRITCHARD: That is correct, your Honour, but we have not yet got to 654, and it is perhaps appropriate that I refer the Court to that. Clause 654 of the draft Code permitted the discharge of a juror who was rendered incapable of continuing to act as a juror. Interestingly, the court there had two choices: the first was to discharge the entire jury; and the alternative, in the court's discretion, with the consent of the Crown and of the accused, was to permit the same jury to continue on and to decide the case with less than 12 jurors.

Now, that provision was enacted with some changes in the first Queensland Code. The changes were that, in addition to the reference to general incapacity, there was a reference to a juror dying, and also a limitation was included that the court could let the jury continue so long as there were not less than 10 jurors remaining.

GLEESON CJ: What was the Code provision?

MS PRITCHARD: It was section 628 of the original Queensland Code, your Honour, and section 625 of the original WA Code. It is now found in section - - -

KIRBY J: Is that in here?

MS PRITCHARD: It is, your Honour, yes. The Queensland provisions are immediately following Sir Samuel's draft Code. Section 628, your Honour, and one can see the additional words, the reference to the juror dying and also the limitation at the end that not less than 10 jurors remain. That is the provision that was also discussed by the Western Australia Court of Appeal in Wai. That provision is section 646 of the Code.

The reference to these provisions, as I have already endeavoured to explain, is to indicate a number of things. The first is that in so far as there was a statutory requirement in Queensland at the time, and in Western Australia as well, that there be 12 jurors, it was not an immutable one, in so far as a trial by jury is concerned. The second thing is it apparently was not considered necessary that the same 12 jurors who commenced to hear the trial should necessarily complete that process and deliver a verdict by virtue of the possibility that another juror could be substituted in. Finally, that with the consent of the Crown at least, and the subsequent request of the accused as well, less than 12 jurors could continue to sit so long as there were not less than 10 in the end.

KIRBY J: But this was not the position in New South Wales in colonial times?

MS PRITCHARD: Not so far as I am aware, your Honour, no. There was a similar provision of course in Victoria, to which reference has been made in the submissions for the Attorney-General for Victoria. I think it was section 88 of the Victorian Jury Act at the time which permitted less than 12 members of the jury to continue to sit.

KIRBY J: If one takes a view that the criterion is not what the founders back there in 1890 and Sir Samuel stealing his Code from Sir James Fitzjames Stephen thought but what are the essential characteristics, as Justice Hayne has said, of "trial by jury", if one takes that and if one takes as the criterion for the essential characteristic the essential characteristic of a high degree of representativeness of the community, how does one fix in a principled way upon a number 10, as distinct from 11 or nine?

MS PRITCHARD: In a principled way, your Honour, coming to a bright line perhaps between 10 or nine or 11, it may not be possible to do that.

KIRBY J: And certainly not four, but 10 is a nice round - we have all gone decimal since Federation. If you are looking at essential characteristics, 10 might pass muster but I do not quite know why I think that as distinct from, say, eight or six.

MS PRITCHARD: As I said, your Honour, before in the course of these submissions this morning, 10 might not be the only issue to take into account. It might be 10 plus just as Justice Hayne has referred to, the composition of the panel from which the jury is drawn.

GLEESON CJ: If you are looking for essential characteristics, why would the number 12 ever occur to you except because of your knowledge of history?

MS PRITCHARD: With respect, your Honour, I think that is probably the point that we would make.

GLEESON CJ: And if your knowledge of history leads you to think about the number of 12, why would not your knowledge of history be sufficiently complete to make you aware that at the time of Federation the number of 12 was not immutable?

MS PRITCHARD: Quite, your Honour, and hence the reference to the fact that the 12 had not become a principle by the time of Federation.

KIRBY J: But why would you think, except for your knowledge of history, that it is prerequisite that it be a unanimous verdict?

MS PRITCHARD: Because, as I understand the reasoning in Cheatle, history suggested that there was unanimity in the question of whether unanimity was required, that there was a common law principle requiring unanimity and that there was no statutory departure from that in the federating colonies. What we seek to demonstrate here - - -

KIRBY J: I do not think that is the argument. I think the better argument that is proffered is that if one dissents, then there may be a reasonable doubt but - - -

MS PRITCHARD: Certainly, your Honour. That is the other basis for the rationale.

KIRBY J: You can say people have unreasonable doubts and therefore, the fact that one dissents does not necessarily mean that that is a reasonable doubt. It is just an irrational or foolish doubt.

MS PRITCHARD: Of course, the question of whether there are 12 or 10 does not go to that fundamental question about whether an accused is entitled to the benefit of the doubt if there is a reasonable doubt. If I can turn to the remaining two provisions of Sir Samuel's - - -

McHUGH J: The question of 12 or 10 works both ways. After all, there may be 10 in favour of acquittal and two hanging out, or 11 in favour of acquittal.

KIRBY J: As Mr Street pointed out, we do not know this. The two that were lost might have been those who, so far as we know, were for the acquittal of his client. We just do not know.

MS PRITCHARD: The question is then, if one considers that the number goes to the representation of the jury, as members of the community, and if one goes down that path and says that that is the rationale for why one looks to a particular number or why one considers numbers at all in relation to the composition of the jury then the other issue about unanimity does not arise.

McHUGH J: Can you tell me where this notion of representation comes? Did anyone put that as the rationale for the jury before 1900? After all, the English criminal juries were hardly representative of the community. Property qualifications were essential. If you were tried at the Old Bailey - for an East Ender tried at the Old Bailey I do not think you regarded the jury as very representative of the community.

MS PRITCHARD: Well, certainly as to the precise aspects of representativeness, your Honour, I guess I would draw your Honour's attention to the fact that I guess going back as far as Magna Carta there are references to no man being imprisoned except by verdict of his peers. Now, whether the peers were intended to be representative or not would depend at the time - - -

McHUGH J: No, but that theory has been exploded, has it not?

MS PRITCHARD: Well, there have been some doubts cast upon it, your Honour. Certainly, Justice Deane in Kingswell discussed those problems.

KIRBY J: It has been exploded by historians, but we have to look at - well, if you look at the Constitution with today's eyes, an argument for the propositions you are advancing is that back in 1900 trials were over in a matter of a day and a half. Oscar Wilde was tried in 1895 and the whole trial was over in a day and a half and he was then - there was a disagreement of the jury and the second trial was over in another two and a half days, so that things were done much more quickly, whereas, if you look at the trial by jury with today's eyes, then they are much longer and that may be an argument for looking at trial by jury with some degree of flexibility, as against 12, given the realities that people do die, they get sick, they have to go off and so on.

MS PRITCHARD: Yes, certainly, your Honour.

KIRBY J: And yet you could still say, looking with today's eyes at section 80, "Well, it still is trial by jury".

MS PRITCHARD: Just returning to your Honour Justice McHugh's question in relation to the source of this notion of representativeness being required, certainly there are authorities in this Court which go back as far as Huddart, Parker & Co v Moorehead where there are references to representativeness being an essential criteria. It was commented in Cheatle 177 CLR at page 549 that Justice O'Connor's comment in Huddart, Parker correctly drew attention to the representative character of the jury. So as far back as 1909 in the Huddart, Parker decision there was a notion - - -

McHUGH J: Yes, but I was more interested in pre-1900.

MS PRITCHARD: Yes, certainly. What I can offer for your Honour at this point in time is that certainly at that time there was an understanding that representativeness was part of what the jury fundamentally was required - - -

GUMMOW J: Yes, but originally it was representative of the neighbourhood.

MS PRITCHARD: Exactly, your Honour, yes, and that the jury were taken from one - - -

GUMMOW J: Yes, bringing their own knowledge which would be abhorrent now, really.

MS PRITCHARD: In fact, witnesses to the proceedings, and then there was a transformation to being tried as a fact, yes.

GLEESON CJ: Now, there were two other provisions you were going to - - -

MS PRITCHARD: Yes, thank you, your Honour. If I can take your Honours briefly to those. They deal with the question of separation of the jury and, again, if I can have the Court return to Sir Samuel's draft Code provisions, to the page headed-up page 286, and the Court will see two provisions there, draft clause 647 and 648, and 648 referred to the requirement that:

While the jury are kept together, and until they have given their verdict, they are to be kept.....in some private place -

Clause 647 started out with a general requirement that reflected a similar principle, perhaps:

Except as hereinafter stated, after the jury have been sworn and the charge has been stated to them by the proper officer, they must not separate until they have given their verdict or are discharged by the Court.

KIRBY J: Where is that, I am sorry?

MS PRITCHARD: This is at the top of page 286, your Honour, in clause 647.

KIRBY J: Yes.

MS PRITCHARD: That was a starting point, your Honour, though, and then there was a proviso, an important one, other than in capital cases permitted:

the Court may, in its discretion, permit the jury to separate before considering their verdict -

Interestingly, at the bottom of that clause, your Honours, there is a footnote as well and Sir Samuel recognises that this is probably the present law.

KIRBY J: But is not the complaint here that this jury was permitted to separate when it had been fully instructed to consider its verdict?

MS PRITCHARD: Yes, your Honour, certainly. We put these principles as an indication that the separation of the jury was not an immutable principle in terms of throughout the trial. In Western Australia the position is, as in Queensland, that prior to the jury commencing their deliberations, separations are permitted.

KIRBY J: Justice Callinan called attention yesterday - I think it was page 26 - to a rather disturbing feature that is not the subject of a special specific ground of appeal before this Court concerning a statement by a juror. This is the very peril that separation involves, is it not, especially at the time of final deliberation? I had not noticed that before Justice Callinan drew it to attention.

MS PRITCHARD: I think, your Honour, my learned friend for the applicant may be going to add some further transcript references and to discuss that point so it may be preferable if I leave that to him, your Honour.

KIRBY J: Yes, thank you.

MS PRITCHARD: The point in relation to the separation issues, your Honour, to conclude, is that, again, it indicates that at the time of Federation, certainly it was not considered an immutable principle that the jury must be kept away from other members of the community and other participants in the trial process throughout the entirety of the trial. At least in Queensland and, subsequently, shortly after in Western Australia, it was considered that the jury could separate, at least prior to their deliberations, and that remains the position in Western Australia today.

As I said, your Honours, the existence of these provisions we simply point to as showing that it cannot be said that there was a unanimous or common position throughout the federating States on the question of whether 12 jurors were required at the commencement of a trial by jury and at the end of that trial by jury and, in fact, in relation to whether there were separations permitted of the jury during the trial. May it please the Court, those are the submissions for Western Australia.

GLEESON CJ: Thank you, Ms Pritchard. Yes, Mr Street.

MR STREET: If the Court pleases.

McHUGH J: Mr Hastings, have you found the order allowing the jury to separate after a verdict, that is, the section 54 order?

MR HASTINGS: Your Honours, I think the answer is, there is no order in terms.

McHUGH J: Well, if there is no order, it is a fairly fundamental defect in the trial, is it not?

MR HASTINGS: Well, that may well be so, your Honour. Well, I do not know about fundamental defect - - -

KIRBY J: This was the same problem that I mentioned yesterday that arose in the case where the jury was reduced in number in Wai, or I think the earlier case, was that that section 19 of the Jury Act of New South Wales contemplates an order and it was not done. Apparently it was not the practice.

McHUGH J: How can it be a valid verdict in the face of section 54? The jury have been allowed to separate without an order of the court.

MR HASTINGS: Well, your Honour, I suppose if this had been raised in the ordinary appellate process, there would be issues of whether it amounted to a miscarriage of justice which, in the end, would determine whether the verdict would be overturned.

GLEESON CJ: I suppose they could also look more closely at the fact about what happened about the separation. Do we know all the facts? Do we know what barristers said, what was said between the Bench and the Bar about this?

MR HASTINGS: About separation?

GLEESON CJ: Yes.

MR HASTINGS: No, your Honour. I do not think there is a record of it.

GLEESON CJ: That is my point. If this had been an issue in the Court of Criminal Appeal, the trial judge, for example, could have been asked to make a report.

MR HASTINGS: Yes. Your Honours, we have produced some transcript references in response to the question which was also raised yesterday concerning the warnings to the jury not to communicate with persons outside the case. Can I hand to your Honours those references. I am instructed that these references are by no means complete in the sense that the transcript does not seem to have recorded on each occasion when such a warning was given, and I think that is self-evident from the terms of the warnings which are in fact recorded. The passages we have produced are the only references in the transcript. It is evident from what was said on those occasions that the warning had been given on a fairly regular basis.

Your Honours, can I also explain that on the second of the pages we have given your Honours which is for 17 June, there is some handwriting at the top. That handwriting is ours, because the bottom of the preceding page is barely legible because of some technical glitch which resulted in it being printed twice. We have not burdened the Court with that page but have taken the liberty of picking up the words which are discernible, "So I remind you of". These references, one of which is during the evidence and the others during addresses, indicate that the judge was warning the jury on a regular basis prior to their retirement.

KIRBY J: What do you say, if anything, about that passage on page 26 that Justice Callinan - have you finished with these - - -

MR HASTINGS: I was only going to draw your Honours' attention to 1 July 1996 where his Honour said to the jury:

Thank you ladies and gentlemen, please let me remind you of that direction I have given you all along about not discussing the matter.

It seems to indicate that the judge was giving directions regularly about that issue.

KIRBY J: Is that at the time of the separation to consider their verdict?

MR HASTINGS: No, I think it is during addresses, your Honour.

KIRBY J: Was there ever another one given at the time they were sent off to consider their verdict but are then permitted to separate?

MR HASTINGS: Yes, your Honour, because on 3 July, which was the day of retirement, the transcript records at about point 6 on the last page that we have given your Honours his Honour saying:

Please let me emphasise to you yet again the importance of you not discussing the matter outside of -

the courtroom. Did your Honour wish me to deal with the matter raised in relation to page 26?

KIRBY J: Whenever it is convenient to you, Mr Hastings.

MR HASTINGS: Now is appropriate, your Honour. Can I just point to the fact that that of course is at a time during the evidence and in a way that supports the point we have made in our submissions about separation, and that is that if the point taken by the applicant is taken to its logical conclusion, then it should mean that jurors should never separate from the commencement of the trial because the risk of contamination from outside influence is existent from the time that the trial commences. This would be a good example of that, because mid-evidence it would seem that one of the jurors had in fact been discussing the matter outside the relevant parties.

KIRBY J: Yes, I understand that point, but, as I understood it, the proposition is that however important that is during evidence, it is absolutely critical during deliberation.

MR HASTINGS: Your Honour, it is a matter of degree, I suppose, but the position referred to at page 26 is certainly undesirable and unacceptable, but the point is you really cannot stop that happening other than to repeat constantly the warning that was given in this case. The damage was done in a sense by the time the evidence was still only part-finished.

KIRBY J: This did not affect the present applicant, did it? This affected his co-accused?

MR HASTINGS: I think that is right, your Honour.

CALLINAN J: Did counsel for the co-accused ask for the jury to be discharged on the basis of what had occurred with the foreman?

MR HASTINGS: I think that is right. He did, your Honour, yes.

CALLINAN J: What about counsel for the appellant here?

MR HASTINGS: Not on that specific basis, your Honour. He of course had already made his application for discharge because of the reduction in numbers.

CALLINAN J: He did not renew it on this occasion?

MR HASTINGS: I will stand to be corrected, but I do not think so.

CALLINAN J: Anyway, Mr Street can tell us about that.

MR HASTINGS: Yes, may it please your Honours.

GLEESON CJ: Yes, Mr Street.

MR STREET: Your Honours, can I just indicate in relation to that matter at page 26 that it is my understanding that it was the subject of an application on behalf of my client relating to a discharge, which was unsuccessful in that regard.

KIRBY J: Do you have the transcript of that? I would like to see that.

MR STREET: Your Honour, we will endeavour to obtain it.

CALLINAN J: But it is not a ground of appeal, Mr Street.

MR STREET: No, your Honours, it is not and I cannot say - it should have been and it is certainly one which does suggest that the trial miscarried, but - - -

GLEESON CJ: When you say it should have been, you mean in the Court of Criminal Appeal?

MR STREET: Yes.

GLEESON CJ: If it had been a ground of appeal in the Court of Criminal Appeal, people would have had to investigate all sorts of factual matters.

MR STREET: I understand that, your Honours. I am not seeking to raise it in that way. What I would say though is this. What it highlights is the significance of the principle of non-separation once the jury retires. We would seek to identify it as an example of not merely the fact of what one might call the jury being tainted, but the appearance of it. The appearance of sequestering the jury ensures that impartiality. This is the type of problem that occurs if they are not sequestered.

KIRBY J: What is your answer to the logic that Mr Hastings presses on us that the only answer to that is you may never, never allow the jury, under any circumstances, ever, anywhere, to separate when they are deliberating?

MR STREET: We do not suggest that they should not be allowed to separate during the course of the trial up until retirement. At that point in time, if it is one where, as I indicated initially, the jurors are responsible and seek to take conscientiously, generally, just the same as judicial officers, their task. They are given warnings in that regard, but the warning they are given at that stage during trial is to keep an open mind. In our respectful submission, once retirement occurs, it was, in fact, the immutable position in 1900 that the jury was sequestered when they retired. To the extent one is seeking to identify what one might describe as the conceptual concept of trial by jury as at 1900, in our respectful submission, the sequestering of the jury when they retire was immutable.

KIRBY J: But, Mr Street, if you do not take this 1900 criterion, and if you look at trial by jury today - I mean, in 1900 I have seen where the jurors were kept in the Supreme Court of Victoria, bunked down. It would just be absolutely intolerable. It may have been tolerable in 1900, but looking at it with today's eyes, the notion of bunking male and female jurors down in such conditions is absolutely impossible.

GLEESON CJ: Not only that but it would be the ground for an argument that inappropriate pressure was put on the jury to reach a decision. The practices in past times concerning the circumstances under which jurors were kept, would nowadays be relied upon in support of a ground of appeal by a convicted person that the jurors had been subjected to inappropriate pressure.

MR STREET: Well, your Honours, I am not suggesting they be placed in a cart and deprived of food and water, but we do suggest that it is, in fact, a matter of correct principle that they should be sequestered during the deliberative process because it is ultimately the fundamental part that they are performing in that trial role. That is, in essence, the most critical stage of that concept.

KIRBY J: Is that the rule in the United States, do you know, under their Constitution? Is that their notion of trial by jury?

MR STREET: Your Honours, I cannot - - -

KIRBY J: I would like to know that. I would like to know what has been the constitutional view taken, if any, in the United States and Canada.

MR STREET: Yes, your Honour. I have sought to look in relation to both those areas in relation to this, what I might describe as the limb relating to non-separation, and I did not find any authority beyond the citation of the common law position that has been picked up as to an American line of country suggesting one way or the other about sequestering for jury retirement. But, your Honours, what we do put is that the common law position was such at 1900, that it was uniform, that it had not been amended by statute so far as that is concerned, and is a conceptual matter for that non-separation aspect, we would respectfully submit, it ensures preventing the type of danger that occurs at page 26.

In answer to your Honour the Chief Justice, undoubtedly, the accommodation that has to be provided has to be adequate accommodation. They have to be provided with provisions. But just because the jury is put in the charge of the sheriff for that purpose, does not mean that that type of function cannot be provided. What price justice?

GLEESON CJ: I may be wrong about this, Mr Street, but I had an impression that the practice of sequestering jurors in the United States, or at least in some parts of the United States, is a good deal more extensive than it is in New South Wales, and that that is one reason for the difference in the laws of those two countries about contempt of court and about the possibility of jurors being exposed to influences from media reports, for example. Sometimes it is said that because jurors are sequestered from the beginning of the trial, they are not exposed to media commentary.

MR STREET: Yes, your Honour, I think during the Simpson trial the jury, I understand, was locked up right throughout the trial, but, your Honour, I have not looked at that issue to the extent that I can seek to do so. If I can I would seek to send to your Honours within seven days any - - -

KIRBY J: Yes, if you can. If you or Mr Wendler can find something, I would be grateful.

HAYNE J: Start closer from home; I think separation of jurors considering their verdict was permitted in Victoria only within the last decade.

MR STREET: If your Honour please. I would seek leave to respond to what your Honour Justice Kirby has raised, by providing something, if I may, within seven days. To the extent that that has been touched upon, I am not in a position to answer at this point.

Your Honours, can I then come to an issue that was raised by Justice Gaudron in relation to the application of section 22 through section 68. Grounds 7 and 8 of the further amended draft notice of appeal clearly raised what I might describe as the application of section 22 under section 68 to the trial. So it has been clearly identified. When one looks at section 22, in our respectful submission it is clear that it must be inconsistent with whatever is the conceptual concept of trial by jury, to the extent that it would permit at large dispensing with the jury down to one.

Now, in our respectful submission, section 68(1) does not permit a severing of part of a provision such as section 22; either section 22 applied to the trial or it did not.

GAUDRON J: Yes. Are there decisions about how section 68 works in that respect? Prima facie, at least, one would think that the State Interpretation Act would have nothing to say to this question; ditto for the Commonwealth Interpretation Act. One has got to find something within the four corners of section 68, one would think, to give it partial effect.

MR STREET: Well, your Honours, we would respectfully embrace that. We would submit that the State Interpretation Act is not one which would have any operative effect to read down its provision when it is applied by section 68.

GAUDRON J: No.

MR STREET: So that one is then left with the position that either section 22 is applied by section 68(1) or it is not.

KIRBY J: But is there not a constitutional principle, leave aside statutes facilitated, that says that if one interpretation will lead to validity and another will lead to invalidity, you will prefer the one that leads to validity. Therefore you do not need an Interpretation Act; you simply look at the particular problem that is before the Court in this case and say, well, if either on the 1900 theory or on the essential requirements theory you still have trial by jury with 10, then at least the problem presented to the court suffices by the standard of the Constitution and you postpone issues of one to the (unlikely) case where that problem is presented.

MR STREET: No, your Honour, in our respectful submission, the proposition we are seeking to develop here is the proposition that section 22 was relied upon in this case; the judge sought to exercise a power under it. That provision, in our respectful submission, is repugnant to section 80. It is repugnant to section 80 because it would permit a trial by jury of one. That must be inconsistent with any conceptualised concept of a jury.

GAUDRON J: But section 68 says "so far as they are applicable', does it not? That would seem to suggest that you can sever and so forth.

MR STREET: Well, your Honour, it may suggest one can cherry-pick sections, but it does not, in our respectful submission, permit a cherry-picking of language within a section, and certainly not cherry-picking - - -

HAYNE J: Why not? Why can you not cherry-pick one and three?

MR STREET: Your Honours, in our respectful submission, either section 22 applied as a whole, or it did not. In our respectful submission, to engage in redrafting the provision by seeking to excise parts of it is, in essence, to engage in the task of one of the legislative functions of redrawing the provision. It is a provision on its face that is inconsistent with section 80.

GUMMOW J: You say the words to "be applied so far as they are applicable" in 68(1) produce invalidity in 68(1)?

MR STREET: Yes, your Honour. I put it in another way as well, your Honour. Can I just make it clear, and our grounds also raise it in this way - - -

GUMMOW J: Why would 68(1) be invalid if those words mean what they seem to mean.

MR STREET: If section 68(1) applies section 22, it is repugnant to section 80. So that if, in fact, the work done by section 68(1), and we raise that in our grounds, is to make applicable section 22, section 68 would be repugnant.

GUMMOW J: Yes, I know that. That is what we are talking about. It is suggested to you it does not make it wholly applicable. That is the words "so far as". You then say to me in so far as it has that ambulatory operation, as the cases have said in relation to section 79, it is invalid. Why?

MR STREET: Your Honour, in our respectful submission, section 22 - - -

GUMMOW J: The ambulatory operation is designed to avoid invalidity. Would you say it produces it?

MR STREET: Your Honour, in our respectful submission, the operation that it should be given is one which would not permit, in this instance, a redrafting and blue pencilling of part of the clause.

GAUDRON J: Well, that might be so with respect to paragraph (ii) because one cannot rewrite things and section 68 does not seem to give any warrant for rewriting things. Let us assume one comes to the view that paragraph (ii) cannot stand, you could look at paragraph (i) in isolation, can you not? It would be the same as if there were three separate sections, one of which said subject to section 2 which contained paragraph (ii), section 1 contained what is now paragraph (i).

MR STREET: Well, your Honour, we would respectfully submit that there may have been a position where, if section 22, in its first limb, was a separate provision in the power it conferred to reduce to 10 and the court took the view that 10 was a number that somehow finds some acceptance under section 80, then that provision may not be one that could be attacked. But it is a rolled-up power. It has been drawn, in our respectful submission, as a provision to provide a power, not broken up into subsections that a blue pencil could be applied to, but as a complete power. In that regard, it is not just (i), it is (i) and (iii) that we obviously seek to complain about as well.

But, your Honours, in our respectful submission, it is not just a case of not complying with section 68(1) in so far as applicable. We would respectfully submit it also runs foul of section 68(2) because it is then a case where the court is purporting to exercise jurisdiction in hearing a matter in respect of which the power that has been given under section 22 is inconsistent and repugnant with section 80. Section 68(2) is expressly made subject to section 80 in its direct terms, refers to section 80 as a condition precedent for the application of vesting a jurisdiction.

In our respectful submission, section 68(2) would operate, in this case, to the extent that it is apparent that the trial judge sought to rely upon the power under section 22. We would respectfully submit that there was thereafter an unconstitutional trial on the basis that there was no jurisdiction vested under section 68(2).

KIRBY J: Can I just get your help, leaving aside that issue: are we to ignore the absence of the order by the judge for separation and the absence of any ground of appeal in relation to that, and any ground of appeal in relation to the matter that is revealed on page 26?

MR STREET: Your Honours, there is no ground of appeal in relation to page 26. I can only use it in the way I have sought to. In relation to the matter of the absence of the order - - -

GLEESON CJ: Not only is there no ground of appeal here, there was no ground of appeal in the Court of Criminal Appeal where the matter could have been investigated.

MR STREET: I accept that, your Honour, but we nonetheless rely upon it in the way in which I have sought to as a matter of significance and supporting - - -

KIRBY J: I am not concerned with the Court of Criminal Appeal; I am concerned with my duties here, that the matter has been raised before the Court, I just want to know whether or not it is for me or not.

MR STREET: Your Honour, I cannot assert that it is a ground of appeal that your Honour should take into account as being a ground that was before the Court of Appeal. I can only put it on the basis that it was a matter which was a relevant example when one comes to the dangers of letting the jury separate after retiring.

GAUDRON J: Well, I think your client's application for special leave was dismissed except to the extent - - -

GUMMOW J: Exactly.

MR STREET: I was about to come to that, your Honour, in answer to what the Chief Justice had raised. It is the fact also that grounds 4 and 5, I think it was, of the draft notice of appeal, before the amended version that your Honours have, was not the subject of a grant of special leave. That was what was described - - -

GLEESON CJ: There has been no grant of special leave, has there?

MR STREET: No, it was refused.

GLEESON CJ: Your application for special leave has been dismissed except in relation to certain particular matters, and you are pursuing that application for special leave - - -

MR STREET: That is so, yes, your Honour. I cannot suggest - I think that was described as the Wu points, and the Wu points were the subject of a refusal of special leave. So, I do not - - -

KIRBY J: But they did not touch this question, did they? They were related to section 122 of the Constitution.

MR STREET: No, your Honour, they were founded upon the proposition of no order, no formal compliance, so that that issue was one on which special leave has been refused, and I cannot seek to agitate that.

Your Honour the Chief Justice yesterday raised something in relation to the list of imperatives that I handed up in relation to challenge. What I think I identified in that regard was comparable rights of challenge in terms of equality and unlimited in respect of cause. In our respectful submission, there was no flaw in the document that was identified.

Your Honours, I would seek, in relation to the approach that was adopted, at least in Williams v Florida [1970] USSC 150; 399 US 78, to take the Court very briefly back to some passages in that case which, in our respectful submission, have a real impact on the work that was done in that case, particularly in light of the propositions which have been raised by your Honour Justice Hayne, in terms of the concept that it being recognised there that it could be reduced to six. Your Honours, we would seek to go first to page 93, which identifies - - -

GUMMOW J: It is probably a good idea to know what provisions of the Constitution they were construing in Williams v Florida.

MR STREET: Well, your Honour, this is the critical thing; they were construing the Sixth Amendment. The majority adopted the view that it was because of the amendments and change - - -

GUMMOW J: The Sixth plus the Fourteenth, would it be?

MR STREET: The Sixth and Fourteenth. But it was because - - -

GUMMOW J: We are dealing in State affairs here.

MR STREET: I understand the force of what your Honour is saying, but it was because of the amendment process that was adopted in relation to the Sixth Amendment that is discussed at the bottom on page 93, there was a problem raised relating to the vicinage requirement. That appears at the bottom of page 93, and over on to the top of page 94, that is identified as the impetus for the discussions that are advanced in relation to that Sixth Amendment. The quotation that appears in terms of reposed amendment in respect of that Sixth Amendment shows that the words "of the vicinage" were to be included in the Sixth Amendment.

It is in light of that that court then comes to consider the concept, at page 96, of what work has been by that Sixth Amendment, where it sets out the current form, and it then identifies, at about point 4 of the way down the page:

Gone were the provisions spelling out such common-law features of the jury as "unanimity" or "the accustomed requisites".

So, what their Honours have said there is that the effect of the Sixth Amendment was to remove unanimity. It is in that context that one then has the approach adopted, that it also remove the number 12. When one goes over to page 97 at about point 3 of the way down the page, there is the proposition that the explanation that is advanced as to the change is one:

that the deletion had some substantive effect.

And then they go on to say:

Indeed, given the clear expectation that a substantive change would be effected by the inclusion or deletion of an explicit "vicinage" requirement, the latter explanation -

that is, removal of the substantive effect -

is, if anything, the more plausible.

So that their Honours reasoning was, in relation to this concept of arriving at a position of rejecting the common law, the history relating to the amendment to the Sixth Amendment. At page 98 - - -

KIRBY J: The Sixth Amendment was adopted in 1790, was it not? So it was not all that long after the Constitution.

MR STREET: No, but one is still, in our respectful submission, looking at the reasoning why the concept of unanimity, as one of the common law concepts, has been rejected by this Court in its majority as being picked up, because of this amendment process, and at page 98:

We do not pretend to be able to divine precisely what the word "jury" imported to the Framers, the First Congress, or the States in 1789. It may well be that the usual expectation was that the jury would consist of 12 -

Just pausing there, as a matter of concept, we would respectfully submit that the conceptualisation of the jury is recognised there in respect of the equivalent provision on which our provision was drawn, as one which would consist of 12. The test that they then now apply, at page 99, in light of the Sixth Amendment, which appears at the bottom of page 99:

The relevant inquiry, as we see it, must be the function that the particular feature performs and its relation to the purposes of the jury trial. Measured by this standard, the 12-man requirement -

This is on the top of page 100 -

cannot be regarded as an indispensable component of the Sixth Amendment.

Not of the original Constitution, it is of the Sixth Amendment. The Sixth Amendment is why the court in the majority came to a view that less than 12 was adequate. Your Honour, there was a powerful dissenting judgment - - -

HAYNE J: All this against the background of history recorded at note 45 on page 98, where unanimity was not universal, juries of six or seven were adopted in Pennsylvania, the history of the United States was not consistent with unanimous 12 as the key informing concept.

MR STREET: But, your Honour, what their Honours were saying was, the vicinage concept was one that they rejected as being intended to being embraced because of that history relating to the amendment process, and what we would respectfully submit is this, that the concept of trial by jury found in our Constitution reflects the original Constitution of the United States and, to the extent that the majority are focussed on that provision, they accepted that the expectation would have been 12, and we would have said, not just the expectation, the concept. Your Honours, when one goes to the dissenting judgment of Justice Marshall at page 116:

I join Part I of the Court's opinion. However, since I believe that the Fourteenth Amendment guaranteed Williams a jury of 12 to pass upon the question of his guilt or innocence before he could be sent to prison for the rest of his life, I dissent from the affirmance of his conviction.

And over at page 117:

At the same time, I adhere to the decision of the Court in Thompson v Utah -

which was at the time of the passing of our Constitution:

that the jury guaranteed by the Sixth Amendment consists "of twelve persons, neither more nor less".

And, your Honours, if one goes on at page 118 at about point 2 of the way down the page:

The historical argument by which the Court undertakes to justify its view that the Sixth Amendment does not require 12-member juries is, in my opinion, much too thin to mask the true thrust of this decision.

Just pausing, that re-enforces, in our respectful submission, it was the Sixth Amendment that gave rise to the proposition of the majority discarding the concept of 12. Your Honours, I do apologise, this is in the dissenting judgment of Justice Harlan and we rely upon also what was said by Justice Harlan when one goes to page 122 at about point 3 of the way down the page:

With all respect, I consider that before today it would have been unthinkable to suggest that the Sixth Amendment's right to a trial by jury is satisfied by a jury of six, or less, as is left open by the Court's opinion in Williams, or by less than a unanimous verdict, a question also reserved in today's decision.

Over on page 123, the first full paragraph:

Neither argument is, in my view, an acceptable reason for disregarding history and numerous pronouncements of this Court that have made "the easy assumption" that the Sixth Amendment's jury was one composed of 12 individuals.

Over on page 124, the first quotation:

"The interpretation of the Constitution of the United States 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 its history."

With respectfully submit that would support in the present case the same construction in respect of trial by jury. At the bottom of the page on 124 at about point 9:

In accordance with these precepts, sound constitutional interpretation requires, in my view, fixing the federal jury as it was known to the common law.

Over on page 125, your Honours, the second paragraph at about point 4:

The second aspect of the Court's argument is that the number "12" is a historical accident - even though one that has recurred without interruption since the 14th century - and is in no way essential to the "purpose of the jury trial" which is to "safeguard against the corrupt or overzealous prosecutor and against the compliant, biased, or eccentric judge." Thus history, the Court suggests, is no guide to the meaning of those rights whose form bears no relation to the policy they reflect. In this context the 12-member feature of the classical common-law jury is apparently regarded by the Court as mere adornment.

This second justification for cutting the umbilical cord that ties the form of the jury to the past is itself, as I see it, the most compelling reason for maintaining that guarantee in its common-law form.

We embrace that, your Honours.

For if 12 jurors are not essential, why are six?.....Can it be doubted that a unanimous jury of 12 provides a greater safeguard than a majority vote of six?

Equally, a majority vote of 10? It is a greater safeguard. At point 8 on the same page, 126:

2. The circumvention of history is compounded by the cavalier disregard of numerous pronouncements of this Court that reflect the understanding of the jury as one of 12 members -

Then over on the top of page 127, the quotation is picked up from Patton v United States characterised as three essential features of trial by jury, the first being "that the jury should consist of twelve men, neither more nor less". In our respectful submission - - -

GLEESON CJ: Twelve men?

MR STREET: In its gender neutral sense, your Honours. If I could then turn to the proposition of "concept" in relation to the trial by jury, what the accused did when issue is joined on the arraignment was he put himself on his country. He did not put himself on part of his country. His country that he put himself on was the 12 jurors. In answer to your Honour Justice McHugh's question in terms of the representativeness, it is putting himself on his country that inherently is representative. The country he put himself on was - - -

McHUGH J: But just look at the English jury, for instance. For most of the last century in England, what were the qualifications to serve as a juror? They were fourfold. You had to own land in fee simple or for life, which gave a rent of 10 pounds a year; or that you were a lessor of a lease of 20 years or more, which returned 20 pounds a year; that you owned a house which was assessable to the poor rate; or that you had a house with more than 15 windows in it. They were the qualifications for an English juror. Do not tell me that that was representative of the English community in the last century.

MR STREET: Your Honour, so far as that proposition is concerned, they are matters which we would accept as being mere detail. They do not go to the process itself. The 12 jurors go to the process itself. That is, the number 12 goes to the process. It is a different process if it has less than 12. That is the significance of it. It is not just a criterion in terms of qualification of the members. It is a different process that one is undertaking.

McHUGH J: I would have thought that the real purpose of the jury was what I mentioned yesterday, which I notice is stated in almost exactly the same terms in the majority judgment at page 100 in Williams v Florida:

The purpose of the jury trial.....is to prevent oppression by the Government.

That is the purpose of jury - - -

MR STREET: And it goes on to identify "or excess of judicial power".

It obviously has two purposes at least in that regard in section 80 and we say, obviously, the purpose as well in respect of the place of where the trial takes place, but - - -

GLEESON CJ: But you could describe it as different if you had all sorts of poor people participating in it.

MR STREET: But, your Honour, no. In our respectful submission, the trial by jury, as a conceptual idea, is a process. A trial by jury reflects a process. It is a different process of trial by jury to have a jury of 10 as opposed to 12. There are 10 triers of fact, not 12. That is a different process to have 10 triers of judges of fact, not 12 judges of fact.

KIRBY J: Now, Mr Street, what is it in the Constitution of the United States, given that Justice Harlan wrote a very powerful dissent and put very powerfully the arguments that you wished to advance but the majority of the Supreme Court of the United States took a different view of what was required by their jury requirement. Now, what is the point of distinction that warrants our saying, "Well, we will prefer the minority view to the majority, in so far as it is relevant"?

MR STREET: The language of the Sixth Amendment that gave a right to the accused and that omitted the word "vicinage" in its amendment history. The amendment history of the Sixth Amendment is materially different to our Constitution. Our Constitution reflects the original language of the American Constitution. It does not embrace that Sixth Amendment at all.

KIRBY J: But, the Sixth Amendment only came in 15 years later.

MR STREET: But that is not language that was picked up in section 80. Section 80 reflects, almost, the original version of the original Constitution in the United States and it was the history of the amendment which, in my respectful submission - - -

McHUGH J: Well, hardly. I mean, Article 3 referred to "all crimes" and our section 80 was deliberately altered to ensure that you would not have that problem about having to try every case.

MR STREET: But, your Honour, there is perhaps two reasons for that because the concept of "all indictable offences" - every offence is indictable. That language "all indictable offences" was flawed because the concept of "all indictable offences" could pick up everything and - - -

McHUGH J: Exactly. So, they even changed that. That was in the first draft. They changed that to "all offences tried on indictment".

MR STREET: But, your Honours, in our respectful submission, the removal of the problem - the problem that was identified by that language was not a problem of serious indictable offences, it was a problem of "all indictable offences" meaning "any offence" because "any offence" could be the subject of indictment.

McHUGH J: Exactly.

MR STREET: That was the flaw, not "serious offence". In our respectful submission, there is a material distinction but, your Honours, I will not seek to pursue that issue but what we do seek to advance in relation to what your Honour Justice McHugh has raised in respect of the representativeness is the arraignment itself. It must be the case that one is to take into account as part of the conceptual nature of what a jury is what is the arraignment. The arraignment results in the process where the accused is put in the charge of the jury. At the end of that arraignment there is an announcement, usually by the associate or someone, that the accused is now in the charge of the jury. He has put himself on his country.

McHUGH J: But the statistician would laugh at the notion that if you picked 12 persons out of a jury list that that was representative of the community. You can poll the whole nation on 1500 people if the sample is scientifically compiled, but it would be a miracle if you drew 12 names out of a jury list that was representative of the community.

MR STREET: Well, your Honour, one cannot have what I might describe as the whole community voting on it, one has to have a number that is identified and history has identified a number of 12. But, your Honour, the point that I was seeking to make is not so much the question of the number - and I will come to that - it is what is the function of what is being done? It is putting the accused upon his country. Who represents the country? The jury. Who are the jury? Twelve persons, not - - -

McHUGH J: Why not eight, on that version? They represent the country.

MR STREET: But, your Honour, in so far as one looks for an immutable concept as at 1900, immutable, in every State, was the position that the jury empanelled was 12.

McHUGH J: Yes, but not the jury that returned the verdict.

MR STREET: But, your Honours, at common law that was the position. No other position attained at common law. It was a jury of 12 that returned a verdict, no less. Throughout Australia, as at 1900, the position was that the jury that was empanelled was 12. As a conceptual idea, in our respectful submission, where is the flaw in the proposition that it was immutable, as at 1900, that it was a jury of 12 that was empanelled. Then we come to this problem, your Honour, in relation to what your Honour has raised in terms of the number being flexible.

Nowhere, in respect of a capital offence, and that is one where capital punishment could be imposed even though it might not be, nowhere in Australia, in respect of a capital offence, was there a number other than 12. If that was the case, is section 80 said to have some moveable number within it? In our respectful submission, once one accepts, in respect of a capital offence, that it was a jury of 12 that was the immutable position in Australia, is section 80 to have a construction that it would have permitted a capital offence, upon indictment, to be presented by less than a jury of 12.

McHUGH J: No, but the Parliament could have easily avoided it by simply making it tried by judge, without a jury.

MR STREET: But, your Honour, unless - - -

McHUGH J: The arguments that were used by the Court in Kingswell and other cases about the meaning of "offence", seem to me to be equally applicable to this argument.

MR STREET: Your Honours, unless leave were reopened, I am obviously precluded from responding to what your Honour is seeking to rely upon. In our respectful submission, to rely upon that line of country to construe the guarantee in the present case is, in our respectful submission, erroneous, because even on your Honour's own reasoning in Cheng, the guarantee operates in this case because of the indictment. So once one has the guarantee operating, in our respectful submission, it would not be appropriate to read it down by Kingswell or that line of country.

It would not, in our respectful submission, be recognising the effect of it. It is mandatory in its command once it operates. So, in our respectful submission, there is still work to do in respect of the guarantee that should not be confined by the limits that have been imposed where - what I might describe as by the earlier line of country. There is no reason - - -

McHUGH J: It is pretty obvious, I think, that you cannot have a jury of one. That seems to be a contradiction in terms. But from there upwards, I am not sure, except as a matter of history, and as was pointed out to you, as a matter of history, jury verdicts in this country were being returned before 1900 with less than 12 jurors.

MR STREET: But, your Honour, what I respectfully submit is this. Before one looks at the argument relating to a statutory return of less than 12, what one should start with is the empanelling of the jury. What was the immutable position for the concept of empanelment? Empanelment, immutably, looking at State legislation or not, was 12. Capital punishment had to be, immutably, as at 1900, a position of 12. Section 80 must have embraced the concept that there would be capital offences that would be the subject of laws of the Commonwealth. Indeed, there were - treason. Could it have been suggested that treason, upon indictment, could have been heard before a jury of less than 12? It could not have been. And could a verdict have been returned by a jury of less than 12 for a capital punishment? It could not have been.

KIRBY J: Yes, well, you have made that point.

MR STREET: If your Honours please. Can I, in that regard, your Honours, just make this additional point when one comes to look at this question of the application of the State laws in some way being used to read down the Constitution? Just by analogy, I do not suggest that it is a perfect analogy - - -

GUMMOW J: What do you mean by "read down the Constitution"?

MR STREET: Well, your Honours, to the extent that one is seeking to give it a construction - - -

GUMMOW J: It is a set - - -

MR STREET: Well, your Honours, can I just identify it in this way? We would say that what in fact is being propounded by reference to the State Acts is a proposition that the guarantee under section 80 is a guarantee in respect of a trial by jury consistent with the laws of juries in the respective States. That would be the ultimate logic that one would come to in respect of the construction that has been identified by your Honour Justice Hayne. In other words, that what one would be doing is saying that trial by jury in section 80 is trial by jury consistent with the laws applicable by the States, as they then were.

HAYNE J: On any view, section 80 requires some legislation to enable it to be given effect.

MR STREET: And taking that to its logical conclusion, that would mean a construction that one is saying it is trial by jury consistent with the applicable laws of the States. Your Honours, that is the ultimate proposition, in our respectful submission, that arises from the significance that your Honour Justice Hayne has raised potentially in respect of the individual State legislation. That would be inconsistent with the clear recognition by the draftsmen of the Constitution when they intended to make a provision one pick up the State laws.

When one looks at section 31 of the Constitution, if I can take your Honours to it - I do not suggest the analogy is perfect, but the analogy certainly identifies that if it had been intended that it was trial by jury consistent with the laws applicable in the respective States, one could easily have used language similar to that found in section 31, "the laws in force in each State" being inserted in respect of trial by jury, if that is what had been intended in the conceptual idea of trial by jury that was being embraced. So, in our respectful submission, that cuts against the concept of being one which was defined by reference to the State legislation because, had it intended to do so, it would have used such language.

Equally, your Honours, if it was, in fact, the case that the numbers were something that were to be ones that could be increased or diminished in relation to a jury, one looks at section 27 of the Constitution and, again, had it been a case that the jury was one to fluctuate in numbers, plainly the draftsmen could have said so. Equally, if there was to be a quorum of less than 12, when one looks at provisions like 22 and section 39, the draftsmen clearly could have said so. They envisaged a concept of trial by jury that was complete, a concept, in our respectful submission, that permitted consistently capital offences or other serious offences to be tried by a jury of 12, consistent, in our respectful submission, with common law principles.

It was said by Mr Hastings what the consequence of section 22 has been in the present case has given rise to no injustice. My client has, as a result of the application of section 22, in our respectful submission, been denied the benefit of 12 triers of fact determining his guilt which, in our respectful submission, is the constitutional mandate of section 80. In those circumstances, there is very clear injustice that has flowed from the application of section 22.

KIRBY J: Mr Street, you may already have answered this in the way you have answered other questions, but if one does not embrace the 1900 criterion which is sometimes embraced by this Court, what would be your answer to the question of essential characteristics of "trial by jury" that, given the change of jury trial today and given the length of jury trials, given the complexity of them, given the intolerability of putting people in bunks and other things that were common at the time of Federation or in earlier centuries, that if we are looking at what are the essential characteristics of jury trial today, that a jury trial which starts with 12 but can be reduced to 10 sufficiently conforms with those essential characteristics? Leave aside what was the state of colonial legislation and so on, but looking at it with today's eyes, what is the problem with that notion? Is there anything additional that you want to add to what you have said by reference to the 1900 criterion? For myself, I do not find that helpful.

MR STREET: Your Honours, I have sought to identify its significance in respect of the representative impact of having 12 persons as being of significance. I have sought to identify the credibility and acceptance and confidence of the community in respect of 12 persons being the persons that deliberate. I have sought to identify the fact that any lesser number than 12 is to water down the burden of persuasion carried by the prosecution. To have a lesser number of persons than 12 means the prosecution's task is fundamentally changed. It do not have to persuade 12 triers of fact beyond reasonable doubt; I have to persuade 10 or 11 persons.

KIRBY J: You do, unless for good cause and by order of a judge it is reduced to 10.

MR STREET: Your Honours, in our respectful submission, it is one where contemporary convenience in terms of the concepts of the duration of the trial, or the like, do not justify disregarding the protection that the accused is entitled to in respect of 12 persons determining his guilt or innocence.

McHUGH J: Well, if your argument is right, the practical effect will be that you will never get a verdict in a lengthy trial, never, ever. Experience already demonstrates that with the long trials. How many long trials have there been in which the whole jury has stayed the distance?

MR STREET: Your Honour, I am not aware of statistics suggesting that long trials have given rise to hung juries with regularity.

McHUGH J: Justice Abadee had a four months trial earlier this year and halfway through his summing up one of the jurors had to be rushed off to hospital with a burst appendix. What do you do in a case like that? At the end of four months, would you say, well, they are going to start again? I think in that particular case the trial was actually postponed until the woman came back.

MR STREET: Your Honour, the solution is simple - and it is one which was identified by the learned Solicitor-General, Mr Bennett, as being their concern. One has to have reserve jurors despite the cost. Cost does not justify reducing the standard of justice and that is effectively the argument in favour of reducing the number from 12 or having our reserve jury system is simply the cost and burden of it. The notion that the trial is protracted because it is 10 or 12 that are sitting on the jury, in our respectful submission, has no content. The length of the trial, in terms of the likelihood of a conviction or the like is not, in some way, advanced or detracted by paring back the number and reducing the burden on the prosecution, because that is the effect of what one is doing. No longer is the onus of persuasion one to that standard where there will be 12 persons who must be satisfied to that requisite degree and duration of trial does not, in our respectful submission, have any impact on that number.

McHUGH J: Well, it must have an effect if you are going to adopt the loose-leaf theory of the Constitution and disregard the 1900 meaning.

MR STREET: Your Honour, in our respectful submission, to the extent that one is going to adopt the 1900 meaning, in our respectful submission, it is 12. That is what the common law recognised and that is what the Constitution, in my respectful submission, mandates. What other number is there? There is no other number that one can identify other than 12, that could be the subject of such mandate, and no other number that could accommodate trial for a capital offence.

KIRBY J: I cannot allow the comment relating to loose-leaf to pass. It is not a loose-leaf with all the statues of 1900 and before tucked in as well; it is the Constitution that we interpret from time to time, which is our responsibility.

MR STREET: Your Honours, in our respectful submission, it is of moment that it is only this Court, not Parliament, that can recognise the full scope of section 80 in relation to where its guarantee operates. It is of no comfort to the accused or, indeed, the community, in respect of this operation of the guarantee to say that Parliament might be able to pass legislation that in some way impedes or seeks to advance what is perceived to be convenience. It is one where, in our respectful submission, in looking at that command and the scope of it, one has to recognise that, unless this Court gives it content, it will have no work to do in relation to that number, and there must be a number. Section 80 cannot be at large without any number in the concept of a jury trial. It must have some content. If it does have content, what other number is there, in our respectful submission, than 12? If the Court pleases.

GLEESON CJ: Thank you, Mr Street. We will reserve our decision in this matter.

AT 10.58 AM THE MATTER WAS ADJOURNED