The only instance we have been able to find in which it might be said to be common practice to go behind the general verdict and to enquire from the jury the basis on which it was reached is in the case of a verdict of manslaughter, when the jury may have reached their decision on alternative grounds which have been left to them by the judge.'
43 The court having cited Stephens J's acknowledgment of the existence of such a practice in cases of manslaughter in Veen v The Queen (1979) 143 CLR 458 at 466 the court observed that while the power to question the jury as to the basis upon which they brought a verdict of manslaughter has long been acknowledged there has been disagreement as to the wisdom of the practice.
44 It should be noted that Lee CJ at CL in R v Low (1991) 57 A Crim R 8, approved the practice whereas Roden J in R v Petroff (1980) 2 A Crim R 101 at 138-139 criticised the wisdom of the practice.
45 The court expressed the view at 379 that Roden J's reasons in advancing his criticism of the practice were convincing.
46 Roden J's conclusion in Petroff at 138 was as follows:
"The relevant principles regarding jury verdicts in criminal trials I believe to be clear. They can be stated simply. The jury is required to return a verdict, and no more. More may be added by way of rider or recommendation, but ought not to be sought. Provided that the jury's verdict is as a matter of law supportable on the evidence, that is the end of the matter, and no question ought to be asked, as to the grounds upon which the verdict was arrived at as a matter of law, or as to the findings of fact upon which it was based. It is no part of the jury's function to decide questions of fact which are not necessary for the purpose of their verdict. Facts relevant to sentence are for the sentencing judge. His findings must be consistent with the verdict."
47 In Isaacs the court then set out seven considerations which the court stated should lead trial judges to refrain from asking the jury the basis of a verdict of manslaughter, save in exceptional cases.
48 In England, the Court of Appeal in R v Cawthorne [1996] 2 Cr App R (S) 445, their Lordships observed that in many cases there were grave dangers in asking juries how they had reached a particular verdict.
49 I should add that in R v Warner [1967] WLR 1209 Diplock LJ (as he then was) appeared to have approved the practice of asking a jury questions as to the basis of their verdict. At 1213-1214 Diplock LJ seeming to approve of the practice was the subject of doubt as to its correctness.
50 In an article in the Criminal Law Review written by Professor JC Smith [1968] Crim LR 177, Prof Smith held:
"The 'common practice' spoken of by Diplock J certainly seems to be inconsistent with the decision in Larkin. There are certainly serious difficulties in the way of getting the jury's view of the facts. In the present case, for instance, it is conceivable that some of the jury thought manslaughter the correct verdict on the ground of provocation and that others thought that it was the correct verdict on the ground of excessive self-defence. The foreman would be entitled to say that 'guilty of manslaughter' was the verdict of them all; but on what basis should the Judge sentence if he knew of the division of jury opinion."
51 It should be noted that Warner like this case involved a drug offence.
52 Isaacs was, as I have said, a case involving a finding of manslaughter by a jury. That verdict in a case where the appellant had been indicted on a charge of murder resulted from the jury finding, either that the Crown had failed to discharge its onus to exclude provocation or that the accused had succeeded in establishing, on a balance of probabilities, the defence of diminished responsibility. The court was careful to confine its remarks to cases of manslaughter.
53 In the light of the approval given by the court to the reasoning advanced by Roden J in Petroff, it is doubtful whether the power exists in New South Wales in cases where the finding of the jury does not involve manslaughter.
54 If such a power does exist in relation to crimes other than manslaughter the exercise of power is, of course, discretionary. In the instant case no request was made by counsel for the appellant for such a question to be asked.
55 Because the matter is discretionary the absence of such a request at the trial would in most cases result in this Court refusing leave to appeal. However, as this case involves the most severe penalty the law imposes upon a citizen, namely a life sentence, this Court would be loathe to utilise r 4 to refuse leave to appeal.
56 It was submitted that an important reason why his Honour, even though he was not asked so to do by counsel, should have asked the jury as to the basis upon which they found, was that as it was a jury's duty to find the facts which supported a conviction, his Honour by not asking them the suggested question effectively negated the appellant's right to be tried by his peers.
57 Reliance in this regard was placed upon the Magna Carta. In the 1297 version the following extract appears:
"[29] No Freeman shall be taken, or imprisoned, or be disseised of his Freehold, or Liberties, or free Customs, or be outlawed, or exiled, or any otherwise destroyed; nor will we pass upon him, nor condemn him, but by lawful Judgment of his Peers, or by the Law of the Land. We will sell to no man, we will not deny or defer to any man either Justice or Right."
58 This it is said, founded observations to be found in the High Court in R v Kingswell (1985) 159 CLR 264. There Deane J at 319 said:
"In the light of the conclusion which I have reached about the effect of the reference to 'trial on indictment', the starting point of a consideration of the s 80 argument in the present case is that the section is not 'a mere procedural provision'. It embodies a constitutional guarantee of trial by jury in any case where a person is charged by the Commonwealth or an agency of the Commonwealth with a serious offence against a law of the Commonwealth. The content of that guarantee (where applicable) is not to be determined on the basis that the guarantee itself can be avoided completely by a procedural technicality so that the wider the content of the guarantee in a case to which it is applicable the stronger will be the incentive to avoid the guarantee altogether. To the contrary, the conclusion that the guarantee represents an effective restrain upon Commonwealth legislative power necessitates the approach that the words of the fundamental law which it embodies must, in accordance with settled principles of constitutional interpretation, be given their full force and effect."
59 Earlier, reference had been made by Gibbs CJ, Wilson, Dawson JJ to the rule adumbrated by Darling J in R v Bright [1916] 2 KB 441 at 444-445 where he 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."
60 Gibbs CJ, Wilson and Dawson JJ at 280 then went onto say:
"The rule of practice laid down in R v Bright is consistent with the fundamental principle that questions of fact affecting the liability of the accused to punishment should be decided by the jury when the trial is on indictment. The position is different when the circumstances said to aggravate the offence are relevant only to the exercise of the sentencing discretion of the judge. Although it would be an exaggeration to say that the rule of practice in R v Bright has been generally applied in cases where the circumstances of aggravation increase the maximum punishment but do not change the offence, it is a beneficial rule and ought generally to be followed."
61 It was put that what had fallen from the High Court in Kingswell supported the general proposition that by finding the facts of the matter without first making the subject enquiry of the jury, Badgery-Park J fell into error. Furthermore, it was submitted that the decision of this Court in R v Martin [1981] 2 NSWLR 640 was wrong.
62 In Martin's case Hope JA delivering the lead judgment of the court, found:
"In criminal proceedings where the nature of the charge and the nature of the verdict of the jury do not identify for the judge or for anyone precisely what facts the jury has accepted as being proved to its satisfaction beyond reasonable doubt, the trial judge should, as the basis for sentence, form his own view of the facts, within the ambit of the verdict and of the charge; and in forming that view he must be satisfied beyond reasonable doubt."
63 At 643 he went on further to observe:
"Accordingly, the learned trial judge was in error in coming to the conclusion that he was bound to act on the basis of that version of the facts which was most favourable to the accused. He was bound to look at the evidence and to determine for himself, upon the criminal onus, what facts he should act upon."
64 It was thus submitted that in the light of what had fallen from the High Court in Kingswell, Martin's case was wrongly decided. Let me say at once that Badgery-Parker J in adopting the course which he did in fact finding did not transgress in any way the principle adumbrated in Martin's case.
65 It must be remembered that in Kingswell the High Court was dealing with the matter of statutory aggravation of an offence created by s 233B(1)(cb) and the application of s 235 of the Customs Act to the penalty available for that offence in certain circumstances.
66 Not only am I of the view that the considerations in Kingswell are not relevant to the matters raised here but the principles stated in Kingswell do not offend what fell from Hope JA in Martin and what, may I add, fell from the court at 377-378 in Isaacs.
67 The applicant was, in fact, as the Magna Carta dictated, tried by his peers and found guilty of an offence by them. It should be noted that the Magna Carta in the relevant extract says not only that a man will not be condemned "but by lawful Judgment of his Peers" but also it adds, disjunctively, "or by the Law of the Land."
68 What Badgery-Parker J did in this case was, in my view, to correctly apply the law of the land in carrying out his sentencing function in the manner in which he did.
69 Even if there is a discretionary power to ask a jury in a case involving this offence, a question, I am of the view that Badgery-Parker J did not err in not asking such a question. Accordingly this head of appeal must fail.
70 The above discussion involves, of necessity, a consideration of the further submission made that the approach taken by Badgery-Parker to determine the appropriate factual basis for sentencing was in error.
71 As I have said his Honour followed the approach approved of in Martin and in my view in Isaacs and that he was not obliged as was submitted, to find the facts consistent with the alternative case.
72 In this regard it was strongly submitted that because the applicant's motive was to protect his informants, a sentence of three to five years would have been appropriate.
73 It is implicit from the jury's finding that even if they had found the applicant guilty on the alternative basis in so doing they found that the applicant intended to take part in the unlawful importation of heroin. Motive could have formed no part of their consideration.
74 The question of motive was raised by senior counsel for the applicant during the sentencing proceedings. His Honour's findings indicate emphatically that he did not accept that the applicant's conduct was motivated by ultraism. This submission must also thus fail.
75 Finally, it was submitted that s 61 of the Criminal Appeal Act 1912 applied to this case. It was urged that what transpired was a wrong decision on a question of law involving a substantial miscarried of justice. Substantial because it was put that the difference between the sentence the applicant would have received had his Honour utilised the alternative basis of conviction in finding the facts, resulted in him receiving a sentence which was far in excess of that which he in fact received.
76 In the light of the view I have already expressed, namely that his Honour was not in error, this submission must, of course, fail.
77 Accordingly while because of the seriousness of the matter I would grant leave to appeal, I would dismiss the appeal.