Brownlee v The Queen

Case [2001] HCA 36

HIGH COURT OF AUSTRALIA

GLEESON CJ,
GAUDRON, McHUGH, GUMMOW, KIRBY, HAYNE AND CALLINAN JJ

ANTHONY JOHN BROWNLEE   APPLICANT

AND

THE QUEEN               RESPONDENT

Brownlee v The Queen
[2001] HCA 36
21 June 2001
S82/1998

ORDER

1.        Application for special leave to appeal granted.

2.        Appeal treated as instituted and heard instanter and dismissed.

On appeal from the Supreme Court of New South Wales

Representation:

A W Street SC with G D Wendler for the applicant (instructed by Galloways)

P S Hastings QC with R J Bromwich for the respondent (instructed by Commonwealth Director of Public Prosecutions)

Interveners:

D M J Bennett QC, Solicitor-General of the Commonwealth with C Traill and J S Stellios, intervening on behalf of the Attorney-General of the Commonwealth (instructed by Australian Government Solicitor)

D Graham QC, Solicitor-General for the State of Victoria with R M Doyle intervening on behalf of the Attorney-General for the State of Victoria (instructed by Victorian Government Solicitor)

R J Meadows QC, Solicitor-General for the State of Western Australia with J C Pritchard intervening on behalf of the Attorney-General for the State of Western Australia (instructed by Crown Solicitor for Western Australia)

B M Selway QC, Solicitor-General for the State of South Australia with C D Bleby intervening on behalf of the Attorney-General for the State of South Australia (instructed by Crown Solicitor for South Australia)

M G Sexton SC, Solicitor-General for the State of New South Wales with K M Guilfoyle intervening on behalf of the Attorney-General for the State of New South Wales (instructed by Crown Solicitor for New South Wales)

Notice:  This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Brownlee v The Queen

Constitutional law – Trial by jury – State law permitting reduction during trial of number of jurors – State law permitting separation of jurors after jurors retire to consider verdict – Whether trial "by jury" within meaning of s 80 of Constitution.

Constitutional law – Trial by jury – Waiver of requirements by accused –Whether waiver possible – Whether waiver in fact – Whether leave required to reconsider past authority on constitutional question.

Words and phrases – "trial ... by jury".

Constitution, s 80.
Judiciary Act 1903 (Cth), s 68.
Jury Act 1977 (NSW), ss 22(a)(i), 54(b).

  1. GLEESON CJ AND McHUGH J. The applicant was charged with conspiracy to defraud the Commonwealth contrary to s 86A of the Crimes Act 1914 (Cth). He was tried, on indictment, in the District Court at Sydney, before Luland DCJ and a jury. He was convicted, and sentenced to a term of imprisonment. Having appealed unsuccessfully against his conviction to the New South Wales Court of Criminal Appeal[1], he now seeks special leave to appeal to this Court.

  2. The alleged offence being against a law of the Commonwealth,
    s 68 of the Judiciary Act 1903 (Cth), subject to s 80 of the Constitution, applied to pick up the…

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AGLC
Brownlee v The Queen [2001] HCA 36
Case
[2001] HCA 36
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered an application for special leave to appeal in the matter of *Brownlee v The Queen*. The applicant, Anthony John Brownlee, was charged with conspiracy to defraud the Commonwealth in the District Court of New South Wales. The trial commenced with a jury of 12, which was later reduced to 10 jurors before retiring to consider its verdict. Crucially, the jury was permitted to separate after each day's deliberations and over a weekend.

The central legal issues before the High Court were whether a New South Wales law permitting the reduction in the number of jurors during a trial, and another law allowing jurors to separate after retiring to consider their verdict, were compatible with the constitutional guarantee of a "trial by jury" under section 80 of the Australian Constitution. The Court also considered whether the accused could waive such constitutional rights and, if so, whether a waiver had occurred in this instance.

The Court reasoned that the historical development of the institution of trial by jury indicated that absolute sequestration of jurors was no longer considered an essential element. While acknowledging that jury sequestration historically promoted deliberation and prevented outside influence, the Court noted that modern tendencies favoured trusting jurors to heed judicial directions and resist external pressures. The Court found that the essential feature of a trial by jury, as protected by section 80 of the Constitution, was that the jury should deliberate without fear or favour and without undue influence, in accordance with contemporary community standards. The Court concluded that the New South Wales legislation permitting juror separation and reduction in number did not offend this constitutional guarantee.

The High Court granted special leave to appeal, but treated the appeal as instituted and heard instanter, ultimately dismissing the appeal.

Orders

Orders of the court

1. Application for special leave to appeal granted.

2. Appeal treated as instituted and heard instanter and dismissed.

Background

Background to the litigation

Looking at the subject shortly after the commencement of the Australian Constitution, but from a federal and State perspective in the United States, Professor A W Scott made observations which are pertinent to the present application. He wrote[20]:"Perhaps the most striking phenomenon in the history of our procedural law is the gradual evolution of the institution of trial by jury. The jury as we know it today is very different from the Frankish and Norman inquisition, out of which our modern jury has been slowly evolved through the centuries of its 'great and strange career.'[21] It is different from the assizes of Henry II, that great reformer of procedural law. It is different from the trial by jury known to Lord Coke and to the early American colonists who carried to a New World the principles of English jurisprudence.[22] 'To suppose,' says Edmund Burke, 'that juries are something innate in the Constitution of Great Britain, that they have jumped, like Minerva, out of the head of Jove in complete armor is a weak fancy, supported neither by precedent nor by reason.'[23] In England there has been a wonderfully steady and constant development of trial by jury from the Conquest to the present day. In this country surely it was not, by the adoption of our constitutions, suddenly congealed in the form in which it happened to exist at the moment of their adoption."[20]"Trial by Jury and the Reform of Civil Procedure", (1918), 31 Harvard Law Review 669 at 669‑670. See also Lipohar v The Queen (1999) 74 ALJR 282 at 296‑297 [81]-[82]; 168 ALR 8 at 28‑29.[21]Thayer, A Preliminary Treatise on Evidence at the Common Law, (1898), Chs 2‑4.[22]In the seventeenth century the jurors still were expected to decide on their own knowledge of the facts and not merely upon the evidence. Thayer, A Preliminary Treatise on Evidence at the Common Law, (1898) at 170‑174.In the early colonial legislation we see recognition of the function of jurors as witnesses. "It is very requisite that part of the jury, at least, come from [the neighbourhood where the fact was committed] who by reason of their near acquaintance with the business may give information of divers circumstances to the rest of the jury." 2 Hening's Va Stat L 63.[23]Burke, The Works of the Right Honourable Edmund Burke, 3 ed (1869), vol 7 at 115.The facts and the legislation The Commonwealth Director of Public Prosecutions presented in the District Court of New South Wales in Sydney an indictment charging Stephen Wayne Beaufils and Anthony John Brownlee with conspiracy to defraud the Commonwealth contrary to s 86A of the Crimes Act 1914 (Cth)[24]. The trial commenced on 29 April 1996 after the empanelment of a jury of 12. The jury, which by then had been reduced to 10 in number, retired to consider its verdict on the afternoon of Wednesday, 3 July 1996. They returned their verdict on the afternoon of Monday, 8 July. The jury had been permitted to separate after each day's deliberations and over the weekend of 6 and 7 July.[24]Section 86A was repealed by s 8 of the Crimes Amendment Act 1995 (Cth), which substituted the present s 86.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

GLEESON CJ HUGH J GAUDRON, GUMMOW AND HAYNE JJ KIRBY J CALLINAN J
The state of affairs at the time of federation which is thus disclosed suggests that absolute sequestration of the jury was no longer regarded as an essential element of trial by jury; likewise, the necessity to swear in a fresh jury if a juror died or was taken ill.Conclusions It may be accepted that what in the past was the strict sequestration of the jury promoted deliberation and attention to the evidence, without distraction of other material not in evidence and the threat of influence by outsiders upon that deliberation. This supported the determination of guilt according to law, with the interposition between the accused and the prosecution of "the commonsense judgment of a group of laymen"[64].[64]Williams v Florida 399 US 78 at 100 (1970). However, strict confinement may have retarded rather than encouraged measured group deliberation and, in former times, appeared to be calculated to pressure jurors to reach a unanimous verdict and to do so with expedition. In modern times, the tendency of the law, marked at the time of federation, has been to place more reliance upon the capacity of jurors to heed the directions of the presiding judge as to the conduct of their deliberations, to attend to the evidence and to resist outside influences. We agree with the manner in which the current position was expressed by Grove J in the Court of Criminal Appeal. His Honour accepted the proposition that it is an essential feature of the jury system that the jury should deliberate upon its verdict uninfluenced by an outsider to the trial process. He added[65]:"The argument that total and continuing isolation is essential to the meaning of the expression 'trial by jury' where used in s 80 of the Constitution rings a little hollow however in the age of mass communication. Actual and potential threats to jury integrity may arise during separations before retirement for deliberation and there is apparent community acceptance that safeguards inherent in the trial process and the supervision of the presiding judge suffice. I perceive no vice in allowing the members of a deliberating jury being dispersed to go about their lawful occasions and reassembling in traditional privacy. It is to be noted that such dispersal occurs as a result of the exercise of discretion in each case and any relevant prevailing circumstances must necessarily be taken into account in deciding whether the jury should or should not remain sequestered.In my view an understanding and construction should be given to the words in s 80 that the framers of the constitutional guarantee intended that a jury exercise its function without fear or favour and without undue influence in the context of community standards and expectations as current from time to time. Section 54 of [the Jury Act] is not incompatible with the constitutional guarantee."[65](1997) 41 NSWLR 139 at 145‑146. There remains the applicant's complaint respecting s 22 of the Jury Act. The origin of the requirement, currently expressed in s 19 of the Jury Act, that the jury in proceedings for the prosecution of offenders on indictment consist of 12 persons rather than some greater or lesser number is lost in the mists of Anglo‑Saxon and then Anglo‑Norman life and experience[66]. In modern times, the requirement that a jury of 12 be empanelled for a trial on indictment (which may be assumed, for present purposes, to be a central characteristic of trial by jury and mandated by s 80 of the Constitution) is to be supported on utilitarian grounds. It ensures that the trial gets underway with fact‑finding entrusted to a group of laymen which is large enough to promote measured deliberation and indicates to the community sufficient participation by its members to vindicate the outcome.[66]Forsyth, History of Trial by Jury, (1852) at 238‑241.

Ratio Decidendi

Legal Principle Established

Established by: GLEESON CJ, HUGH J, GAUDRON, GUMMOW AND HAYNE JJ, KIRBY J, CALLINAN J

Subsequently, in Katsuno v The Queen[48], Gaudron, Gummow and Callinan JJ, with whose judgment on this point Gleeson CJ agreed, set out that passage, emphasising the third sentence, with its reference to random and impartial selection. Their Honours decided that the jury in Katsuno had not been unrepresentative and had been selected from a panel randomly chosen; breaches of the Juries Act 1967 (Vic), the State law rendered applicable there by s 68 of the Judiciary Act, had occurred but they had taken place at a point anterior to the actual selection of the jury and had not denied to the accused his constitutional right to trial by jury[49]. On the other hand, in Spies v The Queen[50], Gaudron, McHugh, Gummow and Hayne JJ said there was a real question whether s 68(2) of the Judiciary Act would, consistently with s 80 of the Constitution, "pick up" provisions of State criminal appeal statutes which empowered courts of criminal appeal to substitute, for the verdict of guilty found by the jury in respect of one offence, a verdict of guilty of another offence; the effect of such provisions appeared to be to substitute trial by judge for trial by jury.[48](1999) 199 CLR 40 at 64 [50].[49](1999) 199 CLR 40 at 65 [52].[50](2000) 74 ALJR 1263 at 1272‑1273 [47]; 173 ALR 529 at 542.Development before federation As with the legal terms "a writ of … prohibition" in s 75(v) of the Constitution and "patents of inventions" in s 51(xviii), an appreciation of the essential characteristics of the legal institution identified as "trial by jury" in prosecutions on indictment is assisted by an understanding of that legal institution at the time of the commencement of the Constitution[51]. That understanding may assist in a perception of the ends sought to be advanced or achieved by the sequestering of the jury and the insistence upon a verdict returned by 12 jurors. The question then is whether these ends are such as to give rise to essential features of the trial by jury stipulated by s 80.[51]Re Refugee Review Tribunal; Ex parte Aala (2000) 75 ALJR 52 at 57 [24]; 176 ALR 219 at 225. At the time of federation, the institution of jury trial had undergone and was continuing to undergo development in various presently significant respects. In England, s 1 of the Juries Detention Act 1897 (UK) provided:"Upon the trial of any person for a felony other than murder, treason, or treason felony, the court may, if it see fit, at any time before the jury consider their verdict, permit the jury to separate in the same way as the jury upon the trial of any person for misdemeanour are now permitted to separate."Shortly thereafter, provisions to similar effect were enacted in Western Australia by s 25 of the Jury Act 1898 (WA) and in South Australia by The Juries Separation Act 1905 (SA). Of such developments, Darling J later said in R v Twiss[52] that, although "in the whole course of English history down to 1897 they had been kept locked up", the tendency of legislation had been "to trust jurymen more and to relax the old rule with regard to them."[52][1918] 2 KB 853 at 858.