R v LK; R v RK [2009] HCATrans 312 (2 December 2009)

Last Updated: 2 December 2009

[2009] HCATrans 312

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S162 of 2009

B e t w e e n -

THE QUEEN

Appellant

and

LK

Respondent

Office of the Registry
Sydney No S163 of 2009

B e t w e e n -

THE QUEEN

Appellant

and

RK

Respondent

FRENCH CJ
GUMMOW J
HAYNE J
HEYDON J
CRENNAN J
KIEFEL J
BELL J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 2 DECEMBER 2009, AT 10.21 AM

(Continued from 1/12/09)

Copyright in the High Court of Australia

__________________

MR GAME: If I could just have one moment, your Honours. I will not interrupt Mr Hughes. We have created the document, we will provide it to the Court and I have discussed with our opponents and our friends on the same side of the Bar table if it is acceptable to the Court we will deal with this when we reply. If there are any other matters arising from it we, of course, would not oppose our opponents having something to say about that. We have agreed that we will go last on the notice of contention so we would imagine that we do those things at the same time. If the Court pleases. I will just provide this document to the Court at this point.

FRENCH CJ: Thank you. You can have that document provided to the Court. Yes, thank you, Mr Game. Yes, Mr Hughes.

MR HUGHES: In my submissions yesterday, your Honours, I had reached paragraph 35 of the filed outline.

FRENCH CJ: You will bear in mind, of course, Mr Hughes, that we have all read the written submissions, so there is no need to take us to those in detail.

MR HUGHES: No, quite. I had mentioned the Act 13 Vic No 8 of New South Wales in paragraph 34. In the file or bundle of documentary material made available to the Court, your Honours will see that the last document in that bundle is the Act and it applied only to appeals against conviction. The Act provided that application could be made during the trial for a reference to the Supreme Court or at the instance of the trial judge. I need say no more about it.

Your Honours, it may be convenient if I, before proceeding with the argument, invite your Honours’ attention to the contents of this bundle of material. The first document, if your Honours have it, is a note on the background to section 80 dealing, inter alia, with the United States constitutional provisions and referring to decisions of the Supreme Court of the United States. The second document is a collation of brief references to decisions going back to 1660 of English courts on the subject of the authority of an acquittal followed by references to Australian cases on the same topic. I shall not take up the Court’s time by reading from this document but it may provide a useful point of reference. The next document are extracts from Blackstone’s Commentaries.

FRENCH CJ: I think we can all see the contents of the documents, Mr Hughes, so if there is some particular feature of them that you would like to draw to our attention, perhaps you can do that rather than see the index and so forth.

MR HUGHES: I will not go any further. The relevant passages in Blackstone and Holdsworth are referred to in the outline. We have set out – if your Honours would look at paragraph 35 – a reference to R v Duncan (1881) 7 QBD 198. That citation is included in the extracts from English judgments. Then in paragraph 35 we have set out a statement by Chief Justice Pratt in R v Jones. I will not read it. In paragraph 36 we refer to R v Scaife. I need not engage in further discussion on that. It is all there in our outline.

In paragraphs 37 and 38 we refer to some early New South Wales cases that went to the Privy Council. In paragraph 39 we advert to what we venture to describe as the inadequacies of the common law and which led ultimately to the enactment of the Criminal Appeal Act 1912 (NSW). In our printed material, the bundle, we have set out the Hansard references to the second reading debate on that Bill. If your Honours would be good enough to go to the second page in, page1305, your Honours will see a paragraph in the speech of Mr Holman in which he indicates that he was tempted to bring in a Bill. It is the first column on 1305.

FRENCH CJ: Does this all go to the proposition for the purposes of the application of section 80 of the Constitution that the finality of a verdict of acquittal, whether secured by direction or after consideration on the merits, is an essential feature of trial by jury guaranteed by section 80?

MR HUGHES: Yes, your Honour.

FRENCH CJ: So that is really all this historical material is directed to in the end?

MR HUGHES: Yes, it is. It is directed to the embedded finality at the time of the enactment of the Constitution.

FRENCH CJ: So the Criminal Appeal Bill of 1911 is really not going to assist us in that respect, is it?

MR HUGHES: No, not in itself except of course that it applied only to appeals against convictions. This speech is a useful contemporary exposition of a general understanding at a time not long after Federation of the importance of the finality of a jury verdict of acquittal. In paragraph 40 of our outline we come to AK v Western Australia [2008] HCA 8; 232 CLR 438 at pages 470 to 478. We invite, if we may, particular attention to what your Honour Justice Heydon said at paragraph 97, page 473, a matter to which Sir William Deane had referred earlier in Kingswell [1985] HCA 72; 159 CLR 264 at pages 300 and 301. In your Honour Justice Heydon’s judgment at paragraph 97 your Honour referred to the right, as it were, of a jury to bring in a verdict which, according to legal standards, might be deficient but it was within their province to do so.

Now I come, if I may, and I shall make the treatment as brief as possible, to the important Australian cases on the meaning of section 80. In The King v Snow (1915 ) [1915] HCA 90; 20 CLR 315 Sir Samuel Griffith at page 323 treated section 80 of the Constitution as embodying, by the use of the words “trial by jury”, “with all that was connoted by that phrase in constitutional law and in the common law of England”.

At page 326, his Honour noted the absence of any argument that, under the relevant State law, a new trial could be granted after a jury’s verdict of acquittal on any ground whatsoever. At page 322, his Honour said:

+ The common law doctrine as to the effect of a verdict of acquittal is too well settled to require exposition, and it is too late to inquire into its origin.

I shall not read on, but I invite your Honours to read the rest of that passage. In their joint judgment in Snow, Justices Gavan Duffy and Rich said:

out of respect for character and reputation, the Courts resisted every attack on the inviolability of the verdict of “not guilty”, and that inviolability has remained part of the substantive law to the present day.

I invite particularly your Honours’ attention to the words “substantive law” in that passage because, as I understand the thrust of the argument that will be presented against us on the issue of the conclusiveness of a jury’s verdict, the idea of the principle sought to be advanced will be that this characteristic is part of procedure and not part of substantive law. We rely on the passage at page 365 in Snow, which is set out in paragraph 42.

GUMMOW J: Mr Hughes, can you just go back to 361?

MR HUGHES: Yes, your Honour.

GUMMOW J: About point 4 on the page:

In our opinion the direction given by the Judge to the jury was not a judgment . . . it was a mere statement . . . Had they chosen to ignore his direction and return a verdict of guilty, he could not have insisted on any other verdict.

Do you rely on that?

MR HUGHES: Yes, your Honour, I do. I am sorry; in my haste to get through this quickly I omitted that reference. We have written about it elsewhere in our outline. In your Honour’s judgment – and I refer to your Honour Justice Heydon – in AK v Western Australia your Honour did refer quite bluntly and openly, if I may say so, to the fact that juries could return perverse verdicts of acquittal, but the fact that they might do so or would do so in a particular case is, under the common law, no basis for an appeal or any corrective action.

We say, and this is paragraph 43, that although Snow is in a very real sense, by itself an unsatisfactory authority because of the even division of opinion in the Court, it is one in which there are powerful statements of the relevant principle of the common law. We rely on those statements as supporting our argument and we invite the Court to notice three points about Snow.

First, the Crown attempted to appeal against a verdict by direction, a verdict of acquittal by direction. Point two, and this is paragraph 44, three of the Justices, Sir Samuel Griffith, in the passages we have already referred to, and in their joint judgment, Justices Gavan Duffy and Rich at pages 364 and 365, were firm in the view that under section 80:

the persons tried shall have all the benefits incidental to a trial by jury, and one of them is that a verdict of “not guilty” shall be final and conclusive on the issue the jury is sworn to try, the issue of “guilty or not guilty.”

Justices Gavan Duffy and Rich, and this is the third point we would invite the Court to consider, expressed the view that when a trial judge directs a jury to give a verdict of acquittal, the jury is not bound in law to act on this. Your Honour Justice Gummow has already invited attention to that element in the joint judgment.

That statement at pages 364 and 365, your Honours, suggests that such a verdict, that is a verdict of not guilty by direction, is legally dependent upon the will of the jury to give it, deriving its binding effect from the fact that the jury has given it, and not from the fact that the judge directs them. That suggestion gains strength, we submit, from what Lord Goddard, Chief Justice, said in R v Heyes [1951] 1 KB 29 at page 30, and I quote:

once a prisoner is in charge of a jury, he can only be either convicted or discharged by the verdict of the jury.

That principle was adopted after the judgment of Lord Goddard Chief Justice in a Victorian case, R v Paprounas [1970] VicRp 107; [1970] VR 865 at page 866, cited in the last paragraph, your Honours, of our speaking notes. The Full Court of the Supreme Court of Victoria in a criminal appeal applied R v Heyes and that is in addition to the authority of Lord Goddard Chief Justice on the effect of a jury acquittal.

Next, your Honours, we go briefly to the Victorian case that I have just cited. One picks up from the headnote, your Honours, that the accused was arraigned for trial before a jury and pleaded not guilty:

During the course of the trial and at the request of the accused he was re-arraigned and changed his plea to guilty. The trial judge thereupon purported to accept this plea and discharged the jury without verdict and, after hearing a plea made for the accused, sentenced him to a term of imprisonment.

FRENCH CJ: That just went to the proposition that once in charge of the jury the case could only be disposed of by a jury verdict.

MR HUGHES: Yes.

BELL J: And in New South Wales that position has been altered by section 157 of the Criminal Procedure Act.

MR HUGHES: It has, your Honour, yes. But the case is useful from our perspective because it is indicative of the common law position with respect to the force of a jury verdict even when it is a verdict by direction and it emphasises the importance in a legal sense of the role of the jury in returning a verdict once the accused has been placed in their charge. That position has been a remedy. If one engages in speculation for a moment, it may give rise to an interesting question in the future, but it is not part of the argument for today.

HAYNE J: But do you accept that part of the understanding which informs the opinions in Snow is a need to distinguish between the verdict of the jury and the subsequent entry of judgment in consequence of that verdict? In particular, the conclusion expressed by Chief Justice Griffith in Snow that leave to appeal in that case would have been futile depended upon the observation that setting aside the judgment of the court would leave the jury’s verdict intact.

MR HUGHES: Unchallengeable, intact.

HAYNE J: Yes. And that following what had been earlier held in the civil context in Musgrove v McDonald [1905] HCA 50; 3 CLR 132, it is important to distinguish between the judgment of the court and the verdict of the jury. In the present legislation, the validity of which is at issue, the statutory presupposition is that in a particular class of case where there is a verdict, the acquittal, the judgment of the court acquitting may be set aside.

MR HUGHES: But it is not, with respect, your Honour, in such a case the judgment of the court because the operative factor is the verdict, albeit by direction, of the jury and the utility, I venture to suggest, in this context of realising that once the accused is in charge of the jury only the jury can deliver him is an important factor because that deliverance in the case of an acquittal was under the common law as it subsisted at the time of this Commonwealth being brought into creation was inviolable. The acquittal was inviolable. I hope I have answered your Honour’s question.

HAYNE J: Yes, thank you.

FRENCH CJ: That was a direct appeal, of course, from the judgment of the trial court and there was a focus on section 73 of the Constitution.

MR HUGHES: Yes, indeed. The approach of the Chief Justice in Snow and Justices Gavan Duffy and Rich was, first of all, that the direction to give to the jury to acquit was not within section 73 – that was one approach, I think that was Sir Samuel Griffith – but in any event if it was a judgment, that is, if the direction was a judgment, it would have been futile or inutile to admit by special leave an appeal against that direction because when that had been done an inviolate jury verdict stood in the path of any effective appellate action. Your Honours, may I, in relation to the important Victorian case, invite your Honours’ attention to what was said at page 866 in the paragraph that starts just above the middle of the page. I will not read it.

Now, the next case in this line is R v Weaver [1931] HCA 23; (1931) 45 CLR 321. At page 356 your Honours will find an important statement by Justice Evatt that a jury verdict of not guilty in a criminal case:

has a special constitutional finality and sanctity which are always regarded as an essential feature of British criminal jurisprudence.

Of course his Honour was using the word constitutional in the broader non-federal sense and his Honour’s statement is significant because it underlines the general constitutional significance of the verdict of acquittal. In the same case, that is Weaver, Chief Justice Gavan Duffy and Justices Starke and McTiernan delivered a joint judgment containing this authoritative statement at page 333:

No doubt a verdict of acquittal given by a jury on a sufficient indictment in a purely criminal trial conducted by a competent court is final –

For that proposition, your Honours, the Chief Justice and Justices Starke and McTiernan cited the paragraph from Snow that we have set out at paragraph 41 of our outline. There is a typographical or textual error in line 23 of our paragraph 45, your Honours, for which I apologise. The reference to paragraph 13 should be a reference to paragraph 41. Your Honours, there was good reason for the development of the institution of trial by jury of criminal offences under the common law. It was devised as a protection against the risk of official oppression by judges over responsive to royal authority.

FRENCH CJ: I think you can take it, Mr Hughes, that we are familiar with that aspect and your history. I think we would be much assisted by a focus upon the question of the directed verdict of acquittal and I also note that some of the authorities to which you are referring, including the last one, were dealing with, although I appreciate the developments of the comments you made, appeals of verdicts of acquittal entered by direction by a Court of Criminal Appeal.

MR HUGHES: Are different.

FRENCH CJ: Yes, which is a different situation, of course.

MR HUGHES: Yes. In that context Wilkes is important for what Sir Owen Dixon said. At [1948] HCA 22; 77 CLR 511 Sir Owen Dixon at 516 and 517 said that the High Court, “would not, of course, go behind a verdict of not guilty”, although this Court has entertained applications by the Crown for special leave to appeal from judgments of acquittal given by courts of criminal appeal and we say that in context Sir Owen Dixon’s statement – this Court “would not, of course, go behind a verdict of not guilty” was clearly to a verdict of not guilty by a jury. The next case to which I should make reference is Davern v Messell [1984] HCA 34; 155 CLR 21 and - - -

FRENCH CJ: That is picking up the authorities to which you have already referred and Justice Deane’s fairly extensive discussion in Mastertouch.

MR HUGHES: Yes. Unless your Honours think it will help, I would not take up time reading from the majority judgments, first of all, in Davern v Messel. There is in them either an explicit or an implicit acceptance of what was said by the three Justices, Sir Samuel Griffith, Justice Gavan Duffy and Justice Rich in Snow. Also, I would refer your Honours, if I may, to what Sir Anthony Mason and Sir Gerard Brennan said in Davern v Messel at pages 53 and 54. They were in dissent, but what their Honours, albeit in the minority, recognised explicitly in the passage I have quoted from Wilkes Sir Owen Dixon was referring to an acquittal by a jury as something that the Court would not go behind.

HEYDON J: Mr Hughes, you said they were in dissent, but they agreed that the appeal should be allowed.

MR HUGHES: Yes, I am sorry.

HEYDON J: The dissenting judges were Justices Murphy and Deane.

MR HUGHES: I beg your Honour’s pardon. The dissenting justices were Justice Deane and Justice - - -

HEYDON J: Murphy.

MR HUGHES: Yes. Of course, in their dissenting judgments their Honours did nothing to undermine the conclusiveness of a jury verdict of acquittal.

In fact, their approach was, if anything, a fortiori. In deciding for the purposes of section 80, your Honours – and this is paragraph 48 of our outline – whether the statutory prescription relating to a jury trial constitutes where it is a trial on indictment be the constitutional requirement, we say first one must identify the legal effect of the prescription, and second, decide whether it is incompatible with an essential or indispensable characteristic of such a trial under the common law.

FRENCH CJ: Well, that you take from Cheatle.

MR HUGHES: I do.

FRENCH CJ: That then takes us directly to the operation of section 107 in the federal jurisdiction.

MR HUGHES: Yes, it does. May I, before passing from Cheatle, invite your Honours’ attention to the circumstance that in the unanimous judgment of the seven Justices of the Court, their Honours referred to the fact, as they saw it, that not only procedure but principle supported - common law principle of longstanding supported the requirement that a jury verdict in a case involving an offence against Commonwealth law must be unanimous. The primacy and sanctity afforded to a jury verdict of acquittal depends not only upon procedure but more importantly upon fundamental common law principle which one can trace back to the 17th century, if not before. The reference to principle is at page 552 of the report of Cheatle 177 CLR.

FRENCH CJ: Does it boil down to this, that your contention is that the finality of a verdict, even if it be a directed verdict, is an essential feature of the institution of trial by jury within the doctrine enunciated in Cheatle?

MR HUGHES: Yes.

FRENCH CJ: And that protects – and that by operation of section 80 an appeal will not lie against such a directed acquittal. Now, the question I suppose is this. Does it make any difference to the characterisation of a directed acquittal that the jury has no choice but to do what the judge says, or do you assume a possibility of some perverse response, and is that critical to your argument?

MR HUGHES: It is not critical to my argument, although we do not disclaim reliance on the proposition to which Justice Heydon adverted in AK and to which Justices Gavan Duffy and Rich adverted in Snow the possibility that a jury may not perform their duty in a particular case, but if in breach of their duty, which I suppose in a sense is one of imperfect obligation, they decide to acquit, nothing can be done about it.

GUMMOW J: That is right. What Justice Heydon is talking about at page 474 of AK is a judge telling a jury to convict.

MR HUGHES: I am sorry, to?

GUMMOW J: To convict.

MR HUGHES: Yes.

GUMMOW J: That is not this case.

MR HUGHES: No, that is not this case, but what your Honour Justice Heydon said in AK is nevertheless useful to our argument, even though it is dealing with the opposite position.

BELL J: There is, though, a distinction, is there not, between the notion of a jury returning a merciful verdict of acquittal which may not involve on one view dereliction of their duty but rather the law recognises that it is open to a jury to return such a verdict notwithstanding that the evidence would point the other way – that is one situation – and the jury in light of a direction to acquit determining not to do so?

MR HUGHES: There is no fundamental distinction in principle because to discern the importance or even the origin of the principle, one goes back to the proposition that once the prisoner or the accused is put in charge of the jury, only the jury can deliver him either to the gaoler or to bail, if there is a conviction.

BELL J: That is a proposition, as I was indicating earlier, has been abrogated in New South Wales by section 157 of the Criminal Procedure Act.

MR HUGHES: That, as I said earlier, may well give rise to a question.

BELL J: Yes, I understand. Apart from the joint reasons in Snow, do you point to any other discussion of the possibility of a jury failing to return a verdict of not guilty when directed so to do?

MR HUGHES: I do not know of any other discussion, your Honours, apart from that in the cases which I have scrolled through, I hope not too tediously, starting with Weaver, then Wilkes, then Davern v Messel and Cheatle.

I think I have given the page reference to what Justices Gavan Duffy and Rich said in Snow, which includes page 361. I will not read it. The next point we would ask your Honours to notice – and this is by way in the context of an extension of our answer to what your Honour Justice Bell just asked. In Brown v The Queen, noticed in paragraph 49 of our outline, Sir William Deane as one of the majority adopted Sir Samuel Griffith’s resort to connotation in Snow at page 323. Then I come to Eastman [2000] HCA 29; 203 CLR 1. At paragraph 152 Justice McHugh added his authority to the proposition that a jury verdict of acquittal is conclusive when it is a verdict by direction of a judge exercising federal jurisdiction. Paragraph 152 is found at page 49 of 203 CLR. His Honour says:

Elsewhere -

If one looks at the footnote, that is in Theophanous:

I have observed that the true meaning of a legal text will depend on a background of concepts, principles, practices, facts, rights and duties which the authors of the text took for granted or understood. Thus, it is only history and the practice of the courts prior to 1900 that enable us to know that “appeal” in s 73 of the Constitution does not include an application for a new trial. There is therefore no right to “appeal” to this Court from the verdict of a jury or from a judgment of the Supreme Court of a State founded upon a general verdict of a jury. The verdict can only be set aside by appeal to this Court from a decision of the Supreme Court of a State given by that court in respect of an application for a new trial. Similarly, only history and practice inform us that it was not the intention of the makers of the Constitution to permit the Crown to appeal from an acquittal by a jury, even when the acquittal is by direction of a judge exercising federal jurisdiction.

We venture to suggest that that is the important statement. Now, it is easy to identify in this case the purported legal effect of section 107 of the Act under challenge. It exposes a jury’s verdict of not guilty given as a result of a direction by the trial judge that the jury acquit the accused to an appeal by the prosecutor to the Court of Criminal Appeal and empowers that court to quash the acquittal but only for error of law on the part of the trial judge. We say that like the requirement as to unanimity established by Cheatle, the inviolability of a jury’s verdict to acquittal in such a case is an equally essential element of a principle of the common law. We attack section 107 in its relevant parts on that basis.

If, your Honours, the criterion for determining compliance with section 80 is not necessarily the meaning of the expression “trial by jury” at the time when the Constitution was enacted in 1900 but its contemporary meaning as postulated by Justice Kirby in Brownlee v The Queen, the outcome of the constitutional argument would be the same because the common law principle stands despite statutory attempts to abrogate it.

HEYDON J: Strictly speaking, if you are going to talk in the manner of Justice Kirby, what you would say is the meaning of the Constitution may have changed since 1900.

MR HUGHES: Yes.

HEYDON J: It takes its colour, its nutrients, from the soil so that it can grow as an ever-changing tree from the common law. It is not itself the common law but it is fed by and watered by the common law. That is the sort of lingo.

MR HUGHES: Yes. I can adapt to that terminology, although consistently with the general weight of authority in this Court one naturally enough tends to go back to the meaning as it was in 1900.

GUMMOW J: That cannot be an absolute proposition, Mr Hughes.

MR HUGHES: No, it cannot be.

GUMMOW J: Where were the women?

MR HUGHES: Or where were the property qualifications?

GUMMOW J: Yes, that is the problem.

MR HUGHES: There is and there has to be, and it is recognised by the course of authority, adaptation, but the essentials, the fundamentals remain and the primacy of a jury verdict of acquittal is one of the fundamentals. Recent decisions of the Court of Criminal Appeal in New South Wales have served to confirm, your Honours, the strength and durability of the principle that an acquittal by a jury of a person tried on indictment is under the common law not appealable by the Crown.

In Cheng, which we have referred to in paragraph 56 of our outline, the Court of Criminal Appeal in New South Wales rejected a submission that section 5F(2) of the Criminal Appeal Act enabled the Attorney-General or the DPP to appeal to the Court of Criminal Appeal against a direction by a trial judge that an accused person be acquitted of an indictable offence. In the course of his reasons, the Chief Justice in that case referred to the proposition or the principle that the Crown cannot appeal from a jury verdict of acquittal as a fundamental principle of long standing.

The relevant passage in the Chief Justice’s judgment is at page 619, paragraph 20 of 48 NSWLR. Then we refer, your Honours, to Justice Sheller in Lethlean (1995) A Crim R at pages 204 and 205 which specifically invokes the significant statement of principle by Sir Samuel Griffith in Snow at page 322 of 15 CLR.

FRENCH CJ: Mr Hughes, as I said at the outset, of course we have read these and we can read them for ourselves and it would be perhaps more helpful if you could just take us to the salient features, the points that you want to make, because we need not see the numbers.

MR HUGHES: I hope I have been. I do not want to say anything more. I have dealt already orally with the conclusions that we seek to draw from Davern v Messel.

FRENCH CJ: Yes.

MR HUGHES: I should say something about the Tasmanian case of Kim.

HEYDON J: Mr Hughes, are you familiar with a decision called R v JS (2007) 175 - - -

MR HUGHES: Yes, your Honour.

HEYDON J: Yes. You rely on that presumably, and the Tasmanian decision that it followed.

MR HUGHES: Yes, we certainly rely on that. Unless your Honours want me to, I shall not go into it. I know time is marching on. As to the Tasmanian case, we venture the following criticisms. It is reported in 65 A Crim R at page 278. First the reasons of the Chief Justice do not pay any regard to the conclusions expressed by all the Justices in Davern v Messel as to the inviolate nature of a jury’s verdict of acquittal. Second, Justice Zeeman, at pages 283, point 9 to 284, point 1, suggested that:

so long as the ultimate judgment in any case where there has been a trial on indictment is the product of the verdict of a jury it cannot be said that s 80 has not been observed -

We say, with respect, that his Honour made this suggestion without adverting to the circumstance that the jury had returned what we would say an ultimate in the sense of conclusive judgment, by the verdict of acquittal, albeit by direction. Third, we say that neither the Chief Justice nor Justice Zeeman considered the reasons of the Justices in Weaver or Wilkes and their reasoning is at odds with what Justice McHugh said in Eastman and what your Honour Justice Heydon said in AK.

We criticise JS on the same basis as we criticise the result reached by the Court of Criminal Appeal in Tasmania in Kim because the result in JS on the issue of inviolability was a result at which the Court of Criminal Appeal in New South Wales reached by following the principle of comity.

HEYDON J: Yes. It, in effect, said it was not plainly wrong and therefore followed it. It said that it was.

MR HUGHES: Yes. We say, with respect, that the Tasmanian court was wrong. Your Honour, that concludes our submissions on the first ground in the notice of contention, unless there is anything that any of your Honours wish to ask me. On the question of the retrospectivity or otherwise, the relevant provisions of section 107 of the Crimes (Appeal and Review) Act, we start with a summary which refers to two important cases.

FRENCH CJ: The question here is, I suppose – your proposition is that the section is not intended to have retrospective application and the question is application to what? What does the section apply to? On the face of it in subsection (1) it “applies to the acquittal of a person”. Your retrospectivity argument really proceeds on the basis that we are talking about the institution of proceedings as the mark of what it retrospectively applies to.

MR HUGHES: Yes. That is the point, if I may say so, with respect. The first and fundamental proposition is that Colonial Sugar Refining Co Ltd v Irving [1905] AC 369, together with its useful treatment by Justice McPherson in the relatively recent Queensland case of Sunskill, to which we have given a reference, establishes that a right of appeal, certainly in the case of civil proceedings, inheres or attaches to the relevant party from the time that the proceedings commence.

FRENCH CJ: You equate that, I take it, to the – there was an arrest, of course, in August 2005 and then we had the service of the second court attendance notice on 18 October 2006 requiring attendance or referring to a listing in November 2006, as I recall.

MR HUGHES: Yes, indeed.

FRENCH CJ: And the section did not come into operation until December 2006.

MR HUGHES: True, yes, your Honour.

FRENCH CJ: So do you say, what, the committal proceedings had commenced as of November 2006?

MR HUGHES: Well, we would prefer to put it this way, if we may. The criminal process against this respondent commenced before the enactment of section 107.

FRENCH CJ: When did the criminal process commence?

MR HUGHES: It commenced seven days after the service of the notice to attend court, your Honour, which was 25 October. I have not handed up some brief speaking notes, your Honour, on the section 107 retrospectivity point. I am just giving copies to my learned friend.

FRENCH CJ: This seven-day period relied upon, you derive from section 52 of the Criminal Procedure Act.

MR HUGHES: Yes. I should say, upon the operation of the presumption of regularity because there is no direct evidence as to the date of filing of the notice to attend court.

FRENCH CJ: I think there is an endorsed date of service on the notices in the appeal book.

MR HUGHES: Yes, your Honour. Perhaps I can go to my speaking notes because I hope that there we have encapsulated the essence of this argument. The first proposition, committal proceedings are an essential and inseparable part of a criminal process for an indictable offence; inseparable because except for an ex officio indictment, there occurrence is an essential precondition to a trial on indictment for an offence against Commonwealth law.

FRENCH CJ: And you are relying on Murphy’s Case, inter alia.

MR HUGHES: Yes, principally on Murphy’s Case. The heading to Chapter 3 of the Criminal Procedure Act 1986 is part of the Act. For that we rely on section 35 of the Interpretation Act 1987 (NSW). The heading to Chapter 3 is “Indictable procedure”. Under that you have Division 1, “Commencement of proceedings” and Division 2, “Committal proceedings generally”. The heading “Indictable procedure” demonstrates that committal proceedings are an essential element of the curial process for dealing with indictable offences against Commonwealth law. On that footing, the liability or immunity from appellate process of a person against whom a charge of an indictable offence has been preferred against a law of the Commonwealth must be determined at the time of the commencement of the relevant criminal process.

We have already indicated our reliance on Colonial Sugar v Irving for the proposition that rights of appeal are matters of substance and not matters of mere procedure. We rely on Sunskill [1991] 2 Qd R 210 at page 218 as authority for the proposition that in the case of civil proceedings substantive rights of appeal inhere in the proceedings from their commencement. This principle, we say, is applicable by analogy to the institution of criminal proceedings pursuant to the Criminal Procedure Act 1986 under sections 47, 52 and 53.

The consequence, we submit, is that RK’s liability to and immunity from appellate process in the event of his acquittal by a jury of an indictable offence against Commonwealth law crystallised – I think I have already said this – as at 25 October 2006. In part, that is based on the presumption of regularity so that the court attendance notice which was served on 17 October 2006 was filed in the District Court no later than seven days after service. See section 52(4) of the Criminal Procedure Act. That does not seem to be disputed.

GUMMOW J: Is this a constitutional argument, Mr Hughes, or a construction argument?

MR HUGHES: It is a construction argument.

FRENCH CJ: This is your fallback position if you do not get up on the constitutional point.

MR HUGHES: Yes.

GUMMOW J: One looks at section 107(8) of the 2006 statute and it tells us that it does not apply to a person who is acquitted before the commencement of the section.

MR HUGHES: Yes, your Honour.

GUMMOW J: Your client is not such a person, so it follows the section does apply to him.

MR HUGHES: That question was dealt with in the Court of Criminal Appeal in JS.

GUMMOW J: It may have been.

MR HUGHES: I know that this Court can obviously decide to the contrary, but in JS the Court of Criminal Appeal took the view that section 107(8) did not help the Crown because in the case of a fundamental question of retrospectivity in a case involving criminal liability one would not discard the principle of no retrospectivity even though there is, in subsection (8), a prescription that section 107 does not apply to a person acquitted.

GUMMOW J: You have to read subsection (8) as an incomplete statement of the inapplicability of the Act.

MR HUGHES: Yes.

GUMMOW J: Why would the Parliament do that?

HAYNE J: And why would it do it in face also of its making express provision in section 119, which gives effect to Schedule 1, to the possibility of particular provision about savings and transitional provisions? I do not think any party has taken us to any regulation made under Schedule 1.

MR HUGHES: No, that is so.

HAYNE J: Presumably there is no relevant saving and transitional provision, but why then in face of the combination of 107(8) plus 119, giving effect to Schedule 1, would we treat the provision of 107(8) as an incomplete statement of applicability or operation for section 107?

MR HUGHES: The only answer I can make to that is to rely upon what was said by the Court of Criminal Appeal as being a correct exposition of the law.

HAYNE J: That is expressed in terms which, if I may say this without disrespect, is shorn of the rhetorical flourishes which may be inherent in terms like “inviolability” and come, do they not, to the proposition there was no appeal, therefore there is no appeal? The proposition is one which is not self-evidently true, is it?

MR HUGHES: I would have to say the answer to that question is no. At all events, that is the argument. It has the difficulty to which your Honour has adverted. My only counter to it is to say that the reasoning of the Chief Justice in JS commands respect. The relevant passage in the judgment is at paragraph 43 of 175 A Crim R. The report commences at page 108 and at paragraph 43 the Chief Justice said:

Section 107(8) applies to all appeals on questions of law pursuant to Div 3 of Pt 8, being the three categories identified in s 107(1). Section 107(8) is, in my opinion, inserted in this legislative scheme by way of express contrast with s 99(3). Because Div 2 does expressly apply to persons already acquitted, it was thought advisable to expressly provide that Div 3 does not so apply. This limited purpose does not, however, indicate that an inference is available that an appeal may lie in any case in which an accused had not been acquitted at the time of coming into force of the 2006 Amendment Act.

FRENCH CJ: It really boils down to whether the section contains a statement sufficiently clear, on his Honour’s reasoning, to displace the presumption against retrospectivity, and the difficulty you face is not just subsection (8), it is the specific terms of the application of the section in subsection (1). It does not talk about proceedings, it is directed to acquittals.

MR HUGHES: Yes. I should say this, that perhaps one way of encapsulating the argument that I have sought to put is to say that the expression “expressio unius exclusio alterius”, which is said to be not at all times a safe presumption to apply, does not apply in this case. Those are the arguments. Your Honour has them in our outline and in the speaking notes. In my submission, both grounds in the notice of contention should be upheld. Unless there is something else with which your Honours wish to engage my attention, I suspect there is not. That completes our submission.

FRENCH CJ: Thank you, Mr Hughes. Solicitor-General.

MR GAGELER: If the Court pleases, our intervention is limited to the ground of the notice of contention first argued by Mr Hughes, the question that arises from the interaction of section 68(2) of the Judiciary Act which is expressed to be subject to section 80 of the Constitution and section 107 of the Crimes (Appeal and Review) Act, in particular subsection (1)(a), subsection (2), subsection (5), subsection (6) and a provision of some significance ultimately for the constitutional argument, subsection (7).

The question stated in reasonably precise terms, as we see it, is whether the conferral under section 77(iii) of the Constitution by section 107 as picked up by section 68(2) of jurisdiction to hear and determine an appeal subject to the conditions set out in section 107, arising out of an acquittal by a jury at the direction of the trial judge in a trial on indictment of an offence against a law of the Commonwealth contravenes a requirement of section 80 of the Constitution that the trial, and I quote, “shall be by jury”.

The answer to that question turns on the slightly more general question of whether in the sense used first in Cheatle but explained more usefully for present purposes in Brownlee, it is an essential or a fundamental feature of the institution of trial by jury as understood in 1900 and as thereafter preserved from legislative modification by section 80 that a verdict of acquittal be incapable of being set aside on appeal for error of law as distinct from error of fact. Your Honours, I will come to Snow but I will do that at the end rather than at the beginning.

In our respectful submission, the answer to both questions, that is the general question and the specific, should be no and the reasons for that answer can be seen to have been given essentially in the reasons for judgment of President Mason in his concurring judgment in the case of JS to which your Honour Justice Heydon referred. I do not propose to read from his Honour’s judgment but relevantly it is [2007] NSWCCA 272; (2007) 175 A Crim R 108 with the fundamental points, the essential points, not the exclusive points, being summarised by his Honour at paragraphs 180 through to 184.

Your Honours, can I start by going to Brownlee 207 CLR 278 and take your Honours to a number of short passages in the judgment. Starting with the joint judgment of Justices Gaudron, Gummow and Hayne at page 291, the topic of section 80 is introduced in the first sentence of paragraph 33. It is then said;

The exposition of the right to jury trial may provide the occasion for the exercise of rhetoric. More prosaically, the constitutional expression identifies a particular legal institution which evolved in England over a long period by a combination of common law and statute and, after some vicissitudes, was adopted and developed in the Australian colonies. That development has continued in the Australian States since federation –

There is then in the next paragraph a useful quotation from an article by Professor Scott, another aspect of that article the joint judgment returns to later. Then at page 296, right at the bottom of the page, there is the heading “The institution of trial by jury”. There is a reference to Cheatle, and an italicisation of the reference within a passage in Cheatle, to the identification of an essential feature of the institution. Paragraph 53 then notes that:

The expression “the essential features of a trial by jury” earlier had been used by O’Connor J in Huddart, Parker & Co Pty Ltd v Moorehead.

At paragraph 54, it is said:

This distinction –

that is, this distinction that can be seen and is demonstrated to be seen in the American cases -

between the essential and the inessential has been drawn by Cheatle into the constitutional doctrine respecting s 80 of the Constitution . . . Classification as an essential feature or fundamental of the institution of trial by jury involves an appreciation of the objectives that institution advances or achieves.

There is then, in that context, a further and very useful quotation from the same article by Professor Scott. Applying that form of analysis to the case before the Court at page 302, relevantly in paragraph 65 or at least inferentially, there is an allusion to what was, for the relevant purposes of that case, the essential or fundamental nature of a trial by jury, particularly in the second sentence of paragraph 65.

To similar effect in the joint judgment of the Chief Justice and Justice McHugh there is at paragraph 16 a setting out of the passage from the judgment of Justice O’Connor in Huddart, Parker that gets quoted often in this context, and it is useful to note what it says:

“What are the essential features of a trial by jury? I adopt the following from the definition approved of by Miller J in his lecture on the Constitution of the United States -

and I will take your Honours to that lecture in due course –

It is the method of trial in which laymen selected by lot ascertain under the guidance of a judge the truth in questions of fact arising either in a civil litigation or in a criminal process.”

Towards the end of the following paragraph, paragraph 17, it is said:

Over the period from the origin of jury trial up to the end of the nineteenth century, there were many changes in the characteristics and incidents of jury trial, and there have been many since then. In the case of a procedure which has undergone so many changes, it is impossible to contend that all of its characteristics at any given time ought to be regarded as essential. Its history demonstrates that they are not.

The only other passage that I wanted to refer your Honours to, without reading it, is paragraph 19 which in a more condensed way than the other joint judgment, but to similar effect, there is a survey of legislative changes in what might loosely be called the common law world in the late 19th century and early 20th century.

The point to be made here that although Cheatle uses language that might be taken to be seizing upon the nature of a jury at common law as if the jury were a monolithic common law institution, the jury was in truth, as at the time of the Constitution, a legal institution which like many other legal institutions referred to in the Constitution remained in a state of legislative development. Your Honours, I did want to say something very briefly about the common law and then something very briefly about the legislative developments that were afoot in the late 19th century continuing into the early 20th century and then something about the United States position, all of which is instructive and I will do it relative briefly.

If you look at the position at common law as it had developed to 1900, then there are really just three points to be made. Point one is that there was no appeal from a judgment founded on a verdict of a jury in a criminal case, whether that verdict be conviction or acquittal, an appeal being entirely the creature of statute. Point two is that although the common law methods of reviewing a judgment founded on a verdict of a jury appear generally and at least in practice to have been inapplicable to a judgment founded on a verdict of acquittal, the position, when you look at the detail of the history, is not clear cut. It was certainly not the universally acknowledged position and there can be found examples in the cases to the contrary.

The third point to make is that to the extent that there was a strong common law principle or policy against the review of an acquittal, it was a principle or policy of the common law which applied irrespective of the means of trial, that is to say, it was not treated either in theory or in practice as a unique incident of trial by jury. Your Honours, all three of those points are usefully made, I suppose, in many cases but for present purposes in the joint judgment of Justices Mason and Brennan in Davern v Messel [1984] HCA 34; 155 CLR 21. May I take your Honours briefly to pages 47 and 48. The first point is made in the second paragraph on the page, second sentence, where it is said that:

the right of appeal from a decision of a court was unknown to the common law –

The second point is then made in the following paragraph:

Prior to the introduction of the Criminal Appeal Act 1907 . . . there was in England no right of appeal from either a conviction or an acquittal on an indictment. The methods of review which were available were . . . Of these methods only the first, and then only after its formalization by statute . . . was subject to an absolute policy that there could be no review after an acquittal.

The third point is made at the bottom of page 48 where there is a quotation from what has become an oft repeated passage in a judgment of Lord Chief Baron Palles where the quotation is, and I am picking it up at about point 9 of the page:

“the broad principles of the common law” which he expressed in these terms: “ . . . that as a rule an acquittal made by a Court of competent jurisdiction and made within its jurisdiction, although erroneous in point of fact, cannot as a rule be questioned and brought before any other Court.”

This was said to express in more precise terms the slightly more metaphorical and ancient passage that follows. The same point is usefully developed in Professor Friedland’s work on double jeopardy, which your Honours have. I just want to take your Honours to two very short pieces of that. Chapter 10 of that work deals with an “Appeal from an Acquittal”. On the first page of Chapter 10, which is at page 279, it is said in the second paragraph:

English law has generally refused to permit an appeal from an acquittal.

Then two paragraphs further on:

It will be shown in this chapter that historically the rule was not as absolute as one might think.

In particular, so far as the principle means of challenging a jury verdict is concerned, a writ of error, that point is made good at page 287 where the point is made:

Many writers were of the opinion that the Crown could bring a writ of error after an acquittal.

But the point was that the procedure, which was limited to an error of law on the face of the record, made that generally not a practical procedure for the Crown, except in the case of an acquittal entered on a special verdict. Your Honours will see in footnote 4 and the sentence accompanying that that point is made and examples are given of Crown applications on a writ of error following an acquittal entered on a special verdict. It is a point that is also developed in footnote 30 of our submissions.

Your Honours, that is all I wanted to say about the common law, if it were appropriate to consider the common law alone, but the point I was seeking to draw out of Brownlee is that it is not. If you look to the position under statute as it was very much developing in the latter part of the 19th century and continued to develop into the 20th century, you need to take into account the impetus that was provided by the 1879 report of the United Kingdom royal commission to consider the law relating to indictable offences.

Your Honours have, I hope, an extract of that report. The draft Criminal Code that was annexed to that report your Honours also have within that extract. It provided for an appeal on a question of law by the prosecution following a judgment entered on the verdict of acquittal. One sees that in a combination of sections 539, 540 and 542. The proposed section 539 – picking it up in the second paragraph – allowed a court either during or after the trial to reserve any question of law arising on the trial. The fourth paragraph said that either the prosecutor or the accused might apply for the reservation of such a question.

Section 540 proposed that if the Court refused to reserve the question the party applying, with leave of the Attorney-General, might move the Court of Appeal. Section 542 provided for the powers of the Court of Appeal dealing with such a question of law. Relevantly, although other paragraphs would also be relevant, most relevantly paragraph (e) provided:

In any case, whether the appeal is on behalf of the prosecutor or of the accused –

the Court could direct a new trial. Your Honours will see the asterisk contained within the Code as annexed to the report that –

The Commissioners point out that as framed this section gives an equal appeal on points of law to the Crown and to the accused. The Commissioners as a body express no opinion whether this should be done, but if it is to be done this seems to be the best mode of doing it. See the Report.

The report picks this up at page 38 after a very useful - - -

HEYDON J: Mr Gageler, do we have the actual report?

MR GAGELER: Yes, you do. It is a relatively short report. Your Honours I hope have it in this form. On page 38 at the bottom of the page it is said in the fourth-last sentence of the last full paragraph on that page:

It must be observed, too, that the right of appeal on questions of law is given equally to both sides. The Commissioners as a body express no opinion on the expediency of this. If it is thought proper to confine the right to the accused, the alteration of a few words in the section would effect that object. In dealing with appeals upon matters of law little is wanted beyond an adaptation of the existing law.

BELL J: I am sorry, Mr Gageler, this is on page 38 of the report?

MR GAGELER: Yes, on page 38 of the report.

BELL J: Whereabouts?

MR GAGELER: I hope your Honours have it.

BELL J: I am just having difficulty picking up where on page 38 of the copy that I have.

MR GAGELER: I see. Does your Honour see a full paragraph towards the bottom of the page?

BELL J: Yes. “As to the power to appeal”?

MR GAGELER: “As to the power to appeal”. I was reading from the fifth last line.

BELL J: I see.

MR GAGELER: To the end of that paragraph.

BELL J: Thank you.

MR GAGELER: Your Honours, we refer to that really for two reasons. One is to make the point made by Justice Isaacs in Snow’s Case, and I do not ask your Honours to turn to it now, but he made this point at [1915] HCA 90; 20 CLR 315 at 352 at about point 5 of the page. He said:

nothing fundamentally opposed to the essentials of British justice could have found its way into a document prepared by such eminent jurists.

We do make that point. But we also make the point more generally that what the report and the Draft Code illustrate is that the institution of trial by jury, as perceived in the relevant timeframe, was one that was very much in the process of legislative development and, in particular, one of the ways in which it was in the process of legislative development was that consideration was being given to the making of provision for appeal, a possibility of reform which should not, in our respectful submission, too readily be seen to have been stifled by section 80 of the Constitution.

Your Honours also have, I hope, a little table of material which sets out the process of legislative development in some relevant jurisdictions as it was occurring relevantly in the late part of the 19th century and then into the 20th century following the report of the Royal Commission in the United Kingdom in 1879. That report, insofar as it provided for appeals on questions of law by both the prosecution and the accused or convicted person, was adopted legislatively unequivocally in New Zealand in 1893.

The position in Canada, although Justice Isaacs took it to be also unequivocal, I am afraid on closer inspection, as with many things in this field, was not so clear cut. Your Honours had the position in Canada mentioned in an appendix to our written submissions. Overnight we have had to make that an amended appendix because the 1913 Ontario decision that Justice Isaacs quite correctly refers to in Snow’s Case needs to be recognised as being inconsistent with a Québécois decision of 1901 and when you look at the actual provisions of the Canadian Code, although they pick up in identical terms the recommendation made in the Royal Commission Report for either the prosecution or the accused to apply to have a question of law determined and then to appeal to the Court of Appeal in the event that that does not occur, the powers given to the Court of Appeal in paragraph (e) and here, if your Honours have the materials, it is at page 7. Paragraph (e) in section 746 dealing with the powers of the Court of Appeal left out a few words and that gave rise to the controversy in Canada.

But the position in New Zealand was clear-cut, and it was a wholesale adoption of the United Kingdom Draft Code, and in memory of Justice Kirby, we tried to find out the position in India and we were unable to locate the particular provisions, but we did come across an article that your Honours have by Mr Craies which was published in 1907 on criminal appeals.

GUMMOW J: They did not have juries in India, so - - -

MR GAGELER: They did, they had some - - -

FRENCH CJ: They abolished them in 1962, I think, did they not?

MR GAGELER: Anyway, he deals with it at page 99. They had some juries.

GUMMOW J: They had much use of assessors, did they not?

MR GAGELER: That is right.

GUMMOW J: I do not think we need to worry about India.

MR GAGELER: The point is made at page 99 that in 1898, there was an Indian Criminal Procedure Code which provided for both a prosecution appeal and an appeal by the accused or convicted person, and it says:

Most Indian criminal cases are tried without a jury -

but not all of them, it appears.

GUMMOW J: It is more important, I think, to have a look at Snow at page 369 where Justice Powers refers to the criminal appeal statute in the United States in March 1907. There was a lot of activity in the United States in these periods as well.

MR GAGELER: Yes, your Honour, I am certainly coming to the United States. I thought I would do the crimson bits on the map first, your Honour, but then we go to the United States immediately. Your Honours, the position in the United States has to be considered against the background of a number of constitutional provisions, and although both sides in their submissions have quoted some of them, nobody has quoted all of them. We have provided your Honours with an extract from the United States Constitution, and it is useful to recognise that there are actually four provisions that were potentially in play. There was Article III, section 2 - - -

GUMMOW J: Before we get into the constitutional provisions, I am thinking about the Criminal Appeals Act 1907, which is given very detailed consideration by Justice Harlan much later, United States v Sisson, [1970] USSC 170; 399 US 267 (1970). He also has a learned treatment of appellate processes at common law as well. It is worth a look at some stage, I think.

MR GAGELER: Yes, your Honour has the better of me there. I have not looked in detail - - -

GUMMOW J: It was President Roosevelt who got terribly excited over the acquittal of a corporate fraudster, which provoked the legislation in the United States.

MR GAGELER: If I can look to these constitutional provisions. There are four of them, as I said. Article 3, section 2, clause 3, the provision being that:

The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury.

It goes on in terms pretty much picked up and adopted in slightly amended form in section 80. One also has to recognise, though, the relevance of the Fifth Amendment, the Sixth Amendment and the Seventh Amendment, the Fifth Amendment containing the double jeopardy clause, the Sixth Amendment in terms giving a “right to a speedy and public trial, by an impartial jury” and the Seventh Amendment speaking to civil actions and requiring a jury:

where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.

All of those provisions were before the framers. They chose to adopt and adapt Article III, Section 2, clause 3. They chose not to adopt the other amendments. That point, your Honours, is made in appropriate terms by Justices Dixon and Evatt in Lowenstein. The passage is at [1938] HCA 10; 59 CLR 556 at page 581at about point 3 of the page where it is said – and this passage gets quoted from time to time:

Having before them the provisions contained in art. III.(2) of the American Constitution and in the fifth, sixth and seventh amendments upon the subject of trial by jury, the framers of our Constitution thought fit for some reason to include in the instrument an adaptation from the original article, although their faith in the palladium of justice was not strong enough to induce them to complete its shrine by transcribing the provisions of the amendments.

That point is borne out by a little episode in the drafting history of section 73 of the Constitution that we have noted in footnote 38 of our submissions. There is not much to be made of this but it is something that I had not been aware of until preparing for this case. Your Honours have been given the relevant materials, the draft Bill for the Constitution as at 1897 in the draft of what was then section 72 provided that:

The High Court shall have jurisdiction, with such exceptions and subject to such regulations as The Parliament may from time to time prescribe, to hear and determine appeals, both as to law and fact –

Then there was a proviso at the end of that paragraph that said –

Provided that no fact tried by a jury shall be otherwise re-examined in the High Court than according to the rules of the common law.

Mr Wise, who apparently had originally thought it wise to put those words in, in the debate that you then have of the Convention of 20 April 1997 at page 967 moved that they be taken out, that is, both the words as to law and fact and the proviso, and he said about that at the top of page 968, picking it up in the second line:

It is better to give the unrestricted power to appeal to the High Court, and let the Parliament fix the conditions.

He says at the end of that short passage –

The words were taken from the American Constitution –

obviously the Seventh Amendment –

where the High Court has the power of reviewing a decision of the jury on the question of fact.

What one gets out of that is possibly no more than that the terms of the rejected amendments were in a considered way before the framers of the Australian Constitution during the course of its development. Perhaps one can say that an intention to constitutionalise an aspect of the common law dealing with the status of a jury verdict was rejected by the framers.

If one then looks to the state of the case law or more widely the jurisprudence in the United States as at 1900, what one gets out of it is this. The finality of a verdict of acquittal was seen to be constitutionally protected, but it was protected not by the trial by jury requirement of Article III, section 2, nor the same requirement of the Sixth Amendment. It was seen to be protected by force of the double jeopardy clause of the Fifth Amendment.

Can I make that good by asking your Honours to turn to the series of lectures by Justice Miller on the Constitution of the United States that provided the source material for Justice O’Connor’s description of the essential features of trial by jury in Huddart, Parker a few years later. The definition of “trial by jury” appears at page 511. That is the definition from that page that gets picked up in Huddart, Parker and repeated in Cheatle and other cases. Your Honours will note that he took the definition from the Encyclopaedia Britannica. The essential features of a trial by jury, critically relevantly for present purposes, but I will develop this later, appear in the second sentence and it is really the second sentence of the quotation that Justice O’Connor picked up.

At page 500, however, relevantly for present purposes – I should point out the negative. Nowhere there does one see anything about the inviolability of the verdict to appeal as being an aspect of the definition of “trial by jury”. If you go to page 500 there is a very useful and relevant discussion. If I can pick it up about the fourth line, mid-sentence, so to speak, there is a reference to Article III which is said to be:

peremptory that “the trial of all crimes, except in cases of impeachment, shall be by jury.” This language excludes all other modes, whether with or without the consent of the party. A party may, however, confess his guilt by a plea of guilty, and judgment may be passed upon that plea, yet if there is an issue of fact which has to be tried, that trial can only be by a jury. Indeed it has been argued with a good deal of earnestness and plausibility that in criminal cases by virtue of that clause of the Constitution -

that is Article III, section 2 -

the jury are made the judge both of the facts and the law, and have a right upon their own view of what the law of the cases may be, without regard to the decisions of the court on the subject, to find a verdict. This contention has been supposed to be supported by the conceded fact that a verdict of not guilty, acquitting the party of the crime charged, has in practice always been held to be final, and that the court could not set aside such a verdict and subject the party to a new trial. Such action has, however, been founded upon that provision of Article V of the amendments, which declares that no person shall “be subject, for the same offence, to be twice put in jeopardy of life or limb,” it having been held that on a verdict of acquittal, however erroneous, the party has been put in jeopardy within the meaning of that clause of the Constitution.

So it is a double jeopardy clause that was seen to do the work, not some notion of the essence of the institution of trial by jury. That is further borne out by a pre-Federation case, United States v Ball [1896] USSC 182; 163 US 662 (1896), which your Honours should have. At page 669 there is a paragraph at the bottom that begins:

The Constitution of the United States, in the Fifth Amendment, declares, “nor shall any person be subject to be twice put in jeopardy of life or limb.” The prohibition is not against being twice punished, but against being twice put in jeopardy; and the accused, whether convicted or acquitted, is equally put in jeopardy at the first trial.

At page 671 at about point 5 of the page:

As to the defendant who had been acquitted by the verdict duly returned and received, the court could take no other action than to order his discharge. The verdict of acquittal was final, and could not be reviewed, on error or otherwise, without putting him twice in jeopardy, and thereby violating the Constitution.

That is violating the double jeopardy clause of the Fifth Amendment. The significance of the double jeopardy clause as then expounded in Ball, as it had been expounded in 1896, can be seen as being teased out by reference to Ball in two post-1900 cases to which I should refer. One of them is Kepner v United States (1903) 195 USR 100.

This was a case which was decided on provisions which applied by military order in the Philippines but provisions which reflected the Bill of Rights of the United States Constitution, and what happened in this case was that the approach to the Fifth Amendment in Ball was applied to prevent a retrial after an acquittal even without a jury. You pick that up at page 110 in the opening paragraph of Justice Day delivering the opinion of the Court. He describes the circumstances in the second sentence:

Upon trial, in November, 1901, in the court of first instance, without a jury, he was acquitted . . . Upon appellate proceedings by the United States to the Supreme Court of the Philippine Islands the judgment of the court or first instance, finding the accused not guilty, was reversed.

That was held to violate the Fifth Amendment applying Ball. Ball, you will see referred to at some length at pages 129 to 130 and the conclusion at page 133 at about point 6 of the page is that:

The Ball case –

that is the 1896 case –

establishes that to try a man after a verdict of acquittal is to put him twice in jeopardy, although the verdict was not followed by judgment.

So all of that flowing directly from the Fifth Amendment and Kepner illustrating, if it needs illustration, that double jeopardy is something that does not turn on the particular constitution of the Court for the purposes of the trial.

GUMMOW J: Justice Holmes dissented I see.

MR GAGELER: Yes, he did. He said at page 135, I did not think there was anything I could usefully draw from it because it is not his dissent that I think has prevailed, but it is 135, about the middle of the page - - -

GUMMOW J: It may be the author that matters to us.

MR GAGELER: Of course, yes, the authority of the author is always important. It certainly would not be something that would help me, your Honours, if I - - -

GUMMOW J: Justice Holmes refers to, at the bottom of page 134 – it is quite an important point really:

he may be tried a second time, even for his life, if the jury disagree - - -

MR GAGELER: Yes, and there is no dissent on that. A point made in Ball itself, your Honours, was that he may be tried for a second time in circumstances where he was convicted the first time, appeals and gets the conviction set aside. This going back for a retrial is not itself a violation of the double jeopardy clause. Your Honour is right, and also what Justice Holmes at the middle of page 135 is also instructive.

HAYNE J: But it is to be noted also that in Ball there was examination of Vaux’s Case in England about the availability of autrefois and a different opinion was expressed in the American decision from that which would have obtained in England, but the debate was in the realm of double jeopardy, the availability of pleas in bar and the like.

MR GAGELER: Yes, and ultimately anchored on the express provisions of the United States Constitution, the double jeopardy provision. Your Honours, I read a lot of United States cases and I cannot remember whether I focused on the one your Honour, Justice Gummow, referred to, but the only other one that I wanted to take the Court to was the decision in the case of Fong Foo [1962] USSC 35; 369 US 141 (1961). This was a case where Ball was applied to prevent an appeal from a judgment of acquittal on a directed verdict. So, if you like, Fong Foo is directly in point and it is an application of the Fifth Amendment as interpreted in Ball. Your Honours, it is a very short judgment but if you look at the top of page 142, third line, it says that a point was reached when:

the district judge directed the jury to return verdicts of acquittal as to all the defendants, and a formal judgment of acquittal was subsequently entered.

At page 143 there is a reference to the Fifth Amendment and it is said in the second sentence of the first full paragraph:

That constitutional provision is at the very root of the present case, and we cannot but conclude that the guaranty was violated when the Court of Appeals set aside the judgment of acquittal and directed that the petitioners be tried again for the same offense.

Towards the bottom of the next paragraph:

The Court of Appeals thought, not without reason, that the acquittal was based upon an egregiously erroneous foundation. Nevertheless –

Then there is the quotation from Ball. So the constitutional position in the United States implacably opposed to setting aside on appeal a verdict of acquittal is one that is founded quite squarely on the double jeopardy clause, as expounded in 1896.

There is just one other case to which I should make very brief reference. I do this because it is a case that gets picked up in Quick and Garran and it also features in my learned friend’s, the respondents, bundle of articles and materials. It is a case of Capital Traction Company v Hof [1899] USSC 85; 174 US 1 decided in 1898 at page 13. It is a Seventh Amendment case. The details are quite messy, but the passage that is picked up both in Quick and Garran and in our learned friend’s materials appears at the bottom of page 13 where it is said:

“Trial by jury,” in the primary and usual sense of the term at the common law and in the American constitutions, is not merely a trial by a jury of twelve men before an officer vested with authority to cause them to be summoned and empanelled, to administer oaths to them and to the constable in charge, and to enter judgment and issue execution on their verdict; but it is a trial by a jury of twelve men, in the presence - - -

GUMMOW J: The Chief Justice reminds me we referred to this last year in Cesan.

MR GAGELER: You referred to Hof?

GUMMOW J: Yes, I think so.

MR GAGELER: I am sorry, I was not aware of that.

GUMMOW J: Adds to the importance of the judge in this case with the continued attention of the judge to what is going on in the court.

MR GAGELER: Of course, yes. That is important. The bit that I was getting to is after that, after:

the superintendence of a judge empowered to instruct them on the law and to advise them on the facts –

it is then the comma:

and (except on acquittal of a criminal charge) to set aside their verdict if in his opinion it is against the law or the evidence.

Now, it is the bracketed words that, no doubt, our learned friends wish to draw attention to. We simply say this. It is a description of trial by jury uttered in the context of the Seventh Amendment. The bracketed words, which of course are not in issue in that case, in our respectful submission, reflect the effect of the double jeopardy clause of the Fifth Amendment rather than reflecting some essential notion of the nature of a trial by jury. In any event, if you take the context of the bracketed words - - -

HAYNE J: Or are they a reflection of then understandings about practice of moving non obstante? Is that the sort of process that is being - - -

MR GAGELER: Possibly, because if you look at the rest of the words, leave the brackets aside, the power of the judge being:

to set aside their verdict if in his opinion it is against the law or the evidence.

HAYNE J: It seems to be motion for judgment notwithstanding.

MR GAGELER: Something like that, and if that was a reflection of the understanding of the role of a trial judge in a civil case in the United States at the turn of the 20th century, it certainly was not universally the understanding of the role of a trial judge in a civil case in Australia around the same time. Hence, you get Musgrove v McDonald, for example. This was the subject of considerable controversy and the procedure appears to have varied from case to case and from jurisdiction to jurisdiction. So one should not take very much from the bracketed words and one should not take the entire sentence as appropriately descriptive of what was occurring relevantly in Australia at the relevant time.

Your Honours, if we, consistently with Brownlee, are searching for the relevant essence of the institution of trial by jury, in our respectful submission, it lies in the constitution or organisation of the court for the conduct of the trial in which the judge is the constitutional arbiter of the law and the jury is the constitutional arbiter of the fact. One gets that out of Justice Miller’s description, as picked up in Huddart, Parker and as repeated, for example, in Cheatle. It is also very usefully stated in the judgment of Chief Justice Latham in Hocking v Bell [1945] HCA 16; 71 CLR 430. Two sentences I take from page 440, where it is said in the second full paragraph on the page:

In a trial by jury the jury is the constitutional tribunal for deciding issues of fact.

And then the corollary, which of course cannot be treated as correct, in an unqualified way, but sufficiently for present purposes can be treated as correct:

“The appellate court is never the judge of fact in a case where the constitutional judge of fact is the jury.”

Two points, in our submission, flow from that essential characterisation of the constitution of the Court. One is that it is difficult to see how the status of the verdict of the jury as a constitutional arbiter of fact should vary according to whether the verdict is special or general, or guilty or not guilty. That point is one that was made by Justice Isaacs in the course of his judgment in Snow. He made it in Snow at page 352.

The other point, and again one made by Justice Isaacs in Snow, in a very long judgment, he made this point at page 329, to allow a directed verdict to be quashed on appeal and a new trial ordered where there has been error of law on the part of the judge does no violence to the constitutional division of responsibility between the judge and the jury. Indeed, it can be seen to enhance that constitutional division of responsibility in that it allows the jury itself to perform the function that it is designed to perform, and in that respect, your Honours, I do draw attention to the terms of subsection (6) and subsection (7) of section 107 of the State Act. Subsection (7) makes it clear that the Court on appeal cannot stand in the shoes of the jury as the arbiter of fact.

Your Honours, that brings me to Snow which, in wonderfully evocative terms, Mr Hughes’ written submissions describe as a “clouded authority”. Part of the cloud in Snow turned on the incomplete understanding of the operation of section 73 of the Constitution that then prevailed. Most of the argument in Snow was directed to section 73 of the Constitution. The argument about section 80 of the Constitution appears to have been at best peripheral, indeed so peripheral that it does not make its way into the report of the argument in the Commonwealth Law Reports.

The application of section 73 of the Constitution, if you leave section 80 aside for a moment, was dependent on questions as to the nature of a judgment that is referred to in section 73 and as to the nature of an appeal where there is a relevant judgment – questions that had been left quite vague by the decision in Musgrove v McDonald in 1905 and questions that were not really cleared up until the judgment of Sir Owen Dixon in McDonnell & East in 1936.

Your Honours looked at this in the case of Keramianakis [2009] HCA 18; 237 CLR 268 at 281. Can I just remind your Honours of the analysis in the judgment of the Chief Justice in that case. Your Honour the Chief Justice at paragraph 38 says:

Decisions relating to s 73 of the Constitution do not affect this conclusion. In Musgrove v McDonald the appeal to this Court from the Supreme Court of South Australia followed a directed verdict for defendants in civil proceedings upon which judgment had been entered by the judge. The Court referred to the settled rule of the Privy Council that an appeal did not lie from a verdict of a jury or from a judgment of the Court founded upon it unless there had been a previous application to the Supreme Court for a new trial and that the provisions of the Constitution conferring appellate jurisdiction upon the High Court should be read in the light of that rule.

Then your Honour sets out one passage, but then another passage which your Honour says that it reflects the underlying principle.

“The verdict in the present case, which was a general verdict for the defendants, must be read as if the specific facts which established their freedom from liability had been found by the jury. By those findings this Court is bound, and, as upon them the judgment is right, the appeal fails.”

The underlying principle suggests not want of jurisdiction in such a case, but want of power.

Then there is the explanation from McDonnell & East:

“Decisions of this court, which are based upon s 73 of the Constitution, have established that, although an appeal does lie from every judgment, decree, order, or sentence of a Supreme Court, yet in deciding an appeal from a judgment founded on a jury’s verdict or findings this Court stands in the position which the court below stood at the time when it was pronounced. If the court below takes a general verdict or findings from a jury and if, after having done so, it has no authority under the law governing its procedure to interfere with the verdict or findings of the jury or to disregard them but is required to give effect to them, then this court stands in a like position and cannot go behind the verdict or findings.”

That was the clear explanation in 1936. It just was not so clear in Snow. Snow is one of a series of cases between Musgrove v McDonald in 1905 and McDonnell & East in 1936 where the position simply was not clear and much of the confusion in Snow comes from a lack of understanding of that basic operation of section 73. The correct position, as now understood, is that judgment in section 73 includes a judgment founded on a verdict, whatever that verdict may be, but that the power of the court conferred by the provision for appeal is to do no more than what the court below could have done.

So the real question in Snow ought to have been, and for some Judges was, what was the power of the trial judge having received the directed verdict from the jury? Was there anything the trial judge could do about it? That was the question and it really was not a constitutional question, it was a question about the powers and processes within the particular Court. It was a question that Justice Higgins faced up to and answered squarely at page 356, point two. He may have been right; he may have been wrong, but it is not the question before this Court in this matter and it really was not, in our respectful submission, a constitutional question.

HEYDON J: So Justice Higgins says that if he summed up for an acquittal and then suddenly realised that he had misunderstood the law and he should not have summed up for an acquittal he can reject the acquittal. Is that what Justice Higgins is saying? I am looking at the sentence in 20 CLR at 356, line 4:

The true position is that the learned Judge made the mistake of law . . . not merely in directing the jury, but in giving judgment after the verdict. If he had come to the true view of the law the moment after the verdict, it would have been his duty to refuse to give judgment in pursuance of the verdict.

MR GAGELER: Your Honour is probably going to refer to a passage in Lord Devlin’s Hamlyn Lectures where that precise scenario is raised.

HEYDON J: It is not a crime to read lectures by Lord Devlin.

MR GAGELER: Not at all, your Honour. I have read them too. All I am saying is that maybe Lord Devlin is right, maybe Justice Higgins is right. I do not have to take a position for present purposes. It is not a constitutional question.

FRENCH CJ: How much longer do you expect to be?

MR GAGELER: I, in fact, have finished, if your Honours give me one minute.

FRENCH CJ: Yes, you can have your minute.

MR GAGELER: The one minute was, it appears from Chief Justice Griffith’s judgment that section 80 was not critical to his reasoning. I will not take your Honours to the pages, but it appears also from Justice Gavan Duffy’s judgment in conjunction with Justice Rich that they also proceeded primarily on a view of the scope of section 73 reached independently of section 80 of the Constitution. That is as much as I wanted to say, if the Court pleases.

FRENCH CJ: Solicitor, you did refer at the end of your written submissions to the observations of Justices Gavan Duffy and Rich in Snow about the absence of a legal duty on the part of the jury to acquit. Is there any other discussion of the character of the jury’s duty upon a direction to acquit?

MR GAGELER: In the same beautifully written volume of lectures from pages 79 through to 91, yes.

FRENCH CJ: I have looked at the Criminal Procedure Act and I do not think there is anything in the statutes in New South Wales that would cast any different view, apart from what existed at common law, upon the nature of the jury’s duty upon a direction to acquit.

MR GAGELER: I would not wish to be the person who gives you the negative answer to that, your Honour, but that is my understanding.

FRENCH CJ: Yes, all right, perhaps it is something that can be considered. Yes, thank you. Mr Renwick, can you give us an idea of how long you will be?

MR RENWICK: I will be between 10 and 15 minutes, if it please the Court.

FRENCH CJ: Thank you. Mr Game, without binding yourself.

MR GAME: I will probably be 20 minutes, your Honour.

FRENCH CJ: All right, thank you very much. Yes, all right, the Court will adjourn until 2.15.

AT 12.49 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.16 PM:

FRENCH CJ: Yes, Mr Renwick.

MR RENWICK: What I propose to do, with your Honours’ permission, is to deal with three propositions and one footnote and to do so briefly. The first proposition is that, contrary to the submissions put by the respondents, there is no question here of constitutional invalidity. In our submission, there is only a question about whether section 68 of the Judiciary Act picks up or does not pick up section 107 of the New South Wales Act. Section 68 itself will resolve any inconsistency internally between section 107, as the picked up New South Wales statute, and section 80, without recourse to section 109 of the Constitution.

GUMMOW J: Section 68, unlike section 79, does not expressly say, in effect, “subject to the Constitution”.

MR RENWICK: Section 68(2) does, your Honour.

GUMMOW J: Yes, 68(2) does expressly talk about section 80.

MR RENWICK: Yes, your Honour. That was the point we wished to make. The footnote is this - although, like the Commonwealth, we have only intervened in relation to the constitutional point, there is a sense in all constitutional controversies, as your Honour the Chief Justice noted in K-Generation, that the first step is to ascertain the meaning and operation of the statute. It was for that reason that we made brief written submissions about why we say section 107 applies. The footnote is that we would say any reliance on section 53 of the Criminal Procedure Act by the respondents – that is the provision which deems committal proceedings to be the beginning of the process.

That reliance on that is misplaced, in our submission, for the reasons considered by the New South Wales Court of Criminal Appeal in the case of Baladjam v The Queen. I need not take your Honours to that unless you wish, but the simple point their Honours there make is that that provision is a deeming provision. It does not interfere with the normal common law practice, which, as we say in our submissions, is that trial by jury begins with arraignment on the indictment. The other footnote perhaps is that the District Court in this case gets jurisdiction at that point by operation of section 130(2) of the Criminal Procedure Act.

The other two short propositions are to say something, I hope without repeating what the Commonwealth has said, in relation to history and principle concerning section 80. Like the Commonwealth, we respectfully submit that what Justice Mason said in R v JS provides the answer to the case propounded by the respondents, but we would make the following short points in addition.

As already noted, the institution of the trial by jury both its formation and its mode of operation has changed markedly over time with the consequence that there are, in fact, very few bright line rules without exceptions. Turning to the 19th century, in our submission, it could not then be said that an appeal or other challenge by the Crown to the jury’s verdict of acquittal was either impossible or unknown. The respondents have referred to one such case, the decision of the Court of Queens Bench in R v Saik which led to an acquittal being overturned and for there being a new trial.

GUMMOW J: What was the procedure in that case?

MR RENWICK: A writ of certiorari, your Honour. Sir William Deane in the Mastertouch Case noted that the 19th century Privy Council retained the capacity to grant leave to the Crown to appeal, although there is no record of it having actually done so. The second matter of history is that, of course, the New South Wales and English legal systems were hardly in lockstep throughout the 19th century, after all for the first 50 or so years following settlement trial by jury was by military jury in New South Wales. That was only completely abolished in 1839.

What is clear, of course, is that there were simply no criminal appeals at all until after Federation and, as Justice Mason asks rhetorically in JS, that as a matter of history either suggests that section 80 should preclude all appeals, which no one suggests, or none, which we suggest and he found.

In relation to the United States authorities, we too have referred to what Justices Dixon and Evatt say on the topic in Lowenstein’s Case, the Australian shrine to the US model remains incomplete. The only US analog picked up is in the Constitution, not any of the amendments in the Bill of Rights. Finally on the matter of history, for the reasons given by Justice Mason in JS, the language of section 80, to the extent one can get something from that, concerns the formation and mode of jury trial, is unconcerned with protecting the verdict.

That, your Honours, leads to the final matter, matters of principle. Your Honours have already been referred to what Justice O’Connor said in Huddart, Parker. Trial by jury involves, of course, a properly constituted jury deciding questions of fact in accordance with judges’ directions as to the law and, in a sense, that institution is protected or even enhanced by appellate courts correcting wrong directions of law. In another sense, of course, a directed acquittal in substance, if not form, is the decision of the judge and that no doubt is why Sir Isaac Isaacs in Snow’s Case described the directed jury’s role as perfunctory.

Unlike a deliberative jury verdict, which your Honours Justices Gummow and Hayne described in Island Maritime Limited v Filipowski as unrevealing or inscrutable, the basis for the verdict in a case like this is clear and well suited to appellate intervention if that is needed. Of course, that case also discusses disparate notions of double jeopardy, but not in such a way as to suggest they have a constitutionally entrenched function.

Your Honours noted before the luncheon adjournment, or asked, what was the position in New South Wales with respect to a jury which might not accept a judge’s direction? We respectfully draw attention to footnote 57 in the Commonwealth’s submissions where there is a reference to Chief Justice Spigelman in a case called Cheng, but perhaps more usefully, a reference to the New South Wales bench book and we would say that the direction which is available for the trial judge to use in New South Wales makes a mistaken conviction when there is a direction to acquit almost impossible. The jury are not invited to retire and only the foreperson is invited to respond.

Now, what would happen, hypothetically, if the jury started to show signs of independence? Well, they would then be seeking to disobey a direction as to the law. A judge could reinforce the fact they have no choice. If, for example, they started to try and leave for the jury room, the judge could treat that as a miscarriage and discharge or could refuse to accept any verdict given or if by chance a verdict was given, then there certainly would be an appeal which no doubt the Crown would join in from the conviction, and we say that is the practical answer.

FRENCH CJ: You do not contend that there is a legal duty on the members of the jury to comply with the judge’s direction as to law?

MR RENWICK: We do. We do say there is a legal duty.

FRENCH CJ: Is there any authority for that?

MR RENWICK: No. It goes back to the fundamental proposition that Justice O’Connor pointed out – that the concept of trial by jury is the jury decide the facts in accordance with directions as to the law by the judge. It is fundamental in that sense, your Honours. The final point is this - - -

GUMMOW J: Wait a minute. Suppose the jury came back and insisted on giving this verdict, the judge is not obliged to act on it?

MR RENWICK: I am sorry.

GUMMOW J: They defy the judge and come back and give this verdict. What does the judge then do? He is not bound to - - -

HEYDON J: The judge could decline to enter judgment and therefore there would be no effective conviction; no need to appeal.

MR RENWICK: That would be one option. If the judge did not do so he nevertheless felt bound to enter it. As I say, as a practical matter there would be an appeal which no doubt the Crown would join in on a question of law, namely the failure by the jury to comply with the direction. The final matter is this, your Honours. The Commonwealth referred you to an article by Friedland. Can I just quote a sentence at page 299 at about point 5 where the author says:

A clear direction by the trial judge to the jury is hardly distinguishable from a ruling on a demurrer, except for a sentimental respect for the intervention of the jury in the former case.

We simply draw that to attention because in this case of course – the reference is at AB 202 – the trial judge appears to have said that she perhaps ought to have granted the demurrer. If that had happened presumably there then could have been an appeal on the interlocutory question under the Criminal Appeal Act. Unless I can assist your Honours any further, those are our submissions.

FRENCH CJ: Thank you, Mr Renwick. Yes, Mr Game.

MR GAME: Your Honours, I did not want to enter into the section 80 question at all except to just mention that which Mr Renwick raised with you, that there is the section 5F criminal appeal jurisdiction that your Honours should at least be aware of and if the judge made an interlocutory judgment or order then the Crown could appeal that under that provision. So upholding the demurrer would be of the kind that could be appealed under that provision.

The second thing is, in respect of the wider context within which the District Court judge exercises federal jurisdiction, the supervisory jurisdiction of the Court of Appeal is not spent and it is not unknown for prohibition or mandamus to lie particularly in relation to issues of bias, for example, so that if jurisdictional error is established in the Craig v The Queen sense in respect of an inferior court, subject to the limitations in section 17 of the Supreme Court Act with respect to appeals in criminal matters, the supervisory jurisdiction of the court - - -

GUMMOW J: This is in the world of New South Wales. We are in the world of Australia.

MR GAME: Yes, but the world is all the same in respect of supervisory jurisdiction, your Honour. I will skip New South Wales, but the supervisory jurisdiction is there and up until the very last minute in respect of jurisdictional error in the Craig v The Queen sense it could still lie. Now, in respect of the section 107 point, could I take your Honours to the chronology that sits behind our submissions. I will just very briefly say something about it.

Now, in that chronology the date that needs to be written in there is 15 December 2006, which is the date of the commencement of section 107 of the Crimes (Appeal and Review) Act. Now, the date of the acquittal is 8 July 2008 and our primary submission is that having regard to section 107(8), the right accrues at the time of the acquittal and that is the relevant date. If one went back to the cases, and there is no need to refer to them, Baladjam said, in effect, that section 53 is only concerned with committal proceedings, and JS took the commencement point, the point in paragraph 6 in that chronology, namely, the commencement of the trial which is 24 June 2008. That is all I wanted to say about that subject.

Now, in respect of our reply to our opponents’ submissions and the document that I have provided, I will come back to that document in a minute, but in answer to an issue that your Honour Justice Hayne raised with me, in respect of this analysis you could go up to an offence under section 400.3(1), but in the context of this offence you could not go down to the negligence or there would be no work for the provision to do in respect of going down to the negligence offence in section 400.3(3). The reason for that is that the mental state of the conspirators in relation to proceeds of crime has already risen higher than that required in the offence of negligence.

The negligence offence in this context would fall away completely, so you would only have the 400.3(1) and 400.3(2), no further work to do. That is not to say that there will not be some offences in which you could have a conspiracy to commit an offence of involving a negligent act, but in that circumstance you would contemplate a circumstance in which a negligent act occurs and you would agree to be negligent in those circumstances without intending the negligent act, and I gave an example for strict liability as well.

If I could come back to section 11.5. Section 11.5 sits in Part 2, but the only work that Part 2 has to do in respect of extensions of liability is in what might be described as the essential requirements under sections 3.1 and 3.2 to establish elements of an offence. There is little work for anything beyond Division 3 in Part 2 to do in respect of extensions of liability, particularly conspiracy. So that when you come to the conspiracy provision, it sits in the same chapter, you satisfy the irreducible requirements of sections 3.1 and 3.2 by finding a physical element of the fact of an agreement, the making of an agreement, and the mental element in the intention to agree, but there is no suggestion by the language of – that is a minimal exercise. It would be unnecessary to even do that were it not for the fact of sections 3.1 and 3.2. Division 5 has no further work to do in respect of these provisions and subsection (2) is not worded as if it did have any work to do. We have seen in our written submissions and in oral submissions yesterday how the whole exercise falls apart when you attempt to do so.

Our respondents said – particularly Mr Stratton – it does not matter whether or not 11.5(2) are elements. That was at page 51. It actually matters a great deal because what the respondents are trying to do is to get – and there is no suggestion that the elements could be in both – they are trying to get all of the elements of conspiracy in 11.5(2) and then they are trying to turn them into physical and fault elements for the purposes of Division 5, but they are not worded as such and the framework of the Act does not suggest it and we hit a wall, in my submission, when one asks, well, what is the physical element for which 2(b) is the fault element. Then they want to take it one step further because what they are actually trying to get to is section 5.2, but to get to 5.2 it has to be a fault element for a physical element but it is not a fault element for any physical element and nobody has suggested that they can identify such a thing.

Then they want to go one step further and they want to change the words “the person and at least one other party to the agreement must have intended”. They want to change those words to mean the person and at least one other party must have had the mental state of intention with respect to each physical and fault element of the offence concerned. Then they want to get from that back to section 5.2 to turn an intention to commit an offence or an agreement to commit an offence into something requiring full knowledge of all the facts and circumstances to make an offence under the offence-making provision.

One can see from that analysis, in our submission, that the entire approach is misconceived. It is misconceived because now we have elements on elements on elements and it does not work. There is no need for it. Not only that, the analysis that we are putting forward is conventional, it is simple, it gives “conspiracy” its ordinary work to do and the requirements of subsection (2) are easily comprehended and they are easily dealt with in the context of directions to a jury. The approach that we propose, in our submission, is a conventional approach to identifying criminality in respect of an agreement to commit a crime. That is what we have to say about that.

BELL J: Can I just take one matter up with you?

MR GAME: Yes, your Honour.

BELL J: I think you said at the commencement of that submission that no one was suggesting elements were found in both subsection (1) and subsection (2) of 11.5. Was that your contention? I rather thought that your opponents did embrace, on one view, that elements are to be found in each of those two subsections.

MR GAME: Your Honour, in our submission, it does not make sense to have separate elements in respect of the same territory.

BELL J: I understand that.

MR GAME: The elements are components of an offence. Subsection (2) is not framed as components of an offence.

BELL J: Mr Game, I think I understand that aspect of your argument. I was just wanting to take up with you the correctness of the proposition that no one at the Bar table - - -

MR GAME: I am sorry; that was an exaggerated flourish. I will take it all back.

FRENCH CJ: I think it was described as components of the offence in the officer’s report, was it not?

MR GAME: I will do what Mr Abbott did yesterday: I will take back everything I have said before. It also has to be understood that what we are saying is not that this is just a crime of recklessness. That is not what we are saying. We are attempting to lay out how it actually works in the real world in the context of the elements of the offence and a conspiracy to commit that offence. The same follows in respect of an intention that an offence be committed. Even if they were elements it would still be the same because an intention that an offence be committed is different than a state of intention in respect of each physical and fault element.

Now, I wanted to respond to a matter that Justice Hayne raised in respect of the idea that the work to do in respect of recklessness could be for

the third party. In this case, of course, one of the conspirators is the dealer, but your Honour – and Justice Simpson considered this in Ansari at paragraphs 8 and following, but in practice, there is no need for a third party to have a mental state in this exercise because once you have established the mental state of the two conspirators there is no necessity to go to a third person. So the relevant intention resides in two or more conspirators, the subject of the conspiracy. A short point about Giorgianni - it is a very short point. The conduct in that case - - -

HAYNE J: I am sorry, Mr Game, the proposition you have just last advanced is a proposition, I think, which asserts as a generalisation that the mental state sufficient to commit the offence suffices for conspiracy if the conspirators have the mental state necessary for the commission of the offence. Is that right?

MR GAME: In substance, yes, but they have to have a mental state of awareness with respect to the physical element. I have dealt with it in the submissions, that is to say, intention in respect of the question of proceeds, which is the physical element. But I am saying they do not have to have the mental state of intention in the Code with respect that that physical element exists. Does your Honour understand? All I am saying is that there is a mental state with respect to a physical element, there is a mental state with respect to a fault element, and that is what we have tried to develop in the document, so that it addresses both.

FRENCH CJ: When you say mental state there, you are referring to the mental state necessary for the formation of an agreement that constitutes a conspiracy.

MR GAME: Residing in the agreement, yes. I just mean residing in the agreement, yes, your Honour. Now, just a short point about Giorgianni - there was conduct and result, one would say in Code terms, vehicle being driven dangerously and death resulting. There were not circumstances, and I think Mr Stratton put an argument about that which we would contest. Now that is – I think you are going to receive a document from Mr Stratton in response to that which we have just said. When you get that document, paragraph 7 of the document in relation to our argument, for reasons that I have attempted to persuade, is not the case that we put which is that it is as put in this document, that it is a mere offence of recklessness for reasons which I have explained. If the Court pleases.

FRENCH CJ: Thank you, Mr Game. Mr Hughes, any reply on the notice of contention.

MR HUGHES: Yes. Your Honours, on the point as to components of the offence my learned friend, Mr Stratton, has prepared a short document which I am sure he will seek to hand up and we adopt it, but may I be his deputy to do that.

FRENCH CJ: Yes.

MR HUGHES: He has signed it. As it is Mr Stratton’s composition it would be perhaps impertinent of me to speak to it, but if he does, we simply adopt it.

FRENCH CJ: All right.

MR HUGHES: On the section 80 point – I am sorry, I have interrupted reading. Is it convenient for me to go ahead?

FRENCH CJ: Yes, I think you can proceed.

MR HUGHES: I can respond very briefly on the section 80 point. It is no doubt true to say that no question of constitutional invalidity is raised by the section 80 argument because it is a question of whether section 68(2) picks up a constitutional point by reason of the fact that we say that section 107 contravenes section 80 by seeking to outflank an essential characteristic of trial by jury at common law as at the establishment of the Commonwealth and thereafter. The common law has not changed.

The 1879 report to which my learned friend, the Solicitor-General, gave some attention during the course of his submissions was never adopted and it may be thought, therefore, to be something in the nature of a..... One thing neither of my learned friends, the Solicitor nor Mr Renwick, has sought to do is to challenge in terms or at all our submission, developed in the outline of argument and in the speaking notes, your Honours, to the effect that cases subsequent to Snow have adopted the essential features attributed to a jury verdict of acquittal by Sir Samuel Griffith and Sir Frank Gavan Duffy and Sir George Rich in their judgments in Snow. So that although, as Sir Harry Gibbs said in Davern v Messel, Snow because of the three/three division, is not a decisive authority.

What we have said and what has not been controverted in oral argument, or indeed in written argument, by my learned friends is that the subsequent cases of Weaver, Wilkes and Cheatle, thus Davern v Messel, have picked up, if I can use that expression, the thoughts as expressed by Sir Samuel Griffith, Sir Frank Gavan Duffy and Sir George Rich in Snow and adopted their essence. If that is right it is an important pointer towards acceptance of our fundamental argument to the effect that it was an essential feature or characteristic of the common law picked up by section 80 that a jury verdict of acquittal was inviolable. That is all we wish to say in reply, your Honour.

FRENCH CJ: Thank you, Mr Hughes. Mr Stratton, you did not wish to speak?

MR STRATTON: Your Honour, I simply wanted to speak in reply to Mr Game’s one-page document and I will limit myself to that. The document, which has been handed up, is in response to that document and also, in effect, in response to Justice Hayne’s invitation to express the chain of statutory reasoning. We say that the relevant state of mind for the circumstance of the money being stolen is that for intention – that is, section 5.2 – and that knowledge is required. It is submitted that inevitably the appellant’s argument is that the state of mind is that applicable to recklessness – that is, awareness of a substantial and unjustifiable risk as indicated in section 5.4. Thank you, your Honour.

FRENCH CJ: Thank you, Mr Stratton. The Court will reserve its decision and will adjourn briefly to enable the parties to organise themselves for the next appeal.

AT 2.52 PM THE MATTER WAS ADJOURNED