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COMMENT
In Brownlee v The Queen[1], the High Court was asked to consider whether the trial of the applicant pursuant to current legislative standards of trial practice in New South Wales was compatible with s 80 of the Constitution. Pursuant to provisions of the Jury Act 1977 (NSW)[2], the jury was reduced during the course of the trial from twelve jurors to ten, and during jury deliberation, the jury members were allowed to separate at the end of each day. The applicant contended before the High Court that such practices were incompatible with the essential characteristics of a 'trial ... by jury' in s 80 of the Constitution. The Court unanimously rejected that argument.
Brownlee v The Queen provided the High Court with another opportunity to explore the scope of s 80 of the Constitution. It also provided the Court with another opportunity to develop an accepted method of constitutional interpretation. Despite the insistence by some Justices for the adoption of a particular label for constitutional interpretation, it would appear that, at least as far as the meaning of 'trial ... by jury' in s 80 of the Constitution is concerned, the High Court has adopted an accepted framework.
The applicant was charged with conspiracy to defraud the Commonwealth in contravention of s 86A of the Crimes Act 1914 (Cth). He was tried on indictment in the District Court of New South Wales and was convicted. The District Court had jurisdiction conferred on it to try and convict the applicant under s 68(2) of the Judiciary Act 1903 (Cth).[3] The conferral of jurisdiction is expressed to be subject to s 80 of the Constitution. In accordance with s 68(1) of the Judiciary Act, the laws of New South Wales respecting the procedure for the trial and conviction on indictment were to be applied to the applicant's trial so far as they were applicable.
During the course of the trial, two jurors were discharged. The relevant provision for the discharge of jurors is contained in s 22 of the Jury Act. Paragraph (b) of that section provides that in the case of criminal proceedings, where, in the course of any trial, any member of the jury dies or is discharged by the court (whether as being through illness incapable of continuing to act or for any other reason), the jury shall be considered as remaining properly constituted if the number of its members:
(i) is not reduced below ten,
(ii) is reduced below ten but approval in writing is given to the reduced number of jurors by or on behalf of both the person prosecuting for the Crown and the accused or each of the accused, or
(iii) is reduced below ten but not below 8 and the trial has been in progress for at least 2 months.
The first juror was discharged under s 22 of the Jury Act because continued jury duty would have clashed with prearranged travel commitments.[4] The second juror was discharged because continued service would have imperilled his business. In accordance with s 22, the trial continued to conclusion with a jury of ten.
On Wednesday, 3 July 1996, the jury retired to consider its verdict. Section 54(b) of the Jury Act provides that the jury in criminal proceedings, may, if the court so orders, be permitted to separate at any time after they retire to consider their verdict. Pursuant to this section, the jury was allowed by the trial judge to separate after each day's deliberation and over the weekend of 6 and 7 July.[5] The jury returned its unanimous verdict of guilty on Monday, 8 July 1996. The trial judge then sentenced the applicant to a term of imprisonment.
The applicant's appeal to the New South Wales Court of Criminal Appeal was dismissed.[6] Grove J (with whom Bruce J and Cooper AJ agreed) held that neither the reduction of the jury from twelve to ten, nor the separation of the jury after the commencement of deliberation, was incompatible with s 80 of the Constitution.
The applicant applied to the High Court for special leave to appeal. At the hearing of the special leave application, Gaudron, Gummow and Hayne JJ referred to the Full Bench so much of the special leave application as raised the question of whether s 68 of the Judiciary Act operated at the trial of the applicant to 'pick up' (i) s 22 of the Jury Act and (ii) s 54(b) of that Act.[7] That is, whether s 68 operated to apply those provisions to the trial of the applicant.
Thus, it was not in issue that the trial of the applicant was a trial on indictment for the purposes of s 80. Neither was it in issue before the High Court whether the trial judge had properly exercised the discretionary powers under ss 22 and 54(b) of the Jury Act.[8] The applicant's objection was to the application of ss 22 and 54(b) of the Jury Act by the trial judge because of their alleged incompatibility with s 80 of the Constitution.
The applicant was tried and convicted of an offence against a law of the Commonwealth and, therefore, the District Court of New South Wales was exercising federal jurisdiction conferred upon it by s 68(2) of the Judiciary Act.[9] However, the vesting of that federal jurisdiction in a State court by s 68(2) is expressly subject to s 80 of the Constitution. Further, s 68(1) provides that State laws are 'picked up'[10] only so far as they are applicable. Thus, this was not a case in which s 80 operated to invalidate a federal or state law.[11] If the relevant state provisions were incompatible with s 80 of the Constitution, then the state laws should not have been 'picked up' and applied in federal jurisdiction. In short, if ss 22 and 54(b) were incompatible with s 80, the applicant's trial would not have been held in accordance with the command in s 80 and the conviction would be liable to be set aside.
Four separate judgments were delivered by the Court. Joint judgments were delivered by Gleeson CJ and McHugh J, and by Gaudron, Gummow and Hayne JJ. Justices Kirby and Callinan each delivered a separate judgment.
On the question of separation, the Court unanimously held that s 80 did not mandate an absolute rule that juries could not separate after the deliberation process had commenced.[12] Their Honours also held unanimously that it was not an imperative of s 80 that the number of jurors remain at twelve after the trial has commenced.[13] Thus, ss 22(a)(i) and 54(b) of the Jury Act were not incompatible with s 80 and were appropriately 'picked up' by s 68(1) of the Judiciary Act.
The application of s 80 of the Constitution to the facts in this case provided another opportunity for further debate on the proper method of constitutional interpretation. Brownlee v The Queen again raised the perennial tension between the view that the Constitution is to be interpreted as a statute,[14] and the recognition that the Constitution is a special statute intended to endure and 'apply to the varying conditions which the development of our community must involve'.[15] While this tension has existed since the establishment of the Court, very few High Court Justices have been prepared to engage in the debate of the proper judicial method for constitutional interpretation. Certainly, crude tools such as the connotation and denotation distinction have been used to resolve the tension in particular cases. However, as Professor Zines points out, surely this and similar distinctions merely restate the question.[16]
In recent years, McHugh J and Kirby J have debated their respective approaches over the course of a number of cases.[17] Adopting an orthodox approach, McHugh J favours an approach that his Honour describes as textualism or semantic intentionalism.[18] Such an approach looks to the objective intention of the framers of the Constitution. In his Honour's view, this approach neither involves a search for the subjective intention of the framers, nor does it result in the Constitution having a meaning fixed at 1900. His Honour is of the view that '[o]ur Constitution is constructed in such a way that most of its concepts and purposes are stated at a sufficient level of abstraction or generality to enable it to be infused with the current understanding of those concepts and purposes.'[19]
Justice Kirby, on the other hand, rejects any approach to constitutional interpretation that considers as crucial the intentions of the framers or the meaning of constitutional words and phrases at 1900. His Honour favours an approach that looks to the contemporary meaning of the Constitution.[20] In fact, in his Honour's view, the Court in recent years has adopted the approach that his Honour advocates.[21] Although a change of meaning has been accommodated by the use of the connotation/denotation distinction, in his Honour's view, that device merely disguises 'the fact that the Court's search has become one for the contemporary meaning of constitutional words, rather than for the meaning which those words held in 1900.'[22]
Other than McHugh and Kirby JJ, on the whole, the other Justices have been reluctant to enter into the debate explicitly.[23] In submissions to the Court in Brownlee v The Queen, the Attorney-General of South Australia argued that judicial 'diffidence' to the adoption of a particular approach to constitutional interpretation was no longer appropriate, and urged the Court clearly to identify a proper approach. However, perhaps any 'diffidence' by some members of the High Court is to committing themselves to the adoption of a particular label to describe the proper method for constitutional interpretation. Perhaps, the search for a label obscures and complicates the interpretive task in a particular case. The decision in Brownlee v The Queen, provided an opportunity for the Court to respond to these questions.
In contrast to other judgments in which McHugh J explained his approach in detail, his Honour's joint reasons with the Chief Justice provided very little elaboration of a general interpretive approach. Their Honours referred to the use of history by the Court in Cheatle v The Queen[24] for the purpose of ascertaining the meaning of the expression 'trial ... by jury', and noted that in determining its meaning, it was both proper and necessary for the Court to resort to historical considerations. In their Honours' view, such an inquiry 'was undertaken because the exercise upon which the Court was embarked involved ascertaining the meaning of an instrument which came into being in a certain manner, at a certain time, and for a certain purpose'.[25] A consideration of the 'historical context' in which the Constitution was written and the 'genesis' of that instrument would be, in their Honours' view, 'potentially relevant to a question about the meaning of the instrument.'[26]
However, such a consideration of the historical context was not undertaken for the purpose of 'psychoanalysing the people who were involved in the framing the Constitution'.[27] In their Honours' view, the subjective understanding of the framers is not the determining factor in a dispute about constitutional interpretation, but such an understanding may reflect the historical context in which the Constitution was written.[28]
Although their Honours clearly recognised that the historical context is relevant to the process of resolving a problem as to the interpretation of the Constitution, in their Honours' view, 'the significance of the circumstances surrounding the framing of the instrument will vary according to the nature of the problem'.[29]
Despite the need to consider the historical context in which the document was written, their Honours recognised the enduring nature of the Constitution. Since the Constitution 'was brought into being as an instrument of government, which would need to respond to changing circumstances and conditions over time', in their Honours' view, it would be wrong to attribute to it a meaning 'frozen in time'.[30]
What appears to be missing from their Honours' interpretive framework is any reference to the objective intentions of the framers. In previous judgments, McHugh J had emphasised that in ascertaining the meaning of the Constitution, the 'search is always for the objective intention of the makers of the Constitution'.[31] The fact that, in their Honours' view, the historical context might have a variable significance to the process of ascertaining the meaning of the Constitution, suggests that any reference to intention, whether objective or subjective, may only serve as a distraction from the true inquiry, that is, 'the meaning of the Constitution'.
The judgment of Gaudron, Gummow and Hayne JJ does not expressly elucidate a general approach to constitutional interpretation. However, as will become apparent, their Honours clearly recognised that the task may require, as was the case in relation to s 80, a consideration of the historical context in which the Constitution was drafted. Ultimately, though, the task is to ascertain the meaning of the Constitution in a contemporary context.
Justice Kirby expressly recognised the tension between, on the one hand, the recognition that the Constitution is a statute and, thus, that its meaning is uncovered by general techniques of statutory construction and, on the other hand, the realisation that the Constitution is a statute of a special kind. Consistently with previous attempts, Kirby J sought in Brownlee v The Queen to elucidate his theory of constitutional interpretation. His Honour recognised the submission of the Attorney-General of South Australia that without an established approach to constitutional interpretation, decisions inevitably will be inconsistent 'reflecting no more that the intuitive responses to the text of the Constitution by different Justices (or of the same Justices at different times).'[32]
In his Honour's view, constitutional expressions must be given their contemporary meaning. Only such an approach would befit 'the character of a national basic law, which is extremely resistant to formal amendment, but which must, of necessity, apply to new, unforeseen and possibly unforeseeable circumstances'.[33]
His Honour then attempted to illustrate the inappropriateness of adopting a 1900 criterion for ascertaining the content of 'trial ... by jury' in s 80. His Honour noted that at 1900, all jurors were male; they had to have property qualifications of some kind; and exemptions from jury service were designed to single out characteristics thought, at that time, to be essential to the type of 'right thinking man' for jury service.[34] His Honour noted that the decision in Cheatle v The Queen considered gender and property qualifications as undesirable and incompatible with 'a contemporary institution' or 'modern democratic society'. Thus, his Honour reasoned that the Court in Cheatle v The Queen must have adapted the institution of trial by jury to modern Australian conditions. His Honour argued that once such considerations are adopted for modifying features of the trial by jury that were considered essential at 1900, then such an approach must be adopted consistently when considering other features of trial by jury. As his Honour states, '[e]ither one adheres to the historical notions of 1900, and takes the mind back to what the framers knew and understood about jury trial, or one accepts that the constitutional expression must be given a "contemporary" meaning, as befits a "modern democratic society".'[35]
Indeed, in his Honour's view, since the framers lived in a different world, the search for the framers' intention would be misleading and prone to result in serious error. Notwithstanding that conclusion, his Honour does not entirely dismiss historical considerations. In his Honour's view, a consideration of history, as in the debates that preceded adoption of the Constitution, might not be 'wholly irrelevant', but has limited utility when the search is for the contemporary meaning of words and phrases.[36]
His Honour concluded his discussion on interpretive method by rejecting the approach to constitutional construction that would limit the meaning to be given to the expression 'trial ... by jury' in s 80 to the notions held about the mode of trial by the framers of the Constitution in 1900. His Honour recognised that it will 'take time for the search for constitutional meaning by reference to the imputed "intention of the framers" in 1900 to be abandoned in favour of a search for the essential characteristics of the words and phrases having enduring constitutional operation'.[37]
The remaining judge, Justice Callinan, did not seek to elucidate a general approach to constitutional interpretation.
This in fact was an easy case. Even by federation, there was no clearly established universal rule preventing the reduction of jurors from twelve to ten after the trial had begun.[38] Similarly, by federation, there were already inroads being made into the strict common law rule that a jury could not separate until verdict.[39] Thus, having briefly surveyed relevant case law and legislation, both British and colonial, Gaudron, Gummow and Hayne JJ concluded that, at the time of federation, the 'absolute sequestration of the jury was no longer regarded as an essential element of trial by jury; likewise, the necessity to swear in a fresh jury if a juror died or was taken ill.'[40]
Therefore, even on a strict originalist approach to interpreting the Constitution, those characteristics could not have been considered by the framers to be central to the concept of a trial by jury. However, their Honours proceeded to consider how s 80 should be interpreted to reflect the enduring nature of the Constitution.
It is clear that the Court has affirmed the distinction between essential and non-essential elements of a trial by jury employed by the Court in Cheatle v The Queen for the purposes of determining which characteristics of a 'trial ... by jury' are constitutionally entrenched.[41] For example, Gaudron, Gummow and Hayne JJ described the task as the identification of whether the provisions of the Jury Act merely changed the inessential elements of the trial process, or destroyed an essential or fundamental feature of the institution.[42] Their Honours then quoted, with apparent approval, from an article by Professor A W Scott:[43]
Only those incidents which are regarded as fundamental, as inherent in and of the essence of the system of trial by jury, are placed beyond the reach of the legislature.
However, the Court in Brownlee v The Queen refined the constitutional analysis further. The Court recognised that the institution of trial by jury performs a particular constitutional function and is designed to achieve certain ends or purposes.[44] Thus, as stated by Gaudron, Gummow and Hayne JJ, the classification of essential features of the institution of trial by jury involves an appreciation of the objectives that institution advances or achieves.[45] In other words, to perform that function in a constitutionally compatible manner, the institution must be characterised by certain essential functional attributes.[46] History reveals the ends or purposes sought to be achieved by the institution and that its essential attributes might be achieved by different rules of practice and procedure depending on the social context.[47] Rules which may be seen at one time to be indispensable to the achievement of the essential objectives of the institution might, at a later time, not be characterised as central to, or even compatible with, those essential objectives.
Thus, the Court has retained the distinction between essential and inessential attributes of the institution of a trial by jury, but has applied this distinction in a more sophisticated way that results in a differentiation between the essential functional attributes of a trial by jury and the means by which those functional attributes are achieved.
Any difference among the members of the Court[48] lies in the extent to which the social context and history bear upon this analysis. The joint judgments of Gleeson CJ and McHugh J, and Gaudron, Gummow and Hayne JJ, consider that the contemporary social context is relevant to the question of whether contemporary practice is compatible with the essential functional attributes. Indeed, that assessment can only be made in a contemporary context. But, for their Honours, the essential attributes themselves cannot be determined by contemporary standards. In other words, the function of the institution cannot be ascertained by reference to contemporary standards. As Gleeson CJ and McHugh J said:
If the meaning of 'trial ... by jury' is to be determined solely by reference to contemporary standards, there is nothing to argue about. Contemporary standards are reflected in the Jury Act.[49]
On the face of Kirby J's judgment, it appears that his Honour rejects such an approach. His Honour's approach searches for the:
[E]ssential characteristics of 'trial ... by jury', referred to in s 80 of the Constitution, as that expression is to be understood as a constitutional requirement, viewed in its context in Ch III and from the perspective of contemporary considerations that identify the essential characteristics of that mode of trial in Australia.[50]
However, on closer analysis, his Honour's approach may properly be seen as consistent with the views expressed in the joint judgments.[51] His Honour certainly rejects any 'approach to constitutional construction that would limit the meaning to be given to jury trial in s 80 to the notions held about that mode of trial by the framers of the Constitutional in 1900.'[52] However, in truth, that is not what the joint judgments seek to do. The joint judgments seek to identify the essential functional attributes of a trial by jury by reference to the historical inception of that institution, but the assessment of compatibility of laws with those functional attributes is an exercise undertaken in a contemporary context. Indeed, Kirby J implicitly recognises the immutable character of the functional attributes when his Honour describes the task of interpretation as 'a search for the essential characteristics of the words and phrases having enduring constitutional operation'.[53]
The use of history and a reference to the framers' intention might also be said to distinguish Kirby J's approach to the interpretation of s 80 and the approach of the joint judgments. However, such apparent differences cannot really be said to withstand closer analysis.
As to the use of history, first, Kirby J recognises that history is not 'wholly irrelevant'.[54] Secondly, and more fundamentally, the joint judgments do not seek to employ history as a mechanism for entrenching rules of practice. Their Honours look to history as a means for gaining some insight into what the essential functional attributes of a trial by jury are. As the Court stated in Cheatle v The Queen:
It is well settled that the interpretation of a constitution such as ours is necessarily influenced by the fact that its provisions are framed in the language of the English common law, and are to be read in the light of the common law's history.[55]
The consideration of history might reveal the procedural means (that is, the rules of practice) that were once considered necessary for the achievement of the functional attributes, but it does not fix the words 'trial ... by jury' in s 80 with those temporal understandings. In fact, a consideration of history might reveal that rules of practice, while consistent with the essential functional attributes at 1900, are incompatible with a contemporary understanding of those functional attributes. Thus, gender and property qualification are incompatible with modern understandings of the institution.[56] Similarly, inflexible rules preventing a reduction in jurors from twelve to ten and preventing separation of jurors might be seen in a contemporary context as incompatible with the functional attributes.
Moreover, any difference in the judgments by reason of the use of the framer's intention is more apparent than real. Certainly, Kirby J rejects any approach that considers as important the intention of the framers. But, subject to one exception to be mentioned below, the joint judgments also do not place any such reliance on the framer's intention. First, Gleeson CJ and McHugh J emphasise that the subjective understanding of the framers is only relevant to the meaning of the Constitution because it may reflect 'the historical context in which [the] instrument was written.'[57] Thus, the framer's subjective intentions do not give content to the essential functional attributes of the institution of trial by jury.
The joint judgment of Gaudron, Gummow and Hayne JJ, with one unfortunate exception, does not give any regard to the intention of the framers. The exception appeared when their Honours dealt with the question of whether the jury can be permitted to separate. In that context, their Honours referred with approval to an extract from the judgment of Grove J in the court below. Grove J held that:
[A]n understanding and construction should be given to the words in s 80 that the framers of the constitutional guarantee intended that a jury exercise its function without fear or favour and without undue influence in the context of community standards and expectations as current from time to time.[58]
It is unclear whether this was a conscious reference to the intention of the framers. However, if it was, it is clear that their Honours could not have meant the subjective intentions of the framers. No reference was made by their Honours to the debates. To the extent that their Honours intended to refer to the objective intention of the framers, it is merely another means of identifying the task before the Court, that is, one of finding the essential functional attributes of an institution that existed at common law. That inquiry is not advanced by reference to the notion of objective intention and, indeed, can only serve to mislead and distract attention from the proper inquiry. In fact, even McHugh J refrained from using such language.
Thus, at the very least, five Justices have settled on a framework for the interpretation of the words 'trial ... by jury' in the s 80. It may in fact be that Kirby J's approach can also be reconciled with the approach expressed in the two joint judgments. The Court will search for the essential functional attributes of the institution of a 'trial ... by jury', and assess contemporary trial standards by reference to those essential attributes. In determining which elements are essential, the Court will look to the function performed by a jury trial.
As to what those essential functional attributes might be, the various Justices made the following observations. Gleeson CJ and McHugh J agreed with the observations of White J in Williams v Florida[59] that the purpose of the jury trial is to prevent oppression by the government. Given this purpose, White J was of the view that 'the essential feature of a jury obviously lies in the interposition between the accused and his accuser of the commonsense judgment of a group of laymen, and in the community participation and shared responsibility that results from that group's determination of guilt or innocence'.[60] Undoubtedly based on these observations, their Honours identified essential functional attributes of a 'trial ... by jury' as independence, representativeness and randomness of selection, and the need to maintain the prosecution's obligation to prove its case beyond reasonable doubt.[61]
Gaudron, Gummow and Hayne JJ made similar observations. Their Honours also identified the purpose of a 'trial ... by jury' as directed to the determination of guilt according to law, with the interposition between the accused and the prosecution of the 'commonsense judgment of a group of laymen'.[62] For the achievement of this purpose, the jury must be able to 'deliberate upon its verdict uninfluenced by an outsider to the trial process'[63]. In short, the jury must be independent. In the context of jury size, their Honours observed that the jury must be 'large enough to promote measured deliberation and [indicate] to the community sufficient participation by its members to vindicate the outcome'.[64]
Justice Kirby also identified the prevention of oppression as an important purpose of a trial by jury.[65] His Honour identified a list of essential functional attributes. As to jury size, essentially, it must be large enough to promote group deliberation[66] and to ensure that a cross-section of community opinion will be expressed[67]. His Honour also noted that because s 80 takes its place in Chapter III of the Constitution, 'it is essential that it should continue to hold public confidence and "through the involvement of the public, societal trust in the system as a whole"'.[68] Additionally, his Honour noted that given that contemporary trials can be extremely complex and lengthy, the inconvenience to the community, to jurors and the cost to the parties should not needlessly be incurred by unnecessary termination and re-litigation of jury trials where jurors die, fall ill or are otherwise incapable of continuing to act.[69] This last consideration appears not to be an essential functional attribute, but rather a consideration to be taken into account when assessing contemporary standards of practice against essential functional attributes.
Justice Callinan also appears to identify as essential attributes, first, the independence of the jury from influences[70] and, secondly, in terms of jury size, the representativeness of the community.[71]
The Justices were unanimously of the view that allowing separation after retirement for deliberation, and the reduction in jury size from twelve to ten during the course of the trial, were contemporary practices that were not incompatible with the essential features of a 'trial ... by jury'.
The essential functional feature of independence did not require an absolute rule barring separation. In fact, as noted by Gleeson CJ and McHugh J it would be 'an unnecessarily oppressive means of achieving the desired end'.[72] Neither was it incompatible with the attribute of group deliberation. As Gaudron, Gummow and Hayne JJ said, 'strict confinement may have retarded rather than encouraged measured group deliberation and, in former times, appeared to be calculated to pressure jurors to reach a unanimous verdict and to do so with expedition'.[73] Moreover, Kirby J noted that the representativeness of the jury would be diminished if such an absolute rule resulted in the exclusion of some cross-sections of the community.[74]
As to the reduction in number of jurors from twelve to ten during the trial, Gleeson CJ and McHugh J concluded, with little elaboration, that such a system is not inconsistent with the objectives of independence, representativeness and randomness of selection, or with the need to maintain the obligation of proof beyond a reasonable doubt.[75]
Gaudron, Gummow and Hayne JJ considered that starting with twelve jurors was necessary to ensure a size large enough to promote deliberation and to indicate to the community sufficient participation by its members.[76] However, their Honours noted that history at the time of federation showed that a reduction to ten jurors was seen as compatible with the need to ensure observance of the deliberative process required by the institution of trial by jury.[77] The legislation in place at the time of federation had already adapted the institution to the perceived needs of the time, 'whilst retaining the substantial character of the institution as an efficient instrument in the administration of justice'.[78] Their Honours concluded that current legislation that allowed a reduction to ten jurors was not incompatible with s 80 of the Constitution. This conclusion was reinforced by the contemporary context of lengthy and complex trials.[79] Their Honours accepted the observations by Gleeson CJ and Hayne J in Wu v R[80] to the effect that requiring a full complement of twelve jurors for the whole trial would place considerable burden not only on the accused, but also upon the witnesses and juries.[81] Thus, their Honours were concerned to ensure that the institution remained 'an efficient instrument in the administration of justice'.[82]
Justice Kirby noted the dangers in allowing a reduction in jury size from the traditional number of twelve. A reduction in number would increase the risk that the jury might not be representative of the community.[83] There would also be a 'danger to the community's perception of the impartiality of the jury ...'.[84] However, like Gaudron, Gummow and Hayne JJ, Kirby J considered the longer length of modern criminal trials, and the greater complexity and expense involved.[85] In his Honour's view, '[n]othing would be more likely to undermine the survival of jury trial'[86] than an inflexible rule that the jury reach its verdict with twelve members.
Justice Callinan considered the reduction to ten jurors to be valid because 'there is no reason in principle why a jury of twelve persons should necessarily be considered more representative of the community than a jury of 10 persons or 14 ...'.[87]
Consequently, their Honours unanimously upheld the application of ss 22(a)(i) and 54(b), although their Honours did not justify their conclusions by reference to the same essential functional characteristics. Although the differences were not significant in the circumstances of this case, it is clear that such differences might be crucial to other legislative provisions prescribing rules of practice and procedure for jury trials.[88]
Only Kirby J and, to some extent, Gleeson CJ and McHugh J, accepted the invitation from the Attorney-General of South Australia to set out a general approach to interpreting the Constitution. Thus, the decision in Brownlee v The Queen does not appear to progress the debate much further in the sense that the other Justices have not committed themselves to adopting a particular label to describe the proper interpretive method. However, there is a clear recognition that application of an interpretive method critically depends on the constitutional provision being interpreted. For instance, when speaking of the role of history in the interpretation of the Constitution, Gleeson CJ and McHugh J said that the 'significance of the circumstances surrounding the framing of the instrument will vary according to the nature of the problem.'[89]
Thus, when interpreting s 80, it is important to recognise that s 80 takes its place in Chapter III of the Constitution. It encapsulates a particular manifestation of an organ or institution of government, the judiciary: specifying what form that organ or institution should take in the circumstances described in s 80. Therefore, when interpreting the meaning of the expression 'trial ... by jury' in s 80 of the Constitution, it is essential to appreciate the purposes for which the institution was entrenched in the Constitution. It is by reference to those purposes that the institution's essential character may be determined, and it is by reference to those purposes that the scope of the constitutional requirements may be ascertained.
The positioning of s 80 in Chapter III has a number of consequences. First, in determining which legislative provisions contravene the requirements of s 80, due regard must be had to the constitutional division of power. Thus, when comparing contemporary standards with the requirements of s 80, the content of the constitutional requirements cannot be ascertained by reference to legislative initiatives. There is danger in an approach that focuses exclusively on contemporary standards. There is much force in the comments of Gleeson CJ and McHugh J that '[i]f the meaning of "trial ... by jury" is to be determined solely by reference to contemporary standards, there is nothing to argue about. Contemporary standards are reflected in the Jury Act.'[90]
If Kirby J's approach were confined to giving content to the expression 'trial ... by jury' by reference to contemporary standards in isolation, his Honour would be in danger of ignoring the constitutional division of power. However, in truth, his Honour's approach is more sophisticated: it searches for enduring essential functional attributes, and applies those attributes to the legislative provisions in question in a contemporary context.
Secondly, the positioning of s 80 in Chapter III helps define the essential functional attributes. Thus, the maintenance of rules of practice that undermine public confidence in the judiciary, or undermine the survival of the institution of jury trial, would clearly not be required by s 80.
Thirdly, along with all courts vested with judicial power, a trial by jury is an institution of government. As such, it must reflect constitutional values. In other words, it must not be characterised by attributes that are incompatible with a 'contemporary institution' or a 'modern democratic society'.[91] It is partly for this reason that gender and property qualifications for jurors are incompatible with s 80. Such requirements are offensive to constitutional values. It would be intolerable for similar qualifications to be imposed on the people for entitlement to vote for Parliament. Thus, it is intolerable for the same qualification to be placed upon the people when they participate more directly in the governmental institution of 'trial ... by jury'. Certainly, the decision in Cheatle v The Queen can be explained simply on the basis that gender and property qualifications were incompatible with the essential functional attribute of representativeness. However, arguably, that functional attribute is, itself, a reflection of constitutional values.
Although the Court has not unanimously and explicitly assigned a label to the approach it has adopted to the interpretation of the Constitution, it has at the very least recognised that the approach adopted for the interpretation of the Constitution will depend upon the provision in question. Although not expressed in these terms, the Justices appear to accept that the interpretation of s 80 must depend upon the fact that a 'trial ... by jury' is a judicial institution of government. It was included in the Constitution for certain purposes, and its essential attributes must be determined by reference to the constitutional function that it performs. Indeed, it may be that the search for a particular label for the approach to be adopted might be a distraction from the interpretive task to be performed.
Paragraphs 22(a)(ii) and (iii) of the Jury Act allow the number of jurors to be reduced below ten in certain circumstances. On the facts in this case, it was not necessary for the Court to consider whether s 22(a)(ii) and (iii) are compatible with s 80 of the Constitution.[92] Nevertheless, Gaudron, Gummow and Hayne JJ indicated that 'a real question arises'[93] as to whether a reduction below ten might be incompatible with s 80. Their Honours suggest that ten is the minimum to which a jury could be reduced consistently with the maintenance of the requisite deliberative process.[94]
However, it is not clear what conclusion the other Justices would reach. When identifying the essential features of a jury, Gleeson CJ and McHugh J referred, with apparent approval, to the judgment of White J in Williams v Florida.[95] In the passage extracted in the judgment of Gleeson CJ and McHugh J, White J held that a jury of six would satisfy the functional attributes of a jury trial identified by Gleeson CJ and McHugh.[96] Applying the functional attribute of representativeness, Callinan J saw no reason in principle why twelve should be more representative of the community than ten or fourteen. His Honour left open the possibility of a number lower than ten being compatible with s 80.[97] In assessing compatibility with s.80, no distinction was drawn in the judgment of Gleeson CJ and McHugh J, or by Callinan J, between the requisite number of jurors at the commencement of the trial and the number to which a jury could be reduced. There is nothing to suggest that their Honours considered the distinction to be a material one in this respect.
Justice Kirby also recognised the inevitable task of drawing lines.[98] But his Honour did not assess the question of a reduction in the number of jurors against the functional attributes of maintaining the deliberative process or representativeness. His Honour recognised the inherent risk to the degree of representativeness by a reduction in jury size.[99] However, that risk was outweighed by the threat to the institution of jury trial if a strict rule were adopted prohibiting any reduction in number. Thus, the question for Kirby J will be whether a rule prohibiting the reduction below ten would be likely to 'undermine the survival of jury trial'.[100] Thus, it is not entirely clear whether the other provisions of s 22 of the Jury Act allowing for a reduction below ten would be held to be valid.
The question of whether a jury could be comprised initially of less than twelve jurors was also not before the Court. Although Gaudron, Gummow and Hayne JJ recognised that the constitutionality of empanelling a jury of less than twelve was not in issue[101], nevertheless, their Honours were prepared to assume that it is 'a central characteristic of trial by jury and mandated by s 80 of the Constitution'[102] that a jury of twelve be empanelled.
Their Honours held that such a requirement was supported on 'utilitarian' grounds: '[i]t ensures that the trial gets underway with fact-finding entrusted to a group of laymen which is large enough to promote measured deliberation and indicates to the community sufficient participation by its members to vindicate the outcome'.[103]
However, the requirement of a proper deliberative process has no obvious relevance at commencement of the trial. The question as to the proper size of the jury for the purposes of ensuring a proper deliberative process only arises once the jury retires to deliberate.
In light of their Honours' conclusion that a jury size of ten at the time of deliberation ensures 'observance of the deliberative process required by the institution of trial by jury',[104] it is unclear how a jury of the same size at a time anterior to the deliberation process would undermine the process of deliberation. At the time of deliberation, the nature of the deliberative process of ten jurors is logically the same whether the trial commences with twelve or ten.
As indicated though, their Honours also referred to the 'utilitarian' ground of ensuring that the jury commences with twelve so as to indicate to the community sufficient participation by its members to vindicate the outcome. Although the community participates in a trial from its commencement, surely the relevant concern of the community to ensure sufficient participation to vindicate the outcome extends for the duration of trial until verdict. Whether there has been sufficient community participation to vindicate the outcome must be assessed at the time the jury deliberates on its verdict, not at the time the trial commences. Thus, this 'utilitarian' ground appears to be inconsistent with their Honours' finding that a jury of ten (reduced from twelve) at the verdict stage is compatible with s 80.
The joint judgment of Gleeson CJ and McHugh J, and the judgment of Callinan J, appear to be more receptive to the idea that a jury commencing with ten is compatible with s 80. As indicated, Gleeson CJ and McHugh J quote, with apparent approval, from the judgment of White J in Williams v Florida.[105] The passage extracted states that a jury comprised of six members would be compatible with the functional attributes identified by Gleeson CJ and McHugh J. Callinan J also observes that there is no reason in principle why a jury of twelve would be more representative that a jury of ten.[106]
It is in Kirby J's judgment that a reason may be found for distinguishing, for the purposes of s 80, between the reduction in number from twelve to ten, and starting with a jury of ten. His Honour did not directly address the question of whether a jury could start with ten other than to comment that such a practice would be a departure 'both from longstanding English and Australian legal prescription'.[107] However, his Honour's reasons for holding s 22(a)(i) of the Jury Act to be valid are also illuminating in this respect.
As indicated above, his Honour acknowledged the inherent erosion of representativeness by reducing the jury from twelve to ten, but held that the erosion in that essential functional attribute was warranted for the purpose of preserving the public confidence in the jury and, thus, preserving the survival of the jury trial. Such a justification would warrant a mechanism for allowing the trial to continue with a jury reduced in number from twelve to ten, but may not justify a jury starting with ten.
In Ah Poh Wai v The Queen,[108] the Western Australian Court of Criminal Appeal upheld the use of 'reserve jurors' pursuant to s 18 of the Juries Act 1957 (WA). The Western Australian system allows up to six reserve jurors to hear the evidence and participate in the trial process. However, reserve jurors do not deliberate with the other jurors unless one or more of the original twelve jurors is unable to continue. Reserve jurors can only replace jurors prior to the time the jury retires for deliberation. If a reserve juror is not called upon to replace a juror at the time the jury retires to consider its verdict, that reserve juror is discharged. Thus, under the system, the verdict is delivered by a panel of twelve jurors.[109] The Court of Criminal Appeal (Malcolm CJ, Pidgeon and Steytler JJ) held that the system of reserve jurors prescribed by s 18 of the Juries Act 1957 (WA) was not incompatible with the essential features of a 'trial ... by jury' in s 80 of the Constitution. An application for special leave to appeal to the High Court from that judgment was refused by a majority of the Court.[110] Announcing the decision of the Court, Dawson J said:
By a majority the Court is not persuaded that the Western Australian Court of Criminal Appeal was in error in reaching the conclusion, which it did, that the participation of reserve jurors did not infringe any requirement of s 80 of the Constitution.[111]
In their joint judgment in Brownlee v The Queen, Gaudron, Gummow and Hayne JJ noted that nothing in their Honours' reasons for judgment called into question under s 80 the use of reserve jurors. On the analysis in each of the judgments, this conclusion must be correct. The availability of additional jurors, in the event that one or more of the original twelve is unable to continue, in no way compromises the essential functional attributes of a trial emphasised in the various judgments. Such a system results in a verdict being given by a full complement of twelve jurors and thus maintains the representativeness of the jury and ensures the observance of the deliberative process. Such a system also minimises the 'needless and accidental termination of many jury trials'[112] and, thus, satisfies Kirby J's concern that the institution should continue to hold public confidence.
The Attorney-General of the Commonwealth sought leave to re-open the decision in Brown v The Queen.[113] As Gleeson CJ and McHugh J state in their judgment, '[h]e accepted that he needed leave'.[114] During the course of the hearing, a majority of the Court refused leave to re-open Brown v The Queen.[115] The premise underlying the refusal of leave to re-open a case is that leave to re-open is required. A question arises as to whether the requirement that leave be obtained is incompatible with the Constitution.
Justice Kirby was the only judge to consider this issue. His Honour was of the view that leave is not required as such a procedure is incompatible with the Constitution.[116] His Honour was echoing similar comments made by Deane J in Evda Nominees Pty Ltd v Victoria.[117] Given the nature of the Constitution as an enduring document, Kirby J was of the view that 'it is imperative to keep the mind open to the possibility that a new context, presenting different needs and circumstances and fresh insights, may convince the Court, in later times and of later composition, that its predecessors had adopted an erroneous view of the Constitution'.[118] His Honour continued:
It is a party's right to advance before this Court any argument that may assist the Court to reach the correct exposition of the meaning of the Constitution. It is incompatible with the constitutional function of the Court to impose on a party a procedural obstacle that might impede that party's submissions to the Court on such a subject.[119]
Justice Kirby's choice of words in restricting the right to a 'party' was deliberate. His Honour was not convinced that the position of the interveners would be the same. However, since the Commonwealth Director of Public Prosecutions adopted the Commonwealth's submissions as to the re-opening of Brown v The Queen, it was not necessary for his Honour to explore the question of an intervener's right further.[120]
If leave to re-open a case is not required, it is unclear why the position would differ depending upon whether the leave is sought by a party or an intervener. If the objective is to reach 'the correct exposition of the meaning of the Constitution', then surely this goal can be facilitated by an intervener in the same way as it can be achieved by a party. This is especially so in light of the important role of the Attorneys-General of the Commonwealth and States in constitutional cases as reflected in s 78A of the Judiciary Act 1903 (Cth).
As indicated, the Attorney-General for the Commonwealth applied for leave to re-open the High Court's decision in Brown v The Queen.[121] A majority of the Court in Brown v The Queen held that a trial by jury could not be waived by an accused. It was argued by the Attorney-General for the Commonwealth that the applicant in Brownlee v The Queen had waived his right to a trial by jury by not objecting to the discharge of the first juror, and by applying to have the second juror discharged.
Because of the way that the Justices (other than Kirby J) resolved the issues, it was unnecessary for their Honours to consider the question of whether the applicant had waived his right to a trial by jury and, thus, it was unnecessary for their Honours to consider whether Brown v The Queen should be overruled. Justice Kirby, however, approached the issues from the other end. In his Honour's view, if a trial by jury could be waived, and if the applicant had in fact waived that right, then it would be unnecessary to consider whether the trial received by the applicant conformed with the constitutional description of a 'trial ... by jury' in s 80.
As a question of fact, his Honour held that the applicant had waived his right to a 'trial ... by jury'.[122] His Honour accepted that the applicant at trial had raised no objection to the discharge of the first juror and had joined in the request that the second juror be discharged. As far as separation of the jury was concerned, his Honour noted that the applicant did not object to that course of action. Thus, his Honour was of the view that a waiver of a right to a 'trial ... by jury' could be effected by an inference from a failure to act. Given that his Honour considered that the 'guarantee' in s 80 is a 'fundamental law',[123] it appears inconsistent with such a view that the right could be waived in the absence of a clear indication by an accused. Indeed, his Honour recognised the possibility that the want of objection by the applicant might have been explained by oversight.[124]
Having concluded that the applicant in fact waived his right, his Honour turned to consider whether such a waiver was constitutionally possible. Thus, his Honour turned to consider the correctness of the Court's decision in Brown v The Queen. His Honour held that the existence of a privilege to waive 'trial ... by jury' is not 'incompatible with the essential characteristics of jury trial or with the purposes for which s 80 of the Constitution provides that mode of trial'.[125] Given that the applicant had, in his Honour's view, waived his right to the constitutionally prescribed 'trial ... by jury', then it was unnecessary for his Honour to consider whether the trial received by the applicant conformed with the constitutional description of a 'trial ... by jury' in s 80. Therefore, strictly, his Honour's comments on those issues were obiter dicta.
Only five Justices of the Court sat to hear Brown v The Queen, and the majority comprised three separate judgments. This is an unsatisfactory precedent for such a central issue to s 80. The framework for the consideration of the compatibility between a law and s 80 has now developed from those adopted by the Justices in Brown v The Queen. As Kirby J has illustrated, there is at least an argument within this new framework that the waiver of s 80 is not incompatible with s 80. To the extent that the institution of a 'trial ... by jury' is intended to be 'an efficient instrument in the administration of justice'[126], the following passage by McHugh J in Cheng v The Queen is pertinent:
Many accused persons would not regard the mandatory requirement of a jury trial as conferring any benefit on them. Those charged with offences likely to arouse public indignation, such as cases involving sexual or other crimes against children, for example, of those accused who have raised mental illness as a defence, often prefer trial by judge to trial by jury when they are able to elect for trial by judge. To some accused, trial by jury is not a boon.[127]
It is hoped that the High Court will accept the opportunity to reconsider Brown v The Queen when that opportunity next arises.
It would appear that the Court has developed a generally accepted framework for the consideration of what constitutes a 'trial ... by jury' for the purposes of s 80 of the Constitution. Such a framework differentiates between essential functional attributes and the means adopted for the achievement of those essential attributes. The task of identifying those functional attributes is undertaken by reference to the purposes for which the institution of jury trial was included in s 80. Whether a current practice or procedure for jury trial is compatible with the constitutional concept of 'trial ... by jury' is an inquiry undertaken in the contemporary context, but it is undertaken by reference to an institution that has enduring functional attributes.
Most of the Justices did not take up the invitation to elucidate a general approach to constitutional interpretation. However, the Court implicitly has recognised that the wider task of constitutional interpretation will depend upon the provision being interpreted. Thus, any attempt to assign a label to that inquiry may unnecessarily 'distract'[128] attention from the task at hand, that is, to ascertain the meaning of the relevant provisions of the Constitution. How the Court approaches that task necessarily must depend on the precise provision being interpreted. Therefore, when interpreting s 80 of the Constitution, it is essential to bear in mind that s 80 takes its place in Chapter III of the Constitution: it is an institution of government included in the Constitution for certain purposes and to achieve certain ends.
* Lecturer, Faculty of Law, Australian National University. The author appeared as counsel for the Commonwealth of Australia at the hearing of Brownlee v The Queen (200[1]) [2001] HCA 36; 75 ALJR 1180 before the High Court. The views expressed in this Comment are those of the author's.
1 [2001] HCA 36; (2001) 75 ALJR 1180.
[2] Hereafter referred to as the Jury Act.
[3] Being a law investing any court of a State with federal jurisdiction: s 77(iii) of the Constitution.
[4] See the judgment of Kirby J in Brownlee v The Queen [2001] HCA 36; (2001) 75 ALJR 1180, 1195-6 for a detailed account of the events leading up to the discharge of the two jurors.
[5] Prior to the jury retiring, the jurors were not confined. They were permitted to separate after each day's hearing – see ibid, 1196 (Kirby J); 1212 (Callinan J).
[6] R v Brownlee (1997) 41 NSWLR 139.
[7] See High Court transcript of proceedings, application for special leave to appeal, 11 February 2000.
[8] See, for example, Brownlee v The Queen [2001] HCA 36; (2001) 75 ALJR 1180, 1184 (Gleeson CJ and McHugh J).
[9] See the discussion by Gaudron, Gummow and Hayne JJ, ibid, 1188. See also Kirby J, ibid, 1197.
[10] Ibid, (Gaudron, Gummow and Hayne JJ). See also ibid, (Kirby J).
[11] Ibid, 1189 (Gaudron, Gummow and Hayne JJ). See also Kirby J, ibid, 1198. Therefore, there was no question of s 68 of the Judiciary Act being invalid.
[12] Ibid, 1186 (Gleeson CJ and McHugh J); 1193 (Gaudron, Gummow and Hayne JJ); 1211 (Kirby J); 1216 (Callinan J).
[13] Ibid, 1185 (Gleeson CJ and McHugh J); 1193-4 (Gaudron, Gummow and Hayne JJ); 1209-10 (Kirby J); 1216 (Callinan J).
[14] Most classically stated in Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (Engineers' case) [1920] HCA 54; (1920) 28 CLR 129, but certainly adopted from the very beginning of the Court - see Tasmania v The Commonwealth and Victoria [1904] HCA 11; (1904) 1 CLR 329, 358-60 (O'Connor J).
[15] Jumbunna Coalmine, No Liability v Victorian Coal Miners' Association (1908) 6 CLR 309, 368.
[16] Leslie Zines, The High Court and the Constitution (4th ed, 1997) 19.
[17] See, for example, Re Wakim; Ex parte McNally (1999) 198 CLR 511; Eastman v The Queen [2000] HCA 29; (2000) 74 ALJR 915; Grain Pool of Western Australia v Commonwealth (2000) 74 ALJR 648.
[18] Eastman v The Queen [2000] HCA 29; (2000) 74 ALJR 915, 939.
[19] Ibid, 940.
[20] See, for example, his Honour's judgments in Grain Pool of Western Australia v The Commonwealth (2000) 74 ALJR 648; Eastman v The Queen [2000] HCA 29; (2000) 74 ALJR 915.
[21] Grain Pool of Western Australia v The Commonwealth (2000) ALJR 648, 670.
[22] Ibid.
[23] Although, if there is indeed a real difference between the approach advocated by McHugh J and that of Kirby J, there have been indications that the other Justices have accepted a more conventional approach as evidenced by the joint judgment in Grain Pool of Western Australia v The Commonwealth (2000) 74 ALJR 648.
[24] [1993] HCA 44; (1993) 177 CLR 541.
[25] Brownlee v The Queen [2001] HCA 36; (2001) 75 ALJR 1180, 1183.
[26] Ibid.
[27] Ibid.
[28] Ibid.
[29] Ibid.
[30] Ibid.
[31] Eastman v The Queen [2000] HCA 29; (2000) 74 ALJR 915, 940.
[32] Brownlee v The Queen [2001] HCA 36; (2001) 75 ALJR 1180, 1203.
[33] Ibid, 1203.
[34] Ibid, 1204.
[35] Ibid.
[36] Ibid.
[37] Ibid, 1207.
[38] There was legislation in Victoria, Queensland, Western Australia and New Zealand which permitted a jury to continue with fewer than twelve jurors – see ibid, 1184-5 (Gleeson CJ and McHugh J); 1192 (Gaudron, Gummow and Hayne JJ); 1206 (Kirby J); 1215 (Callinan J). In fact, prior to federation, even the common law position was not entirely clear – see ibid 1184 (Gleeson CJ and McHugh J); 1192 (Gaudron, Gummow and Hayne JJ); 1215 (Callinan J).
[39] Although at federation jurors could not separate after they had retired for deliberation, the strict common law rule against separation prior to deliberation had been relaxed progressively by 1900 – see ibid, 1185 (Gleeson CJ and McHugh J); 1191-2 (Gaudron, Gummow and Hayne JJ); 1216 (Callinan J).
[40] Ibid, 1192.
[41] Ibid, 1184 (Gleeson CJ and McHugh J); 1190 (Gaudron, Gummow and Hayne JJ); 1207 (Kirby J); 1216 (Callinan J).
[42] Ibid, 1190.
[43] AW Scott, 'Trial by Jury and the Reform of Civil Procedure' (1918) 31 Harvard Law Review 669, 671.
[44] Brownlee v The Queen [2001] HCA 36; (2001) 75 ALJR 1180, 1183 (Gleeson CJ and McHugh J); 1190 (Gaudron, Gummow and Hayne JJ); 1208 (Kirby J).
[45] Ibid, 1190.
[46] Ibid, 1185 (Gleeson CJ and McHugh J); 1191 (Gaudron, Gummow and Hayne JJ); 1209 (Kirby J).
[47] Ibid, 1184 (Gleeson CJ and McHugh J); 1191 (Gaudron, Gummow and Hayne JJ).
[48] Other than Callinan J who did not undertake an extensive jurisprudential analysis.
[49] Brownlee v The Queen [2001] HCA 36; (2001) 75 ALJR 1180, 1183.
[50] Ibid, 1207.
[51] Graeme Hill has noted that there 'may be very little difference, in practice, between McHugh and Kirby JJ's approaches to interpretation' - see '"Originalist" vs "Progressive" Interpretations of the Constitution – Does it Matter?' (2000) 11 Public Law Review 159, 162.
[52] Ibid.
[53] Ibid (emphasis added).
[54] Ibid, 1204.
[55] [1993] HCA 44; (1993) 177 CLR 541, 552.
[56] Cheatle v The Queen [1993] HCA 44; (1993) 177 CLR 541.
[57] Brownlee v The Queen [2001] HCA 36; (2001) 75 ALJR 1180, 1183.
[58] (1997) 41 NSWLR 139, 145-6.
[59] [1970] USSC 150; 399 US 78 (1970).
[60] Ibid, 100.
[61] Brownlee v The Queen [2001] HCA 36; (2001) 75 ALJR 1180, 1185.
[62] Ibid, 1192 quoting from White J in Williams v Florida [1970] USSC 150; 399 US 78, 100 (1970). As their Honours noted, it is an 'instrument in the administration of justice' ibid, 1190 quoting from Ex parte Peterson [1920] USSC 123; (1920) 253 US 300, 309-10 (Brandeis J).
[63] Ibid, 1193. Or, as put by Grove J in the Court below, and approved by their Honours, 'that a jury exercise its function without fear or favour and without undue influence ...' ibid.
[64] Ibid, 1193.
[65] Ibid, 1209.
[66] Which might include guarding against the force of strong personalities on the jury – see ibid.
[67] This would include the objective of ensuring that the jury composition reflects the variety of opinions that exist in the community concerning society, the law and public authority, and minorities within the community – see ibid.
[68] Ibid. His Honour quoted from the Canadian Supreme Court decision in R v Sherratt [1991] 1 SCR 509, 524.
[69] Ibid.
[70] Ibid, 1216.
[71] Ibid.
[72] Ibid, 1186.
[73] Ibid, 1192-3. Such an assessment was undertaken in a contemporary context, in particular, taking into account the greater trust placed in modern jurors 'to heed the directions of the presiding judge' ibid, 1193. Kirby J also noted that strict rules of sequestration would result in circumstances that were not conducive to the proper performance of the jury function ibid, 1210.
[74] For example, parents with young children or persons caring for sick and elderly relatives ibid, 1210.
[75] Brownlee v The Queen [2001] HCA 36; (2001) 75 ALJR 1180, 1185.
[76] Ibid, 1193.
[77] Ibid.
[78] Ibid, 1193-4 adopting the words of Brandeis J in Ex parte Peterson 243 US 300, 309-310 (1920), quoted by Gaudron, Gummow and Hayne JJ at ibid, 1190.
[79] In their Honours' view, this reflected 'not only the increased complexity of the substantive issues to be tried but the expansion of procedural rights favouring the accused' - Brownlee v The Queen [2001] HCA 36; (2001) 75 ALJR 1180, 1193.
[80] [1999] HCA 52; (1999) 199 CLR 99, 106.
[81] Brownlee v The Queen [2001] HCA 36; (2001) 75 ALJR 1180, 1193.
[82] Ibid, 1194.
[83] Ibid, 1208.
[84] Ibid.
[85] Ibid, 1209.
[86] Ibid, 1210.
[87] Ibid, 1216.
[88] See the similar observations made in relation to Grain Pool of Western Australia v The Commonwealth (2000) 74 ALJR 648; see Hill above n 54, 160.
[89] Ibid, 1183.
[90] Ibid.
[91] Cheatle v The Queen [1993] HCA 44; (1993) 177 CLR 541, 560.
[92] See for example the judgment of Gaudron, Gummow and Kirby JJ in Brownlee v The Queen [2001] HCA 36; (2001) 75 ALJR 1180, 1189. To the extent that a reduction could be made with the consent of the accused under s 22(a)(ii), the question of waiver arises. This will depend upon whether the decision in Brown v The Queen [1986] HCA 11; (1986) 160 CLR 171 is overruled by the Court.
[93] Brownlee v The Queen [2001] HCA 36; (2001) 75 ALJR 1180, 1194.
[94] Ibid, 1193.
[95] [1970] USSC 150; 399 US 78 (1970) cited at [2001] HCA 36; (2001) 75 ALJR 1180, 1185.
[96] Their Honours noted that White J's observations applied 'with even greater force' to a system allowing a reduction from twelve to ten – ibid.
[97] Ibid, 1216. His Honour acknowledged that a line had to be drawn, but did not speculate as to where that line might be drawn – ibid.
[98] Ibid, 1210.
[99] Ibid, 1208.
[100] Ibid, 1210.
[101] Ibid, 1188.
[102] Ibid, 1193. See also ibid, 1194.
[103] Ibid, 1193.
[104] Ibid.
[105] [1970] USSC 150; 399 US 78 (1970) cited at [2001] HCA 36; (2001) 75 ALJR 1180, 1185.
[106] Ibid, 1216.
[107] Ibid, 1209.
[109] Section 646 of the Criminal Code (WA) allows a trial judge to reduce the number of jurors from twelve to ten in certain circumstances. However, s 646 does not apply if there are sufficient reserve jurors to have a jury of twelve persons including replacements – see s 18(5) of the Juries Act 1957 (WA).
[110] See High Court transcript of proceedings, application for special leave to appeal, 5 August 1996. The Court comprised Dawson, McHugh and Kirby JJ for the hearing of the special leave application.
[111] Ibid.
[112] Brownlee v The Queen [2001] HCA 36; (2001) 75 ALJR 1180, 1210 (Kirby J).
[113] [1986] HCA 11; (1986) 160 CLR 171.
[114] Brownlee v The Queen [2001] HCA 36; (2001) 75 ALJR 1180, 1186.
[115] Ibid (Gleeson CJ and McHugh J); 1189 (Gaudron, Gummow and Hayne JJ); 1216 (Callinan J); 1199 (Kirby J dissenting).
[116] Ibid, 1199.
[117] [1984] HCA 18; (1984) 154 CLR 311, 316.
[118] Brownlee v The Queen [2001] HCA 36; (2001) 75 ALJR 1180, 1200.
[119] Ibid.
[120] Ibid.
[121] [1986] HCA 11; (1986) 160 CLR 171.
[122] Brownlee v The Queen [2001] HCA 36; (2001) 75 ALJR 1180, 1201.
[123] Ibid, 1194.
[124] Ibid, 1201.
[125] Ibid, 1203.
[126] Ibid, 1194 (Gaudron, Gummow and Hayne JJ).
[127] Cheng v The Queen [2000] HCA 53; (2000) 74 ALJR 1482, 1508.
[128] In other contexts, the High Court has emphasised the need to focus on the task at hand and to avoid unnecessary 'distractions' – John Pfeiffer Pty Ltd v Rogerson [2000] HCA 36; (2000) 74 ALJR 1109, 1114 (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ).
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