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) 1 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

Copyright in the High Court of Australia

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 2/2/93

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 to be innocent and they can only vote

for conviction if and when the prosecution has

proved to their satisfaction that the accused

beyond any reasonable doubt is guilty. They are

not involved in any ordinary day-to-day

decision-making process.

In order to permit a jury to fulfil its

purpose, a number of rules have evolved which give

characteristics are well known and some are	to the jury certain characteristics. Those
consistently maintained in Australia. For example:
12 people; the requirement of an oath; random
selection; a right to challenge; isolation whilst
considering the verdict; and they do not have to give a reason. Some other characteristics are under serious attack; for example, what is called the sanctity of the jury room in anonymity, where
we have seen the media interviewing jurors in major
cases recently.

Of course, there is then the division with

respect to unanimity. It could be said that there

is a move towards an American-type jury system. It could develop particularly if secrecy and anonymity

disappear by default. If the latter occurs, it is reasonable to assume the selection process and the right to challenge could go what I would describe

as the American way. Opinion would differ as to whether that is a good thing or a bad thing, but

the difficulty confronting those who seek any

radical change is, we submit, the existence of

section 80 of our Constitution.

We submit it is clear that for federal

indictable offences, trial must be by jury, but

there would have to come a point where change so

alters the form or structure of what is called a

jury that·it is no longer a jury within the meaning

of section 80. Whether unanimity constitutes an

essential feature of the jury within the meaning of

section 80 cannot, in our submission, be divorced

from a consideration of the characteristics of a

jury as a whole.

Our argument today rests on three broad

propositions: firstly, it is for this Court to decide the essential character of an Australian

Cheatle(2) 3 2/2/93

jury; secondly, unanimity both historically and

logically is an essential characteristic of a jury;

and thirdly, unanimity is so intertwined with the

other essential characteristics that to abandon it

would virtually permit the individual States to do
what they like. In South Australia, for example,
nine jurors could now deliver a verdict and it

would not be a big step from there to permit a

simple majority.

If the Solicitor-General for South Australia

is right in his argument when he says, and I quote,

that, "The number who must be satisfied is distinct

from the existence of a reasonable doubt", then it

would be difficult for this Court to say a simple

majority is not sufficient if that is what the

States want. In the end, all the jury would amount

to is the involvement of the community in the

decision-making process.

The starting point must be to define what "the

jury" meant in 1901, what was meant by it.

Clearly, in our submission, it included all the
characteristics referred to, including unanimity.

On our approach, the question is not whether there is any rational or reasonable ground for permitting

change, but rather whether there is any compelling

reason to alter what was clearly intended and

meant.

For example, you could see compelling reason

to accept the widening of the jury franchise, a process acceptable to development of democratic
principles. Similarly, the jury should be

representative of all the people. Neither of those

changes is in any sense a denial of what the

purpose is that the jury has to fulfil.

The expression "to be judged by your peers"

means to be judged by your neighbours, fellows,

associates, persons having the same legal status in

society as the accused holds. Therefore, the

composition of the modern jury is a reflection of

the expression "trial by your peers". There are no

compelling reasons to shift from unanimity. On the

contrary, there are compelling reasons why it

should be maintained.

When in 1897 Mr Higgins argued against the

adoption of the clause, he pointed out it would be almost impossible to change the existing system of trial by jury if the clause stood. When the clause

was adopted, everybody understood it was there to

stay and unanimity was an essential part of it.

It is to be argued by the respondent that the

convention debates disclose no suggestion that

Cheatle(2) 4 2/2/93

unanimity was to be prescribed by section 80. But

in those debates unanimity was barely mentioned.

It was part of the system intended, and one would

think that if it was not intended to be prescribed
there would have been at the very least,

substantial debate, and it was not intended at all,

then it would have been made clear with

irresistible clearness.

The debate in the South Australian Parliament

in 1927, when the first change was made, indicates

clearly a victory for expediency over principle. A

Mr Walter Giffin, who had somehow or another

managed to sit on nine juries, was an authority

considerable opposition from the then shadow	relied upon in favour of a 5:6 majority. Against
Attorney-General, the desire to save the cost of
retrials permitted the introduction into
South Australia of what was described by the
Attorney-General of the day as "substantial
justice". Since that time, other States have opted
mainly expediency. for substantial justice for much the same reason,

It is submitted that this Court should require

compelling reasons before it too accepts a

qualified form of justice. If I could perhaps put

it this way, that proof beyond reasonable doubt

should be required before the obligations affecting

not only the liberty of the subject, but the effect

of expression of minority views should be whittled

away.

The provision of this obligation was no

accident or, most certainly, the framers of the

Constitution foresaw that it would prove to be an

irritant to the administrators and organizers, and so they made sure a State could not take away from the people of Australia their right to dominate on

the issues of liberty and freedom.

As Mr Justice Dawson has pointed out, section 80 impos~s a government obligation rather

than conferring a personal guarantee but I would

respectfully add, the obligation of this instance

should be to ensure the protection of that personal

guarantee.

Further arguments against the reasons advanced

so far permitting something less than unanimity

referred to in our summary - I come to those

shortly, but amongst the reasons that are being advanced against the proposition that we put to

this Court today, two appear to stand out. The

first I would refer to the "times are changing"

argument, and the second is that the Commonwealth

must accept the State laws as they find them.

Cheatle(2) 2/2/93

Given the purposes of the jury, the changes

that have occurred since 1901 reinforce, rather

than negate, the need for unanimity. Nothing has

changed about the conflict between the power of the

State, requirements of justice, the interests of

the accused, and the role of the jury in that
conflict. If anything, some of the changes which
have occurred, attacking the requirements of

justice and the rights of the accused, point to the

need to strengthen the jury, rather than to weaken it.

In that context, I refer to the fact that in

South Australia, the committal has virtually

disappeared and there is now proposed legislation

which has a clear potential to eliminate key
witnesses from the courtroom altogether.

Elimination of the committal, elimination of witnesses from the courtroom and a verdict of nine,

can best be described, in our submission, as

insubstantial justice.

And the same scenario points to the fact that

the Commonwealth does not have to accept a so-

called jury system which, at worst, is a mockery

and, at best, a feint representation of what was

envisaged in 1901.

I would also point out, in the circumstances

of this case, that it was a majority verdict

against an unrepresented accused. If Mrs Cheatle

had been, for example, tried in Queensland, New

South Wales or Victoria, she would have survived to

fight another day, properly represented after the

decision of Dietrich and, as well, a unanimous

verdict was required. And it is that disparity

between treatment meted out to the people in various parts of Australia which is of great

significance in the submission that we make to the

Court today.

Could I now turn Your Honours to page 4 of my

summary of argument. I deal there directly with

the question posed by the Solicitor-General for

South Australia in his argument, is unaminity

essential for the purposes a jury has to serve?	We
put these submissions to the Court that, firstly,
in 1901 it was clearly regarded as an essential feature. In 1936, this Court stressed the

importance of unanimous verdict and it was referred

to Mr Justice Evatt as a fundamental right.

Thirdly, -

BRENNAN J: What is that case?

MR BORICK: Newell, Your Honour.

Cheatle(2) 6 2/2/93

BRENNAN J:  Was it a Court decision stressing the importance

of a unanimous verdict?

MR BORICK: Certainly Mr Justice Evatt did, and as I read

the words of the o~her two Justices, they were

basically in agreement with His Honour.

supported unanimity. In particular, I refer to the Recent major law reform recommendations

New South Wales Law Reform Commission Report. The

overriding purpose of the jury is to protect the
accused from oppression, and if unanimity is merely

a matter of procedure a State could reduce the

number. It must be satisfied to whatever it likes.

The reasons thus far advanced for permitting

majority verdicts - and they have been at various times corruption, that two jurors may be corrupt;

two or more jurors may be unreasonable, irrational;

the cost of retrials in particular; and in

addition, right from early times, it was suggested

understand complex evidence. In our submission	that jurors would have a limited ability to
none of those are compelling.

Further, that failure to reach a proper

verdict, if that has in fact occurred, can in most

instances be attributed to the content and conduct
of the trial rather than to the jury. It is simple
to say that the jury had got it wrong, whatever,

but nine times out of ten the fault wili ~a with

either some fault in the summing up or some fault

by counsel or some other fault within the trial

system itself rather than the jury. It may be the

jury's fault some time but nobody could ever prove

that.

Then, other characteristics of the jury point

to the significance and the importance of the
individual vote and those characteristics include

the fact, of course, that they have to be satisfied

by proof beyond reasonable doubt, anonymity,

confidentiality, isolation when considering the

verdict and their oath. Put together, one can see

compelling reasons why the individual vote is

important and ought not to be simply thrown away.

DAWSON J: Is not proof beyond reasonable doubt central;

should·it· not be central to your argument?

MR BORICK: Yes, Your Honour.

DAWSON J: If you have one juror who has a doubt, you cannot	assume that it is not reasonable, and if you allow
proof which is not proof beyond reasonable doubt; a majority verdict you are, in effect, allowing
it is as fundamental as that.
Cheatle(2)	2/2/93
MR BORICK:	Yes, Your Honour. Central to our argument - - -
DAWSON J:	It would not matter how many jurors you had, but

where one or two have a doubt and you allow a

convictior1, you do not have proof beyond reasonable

doubt.

MR BORICK:  Yes, and as Your Honour put it when we sought

special leave, 12 never equals 10, or 12 does not

equal 10, and in addition in the case of Pahuja

the South Australian Chief Justice pointed out that

jurors are presumed to be reasonable. So here you
have the fact that 12 people come along, they are
presumed to be reasonable and a statute says,

sorry, two of you are irrational or unreasonable, and there is no logical basis in that whatsoever. If there is any irrationality or unreasonableness

majority, who may be a more powerful a voice than	in the jury room, it may belong with others in the
the minority. And the majority verdicts itself deny the effect of expression of those minority
views; there is no basis for assuming the minority
are any less honest or reasonable than the majority.

Next we point to the submission we covered

that the present system in Australia creates great

diversity and confusion for the people and when one

looks at the list of purposes of the jury set out

in the South Australian Solicitor-General's

argument, one sees that one of the important

features was that Australian people should have the

one system of trial and everybody would understand

what it was, but we do not.

Further, it is illogical to consider that a

verdict is any safer after four hours, or in some

States it is two hours, or for that matter that

murder should require unanimity, but that does not
apply to other serious criminal offences carrying

the same maximum penalty. It leads to the

case of Johnson v Louisiana, where for the easy	situation pointed out by Justice Douglas in the
cases unanimity is required, where the jury can reach a verdict quickly; for the harder cases,
where one would have thought unanimity is more
important, unanimity is thrown out the window. But
over and above everything, there can be no
compelling reason at all to permit a right
guaranteed by the Constitution to be abrogated for
purposes such as those that have been advanced,
particularly in the Parliaments when they changed things, of avoiding the cost of retrial and matters of that type.

If I could revert just briefly to the changing

times argument. We would submit that the impact in

Cheatle(2) 2/2/93

relation to policy since 1900, combined with

changes in social and racial attitudes, would

demonstrate the undesirability of disenfranchising

individual jurors. For example, you could have a

jury of 12 people in the Northern Territory with an

Aboriginal standing trial and two Aboriginals on
the jury. The vote might be 10:2, and if the

public know that the two people on the jury are the

Aboriginal people who voted for, say, not guilty,

that could lead to enormous difficulty.

So that in the end result, in order to protect

the ess.ential characteristics of the jury, to

protect reasonable doubt and all that it implies,

to ensure that all Australian people are treated

equally, and for the other reasons advanced in our

summary of argument and what we have put to the

Court this morning, in our submission, it is clear

that unanimity is essential and that this Court

should so hold in giving its reasons. Those are my

submissions, if the Court pleases.

MASON CJ: Thank you, Mr Borick. Mr Rozenes?

MR ROZENES:  May it please the Court. The Court will have a

copy of our outline of submissions. I propose only

to deal with some cases to illustrate what, in our

submission, is the essential function of the jury

and to say something very briefly about the point

raised by Your Honour Justice Dawson in relation to

proof beyond reasonable doubt.

We would argue that if what Your Honour says

is correct, then there could never be a conviction

upheld in a State where majority verdicts exist

because in each of those States, the requirement

for conviction of a criminal offence nevertheless

is satisfaction beyond reasonable doubt and if it

follows that a dissentient on a jury

questions - - -

DAWSON J: That is at common law, but the majority of

verdicts are introduced by statute.

MR ROZENES: 

Yes, but the statute does not purport, in our

submission, to do away with the common law
requirement.

DAWSON J: It does not have to. That may be its effect.

MR ROZENES: It may be its effect. It is certainly a

proposition that we have not heard advanced before,

with respect.

DAWSON J:  How can you say that it is proof beyond

reasonable doubt where you have one or two jurors

who have a doubt, and yet you convict?

Cheatle(2) 9 2/2/93

MR ROZENES:	Because the onus, in our submisEion, or the standing permits a doubt that may not be
verdict - reasonable. It permits the jury to arrive at its

DAWSON J: That is right; you could only do it on the

assumption that those two jurors were not reasonable.

MR ROZENES: 

Yes.

DAWSON J: 

How can you make that assumption?

MR ROZENES: 

You cannot, but nor can you investigate in any way whether that juror is capable of arriving at a

reasonable result.  The rationale that one puts

forward for majority verdicts is in case there is
the irrational crazy juror who, against all the
evidence, simply for reasons of pique, decides that

he will not join in a conviction, or an acquittal for that matter and, for that purpose, that issue

is overcome by the majority verdict, but there

would not be an assumption, in our submission, in

that that that person therefore entertains a

reasonable doubt, any more than the.compulsion to

arrive at an unanimous verdict carries with it the

necessary proof that all persons in that verdict

agree in it. It is that all persons are compelled

to agree with it that they announce a unanimous
verdict.

There is no evidence of any sort that permits

us to say that a jury of 12 who announce a
unanimous verdict all agree with it. They say they

do, but they have historically been compelled to.

The question that I pose - this is a simple

question and probably has a very simple answer, it

is: what would all the people who were present at

the trial of the appellants have thought had

happened in the court? How had the appellants been

tried in this case? In our submission, no one can

say anything other than that they were tried by

jury and that is the guarantee, in our submission,

that the Constitution provides. It is the

interposition between the accused and the State of

a group of lay persons to determine the question of

guilt or otherwise, and no more than that, and in
our submission that is the essential ingredient of

a jury and it is the only - - -

DAWSON J: Is that right? It is to determine the guilt or

innocence of the accused in a particular manner.

MR ROZENES:  Well, in our submission, in the manner in which

the relevant State court or State law provides.

Cheatle(2) 10 2/2/93

DAWSON J:	By the verdict of them all.
MR ROZENES:	By the verdict of the jury, in our submission•.

however that verdict is expressed, whether it be'

expressed as a unanimous verdict or a majority

verdict, it is nevertheless a finding of guilt by a

lay tribunal, constituted in a certain way and not

the vice, in our submission, that the founding	by the judge and not by the prosecutor, and that is
fathers were determined to protect; that people
would not be convicted by the overzealous
prosecutor or the partisan judge.

BRENNAN J:	To put it that way is really to beg the question, is it not.
MR ROZENES:	I knew that was a simple question and that

there would be a simple answer to it.

BRENNAN J:  I mean, if you have got a 9:3 majority, for

example, is that a conviction by a jury of 12?

MR ROZENES: Is it a verdict of the jury?

BRENNAN J: That is the que·stion.

MR ROZENES:  Yes, well, I saw that question raised, I think,

by one of the Justices in the special leave

application. The statute says it is a verdict, but

of course that does not perfect something that

itself is imperfect. But it is a determination of

guilt, in our submission, by the jury, yes, and

fundamentally, we would submit - - -

DAWSON J: Well it is not, is it. It is a determination of

guilt by nine jurors.

MR ROZENES:  By nine jurors; not by the judge though.

DAWSON J: And not by the jury.

MR ROZENES: Well, Your Honour, it is not a verdict by the

jury in the sense that they all agree, but it is a

verdict by the jury in the sense that a majority of

them agree. Just like there is a decision of this

Court, whether or not it is a unanimous decision or

not, and it is still a decision of the Court,
binding on all of us; it may be split 4:3. But we
are prepared to accept decisions of this Court on a

4:3 majority and the States that have majority

verdicts are prepared to accept verdicts by a jury

on a majority. It is still, in our submission a

verdict of that jury and a finding of guilt by a

lay tribunal, and we would submit that is the only

protection that it was envisaged would be provided
by a jury system: a bulwark against the oppression

of regulators and government.

Cheatle(2) 11 2/2/93

That that is so, in our submission, can be

gleaned as early as the convention debates, where

the very issue of what the purpose of section 80

was was debated, and the statements by Mr Higgins

at that time made it it clear, in our submission,

that the question of how the jury should be

constituted and whether it would be a majority

verdict or a unanimous verdict were not matters of

concern.

What was of concern was that the Commonwealth

would create a mechanism by which trials of
indictable - or matters on indictment, would be
heard by someone other than the magistrate up in

the bush where someone could be taken quietly and

dispensed with in a certain way, and that

protection is given by a majority verdict, as

equally, in our submission, as it is given by a

unanimous verdict.

Now, the accused may prefer to be convicted by a unanimous verdict, and frankly, that is

understandable, but the protection offered by the

Constitution, in our submission, is not in any way

whittled away by the question of numbers on the

jury any more than it is whittled away by whether

they are of unanimous opinion or not.

DAWSON J:  How far can you take that? Would a jury of two

do?

MR ROZENES:  A jury of two could do it, Your Honour, yes.

DAWSON J: Really.

MR ROZENES:  In our submission, a special jury could do it.

And a special jury, by way of example, was called

for by a Justice of this Court in 1942 and no one

raised the question of whether or not that

infringed upon section 80 of the Constitution.

DAWSON J: What about a jury of one?
MR ROZENES:	Your Honour, that would stretch it.

MR : It would solve the majority verdict problem.

DAWSON J: Well, it would, would it not, because what you

are seeking is a unanimity of more than one mind,

and there are those who would say that the

unanimity is far more important than the actual

numbers of the jury.

MR ROZENES: That is clearly so, Your Honour. But if one

creating a mode of trial which is independent of	sees the centre-piece of the jury system as
government and independent of the trial judge, then

Cheatle(2) 12 2/2/93

philosophically speaking, a jury of one selected by

lot from the people constitutes a jury, and

certainly, as my learned friend says, has the

advantage of having a unanimous verdict.

In our submission, that is the critical issue

in this appeal, to ascertain what is the purpose of
jury, not how it will discharge its function.

Can I take Your Honours very quickly to the various decisions of this Court that have touched

upon this question of jury, and in particular

section 80. The first of those is the decision of

the Court in R v Snow, (1915) 20 CLR 315. Snow was

a case concerned with the question of the

inviolability of a verdict of acquittal. The

Chief Justice at page 323 at point 3 said:

Sec 80 lays down as a fundamental law of the Commonwealth that the trial on indictment of

any offence against any of the laws of the

Commonwealth shall be by jury. The framers of

the Constitution, the electors who accepted

it, and the Parliament which enacted it, must

all be taken to have been aware. of the

absolute protection afforded by a verdict of

not guilty under the common law of all the

States. With this knowledge they thought

proper to enact that any indictable offence

that might be created by the new legislative

authority established by the Constitution
should also be tried by jury. The history of
the law of trial by jury as a British
institution (not forgetting the Act called

Fox's Libel Act) is, in my judgment,

sufficient to show that this provision ought

prima facie to be construed as an adoption of

the institution of "trial by jury" with all

that was connoted by that phrase in the

constitutional law and in the common law of

England.

It is clear that the common law notion of jury at

this time and at the time of the Constitution was a

jury of twelve men arriving at a unanimous verdict.

At page 365 of the report in the joint

judgment of Justices Gavan Duffy and Rich, at

line 10 or so:

It is to be supposed that the British

Parliament, when providing by sec 80 of the

Constitution that "the trial on indictment of

any offence against any law of the ·

Commonwealth shall be by jury," were leaving

to this Court in its appellate jurisdiction

the right to control at its pleasure the

Cheatle(2) 13 2/2/93

verdict of the jury? If so, that section is

indeed a "mockery, a delusion and a snare."

But the truth is that, in saying that the

trial of offences shall be by jury, Parliament

has said that the persons tried shall have all

the benefits incidental to a trial by jury,

and one of them is that a verdict of "not

guilty" shall be final and conclusive on the

issue the jury are sworn to try, the issue of	"guilty or not guilty." In our opinion this
Court has jurisdiction to give special leave
to appeal from the judgment which followed the
verdict in this case, but as the judgment
cannot be interfered with while the verdict
stands, and as there are no means of setting
that verdict aside, it would be useless to
give such leave, and we should refuse to do so.

So what was seen as the substantive consequence of

of acquittal should not be interfered with.	a jury trial, in our submission, namely the verdict
Although the judgment, of course, is able to be interfered with.
Now, the next case is Huddart, Parker v Moorehead, and this is some comments of the Court
in relation to the Doctrine of Self-Incrimination as it applies to questions of jury. Huddart,
Parker v Moorehead, (1909) 8 CLR 330, and the
passages I seek to rely upon are firstly by
Justice O'Connor at page 375. The argument here
that compulsion to answer questions in an
examination somehow affected the right to trial by
jury. A third of the way down the page:

What are the essential features of a trial by

jury? I adopt the following from the

definition approved of by Mr Justice Miller in
his lecture on the Constitution of the United

States ..... It is the method of trial in which

laymen selected by lot ascertain under the

guidance of a Judge the truth in questions of

fact arising either in a civil litigation or

in a criminal process. The principle that a

witness shall not be compelled to criminate
himself has become a principle of British
criminal law, departed from no doubt in

special instances, as in the case of offences

against the bankruptcy laws, but still

maintained and administered as part of the

great body of British criminal jurisprudence.

But it is no part of the system of trial by

jury, and the authority of the Parliament of

the Commonwealth to create and punish offences

as incidental to the exercise of the powers

conferred by the Constitution would certainly

Cheatle(2) 14 2/2/93

extend to the modification of any principle of

British criminal law, no matter how

fundamental, so long as the modification is

not forbidden expressly or impliedly by the

Constitution. There has been no attempt to show that any portion of the Constitution

other than section 80 has any bearing on the

matter.

And the brief mention at pages 385 and 386,

commencing on the last line of 385, Justice Isaacs:

Section 80 of the Constitution retains, in respect of trials on indictment of

Commonwealth offences, the provision of Magna

Carta that the issue shall be determined "per

preserved in the American Constitution. legale judiciurn pariurn suorurn," so jealously

The whole meaning and essence of the

requirement is that a jury, and not a judicial

officer, shall pronounce upon the guilt or

innocence of the accused.

As to the requirement of unanimity, the first

reference in this Court's judgments, is to be found

in the case of Newell, (1936) 55 CLR 707. Newell

was a case where the legislation in Tasmania

interfered in the criminal trial in the sense that

the accused had first been arraigned when the

requirement was for an unanimous verdict and by the

time he was tried, the requirement was for a

majority verdict and there was some point in the

fact that he had previously been arraigned and

exposed to the benefit, if one could say that, of

an unanimous verdict, but by the time the decision

was handed down he had lost that benefit.

At page 711, four lines from the bottom, the

Chief Justice describes the right to a jury trial in these terms:

The right to a jury is one of the fundamental

rights of citizenship and not a mere matter of

procedure, and so the courts have said.

He goes on across the page at 712, just before the end of his judgment, to give the next piece,

namely that:

the right to have only the verdict of the full
twelve was an essential part of the right to

trial by jury which the accused had before the

amendment was made. It is not merely a

procedural matter.

Cheatle(2) 15 2/2/93

Justice Dixon, as he then was, agreed in that

proposition and Justice Evatt, at 713 states what

is in our submission the case at its highest for

the appellant. Approximately a third of the way

down the page:

But this argument is answered by the fact that

in Tasmania, as elsewhere in common-law

countries, trial by jury has been universally regarded as a fundamental right of the

subject, and unanimity in criminal issues has

been regarded as an es~ential and inseparable
part of that right, not a subordinate or

merely procedural aspect of it.

He refers to historians, Ford v Blurton and

Armstrong.

In the United States, the principle of

unanimity has been treated as an integral part

of the constitutional guarantee of the jury

system, and a similar guarantee (in respect of

offences against the laws of the Commonwealth)

is contained in sec 80 of the Commonwealth

Constitution:

For American support, he turns to American

Publishing Co v Fisher.	It is our submission that
that is the first -

DAWSON J: That still is the position in the United States.

MR ROZENES:  It still is the position in the United States

in so far as federal trials are concerned, but for

a reason, in our submission, that creates some

difficulty for the Supreme Court of the United

States. The judges in the minority in Apodaca and

Johnson v Louisiana were somewhat concerned about

the fact that in the United States today we have a

number of states where unanimous verdicts are

permitted and a number of states where majority

verdicts are permitted, and federal trials where

unanimous verdicts are permitted.

It has a particular problem, in our

submission, in Australia because there is no

Federal Court seized with criminal jurisdiction for the trial of offences against laws of the

Commonwealth, and secondly because there are a

number of instances in all States of Australia

where accused persons are tried on joint

State/Commonwealth indictments. The consequence of

unanimous and so far as the State charge is

having a jury instructed - and in so far as the

concerned, they can return a majority verdict - in

our submission is horrific.

Cheatle(2) 16 2/2/93

If I can take Your Honours to the fourth case

which we say is significant, the matter of

Kingswell, (1985) 159 CLR 264. The judgment which

deals, in our submission, most extensively with

section 80 of the Constitution is the judgment of

Justice Deane commencing at page 298. His Honour commences by setting out some of the philosophical

bases for the institution of trial by jury and
describing, as we would understand, the imposition

of the jury in the criminal trial is the bulwark against the tyranny of arbitrary punishment. That

is so, and we would submit that is the principal

and most significant aspect of the jury system.

When His Honour deals at page 301 at the very bottom with the details of how this protection is

to be afforded, His Honour says this:

serves the function of protecting both the The institution of trial by jury also

administration of justice and the accused from
the rash judgment and prejudices of the

community itself. The nature of the jury as a

body of ordinary citizens called from the

community to try the particular case offers

some assurance that the community as a whole

will be more likely to accept a jury's verdict

than it would be to accept the judgment of a

portrayed as being, over-responsive to	judge or magistrate who might be, or be
authority or remote from the affairs and
concerns of ordinary people.
What follows, we would submit, are the

essential elements that will satisfy that need.

Firstly:

The random selection of a jury panel, the

empanelment of a jury to try the particular

case, the public anonymity of individual

jurors, the ordinary confidentiality of the

jury's deliberative processes, the jury's

·isolation (at least at the time of decision)

from external influences and the insistence

upon its function of determining the

particular charge according to the evidence

combine, for so long as they can be preserved

or observed, to offer some assurance that the

accused will not be judged by reference to

sensational or self-righteous pre-trial

publicity or the passions of the mob. These
points were forcefully made by Professor Story

when he wrote -

as he did. In our submission they are the

essential ingredients of the jury and that is the

guarantee that section 80 provides the trial of

Cheatle(2) 17 2/2/93

persons charged with offences against Commonwealth

law in the State system. That was understood, in

our submission, by the founding fathers, and they

understood it because they there and then knew that

they would pick up the various procedures and

practices of various States as to how trials should

be conducted. It was never intended, or part of

the proposition, that the Constitution would lay

down the nuts and bolts of the jury system.

Finally, as far as the Australian cases are

concerned, the case of Brown, 160 CLR 171. Brown

is a decision of this Court concerning the issue of

the availability, again in South Australia, of

trial by judge alone. Firstly we rely upon

something said by the Chief Justice on - this is

the only constitutional pronouncement that I will

make - at page 183, approximately 13 or 14 lines

down:

It is trite but true to say that the

Constitution was framed to endure and to be

capable of application to changing

circumstances.which the framers of the

Constitution could not be expected to foresee,

and it would be contrary to all principle to

confine the operation of any of its provisions

to matters known to exist in 1901.

But even in 1901, it is our submission that

trial by a jury with majority verdict was well known. It was well known in Scotland. It was

debated in the convention debates as one of the

issues and very shortly thereafter it was enacted

in some of the Australian States.

BRENNAN J:  Was it known at common law?

MR ROZENES: It was not known at common law. If this case

is decided, Your Honour, on the basis that we are

stuck with the common law jury, as it was fixed at

the turn of the century, then the appellant wins on

this issue. If the only thing we looked at is the

history of the jury, and the common law jury, then

there is no argument, because it is quite clear

that, at the turn of the century, common law

provided for the unanimous verdict of a jury. But

we say, that is not what this protection is

designed to give.

DEANE J: But, is not the real question, is there a

difference in substance between the agreement of a
jury and a majority vote of some members of the

jury, and, if there is such a difference in

substance, did section 80 refer to a verdict that

represented the agreement of the jury, or did it

permit something which, on one approach is

Cheatle(2) 18 2/2/93

completely different, and that is, not a verdict

which represents the agreement of the jury, but a

majority vote of some members of the jury? And, if

that is the question, it is really neither here nor
there to talk about, saying, you cannot have women

and you cannot have 18 year olds, and so on.

MR ROZENES:  Your Honour, we would submit that the question

is not how the jury arrives at a result, but the

question is, who makes the decision. Is it a
decision to be made by the authority that

prosecutes, or the appointed official who runs the

Court, _or is it a decision to be made by some other

group of people representing the interests of the

accused? That is the issue. And whether they sit

as 12 or 22, whether they are men or women, whether

they have property rights or not, whether they have

certain racial characteristics or not, is not the

issue.

DEANE J:  I follow that, but none the less, one comes back

to, what did trial by jury mean? Did it mean that

someone was not guilty unless a jury agreed that he

has guilty, or did it mean that someone was

submitted to a determination of guilt or innocent

by some electoral process, of a group described as

a jury?

Now if it meant the former, one then has to

face the question, is there a different procedure

when one abandons decision by agreement of the jury

and entrusts guilt or innocent to an electoral

process?

MR ROZENES:  Yes. I understand, Your Honour, the

qualitative difference between those two
propositions. But in my submission, they both

satisfy the test of jury determination.

DEANE J:  I follow that, yes.

MR ROZENES:	And if the question is reversed, what other case of the appellants? What could any member of	trial was had, other than a trial by jury, in the
the community have perceived that process to have
been, other than a trial by a jury?

If.the discriminating. feature between a trial

by a jury, and not a trial by a jury, is unanimity

of verdict, well then we concede that the case was

lost.

McHUGH J: But that is the real problem, is it not, that the

real question is what was the verdict of the jury,

and in 1900 an agreement by a majority would not

have represented a verdict of the jury?

Cheatle(2)	19	2/2/93
MR ROZENES: Correct.

McHUGH J: Legislatures have now said that a majority of

jurors' opinion is deemed to be the verdict of the

term was understood at common law, is it? jury, but it is not the verdict of the jury as that

MR ROZENES:  And the question that we would submit is was it

intended by the framers of the Constitution that

there should be a verdict of the jury or whether

they were concerned that there should be a trial by
a jury? And we would submit that all that was

guaranteed was that there would be trial by a jury;

that there would be a bulwark against arbitrary

decision-making by judges.

DAWSON J: Well, what is the rationale behind majority

verdicts? What is the reason for it? Why the

departure?

MR ROZENES: There is a number of reasons that have been

propounded, Your Honour. One is that it takes into

account an unacceptably high percentage of cases

that are hung by what is thought to be less than

two, or two or less.

DAWSON J: Are there any figures about that?

MR ROZENES:  I do not think so, Your Honour. Yes, I am told

that there are in Victoria. I am surprised because

whenever the matter is discussed in Victoria one

says that the figures are anecdotal. But as I

understand it - I do not know that there has been

any survey conducted and - - -

DAWSON J: The introduction of majority verdicts result in a

greater conviction rate.

MR ROZENES:  There has not, to my knowledge, been any such

study made as to how many jurors are hung, whether

it be 11:1 or 12:1.

DEANE J: There are figures in the New South Wales Law

Reform Commission Report which deal with three

periods.

MR ROZENES:  I will just check to see whether there are any

statistics taken. There have been a number of
statistics taken in England, because they are had
majority verdicts, I think, since 1967, or

thereabouts, and whereas previously - and I think

also in some of the American states, they found

that whereas previously they had hung juries of	something in the order of three per cent; upon the
introduction of majority verdicts, majority
verdicts began returning something in the order

Cheatle(2) 20 2/2/93

of 13 and 15 and 20 per cent. But what has been

made of those statistics is not clear.

But I suspect, Your Honour, to answer your

question, there is a perception that hung juries

waste time and cost money in retrials and therefore

a belief by most judges - - -

DAWSON J: It is not a philosophical thing; it is just an

economic thing, yes.

MR ROZENES: 

The anecdotal material, Your Honour, is that

there is always someone in the jury that will not
verdict is meant to deal with, but that does not convict and that is the person that the majority

explain why the figure that has been accepted in

three Australian States is 10:2 rather than 11:1.

McHUGH J: But you can get situations where you will have

one person hanging out for a conviction.

MR ROZENES:  Yes. And as I understand, were our Tasmanian

colleagues here, they would tell you that there is
as many verdicts of acquittal in their

understanding, by majority verdict, as there are of

conviction. We do not know. It is just as likely

that there is some person holding out for a

conviction against 11 seeking to acquit as the

other way round.

In the case of Brown, I can take Your Honours

to Mr Justice Gibbs, the Chief Justice's

judgement - I think he was a dissentient in this

case - a matter of principle only that we seek to

rely upon - at page 179, the first major paragraph:

It then becomes necessary to consider the

purpose which the framers of the Constitution

had, or must be supposed to have had, in

including the provisions of s 80 in the

Constitution. The requirement that there

should be a trial by jury was not merely

arbitrary or pointless. It must be inferred

that the purpose of the section was to protect

the accused - in other words, to provide the

accused with a "safeguard against the corrupt

or over-zealous prosecutor and against the

compliant, biased, or eccentric judge:

The authority for that proposition is

Duncan v Louisiana.

At page 189 to 190, the judgment of

Justice Wilson, after the quotation:

The only argument advanced in favour of the

clause in the course of the Convention debates

Cheatle(2) 21 2/2/93

was that it was "a necessary safeguard to the

state - individual liberty of the subject in every

commencing two lines from the bottom:

It is true, of course, that in interpreting a

statute it is necessary to determine the

meaning of the words used as they were

understood at the time when the statute was

passed. But that is not all, particularly

when it is a constitution that is being

interpreted. For a constitution creates and

underpins a body politic, providing an

instrument of government that is intended to

endure. It may lay down general propositions

in terms that are wide enough to be capable of

flexible application to changing

circumstances.

And after the citations:

It does not follow, because the meaning of	s
80 may be seen to have had a different

operation in 1900 to that which it may have in

1986, that its original meaning has been

changed or abandoned. What has happened is

that the circumstances in which it is to be

applied have changed.

We would submit that circumstances in Australia

have changed since 1900. There are now three

States with majority verdicts, and one territory.

Half the jurisdictions in which the Commonwealth prosecutes people are capable of returning verdicts

by majority.

DAWSON J: What are the circumstances that have changed?

MR ROZENES:  The circumstances have changed, the

legislations in those States which have permitted

DAWSON J: Well, that does not alter anything. trial by jury to be resolved by majority verdict.

MR ROZENES: Well, it is a jurisdiction - - -

DAWSON J:  I mean, I can understand the Constitution, being

a flexible instrument, has to be applied to

circumstances not envisaged at the time of

Federation, but that is not the situation here.

MR ROZENES:  We would submit Your - - -

DAWSON J: The jury proceeded in a particular way, then, and

the fact that some statutes have departed from

that, does not matter.

Cheatle(2) 22 2/2/93

MR ROZENES: Well, except that half the population now,

Your Honour, is subjected in their ordinary

majority verdict. criminal jurisdiction to being convicted by

DAWSON J:	How does that aid you in the interpretation of the Constitution?
MR ROZENES:	Because, Your Honour, in our submission, the

founding fathers saw fit to pick up State

jurisdiction in order to trial Commonwealth

offences. They understood that the Commonwealth

would take the States as they found them. Today

the Commonwealth takes the States as they are with

four of the eight jurisdictions providing for trial

by jury with majority verdicts. In our submission,	in interpreting what weight should be given to the
concept of "jury" today in section 80, it is hard
to close one's eyes to the fact that half the
country is now governed by a regime where people
are convicted on a daily basis by majority verdict.

DAWSON J:  I suppose you could say if juries were abolished

altogether in the States, then section 80 would

have no meaning because we have to adapt it to
changed circumstances. Well, that is a

non sequitur, is it not?

MR ROZENES: That is a non sequitur, with respect, yes,

Your Honour. No one says, as I understand it, that

there is an abolition of the jury in any of the

States where there is a majority verdict.

DAWSON J: Well, I am not sure if that is not so.

MR ROZENES:  There is an abolition of the jury in England,

Your Honour, and in Scotland and in half the

American States.

BRENNAN J:  Mr Rozenes, it is not put that there are any

circumstances that have changed which make it

necessary to adopt a majority verdict such as, for

example, the prevalence of jury nobbling.

MR ROZENES:  No, not as I understand it, Your Honour. They

are not arguments that are put here, Your Honour.

BRENNAN J: No.

MR ROZENES:  They may have been the arguments that were put

to the legislators in the various States and

Territories that decided that they should have

majority verdicts, and there may have been good

reasons why those legislators took that course.

BRENNAN J: The history of the jury in England shows that the common law did respond to necessity by

Cheatle(2) 23 2/2/93

allowing, for example, the withdrawal of a juror before verdict by consent of the prosecution and defence, and by a discharge of a jury without

allowing them to be reduced to circumstances of

inhumanity. But there is no notion of any

necessity doctrine affecting section 80?

MR ROZENES:	No, Your Honour.
BRENNAN J:	No .
MR ROZENES:	The citations for the remaining Justices in

Brown are set out in our outline, and I will not

trouble the Court with those. If I can deal with

the position in the United States because it is here, we would submit, where the history of our

section 80 probably emerges in Article III of the

United States Constitution and subsequently in the

Sixth Amendment, and ultimately the Fourteenth

Amendment - has it made that applicable to various

State jurisdictions. Up until the decision of the

United States Supreme Court in Apodaca v Oregon

handed down at the same time, I think, as Johnson v

Louisiana, the view in America was that unanimity

was a requirement of the jury process. If I can	take the Court firstly to Apodaca and to the
judgment of Mr Justice White, and if I may trouble
the Court by reading a fairly significant part of
that judgment as it covers most of the arguments advanced. Commencing at page 407, His Honour
commenced by tracing the history of the jury:

Like the requirement that juries consist

of 12 men, the requirement of unanimity arose
during the Middle Ages -

and there is a fairly substantial footnote - and had become an accepted feature of the

common-law jury by the 18th century. But, as

we observed in Williams, "the relevant

constitutional history casts considerable

doubt on the assumption ... that if a given

feature existed in a jury at common law in

1789, then it was necessarily preserved in the

Constitution." The most salient fact in the

scanty history of the Sixth Amendment, which

we reviewed in full in Williams, is that, as

it was introduced by James Madison in the
House of Representatives, the proposed
Amendment provided for trial

vicinage, with the requisite of unanimity for "by an impartial jury of freeholders of the

conviction, of the right of challenge, and

other accustomed requisites .... " -

Cheatle(2) 24 2/2/93

and the significant words for the purpose of my

submission were that the original draft provided

for unanimity.

Although it passed the House with little

alteration, this proposal ran into

considerable opposition in the Senate,

particularly with regard to the vicinage

requirement of the House version. The draft

of the proposed Amendment was returned to the

House in considerably altered form, and a

conference committee was appointed. That

committee refused to accept not only the

original House language but also an alternate

be defined as possessing "the accustomed suggestion by the House conferees that juries

requisites."

There was a letter from James Madison to

Edmund Pendleton to that effect.

Instead, the Amendment that ultimately emerged from the committee and then from Congress and

the States provided only for trial

"by an impartial jury of the State and

district wherein the crime shall have been

committed, which district shall have been

previously ascertained by law .... "

As we observed in Williams, one can draw

conflicting inferences from this legislative

history. One possible inference is that

Congress eliminated references to unanimity

and to the other "accustomed requisites" of

the jury because those requisites were thought

already to be implicit in the very concept of

jury. A contrary explanation, which we found

in Williams to be the more plausible, is that

the deletion was intended to have some

substantive effect. Surely one fact that is

absolutely clear from this history is that,

after a proposal has been made to specify

precisely which of the common-law requisites

of the jury were to be preserved by the
Constitution, the Framers explicitly rejected

the proposal and instead left such

specification to the future. As in Williams,

we must accordingly consider what is meant by

the concept "jury" and determine whether a

feature commonly associated with it is

constitutionally required. And, as in

Williams, our inability to divine "the intent of the Framers" when they eliminated references to the· "accustomed requisites"

requires that in determining what is meant by

Cheatle(2) 25 2/2/93

a jury we must turn to other than purely	historical considerations.
Our inquiry must focus upon the function served by the jury in contemporary society.
As we said in Duncan, the purpose of trial by
jury is to prevent oppression by the
Government by providing a "safeguard against
the corrupt or overzealous prosecutor and
against the compliant, biased, or eccentric
feature of a jury obviously lies in the judge." "Given this purpose, the essential
interposition between the accused and his
accuser of the commonsense judgment of a group
of laymen .... " A requirement of
unanimity, however, does not materially
contribute to the exercise of this commonsense
judgment. As we said in Williams, a jury will come to such a judgment as long as it consists
of a group of laymen representative of a cross
section of the community who have the duty and
the opportunity to deliberate, free from outside attempts at intimidation, on the question of a defendant's guilt. In terms of
this function·we perceive no difference
between juries required to act unanimously and
those permitted to convict or acquit by votes
of 10 to two or 11 to one. Requiring
unanimity would obviously produce hung juries
in some situations where nonunanimous juries will convict or acquit. But in either case,
the interest of the defendant in having the
judgment of his peers interposed between
himself and the officers of the State who prosecute and judge him is equally well served.
If I can take Your Honours to our outline,

that proposition is, of course, gleaned in part

from what was said in the previous judgments of that court in Duncan v Louisiana and Williams v

Florida, and ultimately is the submission that we

make to this Court, that this Court should, in

interpreting the requirement of jury as provided by

section 80, look to see what the purpose of the

provision of a jury was and be satisfied that that purpose is served by the interposition between the prosecution and the State of a body of lay persons who are able to deliberate free from intimidation

on the question of a defendant's guilt, and that is

the, as I have said before, the only guarantee, in

our submission, that section 80 provides.

we will make available to the Court in some

tabularized form the various reports that have been

provided by both the New South Wales Law Reform

Commission and a Victorian study by Mr Willis and

Cheatle(2) 26 2/2/93

perhaps provide that to the Court in due course in

some sensible form. We rely on each of the matters

set out in our outline of argument and, in

particular, support the submissions to be made by

our learned friend, Mr Rose, intervening on behalf

of the Attorney-General for the Commonwealth, in

relation to the discrimination issue that is raised

by the notices served.	May it please the Court,
they are our submissions.

MASON CJ: Thank you, Mr Rozenes. Mr Rose.

MR ROSE:  If the Court pleases, so far as section 80 of the

Constitution is concerned, we would adopt the

submissions made by my learned friend, Mr Rozenes,

and also the submissions to be made by my learned

friends, the Solicitors-General for South Australia

and New South Wales. My submissions will be

confined to the point which arises from the

appellants' written outline on page 2 paragraph 6,

which asserts that:

It is not possible for the Commonwealth to

give varying applications of the phrase 'trial

by jury' in section 80 by reference to the

varying laws of the States.

Although that particular sentence refers to section 80, it did seem to us that very much

involved in this case is the argument that because

the Commonwealth legislation here applies the

provisions of State laws that provide for majority

verdicts in some States but not others, there is

the argument that it is invalid unless the

distinctions rest on what this Court regards as a

rational and relevant basis, and that argument is

derived from the decision of this Court in Leeth v

The Commonwealth in 174 - - -

MASON CJ: Mr Rose, we do not appear to have your outline of

argument.

MR ROSE:	I am very sorry, Your Honour.
McHUGH J:	I was looking at the heading of your argument to

see whether I was reading the wrong case.

MR ROSE:  Your Honour, as I did say in opening, the case

does seem to involve the proposition as does appear

from that sentence in the appellant's written

submissions, that the variation from State to State

in the application of this Commonwealth law is the

argument that that is invalid, not because of

section 80 but because of some implied principle of

discrimination in the Constitution.

Cheatle(2) 27 2/2/93

Leeth from the judgments of Your Honours	The principles emerge in the judgments in
~ust~ces o7an7 and Toohey, su~porting a very broad	implied principle of substantive equality and from
remarks in the judgment of Your Honour
Justice Brennan in which Your Honour indicated that
the Commonwealth law imposing different maximum
penalties for a Commonwealth offence varying from
State to State would be invalid because of an
implied doctrine which I would call one of geographical uniformity.

MASON CJ: It was not altogether clear to me, Mr Rose, from

Mr Borick's oral argument that he was presenting

the argument as you see it. Perhaps I might ask

Mr Borick. Are you presenting an argument based on

Leeth?

MR BORICK:  No. Our argument is that it has got to be

looked at in the light of section 80 and I think my

friend's argument moves away from what I would be

putting.

TOOHEY J:  I understood your argument to be the trial by

jury has a particular meaning and it is a meaning

that operates wherever it applies and it does not

differ from State to State, but not by reason of

any non-discrimination principle.

MR BORICK:	Yes, that is so Your Honour.
MASON CJ:	Mr Rose, now that Mr Borick has clearly stated

that, it seems that your exercise is really not so

much a labour in vain, but an irrelevant labour.

MR ROSE:  Well, if the Court is proposing to dispose of the

case on the basis solely on the arguments put by

appellant against validity, that would be so,

Your Honour.

MASON CJ: Mr Rose, we do have the benefit of this written

out, and I think it is fairly comprehensive. In

the event that it becomes necessary for the Court,
in considering this matter, to investigate these

propositions more comprehensively, then the Court

would relist the matter for argument and give you

the opportunity of developing your written

submissions.

MR ROSE: If the Court pleases. If I may, just one point in

relation to section 80 which I had hoped to have

some material here by now. But, in relation to the

expression, "trial by jury", in 1900, I mention to
the Court that, in relation to civil actions the

expression, "trial by jury", appeared to be used

quite naturally in relation to trials where

majority verdicts were allowed.

Cheatle(2) 28 2/2/93

I~ aware of one instance, there may be more,

but the instance I know of was in Tasmania in the

1834 legislation and repeated in later legislation

in which trials with a majority verdict in civil '

cases were referred to as trial by jury.	If the
Court pleases.

MASON CJ: Thank you, Mr Rose.

GAUDRON J:  Mr Rose, could I ask you this before you depart.

composition of juries or the like for the trial of federal offences? There is no Commonwealth law on the subject of the

MR ROSE:  No, Your Honour, it is done through section 68 of

the Judiciary Act.

GAUDRON J:  Now, does it follow, if the South Australian law

is not a faithful implementation of section 80,

that there is no basis on which trials of federal

offences can proceed in that State?

MR ROSE: Well, one analysis, if Your Honour pleases, would

be that in so far as the State provisions provide

for majority verdicts inconsistently with

section 80, then those provisions of the State law

are not picked up by section 68 of the Judiciary

Act.

GAUDRON J: But then there are no other provisions to pick

up, are there? What I am asking is, is there

anything else to pick up?

MR ROSE:  It would be the provisions of the South Australian

law before they were repealed.

GAUDRON J: Well, I do not know that that follows, does it?

I do not know that the Judiciary Act has that

effect. Perhaps nothing turns on it.

DAWSON J: The Commonwealth could presumably - and I am not

putting forward this proposition, but asking a

question - pass a law providing for unanimous

verdicts in the trial of Commonwealth offenders in

South Australia?

MR ROSE:  The Commonwealth could certainly pass a uniform

law, yes, requiring, on our view - - -

DAWSON J: This problem was adverted to in Brown, was it

not? What happens if a State abolishes trial by

jury?

MR ROSE: Well, I go back, with respect, to my earlier

answer; perhaps the position was that before that

State legislation was passed, during the course of

his century at various times - I am not aware of

Cheatle(2) 29 2/2/93

Judiciary
the precise dates, but the Commonwealth since 1903, did not pick up those alterations to the State law in so far as they were inconsistent

with section 80, so that it may be that the older

State law continued on, having been picked up by

section 68 in the first place.

GAUDRON J: That might be all right so far as it is amended

but it may not follow so far as the State law was

repealed.

MR ROSE:  If it was repealed, there would be a complete new

law replacing it. I do not think I can take the

matter further at this stage. If the Court

pleases.

MASON CJ: Yes, thank you, Mr Rose. Mr Solicitor for South

Australia.

MR DOYLE:  I think Your Honours have our outline already?

MASON CJ: Yes.

MR DOYLE:  Have Your Honours had an opportunity to read it?

MASON CJ: Yes.

MR DOYLE:  I might just - although I will come back to this

point - but I will just begin by touching on the
point Your Honour Justice Gaudron raised and just

indicate very briefly what the answer is, and then

in the course of the submissions come back and

develop it a little more fully. Perhaps to answer

this I need to ask Your Honours to look at the

Juries Act of South Australia, section 57. That is
not in the book of materials we provided, but I

take it Your Honours have the Act there? It may be

I have left off our list of authorities the most

obvious Act to put on it. I am beginning to get

the impression I may have done that.	Do
Your Honours not have the Juries Act?

MASON CJ: No, we do not have it.

MR DOYLE:  I am sorry, Your Honours. I will get copies of

the section I am referring to over the lunch hour.

Could I just then tell Your Honours that

section 57(1) says:

Subject to subsection (2), where a jury,	having retired to consider its verdict, has
remained in deliberation for at least four
hours and the jurors have not then reached a unanimous verdict -
( a) -

Cheatle(2) 30 2/2/93

verdicts. and then it goes on to provide for majority

In our respectful submission the structure of

verdicts were unanimous strongly suggest that, in	the Act and the history of juries and the fact that
effect, this is legislation which proceeds on the
up with a unanimous verdict, but if it does not basis that the jury will, in effect, normally come
within a certain period of time, then here is an
result. additional means by which the jury can give a

Therefore, our very brief answer to

Your Honour Justice Gaudron would be that if the

Commonwealth legislation does not pick up

section 57(1), nevertheless the silent assumption

of unanimous verdicts as being, in effect, the

initial or the usual way of returning a verdict,

can continue to operate and so the jury can still

return a verdict. It is just that in Commonwealth

cases section 57(1) is not picked up; leaving the

jury free to proceed, as it has always proceeded

before the enactment of section 57(1) or similar
predecessors, because the requirement for unanimity

was never statutory, it was always simply a common law principle that operated alongside the relevant

Juries Acts.

Your Honours, coming to our outline of

submissions: the very first proposition - my hand hovered over those words "possible" and I thought at times, perhaps I should say "at least", because

as soon as counsel says there are three possible

ways of considering the matter, someone quickly

finds further approaches. But, in my respectful

submission, it really does come down to those three

possibilities, namely that in section 80 the
reference to "trial by jury" either means what

Sir Samuel Griffiths said in Snow's case, the institution of trial by jury, in effect, as we knew

it in 1900, or that what it means is something a

bit looser than that, but it means the jury with -

as I have said there - all its historically

characteristic features, and then the third

possibility, we submit, is that it means, "Well

whatever it is, it must be something that still, in

effect, answers that description 'trial by jury'",

which, in our submission, takes you to that third

approach, the functional one, you say, "Well, does

the jury, as constituted, retain all features

essential to the function or purpose of the jury?"

I propose just to stay at this stage for a moment, that is, the appropriate form of the

question because, in our submission, unless one is

reasonably clear on the precise question to be

Cheatle(2) 31 2/2/93

asked, one can, we.would respectfully submit,

assume the answer in the form of the question, and

Your Honour Justice Dawson earlier this morning

said, "Well is 10:2, for instance, a verdict of the

jury as it was known? Well, of course, putting it

that way almost, we respectfully submit, presumes
the answer because, in our submission, what

Your Honour is really saying is, "Well, as at 1900

juries returned verdicts unanimously and therefore

Now, our respectful submission is the way	how can a 10:2 verdict be a verdict of the jury?"
Your Honour put it is simply, with great respect, a
tendentious version of what I would call the
Griffith approach, namely, it is the jury as we
knew it at the time, because that is what you have
really, with respect, said; you have said, that is
how juries return their verdicts, so how can returning it a different way still be a verdict of
meant unanimous. the jury, because in 1900 "verdict of the jury"

DAWSON J: That is not really so, is it, Mr Solicitor? The

jury evolved as a matter of history and as time

went on it was seen what were the essential

features of the system which it embodied and it may

be, for instance, that the concept of proof beyond

reasonable doubt was something which developed

separately in a sense from the jury system -

certainly it did - and it came subsequently, but

when you look at the jury at any particular time,

at particular stage of its evolution, you can

identify those things which are essential to its

operation. And one of the things which is

essential is that a jury should reach its verdict

on the basis of proof beyond reasonable doubt, and

you cannot have proof beyond reasonable doubt if

two jurors have a reasonable doubt, or one.

MR DOYLE:  Yes, well, with respect, that, in my submission,

is a separate point.

DAWSON J: But why is it separate, if that is part and

parcel of the jury system, as we know it now and as

we knew it in 1901?

MR DOYLE:  Yes, well it is part, I agree Your Honour, of the

same general issue. My answer to that, with

respect, and I would like to develop that in a bit

more detail later, is that the notion of reasonable

doubt is explained by the trial judge to the jurors

as individuals and, with respect, it only has

meaning as an instruction or explanation addressed

to 12 individual people; it is not addressed to

them corporately or as a group.

DAWSON J: Well, that is what the judge tells the jury, but

if you look at the jury and its verdict, if you

Cheatle(2) 32 2/2/93

have two people who say they have a doubt, can you

beyond reasonable doubt? say that the case has been proved to the jury

MR DOYLE: In my respectful submission, you can. Could I

first of all make clear -

DAWSON J: Well, only on the basis that those who had the

doubt are not reasonable.

MR DOYLE:  No, with respect, and that is a concession made

by my friend, Mr Rozenes, with which I, with

respect, would not agree. I would make no

assumption about the two dissenters; I would simply
submit that proof beyond reasonable doubt is

addressed to the individual jurors. The next

question is, "How does the jury deliver a
decision?", and the question of whether the

decision must be unanimous or by a majority is

certainly logically distinct from the existence of

proof beyond reasonable doubt and, in my respectful

submission, simply as a matter of history, the way

the jury delivered its result should not be

identified with a particular feature of criminal

trials at that time and still, namely, proof beyond

reasonable doubt.

Even the judges in America who have insisted upon unanimity and who have addressed this point, have agreed that the two points, that is proof

beyond reasonable doubt and unanimity, are

logically distinct. They are linked as a matter of

history and they are obviously important aspects of

the funcrioning of the jury. But could I just

postulate also in answer to Your Honour's question?

My knowledge of legal history is incomplete, but I

believe, in an earlier period, courts heard cases

in bane, the whole court, and matters of fact were

tried that way. Now, I do not actually know for

sure but what Your Honour puts suggests that even

in a civil case then, unless the whole bench could

agree on the result, how could you say something

was proved on the balance of probabilities if one

of the judges did not agree?

DAWSON J: Well, I have no difficulty with that.

MR DOYLE: Pardon, Your Honour?

DAWSON J:  I have no difficulty with that, at all. The

balance of probability is entirely different.

MR DOYLE:  But then Your Honour must be going, with respect,

back just to the historical form of the jury. In

other words, if there you can separate, you can

say, well the court can deliver a result by

majority, that is, the court as an entity,

Cheatle(2) 33 2/2/93

logically you say there is proof on the balance of

probabilities, even though a minority of the judges

were not so satisfied, why cannot one say that

logically there has been proof beyond reasonable

doubt because a stipulated number of jurors are so satisfied.

DAWSON J: Because the principle is that a man should not be

convicted where there exists a reasonable doubt.

Not a reasonable doubt on the part of the

And if the body which is to try the man has two individual jurors, but exists a reasonable doubt.

reasonable doubt. jurors who has a reasonable doubt, there exists a

MR DOYLE:  Yes. Well, in my respectful submission,

obviously I must agree with the first part of what

Your Honour puts to me, a man is not to be

convicted if there is a reasonable doubt, and I

think I am probably degenerating to assertion, but

in my submission, that is a concept addressed to

the individual jurors and the fact that two jurors

held such a doubt, a reasonable doubt, does not

mean that there is•not proof beyond reasonable

doubt because when we talk of proof beyond

reasonable doubt there, we shift from the

instruction or message addressed to the individual

juror to a shorthand way of expressing how the

court may come - - -

DAWSON J:  I do not understand that. The body to try the

accused is not ten jurors but twelve.

MR DOYLE:  Your Honour, the body to try the accused is the jury -

DAWSON J: Yes, well whatever number it is, it would not

matter if it were six or eight or twelve, but it is

the total number.

MR DOYLE: Granted. It is the jury. The jurors must

individually consider whether they are satisfied

beyond reasonable doubt but, in my respectful

submission, the fact that two of them says, "We are

not." does not prove logically or in any other way

that there is not proof beyond reasonable doubt.

It tells us that - - -

DAWSON J: But it does point to the existence of a doubt,

and unless you assume they are not reasonable, it

points to the existence of a reasonable doubt.

MR DOYLE: Well, Your Honour, can I, with respect, make no

assumption at all. Certainly one, anyone, would

feel more comfortable with a unanimous verdict than

with a majority verdict, on precisely the reasoning

Your Honour puts, that if two jurors were in

Cheatle(2) 34 2/2/93

dissent, and if we assume they are reasonable

people, then two of the twelve had a reasonable

doubt. But, in my respectful submission, it does

not cast doubt on the logical proposition that
nevertheless, that because ten were satisfied
beyond reasonable doubt, one then says, now the
next question is what number do we require to be

satisfied beyond reasonable doubt before we say in

the corporate sense, there is now proof beyond

reasonable doubt. So, you move from the individual

satisfaction to the logically and practically

separate question, now what number of their total

have to be persuaded before there is the

requisite - I should not say the requisite degree

of proof - before the conviction can be recorded or
entered.

And, so, my submission is that in truth what

Your Honour - I am sorry - I started on
Your Honour's proposition, namely, is 10:2 a

verdict of the jury, and then we moved to

reasonable doubt. But, going back to the point

where I started, my respectful submission is, as I

have put to Your Honour, that is in truth a version

of the historical form of the propositional

question, namely, well, a jury must be a jury as we knew it in 1900.

I would also respectfully submit that in the

end, what Your Honour Justice Deane said is a

version of the historical question. Your Honour

said, in effect, "Is there a difference of

substance between a unanimous verdict and a

majority verdict?" If there is a distinction of

substance, I think it was the intention to, in

effect, acknowledge that distinction and insist

upon the maintenance of the unanimous verdict, the

change not being a non-substantive matter and

therefore not an unimportant matter.

In our respectful submission, that also really

seems to come back to putting it in terms, "Well

now, did they mean to keep trial by jury as it was

when they knew it except for insignificant

details?" In my respectful submission, that is in

truth again the historical form, namely, the jury

as they knew it, but then putting aside things that

we can class as mere incidentals or mere details

matters that do not really matter at all.

So I would agree, with respect, that as a

matter of policy and practical sense there is a

real difference of substance between a majority

verdict and a unanimous verdict but, in my

respectful submission, that affirmative answer does

not answer the question before the Court today,

Cheatle(2) 35 2/2/93

"What did they actually mean by section 80 when

they said trial by jury?"

Your Honours, in our outline we deal with the

three possible approaches, and we submit that the

approach of Sir Samuel Griffith would lead to real

difficulties, and in particular - that is, it is

the jury as it was known in 1900 - we focus on the

property qualification, and that was the universal fact that in 1900 juries were male and there was a

practice at the time. Our submission is that they

would have been regarded as matters of substance or

significance at the time, especially the property

qualification, and so if section 80 meant trial by

rid of the gender requirement and the property jury as it was known at the time, how does one get

qualification? And as we all know, over the years

after 1900 they were removed in all States of

Australia.

So, our submission is that there is a fairly

significant difficulty with what I will call the

Sir Samuel Griffith approach saying - - -

DAWSON J: Not really. If these are evolutionary

developments which enhance the function of the jury

and do not cut across its main purpose, they are

different.

MR DOYLE: Well then, with respect, Your Honour seems

DAWSON J:  I mean your judgment of your peers becomes much

more a judgment of peers when there are no property qualifications and there are no females. But it is

one thing to develop in accordance with the

fundamental principles of the jury system. It is

another to cut across it.

MR DOYLE: Well, I would respectfully submit that

Your Honour is then accepting my functional

approach and saying changes can be made as long as

they do not detract from the essential functions of	the jury and, of course, this part of my submission	is directed to that very point, to saying that is
the approach that has to be taken, that you simply
cannot take what may seem the easier historical
approach. So in that sense, I would submit that
what Your Honour puts to me only supports the
submission I am putting.

So we would argue there does seem to be that

almost - - -

BRENNAN J: Your proposition, Mr Solicitor, is that the

constitution of the jury panel was an integral part

of what was meant by trial by jury, male and

property qualification?

Cheatle(2) 36 2/2/93

MR DOYLE:  In 1900 it would have been so seen, yes,

Your Honour, and as a matter of importance, a

matter of substance.

DAWSON J:  Now, is there anything to bear that out, any

historical material which demonstrates that?

MR DOYLE:  I will come to it, Your Honour, but not material

that supports it in the argumentative sense, but

perhaps just the historical fact that there appears	to have been both a common law property
qualification, but certainly as at 1900 for many
years a statutory property qualification. I
propose to invite Your Honours to look at some
material from Sir Patrick Devlin's book. One sees
there in England as late as, I think, either 1950
or 1960 it is still being argued that this property qualification is desirable and that it ensures that
the right sort of people are on the jury.

In other words, the concept of the jury as

providing simply trial by one's peers is, in our

respectful submission, historically inaccurate.

What it always provided was trial by a segment of the community, and it was a segment which excluded

the people who one would think most frequently

would tend to come before the courts, what would

then have been called the lower classes who could

not afford to own property. In our submission, it

looks as if it was regarded as important. As I

said, I cannot point to any historical material and

in any event, anything I could point to would only

be, I suppose, an expression of opinion by a writer

of the times or a member of the bench.

So we rely simply, I suppose, on the long-standing nature of the property qualification

and, I suppose, certain assumptions about attitudes

to women on juries in support of the proposition

that as at 1900 those two things could by no means

have been seen as unimportant or merely incidental.

BRENNAN J: That really raises a large area, it seems to me,

for consideration, because traditionally jury

statutes have provided for the exclusion of

particular categories, some of which have been

expressed in very broad terms, such as people not of good repute as so assessed by the local police sergeant. Is it your proposition that we are

really concerned with a question of how it was

understood by the statute law of Australia in the

several colonies in 1900?

MR DOYLE:  No, Your Honour, I do not think it is. I say

"think" because I would need to consider that a bit more carefully. My submission is that what we find

if we look at things as at 1900 is substantial

Cheatle(2) 37 2/2/93

uniformity within the Australian colonies, although

interestingly one possibly significant difference

and that is that as at 1900, Victoria for 10 years
had a provision under which a jury could proceed

with down to ten jurors in the event of sickness, apparently solely at the discretion of the judge,

and Queensland only as of one year had had a

provision under which a jury could proceed with

down to ten in the event of sickness, provided the

accused so requested and the prosecution agreed.

So that seems to us, with respect, to be a

significant difference, but what we put is that

subject to that, there was substantial uniformity

throughout Australia, while there were obviously

variations and things like challenges and

exclusions. Then we say the difficulty with the

Sir Samuel Griffith view is that if "jury" in

section 80 means jury as it was known in 1900,

granted there is substantial uniformity, provided

you can get over what is sometimes called the

drop-off problem, the provision for sick jurors,

but how do you then get away from the fact that in

1900 gender and property were specified

qualifications uniformly? Historically they were

long-standing qualifications, so how do you say

that those could be changed after 1900 and still it

is a section 80 jury, but unanimity cannot?

Our answer to all that is: the only way to

cope with these things is to take the functional approach and say that granted we have to bear in

mind what you might call a notion of the jury -

obviously if someone devised something that just

bore no relationship to it but still seemed to meet

the essential functions, one would say that is not

a jury, it does not look like the sort of thing

that was known at common law.

But our submission is that as long as the

thing, as it were, looks like a jury, then one has

to turn to the functions of the jury and say, is

the relevant change something which deprives the	jury of any features essential to that function?
In our submission - I am sorry to labour this early
part of it so much - it is quite critical actually to determine just what is the right approach to the issue and to be clear, in our submission, that the
right approach is not the approach of saying it is
the jury as we knew it and to be careful, when you
come back to the topic along the way, not to slip
back into that historical approach.

We would submit with respect that Your Honour

Justice Deane's proposition is in fact, as I said,

a disguised form of the historical approach. It

really has in it the germs of the idea that if that

2/2/93

· Cheatle ( 2) 38

was how they did it in 1900, then that is how it

has to stay unless it was a trivial or unimportant
matter. In our submission, that does not
completely pose the question. You have to say no.

You have got to look at whether the change removes

the jury of one of its essential features.

BRENNAN J: Sir Samuel Griffith's proposition was based on

the jury as understood at common law, was it not?

MR DOYLE:  Yes, his words were connoted by that phrase "in

constitutional law and in the common law of

England-".

BRENNAN J: Yes. That may be quite different from statutory

provisions which relate to the constitution of the

jury panel.

MR DOYLE: That could be, Your Honour, although I must say,

with respect, I had not taken him to use the words

with that degree of precision, namely, "I mean

common law juries and not juries as they are today

by virtue of statute", but rather to be saying in a

rather, one might say, grand style, "Well the

jury, as it was known at common law, is still with

us", and really to be sweeping up in what he said

statutory changes. the jury as it was at the time, including the

I am not sure of this, but in substance I

suspect it could be said that as at 1900 or at 1915

the jury, as it was known in Australia under the various Acts was, in substance, still the common

law jury. So I had not understood him to refer to
what I might call the true common law jury. But
even if he did, one still runs into the same

difficulty that that was all male and a property

qualification.

BRENNAN J: At common law?

MR DOYLE: Yes. Certainly male, and Your Honour, as to the

property qualification, if I can just check while I

am right on this point. In the book of materials

we have provided to Your Honours, I am afraid the

divisions are not very clear, the separate sections

are just divided by a blue page, but about

three-quarters of the way down are some extracts

from Sir Patrick Devlin's book "Trial by Jury" and

they are fairly recognizable because both pages of

the book are photocopied on the one page and it is

a fairly small typeface.

That book was written in 1956 and at page - it

is the very first page of the extract that we have

copied, it is page 17 from Chapter 2. It is about

three-quarters, perhaps four-fifths, of the way

Cheatle(2) 39 2/2/93

through the book of materials. Working from the

back there is a short extract from Stephens' book,

then a longer extract from Cornish's book on the

jury and then comes Sir Patrick Devlin's book.

Your Honours, page 17, the first page of Chapter 2,

in about the middle of the page he says:

At common law the qualification was that the

alien. juror should be a freeman, not a villein or an

And I suspect there that "freeman" means free male.

But from the earliest times statutes have imposed a property qualification as well. A man of property was thought less likely to be

corruptible and more easily punishable by

fine. The qualifications in force at present

were settled in 1825 and have remained the

same ever since, - - -

BRENNAN J: That rather suggests that the qualification at

common law was one of status, not of property.

MR DOYLE: Well, yes, I must admit I had not.thought of that

distinction, Your Honour. Yes, I would have to

concede, Your Honour, it may well be and I would
have to check that more carefully, whether at
common law there was, in addition, a property

qualification, or whether it was purely one of

status.

But, unless Sir Samuel Griffith was then intending to refer to the true common law jury,

still as this passage indicates, the property

qualification was well known and Sir Patrick Devlin

says:

But from the earliest times statutes have imposed a property qualification.

So, obviously, stretching well back before 1825
when they were settled.	I am sorry, we have not

copied the footnotes and so I do not know whether

they throw any further light.

Well, Mr Parker tells me that from 1285 there

was a property qualification by statute, so it

would seem odd, really, if Sir Samuel was referring

back, as it were, to the jury pre-1285. I cannot

say he was not, but it is going a long way back and

the property qualification, in the light of that,

seems so long standing that one could almost say,

that is the common law jury. In fact, I suppose,

in a way, you could say, was there ever a true

common law jury after 1285 if, from then on, its

Cheatle(2) 40 2/2/93

composition was regulated by statutes imposing a

property qualification.

So, I have almost forgotten where I started

now, but I think I was saying that Sir Samuel

Griffith was probably, by common law, really

meaning the juries as we know them today, and that

that does, however you come at it, you keep running

into this problem - well, how did we validly get

rid of the property and gender qualification after

1900 and that then leads me in my submission to say

that the only way to approach this is the

functional approach.

The second possible approach which we identify

is to look for the so-called historically

characteristic.features. My submission as to that

is that is really a false trail, because what can

you ever say is historically characteristic. It is

an evolving institution, the jury, and history does

not enable one to say that as a matter of history,

this is characteristic. You can say, this has been

a long standing feature of the jury; you can say,

this is how the jury is at a given time, you can

say, this is essential for the jury to perform its

functions but, in our submissions, it is really

almost meaningless to say, "Well, what is

historically characteristic of the jury?" That is

really just a different version and, again, a

slightly confusing version of the other

propositions.

So, in our respectful submission, that

question of how one approaches the whole matter is

important, and we approach it on that functional

basis, saying you need to identify the functions of

the jury and then you need to ask yourself, in the

light of those functions, is it essential that the

verdicts be unanimous.

As we refer to Snow, could I just make one

other point about Snow's case before I move on, and

that is - it has not been suggested, but just to

make it clear in our respectful submission. It

could not be said that Snow's case actually decides

the point against us. In other words, in our

respectful submission, it is not the ratio of

Snow's case that the jury in section 80 is the jury

as it was known in 1900.

Although Sir Samuel Griffith used that

expression, when one looks at the judgments

overall, it seems that the two who agreed with him,

Justices Gavan Duffy and Rich, in effect, said,

"Well, section 73 providing for appeals does not

seem to refer to jury verdicts", and then they

buttress that reasoning by references to section 80

Cheatle(2) 41 2/2/93

and the nature of juries as they were known. But,

in our respectful submission, the ratio is a rather

narrower one as to what are appealable verdicts,

and the ratio is not the broader one as to the

meaning of "jury" in section 80.

Justice Powers was in fact in disagreement as a And indeed, the fourth judge in the majority,

matter of reasoning with Sir Samuel Griffith. He said that jury verdicts were appealable and, just

as a matter of discretion, he would not have given

special leave in that case. So all it actually

decided in fact, 4:2, was that special leave would

be refused for a variety of reasons.

DEANE J: Mr Solicitor, where does all this lead? If,

contrary to what you say, I suppose, one is of the

view that trial by jury for the purposes of the

Constitution meant a process by which the decision

was reached by agreement of the people constituting

the jury, and in that regard, of course, it is

relevant the phrase "for failure to reach a

decision" was always disagreement.

MR DOYLE:  Yes. Well, witrr respect, Your Honour is, I would

submit, putting to me another version of what I

call the historical approach.	Your Honour is
saying - - -

DEANE J: No, that is not what I am doing. What I am doing

is really suggesting that you are focusing your

attention on the word "jury" whereas the real

question is what does trial by jury mean.

MR DOYLE:  I see, trial by jury. Yes, I see.

DEANE J: Well now, in 1900 it is clear that in the criminal

context it meant decision by agreement of the

people described as jurors. You are saying that in

the Constitution it does not mean that, but it

means decision either by agreement or by a voting

or what I called an electoral process of the people

described as jurors.

MR DOYLE:  Yes.

DEANE J: Well now, I do not really see that the labelling

of various approaches really helps very much in

that process. If in 1900 it meant agreement or

disagreement of the people described as jurors, is

there anything more to be said?

MR DOYLE: Well, in one sense, no. If that is precisely

what it meant, and if one then says it means

agreement or disagreement as it was understood

then, no. But, in my respectful submission, that

way of putting it really does raise the same

Cheatle(2) 42 2/2/93

issues. I appreciate Your Honour's point, namely

look at the bigger phrase, "trial by jury".

Granted at that time, "trial by jury" meant either agreement unanimously or disagreement, but you still face the same difficulties in my submission.

It also meant certain other things, namely men who

were property holders and that cannot just be dismissed as an incidental thing.

DEANE J: Well, now - - -

MR DOYLE:  Because you cannot - if I can just say one thing.

You cannot, in my submission, separate the entity

from the process and Your Honour, in effect, is saying, "Well, yes I can. I am focusing on the

process. Do not worry so much about the entity."

DEANE J: No, what I am suggesting to you is that the jury

within certain limits meant a body representative

of the community, but that is not the question

here. The question is: "What, within the

Constitution, does trial by that body mean? Does
it mean trial by agreement of that body, or does it
mean trial by agreement or voting or what-have-you

of that body?" Now, I do not think that you answer

that problem by labelling things as historical or

what-have-you. It is really a matter of

ascertaining what it meant.

MR DOYLE: Well, in my submission, the natural meaning of

"trial by jury" is that in the trial questions of

fact are decided by certain representatives of the

community under the guidance of the judge. Of

course, it gets difficult, but although, as a

matter of history up to that time, that body

decided by all coming to a decision, in my

submission, the notion "trial by jury" by no means

necessarily carries with it the way in which the

jury at that time expressed its decision. That is

why I would adhere to my submission that the same

problems keep confronting us, namely, "How do we

distinguish between the jury as it was known at

that time?" because obviously, if we could turn the

clock back and say, "What do you mean by trial by

jury?" there is every reason to expect that you

would get an answer that was descriptive of the

process as it was known then, whether one takes the
word "jury" or the wider expression "trial by

jury".

McHUGH J:  But does it not mislead to speak of trial by jury

because that is not what section 80 says, is it?

What section 80 says is:

The trial on indictment of any offence against any law of the Commonwealth shall be by jury -

Cheatle(2) 2/2/93

as opposed to by judge.

MR DOYLE:  I am grateful to Your Honour because that seems

to help me a little, although in the end I would

submit, as I was putting to His Honour

Justice Deane, that we do keep confronting these

same problems. In 1900, anyone asked to answer the

sort of questions we are putting would almost

certainly have answered it in terms of the process

as it was known then. But what we have to really

ask ourselves is when it was put into the Constitution by people who understood the

significance of putting things into Constitutions
in the sense that, putting it colloquially, you can

be stuck with them thereafter, did they, when they put it in, intend it to carry, as it were, all the connotations which it had at the time, or were they

using it as a sort of shorthand for a means of

determining criminal issues?

Clearly enough, our submission is that they

were using it as a sort of shorthand, and it was a

very sensible thing to say. They knew the

institution of the- jury and what they meant was,

"Well, we want that sort of institution" and, in my

submission, if one had really been able to probe

their thinking it would have been along the lines,

"and it has to remain essentially the same, but

subject to that, changes can be made as long as

they do not deprive it of its essential functions".

And that is why, in our submission, we would argue

it is unlikely that when that expression "trial by

jury" was put into the Constitution that anyone

intended it to be either trial by jury as we know

it, or trial by the jury as we know it, because

they all would have realized immediately that they

would possibly be setting in concrete a number of

features which would be inappropriate in the

Constitution, that is, as it were, getting down to

the details of a criminal trial.

What they were searching for, in our submission, was the preservation of the important

constitutional principle that in pleas of the Crown

in criminal matters the questions of fact were

submitted to a group of representatives of the

community under the guidance of the judge, and this

was simply the natural and convenient way of

expressing that and that they would have meant to

go no further than that.

So, if I can put them in order, I submit, in

answer to Mr Justice Deane, that that approach

raises the same issues and then my fallback

submission is to adopt what Your Honour

Mr Justice McHugh put to me, that, in any event,

Cheatle(2) 44 2/2/93

when one looks actually at the section, the word

"jury" is divorced textually from the word "trial".

So, I then move forward, Your Honours, on the

basis that the right approach is the functional

one, namely, what are the essential functions of

the jury or the essential features of the jury? Is

the provision for majority verdicts something which removes from the jury, as we know it, one of those

essential functions or features? I will not

develop paragraphs 5 and 6 of our outline, in our

submission. As we put there, there is no need to

revisit the earlier cases and, in our submission,

no need to grapple with what Your Honour

Mr Justice Deane said in Kingswell and Brown about

the nature of section 80 because our submission is

that the approach we are taking is in truth what I

would call a substantive one. In other words, if

anything, we are looking at the nature of the

institution and its purposes and whether they were

being preserved; those who would take the

Griffith's approach, in our respectful submission,

are, if anything, taking a somewhat literal and

non-substantive approach, simply saying, "Well,

that is how it was in 1900 and that is what they

meant." So, we submit for those reasons it is not

necessary - we submit as we do in terms of

paragraphs 5 and 6 of our outline.

In paragraph 7 of the outline we list

characteristic or significant features of the jury

as it was known in 1900, and I do not, of course,

suggest that there are not others; they were the

ones which occurred to me as convenient ones to

illustrate the point, there may be some others.	I
omitted one that I have mentioned in my oral
submissions - well it is not so much a
characteristic feature, as a point to note about

1900 - that as at 1900 both Victoria and Queensland

had provision for juries to consider with less than

the full number and I think probably one should

also perhaps add to that list the fact that in all

States or in all colonies there were various

provisions under which people were disqualified

from jury service or exempted, but they seem to

have been substantially uniform.

Your Honours, to save t.ime, going to the book

of materials again, at the very beginning of that

book we have prepared a precis of the position as

it was at 1900 in the various colonies, focusing on

the points we have listed in paragraph 7 of our

outline. Behind that precis we have extracted the

provisions of the various colonial acts that

support what is in the precis. In particular,

Your Honours will see when you look through it that

the gender qualification was universal at that

Cheatle(2) 45 2/2/93

time, and so was the property qualification in

particular.

Again, it is also interesting to note that as

that time in all colonies, just referring to South

Australia, for instance, as by our section 37,

there was provision for a jury de medietate

linguae, the right of the alien to have a jury
comprising people, at least half of whom spoke his
native tongue. Again, that is a feature which has
disappeared, and one might think that that being a

feature of long standing also in 1900 would have

been seen as a feature of trial by jury, because

one could very well say an alien has the right to

be tried by a group, half of whom speak his

language, and yet that also has gone now.

So there is that summary, Your Honours, of the

position as at 1900. After the extracts from the
colonial statutes, that is after the first blue

divider, there is another shorter summary, and this

time not supported by the materials, just putting

in precis form whe~ salient features of the jury as
at 1900 were altered in the various States of

Australia and sometimes in very brief form the

nature of the alteration.

What Your Honours will see, as is probably

known to you, is that South Australia led the way

with majority verdicts in 1927 but the gender

qualifications and property qualifications were in

many cases removed relatively recently in the

1960s, which just reinforces our point that it is

very difficult on the purely historical approach to

get around the gender and property features of the

jury at 1900. I know it does not prove it, as it

were, but the fact that these features remained in

the system until as late as the 1960s in, I think,

the majority of the States just, in our submission,

emphasizes the difficulty of getting around it.

While I am perhaps just on that historical

part of it, could I also make one point about the

debates which are also in our book of materials,

immediately after the section I was just talking

about and are relatively inconclusive? But it may

be of some significance that there was no

discussion there of precisely what the requirement

did mean, or no significant discussion and that, in

my submission - I suppose it could point two ways.

It could mean, "Well, they meant it exactly as it

was at the time", but I would argue it is

inherently unlikely that they would have meant it

that way.

So, therefore, in our submission, the absence

of discussion of matters of principle suggests that

Cheatle(2) 46 2/2/93

they were expressing what I have called the

constitutional principle, rather than any settled

and definite view about particular features of the jury, and it should be borne in mind that although majority verdicts were not known in 1900, the idea well established as a concept and as a possible of majority verdicts seems to have been reasonably

reform.

That appears from the very last portion of

material in our book at the very back: Stephen's
History of the Criminal Law of England, the 1883

edition, and we have just extracted a few pages

there, but Your Honours will find in due course

that at the bottom of page 304, the top of

page 305, Sir James Stephen discusses there the
possibility of majority verdicts and while he

disagrees with it in principle - I am just making	the point that, even as at 1900 the idea of
majority verdicts, as a law reform idea, had been	around - - -

DAWSON J: Scottish verdicts were by majority.

MR DOYLE:  Of course, Your Honour, yes, and so therefore, as

I say, I know this sort of argument can be turned

either way but, in my submission, it just seems

rather unlikely that they put those words in there

meaning, "It is the jury, as we know it", and then

did not address any of these issues such as, "Well,

what if one of the colonies, in a few years time,

decides to pick up the reform that

Sir James Stephen has talked about?" One would

tend to think that at least some of those issues

would have been canvassed if they were really
meaning the jury as we know it.

So, therefore, our submission is that history certainly does not enable one to solve this problem

nor do concepts of substance and procedure, just,

as it were, in isolation saying, "Well, is this a

substantive change or a procedural change?" They do
not help us to solve it.	In the end the logical

approach and the sensible approach is to say,

"Well, has a change been made which deprives the

jury of any of its essential functions?"

To save time, Your Honours, and without reading from them, can I give you some page

references to Devlin and Cornish, as extracted,

which deal with the property qualification in

particular, and they are Devlin, pages 17 to 18, 20

and 22 to 25; and Cornish, pages 25 to 26, 27, 28
and 29. And on majority verdicts, as against

unanimous decisions, Devlin at 55 also has a

discussion.

Cheatle(2) 47 2/2/93

So, Your Honours, our submission is that also

the approach which we urge on the Court, that is

the way you approach the issue, has substantial

support in America.	I do not think it is necessary
for me to actually go to these cases.	I have

endeavoured in paragraphs 9 and 10 of the outline

really just to pick up what the approaches were,

because what I am focusing on at the moment is how

does one address the problem and so, unless

Your Honour is asking me to, I will not read from

the pages I have referred to. But when we look as

we do in paragraph 9 at the outline at

Williams v Florida where they looked at the number

which was essential, there were two steps in the

reasoning: first of all, as we note there, they

found no intent of the framers to insist upon

common law characteristics. Now, I suppose one

could say, "Well, we would argue that you cannot,

in terms of our debates, find any such intent, so

so far, as it were, you are in neutral." And then,

without actually discussing the point which ram

labouring, namely, what is the right way hereafter

if we cannot find an intent of t_he framers, they

simply move on to the functional approach and, we

would respectfully submit, rightly so.

The minority, we find, however, when you look

at their reasons in due course, tended to put more

weight on the historical form of the jury, but it

is interesting in Williams v Florida that none of

the minority judges, Harlan, Stewart or Marshall,

even raised or addressed that issue, "Well, how do

we get rid of the gender qualification, how do we

get rid of the property qualification?", and yet

they simply say, the jury is the jury as it was

known as a matter of history. So, that is the

minority approach.

Apodaca is a little more difficult to know in a sense precisely what to make of it because there

four judges said you do not need unanimity either

under the Sixth Amendment in Federal cases, or

under the Fourteenth Amendment in State cases.

Four on the other side said you have to have unanimous verdicts in both situations and then

Justice Powell seems to have confounded a number of

his brethren by going down the middle and saying
"You do have to have unanimous verdicts under the

Sixth Amendment in Federal cases, but you do not under the Fourteenth Amendment in State cases".

And so the decision of the Court was the decision

of what I have identified as the four majority plus

Powell J, unanimity for Federal cases but not for

State cases.

Again, it is interesting when one looks at the

approach taken, as we note there, that the majority

Cheatle(2) 48 2/2/93

judges, or the four I have called the four majority
judges, all took a strictly functional approach.

Justice Powell, the one who, in effect, determined

functional approach", and came to the same conclusion as the majority, namely, that on a functional approach unanimity was not essential.

the outcome and went down the middle, said that as
a matter of history the Sixth Amendment referred to
the jury as it was known, but when he moved to the

The way Justice Powell put it in relation to

the Sixth Amendment was to say that the framers
desired to preserve the jury's safeguard as it was

known to them at common law and he said that the

result of a Sixth Amendment was mandated by

history. But again, in none of the judgments - and•

I am sorry to labour this point but it is

significant in my submission - which take the

historical approach again does anyone grapple with

the issue of the gender qualification or the

property qualification, they focus solely on the

precise issue before them.

As we note in paragraph 11, there is a

convenient summary in that later case of Burch of

the development of the United States law in this

area. So we do submit that the American approach

generally supports what I have called the

functional approach, although obviously

acknowledging that even when the functional

approach has been taken, it has not led to a

unanimity of result. In other words, some have

said on a functional approach you have to maintain

unanimity, some have said you do not. The other

point I would make is that the judgments do repay
reading in terms of the way in which the individual
members of the Court discuss the functions of the
jury and the impact of numbers and unanimity on

those functions.

Your Honours, we looked at the Canadian

position, but our conclusion is that probably not

much guidance can be drawn there. The Canadian

Charter in section 11 provides for a right to trial by jury, and in the 1985 case we refer to it was held that the jury of six answered the

constitutional description, but it seems fairly

clear that that result was reached by virtue of the

fact that as at the time of the adoption of the

charter, six-man juries in the more remote

territories were relatively well known, and so it

was based on a particular Canadian experience. In the 1989 case of Turpin it was held that

the right to a jury trial could be waived, and

interestingly there, some of the Australian cases,

Cheatle(2) 49 2/2/93

including Brown, are cited on the point, but once again the outcome seems to turn on the particular

language. Although the Leeth point is not to be argued today, Turpin is interesting just in that context because in Turpin they had to grapple with

the question of whether the Canadian principle of

equality was violated because in one province you

could ask for a trial by judge alone and in others	you could not. Therefore, in the provinces where
you could not have that choice, was the principle
violated, but we do not need to stay on that as the
point is not to be argued today. So the Canadian
material, in our respectful submission, is
relatively inconclusive.

As to the Australian material on unanimity, in

paragraph 13 of our outline we refer to the remarks

to which the Court's attention has already been

drawn of Justice Evatt in Newell and would simply

make the point that he was the only judge in that case who expressed himself in those terms and, in

our respectful submission, that could not in any

sense be said to be part of the ratio or part of

the decision of the Court. The decision of the

Court was simply that the law having changed in

relation to unanimity between the time when the man

pleaded not guilty and the time when the trial

actually went ahead, that as a matter of statutory

construction, the change was interpreted as not

applicable to that particular trial and, in our

respectful submission, the remarks of Justice Evatt

about the importance of unanimity, while relevant

to his reasoning, were no more than that and in no

sense part of the ratio.

Newell is referred to in Radway v Reg which

has been referred in paragraph 13 of our outline

but not in our submission on that aspect of the

matter.

After that rather laborious wind-up, I then

come to actually apply or attempt to apply what I

have called the functional analysis which does

require one then to identify the purposes of the

institution of the jury or its essential functions.

Your Honours, in paragraph 15 of our outline, we

have endeavoured to identify them, acknowledging

that at times there is an overlap and that others

might want to give some different emphases to those
we have given. Could I say that what we have got
in paragraph 15 is drawn first of all from the

passages in Brown v Reg and Kingswell which are set

out in paragraph 14, and the Court has been taken

to them this morning, or at least most of them, and

I do not propose to read from them again this

morning.

Cheatle(2) 50 2/2/93

Secondly, the items in paragraph 15 are drawn

from in particular the report of the Law Reform
Commission of Canada and the New South Wales Law

Reform Commission which are referred to in our

outline. Your Honours, as I refer to those

materials only to identify the stated objects of

the jury, I do not think, unless the Court wishes

me to, there is any particular point in me, as it

were, running through them now. Could I just give

the Court some particular page references. In

relation to the Canadian report, in particular

pages 19 to 31, dealing with the functions of the

Wales report, the following paragraphs in	jury and unanimity. In relation to the New South
particular: 9.9, 9.14, 9.33, 9.37, 9.39, 9.41 and
9.43.

Your Honours, both reports, interestingly

enough, conclude that juries should continue to

return their verdicts by unanimous decision or

decision of them all, but of course here we are not

concerned with what is desirable. We are

concerned, in our submission, with whether it is

essential to the functioning of the jury or to the

existence of the institution as we know it that the

verdicts be returned that way. So while I

acknowledge that the conclusions might seem in a

sense counter to my argument, my point is that the

issue here is a different one. It is whether

removing unanimity removes one of the essentials

rather than something that may be seen obviously as

a desirable feature by some and not an important

feature by others.

Just while we are on that and apropos of the

point Your Honour Justice Dawson raised this
morning about why was the change made, various

reasons are given, Your Honours, but one of the

main reasons does seem to be the cost and expense

of retrials. Not surprisingly, and some might say
rather coyly, no one suggests it is to get more

convictions. The most common reason is cost of

retrials, although the statistics - and there are

some in the New South Wales material we have

extracted for the Court - do show that hung juries

seem to be no more than about 5 per cent of cases,

but obviously the costs of that can be significant

in very long-running trials. As I mentioned, those

materials we refer to in paragraph 14 are all

included in the book of materials.

So, Your Honours, we then, on the basis of

that material, judicial and non-judicial, identify
those seven functions for the jury, noting as we do

that in America, in particular the seventh one, has

been stressed quite a bit. It does not seem to be

stressed quite as much in the Australian material.

Cheatle(2) 51 2/2/93

One could say, in a way, that the first, that is,

protection of the accused against oppression by the

State, is usually stated as the fundamental

purpose. The second and perhaps the fourth

frequently come about second ranking and then the

others tend to come behind them, to the extent one

material. can judge the importance they are given in the

But we would submit that if you do take that

functional approach and then look at them as the suggested functions of the jury, that one cannot

say that unanimity is essential to any of those
functions; in other words, that the function cannot

be performed if the verdict is other than

unanimous. In particular, protection of the

accused against oppression by the State, in our

submission that comes from the fact of submission

of the questions of fact to a group of people who

are representative of the community, who are, as a

group, seen as able to withstand such indirect

pressures as the State may be able to bring to bear

on them to secure a particular result and one would

think, with respect, as long as the group is large

enough to, as it were, give it a sense of group

identity, and as long as a substantial majority is

required, that that purpose would be provided for. In answer to points made by Your Honour

Justice Dawson, I, with respect, certainly would

not concede that a jury of two or a jury of one or

even a jury of three or perhaps four, is adequate.

I acknowledge the difficult path my argument takes

you down; namely, where do you stop? But it is a

path, for instance, that had to be faced in America
in relation to numbers and the conclusion that has

been reached in America is six unanimous and you go

no lower than that. I think the cases indicate,

for instance, you could have nine, with a majority

of at least six. I do not think there is a precise

decision on that, but the tenor of them is that you

can go down to six in number and if it is a six

person jury, there is a decision saying that then a

5:1 majority is not good enough.

And so the American courts have faced those

difficult questions, and they are difficult but, in

my submission, they can be adequately faced and

answered and, in my respectful submission, the sort

of argument I am putting does not lead one, as it

were, on to a slippery path, and once one is on it

there is no stopping or no, as it were, principled

way of stopping.

In my submission these matters can be

considered sensibly and one can say, well, a jury of this size or, one might even say a majority of

Cheatle(2) 52 2/2/93

7:5 just is not good enough, but at a certain

point, one says, and in my submission, under the

existing provisions, one would say, well, the size

of the group and the requirement as to majority	does give protection of the accused. It is a
sufficiently sizeable group and a sufficiently
stringent majority requirement, and likewise, with the other purposes, ensuring fairness or fair play, again, in our - - -

McHUGH J: What about ensuring fairness? If the jury's

verdict is unanimous, then one can be satisfied

came to a conclusion for or against, but if one	that the jury has fairly evaluated the evidence and
group is of one opinion, and another group is of another opinion, does it not suggest, as Stephen
says in his History of English Criminal Law, that
the processes proved abortive and should be tried again.

MR DOYLE: Could I just say, although I will answer

Your Honour's point, that (ii), fairness or fair

play, as expressed very briefly there - that is

summarizing views that actually argue that having

the jury there means that the way the trial is run

is fair, in the sense of a fair contest.

I think, with respect, the point Your Honour

is putting to me is more one about confidence in

the outcome, which is probably not well expressed

by me, but that is really my (vi), a collective
deliberative mechanism, and an outcome with which

one feels confident.

Well, my submission is, yes, obviously one

feels more confident if they are unanimous, than if

it is by majority. But in my respectful

submission, if we adhere carefully to this

functional approach and say, well, because there

were two dissenters, is one left with an outcome,

really, which is no longer capable of engendering

community confidence.

McHUGH J: But in many cases, there would be a -

historically it has been said that jurors favoured

plaintiffs against motorists, and vice versa; in

times of political turmoil, favour governments, or

favour the rebels, and so forth.

MR DOYLE: Well, that is so, but, Your Honour, then one has

to say, are we only confident about the verdict, or

comfortable with it, if it is unanimous. And does

it lose that quality - and I accept that it is at

least a very important quality - that the community

have confidence in the system, will it lose that

quality if it is by majority.

Cheatle(2) 53 2/2/93

Well, I would not suggest, contrary to the implication of some of the submissions put this

morning, that what has happened since 1900 really

proves anything, but, on Your Honour's particular

point, bear in mind that, for was it 60-odd years

in South Australia and a lesser number of years in other States, we have had majority verdicts, and I

am not aware of any material that suggests that

community confidence in the system or, as it were,

the legitimacy of the system, has in any way

suffered from the fact that in those three States,

South Australia, Western Australia and Tasmania,

there are majority verdicts.

So, at least to that extent, in a sense, we

can test that one of my propositions and say, well

actual experience suggests that majority verdicts

do not cause a problem. And, I suppose, one could

also, within reason, point to the American

experience, and again there they have not accepted

that majority verdicts destroy community confidence in the system.

MASON CJ:  Mr Solicitor, w~ will adjourn now and resume at

2.15 pm.

AT 12.52 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.17 PM:

MASON CJ: Yes, Mr Solicitor.

MR DOYLE: If the Court pleases. Earlier in my argument I

referred to the Act of 1285 which provided a

property qualification. Could I give the Court a

reference to it? It is 2 & 3 Edw I Chapter 38 and

it provides the property requirement of

20 shillings if the jury is sitting in their own

shire and 40 shillings if they are sitting in

another shire. It also interestingly seems to

introduce an age limit of 70, three score and ten

years, on the basis, it seems, that people above

that age are continually sick or diseased, and on
that ground henceforth to be excluded from jury

service.

One other reference could I give the Court,

and this is again just on that point that the

property qualification was seen as a matter of

substance. We did not include this in the

materials we provided to the Court, but in that

Cheatle(2) 54 2/2/93

same volume 1 of Stephen's History of the Criminal

Law, so it is volume 1 of Stephen, the 1883

edition. I think, if I might, I will send copies

of this to the Court afterwards, because I just

realized you might not have the same edition.

MASON CJ: Yes.

MR DOYLE:	But in any event, there Stephen says, in relation to the property qualification - the language
reflects the times.  He says:

As far as skill and intelligence go it would

be impossible to have a stronger tribunal than

a jury of educated gentlemen presided over by	a competent judge. I cannot however say much
for the intelligence of small shopkeepers and
petty farmers and, whatever the fashion of the
times may say to the contrary, I think that
the great bulk of the working classes are
altogether unfit to discharge judicial duties,
nor do I believe that, rare exceptions
excepted, a man who has to work hard all day
long at a mec~anical trade will ever have
either the memory or the mental power or the habits of thought necessary to retain, analyse
and arrange in his mind the evidence -

et cetera. And apart from the quaint notions, the

point is the property requirement was seen as a

matter of substance because it got on to the jury

people who were capable of doing the job. It was

not, as it were, a mere accident; it was something

that actually related to the functioning of the

jury.

Your Honours, going back then to paragraph 15

of the outline, our submission is when you run

through those functions that unanimity is not

essential to them. The first one, protection

against oppression by the State - I have dealt with

that: as long as the group is large enough and the

majority is substantial enough. Fairness or fair

play in criminal cases: that, in our submission,

comes in a sense from the mere presence of the jury

there and the knowledge that the facts will be

submitted to them, they having seen how the

prosecution conducted itself during the course of

the trial.

The educative function comes from mere

participation and, in my submission, has nothing to

do with the way the jury decides. Keeping the

criminal law and the system in touch with and

understandable by the community: a bit of that is,

I suppose, the fact that the jurors apply their

every day standard in deciding the facts, and a bit

Cheatle(2) 55 2/2/93

of it is that again you have to make the

proceedings comprehensible to them. Again, that

does not seem to touch unanimity.

Legitimizing the criminal system: that, in

our submission, comes from the fact of the role

that the jury plays as such, and while again one

can say, "Well, we are happier with a unanimous

verdict", in our submission, one cannot say that

that quality is lacking if it is a majority

verdict. Similarly, I would submit in relation to

(vi), that once again one can be more confident

about a unanimous verdict, but still, it is the

community taking responsibility for the decision

through that collective mechanism. The seventh

one, the one that is stressed in America: in our

respectful submission, it is not right to say that

because the jury can decide by a majority, those

who are in the minority are simply having their

views excluded. They have the chance to

participate in the discussion to express their

views and to influence other jurors. So for those

reasons we submit that unanimity is not essential.

Your Honours, and I do just want to make it

clear, we are not as I put earlier, arguing what is

the desirable approach. The question is, "Is it

essential for it to be a jury that this feature be

present?"

Paragraph 17 of our outline dealing with the linkage between the jury and proof beyond

reasonable doubt, I dealt with, I think, this

morning. Could I just make one other point. As I
understand what Your Honour Justice Dawson is
putting to me, if trial by jury means a unanimous

decision, and if that is what proof beyond

reasonable doubt means, then it would seem to

follow that it would be beyond the power of the

Commonwealth to legislate to alter the degree of

proof required, because even if you had a unanimous

verdict, if the jury was by statute able to decide

things on the balance of probabilities, then it

would not be obviously proof beyond reasonable

doubt. And as I understand Your Honour,

Your Honour is really reading that into the

provision for a jury. The fact is at least in a	number of areas of the criminal law, matters of
excuse at least - - -

DAWSON J: But I am not. I conceded to you that if the

proof was on the balance of probabilities, there

could be no objection to a majority verdict.	I
cannot take that too far.

MR DOYLE:  As to that, if that is what Your Honour is

putting to me - I am sorry, I had forgotten that -

Cheatle(2) 56 2/2/93

then my submission. would simply be that one cannot

say that when the standard differs, that now the provision for a majority verdict is permissible,

but that is what I put this morning. Just in that

context of matters of excuse, could I just give the
Court simply as an illustration a case that was drawn to my attention where, a matter of excuse,

the onus was on the accused under a criminal law.

It is Milicevic v Campbell, (1975) 132 CLR 307. Your Honours, the other argument we would

advance against what we would submit is the rigid

approach to the reference to a jury in section 80

is in short that in paragraph 18 of our outline.

It can only be a makeweight, but bearing in mind

that the framers of the Constitution clearly

envisaged that federal jurisdiction would or may be

invested in State courts and one would think would

have envisaged that there may be variations from

State to State, then if the strict approach is

taken to section 80, obviously the risk of the

Commonwealth being excluded from the courts of a

particular State because of changes that occur in

that State arises ..

While of course that cannot persuade one away from what in the end seems the right approach to

the section, our submission is that the scheme they

had in mind at the time is one which, consistent

with it, one would think, they wanted a reasonable

element of flexibility and would not have intended

inadvertently to introduce what we submit is a fair

degree of rigidity through -

BRENNAN J: This paragraph is clearly inconsistent with the

opening submissions that you made with reference to

the point that Justice Gaudron had raised, is it

not?

MR DOYLE:  I thought not, Your Honour, but I must admit I

have now forgotten what that first point was.

BRENNAN J: As to whether or not section 57 would apply to

Commonwealth prosecutions in the event of your

principal argument failing.

MR DOYLE:  No, Your Honour, what I mean by 18 is the risk is

greater because if the court as constituted - take

Brown's case where the court could sit with a jury or without a jury - had South Australia, for instance, swung entirely to courts without juries,

there would have been a real, I submit, a much more

difficult question then of whether jurisdiction

could be invested at all. So, that is what I am

thinking of. And, Your Honours - - -

Cheatle(2) 57 2/2/93

BRENNAN J: Well that really does not throw any light at all

upon the construction of section 80, does it?

MR DOYLE: Well, in my submission it does, Your Honour, in

that section 80 is in a Constitution, an important

feature of which is provision for federal

jurisdiction to be invested in State courts, and so

in my submission the framers, one would think,

would have realized that it was quite likely that

offences against the law of the Commonwealth would,

from time to time, perhaps often, be tried in State

courts.

BRENNAN J: One would be hard put to think that the

investing provisions of the Constitution could be

exercised in disregard of the injunction in section 80.

MR DOYLE: True, Your Honour, but what I am putting is that

one would think it may have been present to the minds of the delegates. We are envisaging that

State courts may try Commonwealth offences and what

I am putting is that it is unlikely in that

context, that for-Commonwealth offences they would

have wished to introduce what I call a fairly rigid

principle as distinct from a concept, namely the

jury is to be there, but it is less likely that

they would have envisaged that as carrying with it

a number of requirements which might give rise to

difficulty if then States started to tinker with

the nature of the jury.

BRENNAN J:  I thought that was really the very point that

was raised by Mr Glynn from South Australia at

page 351 of the debates that you took us to this

morning, and he failed because he was in the
minority, the negative, when the vote was taken at

page 353. Mr Glynn's objection being they would

have no power to take a majority verdict, for

instance.

MR DOYLE:  Yes. It is the point he took, Your Honour. I do

not know if Your Honour is suggesting that the

debates suggest that - - -

BRENNAN J:  It seems to me to be quite neutral, but the only

point is that you are arguing the negative, as I

understand it, that it was unlikely that they would
have intended. Well the matter was certainly

present to their mind.

MR DOYLE:  Yes. I take Your Honour's point. Your Honours,

in the light of what Your Honour said to Mr Rose, I

take it there is no need for me to develop

paragraph 19 dealing with the judicial power and I

would pass over now paragraph 21. So the final

point is that point touching on section 57, and

Cheatle(2) 58 2/2/93

could I now provide to the Court photocopies of section 57 of the South Australian Act and also

section 7, the section under consideration in

Brown's case.

Our submission is that if the Court is against us on the primary argument and if, for the purposes

of the trial of an offence on indictment against

verdict, then nevertheless jurisdiction still may	Commonwealth law, the jury must return a unanimous
be vested in South Australian courts on the basis
that section 57(1) and presumably (2), in fact the
whole section I suppose, simply becomes
inapplicable to the trial of offences against the law of the Commonwealth, the statute leaving the
common law provision, or the common law rule that
juries decide by unanimous decision to operate, and
section 57(1) in context really operating just as a qualification on that rule. This is achieved
either by section 80 being, as it were, being
self-executing or by virtue of the qualifications
in the Judiciary Act provisions, section 68(2) and section 79, both of which operate subject to the Constitution or except as otherwise provided by the Constitution.
So, our submission is that in a manner similar to that taken in Brown's case - by a process of
reasoning similar to that taken in Brown's case,
jurisdiction may still be vested. The only other
point I would make apropos of that is that my understanding is that it is - that is, on the broader issue - that this issue is of some
practical importance, that it is, I am told, not
uncommon for there to be trials of Commonwealth and
State offences together at the one trial. They are our submissions, if the Court pleases.

MASON CJ: Thank you, Mr Solicitor. Mr Solicitor for

New South Wales.

MR MASON:  Your Honours, we handed in an outline of our submissions this morning. I do not know whether

they have been given to the Court.

MASON CJ: Yes. We have them.

MR MASON:  Thank you. Your Honours, much of the process of

reasoning in our outline follows that of our

learned friend, the Solicitor-General for South

Australia. If I may, I wish to draw some emphasis

upon the fact that the law relating to trial by

jury both in England and, more importantly in the

Australian colonies, was largely statute law by
1900, and many of the matters which certainly

reflect a very ancient history had been addressed

in some cases in common ways, in other cases in

Cheatle(2) 59 2/2/93

ways that differed in what may be a matter of

detail or a matter of substance, depending upon how

important you regard things such as peremptory
challenges, disqualifications and the like.

The other aspect of the law at 1900 was that the statutes of the various colonies addressed the

law of juries compendiously and a number of the

sections would make provisions which would apply

equally to civil and criminal juries. It is true	that where distinctions were to be drawn,
distinctions were drawn and, for example, in those
taken, it was made clear that it was referring to provis~ons which permitted a majority verdict to be
civil juries. But nevertheless the concept of
trial by jury would, in our submission, have been seen by a founding father as something that was addressed in that compendious way and embracing
aspects of trial by jury in civil matters as well
as criminal matters.

Your Honours, in paragraph 2, we seek to make

the submission that some of the matters, such as

de ventre inspicienda, the property qualifications	the maleness of jurors, except for the special jury
and the finality of a jury verdict were matters
which had stood for hundreds of years and were
clearly defensible, as a matter of principle,
according to 1900 eyes.
Now, it is true that we may, today, be offended or see as inconsistent with the notion of
a representative jury, the-fact that women should
be excluded, or that property holders, alone, should be permitted to sit. But, those changes
have not, one assumes, invalidated those provisions
of State Juries Acts in the light of section 80. So, from that, we would respectfully submit
that not only is Samuel Griffith's statement in
Snow's case unhelpful, but it is rather irrelevant
being a useful starting point to determine the as well to speak of "the common law of England" as content, or the essence of the constitutional
guarantee.

Your Honours, the notion of finality - I think

enough has been said about the gender and property

qualifications - the notion of finality of verdict

was seen as part of the essence of trial by jury,

at least at the turn of the century, in our

submission.

The establishment of a Court of Criminal

Appeal had been much debated throughout the 19th

century. It had apparently been to Parliament 28

times in the 70 years preceding 1907, and was

Cheatle(2) 60 2/2/93

bitterly opposed by the majority of the judges, and
by the majority of parliamentarians in 27 of the 28

times, and it was only a cause celebre involving a

man, I think by name of Beck, that led, ultimately,

to the change in the parliamentary attitude to it.

But a common ground of opposition was that verdict and the responsibility of jurors if their	this would undermine the finality of the jury's
verdict was to be capable of being set aside. The
20th century has seen the development which is
charted in Chamberlain's c~se in this Court, a
progress of judicially endorsed construction of appellate provisions which now enables an appellate court to sit in judgment on the factual determination of a jury verdict if it is unsafe and
unsatisfactory. This is again something which, in our submission, would have been seen to strike at
the heart of the notion of trial by jury as it was
seen in 1900 unless one adopts a functional
approach.

There has been some reference made to the

number of 12, and.on page 3 of the outline we refer

to one statement in the 17th century as to why

there were 12 jurors. That was something which in

criminal matters had been long standing and as long

standing as the notion of unanimity. It was as

part of the common law or statute law of the

colonies and of England in 1900. Certainly the

American courts have had to debate whether or not a

departure from 12 itself strikes at the notion of

the fundamental nature of jury trial. Yet we would

submit that that is not of the essence of jury

trial.

Your Honours, the phenomenon of looking at the

number of 12 perhaps points to one aspect of the

discussion that has occurred. For many of these

debatably fundamental notions - and I mean

"debatably" neutrally - there seemed to be a range

of justifications offered. If one looked at one

point of time in history, people would see the

twelveness as being based on one justification,

another time another justification. Another time

one would say, "Well, it's just an accident of

history that we have that factor"; so too with the

notion of unanimity.

Your Honours, in Apodaca's case in 406 US 404,

as Mr Rozenes noted, I think, in passing,

footnote 2, which is on page 189 of the lawyers

edition, or 406 of the United States reports,

discusses the origins of the unanimity rule,
stating that they are shrouded in obscurity. At

least four explanations are offered, none of which

Cheatle(2) 61 2/2/93

is the explanation based upon the need to ensure

that verdicts are reached beyond reasonable doubt.

DAWSON J: That is obviously so, because that doctrine only

developed relatively recently.

MR MASON:  Yes, and in one sense that is part of my point.

The fact that the doctrine developed at a different

point of time historically, the fact that the

Woolmington principle, if I may so describe it,

applies to summary cases as well as to indictable

offences, the fact that this Court in Milicevic's

case has held - I think without adverting to

section 80 - that the question of the onus can be

addressed legislatively, all support the submission

that one is dealing with two different concepts,

fundamental though at least one of them is, and

was discussed in Huddart Parker's case. The Court	just like the concept of self-incrimination, that
there said, "Yes, this is a fundamental proposition
historically based, but we are not in the same
realm of discourse as trial by jury."

Your Honours,. in paragraph 3 we note other

colony to colony, some of which some would see as aspects of the law of juries which differed from

being of the fundamental essence of juries. What

we seek to derive from that is that if the colonies

differed and if the matter was not addressed

explicitly at Federation, then one is cautioned, we

would suggest, from saying that it was fixed

forever with the incidence in England or, for that

part, anywhere else at 1900.

Victoria alone, it appears, had a permission

to reduce from 12 without the consent of the

Jury Act.
accused, and that is section 88 of their significance - and I do not think anybody would argue for a jury of one or two, but at whatever

stage one fixed the number to ensure debate and

representativeness, there is a need for a

correlative rule that addressed the question of

reductions in the number before one reaches some
drop-off point. But the point we are making simply

is that 12 was not fixed in concrete by either the

common law or the statute law of the colonies in

1900, though one might say that that, in a rather

glib sense, was part of the received order of

things for trial by jury.

As we note at the bottom of page 3, top of

page 4, Your Honours, the American Federal Criminal

Rules have only recently permitted the reduction in numbers absent the consent of the accused person,

and it has been that change that has led only

recently, to a challenge which has been rejected

Cheatle(2) 62 2/2/93

by, I think, three of the circuits of the

Federal Court of Appeals - we have only noted two
of them - and in two cases certiorari was denied on

application to the Supreme Court, so one can

perhaps confidently submit that current American

law permits that reduction although the argument

was that when it first occurred that this was a

departure from the essence of jury trial.

Like many of these things, and perhaps the

very fact that the experimentation or the change to
majority verdicts only occurred after Federation,
necessarily means that there is not the guidance in
the principle from the pre-Federation material. No

guidance directly.

We also note, Your Honours, the widespread

variety in the way special juries were addressed,

the number of peremptory challenges, and perhaps

one should add standing by for the Crown, matters

which criminal lawyers may debate are of very

significant importance to what they would dispute

were the differing reasons for trial by jury. To

some peremptory challenges must be kept at a high

number and they would see the jury as primarily

concerned with erecting a bulwark between the State

and the accused person. To those who would argue

for a smaller number of peremptory challenge, they

would emphasize that one aspect of the jury is its

representative nature as representing the community

and the community's interest in the conviction and

acquittal of accused persons.

Your Honours, in paragraph 5 we note just in passing that in section 49 of the Constitution, in

relation to the privileges of Parliament when it

was wished to incorporate the English position at a

particular point of time, there was a formula for

doing that.

Your Honours, in paragraph 6 we refer to the

passage in the judgment of Justice O'Connor that

purpose of the guarantee to be to protect the	has been read in Huddart Parker's case to the
essential features of trial by jury and we
acknowledge, of course, that to many that is just
the start of the debate rather than the conclusion
of it, but we would certainly submit that one
starts with a functional approach.

The two passages from Huddart Parker that are

set out in paragraph 7 see as the essence of trial

by jury the notion of lay participation where that
participation involves random selection with the

judge being judge of the law and, as has been put

already by my learned friend, Mr Doyle, whether or

Cheatle{2) 63 2/2/93

not one accepts majority or unanimous verdicts does

not really touch upon that aspect of the matter.

At paragraph 8 we submit that no one would dream of saying the trial in the High Court of

Judiciary in Scotland is not by jury, though it be by majority verdict, nor that trial by jury does

not occur in England, nor that trial by jury is any

less trial by jury simply because a verdict on

majority may be taken in certain circumstances in civil cases in Australia.

We would submit, referring to other prov1s1ons

of the Constitution, that the people still choose

the Members of Parliament though they do so by a

majority and that this Court still determines

appeals though it does so by - it may even be by

whatever method the Court chooses to express its

wish. Certainly it does so by a majority process.

In Apodaca's case, Your Honours, footnote 2,

to which I referred to, discusses the historical

origins of the unanimity rule; footnote 6 discusses

the "history of the reasonable-doubt requirement",

and reference is made to earlier authorities,

including Wigmore, which emphasize, in our

submission, the proposition that one is dealing

with two different concepts.

May I take the Court, very briefly, to the

passage in McKinlay's case, 135 CLR 1, at 56 and
57, which is referred to in paragraph 9.

Your Honours will recall that was the case in which it was argued that section 24 of the Constitution,

with its requirement that members be chosen by the

people, mandated an equal division of electoral

divisions, and in the paragraph commencing at the

middle of page 56, down to the end of the first

full paragraph on pag~ 57, Justice Stephen spoke of

the "principle of representative democracy", and

the fact that it covered: 

enfranchisement of electors, the existence of

an electoral system capable of giving effect

to their selection of representatives and the

bestowal of legislative functions upon the

representatives thus selected.

He went on to emphasize the range of choice that

was consistent with the Constitution nevertheless

open to Parliament in order to address the matter.

This concept of choice was discussed by this Court

in the Political Advertising case last year as

well.

Cheatle(2) 64 2/2/93

Your Honours, we would submit that the purpose

or the functions of trial by jury and the, as it

were, desiderata of the optimal jury, are matters

in which there are necessarily choices to be made.

I have mentioned peremptory challenges; the

question of disqualifications - does one allow

lawyers to participate; the move towards allowing

all people, regardless of their gender or their

wealth, to participate have been legislative

choices. How one deals with protecting the jury

from tampering which would be acknowledged to be a

fundamental aspect of the proper functioning of the

ways, depending, perhaps, upon how one saw the risk jury, but one which can be addressed in differing

of jury tampering and how one thought it should be

addressed. Among the choices would be whether or

not one would permit the piercing of the

whether or not tampering had occurred. inscrutability of the jury in order to ascertain

In our submission, if one accepts that there

is this latitude of choice that was intended by the

Constitution in order to give effect to the functions of the jury, then a choice which sees

protection from tampering or protection from
perversity, whether that be perversity in favour of

acquittal or perversity in favour of conviction, it

cannot be said, in our submission, that that
legislative choice operates to deny the end product
of being still a verdict of a jury.

It is true that Stephen had a strong view in relation to the unanimity requirement to the

passage that has already been read. But Hallam,

the 19th century writer, described it as a

"preposterous relic of barbarism". That is quoted

in Lord Devlin's book at page 49. Jeremy Bentham

thought that the unanimity rule was absurd and

proposed a scheme for black and white marbles which would ensure an appropriate method of voting. That

is discussed at page 143 of the New South Wales Law

Reform Commission Report on the jury.

becomes that of asking what is the constitutionally Your Honours, perhaps the ultimate question	permissible process whereby a jury may try criminal
charges. Section 80, perhaps just stating the
obvious, is looking at a process in which decision-making occurs and necessarily there are
certain aspects that are fundamental and others
which are incidents.

The law has evolved both before and after 1900

both at statute and common law at addressing what

are the acceptable processes of decision making

within the jury room. The attitude that the jury

had to be starved into a verdict has changed, but

Cheatle{2) 65 2/2/93

the notion of what is an acceptable pressure in
terms of time or judicial direction about unanimity

is one which has evolved from time to time. So,

too, the directions about the role of listening to

one's fellow jurors. So too if, let it be
assumed - and I do not concede this - reasonable

directions about reasonable doubt have been doubt has anything to do with juries, even the something in which there has been a process of

evolution as to how the jury are told to go about their essential function.

In our submission, one cannot just pick the

unanimity rule and say that it is of an essentially

different kind. The law permits a direction to be

given which would ultimately allow a recalcitrant

juror to accede, perhaps albeit reluctantly, to the

view of the majority. Exactly how one draws the	line between an acceptable and an unacceptable
direction is perhaps not important, but one cannot
say, in our submission, that a change in the law
which would say, "The verdict can be delivered after a process of deliberation which requires you all to listen to e·ach other for a minimum time, and
then if you cannot agree you may proceed to reach a decision by majority verdict", one cannot say that
one is suddenly dealing with something different.

As a matter of form, it is still a verdict

that is delivered by the jury. All that has

changed by permitting majority verdicts is a

process whereby the jury is permitted to address

its decision-making function. It is permitted to

announce a verdict, its verdict, having arrived at

it in a process which differs from the common law,

but so too are some of the other judicially made

changes of the 20th century.

Your Honours, the argument that there is an

inconsistency between a requirement that the

prosecution prove its case beyond reasonable doubt

and a majority verdict realm is addressed in
paragraph 11 of our submissions.	I have already

said why as a matter of history the two notions are

separate, but as a matter of logic they are

distinct as well, because where one has a hung

jury, one would have thought that the logic of the

proposition that was being put would say that an

accused was entitled to an acquittal because the

prosecution had not persuaded the 12 jurors of

guilt. But that is not the law, and from the

19th century it has been clearly recognized that

there is a retrial to follow rather than an

acquittal.

McHUGH J: But the reason for that is there is no verdict,

is it not?

Cheatle(2) 66 2/2/93

MR MASON:	Yes and no.
McHUGH J:	You might as well say if the jury had to be

discharged because half the members became ill, the

Crown had failed to prove its case.

MR MASON:  The issue, however, arises when the person - has

arisen as it did in Winsor's case - was tried afresh. It came up in the context of whether autrefois would apply. The notion of autrefois

does not turn upon such a formal aspect, I submit,

as being whether or not there was a verdict. The

substance of the matter was that in one sense there

was no verdict to put an end to the matter, but if

the argument were that a failure to convince all

was a defect in the absence of proof beyond

reasonable doubt, then one would think that the

logic of that would carry through into the

autrefois principle, but it has not.

Your Honours, returning briefly to

paragraph 10 of the outline, this morning

Justice Dawson suggested that one could explain the

changes of attitude about the gender of jurors and

property qualifications as being factors that
enhance the functioning of a jury and therefore are

within the range of permissible legislative choice

consistent with section 60. If that is the test -

and we submit it is broader than that - of the

leeway of section 80, it cannot be said that a 10:2

majority provision fails to do that unless the

Court could be satisfied that the risk of tampering

or the perversity notion is of no weight

whatsoever. It is relevant of course to note, too,

that the majority verdict applies both ways, and

such statistical studies as there have been suggest

that it falls out about equally. So what really

has happened is that there is a greater prospect of

an outcome rather than of a particular outcome.

. In paragraph 10, we endeavour to outline

various functions which, in our submission, are

addressed, or are not detracted from, by a majority

verdict. And, if the question of community

acceptance is a factor, and we submit it is, we

would submit that the community accepts majority

decisions in virtually all aspects of community

life, and there is no evidence to suggest that the sort of majorities we are talking about here would detract from that.

Your Honours, in paragraph 12, we address a

slightly more technical aspect of the reasoning of

Justice Evatt in Newell's case and his reliance

upon the American Publishing Co v Fisher,

submitting that, as this Court pointed out in

Brown's case, the danger in looking at .American

Cheatle(2) 67 2/2/93

provisions is that one has to identify whether one

is looking at the Sixth or Seventh Amendment,

standing alone or picked up via the Fourteenth

Amendment, or article 23, standing alone.

MASON CJ:	Do you have copies of Colgrove v Battin?
MR MASON:	I believe they were on our list of authorities.

Perhaps I could check that, and if they are not, can I have copies handed in?

MASON CJ: It does not seem to be there.

MR MASON:  There are two remaining matters, if I may. The

notion of unanimity, as itself a mark of strength of reasoning, is perhaps one upon which there may

be different views. It is perhaps of interest, if

only historical, to note the principles in the

Mishnah Sanhedrin, which had a principle of

number so that a majority verdict could be taken.	23 judges sitting on capital cases. It was an odd
But the significant rule was that, if the verdict was unanimous, the accused person had to be
acquitted, becaus~ an unanimous verdict was
perceived as evidence that each judge had not turned his mind independently, and in isolation, to the correct verdict. And one may not agree with
that as a proper principle today, but again, within
the realm of what is a proper realm of choice, it
shows that minds may differ as to what inferences one draw from a 10:2 verdict.

Finally, Your Honours, we certainly do not

submit that the principles for which we have

contended necessarily apply if one gets down to a

very small jury or to a Scottish simple majority.

We certainly would concede, however, that in any law that permitted a jury of one or two, there would have to be unanimity; a majority verdict would not suffice.

MASON CJ: Yes, thank you, Mr Solicitor. Mr Solicitor for

Victoria.

MR GRAHAM:  May it please the Court.

DAWSON J: Which side are you on, Mr Solicitor?

MR GRAHAM:  We are supporting the respondent, Your Honour.

May I say, while the material is being circulated,

that despite its somewhat formidable size, it will

not be necessary to refer at all to the material in

the folders which consist simply of extracts from

statutes referred to in our outline of argument.

May I begin by saying that we would gratefully

adopt the submissions advanced today by the

Cheatle(2) 68 2/2/93

respondent, by the Solicitor-General for South

Australia and the Solicitor-General for

New South Wales, and what we wish to add will be

very brief and by way perhaps of little more than

supplement. If I can go to the first part of the

outline under the.heading "Section 80 Issue", we

there make the point that the terms of section 80

simple and general, when it becomes necessary, as'

it does in this case, to consider the scope and

content of the right which it confers, the words

themselves, taken literally, provide but little

assistance.

On the other hand, if one attempts to define the right by stating comprehensively and

exhaustively, what are perceived to be the

essential or indispensible characteristics of trial

by jury, there is a real risk, we would submit, of
begging the question at issue. But even if one

does embark upon that task, we would submit that it

is unlikely that those essential characteristics

could be stated in absolute and wholly specific

terms. Thus a proposition that in a criminal case

the jury must comprise 12 persons, might well be

qualified to admir of the case where a juror dies

or becomes incapacitated during the.trial or, on

the other side of the coin, where under recent

legislation in some jurisdictions, a jury of more

than 12 persons is impanelled in anticipation of a

very long trial. We would be concerned that

nothing that emerged in this case would shed doubt

on the validity of those provisions as they exist

in some jurisdictions.

What follows in the next few pages of the

outline are references to provisions in various jurisdictions in Australia relating to majority

verdicts, reduction in the number of jurors during

the course of a criminal trial and the ability of a

jury of reduced numbers to return a verdict,

provisions concerning reserve or additional jurors

and rights of peremptory challenge. I do not

desire to take the Court's time up with an

examination of any of those provisions, but perhaps	in passing I should direct the Court's attention to
what appears at the top of page 4 of the outline,
in paragraph S(b).

It is perhaps a matter of some noteworthiness

that in New South Wales the number of jurors can in

fact fall below ten, although ten is otherwise the

minimum throughout the Commonwealth. We would also

direct attention to differences in the provisions

relating to reserve or additional jurors. Those

are set out in paragraph 6. Such provisions exist

in the States mentioned and the jurisdictions

mentioned in paragraph 6(a). Elsewhere than in

Cheatle(2) 69 2/2/93

Victoria, the additional jurors are empanelled as

reserve jurors and they join the jury in the event

of a juror being excused or becoming incapacitated, the selection being by lot.

In Victoria, as we point out in

paragraph 6(d), a different procedure prevails,

empanelled as full members of the jury and the	namely, that all of the empanelled jurors are
final identity of the twelve who are to return a
verdict is not arrived at until the end of the
trial. The spare jurors, if I can so describe them, are balloted off by lot.

BRENNAN J:  Mr Solicitor, this consideration of the number

of jurors is no doubt relevant to the problem. But

when one speaks of "trial by jury" one is really

speaking about a process, as you say, of decision

making and there is a radical difference, as

Justice Deane, I think, suggested earlier, between

the method of the decision making by which a

majority indicates their individual views and the

method of the decision making which leads to a
unanimous verdict.· Any counsel who has appeared in

a criminal case in a country court-house where the

jury room is not far removed is familiar with the

raised voices and so forth that goes with the

making up of a unanimous jury verdict, the kind of

passion that would be unnecessary if it was just a

matter of putting up ten hands.

MR GRAHAM:  Your Honour, of course I can only respectfully

agree with what Your Honour has said, that there is

a difference, although it may matter as to which

part of the jury process one is looking at. The
process of empanelment and formation of the roles

in the process of challenge may also be regarded as

fundamental to the decision-making process, because

it affects the identity of the persons who become

ultimately the members of the jury.

BRENNAN J: That is a problem we do not face in this case.
MR GRAHAM:	Yes, but we mention it simply to point to the

fact that there are obviously many shades of

difference in this area. It is not simply

procedural matters on the one hand and a

fundamental aspect of the decision-making process

on the other.

DAWSON J: But as Sir Patrick Devlin puts it, there are some

things which have become so ingrained as to give

the jury system the very virtues which we see in

it. Secrecy would be another. I mean you could

have a jury that deliberated in public, that is all

right, it would still be a jury and so on, but that

is just not the system we know, or knew in 1900.

Cheatle(2) 70 2/2/93

MR GRAHAM: 

Your Honour, certainly one can see that as

fundamental, but whether it is a proposition that
goes so far as to say that a juror should not

reveal thereafter the processes of his or her mind

and what went on in the jury room is another

matter. But obviously a jury as we see it probably

could not work if it had to sit in public, although

those who have had experience in visiting

courtrooms in England have in fact seen jurors

reach verdicts without leaving the jury box. But,
all that we contend for is the proposition at the

end of this portion of our submissions in
paragraph 8, and we would respectfully submit that

rather than seeking to state exhaustively and

comprehensively the essential and indispensible

characteristics of trial by jury, we submit that

the inquiry here should be whether, under the set
of statutory provisions in force in the relevant
jurisdiction, the process which takes place can
properly and accurately be described as trial by
jury within the meaning of section 80, and whether
the right to trial by jury granted by section 80

will be observed if the requisite procedures are

followed.

That is the point that we come here to make, and we need not go on further with the further part

of the written submission in the light of the

course that proceedings have taken today.

We would seek to take a moment of the Court's

time returning to the matter which Your Honour

Justice Dawson introduced this morning, namely the

proposition that the existence of the principle

that guilt must be proved beyond reasonable doubt,

lends support to the view that trial by jury
requires that guilt must be established to the

satisfaction of all members of the jury expressed

in a unanimous verdict.

I hope I have done justice to the proposition proposition closely, there seem to be, putting it that Your Honour advanced. If one looks at that

in a very simplified way, a number of steps.

Firstly, that a jury is to be taken to be composed

of reasonable people, which is a safe assumption to

make. Secondly, as we understood Your Honour, in a

case where a juror disagrees with his or her

colleagues, by reason of a doubt which he or she

entertains, that doubt should be taken to be a

reasonable doubt.

And then, although other jurors are satisfied

beyond reasonable doubt, the prosecution case has

not been established beyond reasonable doubt.

Cheatle(2) 71 2/2/93

As we would see it, the difficulty lies in the

second step. Does it follow that the mere fact of

disagreement on the part of one or two jurors

establishes that there is, as a matter of objective

judgment, a doubt so that the Crown's case has not

been established beyond reasonable doubt? We would

submit with great respect that there is difficulty

in stating that proposition with all that

generality, because there may be all sorts of

reasons which one might only speculate upon as to

why a juror might refuse to join in the verdict of

his or her colleagues.

They may be reasons concerned with sympathy

and tenderness towards the accused and his or her
family, a rejection of the authority of the
prosecution and the investigating authorities; all

sorts of reasons. We would respectfully submit

that it does not follow automatically that because

one juror entertains a doubt, there is a reasonable

doubt. Those are the submissions which we desire

to make, if the Court pleases.

MASON CJ:  Thank you, Mr S~licitor. Yes, Mr Borick?

MR BORICK:  Very briefly in relation to paragraph 11 of the

New South Wales argument, I would point out two

things about that; firstly, that what happens is

that trial is stopped. The second point is that in

South Australia, there has always been a convention

that if there is a second occasion when the trial

is stopped because a jury do not agree, then that

is the end of the matter; there is finality.

Thank you, Your Honours.

MASON CJ: Thank you, Mr Borick. The Court will consider

its decision in this matter.

AT 3.17 PM TH-E MATTER WAS ADJOURNED SINE DIE

Cheatle(2) 72 2/2/93