Cheatle & Anor v The Queen - [1993] HCATrans 1

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Adelaide No Al9 -of 1992
Be__tween-
HARVEY ~HOLLAND CHEATLE

First Appellant

and
BERYL CHEATLE

Second Appellant

and
THE OUEEN

Respondent

MASON CJ
BRENNAN J

Cheatle(2)

2/2/93

DEANE J

DAWSON J

TOOHEY J

GAUDRON J

McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 2 FEBRUARY 1993, AT 10.17 AM

MR K.V. BORICK: If the Court pleases, I appear with my

learned friends, MR G.B. HEVEY and MR J.F. MURPHY,

for the appellants. (instructed by J.F Murphy)

MR M ROZENES, QC:

If it please the Court, I appear with my

learned friends, MR G.R. JAMES, QC and
MR P.J. RICE, for the respondent. (instructed by
the Commonwealth Director of Prosecutions)

MR D.J. ROSE. OC, Acting Solicitor-General for the

Commonwealth: If the Court pleases, I appear with
my learned friend, MR E. WILLHEIM, for the
Commonwealth Attorney-General, intervening in

support of the respondent. (instructed by the
Australian Government Solicitor)

MR J.J. DOYLE, OC, Solicitor-General for South Australia:

If the Court pleases, I appear with MR G.J. PARKER, for the Attorneys of South Australia and Tasmania,
to intervene in support of the respondents.
(instructed by the Crown Solicitor for South
Australia and the Crown Solicitor for Tasmania))

MR K. MASON, OC, soiicitor-General for New South Wales: If

the Court pleases, I appear with my learned friend,
MR L.S. KATZ, intervening on behalf of the
Attorney-General for New South Wales, in support of
the respondent. (instructed by the Crown Solicitor
for New South Wales)

MR D. GRAHAM, OC, Solicitor-General for Victoria: May it

please the Court, I appear with my learned friend,
MR P.G. SEST, for the Attorney-General for the
State of Victoria, intervening in support of the

respondent. (instructed by the Crown Solicitor for
Victoria)

MASON CJ: Thank you. Mr Borick.

MR BORICK:

In our submission unanimity is an essential characteristic of a jury if the jury is to fulfil

the jury, as identified by Justices of this Court,

its purpose. The various functions or purposes of

have been summarized by the Solicitor-General for adopt those, and it would appear that the

overriding purpose of the jury would be to ensure
protection of the accused against oppression by the

State.

Could we just very briefly say something about

the institution of the jury. It is an exceptional
institution in so far as it involves the bringing
together of ordinary people, strangers to each
other, on an ad hoc basis and giving them the power
to make decisions of great consequence on behalf of
the community. It does not function like a

Cheatle(2)

2/2/93

committee; there is no status in the jury room.
All jurors are equal and all must deliver their
verdict according to their individual conscience,
their understanding and appreciation of the
evidence.
From the outset they are told that they represent their country by the words, "which country you are". They are told they must presume
the accused…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Cheatle & Anor v The Queen

Details

AGLC: Cheatle & Anor v The Queen [1993] HCATrans 1
Case: [1993] HCATrans 1
Decision Date

CaseChat Overview and Summary

The parties in this matter were Harvey Holland Cheatle and another appellant, represented by Mr K.V. Borick and learned friends, and the respondent, the Queen, represented by Mr M. Rozenes, QC, and learned friends. The Commonwealth Attorney-General and the Attorneys-General for South Australia, Tasmania, New South Wales, and Victoria intervened in support of the respondent. The case concerned the requirement of unanimity in jury verdicts for federal indictable offences.

The central legal issue before the High Court of Australia was whether unanimity is an essential characteristic of a jury for the purposes of section 80 of the Australian Constitution, which mandates trial by jury for federal indictable offences. The appellants argued that unanimity is fundamental to the jury's purpose, particularly its role in protecting an accused against state oppression.

The Court considered the historical and functional aspects of the jury system, noting that it involves ordinary people making decisions of great consequence. Several characteristics of juries were identified as having evolved to enable them to fulfil their purpose, including the number of jurors, the requirement of an oath, random selection, the right to challenge, isolation during deliberation, and the absence of a requirement to give reasons. The Court acknowledged that some of these characteristics, such as the sanctity of the jury room and anonymity, were under pressure. The argument presented focused on the potential for a move towards an American-style jury system, but highlighted that section 80 of the Constitution presented a significant obstacle to radical changes that might alter the fundamental form or structure of what constitutes a jury.

Orders