Cheng v The Queen

Cheng v The Queen - [2000] HCA 53 - HCA 2000 case summary — Zoe

[9]

In circumstances which will be described in more detail below, each applicant pleaded guilty to the offence of being knowingly concerned in the importation of a prohibited import.
Subject to a matter going to the subsidiary issue, the facts were not in dispute. The following summary is taken from the remarks on sentence made by Debelle J.
In November 1997, a quantity of 13,462 grams of heroin powder, of approximately 70 percent purity, said to have a street value of more than $13 million, arrived in Adelaide by air from Bangkok. Its ultimate destination was Sydney. The heroin was contained in five marble pedestals. The column of each pedestal was hollow, and filled with heroin. The pedestals were packed in five crates. On arrival in Adelaide, the crates attracted the attention of the authorities. The crates were opened and the pedestals were removed. Heroin was found inside. Federal police officers removed the heroin and replaced it with substitute powder, and then repacked the pedestals. Listening devices were placed in two crates and in one pedestal.
The crates were addressed to the first applicant, Yu Shing Cheng. The third applicant, Bach An Chan, had persuaded the first applicant to agree to be the person to whom the imported goods were addressed.
The first applicant went to the airport, and arranged for the crates to be delivered to his home address. The third applicant was informed of their arrival, and went with another person to collect the crates from the first applicant's flat. On the following day, the second applicant rented a motor vehicle, and, on the day after that, he and another person drove the vehicle, with the crates loaded on board, to Sydney. In the meantime, the third applicant had flown to Sydney to meet the crates when they arrived there.
The second and third applicants were arrested in Sydney. The first applicant was arrested in Adelaide.
The first applicant maintained that he was unaware, when he went to the airport, that the imported goods, which had been addressed to him, and which he had agreed to collect, consisted of a large quantity of heroin. He said that he thought what was involved was only two small parcels of cocaine. He was to be paid $6,000 for his involvement.
The second applicant, who was to be paid $3,000, admitted that he knew drugs were involved, but said he did not know the quantity or nature of the drugs.
The third applicant was found to have had a substantial organisational role in the operation, and to have been more culpable than the first and second applicants.

[13]

In the course of pre-trial proceedings, counsel for all five accused indicated an intention to raise an argument that s 233B(1)(d) of the Customs Act was invalid by reason of the provisions of s 80 of the Constitution. If that argument were correct, then the offence charged in the indictment was not an offence known to law. It was agreed that the appropriate course was to treat the argument as a demurrer to the indictment.
The notes on the indictment record the following sequence of events. On 2 November 1998, at a pre-trial hearing before Debelle J, after first arraignment, but before a jury was empanelled, the demurrer to the indictment was foreshadowed. Argument on the demurrer was heard on 6 November. Debelle J overruled the demurrer. All five accused were then re-arraigned. At that stage, the three applicants entered pleas of guilty. The two co-accused entered pleas of not guilty. A jury was empanelled, and the trial of the two co-accused proceeded until 13 November, when the jury acquitted the two co-accused. The jury was discharged. The sentencing proceedings of the three applicants commenced on 24 November and continued intermittently until 3 December. On 3 December the applicants were sentenced.
At no stage, following the applicants' pleas of guilty, did anyone suggest that there was any issue to be tried by a jury. As will appear, there was no issue as to any of the facts alleged in the indictment, either in the count or in the particulars.
The record of the sentencing proceedings indicates that, by consent, account was taken of a good deal of the evidence that had been given in the course of the trial of the two co-accused who pleaded not guilty. What had emerged at the trial gave a picture of the transaction which was, for the purpose of the sentencing proceedings, largely undisputed. In particular, there was no dispute that heroin was found in the pedestals, or that the quantity and purity was as alleged by the prosecution. Assertions were made from the bar table, by counsel for the first and second applicants, as to their state of knowledge or belief about some aspects of the importation. Those assertions, even if true, did not contradict any fact alleged in the indictment. It was accepted that, as a matter of objective fact, heroin was imported, and the quantity was as alleged in the indictment.
Debelle J sentenced the first applicant to imprisonment for 14 years and fixed a non-parole period of 7½ years. He sentenced the second applicant to imprisonment for 13½ years and fixed a non-parole period of 7½ years. He sentenced the third applicant to imprisonment for 16 years and fixed a non-parole period of 11 years.
All three applicants appealed against convictions and sentences. The ground of appeal against conviction was the same point as had earlier been argued in support of the demurrers to the indictment. As to the sentences, it was contended that they were excessive.
The appeals against conviction failed. The appeals against sentence succeeded. Bleby J, with whom Doyle CJ and Wicks J agreed, held that the sentences were excessive[2]. The Court of Criminal Appeal resentenced each applicant. The first applicant was sentenced to imprisonment for 9 years, and a non-parole period of 5 years was fixed. The second applicant was sentenced to imprisonment for 10 years, and a non-parole period of 6 years was fixed. The third applicant was sentenced to imprisonment for 13 years, and a non-parole period of 9 years was fixed.

[39]

Schedule VI to the Act provides that a commercial quantity of heroin is 1.5 kilograms.
A question of construction of the legislation which bears upon some of the issues raised in argument concerns the content of the expression "knowingly concerned", in s 233B(1), in relation to the quantities referred to in s 235.
A person may be knowingly concerned in the importation of heroin without knowing the quantity of heroin involved in the importation. In practice, many people who participate in the illegal importation of heroin would not know the quantity imported, and some would not even know the approximate quantity. Such information may be concealed from them, or it may simply be unnecessary for them to have it. The legislation does not provide that such knowledge is a necessary ingredient of the offence created by s 233B(1), or a necessary condition of being liable for sentence under s 235(2)(c) or (d). The language of the statute is to the contrary. On sentencing, the facts raised for the court's consideration of its satisfaction under s 235(2)(c), (d) and (e) are objective facts. It is knowledge about the importation of a prohibited import that exposes a person to conviction under s 233B(1). Knowledge of the quantity involved is not required. On the question of penalty, it is the objective fact as to the quantity of narcotic goods in relation to which the offence was committed which, by virtue of s 235, determines the maximum penalty. That is not to say that, when it comes to sentencing, the state of an offender's knowledge or belief as to quantity may not be a factor in determining the actual penalty to be imposed. The scheme of the legislation, assuming validity, is that the objective facts determine the range of possible penalties, but, on ordinary sentencing principles, subjective knowledge or belief as to quantity may be material to a judgment as to the proper sentence to impose.
The indictment in the present case is to be read in that light, and in the light of the practice referred to below. It is not to be understood as containing the immaterial allegation that the applicants knew that the quantity of heroin involved in the importation was a commercial quantity. Their assertions as to their knowledge or belief, advanced during the sentencing proceedings, did not put in issue any fact alleged in the indictment.

[42]

The text of s 80 gives rise to various issues of construction, some of which are concluded by authority, and others of which may still be open to debate. Before turning to those matters which the applicants would seek to agitate on appeals following grants of special leave, it should be noted that s 80 imposes various imperatives upon trials on indictment of offences against Commonwealth law.
For example, if a trial is not held in the State where the offence against Commonwealth law was committed (because the locus of the crime in question is determined not by the place where the physical act causing injury was done - the State of trial - but by the place where the injury was sustained) any conviction would be liable to be set aside on the ground that the trial had not been held in accordance with the command in s 80[3]. This result would not involve any holding that a particular law was invalid for non-compliance with s 80; rather, the trial process itself would have miscarried. On the other hand, a statute which stipulated in respect of trials on indictment of an offence against Commonwealth law a method of trial other than by jury would represent legislative disobedience to the constitutional command and therefore the law would be invalid.
One submission by the applicants is that this Court on their applications should re-open the authorities which deny to s 80 the effect of "a fundamental and substantive Constitutional guarantee of trial by jury" and which treat s 80 as not requiring a trial by jury in respect of offences which Commonwealth law does not specify as triable on indictment. In particular, the applicants rely upon the dissenting judgment of Deane J in Kingswell v The Queen[4].
Another submission which is not interdependent with the first and wider submission (as is demonstrated by the stance taken in Kingswell by Brennan J) fixes upon the meaning of "offence" in s 80. It was upon this issue that Brennan J dissented in Kingswell[5] whilst accepting the earlier authorities upon the wider submission. The second submission is that "offence" in s 80 is defined by the combination of the elements of the offence and the penalty which that combination attracts.
Some reference to the present position in the United States is appropriate. The Sixth Amendment to the Constitution requires that "[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury". The term "offence", central to s 80, does not appear. Taken with the "due process of law" requirements of the Fifth and Fourteenth Amendments, the Sixth Amendment has been held to entitle a defendant indicted under federal or State law, to "a jury determination [of guilt] of every element of the crime with which [the defendant] is charged, beyond a reasonable doubt"[6]. This, in turn, led to discussion of the distinction between elements of an offence (to be determined by a jury) and sentencing factors (to be determined by a judge)[7], a distinction which in the United States must now be understood in light of the decision in Apprendi v New Jersey[8].
In Apprendi, the defendant and the prosecution had made a plea agreement whereby the defendant pleaded guilty to three of the 23 counts in the indictment. However, as part of the plea agreement, the prosecution reserved the right to seek from the court a higher sentence than that for which the laws of New Jersey otherwise provided on one of the three counts (count 18). The court had the statutory power to impose a higher or "enhanced" sentence if the offence was committed with a proscribed purpose. The trial judge heard sufficient evidence to establish the defendant's guilt on the three counts and accepted the guilty pleas. Then the judge heard evidence from which the judge concluded that the crime charged in count 18 had been motivated by racial bias so that "the hate crime enhancement applied"; the defendant had contested that he had been motivated in this way and had given evidence on the question himself and led evidence from eight witnesses[9].
By majority[10], the Supreme Court of the United States reversed the decision of the New Jersey Supreme Court[11] which had upheld the enhanced sentence. The majority held that in this case the New Jersey laws and procedures fell foul of a constitutional requirement that any fact that increases the penalty for a crime beyond the prescribed statutory maximum, other than the fact of a prior conviction, must be submitted to a jury and proved beyond a reasonable doubt[12]. Their Honours stressed that this did not mean that it was impermissible for judges to take into account various factors relating both to offence and offender, when exercising a discretion within the range prescribed by statute[13].
A majority of this Court held in Kingswell that s 233B(1) of the Customs Act creates only one offence for which s 235(2) and (3) provides a range of penalties. It follows that acceptance of the applicants' contentions would require reconsideration of Kingswell. In particular, it would require examination of whether the relevant offence is defined in s 233B or is defined by a combination of s 233B and s 235. However, it should be noted that acceptance of the applicants' submissions would require only the conclusion that the relevant offence must be identified by reference to both s 233B and s 235. It would not require the conclusion that the sections create no offence known to law and there would be no ground for the making of any declaration to that effect.
Since Kingswell was decided in 1985, courts and prosecuting authorities throughout the Commonwealth have acted on the basis of that decision, and many people have been convicted and sentenced upon the assumption that the law was as declared in Kingswell. That is not fatal to the applicants, especially bearing in mind that their attack on Kingswell is based upon constitutional grounds. But it is a consideration not lightly to be disregarded.
In Kingswell, the appellant was charged under s 233B. He entered a plea of not guilty, was tried by a jury, and was convicted. He had previously been convicted of another offence against s 233B(1)(c). He was sentenced on the basis that, by reason of the previous conviction, and by reason of the quantity of heroin involved in the later conviction, s 235(2)(c) governed the penalty. It was argued that the legislative scheme, involving trial before a jury of the issues raised by s 233B, and a decision by a sentencing judge on the issues raised by s 235, contravened s 80 of the Constitution. From the report, it appears that the arguments of all counsel proceeded upon an acceptance of the view as to the meaning and effect of s 80 which has prevailed since Federation, that is to say, that the constitutional requirement of trial by jury only applies where there is a trial on indictment. On that view, the section does not provide that all serious offences shall be tried, on indictment, by a jury; it provides that, if there is to be a trial of an offence on indictment, it shall be by jury. In Kingswell, the point argued was that the legislation provided for part of an offence against a law of the Commonwealth to be tried by a judge alone, and was invalid. The outcome of the case turned upon the meaning of the word "offence", and its application to s 233B and s 235.
A noteworthy point of difference between Kingswell and the present case is that, in the present case, there was no occasion for any trial by jury. The applicants entered pleas of guilty to the offence with which they were charged, and they did not dispute any of the facts alleged in the indictment.
In a number of Australian jurisdictions, including South Australia, current criminal trial practice involves a system of pre-trial hearings for purposes of case management. To enable that to occur, there is usually a first arraignment soon after committal. On that occasion, there is usually no jury present, and no expectation that a jury will be empanelled. Depending upon the number of pre-trial hearings, there may be two, or more, arraignments[14]. As an example of what occurs at pre-trial hearings, s 285A of the Criminal Law Consolidation Act 1935 (SA) provides that a court before which a person has been arraigned may, if it thinks fit, hear and determine any question relating to the admissibility of evidence, and any other question of law affecting the conduct of the trial, before the jury is empanelled. Pre-trial hearings are commonly used to narrow the issues for trial, and to minimise the time during which, if it becomes necessary to empanel a jury, the jury will be excluded from the courtroom.
Having failed to persuade Debelle J to quash the indictment on the ground that the legislation was invalid, the applicants entered pleas of guilty. Section 80 does not require that, where a person who is charged on indictment with an offence against a law of the Commonwealth pleads guilty, there shall be a trial by jury. In the ordinary case, if, instead of contesting a charge, an accused person, by a plea of guilty, enters a formal admission of the elements of the offence, no jury will be empanelled, for there will be no issue for the jury to try.

[43]

It was suggested in the course of argument that, on one possible view, there could have been a requirement for a jury to determine disputed facts relating to the knowledge or belief of the first two applicants as to the nature and amount of the prohibited import. That suggestion has no relationship to what actually occurred in the present case. Moreover, it is based on an erroneous construction of the legislation and a misinterpretation of the indictment. It was never contended that a jury should have been empanelled to decide anything relevant to sentencing. Following the pleas of guilty, it was accepted on all sides that there was no function for a jury to perform, and the proceedings were correctly conducted on that basis.
Therefore, on the face of it, no command in s 80 was disobeyed in the present case. The applicants were prosecuted on informations having the status of indictments. If s 80 were to be re-interpreted as a constitutional requirement for trial by jury in the case of all serious Commonwealth offences, the occasion for doing so will be in a case, unlike the present, where there was a legislative denial of trial by jury and there arose in the conduct of the prosecution issues susceptible of trial by jury.
Nor, in the events that happened, is this an appropriate occasion to re-open Kingswell for the purpose of establishing that, in the case of a defendant who pleads not guilty, the statutory scheme mandates a division of functions between jury and sentencing judge which is inconsistent with s 80. For example, it is said that the statute is invalid because it leaves to the sentencing judge, following conviction, the decision as to whether the quantity of heroin involved is a commercial quantity. Here, the applicants pleaded guilty and did not dispute the quantity of heroin imported.
The majority in Kingswell considered that the statutory scheme was consistent with s 80. The offence was created by s 233B; s 235 provided the range of penalties. The factual matters referred to in s 235 were not elements of the offence. The effect of the decision in Kingswell was summarised in R v Meaton as follows[15]:

[47]

No submission has been made that this Court should reconsider, or decline to follow, Meaton, except, of course, in so far as it assumes the correctness of Kingswell. The applicants seek to challenge Kingswell, not Meaton. The practice as to the form of an indictment prescribed in Meaton was followed in this case. In accordance with Meaton, and with South Australian practice, the indictment alleged that a commercial quantity of heroin was involved in the importation. The South Australian practice was explained by the Full Court of the Supreme Court of South Australia in R v Hietanen[17]. If, in the present case, there had been a dispute as to the amount of heroin imported then, even though the applicants had entered pleas of guilty, there may have been an issue for determination by a jury. There was no such dispute. (That distinguishes the situation in this case from that in Apprendi[18] where there had been a dispute as to the facts necessary to attract the "enhancement" provision.) No issue was joined on any matter requiring resolution by a jury. In Meaton[19], the majority explained the various consequences that might flow from the practice to which reference has been made. By reason of the events that occurred, the present case does not provide an occasion for pursuing any problems, theoretical or practical, that might arise in that respect.
Further, an occasion to consider the questions presented by the applicants' contentions may be unlikely to arise if there continues the practice of charging and trying the aggravating circumstance of quantity or relevant prior conviction, as proposed in Kingswell and approved in Meaton. Where there is a trial of the offence and this practice is observed, any issue respecting aggravating circumstances mentioned in s 235 will be tried by jury. There will be no disobedience to the command in s 80 and no such disobedience will be mandated by the statutory scheme.
We return to the invitation to re-examine what we identified above as the wider issue and to adopt the dissent of Deane J in Kingswell. Senior counsel for the applicants invited this Court to treat the present case as an appropriate occasion to reconsider that question. For the reasons that follow, the invitation should be declined. The occasion is inappropriate.
First, the decision in Kingswell, which is crucial to the outcome of the present case, and which we are asked to reconsider, did not turn upon the point. The point was not in contention in argument. One of the two dissentients in Kingswell, Brennan J, accepted, for the purposes of his reasoning, the received view of s 80.
Secondly, the present case is even further from the point than Kingswell. Here there were pleas of guilty. No issue was joined on any fact alleged in the indictment. There was nothing for a jury to try. In the events that occurred, whatever the content of the guarantee contained in s 80, it was not relevant to the present applicants, because they pleaded guilty.
Thirdly, when regard is had to the history of s 80, there is every reason for not embarking upon a consideration of a substantial re-interpretation of it unless and until a case arises which makes it necessary to do so.
In 1901 Quick and Garran's The Annotated Constitution of the Australian Commonwealth was published. In their commentary on s 80, the learned authors went directly to the point we are asked to re-examine. After referring to the drafting history they wrote[20]:

[52]

The question was revisited in R v Federal Court of Bankruptcy; Ex parte Lowenstein[26] where a majority took the same view as had been taken in R v Archdall and Roskruge. Later cases have adhered to that view. Those who have dissented have disagreed amongst themselves as to what the section means[27].
As we followed the argument for the applicants, we did not understand it to be suggested that developments since Federation have thrown new light upon the meaning of s 80, or have altered the context in which it operates so as to require or justify a fresh approach on the part of this Court. If anything, recent developments in relation to criminal trial practice in State jurisdictions which handle the greater part of the administration of criminal justice, might be argued to tend in the other direction. In Brown v The Queen[28], it was held that, in cases where it applies, s 80 is mandatory. It is not a provision which creates a right that can be waived by an accused. Thus, if there is a trial on indictment of an offence against a law of the Commonwealth, and therefore s 80 applies, the parties cannot agree to dispense with the jury. In a number of State jurisdictions the trend has been to give persons accused of indictable offences the right to elect to be tried by judge alone, at least if the prosecution consents. This is a right of which a significant number of accused people, charged with serious crimes, take advantage. In the area of commercial fraud (an area which would be of particular importance if the regulation of the conduct of those concerned with the management of corporations were to become a matter of Commonwealth law), the capacity to prosecute some serious offences summarily, at least with the agreement of the accused, can contribute, on occasion, to the more effective administration of justice. The provisions of sub-ss (4), (6) and (7) of s 235 of the legislation presently under consideration provide an example of the way the Parliament, under the present interpretation of s 80, can approach the problem. Presumably, the validity of such provisions would be called in question by the proposed re-interpretation of s 80.
In Lambert v Weichelt[29] Dixon CJ, speaking for the Court, said:

[91]

Although s 80 of the Constitution has been described as "a mere procedural provision"[49], it has been referred to in more recent decisions of this Court as a "constitutional guarantee"[50]. More precisely, it is a constitutional command. As such, it stands in the same position as s 92 of the Constitution, which mandates that "trade, commerce, and intercourse among the States ... shall be absolutely free"; and s 117, which mandates that a resident of a State "shall not be subject in any other State to any disability or discrimination which would not be equally applicable to him if he were a subject of the Queen resident in such other State."
Sections 92 and 117 have conveniently been described as constitutional guarantees[51]. So, too, has s 51(xxxi) of the Constitution which, in form, is a grant of legislative power but which has been construed as operating as a guarantee by abstracting power to legislate for the acquisition of property from other heads of legislative power except those which clearly envisage the acquisition of property other than on just terms (eg taxation)[52].
The only relevant difference between s 80 and the constitutional provisions that have been recognised as constitutional guarantees is that s 80 is a limitation on judicial power. As such, it prevents the trial of indictable offences by judge alone, even if an accused person so elects[53]. That is not to say that s 80 is simply a limitation on judicial power. It is to raise the question whether, by reason that it confines the exercise of judicial power on the trial on indictment of offences against a law of the Commonwealth, s 80 should be construed differently from other provisions that have been described as "constitutional guarantees".
Trial by jury is so deeply embedded in our judicial process that its importance in protecting the liberty of the individual from oppression and injustice needs no elaboration. However, what is not generally recognised is its importance to the rule of law and, ultimately, the judicial process and the judiciary itself. Respect for the rule of law and, ultimately, the judicial process and the judiciary is enhanced if the determination of criminal guilt is left in the hands of ordinary citizens who are part of the community, rather than in the hands of judges who are perceived to be and, sometimes, are "remote from the affairs and concerns of ordinary people"[54].
The participation of the people of this country in the exercise of judicial power, through their service on juries, provides a basis for community acceptance of verdicts in criminal trials and, more broadly, an understanding of the judicial processes. As Deane J pointed out in Kingswell:

[95]

When determining whether legislation infringes a constitutional prohibition, this Court looks to the substantive operation of the legislation in question and not simply to the form in which it is cast[59]. So, too, constitutional guarantees are construed liberally so that their substantive effect is not undermined and the rights which they serve to protect are not depreciated by technical, legal or drafting devices[60].
To construe "offence" in s 80 in a way that permits the Parliament to define an offence by reference to acts or omissions and in disregard of "aggravating circumstances" which expose the offender to a higher maximum penalty and which are determined, in the event of dispute, by a judge and not the jury, is to invite the triumph of form over substance. And, given the present state of authorities, it is to render s 80's guarantee of trial by jury largely ineffective.
Although, in a number of cases, individual Justices would have held otherwise[61], this Court has consistently held that s 80 allows for Parliament to decide what offences are and what offences are not to be tried on indictment[62]. In that context, to allow that Parliament may also define an offence in such a way that "circumstances of aggravation", which expose an offender to a higher maximum penalty, are to be determined by a judge and not by the jury is to give s 80 a very restricted operation.
It is not in issue in this case that the offence with which the applicants were charged is an indictable offence to which s 80 applies. It is, thus, unnecessary to consider those authorities which hold that it is for Parliament to decide what offences are to be tried on indictment. It is, however, necessary to consider how those authorities influenced the majority decision in Kingswell.
In Kingswell, Mason J agreed with Gibbs CJ, Wilson and Dawson JJ with respect to the meaning and operation of s 80 of the Constitution[63]. Referring to the fact that it has been decided that s 80 "leaves it to the Parliament to determine whether any particular offence shall be tried on indictment or summarily"[64], Gibbs CJ, Wilson and Dawson JJ observed:

[105]

In Kingswell, the majority construed ss 233B and 235 of the Act in a context in which s 80 of the Constitution was allowed no operation. Although the minority would have held that s 80 did apply in that case, they construed ss 233B and 235 as creating a single offence with a range of maximum penalties before turning to consider the operation of s 80. No one approached the construction of ss 233B and 235 on the basis that, if possible, legislative provisions should be construed in a manner which ensures validity rather than invalidity[81].
It is true that, in form, s 233B of the Act is directed to creating offences, whilst s 235(2) is directed to identifying a range of sentences for those offences according, in the main, to the quantity of narcotics involved. And it is, I think, clear that, although nowhere defined for the purposes of s 235(2), "Court", in that sub-section means the sentencing judge. In this regard, it is sufficient to refer to the penalty specified in s 235(2)(c), namely "imprisonment for life or for such period as the Court thinks appropriate". Clearly, "Court" there refers to the sentencing judge. And given that s 235 is concerned with the maximum periods to which a person may be sentenced, there is no basis for construing "Court" differently in any other part of s 235.
Although s 235 must be construed on the basis that it is a sentencing provision and was intended as such, there is no reason in principle why it should be construed as no more than a sentencing provision. Subject to two matters to which I shall shortly refer, I see no reason why s 235(2) cannot be construed as also operating in combination with s 233B of the Act to create distinct offences attracting different penalties as specified in that sub-section.
The first of the two matters to which reference should be made is s 235(3) of the Act. Sub-section (3) operates to reduce the maximum penalty if "the Court is ... satisfied that the offence was not committed by the person charged for any purposes related to the sale of, or other commercial dealing in, [the] narcotic goods". That is a matter of mitigation and cannot sensibly be read as changing the nature of the offence charged.
The second matter to which it is necessary to refer is ss 235(2)(c)(ii)(A) and (B) which operate to expose an offender to a higher maximum penalty if he or she has previously been convicted of a narcotics offence or found guilty of an offence of that kind without a conviction being recorded. That paragraph concerns matters personal to the accused, rather than circumstances which pertain to an act or omission and which, because they expose the offender to a discrete penalty, should be treated as part of the offence for the purposes of s 80 of the Constitution.
If it is accepted, as I think it should be, that s 235 is primarily a sentencing provision but that it is also capable of operating, in combination with s 233B of the Act, to create distinct offences attracting different penalties according to the different quantities of narcotic goods involved, there is no reason to construe either ss 235(2)(c)(ii)(A) and (B) or 235(3) as directed to anything but sentencing. Equally, there is no reason to construe those parts of s 235(2) which relate to the quantity of narcotic goods and which specify maximum penalties by reference to those amounts as relating solely to sentencing.
I would construe ss 233B and 235(2) as operating in combination to create distinct offences depending on the quantity of narcotic goods, in fact, involved. So far as is relevant to the present applications, they operate in combination to create the offence of being knowingly concerned in the importation of a quantity of narcotic goods which, in fact, is not less than the commercial quantity of those goods. So construed, no question arises as to an accused person's knowledge, belief or intention as to the quantity of the goods concerned[82]. And no question arises as to the infringement of the command in s 80 of the Constitution.

[117]

Kingswell had been convicted after a trial by jury[92] of conspiring to import a prohibited import, an offence under s 233B(1)(cb) of the Act. At an earlier time, he had been convicted of an offence against s 233B(1)(c)[93]. There was also evidence before the trial judge that Kingswell had conspired to import not less than the trafficable quantity of a narcotic substance[94]. The trial judge sentenced[95] Kingswell on the basis that the maximum penalty was imprisonment for life, because these two factors brought the case within s 235(2)(c)(ii) of the Act.
In this Court, Kingswell argued, inter alia, that s 235 was invalid - at least in part - because it contravened s 80 of the Constitution[96]. He contended that "offence" in s 80 means a combination of the facts which make the accused liable to a criminal penalty and that, if the presence of another factor makes the accused liable to a heavier penalty than that which might be imposed without that factor, the existence of that factor creates a different offence[97]. His argument raised the issue whether, consistently with s 80 of the Constitution, the Parliament of the Commonwealth can legislate for an offence to be prosecuted on indictment and expose the accused to a range of penalties depending upon findings of fact made by the trial judge[98].
Gibbs CJ, Wilson and Dawson JJ[99] rejected Kingswell's argument. Their Honours held that, as a matter of statutory construction, the Parliament intended that s 233B(1)(cb) should create one offence with s 235(2) and (3) to provide for a range of penalties applicable to that offence depending on the existence or non-existence of various circumstances[100]. On this issue, Mason J agreed[101] with the reasons of Gibbs CJ, Wilson and Dawson JJ. The majority accepted that, where a statute provides for an accused to be exposed to a greater maximum penalty if a particular factor is present, a presumption arises that the legislature intended to create a separate offence from that which exists without that factor. However, the majority held that the words of the relevant sections rebutted that presumption[102]. The majority said that, s 80 aside, "there is no fundamental law that declares what the definition of an offence shall contain or that requires the Parliament to include in the definition of an offence any circumstance whose existence renders the offender liable to a maximum punishment greater than that which might have been imposed if the circumstance did not exist"[103]. They also said[104] that the fact that s 80 had been interpreted so as to leave it to the Parliament to determine whether any offence should be tried on indictment or summarily "provides a reason for refusing to import into the section restrictions on the legislative power which it does not express". That being so, the majority held that ss 233B(1)(cb) and 235(2) did not contravene s 80, as s 80 itself says nothing as to the manner in which an offence is to be defined[105].
Brennan J dissented. His Honour held that what constitutes an "offence" in s 80 "is not left to be defined by Parliament; in s 80 it has the meaning which it bears in the criminal law"[106]. In his Honour's view, Lord Diplock's definition of "offence" in R v Courtie[107] was both "manifestly right"[108] and applicable to s 80. That being so, Brennan J held that offences which attract the maximum penalties prescribed by s 235(2)(c) and (d) are offences distinct from s 233B offences: each element of each distinct offence is the subject of the s 80 guarantee[109]. As sub-s 2(c) and (d) and sub-s (3) of s 235 require a judge alone to determine the existence of facts which are "elements of an offence for the purpose of s 80", Brennan J held that those sections were invalid[110].
Deane J also dissented. His Honour held that, contrary to the view expressed by Barwick CJ in Spratt v Hermes[111], s 80 is not a mere procedural provision[112] and that the Parliament is not free to decide what offences are to be tried on indictment[113]. Deane J held that the "guarantee" in s 80 is applicable in respect of any trial of an accused charged with an offence against a law of the Commonwealth in circumstances where the charge is brought by the State or an agency of the State and the accused will, if found guilty, stand convicted of a "serious offence"[114]. His Honour found that, because s 235(2)(c) and (d) in substance created separate offences, elements of which were to be determined by a judge and not a jury, those sections contravened s 80 of the Constitution and were invalid[115].

[118]

It is convenient to deal first with the dissenting judgment of Deane J because his Honour reasoned from the premise that s 80 requires all serious offences against laws of the Commonwealth to be tried by jury. Without overturning a long line of authority in this Court[116], however, it cannot be doubted that, consistently with s 80 of the Constitution, Parliament may declare which offences are to be prosecuted on "indictment" and which offences are to be prosecuted summarily. Thus, on the current interpretation of s 80, it is open to Parliament to declare that even treason or murder can be prosecuted summarily before a judge or magistrate appointed in accordance with s 72 of the Constitution or in a State court invested with federal jurisdiction. If that view of s 80 is accepted, the section serves little purpose and its object will not be advanced by holding that "offence" has a constitutional meaning which controls what the Parliament can describe as an offence. That is because, on the current interpretation of s 80, the Parliament can avoid the section altogether by making any particular offence one that is only punishable summarily.
Not surprisingly, some Justices of this Court have not liked the conclusion that Parliament can avoid trial by jury for an offence against a law of the Commonwealth by the simple device of making the offence a summary offence. Given the current interpretation of s 80, the section seems to serve little purpose. It certainly cannot be a guarantee of trial by jury: for on the current interpretation, it is for the Parliament to declare whether or not the offence is indictable, and no jury is required unless the offence is tried on indictment. At its highest, all that s 80 does is to guarantee that, once the Parliament makes an offence indictable, any trial on indictment must be by jury and not by a judge or magistrate and that the verdict of the jury must be unanimous[117]. Furthermore, the trial must be by jury, notwithstanding that a trial of a different kind may be required by any other federal law or by the law of any State whose court is invested with federal jurisdiction to try the offence. So s 80 seems to be of minor importance, if the current interpretation of the section is accepted. It is understandable, therefore, that some Justices of this Court have been prepared to disregard the literal meaning of the section and to look for an interpretation which gives s 80 some efficacy as a guarantee of trial by jury for serious offences.
The importance of trial by jury was eloquently put by Lord Devlin in his book, Trial by Jury[118]:

[124]

The literal meaning of s 80 is very clear: trial by jury is required only where the trial is on indictment. Because this meaning results in the section being a mere procedural provision, it is natural to look to its purpose to see if the literal meaning accords with the purpose of the section. It is always legitimate to give a constitutional or statutory provision a meaning which will give effect to its purpose even if that requires a departure from its literal meaning. It is legitimate even if it requires giving the provision a strained meaning[120]. But an examination of the purpose of s 80 leads to the conclusion, unlikely as it may have seemed, that the literal meaning of the section in fact gives effect to its purpose and intent.
No doubt s 80 contains a guarantee. But on its face it is only a guarantee of a jury trial when the trial is on indictment. It is not legitimate, therefore, to commence with the pre-supposition that s 80 guarantees trial by jury and then to disregard the literal meaning to give effect to that "purpose" or "object" of trial by jury. To do so is an exercise in circular reasoning.
Nor is there anything in the phrase "trial on indictment" which suggests a purpose other than that which the literal meaning suggests. No doubt that phrase indicates that the trial is the result of a decision of the Crown, a public authority such as a Director of Public Prosecutions, a magistrate or a grand jury to put the accused on trial by indictment. But that decision could not have been made unless the Parliament had made the offence an indictable one. So nothing is gained by identifying s 80 as having the purpose of requiring trial by jury when some public official has made a decision to put the accused on trial. It still allows the Parliament to avoid the operation of the section by refusing to classify the offence as indictable.
What, then, is the mischief at which s 80 is aimed? When the section is read in the light of its United States counterpart, its drafts and the discussion at the Constitutional Conventions, it is plain that it took the form that it did to avoid the mischief that would result if Parliament could not determine which offences against the laws of the Commonwealth were to be tried by juries. The words of s 80 were deliberately and carefully chosen to give the Parliament the capacity to avoid trial by jury when it wished to do so. The current and traditional interpretation of s 80, therefore, gives effect to the purpose of the section.

[138]

Here the history shows conclusively that the words "trial on indictment of any offence against any law of the Commonwealth shall be by jury" mean that a jury is required only when the trial is on indictment. It also shows that the subject to which that language was directed was the freedom of the Parliament to choose which offences should be classified as indictable and which should be classified as summary offences, so that the Parliament could control which offences against the law of the Commonwealth should be tried by jury.
In the light of this history, the only possible conclusion is that s 80 was enacted in the form in which it was for the purpose of enabling the Parliament to have the right to say whether an offence was to be indictable or punishable summarily and for ensuring that the right to trial by jury would depend on Parliament's classification of the offence.
Whether one looks at text, history or purpose, the answer is the same: the approach to the construction of s 80 accepted by the majority in Kingswell and by this Court in earlier cases is correct. Section 80 is not a great guarantee of trial by jury for serious matters. It guarantees trial by jury only when the trial is on indictment. Whether the offence is tried or triable on indictment depends in the first instance on Parliament's classification of the offence. Such a conclusion is unlikely to be acceptable to many civil libertarians or those who believe that serious criminal offences should be tried by juries. But it is what our Constitution mandates. A contrary result can only be reached, in my respectful opinion, by disregarding the plain meaning of s 80, its drafting history and its purpose.
Even if one came to the conclusion that s 80 had, or may have had, a purpose other than that which its plain words suggest, a real question would arise as to what meaning could be placed on the section to give effect to that purpose. Those Justices who have rejected the accepted interpretation of s 80 have conceded[134] that, read literally, it gives the Parliament a choice as to whether the offence is to be prosecuted on indictment or summarily. But they have asserted that s 80 is a constitutional guarantee and that it must be given efficacy. They have not been able to agree, however, as to the meaning that should be given to the phrase "trial on indictment" in s 80. Thus Dixon and Evatt JJ thought that it means a trial where a public authority is responsible for the accused being put on trial and the offence involves a liability "to a term of imprisonment or to some graver form of punishment"[135]. Deane J said that "the trial of a person charged with a serious offence at the suit of the State or an agency of the State is a 'trial on indictment'"[136]. His Honour was unable to accept the view of Dixon and Evatt JJ that "the criterion of what constitutes, for relevant purposes, a serious offence is that it be punishable by any term of imprisonment at all"[137]. Deane J thought an offence is a "serious offence" if "it is not one which could appropriately be dealt with summarily by justices or magistrates in that conviction will expose the accused to grave punishment"[138]. To decide Kingswell it was "unnecessary ... to identify more precisely the boundary between offences which are not and offences which are capable of being properly so dealt with"[139]. His Honour expressed a tentative view that the boundary will ordinarily be identified by reference to whether the offence is punishable by a maximum term of more than one year. It would seem that, in his Honour's view, history and established practice would also assist in determining what could "appropriately be dealt with summarily" or what constituted a "grave punishment"[140]. Murphy J thought that s 80 guaranteed trial by jury in cases of "serious criminal offences"[141].
Not only are each of these formulations significantly different from each other, but each uses a category of indeterminate reference - "grave form of punishment", "serious matter", "grave punishment", "serious criminal offences", "serious offence", "appropriately be dealt with summarily". Each of them would provoke as much, probably more, uncertainty of application as the "not self-determining"[142] term "all Crimes" in the corresponding provision in the Constitution of the United States[143]. They would leave every Justice free to decide each case according to the opinion of the Justice as to whether the offence or the punishment was sufficiently serious or grave to require a jury trial. There would be no objective criteria to which the Justice could turn to determine the question. Contrary to what Deane J may have thought in Kingswell, history would give present-day Justices little assistance in determining whether the trial of an offence could "appropriately be dealt with summarily". At all events, history would authorise summary trials in many cases that would seem to modern eyes to require a jury trial if s 80 is to be regarded as a real guarantee of trial by jury.
Professor Frankfurter and his student[144], Thomas Corcoran, have shown in discussing the United States provision[145] that in 1776 over 100 offences were prosecuted summarily in England[146]. By the standards of today, many punishments that could be imposed after summary trial were "grave", particularly having regard to the nature of the offence. Professor Frankfurter and Mr Corcoran pointed out[147]:

[140]

Their discussion shows that the history of legislation concerning summary offences would furnish little if any guide to the application of s 80 in a modern society. Today, most people - given the views of the public concerning the inadequacy of sentences and capital punishment, I hesitate to say all people - would think that any offence that could result in corporal punishment was a "serious offence". Most people would think that a person should have a jury trial before being exposed to such punishment. Yet historically, whipping was one form of punishment for summary offences. Indeed, it was a common form of punishment for many offences in this country at the time of federation and has been ordered by a court in the lifetime of many people still living[148]. Of course, it is highly unlikely, to say the least, that any Parliament of the Commonwealth, or a State legislature whose sentencing laws applied in federal jurisdiction by reason of s 79 of the Judiciary Act 1903 (Cth), would now allow such a punishment to be inflicted whether summarily or for an indictable offence. But if it did, neither legal history nor "established practice" would necessarily determine whether the trial of an offence with such a punishment was in substance "a trial on indictment".
Undoubtedly there are many offences where courts would have no doubt that they were serious offences requiring trial by jury. Treason, murder and rape are examples. But in the regulatory State, there are many offences where judges and justices would probably often disagree as to whether they met the criteria laid down by Dixon, Evatt, Murphy or Deane JJ. History is unlikely to offer much of a guide. In the United States, the indeterminacy of the "cruel and unusual punishments" clause of that country's Constitution[149] has provoked much debate and corresponding uncertainty concerning its application. It seems likely that the suggestions of the above Justices as to the meaning of s 80 would create similar uncertainty as to the reach of the section. Would charges of indecent assault, indecent exposure, larceny, embezzlement, falsification of accounts, fraudulent misappropriation, false pretences, corruption, receiving, malicious injury or forgery require a trial by jury? They are merely some of the serious offences that are, or have been, able to be tried summarily in State courts, sometimes only with the consent of the accused and sometimes without his or her consent. Are these offences serious matters which would require trial by jury if enacted by the Commonwealth? Would it make a difference if the maximum sentence in respect of such offences is (say) two years? Is two or three years for corporate fraud such a serious matter involving such grave punishment that it would require a jury trial in the case of a federal offence? Would it be relevant that the facts of the case suggest a sentence of no more than one year? Would the length of sentences that could be imposed in State jurisdictions for summary offences be relevant in determining the application of s 80?
These questions suggest that to adopt the views of Dixon and Evatt JJ or Murphy J or Deane J would provoke much uncertainty as to the application of s 80 and create a new and fertile field of constitutional jurisprudence. Unsatisfactory consequences cannot alter constitutional meanings but they should make us hesitate before adopting the meaning of a constitutional provision which is contrary to its text, history and purpose.
Furthermore, because the rights conferred by s 80 cannot be waived by the accused[150], rejection of the current interpretation would mean that Parliament could not confer on an accused person the right to elect to have a non-jury trial. Many accused persons would not regard the mandatory requirement of a jury trial as conferring any benefit on them. Those charged with offences likely to arouse public indignation, such as cases involving sexual or other crimes against children, for example, or those accused who have raised mental illness as a defence, often prefer trial by judge to trial by jury when they are able to elect for trial by judge. To some accused, trial by jury is not a boon.
Even if I thought that the current interpretation of s 80 accepted by the majority in Kingswell was incorrect, the difficulties of judicially formulating a workable principle would make me hesitate before rejecting the authority of the cases that give effect to the current interpretation. My hesitation would be increased by the knowledge that in 1988 a substantial majority of the Australian people refused to approve an amendment to s 80. That amendment would have required a jury trial where the person was being tried "for an offence, where the accused is liable to imprisonment for more than two years or any form of corporal punishment"[151]. The proposed amendment made exceptions for a trial for contempt of court and certain cases tried before a court-martial. It is true that the amendment was defeated as part of a package of four amendments and that a majority of the people may have favoured it. But at least this much can be said: the people did not feel so strongly in favour of trial by jury that they were prepared to accept the remaining amendments so that they could have trial by jury "for an offence, where the accused is liable to imprisonment for more than two years or any form of corporal punishment".
In my opinion, the traditional interpretation of s 80 is correct. In any event, even if I had thought that interpretation was plainly wrong, it has stood for so long and been confirmed so often and so recently that I would hesitate to depart from it. Significantly, Sir Owen Dixon, who was one of the authors of the dissent in Lowenstein, was party to a judgment in which the Court "declined to reconsider" Lowenstein[152]. The applicants' reliance on the dissenting judgment of Deane J in Kingswell must be rejected.

[160]

This statement explains the form of information in the present case. No challenge in the present case was made to the correctness of this practice. The applicant challenged the correctness of Kingswell, not Meaton. But the decision in Meaton would provide a strong ground for declining to re-open the decision in Kingswell even if I had doubts about its correctness. Although only the correctness of the suggested practice and not the decision in Kingswell was in issue in Meaton, it is clear that Meaton accepted that Kingswell was correctly decided. In addition, many criminal trials have subsequently taken place relying on Kingswell's holding that s 235(2) did not create additional offences. Those two matters make an overpowering case for refusing to re-open the decision in Kingswell irrespective of one's view as to its correctness.
However, the applicants contend that four cases involving s 80 show that the reasoning in Kingswell can no longer be supported. They contend that those cases establish, contrary to Kingswell, that s 80 is a constitutional guarantee of substance. They argue that, even if Parliament can determine which cases can be tried on indictment and which summarily, it cannot determine what is or is not an "offence" for the purpose of s 80. In my opinion, these contentions must be rejected.
The first of the four cases is Brown v The Queen[184] which established that a defendant cannot elect to be tried on indictment by a judge alone because s 80 mandates that a trial on indictment of any offence against any law of the Commonwealth must be by jury[185]. Brown was primarily concerned with whether the "right" conferred by s 80 can be waived by a defendant, which in turn involved consideration of who is the beneficiary of the "guarantee" in s 80. Dawson J expressed the view that "it is overstating the position to say that s 80 has been reduced to a procedural provision"[186]. However, his Honour formed part of the majority in Kingswell. It is unlikely that he intended to throw any doubt on the correctness of Kingswell decided only four months earlier. Moreover, his Honour was a party to the decision in Meaton which was decided only two months after Brown. In my opinion, nothing in Brown gives any reason to doubt the correctness of Kingswell.
The second case upon which the applicants rely is Cheatle v The Queen[187] which held that the requirement in s 80 that a relevant trial "shall be by jury" necessitated that the jury return a unanimous verdict. As Kirby J noted in Re Colina; Ex parte Torney[188], Cheatle is authority for the proposition that "where s 80 of the Constitution does apply, the essential elements of jury trial must be observed"[189]. The issue in this case, however, is whether s 80 applies; that is, does s 235(2) contain elements of an offence which is to be tried on indictment but only partly by jury? That being so, nothing in Cheatle gives any reason to doubt the correctness of Kingswell.
The third decision upon which the applicants rely is Katsuno v The Queen[190]. Katsuno held that it was unlawful for the Commissioner of Police of Victoria to provide the Director of Public Prosecutions with details of convictions and other information concerning people summoned to serve as jurors in criminal trials[191]. The main judgment was delivered by Gaudron, Gummow and Callinan JJ. While their Honours quoted, with apparent approval, an "important" statement made by Deane J in Kingswell[192], they noted that that statement "has nothing to say about what occurred in this case"[193]. Moreover, the passage extracted from Kingswell does not contain anything inconsistent with the judgment of the majority in that case. It merely describes, in broad terms, one of the important functions served by the institution of trial by jury. Nothing in Katsuno gives rise to any doubt concerning the correctness of Kingswell.
The final case upon which the applicants rely is Re Colina; Ex parte Torney[194]. There the prosecutor submitted, inter alia, that s 80 of the Constitution prohibited charges of contempt of court made against him being tried summarily. He contended that a trial by jury was necessary[195]. Gleeson CJ and Gummow J rejected the submission on the ground that what was alleged against the prosecutor was not an offence against a law of the Commonwealth[196]. I rejected it on the ground that the prosecutor had not been charged on indictment[197]. Kirby J held that s 80 had the meaning that Deane J had given it in Kingswell[198]. Callinan J held that, notwithstanding that he shared some of the concerns expressed by Dixon and Evatt JJ in Lowenstein and by Brennan J in Kingswell, s 80 did not require the result for which the prosecutor contended[199]. Only the judgment of Kirby J throws any doubt on the correctness of Kingswell. Not only is the view of his Honour contrary to a long line of authority in this Court concerning the meaning of s 80, it is, for the reasons which I have given, erroneous. Nothing in the other judgments in Re Colina; Ex parte Torney[200] throws any doubt on the correctness of Kingswell.
For all of these reasons, the applications for special leave to re-open Kingswell should be refused.

[162]

The applications for special leave to appeal should be dismissed.
KIRBY J. Section 80 of the Australian Constitution, concerning trial by jury, has led to some of the sharpest divisions of opinion in the history of this Court. The present proceedings are no exception.
In the early days of the Court, the opinion prevailed that the section was no more than a procedural requirement[201], a position seemingly incompatible with its inclusion within the enduring provisions of Ch III of the Constitution. Yet, even in those dark days, there were occasional glimmers of light. Thus, in 1915, Griffith CJ suggested that s 80 was a "fundamental law of the Commonwealth"[202]. In 1936, Evatt J, extracurially, derided the prevailing view as tautological because it rendered illusory the protections of the Constitution and put them "at the will of the very Parliament whose action it was intended to restrict by safeguarding the rights of the citizen"[203]. In 1938, Dixon and Evatt JJ wrote a strong dissent castigating the opinion of their colleagues as one which attributed a "queer intention" to the Constitution and allowed it to be "mocked"[204]. Although individual Justices were from time to time persuaded to the minority view[205], the majority opinion remained that s 80 was not a constitutional guarantee but a mere procedural provision[206]. That view was expressed as late as 1985 in the decision that comes under re-examination in these proceedings: Kingswell v The Queen[207]. Again, there were strong dissenting opinions[208].
Then, it seemed, a change came over the Court's exposition of the requirements of s 80. In 1986, in Brown v The Queen, Deane J declared that the section was a "constitutional guarantee ... for the benefit of the community as a whole"[209]. Other members of the Court on that occasion acknowledged that s 80 afforded a meaningful guarantee protective of substantive rights[210]. In 1993, in Cheatle v The Queen[211], a unanimous Court declared that s 80 protected the essential features of criminal trial by jury. The survival of those features was not a matter for this Court but for the people of Australia, "for whose protection the guarantee, including the requirement of unanimity, was adopted"[212].
Then the earlier formalism returned. The most recent decisions on s 80, whilst sometimes containing a passing nod to the view of the section as a fundamental guarantee of the Constitution[213], have confined its operation to an ineffective hortation. The old view, it seems, is, for a time, to prevail again. The logic and necessity of giving a constitutional effect to s 80 is to be rejected. Whereas other provisions of Ch III are strictly invoked to strike down beneficial national legislation[214] or to invalidate longstanding national practice[215], s 80 of the Constitution is, it would appear, to be viewed as a withered "guarantee" of no substantive use to those facing trial for federal offences in Australian courts. It might just as well not have been included in the Constitution.
Because, respectfully, I cannot accept this view of the meaning of s 80 and because I reject a turning back to such a sterile opinion about its requirements, I must explain my point of difference in the context of the present proceedings.

[164]

As the facts of the matter have been set out in the reasons of the other members of the Court[216], I will not repeat them. Without any exception relevant to the main issue for decision, the facts were undisputed.
The three applicants, Yu Shing Cheng ("the first applicant"), Gang Cheng ("the second applicant") and Bach An Chan ("the third applicant") were each charged, along with two other persons, with being knowingly concerned in the importation of a prohibited import, contrary to s 233B(1)(d) of the Customs Act 1901 (Cth) ("the Act"). The charge became the first count of the Information filed in respect of the applicants. The Information also contained a second count charging the second applicant and one other with the offence of possessing a prohibited import. However, at the commencement of the proceedings at first instance, a nolle prosequi was filed in respect of this count. It has not concerned this Court. I will not repeat the terms of the Information, which is also set out in the reasons of others[217].
The applicable provisions of the Act must be referred to. Although the Act was one of the first statutes enacted by the Parliament, it was not until 1910 that it was amended to include a provision which punished the introduction into Australia of prohibited imports. The amendment to the Act in that year provided for a single offence which carried a maximum penalty, upon conviction, of two years imprisonment[218]. In 1967, the Act was amended to introduce specific provisions with respect to "narcotic drugs" and to permit differential penalties depending upon whether the offence was prosecuted summarily or on indictment[219]. In 1971, for the first time, the Parliament introduced a provision for differential punishment for the importation of a "trafficable" quantity of narcotic goods, providing for a two-tiered system of punishment depending on the determination of quantity[220]. In 1979, the concept of a "commercial quantity" was first introduced[221], thereby introducing the three-tiered penalty system for which the Act still provides[222].
Section 233B of the Act is titled "Special provisions with respect to narcotic goods" and is set out in the reasons of the other members of the Court[223]. Section 235, which governs the differential punishment of such offences, is titled "Penalties for offences in relation to narcotic goods". It is also set out in the reasons of other members of the Court[224]. Section 233B(3) states that a person guilty of an offence against s 233B(1) is to be punished as provided by s 235. The terms of s 80 of the Constitution are likewise set out in other reasons[225] and the reader can now be taken to be familiar with its language. I will not burden my reasons with the repetition of any of these provisions, but I incorporate them by reference.

[165]

In the Supreme Court of South Australia, the trial of the applicants (and of the two other accused) was assigned to Debelle J. In a pre-trial conference, his Honour ordered that the trial commence on 6 November 1998. Pursuant to r 8.01 of the Supreme Court Criminal Rules 1992 (SA)[226], he permitted each of the applicants to apply to quash the proceedings or to stay them on constitutional grounds. Notices were given pursuant to s 78B of the Judiciary Act 1903 (Cth). The trial was called on. The applicants were each arraigned. In accordance with standard practice, the jury panel was not present at the time. This practice avoids any prejudice to the applicants that might arise out of the panel hearing the ensuing argument. Counsel for each of the applicants moved the Court to quash the Information on the basis that the count prosecuted was dependent upon a statutory provision that was unconstitutional.
These applications were treated by Debelle J as a demurrer to the Information[227]. The prosecutor joined issue on the demurrer. Put shortly, the applicants submitted that the offences with which they were charged were defined not only by s 233B of the Act, as set out in the Information, but also by s 235 of the Act, which is the section that purports to provide different penalties in relation to the importation of different prohibited imports under s 233B. The applicants argued that the provisions of the Act were invalid because they were inconsistent with s 80 of the Constitution. This was so, they contended, because, by s 235 of the Act, the determination of the nature and quantity of the prohibited import was to be decided by a judge, whereas s 80 of the Constitution required that any trial be by jury, including the determination of any relevant contested facts involving an element of the "offence".
The applicants acknowledged that the decision of this Court in Kingswell stood in the way of their argument. However, they submitted that decisions of this Court on s 80 since Kingswell[228], and dicta in other decisions of this Court[229], demonstrated that Kingswell was wrongly decided. Debelle J overruled the demurrer. He concluded, correctly, that he was bound by the decision of this Court in Kingswell[230]. In accordance with Kingswell, he upheld the validity of the provision of the Act under which the applicants were charged in the Information and thus of the Information itself.
Following this ruling, the applicants each pleaded guilty to the charge appearing in the first count of the Information. They thereby followed a course of conduct which had been foreshadowed in the pre-trial directions. According to the file note, that course was adopted "so the accused can reserve their capacity to argue the validity of s 233B(1)(d) of [the Act]". The further proceedings in relation to the applicants were stood over. The trial against the other two persons who were also accused proceeded to the verdict of a jury. Those persons were acquitted. On 3 December 1998, the applicants appeared for sentence before Debelle J. Although the third applicant gave oral evidence about how he had become involved in the importation (his part had been the most significant of the three), the other applicants gave no such evidence. They relied on statements made on their behalf by their counsel, a course not uncommon in sentencing procedure in Australia[231]. This course can often be efficient. It can save time where the stated facts are not disputed by the prosecution and where it involves no unfairness to the accused to adopt that course[232].
On behalf of the first applicant, three matters were put by counsel to Debelle J to ameliorate the seriousness of his involvement in the conduct charged. The first was that, although he knew that prohibited imports, in the form of narcotic goods, were being shipped to him from Bangkok, he believed that what was involved was "only two small parcels of cocaine"[233]. Secondly, this was said to be confirmed by the fact that he proceeded to the airport to collect the shipment in his motor vehicle, a standard sedan, which was quite unsuitable for delivery of five large crates. Thirdly, evidence was received by Debelle J that, on the evening he took delivery of the pedestals in which the heroin was concealed, the first applicant had said to a Mr Hills that he had to collect "two small parcels". "With some diffidence", Debelle J said that he was "prepared to accept what has been said on [the applicant's] behalf". The ultimate conclusion of Debelle J for the purpose of sentencing the first applicant was[234]:

[170]

Each of the applicants appealed to the Court of Criminal Appeal of South Australia against his conviction and each sought leave to appeal against his sentence[236]. The Court dismissed the appeals against the convictions. However, in light of consideration of the sentences imposed on other offenders who were involved in the transaction in New South Wales, tried and convicted in that State, the Court upheld the appeals against the sentences[237]. The first applicant was resentenced to imprisonment of nine years with a non-parole period of five years[238]. The second applicant was resentenced to imprisonment of ten years with a non-parole period of six years[239]. The third applicant was resentenced to imprisonment of thirteen years with a non-parole period of nine years[240].
Although the prosecution had raised no objection to the competency of the appeals against the convictions, a preliminary question arose in the course of disposing of those appeals. This concerned whether the appeals were competent, given the course which the proceedings had taken at first instance and in particular the plea of guilty which each applicant had entered when the demurrer to the Information was overruled. On this point, Bleby J[241] relied on the practice in South Australia[242], which was in turn derived from authority in England[243]. This holds that an appeal against conviction may be heard and determined where, relevantly, "upon the admitted facts [the prisoner] could not, in law, have been convicted of the offence charged ... or if to refuse to allow an appeal would result in a miscarriage of justice"[244]. The Court therefore satisfied itself that the appeals could be maintained. Treating the appeals as a challenge to the ruling on the demurrer[245], the Court affirmed that they were competent and proceeded to deal with them on their merits.
On that basis, whilst recording the submissions of the applicants, the Court of Criminal Appeal, like Debelle J, properly concluded that it was bound by the decision in Kingswell "to the effect that s 235 of the [Act] does not enlarge the number of offences prescribed by s 233B but is merely a method of fixing a penalty, and that s 235 is not rendered invalid by s 80 of the Constitution"[246]. It was on this footing that the appeals against the convictions were dismissed.

[171]

Both the first and second applicants complained that a different factual foundation for resentencing them was accepted by the Court of Criminal Appeal. They argued that the course adopted by the Court of Criminal Appeal was impermissible in a number of respects.
First, if the primary judge found that they were not aware of the quantity of the narcotic goods concealed in the pedestals, then the appellate court should have held that s 235(2)(c)(i) of the Act required proof by the prosecution that each of them had the requisite criminal knowledge and intent as to the existence of a commercial quantity of the narcotic goods imported and that neither the first nor second applicant possessed such knowledge and intent[247].
Secondly, the applicants argued that, in any case, the Court of Criminal Appeal should not have substituted its own findings for the findings of the primary judge, who had the responsibility of sentencing the two applicants and who was "prepared" to proceed on the basis stated. A strong and convincing reason would have been necessary to authorise the appellate court to reach a conclusion of its own in relation to such matters. The reason principally relied on (the size and number of the pedestals) was, so it was submitted, logically unconvincing. It was perfectly possible that large marble pedestals could contain a smaller than commercial quantity of narcotic goods. The quantity of the prohibited goods imported had no necessary relationship to the number and size of the pedestals containing them.
Thirdly, the first and second applicants also complained that, if the Court of Criminal Appeal considered that the finding of the primary judge was unacceptable in relation to their supposed knowledge and intent, the proper course was not, in the absence of hearing from the applicants, to substitute a new finding as to their knowledge and intent based on nothing more than doubtful inference. If necessary, the matter should have been returned for formal determination at first instance[248]. In the event, for reasons which I will explain, it is unnecessary for me to decide these separate arguments.

[186]

When questions of the constitutional validity of legislation are presented, it is usually essential to construe the legislation first. Until its operation is known, questions of validity cannot ordinarily be determined with confidence[255]. Sometimes a particular construction will avoid the necessity of invoking a constitutional prohibition or command which (were the construction otherwise) would strike down the legislation. So it has occasionally proved with s 80 of the Constitution. Thus in Katsuno, the view which I took about the unlawfulness of the practice of jury vetting disclosed by the evidence necessitated relief. On that approach, no question arose concerning the validity of the applicable laws[256]. Similarly, in Colina, the view taken by the majority of this Court, that contempt of a federal court did not constitute an indictable "offence against any law of the Commonwealth", relieved those members of the Court of any need to consider what would otherwise have been the requirements of s 80 of the Constitution[257].
There are two relevant points of construction in this instance: what the reference to "the Court" in s 235(2) of the Act means; and whether s 235(2)(e) of the Act may constitute the sole valid and universal punishment for the "offence" provided by s 233B(1). On the first point of construction, if "the Court" referred to in s 235(2) means, relevantly to a trial on indictment of an offence against any law of the Commonwealth, "the jury", for the purpose of resolving any disputed issues of fact, there could be no offence to s 80 of the Constitution. The purpose of that section, to protect trial by jury, would be achieved. However, in Kingswell, this Court unanimously dismissed that construction of s 235(2)[258]. It is sufficient for me to dispose of this first point of construction in this case by saying that the reasons of the members of the Court in Kingswell on this issue are compelling. The first point of construction should not be reopened. Reference to "the Court" means the judge sentencing the accused. It does not include the jury.
The second point of construction is likewise unavailing as a means of avoiding the constitutional problem. It was obviously the purpose of the Parliament to introduce differential punishments for the single "offence" provided by s 233B(1)(d) and to do so by reference to the variable considerations contained in s 235(2). Seen in the context of those provisions, par (e) of that sub-section was obviously enacted to afford a punishment at the lowest end of the scale. It was not meant to be a universal provision for the punishment of all offences against s 233B(1)(d). So much appears from the structure of s 235(2), the large disparity between the several maximum sentences enacted, and the express terms of par (e) which applies only "in any other case", that is, other than as provided elsewhere in s 235(2).
Nevertheless, if it became necessary to invalidate the provisions of s 235(2)(c) and (d) of the Act in order to preserve the constitutional validity of ss 233B(1)(d) and 235(2) (operating, as they are intended to do, together) the provisions of s 235(e) alone might be upheld as constitutional. There would then be but one "offence" for constitutional purposes in s 233B(1)(d) and one punishment, provided by par (e), for that offence[259]. This course could be taken to uphold so much of the Act as was constitutionally valid[260]. However, such an interpretation of the Act does not avoid the constitutional problem. It presents it for decision.

[187]

The requisite standing: The first of the three difficulties which the applicants' pleas of guilty were said to tender can be disposed of quite easily. Upon this point, the Court of Criminal Appeal was clearly correct. The applicants did not abandon the constitutional arguments that were raised on their behalf. It matters not whether their initial proceedings were by way of demurrer to, or motion to quash, the Information[261]. What occurred can only be understood in the context of what actually happened. That is why I have taken some pains to describe what took place before Debelle J. The undisputed description, contained in the reasons of the Court of Criminal Appeal[262], read with the record of the proceedings (noted apparently by the clerk of arraigns on and with the Information itself) make it clear beyond argument that the applicants explicitly reserved their arguments challenging the constitutional validity of the provisions of the Act pursuant to which they were later sentenced.
The applicants could, of course, have applied to the primary judge to delay their trial to permit them to apply for leave to appeal against his interlocutory ruling dismissing their arguments. Quite possibly, they could have sought relief in this Court under the Constitution itself directed to the prosecutor[263]. However, two other persons were being tried with the applicants before the primary judge. Neither of those persons had raised a constitutional objection. This Court has repeatedly and recently discouraged interlocutory intervention in criminal trials[264]. In the circumstances, the course followed was a prudent, and certainly an available, one. The applicants were, in effect, reserving their constitutional point before courts which were obliged by binding authority to overrule it. Their interest is clear. It remains. They now press their point. They are entitled to have it determined according to law.
The legal effect of the pleas: The second objection under this heading has more force. A plea of guilty is ordinarily taken to respond to all of the essential components of the charge brought against an accused and amounts to an admission of all of those components. As such, it is a confession formally entered in the record of the court[265]. However, the common law is tender to liberty. It is willing to look at the substance of the accused person's intention in entering a plea. Where it is shown that the accused "did not appreciate the nature of the charge or did not intend to admit he was guilty of it", it is the substance and not the form that concerns the court[266]. Therefore, three considerations must be borne in mind to identify the effect of the pleas in the present case.
First, the plea was only entered after the demurrer was overruled and the motion to quash the Information was dismissed. Secondly, the plea was only entered when the primary judge held himself bound to conform to the decision of this Court in Kingswell which held that a court, proceeding to sentence a person in accordance with the provisions of s 235(2)(c) who is convicted of an offence against s 233B(1)(cb) of the Act, is not concerned with the knowledge and intent of the accused as to the nature and quantity of the goods imported, but only with the objective facts disclosed in that regard[267]. Thirdly, were it not for these considerations, it would, at least arguably, have been open to the applicants to seek the separate determination of the relevant circumstance of aggravation by a jury in accordance with the rule of practice traced to R v Bright[268], apparently approved by the joint judgment in Kingswell[269], and endorsed by the majority of this Court in Meaton[270]. The circumstance of aggravation in question was the quantity of prohibited import, namely, narcotic goods, to which the section applied, and the extent to which the accused were aware of that quantity at the time of the importation.
In South Australia, the rule of practice observed where there is a factual dispute about a relevant circumstance of aggravation was explained by King CJ in R v Hietanen[271]. His Honour said[272]:

[189]

At least in respect of the first and second applicants, the proper understanding of what occurred before Debelle J, when he was proceeding to sentence them, was that they tended their plea on the basis of an express denial of the circumstance of aggravation. Because the prosecution did not reject that denial in their cases, but accepted the plea in that context, Debelle J indicated (to the extent stated) that he was himself prepared to accept such pleas. It was only because he appeared to take the view that the determination of the factual matters important to the penalty was for him alone (constituting as he did "the Court"), that he did not treat the knowledge and intent of any of the applicants concerning the quantity of the prohibited import, in the language of the Act, as determinative of the loss of liberty to which each of the applicants was exposed. Instead, he regarded himself as governed by the objective facts about the nature of the substance and quantity in fact imported.
In the foregoing circumstances, I do not accept that the plea of any of the applicants deprived them of their entitlement to maintain their challenge to the constitutional validity of the provisions of the Act. A ruling was made on their demurrer and motion. It remains for this Court to decide the correctness of that ruling. Only this Court can do so having regard to the constitutional argument which the applicants have propounded.
The "trial" had commenced: The third suggested basis for depriving the applicants of their constitutional argument was that, by reason of the pleas, their "trial" never commenced. According to this argument, no occasion arose for the application of s 80 of the Constitution and no complaint could now be made of the deprivation of a jury. This contention should also be rejected.
The point at which a "trial" commences, whether by statute or the common law, is often a subject of controversy[273]. In South Australia, it has been held that, ordinarily, a criminal trial commences "when the accused having been arraigned before the judge who is to try him, that judge embarks upon the hearing and determination of any preliminary questions or upon the empanelling of the jury"[274]. For the purposes of s 80 of the Constitution, no narrow view should be taken of the requirement which is addressed to a mode of trial "of any offence against any law of the Commonwealth". The repeated use of the word "any" indicates that the ambit of s 80 was intended to be very wide.
The plea that was taken from the applicants was, in my view, taken at their "trial" for the purposes of s 80. That trial was on "indictment". Thus the constitutional objection which the applicants tender remains to be determined. If it is a good objection, they have pleaded to an indictment containing an invalid offence. Such a plea would be a nullity. So would be the sentence imposed upon them in consequence. Constitutional relief could not then be denied. There can be no estoppel against the requirements of the Constitution by force of the plea. Accordingly, none of the arguments raised to repel the applicants' constitutional objection on the basis of their pleas of guilty succeeds.

[190]

The focus here is therefore on the phrase "any offence" in s 80. About the requirements of those words, the only authority of this Court is Kingswell and the decision which reaffirmed it, Meaton[275]. Both decisions are by majority, with the same dissentients, Brennan and Deane JJ, expressing criticism of the majority views in each case. The respondent, supported by the Attorney-General, urged that this Court should not reopen Kingswell. In part, the submission contended that the decision was correct in all of its aspects. In part, it suggested that even if one were persuaded to the view expressed by the minority in Kingswell, reopening should nonetheless be refused.
In support of adhering to the authority in Kingswell, a number of arguments were deployed. First, it was submitted that the decision in Kingswell was harmonious with the long line of authority of this Court about s 80, extending over the better part of a century. Thus, if it is possible, as that authority holds, in effect, to march out of the obligations of trial by jury, as mandated by s 80, by the simple device of providing that the trial in question should be otherwise than on "indictment", no objection could be raised to the legislative technique adopted in ss 233B(1) and 235(2) of the Act. All that those provisions did was to enact, in separate sections, what might otherwise be seen as distinct and separate offences defined by reference to specified circumstances of aggravation. In the s 80 cases, the Court might occasionally have used the rhetoric of describing s 80 as a "constitutional guarantee". However, properly analysed, s 80 was not a "guarantee" at all, except in the limited circumstances in which the Parliament chose to so provide. If such provision could be excluded by a legislative provision designating the initiating process for a particular federal offence as otherwise than by "indictment", the so-called "guarantee" could, by analogy, be excluded just as readily by a device that divorced the "offence" specified from the differential punishment provided for such an "offence"[276]. With respect to those of the contrary view, I regard such an approach to constitutional construction as completely erroneous. It is wholly inappropriate to the task entrusted to this Court to give meaning and real effectiveness to a constitutional charter of government, which is difficult to amend and intended to endure for an indefinite time[277].
Secondly, it was argued by the respondent that, in federal matters, any offence would have to be defined by or under a law of the Commonwealth. Therefore, by its terms, s 80 must have contemplated just such provisions defining the elements of the offence as ss 233B and 235 of the Act. Any attempt, such as that contended for by the applicants, to define the essential requirements of an "offence" in such a way as to prevent the drawing of distinctions between matters integral to the conduct constituting the "offence" and matters personal to the offender aggravating the seriousness of the offence would be bound, so it was put, to present acute practical problems. These were illustrated by the terms of the Act. Thus, difficult questions could arise, such as: would the circumstance of a prior conviction of another offence, as mentioned in the penalty provision in s 235(2)(c)(ii) of the Act, be classified only as conduct affecting the quality of the "offence" itself? Or would it be open for the Parliament to classify such a consideration as an element, the "offence" being established, which would attract differential, and heavier, punishment?
Self-evidently, the proposition advanced for the applicants would necessitate the drawing of lines and the classification of particular considerations. The applicants accepted this. Similar problems must be faced by construing the words on "indictment" as constitutionally equivalent to the specification of offences that are "serious"[278]. But the alternative to drawing such lines is the adoption of a construction of s 80 of the Constitution that deprives the section of any ultimate constitutional efficacy. In a choice between adjusting to a difficulty and surrender to the Parliament of untrammelled power, which the constitutional text, if it has a purpose, was designed to deny, the former will ordinarily be the correct path of constitutional construction. It is the path that the Court should take here.
Thirdly, the Attorney-General laid much emphasis upon the intention of the framers of the Constitution. Once again[279], this Court was taken through the debates at the Constitutional Conventions to show how many of the framers (some of whom later as Justices of the Court gave effect to their opinions) regarded the notion that s 80 of the Constitution was a guarantee of individual rights as "clap-trap"[280]. It was on this footing that the submission was advanced that it was perfectly possible, indeed affirmatively expected, that s 80 could be rendered nugatory by "mere drafting devices"[281]. Such an approach, deeply offensive to a principled construction of the Constitution, needs to be answered. It is my opinion that the framers of the Constitution did not intend, nor did they enjoy the power to require, that their subjective expectations, wishes or hopes should control all succeeding generations of Australians who live under the protection of the Constitution[282]. The history of s 80 and debates or writings about its expected operation may certainly be read for illumination and guidance. But the consideration that governs the meaning of the constitutional text is the ascertainment, with the eyes of the present generation, of the essential characteristics of the text read as a constitutional charter of government. We are not chained to the expectations of 1900.
Fourthly, the respondent and the Attorney-General each argued that, although differing views had been expressed about the requirements of the phrase "any offence" in s 80 of the Constitution, a definitive interpretation had been established in Kingswell. That interpretation was entitled to respect on the principle of stare decisis. That principle was itself a feature of the Judicature established by the Constitution. It afforded stability to constitutional interpretations, the easy alteration of which could cause great inconvenience. Much emphasis was placed on the fact that, since 1985, when Kingswell was decided, hundreds of trials had been conducted and accused persons convicted and sentenced. Hundreds are currently serving their sentences. It was submitted that a proper sense of intellectual modesty commanded acceptance of some rulings even when there were personal doubts. Particularly was this so where, to upset them, would occasion disruption, cost, a sense of grievance and substantive injustice.

[191]

I concede that the foregoing are powerful reasons for restraint. But they do not ultimately persuade me. The primary basis for this conclusion is that I regard the reasons of Brennan J, in the minority in Kingswell, to be compelling and clearly correct.
The practical difficulties which the holding of the joint judgment in Kingswell produced were immediately recognised. Those difficulties were reinforced soon afterwards, in a way that is both contrary to principle and impractical[283]. In Kingswell[284], the joint judgment accepted that some circumstances of aggravation, which expose an accused person to a greater maximum penalty, may create a separate offence; some may not create a separate offence; and some may simply provide considerations relevant to the exercise of the sentencing discretion[285]. In an attempt to deal with the problem presented by the second class of case (and because of certain statutory provisions in some parts of Australia) the joint judgment posited a "rule of practice" that would allow such an issue of aggravating circumstances to be adjudicated upon by the jury[286]. It is that rule of practice which is described by King CJ in R v Hietanen[287], set out earlier in these reasons.
This notion was rejected by Mason J, the other member of the majority in Kingswell. He regarded it as contrary to the view which he took that the Act assigned the determination and evaluation of all matters of aggravation to the judge sitting alone[288]. There is obvious force in this opinion. Nevertheless, the conclusion in the joint judgment led on to practices, later sanctioned by this Court in Meaton[289]. With every respect, those practices seem not only incompatible with the construction accepted in the joint judgment in Kingswell, but also with a principled operation of trial by jury, which s 80 was intended to preserve, at least in the trials to which that section applied.
If there is but one "offence" and it exists entirely in s 233B(1) of the Act, it is difficult to see what function a jury might properly have to render a verdict once a plea is taken to the count of the indictment charging that offence. What is the status of such a verdict? The improvisation that has led to this ungainly invention arises from a distaste at depriving an accused person, tried on indictment for a serious federal offence, of the jury's verdict on a contested circumstance of aggravation. Such distaste is perfectly understandable. Such a determination can convert the "offence" from one carrying a maximum penalty of two years imprisonment to one carrying the highest penalty known to our law, namely life imprisonment. But the distaste should have caused those participating in the joint judgment (and the majority in Meaton) to re-examine the correctness of their decisions about the requirements of the Constitution instead of trying to invent a way of circumventing those requirements.
All of this is put most clearly by the minority in Meaton[290]. It demonstrates the serious logical flaw that lies at the heart of the Court's holding in Kingswell. Unfortunately, that flaw has been carried over into State practice. Such practice is well intentioned[291]. But in criminal trials, a "practice cannot be adopted which is inconsistent with the substantive law"[292]. Yet this is what will continue to happen unless this Court moves to correct its earlier error.
Since Kingswell, there have been at least two cases where this Court has accepted (in the second unanimously) that s 80 of the Constitution should be given a construction that recognises its function as a real and substantive guarantee of constitutional rights[293]. Even those Justices who had formerly been of the opposite view, and part of the majority in Kingswell, embraced language which acknowledged the role of s 80 as such a guarantee and so described it[294]. In Cheatle[295], the Court unanimously explained s 80 as a "fundamental law of the Commonwealth", reading back to what Griffith CJ had said nearly eighty years earlier in R v Snow[296]. Similar language can also be found in some of the reasons of the majority in Katsuno[297] and Colina[298]. This Court should not, in my respectful view, turn back the clock. In particular, it should not accept that a "mere drafting device" could circumvent the operation of s 80 as a "constitutional guarantee" and effectively permit the Parliament to expel s 80 from the Constitution.
As to the inconvenience that would be caused by now upholding the view of s 80 which was expounded by the minority in Kingswell, I remind myself of the way in which the Court has from time to time felt obliged to depart from past authority, despite the inconvenience and disturbance that this occasions[299]. In the end, this is an outcome inherent in a society living by the rule of law and especially one governed by a written constitution. If parties who claim that a constitutional norm has been breached establish that argument but cannot rely on the courts to uphold the law, where else can they go? With every respect, to suggest that an answer to a departure from a constitutional guarantee is that the Parliament has not so far misused its powers[300] is no answer at all. This Court, and not the Parliament, is the arbiter of constitutional requirements.
If it is posited that Kingswell was incorrectly decided by the majority, the result has been a serious deprivation of important constitutional rights which this Court should now restore. The disadvantages and inconvenience of correcting earlier errors of constitutional doctrine are usually exaggerated so that they appear as "apocalyptic scenarios"[301] designed to "frighten" judges "into submission"[302]. Yet the horrible outcomes are rarely as bad as predicted. For example, the Court was informed that most of those convicted of the "offence" against s 233B(1) of the Act currently serving sentences were so convicted after a plea of guilty. Many of these might refrain from seeking to disturb sentences well advanced where the result of doing so would be a second trial for State offences or for any new federal offences for which the Parliament might lawfully provide. However that may be, "ghastly consequences"[303] did not deflect the Court in Brown or Cheatle from giving effect to the view which it took about the requirements of the Constitution. Nor did they deter the Court in Re Wakim; Ex parte McNally[304], where a majority was finally mustered to bring down most of the highly beneficial cross-vesting schemes. In a matter that properly establishes a serious mistake of interpretation of the Constitution, the only path consonant with the Court's duty is to acknowledge and eradicate the error. It should do so as quickly as possible. It should not turn a blind eye to such error.
To the extent that it is necessary, the applicants should have leave to reargue the correctness of Kingswell. The decision in Kingswell should be reopened. The holding of this Court in that case should be reconsidered, save for the unanimous opinion that "the Court" in s 235(2)(c) and (d) and (3)(a) and (b) refers to the judge sitting alone without a jury.

[192]

I can deal briefly with what follows for, in my view, this Court should adopt the approach to the requirement of "any offence" in s 80 of the Constitution which Brennan J expressed in Kingswell[305]. This was a view informed by a basic presumption deeply entrenched in the common law that preceded, and has followed, the adoption of the Australian Constitution. That presumption is stated in R v Courtie[306]. Where a legislature has provided in a statute that an accused person's liability to punishment varies, depending upon whether the prosecution is successful in establishing the existence of a particular factual ingredient, that legislature is thereby ordinarily taken to have created distinct offences. It is not ordinarily taken to have created different species of a single offence.
The principle so stated is really a basic rule of procedural fairness applicable in criminal trials. Where differentiated consequences for punishment follow proof of particular and additional conduct on the part of the accused, differentiated offences are thereby provided. Such offences must be charged, particularised and proved separately. Where a jury is summoned, the accused who disputes a relevant circumstance of aggravation is ordinarily entitled to be charged separately in the indictment in respect of each offence. That person is then entitled to have the verdict of the jury upon each charge as so specified[307]. These are not absolute rules of law. Particular legislation, by clear language, may exclude them. But the capacity of the legislature to do so in the case of federal offences is necessarily subject to constitutional prescription to the contrary.
In Kingswell[308], by reference to the foregoing presumption, Brennan J concluded that "offences which attract the maximum penalties prescribed by s 235(2)(c) and (d) are offences distinct from s 233B offences and each element of the distinct offences is the subject of the s 80 guarantee". In my opinion, this is the correct analysis of the requirement of s 80 of the Constitution. This Court should accept it. It should give effect to it. To the extent that it does not do so, it permits the imposition of "condign punishment" without the observance of the "imperative requirements of s 80"[309]. It also undermines the Constitution which, in s 80, responds to Blackstone's warning against allowing[310]:

[194]

It can hardly be doubted that conviction of an "offence" which attracts a maximum penalty of life imprisonment presents a question "of the most momentous concern". This Court should not accept an "offence" which, in a trial of a person accused on indictment of offending against a law of the Commonwealth, deprives that person of the verdict of a jury on an issue having such large consequences for that person's liberty[311].
No reason of principle could be advanced for such a provision that stands against s 80 when the latter is construed as a constitutional guarantee. The best that could be suggested was that some accused might occasionally "prefer" to retain an effective right to silence before a jury, divorcing the crime of importation from the matter exacerbating their sentence. However, that is hardly a reason to ignore a constitutional command. There can, in the case of some offences, be disputes concerning the fact and circumstances of past convictions. Sometimes, the element of a past conviction may properly be withheld from a jury until after a verdict is taken on the other ingredients of the offence[312]. But if a previous conviction is truly an essential element of the offence and is disputed, a proffered plea of guilty to the charge, with a contest about the past conviction, could not logically be accepted by the prosecutor in discharge of the count or by the presiding judge as a basis for convicting and sentencing the accused for the offence.
Similarly, any essential element of an offence which concerns conduct on the part of the accused must be proved if it is contested. Other considerations that concern matters personal to the offender may indeed affect sentencing once the offender is properly convicted. Such considerations do not need to be pleaded as elements of the offence or necessarily particularised in the initiating process. But where specified conduct on the part of an accused, if proved, renders that person liable to different, additional and particular punishment, the specification of such conduct constitutes an element of a separate "offence" for the purposes of s 80 of the Constitution. Where that element is contested, it attracts, in a trial on indictment, an obligation to have the jury's verdict upon it[313].
Because such an element appears in the Act, separately provided for in s 235(2)(c), that sub-paragraph cannot be classified, for constitutional purposes, as a mere sentencing provision concerned with nothing more than considerations personal to the offender. It is, instead, a substantive provision defining an essential ingredient of a separate and more serious "offence". Because the Parliament has purported to deny the accused person the right to trial by jury in respect of that element of the offence, and to confine the decision upon that element to the satisfaction of "the Court" (the primary judge), the provisions of ss 233B(1)(d) and 235(2)(c) and (d) of the Act, in so far as they create a separate offence, are incompatible with s 80 of the Constitution. They are therefore invalid and cannot sustain the Information against the applicants.
It is not an answer to this conclusion to say that the applicants did not, in the events that ultimately occurred, contest the quantification of the "prohibited imports" involved in this case, or that such import was heroin, a variety of "narcotic goods". The language and structure of s 235(2) of the Act deprived the applicants, as was obviously intended by the Parliament, of their right to have a jury's verdict upon that element of the "offence" which concerned the "quantity" of the "substance" in question, specifically whether it was a "commercial" or a "trafficable" quantity. The section purported to reserve that question to "the Court", that is, the judge sitting alone proceeding to sentence the accused. This was a bifurcation of the "offence", for constitutional purposes, which was not permitted to the Parliament. It was properly contested in a timely way by the applicants' demurrer. Its resolution was critical to the loss of liberty to which each of the applicants was then exposed by the terms of the Act.
Had the applicants' demurrer been upheld, the offence as provided by the Parliament and as charged in the Information would have been invalidated as unconstitutional. The invalidity would have struck down the Information upon the basis of which the applicants were subsequently convicted and sentenced. The defect so revealed was not one liable to easy repair by amendment or reconstitution of the proceedings. Having properly reserved the point of constitutional law, the applicants are in my view entitled, in this Court, to have the benefit of it. Had it been upheld at trial, the plea of guilty and the acceptance of the quantity and nature of the import would not have arisen. The indictment would have collapsed at the threshold for failure to disclose an "offence" as contemplated by the Constitution. There can be no clearer miscarriage of justice than the erroneous rejection of a constitutional objection to the lawfulness of the offence charged shown to have been invalid. Although these conclusions were not open to Debelle J or to the Court of Criminal Appeal, they are open to this Court. This Court should so find.

[195]

Australia is not alone in facing legislative endeavours to derogate from constitutional guarantees of trial by jury of contested criminal accusations. Legislatures and executive governments elsewhere have sought to intrude upon such guarantees and to deprive accused persons of the promised right to have a jury, and not some other decision-maker, determine contested factual questions affecting criminal liability and punishment.
The other decision-makers involved may be preferred by the state because they are considered more efficient than a jury. Or more reliable in giving effect to policies of condign punishment that may prove unacceptable to some jurors. In the Supreme Court of the United States, Scalia J has recently remarked that judges must sometimes be reminded that they are "part of the State" and "an increasingly bureaucratic part of it, at that"[314]. The constitutional guarantee of trial by jury, on the other hand, reflects a fundamental unwillingness to leave all issues of criminal justice to the state and its officials and a determination to reserve some aspects of criminal proceedings to civil society, as represented by citizen jurors. "It has never been efficient", Scalia J conceded. "[B]ut it has always been free"[315].
Although this observation was made in the context of the jury trial guarantees included by the "founders of the American Republic"[316] in the United States Constitution, the same idea, in my opinion, lies behind the guarantee in s 80 of the Australian Constitution. Many of the original inhabitants of the Australian colonies arrived as convicts as a result of the verdicts of English juries (often in the face of evidence to the contrary) holding that the crime proved was not one attracting capital punishment (then so common under English law) but only transportation to the colonies[317]. Had the English statute books at that time contained bifurcated offences of the kind found in ss 233B(1) and 235(2) of the Act, many of those early Australians would have been hanged. The convict ships to Australia would have been considerably lighter.
The role of the jury in our legal tradition, in mitigating the operation of laws sometimes considered excessive, would have been well known to the founders of the Australian Commonwealth. The last convicts to reach Australia arrived in Fremantle in 1868, precisely the time when the federal movement was stirring. Deriving guidance from United States authorities to assist in the exposition of s 80 of our Constitution involves some dangers, it is true. The guarantees of jury trial for serious crimes under federal or State law in that country rest on the Fifth Amendment's due process clause, the Sixth Amendment's jury trial requirements and the Fourteenth Amendment's commands in respect of State legislation[318]. However, the purposes of these constitutional provisions are, in my view, basically so similar to those of s 80 of the Australian Constitution, governing the trial on indictment of federal offences, as to make it helpful to examine the way in which the Supreme Court of the United States has addressed similar attempts to circumvent trial by jury.
The dangers of undermining the constitutional guarantee are the same in both countries. So are the imputed purposes of those who make the attempt. The Supreme Court of the United States has, with few exceptions[319], insisted on a strict rule. Where a criminal defendant is entitled by the Constitution to jury determination of a criminal accusation, he or she is entitled to the verdict of the jury on every element of the crime constituted by the charge. Every such element must be proved to the jury's satisfaction beyond reasonable doubt[320]. It cannot be left to the determination of "the Court", that is, the judge.
The United States inherited, in virtually all jurisdictions, as did this country, the common law of England. It received the traditions and practices of English criminal procedure, including trial by jury. In sentencing, its judges ordinarily exercise discretions within a range of sentencing options prescribed by the legislature[321]. But these traditions and practices serve to demonstrate the novel and exceptional character of the new legislative schemes. Those schemes purport to remove from the jury's determination the decision upon facts which would expose an accused to a penalty exceeding the maximum that such person could receive if punished solely according to the facts reflected in the jury's verdict and nothing more[322].
In recent years, the United States Supreme Court on several occasions has had to consider the validity of so-called penalty enhancing factors[323]. These factors, legislatively prescribed, purport to empower judges to increase the punishment of an accused, convicted by a jury of a crime, although the jury has never been asked to determine whether the prosecution has proved the facts giving rise to the enhancement of punishment. The offensiveness of such provisions to constitutional guarantees of trial by jury, where such apply, is obvious. Differential offences carrying graduated punishments are, and have long been, features of a criminal justice system derived from England[324]. But bifurcating the "offence" from the penalty enhancing factors represents a new development. Although the decision on such "factors" may be critical to the loss of liberty of the accused, such provisions purport to confine the jury's role narrowly. They assign critical factual determinations to the judge in place of the jury. They thus increase the role of the state at the cost of the tribunal of citizens. If valid, they may also permit factual contests to be decided according to a standard of proof lower than that required to secure a jury's verdict of guilty[325].
In the United States, such endeavours have been struck down as incompatible with the constitutional entitlement to jury determination of guilt of every element of a crime, that is, the offence, with which the accused is charged[326]. In Apprendi v New Jersey[327], the most recent decision of the United States Supreme Court on this subject, Stevens J, writing for the Court, explained:

[202]

In the result, the law in the United States in this matter is clear, although the determination of what may be an "element" of an offence can still present difficulties in particular cases. It is permissible, by legislation, to afford factors that mitigate punishment[332]. It is permissible to provide for enhancement of punishment by reference to the objective fact of prior convictions. But, in so far as other "sentencing enhancement"[333] factors are enacted (such as the commission of the crime for motives of racial hate considered in Apprendi), the existence or absence of such a factor is classified as an element of the crime. The accused who contests it is entitled to have the jury's verdict upon it. No judge may lawfully usurp the jury's function because that function is guaranteed by the Constitution.
It is true that the textual foundation for Australia's constitutional provision is different. But the concepts and history that underlie the United States jurisprudence are equally applicable here. They are relevant because the textual differences are immaterial. The trial in this case was one for a federal offence prosecuted on indictment. Thus the procedural means commonly said to allow the evasion of s 80 of the Constitution were, for once, irrelevant. What is relevant is that, by the Constitution, the trial "of any offence" must be by jury. What is the "offence"? It is the same as the "offense" or "crime" provided in United States law. As in that law, the attempt to separate the elements of the "offence" fails.
This is an unsurprising conclusion when one reflects for a moment on the huge consequences for the liberty[334] of the individual that may depend on the determination of factual disputes both as to the quantity of prohibited imports involved and as to the accused's knowledge of such quantity. The constitutional guarantee of trial by jury, in the trial of a federal crime on indictment, would be a puny thing indeed if the Parliament could so easily circumvent jury determination of matters in contest by classifying some facts as "sentencing enhancement" factors when in truth they constitute the ingredients of a much more serious variety of the "offence".
Section 80 appears in the Constitution. It has been mocked and evaded in Australia for too long. It is time for this Court to give the section a constitutional construction. The analogous decisions on United States constitutional law reinforce this resolve.

[205]

On the view that I take of the constitutional requirement, it seems unlikely that the Parliament, or the prosecution, would have been content to leave the remaining provision of s 235(2), namely par (e), standing as a single punishment for all offences against s 233B(1) of the Act, assuming that severability was available in these circumstances. It would certainly be inappropriate for this Court to treat the applicants' pleas of guilty to the offence stated and particularised in the Information as one to a new composite offence (assuming it to survive) carrying only the maximum penalty provided by s 235(2)(e) of the Act. Instead, the Information being quashed, it should be left to the prosecution authorities to decide what new and possibly different (quite possibly State) offences should be charged in any new Information filed in the applicants' cases.
Because in my view the applicants' demurrer must be upheld, it is also unnecessary for me to decide the separate complaints of the first and second applicants concerning the substitution by the Court of Criminal Appeal of its findings on the facts for those which Debelle J was "prepared" to accept. To some extent, the course of the appellate proceedings to which those applicants object was the result of treating as a mere factual element for sentencing a consideration which the applicants disputed, a decision on which profoundly influenced the loss of liberty to which they were exposed. A re-expression of such offences, separately and in terms apt for the verdict of a jury, trying the matter as s 80 of the Constitution requires, might be expected to place such serious disputes where they should be: in the deliberations and verdict of the jury. By upholding that requirement of s 80 of the Constitution, the kind of complaint which the first and second applicants additionally make would be avoided. The Parliament would be obliged to provide separately for the several "offences". Prosecutors would be required to plead such offences separately in an indictment. To secure a conviction of an aggravated offence, the prosecution would have to prove beyond reasonable doubt the relevant elements of aggravation in each offence, so specified, just as the prosecution routinely does where an accused is charged with several counts, each referring to different offences of graduated seriousness carrying different punishments. Only if the accused pleaded guilty to the offence, so constituted, would he or she confess all such elements. Considerations relevant to the conduct constituting the offence would then be accurately differentiated from considerations merely personal to the offender. The risk of error and confusion inherent in the present interpretation (and a risk of not insignificant injustice) would be obviated. Most importantly, the requirements of s 80 of the Constitution would be obeyed.

[253]

Kingswell was effectively affirmed by this Court (Gibbs CJ, Wilson and Dawson JJ; Brennan and Deane JJ dissenting) in Meaton[382] which was decided in the following year in holding that in proceedings for offences under the Act involving narcotics, the prosecution should lay one charge alleging circumstances of aggravation, the jury then being directed that, in appropriate circumstances, they could find the accused guilty of the charge without any circumstances, or a circumstance, of aggravation.
It is impossible not to feel disquiet about a proposition that might leave it entirely for the legislature to define what is, and what is not to be an offence charged on indictment, and its elements. However, as Gibbs CJ, Wilson and Dawson JJ implied in Kingswell[383], the Australian experience has not been of any oppressive misuse of the statutory power to define offences. I am not persuaded to any different view from the one I expressed in Re Colina[384], particularly with respect to the deliberate selection by the framers of the Constitution of the language to be used in s 80 of the Constitution. That, together with the decision in Kingswell which is a recent decision of this Court, its effective reaffirmation in Meaton[385], and the apparently satisfactory way in which the practice suggested in Kingswell and effectively prescribed in Meaton operates, lead me to reject the first argument of the applicants.
I would also reject the second argument. Quantity is a matter of objective fact based on analysis and weighing. That does not preclude of course an accused from raising mistake of fact or other like defences as to the elements of the offence on trial. Here, as the accused pleaded guilty the primary judge was asked to consider and determine the accuseds' relevant state of mind as to any circumstances of aggravation for the purposes of punishment only. No issue was raised as to any relevant circumstances of aggravation for resolution by a jury, and, it was not necessary for the practice referred to and explained in detail in Meaton to be followed.
Accordingly I would dismiss the applications for special leave.

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (428 paragraphs)

Parties

Legislation Cited (16)

Cases Cited (60)