Cheatle v The Queen

Cheatle v The Queen - [1993] HCA 44 - HCA 1993 case summary — Zoe

[16]

It is the method of trial in which laymen selected by lot ascertain under the guidance of a Judge the truth in questions of fact arising either in a civil litigation or in a criminal process. That statement correctly draws attention to the representative character of a jury and to the fact-finding function which a jury traditionally served in civil litigation and in criminal committal and trial processes. It does not, however, attempt to address the more particular question of what, if any, are the minimum requirements which must be observed to ensure that a jury in a criminal trial is adequately representative of the community. It would, for example, be surprising if s. 80's guarantee that the trial on indictment of an offence against a law of the Commonwealth shall be by jury were satisfied by a "jury" of two persons selected by lot from a panel of half a dozen "laymen" nominated by the Director of Public Prosecutions. More importantly for present purposes, O'Connor J.'s comments do not attempt to address the question whether there are implicit in s. 80's insistence upon trial by jury some minimum requirements about the process by which a jury reaches a verdict of guilty. It is, for example, clear that, at the time of the adoption of the Constitution, it had long been an essential attribute of the institution of trial by jury that the function of the criminal jury was to determine guilt or innocence on the evidence led at the trial and not on personal pre-knowledge or prejudgment [2] . It had also long been settled under the common law that a verdict of guilty could only be returned by a criminal jury by the agreement or consensus of all the jurors. 1. See, generally, Castles, An Australian Legal History (1982); Evatt, The Jury System in Australia, Australian Law Journal, vol. 10 (1936) (Supp.) 49. 2. Williams v. Florida (1970), 399 U.S. 78, at p. 125, per Harlan J., concurring in the result: "The right to a trial by jury has no enduring meaning apart from historical form."; Story, Commentaries on the Constitution of the United States, 5th ed. (1891), vol. 2, s1779; Re B.C. Motor Vehicle Act , [1985] 2 S.C.R. 486, at pp. 512-513. 3. (1915) 20 C.L.R. 315, at p. 323. 4. (1909) 8 C.L.R. 330, at p. 375. 5. See, e.g., Stone, Evidence - Its History and Policies (rev. Wells) (1991), pp. 16-23; Williams, The Proof of Guilt, 3rd ed. (1963), p. 5; Windeyer, Lectures on Legal History, 2nd ed. (1949), p. 66.

[18]

i.e., the jury empanelled to try the issues of fact and determine finally the question of guilt or innocence; to be distinguished from the grand jury, which returned bills of indictment. 2. (1367) 41 Lib. Ass. 11 translated in Thayer, A Preliminary Treatise on Evidence at the Common Law (1898), p. 89. 3. Holdsworth, A History of English Law, vol. 1, 7th ed. (1956), p. 318; and see also, e.g., Hale, The History of the Common Law of England, 6th ed. (1820), pp. 348-350; Forsyth, History of Trial by Jury (1852), pp. 238-239; Stephen, A History of the Criminal Law of England (1883), vol. 1, pp. 304-305; Pollock and Maitland, The History of English Law, 2nd ed. (1898), vol. 2, pp. 625-626; von Moschzisker, Trial by Jury (1922), p. 298. 4. See, e.g., Forsyth, op. cit.; Stephen, op. cit., p. 304; Devlin, Trial by Jury (1966), p. 48; Ryan, Less than Unanimous Jury Verdicts in Criminal Trials, Journal of Criminal Law, Criminality and Police Science, vol. 58 (1967) 211, at p. 212 ; Downie, And Is That The Verdict Of You All?, Australian Law Journal, vol. 44 (1970) 482, at pp. 483-484 ; note also Ryan, op. cit., p. 213 where he refers to the anomaly that "unanimity evolved from a system which did not require unanimity, but only required that the proper amount of evidence to support a verdict be that twelve of the jurors on the panel agree upon the verdict". 5. See, in particular, Bentham, Rationale of Judicial Evidence (1827), vol. 1, pp. 239-240, 245; Hallam, View of the State of Europe during the Middle Ages, supp. notes (1848), p. 262; Blackstone, Commentaries on the Laws of England, 15th ed. (1809), bk 3, p. 375, n. 20; and, for criticism in verse, Pope, The Rape of the Locke (1712), Canto. I, ll.84-86. 6. i.e. before the right of a trial judge to discharge the jury by reason of inability to agree on a verdict was authoritatively established in Winsor v. The Queen (1866), L.R. 1 Q.B. 289. 7. (1367) 41 Lib. Ass. 11 in Thayer, op. cit.; Blackstone, Commentaries on the Laws of England (1768), bk 3, p. 376. 8. Coke, Institutes, 19th ed. (1832), vol. 2, 227.b.[e]. 9. Newell v. The King (1936), 55 C.L.R. 707, at p. 713, per Evatt J. 10. ibid., per Dixon J; and see, generally, Hale, op. cit., p. 336 n. A; Forsyth, op. cit., pp. 246-247; Stephen, op. cit., p. 305; Cooley, A Treatise on the Constitutional Limitations, 6th ed. (1890), pp. 389-390; Downie, op. cit., p. 490; New South Wales Law Reform Commission, Criminal Procedure: The Jury in a Criminal Trial, March 1986, p. 142; and see also, Johnson v. Louisiana (1972), 406 U.S. 356, at p. 392, per Douglas J., dissenting; Reg. v. Thatcher , [1987] 1 S.C.R. 652, at p. 705.

[43]

The cases draw a distinction between substantive rights and rights under laws of procedure relating to proceedings in which substantive rights are in question. The right to a jury is one of the fundamental rights of citizenship and not a mere matter of procedure, and so the courts have said. In Looker v. Halcomb [2] , per Best C.J., it is said: "An Act of Parliament which takes away the right of trial by jury, and abridges the liberty of the subject, ought to receive the strictest construction; nothing should be holden to come under its operation that is not expressly within the letter and spirit of the Act". In my opinion, the rules of strict construction of Acts relating to trial by jury, of which I have cited an example, apply to this case; and further, the right to have only the verdict of the full twelve was an essential part of the right to trial by jury which the accused had before the amendment was made. (Emphasis added.) Dixon J. pointed out [3] that, at the time when the Tasmanian legislation had been enacted, the accused had already pleaded not guilty and that "his plea amounted to a demand that he be tried by a jury, and he became entitled to be tried accordingly". His Honour added [4] : The right which his plea so asserted had this conspicuous feature, namely, that although he was placed in jeopardy, he was placed in jeopardy of the unanimous verdict of twelve men. This was the position he occupied when the Jury Act 1936 altered the law and made the concurrence of ten sufficient for a conviction or acquittal. When it says that this should be so "on the trial of any criminal issue," should these general words be understood as applying to a trial already begun of issues already joined? In my opinion they should not. They should not be construed as depriving a prisoner standing in peril at the time of their enactment of so important a thing as his protection from conviction except by a unanimous verdict. (Emphasis again added.) 1. (1936) 55 C.L.R., at pp. 711-712. 2. (1827) 4 Bing. 183, at pp. 188, 189 [130 E.R. 738, at pp. 740, 741]. 3. Newell v. The King (1936), 55 C.L.R., at p. 712. 4. ibid., at pp. 712-713.

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