Cheatle v The Queen

[1993] HCA 44

HIGH COURT OF AUSTRALIA

MASON CJ, BRENNAN, DEANE, DAWSON, TOOHEY, GAUDRON AND McHUGH JJ

CHEATLE AND ANOTHER v. THE QUEEN

(1993) 177 CLR 541

26 August 1993

Constitutional Law (Cth)

Constitutional Law (Cth)—Law of Commonwealth—Offence—Trial by jury—Verdict of guilty—Need for unanimity—State law providing for majority verdicts—Validity—The Constitution (63 and 64 Vict. c. 12), s. 80—Judiciary Act 1903 (Cth), ss. 68(2)*, 79*—Acts Interpretation Act 1915 (SA), s. 22a(1)+—Juries Act 1927 (SA), s. 57(1). * Section 68(2) of the Judiciary Act 1903 (Cth) provided in part that "The several Courts of a State exercising jurisdiction with respect to -- ... (c) the trial and conviction on indictment ... of offenders or persons charged with offences against the laws of the State ... shall have the like jurisdiction with respect to persons who are charged with offences against the laws of the Commonwealth committed within the State ...". Section 79 provided that "The laws of each State, including the laws relating to procedure, evidence, and the competency of witnesses, shall, except as otherwise provided by the Constitution or the laws of the Commonwealth, be binding on all Courts exercising federal jurisdiction in that State in all cases to which they are applicable." + Section 22a(1) of the Acts Interpretation Act 1915 (SA) required every provision of a South Australian Act to be construed so as not to exceed the legislative power of the State.

Orders

1. Appeal allowed.

2. Order of the Court of Criminal Appeal of South Australia set aside and in lieu thereof it be ordered that the appeal to that Court be allowed, and a new trial ordered.

Decision

MASON CJ, BRENNAN, DEANE, DAWSON, TOOHEY, GAUDRON AND McHUGH JJ The appellants, Mr and Mrs Cheatle, were charged in the Central District Criminal Court of South Australia with conspiracy to defraud the Commonwealth. Under s.86A of the Crimes Act 1914 (Cth), that offence is "an indictable offence". At the conclusion of their joint trial, each of the appellants was convicted by a majority verdict of a jury of twelve persons. The jury's majority verdict was returned pursuant to s.57 of the Juries Act 1927 (S.A.) which, except in cases of murder and treason, prima facie applies generally to criminal trials by jury in South Australian courts, including the trial in those courts of offences against laws of the Commonwealth. For present purposes, s.57 provides:

"(1) 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) if a sufficient number agrees to enable the jury to return a majority verdict - a majority verdict shall be returned; ...

(2) No verdict that an accused person is guilty of murder or treason shall be returned by majority.

...

(4) In this section -

"majority verdict" means - (a) where the jury, at the time of returning its verdict, consists of twelve jurors - a verdict in which ten or eleven jurors concur; ...

and "by majority" has a corresponding meaning."

2. Appeals by the appellants against conviction were unanimously dismissed by the South Australian Court of Criminal Appeal (Olsson, Matheson and Debelle JJ). The appellants now appeal against the judgment and orders of the Court of Criminal Appeal. The order of this Court granting special leave to appeal confined the appellants to a single ground. That ground, which was not raised before the Court of Criminal Appeal, is that the conviction of each appellant by majority verdict of the jury was a nullity by reason of s.80 of the Constitution.

3. Section 80 of the Constitution provides:

"The trial on indictment of any offence against any law of the Commonwealth shall be by jury, and every such trial shall be held in the State where the offence was committed, and if the offence was not committed within any State the trial shall be held at such place or places as the Parliament prescribes."

It is common ground that the trial of the appellants was, for the purposes of s.80, a "trial on indictment of (an) offence against (a) law of the Commonwealth". The question at issue is whether s.80's mandatory injunction that such a "trial ... shall be by jury" carries with it a requirement that any conviction must be by the agreement or consensus of all the persons constituting the jury at the time the verdict is pronounced. It will be convenient at times in this judgment to refer to such a requirement as "the requirement of unanimity".

4. By the time of Federation, the common law institution of trial by jury had been adopted in all the Australian Colonies as the method of trial of serious criminal offences ((1) See, generally, Castles, An Australian Legal History, (1982); Evatt, "The Jury System in Australia", (1936) 10 Australian Law Journal (Supp) 49.). The reference to "trial ... by jury" in s.80 was to that common law institution ((2) Williams v. Florida (1970) 399 US 78, per Harlan J, concurring in the result, at p 125: "The right to a trial by jury ... has no enduring meaning apart from historical form."; Story, Commentaries on the Constitution of the United States, 5th ed. (1891), vol.2, para 1779; Re B.C. Motor Vehicle Act (1985) 2 SCR 486, at pp 512-513.). As Griffith CJ commented in R. v. Snow ((3) (1915) 20 CLR 315, at p 323.), s.80's requirement that the trial on indictment of any offence against any law of the Commonwealth shall be by jury represents a "fundamental law of the Commonwealth" which "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 constitutional law and in the common law of England". Earlier, in Huddart, Parker and Co. Proprietary Ltd. v. Moorehead ((4) (1909) 8 CLR 330, at p 375.), another of the original members of the Court, O'Connor J, had sought to identify "the essential features" of the institution of trial by jury adopted by s.80:

"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."

That statement correctly draws attention to the representative character of a jury and to the fact-finding function which a jury traditionally served in civil litigation and in criminal committal and trial processes. It does not, however, attempt to address the more particular question of what, if any, are the minimum requirements which must be observed to ensure that a jury in a criminal trial is adequately representative of the community. It would, for example, be surprising if s.80's guarantee that the trial on indictment of an offence against a law of the Commonwealth shall be by jury were satisfied by a "jury" of two persons selected by lot from a panel of half a dozen "laymen" nominated by the Director of Public Prosecutions. More importantly for present purposes, O'Connor J's comments do not attempt to address the question whether there are implicit in s.80's insistence upon trial by jury some minimum requirements about the process by which a jury reaches a verdict of guilty. It is, for example, clear that, at the time of the adoption of the Constitution, it had long been an essential attribute of the institution of trial by jury that the function of the criminal jury was to determine guilt or innocence on the evidence led at the trial and not on personal pre-knowledge or prejudgment ((5) See, e.g., Stone, Evidence - Its History and Policies (rev. Wells), (1991), pp.16-23; Williams, The Proof of Guilt, 3rd ed. (1963), p.5; Windeyer, Lectures on Legal History, 2nd ed. (1949), p.66.). It had also long been settled under the common law that a verdict of guilty could only be returned by a criminal jury by the agreement or consensus of all the jurors.

THE REQUIREMENT OF UNANIMITY: HISTORY
5. As a matter of history, the common law's insistence that the verdict of the petty jury ((6) i.e., the jury empanelled to try the issues of fact and determine finally the question of guilt or innocence; to be distinguished from the grand jury, which returned bills of indictment.) on a criminal trial be by agreement of all the jurors can be traced back at least to the judgment of the Common Bench, delivered by Thorpe CJ, in an Anonymous Case ((7) (1367) 41 Lib Ass 11 translated in Thayer, A Preliminary Treatise on Evidence at the Common Law, (1898), p.89.) in 1367 when "it was finally settled ... that (the) verdict must be unanimous" ((8) Holdsworth, A History of English Law, vol.1, 7th ed. (1956), p.318; and see also, e.g., Hale, The History of the Common Law of England, 6th ed. (1820), pp.348-350; Forsyth, History of Trial by Jury, (1852), pp.238-239; Stephen, A History of the Criminal Law of England, (1883), vol.1, pp.304-305; Pollock and Maitland, The History of English Law, 2nd ed. (1898), vol.2, pp.625-626; von Moschzisker, Trial by Jury, (1922), p.298.). The origin of that requirement of unanimity would seem to lie not in any reasoned development of principle but in a requirement of the concurrence of twelve jurors in the verdict in the early days when jurors performed the function of local witnesses in trial by compurgation ((9) See, e.g., Forsyth, op cit; Stephen, op cit, p.304; Devlin, Trial by Jury, (1966), p.48; Ryan, "Less than Unanimous Jury Verdicts in Criminal Trials", (1967) 58 Journal of Criminal Law, Criminality and Police Science 211, at p.212; Downie, "And Is That The Verdict Of You All?", (1970) 44 Australian Law Journal 482, at pp.483-484; note also Ryan, op cit, at p.213 where he refers to the anomaly that "unanimity ... evolved from a system which did not require unanimity, but only required that the proper amount of evidence to support a verdict be that twelve of the jurors on the panel agree upon the verdict".). Be that as it may, the common law has, since the fourteenth century, consistently and unequivocally insisted upon the requirement of unanimity. The requirement was, at one stage, subjected to some distinguished criticism ((10) See, in particular, Bentham, Rationale of Judicial Evidence, (1827), vol.1, pp.239-240, 245; Hallam, View of the State of Europe during the Middle Ages, supp. notes, (1848), p.262; Blackstone, Commentaries on the Laws of England, 15th ed. (1809), bk 3, p.375 n.20; and, for criticism in verse, Pope, The Rape of the Locke, (1712), Canto I, ll.84-86.), mainly for the reason that it constituted the foundation and explanation of the practice in earlier times ((11) i.e. before the right of a trial judge to discharge the jury by reason of inability to agree on a verdict was authoritatively established in Winsor v. The Queen (1866) LR 1 QB 289.) of carrying the jurors around "in a wagon" ((12) (1367) 41 Lib Ass 11 in Thayer, op cit; Blackstone, Commentaries on the Laws of England, (1768), bk 3, p.376.) with the assize - "without meat or drinke, fire or candle" ((13) Coke, Institutes, 19th ed. (1832), vol.2, 227.b.(e).) - until they were starved or frozen into agreement. In more recent times, however, the requirement has commonly been seen as constituting "an essential and inseparable part" ((14) Newell v. The King (1936) 55 CLR 707, per Evatt J at p 713.) of the right to trial by jury and an important "protection" of the citizen against wrongful conviction ((15) ibid, per Dixon J; and see, generally, Hale, op cit, p.336 n.A; Forsyth, op cit, pp.246-247; Stephen, op cit, p.305; Cooley, A Treatise on the Constitutional Limitations, 6th ed. (1890), pp.389-390; Downie, op cit, at p.490; New South Wales Law Reform Commission, Criminal Procedure: The Jury in a Criminal Trial, March 1986, p 142; and see, also, Johnson v. Louisiana (1972) 406 US 356, per Douglas J, dissenting, at p 392; Reg. v. Thatcher (1987) 1 SCR 652, at p 705.). It is unnecessary for present purposes to trace the steps by which the common law institution of criminal trial by jury was initially introduced in New South Wales and Van Diemen's Land ((16) See, e.g., Reg. v. Valentine (1871) 10 (N.S.W.)SCR 113; Bennett, "The Establishment of Jury Trial in New South Wales", (1961) 3 Sydney Law Review 463, at pp 473-482; see, also, Windeyer, op cit, pp.325-344; Neal, "Law and Authority: The Campaign for Trial by Jury in New South Wales", (1987) 8 The Journal of Legal History 107.) and subsequently established as the method of trial of serious criminal offences in the Australian colonies. It suffices to say that, by 1900, trial by jury was firmly established by legislation ((17) See, as to the position in 1900, Jury Act 1847 (N.S.W.); Juries Act 1890 (Vict.); Jury Act 1862 (S.A.); Jury Act 1867 (Q.); Jury Act 1898 (W.A.); Jury Act 1899 (Tas.).) in each of the federating Colonies as the universal method of trial of serious crime. In the legislation of each Colony, some of the traditional characteristics of the common law institution of criminal trial by jury were assumed rather than specifically prescribed. That was certainly the case as regards the requirement of unanimity. Notwithstanding the absence of any specific legislative provision in that regard, it was recognized, as a basic principle of the administration of criminal justice in each of the Colonies, that the verdict of a criminal jury could be returned only by the agreement of all the jurors. Indeed, in the case of the New South Wales ((18) Criminal Law Amendment Act 1883 (N.S.W.), s.340.), Victorian ((19) Juries Act 1890 (Vict.), s.73.), Queensland ((20) Criminal Code Act 1899 (Q.), s.626.) and Tasmanian ((21) Jury Act 1899 (Tas.), s.48.) legislation, the assumption of the requirement of unanimity was underlined by express provision authorizing the discharge of the jury in the event that the jurors were not agreed - in most cases, only after a specified minimum period of deliberation ((22) In the case of Queensland, no minimum period was specified.).

6. It follows from what has been said above that the history of criminal trial by jury in England and in this country up until the time of Federation establishes that, in 1900, it was an essential feature of the institution that an accused person could not be convicted otherwise than by the agreement or consensus of all the jurors. It is well settled that the interpretation of a constitution such as ours is necessarily influenced by the fact that its provisions are framed in the language of the English common law, and are to be read in the light of the common law's history ((23) See, e.g., Australian Communist Party v. The Commonwealth (1951) 83 CLR 1, per Dixon J at p 193; Uther v. Federal Commissioner of Taxation (1947) 74 CLR 508, per Latham CJ at p 521; The Commonwealth v. Kreglinger and Fernau Ltd. and Bardsley (1926) 37 CLR 393, at pp 411-412; R. v. Snow (1915) 20 CLR , at p 323; Smith v. Alabama (1888) 124 US 465, at pp 478-479; and see, also, Dixon, Jesting Pilate, (1965), pp 174, 198-202, 203-213.). In the context of the history of criminal trial by jury, one would assume that s.80's directive that the trial to which it refers must be by jury was intended to encompass that requirement of unanimity.

THE REQUIREMENT OF UNANIMITY: PRINCIPLE
7. Considerations of principle also support the conclusion that the requirement of unanimity is an essential feature of the trial by jury guaranteed by s.80. Regardless of the origins of the requirement that the verdict of a criminal jury be unanimous, the common law's unwavering insistence upon the requirement since the fourteenth century has endowed it with the authority of settled doctrine. Indeed, the requirement constitutes one of the hallmarks of the common law institution of criminal trial by jury in that there is a significant difference in nature between a deliberative process in which a verdict can be returned only if consensus or agreement is reached by all jurors and a process in which a specified number of jurors can override any dissent and return a majority verdict. The requirement of a unanimous verdict ensures that the representative character and the collective nature of the jury are carried forward into any ultimate verdict ((24) "On Instructing Deadlocked Juries", (1968) 78 The Yale Law Journal 100, at p.128; see also Downie, op cit, at p.491.). A majority verdict, on the other hand, is analogous to an electoral process in that jurors cast their votes relying on their individual convictions ((25) See "On Instructing Deadlocked Juries", op cit, at p 107, and Reg. v. Bain (1992) 1 SCR 91, at p 128 where Gonthier, McLachlin and Iacobucci JJ observed, in the course of a dissent directed to a quite different point, that one of the "fundamental characteristics of criminal jury trials" is that "the verdict of the jury must be unanimous ... In our criminal law, the jury only exists as a collectivity, and not as a group of individuals."). The necessity of a consensus of all jurors, which flows from the requirement of unanimity, promotes deliberation and provides some insurance that the opinions of each of the jurors will be heard and discussed ((26) See Johnson v. Louisiana (1972) 406 US, per Brennan J, dissenting, at p 396.). Thereby, it reduces the danger of "hasty and unjust verdicts" ((27) Wellman, Gentlemen of the Jury, (1931), p.283.). In contrast, and though a minimum time might be required to have elapsed before a majority verdict may be returned, such a verdict dispenses with consensus and involves the overriding of the views of the dissenting minority.

8. Moreover, the common law's insistence upon unanimity reflects a fundamental thesis of our criminal law, namely, that a person accused of a crime should be given the benefit of any reasonable doubt ((28) See Reg. v. Thatcher (1987) 1 SCR, at p 698.). It is true that there is no logical inconsistency involved in the co-existence in the law of the criminal onus of proof and majority verdicts of guilt ((29) See, e.g., Johnson v. Louisiana (1972) 406 US, per Douglas J, dissenting, at p 392; Ryan, op cit, at p 215.). Nonetheless, assuming that all jurors are acting reasonably, a verdict returned by a majority of the jurors, over the dissent of others, objectively suggests the existence of reasonable doubt and carries a greater risk of conviction of the innocent than does a unanimous verdict. As Sir James Stephen wrote in 1883 ((30) op cit, pp.304-305.) :

"The justification of the rule, now that the character of the jury has changed from that of witnesses to that of judges of fact, seems to me to be that it is a direct consequence of the principle that no one is to be convicted of a crime unless his guilt is proved beyond all reasonable doubt. How can it be alleged that this condition has been fulfilled so long as some of the judges by whom the matter is to be determined do in fact doubt?"

Those views were echoed nearly eighty years later by Sir Patrick Devlin ((31) op cit, p.56.):

"Whatever its origin, unanimity is now so ingrained in our procedure that its eradication would seem to take from the verdict a virtue that in the criminal law it needs. The criminal verdict is based on the absence of reasonable doubt. If there were a dissenting minority of a third or a quarter, that would of itself suggest to the popular mind the existence of a reasonable doubt and might impair public confidence in the criminal verdict."

THE REQUIREMENT OF UNANIMITY: AUTHORITY 9. There is no actual decision of the Court establishing that s.80's guarantee of trial by jury carries with it an immunity from conviction except by the unanimous verdict of the jurors. However, the clear weight of authority supports the conclusion that the requirement of unanimity is an essential feature of the institution of trial by jury adopted by s.80.

(i) English Authority:
10. It has been seen that the common law requirement of unanimity became settled in England by a decision of the Common Bench in an Anonymous Case ((32) See supra fn.(7).) in 1367. In that case, Thorpe CJ said that the justices "were all agreed" that a verdict could not be taken from eleven of the twelve jurors. Thayer's translation of the report of the case continues ((33) op cit):

"Kirketon (of counsel) told how Wilughby ... in trespass took the verdict of eleven and sent the twelfth to prison; and the attaint was sued against the eleven. And also W. Thorpe ... in an assize in the twentieth year of the present king (1345-6) took the verdict of eleven. THORPE. That is no example for us; he was heavily reproached for that. ... And afterwards by assent of all the justices it was declared that this was no verdict. It was therefore awarded that this panel be quashed and annulled, and that he who was in prison be enlarged ... Note, that the justices said that they ought to have taken the assize with them in a wagon until they were agreed."

11. Thereafter, the requirement of unanimity was accepted by courts and commentators alike as beyond question ((34) See, e.g., Conway and Lynch v. The Queen (1845) 7 ILR 149; Reg. v. Charlesworth (1861) 1 B and S 460 (121 ER 786); and see Blackstone (1768), op cit, p 343; Hale, op cit, p 348; Pollock and Maitland, op cit, pp 625-626; Thayer, op cit, pp.89-90; Holdsworth, op cit, p.318.). The area of dispute related to the means by which unanimity might be obtained. That dispute was not finally settled until 1866 when, in the case of Winsor v. The Queen ((35) (1866) LR 1 QB 289.), it was established that the unanimity which the law required should not be the result of anything but "unanimity of conviction", as distinct from "the misery of men shut up without food, drink, or fire, so that the minority, or possibly the majority, may give way, and purchase ease to themselves by a sacrifice of their consciences" ((36) ibid, per Cockburn CJ at pp.305-306.). The actual decision in that case that the trial judge had been entitled to discharge the jury for failing to reach agreement was, however, based on acceptance of the requirement of unanimity. Indeed, Cockburn CJ expressly acknowledged that the requirement of unanimity was "one of those principles that lie at the foundation of our law" ((37) ibid, at p.303.) and that "(o)ur ancestors insisted on unanimity as the very essence of the verdict" ((38) ibid, at p 305.). In R. v. Armstrong ((39) (1922) 2 KB 555, at p 568.), Lord Hewart CJ, speaking for the English Court of Criminal Appeal, went so far as to say that "the inestimable value" of the verdict of a criminal jury "is created only by its unanimity".

(ii) United States Authority:
12. Section 80 of the Constitution was modelled upon the guarantee of trial by jury contained in the last clause of s.2 of Art.III of the United States Constitution which reads:

"The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed."

The most significant difference between s.80 and that clause of the United States Constitution lies in the confinement of s.80's application to trials "on indictment" ((40) See, Official Record of the Debates of the Australasian Federal Convention, Melbourne, 20 January 1898, p.382. The obvious explanation of the difference is the decisions of the United States courts confining Art.III to the trial of more serious offences: see, e.g., Cooley, op cit, pp.389-390 n.2.). Otherwise, the variations are either semantic or explained by context. What is important for present purposes is that, if one ignores the predilection of the United States model for capital letters, the central command of both provisions is framed in identical words: "The trial (of relevant offences) shall be by jury". It must be acknowledged that Art.III's guarantee of trial by jury must be construed in the context of related clauses of the United States Constitution which are not reproduced in our Constitution ((41) See, in particular, the Fifth Amendment (entrenching presentment or indictment by grand jury), the Sixth Amendment (amplifying Art.III's guarantee), the Seventh Amendment (preserving trial by jury in suits at common law where "the value in controversy" exceeds twenty dollars) and the Fourteenth Amendment (binding the States to accord due process).). Nonetheless, one would expect that it was the intention of the framers of our Constitution to carry over into s.80 any settled interpretation of the words of that central command in the United States provision.

13. At the time of the adoption of the Australian Constitution, there was no decision of the United States Supreme Court directly determining the question whether Art.III's guarantee of trial by jury carried with it a requirement of unanimity. There were, however, statements in judgments of the Supreme Court involving the Seventh Amendment's preservation of trial by jury in suits at common law which quite clearly indicated that it did. In Walker v. Southern Pacific Railroad, in an opinion delivered by Brewer J ((42) (1897) 165 US 593, at p 596.), the Supreme Court recognized that the guarantee of trial by jury in the Seventh Amendment - and, presumably, also in Art.III - extended not merely to the form of trial by jury but to all the "substantial elements" of trial by jury at common law ((43) See American Publishing Company v. Fisher (1897) 166 US 464, at p 467.). In American Publishing Company v. Fisher ((44) ibid), the Supreme Court expressly held that the guarantee of trial by jury contained in the Seventh Amendment did not permit a majority verdict. In the critical passage of the opinion of the court, also delivered by Brewer J, it was said ((45) ibid, at p.468.):

"unanimity was one of the peculiar and essential features of trial by jury at the common law. No authorities are needed to sustain this proposition. Whatever may be true as to legislation which changes any mere details of a jury trial, it is clear that a statute which destroys this substantial and essential feature thereof is one abridging the right. It follows, therefore, that the court erred in receiving a verdict returned by only nine jurors, the others not concurring."

The comments in that passage were obviously equally applicable to the guarantee of trial by jury contained in Art.III of the United States Constitution. In Springville v. Thomas ((46) (1897) 166 US 707, at p 708.), the Supreme Court, in an opinion delivered by Fuller CJ, commented that "unanimity in finding a verdict" is "an essential feature of trial by jury in common law cases". Not surprisingly, Sir John Quick and Sir Robert Garran, writing in 1900 ((47) The Annotated Constitution of the Australian Commonwealth, (1901), p.810.), saw the above statements by the United States Supreme Court as applicable to the guarantee of trial by jury contained in s.80 of our Constitution.

14. In a line of subsequent United States cases, it was consistently recognized that the United States Constitution's express guarantee of "trial ... by jury" in United States federal courts carries with it the requirement of unanimity ((48) See Thompson v. Utah (1898) 170 US 343, at pp 351, 355; Maxwell v. Dow (1900) 176 US 581, at pp 586, 609; Hawaii v. Mankichi (1903) 190 US 197, at pp 211-212; Patton v. United States (1930) 281 US 276, at pp 287-290; Andres v. United States (1948) 333 US 740, at pp 748-749; Swain v. Alabama (1965) 380 US 202, at p 211.). Some more recent judgments in the Supreme Court have arguably cast doubt on that proposition ((49) See, in particular, Johnson v. Louisiana (1972) 406 US 356; Apodaca v. Oregon (1973) 406 US 404; Colgrove v. Battin (1972) 413 US 149; Burch v. Louisiana (1979) 441 US 130, at pp 136, 137.). But the Supreme Court has not, up until now, overturned the "unbroken line of cases reaching back into the late 1800s" in which it "recognized, virtually without dissent, that unanimity is one of the indispensable features of federal jury trial" ((50) Johnson v. Louisiana (1972) 406 US, per Powell J, concurring, at p 369; and see, e.g., United States v. Chavis (1983) 719 F 2d 46, at p 48; United States v. Smedes (1985) 760 F 2d 109, at p 113; "Twenty-first Annual Review of Criminal Procedure", (1992) 80 Georgetown Law Journal 1, at p 1377.). Be that as it may, the important point about United States authority for present purposes is that, at the time of the adoption of the Australian Constitution, the overwhelming weight of authority in the United States ((51) See, in addition to the decisions of the United States Supreme Court referred to above, Cooley, op cit, p.392; Story, op cit, 1779, n.2.) favoured the conclusion that the words "trial ... shall be by jury" in Art.III, which were adopted in s.80 of our Constitution, carried with them the requirement of unanimity.

(iii) Australian Authority:
15. As has been seen, it was recognized in this Court from an early stage that s.80's mandatory direction that "a trial on indictment of any offence against any law of the Commonwealth shall be by jury" should be construed as prima facie encompassing "the essential features" ((52) Huddart, Parker and Co. Proprietary Ltd. v. Moorehead (1909) 8 CLR , per O'Connor J at p 375.) of "the institution of 'trial by jury' with all that was connoted by that phrase in constitutional law and in the common law of England" ((53) R. v. Snow (1915) 20 CLR , per Griffith CJ at p 323; and see, also, Brown v. The Queen (1986) 160 CLR 171, at pp 201-202.). The present case is the first occasion on which the question whether the requirement of unanimity is one of the essential features of the common law institution of trial by jury adopted by s.80 of the Constitution has directly arisen for decision. In Newell v. The King ((54) (1936) 55 CLR , at p 713.), however, Evatt J indicated a firm view that that question should be answered in the affirmative. The question in Newell's Case was whether a 1936 Tasmanian legislative provision allowing for majority verdicts in criminal trials (other than those involving a capital charge) was applicable to a trial for manslaughter in circumstances where the offence had been committed and the trial had begun before the commencement of the relevant legislation. Obviously, since the alleged offence was not against a law of the Commonwealth, s.80 was inapplicable. In the course of his judgment, Evatt J referred to an argument which had been advanced on behalf of the Crown to the effect that, in criminal issues, unanimity, as opposed to majority decision, is a mere matter of procedure and said ((55) ibid):

"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 essential and inseparable part of that right, not a subordinate or merely procedural aspect of it (Cf. Stephen, History of the Criminal Law of England (1883), vol.I., pp 304, 305; Ford v. Blurton ((56) (1922) 38 Times LR 801, at p 805.), per Atkin LJ; R. v. Armstrong ((57) (1922) 2 KB, at p 568.), per Hewart LCJ; Australian Law Journal, vol.10, Supplement, p 64). 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."

Evatt J went on to quote, with obvious approval, the extract from the opinion of the United States Supreme Court in American Publishing Company v. Fisher ((58) (1897) 166 US, at p 468.) which is set out in an earlier part of this judgment. His Honour's reference in the above passage to an article in the Supplement to vol.10 of the Australian Law Journal was to an article by himself in the course of which he had written ((59) op cit, at p.64.):

"One important question is whether, in cases under s.80 of the Constitution, unanimity of the jury is essential. The answer is yes."

16. The other two members of the Court (Latham CJ and Dixon J) in Newell v. The King did not refer to s.80 of the Constitution. However, each made clear that he saw the requirement of unanimity as an essential feature of the common law right to trial by jury. Latham CJ said ((60) (1936) 55 CLR , at pp.711-712.):

"The cases draw a distinction between substantive rights and rights under laws of procedure relating to proceedings in which substantive rights are in question. 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. In Looker v. Halcomb ((61) (1827) 4 Bing 183, at pp 188, 189 (130 ER 738, at pp 740, 741).), per Best CJ, it is said: 'An Act of Parliament which takes away the right of trial by jury, and abridges the liberty of the subject, ought to receive the strictest construction; nothing should be holden to come under its operation that is not expressly within the letter and spirit of the Act'. ... In my opinion, the rules of strict construction of Acts relating to trial by jury, of which I have cited an example, apply to this case; and further, 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." (emphasis added)

Dixon J pointed out ((62) Newell v. The King (1936) 55 CLR , at p 712.) that, at the time when the Tasmanian legislation had been enacted, the accused had already pleaded not guilty and that "his plea amounted to a demand that he be tried by a jury, and he became entitled to be tried accordingly". His Honour added ((63) ibid, at pp.712-713.):

"The right which his plea so asserted had this conspicuous feature, namely, that although he was placed in jeopardy, he was placed in jeopardy of the unanimous verdict of twelve men. This was the position he occupied when the Jury Act 1936 altered the law and made the concurrence of ten sufficient for a conviction or acquittal. When it says that this should be so 'on the trial of any criminal issue,' should these general words be understood as applying to a trial already begun of issues already joined? In my opinion they should not. ... They should not be construed as depriving a prisoner standing in peril at the time of their enactment of so important a thing as his protection from conviction except by a unanimous verdict." (emphasis again added)

SOME ARGUMENTS AGAINST UNANIMITY 17. Several distinct arguments were advanced against the conclusion that the requirement of unanimity is implicit in s.80's guarantee of trial by jury. In our view, none of them is persuasive. It suffices to make specific reference to three of them.

(i) There were some undesirable characteristics of trial by jury in 1900.
18. Considerable reliance was placed by the Crown and some of the intervening Attorneys-General on the fact that some aspects of trial by jury, as it existed in the Australian Colonies at the time of Federation, are inconsistent with both the contemporary institution, and generally accepted standards of a modern democratic society. In particular, criminal juries in 1900 were constituted exclusively by males who satisfied some minimum property qualification ((64) See Jury Act 1847 (N.S.W.), s.1; Juries Act 1890 (Vict.), s.5; Jury Act 1862 (S.A.), s.4; Jury Act 1867 (Q.), s.1; Jury Act 1898 (W.A.), ss.3, 5; Jury Act 1899 (Tas.), s.4.). There is, it was argued, no more justification for the perception that s.80 incorporates the requirement of unanimity than there would be for the approach that the section requires the preservation of those undesirable aspects of trial by jury in 1900. The answer to that argument is, however, clear enough. It is that to abrogate the requirement of unanimity involves an abandonment of an essential feature of the institution of trial by jury. In contrast, a liberalization of the qualifications of jurors involves no more than an adjustment of the institution to conform with contemporary standards and to bring about a situation in which it is more truly representative of the community.

19. Neither the exclusion of females nor the existence of some property qualification was an essential feature of the institution of trial by jury in 1900. The relevant essential feature or requirement of the institution was, and is, that the jury be a body of persons representative of the wider community. It may be that there are certain unchanging elements of that feature or requirement such as, for example, that the panel of jurors be randomly or impartially selected rather than chosen by the prosecution or the state. The restrictions and qualifications of jurors which either advance or are consistent with it may, however, vary with contemporary standards and perceptions. The exclusion of women and unpropertied persons was, presumably, seen as justified in earlier days by a then current perception that the only true representatives of the wider community were men of property. It would, however, be absurd to suggest that a requirement that the jury be truly representative requires a continuation of any such exclusion in the more enlightened climate of 1993. To the contrary, in contemporary Australia, the exclusion of females and unpropertied persons would itself be inconsistent with such a requirement.

(ii) Unanimity was not necessary in the case of civil juries in some Colonies.
20. At common law, unanimity was required in the case of both criminal and civil juries. By the time of Federation, however, the legislation of some of the Australian Colonies provided for the return of a majority verdict by a civil jury. The legislative provisions to that effect mean, so it was argued, that the requirement of unanimity could not have been seen as an essential feature of the institution of trial by jury in 1900. Again, the answer to the argument is clear enough. It is that it is a mistake to see those legislative modifications in relation to civil juries as undermining the status of the requirement of unanimity as an essential feature of the institution of criminal trial by jury adopted by s.80.

21. As has been seen, the requirement of unanimity in the case of a criminal jury conforms with the fundamental thesis of the criminal law that a person should not be convicted of a criminal offence if there is any reasonable doubt of his or her guilt. There is no corresponding justification in principle for an insistence upon unanimity in the case of civil juries. Nor, in contrast to the due process clause of the United States Constitution, is there any blurring in our Constitution of the distinction between criminal and civil juries. To the contrary, our Constitution's guarantee of trial by jury was expressly confined to certain categories of criminal trial. In that context, the fact that some legislatures had, at the time of Federation, abrogated the requirement of unanimity in the case of civil juries provides no foundation at all for a conclusion that the common law requirement of unanimity, which had existed and continued to exist as an essential and universal feature of the institution of criminal trial by jury since the fourteenth century, should be excluded from s.80's adoption of that institution.

(iii) Argument of convenience.
22. The third argument to which specific reference should be made was to the effect that there are powerful practical considerations favouring the acceptance of majority verdicts in criminal trials in contemporary Australia. There are two answers to that argument. First, the abandonment, for reasons of contemporary convenience or practical utility, of an essential feature of the criminal trial by jury which is guaranteed by s.80 of the Constitution is not a matter for this Court. It is a matter for the people of Australia ((65) See Constitution, s.128.) for whose protection the guarantee, including the requirement of unanimity, was adopted. Second, it is not, in any event, apparent that considerations of contemporary convenience or practical utility favour an abandonment of the requirement of unanimity in the case of a criminal jury. To the contrary, one can point to strong support for the view that the requirement of unanimity of a criminal jury is, on balance, in the public interest in this country ((66) See, e.g., New South Wales Law Reform Commission, Criminal Procedure: The Jury in a Criminal Trial, March 1986; Victorian Bar Shorter Trials Committee, Report on Criminal Trials, (1985); and see, also, Law Reform Commission of Canada, The Jury in Criminal Trials, WP 27, (1980).). In particular, it is far from evident that the reduction in the number of cases in which a criminal jury is unable to return a verdict, which could be expected to result from an abandonment of the requirement of unanimity, would be of sufficient significance to outweigh the disadvantages which would result from such a course ((67) See, e.g., Willis, "Jury Disagreements in Criminal Trials - Some Victorian Evidence", (1983) 16 Australia and New Zealand Journal of Criminality 20; New South Wales Law Reform Commission, The Jury in a Criminal Trial: Empirical Studies, Research Report, June 1986, ch.5.).

CONCLUSION
23. It follows from what has been said above that history, principle and authority combine to compel the conclusion that s.80's guarantee of trial by jury precludes a verdict of guilty being returned in a trial upon indictment of an offence against a law of the Commonwealth otherwise than by the agreement or consensus of all the jurors ((68) It is unnecessary, for the purposes of the present case, to consider the related question whether s.80 would also invalidate a legislative provision allowing for an acquittal by majority verdict.). That being so, s.57 of the Juries Act 1927 (S.A.) cannot, consistently with s.80, operate to authorize the conviction of either of the appellants by a majority verdict. Their convictions were unconstitutional and must be set aside.

24. The conclusion that s.57 cannot validly apply to authorize the return of a majority verdict of guilty in the trial on indictment of an offence against a law of the Commonwealth does not mean that the South Australian courts lack jurisdiction to entertain such trials. Section 22a(1) of the Acts Interpretation Act 1915 (S.A.) requires that every provision of every Act of the Parliament of South Australia "be construed so as not to exceed the legislative power of the State". In compliance with that directive, the provisions of s.57 must be read down so as not to purport to apply, of their own force, to the trial on indictment of an offence against a law of the Commonwealth. The guarantee of trial by jury contained in s.80 also precludes any law of the Commonwealth from making the provisions of s.57 applicable to such a trial. For the reasons given in Brown v. The Queen ((69) (1986) 160 CLR , at pp 200-201, 206-207, 218-219.), however, s.80 of the Constitution does not preclude the relevant provisions of the Judiciary Act 1903 (Cth) ((70) Section 68(2) which is expressly made "subject to section 80 of the Constitution" and s.79 which is expressly subjected to any contrary provision of the Constitution.) from otherwise operating to vest jurisdiction in respect of trials on indictment of offences against laws of the Commonwealth in the South Australian Supreme and District Criminal Courts constituted by a judge and jury.

25. The appeal should be allowed. The orders of the South Australian Court of Criminal Appeal should be set aside and in lieu thereof it should be ordered, in the case of each appellant, that the appeal to that court be allowed, that the conviction be quashed and a new trial ordered.