Cheatle & Anor v The Queen

[1992] HCATrans 259

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Adelaide No Al4 of 1992

B e t w e e n -

HARVEY HOLLAND CHEATLE

First Applicant

and

BERYL CHEATLE

Second Applicant

and

THE QUEEN

Respondent

Application for special leave

to appeal

Cheatle 1 2/9/92

MASON CJ_
DEANE J

DAWSON J

TRANSCRIPT OF PROCEEDINGS

AT ADELAIDE ON WEDNESDAY, 2 SEPTEMBER 1992, AT 10.51 AM

Copyright in the High Court of Australia

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

MR G.B. HEVEY for the proposed appellants.

(instructed by J.P. Murphy)

MR G.R. JAMES, QC:  May it please the Court, I appear with

my learned friend, MR P.J. RICE, for the

respondent. (instructed by M. Rozenes, QC,

Director of Public Prosecutions (Commonwealth))

MASON CJ: Yes, Mr Borick.

MR BORICK:  The main proposition to be advanced by the

proposed appellants is that trial by jury, as

indicated in section 80, is a fundamental right.

It was guaranteed for all people. It meant trial

by 12 people and it meant a unanimous verdict.

That is still the position in Victoria and

Queensland. In New South Wales, as I understand

it, trial by jury, you can reduce the number if

there is sickness, but there is still unanimity

required.

South Australia, in 1927, was the first State to legislate for majority verdicts and the prime

reason advanced at the time was to avoid the

expense of retrials. It was described at the time

as doing substantial justice. Tasmania, Western

Australia and the Northern Territory permit

majority verdicts, although in Tasmania and Western

Australia, for example, the verdict is not

described as a majority verdict, as it is in South

Australia, but it is deemed to be the verdict of

the jury. The number of hours which a jury must

wait before delivering a verdict varies from State

to State or Territory.

It is submitted that differences in criminal

procedure for offences committed in federal, State

or territorial jurisdictions are undesirable and

could lead to injustice, and the right to jury

trial is sufficiently important to require

constitutional protection, then unless the

Constitution is to be mocked the protection must be

complete.

MASON CJ: What do you mean by the submission that

difference in jury verdicts, majority verdicts,

could lead to injustice in different States?

MR BORICK:  It could lead to this, Your Honour: that there

could be, for example, a conspiracy charge in which

selection of venue could take place by the

prosecution, and there could be a selection to a

place, for example, South Australia, where majority

verdicts are available, rather than, for example,

Victoria.

Cheatle 2 2/9/92

In our submission, it would give a capricious operation to section 80 to permit the States to

vary the meaning of trial by jury, and I think this

is at the heart of our submission, that a State

could legislate to reduce the number of jurors at

will. If 12 has no magic and there is no

requirement of unanimity, but particularly if 12, a

State could simply say, "Well, we will permit four people to be on juries to reduce cost, or, in order

to save the problem of retrials, we will take a

simple majority of seven to five." There would be,

in our submission, nothing to stop them doing that,

and in our submission, that is the strongest point

that we have to make in support of this

application.

MASON CJ: But you might get to a point where the reduction

was so great that you could not describe it

properly as trial by jury.

MR BORICK: At that point, we would submit that that would

in itself establish it as not just a mere

procedure, that the question of whether or not a

jury means 12, and means unanimity, is of

fundamental importance, and one that would require

the grant of special leave to enable this Court to

fully consider it. In our submission, for this

Court to refuse a grant of special leave to appeal in these circumstances, it would simply mean that

this Court in the few minutes of a special leave

application, has decided that a State legislature

could, in effect, legislate at will to reduce the

number and, in our submission, whether it came down

to two, or four, or eight, or nine, or ten, makes

no difference. Trial by jury meant trial by 12

people and it meant unanimous as it has been in

various parts of Australia since Federation and, as

I said, South Australia was the first to order in

1927.

DAWSON J: Did Newell v R have anything to say about this?
MR BORICK:	I am sorry, Your Honour, I am not aware that

Newell v R had anything to say. In relation to the

jury system itself, I rely very strongly upon what

Your Honour and also Justice Deane had to say in-

Brown's case and also in Justice Deane's judgment

in Kingswell, the earlier case, as indicating that

trial by jury is, in fact, a very fundamental right

of the Australian people, is watered down by the

majority verdict provisions.

DAWSON J:  Do you put it that it does not really matter so

much the numbers, although you may get to a stage

when it is four:two, you cannot say it is a jury

trial, but there is a qualitative difference

between a unanimous verdict and a majority verdict?

Cheatle	3	2/9/92
MR BORICK:	Yes, Your Honour.	The Chief Justice of South

Australia, in Pahuja, said that the jury consists

of 12 reasonable persons. In fact, this is what

led to this point arising, and 12 reasonable

persons each has their own look at the evidence,

each has their own reasonable doubt, and they are

not obliged to analyse it. Now, in effect, to

ignore the views of two or four, or whatever number of juries that State Parliament would permit is, in effect, to ignore the views of two reasonable

people. I do not think it matters at all. I think

it is a matter of semantics whether, as in Tasmania

and Western Australia where they deem it to be the

verdict of all, or whether, we say here, majority
verdicts. It simply means the views of two
reasonable people are ignored and that the State
could reduce that down at will unless this Court
grants special leave and looks at the whole

question of what the expression "trial by jury"

meant in 1901.

DEANE J: Except the argument is not quite as easy from your

point of view as you make it, in that if what was

involved was a State law which said, "For the

purposes of the Constitution trial by jury will not

require unanimity", what you say would be right.

But you have got to approach this in the context of

the Commonwealth taking State courts and

procedures, and the question in that context is

whether, if a State law changes its procedures so

that trial by jury allows a majority verdict, has it ceased to be trial by jury for the purposes of

section 80 of the Constitution? Well now, it may

well be that the answer is in your favour, but the

argument is not quite as easy as if you just go

direct to what section 80 requires, as it were.

MR BORICK:  Thank you. I accept that, but whether it is in

my simplistic form in the way that Your Honour has

put to me, it is still a matter for this Court to

consider, and for that reason the applicant says

that special leave to appeal should be granted so

that this matter can be fully argued.

There is a risk to the jury system in this

country, particularly in this State where we have

basically lost committal proceedings. We have the

alternative of trial by a judge alone. There are many suggestions that juries should be got rid of for cases involving complex accounting evidence,

and it is fascinating to see that in 1898, with the

course of the debates, that very same reason was

advanced as to why you should not have juries.

There is a passage referred to by Your Honour

Justice Deane in the judgment in Kingswell's case

and, at a time when trial by jury and the meaning

of jury is under attack in this country, this case

Cheatle 2/9/92

would provide an opportunity for this Court to look

at section 80, see what it meant and to say, as we

would suggest it would, that it is not a matter of

mere procedure, that it meant 12 people and it

meant unanimous.

DAWSON J:  If you were right, would the machinery exist in

the State to provide - there would be no difficulty

in having a unanimous verdict in the Commonwealth

case of 12?

MR BORICK: In this State, Your Honour, there would simply

be a - - -

DAWSON J:  What I am asking is, would it preclude a trial of

a Commonwealth offence in South Australia?

MR BORICK: No, not at all. There would be a trial by - - -

DEANE J: Well, you say that but why would it not? I mean,

if the South Australian law provides that there be

a verdict of the majority, how could, as a matter

of the operation of laws, you get a situation

where, in relation to Commonwealth offences, there

would be a different procedure?

MR BORICK:  Your Honour, with respect, I may be approaching

this simplistically. I would not see it as a

different procedure. What would happen is that

there would be an indictment. There would be a

trial and there would be a jury of 12 people and

then they would consider their verdict, and all it

would mean would be that the jury would be told,

"Well you cannot bring in a majority verdict in

this situation, and you cannot - - -

DEANE J:  What you would effectively say is that somehow the

law enabling a majority verdict to be taken was

simply inapplicable.

MR BORICK:  Not applicable, yes. And so, there would be no

hourly periods either. The jury would simply say

at some point, "We cannot agree upon a verdict", or

"We have agreed upon a verdict" - well, let us

assume they could not, as in this case - at some

point they would come out and say, "We cannot agree

upon a verdict", and that would be an order for a

retrial.

MASON CJ:  I think you ought to look at Newell's case,

Mr Borick, pages 712, 713, in particular the

second-last paragraph on page 713, which refers to

the American position.

MR BORICK: That is the paragraph in the United States - - -

MASON CJ: Yes.

Cheatle	2/9/92
MR BORICK:	I think that does support my proposition then,

that -

MASON CJ:  Yes. I realize it is the point of your

proposition, but it seems your proposition has some

support.

MR BORICK: Yes, Your Honour. So, for those reasons - I

really cannot put it any other way - the appellant

says that this is a proper case for the grant of

special leave.

MASON CJ: Yes.

MR BORICK:  There are other grounds. Does Your Honour want

me to move to those now, the ones relating to

reasonable doubt and also to fair trial?

MASON CJ: If you are pressing those grounds, yes.

MR BORICK: Yes, I do, thank you. In relation to the

question of the direction on reasonable doubt, in

our submission, the overall direction did not

accord with the law, but in particular, in our

submission, it was an error of law to direct a jury

that a reasonable doubt would arise if the jury

thought an explanation offered by the accused was

reasonably inconsistent with guilt, or,

alternatively, reasonably consistent with

innocence. And it is the particular use of the

expression "reasonable" which we would take issue

with, and the Court of Criminal Appeal itself

thought that was an unfortunate choice of

expression.

In our submission, what that direction meant

was that a jury were really being told that they as

a collective unit had to assess any particular

doubt held by any particular juror to see whether

that doubt was reasonable, and that is not the

process at all, as our Chief Justice again as I

referred to Pahuja's case, they are all treated as

reasonable people, and each juror has their own

doubt, and they are not obliged to subject it to

any sort of analysis. If they are a reasonable

person and they have a doubt, it is a reasonable

doubt, and most certainly they are not obliged to

submit their doubt to close analysis as to his

reasonability, by other members of the jury. To

put it, perhaps again in simplistic form, to tell a

jury, "Is the doubt in your minds?" - plural - is wrong. "It is the doubt in your mind that should

be expressed to the jury."

In addition, His Honour in his summing up told

the jury if they were satisfied - and he meant

beyond reasonable doubt, because he had told them

Cheatle 6 2/9/92

that any time he used the word "satisfied" he meant

beyond reasonable doubt - as to the innocence, or

if the jury were not satisfied beyond reasonable

doubt as to their guilt, that would be a

definition, and in our submission, that was an

error of law. And then His Honour went on to

explain or illustrate - I have used the word

"define" but I would be happy with the word

"illustrate", and he did so in four ways. He said

it was an explanation by the accused reasonably

inconsistent with guilt; or an explanation by the

accused reasonably consistent with innocence, or

when the evidence is evenly balanced, or if the

jury were genuinely uncertain where the truth lies.

In evaluating conflicts between the accused

and other witnesses they are directed they had to

form the best conclusion they could as to the

relative values. They were told that the evidence

and the demeanour of the accused "may convince you

of their innocence" and in regard to a presumption

of innocence they were told to bear that in the

background. And the appellants submit that there

was no requirement in law that the .jury must be

satisfied beyond reasonable doubt of the innocence

of the accused. It was misleading to tell the jury

the evidence and demeanour of the accused could

convince the jury of the innocence, that the

criminal standard is not concerned with an even

balance or relative values.

I have made my point in regard to

reasonableness and that it was wrong, in any event,

to attempt to find reasonable doubt. Towards the

end of the summing up at page 44 of the transcript,

His Honour, at line 20 said:

If at the end of the case there is a

reasonable doubt arising in your minds from

the sworn evidence of the accused and his or

her witnesses, or if indeed on the whole of

the material before you a reasonable doubt as

to the guilt of the accused is created in your

minds, then that doubt must be resolved in

favour of the accused.

As I understand the judgment of the Court of

Criminal Appeal, they relied upon that passage.

My submission about it is that the words "or

if indeed" are vital, because what they are told is

that if -

there is a reasonable doubt arising in your

minds from the sworn evidence of the accused

and his or her witnesses -

Cheatle 7 2/9/92

now, that is not the proper definition of

reasonable doubt.

That is what they are told first, against a

background of what they have been earlier, and they

they are told "or if indeed", and then the correct

direction is given to them. And for those reasons

the proposed appellants say that this again is a

matter requiring special leave to appeal to correct

the errors that occurred there. If the Court

agrees with our submission, it must be stressed

that it is th~ reasonable doubt of each juror which

is vital, not some sort of collective approach

where the jury analysed the various reasonable

doubts that are held in the jury room.

It perhaps summarizes in this way: that in

the end result the jury must have been left with
the impression that this was a case which required
the accused to come up with a pretty good

explanation if they wanted to convince the jury of

their innocence.

The third matter on which this application for

special leave to appeal is based is what I will

perhaps call the fair trial point. Mrs Cheatle,

the female accused, was unrepresented at trial; had

a serious hearing defect. Arrangements were made

for some acoustic material to be there to enable

her to hear and it is obvious that from time to

time throughout the trial she had difficulty

hearing, and when she did have difficulty there

would be a stopping. They would try to find out what was wrong with the equipment, and the trial

would proceed and there has never been a complaint
about that aspect of the trial.

However, when the summing up got under way Mrs Cheatle understood that she could not intervene

and, in fact, whether her understanding was right

or wrong, she did not intervene and at the

conclusion of it His Honour was asking counsel who

appeared for Mr Cheatle whether he had any

complaints and he then asked Mrs Cheatle and at

page 52 this passage occurred, Mrs Cheatle said:

May I just say one thing? I may not be

correct in saying this, but I thought it was

very unfair what you said about there were no

books at the Royal Oak, because I didn't say

that.

And His Honour said:

No, I didn't say that.

Mrs Cheatle said:

Cheatle 2/9/92

I had very great difficulty hearing.	I
thought that is what you said.	I apologise.

And that was the end of that matter. Now, in fact,

at page 40 of the transcript is the passage that

Mrs Cheatle had thought she had heard about, and it reads that:

Mr Rice has emphasised in his submission

to you that there is a common theme because
the witnesses confirm that each cash customer

did not want to have any paperwork. He

submitted to you that the unavailability of

paperwork is the hallmark of dishonest

dealing. You may ask yourselves what accounts

were kept by the Royal Oak? Mrs Cheatle said

that all documentation was seized by the

Federal Police. Be that as it may, there was

little information as to what books of account

were kept and you will recall that Harvey

Cheatle admitted that whatever the bookkeeping

system was, and he really did not know, it was
such that no-one would have known if somebody

stole some of the stock.

Now that clearly left the jury with the impression

that there were no books kept at the Royal Oak and

that that was a sinister feature of the appellants'

behaviour. But, in fact, there had been books

kept; they had been given to the Federal Police and

the Federal Police had lost them. And it is our

submission that when Mrs Cheatle made her complaint

and said it was unfair of the judge that she was

right, in a sense, irrespective of whether right or

wrong, the trial judge having heard Mrs Cheatle

say, "I did not hear what was being said", he knew

that there had been a difficulty earlier in the

trial; he should have corrected the position then

and there and it was far too .late to try to correct

it at any later stage, either by affidavit in the

Court of Criminal Appeal or anywhere else because

all Mrs Cheatle could say is what she has told the
judge then.	The only time at which the problem

could have been corrected was at that stage of the

trial and, in my submission, it was akin to

Mrs Cheatle not being at the trial.

The current law on the duty of a trial judge

with respec~ to assisting or ensuring a fair trial

Macpherson's case. such advice and information as is necessary to ensure a fair trial and, in our submission, that

for an unrepresented accused in

is, as the events of this case point out, no longer
sufficient. In our submission, observance of the

duty should depend on the age, experience, ethnic

background and other personal characteristics of an

Cheatle 9 2/9/92

accused, including any disability displayed by the

accused. An accused must be present at the trial

and it is equally as basic the accused understands

what is being said, and as by way of example: if an

accused has difficulty with the language at the

trial, not only must an interpreter be provided,

but in addition care has to be taken that

difficulties occasioned by cultural background or

dialect are recognized and overcome.

I know it obviously poses a difficulty for a

trial judge with an unrepresented accused but, in

our submission, it is one that would have to be

met. If counsel is representing an accused at the

trial and there is a problem with an interpreter,

and it happens reasonably regularly - if the

accused is unrepresented they might not know that

they can tell the judge or tell they Crown

prosecutor they are having a difficulty. That is

an example, in our submission, of the fact that it

is not a matter of just providing something, but

you have got to make sure whatever you provide, it

works.

We would submit that the performance of that

type of duty does not involve the judge in the

conduct of the defence case, but that in a case

where an accused is unrepresented the prosecutor

himself, like the judge, has certain duties to

perform to make sure that accused gets a fair

trial, for example, it is convention that if the
accused is unrepresented, unless there are very
good reasons, the Crown prosecutor will not address

the duty by way of final address.

Macpherson was decided in 1981 when the

criminal justice system and ideas of what

constituted a fair trial were perhaps different to the system and ideas which prevail now. Important principles such as the privilege against

self-incrimination and the so-called right to
silence, are in transition stage.	The

ever-increasing costs of justice has produced and

will continue to produce procedural and

administrative changes and as I have already

indicated - - -

MASON CJ: But this is a long way from the point you are

arguing.

MR BORICK:  I was putting it by way of a background

submission, Your Honour, that the difficulties for

an accused person at a trial - in fact everyone

associated with a trial - perhaps more difficult

that what they were in 1981 because of continual

changes in administration and procedure and against

that background, in our submission, Macpherson

Cheatle 10 2/9/92

needs to be updated. It has become too inflexible.

As this case indicates, it is left just giving

advice as to your basic rights and procedures

without any real direction as to how that advice is

to be made effective, so that an accused has a free

choice and fully understand his or her rights at

trial, and for those reasons the appellant submits

that special leave to appeal should be granted,
individually on each of those matters, but
collectively they would, in our submission,
certainly raise sufficient concerns about this

trial, to warrant the grant of special leave.

MASON CJ: Thank you, Mr Barick. Yes, Mr James. We need

only trouble you on the section 80 point.

MR JAMES:  May it please the Court. For two-thirds of the

life of the Constitution to over two-thirds of the

life of this Court there have been majority

verdicts in Australia in federal criminal matters.

There has been emphasis on the unanimity of

verdicts. The unanimity of verdict is a different

thing from the concept of trial by jury in itself.

Further, of course, South Australian law provides

for unanimous verdicts. If I might take the Court

to pages 45 to 46 of the appeal book in the instant

case, the initial instructions of the trial judge

to the jury concerning the way in which they might

reach their verdict, commences at line 21, where

the jury were instructed that they had four hours

to reach a unanimous verdict and at 26:

Up until the expiration of four hours

only a unanimous verdict, one way or the

other, guilty or not guilty, will be taken.

If, at the end of four hours, if all of the

jurors are unable to agree upon their verdict

a verdict of 10 or 11 jurors, that's a

majority of 10 or 11 either way -

that is for conviction or acquittal -	either a majority guilty, or a majority not	guilty, will be taken as the verdict of you
all.

Which is the formula in South Australia.

If at the end of four hours you are not agreed

either unanimously, or by a majority verdict,

one way or the other and you think a little

more time would produce a unanimous, or a

majority verdict, then I shall give you more

time.

And what occurred, in fact, in the instant trial,

is set out at page 54 of the appeal book, where the

Cheatle 11 2/9/92

jury had retired prior to lunch and the jury

returned at 5.25 pm, no verdict at that stage.

Questioned as to whether any direction might be

helpful, and His Honour at line 11:

It has been a long trial and I hope you will

use every effort to reach a verdict, be it by

majority or preferably a unanimous verdict.

And, in conclusion the jury returns a majority

verdict at 9.30 pm as appears from line 23.

Your Honours, if there is to be a grant of

special leave in the present case we would ask that

that be limited to the section 80 question, but we

should also say that no point was ever taken at

trial or on appeal or indeed prior to the special

leave application.

In essence, the argument that seems to be put,

or behind the argument that is put is the

proposition that the trial itself was a nullity

because of the majority verdict provisions. That

is, it was not a trial as contemplated by

section 80. In that sense it seems to be argued

that so far as section 68 would seek to pick up the

unanimous verdict, but if not unanimous then after

four hours the verdict of you all by dint of 10

which section 68 does not pick up because of

section 80, the South Australian, Tasmanian,

Western Australian provisions. I put aside the

Northern Territory because of Bernasconi.

Your Honours, the Constitution, we submit, is

a living breathing document and the common law

trial was not fixed and fossilized in meaning as it

was in England prior to Federation. The modern

cDncept of jury has contemplated that a verdict of

less than the whole reduced to a certain extent,

though not to numbers that would vitiate the entire

concept of jury, shall be sufficient. Further, we

referred to in Newell have now been overtaken by	submit, that indeed the very United States cases
time. Fisher's case was of course a case
concerning the seventh amendment.

Article 3 in the United States exists in a

complex including the sixth and seventh amendment and the due process clause. Neither the sixth or

seventh amendment, nor due process, applies in our

Constitution. Canada did strike down six-member

juries in the Yukon and North-west Territory, but

that because of a discrimination provision, not the

equivalent of our section 80. Majority verdicts

exist in the United Kingdom, in the States of the

United States, in 13 Commonwealth countries and indeed even on the Continent in France, Italy,

Cheatle 12 2/9/92

Germany and Austria. The concept of jury, in our

submission, is not inextricably linked to a

necessary condition that the verdict will have to

be unanimous, yet that is where the argument must

go, in our submission, to strike at the trial by

virtue of section 80.

MASON CJ:  You say that the decision in Fisher has been

overruled, do you?

MR JAMES:  In so far as it relates to State courts, and in

so far as it relates to Article 3.

DAWSON J: Not in federal trials.

MR JAMES:  Not in federal trials. Unanimity is retained in

the United States in federal trials because of the combination of Article 3, the sixth amendment, the

due process clause and an act of Congress.	Now,
that is as far as I can take that.	I can say - - -

MASON CJ:  Is there any disagreement with Justice Brewer's

statement of principle concerning the concept of

trial by jury at common law?

MR JAMES:  I think I can only say no, Your Honour. And I

can only say that the decisions in the United

States overturning the idea of unanimous verdicts

in State matters were themselves split courts of

five:four in each case. Now I accept the

consequences of what Your Honour's observation

means in relation to the special leave application,

but we wish to define, as best we can, the issue on

the special leave application for Australia and to
make the point that what we are talking about in

section 80 is a trial by jury, that is a

representative panel of lay fact finders from the

mode whereby that jury is selected, the challenges,

the qualifications, 12 persons now instead of

12 men, the mode by which they reach their

conclusion and the instructions that might be given

to them.

DAWSON J:	The difference is, it is not the verdict of the jury when you take a majority verdict, whichever
way you look at it, it is a verdict of 10 members
of the jury.

MR JAMES: Well, Your Honour, with respect, it is defined in

South Australia to be the verdict of the jury.

DAWSON J: Well, you cannot deem things in this context to

be what they are not.

MR JAMES:  And it would be our submission that that group of

10 are unanimous. It is, in effect, a numbers

problem, rather than a simple majority problem.

Cheatle 13 2/9/92

DAWSON J:  The opponents of that view say, well you can have

a verdict of 10 jurors, but if the jury is

comprised of 12 it is not the verdict of the jury.

There is a difference in quality.

MR JAMES:  Yes, I accept, Your Honour, that there is debate

on that topic, and I accept still further - - -

DAWSON J: Maybe I am - being a Victorian, I see it in one

light.

MR JAMES:  The other half of the country, Your Honour, does

not.

DAWSON J: Yes, I appreciate that.

MR JAMES:  And, indeed, even in Victoria and New South

Wales, we can reduce the numbers because of illness

or other matters.

DAWSON J:  But that does not matter. Once you have reduced

the numbers - I mean, if it is a jury of 10 or

whatever it might be, that is all right, it is the

verdict of the jury.

MR JAMES:  In effect, Your Honour, that is to produce a

situation where the verdict of one must be the

verdict of all, and Henry Fonda will always win.

Your Honours, really there is little more I can

say - - -

DAWSON J: But there is room for argument, is there not,

Mr James?

MR JAMES:  I have to concede that, Your Honour, and bearing

in mind where we have got to perhaps I should also

indicate, Your Honours, that in Snow's case there

was some examination of the proposition of the

nature of the verdict of the jury as well.

DAWSON J: What did they say?

MR JAMES:  Snow, 20 CLR. But the unanimous verdict is a

bulwark of the jury system and nobody has actually

gone to the extent of saying that the unanimous

verdict is a necessary condition for a jury, for

the thing that tries the matter to be called a

jury and it is our submission my friend has to go

that far in this context. We seek, as I said, to

divorce the existence of the body from the

incidents or the functions it performs and our

submission is that the Court would not hold that

section 80 extends that far.

But, having said all that, and appreciating

what has been put to me and put to my learned

friend, might I pass shortly to the other aspect of

Cheatle 14 2/9/92

the present application, and that is that if the

Court were to hold, contrary to our submissions,

yes, it still would be possible to maintain that allow for verdicts of less than a majority

because they also allow for a unanimous verdict and

that portion of their jury legislation would be
severable and would not be essential to the picking

up of the Constitution and composition of the

courts. Mr Justice Brennan has made some

examination of that in the earlier decisions and

this Court did refer to it in Brown and also in

Kingswell.

Unless I can assist the Court any further,

they are the submissions we would put on the

section 80 point.

MASON CJ: Thank you, Mr James. There will be a grant of

special leave to appeal in this case, and it will

be limited to the section 80 question.

The Court is of opinion that the decision of

the Court of Criminal Appeal on the other two

questions argued in support of the application was
not attended with sufficient doubt to justify the

grant of special leave.

MR JAMES:  May it please the Court.

AT 11.30 AM THE MATTER WAS ADJOURNED SINE DIE

Cheatle 15 2/9/92