Kingswell v The Queen [1985] HCA 72 | Case summary

Kingswell v The Queen [1985] HCA 72 | Case summary | Zoe

[26]

On behalf of the applicant it was submitted that the maximum term of imprisonment to which he was liable was that provided by s. 235(2)(e) - two years. The starting point of this submission was that s. 233B(1)(cb) and s. 235(2) together create a number of separate offences, including one created by the combined effect of s. 233B(1)(cb) and s. 235(2)(c)(ii) and another by s. 233B(1)(cb) and s. 235(2)(e). The former of those offences has, as its ingredients, (so it was submitted) not only the matters described in s. 233B(1)(cb), but also the facts that the narcotic goods in relation to which the offence was committed consisted of a quantity of a narcotic substance that was not less than a traffickable quantity and that the accused had been previously convicted of an offence of the kind described in s. 235(2)(c)(ii). Then it is said that if these facts were elements of the offence they should have been charged in the indictment and proved to the satisfaction of the jury. The indictment did not charge that the heroin was of a traffickable quantity or that the applicant had been previously convicted of an offence of the kind to which s. 235(2)(c)(ii) refers. Therefore, it was submitted, the applicant was not charged with the offence created by s. 233B(1)(cb) and s. 235(2)(c)(ii) and was punishable only as provided by s. 235(2)(e). It was further submitted that if, on the proper construction of these provisions of the Customs Act, the issues arising under s. 235(2)(c)(ii) were to be decided by the judge and not by the jury, s. 235 would be invalid, at least in part, as being in contravention of s. 80 of the Constitution, which provides (inter alia) that "the trial on indictment of any offence against any law of the Commonwealth shall be by jury". It was finally contended that if all these submissions were rejected the two matters referred to in s. 235(2)(c)(ii) were nevertheless circumstances of statutory aggravation, and should have been charged in the indictment and found by the jury.

[27]

An examination of the provisions of the Customs Act does not support the argument that the Parliament intended that s. 235(2), read together with each paragraph of s. 233B(1), should have the effect of creating a number of distinct offences whose elements are to be found described partly in s. 233B(1) and partly in s. 235(2). The words of s. 233B(1) and (3) could hardly indicate more plainly that it was intended that each paragraph of s. 233B(1) of itself creates an offence and that a person who is guilty of such an offence is punishable on conviction as provided by s. 235. Consistently with this intention, s. 235(2) speaks of "an offence against sub-section 233B(1)", and provides a range of penalties for any such offence. Sub-section (3) of s. 235 provides for a reduced penalty where (a) the court is satisfied that the narcotic goods in relation to which the offence was committed consist of a quantity of a narcotic substance that is not less than the traffickable quantity applicable to that substance, but is not satisfied as provided in s. 235(2)(c) in relation to those narcotic goods, and (b) the court is also satisfied that the offence was not committed for any purposes related to the sale of, or other commercial dealing in, those narcotic goods. Sub-section (3)(b) describes circumstances which, if they existed, would add to the gravity of the offence and it would give these provisions a strained interpretation to regard the absence of those circumstances as an element of an offence. Clearly enough, sub-s. (3) declares what the punishment is to be, in certain circumstances, for an offence already defined. The same is true of sub-s. (2). The proper conclusion is that the Parliament intended by s. 233B(1)(cb) to create one offence and to provide by s. 235(2) and (3) a range of penalties applicable to that offence in certain circumstances. The range is large. Section 235(2)(e) provides the lowest maximum penalty; par. (c) describes circumstances of aggravation of the offence which could increase the maximum penalty to imprisonment for life and par. (d), which is subject to sub-s. (3), describes other circumstances of aggravation that entail liability to penalties less than the maximum provided by par. (c) but greater than those provided by par. (e).

[31]

an accused person cannot be convicted of any offence with which he is charged unless it has been established by the prosecution that each one of the factual ingredients, which are included in the legal definition of that specific offence, was present in the case that has been brought against him by the prosecution. The second is a procedural principle, that: if there has not been an informed and unequivocal plea of guilty, the question whether any particular factual ingredient of the specific offence charged (or of any lesser offence of which he might be convicted on that indictment) was present in the case against an accused person, falls to be determined by those persons, and by those persons alone, in whom, under English criminal procedure, there is vested the function of finding whether or not the factual ingredients necessary to constitute the offence have been proved to their satisfaction. Who those persons are in any particular case depends upon the mode of trial, i.e. summarily or on indictment; but in the instant case your Lordships are concerned only with a prosecution on indictment, and where such is the mode of trial, those persons are the jury. Lord Diplock [5] went on to say that: It lies within the power of parliament to modify or exclude by statute either or both of these basic principles of English criminal law and to do so either generally or in relation to particular offences: but, as was said by this House in Reg. v. Miller [6] , where it is contended that particular provisions of a statute do have that effect: "Those particular provisions will fall to be construed in the light of general principles of English criminal law so well established that it is the practice of parliamentary draftsmen to leave them unexpressed in criminal statutes, on the confident assumption that a court of law will treat those principles as intended by Parliament to be applicable to the particular offence unless expressly modified or excluded." He then considered the statutory provisions in question and held that the Act of 1967 created a number of specific offences and in that context went on to make the statement upon which particular reliance is placed by the counsel for the applicant in the present case. He said [7] : My Lords, where it is provided by a statute that an accused person's liability to have inflicted upon him a maximum punishment which, if the prosecution are successful in establishing the existence in his case of a particular factual ingredient, is greater than the maximum punishment that could be inflicted on him if the existence of that particular factual ingredient were not established, it seems to me to be plain beyond argument that Parliament has thereby created two distinct offences, whether the statute by which they are created does so by using language which treats them as being different species of a single genus of offence, or by using language which treats them as separate offences unrelated to one another. 1. [1984] A.C. 463. 2. [1984] A.C., at pp. 466-467. 3. [1984] A.C., at p. 468. 4. [1983] 2 A.C. 161, at p. 174. 5. [1984] A.C., at p. 471.

[33]

Sections 233B(1)(cb) and 235(2) do not contravene s. 80 of the Constitution. Section 80 requires that if there is a trial on indictment of any offence against any law of the Commonwealth it shall be by jury. The sections now in question do not provide to the contrary. If there is a trial by jury the ordinary incidents of such a trial will apply; the judge will continue to exercise his traditional functions, and, for the purpose of imposing a sentence within the limits fixed by the law, will form his own view of the facts, provided that that view is not in conflict with the verdict of the jury. Section 80 says nothing as to the manner in which an offence is to be defined. Since an offence against the law of the Commonwealth is a creature of that law, it is the law alone which defines the elements of the offence. The fact that s. 80 has been given an interpretation which deprives it of much substantial effect provides a reason for refusing to import into the section restrictions on the legislative power which it does not express. It has been held that s. 80 does not mean that the trial of all serious offences shall be by jury; the section applies if there is a trial on indictment, but leaves it to the Parliament to determine whether any particular offence shall be tried on indictment or summarily. This result has been criticized, but the Court has consistently refused to reopen the question and the construction of the section should be regarded as settled: R. v. Archdall and Roskruge; Ex parte Carrigan and Brown [9] ; R. v. Federal Court of Bankruptcy; Ex parte Lowenstein [10] ; Sachter v. Attorney-General (Cth) [11] ; Zarb v. Kennedy [12] ; Li Chia Hsing v. Rankin [13] . To understand s. 80 as requiring the Parliament to include in the definition of any offence any factual ingredient which would have the effect of increasing the maximum punishment to which the offender would be liable would serve no useful constitutional purpose; indeed the Parliament might feel obliged to provide that some offences, which would otherwise be made indictable, should be triable summarily.

[39]

In Reg. v. De Simoni [19] , a case under the Criminal Code W.A. before its amendment in 1982, a majority of this Court held that where an indictment does not refer to a particular circumstance of aggravation, a judge in imposing sentence may have regard to that circumstance only if it would not render the accused liable to a greater punishment pursuant to the Criminal Code. It was pointed out that "at common law the principle that circumstances of aggravation not alleged in the indictment could not be relied upon for purposes of sentence if those circumstances could have been made the subject of a distinct charge appears to have been recognized as early as the eighteenth century" [20] . Of course s. 564 of the Criminal Code Q. and, before its amendment, s. 582 of the Criminal Code W.A., read in conjunction with the definition of circumstance of aggravation in s. 1, stated a wider rule, since the definition extends to circumstances which would render the offender liable to a greater punishment without necessarily exposing him to conviction for a distinct and more serious offence. Reference was made in Reg. v. De Simoni to R. v. Bright [21] , where the judgment of the Court of Criminal Appeal appears to support a rule similar to that in force under the Criminal Codes of Queensland and (formerly) Western Australia. There Darling J. [22] , who delivered the judgment of the Court, said that the judge "must not attribute to the prisoner that he is guilty of an offence with which he has not been charged - nor must he assume that the prisoner is guilty of some statutory aggravation of the offence which might, and should, have been charged in the indictment if it had been intended that the prisoner was to be dealt with on the footing that he had been guilty of that statutory aggravation". The circumstances of aggravation referred to in the regulations in question in that case could not have been made the subject of a distinct charge, but the regulations expressly stated that the increased penalty which those circumstances attracted could be imposed only if the circumstances were found by the jury. It may therefore be thought that the language of Darling J. went beyond the necessity of the particular case. However, ever since that time textwriters have regarded the statement by Darling J. as correctly stating the practice to be followed. All the editions of Halsbury's Laws of England since 1916 have stated the rule in those terms: see 2nd ed., vol. 9, p. 181, note (q); 3rd ed., vol. 10, p. 435, note (k); 4th ed., vol. 11, par. 330, note (2). In Archbold's Criminal Pleading Evidence & Practice, 41st ed. (1982), par. 4-473, it is said:

[67]

If the finding of facts for the purposes of s. 235 is divorced from the returning of a verdict on an indictment for a s. 233B offence, the sentencing judge has no authority to invite the jury to find facts for the purposes of s. 235. In a criminal trial, the indictment must charge the elements of an offence, but if it charges more, the additional matter is mere surplusage: R. v. Horne [54] ; R. v. Jones [55] . When an accused pleads not guilty to an indictment, the whole of the issues on which the accused's guilt of the offence charged depends are joined between the Crown and the accused and those are the issues to be tried by the jury: Chitty's Criminal Law, 2nd ed. (1826), vol. 1, pp. 470-471, 532. The jury's function is to try, and to try only, the issues joined between the Crown and an accused when the accused pleads to the indictment. And thus, if an accused pleads not guilty to an indictment charging a s. 233B offence, a jury must try the whole of the issues on which the accused's guilt of that offence depends, including the mental elements of the offence, but no other issue. A jury which is charged to try the issues on an indictment is not at liberty to find facts which are not pertinent to those issues. It has long been established that, if a jury returns a special verdict, its verdict must be confined to the issues which it is sworn to try (Dowman's Case [56] ; Priddle and Napper's Case [57] ), else a finding on any other issue is per non juratos and void: Foster v. Jackson [58] . Therefore a jury charged to try issues on an indictment framed under s. 233B is not empowered to find the facts specified by s. 235. Once the jury's verdict on the indictment is returned and accepted, the jury has no further function to perform. If the jury, after returning its verdict on such an indictment, could be required to try an issue of fact arising under s. 235, they would be entering on a new inquiry. The parties would be entitled to challenge any member of the jury anew, and the jury would have to be resworn to try the further issue. Section 235 gives no countenance to that procedure. That section requires the sentencing judge alone to find the facts on which an offender's liability to a greater maximum penalty ultimately depends, though the offence for which the offender is convicted is prosecuted on indictment. Liability to a particular maximum penalty thus depends in part upon the verdict of a jury and in part upon findings of fact by a judge. The question is whether s. 80 of the Constitution invalidates a law of the Commonwealth which makes liability to a greater maximum penalty for an offence prosecuted on indictment depend upon findings of fact made by a judge.

[73]

If a legislature's exercise of its powers is untrammelled by s. 80 of the Constitution, it is free to confer wider powers on the sentencing judge. It is free to create an offence and prescribe different maximum penalties depending not on the jury's verdict but on the judge's finding that a specified fact or circumstance exists. Given the power to do so, there may be yet a question whether the specified fact or circumstance is an element in a distinct offence attracting the greater penalty or whether there is but one offence for which different maximum penalties are prescribed: see, e.g., Rowe v. Butcher [5] ; De Romanis v. Sibraa [6] ; Ross v. The Queen [7] . If the legislature makes the specified fact or circumstance an element in an offence, the fact or circumstance must be charged in the indictment and, upon a plea of not guilty, its existence is determined by the jury's verdict; but if the fact or circumstance is not an element of an offence, its existence is a matter for the sentencing judge. If the legislature is unfettered by s. 80 of the Constitution, the question whether the fact or circumstance is an element of an offence is resolved simply by construing the statute. A familiar example is the prescribing of a greater penalty for an offence committed after a previous conviction. Ordinarily the previous conviction is treated as an element of an offence. The indictment must charge the previous conviction as well as the subsequent offence and the accused must be arraigned accordingly (Metcalfe [8] ) and, if the accused pleads not guilty, both issues must be found by the jury against the accused before he is liable to the greater penalty. However, in order to secure a fair and impartial trial in such cases, it was enacted that the jury should not be charged to inquire concerning the former offence until after they found the accused guilty of the later offence: 6 & 7 Wm. IV c. 111; see now Crimes Act 1900 N.S.W., s. 394; Faulkner v. The King [9] . After finding the accused guilty of the later offence, the jury were charged to inquire into the previous conviction without being resworn or being open to fresh challenge (Reg. v. Key [10] ; Reg. v. Shuttleworth [11] ) and that is the present practice: Archbold, Criminal Pleading Evidence & Practice, 41st ed. (1982), p. 229, par.4-50. If the previous conviction is not an element of an offence, it is not charged in the indictment nor is it submitted to the jury as an issue to be tried.

[76]

[The judge] must not attribute to the prisoner that he is guilty of an offence with which he has not been charged - nor must he assume that the prisoner is guilty of some statutory aggravation of the offence which might, and should, have been charged in the indictment if it had been intended that the prisoner was to be dealt with on the footing that he had been guilty of that statutory aggravation. The rule exemplifies an underlying principle, namely, that an offender's liability to punishment or his liability to a particular maximum penalty depends on the facts determined by his plea of guilty or by the verdict of a jury. The principle underlies a provision which Sir Samuel Griffith included in his draft Criminal Code. As enacted, the Criminal Codes of Queensland and of Western Australia contained - and the Queensland Code continues to contain - a provision that any circumstance of aggravation that is intended to be relied upon should be charged in the indictment (s. 564 Q.; s. 582 W.A.), a circumstance of aggravation being defined to mean and include "any circumstance by reason whereof an offender is liable to a greater punishment than that to which he would be liable if the offence were committed without the existence of that circumstance" (s. 1). Whether or not a circumstance of aggravation when added to the other elements of a particular offence constitutes a different offence for the purposes (or some purpose) of the Code - a question discussed in Ross v. The Queen [16] - the Code ensured that, in the absence of a plea of guilty, the extent of an offender's liability to punishment should depend on the jury's verdict. In Reg. v. De Simoni [17] differing views were expressed as to whether the omission of a circumstance of aggravation from the indictment affects only the limits of the sentencing power or whether it affects also the exercise of the sentencing discretion [18] , the majority holding the wider operation of the provision to be its true operation. On any view, when a circumstance of aggravation is omitted from an indictment under the Code, the offender is not liable to a greater maximum penalty than that to which he would be liable if the offence had been committed without the existence of that circumstance. 1. (1869) L.R. 1 C.C.R. 182. 2. (1872) L.R. 1 C.C.R. 363. 3. (1921) 21 S.R. (N.S.W.) 240, at p. 245. 4. [1916] 2 K.B. 441, at pp. 444-445. 5. (1979) 141 C.L.R. 432. 6. (1981) 147 C.L.R. 383. 7. (1981) 147 C.L.R., at pp. 392, 396, 405.

[79]

The trial on indictment of any offence against any law of the Commonwealth shall be by jury, and every such trial shall be held in the State where the offence was committed, and if the offence was not committed within any State the trial shall be held at such place or places as the Parliament prescribes. An "offence against any law of the Commonwealth" is, of course, an indictable criminal offence created by or under a law made by the Parliament. Section 80 is expressed as a constitutional guarantee of trial by jury and the issues to be so tried must be elements of what constitutes a criminal offence. But the term "offence" is not left to be defined by Parliament; in s. 80 it has the meaning which it bears in the criminal law. In Reg. v. Courtie [19] , Lord Diplock said: My Lords, where it is provided by a statute that an accused person's liability to have inflicted upon him a maximum punishment which, if the prosecution are successful in establishing the existence in his case of a particular factual ingredient, is greater than the maximum punishment that could be inflicted on him if the existence of that particular factual ingredient were not established, it seems to me to be plain beyond argument that Parliament has thereby created two distinct offences, whether the statute by which they are created does so by using language which treats them as being different species of a single genus of offence, or by using language which treats them as separate offences unrelated to one another. In my respectful opinion, Lord Diplock is manifestly right. The passage cited conforms to the principle that an offender's liability to punishment depends on the facts which are determined by a plea or verdict of guilty. What is a criminal offence? A criminal offence can be identified only in terms of its factual ingredients, or elements, and the criminal penalty which the combination of elements attracts. Littledale J., speaking of criminal offences in Mann v. Owen [20] , said: "The proper definition of the word "crime" is an offence for which the law awards punishment." That view accords with Sir James Fitzjames Stephen's definition of crime as "an act or omission in respect of which legal punishment may be inflicted on the person who is in default either by acting or omitting to act": History of the Criminal Law of England (1883), vol. I, p. 1; see also Sir Samuel Griffith's Code definition of offence: "An act or omission which renders the person doing the act or making the omission liable to punishment" (Criminal Code Q., s. 2) and the congruent views of Lord Esher M.R. in Rayson v. South London Tramways Co. [21] , and of Bramwell L.J. in Mellor v. Denham [22] . If a particular combination of elements attracting a particular penalty is one offence, a different combination of elements attracting a different penalty is another offence. Therefore a combination of the factual elements in s. 233B(1) and s. 235(2)(c) and (d) which renders an offender liable to a maximum penalty prescribed by s. 235(2)(c) or (d) is an offence distinct from an offence consisting in factual elements derived from s. 233B(1) which render an offender liable to the maximum penalty prescribed by s. 235(2)(e) but not to any greater penalty. 1. [1984] A.C. 463, at p. 471. 2. (1829) 9 B. & C. 596, at p. 602 [109 E.R. 222, at p. 224]. 3. [1893] 2 Q.B. 304., at p. 307. 4. (1880) 5 Q.B.D. 467, at p. 469.

[81]

As the facts prescribed by s. 235(2)(c) and (d) are not intended by Parliament to be elements of offences distinct from s. 233B offences, Parliament does not intend them to be treated as elements of an offence at all. If the facts prescribed by s. 235(2)(c) and (d) were to be treated as elements of an offence, each external element would be accompanied by a mental element, just as each external element in a s. 233B offence is accompanied by a mental element: He Kaw Teh v. The Queen [23] . However, as the Parliament did not intend the quantities of narcotic substances in the narcotic goods to which s. 233B offences relate to be elements of an offence, it may be wrong to presume that Parliament intended an offender's liability to greater maximum penalties to depend on his knowledge of, or the absence of any honest and reasonable mistake about, the quantity of narcotic substance in the goods imported or possessed. It would be a curious result indeed to find that a mental element applies to each of the external elements prescribed in s. 233B but not to any fact which attracts maximum penalties greater than the basic penalty, even when the fact attracts the greatest maximum penalty, imprisonment for life. When a statute conforms to s. 80, it is clear that all external facts the existence of which attracts a criminal penalty or a particular level of maximum penalty are elements of an offence, and therefore a presumption arises that a mental element must accompany each of those facts. When a statute does not conform to s. 80, the mental state of the offender with respect to the facts which attract a greater penalty may be immaterial. It is not necessary now to resolve the question. It is sufficient to note that the guarantee given by s. 80 with respect to the trial of each element of an "offence" (in the sense which I attribute to the term in s. 80) ensures a consistent application of the presumption with respect to mental states in relation to all external facts the existence of which attracts a particular level of maximum penalty.

[86]

If this conclusion were to prevail, it would redound to the advantage of an applicant who is utterly without merit. The applicant was involved in trafficking in heroin after a previous conviction for possessing a prohibited import. The Court of Criminal Appeal, allowing a Crown appeal against sentence and dismissing the applicant's appeal, imposed a sentence of eighteen years' imprisonment and specified a minimum term of twelve years. Although the Constitution constrains me to allow the applicant's appeal, I should not wish to cast the slightest doubt on the correctness on the merits of the sentence which the Court of Criminal Appeal imposed. The suffering of heroin addicts and the malignant avarice of those who feed upon that suffering make the illegal importing of large quantities of heroin a crime deserving of rigorous punishment. But the Constitution must prevail. Trial by jury is guaranteed by s. 80 of the Constitution when an offence against a law of the Commonwealth is tried on indictment. The offence with which the applicant was charged and the offence for which he was convicted was an offence constituted by elements drawn from s. 233B(1)(cb) alone. He cannot be sentenced as for another offence - an offence constituted in part by s. 233B elements and in part by elements drawn from s. 235(2)(c) - for which he was not convicted on the jury's verdict. Had he been charged on indictment with the offence for which he was sentenced, the law which created that offence would have precluded its trial by jury. By providing that the issues derived from s. 235(2)(c) are to be tried by a judge, that paragraph denies the guarantee given by s. 80 of the Constitution. In my opinion, the Parliament's attempt to provide condign punishment for persons involved in the illegal importing of narcotic goods or in the possession of illegally imported narcotic goods has miscarried for failure to observe the imperative requirements of s. 80. Parliament ignored Blackstone's warning in his Commentaries (1769), Book IV, p. 344:

[92]

On a trial by jury, the burden of sentencing under the punishment provision of Div. 2, including the provisions of s. 235, is imposed upon the judge. Plainly enough, the reference to "the Court" in the phrase "such period [of imprisonment] as the Court thinks appropriate" in s. 235(2)(c) is a reference to the trial judge. There is nothing in the provisions or context of s. 235 which warrants the conclusion that the legislative intent was that the words "the Court" should be given a different meaning where they occur in other parts of s. 235. To the contrary and notwithstanding considerations of constitutional validity (see below), it is plain that the Parliament intended that, once guilt of the ingredients of an offence specified in one of the other provisions of the Act to which s. 235 relates had been established, the proceedings should move to the sentencing or punishment stage in which the remaining functions would be discharged by the judge alone. That being so, it was, as a matter of statutory construction, for the learned trial judge to determine whether, in the light of the jury's verdict, he was satisfied of the matters specified in s. 235(2)(c)(ii) with respect to the offence against s. 233B(1)(cb) of which the applicant had been found guilty. This is what his Honour did. While the indictment on which the applicant was arraigned and convicted did not allege that a "traffickable" quantity of heroin was involved as postulated by s. 235(2)(c)(ii) or that the applicant had, on a previous occasion, been convicted of an offence of the kind there described, his Honour acted on the basis that the facts of the crime of which the jury had convicted the applicant involved such a traffickable quantity and that, as was common ground, the applicant had such a prior conviction. His Honour accordingly proceeded to sentence the applicant on the basis that the maximum sentence was that prescribed by s. 235(2)(c), namely, imprisonment for life. In these circumstances, the question arises whether the combined operation of the provisions of ss. 233B(1)(cb) and 235(2)(c)(ii), pursuant to which the applicant was convicted and sentenced, is consistent with the provision of s. 80 of the Constitution that the "trial on indictment of any offence against any law of the Commonwealth shall be by jury".

[96]

Regardless of whether one traces the common law institution of trial by jury to Roman, Saxon, Frankish or Norman origins, the underlying notion of judgment by one's equals under the law was traditionally seen as established in English criminal law, for those who had the power to be heard, at least by 1215 when the Charter of that year provided, among other things, that no man should be arrested, imprisoned, banished or deprived of life otherwise than by the lawful judgment of his equals ("per legale judicium parium suorum") or by the law of the land. Modern scholarship would indicate that much of the traditional identification of trial by jury with Magna Carta was erroneous. It is, however, clear enough that the right to trial by jury in criminal matters was, by the fourteenth century, seen in England as an "ancient" right. In the centuries that followed, there was consistent reiteration, by whose who developed, pronounced, recorded and systematized the common law of England, of the fundamental importance of trial by jury to the liberty of the subject under the rule of law: see, e.g., Co. Inst., Pt II, 45ff.; Black. Comm. 1st ed. (1966 rep.), Book III, pp. 379-381, Book IV, pp. 342-344, and, generally, Singer v. United States [4] ; Mr. Justice Evatt, The Jury System in Australia, Australian Law Journal, vol. 10 (1936), Supp., pp. 66-67, 72. When British settlements were established in other parts of the world, trial by jury in criminal matters was claimed as a "birthright and inheritance" under the common law and as an institution to be established and safeguarded to the extent that local circumstances would permit: cf. the passage from Story's Commentaries on the Constitution quoted in Patton v. United States [5] ; Kent's Commentaries, Lecture 24, pp. 1-6; Rutland, The Birth of the Bill of Rights, 1776-1791 (1983), p. 19; United States; Ex rel. Toth v. Quarles [6] , and, as to Australia, J. M. Bennett, The Establishment of Jury Trial in New South Wales, Sydney Law Review, vol. 3 (1961), p. 463.

[103]

That is not, of course, to close one's eyes to reality and assert that the traditional criminal trial by jury is without any identifiable weaknesses. "It is a cumbersome process, not only imposing great cost in time and money on both the State and the jurors themselves, but also contributing to delay in the machinery of justice": per Harlan J., dissenting, Duncan v. Louisiana [9] . The safeguards surrounding trial by jury have never represented a guarantee that juries, unlike other human agencies of the community, will never get it wrong. Unavoidably, there will be the rare case in which a properly instructed jury's verdict of guilty can be demonstrated to constitute a miscarriage of justice warranting the interference of an appellate court. Perhaps more importantly, contemporary circumstances have raised new questions about, and placed additional strains upon, the institution of the criminal trial by jury. There is, e.g., obvious force in the argument that a jury of ordinary men and women selected at random from the community lacks the knowledge and experience necessary to sit in responsible judgment upon the type of scientific dispute between specialists that may arise in the course of a criminal trial or upon the detailed technical questions which may be involved in the trial of white collar and computer crime. Indeed, under the existing practice whereby a jury is deprived even of the transcript of expert evidence, it would seem inevitable that the members of a jury will sometimes be faced with an effective choice between determining complicated technical questions by reference to the unlikely touchstone of the surface plausibility of disputing experts or opposing counsel and abrogating their own function in favour of any views which they might attribute to the trial judge. In that regard, there is much to be said in favour of the introduction of a system of "court witnesses" or expert "assessors" to advise or guide a lay jury in such areas. Again, the pervasiveness of the influence of organs of the media and their concern, for whatever motive, to stimulate and satisfy the public interest in the news which they purvey has inevitably led to problems involving the extent to which freedom of public discussion should or effectively can be restricted to protect and preserve the impartiality and public anonymity of the members of criminal juries and the confidentiality of their deliberative processes. Notwithstanding such actual or potential weaknesses, however, the institution of trial by jury remains as important a safeguard of the liberties of free men and women as it ever was and, if it be effective, the constitutional guarantee of jury trial will remain as much a fundamental law of the Constitution as it was at the time when the Constitution was adopted by the people of the Australian colonies and at the time when the nation's first Chief Justice wrote his judgment in R. v. Snow [10] . Those who would follow the then Mr. Higgins (Record of Convention Debates, Third Session (1898), p. 351) and describe such a conclusion as "mere claptrap" either disregard or unduly discount the true contemporary significance and utility of trial by jury in serious criminal cases under the law of this country.

[105]

The traditional common law procedure for bringing offenders to justice on criminal charges was by indictment before a jury: Chitty's Criminal Law, 2nd ed. (1826), vol. I, p. 162. In England, "the most usual and constitutional course" was for the indictment itself to be presented by a grand jury: see Broom's Common Law, 6th ed. (1880), p. 961; Reg. v. Slator [11] , and Quick and Garran, Annotated Constitution of the Australian Commonwealth (1901), p. 808. Strictly speaking, the written accusation which was preferred to the grand jury constituted an "indictment" when it was attested and endorsed as a "true bill": the indictment was then said to be "found" and the accused stood awaiting arraignment. In this traditional sense, the "indictment" represented the first of the two-stage process of presentment and trial in criminal matters which can be traced back to the Assize of Clarendon and beyond: see, e.g., Professor Helmholz, The Early History of the Grand Jury and the Canon Law, University of Chicago Law Review, vol. 50 (1983), p. 613. The fact that, at least by the fourteenth century, the ultimate trial would ordinarily be by a jury was not decisive of the nature of the indictment itself. It merely reflected the development in England, after the Fourth Lateran Council's prohibition on participation by the clergy in trial by ordeal (1215), of trial by jury as the uniform common law method of determining criminal guilt. Conversely, trial by jury was historically not dependent upon indictment by a grand jury: it could be initiated by information issued in the name of the Sovereign by the Attorney-General acting ex officio or by the Master of the Crown Office acting at the suit of a private litigant: see Barton v. The Queen [12] . In so far as the nature of an indictment is concerned, the only definitively significant connexion with a jury was the historical connexion (in England and, subsequently, in the United States) between the indictment and the grand jury which found and attested it as a "true bill".

[109]

Section 5 of the Australian Courts Act established an "Information, in the name of His Majesty's Attorney General, or other Officer duly appointed for such Purpose by the Governor of New South Wales and Van Diemen's Land respectively", in explicit contrast to "proceeding by Juries", as the standard method of prosecuting "all Crimes, Misdemeanours, and Offences, cognizable in the [Supreme] Courts" of the then two Australian Colonies. That was some four years before a limited right to trial by a civilian jury in criminal matters was introduced (by 2 Will. IV, No. 3 (N.S.W.)) in the Supreme Court of New South Wales (cf., as to juries in the local Courts of Sessions, Bennett, loc. cit., pp. 470-471). The Attorney-General's information, issued pursuant to s. 5 of the Act of 1828, was and is commonly known in New South Wales as an "indictment". In due course, it became customary for committal proceedings to be held by a justice (now a magistrate) pursuant to a summons issued on information laid under successive Justices Acts before the Attorney-General decided whether he should issue an information under s. 5 of the Australian Courts Act: cf. Reg. v. McKaye [15] ; Commonwealth Life Assurance Society Ltd. v. Smith [16] . The Attorney-General's information (or "indictment") under the Act of 1828 has, however, never been dependent upon the existence of a prior committal order and there has never been any legal barrier preventing the Attorney-General or other authorized law officer from filing an information ex officio without committal proceedings having been completed or even instituted: see, generally, Barton v. The Queen. In this context, it is apparent that the reference to trial on indictment in s. 80 of the Constitution could not properly be construed as being restricted to a trial consequent upon indictment by a grand jury or a finding of a prima facie case and committal by a justice or magistrate. It would also seem apparent that the reference to on indictment in s. 80 does not, of itself, carry the implication that the ultimate determination of guilt must be by a jury. In that regard, the Attorney-General's or other law officer's indictment, information or presentment in this country, like the former indictment by a grand jury in England, are, of their nature, directed to create the situation where an accused stands charged with a criminal offence at the suit of the State. They did not and do not, of themselves, control the method by which guilt or innocence is to be determined.

[111]

One can find in judgments, legislation and legal writings many instances of a distinction being drawn between indictable and summary offences and between trial on indictment and summary proceedings: see, e.g., per Dixon J., Munday v. Gill [17] . It would seem at least likely that the framers of the Constitution were conscious of that distinction when confining s. 80 to trials "on indictment". As will be seen, it is partly in that distinction that one must ultimately find the key to the reference to "trial on indictment" in s. 80. That distinction should not, however, be converted into some perceived but undefined procedural dichotomy to serve as the basis of a comprehensive definition of "trial on indictment" as meaning any procedure for determination of guilt or innocence of a criminal offence otherwise than by way of summary proceedings. Such a loose negative definition would be essentially unsatisfactory both in that it would be uninformative about the positive elements which constitute a trial on indictment and in that it would merely raise the question of what is meant by "summary proceedings". Moreover, it would conceal circuity or obvious error or lead to tautology if one or other of a number of arguable meanings be attributed to "summary proceedings". Circuity, if one interprets summary proceedings as meaning a form of trial other than on an indictment or some accusation in the nature of an indictment: cf. Boulter v. Kent Justices [18] . Obvious error, if one defines summary proceedings by reference to the absence of some preliminary committal proceedings or quasi-judicial inquiry since, as has been seen, a trial on an ex officio indictment can, under accepted usage in this country, plainly be a "trial on indictment". Tautology in s. 80, if one defines "summary proceedings" as meaning the absence of a jury (cf. e.g., Dowson v. McGrath [19] ); Blackstone's Commentaries, Book IV, p. 280; Paley, Law and Practice of Summary Convictions, 1st ed. (1814), pp. xxii-xxiii, xxvii, 1) with the result that trial on indictment in s. 80 would mean "trial by jury" and the guarantee of the section would be reduced to the inane proposition that trial by jury "shall be by jury". It is true that these obvious pitfalls of circuity, error and tautology are largely avoided if one attributes to "summary proceedings" in such a negative definition of "trial on indictment" yet another meaning which the phrase sometimes bears, namely, any statutory procedure for the immediate determination of guilt or innocence by justices or magistrates. There are grounds for questioning the accuracy of such a use of the phrase "summary proceedings" as the basis of a negative definition of "trial on indictment" in that one can point to legislative provisions requiring offences to be dealt with "summarily" by a judge (see, e.g., R. v. Federal Court of Bankruptcy; Ex parte Lowenstein [20] ) and in that there is nothing in the nature of an indictment which would be offended by a legislative provision reinstating the ancient trial on indictment by local justices and a petit jury: see, e.g., Paley, op. cit., pp. xviii-xxiii; Frankfurter and Corcoran, Petty Federal Offences and the Constitutional Guaranty of Trial by Jury, Harvard Law Review, vol. 39 (1926), p. 923. Be that as it may however, the effect of reading "on indictment" in s. 80 as meaning "otherwise than by way of summary proceeding" in that sense would be that the "fundamental law" of s. 80 was transformed into a potentially mischievous mockery. I shall briefly explain why that is so.

[117]

Subject to one qualification, the first of those additional elements of a trial on indictment identified by Dixon and Evatt JJ. in Lowenstein [24] would seem clear enough. The trial must be initiated by some step taken by the Crown or by some instrumentality or agent of government such as a magistrate or justice on a committal hearing or a coronial inquest, a director of prosecutions or a law enforcement officer. The qualification is that it is unnecessary to consider here whether this first additional element would be more accurately and more simply stated as being that the trial be instituted by a charge brought by the State or by some agency or person acting on behalf of or with the authority of the State with the result that the relevant class would include any individual exercising a statutory right to prosecute another citizen for an offence against the State. The second additional element - the liability of the offender to a term of imprisonment - is not so clear. It is true that, by 1900, there was a well-established practice that some less serious offences, often described as "summary" as distinct from "indictable" offences, should be punishable pursuant to special statutory provisions providing for summary (in the sense of immediate) trial by justices or magistrates. It would also seem plain enough that the framers of the Constitution used the words "on indictment" in s. 80 to ensure that the guarantee of trial by jury was not applicable to the type or class of less serious offences which were generally seen, in the last decade of the nineteenth century, as appropriate to be dealt with by justices or magistrates. The borderline between such less serious or summary offences and other more serious or indictable felonies or misdemeanours had not, however, customarily been drawn on the basis suggested by their Honours, namely, that the less serious or "non-indictable" offences were restricted to those which were not punishable by any term of imprisonment at all.

[118]

An examination of the legislation in force in England and the Australian Colonies at the time of Federation discloses that, subject to some exceptions (cf., e.g., Minor Offences Procedure Act 1869 S.A., s. 3, dealing with the consent jurisdiction of magistrates), the less serious offences punishable summarily before justices or magistrates were restricted to offences for which the maximum punishment was, when they were so tried, a term of imprisonment of not more than one year. This general boundary between the less serious offences which were appropriate to be dealt with summarily by justices or magistrates and the more serious offences which were not appropriate to be so dealt with was subsequently accepted in the first Commonwealth Crimes Act which was enacted in 1914 and which provided (s. 12(3)) that a Court of Summary Jurisdiction might not impose a longer period of imprisonment than one year in respect of any one offence against that Act (but cf. Acts Interpretation Act 1904 Cth, s. 4: not more than six months). The distinction between the less serious - or, to use a common term which was adopted by Sir Samuel Griffith in the Queensland Criminal Code (see his letter dated 29 October 1897 accompanying the draft Code and s. 3 of the Code, in Wilson and Graham (eds.), The Criminal Code of Queensland (1901), pp. xi, 31), the "simple" - offences appropriate to be dealt with summarily by justices or magistrates and the more serious offences which were not appropriate to be so dealt with was well established in 1901: see, e.g., Black. Comm., Book IV, pp. 279-280. Indeed, it is possible to point to many instances of nineteenth century legislation requiring justices or magistrates to determine whether a particular charge was "fit" to "be disposed of summarily": see, e.g., Hall v. Braybrook [25] . Obviously, there are elements of subjective judgment and discretion involved in determining whether a particular alleged offence falls into the less serious category which is capable of being appropriately dealt with by justices exercising summary jurisdiction. Those elements of subjective judgment and discretion did not and do not, however, preclude that question from being susceptible of judicial determination.

[119]

In my respectful view, Dixon and Evatt JJ. were correct in their conclusion that there lies at the heart of the concept of trial on indictment in s. 80 the notion of the trial of a "serious offence". I am, however, unable to accept their Honours' view that the criterion of what constitutes, for relevant purposes, a serious offence is that it be punishable by any term of imprisonment at all. In the light of the foregoing, it appears to me that the correct criterion of what constitutes a serious offence is that it not be one which can appropriately be dealt with summarily by justices or magistrates. Within the limits of those offences which are capable of being appropriately so dealt with, the question whether a particular offence should, as a matter of legislative policy, actually be dealt with summarily by justices or magistrates is a matter for the Parliament. The question arises whether the identification of the limits beyond which a charge cannot properly be seen as fit to be dealt with as a summary offence is a matter of legislative policy in the discretion of the Parliament or is a matter for judicial determination by the courts. If it is a matter for the courts, the provisions of s. 80 will extend to ensure that a person accused by the Commonwealth or an agency of the Commonwealth of what is, in the relevant sense, properly to be regarded as a "serious offence" against a law of the Commonwealth enjoys an effective constitutional right of trial by jury. If it is a matter for the Parliament, s. 80 will afford such a person no effective protection at all. It has already been seen that the question whether a particular offence is, for the purposes of s. 80, a "serious" one in the relevant sense is susceptible of judicial determination. Plainly, when two constructions are available, the construction which will give the guarantee of trial by jury in s. 80 "a real operative effect" is to be preferred to that which would make that guarantee illusory in the sense that it would represent no effective restraint upon Commonwealth legislative power: cf., e.g., Lowenstein [26] . That being so, it follows as a matter of principle that the question whether a particular offence is, for the purposes of s. 80, a serious one in the sense that it is not capable of appropriately being dealt with summarily by justices or magistrates is, ultimately, a question of law to be determined by the courts. That conclusion accords with the United States decisions to the effect that particular Constitutional provisions relating to juries confer a right to jury trial in the case of offences other than "petty offences" and that the boundary of what constitute "petty offences" is a matter for judicial determination: see, e.g., Callan v. Wilson [27] ; District of Columbia v. Clawans [28] ; Baldwin v. New York [29] . It becomes necessary to consider whether that conclusion is precluded by the previous cases in this Court involving the provisions of s. 80 of the Constitution.

[124]

In Lowenstein itself, the s. 80 point was not raised in argument by Mr. Barwick (as he then was) who appeared for the applicant. Latham C.J. [36] referred to the definitions of "indictment" in Byrne's Law Dictionary (1923) and Stroud's Judicial Dictionary, 2nd ed. (1903) as disclosing the meaning of "indictment". The only definition of "indictment" in Byrne, however, confined an indictment to an accusation "presented on oath by a grand jury". The second edition (1903) of Stroud also defined "indictment" by reference to the grand jury (or an inquest) and seemingly favoured the view that " "Indictment" does not include an "Information" ". Such definitions of "indictment", while instructive about the historical meaning of the term in England, are, as has been seen, inappropriate to define the sense in which the word is used in s. 80. Indeed, acceptance of them as applicable to s. 80 would have the consequence that "trial on indictment" was used in that section in a sense which would effectively exclude almost all criminal trials in the Australian colonies including trials pursuant to an Attorney-General's information under the Australian Courts Act. Latham C.J. also made an indirect reference to some pre-Federation views expressed by Isaacs J., as a delegate to the 1898 Convention, to the effect that the Parliament could provide that murder was not an indictable offence and "therefore the right to try a person accused of murder would not necessarily be by jury". In the course of the Convention debates, Isaacs J. also expressed the unlikely views that trial on indictment in s. 80 would not even include trial "on presentment" and that, even where the section applied, it could be satisfied by trial by a jury of two: Record of Convention Debates, Third Session (1898), pp. 352, 1895. Even if regard could properly be had to such views expressed by a delegate in the course of debate however, it could scarcely be assumed that they were shared by the majority of the Convention which adopted the section. After referring to Archdall, Latham C.J. concluded that s. 80 did not prevent the Commonwealth Parliament "from determining whether any particular offence should be prosecuted on indictment or summarily" and "that s. 80 relates only to trials which are in fact trials on indictment". Plainly, his Honour's views about s. 80 were contrary to those of Dixon and Evatt JJ. Rich J. [37] confined his judgment to the statement that he agreed "that the questions submitted by the special case should be answered in the manner stated by the Chief Justice". McTiernan J. [38] pointed out that the s. 80 question had not been argued and added that he did not propose to say "any more" on that question than that he considered that he was "bound by the previous decisions of the court". The only other member of the Court, Starke J., restricted his judgment to dealing with matters which had been raised in argument and made no reference at all to s. 80 of the Constitution. It follows that Lowenstein cannot, properly understood, be seen as providing an authoritative general exposition of the overall operation of s. 80 of the Constitution. A fortiori, the actual decision in that case cannot properly be seen as inconsistent with my qualified acceptance of the views about s. 80 expressed by Dixon and Evatt JJ. in their joint dissenting judgment since the maximum punishment under the relevant provisions of the Bankruptcy Act 1924 Cth was, when the charge was tried "summarily", six months' imprisonment (s. 217(2)). The same comments apply with respect to the subsequent acceptance by the Court in Sachter v. Attorney-General (Cth) [39] of the actual decision in Lowenstein as establishing the validity of the relevant provisions of the Bankruptcy Act 1924 Cth.

[131]

Notwithstanding the views expressed obiter by the dissenting Justices in [Lowenstein ], it is, in my opinion, not possible to conclude, apart of course from the expressed intention of the Parliament in the relevant statute, that an offence is of its nature "indictable". Summary prosecution for a wide variety of offences has a long history, though punishment upon summary conviction is generally limited so far as imprisonment is provided to a term of twelve months or less. Those comments simply do not deal with the views which Dixon and Evatt JJ. had expressed. Their Honours did not suggest that an offence was, of its nature, "indictable". To the contrary, it would seem likely that they would have agreed with Barwick C.J. that any offence could be made "indictable" in accordance with "the expressed intention of the Parliament". Unlike the discarded earlier draft of the section which had referred to "[t]he trial of all indictable offences", s. 80 looks essentially to the nature of the trial. With the introduction and general acceptance of special statutory proceedings for disposing of minor offences however, it would not have sufficed to identify the nature of a trial on indictment by reference only to the element deduced from the procedures (such as the Attorney-General's information or presentment) which had been adopted in this country to perform the essential operative function of the traditional indictment, namely, that the trial be initiated by some step taken by the Crown or some instrument or agent of government. That being so, the choice became essentially one between substance and procedural form. The fact that a choice of procedural form would effectively reduce s. 80 to a hollow mockery led inevitably, in accordance with settled principles of constitutional construction, to the choice of substance which Dixon and Evatt JJ. made. That choice having been made, it was but a short step for their Honours to conclude, as they did, that the further element which sufficed to identify a trial on indictment, and to distinguish it in nature from the trial of minor offences which might, in accordance with established practice, take the form of a statutory summary proceeding, was that a trial on indictment involved a serious matter in the sense that it exposed the accused to grave punishment in the event of conviction. 1. (1978) 141 C.L.R. 182. 2. (1978) 141 C.L.R., at p. 190.

Kingswell v The Queen

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