Brownlee v The Queen [2001] HCA 36 | Case summary

Brownlee v The Queen [2001] HCA 36 | Case summary | Zoe

Notwithstanding that the applicant's trial was conducted before a judge and jury, and that the verdict of guilty was that of a jury, and that the trial was conducted in accordance with the Jury Act, the applicant contends that his trial was not "by jury" within the meaning of s 80 of the Constitution. The grounds of that contention will be examined below. The argument for the applicant necessarily involves the proposition that, in certain respects, contemporary jury trial practice in New South Wales differs from the meaning of the words "trial ... by jury" in s 80 of the Constitution. The applicant was tried according to contemporary standards in New South Wales, and those standards are generally comparable to the standards in other Australian jurisdictions. If a person sought information concerning the current characteristics in Australia of the mode of criminal trial procedure known as trial by jury, the most obvious place to find such information would be in the Jury Act, and corresponding legislation of other States and Territories. The argument for the applicant must be, and is, that certain essential characteristics of trial by jury within the meaning of that expression in s 80 of the Constitution, are not reflected in the Jury Act.
A similar argument succeeded in Cheatle v The Queen[2]. This Court unanimously held that a provision of the Juries Act 1927 (SA), providing for majority verdicts, was inconsistent with s 80 in its application to a trial for a Commonwealth offence. In that case, the convicted person had been tried by jury, in South Australia, according to current South Australian standards, but not, so the Court held, according to the standards inherent in the constitutional expression, by which unanimity of jury verdict was an essential characteristic of trial by jury. No attempt has been made in this case to argue that Cheatle was wrongly decided, or that the reasons of the Court were based upon erroneous principles.
To say that a trial before a judge and jury, conducted in accordance with the practice established by legislation in an Australian jurisdiction, is not trial by jury within the meaning of s 80, is to say that the meaning of those words in the Constitution is not determined by, and that the practical application of those words does not vary with, current trial practice. Yet trial by jury, as a mode of criminal procedure, has changed substantially over the centuries, and continues to change. If the constitutional expression has a meaning that is not tied to current trial practice, but has a meaning against which current practice must be measured, in the case of trial on indictment for Commonwealth offences, how is that meaning to be determined?
In Cheatle, the Court repeatedly used the phrase "requirement of unanimity" in its explication of the constitutional expression. It decided that "history, principle and authority" compelled the conclusion that the expression imported such a requirement[3]. In relation to history, the Court's consideration included, but was not limited to, the law and practice governing jury trials in the Australian colonies at the time of federation. Such inquiry was both proper and necessary. It was not undertaken for the purpose of psychoanalysing the people who were involved in framing the Constitution. It was undertaken because the exercise upon which the Court was embarked involved ascertaining the meaning of an instrument which came into being in a certain manner, at a certain time, and for a certain purpose. Since the instrument was brought into being as an instrument of government, which would need to respond to changing circumstances and conditions over time, it would be wrong to attribute to its reference to the procedure of trial by jury a meaning which treated as frozen in time all the incidents of the procedure as they were known at Federation. Accordingly, the Court did not confine its inquiry to historical circumstances before or at the time of Federation. It also considered issues of legal principle, and English, American and Australian authority.
In the resolution of a problem as to the interpretation of the Constitution, the significance of the circumstances surrounding the framing of the instrument will vary according to the nature of the problem. An understanding of the context in which an instrument was written is ordinarily useful, and sometimes essential, for an understanding of its meaning. To recognize that is not to treat the subjective understanding of the framers, if it is possible to find any such common understanding, as the determining factor in a dispute about interpretation. It is simply to accept the historical context in which an instrument was written, which such an understanding may reflect, as potentially relevant to a question about the meaning of the instrument. Similarly, the genesis of an instrument may throw light upon its meaning. In the case of an ordinary statute, so much is expressly recognized by s 15AB of the Acts Interpretation Act 1901 (Cth). The same can apply in the case of the Constitution.
Here, the question at issue concerns the meaning of "trial … by jury" in s 80. The question is being asked for the purpose of considering an argument that a trial, conducted in accordance with the standards of contemporary legislation and practice in New South Wales, was not trial by jury within the meaning of s 80. It is relevant to inquire whether there was, at the time of the Constitution, something about criminal law or practice that might justify a conclusion that the words have a meaning such that essential elements of trial by jury were absent in the present case. As the process of reasoning in Cheatle demonstrates, that is not the only inquiry to be made. But it is not something that can be ignored. If the meaning of "trial … by jury" is to be determined solely by reference to contemporary standards, there is nothing to argue about. Contemporary standards are reflected in the Jury Act. Whether right or wrong, the applicant's argument is that, when used in s 80, the expression embodies different standards.

In Theophanous v Herald & Weekly Times Ltd[4], Brennan J said that the Constitution "speaks continually to the present and it operates in and upon contemporary conditions". However, in the same passage he pointed out that it speaks in the language of the text, which is to be "construed in the light of its history, the common law and the circumstances or subject matter to which the text applies". That is consistent with the approach to construction that was adopted in Cheatle.
The contemporary standards as to trial by jury which are reflected in the Jury Act, are those of the New South Wales Parliament. If those standards do not satisfy the constitutional requirement, it can only be because the meaning of the constitutional text produces that result. It cannot be because the contemporary judiciary espouses values different from those of the contemporary legislature. The only relevant power of the judiciary, which has its source in the Constitution, is to give effect to the meaning of the Constitution. Judges have no power to formulate and declare their own standards of jury trial, which override those of the legislature.
One of the most significant aspects of the history of trial by jury before, and up to, the time of Federation is that it shows that the incidents of the procedure never have been immutable; they are constantly changing. Indeed, trial by jury did not come to the Australian colonies as part of the common law upon European settlement. It was introduced into each of the colonies by legislation, and the legislation varied[5].
There are two respects, of relevance to the trial of the applicant, in which the Jury Act is said to depart from the requirements of s 80. First, s 22(a)(i) provides that where, in the course of a trial, any member of the jury dies or is discharged by the court whether as being through illness incapable of continuing to act or for any other reason, the jury shall be considered as remaining for all the purposes of that trial properly constituted if, in the case of criminal proceedings, the number of its members is not reduced below 10. Secondly, s 54(b) provides that the jury in criminal proceedings may, if the court so orders, be permitted to separate at any time after they retire to consider their verdict.
Both of those provisions came into operation at the applicant's trial. A jury of 12 was empanelled. Over the course of a lengthy trial, two members were discharged. Ten remained. The applicant was convicted by the (unanimous) verdict of those 10. The members of the jury were permitted to separate after they retired to consider their verdict. We are not concerned with the discretionary decisions of the trial judge, as to the discharge of jurors, or their separation during deliberations. Our approval or disapproval of those decisions is not invited, and is irrelevant. Our only concern is whether the provisions of the Jury Act referred to above are inconsistent with the trial by jury of which s 80 of the Constitution speaks, and, therefore, inapplicable to a trial on indictment for a Commonwealth offence.
It was argued that the conduct of the applicant and his lawyers at the trial meant that he had lost his right to complain about what occurred by waiver. That question only arises if it is concluded that there was, at the trial, a departure from the requirements of s 80. If there was no such departure, then there was nothing to waive. The argument on the point raised factual as well as legal issues.
In Huddart, Parker & Co Pty Ltd v Moorehead[6], in 1909, O'Connor J said:

As the decision in Cheatle shows, that is not an exhaustive statement, for it makes no reference to unanimity. However, it is a useful starting point for a consideration of the legal and historical context in which the words "trial … by jury" appeared in the Constitution. That it distinguishes between essential and inessential features is unsurprising. It is unnecessary to recount the evolution of trial by jury in England. Some of the history is set out in Cheatle[7]. Over the period from the origin of jury trial up to the end of the nineteenth century, there were many changes in the characteristics and incidents of jury trial, and there have been many since then. In the case of a procedure which has undergone so many changes, it is impossible to contend that all of its characteristics at any given time ought to be regarded as essential. Its history demonstrates that they are not.
It is true, as the applicant's argument observes, that at common law, when a juror died or became ill, a fresh jury had to be sworn, although sometimes the remaining jurors were re-empanelled and a fresh juror sworn[8]. But this was inconvenient, and is even more obviously inconvenient in modern times of long trials and increasingly crowded court lists[9].
Before Federation, there was legislation in Victoria which empowered a trial judge to order that a criminal trial continue with fewer than 12 jurors[10]. Section 628 of the Criminal Code Act 1899 (Qld) provided that if a juror died or became incapable of continuing to act, a criminal trial could proceed with not less than 10 jurors, provided the accused and the prosecutor consented. To like effect was s 625 of the Criminal Code Act 1902 (WA). This had been foreshadowed in the Criminal Code Bill of 1899 of Western Australia. In New Zealand, s 408(4) of the Criminal Code provided that if one or more jurors became incapable of continuing to act, a criminal trial could proceed with the remaining jurors, provided the accused and the prosecutor consented. Similar legislation was enacted in the other States, and in the United Kingdom, early in the twentieth century[11].
There is, therefore, no historical foundation for a claim that the context in which the Constitution was framed suggests that "trial … by jury" in s 80 means a trial at which a verdict is given by no fewer than 12 jurors. On the contrary, modification of this feature of jury trials, to meet the kind of problem to which s 22(a)(i) of the Jury Act is addressed, was well known.
The function of jury trial is not such as to make it essential that the common law rule be preserved in its full rigour. Adopting a functional approach to questions of the validity of State legislation permitting juries of a lesser number than 12, the Supreme Court of the United States held that such a reduction in numbers was consistent with the corresponding constitutional guarantee. In Williams v Florida[12] White J, delivering the opinion of the Court, said:

Various issues respecting the construction of s 22 were considered by this Court in Wu v The Queen[28], but not with respect to a trial on indictment of an offence against a law of the Commonwealth. At the trial of Mr Brownlee, two members of the jury were discharged for reasons other than incapacity through illness, and the number of members of the jury was not reduced below 10. It thus is apparent that the issue for determination here is focused upon par (a)(i) of s 22. It is unnecessary for the determination of the present application to reach any conclusion respecting the compatibility of par (a)(iii) with s 80, but further reference to it will be made later in these reasons. Paragraph (a)(ii) contemplates reduction to any number below 10 provided there is approval in writing by the prosecution and the accused.
It should be noted that the special leave application has been argued on the footing that, as a consequence of the reasoning and decision in Brown v The Queen[29], if reduction in jury numbers below 10 cannot stand with the requirement of s 80 for trial "by jury", then, notwithstanding par (a)(iii) of s 22 of the Jury Act, that deficiency could not be remedied by waiver.
It also has been assumed that, if any reduction in the course of trial in the number of jurors to below 12 would conflict with the imperative imposed by s 80, that deficiency could not be remedied by waiver. The Attorney-General of the Commonwealth, who intervened in opposition to the special leave application, sought leave to re‑open Brown. That leave was refused in the course of the hearing. No issue concerning the application to this case of the reasoning in Brown or the correctness of Brown itself would arise for decision unless in either or both of the respects urged by the applicant for special leave the conduct of his trial had failed to meet what was required by s 80. As will appear, laws in terms of s 22(a)(i) and s 54(b) of the Jury Act are compatible with the command in s 80.
In their judgment in Cheng v The Queen[30], Gleeson CJ, Gummow and Hayne JJ, after observing that s 80 imposes various imperatives upon trials on indictment of offences against Commonwealth law, added[31]:

At the time of federation, legislation in several of the colonies fixed upon the number 10 as the minimum for the remaining jurors whose unanimous agreement would be sufficient to ensure observance of the deliberative process required by the institution of trial by jury. This legislation adapted the institution to what already in the late nineteenth century were perceived to be particular needs, whilst retaining the substantial character of the institution as an efficient instrument in the administration of justice. Current legislation which authorises the discharge of jurors for good cause so that the trial continues with no fewer than 10 jurors is not incompatible with s 80 of the Constitution.
It may well be said that questions of degree are involved. However, if 12 be taken as the requisite minimum with which the trial must commence, there is much force in the contention that no reduction below 10 is permissible. Paragraph (a)(i) of s 22 of the Jury Act, which is in issue here, meets that criterion.
It follows from what we have said that a real question arises as to whether a trial on indictment for an offence against a law of the Commonwealth may, consistently with s 80 of the Constitution, be continued where a jury of 12 has been reduced below 10, as provided in par (a)(iii) of s 22 of the Jury Act. That speaks of a reduction below 10 but not below eight where the trial has been in progress for at least two months. It also should be emphasised that nothing in these reasons for judgment calls into question under s 80 the use of reserved jurors, under a system such as that considered and upheld in Ah Poh Wai v The Queen[69].
Special leave to appeal should be granted on the grounds referred to in the order made on 11 February 2000 but the appeal should be dismissed.
KIRBY J. Once again this Court is called upon to give meaning to the "fundamental law"[70] of the "guarantee"[71] of "trial ... by jury" contained in s 80 of the Constitution.
Undaunted by earlier[72], and recent[73], rebuffs to others who had relied on s 80 to challenge the validity of a trial at which they were convicted, the present applicant approaches this Court contesting his conviction upon the basis of two alleged defects in his trial. The first is that, during the trial, the jury that convicted him had been reduced from 12 to 10 jurors. The second is that, during deliberations upon their verdict, the jury were not confined together but were permitted to separate. On these grounds, the applicant submits that his trial was not one "by jury", as s 80 of the Constitution requires, and thus that his conviction is invalid.
A panel of the Court[74] earlier dismissed all grounds in the application for special leave save those raising the two foregoing points. These points were referred to a Full Court. The Director of Public Prosecutions for the Commonwealth ("the DPP") contested both grounds. He urged that special leave should be refused. The DPP was supported by the Attorney‑General of the Commonwealth who intervened. He proposed an additional, and separate, ground for the refusal of special leave, namely that the applicant had waived any objection that he might otherwise have had to the constitutionality of his trial. This argument was embraced, without elaboration, by the DPP. In its path lies a ruling of this Court in Brown[75]. That ruling holds that the requirements of s 80, once engaged, cannot be waived by the accused. The Attorney‑General of the Commonwealth (with the support of the DPP) sought to argue that Brown was incorrectly decided. At the close of his argument it was stated that: "at least a majority of the Court are of the view that you should not have leave to reopen Brown[76]". Once again[77], this ruling presents a question as to whether such leave is required or may, conformably with the Constitution, be imposed on a party who seeks to challenge the correctness of an earlier ruling of the Court about the meaning of the Constitution.
A number of State Attorneys‑General intervened in the hearing. All of them supported the constitutional validity of the applicant's trial and of the federal law[78] pursuant to which State law[79] had been applied to it. That State law permitted the continuance of the trial with a jury reduced from 12 to 10 jurors and allowed the jury to separate during the trial, including whilst deliberating upon their verdict.
In each of the submissions for the States of New South Wales, Victoria and especially South Australia, arguments were advanced concerning the approach to constitutional interpretation that would elucidate correctly the meaning of "trial ... by jury" as it appears in s 80. Indeed, the Solicitor‑General for South Australia submitted that the present application required the identification of a consistent principle by reference to which problems as to the meaning of the Constitution, presented by this and future cases, could be decided in a correct and consistent way. Without clarifying this basic matter of approach, (it was suggested) the Court would either persist with, or run the risk of falling into, an error of methodology, inevitably producing erroneous outcomes.

So far as is relevant to the foregoing issues, most of the facts are uncontested. Mr Anthony John Brownlee ("the applicant") and a co‑accused (who is not involved in these proceedings) were charged with the offence of conspiracy to defraud the Commonwealth, contrary to s 86A of the Crimes Act 1914 (Cth)[84]. An indictment was presented against the applicant in the District Court of New South Wales. The case was, therefore, indisputably one involving a "trial on indictment of [an] offence against [a] law of the Commonwealth"[85]. The trial commenced on 29 April 1996. A jury of 12 persons were empanelled and the applicant was put in their charge.
On 23 May 1996, when it appeared certain that the trial would overrun its initial estimate of four to six weeks, and be likely to last up to eight weeks or even longer, counsel discussed with the trial judge, in the absence of the jury, the significance for the jurors of the extended duration. The prosecutor requested the trial judge to make inquiries of the jury as to whether this overrun would cause "a problem" so that, if it did, this eventuality could be addressed at that time rather than later. One of the jurors had earlier indicated that she was travelling overseas in June 1996. She asked to be excused. In the submissions put by the applicant's then counsel, no objection was taken to that course. Indeed it was described as "blatant commonsense". The judge excused that juror. Notwithstanding specific reference to the provisions of s 80 of the Constitution, counsel, "in the interests of [his] client", joined in the application that the trial judge invite the other jurors to indicate any difficulties which the extended trial would cause.
The outcome of this inquiry was a further application on 23 May 1996 by a juror who was self‑employed. Counsel for the applicant is recorded as submitting that this juror too "should be discharged"[86]. Undoubtedly, counsel would have been concerned that a reluctant juror, with his mind on other things, might be resentful towards the applicant. The transcript also records that counsel "further submitted that, in the circumstances, his Honour should discharge the jury now". A third juror sought release from jury service. The request was supported by counsel for the applicant but opposed by the Crown. No order for discharge was made.
In giving his reasons for discharging the two jurors who were excused, the trial judge noted that counsel for the applicant "continues his stance that I should discharge the jury"[87]. He declined to take that course. He did so on the basis that "we are left with the requisite number of ten jurors"[88]. The trial continued.
During the trial, the jurors were not confined. After each day's hearing, they were permitted to separate to their homes. On several occasions, the trial judge gave the jurors the standard direction not to discuss the trial other than with each other. These directions were given in appropriately strong language.
On 18 June 1996, after the jury panel had been reduced to 10 jurors, and whilst the trial was continuing, a note was sent to the judge which was read onto the record. The jury foreman sought release from that responsibility on the ground that, although he did not know the applicant's co‑accused personally, one of the witnesses who had been called for that accused was a friend of the foreman's wife. The note went on:

Trials of federal offences: Where a State court is exercising federal jurisdiction, as the District Court was in conducting the trial of the applicant, a State procedural law does not apply to the trial of its own force. Federal law is necessary if the State law is to be "picked up" and rendered applicable to such proceedings. This is the purpose of s 68 of the Judiciary Act 1903 (Cth) ("the Judiciary Act")[98].
Section 68(2) expressly refers to s 80 of the Constitution. Strictly this is unnecessary given that the Constitution applies of its own force. Nevertheless, the reference indicates a legislative awareness of the relevance of s 80 in this context. By its own terms, that section, with its reference to "trial ... by jury", to "indictment", and to the holding of the trial "in the State where the offence was committed", sufficiently indicates that legislation, probably State legislation, would be needed to regulate the procedural details of such trials. In every State (and Territory) provision is made by law for the "trial on indictment" of offences[99] and for the detailed regulation of jury trial. Such provisions already existed in Australia at the time of Federation in the colonies that became the States of the Commonwealth. Since that time such laws have been revised and modernised. No general federal law has been enacted to govern the incidents of jury trial of federal offences to the exclusion of State (or Territory) law.
Jury numbers: In New South Wales, the applicable Act is the Jury Act. Central to the issues in this appeal are two provisions of that Act. The first, s 22, sets out the applicable preconditions and procedures that must be followed to reduce the number of jurors from 12 to a lesser number[100]. This section must be understood in its historical context: the rigid practice that developed in the common law of England[101]; the early struggle in the Australian colonies to establish jury trial of "crimes and misdemeanours … by a jury … of twelve men"[102]; reforms introduced in England to permit the continuance of a criminal trial notwithstanding the discharge of up to two jurors[103]; and the adoption of similar provisions in New South Wales[104], now reflected, and elaborated, in the Jury Act.
The provision of the Jury Act invoked in the trial of the applicant was s 22(a)(i). In suggesting that s 22 was, on its face, incompatible with s 80 of the Constitution, the applicant emphasised that under s 22(a)(iii), the jury could ultimately be reduced without consent from 12 to eight jurors. Furthermore, under s 22(a)(ii), with the written consent of the Crown and of every accused, the jury could even be reduced below that number - theoretically to as few as two jurors (it being impossible to contemplate that one person might be called a "jury"). On this footing the applicant submitted that s 22 of the Jury Act was, by its terms, inapplicable to a "trial ... by jury" complying with s 80 of the Constitution. The provision could not, therefore, be "picked up" by s 68 of the Judiciary Act.
The applicant further submitted that, in the case of a "picked up" or surrogate federal law, when applied to a trial on indictment of a federal offence, it was impermissible to invoke the State Interpretation Act, in respect of the Jury Act s 22, to permit severance of parts of the section[105]. So much may be accepted. However, s 68 of the Judiciary Act contains its own formula for adaptation and severance of parts of otherwise applicable "laws of a State". The section contemplates, expressly, the adaptation of such laws "to section 80 of the Constitution"[106]. It provides that such laws are to "apply and be applied" but only "so far as they are applicable"[107]. Therefore, should the requirements of s 80 of the Constitution necessitate that a "jury", empanelled to try on indictment an offence against federal law, in no case be reduced below, say, 10 jurors[108], such a result could be secured, quite simply, by the application to the Jury Act s 22 of s 68(1) of the Judiciary Act itself. Sub‑paragraph 22(a)(i) of the Jury Act would then be treated as "applicable" whereas sub‑pars (ii) and (iii) would be disregarded as inapplicable. The language and structure of s 22 facilitate such differentiation.
Jury separation: So far as concerns the separation of the jurors during the trial, the applicable provision of the Jury Act is s 54[109]. This provision dates from 1987[110]. In colonial times, no power existed in New South Wales to permit a jury in criminal proceedings to separate. A provision for that purpose was first added to the Jury Act 1912 (NSW) in 1924[111]. It appeared in s 27(3) of that Act and read:

With due respect to those of a different view[113], in my opinion it is appropriate to deal first with the arguments about waiver. If those arguments are legally available, and applicable to the facts, none of the other constitutional issues needs to be decided.
The applicant invoked the decision in Brown[114] in which this Court held that an accused could not waive the requirements of s 80 of the Constitution in a trial to which those requirements were otherwise applicable. The applicant suggested that, before the Commonwealth (supported by the DPP) could be heard to challenge the ruling in Brown, leave of the Court was required and should not be given. The Solicitor‑General of the Commonwealth accepted this impediment. He sought leave. By majority, it was refused. With respect, I do not accept that such leave is required. I regard it as a procedure incompatible with the Constitution.
It has long been accepted that this Court is not bound by its previous decisions. However, where this Court has construed the Constitution in a particular way, and especially where that construction has endured for a time, "great caution" is exercised in giving effect to an opinion contrary to past authority[115]. Strong reasons are required, including in constitutional cases[116], to sustain a departure from settled rulings[117]. Nevertheless, the need to demonstrate such strong reasons to overturn contrary authority should not be elevated to impose a procedural obstacle which could, and sometimes would, operate to prevent such grounds even from being argued.
From the early days of this Court the interpretation of the Constitution, as the fundamental law of the nation, was viewed as occupying a special place, so far as the reopening of previous rulings was concerned. The explanation for this position was given by Isaacs J, by reference to the practice of the Privy Council and the Supreme Court of the United States[118]. It was described as deriving from the fidelity which each Justice of the Court owed to "the organic law of the Constitution first of all"[119]. It is to the Constitution and to the laws that are made, or exist, under it that "[o]ur sworn loyalty" is owed[120].
This special status of constitutional authority doubtless derives, in part, from the paramount importance of the Constitution to the entire body of the law in Australia. No law in the land, including the common law, may be inconsistent with constitutional precepts[121]. Mistakes occurring at the source can have serious and enduring results downstream. In part, the recognition of a special status for constitutional decisions derives, historically, from the reservation to this Court of primacy in constitutional decision‑making[122], even at the time when the Privy Council was part of the Australian judicature. This was a primacy that has now given way to exclusive superintendence over every part of Australian law. The reservation to each Justice of a right, and obligation, to expound the Constitution may therefore be traced to the evolutionary nature of constitutional law. Sharp changes of authority[123] and acute differences of opinion that sometimes arise[124] illustrate, and reflect, the diversity of views out of which the law, responding to changing times and the changing composition of the Court, emerges over time.
If constitutional interpretation in Australia were nothing more than a search for the "intentions" of the framers of the document in 1900, doubtless a single answer would, theoretically, be available as to the meaning of every word of the Constitution. Such meaning would be found in history books; not by legal analysis. But if, as I would hold, the text of the Constitution must be given meaning as its words are perceived by succeeding generations of Australians, reflected in this Court[125], it is imperative to keep the mind open to the possibility that a new context, presenting different needs and circumstances and fresh insights, may convince the Court, in later times and of later composition, that its predecessors had adopted an erroneous view of the Constitution.
I take these to be some of the considerations that lay behind the dissent of Deane J in Evda Nominees Pty Ltd v Victoria[126] where his Honour rejected the supposed necessity for a party to secure leave to reargue a constitutional holding. It is a party's right to advance before this Court any argument that may assist the Court to reach the correct exposition of the meaning of the Constitution. It is incompatible with the constitutional function of the Court to impose on a party a procedural obstacle that might impede that party's submissions to the Court on such a subject. The position of interveners may be different. In the present case, it is unnecessary to explore that question. This is because the DPP adopted the Commonwealth's submissions about waiver.
There is an additional practical reason why the foregoing should be so. The history of the Court demonstrates, many times, how changes in circumstances and in membership of the Court can alter the outcome of great constitutional questions[127]. Sometimes a minority view on the meaning of the Constitution will be propounded, contrary to authority accepted to that time, only to emerge later as the doctrine of the Court[128]. If a barrier of leave could be imposed by a majority of Justices, to nip in the bud constitutional propositions inimical to their expressed opinions, the advance and change of the Court's understanding of the Constitution, including that held by those for the time being in a minority, could be thwarted[129]. There is no warrant in the text of the Constitution for assigning to some Justices of the Court a right to prevent others, in effect, from even considering, with the benefit of full argument, and deciding, points of constitutional principle which parties before the Court wish to propound. No doubt if a Justice or Justices find that their receptiveness to a new argument is not shared by the majority, they would ordinarily cooperate in the expeditious consideration of the point. The Court might, for practical reasons, impose time limits, require written submissions or implement other like procedures. But the exclusion of argument by a requirement to obtain leave is an impermissible barrier to the elucidation of constitutional meaning. It is incompatible with the text of the Constitution. It is the duty of this Court to uphold the meaning of that text as it is properly understood - not as a majority of Justices for the time being understand it.
It follows that no obstacle of obtaining leave exists, or may exist, in this Court to impede the duty of the Court to rule on the argument of the DPP, that the applicant, by his conduct at the trial, waived his objections to the two grounds on which he now relies.

There was waiver in fact: I therefore proceed to consider the argument of waiver. The first question is whether, in the facts shown, what the applicant did, including through his then counsel, amounted to waiver. If it did not, the argument of waiver, even if legally available, would not avail the DPP and so should not be considered in this matter.
For the applicant, so far as the first point (reduction in the number of jurors) was concerned, emphasis was laid upon the fact, as recorded by the trial judge, that counsel had "continue[d] his stance that I should discharge the jury"[130]. However, that was a position adopted only after the discharge of the second juror. The applicant had earlier raised no objection to the discharge of the juror with travel commitments. On the contrary, his counsel actually joined in the request to the judge that he make inquiries of that juror. Although reference was made, during the argument at the trial, to s 80 of the Constitution, the applicant did not then submit that that provision stood as a complete barrier to the applicability of s 22 of the Jury Act. On the contrary, his submissions inferentially accepted that s 22(a)(i) applied and, so far as the first discharged juror was concerned, that she should be relieved of further jury duty. The same position was adopted in respect of the second discharged juror. Counsel for the applicant "submitted that he should be discharged". The subsequent submission that the remaining jurors should be discharged was not a negation of the applicability of s 22 of the Jury Act. It was an invocation of that Act, in effect requesting the trial judge not to order that the trial should continue as "properly constituted". There is therefore no material before the Court to suggest that the applicant did not make an informed choice in advance of the submissions put to the trial judge by his then counsel. Had any such suggestion been made, it would doubtless have been tested at the trial, in the Court of Criminal Appeal or before this Court in disposing of this application.
So far as the separation of the jurors is concerned, the transcript of the trial reveals that the judge permitted the jurors to separate each day during the hearing. There is no record of any objection to that course by, or for, the applicant. Specifically, no objection was raised to the separation of the jurors during the four days on which they were deliberating upon their verdict, including during the two intervening weekend days. From the record, it does not appear that the trial judge specifically ordered that the jurors be permitted to separate after they had retired to consider their verdict. Under the Jury Act, such an order is necessary at that stage of the trial[131]. A similar lack of attention to the requirements of the Act was called to notice in Wu[132]. There, by majority, this Court did not permit the invalidity of what had occurred, in the absence of an order by the trial judge, to ground a late basis for challenge to the trial, not having been raised earlier as a ground of appeal[133]. No such attempt was mounted in this application.
It must therefore be accepted that the jury's separation, whilst considering their verdict, was permitted by the trial judge. Certainly, there was no indication of any objection to such separation by, or for, the applicant. This is a circumstance in which the law of waiver applies. If a party (at least one legally represented) wishes to contest a point, that party should, ordinarily, take that point by objection duly recorded during the trial. Doing so permits timely consideration to be given to the objection. The point having been raised in the applicant's trial it would have enlivened the attention of the trial judge and the prosecutor, to the terms of s 80 of the Constitution and s 54(b) of the Jury Act. In the result, no attention was given to the second objection on which the applicant now relies.
The inescapable inference is therefore that the applicant was content to have the jury separate (as they had done throughout the trial) to their homes. The want of any objection to that course might be explained by oversight. But it might equally have been a tactical decision. A jury, separated from their families and confined to rooms in a hotel or motel, might be under greater pressure to reach a quick decision instead of weighing carefully (as the applicant's jury obviously did over several days) the competing arguments of the parties. Therefore, if waiver of any requirements of jury trial on the part of an accused person is permissible under s 80 of the Constitution, the conduct of the applicant amounted to a relevant waiver of each of the points that he now seeks to advance. But is that conclusion legally relevant?
In law the waiver is effective: In Brown[134] this Court, by a narrow majority[135], held that the terms of s 80 of the Constitution precluded an accused person from electing, pursuant to the Juries Act 1927 (SA), s 7(1), to be tried for an indictable offence against a law of the Commonwealth by a judge alone. The essential reason of the majority was that, from its language and context, s 80 of the Constitution established a requirement which was for the protection of the whole community. It was to be distinguished from the provisions of the United States Constitution in respect of which waiver of jury trial by an accused had been permitted[136]. Emphasis was placed on the fact that s 80 appears within Ch III of the Constitution[137]; the imperative language of s 80 itself[138]; and the fact that the jury requirement was not, in this country, merely a "right" in "the accused"[139] but a "structural or organizational" mode of trial ordained, as well, for the benefit of society[140]. In such circumstances, it was held that it was not for the accused to waive the mandatory requirement of the section where it was engaged. Still less was it for the accused to waive the interests of society as a whole where the section had been engaged[141].
Because, as Brown demonstrates, minds can differ on this point, I have hesitated to reach a view different from that expressed in that decision. To some extent, the majority were affected by a view of s 80 of the Constitution that it represents a "constitutional guarantee" and not merely a procedural provision, as it had sometimes been viewed in this Court to that time and since. I do not dissent from this premise. Similarly, I do not find particularly helpful the views of the minority in Brown addressed to the "plausible supposition" that the question of waiver "did not enter the minds of the framers of the Constitution"[142] and thus was not part of the concept of "trial ... by jury" which s 80 mandates. However, as I shall elaborate, the essential characteristics of such jury trial are not discovered by searching for the contents of the minds of the framers in 1900, whether for the subjective or "objective" knowledge to be attributed to those gentlemen. The phrase is a constitutional expression. History may assist, particularly as "trial ... by jury" describes a legal proceeding long known in the history of common law countries. But it may not dictate the meaning of the phrase, confining it to understandings of those words as they existed over a century ago.
To hold that an accused, when indicted of an offence against a law of the Commonwealth, cannot, in any circumstances, waive "trial ... by jury" contradicts the fact that, whatever the community wishes, or whatever its interest may be, the accused can indeed cut short "trial ... by jury", even in the middle of such a trial, by an informed and competent decision to plead guilty to all counts of the indictment. When such a decision is made and accepted, the remaining questions in the trial will be decided by a judge sitting alone.
Moreover, to adapt and update what was said by Gibbs CJ in Brown, to forbid informed waiver on the part of an accused would impose a most capricious operation upon s 80. It would hold that the section demands that an accused person must accept trial by jury, although there is an alternative procedure which the accused would prefer to adopt. It would do this notwithstanding the fact that, on this Court's present authority, the procedure of trial by jury only applies where the prosecution in fact proceeds on indictment[143]. Indeed, although it applies, in some circumstances "aggravating factors" can lawfully be reserved to a judge sitting alone and never be passed upon by the jury[144]. If s 80 of the Constitution can so easily be avoided or confined, to the disadvantage of the accused, it is hardly convincing, in the matter of informed waiver, to force the mode of trial provided in the section on the accused, contrary to that accused's interests and desires. In Cheng, McHugh J correctly remarked[145]:

In addition to these considerations, criminal charges, including those to be tried on indictment against a law of the Commonwealth, often extend today to complex commercial and corporate offences for which trial by judge (or magistrate) alone will be quicker, cheaper and sometimes susceptible to greater rationality and less rhetoric than trial by jury. The instant case, where the trial greatly exceeded the original estimates of time, may be an illustration. Where such criminal accusations depend, substantially, on analysis of written documentation, scrutiny of complex corporate structures and dealings, and the application of detailed and ambiguous statutory provisions, trial by judge (or magistrate) alone may be as much in the interests of the community as of the accused. Not the least relevant consideration is the larger effective facility for appeal against the reasoned decision of a judicial officer when compared with the much more limited facilities of effective appeal from a conviction following a jury verdict. To deny an accused, in such circumstances, the right to waive "trial ... by jury" as provided in s 80 of the Constitution is, in the words of Frankfurter J, delivering the opinion of the Court in Adams v United States; Ex rel McCann[146], "to imprison a man in his privileges and call it the Constitution".
A final consideration supporting this conclusion is that the decision in Brown is inconsistent with the approach which this Court has taken to a different, but somewhat analogous, problem. In respect of apprehended bias on the part of a judicial officer, which likewise concerns not only the party to litigation but also the public, this Court has held that it is possible for the party to waive the complaint[147]. Presumably, such waiver is accepted not only for the party itself but also for the general community whose interest is likewise involved[148].
Conclusion on waiver: Accordingly, with due respect to the majority in Brown who accepted the opposite view, I do not consider that the existence of a privilege to waive "trial ... by jury" is incompatible with the essential characteristics of jury trial or with the purposes for which s 80 of the Constitution provides that mode of trial. It follows that the applicant waived his objection to the reconstitution of the jury by the 10 remaining jurors and to the continuance of the trial with the jury so constituted. He also waived any objection to the separation of the jury whilst they were considering their verdict. On this basis, whilst granting special leave, I would dismiss the appeal against the judgment of the Court of Criminal Appeal.
This conclusion strictly relieves me of the obligation to consider the other matters argued in this Court. However, because of the importance of those matters, and because the Court, by a majority, has declined to reopen the ruling in Brown and to reconsider the basis on which I would resolve the matter, it is appropriate that I should address the applicant's remaining arguments. But first, it is necessary to consider submissions about the proper approach to the construction of s 80 of the Constitution.

I accept the submission, advanced for South Australia, that it is necessary, in elucidating the meaning of s 80 of the Constitution (or any other provision), to have a theory about constitutional interpretation. Otherwise, the result will inevitably be inconsistent decisions reflecting no more than the intuitive responses to the text of the Constitution by different Justices (or of the same Justices at different times).
The submissions for South Australia identify a number of suggested inconsistencies in the ascertainment of the meaning of the Constitution if the accepted criterion is what would have been known to, or in the contemplation of, the framers of the Constitution in 1900[149]. By the same token, that State's submission is critical of my own approach[150], which holds that constitutional expressions must be given contemporary meaning, as befits the character of a national basic law, which is extremely resistant to formal amendment, but which must, of necessity, apply to new, unforeseen and possibly unforeseeable circumstances[151].
The ambivalence about adopting a 1900 criterion for the content of "trial ... by jury" can be illustrated by reference to many actual decisions of this Court. For example, there is no doubt that, in 1900, unanimity was a requirement for the verdict of a criminal jury. So was the fact that all jurors were male[152]. And that they all had to satisfy property qualifications of some kind[153]. Similarly, a very long list of exemptions from jury service was formerly provided[154] which, in New South Wales as elsewhere, have since been substantially curtailed[155]. These provisions reflect the characteristics thought, at the time, to be essential to the type of "right thinking man" who could be trusted with the serious responsibilities of jury service.
In Cheatle, this Court swept aside the characteristics of trial by jury in 1900 involving only male persons and property owners, describing such requirements as "undesirable"[156]. The explanation given for that conclusion was that such qualifications were not compatible with a "contemporary institution" or "modern democratic society"[157]. I agree both with the conclusion and with the propounded criterion by which, in Cheatle, the concept of "trial ... by jury" was, in these respects, adapted to the modern Australian conditions in which Ch III, and s 80 specifically, have to apply. But I point out that, once such considerations are accepted as apt to modify notions concerning the "essential feature of the institution of trial by jury in 1900"[158], it is impossible (except in the realm of fiction) seriously to suggest that the conduct of "trial ... by jury" in 1900 remains the universal criterion for the understanding of those words as they appear in the Constitution today. Either one adheres to the historical notions of 1900, and takes the mind back to what the framers knew and understood about jury trial, or one accepts that the constitutional expression must be given a "contemporary" meaning, as befits a "modern democratic society".
Because, by definition, the world of the framers was not that of today's Australians, it is misleading, and prone to result in serious error, to accept as the applicable principle of constitutional interpretation the "intention" of those who framed it. One thing the framers certainly knew was that they were creating a new polity to be governed indefinitely by a fundamental written law. That document appears in statutory form. Its meaning is therefore uncovered by the general techniques of statutory construction[159]. However, because the Constitution is a special statute of a peculiar kind for particular purposes and unique operation, the rules of construction applicable to it include some that are special, particular and unique. Even with ordinary legislation, expected to have an extended operation, it is increasingly accepted that language lives and meaning adapts to changed circumstances. Words are not necessarily confined to the meaning that would subjectively have been ascribed to them by the Parliament that enacted them[160]. This is even more true of constitutional words and phrases[161]. A recognition of this fact does not render wholly irrelevant the consideration of history - as in the debates that preceded adoption of the Constitution[162]. But it does limit the utility of such searches when the real consideration is what those words and phrases mean in their contemporary institutional setting and as they must operate in accordance with the "accepted standards of a modern democratic society"[163], such as the Constitution was adopted to provide.
The siren song of 1900 does not therefore become more attractive by embracing the fiction (propounded by South Australia) that an "intention" of the framers of the Constitution in 1900 can be "objectively" discovered. Some such fictitious reification of the ideas of 1900 would certainly be necessary if countless instances by which this Court has adapted constitutional language to contemporary circumstances were to be explained[164]. Only an explanation of such a kind could then justify, for example, the apparent inconsistency between the interpretation of "appeal" in s 73 of the Constitution as excluding, rigidly, the exceptional receipt of evidence by this Court in disposing of an appeal[165] whilst allowing adaptation of the word, beyond 1900 understandings, to include, for example, appeals from an order in a hypothetical case stated or in Crown appeals, unknown in 1900[166]. No fiction could disguise the inconsistencies inherent in such an approach. Either this Court should adhere to construing the words of the Constitution according to the understandings of 1900, or it should accept another approach, such as I favour. In my respectful opinion, a hybrid approach is intellectually incoherent.
This is not a theoretical problem in the present application. Indeed, the importance of resolving the approach to constitutional interpretation is illustrated by the two features of "trial ... by jury" which the applicant propounded in objection to his conviction. Take, first, the question of separation of the jury after it has been charged to consider its verdict. I deal with that objection first because, upon it, the law in 1900 is clear and unyielding. In no part of Australia in 1900 would such separation by jurors have been permitted in a "trial on indictment of any offence"[167]. If the criterion for the meaning of jury trial, envisaged by s 80 of the Constitution, is what the framers would have regarded as essential to the character of jury trial in 1900, there can be little doubt that they would have considered it unthinkable, bordering on the scandalous, that a jury could separate, go home and reconvene at the very time when they were deliberating on the guilt of the accused in their charge.
By definition, in 1900, the trial on indictment of an offence was an extremely serious matter. It exposed the accused, if found guilty, to conviction and punishment, including in many cases, to the punishment of death. The notion that the jurors should be removed from the risk of external influence by anyone outside their number, during such a critical time, would have been axiomatic in 1900. Traditionally, the jury were "locked up" in the courthouse or some convenient location nearby during the entire trial, including any adjournment of the trial[168]. This was done to prevent tampering with, or influencing, the jury[169]; to impress upon the jurors and others the solemn responsibility which they had assumed; to insulate jurors from rumours and prejudice apt to circulate, especially during a trial for a notorious crime[170]; as well as to promote discussion amongst the jurors leading to their verdict without unnecessary delay. It would have been realised in 1900, as much as today, that such strict rules occasioned inconvenience and hardship, as well as expense, falling at that time principally upon the jurors themselves[171]. Slowly, during the twentieth century, the strict rule was modified. It was modified by statute; but rarely by the judges who were usually reluctant to bring about any change[172].
Whereas a discretion in the trial judge to allow jurors to separate was recognised before 1900 in the case of a trial on indictment for a misdemeanour[173], it took legislation to permit any separation at all in a trial on indictment for a felony. This change was not accomplished in England until 1897[174]. Even then, there were important exceptions[175]. The only similar legislation enacted in the Australian colonies before 1900 was the Jury Act 1898 (WA)[176]. That Act permitted the jury to separate during intervals of the trial but not in a case where the offence was punishable by death. Similar laws were enacted in a number of the States soon after Federation[177]. But they were not immediately universal. Before 1900, the relaxation of the strict rule of the common law was nowhere extended to the period after the jury had retired to consider their verdict[178].
If, then, the criterion of what "trial ... by jury" in s 80 of the Constitution means is what was regarded as an essential character of that mode of trial in 1900, I do not doubt that this would have included non‑separation during deliberation. Indeed, that rule persisted in Australia as one of most stringent observance long after 1900, indeed well into the last decades of the twentieth century. It was regarded as a cardinal feature of jury trial[179]. It was not merely a desirable practice, open to be breached as well as observed[180]. The very language of the statutory provisions, permitting derogations from the strict rule, in the specified cases and subject to the procedural rules laid down, shows how, in 1900, non‑separation during deliberation would have been a universally recognised incident of "trial ... by jury"[181].
Because the statutory modification of the rule against non‑separation had only just been enacted in England, and in one Australian colony, before 1900 (and was then limited to "intervals of the trial" and excluded capital cases) by whatever fiction or reification we choose, it cannot be pretended that the framers of the Constitution would have contemplated separation during deliberation as a feature of jury trial as they conceived it. By statute, for the better part of the twentieth century in New South Wales, separation at a time after the jury began to consider their verdict was completely impermissible[182]. The rigour of the rule was illustrated in Australia as late as 1986[183].
This discussion demonstrates the dilemma for those who adhere to the 1900 criterion in construing our Constitution[184]. Either they must indulge in false history, laying emphasis on exceptional straws in the wind to ascribe extraordinary prescience to the framers. Or they must embrace counter‑factual fictions about what those framers would have intended[185]. Or they are forced to adopt a hybrid criterion that (in respect of the sex and property qualification of jurors, mentioned in Cheatle[186]) gives a passing nod to the intention of the framers in 1900 but hurries back to the attributed features of the "trial ... by jury" as a "contemporary institution" according to the "generally accepted standards of a modern democratic society"[187]. The present application demonstrates vividly why the 1900 criterion is unacceptable. It shows how, at least in Cheatle and in respect of s 80 of the Constitution, it is contradicted by the observations of the Court about the "characteristics of trial by jury in 1900" which the Court unanimously discarded because it regarded them as "undesirable"[188].
A similar point may be made by reference to a consideration of the applicant's argument that, in 1900, the notion of "trial ... by jury" "intended" by the framers of the Constitution, would have envisaged a verdict of 12, and not 10, jurors. It is true that before 1900 laws had been enacted in two of the Australian colonies[189], and in New Zealand[190], for continuance of a trial in certain limited circumstances where a juror had died or was incapable of continuing to act as such. This had been permitted by a law which provided that a criminal jury of not fewer than 10 jurors of those originally empanelled was permissible. A like provision was adopted in another State of Australia soon after Federation[191]. Analogous laws were enacted elsewhere in later years[192]. However, such laws scarcely afford proof of the development, as at 1900, of a strong exception to the ordinary common law rule. That was a rule that had endured for more than six centuries. By the common law, to convict a person tried on indictment before a jury, the unanimous verdict of 12 jurors was required[193]. In both unanimity and the number of jurors was thought to reside assurances against the risk of a serious miscarriage of justice.
In so far as there were exceptions to these requirements of jury trial in 1900, provided by statutes in jurisdictions not governed by a fundamental law such as s 80 of the Constitution, they were expressed in terms that differed one from the other. Moreover, they uniformly excluded trials for murder and for certain other capital cases[194]. Certainly, in New South Wales, in 1900, there was no facility at all to accept a verdict from a jury comprising fewer than 12 jurors. If, therefore, the criterion of the "intention of the framers" of the Constitution in 1900 governs this case, it is highly doubtful that the constitutional notion of "trial ... by jury" had, by 1900, been adapted and modified by the statutory alterations made in only two colonies and then with exceptions that otherwise sustained the rule of 12 jurors which had lasted so long.
It follows that, on this footing, the applicant has a powerful case to argue that, in the constitutional context, the requirement of 12 jurors was as much entrenched in the history of jury trial, and in the applicable considerations of principle and authority, as the rule of unanimity which Cheatle held to be inherent in the very notion of the constitutional jury. But if, on the other hand, the phrase "trial ... by jury" in s 80 of the Constitution is not controlled by what in 1900 the framers "intended", actually or by any fiction, considerations of a broader character, apt to an enduring constitutional phrase performing the purposes envisaged for s 80, may lead to a different conclusion.
I reject the approach to constitutional construction that would limit the meaning to be given to jury trial in s 80 to the notions held about that mode of trial by the framers of the Constitution in 1900. A recognition of the difficulties inherent in that approach surfaced in the submissions for New South Wales and Victoria. In the former, it was acknowledged that the drafters of the Constitution intended "evolution" in the nature of the institution to continue. If such "intention" is relevant, it accepts that notions of what "trial ... by jury" might include, accepted in 1900, could not forever govern the meaning of the constitutional expression. Similarly, the submission for Victoria invited this Court to perform a balancing exercise so as to "mould" the requirements of jury trial as contemplated by s 80 to the needs of "any particular case", presumably as those "needs" are judged by reference to contemporary ideas and values.
It will take time for the search for constitutional meaning by reference to the imputed "intention of the framers" in 1900 to be abandoned in favour of a search for the essential characteristics of words and phrases having enduring constitutional operation. But, as this Court embarks on the second century of the Constitution, it may be expected that the unreliability of the past criterion, and the demonstrated ambivalence of past practice, will indicate ever more clearly the error inherent in "faint‑hearted originalism"[195]. It will show the need for a different principle of interpretation, one appropriate to the task of giving effect to the nation's fundamental law. Without a clear principle, consistently applied, the outcomes of constitutional disputes are bound to evidence inconsistency and to elicit deserved criticism[196].

Obviously, to the extent that the jury were reduced from the conventional number of 12 jurors, typically observed in serious criminal trials in Australia, the risk that the jury might not, even in a general way, be "representative" of the community is increased. There is, then, a danger to the community's perception of the impartiality of the jury and thus to the community's unquestioning acceptance of jury verdicts in serious criminal matters[202].
In the United States of America, attempts to explain the essential characteristics of "trial by jury" have typically identified three main considerations. One of these is not presently material and is, in any case, uncontroversial. It is that the jury will participate in the formal process of a criminal trial under the supervision of a judge who has the power to instruct the jury as to the law and to remind them of the facts[203].
Secondly, the rule of unanimity of jury verdicts has been held necessary to the United States constitutional requirements[204]. Although there have been occasional suggestions to the contrary[205], the requirement of unanimity has been accepted as an assurance against dilution of the "reasonable doubt" standard observed in criminal trials. If only one juror has a reasonable doubt as to the guilt of the accused, the latter is entitled to the benefit of that doubt, and should not be convicted.
Thirdly, there has been much debate in the United States authorities concerning the number of jurors necessary to return a verdict in a jury trial envisaged by the Constitution of that country. More than likely, the framers of the Constitution of the United States would have assumed that the agreement of 12 jurors would be required for a valid verdict[206]. Indeed, it was repeatedly said in the older authorities that the constitutional right to trial by jury included the right to the verdict of the 12 men constituting the jury, neither more nor less[207]. In more recent decisions, however, the Supreme Court of the United States has accepted, as constitutionally valid, a Florida law providing for a six person jury in non‑capital cases[208]. A Georgia statute envisaging reduction of the number of such jurors to five was later held unconstitutional[209]. In England, the historical source of jury trial as it is practised in Australia and in the United States, provision is now made by statute for the reduction in the number of jurors necessary in some circumstances to a valid trial from 12 to nine[210]. But in England there is no express constitutional norm against which such statutory provisions must be measured. That is what distinguishes the position in Australia and the United States.
In judging what the Constitution of the United States required in terms of the minimal number of jurors, so that the process could still answer to the constitutional description of trial by jury, the Supreme Court, following a review of the history of jury trial before and in the early days after the establishment of the United States, has addressed the "relevant inquiry". This was identified as ascertainment of "the function that the particular feature performs and its relation to the purposes of the jury trial"[211]. That "function" was not the "function" of the jury historically determined by the features of jury trial at the time that the Constitution of the United States or, relevantly, the Sixth Amendment, were adopted. It was, instead, the "function" of the jury determined by reference to the way in which that institution had evolved and operates for constitutional purposes in the United States today.
A similar functional analysis, and not a purely historical one, must be applied in Australia to determine whether, relevantly, the provisions of s 22 of the Jury Act, are inconsistent with the type of jury trial that s 80 of the Constitution envisages, and thus are "inapplicable" to a trial held in accordance with that provision, as envisaged by s 68 of the Judiciary Act. Only if the mode of trial envisaged by s 22 of the Jury Act is functionally incompatible with the essential characteristics of "trial ... by jury", as that phrase is used in the Constitution, will s 22 be regarded as inapplicable. Only then would it follow that there was no valid statutory warrant for the course which the judge took in the present applicant's trial.
What, then, are the functional considerations that permit a distinction to be drawn between a trial that answers to the description of "trial ... by jury" and one that does not? The following considerations inform the answer to that question: (1) the jury must be of a size sufficient to promote group deliberation[212]; (2) there must be a sufficient number of jurors to ensure that the commonsense attributed to a lay jury can be given effect[213], so that a cross‑section of community opinion will be expressed and shared amongst the jurors[214]; (3) because an important purpose of trial by jury is to guard individuals from the danger of oppression by the government or by the judiciary[215], the jury rendering a verdict in a criminal trial must be, and remain of, a sufficient number to reflect, in a general way, the variety of opinions that exist in the community concerning society, the law and public authority; (4) there must be sufficient jurors to guard against the force of personality of one or more jurors[216] and to ensure the expression, during deliberation, of any differing viewpoints which can then be shared and evaluated by all of the jurors collectively[217]; (5) the number must also be sufficient to reflect, in a general way, those members of, or acquainted with, minorities within the community so that the dangers of prejudice against an accused, who may be a member of one or more of such minorities, are eliminated or at least reduced[218]; (6) given that contemporary trials, particularly of federal offences, can be extremely complex and lengthy[219], the inconvenience to the community, to jurors and the cost to parties should not needlessly be incurred by unnecessary termination and re‑litigation of jury trials where (as will inevitably happen from time to time) jurors die, fall ill or are otherwise incapable of continuing to act[220]; (7) ultimately "trial ... by jury", being a mode of trial envisaged within Ch III of the Constitution, it is essential that it should continue to hold public confidence and "through the involvement of the public, societal trust in the system as a whole"[221].
If the foregoing functional considerations are applied to those provisions of s 22 of the Jury Act that were invoked as applicable to the applicant's trial, I am not persuaded that such provisions offend the constitutional requirements for "trial ... by jury" as those requirements are understood in contemporary Australia. It is beyond doubt that, in comparison with earlier times, criminal trials today typically last longer, are more expensive and involve many more complex issues than previously was the case. The present is not an instance where a federal statute, or State law "picked up" and applied to a federal trial by force of the Judiciary Act, has established a universal rule of trial on indictment of a federal offence by a jury of 10 persons. Such a law would certainly depart both from longstanding English and Australian legal prescription. It would also discriminate between the juries presently summoned to try State indictable offences in Australia. The law said to be "applicable" to the applicant's trial was one expressed in undiscriminating terms. It applied, relevantly, in a way similar to legislation now applicable throughout Australia. Such legislation has existed for a very long time. It is sensible. It is designed to meet exigencies which exceptionally, but occasionally, arise, and more so as criminal trials take longer.
As experience in the United States illustrates, in constitutional adjudication of this kind, the drawing of lines is unavoidable[222]. But nothing more need be said to dispose of the first ground of the present application than that s 22(a)(i) of the Jury Act, "picked up" by s 68 of the Judiciary Act, falls on the right side of the line. It is valid. Whatever may have been the assumptions and "intentions" of the framers of the Constitution in 1900, viewed in terms of the function that "trial ... by jury" in s 80 of the Constitution fulfils, the provisions of s 22(a)(i) of the Jury Act meet contemporary Australian notions of that mode of trial. Any other conclusion would result in the needless and accidental termination of many jury trials. Nothing would be more likely to undermine the survival of jury trial. An absolute rule that the jury reaching a verdict, on a count charging an indictable crime, must be a jury of 12 jurors is not, therefore, a requirement that s 80 of the Constitution imposes. It follows that the applicant's first ground of objection to his conviction should be rejected.

By parity of reasoning, I would conclude that, whatever may have been the assumptions or "intentions" of the framers of the Constitution in 1900, viewed with due regard to the functions of "trial ... by jury" by contemporary Australian standards, the separation of jurors during a trial, and even when deliberating on their verdict, is not incompatible with the constitutional requirement.
In earlier times, at least in the estimation of some judges, jurors were "comparatively ignorant, subject to the control of their superiors and easily led astray"[223]. In such times, it was easier for the authorities to leave jurors "'without meat or drinke, fire or candle' until they were starved or frozen into agreement"[224]. If they were unable to reach their verdict, the hapless jurors of those days were driven to the county boundary following the assize judge. Such notions are completely incompatible with the treatment of a jury of Australian citizens today. No historical customs of England or of colonial times in Australia, in 1900 or otherwise, could sustain such treatment.
Yet it was not only in colonial times that jurors were dealt with in ways that are now regarded as uncivilised. For the first half of the twentieth century, with all male juries, jurors refused separation were often accommodated in dormitory arrangements that would now be regarded as intolerable. The extent of the change is described by Fullagar J in Chaouk[225]. What would once have been regarded as a "gross irregularity in the trial" can, therefore, today, be seen as a necessary accommodation to ensure the operation and survival of jury trial in contemporary Australia.
To exclude from a jury parents with young children or persons caring for sick and elderly relatives, because they could not be separated from their domestic responsibilities for long, or even comparatively short, intervals would reduce considerably the cross‑section of the community from whom jurors were drawn. Effectively to impose on jurors a requirement to reach a verdict in haste, in order to avoid the domestic inconvenience of prolonged confinement, could also be seriously unjust both to the parties and the community[226]. To the extent that the circumstances of jury service are unreasonably oppressive and disturbing of the home‑life of jurors, it is likely that such considerations would, in practice, result in jurors drawn from a narrow class of citizens. Alternatively, jurors might set about their duties in circumstances that were not conducive to their proper performance of such duties[227].
It is for reasons such as these that the features of jury trial in Australia continue to evolve. Nothing expressly stated, nor implied or inherent in s 80 of the Constitution forbids such evolution. To the extent that State legislation permits separation, including during the jury's deliberation upon their verdict, such legislation is "applicable" to a "trial ... by jury" as s 80 envisages it. The criterion is not that of the expectation of jury trials held by the framers of the Constitution in 1900. It is the meaning of that expression, as ultimately declared by this Court, and as it operates in contemporary Australia.
In saying what I have on juror separation, I do not mean to imply that there will not be cases where it will be proper and necessary to refuse the separation of jurors during a trial, and particularly whilst the jury are considering their verdict. Although the law assumes that jurors will obey judicial instructions not to discuss the trial with persons outside the jury room, realism obliges acknowledgment of the fact that, especially in stressful and emotion‑charged cases tried before criminal juries, jurors will sometimes depart from this instruction because they find the burden of total silence psychologically intolerable. The present case revealed a breach of such a judicial instruction, acknowledged by the jury foreman. In the result, that breach had no serious consequences. But to the extent that a trial involves sensational or highly charged circumstances, that may be reported or even commented upon in the media, the old rule of separation during verdict deliberation will usually still be appropriate, notwithstanding the inconvenience that this causes to jurors. Such inconvenience is now ordinarily reduced by accommodation cut off from external contact and not in dormitories. Ensuring the integrity of the jury's deliberations, especially after a long trial which would be extremely costly to repeat, remains a judicial obligation.
Moreover, under legislation such as s 54(b) of the Jury Act it is essential to remember that, when a jury has been charged to deliberate on their verdict, no separation should occur without an express order by the trial judge. The making of such an order enlivens, as Parliament envisaged, the judicial evaluation of the applicable considerations. That course was not followed in the present case, doubtless because counsel did not draw the terms of s 54(b) of the Jury Act to the notice of the trial judge. Such provisions should not be ignored.
Because I would not, for historical, functional or any other reasons, read into s 80 of the Constitution an element of "trial ... by jury" that would forbid absolutely, and whatever the circumstances, separation of the jurors during deliberation upon their verdict, the applicant's second ground of appeal also fails. In the result each of the grounds of appeal relied on by the applicant is rejected.

The applicant also submitted that the jurisprudence of the United States with respect to the Sixth Amendment[234] of the Constitution of that country was to the same effect as his submissions. Whether that is so need not be explored here because of the difference between the relevant provisions of that amendment and our Constitution, and the different conditions prevailing at the time of Federation in Australia.
There was a further submission that the number twelve has and almost from time immemorial, had a special, indeed almost mystical importance and significance; and only a jury of twelve is likely to ensure the high degree of representation of the general community that the Constitution contemplates.
An examination of the laws relating to juries of the various colonies shows that these were by no means uniform and did permit a reduction in the number of jurors during a trial[235]. In early colonial New South Wales, criminal cases were heard by a Judge Advocate and six other commissioned army or naval officers[236]. By 1823, statute required that criminal cases be tried by a judge and a jury of seven commissioned officers[237]. The requirement that a criminal jury comprise twelve laymen was only introduced by legislation in 1839, which was amended in 1847[238].
In Tasmania, military juries were used until at least 1834 in criminal matters. By the Jury Act 1834, civilian juries of twelve replaced military juries as the triers of fact in both the Supreme Court, and Quarter Sessions in certain proceedings, but military juries were not finally abolished until 1841[239].
In Western Australia, rules in relation to juries (including eligibility and exemptions from jury service) were introduced in 1830, and applied at the first sitting of Quarter Sessions in July 1830[240]. By the Jury Act 1832 every petty jury for the trial of any issue in any Criminal Court was to consist of twelve men[241] between the ages of twenty-one and sixty years[242] who met property qualifications[243]. Provision was also made for the composition of grand juries[244].
In Queensland at Federation, provision for the composition of the jury was dealt with both in the Jury Act 1867[245] and the Criminal Code enacted by the Criminal Code Act 1899. The Jury Act 1867 required criminal juries to be comprised of twelve male jurors[246] selected by random ballot[247]. Every man between twenty-one and sixty years of age[248] who resided within a jury district was eligible for jury service if he had real estate to the clear value of two hundred pounds, yearly income of fifty pounds in real estate, clear yearly income of one hundred pounds in lands held by lease for twenty-one years or more, if he occupied land assessed of an annual value of not less than twenty-five pounds, if he held land as a tenant at a rent of not less than fifty pounds per year, or if he occupied Crown lands with a clear annual value of twenty-five pounds.
In Pt VIII, the Criminal Code contained provisions dealing with practice and procedure in relation to juries. In the Draft Criminal Code, Sir Samuel Griffith "endeavoured to embody in the Draft a complete statement of the existing written and unwritten rules respecting procedure after committal, and ... added some rules which dispose[d] of difficulties that not unfrequently [arose] and [had] not been authoritatively settled[249]". Notes included in the Printing of the Draft Criminal Code in 1897 revealed the source of, or referred elsewhere to provisions analogous to, each of the provisions Sir Samuel Griffith had included[250]. Where a draft clause reflected "undoubted Common Law" Sir Samuel noted that this was the case[251], and when a draft clause was entirely new, Sir Samuel also indicated that this was so[252].
Under the Queensland Criminal Code, as at 1899, a jury could be discharged after being sworn if the trial was adjourned, if the jury could not agree on the verdict, or in the event of an emergency, if the Court considered it necessary[253]. A juror could also be discharged in two other situations: first, if it appeared at any stage that a juror was not indifferent between the Crown and the accused; or, for any other reason, ought not to be allowed to continue as a juror. The Court could then direct a juror be discharged and another juror sworn in his place[254]. Secondly, if a juror died, or became incapable of continuing to act as a juror, the Court in its own discretion, or at the request of the accused with the consent of the Crown, could discharge the juror. The Court could then direct that the trial proceed with the remaining jurors, provided that no fewer than ten jurors remained[255].
In Victoria, although a jury of twelve men was required at the outset, in the event of the death or illness of any juror during a trial, except of a capital offence, the trial judge could direct that the trial proceed with not fewer than five-sixths of the jurors originally empanelled, and the verdict of those remaining jurors would be a valid one[256].
Before Federation the position at Common Law was not entirely clear[257]. In general it appears to have been that if a juror died or was taken ill, a fresh jury had to be sworn[258] but there was no absolute rule to this effect. It was possible for the trial to proceed, with the consent of the accused, notwithstanding that one of the jurors had become incapable of continuing as a juror[259]. On other occasions, the procedure adopted was that the juror concerned was discharged, a fresh juror was sworn to replace that juror, and the evidence already adduced at the trial was read out, and confirmed by the witnesses under oath[260].
What I have so far said, although it is not a comprehensive statement of the situation throughout Australia at Federation, is sufficient to demonstrate that there was no absolute rule that only a jury of twelve people as originally constituted could bring in a valid verdict, and therefore to dispose of the applicant's principal argument.
Furthermore, there is no reason in principle why a jury of twelve persons should necessarily be considered more representative of the community than a jury of ten persons or fourteen, although there may come a point at which a somewhat smaller number could not, in a real sense, be regarded as a jury, a matter that it is unnecessary to decide in this case.
It has been held in this Court that s 80 is not a guarantee of trial by jury for all serious offences against a law of the Commonwealth, but applies only when there is a trial on indictment, a matter to be determined by the Parliament[261]. In short, those who drafted the Constitution always contemplated that the Parliament would have the right to determine a basic matter relating to trial by jury or otherwise for federal offences. By parity of reasoning it is easy to accept that other conditions, relating to a jury, for example, their number, sex, and age, and the need or otherwise for property qualifications would not be as they were in 1900[262], even if there had then existed universal rules about these conditions.
It follows that the applicant's argument with respect to the reduction in the number of the jurors fails. That conclusion makes it unnecessary for me to decide, whether, as the Crown submits, the applicant waived, or was able to waive trial by a jury of fewer than twelve members.
I turn now to the applicant's argument that the separation of the jury after they commenced their deliberations infringed s 80 of the Constitution.
Juries were kept together during a trial at the time of Federation, and often, in situations that modern Australians would find abhorrent. It is also true that a very strict approach would be taken once a jury had commenced its deliberations to ensure that jurors not be subjected to the possibility of external influence in arriving at their verdict.
But before Federation, legislative provisions were introduced into a number of jurisdictions, including Queensland and Western Australia, expressly permitting a jury to separate, at least prior to the commencement of its deliberations[263].
No doubt it is, in general, desirable that, at least from the time that a jury's deliberations begin, they remain together. But the fact that a jury may, and has separated, will not necessarily impair or destroy the essential character of the jury as a jury. If in fact, by reason of separation a juror or jurors act improperly or become subjected to influences to which they should not have been subjected, that circumstance will require consideration and an appropriate response by a trial judge. There was no point taken in this Court that anything of that kind occurred in this case, either because of the foreman's earlier indiscretions or otherwise. Accordingly this ground also fails.
Because of the conclusion that I have reached on this argument, again it is unnecessary for me to consider any question of waiver by the applicant of any right to have the jury kept together and segregated from the community. And as there was no submission based on the fact that the trial judge made no formal orders regarding the separation of the jury, a matter which may go beyond mere form as was pointed out in Wu v The Queen[264], it is also unnecessary to discuss the significance, if any, of the omission of such an order in this case.
I would allow the application for special leave and I would dismiss the appeal.

Brownlee v The Queen

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