Law and Bills Digest Group
Graham Fricke QC is currently Visiting Professor at Deakin
University teaching Federal Constitutional Law. Practising as a
barrister for 20 years, he served as a County Court Judge for 12
years before taking up his present position.
History and Importance of Trial by Jury in a
The Convention Debates
The High Court-a Glimpse of a Broad
The Narrow Approach
A Change of Approach
An Examination of Commonwealth
Change by Referendum
Proposals for Legislative Change
Glossary of Terms
When federal Parliament creates criminal offences, the question
arises as to whether such offences should be tried by judge and
jury, or tried summarily by a magistrate. The framers of the
Australian Constitution inserted section 80, which appears to
confer a right to jury trial.
A difficulty results from the use of the words 'on indictment'
in the opening words of section 80. This has at times resulted in a
narrow construction of the section, for the High Court has said
that it is only when prosecutions are brought 'on indictment' that
the right to jury trial arises; where Parliament has authorised
summary proceedings, and summary proceedings are brought, the right
to jury trial is avoided.
It is contended that there have been three eras of
interpretation of section 80:
- an initial period in which the section was regarded as laying
down a fundamental law of the Commonwealth;
- a much longer period in which a narrow, 'procedural' approach
was taken; and
- the last decade, which reveals a tendency to revert to the
The broad approach, which is necessary if citizens facing
substantial liability to imprisonment are to enjoy a genuine right
to jury trial, was also supported by prominent judges in dissenting
judgments during the second period.
The fact that the narrow approach has been taken makes it
important for federal parliamentarians to be vigilant in
legislating for criminal offences and the mode of trial of such
offences. Where offences are made subject to substantial periods of
imprisonment, the legislation should make it clear that the trials
should take place on indictment. If summary trial is provided for,
the accused will be deprived of an important benefit which some, at
least, of the framers of the Constitution intended the accused to
Many of the sections of the Crimes Act 1914 (Cth) do
not make it clear whether the offences it creates are triable by
jury or summarily. Guidelines are provided by sections 4G, 4H and
4J. Section 4G, for example, provides that federal offences
punishable by imprisonment for a period exceeding 12 months are
indictable offences, but it adds the words 'unless the contrary
intention appears'. This may leave the situation in an unfortunate
state of uncertainty. Other federal legislation authorises summary
proceedings even though substantial terms of imprisonment may be
It is suggested that federal Parliament should enact that the
trial of any federal offence providing for punishment in excess of
one year's imprisonment shall be on indictment. This enactment,
taken in conjunction with section 80 of the Constitution, would
result in an effective guarantee of trial by jury for serious
Arguably Parliamentary Committees should play a greater role in
scrutinising laws to ensure that summary trial is not available for
Stronger protection of a right to trial by jury for serious
offences, even if that right could be waived by the accused, would
facilitate the democratic participation of the community in the
administration of justice. This in turn would strengthen public
confidence in the legitimacy of the Australian criminal justice
Section 80 of the Constitution provides:
The trial on indictment of any offence against any law of the
Commonwealth shall be by jury, and every such trial shall be held
in the State where the offence was committed, and if the offence
was not committed within any State, the trial shall be held at such
place or places as the parliament prescribes.
The section was based on a provision contained in the United
States' Constitution,(1) which in turn rests on the philosophy that
people charged with serious offences are entitled to have their
guilt or innocence determined by the judgement of their peers. The
importance of trial by jury was expressed in passionate terms by
Deane J in his judgment in Kingswell in 1985:
The guarantee of section 80 of the Constitution was not the mere
expression of some casual preference for one form of criminal
trial. It reflected a deep-seated conviction of free men and women
about the way in which justice should be administered in criminal
cases. That conviction finds a solid basis in an understanding of
the history and functioning of the common law as a bulwark against
the tyranny of arbitrary punishment. In the history of this
country, the transition from military panel to civilian jury for
the determination of criminal guilt represented the most important
step in the progress from military control to civilian
The nature of the jury as a body of ordinary citizens called
from the community to try the particular case offers some assurance
that the community as a whole will be more likely to accept a
jury's verdict than it would be to accept the judgment of a judge
or magistrate who might be, or be portrayed as being,
over-responsive to authority or remote from the affairs and
concerns of ordinary people. The random selection of a jury panel,
the empanelment of a jury to try the particular case, the public
anonymity of individual jurors, the ordinary confidentiality of the
jury's deliberative processes, the jury's isolation ... from
external influences and the insistence upon its function of
determining the particular charge according to the evidence combine
... to offer some assurance that the accused will not be judged by
reference to sensational or self-righteous pre-trial publicity or
the passions of the mob.(2)
Deane J's eloquent support for the jury system was expressed in
a dissenting judgment. But he can be a persuasive advocate,(3)and
his dissent in Kingswell seems to mark a change in
approach away from a narrow or 'procedural' view of section 80 of
the Constitution. If we share Deane J's views about the criminal
justice system, it is suggested that we should favour the taking of
steps which would help to ensure that those charged with serious
offences are not deprived of the benefit of trial by jury.
In expressing a preference for jury trial of serious offences,
one must to a large extent rely on value judgements, since
considerations of confidentiality create difficulties for effective
statistical research. The research that has been conducted,
however, does support the conclusion that judges who are regularly
called upon to hear criminal prosecutions without juries become
'case-hardened' and prosecution-minded. For example, jury trials
were suspended in Northern Ireland in 1973 in relation to some
offences, known as 'scheduled' offences. The acquittal rate in
courts trying these offences without juries (so-called 'Diplock'
courts) subsequently declined from 57 per cent in 1973 to 33 per
cent in 1981. By comparison, the acquittal rate in jury
trials-involving other than 'scheduled' offences-increased from 38
per cent to about 60 per cent in Northern Ireland during a similar
The majority of federal prosecutions in Australia take place in
the magistrates' court. Of the 5387 defendants dealt with in
1995-96, approximately 90 per cent (4842) were dealt with
summarily, while approximately 10 per cent (545) were dealt with on
indictment. The majority of the defendants in these cases pleaded
guilty-80 per cent of those dealt with summarily and 64 per cent of
those dealt with on indictment. Thus, of the matters which went to
trial (413), 25 per cent (107) were dealt with by judge and
The Commonwealth Director of Public Prosecutions has formulated
a number of guidelines for determining whether cases in which the
mode of trial is discretionary should be dealt with on indictment
or summarily. These guidelines are set out in Appendix 1.
I have suggested elsewhere that the jury system can help to
defuse conflict during turbulent times,(6) and I have offered as an
Australian example the acquittal of the Eureka rebels, following
the rebellion and massacre. British prosecutions for treason,
sedition, unlawful assembly and the like provide further
illustrations: cases such as those involving William Penn, Thomas
Hardy and John Horne Tooke.
Those who have studied such matters and those who have had
experience of the jury system have generally favoured the system as
one which facilitates the democratic participation of the community
in the administration of justice. Lord Devlin observed that each
jury 'is a little parliament'. He added that the first object of
any tyrant 'would be to make parliament utterly subservient to his
will'; the next would be 'to overthrow or diminish trial by jury'.
He concluded with characteristic eloquence that trial by jury is
more than an instrument of justice and more than one wheel of the
constitution: 'it is the lamp that shows that freedom
In Australia, judges and retired judges have made similar
observations. The former ACT justice Xavier Connor QC has listed
some of the features of the system:
- The twelve jurors chosen at random are likely to represent
community views and values in a way that a single judge does
- Trial by jury is democratic in that the community participates
in a vital way before people accused of serious crime can be
- Juries, because they do not give reasons for their decisions,
can bring the conscience of the community to bear on issues in a
trial in a way that a judge cannot do.
- The community participation in the administration of criminal
justice, by way of jury service, promotes an understanding of the
system and confidence in it in a way that no other system
- Trial by jury is and is seen to be a system better adapted than
any other to preserving the liberty of the subject against
oppression by the State.(8)
Like air and water, trial by jury is best appreciated by those
who have had its benefits withdrawn from them. When the British
parliament provided, in 1787, for a military tribunal in New South
Wales, with a Judge-Advocate presiding over a panel of six military
officers, the citizens soon came to appreciate the superiority of
the jury system. The military tribunal could be manipulated by
Macarthur and others and could not be relied on to be impartial,
especially when military interests were involved. William Wentworth
and others campaigned vigorously for the British system, and
numerous petitions for jury trial were lodged with the authorities.
Eventually, in 1847, that system was introduced into New South
Wales and made applicable to the Port Phillip district.(9) By the
time of federation, the citizens of all Australian colonies were
quite familiar with the benefits of trial by jury in serious
The provisions of the Australian Constitution were formulated in
the course of debates conducted at a series of conventions held
during the last decade of the nineteenth century. The insertion of
the expression 'on indictment' in section 80 has led to what is
described as the 'narrow' approach to interpreting the section. The
effect of that approach is that section 80 does not constitute a
restraint on legislative power. It is, according to that approach,
always open to the legislature to avoid the operation of the
section by providing for the summary disposition of criminal
offences, no matter how serious.
Some commentators have attributed Machiavellian deviousness to
the framers of our Constitution.(10) They have suggested that the
phrase 'on indictment' was inserted in section 80 for the very
purpose of producing what Dixon and Evatt JJ were later to describe
as a 'mockery'.(11) To accept this would be akin to suggesting that
some of the framers drafted the provision on April Fools' Day,
setting out to ensnare the public into the delusion that they had
been accorded a protection which they did not in fact enjoy.
A Tasmanian jurist, Andrew Inglis Clark, composed the first
draft of what was to become section 80 in 1891. Taking as his
precedent Article III, section 2 of the Constitution of the United
States of America,(12) he drew a clause providing that the trial of
'all crimes cognisable by any Court' shall be by jury. Sir Samuel
Griffith altered Inglis Clark's draft to confine the guarantee to
'indictable offences cognisable by any court exercising federal
The matter came up for debate at the Melbourne sitting of the
Convention in 1898. When Wise (NSW) resisted an amendment proposed
by Glyn (SA), on the basis that the clause as it stood was 'a
necessary safeguard to the individual liberty of the subject in
every state', Isaacs (Vic) intervened:
I do not think there is any safeguard at all such as the
honourable and learned member has stated... To my mind, it is a
very proper thing to do [to have a jury]. I think, in our present
state of development, a man is entitled to have a jury in a case;
but it is no fetter on the Federal Parliament, because, when it
creates an offence, it may say it is not to be prosecuted by
indictment, and immediately it does it is not within the protection
of this clause of the Constitution...(13)
The commentators have perhaps been a little unfair to attribute
a Machiavellian intent to Isaacs(14) and some of his colleagues. A
more likely explanation is that Isaacs became petulant when his
warnings were not heeded, and did not, when he became a High Court
justice, forbear from saying 'I told you so'.(15) But it is clear
that he and others perceived the problems.
It is suggested that there have been three eras of
interpretation of section 80:
- an initial period in which a broad approach was espoused.
- a much longer period in which a narrow, 'procedural' approach
- the last decade, which reveals a tendency to revert to the
The first approach is reflected in the decision in R v
Snow.(16) In that case, Snow had been charged with attempting
to trade with the enemy in the early stages of the First World War.
The Trading with the Enemy Act 1914 (Cth) was passed on 23
October 1914, and Snow was charged with offences on specified days
both before and after that date. At the end of the Crown case, his
counsel submitted that, so far as the days preceding that date were
concerned, the legislation was not retrospective, and that, so far
as the days subsequent to that date were concerned, there was no
evidence of any offence fit to be submitted to the jury. The trial
judge agreed with those submissions and directed the jury to return
a verdict of not guilty, which they did.
The Crown sought special leave to appeal to the High Court. By a
majority of four to two, the High Court refused such leave. After
referring to the common law position, that there could be no appeal
from a verdict of acquittal, Griffith CJ asked whether the
Constitution had altered the common law position on trial by jury.
He answered that it had not:
So far from finding any such clear indication in the Australian
Constitution, I find a clear indication of a contrary intention.
Section 80 lays down as a fundamental law of the
Commonwealth that the trial on indictment of any offence
against any of the laws of the Commonwealth shall be by jury... The
history of the law of trial by jury as a British institution ...
is, in my judgment, sufficient to show that this provision ought
prima facie to be construed as an adoption of the institution of
'trial by jury' with all that was connoted by that phrase in
constitutional law and in the common law of England.(17)
The Chief Justice then adverted to the contention that section
80 'relates merely to procedure'. He rejected that argument.
Isaacs J, who described Snow's offence as 'one of unparalleled
gravity in the history of Australia'-adding that 'the crime for
which Carl Lody was shot was mild in comparison'!-delivered a
dissenting judgment. So did Higgins J. But Griffith CJ's views were
supported by three other justices. In the course of their joint
judgment, Gavan Duffy and Rich JJ asked:
Is it to be supposed that the British Parliament, when providing
by section 80 of the Constitution that 'the trial on indictment of
any offence against any law of the Commonwealth shall be by jury'
were leaving to this Court in its appellate jurisdiction the right
to control at its pleasure the verdict of the jury?
Their answer was: 'If so, that section is indeed a 'mockery, a
delusion and a snare'.(18)
During the decade or so following Snow's case, the
composition of the High Court changed significantly. Griffith CJ
and Barton J were replaced by Knox CJ and Starke J. The ascendancy
of Isaacs J-who had done little to conceal his hostility towards
Griffith CJ-was marked by the decision in the Engineers'
case,(19) in which a number of Griffith CJ's earlier decisions were
In 1928, Isaacs J had a further opportunity to reiterate the
views he had expressed on section 80 during the Convention debates,
views which he had also foreshadowed in a High Court case decided
in the same year as R v Snow.(20) Isaacs J restated these
views in R R v Archdall and Roskruge; ex parte Corrigan and
Brown.(21) That case marked a distinct change in the High
Court's approach to section 80.
In the Archdall case, two union leaders were charged
with offences under section 30K of the Crimes Act
1914 (Cth), in that they had hindered the provision of a
lighthouse service provided by the Commonwealth. Section 30K
provided that the maximum penalty for the offence it created was
one year's imprisonment.
The charges were heard summarily by a police magistrate, who
convicted and fined the defendants. They took proceedings in the
High Court to quash the convictions. Their counsel relied on
section 4 of the Acts Interpretation Act 1904 (Cth)-since
repealed-which provided that 'offences against any Act which are
punishable by imprisonment for a period exceeding six months shall,
unless the contrary intention appears in the Act, be indictable
Since section 30K provided for 12 months' imprisonment, it was
argued that the offence was indictable, and should not have been
heard summarily ('the first argument'). Alternatively, counsel
argued that if the Crimes Act 1914 (Cth) did
permit offences under section 30K to be dealt with summarily, it
was in conflict with section 80 of the Constitution ('the second
The case was not a good vehicle for testing an important
constitutional issue. One suspects that there was not much judicial
sympathy for the union leaders, who had declared the relevant ship
'black', and who had each suffered no more than a fine of
£100, together with an order for costs. It could hardly be
described as a serious offence, warranting trial by jury and the
time of the highest court in the land.
The High Court rejected the first argument, holding that the
scheme of the legislative provisions in the Crimes Act
1914 (Cth) revealed a 'contrary intention' for the purposes of
section 4 of the Acts Interpretation Act 1904 (Cth).
Turning to the second argument, the High Court was quite
The suggestion that the Parliament, by reason of section 80 of
the Constitution, could not validly make the offence punishable
summarily has no foundation and its rejection needs no
In dismissing the second argument, Higgins J formulated the
celebrated aphorism: 'if there be an indictment, there must be a
jury; but there is nothing to compel procedure by
As Deane J was to point out later in Kingswell's
case,(24) the judgments in the Archdall case contain no
reasoning at all in favour of the narrow view, let alone any cogent
reasoning. But they reflect a conclusion that prevailed for a
period in excess of 50 years.(25) The 'guarantee' provided by
section 80 could be avoided if the Parliament authorised summary
proceedings for any offence, no matter how serious, and summary
proceedings were taken. As Barwick CJ put it, 'What might have been
thought to be a great constitutional guarantee has been discovered
to be a mere procedural provision.'(26)
But powerful and reasoned dissents surfaced from time to time.
In Lowenstein's case, Dixon and Evatt JJ highlighted the
fatuity of the notion that the framers solemnly inserted in a
constitution a provision of merely procedural significance. After
referring to Higgins J's statement in the Archdall case,
It is a queer intention to ascribe to a constitution; for it
supposes that the concern of the framers of the provision was not
to ensure that no one should be held guilty of a serious offence
against the laws of the Commonwealth except by the verdict of a
jury, but to prevent a procedural solecism, namely, the use of
indictment in cases where the legislature might think fit to
authorise the court itself to pass upon the guilt or innocence of
the prisoner. There is high authority for the proposition that 'the
Constitution is not to be mocked.' A cynic might, perhaps, suggest
the possibility that section 80 was drafted in mockery; that its
language was carefully chosen so that the guarantee it appeared on
the surface to give should be in truth illusory. No court could
countenance such a suggestion, and, if this explanation is rejected
and an intention to produce some real operative effect is conceded
to the section, then to say that its application can always be
avoided by authorising the substitution of some other form of
charge for an indictment seems but to mock at the
In the Li Chia Hsing case, Murphy J endorsed these
views of Dixon and Evatt JJ, and added that in his opinion section
80 'contains a guarantee of a fundamental right to trial by jury in
criminal cases (at least in serious ones).'(28)
To these dissenting views, one may add the sustained attack on
the narrow, procedural approach which Deane J delivered in
Kingswell's case. As Xavier Connor has observed:
If, by means of some judicial time machine, Dixon, Evatt, Murphy
and Deane had ever sat together in a case involving section 80,
they would not only have constituted a powerful High Court quartet,
they would also have constituted the majority in that particular
A number of things should be said about the narrow approach. In
the first place, as Deane J has pointed out, it was not the product
of distinguished or cogent reasoning. The contrary arguments were
simply rejected in a cavalier fashion until the point was reached
when it was said that the matter was no longer open to argument.
The dissenting judgments contained much more in the way of reasoned
and logical argument.
But-assuming they were not being Machiavellian-greater blame for
the narrow approach is attributable to the framers of the
Constitution. As Latham CJ observed in the Lowenstein
case, section 80 'could easily have been better expressed if it was
intended that it should have the effect of preventing or limiting
the possibility of the Commonwealth Parliament providing for the
summary trial of all, or any particular offences.'(30) For example,
the framers could have limited the guarantee to 'serious offences'
and defined such offences as those punishable by imprisonment for a
period in excess of, say, one year.
The next observation is that the matter has not really been
tested by a case in which someone facing a long term of
imprisonment has been denied the right to trial by jury. There has
been, as Dawson J has pointed out, 'nothing in the Australian
experience so far which would put the limits of this [narrow] view
to any severe test.'(31) That is to say, it is difficult to find
'any instance in a law of the Commonwealth of obvious or deliberate
disregard for the distinction [between serious and less serious
offences] in order to avoid trial by jury.'(32)
A most troubling instance, however, is the case of Zarb v
Kennedy.(33) During the war in Vietnam, when the community was
divided about Australia's involvement in the conflict, Zarb was
charged with failure to comply with a notice under the National
Service Act 1951-1968 (Cth) calling him up for military
service. The legislation, although it provided for two years'
imprisonment, authorised summary proceedings for such charges. Zarb
claimed to have held an honest belief that he was an exempt person,
based on an erroneous notice purporting to exempt him, which a
clerk of courts had sent to him, and the advice of counsel to the
effect that he was exempt. The magistrate rejected Zarb's claim,
and on Zarb's refusal to undertake to render service, sentenced him
to two years' imprisonment.
The High Court, led by Barwick CJ, rejected the constitutional
argument based on section 80, which the Chief Justice said had been
'long settled' and 'ought not now to be reopened.'
The appellant was obviously not regarded with sympathy by the
justices, some of whom had rendered distinguished military service
in their youth. Windeyer J commented that 'A man who under the Act
is obliged to serve cannot, with impunity, refuse to do so, leaving
the duty to others who are law-abiding and dutiful.'(34)
The issues raised in this case, during a turbulent period of
Australian history, may have been better resolved by a jury. The
entitlement of a young man facing two years' imprisonment to invoke
the judgment of his peers-rather than that of a conservative,
unelected judicial officer-should not have been dismissed without
serious consideration of the argument. Even if the view is taken
that a jury would have been bound to convict, that would have been
a more satisfactory process, and a verdict reached using this
process would have generated more widespread acceptance.
The jury system has not escaped criticism. Jury trials can be
expensive and time-consuming, and some have suggested that they are
inappropriate in complex fraud cases. Some accused persons may
prefer to have their matters dealt with by a judge alone, and there
is much to be said for the right to waive trial by jury. What is
contended is that persons facing long terms of imprisonment should
have the option of trial by jury, even if that option is open to
Kingswell's case involved a prosecution for conspiring
to import narcotic drugs.(35) The applicant, who had been sentenced
in the New South Wales Court of Criminal Appeal to eighteen years'
imprisonment, had been charged on indictment and had been tried by
a judge and jury.
The Customs Act 1901 (Cth) provided for a wide variety
of penalties for this offence, ranging from two years' imprisonment
to life imprisonment. The determination of some of the factual
elements affecting the maximum penalty-such as the quantity of the
drugs and the existence of prior convictions-had been committed to
the trial judge.
The majority of the High Court rejected the argument that this
way of determining the penalties for the offence offended section
80. Brennan and Deane JJ, however, dissented. Brennan J considered
that the complex legislation created several distinct offences. He
construed section 80 as 'prohibiting the Parliament from
withdrawing issues of fact on which liability to a criminal penalty
depended from a jury's determination when any offence against a law
of the Commonwealth is tried on indictment.'(36) In Deane J's
vigorous dissent, he concluded that section 80 applied to 'serious'
federal offences, which depended on whether they were punishable by
a maximum term of imprisonment of more than one year.(37)
Within four months of Kingswell's case, the High Court
handed down its decision in Brown v R.(38) In that case,
the appellant had been charged in South Australia with an offence
against section 233B(1)(ca) of the Customs Act
1901 (Cth), which prohibited possession of a drug
reasonably suspected of having been imported into Australia. The
charging document was called an 'information', but it was common
ground that the trial was on indictment.(39) Brown sought to elect
under section 7(1) of the Juries Act 1927 (SA) to be tried
by judge alone. The trial judge ruled that section 80 precluded
such an election and the matter proceeded before a judge and jury.
When Brown was convicted, he appealed. The case thus raised the
question of whether the right to trial by jury under section 80
could be waived.
The majority of the High Court held that section 80 could not be
waived. In doing so they revealed a quite different approach from
the previous narrow construction of the section. According to
Trial by jury is not only the historical mode of trial for
criminal cases prosecuted on indictment; it is the chief guardian
of liberty under the law and the community's guarantee of sound
administration of criminal justice... Section 80 of the
Constitution entrenches the jury as an essential constituent of any
court exercising jurisdiction to try a person charged on indictment
with a federal offence. That section is not concerned with a mere
matter of procedure but with the constitution or organisation of
any court exercising that jurisdiction.(40)
Deane J reiterated some of the views he had expressed in
Kingswell, and concluded that section 80 commanded trial
by jury, rather than conferring a privilege that could be
Dawson J considered that it was overstating the position to
say-as had Barwick CJ in Spratt v Hermes-that section 80
has been reduced to a procedural provision, 'or that it does not
yet lay down, in the words of Griffith CJ in R v Snow, "a
fundamental law of the Commonwealth'''.(41) Following his
observation to the effect that section 80 had not been exploited by
the Commonwealth,(42) Dawson J added that it did not matter whether
this was due to 'the presence of section 80 itself' or the fact
that 'our criminal procedures and the occasions appropriate for
their use are so deeply ingrained that government may abuse them
only at their peril'.(43)
Whether or not one takes the view that the denial of a right of
waiver 'is to imprison a man in his privileges and call it the
Constitution',(44) the decision in Brown's case reflects a
broader and more substantive approach to section 80. Even the
minority, who considered that the right to jury trial could be
waived, shared that approach.(45)
The most recent analysis of section 80 occurred in Cheatle v
R.(46) The Cheatles had been charged in South Australia with
conspiracy to defraud the Commonwealth. Section 57 (1) of the
Juries Act 1927 (SA) provided for a majority
verdict by ten or eleven jurors. The Cheatles were convicted based
on a majority verdict. They appealed and argued that unanimity was
an indispensable feature of trial by jury, according to
long-established notions which continued to apply up to the time
the Constitution was enacted. The High Court unanimously accepted
the appellants' argument. Once again, the decision reveals a
broader approach to section 80.
Both Brown and Cheatle, however, were cases
which were brought on indictment. They therefore do not directly
conflict with the Archdall line of authority. Moreover,
legal precedents can only be authoritative within the limits
generated by their underlying factual material. Pronouncements made
in cases where the offences were plainly not serious cannot be
binding on courts which have to determine whether offences carrying
substantial periods of incarceration must be dealt with by
Section 4G of the Crimes Act 1914 (Cth) provides:
Offences against a law of the Commonwealth punishable by
imprisonment for a period exceeding 12 months are indictable
offences, unless the contrary intention appears.
Section 4H provides, by contrast, that Commonwealth offences not
punishable by imprisonment or punishable by imprisonment for a
period not exceeding 12 months are summary offences, unless the
contrary intention appears.
Section 4J deals with the hybrid category of indictable offences
that may be tried summarily. With some exceptions, it provides that
indictable federal offences punishable by imprisonment for a period
not exceeding 10 years may (unless the contrary intention appears)
be heard summarily 'with the consent of the prosecutor and the
The Commonwealth Parliament lacks the power to legislate
generally on the subject of the criminal law. It nonetheless has
enacted a good deal of legislation creating criminal offences,
particularly in relation to the importation of drugs and in
relation to social security fraud. The major substantive offences
in the Crimes Act 1914 (Cth) are contained in:
- Part II (treason and other offences against the
- Part IIA (protection of the Constitution and of public and
- Part III (offences relating to the administration of
- Part III A (child sex tourism)
- Part IV (piracy)
- Part V (forgery)
- Part VI (offences by and against public officers)
- Part VI A (offences relating to computers)
- Part VII (espionage and official secrets)
- Part VII A (offences relating to postal services)
- Part VII B (offences relating to telecommunications
Turning to the details of this legislation, three categories of
offences may be identified:
- The first category of offences provide that any person who
engages in a particular activity, usually with a particular
intention, 'shall be guilty of an indictable offence'. These
offences go on to provide for a maximum penalty. For example,
section 24C, dealing with engaging in seditious enterprises:
'Penalty: Imprisonment for 3 years'.
- The second category of offences follow a similar form, but use
the phrase 'shall be guilty of an offence', omitting the word
'indictable'. For example, section 29A (false pretences) where the
maximum penalty prescribed is five years' imprisonment.
- The third category of offences involves prohibitions which do
not use the word 'offence' at all, but which provide for a certain
penalty. For example, section 85G:
(1) A person shall not forge a postage stamp.
Penalty: Imprisonment for 10 years.
The sections of the Crimes Act 1914 (Cth) that fall
within each of these three categories are set out in Appendix
The three different approaches are curious. In some sections
falling within the first category, which plainly create indictable
offences, the legislation provides for a maximum of 2 years'
imprisonment (for example, sections 27 (2) and 83). In other
sections falling within the second category, where the word
'offence' (without any adjectival qualification) is used, the
section provides for imprisonment for 10 years (for example,
There is little difficulty about the first category. The
offences these sections create are clearly indictable offences
which attract the operation of section 80 of the Constitution. If
summary proceedings were brought in respect of such offences, the
defendants could insist on trial by jury.(47)
Presumably in the case of sections in the second category which
provide for imprisonment for periods exceeding twelve months, the
combined effect of section 4G and each of those sections is to make
the offences indictable. It may be arguable, however, that the
difference in the language used in the first and second categories
is significant and reflects a 'contrary intention' within section
4G. The argument would rely on the first part of the decision in
Archdall's case, dealing with the question of statutory
construction, where the appellants' argument (the first argument)
was rejected.(48) The court discerned a 'contrary intention' from
the pattern of provisions in the Crimes Act 1914
(Cth), in particular section 12. In that case, however, the
predecessor to section 4G was contained in a different Act (the
Acts Interpretation Act 1904 (Cth)).
Even though this argument is tenuous, it is unfortunate that the
matter should be attended by any uncertainty. Some of the offences
falling within the second category are quite serious offences,
punishable by up to ten years' imprisonment.
There seems to be little doubt that sections falling within the
third category create indictable offences whenever they provide for
punishment in excess of 12 months imprisonment. Section 50CD
expressly contemplates jury trial in child sex tourism
There is one variation from the norm in the pattern of sections
falling within the first category. Sections 24C and 24D create the
offences of engaging in seditious enterprises and publishing
seditious words. They state that an offender 'shall be guilty of an
indictable offence', and go on to provide for a penalty of 3 years'
imprisonment. But section 24E (1) provides that an offence under
section 24C or section 24D shall be punishable either on indictment
or summarily (in the latter case with the consent of the
Attorney-General). Section 24E(2) gives the defendant who has been
prosecuted summarily the right to elect 'immediately after
pleading' to be tried on indictment.
Turning to other legislation, there are instances of offences
carrying substantial liability to imprisonment which nonetheless
may be tried summarily. Section 232A of the Customs Act
1901 (Cth), for example, creates the offences of rescuing
goods which have been seized, destroying goods or documents to
prevent their seizure and assaulting officers in the execution of
their duty. It provides that an offender shall be liable upon
summary conviction to a fine not exceeding $500 or to
imprisonment for any period not exceeding two years. Plainly this
section evinces a 'contrary intention' for the purposes of section
4G of the Crimes Act.
It would require boldness and perhaps lack of realism to
recommend the expensive resort to section 128 of the Constitution
to amend and clarify section 80. Of the 42 proposals to change the
Constitution that to date have been submitted to referendum, only
eight have surmounted the difficult hurdles presented by section
Indeed, as recently as 1988, an attempt to clarify and widen the
operation of section 80 failed miserably. The overall national
percentage of voters in favour of this proposal (in the
Constitutional Amendment (Rights and Freedoms) Bill 1988)
was only 30.33. The highest percentage in favour in any Australian
State was that in Victoria: 32.76.
Two explanations for this abysmal result can be offered. First,
the proposal did not enjoy bipartisan support,(50) which seems to
be a sine qua non for successful referendums. Second, the
proposal was complex and it lumped together issues of trial by
jury, acquisition of property and freedom of religion. The latter
aspect aroused the suspicion of church interests who were concerned
about funding of education, and the proposal proved to be quite
contentious during the campaign. The proposal:
... was the surprise in the package. Far from being a source of
good public relations for the government, the attempt to extend the
sphere of constitutionally guaranteed rights proved to be highly
With some diffidence, then, I suggest that if bipartisan support
could be obtained, a more modest proposal could be taken to
referendum. The following italicised words could be inserted into
The trial on indictment of any offence against any law of the
Commonwealth punishable by more than twelve months'
imprisonment shall be by jury...
It is a pity that some such formula was not adopted by the
framers of the Constitution.
If the proposal for constitutional amendment is not acceptable,
there is still scope for improvement by legislative change. Xavier
Connor has suggested that the Commonwealth Parliament could rectify
the situation by enacting that the trial of any offence against any
law of the Commonwealth providing for punishment in excess of one
year's imprisonment shall be on indictment.(52) Such a provision,
combined with section 80 of the Constitution, would ensure the
entitlement of persons charged with serious offences to trial by
The simple removal of the phrase 'unless the contrary intention
appears' from section 4G of the Crimes Act 1914 (Cth) also
would effect a considerable improvement. It would avoid arguments
of the sort raised in the Archdall case (the first
argument).(53) It would ensure that persons such as Zarb(54)-or
anyone charged with, for example, rescuing goods from custody,
under s. 232A of the Customs Act 1901(Cth)-receive an
entitlement to trial by jury when they face a substantial term of
imprisonment. It would eliminate any doubts about persons facing
ten years' imprisonment being entitled to jury trial.
Such an amendment would still leave it open to magistrates'
courts to deal with the large volume of summary offences which they
need to process in the interests of efficiency and economy, for
offences punishable by up to twelve months' imprisonment. It would
also leave intact the scheme by which indictable offences can be
tried summarily with the consent of the parties, under section 4J
of the Crimes Act 1914 (Cth)-subject, of course, to any
successful challenge to section 4J based on Brown's
But the alternative formulation proposed by Xavier Connor
('shall be on indictment' instead of 'are indictable offences')
would have the advantage of clarity, for it would mesh in with the
language of section 80.
- See Appendix 2.
- Kingswell v R (1985) 159 CLR 264 at 298-302 per Deane
- His dissenting views in Duke v R (1989) 83 ALR 650 and
Carr v R (1988) 165 CLR 314 have since become accepted:
see McKinney v R (1991) 171 CLR 468.
- Findlay and P. Duff (eds), The Jury under Attack,
Sydney, Butterworths, 1988: 178.
- Commonwealth Director of Public Prosecutions Annual Report
1995-96, chapter 8.
- In an article 'The Eureka Trials', Australian Law
Journal 71 (1997): 59.
- Devlin, Trial by Jury, London, Stevens & Son,
- Connor, 'Trial by Jury-Can it survive?' Law Institute
Journal 61 (1987): 818.
- See D. Neal, The Rule of Law in a Penal Colony,
Oakleigh, Vic., Cambridge University Press, 1991.
- For example, C. Pannam, 'Trial by Jury and Section 80 of the
Australian Constitution', (1968) 6 Sydney LR 1 at 6; cf.
H. Charlesworth, 'Individual Rights and the Australian High Court',
(1986) 4 Law in Context 53 at 54.
- See text below at n. 28.
- See Appendix 2.
- Convention Debates, Melbourne, 1898, vol. 1: 352. (Higgins had
said that Wise's comments would have been 'mere clap trap' in the
mouth of anyone else; O'Connor said that the Parliament could be
trusted not to increase the list of summary offences; Isaacs
reiterated his warning when Barton successfully moved to amend the
clause by substituting 'on indictment of any offence' for 'of all
indictable offences'-to preserve summary jurisdiction for contempt
proceedings: Convention Debates, Melbourne, 1898, vol. 2:
- Above, n. 11.
- The same process of self-fulfilling prophecy occurred in
relation to section 92 guaranteeing freedom of interstate trade and
commerce: Isaacs warned the delegates that the provision was too
vague and would cause problems.
- CLR 315.
- ibid. at 323 (emphasis added).
- ibid. at 365.
- Amalgamated Society of Engineers v Adelaide Steamship Co
Ltd (1920) 28 CLR 129.
- R v Bernasconi (1915) 19 CLR 629 at 637.
- CLR 128.
- ibid. at 136.
- ibid. at 139-140.
- CLR at 312.
- R v Federal Court of Bankruptcy; ex p. Lowenstein
(1938) 59 CLR 556; Spratt v Hermes (1965) 114 CLR 226;
Zarb v Kennedy (1968) 121 CLR 283; Li Chia Hsing v
Rankin (1978) 141 CLR 182.
- Spratt v Hermes (1965) 114 CLR 226 at 244.
- CLR 556 at 581-2.
- 141 CLR 182 at 198. Cf Beckwith v R (1976) 135 CLR 569
at 585; Yager v R (1977) 139 CLR 28 at 52; Hammond v
Commonwealth (1982) 152 CLR 188 at 201.
- Neal, op.cit.: 819.
- 59 CLR 556 CLR at 570.
- Brown's case, 160 CLR at 215.
- 121 CLR 283.
- ibid. at 305. It is not intended to suggest that juries are
invariably correct or that they have no defects; rather that they
are more likely to infuse current community values into their
verdicts, and are more likely to be perceived by the accused and
society as fair. Research into this issue is rare; see M. Findlay
and P. Duff, op. cit., chapter 2 and pp. 103, 178, 184.
- 159 CLR 264.
- ibid., at 294.
- See above, n. 3.
- 160 CLR 171.
- ibid. at 194.
- ibid. at 197.
- ibid. at 215.
- See above, nn. 32 and 33.
- CLR at 215-6.
- To use the colourful language of Frankfurter J in Adams v
US (1942) 317 US 269 at 280.
- For example, see 160 CLR at 179 per Gibbs CJ.
- 177 CLR 541.
- Some offences in this category are punishable by less than 10
years' imprisonment (e.g. sections , 83). On the face of it, they
fall within section 4J, so as to be triable summarily, with the nt
of the prosecutor and the defendant. It is, however, arguable that
section 4J is nstitutional, following Brown's case.
- See above, nn. 22 and 23.
- There is, however, no section in this part which expressly
provides for venue in such cases. mably the matter is covered by
the provisions of the Judiciary Act.
- See B. Galligan and J. Nethercote (eds), The Constitutional
Commission and the 1988 endum, Canberra, Centre for Research
on Federal Financial Relations and Royal Australian ute of Public
Administration (ACT Division), 1989: chapter 10.
- ibid. at 112.
- Neal, op. cit.: 819.
- See above, n. 22 and following.
- See above, n. 34.
Excerpt from Commonwealth Director of Public Prosecutions'
Prosecution Policy of the Commonwealth, Guidelines for the making
of decisions in the prosecution process:
Mode of trial
5.9 Where an indictable offence can be determined by a court of
summary jurisdiction the prosecution plays a major role in the
decision as to the mode of trial; indeed, under some Acts the
request or the consent of the prosecution is a pre-condition to
5.10 In determining whether or not a case is appropriate for
trial on indictment regard should be had to:
(a) the nature of the case, and whether the circumstances make
the alleged offence one of a serious character;
(b) any implied legislative preference for a particular mode of
(c) the adequacy of sentencing options if the case were
(d) any delay, cost or adverse effect upon witnesses likely to
be occasioned by proceedings on indictment;
(e) in situations where a particular type of criminal activity
is widespread, the desirability of a speedy resolution of some
prosecutions by proceeding summarily in order to deter similar
(f) the greater publicity , and accordingly the greater
deterrent effect, of a conviction obtained on indictment;
as well as such of the criteria relevant to the decision whether
to prosecute as appear to be significant.
5.11 The prosecution's attitude on the question of mode of trial
should be made and communicated to the defendant and the court at
the earliest possible stage.
Article III, section 2 of the Constitution of the United States
The Trial of all Crimes, except in Cases of Impeachment, shall
be by Jury; and such Trial shall be held in the State where the
said Crimes shall have been committed; but when not committed
within any State, the Trial shall be at such Place or Places as the
Congress may by law have directed.
Sections of the Crimes Act 1914 (Cth) that fall within
the first category:
24, 24AA, 24AB, 24C, 24D, 25, 26, 27, 29D(all in partII), 32,
33, 35, 36A, 37, 41, 42, 46(all in part III), 65(1), 66, 67, 69(all
in part V), 72(part VI), 78, 79(2) and (5), 83, 83A(all in part
Sections falling within the second category:
28, 29, 29A, 29B, 29C, 30 (all in part II), 30B, 30C, 30D, 30F,
30FC, 30K (all in part IIA), 34, 36, 38, 39, 40, 43, 44, 45, 47,
47A, 47B, 47C, 48, 49, 50 (all in part III), 68 (part V), 70, 71,
73, 73A, 74, 75 (all in part VI), 76B, 76C, 76D, 76E (all in part
VIA), 79(3) (4) and (6), 81 (all in part VII).
Sections falling within the third category:
50BA, 50BB, 50BC, 50BD, 50DA, 50DB (all in part IIIA), 53 (part
IV), 76 (part VI), 85G, 85H, 85J, 85K, 85L, 85M, 85N, 85P, 85Q,
85R, 85S, 85T, 85U, 85V, 85W, 85Y (all in part VIIA), 85ZD, 85ZE,
85ZF, 85ZG, 85ZH, 85ZJ, 85ZK, 85ZKA, 85ZKB (all in part VIIB).
- 'Criminal proceedings'
- are prosecutions for crimes (or offences) brought by the State
(or the Crown) for the purpose of punishment; they are to be
distinguished from civil proceedings which are brought by
individuals for the purpose of compensation.
- 'Indictable offences'
- are serious offences that are or may be tried before a judge
and jury. This was the only mode of trial at common law.(1)
- is a written accusation of a crime, or the formal initiating
document setting out the charge or charges. (In Victoria, such a
document is called a 'Presentment').
- 'Summary offences'
- are offences that are heard by a magistrate (or sometimes by a
judge) without a jury. They are heard in a summary fashion, in that
they are not preceded by committal proceedings (as are indictable
- 'Indictable offences triable summarily'
- are serious offences normally heard by a judge and jury, but
which may, with the consent of the parties, be heard by a
- (Brown v R, (1986) 160 CLR 171 at 211 per Dawson J.
His Honour added that summary proceedings required authorisation by
statute except in the case of contempt.