FRENCH CJ.
Introduction
The final and paramount purpose of the exercise of federal judicial power is "to do justice". Sir Isaac Isaacs said so in typically emphatic language in 1923 and added "[a]ll other considerations are means to that end. They are ancillary principles and rules." The language may have been emphatic but it was not extravagant. It was quoted with approval by six Justices of this Court in 2011 in Hogan v Hinch.
The purpose of the exercise of federal judicial power in relation to the trial of charges for offences against laws of the Commonwealth is no less. Justice requires a fair trial according to law. Trial by jury is a time-honoured means of fulfilling that purpose. It has the inestimable advantage of involving the wider community in the judicial process. It was appropriately described by Alexis de Tocqueville as "a judicial, and as a political institution". In some cases, however, justice may be better served by a trial before a judge alone than by a trial before a judge and jury. That reality is recognised in the laws of Australian States and Territories, which allow courts to try some offences by judge alone which would ordinarily be tried by judge and jury.
This case concerns the interpretation of s 80 of the Constitution and, in particular, whether it prevents the Commonwealth Parliament from enacting a law to allow an accused person, charged on indictment with an offence against a law of the Commonwealth, to choose trial by judge alone where the prosecutor agrees or the court considers it to be in the interests of justice. The interpretive issue must be approached by reference to the text and context of s 80 and its purposes, including the final and paramount purpose of doing 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."
Section 68 of the Judiciary Act 1903 (Cth), which confers federal jurisdiction on State and Territory courts to try offences against laws of the Commonwealth, applies the laws of the State or Territory respecting the procedures for trials on indictment, subject to s 80 of the Constitution. The particular question before the Court in this Cause Removed, heard on 10 February 2016, was whether a State law authorising a court to order trial by judge alone was incapable of being applied by s 68 to a prosecution for an offence against a law of the Commonwealth.
The State law the applicability of which was in issue is s 132 of the Criminal Procedure Act 1986 (NSW) ("the CPA"). It empowers the court, in trials for offences against the laws of the State, to make a trial by judge order where, as in the present case, the accused applies for such an order and the prosecutor agrees or the court considers it in the interests of justice to so order. However, the availability of the power conferred by s 132, when the accused is charged on indictment with a Commonwealth offence, depends upon whether s 80 of the Constitution precludes its application by s 68 of the Judiciary Act as a matter of federal law. That is the question which the applicant, Hamdi Alqudsi, who has been charged on indictment with offences against a law of the Commonwealth, put to this Court in this Cause Removed. The same constitutional question would arise if similar provision for an order for trial by judge alone were made by a Commonwealth law. If the Commonwealth Parliament could not enact such a law directly applicable to Commonwealth offences charged on indictment, then s 68 of the Judiciary Act could not do indirectly what could not be done directly.
The reasoning of this Court in Brown v The Queen stands against the proposition that the Commonwealth can so legislate and therefore stands against the proposition that s 68 of the Judiciary Act could pick up and apply in federal jurisdiction such a law enacted by a State Parliament. It was argued on behalf of the applicant that the decision in Brown should be distinguished and that if it could not be distinguished, it should be reconsidered.
At the conclusion of oral argument on 10 February 2016, the Court announced that at least a majority of the Court was of the opinion that the question should be answered "yes" and that the applicant's motion for a trial by judge alone should be dismissed. Orders were made accordingly, with reasons to be published at a later date. I took a different view from that of the majority. In my opinion the reasoning of the majority in Brown should not be followed and the question in the Cause Removed should be answered "no".
The procedural background
The applicant stood charged in the Supreme Court of New South Wales on an indictment dated 7 May 2015 with seven offences, allegedly committed in New South Wales, contrary to s 7(1)(e) of the Crimes (Foreign Incursions and Recruitment) Act 1978 (Cth) ("the Foreign Incursions Act"). Section 7(1)(e) provided that:
"A person shall not, whether within or outside Australia:
...
(e) give money or goods to, or perform services for, any other person or any body or association of persons with the intention of supporting or promoting the commission of an offence against section 6".
The penalty is imprisonment for 10 years. Section 6 of the Foreign Incursions Act prohibited engagement in hostile activity in a foreign State and entry into a foreign State with intent to engage in such activity. Section 9A(1) provided that, subject to s 9A(2), a prosecution for an offence against that Act shall be on indictment. Section 9A(2), which concerned disposition after a plea of guilty, and s 9A(3), which was definitional, are not material for present purposes. It may be accepted therefore that, by force of s 9A, the trial of the applicant, whether by jury or by judge alone, was to be a trial on indictment.
The trial was listed to commence on 1 February 2016 before a judge and a jury in the Supreme Court. On 25 November 2015, the applicant filed a notice of motion in that Court for an order for a trial by judge alone, relying upon s 132 of the CPA, as applied by s 68 of the Judiciary Act. Section 132 relevantly provides:
"(1) An accused person or the prosecutor in criminal proceedings in the Supreme Court or District Court may apply to the court for an order that the accused person be tried by a Judge alone (a trial by judge order).
(2) The court must make a trial by judge order if both the accused person and the prosecutor agree to the accused person being tried by a Judge alone.
(3) If the accused person does not agree to being tried by a Judge alone, the court must not make a trial by judge order.
(4) If the prosecutor does not agree to the accused person being tried by a Judge alone, the court may make a trial by judge order if it considers it is in the interests of justice to do so."
The section authorises the court to refuse to make an order if the trial involves the application of objective community standards such as reasonableness, negligence, indecency, obscenity or dangerousness. It requires the accused person to have sought and received advice in relation to the effect of a trial by judge order from an Australian legal practitioner. The court also has a general authority to make a trial by judge order despite any other provision of the section if it is of the opinion that there is a substantial risk of interference with jurors within the meaning of Div 3 of Pt 7 of the Crimes Act 1900 (NSW) and that the risk may not reasonably be mitigated by other means. By operation of s 133 a judge sitting alone pursuant to a trial by judge order under s 132 "may make any finding that could have been made by a jury on the question of the guilt of the accused person." Such a finding would have "for all purposes, the same effect as a verdict of a jury." If no trial by judge order were sought or made, then pursuant to s 130(3)(b), the trial would proceed with the re-arraignment of the accused at the empanelment of the jury.
By an order of this Court made on 15 December 2015 part of the cause in the criminal proceeding pending in the Supreme Court, being the notice of motion for a trial by judge order, was removed into this Court. Directions were made for a case to be stated for the consideration of a Full Court pursuant to s 18 of the Judiciary Act. The trial was adjourned to a callover on 17 February 2016 by reason of the orders made on 15 December 2015.
The question stated for the consideration of the Full Court was:
"Are ss 132(1) to (6) of the Criminal Procedure Act 1986 (NSW) incapable of being applied to the Applicant's trial by s 68 of the Judiciary Act 1903 (Cth) because their application would be inconsistent with s 80 of the Constitution?"
Section 80 - historical background
The drafting history of s 80 of the Constitution may be set out in brief compass. The draft Constitution prepared for the 1891 National Australasian Convention by Andrew Inglis Clark proposed, in cl 65, that "[t]he trial of all crimes cognisable by any Court established under the authority of this Act shall be by Jury". That draft clause echoed the language of the Jury Trials Act 1839 (NSW), which provided for trial by a jury of twelve inhabitants of the colony of "all crimes misdemeanors and offences cognizable in the said Supreme Court and prosecuted by information in the name of Her Majesty's Attorney General or other officer duly appointed for such purpose by the Governor of said Colony ...". The draft clause also reflected the terms of Art III s2 cl 3 of the United States Constitution, which begins: "The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury".
There was no equivalent in the first draft of the Constitution, nor in any subsequent draft, of the Sixth Amendment to the United States Constitution, which provides that:
"In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed; which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation ..."
The Sixth Amendment is expressed unambiguously in terms of an individual right to trial by jury. The absence of an equivalent provision in the Australian Constitution was relied upon in Brown to support the conclusion that the reasoning in the United States decisions, which construed Art III s2 as permitting waiver of trial by jury on the basis that trial by jury was an individual right, was inapplicable to s 80. That reasoning, however, as appears below, did not support unilateral waiver amounting to a right to demand trial by judge alone.
Following a report by its Judiciary Committee, chaired by Andrew Inglis Clark, and without any recorded debate, the 1891 Convention substituted "indictable offences" for "crimes" in the draft which it adopted. The words "on indictment of any offence", which appear in s 80 as it now stands, were substituted at the 1898 Convention for the words "of all indictable offences". The object of that substitution, as explained by Edmund Barton, was to avoid limiting the power of the Commonwealth Parliament to provide for summary trial of certain offences. He said:
"There will be numerous Commonwealth enactments which would prescribe, and properly prescribe, punishment, and summary punishment; and if we do not alter the clause in this way they will have to be tried by jury, which would be a cumbrous thing, and would hamper the administration of justice of minor cases entirely."
Before that final amendment was made, a delegate from Tasmania, Adye Douglas MP, observed that "[t]here are many offences dealt with summarily which are indictable, and we must be careful not to do away with summary jurisdiction. That would not be at all desirable."
Quick and Garran in their Annotated Constitution of the Australian Commonwealth, referring to colonial usage, treated "indictment" as extending to any information, presentment or indictment framed by a law officer in the name of the Attorney‑General. As explained in the judgment of this Court in Sachter v Attorney-General for the Commonwealth, that does not mean that a trial prosecuted by the Attorney-General represented by counsel is on that account a trial on indictment. Nor does it mean that a law officer, authorised by statute, cannot institute a summary prosecution. There is no dispute that the applicant in this case was charged on an "indictment" within the meaning of that term in s 80. The term "trial" was explained by Quick and Garran by reference to United States case law, albeit arising out of a statutory setting, as "the trying of the cause by the jury, and not the arraignment and pleading preparatory to such trial." On that view, a trial on indictment in the constitutional sense did not commence upon arraignment. Whether that be right or not, as already observed, the trial of the applicant was, by operation of s 9A of the Foreign Incursions Act, to be a trial on indictment.
As appears from a line of cases in this Court on s 80 which are referred to below, and despite Barton's reference to "minor cases", the section has been interpreted as leaving the Commonwealth Parliament free to decide whether any offence shall be prosecuted on indictment or summarily and, accordingly, whether s 80 is engaged. The Parliament may also enact a law providing that an offence may be prosecuted summarily or on indictment and reposing in an appropriate authority the determination of which process shall be used.
There was little discussion of the purpose of s 80 at the Convention Debates. The common law character of trial by jury as a right of the subject was well established. In Newell v The King, Latham CJ spoke unambiguously of trial by jury at common law as "one of the fundamental rights of citizenship and not a mere matter of procedure". Dixon J, who agreed, added that the plea of not guilty amounted to "a demand that [the accused] be tried by a jury, and he became entitled to be tried accordingly." In similar vein, Evatt J said that "in common-law countries, trial by jury has been universally regarded as a fundamental right of the subject". All were cited by a unanimous Court in Cheatle v The Queen. The concept of trial by jury as an entitlement was not a product of 20th century jurisprudence; it has a much older provenance. That concept does not preclude characterisation of s 80 of the Constitution as defining an institutional dimension of the exercise of judicial power in criminal cases with the purpose not only of entrenching the right of an accused person to trial by jury, but also of strengthening the judicial process by the involvement of the wider community. But that character and large purpose do not provide an answer to the question whether Parliament, consistently with s 80, may authorise election for trial by judge alone by an accused with the agreement of the prosecutor or the approval of the court.
The Court heard submissions about aspects of the common law history of trial by jury and legislative examples, predating Federation, of English statutes and statutes of the American and Australian colonies providing for prosecutorial choices to be made between summary trial and trial by jury. Some of those submissions were made in support of the Commonwealth's premise that s 80 accommodates parliamentary designation of procedure with the involvement of the accused and the wider community in a trial on indictment.
William Blackstone described trial by jury as "the grand bulwark of ... liberties" at a time when all common law crimes (save for contempt) were tried on indictment which was found by a Grand Jury and presented to a Petty Jury. Nevertheless, statutes providing for summary conviction of criminal offences, as observed by Professor FW Maitland, had become "considerable" by the 18th century. English legislation creating summary criminal jurisdiction was also introduced in the American colonies, although it met with considerable resistance.
Trial by jury did not travel to the Australian colonies with the common law of England. It was introduced by legislation. Indictments in the sense of a presentment by a Grand Jury to a Petty Jury were not a common form of colonial criminal procedure. Summary jurisdiction was, however, a long-standing feature of the colonial criminal justice system at the time of the Conventions of the 1890s.
There was evidence, referred to in the Commonwealth's submissions, of provision for waiver of trial by jury even for serious offences in some American colonies at and after the time of the adoption of the United States Constitution. That evidence was discussed in an article by Erwin Griswold, published in 1934, which is mentioned later in these reasons. However, despite the familiarity of Andrew Inglis Clark and others present at the Conventions with the United States Constitution and judicial system, the "evidence" does not provide a clear cut basis for concluding that the availability of waiver of trial by jury in various of the American colonies was or was even reasonably likely to have been known to the Convention delegates responsible for the final form of s 80 in 1898. It was certainly not discussed on the Convention record.
As is reflected in the drafting history of s 80 and as Professor Maitland pointed out, a division between non-indictable offences, triable summarily, and indictable offences, capable of being heard by a jury, had been well established in England in the 19th century. Procedures allowing for choice, involving the accused, between summary trial and trial by jury appeared in Australian colonial statutes in the late 19th century. Their models had emerged in England beginning, in 1847, with statutes allowing justices of the peace, with the consent of the accused, to deal summarily with some larceny offences. One Australian colonial example of such a mechanism was s 150 of the Criminal Law Amendment Act 1883 (NSW). Like its English models, it provided that a justice of the peace could, with the consent of the accused, deal with certain larceny offences summarily. That facility was extended to attempted suicide and some other theft offences by the Criminal Law and Evidence Amendment Act 1891 (NSW). The accused in such cases could insist that the case be tried by a jury. Other Australian colonies had also enacted statutory provisions allowing for election between summary trial and trial by jury. It may be accepted therefore, that the availability of a consensual statutory election between trial on indictment and summary proceedings would have been known at the time that the text of s 80 was settled in 1898.
The Convention delegates left it to Parliament to determine whether, and in what circumstances, the factual issues in a trial would be dealt with by the jury on indictment or by a judge alone. That proposition is amply supported by the text of s 80 and by decisions of this Court which are briefly reviewed in the following paragraphs.
Section 80 - a conditional guarantee
On its established interpretation, s 80 is a weak conditional guarantee. The reasoning of this Court in Brown confers upon it an iron grip if the procedural condition for its engagement, a matter in the discretion of the legislature, is fulfilled. That discretion is not expressly or impliedly limited by any constitutional criterion for the selection of what shall be tried on indictment and what shall be the mechanisms for that selection.
The established interpretation of s 80 comes out of a number of decisions of the Court which began in 1915 with R v Bernasconi. In his judgment in that case, Griffith CJ looked back to the Conventions, in which he had played a leading role, and explained the rationale of s 80:
"At that time the laws of all the States provided for the trial by jury of persons tried on indictment, and it was thought desirable to lay down the rule that the trial of persons charged with new indictable offences created by the Commonwealth Parliament should be tried in the same way. Such a provision naturally found place in Chapter III of the Constitution dealing with the Judicature, of which sec 80 forms part." (emphasis added)
Isaacs J in the same case said that:
"If a given offence is not made triable on indictment at all, then sec 80 does not apply. If the offence is so tried, then there must be a jury." (emphasis added)
In the same year as Bernasconi this Court in R v Snow considered whether an appeal from a directed verdict of acquittal was available under s 73 of the Constitution, read in the light of s 80. The Court refused the Crown special leave to appeal against a decision of the trial judge directing a verdict of acquittal. The discussion of s 80 was not central to the reasoning. However, Griffith CJ construed the section 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." Isaacs J more dismissively spoke of s 80 as taken from the United States Constitution to safeguard the subject from "some supposed tyranny of Judges under Crown control - a relic of a time that has now passed into history". He nevertheless added that "both sides must abide by its operation alike." Gavan Duffy and Rich JJ rejected the proposition that the Court in its appellate jurisdiction under s 73 of the Constitution had any right to control the verdict of the jury. If it could, then s 80 would indeed be a "mockery, a delusion and a snare." Powers J did not advert to s 80 at all, save to observe that:
"The right to 'trial by jury' has been specially preserved by the Constitution to British subjects within the Commonwealth (see sec 80), and heretofore in all British communities, except Canada, a verdict of not guilty by a jury in a criminal trial has in every case been accepted as conclusive, although no Statute law prevents an appeal from judgments of acquittal."
The proposition that the Parliament can determine whether any class of offence, however grave, is to be tried summarily by judge alone or on indictment and therefore by judge and jury was established in a line of cases after Bernasconi. R v Archdall and Roskruge; Ex parte Carrigan and Brown was concerned with s 12 of the Crimes Act 1914 (Cth), which provided that offences against that Act "other than indictable offences" were punishable "either on indictment or on summary conviction". The plurality, in brief compass, rejected an argument that by reason of s 80 of the Constitution, s 12 of the Crimes Act was beyond legislative power. The argument was said to have "no foundation" and its rejection to require "no exposition". Higgins J, only a little more forthcoming, observed, "if there be an indictment, there must be a jury; but there is nothing to compel procedure by indictment."
The companion section, 12A, of the Crimes Act, which was not in issue in Archdall, related to offences declared to be indictable under the Act. It provided for charges of such offences to be heard and determined by a court of summary jurisdiction with the consent of the accused or, if the court thought fit and the offence related to property the value of which did not exceed 50 pounds, upon the request of the prosecutor. In the case of both ss 12 and 12A the maximum penalty on summary conviction was imprisonment for one year. In rejecting the attack on s 12, the Court in Archdall effectively held that the Parliament had power to determine whether any class of offence was triable on indictment and to provide for the same offence to be triable on indictment or summarily. A corollary of that holding, not discussed in Archdall, was that the Parliament could prescribe the conditions governing the determination of whether a particular offence would be tried summarily or on indictment. It could be a matter of the prosecutor's choice. The Parliament could provide, as did s 12A(1), that an offence could be triable on indictment or summarily with the consent of the accused. There is an incongruity between that consequence of Archdall and a construction of s 80 that would preclude trial on indictment by judge alone in the interests of justice notwithstanding the election of the accused and either the consent of the prosecutor or the satisfaction of the court that the interests of justice would be served by trial by judge alone.
Today, s 4J of the Crimes Act provides that indictable offences against a law of the Commonwealth, which are punishable by imprisonment for a period not exceeding 10 years, may be heard and determined by a court of summary jurisdiction with the consent of the prosecutor and defendant. The decision in Archdall was relied upon in the Supreme Court of South Australia in Mattner v Director of Public Prosecutions (Cth) to reject an attack upon the constitutional validity of s 4J. Kelly J described the constitutional validity of s 4J as having been settled by Archdall and cases which followed. Her Honour held that the requirement for trial by jury imposed by s 80 only arises when an indictable offence proceeds to a trial on indictment. That holding was, with respect, consistent with the decision of this Court in Archdall and the decisions which followed.
In R v Federal Court of Bankruptcy; Ex parte Lowenstein, s 80 of the Constitution was not invoked in argument. Latham CJ, with whom Rich J agreed, nevertheless rejected a "suggestion" that a trial for an offence against the Bankruptcy Act 1924 (Cth) directed by the Court of Bankruptcy, pursuant to s 217, was a trial on indictment which must be by jury. Unable to find any authority to the effect that any prosecution initiated or directed by a court or some public authority is thereby a proceeding upon indictment, he said:
"It is only when the trial takes place on indictment (not when the offence is an offence which might have been prosecuted on indictment) that sec 80 applies."
Starke J said nothing on the point and McTiernan J, noting that it was not argued, held that he was bound by the previous decisions of the Court. The "suggestion" to which Latham CJ referred seems to have been the inconclusive observations on s 80 offered by Dixon and Evatt JJ, who dissented in the result. They considered the absence of any requirement for a procedure by indictment to be "a queer intention to ascribe to a constitution" and said:
"We should not have taken the view that sec 80 was intended to impose no real restriction upon the legislative power to provide what kind of tribunal shall decide the guilt or innocence on a criminal charge."
That view did not prevail, although it was taken up by Murphy J in Beckwith v The Queen and Li Chia Hsing v Rankin, by Deane J in dissent in Kingswell v The Queen and later by Kirby J in Re Colina; Ex parte Torney and Cheng v The Queen. An attempt to reopen Lowenstein in relation to s 217 of the Bankruptcy Act was rejected in Sachter. As noted earlier, a particular argument rejected in that case was that the appearance of the Attorney-General by counsel, and amendments to the charges procured by his counsel, somehow transformed the proceedings into a trial upon indictment.
What was said in Archdall was cemented in Zarb v Kennedy, in which Barwick CJ, with whom Kitto and Taylor JJ agreed, described as "untenable" the proposition that Parliament was unable to provide that any offence shall be tried summarily. On that point the Chief Justice said:
"The question of the scope of s 80 has, in my opinion, not only been long settled but ought not now to be reopened."
McTiernan, Menzies and Owen JJ also rested their conclusions as to s 80 on the correctness of Archdall. Windeyer J agreed generally on that point with the other Justices. Consistently with Archdall and Zarb, the Court in Li Chia Hsing rejected a proposition that s 80 required the trial on indictment of all "serious" offences against a law of the Commonwealth. Barwick CJ observed that it was "not possible to conclude, apart of course from the expressed intention of the Parliament in the relevant statute, that an offence is of its nature 'indictable'." The Court's settled interpretation of s 80 had been acted on by Parliament over a very long time and should not be reopened. Gibbs J reasoned briefly to similar effect.
The interpretation of s 80 established by the preceding line of cases was applied in Kingswell. It was argued in that case that a section of the Customs Act 1901 (Cth) providing for factual circumstances to be determined by a sentencing judge in order to determine the penalty ranges applicable upon conviction for conspiring to import narcotic goods contravened s 80. The Court rejected that argument. Gibbs CJ, Wilson and Dawson JJ did so on the basis that the established interpretation of s 80, depriving it of much substantial effect, provided "a reason for refusing to import into the section restrictions on the legislative power which it does not express." Their Honours referred to Archdall, Lowenstein, Sachter, Zarb and Li Chia Hsing. As noted earlier, Deane J dissented and favoured the approach of Dixon and Evatt JJ in Lowenstein. Later, in Cheng, discussed below, the Court declined to reopen Kingswell. The approach of Gibbs CJ, Wilson and Dawson JJ raises the question why s 80 should impose a restriction on Commonwealth legislative power, precluding absolutely trial on indictment by judge alone, which is inexplicably inflexible relative to other constitutional guarantees or prohibitions.
The applicant in the present case contended that an absolutist construction of the mandate reposing in the word "shall" in s 80 was inconsistent with the Court's approach to other guarantees in the Constitution. Reference was made to s 92, which provides that "trade, commerce, and intercourse among the States ... shall be absolutely free", and s 117, which provides that "[a] subject of the Queen, resident in any State, shall not be subject in any other State to any disability or discrimination which would not be equally applicable to him if he were a subject of the Queen resident in such other State." Sections 7 and 24 of the Constitution, requiring that the House of Representatives and the Senate "shall be composed of [persons] directly chosen by the people" of the relevant polity, were also cited, as was the implied freedom of communication on political and government matters founded substantially on those provisions. The judicial exegesis of those express and implied constitutional limitations on legislative power has depended upon their particular terms and purposes. The word "shall" in s 92 is perhaps less significant for its operation than the words "absolutely free". Qualifications on the restrictions which s 117 imposes do not imply some definition of "shall" with soft edges, but reflect the scope of the prohibition by reference to its subject matter of disability and discrimination. An absolutist literal application of that prohibition would be likely to yield absurd results having nothing to do with its purpose.
The strongest and most uncontroversial point to be taken from the examples proffered by the applicant is that in interpreting a constitutional provision a formal rigidity which runs wider than the evident purpose of the provision is not a sensible or preferable constructional choice. The question then is whether an interpretation of s 80 that precludes Parliament from legislating for trial on indictment by a judge alone in appropriate circumstances imposes that kind of rigidity.
It does not appear from the record of the Convention Debates of the 1890s that waiver of trial by jury on a trial on indictment was discussed by the delegates or was even present to their minds, any more than it was present to the minds of, or discussed by, those who framed Art III s2 cl 3 of the United States Constitution, discussed in the next section of these reasons. This Court had not, before its decision in Brown, considered whether the requirement imposed by s 80 would be infringed by legislation allowing for waiver by the accused, or by the accused with the consent of the prosecutor or the approval of the court. The issue has arisen as the result of State and Territory statutes so providing, the first of which was that considered in Brown.
The rhetorical question might well be asked - given the flexibility accorded to the Parliament by the established interpretation of s 80 in designating the mode of trial as summary or on an indictment, even to the extent of involving election by the accused, what further need is there for flexibility where trial on indictment is prescribed? One answer may be to ask another rhetorical question - what principle, built upon existing authority other than Brown's case, requires an interpretation of s 80 which would preclude the Parliament from providing that a trial process commenced by presentation of an indictment can proceed, without any change to the initiating process, as a trial by judge sitting alone, where the accused so elects and the prosecution agrees or the court approves? Against that background it is necessary to consider the decision of this Court in Brown. Before turning to Brown, however, some reference should be made to the decisions of the Supreme Court of the United States considered in Brown, which interpreted Art III s2 cl 3 of the United States Constitution as allowing for waiver of the guarantee of trial by jury in certain cases.
Waiver of trial by jury in the United States
At the time of the Australian Convention Debates there was no settled position in the United States on whether the trial by jury guaranteed under Art III of the United States Constitution could be waived. The first decision of the Supreme Court of the United States on waiver was not delivered until 1930. In Patton v United States, the Supreme Court considered whether the effect of Art III s2 cl 3 and the Sixth Amendment to the United States Constitution was to "guaranty a right or establish a tribunal as an indispensable part of the government structure". The question arose in a case in which the accused and prosecutor agreed to the continuance of a trial by eleven jurors when one of the original twelve had been discharged for serious illness. The Eighth Circuit Court of Appeals certified a question for consideration by the Supreme Court asking whether the defendant could "waive the right to a trial and verdict by a constitutional jury of twelve men?". The Court rejected, from the outset, any distinction between the effect of a complete waiver of a jury and a consent to be tried by a lesser number than twelve. Both were treated as in substance amounting to the same thing.
The Court observed that the record of English and colonial jurisprudence antedating the Constitution did not disclose evidence that trial by jury in criminal cases was regarded as a part of the structure of government as distinct from a right or privilege of the accused. Rather it was seen as "a valuable privilege bestowed upon the person accused of crime for the purpose of safeguarding him against the oppressive power of the King and the arbitrary or partial judgment of the court." Blackstone's characterisation of trial by jury as a "privilege" was cited for that proposition. Judge Story, also cited, had referred to trial by jury incorporated in State Constitutions with respect to criminal cases as a "great privilege" and "a fundamental right".
The Court rejected the proposition that the framers of the United States Constitution had, as one of their purposes, the establishment of the jury for the trial of crimes as an "integral and inseparable part of the court". Nothing to that effect had appeared in contemporaneous literature or in any of the debates or innumerable discussions of the time. The same may be said of the limited debate in relation to s 80.
The Sixth Amendment, relied upon by members of the majority in Brown to distinguish Patton and other United States cases, was not central to the construction of Art III. It was said in Patton that it did not modify or alter the meaning of that Article but reflected its meaning. Importantly, however, the Court recognised the institutional dimension of trial by jury when it said:
"the maintenance of the jury as a fact finding body in criminal cases is of such importance and has such a place in our traditions, that, before any waiver can become effective, the consent of government counsel and the sanction of the court must be had, in addition to the express and intelligent consent of the defendant."
As is apparent, Patton cannot be characterised as founding a simple right of waiver based upon a simple rights-protective construction of Art III.
An influential paper supportive of the decision in Patton, and mentioned earlier in these reasons, was published by Erwin Griswold in 1934. At the time Patton was decided the weight of opinion in the lower federal courts in the United States was to the effect that provisions of the Constitution relating to trial by jury were intended to establish a tribunal as a part of the framework of government which neither the defendant nor anyone else had the power to change. A similar view of the guarantee in s 80 was to inform the approach of the majority in this Court in Brown. For the contrary view, Griswold looked to evidence of waiver prior to the adoption of the United States Constitution and to common law indicators that made the consent of the accused the basis of trial by jury in England, even if it had to be extracted by the torture of peine forte et dure from those not willing to proffer it voluntarily. There was little evidence of waiver or any analogous practice in the 17th and 18th centuries save for a precursor of the plea later known in the United States as nolo contendere. He referred also to decisions of courts in some of the American colonies allowing a defendant to waive the right to jury trial. He concluded:
"The evidence is sufficient to show plainly enough that waiver of jury, even in trials for serious offences, was not unknown at the time of the adoption of the Constitution."
Assuming the correctness of that historical proposition, there is no warrant for inferring that there was an awareness on the part of the delegates to the Australian Constitutional Conventions of the 1890s of waiver practices in pre‑revolutionary America or their slight analogues at common law.
In 1965 in Singer v United States, Warren CJ, delivering the opinion of the Court, did not depart from Patton but, relevantly for present purposes, after reviewing the history of the English common law, observed that as late as 1827 it gave criminal defendants no option as to the mode of trial. He acknowledged that before a defendant could be subjected to jury trial, his consent was required but added, referring to the practice of torture by peine forte et dure to extract consent, "the Englishmen of the period had a concept of 'consent' somewhat different from our own." Warren CJ concluded, after referring to the Griswold paper, that history did not establish the proposition that at common law defendants had the right to choose the method of trial in all criminal cases. He quoted from the 1898 edition of Thayer, A Preliminary Treatise on Evidence at the Common Law:
"By its intrinsic fairness as contrasted with older modes, and by the favor of the crown and the judges, [trial by jury] grew fast to be regarded as the one regular common-law mode of trial, always to be had when no other was fixed."
There were provisions in American colonial Constitutions which permitted waiver of jury trial, particularly the Constitutions of Massachusetts and Maryland. The colonial examples did not show any general recognition of a defendant's right to be tried by the court instead of by jury. The Chief Justice added:
"Indeed, if there had been recognition of such a right, it would be difficult to understand why Article III and the Sixth Amendment were not drafted in terms which recognized an option."
The Chief Justice pointed to the particular question and answer to the question given in the judgment of the Court in Patton. He observed that the answer given in Patton "dispelled any notion that the defendant had an absolute right to demand trial before a judge sitting alone". So, the Chief Justice concluded:
"there is no federally recognized right to a criminal trial before a judge sitting alone, but a defendant can, as was held in Patton, in some instances waive his right to a trial by jury. The question remains whether the effectiveness of this waiver can be conditioned upon the consent of the prosecuting attorney and the trial judge."
The government as a litigant had a legitimate interest in seeing that cases in which it believed a conviction was warranted were tried before the tribunal which the Constitution regarded as most likely to produce a fair result. That observation recognised the institutional dimension of Art III. On that basis the Court upheld a federal rule of criminal procedure governing proffered waivers of jury trials, conditioning them upon the consent of the government and the approval of the courts.
A rights based analysis of the guarantee under the United States Constitution was reflected strongly in Duncan v Louisiana. That was not surprising because it was a case in which trial by jury was found to have been wrongly denied by a court in Louisiana. The Louisiana Constitution granted jury trials only in cases where capital punishment or imprisonment with hard labour could be imposed. The Supreme Court decision involved an application of the Fourteenth Amendment to the Constitution, read with the Sixth Amendment. The Court said, inter alia:
"Providing an accused with the right to be tried by a jury of his peers gave him an inestimable safeguard against the corrupt or overzealous prosecutor and against the compliant, biased, or eccentric judge. If the defendant preferred the common-sense judgment of a jury to the more tutored but perhaps less sympathetic reaction of the single judge, he was to have it."
That being said, the Court would not assert that a defendant might never be as fairly treated by a judge as by a jury:
"Thus we hold no constitutional doubts about the practices, common in both federal and state courts, of accepting waivers of jury trial and prosecuting petty crimes without extending a right to jury trial." (footnotes omitted)
As appears from the decisions of the Supreme Court of the United States referred to above, that Court has recognised both an institutional and a rights protective dimension to the trial by jury mandated in Art III, which are not inconsistent with trial by judge alone in appropriate cases. Those decisions are not to be understood as simply giving effect to a proposition that trial by jury, being a right, can be waived by the person upon whom that right is conferred.
Brown v The Queen - the unavailability of waiver
The question whether an accused person charged on indictment with an offence against Commonwealth law could, with the approval of the court, elect trial by judge alone was first considered by this Court in Brown and answered in the negative. The appellant had been presented for trial in the Supreme Court of South Australia on an information of the Commonwealth Director of Public Prosecutions charging him with an offence against s 233B(1)(ca) of the Customs Act. He elected, pursuant to s 7(1) of the Juries Act 1927 (SA), to be tried by a judge alone. Before allowing the trial to proceed without a jury, the presiding judge had to be satisfied that the appellant had sought and received advice in relation to the election from a legal practitioner. There was no requirement that the prosecutor agree to the appellant's election. The election provision could only apply to the trial of the federal offence by operation of s 68 of the Judiciary Act, as explained earlier in these reasons.
The trial judge ruled that s 80 of the Constitution precluded the election. After a trial before the judge and a jury the appellant was convicted. So much of his appeal to the Full Court of the Supreme Court as concerned the question whether s 80 had precluded his election was removed into this Court under s 40(1) of the Judiciary Act. This Court, which heard the removed question sitting five Justices, divided three/two.
The Director of Public Prosecutions argued that the jury was "an indispensable element in trials on indictment of federal offences even if a federal statute provides to the contrary." As an alternative position he submitted that if a federal statute could authorise the waiver of the guarantee the right to be waived was that of the accused and the Crown. As appears below, the majority decided the case on the basis of the primary submission.
The majority in Brown comprised Brennan, Deane and Dawson JJ. The appellant relied upon the decisions of the Supreme Court of the United States on the availability of waiver of trial by jury under Art III s2 cl 3. Their Honours rejected that argument. They did so on the basis that there was no equivalent in the Australian Constitution of the Sixth Amendment to the United States Constitution "which might compel a departure from the primary meaning of the mandatory words in s 80". Brennan J also relied upon the absence of a long history of judicially recognised waiver of trial by jury. His Honour observed that in Australia there had been no suggestion in cases on s 80 that its language permitted waiver of trial by jury. That being said, none of the earlier cases concerned the question of waiver. The reference to the mandatory language of s 80 in those judgments was directed to different contentions.
The history of trial by jury at common law was said to be antithetical to the idea of waiver, the law of England for centuries having "compelled an accused to plead and thereby to put himself upon the country" as "an essential preliminary to trial and conviction by jury." Each of their Honours characterised the function of the jury, entrenched by s 80, in institutional terms. It was an essential constituent of a court exercising the jurisdiction described by the section or part of the structure of government rather than the grant of a privilege to individuals.
Gibbs CJ and Wilson J dissented. Gibbs CJ acknowledged that the words of s 80 were "clear and mandatory" but pointed to the principle of statutory interpretation dating back to the time of Sir Edward Coke that a person can waive a statutory provision intended entirely for his or her own benefit. The Chief Justice observed in an important passage:
"The same principle applies to the interpretation of constitutional enactments, and perhaps with even greater force. A constitutional guarantee restricts the power of the legislature, and may last indefinitely, and a guarantee given for the benefit of a class of individuals, such as accused persons, might, in an unforeseen set of circumstances, cause the members of that class hardship rather than benefit if it prevented an accused person, whom it was intended to protect, from exercising some other right; in those circumstances, what was contrived for the protection of the accused would be turned into fetters". (footnote omitted)
Adopting the words of the United States Supreme Court in Duncan, cited earlier, the Chief Justice identified the purpose of s 80 as to protect the accused. Looking to the text of s 80, he also pointed to the discretion in the Parliament to determine whether any particular offence, however serious, could be tried summarily. He said:
"It would give a most capricious operation to s 80 if it were held that that section requires the trial to be by jury only when the prosecution in fact proceeds on indictment but nevertheless forces the accused person to accept trial by jury, notwithstanding that there exists an alternative procedure which the accused would prefer to adopt."
Arguments about the absence of waiver at common law were rejected with the observation that:
"the Constitution was framed to endure and to be capable of application to changing circumstances which the framers of the Constitution could not be expected to foresee, and it would be contrary to all principle to confine the operation of any of its provisions to matters known to exist in 1901."
As to the United States decisions, the Chief Justice pointed out that the presence of the Sixth Amendment was only one consideration supporting the conclusion which the Supreme Court of the United States reached after considering the history and purposes of Art III s2. At the time the Australian Constitution was framed there was no accepted interpretation of Art III s2 which the framers must have intended should apply to s 80.
Wilson J, also in dissent, observed that the Supreme Court of the United States in Patton had not relied in the first instance upon the wording of the Sixth Amendment, which, as he noted, is clearly expressed in terms of privilege. Like the Chief Justice, he pointed out that as the Patton decision was not made until 1930, there was a variety of State Supreme Court decisions in the United States on the question of waiver at the time the Australian Constitution was framed. Moreover, at common law it had always been possible for an accused person to consent to a trial continuing even if one of the jury had become incapacitated, or to the discharge of one jury after charge, to allow the trial to continue before a fresh jury.
Wilson J held that the words of s 80 did not in terms deny the right of an accused person to waive trial by jury. The common law rationale for trial by jury was protective of the liberty of the citizen. The provision had been referred to in the very brief Convention Debates as "a necessary safeguard to the individual liberty of the subject in every state." Like Gibbs CJ, he pointed to the character of the Constitution as an instrument of government intended to endure through changing circumstances.
The formal ruling in Brown was expressed in the following terms:
"Answer the question removed under s 40(1) of the Judiciary Act as follows:
Section 80 of the Constitution precluded the appellant from electing pursuant to s 7(1) of the Juries Act 1927 (SA) to be tried by judge alone for the offence with which he was charged."
The matter was then remitted to the Supreme Court of South Australia.
The applicant submitted that the ratio decidendi of Brown was confined to its ruling in relation to s 7(1) of the Juries Act 1927, which, unlike s 132 of the CPA, required trial by jury on the unilateral election of the accused. On that basis it was suggested that the decision could be distinguished from the present case. As the respondent submitted, however, the construction of s 80 upon which the applicant relies is contrary to the reasoning of the majority which led to the ruling in Brown. Brown cannot be distinguished on the basis that the text of the South Australian statute differs from the text of s 132 of the CPA. However, as explained later in these reasons, if Brown is not to be followed, it should not be followed on the basis that the reasoning of the majority was too broad albeit the conclusion about s 7 was correct.
Decisions after Brown
In Cheng a majority of this Court refused to reopen Kingswell and rejected a challenge to the validity of provisions of the Customs Act providing for fact-finding by a sentencing judge for the purpose of determining the range of punishments applicable to a person convicted of an offence against s 233B (amongst others). It was not a case about whether an accused person, being tried on indictment, could elect trial by judge alone. In the course of their joint judgment, however, Gleeson CJ, Gummow and Hayne JJ referred to Brown in rejecting an argument that developments since Federation had thrown new light on the meaning of s 80. Their Honours noted the increasing availability in State jurisdictions of provisions for an accused to elect trial by judge alone, at least if the prosecution consented. They characterised Brown as holding that where it applies, s 80 is mandatory and said "[i]t is not a provision which creates a right that can be waived by an accused." They accepted that it was a right of which a significant number of people charged with serious offences took advantage. They also accepted that in the area of commercial fraud, which would be of particular importance if the regulation of the conduct of managers of corporations were to become a matter of Commonwealth law, the capacity to prosecute some serious offences summarily, at least with the agreement of the accused, could contribute, on occasion, to the more effective administration of justice. The impugned provisions of s 235 of the Customs Act were said, however, to provide an example of the way in which the Parliament under the then present interpretation of s 80 could approach the problem. Their Honours' reasons invoked a tangential connection between the decision in Brown and the question in Cheng. Brown did not play a central part in their reasoning.
Gaudron J characterised s 80 as a constitutional guarantee or command important to the rule of law, the judicial process and the judiciary itself. Her Honour said:
"Respect for the rule of law and, ultimately, the judicial process and the judiciary is enhanced if the determination of criminal guilt is left in the hands of ordinary citizens who are part of the community, rather than in the hands of judges who are perceived to be and, sometimes, are 'remote from the affairs and concerns of ordinary people'." (footnote omitted)
It was imperative that s 80 be approached in the same manner as other constitutional guarantees: construed liberally, and not pedantically confined. Notwithstanding the structural "rule of law" theme in her Honour's reasoning, she concluded that the fact that s 80 was designed to protect the individual required that it be construed no less liberally than the guarantees in ss 51(xxxi) and 117 of the Constitution.
McHugh J also referred to Brown simply to say that nothing in that decision threw any doubt upon the correctness of Kingswell. Callinan J identified the difference between the majority and minority in Brown as turning on whether the guarantee in s 80 gave rise to a personal right capable of waiver by the accused, or whether it looked to and was a safeguard of the public interest in the administration of justice. His Honour's discussion of Brown, like that of the other Justices in Cheng, except Kirby J, supported his rejection of the proposition that there had been a change in the thinking of the Court about s 80 since Kingswell.
Kirby J, in dissent, thought that Kingswell should be reopened. His Honour considered that the holding of the joint judgment in that case had given rise to practical difficulties, and that this Court's decisions in Brown and Cheatle accepted that s 80 should be given a construction that "recognises its function as a real and substantive guarantee of constitutional rights."
Brownlee v The Queen was a case in which leave to reopen Brown was refused. That refusal should be viewed in light of the fact that the question of waiver was never reached in Brownlee. The case concerned two questions. The first was whether a trial was still a trial by jury for the purposes of s 80 where two of the twelve jurors empanelled at the beginning of the trial had been discharged and the trial commenced with the remaining 10 jurors. The second question was whether a trial in which the jury was permitted to separate before returning its verdict, after each day of the hearing and over the weekend, was a trial by jury for the purposes of s 80. The continuance of a jury with 10 of its members after two had been discharged and the separation of the jury before verdict were permitted by provisions of the Jury Act 1977 (NSW). The constitutional question was whether s 80 would permit the application of those provisions, via s 68 of the Judiciary Act, to a trial on indictment for a Commonwealth offence in New South Wales.
The accused person, who had been convicted of conspiracy to defraud the Commonwealth contrary to s 86A of the Crimes Act, applied for special leave to appeal, on the constitutional question, from a decision of the Court of Criminal Appeal of the Supreme Court of New South Wales affirming his conviction. This Court refused leave, sought by the applicant, to reopen Bernasconi and Kingswell. It also refused leave, sought by the Attorney-General of the Commonwealth, intervening, to reopen Brown. The application to reopen Brown was made on the basis that the facts of the case gave rise to a question whether the accused had waived his right to trial by jury.
This Court in Brownlee held that the relevant provisions of the Jury Act 1977 were not inconsistent with the meaning of trial by jury in s 80 of the Constitution. On that basis, no question of a waiver by the applicant arose. Gleeson CJ and McHugh J observed:
"If the question of waiver had arisen, the decision of this Court in Brown v The Queen would have concluded the issue adversely to the respondent, unless the Court had been persuaded to reconsider, and overrule, that decision." (footnote omitted)
Their Honours went on simply to record that leave to reopen Brown had been refused. Gaudron, Gummow and Hayne JJ noted that the special leave application, referred to the Full Court, had been argued on the footing that as a consequence of Brown, if reduction in jury numbers below 10 could not stand with the requirement of s 80 for "trial by jury" then that deficiency could not be remedied by waiver. Concerning the refusal to reopen Brown, their Honours said:
"No issue concerning the application to this case of the reasoning in Brown or the correctness of Brown itself would arise for decision unless in either or both of the respects urged by the applicant for special leave the conduct of his trial had failed to meet what was required by s 80."
The impugned provisions of the Jury Act 1977 were compatible with the command in s 80. Kirby J took the view that there had been a relevant waiver by the applicant. His Honour held that contrary to Brown the existence of a privilege to waive "trial by jury" was not incompatible with the essential characteristics of jury trial or with the purposes for which s 80 of the Constitution provided that mode of trial. Callinan J did not discuss Brown.
The argument advanced by the Commonwealth Attorney-General in Brownlee, in seeking to reopen Brown, was evidently unsuccessful, at least in part because the argument about waiver was at best contingent and, in the event, was never reached. Neither of the decisions in Cheng or Brownlee, in which Brown was discussed, depended upon the correctness of Brown. There is no line of decisions of this Court which can be said to have been founded upon its decision in Brown.
Overruling an earlier decision of the Court
Counsel for the applicant was permitted to argue that Brown should be overruled.
The criteria for reconsidering an earlier decision of the Court on any matter were set out in John v Federal Commissioner of Taxation:
- Whether the earlier decision rested upon a principle carefully worked out in a significant succession of cases.
- Whether there was a difference between the reasons of the Justices constituting a majority in the earlier decision.
- Whether the earlier decision had achieved a useful result or on the contrary caused considerable inconvenience.
- Whether the earlier decision had been independently acted upon in a way which militated against reconsideration, as in Queensland v The Commonwealth ("the Second Territory Senators Case").
The approach to reconsideration of constitutional cases must take into account that the only other way in which the effect of a particular interpretation of the Constitution can be altered, if at all, is by constitutional amendment pursuant to s 128 of the Constitution. In the Second Territory Senators Case, Aickin J set out general considerations relevant to whether a previous constitutional decision should be overruled. They were:
- Whether the error of the prior decision had been made manifest by later cases which had not directly overruled it.
- Whether the prior decision went with a "definite stream of authority" and did not "conflict with well established principle".
- Whether the prior decision could be confined as an authority to the precise question which it decided or whether its consequences would extend beyond that question.
- Whether the prior decision was isolated as receiving no support from other decisions and forming no part of a stream of authority.
- Whether the prior decision concerned a fundamental provision of the Constitution, or involved a question of such "vital constitutional importance" that its consequences were likely to be far reaching although not immediately foreseeable in detail.
His Honour referred to the abolition of appeals to the Privy Council and said:
"The fact that error can no longer be corrected elsewhere must change our approach to the overruling of our own decisions, at least to some extent. It remains however a serious step, not lightly to be undertaken."
A related consideration was that constitutional decisions cannot generally be remedied by legislative amendment.
As I observed in Wurridjal v The Commonwealth, it is not always necessary to make a finding that a prior decision was "erroneous" in order to justify overruling it. It may be that in some cases subsequent decisions have made clear that the decision which the Court is asked to overrule not only stands isolated but has proven to be incompatible with the ongoing development of constitutional jurisprudence. Thus, Dixon CJ spoke of the possibility that an earlier decision had been "weakened" by subsequent decisions or in the light of experience. The taxonomy of "correctness" and "error" is not always required to justify an overruling. An overruling may reflect an evolved understanding of the Constitution. Overarching all these considerations is a conservative cautionary principle against overruling earlier decisions without very good cause. The principle is manifested in the Court's practice from time to time of declining to entertain argument that one of its previous decisions should be overruled.
Whether Brown should be reopened and overruled
The division of views in Brown reflected to some extent a division between the characterisation of s 80 as structural in its application to the exercise of federal judicial power and its characterisation as conferring a right or entitlement upon an accused person tried on indictment. That division was apparent in the arguments put to the Court in that case. There was, of course, a textual debate about the word "shall" in the section and an argument advanced by South Australia, intervening, that the State law itself was structural, going to the organisation of State criminal courts, and that the Commonwealth, investing them with federal jurisdiction, had to take them as it found them.
The principal division between the parties in Brown offered a binary choice. The starkness of that choice was no doubt informed by the simplicity of the State statute providing as it did for mandatory trial by judge alone upon the unilateral election of the accused. The case did not throw up for consideration legislation under which an informed accused, conscious of his or her own interests, and a prosecutor, conscious of the wider public interest, and a court, conscious of the interests of justice generally, might be permitted to determine that a trial on indictment should proceed before a judge without a jury.
As the majority held in Brown, s 80 has an institutional dimension. It can be read as defining the repository of judicial power on a trial on indictment for an offence against a law of the Commonwealth. However, it also has a rights protective dimension. Having regard to the common law concept of trial by jury as a right, even if not amenable to waiver, it could hardly lack that character. As the Commonwealth submitted in this case, the institutional dimension of s 80 does not conclude the inquiry into its application to provisions for trial by judge alone of the kind set out in s 132 of the CPA.
The absolute institutional or structural construction adopted by the majority in Brown was not typical of the construction of other constitutional guarantees. It raises a question about the internal coherence of s 80 given the flexibility which, on its existing interpretation, it leaves to the Parliament in determining how, and with respect to which offences, there should be trial on indictment and allowing, in that flexibility, for the Parliament to involve the accused, the prosecutor and the court in that determination.
Applying the criteria for reopening and overruling a previous decision of the Court in John's case, the following observations can be made: