Brownlee v The Queen

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.