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[1986] HCA 11
High Court of Australia
1986-03-20
White J
Original judgment source is linked above.
BROWN v. THE QUEEN [1986] HCA 11; (1986) 160 CLR 171
Gibbs C.J.(1), Wilson(2), Brennan(3), Deane(4) and Dawson(5) JJ.
Constitutional Law (Cth) - Federal jurisdiction - Trial on indictment of offence against Commonwealth law - Requirement of trial by jury - Federal jurisdiction invested in State court - State law entitling accused to elect to be tried by judge alone - Application to trial of offence against Commonwealth law - The Constitution (63 & 64 Vict. c. 12), s. 80 - Juries Act 1927 (S.A.), s. 7.
CAUSE removed pursuant to Judiciary Act 1903 (Cth), s. 40(1).
GIBBS C.J.: The appellant, Michael Rodney Jonathon Brown, was presented for trial before White J. in the Supreme Court of South Australia on an information of the Director of Public Prosecutions of the Commonwealth of Australia charging him with an offence against s.233B(1)(ca) of the Customs Act 1901 (Cth), as amended ("the Customs Act"). He pleaded not guilty to the information. Before a jury was empanelled the appellant elected to be tried by a judge alone. The election was made in intended exercise of the right conferred by s.7(1) of the Juries Act 1927 (S.A.), as amended ("the Juries Act"). Section 7 provides as follows:
(b) the presiding judge is satisfied that the
accused, before making the election,
sought and received advice in
relation to the election from a
legal practitioner,
(2) No election may be made under subsection
(1) where the accused is charged with a minor
indictable offence and has elected to be tried in a
District Criminal Court.
(3) Where two or more persons are jointly
charged, no election may be made under subsection
(1) unless all of those persons concur in the
election.
(4) Where a criminal inquest proceeds without
a jury in pursuance of this section, the judge may
make any decision that could have been made by a
jury on the question of the guilt of the accused,
and such a decision shall, for all purposes, have
the same effect as a verdict of a jury."
The expression "criminal inquest" in the section is defined in s.3(1) of the Juries Act to mean "trial before a court of criminal jurisdiction of any indictable offence". It is common ground that the appellant was charged with an indictable offence. It was found by the learned trial judge that the election was made in accordance with the rules of court made under the Juries Act on 19 December 1984. However, after hearing argument, the learned trial judge ruled that s.80 of the Constitution has the effect that it is not possible for a person indicted for an offence against a law of the Commonwealth to make an election to be tried by judge alone. Accordingly a trial by jury proceeded and the appellant was convicted. He made application for leave to appeal to the Full Court of the Supreme Court on a number of grounds, one of which was as follows:
"The Learned Trial Judge erred in ruling that it
was not possible for the applicant to make an
election for trial by Judge alone pursuant to
section 7(1) of the Juries Act 1927 (as amended)
because section 80 of the Constitution Act (Cwth.)
1901 (as amended) prevailed over the said section
of the Juries Act (supra) AND FURTHER the Learned
Trial Judge ought to have ruled that the applicant
had the right to waive trial by jury in any event."
Subsequently leave to appeal was granted by Cox J. and the appeal was set down for hearing before the Full Court of the Supreme Court. Before the appeal was heard, this Court ordered, pursuant to s.40(1) of the Judiciary Act, that so much of the cause pending in the Full Court "as involves the question whether s.80 of the Constitution precluded the said Michael Rodney Jonathon Brown from electing pursuant to sub- section 7(1) of the Juries Act 1927 (S.A.) as applied by s.68 of the Judiciary Act 1903, to be tried by a Judge alone for the offence with which he was charged" be removed into this Court.
2. The provisions of s.7 of the Juries Act will be rendered applicable to the appellant by s.68(1) of the Judiciary Act, unless it would be a contravention of s.80 of the Constitution to allow the trial to proceed without a jury. Section 80 provides as follows:
"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."
3. The question for decision is whether s.80 contains an imperative and indispensable requirement that the trial must be by jury whenever the accused is charged on indictment with an offence against a law of the Commonwealth, or whether the section is intended to secure for the benefit and protection of any person so charged a right or privilege which the accused may waive if the law governing the conduct of the trial permits it. The argument that the requirement is indispensable and cannot be waived is an obvious enough one. The words of s.80 appear to be both clear and mandatory; read literally, they appear to mean that "if there be an indictment, there must be a jury", as Higgins J. said in R. v. Archdall and Roskruge; Ex parte Carrigan and Brown [1928] HCA 18; (1928) 41 CLR 128, at p 139, and they do not expressly admit any exception to that rule. However, it has been a principle of statutory interpretation ever since the time of Sir Edward Coke - expressed in the maxim quilibet potest renunciare juri pro se introducto - that any person can waive a statutory provision introduced entirely for his or her own benefit (see, e.g., Wilson v. McIntosh (1894) AC 129, at p 133 and Toronto Corporation v. Russell (1908) AC 493, at p 500, and, more recently, Korponey v. Attorney-General of Canada (1982) 132 DLR (3d.) 354, at p 362). If, on the other hand, the provision is enacted for the benefit of the public, a private individual cannot waive it: Davies v. Davies [1919] HCA 17; (1919) 26 CLR 348, at p 355. 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, to adapt the words of Frankfurter J. in Adams v. United States. Ex rel McCann [1942] USSC 159; (1942) 317 US 269, at p 279 (87 Law Ed 268, at p 275). The decisions of the courts in the United States and Canada, to which reference will later be made, have recognized that a constitutional guarantee may be waived by a person for whose benefit it was intended.
4. It then becomes necessary to consider the purpose which the framers of the Constitution had, or must be supposed to have had, in including the provisions of s.80 in the Constitution. The requirement that there should be a trial by jury was not merely arbitrary or pointless. It must be inferred that the purpose of the section was to protect the accused - in other words, to provide the accused with a "safeguard against the corrupt or over-zealous prosecutor and against the compliant, biased, or eccentric judge": Duncan v. Louisiana (1968) 391 US 145, at p 156 (20 L.Ed.2d 491, at p 500). Those who advocate the retention of the jury system almost invariably place in the forefront of their argument the proposition (sometimes rhetorically expressed but not without some truth) that the jury is a bulwark of liberty, a protection against tyranny and arbitrary oppression, and an important means of securing a fair and impartial trial. It is true that the jury system is thought to have collateral advantages (e.g., it involves ordinary members of the public in the judicial process and may make some decisions more acceptable to the public) but the framework of s.80, which not only requires trial by jury but also fixes the place of trial, supports the view that the object of the section was to achieve the principal and obvious purpose of trial by jury - the protection of the accused. Section 80 was modelled on Art.III, s.2(3) of the United States Constitution, which provides:
"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."
In Singer v. United States [1965] USSC 34; (1965) 380 US 24, at p 31 (13 L.Ed.2d 630, at pp 635-636) Warren C.J. said of that provision that it "was clearly intended to protect the accused from oppression by the Government ... " This view was repeated in Duncan v. Louisiana, at p 155 (p.499 of L.Ed.). This also was the purpose of s.80. The section was inserted for the benefit of persons accused of offences against the law of the Commonwealth and not for any wider public interest. Nor could it be suggested that it would be contrary to public policy to allow accused persons to waive the right to trial by jury granted for their own benefit, at least in cases where the waiver was made freely, without improper pressure or influence and with full knowledge of the right that was waived. Of course, no question of waiver could arise unless the law governing the procedure at the trial permitted it. "The ability to waive a constitutional right does not ordinarily carry with it the right to insist on the opposite of that right" (Singer v. United States, at pp 34-35 (p.638 of L.Ed.)); an accused could insist on trial by judge alone only if, after the constitutional right had been waived, the law made provision for that course. Section 7 of the Juries Act does permit the accused to elect for trial by judge alone, and for the reasons given I conclude that the provisions of s.80 do not prevent an accused person from waiving the constitutional right to trial by jury and making an election under s.7.
5. Persuasive authority in support of the view which I have formed is provided by the decisions of the Supreme Court of the United States which have established that the provisions of Art.III s.2(3) were meant to confer a right upon the accused which he might forego at his election: Patton v. United States [1930] USSC 74; (1930) 281 US 276, especially at pp 297-298 (74 Law Ed 854, at pp 862-863); Adams v. United States. Ex rel. McCann; Singer v. United States. It is true that this conclusion was supported in Patton v. United States (at pp 297-298 (pp.862-863 of Law Ed)) by a reference to the provisions of the Sixth Amendment which provides (inter alia) 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 ... " There is no counterpart of the Sixth Amendment in the Australian Constitution and in this respect the reasoning of the United States cases is not entirely applicable to the Australian Constitution. However, 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 s.2(3), and the judgments in those cases provide a guide to the meaning of the similar words of s.80.
6. In Canada it has been accepted that an accused person may waive the right given by the Charter of Rights and Freedoms to trial by jury: see Reg. v. Crate (1984) 1 DLR (4th) 149 and Reg. v. Bryant (1984) 48 OR(2d) 732, where the courts differed as to the effect of a "deemed" waiver. The relevant provisions of the Charter are in a form which resembles the Sixth Amendment rather than Art.III s.2(3).
7. It was submitted on behalf of the Director of Public Prosecutions that by the time when the Australian Constitution was being drafted it had become settled in the United States that Art.III s.2(3) made a jury indispensable, and that it should be assumed that the framers of s.80 intended that section to have the same effect. That argument cannot be accepted. The Supreme Court had not settled the meaning of Art.III by the time the Australian Constitution was drafted. Miller J., as he later became, in his Lectures on the Constitution of the United States, published in 1893, said, at p.500, that the language of Art.III excluded all other modes of trial than trial by jury, whether with or without the consent of the party. There was, however, no decision of the Supreme Court at that time which supported that view. On the other hand, the Supreme Court had, in Hallinger v. Davis [1892] USSC 221; (1892) 146 US 314, at p 318 (36 Law Ed 986, at p 989) referred to the fact that there were numerous decisions of the state courts upholding the validity of proceedings in which an accused had waived trial by jury and elected to be tried by the court, when there was a positive legislative enactment giving the right so to do and conferring power on the court to try the accused in such a case: see also In re Belt [1895] USSC 187; (1895) 159 US 95, at p 99 (40 Law Ed 88, at p 89). The state decisions were conflicting (see Willoughby, The Constitutional Law of the United States (1910), vol.II, pp 813-814 and Patton v. United States, at pp 290-291 (pp.859-860 of Law Ed)) but it certainly had not been established that an accused person could not consent to be tried without a jury. This, therefore, is not a case in which the provisions of the United States Constitution on which s.80 was modelled, or the provisions of state constitutions having a similar effect, had received an accepted interpretation which the framers of the Constitution must have intended that the provisions of s.80 should receive. The judgments of the Supreme Court of the United States in the later cases concerning the effect of Art.III s.2(3) are useful, not as reflecting a view which the framers of the Constitution must have accepted, but as showing how the Justices of that Court have resolved a similar problem.
8. There is an additional reason for holding that s.80 does not impose an immutable condition. It has been held in a long line of cases from R. v. Archdall and Roskruge; Ex parte Carrigan and Brown to Li Chia Hsing v. Rankin [1978] HCA 56; (1978) 141 CLR 182 and Kingswell v. The Queen [1985] HCA 72; (1985) 60 ALJR 17; 62 ALR 161, that s.80 applies only if there is an indictment and that the Parliament is free to decide whether any particular offence, however serious, may be tried summarily. This result, which Professor Sawer has said has rendered s.80 "in practice worthless" (Australian Federalism in the Courts (1967), p.19), no doubt attributes "a queer intention" to the framers of the Constitution (see R. v. Federal Court of Bankruptcy; Ex parte Lowenstein [1938] HCA 10; (1938) 59 CLR 556, at p 581). Nevertheless, the very significant change that was made in drafting the Constitution, by departing from the language of Art.III, which applied the guarantee to "the trial of all crimes" and providing instead that s.80 should apply to "the trial on indictment of any offence against the law of the Commonwealth", strongly supports the view that instead of affording real protection to the accused s.80 became "a mere procedural provision" (Spratt v. Hermes [1965] HCA 66; (1965) 114 CLR 226, at p 244). Notwithstanding the strong dissents of Dixon and Evatt JJ. in R. v. Federal Court of Bankruptcy; Ex parte Lowenstein and of Deane J. in Kingswell v. The Queen, the effect of s.80 appears to be settled by these decisions. The interpretation which they have given to s.80 supports the conclusion that its provisions may be waived by an accused person where the law provides a procedure allowing that to be done. 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.
9. It follows from what I have said that I am unable to accept the submission of the Director of Public Prosecutions that the guarantee given by s.80 operates in favour of the prosecutor as well as the accused, and that a waiver can be effected only if both parties concur in it. The provision was inserted for the benefit of the accused and not for the benefit of the prosecution. No support for the Director's argument is to be found in the United States cases. In Singer v. United States the court was concerned with the validity of a statutory provision which provided as follows:
"Cases required to be tried by jury shall be so
tried unless the defendant waives a jury trial in
writing with the approval of the court and the
consent of the Government."
It was held that there was no constitutional impediment to conditioning a waiver of the constitutional right to trial by jury on the consent of the prosecuting attorney and the trial judge since, if either refused to consent, the result would simply be that the defendant was subjected to an impartial trial by jury - the very thing the Constitution guaranteed him. There is nothing in the judgment in that case to support the Director's submission that the legislature was bound to condition the waiver of the right on the consent of the prosecution. There is no reason in principle why a waiver should be so conditioned, provided that the legislation which permits the accused to elect for an alternative mode of trial ensures that the waiver will be a free and informed one.
10. The fact that waiver of the right to trial by jury may have been unknown at the time when the Constitution was drafted (although, of course, the accused, when indicted, could have pleaded guilty and so obviated the need for any trial), and the plausible supposition that the question of waiver did not enter the minds of the framers of the Constitution, do not assist the contention that an accused person cannot waive the provisions of the section. It is trite but true to say 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. Further, as I have said, it was well known for centuries before the Constitution was drafted that a statutory right can be waived by the person for whose benefit it was granted.
11. For these reasons, the provisions of s.7 of the Juries Act validly applied to the trial of the appellant, notwithstanding that it was a trial on indictment for an offence against a law of the Commonwealth. Since the appellant made the election of which s.7 speaks, that section required that the trial proceed without a jury.
12. It is difficult to escape the conclusion, in these circumstances, that the conviction cannot be allowed to stand and that there should be a new trial. Technically, however, that question is not before us.
13. I would answer the question which is before the Court as follows:
Section 80 of the Constitution did not preclude the
appellant from electing pursuant to s.7(1) of the
Juries Act 1927 (S.A.) to be tried by a judge alone
for the offence with which he was charged.
I would remit the matter to the Supreme Court of South Australia to proceed in accordance with this judgment.
WILSON J.: On 30 April 1985 the appellant was presented for trial in the Supreme Court of South Australia on an information of the Director of Public Prosecutions of the Commonwealth of Australia ("the Director") charging him with the possession of prohibited imports, namely narcotic goods, contrary to s.233B(1)(ca) of the Customs Act 1901 (Cth) as amended. The appellant pleaded that he was not guilty of the charge and thereupon, purporting to rely upon s.7(1) of the Juries Act 1927 (S.A.) as amended, elected to be tried by the judge alone. The learned trial judge, White J., ruled that by reason of s.80 of the Constitution the appellant could not make such an election. The trial then proceeded by way of trial by jury. The appellant was convicted. Thereafter he appealed on the ground, inter alia, that the trial judge had erred in denying to him the right to elect to be tried by the judge alone. Whilst the appeal was pending in the Criminal Appeals jurisdiction of the Full Court of the Supreme Court of South Australia an application was made to this Court by the Attorney-General of the Commonwealth for the removal, pursuant to s.40(1) of the Judiciary Act 1903 (Cth) as amended, of so much of the cause as involved the question whether s.80 of the Constitution precluded the appellant from electing, in accordance with s.7(1) of the Juries Act, to be tried by the judge alone. That application was granted, with the result that the question is now before us for determination.
2. Section 80 of the Constitution reads:
"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".
It is common ground that the appellant was presented for trial on indictment of an offence against a law of the Commonwealth within the meaning of s.80. Acceptance of that statement provides the starting point for an examination of the question that has been removed. It renders unnecessary any detailed consideration of the earlier decisions of this Court which have determined authoritatively the meaning to be accorded to the phrase "trial on indictment of any offence" (R. v. Archdall and Roskruge; Ex parte Carrigan and Brown [1928] HCA 18; (1928) 41 CLR 128; R. v. Federal Court of Bankruptcy; Ex parte Lowenstein [1938] HCA 10; (1938) 59 CLR 556; Re Bell (1954) StRQd 159 (on appeal (1954) 92 CLR 665); Sachter v. Attorney-General for the Commonwealth [1954] HCA 43; (1954) 94 CLR 86; Zarb v. Kennedy [1968] HCA 80; [1968] HCA 80; (1968) 121 CLR 283; Li Chia Hsing v. Rankin [1978] HCA 56; (1978) 141 CLR 182; Kingswell v. The Queen [1985] HCA 72; (1985) 60 ALJR 17; 62 ALR 161 and to the phrase "any law of the Commonwealth" (R. v. Bernasconi [1915] HCA 13; (1915) 19 CLR 629).
3. The central proposition advanced by the Solicitor-General for the Commonwealth, on behalf of the Attorney-General, is that s.80 serves to guarantee to an accused person facing a trial on indictment the right or privilege of a trial by jury; it does not prevent the operation of laws which permit the voluntary and informed waiver by the accused person of that right or privilege. The submission was supported by counsel for the appellant and by the learned Solicitor-General for South Australia intervening on behalf of the Attorney-General of South Australia. On the other hand, the Director argues that s.80 renders trial by jury mandatory in the cases to which the section applies and that no waiver is possible. This submission is supported by counsel appearing for another intervener, the Attorney-General of Queensland.
4. In the course of argument, considerable attention was given to the practice of waiver of jury trial in the United States of America in the light of the material provisions of the U.S. Constitution. Article III, s.2(3) of that Constitution reads:
"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".
The Sixth Amendment to the Constitution was adopted in 1791, and reads as follows:
"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; to be confronted with the witnesses
against him; to have compulsory process for
obtaining witnesses in his favor, and to have the
Assistance of Counsel for his defence".
It was not until 1930 that the U.S. Supreme Court had occasion to consider the question of waiver of jury trial in a prosecution for a federal crime. In Patton v. United States [1930] USSC 74; (1930) 281 US 276; (74 Led 854) a juror became incapacitated in the course of the trial, leaving only eleven jurors. Both the defendant and the prosecutor consented to the trial proceeding to finality with eleven jurors. The Court (at p. 290 of U.S.; (p. 859 of L.ed.)) rejected in limine the distinction that had been sought to be made between the effect of a complete waiver of a jury trial and a consent to be tried by a number of jurors less than twelve. It perceived the answer to the question to depend upon the proper construction of Art. III, s.2(3): was it intended to be jurisdictional in the sense that the presence of a jury was essential to the exercise of the criminal jurisdiction of the court or was it directed to securing to an accused person the right or privilege of a jury trial? The conclusion of the Court was expressed, at pp. 296-297 of U.S.; (p. 862 of L.ed.), as follows:
"The record of English and colonial jurisprudence
antedating the Constitution will be searched in
vain for evidence that trial by jury in criminal
cases was regarded as part of the structure of
government, as distinguished from a right or
privilege of the accused. On the contrary, it
uniformly was regarded 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. Thus Blackstone, who held
trial by jury both in civil and criminal cases in
such esteem that he called it 'the glory of the
English law', nevertheless looked upon it as a
'privilege', albeit 'the most transcendent
privilege which any subject can enjoy.' Book III,
p. 379. And Judge Story, writing at a time when
the adoption of the Constitution was still in the
memory of men then living, speaking of trial by
jury in criminal cases said:
'When our more immediate ancestors
removed to America, they brought this
great privilege with them, as their
birthright and inheritance, as a part of
that admirable common law which had
fenced round and interposed barriers on
every side against the approaches of
arbitrary power. It is now incorporated
into all our State constitutions as a
fundamental right and the Constitution of
the United States would have been justly
obnoxious to the most conclusive
objection if it had not recognized and
confirmed it in the most solemn terms.'
2 Story on the Constitution, par. 1779.
In the light of the foregoing it is reasonable
to conclude that the framers of the Constitution
simply were intent upon preserving the right of
trial by jury primarily for the protection of the
accused ...".
It is to be observed that the Court did not rely in the first instance on the wording of the Sixth Amendment, which is clearly expressed in terms of privilege. The amendment was regarded as reflecting the meaning of Art. III, s.2(3):
"In other words, the two provisions mean
substantially the same thing ..." (p. 298 of U.S.;
(p. 863 of L.ed.)).
Being intended to confer a right upon an accused person, the right may be foregone by election. Nevertheless, the Court concluded its opinion, at p. 312 of U.S.; (p. 870 of L.ed.), with these words:
"Not only must the right of the accused to a trial
by a constitutional jury be jealously preserved,
but 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".
Patton was applied in Adams v. United States ex rel. McCann [1942] USSC 159; (1942) 317 US 269; (87 Led 268), where the Court upheld the capacity of the accused to waive an entire jury trial, even though the election was made without the benefit of advice from counsel, the accused having waived also his constitutional right to the assistance of counsel. At p. 280 of U.S.; (p. 275 of L.ed.), Frankfurter J., delivering the opinion of the Court, remarked that to deny an accused in the exercise of his free choice the right to dispense with some of the safeguards provided by the Constitution
"and to base such denial on an arbitrary rule that
a man cannot choose to conduct his defense before a
judge rather than a jury unless, against his will,
he has a lawyer to advise him, although he
reasonably deems himself the best advisor for his
own needs, is to imprison a man in his privileges
and call it the Constitution".
5. The most recent decision of the Supreme Court on the question of waiver that was cited to the Court is Singer v. United States [1965] USSC 34; (1965) 380 US 24; (13 Led2d 630). Here again, Patton was accepted and relied upon in the Court's rejection of a claim by Singer that he had an absolute right to elect to be tried by a judge alone notwithstanding the procedural rule of court that conditioned a waiver of his right to trial by jury upon the approval of the court and the consent of the government.
6. The answer to the issue lies in the proper construction of s.80. Taking the words of the section in their plain and ordinary meaning, there is obvious force in the submission of the Director. Its words stand in stark contrast to those of the Sixth Amendment to the U.S. Constitution. The subject matter of the section is the trial on indictment of a specified offence, not the rights or privileges of either the accused person or the Crown in relation to such a trial. The section is expressed in mandatory terms: "The trial ... shall be by jury ...". It binds both the Commonwealth and the accused person. The Director relies also on the apparent acquiescence in the United States, at the time when the Australian Constitution was being framed, in the view that trial by jury was the only permissible form of trial for serious offences against federal law. The matter is discussed in the opinion of the Supreme Court in Singer at pp. 31-32 of U.S.; (p. 636 of L.ed.), where reference is made to the views of some federal judges to that effect, including an observation of Story J. in 1834 when sitting on circuit in Massachusetts in the case of United States v. Gibert (1834) 25 Fed.Cas. 1287 (No. 15204) (CCD Mass. 1834). Cf. also Miller, Lectures on the Constitution of the United States (1893), pp. 499-500. The issue of whether jury trial could be waived in federal criminal cases did not present itself for decision in the Supreme Court until 1930 when Patton advanced his claim. It was otherwise, however, in the field of indictable offences under the laws of the States. Most State constitutions contained clauses designed to preserve the common law right to trial by jury and there were many conflicting decisions of State Supreme Courts on the question of waiver. In Hallinger v. Davis [1892] USSC 221; (1892) 146 US 314; (36 Led 986) the US Supreme Court held that a State statute permitting waiver of jury trial in criminal cases did not violate the due process clause of the Fourteenth Amendment. Shortly thereafter the matter was again before the Supreme Court in In re Belt [1895] USSC 187; (1895) 159 US 95; (40 Led 88). The Court said at p 99 of US; (p. 89 of Led):
"In Hallinger v. Davis, [1892] USSC 221; 146 US 314, 318, it was
said by this court: 'Upon the question of the
right of one charged with crime to waive a trial by
jury, and elect to be tried by the court, when
there is a positive legislative enactment, giving
the right so to do, and conferring power on the
court to try the accused in such a case, there are
numerous decisions by state courts, upholding the
validity of such proceeding ...'".
7. It was next submitted that trials on indictment otherwise than by jury were unknown in the Australian colonies prior to 1900. This would seem to be the case: see Reg. v. Alice Short (1898) 19 NSWR 385. The Convention debates on the draft clause which later became s.80 were extremely brief and proceeded without any mention of the possibility of a waiver of jury trial. Similarly, the cases in this Court in which s.80 has been discussed have not required the consideration of any question of waiver. They have proceeded on the tacit assumption that, as Higgins J. put it tersely in Archdall at p. 139,
"if there be an indictment, there must be a jury".
Indeed, the South Australian legislature has broken new ground in being the first parliament in Australia to confer upon an accused person presented for trial on indictment a right to elect trial by judge alone, this being done in 1984 by amendment to the Juries Act: amending Act No. 81 of 1984. Of course, it has always been possible at common law for a trial to proceed, with the consent of the accused person, notwithstanding that one of the jurors has become incapable of continuing as a juror: Reg. v. Charlesworth (1861) 1 B & S 460, at p 502; [1861] EngR 759; (121 ER 786), at p 802; Halsbury's Laws of England, 4th ed. (1979), Vol. 26, par. 640; or for an entire jury to be discharged by consent, after having been charged, in order that the trial may proceed with a fresh jury: Sir John Wedderburn's Case [1746] EngR 791; (1746) Fost 22; (168 ER 12); Reg. v. Deane (1851) 5 Cox CC 501; R. v. Stokes (1833) 6 Car & P 151; (172 ER 1185); Archbold, Pleading Evidence and Practice in Criminal Cases, 40th ed, par. 440(4).
8. The submission of the Director is to be tested against the legislative intention that is expressed in the words of s.80. It may not be right to stop short at the literal meaning of the critical words as conclusively answering the question of the proper construction of s.80. The words themselves do not deny a right in an accused person to waive trial by jury. There is no reason to suppose that the members of the Constitutional Convention in including those words in the draft Constitution were intent upon achieving such an objective. On the contrary, there is every reason to suppose their purpose to have been to protect the liberty of the citizen in a fundamental respect, namely, by securing his person against arbitrary or partial determination of his guilt of a serious offence by those armed with the executive power of the State. Blackstone found in such a purpose a sufficient explanation of the institution of trial by jury. Speaking of trial by jury, he said:
"The antiquity and excellence of this trial for the
settling of civil property has already been
explained at large. And it will hold much stronger
in criminal cases; since in times of difficulty and
danger, more is to be apprehended from the violence
and partiality of judges appointed by the crown, in
suits between the sovereign and the subject, than
in disputes between one individual and another, to
settle the metes and boundaries of private
property. Our law has, therefore, wisely placed
this strong and twofold barrier of a presentment
(that is, by a grand jury (my words)) and a trial
by jury between the liberties of the people and the
prerogative of the crown" (The Commentaries on the
Laws of England (1876 ed.), Vol. IV, at p. 360).
The only argument advanced in favour of the clause in the course of the Convention debates was that it was "a necessary safeguard to the individual liberty of the subject in every state": Official Record of the Debates of the Australasian Federal Convention, 3rd session, Vol. 1, p. 350. There is no inconsistency between such a purpose and the operation of a statute which in certain circumstances permits an accused person in the exercise of a free and informed choice to dispense with such a safeguard. On the contrary, to deny that person such a choice may well be, in the words of Frankfurter J. in Adams at p. 280 of U.S.; (p. 275 of L.ed.) which I have already cited, "to imprison a man in his privileges and call it the Constitution".
9. But, as I have said, the Director bases his stand not only on the literal meaning of the words of the section but on the fact that the procedure of waiver of jury trial was unknown in 1900. I do not think that this consideration strengthens his argument. It merely explains, perhaps, the form of the section and the absence of any reference to waiver in the Convention debates. It is true, of course, that in interpreting a statute it is necessary to determine the meaning of the words used as they were understood at the time when the statute was passed. But that is not all, particularly when it is a constitution that is being interpreted. For a constitution creates and underpins a body politic, providing an instrument of government that is intended to endure. It may lay down general propositions in terms that are wide enough to be capable of flexible application to changing circumstances. See, generally, Attorney-General for N.S.W. v. Brewery Employes Union of N.S.W. [1908] HCA 94; (1908) 6 CLR 469, at pp 611-612; Australian National Airways Pty. Ltd. v. The Commonwealth [1945] HCA 41; (1945) 71 CLR 29, at p 81; Spratt v. Hermes [1965] HCA 66; (1965) 114 CLR 226, at p 272; Damjanovic & Sons Pty. Ltd. v. The Commonwealth [1968] HCA 42; (1968) 117 CLR 390, at pp 407-408; Bonser v. La Macchia [1969] HCA 31; (1969) 122 CLR 177, at p 230; Victoria v. The Commonwealth [1971] HCA 16; (1971) 122 CLR 353, at pp 394-397. It does not follow, because the meaning of s.80 may be seen to have had a different operation in 1900 to that which it may have in 1986, that its original meaning has been changed or abandoned. What has happened is that the circumstances in which it is to be applied have changed. In 1900, as the Director correctly submits, waiver of jury trial was unpractised, indeed unknown, in Australia. Now we have a law of a State which prescribes the circumstances in which an accused person may make an election between jury trial and trial by judge alone and the appellant has sought to exercise that right. It is those new circumstances which provoke the present inquiry, namely, how is s.80, given its original purpose, consistently maintained, to be applied to the new situation?
10. From my consideration of the materials which have been made available in this case and to which I have referred, I have no doubt that the legislative purpose expressed in s.80 is wholly directed to effectively securing to an accused person presented for trial on indictment the right to have the general issue between him and the Crown determined by the verdict of a jury. I can attribute no other sensible purpose to it. It does not deny, either expressly or by implication, the exercise of a statutory right to make an informed choice between that mode of trial and a trial by judge alone. In this regard, I find the reasoning and decisions of the U.S. Supreme Court in Patton, Adams and Singer persuasive. It was argued by the Director that the Court's reasoning was dependent on the wording of the Sixth Amendment, which is clearly expressed in terms of the right of an accused person. But I am unable to accept this construction of these decisons. In Patton, the Court concluded that the purpose of Art. III, s.2(3) was to make clear that the right to trial by jury should remain inviolable, "to which end no language was deemed too imperative" (p. 297 of U.S.; (p. 863 of L.ed.)). The Sixth Amendment, referring to trial by jury clearly in terms of privilege, was seen at p. 298 of U.S.; (p. 863 of L.ed.) as supporting this conclusion:
"(It) is not to be regarded as modifying or
altering the earlier provision; and there is no
reason for thinking such was within its purpose.
The first ten amendments and the original
Constitution were substantially contemporaneous and
should be construed in pari materia. So construed,
the latter provision fairly may be regarded as
reflecting the meaning of the former. In other
words, the two provisions mean substantially the
same thing ...".
It seems to me that the Court's conclusion is founded squarely on the words of Art. III, s.2(3) and flows naturally from its consideration of the implications of the phrase "trial by jury". The absence from the Australian Constitution of any words comparable to the Sixth Amendment is therefore of no consequence in a consideration of the American decisions.
11. But there is one aspect of Patton which remains to be considered. The Director argued in the alternative that, if s.80 was to be construed as conferring a right to trial by jury, it must be taken as conferring that right on the Crown as well as on the accused person. He envisaged occasions when, notwithstanding the wish of an accused person to be tried by judge alone, the Crown could consider that the public interest in the administration of justice demanded a jury trial. I have already cited a passage from the Court's opinion in Patton which ruled that, before any waiver could become effective, the consent of government counsel and the sanction of the court was necessary in addition to the express and intelligent consent of the accused person. The ruling was made "with an eye to avoid unreasonable or undue departures" (p. 312 of U.S.; (p. 870 of L.ed.)) from the normal mode of trial. In Patton the Court was dealing with a case where there was no statutory prescription of the conditions precedent to a valid waiver. The right to waive was held to be implied from the grant of the right to jury trial in Art. III, s.2(3). It was therefore appropriate for the Court to express its conception of public interest requirements. But different considerations obtain where a legislature has directed its attention to what the public interest requires in such a case. Section 7 of the Juries Act provides as follows:
"7.(1) Subject to this section, where, in a
criminal inquest before the Supreme Court or a
District Criminal Court -
(a) the accused elects, in accordance with
the rules of court, to be tried by the
judge alone;
(b) the presiding judge is satisfied that the
accused, before making the election,
sought and received advice in relation to
the election from a legal practitioner,
(2) No election may be made under subsection
(1) where the accused is charged with a minor
indictable offence and has elected to be tried in a
District Criminal Court.
(3) Where two or more persons are jointly
charged, no election may be made under subsection
(1) unless all of those persons concur in the
election.
(4) Where a criminal inquest proceeds without
a jury in pursuance of this section, the judge may
make any decision that could have been made by a
jury on the question of the guilt of the accused,
and such a decision shall, for all purposes, have
the same effect as a verdict of a jury".
In substance, the Rules of Court prescribe the times when and the manner in which an election may be made. The accused person must also tender a certificate in writing, signed by a legal practitioner holding a current practising certificate, to the effect that the practitioner has advised the accused on all matters relevant to the accused making the election. The certificate must clearly identify the charges in respect of which the advice has been given (see Juries Rules, 1974-1984, rules 14, 16). It will be seen that although the presiding judge must be satisfied that the accused, before making the election, has sought and received advice in relation thereto from a legal practitioner, there is no general discretion in the judge to refuse to permit an election. Furthermore, there is no requirement that the Crown consent to an election.
12. In my opinion, the provisions of s.80 of the Constitution do not exclude the right of a person charged on indictment with a federal offence to exercise the right conferred by s.7 of the Juries Act. That section ensures that any decision to waive trial by jury is the expression of a free and informed choice by the accused person. In the light of the statute, it is not for the Court to insist that the public interest requires that the Crown should have a right to veto such a choice. In the due administration of criminal justice, an accused person has the right to make a number of choices that may make a major impact on the course of the trial. He may make admissions of fact, with consequences for the materiality and relevance of the evidence which the Crown had proposed to lead. He may choose to give evidence on oath or, in some jurisdictions, to make an unsworn statement or to say nothing at all. More fundamentally still, he may choose to plead guilty and thereby forestall any trial at all. The Crown has no part to play in any of these matters. Provided that an accused person has a fair trial according to law by a tribunal of his choice, the public interest is likely to be satisfied. There is no reason why the verdict of a jury should attract and hold the confidence of the community any more than the decision of a judge when the method of trial by judge alone has been freely chosen by the accused person and the choice expressed in the manner prescribed by law.
13. Given the construction of s.80 of the Constitution that I favour, s.68 of the Judiciary Act operates to apply the provisions of the Juries Act, including s.7, respecting the procedure for the trial on indictment of the appellant and the Supreme Court of South Australia has the like jurisdiction with respect to the appellant as it has with respect to persons charged with offences against the laws of South Australia (Judiciary Act, s.68(1) and (2)).
14. I would answer the question which has been removed into this Court in the negative.
BRENNAN J.: Michael Rodney Jonathon Brown ("the appellant") was committed for trial for an offence against s.233B(1)(ca) of the Customs Act 1901 (Cth). An information was presented to the Supreme Court of South Australia charging that, without reasonable excuse, he had in his possession 4,007.03 grammes of cannabis resin being not less than a trafficable quantity which was reasonably suspected of having been imported into Australia in contravention of the Customs Act. He was arraigned before White J. and he pleaded not guilty. An accused person who pleads not guilty to an information presented to the Supreme Court of South Australia is taken "to have put himself upon the country for trial" and the Court then proceeds to his trial "in the usual manner" (Criminal Law Consolidation Act 1935 (S.A.), s.284(1)), that is, there is a trial by jury (see Stephen, History of the Criminal Law of England (1883), vol.1, pp.297,300; Blackstone's Commentaries (1769) Book IV, p.344). But s.7 of the Juries Act 1927 (S.A.), introduced by an amending Act in 1984, provides, inter alia:
" (1) Subject to this section, where, in a
criminal inquest before the Supreme Court or a
District Criminal Court -
(a) the accused elects, in accordance with the
rules of court, to be tried by the judge
alone;
(b) the presiding judge is satisfied that the
accused, before making the election,
sought and received advice in relation to
the election from a legal practitioner,
(4) Where a criminal inquest proceeds without
a jury in pursuance of this section, the judge
may make any decision that could have been made
by a jury on the question of the guilt of the
accused, and such a decision shall, for all
purposes, have the same effect as a verdict of a
jury."
The appellant purported to elect to be tried by the judge alone. White J. ruled that s.80 of the Constitution precluded the appellant from electing to be tried by judge alone and directed that the trial should proceed before a jury. The jury found the appellant guilty. He appealed to the Full Court against his conviction on the ground, inter alia, that White J. erred in ruling that he was not entitled to elect to be tried by a judge alone. Pursuant to s.40(1) of the Judiciary Act 1903 (Cth) so much of the cause "as involves the question whether section 80 of the Constitution precluded the (appellant) from electing pursuant to sub- section 7(1) of the Juries Act 1927 (S.A.) as applied by section 68 of the Judiciary Act 1903 to be tried by a Judge alone for the offence with which he was charged" was removed into this Court. The appellant submits that he was entitled to waive his right to trial by jury despite s.80 of the Constitution and that, having done so in accordance with s.7 of the Juries Act, he could not properly be convicted on the verdict of a jury. It is common ground that the trial of the appellant upon his pleading to the information was to be a "trial on indictment of (an) offence against (a) law of the Commonwealth" for the purposes of s.80 of the Constitution but it is in contest whether the constitutional guarantee of trial by jury could have been waived by the appellant so that he should have been tried by a judge alone in conformity with s.7 of the Juries Act.
2. Section 80 of the Constitution is modelled on Article III section 2 clause 3 of the Constitution of the United States of America which provides:
" 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."
3. The Sixth Amendment to the Constitution of the United States relates to the same subject matter and provides, inter alia, as follows:
" 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, ..."
4. Article III section 2 has been construed not as a mandatory provision requiring trial by jury in all cases falling within its terms but as guaranteeing a right to trial by jury which, being a right for the benefit of an accused, may be waived by him in the exercise of a free and intelligent choice provided the waiver is approved by the responsible judgment of the trial court: Patton v. United States [1930] USSC 74; (1930) 281 US 276 (74 LawEd854); Adams v. US; Ex rel. McCann [1942] USSC 159; (1942) 317 US 269 (87 LawEd268); Singer v. United States [1965] USSC 34; (1965) 380 US 24 (13 LawEd 2d 630). However, the Supreme Court of the United States has denied that an accused has a constitutional right, by waiver of a jury, to trial by a judge alone where the trial court does not approve that mode of trial. His "only constitutional right concerning the method of trial is to an impartial trial by jury" (Singer, at p.36 (p638); see also pp31,34 (pp636, 637)). The operation attributed to Article III section 2 is seen to be the same as the operation attributed to the Sixth Amendment and, as the Sixth Amendment is expressed as a right to be enjoyed by an accused person, Article III section 2 has been treated as conferring such a right also - a right which an accused person might waive (see Patton, pp297-298,310 (pp862-863,867)). In those States where Constitutions are expressed to confer a right to trial by jury, the right has been held susceptible of waiver in the same way as the right conferred by the Sixth Amendment (see, for example, State of Iowa v. Henderson (1980) 9 ALR4th 689, at p 692; 287 NW 2d 583, at p 585; Short v. Commonwealth of Kentucky (1975) 519 SW 2d 828), but even in those States whose Constitutions deal with the matter only in mandatory terms - "shall be by a jury" - some State courts have held that the provision does no more than guarantee a right which might be waived: see State v. Griggs (1890) 34 WVa78; 11 SE 740, approved in Hendershot v. Hendershot (1980) 263 SE 2d 90, at pp 94-95, contra State v. Camby (1935) 209 NC50; 182 SE 715.
5. By analogy, it is submitted that s.80 of the Australian Constitution should be construed as creating and conferring a right which might be waived. But the analogy is false. The Australian Constitution and the history of this country do not reveal the same reasons as those assigned by the Supreme Court of the United States for construing Article III section 2 as permitting waiver. Our Constitution contains no equivalent of the Sixth Amendment which might compel a departure from the primary meaning of the mandatory words in s.80; nor do we have a long history of judicially recognized waiver of trial by jury. In such considerations and in the abolition of attainder following a judgment upon conviction for felony, the Supreme Court in Patton found sufficient reasons for denying that Article III section 2 made trial by jury mandatory, although the Supreme Court recognized "the peremptory words" of the Article which is "mandatory in form" (Patton, at pp.300,301 (p.864)) and acknowledged the general rule of the common law that an accused was not permitted to waive trial by jury (Patton, at p.306 (p.867)). In my opinion, there is no reason why s.80 of our Constitution should not be construed as making trial by jury mandatory. That is the plain meaning of the words "the trial ... shall be by jury".
6. In this country, although there has been a division of judicial opinion as to the cases to which the requirement of trial by jury applies (see especially the dissenting judgments of Dixon and Evatt JJ. in R. v. Federal Court of Bankruptcy; Ex parte Lowenstein [1938] HCA 10; (1938) 59 CLR 556 and of Deane J. in Kingswell v. The Queen [1985] HCA 72; (1985) 60 ALJR 17; 62 ALR 161), there has been no hint that the language of s.80 permits waiver of trial by jury. At common law no waiver was permitted, even after attainder was abolished. Once trial by ordeal was no longer available to determine guilt in criminal cases, trial by jury was the only mode of trial available though the accused was required formally to consent to trial by jury by putting himself upon the country (Holdsworth, A History of English Law 7th ed. (1956), vol.I, 326-327). So far from permitting waiver of trial by jury, the law of England for centuries compelled an accused to plead and thereby to put himself upon the country. That was an essential preliminary to trial and conviction by jury. If an accused stood mute of malice, he was ordered to suffer peine forte et dure until he pleaded or was crushed to death in the press - a "senseless barbarity", as Holdsworth calls it. It was not until 1772 that it was enacted (12 Geo.III c.20) that standing mute in cases of felony should be equivalent to a conviction. A more civilized procedure was enacted in 1827 (7 and 8 Geo.IV c.28). There is nothing in the practice of the courts of common law which suggests that the clear mandatory language of s.80 should be denied the operation which the words require. Accordingly, any person charged on indictment with a federal offence who pleads not guilty must be tried by jury. That is to say, the issues joined between the Crown and the accused are determined by the verdict of a jury and, once the verdict is accepted, the judgment of the court is founded on and conforms with that verdict (R. v. Snow [1915] HCA 90; (1915) 20 CLR 315, at pp 324,365). At common law, the jury is an essential constituent of any court exercising the jurisdiction to try persons charged on indictment. Of course, if there are no issues to try, the jury has no role to perform. If a person is convicted on his plea or the Crown files a nolle prosequi, there is no trial. Those cases are not exceptions to the general rule; they are not within it.
7. 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. The verdict is the jury's alone, never the judge's. Authority to return a verdict and responsibility for the verdict returned belong to the impersonal representatives of the community. We have fashioned our laws governing criminal investigation, evidence and procedure in criminal cases and exercise of the sentencing power around the jury. It is the fundamental institution in our traditional system of administering criminal justice. Section 80 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 organization of any court exercising that jurisdiction.
8. Section 80 is, by force of Covering Clause 5 of the Constitution Act, binding on the courts of the States. Therefore a trial on indictment of any offence against any law of the Commonwealth which is held before a State court must be by jury, whatever be the source of the court's jurisdiction and by whatever statutory formula that jurisdiction be invested. If a law of the Commonwealth purported to invest federal jurisdiction in a State court and to authorize or require that court to exercise the invested jurisdiction inconsistently with s.80, the law would be invalid at least in part. Either the grant of jurisdiction would fail or the provision which authorized or required the exercise of the jurisdiction inconsistently with s.80 would be nugatory. Jurisdiction to try persons charged on indictment with federal offences is conferred on State courts by s.68(2) of the Judiciary Act and by s.39(2) of that Act so far as the general provisions of s.39(2) are not inconsistent with the more particular provisions of s.68(2) (Adams v. Cleeve [1935] HCA 12; (1935) 53 CLR 185, at pp 190-191; Reg. v. Bull [1974] HCA 23; [1974] HCA 23; (1974) 131 CLR 203, at pp 233-234; 258-259; 275). We need not consider the general provisions of s.39(2) in the present case; it is sufficient to consider the more particular provisions of s.68(2).
" The several Courts of a State or Territory
exercising jurisdiction with respect to -
(b) the examination and commitment for trial
on indictment; or
of offenders or persons charged with offences
against the laws of the State or Territory, and
with respect to the hearing and determination of
appeals arising out of any such trial or
conviction or out of any proceedings connected
therewith, shall, subject to this section and to
section 80 of the Constitution, have the like
jurisdiction with respect to persons who are
charged with offences against the laws of the
Commonwealth."
The Supreme Court of South Australia, as a State court exercising jurisdiction with respect to the trial and conviction on indictment of persons charged with offences against the laws of the State, is vested with analogous federal jurisdiction (Williams v. The King (No.1) [1933] HCA 54; (1933) 50 CLR 536, at p 543), but the vesting is "subject to ... section 80 of the Constitution". Whether those words are read as a mere statutory reiteration of the constitutional prescription of the mode of trial to be adopted in exercising federal jurisdiction, or as a condition on the grant of jurisdiction, there is nothing in s.68(2) which is inconsistent with s.80 of the Constitution. The question is not whether there is an inconsistency between s.80 of the Constitution and s.68(2) of the Judiciary Act. Rather, the question is whether the head of legislative power upon which s.68(2) relies (that is, s.77(iii) of the Constitution) supports an investing of federal jurisdiction in a court which sometimes sits to exercise its ordinary jurisdiction without a jury.
10. Section 77(iii) does not empower the Parliament to affect or alter the constitution or organization of a State court which it vests with federal jurisdiction except in accordance with s.79 of the Constitution; the Parliament must vest the jurisdiction in the State court as it finds it: see Le Mesurier v. Connor (1929) 42 CLR 481, at pp 496,498; Adams v. Chas. S. Watson Pty.Ltd. [1938] HCA 37; (1938) 60 CLR 545, at pp 554-555; Peacock v. Newtown Marrickville and General Co-operative Building Society No.4 Ltd. [1943] HCA 13; (1943) 67 CLR 25, at p 37; Russell v. Russell [1976] HCA 23; (1976) 134 CLR 495, at pp 516,530,535,554. On the other hand, the Parliament may enact laws prescribing the procedure and practice to be observed by a State court in exercising federal jurisdiction vested in it: Baxter v. Commissioners of Taxation (N.S.W.) [1907] HCA 76; (1907) 4 CLR 1087, at p 1145; Lorenzo v. Carey [1921] HCA 58; (1921) 29 CLR 243, at pp 252-253; The Commonwealth v. Limerick Steamship Co. Ltd. and Kidman [1924] HCA 50; (1924) 35 CLR 69, at p 105; Russell v. Russell, at pp 518, 519,530,535-536,554-555. A law which merely regulates procedure and practice is within power, but a law which purports to effect "the reconstitution of the (State) tribunal itself or of the organization through which its powers and jurisdiction are exercised" is beyond power for those matters cannot be considered incidental to the exercise of vested jurisdiction (Le Mesurier v. Connor, at p 498 and cf. Russell v. Russell, at pp 519,555).
11. For the reasons I have stated, the constitutional requirement of a jury relates to the constitution or organization of the court itself. Therefore s.77(iii) would not support a law which purported to vest jurisdiction to try persons charged on indictment with federal offences in a State court which is so constituted or organized that it cannot sit with a jury in exercising its analogous ordinary jurisdiction. A law enacted under s.77(iii) cannot require a court which does not sit with a jury to be reconstituted or reorganized to sit with a jury. It follows that such a court cannot be vested with jurisdiction which s.80 requires to be exercised by a court sitting with a jury, and a law which purported to vest such a jurisdiction in such a court would be invalid. The constitutional limitation on the power of the Parliament to alter or affect the constitution and organization of a State court is calculated to ensure that the Court may exercise the invested jurisdiction when it is constituted and organized in the same manner as that in which it is constituted and organized when it is exercising its analogous ordinary jurisdiction. The limitation is observed if the constitution and organization through and by which the invested jurisdiction is to be exercised is the constitution and organization through and by which the court can exercise its analogous ordinary jurisdiction. In the exercise of the ordinary criminal jurisdiction of the Supreme Court of South Australia, a mode - indeed the usual mode - of trial of persons charged on indictment is trial by jury. The constitution and organization of the Supreme Court as a court sitting with a jury makes it an available repository of federal criminal jurisdiction.
12. When a State court may be constituted or organized in more than one way to exercise its ordinary jurisdiction, the Parliament is not constrained when investing the court with federal jurisdiction to follow the State law which prescribes the circumstances in which the court is to be constituted or organized in one way or another. To the extent that State law prescribes those circumstances it is merely procedural, regulating which cases within the court's ordinary jurisdiction are to be tried in one way and which cases are to be tried in another. If the Parliament chooses to require the State court to exercise the invested jurisdiction by adopting one of the modes of trial which State law prescribes for the exercise of the court's analogous ordinary jurisdiction, the Parliament does not purport to require the State court to alter its constitution or organization. Thus s.39(2)(d) of the Judiciary Act prescribes a "condition or restriction" on the exercise of jurisdiction invested in State Courts of Petty Sessions. It provides:
" The federal jurisdiction of a Court of summary
jurisdiction of a State shall not be judicially
exercised except by a Stipendiary or Police or
Special Magistrate, or some Magistrate of the
State who is specially authorized by the
Governor-General to exercise such jurisdiction."
In Queen Victoria Memorial Hospital v. Thornton [1953] HCA 11; (1953) 87 CLR 144 a unanimous court stated that s.39(2)(d) is valid (and cf. per Gibbs J. in Kotsis v. Kotsis [1970] HCA 61; (1970) 122 CLR 69, at p 111). If it be within the power of the Parliament to require a State Court of Petty Sessions to exercise its jurisdiction in the manner prescribed by s.39(2)(d) although, in the exercise of its ordinary jurisdiction, such a court may be constituted by lay justices (see Troy v. Wrigglesworth [1919] HCA 31; (1919) 26 CLR 305), a fortiori the Parliament is empowered to require a State Supreme Court which ordinarily sits with a jury in criminal trials to be constituted and organized in accordance with s.80 of the Constitution so that it sits with a jury whenever it exercises its analogous invested jurisdiction. As trial by jury can be and ordinarily is adopted by the Supreme Court of South Australia for the trial of persons charged on indictment for State offences, the investing of that Court with jurisdiction to try persons charged on indictment with federal offences subject to s.80 of the Constitution is supported by s.77(iii) of the Constitution.
13. Section 68(1) of the Judiciary Act does not apply a law of a State respecting procedure to persons charged with offences against the laws of the Commonwealth when the State law is not "applicable" to those persons. Nor does s.79 of the Judiciary Act. Section 7 of the Juries Act is not applicable to persons charged on indictment with offences against the laws of the Commonwealth, for such an application would give s.7 an operation inconsistent with s.80 of the Constitution. Accordingly, neither s.68(1) nor s.79 of the Judiciary Act picks it up. Perhaps it should be added that the validity and operation of s.7 with respect to the Supreme Court's jurisdiction to try persons charged with offences under the law of South Australia is unaffected by the Constitution or by the Judiciary Act.
14. It follows that the appellant was not entitled to invoke s.7 of the Juries Act to waive trial by jury. White J. was correct so to hold and the first ground of appeal should be dismissed. I would 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 (S.A.) to be tried by a judge alone
for the offence with which he was charged.
The matter should be remitted to the Supreme Court of South Australia to proceed in accordance with this answer.
DEANE J.: The primary provision of s.80 of the Constitution is not framed in terms of a mere conferral of a privilege. Its words are mandatory. Its command is unqualified. "The trial on indictment of any offence against any law of the Commonwealth shall be by jury" (emphasis added). To interpret that absolute requirement as consistent with the notion that such a trial does not have to be by a jury at all if a particular accused thinks he might do better before a judge alone would be to refuse to give effect to the plain meaning of unambiguous words. In my view, there is nothing in the content of the section or in the authorities which provides any warrant for such a refusal.
2. It is true that the peremptory prescription of trial by jury as the method of trial on indictment of any offence against any law of the Commonwealth represents an important constitutional guarantee against the arbitrary determination of guilt or innocence. That constitutional guarantee is, however, for the benefit of the community as a whole as well as for the benefit of the particular accused. As Griffith C.J. pointed out in R. v. Snow [1915] HCA 90; (1915) 20 CLR 315, at p 323, the requirement of s.80 is "a fundamental law of the Commonwealth" which should be prima facie 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." The adoption of that institution reflected "a fundamental decision about the exercise of official power" (see Duncan v. Louisiana (1968) 391 US 145, at p 156 (20 Law Ed 2d 491, at p 500)) or, to repeat words I used in Kingswell v. The Queen [1985] HCA 72; (1985) 60 ALJR 17, at p 30, "a deep-seated conviction of free men and women about the way in which justice should be administered in criminal cases", namely that, regardless of the position or standing of the particular alleged offender, guilt or innocence of a serious offence should be determined by a panel of ordinary and anonymous citizens, assembled as representative of the general community, at whose hands neither the powerful nor the weak should expect or fear special or discriminatory treatment. That essential conception of trial by jury helps to ensure that, in the interests of the community generally, the administration of criminal justice is, and has the appearance of being, unbiased and detached. It fosters the ideal of equality in a democratic community which Cardozo J. identified in the course of an eloquent tribute to Oliver Wendell Holmes: "He has vividly perceived ... that stronger even than the love of liberty is the passion for something different, different in name and yet at its core the same, the passion for equality" ("Mr. Justice Holmes", Harvard Law Review, vol.40 (1931), 682, at p.687). The institution of trial by jury is also a source of other benefits to the community as a whole. In Kingswell (at pp.31-32), I endeavoured to identify the more important of them. It is unnecessary that I repeat what I there said. It suffices to say that the advantages of trial by jury to the community generally serve to reinforce what the plain words of the Constitution convey, namely, that the general prescription of trial by jury as the method of trial on indictment of any offence against any law of the Commonwealth constitutes an element of the structure of government and distribution of judicial power which were adopted by, and for the benefit of, the people of the Federation as a whole. To construe the fundamental law of s.80 as involving no more than the mere conferral of a privilege would be to distort the whole by confining attention to a single aspect.
3. If one turns to authority, one finds that, without any exception at all, the relevant statements in judgments in this Court are inconsistent with the view that the adoption in the Constitution of the institution of trial by jury should be reduced to the mere status of a privilege which can be waived by an accused. Even in judgments which, in my view mistakenly, give the phrase "trial on indictment" a meaning which would deprive s.80 of much of its effectiveness, one finds the consistent assertion that the section requires that every trial of the kind referred to must be by jury. Thus, in R. v. Bernasconi [1915] HCA 13; (1915) 19 CLR 629, at p 637, Isaacs J. was at pains to stress the generality of the imperative that a trial on indictment of any offence against any law of the Commonwealth shall be by jury:
"By force of the various sections of Chapter III.
other than sec.80 and aided by sub-sec.xxxix. of
sec.51, Parliament might have enacted, or might
have enabled Courts to provide by rules, that all
offences whatever should be tried by a Judge or
Judges without a jury. Sec. 80 places a limitation
on that power. Neither Parliament nor Courts may
permit such a trial. 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).
The final sentence of the above passage was reflected in the oft-cited dictum of Higgins J. in R. v. Archdall and Roskruge; Ex parte Carrigan and Brown [1928] HCA 18; (1928) 41 CLR 128, at p 139, that "if there be an indictment, there must be a jury" (emphasis added). That dictum of Higgins J. has commonly been seen as possessing the undeniable accuracy of a truism.
4. To the like effect is the statement of Latham C.J. in R. v. Federal Court of Bankruptcy; Ex parte Lowenstein [1938] HCA 10; (1938) 59 CLR 556, at p 570:
"sec.80 relates only to trials which are in fact
trials on indictment. Such trials must be by
jury - that is the meaning of the section"
(emphasis added).
And of Dixon and Evatt JJ. in the same case (at p.583):
"What then is the essence of a 'trial upon
indictment' which sec.80 insists shall be by jury?"
(emphasis added).
And of Menzies J. in Zarb v. Kennedy [1968] HCA 80; (1968) 121 CLR 283, at p 298:
"this section means no more than it says, i.e., that
every trial on indictment shall be by jury"
(emphasis added).
5. To these unqualified and unambiguous statements, one should add the above-quoted comment of Griffith C.J., in Snow (at p.323), that the requirement of s.80 involved "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." Neither constitutional law nor the common law of England had contemplated that trial by jury was a matter of choice which could be waived at will. To the contrary and putting to one side cases of special privilege, trial by jury had, for centuries, been the only and obligatory method of trial of all serious offences under the common law of England.
6. There was, in the course of argument, discussion of some decisions of the Supreme Court and some State courts of the United States of America in relation to the question whether waiver of trial by jury was consistent with various constitutional provisions in that country. For my part, I derive no real assistance from those decisions. True it is that s.80 of the Australian Constitution was based upon Article III s.2 cl.3 of the United States Constitution. The Australian Constitution, however, contains no provision corresponding to the United States Sixth Amendment which refers to "the right to a speedy and public trial, by an impartial jury" (emphasis added). At the time of the adoption of the Australian Constitution, the predominant view in the United States would appear to have been that waiver of trial by jury of a serious offence was not permitted under Article III s.2 cl3 (see, e.g., US v. Gibert 25 Fed. Cas. 1287, at p 1305 and the discussion in Columbia Law Review, vol.8 (1908), at pp 577-579). The subsequent decisions of the United States Supreme Court in Patton v. United States [1930] USSC 74; (1930) 281 US. 276 (74 Law Ed 854) and Adams v. United States. Ex rel McCann [1942] USSC 159; (1942) 317 US 269 (87 Law. Ed. 268) upholding the constitutionality of a limited right of waiver are based largely on special considerations - a history of State decisions upholding waiver as consistent with State constitutional provisions and the context provided by the Sixth Amendment - which find no parallel in this country. It is a matter of speculation whether, without those special considerations, a different view would have prevailed in the Supreme Court (cf. Singer v. United States [1965] USSC 34; (1965) 380 US 24, at pp 31-36 (13 Law Ed2d 630, at p 636-638)). In these circumstances, those subsequent decisions and the reasoning upon which they are founded are of but peripheral relevance on the question of the construction of s.80. In particular, I am unable to accept as applicable to this country the colourful statement of Frankfurter J. in Adams (at p.280 U.S., (p.275 Law. Ed.)) to the effect that to deny the constitutional validity of a provision allowing waiver of trial by jury "is to imprison a man in his privileges and call it the Constitution." That statement, upon which counsel for the appellant placed particular reliance, is based upon an assumption that the constitutional requirement of trial by jury represents no more than a privilege for the benefit of an individual accused. Neither in logic nor in law can it survive a conclusion that that underlying assumption is false for this country. Indeed, one might as well say that to refuse to allow an accused to have his guilt or innocence determined by the toss of a coin is to imprison him in the constitutional privilege of having guilt or innocence determined by the due exercise of judicial power.
7. It can therefore be seen that there is no conflict, for the purposes of the present case, between the obvious meaning of the words of s.80, the essential nature and function of the section and the content of relevant statements in this Court about its meaning and effect. They all point to the same conclusion. That conclusion is that the command of s.80 applies, according to its terms, in respect of the trial on indictment of any offence against any law of the Commonwealth. "Neither Parliament nor Courts may permit" that such a trial be "by a Judge or Judges without a jury" (per Isaacs J. in R. v. Bernasconi, at p 637). "Such trials must be by jury - that is the meaning of the section" (per Latham C.J. in Lowenstein, at p 570). That constitutional requirement binds all the courts of this country and prevails over any contrary provision of any law of the Commonwealth or a State Parliament. That being so, White J. was correct in ruling in the Supreme Court of South Australia in the present case that s.7 of the Juries Act 1927 (S.A.) could not validly authorize the trial on indictment by a judge without a jury of the appellant's alleged offence against a law of the Commonwealth.
8. Section 7 of the Juries Act was introduced, in its present form, in 1984. At and since the time of its introduction, the established venues for the trial on indictment of offences against laws of the Commonwealth committed in South Australia were and have remained the State Supreme and District Criminal Courts exercising federal jurisdiction vested in them pursuant to s.68(2) of the Judiciary Act 1903 (Cth). Subject to presently irrelevant exceptions, s.7 provides that "where, in a criminal inquest before the Supreme Court or District Criminal Court", the accused elects, in accordance with the Rules of Court, for trial by a judge alone and the judge is satisfied that the accused has received prior legal advice, "the inquest shall proceed without a jury". Section 3(1) of the Juries Act defines "criminal inquest" as meaning "trial before a court of criminal jurisdiction of any indictable offence".
9. As has been said, the mandatory requirement of s.80 of the Constitution prevails over any contrary provision of any law of a State. If s.7 of the Juries Act had purported expressly to include trials on indictment of offences against laws of the Commonwealth among the cases where the "trial shall proceed without a jury", its provisions would, even if otherwise within legislative power, exceed the competence of the Parliament of South Australia by reason of direct conflict with the requirement of s.80 that such trials shall be by jury. In fact, the provisions of s.7 contain no express reference at all to trials for Commonwealth offences. In the context of the definitions contained in s.3(1), they refer indifferently to the trial of any indictable offence in the South Australian and District Criminal Courts. As a matter of ordinary language however, they would apply to the trial on indictment of Commonwealth offences in those courts. If so construed, they would purport to authorize the trial on indictment of Commonwealth offences by a judge alone and would thereby contravene the command of s.80. To that extent, they must be read in accordance with the directive of s.22a(1) of the Acts Interpretation Act 1915 (S.A.) requiring that every provision of every Act of the Parliament of South Australia "be construed so as not to exceed the legislative power of the State". So construed, they do not apply, of their own force, to the trial on indictment of an offence against a law of the Commonwealth.
10. The direction of s.80 of the Constitution also precludes the Parliament of the Commonwealth from enacting a valid law making the provisions of s.7 of the Juries Act indirectly applicable to the trial on indictment of Commonwealth offences in the South Australian courts. In fact, the Parliament has not attempted to enact any law having that effect. To the contrary, the provisions of s.68(2) of the Judiciary Act 1903 (Cth) vesting jurisdiction in State courts in relation to such offences are expressly made "subject ... to section 80 of the Constitution" while the provisions of s.68(1) of that Act apply State laws of procedure to the trial of such offences only "so far as they are applicable to persons who are charged with offences against the laws of the Commonwealth ..." (see also Judiciary Act, s.79: "except as otherwise provided by the Constitution").
11. The final question which arises is whether the enactment of the provisions of s.7 precluded the continued vesting in the South Australian courts of jurisdiction in the trial on indictment of Commonwealth offences. The answer to that question is that it did not. There are two distinct reasons for that answer. The first is that, as has already been seen, the provisions of s.7 of the Juries Act must be construed subject to the overriding provision of s.80 and as not intended to apply in respect of the trial of Commonwealth offences in the South Australian courts. So construed, they pose no obstacle to the vesting of jurisdiction in the State courts on terms which reinforce their inapplicability to the trial upon indictment of Commonwealth offences. The second reason is that, even if the provisions of s.7 were construed as purportedly applying to all trials in South Australian courts, they would not, for the reasons given by Brennan J. in his judgment (which I have had the benefit of reading in draft form), preclude the continued vesting in the South Australian Supreme and District Criminal Courts constituted by a judge and jury of jurisdiction with respect to Commonwealth offences.
12. It follows that the Supreme Court of South Australia had jurisdiction to entertain the trial of the appellant for the offence against a law of the Commonwealth alleged against him and that the Supreme Court was properly constituted by a judge and jury for the appellant's trial.
13. It should perhaps be mentioned that, quite properly, no attempt was made in argument before the Court to assess the desirability, from the viewpoint either of the community generally or of a particular accused, of allowing an accused to elect to be tried by a judge without a jury in some or all trials on indictment of an offence against a law of the Commonwealth. The assessment and balancing of the advantages and disadvantages either of trial by jury in general or of allowing an accused to elect to be tried by a judge alone in particular are not in point here. What is in point here is that the Constitution has, in clear terms, ordained that the trial on indictment of any offence against any law of the Commonwealth shall be by jury. If there are arguments for modifying the generality of that constitutional requirement, the proper audience for them is not this Court.
14. I would answer the question which is before the Court as follows:
Section 80 of the Constitution precluded the
appellant from electing pursuant to s.7(1) of the
Juries Act 1927 (S.A.) to be tried by a judge alone
for the offence with which he was charged.
I would remit the matter to the Supreme Court of South Australia to proceed in accordance with this judgment.
DAWSON J.: The appellant was prosecuted in the Supreme Court of South Australia for the possession of cannabis resin in circumstances making it an offence under s.233B(1)(ca) of the Customs Act 1901 (Cth). The Supreme Court was, therefore, exercising federal jurisdiction conferred upon it by ss.39(2) and 68(2) of the Judiciary Act 1903 (Cth) pursuant to s.77(iii) of the Constitution. The appellant purported to elect to be tried without a jury pursuant to s.7 of the Juries Act 1927 (S.A.) but the trial judge ruled that by reason of s.80 of the Constitution he was unable to do so. The appellant was tried by jury and convicted. He appealed to the Full Court of the Supreme Court of South Australia sitting as a court of criminal appeal and the question was removed into this Court whether s.80 has the effect which the trial judge held it did.
2. Section 80 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."
3. There can be no real doubt that the words of s.80, given their literal meaning, required the appellant to be tried by jury. He was charged, it was agreed, by indictment and he was charged with an offence against a law of the Commonwealth. But the argument is put - and I hope I do it no injustice by stating it shortly - that s.80 affords no more than a personal guarantee of trial by jury which, because it is for the benefit of the appellant, may be waived by him. The strength of that argument, if not its origin, is to be found in decisions upon comparable provisions in the Constitution of the United States of America: Patton v. United States [1930] USSC 74; (1930) 281 US 276 (74 Law Ed 854); Adams v. US ex rel McCann [1942] USSC 159; (1942) 317 US 269 (87 Law Ed 268); Singer v. United States [1965] USSC 34; (1965) 380 US 24 (13 Law Ed 2d 630). Those provisions, when read together as they must be, are by no means identical and are comparable in a broad sense only.
4. Before turning to the American Constitution, it is necessary to recognize the authority which is to be found in the cases supporting the right of waiver by a person of a statutory requirement which exists for his benefit. Examples are to be found in the waiver of such matters as a period of limitation or a requirement that notice be given of some matter. The benefit must, however, be a personal or private one and must not rest upon public policy or expediency: Great Eastern Railway Co. v. Goldsmid (1884) 9 App Cas 927; Wilson v. McIntosh (1894) AC 129; Toronto Corporation v. Russell (1908) AC 493; Equitable Life Assurance Society of the United States v. Reed (1914) AC 587; Davies v. Davies [1919] HCA 17; [1919] HCA 17; (1919) 26 CLR 348. It is, of course, of the very nature of a constitution that it deals with matters of public concern and it is not to be expected in a constitution such as the Constitution of the Commonwealth of Australia which, almost without exception, deals with the structure and relationships of government rather than with individual rights or freedoms, that there should be found provisions by way of guarantee with a private rather than a public significance such that they might be waived at the election of the individual for whose benefit they exist. Nor does Ch.III of the Constitution, which is concerned with the organization of the federal judicature and contains s.80, suggest a likely repository for any such provision. Moreover, the administration of criminal justice, which is the subject of s.80, is regarded in our system of law as being of public rather than private concern. Its standards are consistently maintained and are not relaxed, even with the consent of the parties or either of them, in an individual or particular case. As the Privy Council pointed out in Reg. v. Bertrand (1867) LR 1 PC 520, at p 534:
"The object of a trial is the administration of
justice in a course as free from doubt or chance of
miscarriage as merely human administration of it
can be - not the interests of either party. This
remark very much lessens the importance of a
Prisoner's consent, even when he is advised by
Counsel, and substantially, not, of course,
literally, affirms the wisdom of the common
understanding in the profession that a Prisoner can
consent to nothing."
5. Trial by jury is the method selected by s.80 for the achievement of this high aim in proceedings upon indictment, and there is nothing on the face of that section to suggest that the benefits which it secures may be waived as a matter of choice by either the accused or the prosecution. No doubt the section confers a benefit on every person charged on indictment under a Commonwealth law, but its benefits extend beyond the individual and its guarantee is more than personal. I shall return to this aspect of the matter in more detail; it is sufficient to observe at this point that it could not be suggested, nor was it in fact suggested, that waiver of the mode of trial prescribed by s.80 might be supported solely by reference to the common law waiver of private rights conferred by statute. Reliance was instead placed chiefly upon the interpretation given by the United States Supreme Court to the relevant provisions of the United States Constitution which are Art.III s.2(3) and the Sixth Amendment.
6. Article III s.2(3) provides:
"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."
"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; to be confronted with the witnesses
against him; to have compulsory process for
obtaining witnesses in his favor, and to have the
Assistance of Counsel for his defence."
7. It was not until 1930 that the United States Supreme Court in Patton v. United States first considered whether an accused person charged with a serious crime might waive trial by jury. The Court decided that he might and did so upon the basis that the constitutional provisions for trial by jury did not establish that mode of trial as part of the frame of government, but only as a guarantee to an accused person of the right to such a trial. As a personal guarantee, the right might be waived.
8. It was, I think, crucial to that decision that Art.III s.2(3) was read together with the Sixth Amendment with the result that the right which it conferred was regarded as being of the same character as that conferred by the latter provision. At p.298 of U.S.; p.863 of Law. Ed., the Court said of the Sixth Amendment:
"This provision, which deals with trial by jury
clearly in terms of privilege, although occurring
later than that in respect of jury trials contained
in the original Constitution, is not to be regarded
as modifying or altering the earlier provision; and
there is no reason for thinking such was within its
purpose. The first ten amendments and the original
Constitution were substantially contemporaneous and
should be construed in pari materia. So construed,
the latter provision fairly may be regarded as
reflecting the meaning of the former. In other
words, the two provisions mean substantially the
same thing ... Upon this view of the constitutional
provisions we conclude that Article III, Section 2,
is not jurisdictional, but was meant to confer a
right upon the accused which he may forego at his
election. To deny his power to do so, is to
convert a privilege into an imperative
requirement."
9. It is, in my view, clear that the wording of Art.III s.2(3) would not have led to the same conclusion were it not for the presence of the Sixth Amendment. When the Court said that the latter provision "is not to be regarded as modifying or altering the earlier provision", it can only have meant that the right conferred by Art.III s.2(3) must be taken to have always been of the same character as that referred to in the Sixth Amendment. That character, however, is to be derived from the Sixth Amendment, which alone speaks in terms appropriate to privilege. Indeed, Art.III s.2(3) does not speak in terms of rights at all, whether by way of privilege or otherwise, and by itself would plainly seem to be referring to trial by jury in a structural or organizational sense. See Miller, Lectures on the Constitution of the United States (1893), p.500. And the decision in Schick v. United States [1904] USSC 158; (1904) 195 US 65, at pp 68-69 (49 Law Ed 99, at pp 101-102) makes it apparent that in 1904, shortly after federation in Australia, the Supreme Court was not confident of the absence of variance between Art.III s.2(3) and the Sixth Amendment when it said that if there was any conflict in meaning "the one found in the Amendments must control, under the well-understood rule that the last expression of the will of the lawmaker prevails over an earlier one."
10. It is clear that s.80 of the Australian Constitution was drafted with Art.III s.2(3) and not the Sixth Amendment in mind and that at the time it was drafted Patton's Case had not revealed the light which the Sixth Amendment has since been found to shed upon the meaning of the earlier provision. State constitutions in the United States, however, generally provided for trial by jury and the right to waive that mode of trial had been upheld in a number of instances. As the Supreme Court observed in 1892 in Hallinger v. Davis [1892] USSC 221; (1892) 146 US 314, at p 318 (36 Law Ed 986, at p 989):
"Upon the question of the right of one charged
with crime to waive a trial by jury, and elect to
be tried by the court, when there is a positive
legislative enactment, giving the right so to do,
and conferring power on the court to try the
accused in such a case, there are numerous
decisions by state courts, upholding the validity
of such proceeding."
See also In re Belt, Petitioner [1895] USSC 187; (1895) 159 US 95 (40 Law Ed 88). But there were conflicting decisions and in 1910 Professor Willoughby wrote that "inharmonious doctrines have been declared": The Constitutional Law of the United States (1910), vol2, p813. It was not until 1904 that it was decided in Schick v. United States that in the case of minor federal offences trial by jury was a privilege which might be waived by the accused, minor offences not being regarded as crimes within the constitutional guarantees. As I have already indicated, it was only in 1930 that the decision in Patton established the position in relation to criminal offences falling within the constitutional provisions so that the practice of waiver of trial by jury had before then been recognized only in some cases in the American states. It does, however, appear that waiver of trial by jury was not unknown in the American colonies before the adoption of the United States Constitution. See Griswold, Waiver of Jury Trial in Criminal Cases (1934) 20 Va. L. Rev. 655, at p.657.
11. On the other hand, the common law knew no such practice. The only mode of trial of criminal offences was by jury, summary proceedings requiring authorization by statute except in the case of contempt. See Blackstone's Commentaries (1769), Book 4, ch.20, p.280. It would be reasonable to suppose that the position at common law, rather than the somewhat confused position in the United States, was in the minds of those responsible for the inclusion of s.80 in the Australian Constitution, the common law having prevailed in the Australian colonies before federation. Certainly it cannot be said that there was an accepted interpretation of Art.III s.2(3) of the American Constitution by 1900 which those who framed the Australian Constitution must be said to have adopted.
12. Before departing from Patton v. United States, there are two observations which I should make, even though the actual basis of the decision was that trial by jury could be waived because it was a privilege personal to the accused. The Court was not prepared to allow it to be waived by the accused alone without "the consent of government counsel and the sanction of the court". At the conclusion of its judgment and without further explanation, the Court said, at p.312 of U.S.; p.870 of Law. Ed.:
"Not only must the right of the accused to a trial
by a constitutional jury be jealously preserved,
but 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."
I must confess that these remarks and the additional requirements which they impose for the effective exercise of the waiver, seem to me to deny the personal nature of the guarantee of trial by jury and to admit to public circumstances which, upon ordinary principles, would preclude the right of the individual to waive a benefit.
13. The second observation is that, in placing reliance upon the terms of the Sixth Amendment, the Court in Patton's Case regarded as significant not only the fact that the provision speaks of the right to trial by jury in terms appropriate to privilege, but also the fact that it confers other rights which are even more clearly by way of personal guarantee. It did so by citing, at p.310 of U.S.; p.869 of Law. Ed., the following passage from Schick's Case, at pp.71-72:
"Article six of the amendments, as we have
seen, gives the accused a right to a trial by jury.
But the same article gives him the further right
'to be confronted with the witnesses against him
... and to have the assistance of counsel.' Is it
possible that an accused cannot admit and be bound
by the admission that a witness not present would
testify to certain facts? Can it be that if he
does not wish the assistance of counsel and waives
it, the trial is invalid? It seems only necessary
to ask those questions to answer them. When there
is no constitutional or statutory mandate, and no
public policy prohibiting, an accused may waive any
privilege which he is given the right to enjoy."
There is, I think, further evidence in the adoption of this passage of the influence which the form of the Sixth Amendment had upon the Court in its construction of Art.III s.2(3) bearing in mind that the two provisions were read in pari materia.
14. Patton's Case was applied in Adams v. US ex rel McCann where it was held that an accused might waive trial by jury without the help or advice of counsel. In effect, the decision was that an accused might at one and the same time waive his privilege to be tried by a jury and his privilege to have the assistance of counsel for his defence, both being privileges guaranteed by the Sixth Amendment. In Singer v. United States, the Court was concerned with a federal rule providing that cases required to be tried by jury should be so tried unless the defendant waived a jury trial in writing with the approval of the court and the consent of the government. The petitioner had attempted to waive trial by jury in criminal proceedings against him but the consent of the government was not forthcoming and the trial proceeded to conviction before a jury. The Court held that whilst the Constitution guaranteed trial by jury - a privilege which might be waived - it conferred no correlative right to trial by a judge alone. Accordingly, the conviction was upheld. The comment may, however, be made that the effect of the decision was to deny to the accused his right to waive his privilege upon a ground involving the public interest, namely, the lack of governmental consent, suggesting once again that the right to trial by jury under the Constitution is not merely a private right, which might for that reason be waived, but that it also exists for the public benefit so as to preclude waiver upon ordinary principles. This is, I think, to be seen in the following passage from the judgment of the Court at p.36 of U.S.; p.638 of Law. Ed.:
"A defendant's only constitutional right concerning
the method of trial is to an impartial trial by
jury. We find no constitutional impediment to
conditioning a waiver of this right on the consent
of the prosecuting attorney and the trial judge
when, if either refuses to consent, the result is
simply that the defendant is subject to an
impartial trial by jury - the very thing that the
Constitution guarantees him. The Constitution
recognizes an adversary system as the proper method
of determining guilt, and the Government, as a
litigant, has a legitimate interest in seeing that
cases in which it believes a conviction is
warranted are tried before the tribunal which the
Constitution regards as most likely to produce a
fair result."
15. The position in the United States may be contrasted with that in Canada. There the Canadian Charter of Rights and Freedoms in the Constitution Act 1982 provides in s.11(f) that any person charged with an offence has the right to the benefit of trial by jury where the maximum punishment for the offence is imprisonment for five years or a more severe punishment. Quite clearly this provision is couched in terms of a personal guarantee and the courts have so regarded it, allowing an accused to waive trial by jury in accordance with those sections of the Criminal Code which provided for waiver both before and after the adoption of the Charter of Rights and Freedoms: Korponey v. Attorney- General of Canada (1982) 132 DLR (3d) 354; Reg. v. Crate (1983) 1 DLR (4th) 149; Reg. v. Bryant (1984) 48 OR (2d) 732.
16. Section 80 of the Australian Constitution must, in my opinion, be read differently. As I have said, it does in fact provide a privilege or personal guarantee in cases tried on indictment, but it is expressed to do more than that. It was modelled upon Art.III s.2(3) of the American Constitution apparently without regard to the Sixth Amendment and at a time before it was clear that the two American provisions must be construed so as to avoid any conflict between them. It is to be found in that chapter of the Constitution which erects the federal judicature and its language suggests that trial by jury for indictable offences was intended to be part of the structure of government rather than the grant of a privilege to individuals. That, as I have said, is consistent with the general framework of the Australian Constitution which, with few exceptions and in contrast with its American model, does not seek to establish personal liberty by constitutional restrictions upon the exercise of governmental power. Dixon and Evatt JJ. in their dissenting judgment in R. v. Federal Court of Bankruptcy; Ex parte Lowenstein [1938] HCA 10; (1938) 59 CLR 556, at p 580, thought that s.80 was such an exception but did not turn their attention to the ultimate scope of s.80, which is not limited to individual privilege. The privilege which it does confer is contained within the wider prescription of trial by jury in all prosecutions upon indictment. It is thus that the section spells out positively, and not by way of restriction, the method by which a particular function is to be performed. Notwithstanding that it may operate to secure a privilege, s.80 speaks in terms of function rather than freedom.
17. It is apparent even without reference to the Convention Debates (see Official Record, vol.II, p.1894, 4 March 1898) that at least one reason why the requirement of trial by jury was limited in s.80 to trials on indictment was in order to avoid the American experience in which difficulty was found in giving a literal meaning to the words of both Art.III and the Sixth Amendment. Those provisions are expressed to require trial by jury of all crimes and in all criminal prosecutions and do not contemplate summary proceedings. The solution was found in the United States in restricting the application of those provisions to serious offences, but this in turn gave rise to the difficulty of distinguishing between minor and serious offences. See Schick v. United States. The Australian answer to the problem, which was to restrict the application of s.80 to trials on indictment, has been said to reduce s.80 to "a mere procedural provision" (Spratt v. Hermes [1965] HCA 66; (1965) 114 CLR 226, at p 244) because the result is that it is for the Commonwealth to determine whether an offence is to be tried on indictment or not, thus determining whether the trial is to be by jury or not. This view of s.80 has not been without its forceful critics (Dixon and Evatt JJ. in Lowenstein and Deane J. in Kingswell v. The Queen [1985] HCA 72; (1985) 60 ALJR 17; 62 ALR 161), but such an interpretation of the section has withstood challenge for many years. See R. v. Bernasconi [1915] HCA 13; (1915) 19 CLR 629; R. v. Archdall and Roskruge; Ex parte Carrigan and Brown [1928] HCA 18; (1928) 41 CLR 128; Sachter v. Attorney-General for the Commonwealth [1954] HCA 43; (1954) 94 CLR 86; Zarb v. Kennedy [1968] HCA 80; (1968) 121 CLR 283; Li Chia Hsing v. Rankin [1978] HCA 56; (1978) 141 CLR 182. There has, however, been nothing in the Australian experience so far which would put the limits of this view of s.80 to any severe test.
18. I express myself in this way because it seems to me, with respect, that it is overstating the position to say that s.80 has been reduced to a procedural provision or that it does not yet lay down in the words of Griffith C.J. in R. v. Snow [1915] HCA 90; (1915) 20 CLR 315, at p 323, "a fundamental law of the Commonwealth". At federation, summary proceedings, which are the creature of statute, were reserved for less serious offences whereas trial on indictment was the ordinary method for the trial of all other offences, bearing in mind that trial on indictment has an extended meaning in this country which encompasses a "trial ... initiated by some step taken by the Crown or some instrument or agent of government". See Kingswell, at p.38 of A.L.J.R.; p.198 of A.L.R.; see also Lowenstein, at p.583. There is, of course, difficulty in drawing a precise line between serious and less serious offences, as the United States experience shows, but I do not think that there has since federation been any instance in a law of the Commonwealth of obvious or deliberate disregard for the distinction in order to avoid trial by jury. It does not much matter whether this is because of the presence of s.80 itself or because our criminal procedures and the occasions appropriate for their use are so deeply ingrained that government may abuse them only at its peril. It means that s.80 is not without force and that there is no justification for departure from the plain meaning of its words merely because theory rather than practice sees weakness in the choice which it offers the Commonwealth in the mode of prosecution to be adopted.
19. Nor is it to be thought that the framers of the Constitution, in adopting language in s.80 which imposes a governmental obligation rather than confers a personal guarantee, were unmoved by the fact that the benefits of trial by jury are not enjoyed by an accused person alone. At federation, no less than now, there were public as well as private advantages in that procedure which would more than justify the use of language in s.80 denying any opportunity for waiver. As Deane J. put it in Kingswell, at p.31 of A.L.J.R.; p.188 of A.L.R.:
"The institution of trial by jury also serves
the function of protecting both the administration
of justice and the accused from the rash judgment
and prejudices of the community itself. 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 (at least at the
time of decision) from external influences and the
insistence upon its function of determining the
particular charge according to the evidence
combine, for so long as they can be preserved or
observed, 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."
20. Furthermore, there is, in my view, no warrant for departure from the plain terms of s.80 merely because waiver of trial by jury is seen by some as a convenient device in modern times. It is an erroneous view that changing circumstances are of themselves a sufficient justification for the adaptation of constitutional provisions, whether or not the result is in disregard of the original intent. The interpretation of the Constitution still involves, as it always has, ascertaining and giving effect to the intention which is to be gathered from its words. It is not a process which allows those words to be given any meaning which they can bear merely because it is thought that changed circumstances require a different response. Of course, because a constitution is intended to endure, the intention of those who framed it must be applied to situations of which they did not conceive. In that sense a constitution must be interpreted as an adaptable instrument which is capable of a flexible application. But the perception of changed circumstances cannot of itself ever justify an interpretation which conflicts with the original intention, for a constitution must be a charter upon which more than temporary reliance can be placed.
21. I am far from persuaded that current experience shows that it is desirable that trial by jury should be a matter for election in trials on indictment but, in any event, the terms in which s.80 is expressed are, in my view, sufficiently clear to preclude an interpretation which would allow such a choice.
22. The result is that when an offence against a law of the Commonwealth is tried on indictment, there can be no waiver of trial by jury. That is a result which is required by s.80, but the precise way in which the requirement is met under the current legislation calls for further examination.
23. Under s.68(2) of the Judiciary Act, the courts of a State exercising jurisdiction with respect to, amongst other things, the trial and conviction on indictment of offenders charged with offences against the laws of a State, shall, subject to the section and to s.80 of the Constitution, have the like jurisdiction with respect to persons who are charged with offences against the laws of the Commonwealth. It is possible to put to one side s.39(2) of the Judiciary Act, notwithstanding that it also confers upon State courts federal jurisdiction in criminal matters, because s.68(2) vests jurisdiction independently and may in fact have an operation which is more extensive than that of s.39(2): Ah Yick v. Lehmert [1905] HCA 22; (1905) 2 CLR 593; Adams v. Cleeve [1935] HCA 12; (1935) 53 CLR 185, at pp 190-191; Reg. v. Bull [1974] HCA 23; (1974) 131 CLR 203, at pp 233-234, 245, 258-259 and 275. And it is s.68(2) which, unlike s.39(2), expressly confers jurisdiction with respect to the trial and conviction on indictment of federal offenders upon those State courts which exercise a like jurisdiction in the case of State offenders.
24. Section 68(1) provides, so far as is relevant, that the laws of a State respecting the arrest and custody of offenders or persons charged with offences, and the procedure for their trial and conviction on indictment shall "subject to this section, apply and be applied so far as they are applicable to persons who are charged with offences against the laws of the Commonwealth in respect of whom jurisdiction is conferred on the several courts of that State ... by this section."
25. The South Australian Juries Act, s.7 of which confers a right to elect to be tried by a judge alone, has of its own force no application to the trial of an offence against a law of the Commonwealth; it is directed to the trial of offences under State law. For it to apply to the trial of Commonwealth offences it must be taken up and applied by a Commonwealth law: Seaegg v. The King [1932] HCA 47; (1932) 48 CLR 251; Williams v. The King (No.1) [1933] HCA 54; (1933) 50 CLR 536; Williams v. The King (No.2) [1934] HCA 19; (1934) 50 CLR 551. It is unnecessary to consider whether a Commonwealth law which did no more than vest jurisdiction would by implication take up and apply the Juries Act or those parts which are applicable, because this is what s.68(1) of the Judiciary Act does expressly. But it does so only to the extent that the provisions of the Juries Act are applicable to persons charged with offences against the laws of the Commonwealth and it is apparent that, by reason of s.80 of the Constitution, s.7 of the Juries Act can have no application to such persons if they are tried on indictment. Under s.80 they must be tried by jury and cannot elect to be tried by a judge alone. There is no difficulty about the application of the Juries Act otherwise. It can operate independently of s.7 which introduced waiver of trial by jury by election only in 1984. To disregard s.7 in the application of the Juries Act is not to interfere with the constitution or organization of the State court; it is merely to deny to an accused a right which he would otherwise have. Without s.7, the Juries Act provides for trial by jury as a matter of course for offences tried on indictment and so provides the mode of trial required by s.80.
26. This is a convenient result which makes it unnecessary to consider the difficult questions which might otherwise arise if, for example, a State were to abolish altogether trial by jury for offences against State laws. In those circumstances there would be no mode of trial by jury under State law which could be taken up and applied by s.68(1). Whether or not s.68(2) would then still operate to vest federal jurisdiction or, at all events, a jurisdiction which was capable of exercise in relation to the trial of offenders on indictment, is something about which I need express no present view. And of course, any attempt to prescribe by Commonwealth law a mode of trial in State courts for which there was no provision under State law would raise, at least, the difficulty that in investing State courts with jurisdiction, the Commonwealth Parliament must accept their existing constitution and organization: Le Mesurier v. Connor (1929) 42 CLR 481, at pp 496 and 498; Russell v. Russell [1976] HCA 23; (1976) 134 CLR 495, at pp 517-518, 530, 535 and 554. These problems do not arise in this case.
27. For the foregoing reasons, I think that the learned trial judge was right in refusing to allow the appellant to elect to be tried by judge alone. The matter should be remitted to the Supreme Court of South Australia for it to deal with the appeal accordingly.
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
(S.A.) to be tried by a judge alone for the offence with
which he was charged.
Remit the matter to the Supreme Court of South Australia to proceed in accordance with the reasons for judgment of the majority of this Court.
# Brown
R \[1986\] HCA 11;
(1986) 160 CLR 171
(1928) 41 CLR 128
(1919) 26 CLR 348
(1978) 141 CLR 182
(1985) 60 ALJR 17
(1938) 59 CLR 556
(1965) 114 CLR 226
(1954) 92 CLR 665
(1954) 94 CLR 86
(1968) 121 CLR 283
(1915) 19 CLR 629
(1908) 6 CLR 469
(1945) 71 CLR 29
(1968) 117 CLR 390
(1969) 122 CLR 177
(1971) 122 CLR 353
(1915) 20 CLR 315
(1935) 53 CLR 185
(1974) 131 CLR 203
(1933) 50 CLR 536
(1929) 42 CLR 481
(1938) 60 CLR 545
(1943) 67 CLR 25
(1976) 134 CLR 495
(1907) 4 CLR 1087
(1921) 29 CLR 243
(1924) 35 CLR 69
(1953) 87 CLR 144
(1970) 122 CLR 69
(1919) 26 CLR 305
(1905) 2 CLR 593
(1932) 48 CLR 251
(1934) 50 CLR 551