Brownlee v the Queen S82/1998

[2000] HCATrans 681

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S82 of 1998

B e t w e e n -

ANTHONY JOHN BROWNLEE

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GLEESON CJ
GAUDRON J
McHUGH J
GUMMOW J
KIRBY J
HAYNE J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 16 NOVEMBER 2000, AT 12 NOON

Copyright in the High Court of Australia

MR A.W. STREET, SC:   May it please the Court, I appear with my learned friend, MR G.D. WENDLER, for the applicant.  (instructed by A.J. Brownlee)

MR P.S. HASTINGS, QC  If it please your Honours, I appear with my learned friend, MR R.J. BROMWICH, for the respondent.  (instructed by the Commonwealth Director of Public Prosecutions)

MR D.M.J. BENNETT, QC, Solicitor-General of the Commonwealth:   May it please the Court, I appear with my learned friends, MS C. TRAILL and MR J.S. STELLIOS, for the Attorney‑General of the Commonwealth intervening.  (instructed by Australian Government Solicitor)

MR D. GRAHAM, QC, Solicitor‑General for the State of Victoria.   May it please the Court, I appear with my learned friend, MS R.M. DOYLE, for the Attorney-General for the State of Victoria intervening.  (instructed by the Victorian Government Solicitor)

MR R.J. MEADOWS, QC, Solicitor-General for the State of Western Australia:   May it please the Court, I appear with my learned friend, MS J.C. PRITCHARD, on behalf of the Attorney-General for the State of Western Australia intervening.  (instructed by the Crown Solicitor for Western Australia)

MR B.M. SELWAY, QC, Solicitor-General for the State of South Australia:   May it please the Court, I appear with my learned friend MR C.D. BLEBY, for the Attorney-General for the State of South Australia intervening.  (instructed by the Crown Solicitor for South Australia)

MR M.G. SEXTON, SC, Solicitor-General for the State of New South Wales:   If the Court pleases, I appear with my learned friend, MS K.M. GUILFOYLE, for the Attorney‑General for New South Wales who intervenes in the proceedings.  (instructed by the Crown Solicitor for New South Wales)

GLEESON CJ:   Yes, Mr Street.  Mr Street, we will be adjourning at 1 o’clock.

MR STREET:   Your Honours, the principal issue in this case is whether section 68 of the Judiciary Act 1903 operated at the trial of the applicant to pick up section 22 and section 54 of the Jury Act 1977, New South Wales. Your Honours, we say that that reduces to two ultimate issues: first, whether section 22 of the Jury Act 1977, New South Wales is inconsistent with the imperatives in section 80 of the Constitution; and secondly, whether section 54 of the Jury Act 1977 is inconsistent with the imperatives in section 80 of the Constitution.

Your Honours, in a nutshell, we submit that one of the imperatives within section 80, consistent with this Court’s decision in Cheatle, is that the jury for a trial by jury must consist of no less than twelve. We also submit that in this case, where the trial of the applicant was clearly won upon indictment, it is one where there is a constitutional guarantee that operates consistent with the command of section 80.

KIRBY J:   Is the word “imperative” that you have used throughout your written submissions and just now a word the Court has used?

MR STREET:   It was used, your Honours, I think, in Cheng and it is one I seek to adopt as an essential, inviolable feature.

KIRBY J:   Yes, and is it irrelevant that you either applied for or joined in the application to discharge the jurors in question?

MR STREET:   Your Honours, we would say, ultimately, that is irrelevant. It is patent that there was no, what I might describe as, identification to the accused of a right under section 80 to a trial by a jury of 12 and absence that, there could not be an informed consent for the purpose of section 80. But, your Honours, we also submit, and I will expand on it shortly, that in any event in relation to what I might call the eleventh juror, an objection was taken to the effect that the jury should be discharged and that objection was one that was maintained, not abandoned, and it, in essence, amounts to an objection that preserves the entitlement to challenge, even if there were some question about, what I might describe as, the application of Brown.

GLEESON CJ:   We had better get the facts straight about that, Mr Street.  Something may turn on the detail of that if the Solicitor for the Commonwealth is successful in his application to reopen Brown.

MR STREET:   Quite, your Honour.  Then I will come to the facts now, if I may.  The applicant was arraigned on 29 April 1996.  Following the presentation of the indictment the applicant entered a plea of not guilty, thereby joining issue and putting himself upon his country.  Following that, the trial judge, consistent, I think, with ordinary practice, identified to the panel in attendance the likely duration of the trial – some six weeks at that point of time – following which a jury of 12 were empanelled.

We say for the purpose of the command under section 80 that upon arraignment, that is the joinder of issue by the plea of not guilty, the command in section 80 applied. The applicant was the subject of a trial that continued until 8 July 1996.

On 23 May 1996 two jurors were discharged.  I will take your Honours in a moment to the appeal book entries relating to that matter.  One juror was discharged because she had made arrangements for travel overseas.  A second juror was discharged because he was a farmer, self‑employed and, again, had been told before being empanelled that the duration was likely to be six weeks and was content with that but not content for a longer period which became manifest by 23 May 1996.

GLEESON CJ:   What day of the trial was that?

MR STREET:   Your Honour, it was approximately three weeks.  I have not actually got the precise day.

GLEESON CJ:   You can tell us after lunch.

MR STREET:   I will seek to have that ascertained.  Your Honours, following the discharge of those two jurors, we say that, in essence, the applicant was exposed to an unconstitutional trial and on 3 July 1996 the jury retired to deliberate in relation to its verdict.

GLEESON CJ:   Just before you move on to that, I thought you indicated a little earlier that on 23 May your client applied for a discharge of the entire jury.

MR STREET:   He did, your Honour, and I was going to take your Honours to the evidence.  If it is suitable, I will do so now.  Can I just indicate, the indictment, the first page appears at page 1, and the back sheet to the indictment appears at page 38.  The sequence of events relating to the discharge of the jurors, if I can take your Honours to it.  If one goes to page 7 of the appeal book, your Honours will see at about line 5, the identification of the commitment to go overseas by one of the jurors.  If one then goes to page 10 of the appeal book, one sees at line 20, Mr Kennedy, who appeared for my client, put a submission that is identified at about lines 19 and 20 in relation to the potential discharge which had been identified of a further person on page 9, that:

in the circumstances –

and we would respectfully submit that embraces the whole of the circumstances, including reference that had earlier made to the potential of a right relating to section 80 of page 6 –

his Honour should discharge the jury now.

Following that submission, his Honour made a direction, plainly inconsistent with that submission, at page 12, line 5, where he directed the juror to enter the witness box.  Following that evidence – and obviously, we respectfully submit, not withdrawing the proposition that the jury should have been discharged – Mr Kennedy does say, based on that evidence, that he should be discharged.  It is apparent, though, that that does not, in our respectful submission, amount to a withdrawal of the earlier objection.  That that is so, your Honours, appears at page 15, if I can take your Honours to it, at line 30 – and this is the judgment in which he came to the conclusion that the eleventh juror should be discharged – he says:

Mr Kennedy continues his stance that I should discharge the jury.

GLEESON CJ:   So, your proposition, as I understand it, is that whilst it is true to say that one of the jurors was discharged with the consent of the accused, and another one was discharged on the application of the accused, that is only part of the truth.  The remainder of the truth is that your client was maintaining a stance that the entire jury should be discharged.

MR STREET:   Yes, your Honour.  That is our position, and we also maintain the submission I earlier identified, namely, in any event, we would respectfully submit an informed consent would be required.

GLEESON CJ:   If that is right, that might mean that the waiver issue in the Brown issue might not arise on the facts of the case.

MR STREET:   We would respectfully submit that is so.  Your Honours, it has been drawn to my attention, and I should draw it to your Honours’ attention, by the respondent, that if one goes to page 10, the first line, there is a reference to:

Mr Finch submitted that the man who is self employed should be discharged.

I accept the proposition that has been raised with me just before your Honours adjourned, that it is, in fact, Mr Kennedy who made that statement.  That does not, though, in our respectful submission, remove the force of the submissions I have put in relation to the discharge in the circumstances and, in our respectful submission, the non-application of the Brown question.

GUMMOW J:   So, is it agreed that we should treat the transcript as if the first line on page 10 had “Kennedy” instead of “Finch”?

MR STREET:   He was for the applicant, yes, your Honour.

GUMMOW J:   But is it agreed?

MR STREET:   Well, your Honour, it was raised with me by the respondent.  If anyone else wishes to take issue with it, your Honour, I am responding to the invitation of the respondent that that ‑ ‑ ‑

GLEESON CJ:   You agree with it, because it is sought to be used against
you.

MR STREET:   I do.  I think it is.  So, your Honours, we would respectfully submit this is not a case where the question of Brown arises for that reason, quite apart from obviously contending to the extent we need to and we will address it in reply if it arises, that Brown is in any event correct.

Your Honours, I was seeking to deal with the sequence of events that occurred leading up to the conviction on 8 July 1996. On 3 July the jury retired to commence their deliberations. On the afternoon of 3 July they were allowed, pursuant to section 54 of Jury Act, to separate. On the afternoon of Thursday 4th, they were again allowed to separate pursuant to section 54. On the Friday 5th, they were again allowed to separate pursuant to section 54, over the whole weekend.

KIRBY J:   Did you object to that?

MR STREET:   Your Honours, I cannot identify any objection in the transcript.

KIRBY J:   It may be that the question of waiver will arise in that respect.

MR STREET: It may be, your Honours, yes. To the extent that it is of moment, it was obviously the 6th and 7th, Saturday and Sunday, of July that the jury were allowed to remain separated and then they returned on Monday, the 8th, and convicted the applicant. Your Honours, the offence of which the applicant was arraigned was one under section 68A, as it then was, of the Crimes Act 1914. It provided for a punishment of $50,000 or 5 years imprisonment. Your Honours, I have handed up a copy of section 68A amongst the materials – I am sorry, I said 86A, I apologise, your Honours.

KIRBY J:   It is 86A?

MR STREET: Section 86A, and it has since been replaced I think by a combination of amendments to section 29D and section 86. Your Honours, if I could indicate that the sequence that we wish to pursue in developing our submissions is to identify first, your Honours, the significance of, if I can put it this way, the number of jurors, for the purpose of section 80, and what I might describe as the practical considerations in that regard. We would respectfully submit then, and seek to develop the submission, consistent with Cheatle, that principle, history and authority supports an essential feature or an imperative being 12 jurors.

Then, your Honours, we would seek to develop, in relation to the proposition of principle, the proposition that the correct application of the interpretational principle for a constitutional provision supports the applicant’s argument of an imperative being 12. In that regard, your Honours, we seek to expand upon, obviously, what we would say the imperatives are, so far as that is a question that arises, and if I could indicate, your Honours, we have actually handed up a piece of paper that summarises what we would say those imperatives are. To the extent of the interpretational principle that we say should be applied to a provision such as section 80, we do seek, to the extent necessary, leave to challenge the decisions that would restrict the scope of section 80 as a fundamental constitutional guarantee ‑ ‑ ‑

GUMMOW J:   Well, just a minute. Section 4G applied in this case, did it not, of the Crimes Act?

MR STREET: It did, your Honour, and section 4A. Section 4G obviously identified that this was a trial or indictment and that is why I said at the outset that we would respectfully submit that, in any event, the constitutional guarantee must have operated for the benefit of the applicant in this case.

GUMMOW J:   Yes, well, if there is a constitutional guarantee, it has been observed in that respect by the Parliament.

MR STREET: Your Honour, to the extent, though, that section 68 operates to pick up section 22 and ‑ ‑ ‑

GUMMOW J:   Well, that is another question.

MR STREET: Well, your Honours, in so far as one then turns to what I described as the ultimate issues, as to whether section 22 is inconsistent with the imperatives under section 80, we respectfully submit that the correct construction of section 80 becomes material.

GUMMOW J:   Yes.

KIRBY J: Section 80 is not addressed in terms of “no law shall be made by the Parliament which provides other than trial by jury”. It is that such a trial as there defined “shall be by jury”.

MR STREET: Yes, your Honours. We respectfully submit though, when one comes to look at section 80, the type of principles that should be applied are those identified by Justice Deane in Street v The Queensland Bar Association and by Justice Gaudron in relation to a constitutional guarantee, and that is of significance in relation to what we respectfully submit the imperatives that we would say would operate.  To the extent we do not need to go that far, your Honours, we maintain the submission based on what I might describe as the scope left within Cheatle itself.

GLEESON CJ:   I presume that if it had not been for section 80 no one would have denied that your client was tried by jury? I mean, if he was not tried by jury, how was he tried?

MR STREET:   Well, your Honour, we respectfully submit that it was an unconstitutional trial.

GLEESON CJ:   I understand that and I am not intending to suggest an answer to the critical question but a way of approaching a consideration of the critical question is that one might start with the proposition that your client was tried by jury, according, for example, to the standards of procedure that are adopted in most Australian jurisdictions.

MR STREET: Well, your Honour, we would respectfully submit he was tried by two juries, first, the jury of 12 up until 23 May and then a differently constituted jury from there on. We would respectfully submit it could not be said in this case that he was tried by a jury within the command of section 80.

GLEESON CJ:   I understand the latter part of your submission but it follows then, does it not, that you must be saying that the expression “Trial by jury” in section 80 means something different from the meaning that expression has in ordinary parlance when referring, for example, to the ordinary administration of criminal justice in New South Wales.

MR STREET:   Well, your Honour, we would respectfully submit ‑ ‑ ‑

GLEESON CJ:   I mean by that that apart from section 80 it would never have occurred to anybody to deny that this was a trial by jury.

MR STREET:   Your Honours, to the extent that it is simply being classified as a trial by jury without law we would have said it is one which offended the - what I might describe as the essential or common law features as at 1900 which were within the connotation of trial by jury.

HAYNE J:   And what was the common law to which you refer at Federation where I think most, if not all of the colonies, had statutory regulations and statutes regulating juries, selection of juries, trial by jury?  What is the relevant common law.

MR STREET: Your Honours, we would respectfully submit that within section 80 what it was intended to pick up was what was promoted by the concept of trial by jury and ‑ ‑ ‑

HAYNE J:   Well, in at least three colonies, save for capital cases, the concept of empanelling a jury of 12 on a criminal inquest, and if needs be discharging some along the way, was recognised in the colonial statutes.

MR STREET: But, your Honour, what we would respectfully submit is that the command one finds within section 80 is not to be construed by reference to State Acts.

HAYNE J:   But you refer to it being construed by common law notions.

MR STREET:   Yes, your Honour, because ‑ ‑ ‑

HAYNE J:   What are the common law notions?  The common law of what, where and how established?

MR STREET:   Well, your Honours, we would embrace what was said, in essence, in R v Snow by Chief Justice Griffith and that it is the case that trial by jury in section 80 connoted or embraced what was meant by that expression within the common law of England at that time and not what I might describe as within a limitation of a particular State Act, whether it was one for a capital punishment or not. So that when one comes to look at section 80 for the purpose of construction it may well be that there are State Acts that had provisions that outside capital punishment may have permitted a lesser number but it was not the State Acts that the command was seeking to protect.

In our respectful submission, section 80 was intended to be both a restraint on legislative power and a restraint on judicial power, as well as being a protection for people of particular States who have an interest in respect of an alleged offence committed within that state to have the offence tried in that state and, your Honours, we will seek to develop that, if I can, in due course.

Your Honours, coming back if I may to the first matter, which we have touched upon substantially in our outline of argument, namely the importance of, and difficulty in obtaining, 12 jurors to agree to the requisite onus that the prosecution carries to a unanimous decision, it may, and I do not intend it in any way without due respect, be useful to focus upon the difficulty one finds, even in the exercise of judicial power, in achieving a unanimity of three or a unanimity of five or, on rare occasions, a unanimity of seven.  It has obviously been achieved in relation to cases like section 117 and Cole v Whitfield, but that unanimity, and that difficulty of obtaining unanimity, is a matter that is one which is of significance in relation to the confidence that is reposed, and the weight that that unanimity carries, with the public.  All the more so with a jury.  The unanimity of 12 minds being persuaded to the requisite degree of proof beyond reasonable doubt or coming to a unanimous decision of a failure to achieve that, is one which carries, obviously, great weight and significance in terms of acceptance and confidence by the public.

KIRBY J:   Well now, the court has said that an essential element is not property qualification or gender.

MR STREET:   Quite right, your Honour.

KIRBY J:   How does one draw the line between those elements, which historically, and if it be relevant in 1900, were a feature of jury trial, I think throughout Australia, and those elements which are now in question, separation and majority verdicts or not majority verdicts and jury ‑ ‑ ‑

MR STREET:   Your Honours, I think it was in Thompson v Utah in the United States cases, which are referred to in Quick v Garran’s annotations, that there is the distinction between what is described as mere detail, and essential features, and we would embrace to the extent that one is distinguished between, what we would call, detail and an essential feature. If one wants to call the detail a feature, so be it, but there is a distinction, we respectfully submit, between something that is an imperative for the purpose of section 80 and inviolable because of its significance and importance ‑ ‑ ‑

KIRBY J:   But how do we do that except ‑ I mean, is it just what a majority of the Justices of this Court happen to think is really and truly essential or is there some bright line that distinguishes, say, why it can nowadays be men and women, whereas that was a relatively recent ‑ ‑ ‑

MR STREET:   Your Honours, we would have said there is a clear bright line and we would hope that it is not by majority but unanimous, but, in that regard, we would have said first of all, when one looks to identify the content of what are essential features, one comes first and foremost, and perhaps I will just take your Honours to the single page document which we handed up as the “Applicant’s Essential Features”, we would respectfully submit the first and most important essential feature is that the jury comprises 12.  If it does not comprise 12 persons, consistent with the line of reasoning in Cheatle and the like, it cannot be representative as a cross-section of the community.  It is the number 12 that ensures that representative quality, which Justice ‑ ‑ ‑

KIRBY J:   I know you say that, and you can keep saying it and repeating it, but what I am trying to get clear in my mind, if the criterion is “essential feature” – I mean, when I was growing up it was “gentlemen of the jury”, it was males.  Why did that drop out and yet 12, as a number, stays?

MR STREET:   Your Honours, one finds replete in the decisions ‑ ‑ ‑

GAUDRON J:   It may be that it did not simply drop out but that section 80, if the jury is to be representative of the community, a jury which was comprised of only men who were eligible as jurors would not satisfy the criterion and that, in fact, is said in Cheatle.

KIRBY J:   Yes, and that abandons the 1900 search immediately.  Immediately.

MR STREET:   Your Honours, we would respectfully submit that another way of achieving that result in the way we would have respectfully submitted it would have been achieved is simply that the expression of “his” or “men” as found at that time is one which was intended to embrace a wider category of persons, albeit that you may have had particular statutes that limited the qualifications to gentlemen.  But the common law, we would respectfully submit, did not have such a distinction in itself to the extent that 12 is of the moment.

Your Honours, in relation to those features though, and finding a bright line, what we would respectfully submit is the first essential inviolable feature of section 80 is, in fact, the number of jurors – 12 jurors – and there is little point in having unanimity as a matter of essential, inviolable feature if it is not unanimity of a number of persons and an identified number of persons.

HAYNE J:   How do you take account then of the common usage in relation to civil inquests of a jury of six.  True it is, we are in the realm of discourse of criminal inquests but the expression “jury of six” is well known, has been well known for well over a century.

MR STREET:   Your Honour, we respectfully submit that what one is confined to here is simply a criminal trial and the words “upon indictment” in section 80 make that clear so that we would respectfully submit that a question such as a civil offence or the like is not one that arises in relation to section 80.

GLEESON CJ:   One of the things that you have identified as an imperative is anonymity.  At a criminal trial in a country town in New South Wales you might have a solicitor sitting behind a barrister saying, “Object to that person because he’s a client of mine.  Object to that person because he’s related to the complainant.”  The anonymity of jurors depends, amongst other things, on where the trial takes place.

MR STREET:   Your Honour, I think Justice Deane in Kingswell identified anonymity as a matter of significance so that is where I have taken it from.

GLEESON CJ:   Anonymity is a relative concept and, depending on whether a trial takes place in the central business district of Sydney or in the courthouse at Grafton, the degree of anonymity enjoyed by the jurors may be substantially different.

MR STREET:   Your Honours, I entirely embrace the notion that they may be known because of the small location but what happens is during the trial they are not identified and it is in that sense that I intended to identify anonymity, that is the individual persons are not named for the purpose of, what I might describe as the media or for the purpose of what I have described as the trial proper.  They are not identified as Mr Smith, Miss Jones on the jury.  The jury is treated, in our respectful submission, as being an anonymous entity in its function and it is in that sense we respectfully submit that Justice Deane was embracing it.

GLEESON CJ:   By anonymity you mean not identified by the process, even though they may be capable of being identified by any other means?

MR STREET: Yes, your Honour. I am not suggesting that there cannot be identification for the purpose of empanelling. Your Honours, we would respectfully maintain that unanimity of itself is of little comfort as a protection against the excess of Parliament or the excess of judicial power if it is not unanimity of a particular number. Is unanimity of one sufficient? In our respectful submission, the notion that one could unanimity of 10 as being sufficient for the command of section 80 but not a majority verdict of 10 and ignore the other two, in our respectful submission, points out the inconsistency in having what I might describe as no minimum number.

GUMMOW J:   Does your formulation, Mr Street, exclude steps to try and meet these difficulties by reserve jurors being available?

MR STREET: Your Honour, we would embrace in our first submission – and I have a second submission which obviously is inconsistent with it and I wish to identify it at the outset – the notion that section 80 can accommodate, on the construction that we have identified here as the imperatives, a position of reserve jurors. What it cannot embrace though, if one has such reserve jurors, is some of the procedures one finds in States such as Victoria where, for example, there is a re‑balloting of the jury with the foreman being isolated. There are problems that may arise in relation to a reserve jury of that kind. But in so far as our primary submission which is developed on the basis that it means a minimum of 12, we do embrace the notion that one could have more and, indeed, I think nearly all States except New South Wales have procedures in their Acts - and I can refer your Honours to them if you wish – for reserve jurors.

McHUGH J:   But why can you not have unanimity of 10 while you cannot have a majority of 10:2 in a jury of 12?

MR STREET: Your Honour, in our respectful submission, to say to the public of Australia that it is sufficient for a jury of 10 to convict the accused, or to acquit the accused in this case, is protected by section 80 but a majority decision of 10 is not sufficient, in our respectful submission, does not afford the protection that was intended in section 80 against ‑ ‑ ‑

McHUGH J:   But perhaps your assumption about the reason for requiring unanimity is wrong.  Was not the historical reason for the requirement of unanimity that it had this great advantage:  it secured a discussion.  As long as one juror was prepared to hold out, the rest of the jury either had to convince that person or had to modify their views.  That was why so much emphasis was put by the common law judges on the necessity for unanimity.  You can still get that same principle if you require a unanimous verdict of 10.

MR STREET:   Your Honour, we would respectfully submit that that is not the correct identification of a principle of unanimity, that the principle is beyond that and it is one of confidence in the result, confidence and acceptance by the public ‑ ‑ ‑

McHUGH J:   But why should you pick 12?  A statistician would probably say you could not possibly get there with less than 30.  It is unreal to say that any jury is representative of the community.  A jury at Darlinghurst represents a very different community from a jury at Cootamundra.

MR STREET:   Your Honour, we accept the notion that underlying unanimity is, in part, the principle of representativeness.  We accept the notion and we maintain, at least, we submit, that another principle underlying unanimity is confidence and acceptance of the verdict.  In our respectful submission, it is one where a notion of promoting discussion is not the underlying rationale and principle behind the significance of unanimity.  We would have said it is an advantage that may flow but the underlying principle is one where the public will accept the result.  Your Honours, if I could just pose a question, and I will pose it in relation to myself, if I may, in this regard, and it may be one where ‑ ‑ ‑

McHUGH J:   Can I interrupt you?  Does that mean there is no confidence in verdicts in New South Wales in civil cases in juries of four?

MR STREET: Well, your Honour, for the purpose of civil cases, one has moved into another sphere, to the extent that your Honour identifies in relation to criminal cases with some lesser verdict, your Honours, it is one where, at the time of Federation, obviously, a real protection was intended by section 80, we respectfully submit, for the people of Australia in respect of this new entity that was to come into existence, this new organ of legislature and this new organ of the exercise in which would be reposed judicial power. The restraint that was intended in that regard is the restraint one then finds in section 80. Even on, if I can just focus on what your Honour has, that even on the literal construction, there must still be a restraint of legislative power and restraint of judicial power.

GLEESON CJ:   Mr Street, would section 80 prevent a Parliament from legislating to disqualify from jury service people who are illiterate?

MR STREET:   Your Honour, in so far as being representative of the community is concerned, one now has obviously the operation of the human rights-type legislation in terms of discrimination.  It may well be that for the function that is to be performed in relation to the task of a juror in a trial, one would not, in fact, be engaging in any discrimination because of their inability to be able to perform the necessary tasks.  In that sense, we would have said there is no need to find an approach that, what I might describe as “Justice Meagher’s” type of characterisation of the community at large, is to be represented.

GLEESON CJ:   But if by some process or other the Commonwealth took over the administration of corporate regulation and routine trials for people charged with serious offences against Corporations Law involved in the exercise of Commonwealth judicial power, would the Commonwealth be able to legislate to say that to be qualified to serve on a jury dealing with a serious fraud case you have to be able to read?

MR STREET:   Well, your Honour, my submission would be that, ultimately, that would be a necessary requirement in order to perform the function of a juror because of the documents that are likely to come into existence in the course of a serious ‑ ‑ ‑

GLEESON CJ:   Well, as I understand it, one of the reasons for the old common law rule that the meaning of a document was a question of law rather than a question of fact, was that you could not leave issues like that to jurors because you could not rely on them being able to read.

MR STREET:   Well, your Honours, to the extent that that was what I might describe as a limitation, we have identified that as to whether a juror was literate or not as a matter of detail, not an essential feature.  Perhaps that is why in which I should answer it.

Your Honours, can I just pose the question I was seeking to identify for the purpose of Justice McHugh’s questions in respect of the significance of unanimity, in our submission, in respect of public confidence.  If I were to pose to myself the proposition that I had a niece who had been, with an addiction, exposed to an importation of heroin that was bad, taken that heroin and died, how would I feel when the jury that delivers a verdict acquitting the accused of an offence against a law of the Commonwealth, is acquitted by a jury of 10 as opposed to a jury of 12?  If I can reverse it, your Honours, if, in fact, that accused was my brother, how would I feel in so far as the accused convicted was convicted by 10, rather than by 12?  In our respectful submission ‑ ‑ ‑

McHUGH J:   It is a question of consciousness raising.  Five years after you brought the legislation in, nobody would bat an eyelid.  That is the accepted thing.

KIRBY J:   But surely we do not determine the bright lines of the Constitution by our sensitivities to family members. I mean, there has to be a better criterion than that.

MR STREET:   Your Honours, I was only seeking to identify the significance of what I might describe as acceptance of the verdict.  I think Justice Gaudron, in Cheng, has identified the significance of a jury for the rule of law, and we identified that in our written submissions and seek to embrace it.  Its significance is, in relation to the administration of justice, that the public reposes confidence in, and accepts, the workings of the criminal law where one has, in respect of Commonwealth offences, a unanimous decision by a jury of 12.

McHUGH J:   But why 12?  Supposing Mr Deakin had said, “These juries of 12 just are not good enough.  I think the Commonwealth should have juries of 15 as they do in Scotland, so the Judiciary Act is going to provide for a jury of 15”? Now, would that have been a breach of section 80?

MR STREET:   In relation to the first submission which reflects the essential features and consistent with what I have said about reserved juries, no, so long as it does not go below 12.  That is in the first argument we put.  We would respectfully submit one could embrace the notion that the jury is increased in size.  But where one does increase the jury in size, a problem would emerge if the jury, in respect of that unanimous result, was one either that fell below 12, or one where it was said that some other principle of the majority decision might creep in because it is 15.

Your Honours, can I just articulate. The alternative submission, which I think we identified in the written submission, is a jury for the purpose of section 80 means the jury that is empanelled and it remains the jury that is empanelled and, therefore, if one has a change in the constitution of that jury, one has an unconstitutional trial. In relation to those essential features, the representativeness of the jury is, in our respectful submission, ensured by a number 12.

It is obviously, on any view, a more representative number than 10, 11, one; it is obviously for the purpose of confidence a much higher hurdle in terms of persuasion of a group of 12 as opposed to seven, to the requisite degree of guilt or to a unanimous decision of the existence of a reasonable doubt and it is, in our respectful submission, hand in hand with the underlying theme in Cheatle of the representative nature of the jury warranting the unanimity of the decision, the proposition that it must be a unanimous decision of a number that is representative and that number that is representative, in our respectful submission, is 12.  And indeed in Cheatle itself this Court identified a number of passages and terms that referred to 12 and we have identified some of those in our written submissions.

Perhaps I should just briefly identify where one finds that.  If I could just do so in this way.  We would respectfully submit, consistent with an analysis which was adopted by this Court in Cheatle, history, principle and authority supports an inviolable feature being 12.  So far as history is concerned, your Honours, there are an abundance of common law works that are happily picked up through the reference in Quick and Garran to the US cases, first of all in the decision of Thompson v Utah (1898) 18 US 620. At page 672 there are various references to two Hale’s Pleas of the Crown and one Chitty’s Criminal Law, all supporting a common law notion that the jury in a criminal case comprise 12. One finds another, what I might describe a summary of those cases, in the decision in the US Supreme Court in Patton, which is referred to in our written submissions, and it is also one which is summarised, so far as the common law is concerned, in Williams v Florida 399 US 78 at pages 86 to 93.

So far as history is concerned, we respectfully submit that history does support the notion that a jury in a criminal trial as at 1900 was 12.

KIRBY J:   But it cannot be 1900, given that in 1900 every juror had to be a property person and every juror had to be a male and this Court has said that is not now required by section 80.

MR STREET:   And your Honour, we embrace that, in the sense of the denotation having changed, but the connotation remaining the same, so far as that construction is concerned.

KIRBY J:   Is there anything in Cheatle or Brown which addresses the matter that I have been addressing to you?  That is to say, why, after 800 years, has the denotation or connotation, if you like to use those formulae, moved on to permit women and people without property but not unanimity?

MR STREET:   Your Honour, one might embrace the reasoning that referred to the Australia Act as, in fact, having some impact for the purpose of that consequence.

KIRBY J:   What, this United Kingdom Act enacted without a referendum of the people?  That will not carry much weight with me I have to tell you.

MR STREET:   No.  Your Honours, I actually mean by that the Act passed by the Commonwealth Parliament in, I think it was, 1986 which, I think, was referred to in the course of argument or at least in the decision in Cheatle, but I will come back to it if I may, your Honours.          If I could seek to come back to what your Honour Justice Kirby has raised in due course.

McHUGH J:   In Cheatle we saw unanimity as being the very essence of trial by jury.  We pointed to the history.  We pointed to the fact that even though there was legislation in four States that allowed jurors to be discharged in certain cases, nevertheless the verdict still had to be representative and at 553 we put, when discussing the principle, the point that I put to you earlier, namely, four lines down:

The necessity of a consensus of all jurors, which flows from the requirement of unanimity, promotes deliberation and provides some insurance that the opinions of each of the jurors will be heard and discussed.  Thereby, it reduces the danger of “hasty and unjust verdicts”.

MR STREET:   Your Honours, perhaps if one goes back to the bottom of page 552:

The requirement of a unanimous verdict ensures that the representative character and the collective nature of the jury are carried forward –

Your Honours, we would respectfully submit that it is the “representative character” that supports the need for a fixed number.

KIRBY J:   But why not 10 or why not 15?

MR STREET:   Because consistent, in our respectful submission, with the common law position which was what was intended to be picked up by section 80 as identified by Chief Justice Griffith in R v Snow, that concept of trial by jury in section 80 was intended to embrace what was embraced by English common law within that concept of trial by jury.

GLEESON CJ:   Mr Street, you might like to think about this over the luncheon adjournment, but it is a little more complicated, is it not, than just 12 against 10?  The 10 come to be just 10 in particular circumstances, having started out as 12.  So, if an observer is looking at the representative character of the body who are passing upon the guilt or innocence of the accused person, the observer sees not just that the decision is being made by 10 but that the decision is being made by 10 remaining of an original 12 who were reduced by chance to the number of 10 in circumstances sufficient to warrant the exercise of a judicial discretion to discharge the other two.  How does it diminish the representative character of the group that its number has been reduced from 12 to 10 in those circumstances?

MR STREET:   Because at the time of the deliberative process, the input of the eleventh or the twelfth juror is lost to the jury in its deliberations.  It may well have been the eleventh or twelfth or the combination of the eleventh and twelfth jurors that persuaded the jury in that deliberative process to a unanimous decision which is different to that come to by 10.  It is the input and the contribution of the eleventh and twelfth jurors that is lost.  To the extent that I do embrace them, I do not seek to discard the proposition of consensus in terms of the discussion that is identified at page 553 that your Honour Justice McHugh has referred to.  We respectfully submit that only supports again that same principle.

McHUGH J:   But the issue of discussion was what was fundamental when we discussed principle.  If you go to 552, we said:

Indeed, the requirement constitutes one of the hallmarks of the common law institution of criminal trial by jury in that there is a significant difference in nature between a deliberative process in which a verdict can be returned only if consensus or agreement is reached by all jurors and a process in which a specified number of jurors can override any dissent –

Then there is the sentence which you throw all the weight of your argument on about “ensures that the representative character”, but the thrust of the passage is on the question of deliberation.

MR STREET:   Your Honours, I do not wish to be seen to place the whole of my weight of argument on representativeness.  It is just one feature that we would say supports 12.  I embrace what your Honour has said in so far as the consensus being one of deliberation and debate between the members of the jury to arrive at the verdict as supporting the notion that that deliberation, and that debate, and that consensus with the number 12, is one which obviously has the input of the full 12 members.  Ten does not.  It has excised two members of the jury.  Why not excise them and take a majority verdict?

Your Honours, they are ‑ and I suppose one could put it in this way, if these are the judges of the fact, framed as such, two judges of fact have been removed.  It would be like suggesting that your Honours, in the deliberation, and perhaps there may be reasons why one might seek it, have removed members of the Court in the exercise of judicial power so far as reaching a unanimous decision.  In our respectful submission, to have 10 is, in essence, to maintain a position where if 10 is sufficient then surely ‑ ‑ ‑

McHUGH J:   But surely it is a question of whether 10 can be said to be a jury in the real sense of the word as opposed to three in a criminal trial, or as opposed to 20.  Unanimity was seen as an essential characteristic but I am not sure you get far by saying, “Well, two are not there to put in their view”.  The fact that you have these 12 or these 10 just happens to be an accident, it is the way their names come out of the box.  You might get a completely different jury.

MR STREET: Well, your Honour, in that regard, perhaps I could fall back on the mischief that section 80 was addressed to, in terms of a purposive effect of it. The mischief, on any view, where there has been a trial upon indictment, and I will come back to that, if I may, but the mischief, plainly, was intended to be a real restraint on an excess of either legislative power or judicial power and to ensure that those with an interest in respect of an offence committed within their State had the trial occur within that State.

Now, if they are, in essence, the mischiefs to which it was addressed, how does it advance the mischief to reduce the protection?  How does it advance the mischief to permit what I might describe as a lesser number than 12 to arrive at a verdict of guilty or – I will use the term that is used in the court, innocence, or a unanimous decision of not guilty.

KIRBY J:   If we are looking for the essential characteristic of the jury in section 80, I saw in the written submissions that both in the United States and Canada, as I understand it, that 12 has been taken to be such, is that correct?

MR STREET:   Yes, your Honour, and I think it is picked up in the US case, in that regard, I think I identified in Quick & Garran, as at 1900, identifying 12 as being the number of a jury consistent with their constitutional provision at that time.

KIRBY J:   Has there been a more recent analysis of the matter in the ‑ ‑ ‑

MR STREET: There is, but that is in light of a provision which has been taken into account in arriving at that decision. The 6th Amendment to the Constitution in the United States has plainly been the catalyst for the construction that that court has placed on the nature of the right and that has had an impact, plainly, upon its approach to the earlier cases that have dealt with the meaning of trial by jury, and the language in that 6th Amendment – if your Honours will excuse me one moment – “the accused shall enjoy the right”. It is a materially different constitutional provision for the reasons identified in Brown.

“The accused shall enjoy the right” is language that has impacted upon the construction that was adopted in Williams v Florida and, indeed, when one looks at Williams v Florida, the Court says so in its approach to what I might describe as the earlier country identified in Patton. To the extent that one has Canadian cases – they do not have, obviously, our Constitution provision – there is reference to 12, although one has to say that the Canadian cases, like the US cases, permit waiver.

GUMMOW J:   And, therefore, I suppose they permitted a necessity exception, do they, where jurors fall sick or die?

MR STREET:   It would follow in relation to at least the fact that they permit a position of waiver but ‑ ‑ ‑

GUMMOW J:   They do not seem to have cases on the immediate point in this case, do they?

MR STREET:   No, and I do not suggest they do.  Your Honour, to the extent of necessity, we would respectfully submit that there is no necessity exception for the purpose of this imperative.  It is in the same position as a judge who dies.  The jurors are decision makers of fact, to the extent that the number falls below 12 ‑ ‑ ‑

GUMMOW J:   Is it clear that there was no exception at all at common law for necessity in respect of ‑ ‑ ‑

MR STREET:   Well, your Honours, we respectfully submit that the position, at least identified by this Court in Cheng, suggests that one could not continue, either another juror had to be re-sworn, and although it is unclear and I accept that ‑ ‑ ‑

GUMMOW J:   That is your problem, is it not?

HAYNE J:   Three colonies explicitly addressed the problem statutorily, did they not, and permitted discharge of some members of the jury in such event?

MR STREET:   But with a State statute, in my respectful submission, cannot be used to construe the command.

McHUGH J: Why not? You are entitled to look at the historical setting in which the Constitution was enacted. I would have thought it was one of the things that you are almost compelled to do.

KIRBY J:   If three allowed it, by definition, three did not allow it, so it does not take you very far.

MR STREET:   Your Honours, perhaps one looks at it this way ‑ ‑ ‑

GLEESON CJ:   It might take you a certain distance if you are looking for the essential features of an institution and asking whether something is essential.  The fact that three colonies have it and three do not have it might suggest that it is not essential.

GUMMOW J:   It might suggest that it was not designed to throw three of them into darkness by treating them as not complying with this constitutional - - -

MR STREET:   Well, your Honour, to the extent that obviously those legislatures all had the exception for capital punishment, why should it be assumed that, in that regard, the significance of law to be made with the Commonwealth would be any less, and in that regard ‑ ‑ ‑

GUMMOW J:   No, at least they were assuming, the people who wrote section 80, that this question about vicinity could be sorted out by legislation.

GAUDRON J:   And they were contemplating ‑ ‑ ‑

GUMMOW J:   Section 77(iii).

GAUDRON J: Section 80 itself is contemplating that trials will take place in different States in a context in which jurisdiction could be invested in State courts. So, without those two constitutional provisions, one might well have thought that what section 80 would require was uniformity in all trials of federal offences and that, as a practical matter, that could only be achieved by an absolute rule of 12, but it is hard to make that implication, is it not, when section 80 expressly contemplates that it is all going to happen in different States?

HAYNE J:   Different States with different representative characters of juries.  For example, Victoria had an odd provision dealing with the case of an alien on trial that, I think it was half the jury had to be aliens.  There was a very odd provision dealing with such a case.

MR STREET:   Your Honour, perhaps if one is going to take that into account, the force of our answer to it would be to look at it where it originates from.  It cannot be, for one moment, suggested that trial by jury in the American Constitution before the Sixth Amendment was intended to be construed by reference to Australian statutes that had some limitation in that regard.  What it clearly intended was, in my respectful submission, what was embraced.

GUMMOW J:   Yes, I know, but the Americans were drawing it up against the background of what were seen as oppressive colonial governments, which were the creatures of these foreign people over in Westminster.  That is not true of the Australian colonies in 1900.

MR STREET:   Your Honours, in our respectful submission, those are the mischiefs to which section 80 in its form is addressed, together with, as I have said and which your Honour Justice Gaudron has referred to, the interest of the people in a particular State where the offence against a Commonwealth law has occurred, having the trial take place there.

GLEESON CJ:   Mr Street, is that a convenient time?

MR STREET:   Yes, your Honour.

GLEESON CJ:   We will adjourn until 2.00 pm.

AT 1.02 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.01 PM:

GLEESON CJ:   Yes, Mr Street.

MR STREET:   Your Honours, can I just indicate, I think it was day 19 of the trial, in answer to the question that your Honours raised.  Your Honours, I should also indicate that, although I looked at the amendment, I am instructed it was in fact 20 years, the punishment at the time of trial, not five years as I told your Honours, I apologise.  It was amended, I think, in 1992.

Your Honours, can I just concentrate briefly upon the proposition that was raised by your Honour Justice Hayne in relation to criminal and civil juries.  We would respectfully submit that the distinction is one which is absolutely fundamental between a jury that is dealing with matters of money or the like, and a jury dealing with life and liberty, and criminal juries, in our respectful submission, are in another league altogether, perhaps the most important area of the law, if not the most important, in relation to the function being performed by the jury in that regard and, in our respectful submission, materially different from a civil jury.

Your Honours, in relation to the question, why 12, the history we say of the common law and the petty jury supports 12. It certainly is not one where one could say, why 10; there is nothing to support 10 as an appropriate number. At the time of the passing of the Constitution in every State in Australia, or at least in every one of the colonies, juries commenced with 12; they did not commence with some other number, it was 12 persons in respect of which those juries commenced. In the United States where the provision was drawn from, the juries at the time of Federation were identified as 12. It was not one in which the debates identified some discussion of the State Acts as being something that was taken into account in embracing the formulation that was plainly drafted on the US provision.

GAUDRON J:   But, in one sense, that does not arise here, because they did start with 12.  The question is – I mean there may be altogether different considerations in a case where the State legislation provided for a jury of 6 say.  What you have got to come to grips with is the jurors falling by the wayside.

MR STREET:   Well, your Honours, we would respectfully submit that the better view of the common law is that, in fact, either a new jury was sworn where one died or had some terminal illness that prevented continuation, or a new juror was sworn to maintain the number of 12 and we respectfully submit that is what the common law provided, and not that it could continue with 10.

GLEESON CJ:   Mr Street, I have not checked on this, but I assume that at the time of Federation there was no provision for majority verdicts in any colony.

MR STREET:   That is correct, your Honour, I could not identify any.

GLEESON CJ:   Which may indicate that when the Court in Cheatle was referring to the common law, it was referring to something that was not materially different from the practice in any of the uniting colonies at the time of Federation. But where you have an expression “trial by jury” used in the Constitution and you know that a number of the federating colonies Parliaments do not regard it as an essential feature of trial by jury that the ultimate decision should be made by 12, why would you direct your attention to the common law of England when you are construing an expression in a document that represents the terms of an agreement between the people of the federating colonies?

MR STREET:   Well, your Honours, in our respectful submission, first, partly because that is what was the phrase used by his Honour Chief Justice Griffith in R v Snow, that was the concept that was embraced by this Court in Cheatle, and we would respectfully submit that it was the concept of trial by jury, not some practice that might have been pursued in other than capital punishments in a particular State that was the subject of the protection being inserted in the Constitution by section 80. To read the protection down as in some way being modified by colonial, local legislation ‑ ‑ ‑

GLEESON CJ:   This may indicate a need to perhaps explore a little more what the word “essential” means in the expression “essential characteristic”.  Is it an observation or a value judgment, or a combination of both?

MR STREET:   We would say it is an application of principle in identifying what was an essential as opposed to a matter that was capable of being dispensed with, a feature of trial by jury.  A non-essential feature - men only.  A non-essential feature - of the age of 20 up to 60.  A non‑essential feature - a matter of how many challenges without cause.  A matter of non-essential feature may touch upon whether or not an illiterate person could participate. 

But we would have said fundamental to the bulwark and effectiveness of the jury is a concept one of representativeness, is a concept of confidence in the verdict, is the process to the extent that we also embrace it of one of the deliberative process in which 12 was critical, and one in which, by reducing that number, one reduces each of those areas in their effectiveness.  One is lowering the hurdle and one cannot see it, in our respectful submission, any other way.

Why is it that the Australian people should have embraced the notion that some lesser number than 12 would suffice?  If one tests the matter, although I appreciate that the reference in Justice McHugh’s judgment in Cheng to capital punishment, or at least treason, which is as found in the Crimes Act 1914 and at that time is giving rise to the potential to capital punishment, being one that it was suggested might have been tried summarily, one really has to test that by going one step further.

Could it possibly have been suggested that treason in Queensland, or alleged offence of treason in Queensland, was capable of being dealt with summarily in New South Wales? In our respectful submission, one of the problems with the earlier decisions that have looked at the scope of section 80 is that they have looked at only part of the branches of that provision. As his Honour Justice Gummow identified, it had three branches. Those branches, in our respectful submission, must all be taken into account when coming to a construction which gives effect to it.

Your Honours, if I could just continue in relation to that issue of necessity that was raised by your Honour Justice Gummow, we would respectfully submit that when one looks at section 22, it certainly does not embrace what I would respectfully submit is a necessity exception in its terms that permits someone to be discharged because they want to go on holidays or someone else because they want to go back to their farm. Can I then just turn to the cases that ‑ ‑ ‑

GAUDRON J:   Could I stop you there?  Does your argument postulate that there might be a distinction between necessity and convenience?

MR STREET:   No, your Honours, our primary submission is that it is the same as the unfortunate situation where a judge passes away, the trial has to start afresh.

GLEESON CJ:   But where do you fit into the distinction between necessity and convenience a circumstance where one member of the jury makes it plain that he is becoming extremely distressed at having to stay there and the accused’s counsel says, “You have got to get rid of him”, which is what happened here.

MR STREET:   Well, your Honour, to the extent that one looks at it, we maintain there is no exception of necessity, one starts with a fresh trial.

GLEESON CJ:   No accused person wants to be judged by a juror who is seriously distressed at having to remain on the jury.

MR STREET:   But, your Honour, it is not just the accused’s right to the trial that one is looking at.  One is looking at the community’s right to have a trial of 12.  The community has an interest.

KIRBY J:   What happens if eight members of the jury suddenly get – or over time – become very distressed?  Does that mean you get down to four – you are left with four?

GLEESON CJ:   I thought the Act put a limit of 10, did it not?  The statute puts a limit of 10?

MR STREET:   Would your Honour just excuse me?  I think ‑ ‑ ‑

KIRBY J:   It is a question of what the Constitution requires.

MR STREET:   Your Honour, can I come back to that?  I will just check.  I think, your Honour, it was one which could ‑ ‑ ‑

KIRBY J:   I thought it can get down to seven, can it not?  I thought in some circumstances.

MR STREET: I thought it could go down to eight, your Honour, as my learned junior has suggested, but I will just have it checked. But, your Honours, so far as the position is concerned, it is not one where it is just the accused who has an interest in the trial being one conducted in respect of our Commonwealth law, consistent with – provided by section 80. The public has such an interest. The public has an interest to ensure that it has confidence in the result that is achieved and one which it can accept, be it the acquittal or be it the convention. The type of emotive example that I sough to give the Court earlier in relation to the lease…..was only trying to identify and emphasise that aspect.

GAUDRON J:   That point was clearly made in Boilermakers’ Case.  You could not have a Constitution of this kind without something like Chapter III.

HAYNE J:   And was not going to work in a context where State judge, federal judge, this State’s judge versus that State’s judge, became informing ideas for public controversy.

MR BENNETT:   Yes, and the whole purpose of what your Honour Justices Gaudron and Hayne put to me is that it necessarily involves judges in public controversy.  The Communist Party Case or the Dams Case or the Mabo Case necessary involved public views.

GAUDRON J:   That is right, and which may well, perhaps ‑ those people referred to as our founding fathers foresaw that some controversy was inevitable, “but we will make sure that there is no unnecessary controversy in the criminal field”.

MR BENNETT:   One asks rhetorically:  why would they protect judges from that type of controversy when they are not doing that in civil cases, they are not doing it in very controversial constitutional cases involving interests of one State against another or one State against the Federation?

GAUDRON J:   “Because they could” might be the answer, whereas they could not at least in constitutional cases.

MR BENNETT:   And, your Honour, it was a day when judges were far less criticised by the media than they are today.  The views of contempt of court were very different in those days from what they are today.  It is highly unlikely, in my submission – and nothing in the Convention debates that I am aware of supports it – that any part of the reason for the first part of this section was to protect judges from being involved in controversial criminal cases and making the decisions in them for ‑ ‑ ‑

GAUDRON J:   But it may have been - you can even put controversy aside.  That is to narrow the focus too much.  It is just to ensure that there is a level of separation so that there can be no suggestion that judges take it upon themselves to determine guilt or innocence.

MR BENNETT:   Your Honour, my submission is that there is nothing, either in the debates or indeed in Brown, which suggests that that is the purpose.  The way the purpose is put in Brown by the majority is that it is the community’s guarantee of sound administration of criminal justice.

GAUDRON J:   That seems to be pretty important too.

MR BENNETT:   That is what I have been addressing by giving the examples of the cases where there is public opprobrium in relation to a particular accused person.  Where that person says, “I think on my legal advice that I will have more chance of acquittal from a judge than a jury”, what interest does the community have ‑ ‑ ‑

GAUDRON J:   The community may well have a lot of interest in thinking it would be better for this person to be judged guilty by a jury of his peers than that he avail himself of what they might perceive as technical legal defences.  You see, the community view is not myopic.

MR BENNETT:   No, your Honour, but, in my respectful submission, such a community view would be perverse because such a community view would be one saying that prejudice requires that this person be sent to gaol rather than reason and, in my respectful submission, if one regards that as part of the purpose, it is inconceivable that it would have been so seen and in so far as that is a factor in the majority decision in Brown, in my respectful submission, it is wrong and ought not to be followed.

GLEESON CJ:   Now, Mr Solicitor, may I ask you how long you expect to require to complete your argument?

MR BENNETT:   I am almost finished, your Honour.

GLEESON CJ:   And, could I ask the solicitors collectively, do they expect to add significantly to their written submissions?

MR GRAHAM:   May it please the Court, we propose to rely solely upon our written submissions and do not seek to address the Court with further oral argument.

GLEESON CJ:   Thank you.

MR MEADOWS:   May it please the Court, we would expect to take about two minutes to refer your Honours to one particular part of our submissions.

MR SELWAY:   Your Honours, it was our intention to, as it were, speak to our written submissions for about 10 minutes.  Your Honours may feel that that is unnecessary, in which case we would not, but ‑ ‑ ‑

GLEESON CJ:   We will accept that.

MR SEXTON:   We will be very short, your Honours.

GLEESON CJ:   How long did you say you were going to be?

MR BENNETT:   Less than five minutes, your Honour.

GLEESON CJ:   We will hear you finish and then we will adjourn until 9.30 tomorrow morning.

MR BENNETT:   If your Honour pleases.  The only other matter I needed to deal with is the question of consent.  Can I just very quickly show your Honours why we submit there was consent in this case.  If your Honours have the appeal book and ‑ ‑ ‑

GUMMOW J:   Is this for an intervener?

MR BENNETT:   As an intervener, I submit I am entitled to show the Court how the constitutional issue arises.  It has been suggested it does not arise, and my submission is that on these 10 pages of transcript it does arise.  That is really all I am seeking to do.  I will summarise largely, and do so uncontroversially, as far as I am able.  What happened was on 23 May when the trial was in its fourth week, it became apparent that one juror was not going to be able to continue beyond 15 June, and that that date would now be exceeded.  In that context, there is discussion about what should occur.

It starts with the Crown prosecutor at page 2, line 35, submitting that there is a problem and this could lead to the jury being discharged.  There was discussion that goes on for some time, and his Honour, on the next page, says how unfair it would be if the jury is kept in suspense, if it is not disclosed to them that the case is going to go longer, because there may be other members of the jury who need to withdraw, and if there are, we should not waste time going on in that situation.  That is clearest on page 4, where Mr Kennedy joins in the Crown’s submission.  The Crown’s submission on page 4, line 20, using the left‑hand numbers, is:

The Crown Prosecutor referred his Honour to the Jury Act. The Crown Prosecutor submitted that it would be a waste of public time and money if the trial had to be aborted through the loss of jurors through illness in the middle of July and that the trial might as well be aborted now and empanel a jury –

In other words, “Let us find out now if other jurors also have a problem with a very long trial so we can abort it now if they do and not go for another month and then abort it”.

(Mr Kennedy –

that is the applicant’s counsel –

submitted that what the Crown suggested is blatant commonsense and there is no benefit if two or more jurors relying upon what they have been told knowing that in late June they have a commitment that they can not escape from and that it is silly not to discharge them).

At the bottom of that page, incidentally, the very last lines, his Honour says:

The jury have been given each Friday afternoon off and that was with everyone’s agreement. 

That is of some relevance in relation to separation.  On page 6, line 25:

(The Crown Prosecutor requested that his Honour inquire of the jury whether there was going to be a problem so that it could be addressed now –

Mr Kennedy said:

he would like his Honour to do that in the interests of his client.)

The judge on pages 7 and 8 then puts the problem squarely to the jury, does it in a fair way that does not involve any of the accused, and invites them to communicate in writing.  On page 9 he gets the answer.  There is a second juror, who is the farmer, who says he cannot go on beyond the middle of June and a third juror who is worried about his employment.  The judge says, well, that is a more difficult question, the Jury Act protects that person, but it may be a problem.

At the top of page 10 Mr Kennedy submits – and the correction has been made:

that the man who is self employed –

that is the farmer, No 2 –

should be discharged).

So at that point he is submitting that having acquiesced fully in the first juror being discharged – there was no controversy about that – that the second one also should be discharged.  The Crown Prosecutor agreed, Mr Finch had no submissions.  Mr Kennedy then put submissions in support of it as to why that jury should be discharged.  Then at line 19, and this is the bit my learned friend relies on:

He further submitted –

and we place more emphasis on the word “further” –

that in the circumstances his Honour should discharge the jury now).

The reasons for that become apparent on the next page as the discussion ‑ ‑ ‑

GAUDRON J:   And at line 32, albeit it is Mr Finch, is raising the question, “Well, can that be done anyway?”.

MR BENNETT:   That is Mr Finch, your Honour, we are not concerned with what he says.

GAUDRON J:   Yes, well, you are trying to assert waiver, assuming it comes to that, in the context in which there is some uncertainty as to whether there can be waiver or not.

MR BENNETT:   Yes.  Well, your Honour, what happens is, on page 11 – I have almost finished this exercise:

ON RESUMPTION

(The Crown Prosecutor submitted that the third juror should not be discharged and that the trial should continue.)

(Mr Kennedy indicated that he would oppose that course.)

And the paragraph down:

(Mr Kennedy submitted that the third juror should be discharged, which would result in the trial miscarrying.)

That is under the Jury Act, it would have that effect, because it had not been going two months and it would be below 10.  Mr Finch said he would oppose the jury going below 10.  The Crown Prosecutor said “that the third juror should not be discharged”, et cetera.  Then on the next page:

(The Crown Prosecutor did not oppose the discharge of the self employed juror).

He goes in the box.  After he has given evidence about his farm, at page 12, line 30:

(Mr Kennedy submitted that he should be discharged.)

There is then the judgment.  Now, your Honours, in my respectful submission, what Mr Kennedy is doing is saying, “First of all, I consent to juror number one going.  Secondly, I not only consent but seek that juror number two goes, but I make two further submissions.  I say juror number three should go and that necessitates a mistrial but even if he does not, I say it is such a perilous position that your Honour ought, in your Honour’s discretion, to discharge the jury and abort the trial now”.

McHUGH J:   Yes but can he consent?  The common law view is that the accused consent to nothing and, as a result, if my recollection is right, the New South Wales Crimes Act 1900, and perhaps the earlier statute, provided that an accused could make admissions in open court on the advice of counsel, but you needed a statutory authority.  In the Privy Council in Bertrand’s Case, back in 1867, recognised that the prisoner could not consent to anything.

MR BENNETT:   Your Honour, it is the prisoner’s counsel making a tactical decision in the course of the trial which, in my respectful submission, certainly at the very least by non-opposition, constitutes consent.  He is not saying, “I am not prepared for the trial to continue with a jury  below 11”; he is not saying that.  He is saying, “I want the second juror discharged, that makes it 10.”  Full stop, new paragraph.  “I also say, now we are down to 10, your Honour ought to consider taking another course.  But that is not objecting to it, and the consent comes at the first stage.  It is a practical and real consent to what is occurring.

KIRBY J:   Can it be interpreted as his having consented to the first of the first and then the second and then asking for the discharge of the jury on the basis that the Crown may decide not to put him up again?  It is always a question that has to be judged in a long trial.

MR BENNETT:   Your Honour, there is no doubt that if Mr Kennedy had had his wishes, there would have been an end to that trial at that point, but the basis for it, when one reads the whole of the material, is partly the third juror, who Mr Kennedy once discharged, and partly the risk of there being another juror who is going to seek at some stage to be discharged, once they are on the borderline.  That is the basis of what is being put.  It is very different to saying, “I do not consent to the trial going on with this number.”

CALLINAN J:   Mr Solicitor, in New South Wales these summaries are made by court reporters, are they not?

MR BENNETT:   Yes, your Honour.

CALLINAN J:   Well, it was my experience that they were often very incomplete.

MR BENNETT:   I would accept that.  Indeed, I can tell your Honour that the instructing solicitor of the Crown kept what is virtually a shorthand transcript of it, which is available and can be sworn to if there is any issue about it, and, indeed, it is from that record ‑ ‑ ‑

CALLINAN J:   But the submissions are often made with qualifications.  They are often made upon the basis of an assumption that something will be ruled, that there will be a ruling the other way, or that there has been a ruling the other way, and I must say that that does not look sufficiently unequivocal to me to constitute a waiver, assuming that there can be a waiver, in the whole of the context of the pages we have got.

MR BENNETT:   Well, your Honour, what one sees is – what is objective is that Mr Kennedy supported, indeed, applied for, the dismissal of the second juror and that he did not raise any objection to the discharge of the first one and that the objections he did raise to the matter continuing were not objections to it continuing but a discretionary application to the court. That is clear, in my submission, from the context, and the transcript does report references to the Constitution in what Mr Finch says.

CALLINAN J:   Yes.  It still looks to me to be incomplete, Mr Solicitor.

MR BENNETT:   Yes.  But, your Honour, in the same way in relation to the separation, we would submit that the absence of protest amounts to consent.  May it please the Court.

GLEESON CJ:   Yes.  Mr Solicitor, at least a majority of the Court are of the view that you should not have leave to reopen Brown.

MR BENNETT:   If the Court pleases.

GLEESON CJ:   Now, if any counsel who has indicated there is no desire to make oral submissions, in addition to the written submission, needs to be anywhere else tomorrow then there would be no discourtesy to the Court involved in not being here.  The juniors will be here, presumably, so we will not be offended if there are any empty places at the Bar table tomorrow.

MR MEADOWS:   May it the Court, could I be excused on the basis that my learned junior would present our submissions?

GLEESON CJ:   Of course.  Any counsel can ‑ ‑ ‑

McHUGH J:   I am surprised you find Hobart more attractive than Canberra, Mr Solicitor.

MR MEADOWS:   It is the weather, your Honour.

GLEESON CJ:   We will adjourn until 9.30 tomorrow morning and the next case in the list, which is FAI, will be not before 10.15.  That is not intended to be any estimate of the length of time we take.  If we go past 10.15 then so be it, but that will be an indication to counsel in that case that they need not turn up earlier.  We will adjourn until 9.30 tomorrow morning.

AT 4.27 PM THE MATTER WAS ADJOURNED
UNTIL FRIDAY, 17 NOVEMBER 2000