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Trial by Jury
Graham Fricke
Law and Bills Digest Group
The author
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.
Contents
Major Issues
Introduction
History and Importance of Trial by Jury in a Democratic
Society
The Convention Debates
The High Court-a Glimpse of a Broad Approach
The Narrow Approach
A Change of Approach
An Examination of Commonwealth Legislation.
Change by Referendum
Proposals for Legislative Change
Endnotes
Appendix 1
Appendix 2
Appendix 3
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 broad approach.
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 enjoy.
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 imposed.
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 offences.
Arguably Parliamentary Committees should play a greater role in scrutinising
laws to ensure that summary trial is not available for serious offences.
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 system.
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
self-government....
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
period.(4)
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 jury.(5)
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 lives'.(7)
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 not.
- Trial by jury is democratic in that the community participates in
a vital way before people accused of serious crime can be convicted.
- 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 does.
- 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 criminal cases.
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 jurisdiction'.
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 was
taken.
- the last decade, which reveals a tendency to revert to the broad approach.
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 overruled.
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
offences.'
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 argument').
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 perfunctory:
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 exposition.(22)
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 indictment.'(23)
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, they observed:
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
provision...(27)
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 case.(29)
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 waiver.
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 Brennan J:
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 waived.
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 juries.
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 defendant'.
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 government)
- Part IIA (protection of the Constitution and of public and other services)
- Part III (offences relating to the administration of justice)
- 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 services).
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 3.
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, section
29).
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 cases.(49)
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 128.
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 controversial.(51)
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 section 80:
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 jury.
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
case.
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 J.
- 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, 1978: 164.
- 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: 1895.)
- 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.
- ibid.
- 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 summary disposition.
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 trial;
(c) the adequacy of sentencing options if the case were determined
summarily;
(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 breaches;
(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 of America:
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 VII).
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)
- 'Indictment'
- 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 offences).
- '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 magistrate.
- (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.
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