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[2003] HCA 20
respondent. Application for special leave to appeal dismissed.
Ng argued that his federal criminal trial was not truly a trial by jury because 15 people were initially empanelled, three were removed by ballot before deliberations, and the foreperson could not be removed by that ballot. The High Court rejected the challenge. It held that the final jury's verdict was unanimous, that initially empanelled jurors had no unconditional right to decide the verdict, and that the foreperson's statutory exemption did not undermine random selection. The Court dismissed Ng's application for special leave to appeal.
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2,188 words · generated 05/10/2026
Philip Chee Ming Ng was charged with conspiracy to import a commercial quantity of heroin, contrary to s 233B(1)(cb) of the Customs Act 1901 (Cth). His trial took place on indictment in the County Court of Victoria. Section 80 of the Constitution applied to the trial because it concerned an indictable offence against a Commonwealth law. The County Court exercised federal jurisdiction under s 68(2) of the Judiciary Act 1903 (Cth), which permitted it to apply Victorian laws to the extent they were applicable to a federal offender and consistent with the Constitution [1], [7].
6 cited instruments linked from this judgment.
Victorian law provided for a jury of 12 as the ordinary arrangement, but s 14A of the Juries Act 1967 (Vic) allowed a court to order up to three additional jurors where there was good and sufficient reason [2], [51]. The County Court ordered 15 jurors. The trial lasted nearly four months. After the judge's summing up, s 48A required a ballot to reduce a jury of more than 12 to 12 before it retired to consider the verdict [3], [52].
The foreperson's card was the first drawn. Section 48A(4) required that card to be set aside and another card drawn. Three other jurors were removed, leaving the foreperson and 11 jurors to deliberate. After four days, that jury returned a guilty verdict [4], [27]. Kirby J records that Ng was sentenced to 25 years' imprisonment with a non-parole period of 20 years [27].
Ng challenged the jury procedure as inconsistent with s 80. The central question was not whether s 48A was valid of its own force in federal jurisdiction. The majority explained that the State provision did not itself apply in federal jurisdiction; the issue was whether it could be applied through s 68 of the Judiciary Act without conflicting with s 80 [8]. Ng argued, in substance, that the trial was not “by jury” as the Constitution requires.
The Court dismissed the application for special leave. The sentence ground was dismissed during the hearing; the remaining constitutional challenge was rejected [6], [15], [78].
The majority treated the question as one about the essential characteristics of a jury trial, not whether every procedure had to match the practice existing when the Constitution was adopted. It relied on Brownlee v The Queen, which had held that a jury reduced to fewer than 12 could still satisfy s 80 [9], [11]. The fact that the particular supplementary-juror provisions were not found in pre-Federation legislation did not decide the issue [9].
The majority considered that the reasoning in Brownlee supported the Victorian process. In Brownlee, the Court had accepted a trial in which the jury could be reduced to no fewer than 10. Ng did not argue that a jury could never initially exceed 12; instead, he objected that reducing the 15-person panel before deliberations altered the jury in a constitutionally impermissible way [11]. The majority rejected that objection by parity of reasoning.
Unanimity was another essential feature Ng invoked. The Court’s answer was that the relevant jury is the jury that returns the verdict. The majority cited the formulation in Cheatle v The Queen: unanimity is required of “all the persons constituting the jury at the time the verdict is pronounced” [12]. It reasoned that a juror removed by ballot for a reason unrelated to the juror’s views was not materially different, for this purpose, from a juror who died or became incapable of continuing. The 12 jurors who retired and returned the verdict were therefore the relevant group for the unanimity requirement [12].
The majority also rejected the suggestion that all 15 initially empanelled jurors had a protected right to participate in the verdict. It said participation after empanelment remains conditional on the juror continuing to be qualified and capable, and on the operation of relevant laws, including s 48A [13]. That reasoning treats jury composition as capable of lawful adjustment rather than fixed irrevocably at the moment of empanelment.
The foreperson’s exemption raised a distinct question about random and impartial selection. The majority accepted that selection by chance, rather than selection by the prosecution or the State, is an important feature. It nevertheless concluded that the foreperson’s retention did not displace that principle. The final jury remained drawn from a panel selected randomly or impartially, and the foreperson was not chosen by the prosecution or the State [14]. McHugh J similarly reasoned that the random selection occurred when the panel was drawn from a representative list. A later statutory rule preserving the foreperson did not undo that initial random selection [17]-[18].
Kirby J separately considered the objections in more detail. His Honour addressed whether additional jurors could be part of a constitutionally valid jury, whether their later exclusion compromised unanimity or jury privacy, and whether the foreperson’s protection undermined random selection [28]. He concluded that the Victorian scheme was designed to preserve the jury’s function and avoid a trial failing because a juror could not continue [61]. His reasoning supports the result, but the majority’s reasons are those in paragraphs [1]-[15].
Before Ng, the Court had already treated some jury characteristics as constitutionally essential. In Cheatle, unanimity was recognised as essential to a federal jury verdict [12], [30], [37]. Cheatle and Katsuno also supported the requirement that jurors be randomly and impartially selected, rather than chosen by the prosecution or the State [14]. Brownlee established that a jury reduced below 12 could still meet s 80, subject to retaining a sufficient number to represent the community and perform the group deliberation inherent in jury trial [37], [38].
Ng addressed a different procedural question: whether a jury could be enlarged before deliberations, then reduced by ballot to 12. The majority did not treat Brownlee as having directly decided that question. It instead held that Brownlee’s reasoning supported the validity of the Victorian process [11]. Kirby J expressly observed that enlargement and reduction raised different considerations from a reduction caused by a juror’s death or incapacity, and that the issue had not previously been determined by Brownlee [40]. His Honour then concluded that the functional reasoning in Brownlee could be extended to supplementary jurors [47]-[50].
The decision’s direct holding is limited to the Victorian arrangement before the Court: a panel of up to 15, reduced to 12 by random ballot before deliberations, with the foreperson exempted from removal. The majority concluded that those features did not contravene s 80 [11]-[14]. The judgment should not be read as resolving every possible arrangement involving additional jurors, especially procedures with different timing, numbers, selection methods or participation in deliberations.
The supplied judgment does not provide decisions of later courts applying or interpreting Ng. It is therefore possible to describe the rule this Court announced and the earlier authorities it relied on, but not to state how subsequent courts have treated the precedent on the basis of this source alone.
At [8], the majority said the complaint was not an attack on the validity of the Victorian statute itself. It was that the trial process had miscarried because it did not comply with the constitutional command that the trial be “by jury”. In plain English, the question was whether the procedure used in Ng’s trial fitted the constitutional requirement, not whether Victoria could enact jury legislation generally.
At [9], the majority said the absence of supplementary-juror provisions in pre-Federation law was “not determinative”. That means historical practice mattered, but did not automatically exclude a modern arrangement. The Court examined whether the procedure retained the essential features and purpose of jury trial.
At [12], the majority relied on the rule that unanimity is required among the jurors who constitute the jury when the verdict is pronounced. Put simply, the Constitution did not require every person initially empanelled to remain involved in the verdict, where a valid procedure removed some jurors before deliberations for reasons unrelated to their views.
At [13], the majority rejected an unconditional right for every initially empanelled juror to take part in deciding the verdict. A juror’s continuing role can depend on qualifications, capacity and valid laws regulating the process.
At [14], the majority addressed the foreperson. It concluded that retaining the foreperson did not turn the final panel into one selected by the State or prosecution. The constitutional concern was impartial random selection, and the Court considered that the panel still had that character.
Kirby J’s separate reasons provide additional explanation. At [61], he described the Victorian law as designed to protect the jury’s function and prevent a trial from failing. At [69], he concluded that removing additional jurors did not affect the joint responsibility of the jury that ultimately decided the verdict. These passages explain his Honour’s functional approach, but they should be distinguished from the majority’s shorter reasons.
Ng is relevant where a person is tried on indictment for a Commonwealth offence and a State jury procedure is applied through federal jurisdiction. The judgment identifies the statutory route as s 68 of the Judiciary Act and emphasises that State law can only be applied so far as it is consistent with s 80 [1], [8], [25].
The decision directly concerns a procedure under which more than 12 jurors are empanelled, a ballot reduces the number to 12 before deliberations, and the foreperson is exempted from being removed. In that setting, Ng rejects the argument that the reduction itself necessarily creates a non-unanimous verdict or deprives excluded jurors of a constitutional right to participate [12]-[14].
The reasoning may also be relevant to arguments about jury changes for reasons unrelated to jurors’ views. The majority compared the ballot procedure with juror discharge due to death or incapacity [12]. Kirby J discussed additional jurors, secrecy, privacy, and the operation of jury selection procedures [67]-[72]. However, the judgment does not establish that every procedure involving extra jurors or juror replacement is constitutionally valid. The statutory details and the stage at which a change occurs remain material to the analysis described in the reasons.
No later judgments are included in the material provided, so this section cannot reliably describe subsequent treatment of Ng. The judgment itself discusses earlier authorities and explains how they informed the result.
Brownlee is the most significant prior authority in the majority’s reasoning. It had accepted that a jury could be reduced below 12 without ceasing to be a jury under s 80. Ng treated that reasoning as supporting the Victorian procedure, although the majority acknowledged that the precise question of additional jurors was not the same question decided in Brownlee [11]. Kirby J made the distinction more explicit at [40], before concluding that the functional principle could extend to a small number of supplementary jurors [47]-[50].
Cheatle supplied the unanimity formulation applied by the majority: all jurors constituting the jury when the verdict is pronounced must agree [12]. Katsuno was cited in relation to random and impartial selection [14]. These authorities were part of the reasoning available to the Court when it decided Ng; they are not evidence of how later courts treated Ng.
The judgment also refers to the Victorian Court of Appeal’s decision in R v Ng, which rejected the constitutional arguments [15]. That is the procedural history of this same case, not later treatment of the High Court’s decision.
The judgment’s conclusion is tied to the scheme before it. It does not determine the constitutional limits of every supplementary-juror system. Kirby J noted that different features existed in other Australian and overseas schemes, including systems in which reserve jurors might replace other jurors at different stages [54]-[58]. Those comparisons show procedural variation, but do not amount to a ruling on every variation.
The decision also does not establish a general maximum number of jurors for every s 80 trial. The applicant accepted a jury of more than 12 for the purpose of his argument [45]. Kirby J considered whether 12 might be a constitutional maximum, but concluded in his separate reasons that a functional approach undermined that view [46]-[49]. The majority resolved the procedure actually used, rather than providing a comprehensive account of all possible jury sizes.
The reasoning depends on the ballot occurring before the jury retired to consider its verdict. The judgment therefore does not answer every question that could arise if a juror were replaced after deliberations began, or if excluded jurors participated in deliberations in a different way. Kirby J compared the Victorian model with United States procedures involving replacement during deliberations and directions to begin deliberations anew, but did so as comparative discussion [55]-[56], [70]-[72].
Finally, Kirby J recorded that reconsideration of whether an accused person can waive a s 80 jury trial was not before the Court and would have to await another case [21]. That issue was expressly left open in these proceedings.
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Source: the High Court of Australia (www.hcourt.gov.au). Converted to plain text by ZoeLaw. Not the official version.
HIGH COURT OF AUSTRALIA
GLEESON CJ,
McHUGH, GUMMOW, KIRBY, HAYNE, CALLINAN AND HEYDON JJ
PHILIP CHEE MING NG APPLICANT
AND
THE QUEEN RESPONDENT
Ng v The Queen [2003] HCA 20
Date of Order: 13 February 2003
Date of Publication of Reasons: 10 April 2003
M148/2002
ORDER
Application dismissed.
On appeal from the Supreme Court of Victoria
Representation:
A W Street SC with G D Wendler for the applicant (instructed by Allan McMonnies)
D J Bugg QC with N T Robinson for the respondent (instructed by Director of Public Prosecutions (Commonwealth))
Interveners:
D M J Bennett QC, Solicitor-General of the Commonwealth with C J Horan intervening on behalf of the Attorney-General of the Commonwealth (instructed by Australian Government Solicitor)
T I Pauling QC, Solicitor-General for the Northern Territory with N Rogers intervening on behalf of the Attorney-General for the Northern Territory (instructed by Director of Public Prosecutions (Northern Territory))
R J Meadows QC, Solicitor-General for the State of Western Australia and J C Pritchard intervening on behalf of the Attorney-General for the State of Western Australia (instructed by Crown Solicitor for the State of Western Australia)
R A Pepper intervening on behalf of the Attorney-General for the State of New South Wales (instructed by Crown Solicitor for the State of New South Wales)
S M Crennan QC with R M Doyle intervening on behalf of the Attorney-General for the State of Victoria (instructed by Victorian Government Solicitor)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Ng v The Queen
Constitutional law (Cth) – Law of the Commonwealth – Indictable offence – Trial by jury – Whether State law requiring, by ballot, a reduction in the number of jurors from 15 to 12 prior to commencement of jury deliberations contravenes s 80 of the Constitution – Whether State law exempting foreperson from removal from jury by ballot contravenes s 80 of the Constitution.
Constitution, s 80.
Judiciary Act 1903 (Cth), s 68.
Juries Act 1967 (Vic), ss 14, 14A, 48A.
GLEESON CJ, GUMMOW, HAYNE, CALLINAN AND HEYDON JJ. The applicant was charged with conspiracy to import into Australia a commercial quantity of heroin contrary to s 233B(1)(cb) of the Customs Act 1901 (Cth) ("the Customs Act"). He was tried on indictment in the County Court of Victoria. Section 80 of the Constitution was engaged. The County Court was invested with federal jurisdiction by virtue of s 68(2) of the Judiciary Act 1903 (Cth) ("the Judiciary Act"). That investment of jurisdiction is stated in s 68(2) to be subject both to the other provisions of s 68 and to s 80 of the Constitution. Section 68(1) authorised the County Court to apply the laws of Victoria but only "so far as they are applicable to persons who are charged with offences against the laws of the Commonwealth".
The applicant pleaded not guilty. The effect of s 14(2) of the Juries Act 1967 (Vic) ("the Juries Act") was that the applicant was to be tried by a jury of 12 or, if the County Court made an order in accordance with s 14A of the Juries Act, by a jury of not more than 15. An order for 15 jurors was made under s 14A. That section stated:
"A court before which a criminal inquest is to be heard may order the impanelment of up to 3 additional jurors in that inquest before the jury is impanelled for any reason that appears to the court to be good and sufficient."
The making of the order under s 14A in due course attracted the operation of s 48A.
The trial lasted nearly four months and the 15 jurors impanelled had remained, none having died or been discharged for cause. Following the summing up by the trial judge, a ballot to reduce the number of jurors to 12 was conducted pursuant to s 48A. This required the conduct of a ballot, to reduce the number to 12 before the jury retired to consider its verdict, by drawing at random the number of juror cards necessary to achieve that result. If the card of the foreperson was drawn, that card was to be kept apart and another card drawn (s 48A(4)).
As it happened, the card of the foreperson was the first drawn. That was set aside and three other cards were drawn. The jury of 12, including the foreperson, retired to consider its verdict. The applicant was convicted and sentenced.
The applicant applied to the Court of Appeal (Winneke P, Batt and Eames JJA)1 for leave to appeal against both conviction and sentence. The Court of Appeal dismissed both applications.
In this Court, the applicant sought special leave substantially on two grounds. The first was that the Court of Appeal had erred in holding that his sentence was not infected by appealable error. In so far as it turned upon that ground, the application was dismissed in the course of oral argument on 13 February 2003, the Court being of the view that there were insufficient prospects of success to warrant a grant of special leave on that point. The Court then proceeded with oral argument on the balance of the application and at the conclusion of the argument ordered that the application be dismissed. What follows are the reasons for that dismissal.
The applicant was tried on indictment for an offence against a law of the Commonwealth, namely the provision of the Customs Act to which reference has been made. The remaining ground of the application for special leave is that the trial had not been "by jury" as mandated by s 80 of the Constitution. Whilst the complaint is put in various ways, its substance is that s 68 of the Judiciary Act, operating according to its terms, did not "pick up" the provisions of s 48A of the Juries Act whereby the jury was reduced from 15 to 12 and the foreperson was "immunised" from that process of reduction.
Of its own force, s 48A could not, and did not purport to, apply in the exercise of federal jurisdiction2. Section 68 of the Judiciary Act contains internal limitations to deny to it any operation the validity of which would be impeached by s 80 of the Constitution3. The result is that the applicant did not attack the validity of any legislation. Rather, the complaint, as in and , was that, in the events that happened, the trial process miscarried because it was not conducted in accordance with the constitutional command in s 80 that it be "by jury".
The scope and course of the hearing
One aspect of this application involved a challenge to sentence. Mr Philip Chee Ming Ng ("the applicant") submitted that he had been wrongly penalised in sentence for having defended a criminal charge. That question is potentially an important one17. However, neither the sentence imposed on the applicant nor the language employed by the sentencing judge in passing sentence, made this an appropriate occasion to explore that point. The challenge to sentence was therefore dismissed by the Full Court during the hearing.
A second preliminary point was also cleared away. At one stage it was thought that this application might provide a suitable vehicle to allow reconsideration of the decision in Brown v The Queen18. This Court there held that the language and purpose of s 80 of the Constitution precludes an accused person from waiving the right to trial by jury where that section applies. Since Brown (in which the Court was divided19), doubts have been expressed about the correctness of such a prohibition on waiver20. However, in the event, it was accepted by the respondent that waiver could not be raised on the facts of this case. The challenge to Brown must therefore await another day.
These developments confined the application to the complaint that the provisions of State law allowing "additional" jurors to be empanelled in the applicant's trial were invalid or inapplicable having regard to s 80 of the Constitution. There was no dispute that the applicant's trial in the County Court of Victoria was obliged to conform to the requirements of s 80. Accordingly, the residual question, fully argued, was what s 80 required in the circumstances.
At the end of argument, the Court announced that the application was dismissed. So was the application in the companion proceedings. I agreed in those dispositions. In my view, the Court should explain its reasons by addressing the submissions placed before it. Detailed written and oral argument was received. The representatives of the parties and of several governments appeared. Substantial costs were incurred. The applicant has been sentenced to a significant term of imprisonment. The parties should therefore have the response of the Court to their arguments21.
Additionally, the issue decided concerns the constitutional law of the nation. It involves part of a mosaic of law by which the requirements of s 80 of the Constitution are explained. Apart from the parties and the participating governments, the citizens should know not only what the Court holds, but its reasons for doing so – that being the means by which this Court is rendered accountable to the parties and to the community in such matters.
The facts
The applicant was charged with conspiracy to import a commercial quantity of heroin into Australia contrary to the Customs Act 1901 (Cth), s 233B(1)(cb). He was tried on indictment in the Victorian County Court. The trial attracted federal jurisdiction in accordance with the Judiciary Act 1903 (Cth)23. Pursuant to that Act, the County Court was empowered to apply to the trial and conviction of the applicant the laws of the State of Victoria so far as they were applicable to the trial of a federal offender24. However, a law that contravened s 80 of the Constitution would be inapplicable to such application. It could not be "picked up" by the Judiciary Act.
At the outset of the applicant's trial, in April 2000, fifteen persons were empanelled to serve as the jury. The jury thus included three "additional" jurors. A challenge to the constitutional validity of this procedure was reserved by the applicant's counsel. The trial proceeded until July 2000 when the summing up of the presiding judge was completed. At that stage a ballot was conducted of all the jurors to reduce their number from fifteen to twelve.
The first card drawn in the ballot bore the name of the member of the jury who, at the outset of the trial, had been elected the jury foreperson. In accordance with the Victorian law, the card bearing his name was put aside. Three further draws were made to eliminate the three "additional" jurors and so to produce the final jury of twelve. So derived, the jury included the foreperson. It was that jury that then retired to consider their verdict. After deliberations of four days, the jury announced their verdict of guilty. In August 2000 the applicant was convicted and sentenced to twenty-five years imprisonment with a non-parole period of twenty years. He sought leave to appeal to the Court of Appeal of the Supreme Court of Victoria. His grounds of appeal included relying on the constitutional issue now before this Court. The Court of Appeal dismissed the application25. It rejected the constitutional arguments26.
The issues
(a) The jury definition issue: Whether once constituted to include "additional" jurors, the applicant's "jury" comprised a number greater than twelve, entitling him to the verdict of that enlarged "jury", not the verdict of a smaller number of jurors comprising some only of his "jury";
(b) The unanimous verdict issue: Whether the impugned law of Victoria involved taking the verdict of some only of the applicant's jurors and, in that way, the acceptance of a non-unanimous jury verdict contrary to the decision of this Court in Cheatle v The Queen27;
(c) The jury contamination issue: Whether, if the applicant's "jury" were properly reduced to the twelve jurors from whom the verdict was taken, this meant that persons who were not ultimately members of the "jury", had been permitted to participate in the jury's deliberations although strangers to the jury, thereby offending "essential characteristics" of jury trial, namely jury secrecy and privacy; and
(d) The random selection issue: Whether the provisions requiring the participation of the jury foreperson in the verdict of the jury offended against the constitutional requirements of randomness in the selection of the jury and equality of the jurors as between themselves or otherwise infringed the applicant's right to a fair trial.
Essential and inessential requirements of jury trial
Jury trial in history: The requirements of s 80 of the Constitution28 have been considered in many cases decided since the earliest days of this Court. In 1909, O'Connor J29 adopted for the purpose of explaining s 80 a definition approved by Samuel F Miller in a lecture on the Constitution of the United States from whose provisions s 80 was taken30.
Relying on Miller's definition, O'Connor J described trial by jury as "the method of trial in which laymen selected by lot ascertain under the guidance of a Judge the truth in questions of fact arising either in a civil litigation or in a criminal process"31. Although this definition was advanced as representing "the essential features" of trial by jury, it was not "an exhaustive statement"32. Thus this Court in Cheatle33 held that unanimity in a jury's verdict is an essential characteristic. That decision rendered inapplicable in a trial to which s 80 of the Constitution applies State laws providing for majority jury verdicts.
In the course of decisions over nearly a century the elaboration of s 80 has given rise to some of the "sharpest divisions of opinion"34 in this Court about the meaning of the Constitution. Some members of the Court have considered that s 80 is little more than a procedural provision, easily circumvented by the expedient of excluding the crime in question from the requirement of trial on indictment or by exempting aggravating features of the crime from the definition of the "offence", trial of which alone must take place "on indictment"35. On the other hand, other members of the Court have regarded s 80 as a "fundamental law"36 or as a constitutional "guarantee"37. I am of the latter persuasion.
(1) Juries no longer need to be constituted exclusively by men46;
(2) Jurors no longer have to qualify for service by having minimum property holdings47;
(3) Jurors no longer need to be segregated in every case during the trial or from the moment when they are charged to consider their verdict48;
(4) When a juror dies or is discharged the trial need no longer be abandoned49;
(5) A juror in waiting may be removed from the jury upon a prosecution challenge based upon the supply to the prosecution alone of information concerning a non-disqualifying criminal conviction50;
(6) It is not every serious offence against federal law resulting in imprisonment that attracts s 8051; and
(7) A preliminary determination, at first instance and on appeal, of questions of law or issues governing the admissibility of evidence before the jury are empanelled is not incompatible with trial by jury complying with the Constitution52.
(1) The jury must deliver a unanimous verdict53. The verdict of guilty must be reached by the agreement of all persons constituting the jury at the time the verdict is pronounced54. (The requirement of unanimity may also extend to a jury verdict of not guilty55);
(2) Where jury numbers have been reduced before the verdict is given, the trial can still be accepted as a trial by jury. The jury must still be of a sufficient number to be representative of the community and capable of performing the group deliberation inherent in jury trial56;
(3) The jury must be randomly and impartially selected, not chosen by the prosecution or the state57; and
(4) The jury must be comprised of lay decision-makers who are impartial as to the issues in contest58.
The norm of twelve: This Court has not held that twelve jurors ("neither more nor less"59) is an inherent requirement of trial by jury that conforms to s 80. On the contrary, it has decided that, although the jury number may fall below twelve, at least to ten, the trial can still answer to the constitutional description.
However, until this case, this Court has not had to consider the validity of an expansion of juror numbers to allow for supplementary jurors in trials to which s 80 applies. That issue did not arise in Brownlee v The Queen60. True, three members of the Court made it clear in Brownlee that they were not calling into question the use of reserve jurors applicable in that case61. In support of that comment they cited the decision in Ah Poh Wai v The Queen where, as they pointed out, the reserve juror system, applicable in Western Australian trials, had been considered and upheld as constitutionally valid by the Court of Criminal Appeal of that State62. Special leave to appeal to this Court from that decision was refused by a majority63. The present application re-submitted some of the questions raised in Ah Poh Wai.
As it seems to me, it is one thing to accept twelve jurors as the norm and to provide, exceptionally, for the validity of their verdict where their number is reduced by death, illness or other excuse. It is another to enlarge jury numbers from the outset of a trial against the risk that the trial might otherwise miscarry for a later want of an adequate number of jurors. Accordingly, the issue raised by this application was not determined by the decision of the Court in Brownlee either as a matter of authority or as a matter of legal principle. Different considerations are involved. They need to be considered and decided.
It is not true to say that juries have always been constituted by twelve persons (until quite recently twelve men). Grand juries, special juries and civil juries were commonly constituted by different numbers. In Scotland juries are now, and have for a long time been, comprised of fifteen persons. Exceptional circumstances have summoned forth exceptional arrangements. Thus, Charles I was tried in a "High Court of Justice" that comprised 62 Commissioners as a kind of national jury.
"contemporary trials, particularly of federal offences, can be extremely complex and lengthy73, the inconvenience to the community, to jurors and the cost to parties should not needlessly be incurred by unnecessary termination and re-litigation of jury trials where (as will inevitably happen from time to time) jurors die, fall ill or are otherwise incapable of continuing to act74".
If it is acceptable to treat a jury of fewer than twelve as constitutionally valid in order to sustain the system of jury trial and the continued "involvement of the public" and "societal trust"75 implied in the mode of trial referred to in s 80, it is also acceptable, exceptionally, for supplementary jurors to be introduced to the jury to guard against a failure of the trial caused by the death, illness or absence of jurors.
These conclusions leave to be determined the validity and applicability of the Victorian legislative provisions that were invoked in the trial of the applicant. However, the logical extension of the principle adopted in Brownlee (including in my own opinion in that case) results in the conclusion that the reference in s 80 to a "jury", and to the procedure of trial by a jury, does not forbid the enlargement of jury numbers. At least this is so in relation to the time before the retirement of the jury to consider their verdict and where the membership of the jury is supplemented by the small numbers involved in the present case.
These general conclusions bring me to the question of whether any feature of the State law invoked in this application is such as to indicate direct inconsistency with an essential characteristic of trial by jury conforming to s 80 and thus to prevent the application of the State law in such a trial by virtue of the provisions of the Judiciary Act76.
The legislation
"A court before which a criminal inquest is to be heard may order the impanelment of up to 3 additional jurors in that inquest before the jury is impanelled for any reason that appears to the court to be good and sufficient."
"(1) Where more than 12 jurors have been impanelled and remain at any time at which the jury is required to retire to consider its verdict a ballot must be held in accordance with sub-section (2) to reduce the number to 12 before the jury retires to consider its verdict.
(2) A ballot referred to in sub-section (1), must be conducted by drawing at random the number of cards necessary to reduce the number of jurors to 12 from those cards kept apart in accordance with section 48(1).
(3) Subject to sub-section (4) and unless the juror or jurors are, in accordance with sub-section (3A), to return to the jury, and continue as part of it, for the continuation of the trial, the juror or jurors whose cards are drawn must be excused and their cards returned to the box for further use unless the court otherwise orders.
…
(4) If the card of the foreperson is drawn, that card is to be kept apart and another card drawn.
(5) The cards of the 12 jurors including the card of the foreperson must be kept apart until a verdict has been given or until the jurors are discharged."
The foregoing law contemplates a jury that may initially comprise more than twelve jurors but not more than fifteen. Indeed, such a jury may operate with up to "three additional jurors" until virtually the end of the trial: to the point immediately before the jury are required to retire to consider their verdict. At that stage a ballot is conducted of all of the jurors. But whatever the outcome of that ballot, the foreperson must remain a juror until the jury deliver their verdict.
Overseas legislation: Legislation providing for supplementary jurors has been enacted in various overseas countries where jury trial exists. Thus in Canada, provision is made both for the continuation of a trial with ten or more jurors where a juror originally empanelled dies or is discharged77 and for the selection of up to two "alternate" jurors78. In Canada, the alternative jurors participate as jurors until the commencement of the trial when any "alternate" jurors who have not been substituted by that time are excused79.
In the United States of America provision is made, in the trial of federal offences, for continuance of the trial with fewer than twelve jurors80 and for the initial empanelment of up to six alternate jurors81. Such alternate jurors participate in the trial in the same way as other jurors82. Those who do not replace jurors who are unable to perform or who are disqualified from performing their duties may be retained and may replace such jurors, even, where necessary, after the jury's deliberations have commenced83. In the event of such replacement, the judge is obliged to direct the jury to begin their deliberations anew84.
Many court decisions have considered the application of the United States Rules85, including one that reached the Supreme Court86. The position is differentiated from that in Australia by the fact that, in the United States, judges typically instruct juries to refrain from discussing a case not only with strangers but also amongst themselves "until the end of the case when you go to the jury room to decide on your verdict". Such instruction has been justified as upholding the integrity, secrecy and privacy of jury deliberations. On the assumption that such instructions are obeyed, alternate jurors may usually be permitted to remain with other jurors during the trial. They separate finally when the jury are instructed to consider their verdict.
The "jury" definition was not unchangeable
It will now be apparent why the applicant did not argue that it was contrary to s 80 to increase the jury numbers beyond the norm of twelve. Rather, he contended that the enlarged jury represented a redefinition of his "jury" within s 80 and, once empanelled, could not be reduced in number.
Some of the applicant's arguments under this head can be disposed of quite easily. A submission that, once empanelled, jurors have a "right" to participate in the verdict is misconceived. The participation of a juror is at all times conditional upon the operation of relevant laws so long as such laws are constitutionally valid98. For example, without contradicting the constitutional provision, a juror discharged for misconduct has no "right" of continued participation. Legislation can provide for discharge, and it invariably does.
Applying the test of functionality to the Victorian law99, its purpose is clearly to protect and uphold the jury's function. Its design is intended to prevent the failure of a trial. Such failure can work hardship on the accused, on witnesses, on jurors and on the community100. What is involved in a jury trial today is in some ways different from what was involved when the Constitution was written. The word ("jury") remains the same. But the concept adapts to the contemporary features of jury trial101.
The applicant's first point of objection therefore failed.
The jury verdict was unanimous
In an extension of the first argument, the applicant complained that the verdict in his case was that of the smaller number of jurors who remained after the "additional" jurors were balloted off and excused. Because this Court has insisted that unanimity is an "essential characteristic" of the "jury" provided in s 80 of the Constitution, it followed, according to this argument, that a kind of "majority" jury verdict had been taken. This was constitutionally impermissible.
This argument likewise had no merit. Where a juror is removed from the jury by death (or discharged for incapacity or on any other ground provided by law), this does not mean that the resulting jury returns a non-unanimous verdict. As the Court of Appeal held102, the time that is critical for observing the requirement of unanimity is the time when the verdict is pronounced. The applicant's jury were unanimous in the verdict that they returned at that time.
There is no functional distinction between the discharge of a juror for reasons of incapacity or other like cause and discharge of an "additional" juror whose service is in excess of the ultimate needs of the trial. In each case, discharge happens according to law, for reasons unrelated to any views that the juror may have, or may have expressed to other jurors. The possibility that a juror, excluded from participation in the verdict, might have held out in favour of acquitting the accused is entirely speculative. The procedure for selection of the jurors who take part in deciding the verdict, and those who do not, is governed by ballot at all stages. It ensures that the purpose of jury trial is fulfilled: resting as it does substantially upon selection by chance, not selection upon the basis of any opinions that an excluded juror might hold.
The applicant's second point of objection also failed.
The jury were not "contaminated"
The applicant thirdly complained that the Constitution contemplated a single "jury", not one of variable numbers. Once he was put in the charge of that "jury" he was, as it was expressed, "entitled" to their verdict. To the extent that persons, at one stage part of the "jury", were later excluded from participating in the essential reason for the jury's existence (namely to return a verdict) the characteristics of secrecy, confidentiality and integrity of the jury's deliberations were undermined. "Strangers" who were not, in the end, participating jurors had taken part in the early stage of the jury's deliberations. Especially in a long trial, the excluded jurors might through discussion have had a significant impact on the verdict although they ultimately did not participate in deciding the verdict. The applicant submitted that this possibility was incompatible with an essential characteristic of jury deliberation hitherto observed, namely, the joint responsibility of all jurors for the verdict pronounced by them.
This argument likewise fails. The "additional" jurors were not "strangers" to the jury. Their participation in the jury does not violate the principles governing the secrecy and privacy of such deliberations. From a functional point of view, the purpose of those principles is to protect the jury from outside influence or pressure. Nothing in the Victorian law endangers those objectives103.
The possibility that one or more empanelled jurors will be balloted off the jury that retires to consider their verdict is no different from the possibility that one or more jurors might be discharged or excused for cause before the end of the trial. The earlier participation of that person in the jury's deliberations has not hitherto been regarded as impermissibly "contaminating" the jury process or undermining the integrity of the jury's verdict. All persons engaged in the jury function are bound by obligations of secrecy and privacy. Such obligations are accepted by a public undertaking in the form of an oath or affirmation administered as they are empanelled. The joint responsibility of the jury that ultimately decides upon the verdict remains unaffected by the removal of "additional" jurors.
The applicant submitted that the model observed in the United States Rules conformed more closely to the requirements of s 80 of our Constitution. That model involves the possibility of the separation of the additional jurors from the primary panel, instructions to all jurors not to discuss the case with each other before beginning deliberations on a verdict and explicit directions where an additional juror replaces an original juror of the duty of the jury to commence their deliberations anew104.
Random selection and the jury foreperson
The fourth argument was put in various ways. It was said that the special status accorded by Victorian law to the juror elected as foreperson amounted, in effect, to constituting the applicant's jury of the foreperson and eleven other jurors, not of a single jury comprising jurors of exactly equal status as s 80 contemplated. It was also argued that the Victorian law departed from the essential constitutional requirement of random selection. By entrenching the participation of the foreperson in the jury, that law gave a special status to one juror who, at the time of selection, may have impressed other jurors with qualities of assertiveness and leadership that could tend to favour one side in the trial. It was complained that only in South Australia and Victoria was this departure from wholly random selection of the ultimate jury enacted.
None of these complaints had merit. From ancient times a jury has been expected to make corporate decisions for which all participating jurors are told they must accept responsibility106. To communicate with the judge and, at the end of the deliberation, to announce the verdict, it is necessary to have a chosen foreperson who, otherwise, has no higher status or function different from that of the other jurors107.
Under the Victorian legislation the foreperson may be changed by the jury. They may decide to select a replacement during the course of a trial108. The process of selection and change being private to the jury, the reasons behind it are unknown to the judge, the parties and the community. Likewise, they will know nothing of any views that the foreperson might have, or have expressed, concerning the verdict in the matter. It is speculative to assume that a juror, initially chosen as foreperson, would necessarily favour the prosecution or defence. The obvious reason for retaining the foreperson on the jury was that this would obviate the necessity of making a fresh choice at a very late stage in the trial.
There is therefore nothing in the Victorian law that is sinister or incompatible with the essential element of randomness in the constitution of the jury. The legislative provisions concerning the foreperson, in that State and in South Australia, are by no means essential to a valid scheme for supplementary jurors. But neither are they incompatible with the composition of a jury as contemplated by s 80. Accordingly, there is no reason why the Victorian provisions might not be picked up pursuant to the Judiciary Act and applied to a trial on indictment in Victoria of an offence against a law of the Commonwealth. The fourth argument, therefore, likewise failed.
Orders
[2002] VSCA 108. ↩
Australian Securities and Investments Commission v Edensor Nominees Pty Ltd (2001) 204 CLR 559 at 588 [59], 611 [134]; Macleod v Australian Securities and Investments Commission (2002) 76 ALJR 1445 at 1447 [10]; 191 ALR 543 at 546; cf Byrnes v The Queen (1999) 199 CLR 1 at 31‑32 [70]-[72]. ↩
Brown v The Queen (1986) 160 CLR 171 at 178, 200, 218. ↩
(2001) 207 CLR 278 at 296 [50]. ↩
(1999) 199 CLR 40 at 63 [48]. ↩
Cheatle v The Queen (1993) 177 CLR 541 at 549. ↩
Brownlee v The Queen (2001) 207 CLR 278 at 284‑285 [7], 288‑289 [21]-[22], 298 [54]. ↩
Brownlee v The Queen (2001) 207 CLR 278 at 284‑285 [6]-[7], 287 [17], 291‑292 [33]-[34], 299‑300 [58], 303 [71]. ↩
(2001) 207 CLR 278 at 330‑331 [148]. ↩
(1993) 177 CLR 541 at 548 (emphasis added). ↩
Cheatle v The Queen (1993) 177 CLR 541 at 560; Katsuno v The Queen (1999) 199 CLR 40 at 64 [50]. ↩
Ng
R [2003] HCA 20; 217 CLR 521; 197 ALR 10; 77 ALJR 967
(2001) 204 CLR 559
(2002) 76 ALJR 1445
(1999) 199 CLR 1
(1986) 160 CLR 171
(2001) 207 CLR 278
(1999) 199 CLR 40
(1993) 177 CLR 541
(2002) 76 ALJR 382
(1909) 8 CLR 330
(2000) 203 CLR 248
(1985) 159 CLR 264
(1915) 20 CLR 315
(2000) 203 CLR 1
(1996) 189 CLR 1
(1999) 198 CLR 511
(1999) 200 CLR 386
(1938) 59 CLR 556
(2002) 82 SASR 426
(1995) 15 WAR 404
(1999) 199 CLR 99
(2002) 77 ALJR 292
(1965) 114 CLR 226
(1979) 21 SASR 171
(1991) 172 CLR 84
(1991) 172 CLR 501
(1998) 193 CLR 173
(2000) 205 CLR 337
Application for special leave to appeal dismissed.
Brownlee establishes that, whilst the requirement in s 80 of a trial "by jury" is referable to that institution as understood at common law at the time of federation6, it is the essential features of that institution which have what might be called a constitutionally entrenched status. Further, Brownlee also indicates that those essential features are to be discerned with regard to the purpose which s 80 was intended to serve7 and to the constant evolution, before and since federation, of the characteristics and incidents of jury trial8. Accordingly, the circumstance that provisions such as those in ss 14A and 48A of the Juries Act respecting additional jurors were not found in pre‑federation legislation is not determinative.
In Brownlee9, Kirby J pointed out that it was beyond doubt that in comparison with earlier times criminal trials today typically last longer, are more expensive and involve more complex issues than previously was the case. The applicant's lengthy trial is an example. The trial judge's remarks on sentence concluded on p 5697 of the transcript. Provisions such as those of the Juries Act which the applicant impugns are designed to meet exigencies that may arise in such circumstances.
Brownlee determined that a trial on indictment for an offence against a law of the Commonwealth which was conducted in accordance with a provision of New South Wales law which permitted the reduction in number of jurors to not below 10 was not at odds with the meaning of trial "by jury" in s 80 of the Constitution. The applicant does not argue for the proscription of a trial by a jury where more than 12 jurors are impanelled. The complaint concerns the operation of the provisions respecting reduction in numbers to 12 before the jury retired to consider its verdict. However, by parity of reasoning, the conclusions which led to the outcome in Brownlee militate in favour of the dismissal of the present application.
The applicant referred to the requirement of unanimity. But in Cheatle this was expressed as a requirement that "all the persons constituting the jury at the time the verdict is pronounced"10 return a unanimous verdict. There is no prejudice to that principle where there is a discharge by reason of death or incapacity or the excusing of jurors who are ballotted out under the procedures specified in s 48A of the Juries Act. In all these cases, the change in jury composition comes about for reasons unrelated to any view of any of the jurors. Nor, any more than is the case when a juror is removed by death or on account of incapacity, are the remaining jurors "contaminated" in any constitutionally offensive sense.
Further, there is no substance in the applicant's contention that there is any "right" enjoyed by each of the 15 jurors impanelled to participate in determination of the verdict. The continued participation in the process of any juror after impanelment is at all times conditional upon the juror remaining qualified and of capacity and on the operation of any relevant laws, such as s 48A of the Juries Act.
The applicant directed particular attention to the position under the Juries Act of the foreperson. In particular, the operation in this case of s 48A(4) was said to indicate that the legislation placed the foreperson in a special and protected position not enjoyed by the other 14 jurors who had been impanelled. The selection of that person, in circumstances where he or she cannot be ballotted out under s 48A, does not produce inconsistency with the underlying objective of the requirement that the panel of jurors be randomly or impartially selected rather than chosen by the prosecution or the State11. The principle of randomness of selection permits peremptory challenges to potential jurors, consistently with s 8012, as it does the subjection of all of the panel of 15, apart from the foreperson, to the process of ballotting out under s 48A of the Juries Act. When the jury in the present case retired, it claimed the character of a panel randomly or impartially selected rather than one chosen by the prosecution or by the State.
The Court of Appeal gave detailed consideration of the matter and correctly concluded that the grounds containing submissions respecting the requirements of s 80 of the Constitution should be rejected13. There are no prospects of success of an appeal to this Court and accordingly we joined in the order dismissing the application for special leave.
McHUGH J. I joined in the order dismissing this application for special leave to appeal because an appeal would have had no prospect of success, if leave were granted. Subject to one matter, my reasons for refusing leave are essentially the same as those that caused me to refuse leave in Fittock v The Queen14.
In the present case, the applicant relied on a ground not present in Fittock. He contended that s 48A(4) of the Juries Act 1967 (Vic) gave the foreperson of the selected jurors a privileged position that undermined the constitutional requirement that the panel be selected at random from the community15. Under s 48A(4), the foreperson remains a juror even though his or her name is drawn from the ballot held to reduce the number of jurors to 12. The policy behind this immunity is not clear. Ordinarily, the foreperson does no more than pronounce the jury's verdict and regularise the jury's discussion of the issues. There is nothing to stop the jurors changing their foreperson as often as they like. But whatever the policy behind the immunity, the immunity does not affect the randomness of the jury that the Constitution requires.
The jurors are selected randomly when their names are drawn by ballot from a list that is representative of the community. The randomness of the panel is no more affected by the foreperson being exempted from the ballot than it is by the order of the judge directing that a particular panel member be discharged for incapacity or other reason. In each case, the requirements of s 80 are met by the selection of the jury by ballot from a list of names that is representative of the community. The random selection of the panel is not affected by a subsequent judicial order discharging a juror or by a statutory command that a juror who has been randomly selected and elected as foreperson is to remain a member of the jury that determines the case.
KIRBY J. This is one of two applications for special leave to appeal referred to the Full Court16. Because the applications raised common issues, they were heard together. The common issues concerned the requirements of s 80 of the Constitution which governs jury trial of indictable offences against a law of the Commonwealth.
Doubtless the conception of the character of s 80, its role in Ch III of the Constitution and its function as a safeguard of basic rights, has influenced the approaches taken by successive judges to the requirements of the section in respect of what trial by jury means in a given case.
Because trial by jury connotes a particular kind of legal proceeding, known to the common law of England and in the Australian colonies before the adoption of the federal Constitution, the expression is not at large. At least for the purposes of s 80, it cannot mean anything that a legislature, federal, State or Territory, chooses to enact under the label of "trial … by jury"39. Clearly, historical considerations will help to mark out the boundaries of the proceeding which s 80 permits. Nevertheless, from past decisions it is also clear that s 80 does not require the conduct of criminal trials to comply with every feature of that mode of trial as it existed in 1900. To this extent, the incidents of jury trial are not immutable. Some may change to meet contemporary needs and to adapt to modern circumstances and conditions40. The decisions of this Court deny the adoption of an "originalist" approach to the construction of s 80 of the Constitution, whether categorised as "enthusiastic", or "reluctant", "faithful" or "faint-hearted"41.
It is important to adopt a consistent methodology of interpretation so as to avoid the justifiable criticism that a judicial decision in a particular case amounts to nothing more than a statement of the judge's whims or intuition, disguising unarticulated value judgments42. The provision of reasons that respond to the arguments of the parties, however irksome, is a discipline protecting parties, and the public, from ill-considered or merely instinctive responses. Convenience in the conduct of trials or the disturbance of settled expectations cannot ultimately decide large constitutional conflicts. Least of all can such considerations govern provisions such as s 80 which appear in Ch III regulating the Judicature of the nation in identified matters of federal concern43.
In recent decisions addressing s 80, this Court has focussed upon a functional analysis of the jury rather than an historical scrutiny of what the founders of the Commonwealth expected or intended jury trial to involve44. In my view, this is the correct way to go about giving meaning to s 80. It is the one I adopted in approaching the present application.
Inessential characteristics: What then is the contemporary answer to the question posed by O'Connor J in 1909 concerning the "essential features of a trial by jury"45? Some features that may have been regarded as essential or invariable in 1900 can now be treated as inessential. They include:
Nevertheless, before the Australian colonies were founded, the ordinary jury for the trial of indictable offences according to the common law of England was undoubtedly a jury of twelve. Indeed, until legislation altered that requirement in England there was ordinarily no jurisdiction to try such a case otherwise than with a jury of that number65.
Initially in the Australian colonies jury trial was conducted before seven commissioned naval or army officers66. The colonists insistently demanded jury trial in accordance with the common law67. By the Jury Trials Act 1832 (NSW) provision was made for trial by "twelve persons" and civilian jurors replaced military juries completely. That Act was consolidated in later legislation and copied elsewhere in the Australian colonies68. Under such legislation "all crimes and misdemeanors" were to be "tried by a jury consisting of twelve men"69.
Historically, therefore, both for the common law of England and in early Australian legislation, a jury of twelve was undoubtedly the norm. In a sense, the legislation under consideration in this application accepts that norm. Provision is made for the removal from the ultimate jury of any supplementary jurors in excess of that number.
The applicant's case: So can it be said that, like unanimity, representativity, random and impartial selection and a lay character, the maximum number of twelve jurors should be taken as an "essential" or "inherent" characteristic of "trial … by jury" within s 80 of the Constitution70? The applicant did not so submit. He was content to accept as constitutionally valid a jury of more than twelve. Obviously, the larger the jury, the greater the chance that one or more jurors might be persuaded to hold out for a not guilty verdict.
This Court is not bound by concessions or arguments of the parties where it concludes that they are legally erroneous71. Even without much knowledge of the history of the jury at common law or the adoption of a 1900 criterion for the meaning of jury trial in s 80, a respectable argument exists that the "jury" contemplated by s 80, is one of no more than twelve persons. On this view, a jury might validly fall below that number, as in Brownlee. But to the extent that a jury goes above, does it amount to a "jury" at all? Or is it some new hybrid tribunal, different from that for which the Constitution provides?
Although it has some support in older cases in the Supreme Court of the United States, the view that twelve jurors is the maximum should not be adopted. Once a functional approach to jury trial is embraced, as it has been by this Court, the argument that twelve is the maximum number of jurors for a trial conforming to s 80 of the Constitution is undermined. If fewer than twelve jurors is acknowledged as conformable to the constitutional "jury", the validity of a provision allowing for more than twelve, so as to ensure that the function of the jury is fulfilled, becomes difficult to resist. Once a criterion is adopted by reference to considerations of community representativity and effective deliberations, legislative measures aimed at ensuring the retention of those qualities become constitutionally permissible. This is especially so today, as jury trials typically last longer than was the case in 1900 or, indeed, until the latter part of the twentieth century. In Brownlee72 I observed that:
In most other common law countries where jury trials occur, provision is made for the discharge of jurors and the continuance of the trial89 but without a law for supplementary jurors. In New South Wales, as in the United Kingdom, that remains the position. In England, legislation to permit the participation of supplementary jurors has been recommended but not yet enacted90.
Australian legislation: Save for New South Wales, the legislatures of each of the States and self-governing Territories of Australia have enacted a law providing for supplementary jurors. Putting the position generally, the law in Queensland91, Western Australia92 and Tasmania93 follows the "reserve" juror model illustrated by the law of the Northern Territory described in Fittock v The Queen94. The laws in South Australia95 and the Australian Capital Territory96 follow the model of "additional" jurors enacted in Victoria. As in Victoria, the foreperson is exempted from exclusion from the final jury in South Australia97. In the Australian Capital Territory, the foreperson, like any other juror, may be balloted off.
Care must be taken in considering United States decisions on this point. They are influenced by legal doctrine in that country that is, in turn, enlivened in federal cases by the constitutional requirements of due process. That doctrine has no exact equivalent in Australian constitutional law. The instruction to jurors to refrain from discussing together a case that might last weeks or months, before commencing deliberations on their verdict, appears to Australian eyes somewhat unrealistic and even undesirable having regard to the functions of the jury and the vagaries of human memory and impressions, especially over a long trial.
Once a functional approach is adopted, as Brownlee requires105, the Victorian law providing for supplementary jurors may be seen as compatible with the functions of the jury as envisaged by s 80 of the Constitution. Accordingly, the third challenge also failed.
There was nothing separate or additional in the submission of the applicant that the composition of his jury involved a departure from the requirement of "fair trial" said to be implied in Ch III of the Constitution. Assuming that such an implication exists109, nothing in the arrangements for Mr Ng's jury enlivened it.
Katsuno v The Queen (1999) 199 CLR 40 at 50 [4], 65 [51]. ↩
[2002] VSCA 108 at [16]-[30]. ↩
[2003] HCA 19. ↩
Cheatle v The Queen (1993) 177 CLR 541 at 560. ↩
The other application was Fittock v The Queen [2003] HCA 19. ↩
cf Cameron v The Queen (2002) 76 ALJR 382 at 384 [12], 390 [47], 399-400 [93]-[95]; 187 ALR 65 at 68, 76, 88-89. ↩
(1986) 160 CLR 171. ↩
Brennan, Deane and Dawson JJ; Gibbs CJ and Wilson J dissenting. ↩
Brownlee v The Queen (2001) 207 CLR 278 at 319-320 [120]-[121]. ↩
Heron v The Queen [2003] HCA 17 at [23]. ↩
Gleeson, "Judicial legitimacy", (2000) 20 Australian Bar Review 4 at 10. ↩
s 68(2). ↩
s 68(2)(c). ↩
R v Ng [2002] VSCA 108. ↩
R v Ng [2002] VSCA 108 at [16]-[30]. ↩
(1993) 177 CLR 541. ↩
Section 80 of the Constitution provides: "The trial on indictment of any offence against any law of the Commonwealth shall be by jury, and every such trial shall be held in the State where the offence was committed, and if the offence was not committed within any State the trial shall be held at such place or places as the Parliament prescribes." ↩
Huddart, Parker & Co Pty Ltd v Moorehead (1909) 8 CLR 330 at 375. ↩
United States Constitution, Art III, s 2, cl 3 and Seventh Amendment. See Patton v United States 281 US 276 at 288 (1930). ↩
Huddart, Parker & Co Pty Ltd v Moorehead (1909) 8 CLR 330 at 375. ↩
Brownlee (2001) 207 CLR 278 at 287 [17]. ↩
(1993) 177 CLR 541. ↩
Cheng v The Queen (2000) 203 CLR 248 at 306 [173]. ↩
Kingswell v The Queen (1985) 159 CLR 264; cf Cheng (2000) 203 CLR 248 at 307 [174]. ↩
R v Snow (1915) 20 CLR 315 at 323 per Griffith CJ. ↩
Brown (1986) 160 CLR 171 at 201 per Deane J. ↩
cf Simpson and Wood, "'A puny thing indeed' – Cheng v The Queen and the Constitutional Right to Trial by Jury", (2001) 29 Federal Law Review 95. ↩
Brownlee (2001) 207 CLR 278 at 284 [6], 317-318 [115], 321 [125]. ↩
Brownlee (2001) 207 CLR 278 at 286-287 [12]-[17], 291 [33]. ↩
Eastman v The Queen (2000) 203 CLR 1 at 44 [140] per McHugh J referring to an expression ("faint-hearted" originalism) used by Scalia J of the Supreme Court of the United States; cf Brownlee (2001) 207 CLR 278 at 327 [138]. ↩
Simpson and Wood, "'A puny thing indeed' – Cheng v The Queen and the Constitutional Right to Trial by Jury", (2001) 29 Federal Law Review 95 at 107. ↩
cf Wilson v Minister for Aboriginal and Torres Strait Islander Affairs (1996) 189 CLR 1; Re Wakim; Ex parte McNally (1999) 198 CLR 511. ↩
But cf Cheng (2000) 203 CLR 248 at 268-269 [53]-[54], 293-294 [133]-[137]. See Simpson and Wood, "'A puny thing indeed' – Cheng v The Queen and the Constitutional Right to Trial by Jury", (2001) 29 Federal Law Review 95 at 107-111. ↩
Huddart, Parker & Co Pty Ltd v Moorehead (1909) 8 CLR 330 at 375. ↩
Cheatle (1993) 177 CLR 541 at 560. ↩
Jurors and Juries Consolidation Act 1847 (NSW), s 1; see Cheatle (1993) 177 CLR 541 at 560. ↩
Brownlee (2001) 207 CLR 278 at 290-291 [27]-[30], 301-302 [64]-[67], 331-333 [150]-[157], 342-343 [187]-[191]. ↩
Brownlee (2001) 207 CLR 278 at 288 [20], 303-304 [71]-[72], 331 [149], 341 [183]-[184]. ↩
Katsuno v The Queen (1999) 199 CLR 40 at 65 [52]; cf at 97 [137]. ↩
Re Colina; Ex parte Torney (1999) 200 CLR 386 at 396-397 [24]-[25], 405 [50]; cf at 427 [105]; see also R v Federal Court of Bankruptcy; Ex parte Lowenstein (1938) 59 CLR 556. ↩
R v Gee [2003] HCA 12 at [140]-[142]. ↩
Cheatle (1993) 177 CLR 541 at 548, 550, 552, 562; Brownlee (2001) 207 CLR 278 at 284 [5], 297 [52]. ↩
Cheatle (1993) 177 CLR 541 at 548. ↩
R v Glynn (2002) 82 SASR 426 at 444-445 [95]-[105]; cf at 433-434 [45]-[51]. ↩
Brownlee (2001) 207 CLR 278 at 288-289 [20]-[21], 303-304 [71]-[72], 331 [149], 341 [183]-[184]. ↩
Cheatle (1993) 177 CLR 541 at 560-561; Katsuno (1999) 199 CLR 40 at 64-65 [50]-[51], 69 [67]. ↩
Cheatle (1993) 177 CLR 541 at 549, 560; Brownlee (2001) 207 CLR 278 at 289 [22], 299 [57]. ↩
Patton v United States 281 US 276 at 288 (1930). ↩
(2001) 207 CLR 278. ↩
(2001) 207 CLR 278 at 304 [73] per Gaudron, Gummow and Hayne JJ. Their Honours referred to "reserved" jurors. ↩
(1995) 15 WAR 404 at 415-423, 423-428. ↩
Ah Poh Wai v The Queen (1996) 14 LegRep C24. The Court was constituted by Dawson and McHugh JJ and myself. ↩
Nalson, Trial of Charles I (1684) reported (1649) 4 St Tr 1045; Wedgwood, The Trial of Charles I, (1964) at 107; Kirby, "Trial of King Charles I: Defining Moment for our Constitutional Liberties", (1999) 73 Australian Law Journal 577 at 580-581. ↩
R v Hambery [1977] QB 924 at 928. ↩
Wu v The Queen (1999) 199 CLR 99 at 112 [42]. ↩
Kingswell (1985) 159 CLR 264 at 298-299. ↩
Jurors and Juries Consolidation Act 1847 (NSW). See Woods, A History of Criminal Law in New South Wales: The Colonial Period, 1788-1900, (2002). ↩
Jurors and Juries Consolidation Act 1847 (NSW), s 17. ↩
Cheatle (1993) 177 CLR 541 at 560. ↩
Roberts v Bass (2002) 77 ALJR 292 at 320 [142]-[143]; 194 ALR 161 at 199; cf Banbury v Bank of Montreal [1918] AC 626 at 661-662; Burchett v Kane [1980] 2 NSWLR 266 at 269. ↩
(2001) 207 CLR 278 at 330 [147]. See also Gee [2003] HCA 12 at [142]. ↩
Australian Institute of Judicial Administration, Report on Criminal Trials, Report No 48 (1985) at 5-8. ↩
Wu (1999) 199 CLR 99 at 106-107 [21]. ↩
R v Sherratt [1991] 1 SCR 509 at 524. ↩
s 68(2)(c). ↩
Criminal Code 1985 (Can), s 644(2). ↩
Criminal Code 1985 (Can), s 631(2.1). ↩
Criminal Code 1985 (Can), ss 642.1(1) and (2). ↩
Federal Rules of Criminal Procedure, r 23(b). ↩
Federal Rules of Criminal Procedure, r 24(c)(1). ↩
Federal Rules of Criminal Procedure, r 24(c)(1) and (2). ↩
Federal Rules of Criminal Procedure, r 24(c)(3). ↩
Federal Rules of Criminal Procedure, r 24(c)(3). ↩
eg United States v Houlihan 92 F 3d 1271 (1st Cir 1996). ↩
United States v Olano 507 US 725 at 737 (1993). ↩
8th Circuit Jury Instructions, par 1.08; cf United States v Virginia Erection Corporation 335 F 2d 868 at 872 (1964). ↩
United States v Beasley 464 F 2d 468 (1972). ↩
Juries Act 1974 (UK), s 16(1); Juries Act 1976 (Ir), ss 23, 24; Crimes Act 1961 (NZ), s 374(3); Criminal Procedure (Scotland) Act 1995 (UK), s 90(1); Jury Ordinance (HK), s 25. ↩
United Kingdom, A Review of the Criminal Courts of England and Wales, Lord Justice Auld, (2001), Ch 5 at [20]. ↩
Jury Act 1995 (Q), ss 34(1) and (5), 56(1). ↩
Juries Act 1957 (WA), ss 18(2) and (7) and Criminal Code (WA), s 646. ↩
Jury Act 1899 (Tas), ss 39(2), (6A) and (7). In Tasmania, "reserve" jurors may replace other jurors after the jury's final deliberations have commenced: s 39(4). ↩
[2003] HCA 19. ↩
Juries Act 1927 (SA), ss 6A, 56. ↩
Juries Act 1967 (ACT), ss 8(2) and (3), 31A(1), (4) and (5). ↩
Juries Act 1927 (SA), s 6A(4). ↩
cf Spratt v Hermes (1965) 114 CLR 226 at 244; Cheng (2000) 203 CLR 248 at 291 [126]. ↩
Brownlee (2001) 207 CLR 278. ↩
Wu (1999) 199 CLR 99 at 106 [19], 107-108 [27]; Brownlee (2001) 207 CLR 278 at 303 [70], 330 [147]; cf Ah Poh Wai (1995) 15 WAR 404 at 415-423. ↩
Gee [2003] HCA 12 at [113]. ↩
R v Ng [2002] VSCA 108 at [28]. ↩
cf R v Pan [2001] 2 SCR 344; United States v Houlihan 92 F 3d 1271 at 1287-1288 (1st Cir 1996). ↩
Federal Rules of Criminal Procedure, r 24(c)(3). ↩
(2001) 207 CLR 278 at 289 [22], 298 [53]-[54], 329 [145]-[146]. ↩
Turner, "Polling the Jurors", (1979) New Zealand Law Journal 155 at 156; cf R v Cefia (1979) 21 SASR 171 at 173-175. ↩
R v Fowler [2000] NSWCCA 352 at [47]. ↩
R v Lonsdale [1915] VLR 269. ↩
cf Harris v Caladine (1991) 172 CLR 84 at 150; Polyukhovich v The Commonwealth (War Crimes Act Case) (1991) 172 CLR 501 at 703-704; Nicholas v The Queen (1998) 193 CLR 173 at 207-208 [70]-[72]; Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at 362 [80], 373 [116]. ↩