Alqudsi v The Queen

The applicant, Alqudsi, faced charges in the Supreme Court of New South Wales under the Commonwealth's Crimes (Foreign Incursions and Recruitment) Act 1978. He sought to be tried by a judge alone, relying on provisions of the New South Wales Criminal Procedure Act 1986, as applied by the Judiciary Act 1903 (Cth). The High Court of Australia was required to determine whether these State provisions, allowing for a trial by judge alone, were inconsistent with section 80 of the Australian Constitution, which mandates trial by jury for offences against the Commonwealth tried on indictment.

The central legal issue before the High Court was the interpretation and application of section 80 of the Constitution in the context of a trial on indictment for a Commonwealth offence, particularly in light of state legislation that permitted an accused to elect a trial by judge alone. This required the Court to consider whether the decision in *Brown v The Queen* (1986) 160 CLR 171, which held that section 80 imposed a mandatory requirement for trial by jury that could not be waived by an accused, should be re-examined and potentially overruled. The Court had to decide if the "elective mechanism" provided by the New South Wales legislation was compatible with the constitutional guarantee of trial by jury.

A majority of the High Court answered the question posed in the affirmative, finding that the New South Wales provisions were incapable of being applied to the applicant's trial due to inconsistency with section 80 of the Constitution. The majority reasoned that section 80, as interpreted in *Brown v The Queen*, establishes a mandatory right to trial by jury for Commonwealth offences tried on indictment, which cannot be waived by an accused. While acknowledging that *Brown* could potentially be distinguished on its facts, the majority found that the underlying reasoning regarding the non-waivable nature of the section 80 guarantee was sound and applicable. Consequently, the applicant's motion for a trial by judge alone was dismissed.