Cheng v The Queen - [2000] HCA 53

HIGH COURT OF AUSTRALIA
GLEESON CJ,
GAUDRON, McHUGH, GUMMOW, KIRBY, HAYNE AND CALLINAN JJ
YU SHING CHENG APPLICANT
AND
THE QUEEN RESPONDENT
Cheng v The Queen [2000] HCA 53
5 October 2000
A8/1999
ORDER
Application dismissed.
On appeal from the Supreme Court of South Australia
Representation:
T A Gray QC with G J S Mancini, S F Stretton and S J Doyle for the applicant (instructed by George Mancini & Co)
M F Gray QC with F Propsting for the respondent (instructed by Commonwealth Director of Public Prosecutions)
Intervener:
D M J Bennett QC, Solicitor-General of the Commonwealth with M Sloss intervening on behalf of the Attorney-General of the Commonwealth (instructed by Australian Government Solicitor)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

HIGH COURT OF AUSTRALIA
GLEESON CJ,
GAUDRON, McHUGH, GUMMOW, KIRBY, HAYNE AND CALLINAN JJ
GANG CHENG APPLICANT
AND
THE QUEEN RESPONDENT
Cheng v The Queen
5 October 2000
A9/1999
ORDER
Application dismissed.
On appeal from the Supreme Court of South Australia
Representation:
T A Gray QC with G J S Mancini, S F Stretton and S J Doyle for the applicant (instructed by McGee & Associates)
M F Gray QC with F Propsting for the respondent (instructed by Commonwealth Director of Public Prosecutions)
Intervener:
D M J Bennett QC, Solicitor-General of the Commonwealth with M Sloss intervening on behalf of the Attorney-General of the Commonwealth (instructed by Australian Government Solicitor)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

HIGH COURT OF AUSTRALIA
GLEESON CJ,
GAUDRON, McHUGH, GUMMOW, KIRBY, HAYNE AND CALLINAN JJ
BACH AN CHAN APPLICANT
AND
THE QUEEN RESPONDENT
Chan v The Queen
5 October 2000
A25/1999
ORDER
Application dismissed.
On appeal from the Supreme Court of South Australia
Representation:
T A Gray QC with G J S Mancini, S F Stretton and S J Doyle for the applicant (instructed by George Mancini & Co)
M F Gray QC with F Propsting for the respondent (instructed by Commonwealth Director of Public Prosecutions)
Intervener:
D M J Bennett QC, Solicitor-General of the Commonwealth with M Sloss intervening on behalf of the Attorney-General of the Commonwealth (instructed by Australian Government Solicitor)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS
Cheng v The Queen
Constitutional law (Cth) – Trial by jury – Trial on indictment for offence against law of the Commonwealth – Pleas of guilty following rejection of demurrer raising constitutional objection to information – Whether any issue for trial – Whether any infringement of s 80 of Constitution.
Customs – Offences – Prohibited imports – Narcotic goods – Differential punishment for trafficable and commercial quantities – Whether elements of offence – Whether in a trial on indictment must be decided by jury – Requirements of s 80 of Constitution.
Words and phrases – "trial on indictment", "any offence", "Court".
Constitution, s 80.
Customs Act 1901 (Cth), ss 233B, 235.

GLEESON CJ, GUMMOW AND HAYNE JJ. These three applications for special leave to appeal against a decision of the South Australian Court of Criminal Appeal[1] have been referred to the Full Court of this Court for hearing.
All three applications involve a challenge to the validity of the provisions of the Customs Act 1901 (Cth) under which the applicants were convicted and sentenced. In addition, the first two applicants, Yu Shing Cheng and Gang Cheng, rely upon an argument concerning the manner in which certain facts, said to be relevant to sentence, were dealt with by the Court of Criminal Appeal. It is convenient to consider first the principal issue, which is common to all three applications, and, for that purpose, to examine the facts of the cases, and the course of proceedings in the Supreme Court of South Australia.
The facts
In circumstances which will be described in more detail below, each applicant pleaded guilty to the offence of being knowingly concerned in the importation of a prohibited import.
Subject to a matter going to the subsidiary issue, the facts were not in dispute. The following summary is taken from the remarks on sentence made by Debelle J.
In November 1997, a quantity of 13,462 grams of heroin powder, of approximately 70 percent purity, said to have a street value of more than $13 million, arrived in Adelaide by air from Bangkok. Its ultimate destination was Sydney. The heroin was contained in five marble pedestals. The column of each pedestal was hollow, and filled with heroin. The pedestals were packed in five crates. On arrival in Adelaide, the crates attracted the attention of the authorities. The crates were opened and the pedestals were removed. Heroin was found inside. Federal police officers removed the heroin and replaced it with substitute powder, and then repacked the pedestals. Listening devices were placed in two crates and in one pedestal.
The crates were addressed to the first applicant, Yu Shing Cheng. The third applicant, Bach An Chan, had persuaded the first applicant to agree to be the person to whom the imported goods were addressed.
The first applicant went to the airport, and arranged for the crates to be delivered to his home address. The third applicant was informed of their arrival, and went with another person to collect the crates from the first applicant's flat. On the following day, the second applicant rented a motor vehicle, and, on the day after that, he and another person drove the vehicle, with the crates loaded on board, to Sydney. In the meantime, the third applicant had flown to Sydney to meet the crates when they arrived there.
The second and third applicants were arrested in Sydney. The first applicant was arrested in Adelaide.
The first applicant maintained that he was unaware, when he went to the airport, that the imported goods, which had been addressed to him, and which he had agreed to collect, consisted of a large quantity of heroin. He said that he thought what was involved was only two small parcels of cocaine. He was to be paid $6,000 for his involvement.
The second applicant, who was to be paid $3,000, admitted that he knew drugs were involved, but said he did not know the quantity or nature of the drugs.
The third applicant was found to have had a substantial organisational role in the operation, and to have been more culpable than the first and second applicants.
The course of proceedings
The three applicants, and two other men, were jointly charged by an information laid by the Commonwealth Director of Public Prosecutions, which is agreed to have the status of an indictment. There were two counts in the indictment, but when pleas of guilty to the first count were entered by the three applicants, a nolle prosequi was filed in relation to the second count, which was an alternative charge.
The first count in the indictment was expressed as follows:
"BEING KNOWINGLY CONCERNED IN THE IMPORTATION OF A PROHIBITED IMPORT
(Section 223B(1)(d) Customs Act 1901)
PARTICULARS OF OFFENCE
SIU KEI ENG, YU SHING CHENG, BACH AN CHAN, SHIH-CHANG HSU AND GANG CHENG, between 1^st day of November 1997 and the 9^th day of November 1997 at Adelaide and other places in the said State, were knowingly concerned in the importation into Australia of a prohibited import to which Section 233B of the Customs Act 1901 applies, namely about 9350 grams of heroin, being not less than the commercial quantity."
In the course of pre-trial proceedings, counsel for all five accused indicated an intention to raise an argument that s 233B(1)(d) of the Customs Act was invalid by reason of the provisions of s 80 of the Constitution. If that argument were correct, then the offence charged in the indictment was not an offence known to law. It was agreed that the appropriate course was to treat the argument as a demurrer to the indictment.
The notes on the indictment record the following sequence of events. On 2 November 1998, at a pre-trial hearing before Debelle J, after first arraignment, but before a jury was empanelled, the demurrer to the indictment was foreshadowed. Argument on the demurrer was heard on 6 November. Debelle J overruled the demurrer. All five accused were then re-arraigned. At that stage, the three applicants entered pleas of guilty. The two co-accused entered pleas of not guilty. A jury was empanelled, and the trial of the two co-accused proceeded until 13 November, when the jury acquitted the two co-accused. The jury was discharged. The sentencing proceedings of the three applicants commenced on 24 November and continued intermittently until 3 December. On 3 December the applicants were sentenced.
At no stage, following the applicants' pleas of guilty, did anyone suggest that there was any issue to be tried by a jury. As will appear, there was no issue as to any of the facts alleged in the indictment, either in the count or in the particulars.
The record of the sentencing proceedings indicates that, by consent, account was taken of a good deal of the evidence that had been given in the course of the trial of the two co-accused who pleaded not guilty. What had emerged at the trial gave a picture of the transaction which was, for the purpose of the sentencing proceedings, largely undisputed. In particular, there was no dispute that heroin was found in the pedestals, or that the quantity and purity was as alleged by the prosecution. Assertions were made from the bar table, by counsel for the first and second applicants, as to their state of knowledge or belief about some aspects of the importation. Those assertions, even if true, did not contradict any fact alleged in the indictment. It was accepted that, as a matter of objective fact, heroin was imported, and the quantity was as alleged in the indictment.
Debelle J sentenced the first applicant to imprisonment for 14 years and fixed a non-parole period of 7½ years. He sentenced the second applicant to imprisonment for 13½ years and fixed a non-parole period of 7½ years. He sentenced the third applicant to imprisonment for 16 years and fixed a non-parole period of 11 years.
All three applicants appealed against convictions and sentences. The ground of appeal against conviction was the same point as had earlier been argued in support of the demurrers to the indictment. As to the sentences, it was contended that they were excessive.
The appeals against conviction failed. The appeals against sentence succeeded. Bleby J, with whom Doyle CJ and Wicks J agreed, held that the sentences were excessive[2]. The Court of Criminal Appeal resentenced each applicant. The first applicant was sentenced to imprisonment for 9 years, and a non-parole period of 5 years was fixed. The second applicant was sentenced to imprisonment for 10 years, and a non-parole period of 6 years was fixed. The third applicant was sentenced to imprisonment for 13 years, and a non-parole period of 9 years was fixed.
The legislation
So far as relevant, s 233B of the Customs Act provides:
"233B(1) Any person who:
…
(d)… is in any way knowingly concerned in, the importation … into Australia of any prohibited imports to which this section applies …
shall be guilty of an offence.
…
(2)The prohibited imports to which this section applies are prohibited imports that are narcotic goods …
(3)A person who is guilty of an offence against subsection (1) of this section is punishable upon conviction as provided by section 235."
So far as relevant, s 235 provides:
"235 (1) …
(2) Subject to subsections (3) and (7), where:
(a)a person commits an offence against subsection 231(1), section 233A or subsection 233B(1); and
(b)the offence is an offence that is punishable as provided by this section;
the penalty applicable to the offence is:
(c)where the Court is satisfied:
(i)that the narcotic goods in relation to which the offence was committed:
(A)are a narcotic substance in respect of which there is a commercial quantity applicable; and
(B)consist of a quantity of that substance that is not less than that commercial quantity; or
(ii)that the narcotic goods in relation to which the offence was committed consist of a quantity of a narcotic substance that is not less than the trafficable quantity applicable to that substance and also that, on a previous occasion, a court has:
(A)convicted the person of another offence, being an offence against a provision referred to in paragraph (a) that involved other narcotic goods which consisted of a quantity of a narcotic substance not less than the trafficable quantity that was applicable to that substance when the offence was committed; or
(B)found, without recording a conviction, that the person had committed another such offence;
imprisonment for life or for such period as the Court thinks appropriate;
(d)where the Court is satisfied that the narcotic goods in relation to which the offence was committed consist of a quantity of a narcotic substance that is not less than the trafficable quantity applicable to the substance but is not satisfied as provided in paragraph (c):
(i)if the narcotic substance is a narcotic substance other than cannabis – a fine not exceeding $100,000 or imprisonment for a period not exceeding 25 years, or both; or
(ii)if the narcotic substance is cannabis – a fine not exceeding $4,000 or imprisonment for a period not exceeding 10 years, or both; or
(e)in any other case – a fine not exceeding $2,000 or imprisonment for a period not exceeding 2 years, or both.
(3)Where:
(a)the Court is satisfied that the narcotic goods in relation to which an offence referred to in subsection (2) was committed consist of a quantity of a narcotic substance that is not less than the trafficable quantity applicable to that substance, but is not satisfied as provided in paragraph (c) of that subsection in relation to those narcotic goods; and
(b)the Court is also satisfied that the offence was not committed by the person charged for any purposes related to the sale of, or other commercial dealing in, those narcotic goods;
notwithstanding paragraph (d) of that subsection, the penalty … for the offence is the penalty specified in paragraph (e) of that subsection.
(4)An offence referred to in subsection (1) or (2) may be prosecuted summarily or upon indictment or, where the law of the State or Territory in which the proceedings are brought makes provision for an offender who pleads guilty to a charge to be dealt with by the Court otherwise than on indictment, the Court may deal with an offender in accordance with that law.
(5)Nothing in subsection (4) renders an offender liable to be punished more than once for the same offence.
(6)Where proceedings for an offence referred to in subsection (1) or (2) are brought in a court of summary jurisdiction, the court may commit the defendant for trial or to be otherwise dealt with in accordance with law or, if the court is satisfied that it is proper to do so and the defendant and the prosecutor consent to it doing so, may determine the proceedings summarily.
(7)Where a court of summary jurisdiction determines proceedings summarily in accordance with subsection (6), it shall not impose a fine exceeding $2,000 or sentence the defendant to imprisonment for a period exceeding 2 years, but may impose both a fine and a period of imprisonment in respect of the offence.
(8)For the purposes of subsections (2) and (3), the narcotic substance of which narcotic goods in relation to which an offence has been committed consist is the narcotic substance that is specified in the relevant information, complaint, declaration, claim or indictment as the narcotic substance of which those goods consist."
Schedule VI to the Act provides that a commercial quantity of heroin is 1.5 kilograms.
A question of construction of the legislation which bears upon some of the issues raised in argument concerns the content of the expression "knowingly concerned", in s 233B(1), in relation to the quantities referred to in s 235.
A person may be knowingly concerned in the importation of heroin without knowing the quantity of heroin involved in the importation. In practice, many people who participate in the illegal importation of heroin would not know the quantity imported, and some would not even know the approximate quantity. Such information may be concealed from them, or it may simply be unnecessary for them to have it. The legislation does not provide that such knowledge is a necessary ingredient of the offence created by s 233B(1), or a necessary condition of being liable for sentence under s 235(2)(c) or (d). The language of the statute is to the contrary. On sentencing, the facts raised for the court's consideration of its satisfaction under s 235(2)(c), (d) and (e) are objective facts. It is knowledge about the importation of a prohibited import that exposes a person to conviction under s 233B(1). Knowledge of the quantity involved is not required. On the question of penalty, it is the objective fact as to the quantity of narcotic goods in relation to which the offence was committed which, by virtue of s 235, determines the maximum penalty. That is not to say that, when it comes to sentencing, the state of an offender's knowledge or belief as to quantity may not be a factor in determining the actual penalty to be imposed. The scheme of the legislation, assuming validity, is that the objective facts determine the range of possible penalties, but, on ordinary sentencing principles, subjective knowledge or belief as to quantity may be material to a judgment as to the proper sentence to impose.
The indictment in the present case is to be read in that light, and in the light of the practice referred to below. It is not to be understood as containing the immaterial allegation that the applicants knew that the quantity of heroin involved in the importation was a commercial quantity. Their assertions as to their knowledge or belief, advanced during the sentencing proceedings, did not put in issue any fact alleged in the indictment.
The challenge to the validity of the legislation
If special leave to appeal were granted, the applicants would seek a range of relief. The orders sought in the draft Notices of Appeal include declarations that s 233B(1)(d) (pursuant to which they were charged) and s 235(2)(c) (pursuant to which they were sentenced) are invalid "as being contrary to s 80 of the Constitution", or that these provisions "do not create any offence known to law of the Commonwealth of Australia". The applicants also seek in the alternative orders (i) quashing the indictments and setting aside the convictions and sentences; (ii) setting aside the sentences and providing for resentencing under s 235(2)(e) (which provides for a fine not exceeding $2000, or imprisonment for a period not exceeding two years, or both); or (iii) setting aside the sentences and remitting the applicants "for sentencing according to the facts as found by Debelle J".
Section 80 of the Constitution states:
"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."
The text of s 80 gives rise to various issues of construction, some of which are concluded by authority, and others of which may still be open to debate. Before turning to those matters which the applicants would seek to agitate on appeals following grants of special leave, it should be noted that s 80 imposes various imperatives upon trials on indictment of offences against Commonwealth law.

For example, if a trial is not held in the State where the offence against Commonwealth law was committed (because the locus of the crime in question is determined not by the place where the physical act causing injury was done – the State of trial – but by the place where the injury was sustained) any conviction would be liable to be set aside on the ground that the trial had not been held in accordance with the command in s 80[3]. This result would not involve any holding that a particular law was invalid for non-compliance with s 80; rather, the trial process itself would have miscarried. On the other hand, a statute which stipulated in respect of trials on indictment of an offence against Commonwealth law a method of trial other than by jury would represent legislative disobedience to the constitutional command and therefore the law would be invalid.
One submission by the applicants is that this Court on their applications should re-open the authorities which deny to s 80 the effect of "a fundamental and substantive Constitutional guarantee of trial by jury" and which treat s 80 as not requiring a trial by jury in respect of offences which Commonwealth law does not specify as triable on indictment. In particular, the applicants rely upon the dissenting judgment of Deane J in Kingswell v The Queen[4].
Another submission which is not interdependent with the first and wider submission (as is demonstrated by the stance taken in Kingswell by Brennan J) fixes upon the meaning of "offence" in s 80. It was upon this issue that Brennan J dissented in Kingswell[5] whilst accepting the earlier authorities upon the wider submission. The second submission is that "offence" in s 80 is defined by the combination of the elements of the offence and the penalty which that combination attracts.
Some reference to the present position in the United States is appropriate. The Sixth Amendment to the Constitution requires that "[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury". The term "offence", central to s 80, does not appear. Taken with the "due process of law" requirements of the Fifth and Fourteenth Amendments, the Sixth Amendment has been held to entitle a defendant indicted under federal or State law, to "a jury determination [of guilt] of every element of the crime with which [the defendant] is charged, beyond a reasonable doubt"[6]. This, in turn, led to discussion of the distinction between elements of an offence (to be determined by a jury) and sentencing factors (to be determined by a judge)[7], a distinction which in the United States must now be understood in light of the decision in Apprendi v New Jersey[8].
In Apprendi, the defendant and the prosecution had made a plea agreement whereby the defendant pleaded guilty to three of the 23 counts in the indictment. However, as part of the plea agreement, the prosecution reserved the right to seek from the court a higher sentence than that for which the laws of New Jersey otherwise provided on one of the three counts (count 18). The court had the statutory power to impose a higher or "enhanced" sentence if the offence was committed with a proscribed purpose. The trial judge heard sufficient evidence to establish the defendant's guilt on the three counts and accepted the guilty pleas. Then the judge heard evidence from which the judge concluded that the crime charged in count 18 had been motivated by racial bias so that "the hate crime enhancement applied"; the defendant had contested that he had been motivated in this way and had given evidence on the question himself and led evidence from eight witnesses[9].
By majority[10], the Supreme Court of the United States reversed the decision of the New Jersey Supreme Court[11] which had upheld the enhanced sentence. The majority held that in this case the New Jersey laws and procedures fell foul of a constitutional requirement that any fact that increases the penalty for a crime beyond the prescribed statutory maximum, other than the fact of a prior conviction, must be submitted to a jury and proved beyond a reasonable doubt[12]. Their Honours stressed that this did not mean that it was impermissible for judges to take into account various factors relating both to offence and offender, when exercising a discretion within the range prescribed by statute[13].
A majority of this Court held in Kingswell that s 233B(1) of the Customs Act creates only one offence for which s 235(2) and (3) provides a range of penalties. It follows that acceptance of the applicants' contentions would require reconsideration of Kingswell. In particular, it would require examination of whether the relevant offence is defined in s 233B or is defined by a combination of s 233B and s 235. However, it should be noted that acceptance of the applicants' submissions would require only the conclusion that the relevant offence must be identified by reference to both s 233B and s 235. It would not require the conclusion that the sections create no offence known to law and there would be no ground for the making of any declaration to that effect.
Since Kingswell was decided in 1985, courts and prosecuting authorities throughout the Commonwealth have acted on the basis of that decision, and many people have been convicted and sentenced upon the assumption that the law was as declared in Kingswell. That is not fatal to the applicants, especially bearing in mind that their attack on Kingswell is based upon constitutional grounds. But it is a consideration not lightly to be disregarded.
In Kingswell, the appellant was charged under s 233B. He entered a plea of not guilty, was tried by a jury, and was convicted. He had previously been convicted of another offence against s 233B(1)(c). He was sentenced on the basis that, by reason of the previous conviction, and by reason of the quantity of heroin involved in the later conviction, s 235(2)(c) governed the penalty. It was argued that the legislative scheme, involving trial before a jury of the issues raised by s 233B, and a decision by a sentencing judge on the issues raised by
s 235, contravened s 80 of the Constitution. From the report, it appears that the arguments of all counsel proceeded upon an acceptance of the view as to the meaning and effect of s 80 which has prevailed since Federation, that is to say, that the constitutional requirement of trial by jury only applies where there is a trial on indictment. On that view, the section does not provide that all serious offences shall be tried, on indictment, by a jury; it provides that, if there is to be a trial of an offence on indictment, it shall be by jury. In Kingswell, the point argued was that the legislation provided for part of an offence against a law of the Commonwealth to be tried by a judge alone, and was invalid. The outcome of the case turned upon the meaning of the word "offence", and its application to s 233B and s 235.
A noteworthy point of difference between Kingswell and the present case is that, in the present case, there was no occasion for any trial by jury. The applicants entered pleas of guilty to the offence with which they were charged, and they did not dispute any of the facts alleged in the indictment.
In a number of Australian jurisdictions, including South Australia, current criminal trial practice involves a system of pre-trial hearings for purposes of case management. To enable that to occur, there is usually a first arraignment soon after committal. On that occasion, there is usually no jury present, and no expectation that a jury will be empanelled. Depending upon the number of
pre-trial hearings, there may be two, or more, arraignments[14]. As an example of what occurs at pre-trial hearings, s 285A of the Criminal Law Consolidation Act 1935 (SA) provides that a court before which a person has been arraigned may, if it thinks fit, hear and determine any question relating to the admissibility of evidence, and any other question of law affecting the conduct of the trial, before the jury is empanelled. Pre-trial hearings are commonly used to narrow the issues for trial, and to minimise the time during which, if it becomes necessary to empanel a jury, the jury will be excluded from the courtroom.
Having failed to persuade Debelle J to quash the indictment on the ground that the legislation was invalid, the applicants entered pleas of guilty. Section 80 does not require that, where a person who is charged on indictment with an offence against a law of the Commonwealth pleads guilty, there shall be a trial by jury. In the ordinary case, if, instead of contesting a charge, an accused person, by a plea of guilty, enters a formal admission of the elements of the offence, no jury will be empanelled, for there will be no issue for the jury to try.
It was suggested in the course of argument that, on one possible view, there could have been a requirement for a jury to determine disputed facts relating to the knowledge or belief of the first two applicants as to the nature and amount of the prohibited import. That suggestion has no relationship to what actually occurred in the present case. Moreover, it is based on an erroneous construction of the legislation and a misinterpretation of the indictment. It was never contended that a jury should have been empanelled to decide anything relevant to sentencing. Following the pleas of guilty, it was accepted on all sides that there was no function for a jury to perform, and the proceedings were correctly conducted on that basis.
Therefore, on the face of it, no command in s 80 was disobeyed in the present case. The applicants were prosecuted on informations having the status of indictments. If s 80 were to be re-interpreted as a constitutional requirement for trial by jury in the case of all serious Commonwealth offences, the occasion for doing so will be in a case, unlike the present, where there was a legislative denial of trial by jury and there arose in the conduct of the prosecution issues susceptible of trial by jury.
Nor, in the events that happened, is this an appropriate occasion to re-open Kingswell for the purpose of establishing that, in the case of a defendant who pleads not guilty, the statutory scheme mandates a division of functions between jury and sentencing judge which is inconsistent with s 80. For example, it is said that the statute is invalid because it leaves to the sentencing judge, following conviction, the decision as to whether the quantity of heroin involved is a commercial quantity. Here, the applicants pleaded guilty and did not dispute the quantity of heroin imported.
The majority in Kingswell considered that the statutory scheme was consistent with s 80. The offence was created by s 233B; s 235 provided the range of penalties. The factual matters referred to in s 235 were not elements of the offence. The effect of the decision in Kingswell was summarised in R v Meaton as follows[15]:
"In Kingswell v The Queen the majority of this Court rejected an argument that the Parliament intended that s 235(2), read together with each paragraph of s 233B(1), should have the effect of creating a number of distinct offences whose elements are to be found described partly in

s 233B(1) and partly in s 235(2). It was decided that each paragraph of

s 233B(1) creates a separate offence and that the additional matters stated in s 235(2) are relevant to the maximum sentence that may be imposed but are not ingredients of the offence."
However, three of the four members of the majority in Kingswell, (Gibbs CJ, Wilson and Dawson JJ), were also of the opinion that, where a prosecutor relies upon circumstances of aggravation of the kind set out in s 235(2), they should be alleged in the indictment, and, if there is a dispute, they should be resolved by a jury, at least where there has been a plea of not guilty and a jury has been empanelled. (There was a presently immaterial qualification concerning previous offences).
The latter subject was taken further in Meaton[16], which explains the form of the indictment in the present case. Gibbs CJ, Wilson and Dawson JJ (with the same two dissentients as in Kingswell) decided that, in a case such as the present, the indictment should charge the circumstances of aggravation relevant to the application of s 235.
No submission has been made that this Court should reconsider, or decline to follow, Meaton, except, of course, in so far as it assumes the correctness of Kingswell. The applicants seek to challenge Kingswell, not Meaton. The practice as to the form of an indictment prescribed in Meaton was followed in this case. In accordance with Meaton, and with South Australian practice, the indictment alleged that a commercial quantity of heroin was involved in the importation. The South Australian practice was explained by the Full Court of the Supreme Court of South Australia in R v Hietanen[17]. If, in the present case, there had been a dispute as to the amount of heroin imported then, even though the applicants had entered pleas of guilty, there may have been an issue for determination by a jury. There was no such dispute. (That distinguishes the situation in this case from that in Apprendi[18] where there had been a dispute as to the facts necessary to attract the "enhancement" provision.) No issue was joined on any matter requiring resolution by a jury. In Meaton[19], the majority explained the various consequences that might flow from the practice to which reference has been made. By reason of the events that occurred, the present case does not provide an occasion for pursuing any problems, theoretical or practical, that might arise in that respect.
Further, an occasion to consider the questions presented by the applicants' contentions may be unlikely to arise if there continues the practice of charging and trying the aggravating circumstance of quantity or relevant prior conviction, as proposed in Kingswell and approved in Meaton. Where there is a trial of the offence and this practice is observed, any issue respecting aggravating circumstances mentioned in s 235 will be tried by jury. There will be no disobedience to the command in s 80 and no such disobedience will be mandated by the statutory scheme.
We return to the invitation to re-examine what we identified above as the wider issue and to adopt the dissent of Deane J in Kingswell. Senior counsel for the applicants invited this Court to treat the present case as an appropriate occasion to reconsider that question. For the reasons that follow, the invitation should be declined. The occasion is inappropriate.
First, the decision in Kingswell, which is crucial to the outcome of the present case, and which we are asked to reconsider, did not turn upon the point. The point was not in contention in argument. One of the two dissentients in Kingswell, Brennan J, accepted, for the purposes of his reasoning, the received view of s 80.
Secondly, the present case is even further from the point than Kingswell. Here there were pleas of guilty. No issue was joined on any fact alleged in the indictment. There was nothing for a jury to try. In the events that occurred, whatever the content of the guarantee contained in s 80, it was not relevant to the present applicants, because they pleaded guilty.
Thirdly, when regard is had to the history of s 80, there is every reason for not embarking upon a consideration of a substantial re-interpretation of it unless and until a case arises which makes it necessary to do so.
In 1901 Quick and Garran's The Annotated Constitution of the Australian Commonwealth was published. In their commentary on s 80, the learned authors went directly to the point we are asked to re-examine. After referring to the drafting history they wrote[20]:
"The constitutional requirement of trial by jury only applies when the trial is 'on indictment;' and there is no provision, corresponding to the Fifth Amendment of the United States Constitution, that all capital or infamous crimes must be tried on indictment. As was pointed out by Mr Isaacs (Conv Deb, Melb, p 1894), 'it is within the powers of the Parliament to say what shall be an indictable offence and what shall not. The Parliament could, if it chose, say that murder was not an indictable offence, and therefore the right to try a person accused of murder would not necessarily be by jury.'"
On 4 March 1898, immediately before Mr Isaacs made the statement quoted by Quick and Garran, Mr Barton referred to what was then cl 79, which began: "The trial of all indictable offences against any law of the Commonwealth shall be by jury … ." He moved that the words "of all indictable offences" be struck out, and that the words "on indictment of any offence" be substituted. He explained the object of the amendment, which he said was "simple"[21]. It was to avoid the consequence that all offences created by any Commonwealth enactment had to be tried by jury. He referred in particular to contempt, which although indictable, was often dealt with summarily. It was then that Mr Isaacs made his comment.
Isaacs J was a member of this Court when the point was first raised for its decision. In R v Archdall and Roskruge; Ex parte Carrigan and Brown[22] there was a challenge to the capacity of Parliament to provide that certain offences, punishable by imprisonment for one year, should be dealt with summarily. In a joint judgment, Knox CJ, Isaacs, Gavan Duffy and Powers JJ said[23]:
"The suggestion that the Parliament, by reason of s 80 of the Constitution, could not validly make the offence punishable summarily has no foundation and its rejection needs no exposition."
Starke J described the argument as "untenable"[24]. Higgins J (who had also participated in the Convention Debates on the subject) said that s 80 merely provides that "if there be an indictment, there must be a jury; but there is nothing to compel procedure by indictment"[25].
The question was revisited in R v Federal Court of Bankruptcy; Ex parte Lowenstein[26] where a majority took the same view as had been taken in R v Archdall and Roskruge. Later cases have adhered to that view. Those who have dissented have disagreed amongst themselves as to what the section means[27].
As we followed the argument for the applicants, we did not understand it to be suggested that developments since Federation have thrown new light upon the meaning of s 80, or have altered the context in which it operates so as to require or justify a fresh approach on the part of this Court. If anything, recent developments in relation to criminal trial practice in State jurisdictions which handle the greater part of the administration of criminal justice, might be argued to tend in the other direction. In Brown v The Queen[28], it was held that, in cases where it applies, s 80 is mandatory. It is not a provision which creates a right that can be waived by an accused. Thus, if there is a trial on indictment of an offence against a law of the Commonwealth, and therefore s 80 applies, the parties cannot agree to dispense with the jury. In a number of State jurisdictions the trend has been to give persons accused of indictable offences the right to elect to be tried by judge alone, at least if the prosecution consents. This is a right of which a significant number of accused people, charged with serious crimes, take advantage. In the area of commercial fraud (an area which would be of particular importance if the regulation of the conduct of those concerned with the management of corporations were to become a matter of Commonwealth law), the capacity to prosecute some serious offences summarily, at least with the agreement of the accused, can contribute, on occasion, to the more effective administration of justice. The provisions of sub-ss (4), (6) and (7) of s 235 of the legislation presently under consideration provide an example of the way the Parliament, under the present interpretation of s 80, can approach the problem. Presumably, the validity of such provisions would be called in question by the proposed re-interpretation of s 80.

In Lambert v Weichelt[29] Dixon CJ, speaking for the Court, said:
"It is not the practice of the Court to investigate and decide constitutional questions unless there exists a state of facts which makes it necessary to decide such a question in order to do justice in the given case and to determine the rights of the parties."
The present case provides a good example of the wisdom underlying that approach to the proper discharge by this Court of its responsibilities.
The subsidiary issue
In large part, the argument on the subsidiary issue, which concerns the first two applicants depended upon a view of the meaning of the legislation, and the indictment, which has been considered and rejected above. Upon the erroneous assumption that proof of the offence involved, and the indictment alleged, actual knowledge on the part of the applicants of the quantity of heroin involved, it was argued that the issue raised by the assertion of the first two applicants, (or, more accurately, the assertion of their counsel), that they did not know that what was being imported was heroin, or that a large quantity was involved, should have been determined by a jury. For the reasons already given, there is no substance in this point.
Alternatively it was argued that the Full Court, in re-sentencing the applicants, (to lesser sentences than those imposed by Debelle J), was not entitled to take a view of the facts different in one respect from that taken by the trial judge.
Bleby J[30] noted that Debelle J had, with some diffidence, accepted that, when the first applicant went to the Adelaide airport, he believed that only two small parcels of cocaine were involved. However, as Bleby J pointed out, when he arrived at the airport, and saw five crates addressed to him, the applicant's misapprehension about that matter would have disappeared. In any event, in considering the applicant's involvement, both Debelle J at first instance, and Bleby J on appeal, attached more importance to the undisputed fact that he was to be paid $6,000.
As to the second applicant, whose involvement was in connection with the transportation of the pedestals to Sydney, both at first instance and on appeal it was found that it must have been obvious that a substantial quantity of illegal drugs was involved.
There is no error shown in the way these issues were dealt with.
Conclusion
The applications should be dismissed.
GAUDRON J. The primary question in these applications for special leave to appeal, which have been argued as if they were appeals, is whether this Court should reconsider its decision in Kingswell v The Queen[31]. And that raises the question whether s 80 of the Constitution prevents the Parliament from legislating so as to create a single offence with a scale of maximum penalties differing according to facts or circumstances which do not constitute elements of that offence. If it does, further questions arise as to the construction and validity of ss 233B(1)(d) and 235(2) of the Customs Act 1901 (Cth) ("the Act").
The facts and the history of the proceedings
The applicants, together with two other persons, were charged on indictment[32] in the District Court of South Australia with being knowingly concerned in the importation of heroin contrary to s 233B of the Act. The indictment particularised the offence as follows:
"between 1st day of November 1997 and the 9th day of November 1997 at Adelaide and other places in the [State of South Australia, the accused] were knowingly concerned in the importation into Australia of a prohibited import to which Section 233B of the Customs Act 1901 applies, namely about 9350 grams of heroin, being not less than the commercial quantity."
So far as is presently relevant, the applicants moved to quash the indictment on the basis that, by reason of s 80 of the Constitution, ss 233B(1)(d) and 235(2) of the Act are invalid. The application was dismissed. The applicants then pleaded guilty and convictions were entered. They were later sentenced. At no stage did they or their legal representatives challenge the quantity of heroin particularised in the indictment.
The applicants each appealed against conviction and, also, against sentence to the Court of Criminal Appeal[33]. With respect to their appeals against conviction, they again contended that, by reason of s 80 of the Constitution, ss 233B(1)(d) and 235(2) of the Act were invalid. The Court of Criminal Appeal dismissed their appeals against conviction, allowed their appeals against sentence and imposed fresh sentences[34]. The applicants now seek special leave to appeal from the decision and orders of that Court.
Section 80 of the Constitution and relevant legislative provisions
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."
Section 233B of the Act relevantly provides:
"(1) Any person who:
...
(d)aids, abets, counsels, or procures, or is in any way knowingly concerned in, the importation, or bringing, into Australia of any prohibited imports to which this section applies, or the exportation from Australia of any prohibited exports to which this section applies;
...
shall be guilty of an offence.
...
(2)The prohibited imports to which this section applies are prohibited imports that are narcotic goods ...
(3)A person who is guilty of an offence against subsection (1) of this section is punishable upon conviction as provided by section 235."
Section 235 relevantly provides, in sub-section (2), that:
" Subject to subsections (3) and (7), where:
(a)a person commits an offence against ... subsection 233B(1); and
(b)the offence is an offence that is punishable as provided by this section;
the penalty applicable to the offence is:
(c)where the Court is satisfied:
(i)that the narcotic goods in relation to which the offence was committed:
(A)are a narcotic substance in respect of which there is a commercial quantity applicable; and
(B)consist of a quantity of that substance that is not less than that commercial quantity; or
(ii)that the narcotic goods in relation to which the offence was committed consist of a quantity of a narcotic substance that is not less than the trafficable quantity applicable to that substance and also that, on a previous occasion, a court has:
(A)convicted the person of another offence, being an offence against a provision referred to in paragraph (a) that involved other narcotic goods which consisted of a quantity of a narcotic substance not less than the trafficable quantity that was applicable to that substance when the offence was committed; or
(B)found, without recording a conviction, that the person had committed another such offence;
imprisonment for life or for such period as the Court thinks appropriate;
(d)where the Court is satisfied that the narcotic goods in relation to which the offence was committed consist of a quantity of a narcotic substance that is not less than the trafficable quantity applicable to the substance but is not satisfied as provided in paragraph (c):
(i)if the narcotic substance is a narcotic substance other than cannabis–a fine not exceeding $100,000 or imprisonment for a period not exceeding 25 years, or both; or
(ii)if the narcotic substance is cannabis–a fine not exceeding $4,000 or imprisonment for a period not exceeding 10 years, or both; or
(e)in any other case–a fine not exceeding $2,000 or imprisonment for a period not exceeding 2 years, or both."
Sub-section (3) of s 235 provides:
"Where:
(a)the Court is satisfied that the narcotic goods in relation to which an offence referred to in subsection (2) was committed consist of a quantity of a narcotic substance that is not less than the trafficable quantity applicable to that substance, but is not satisfied as provided in paragraph (c) of that subsection in relation to those narcotic goods; and
(b)the Court is also satisfied that the offence was not committed by the person charged for any purposes related to the sale of, or other commercial dealing in, those narcotic goods;
notwithstanding paragraph (d) of that subsection, the penalty punishable for the offence is the penalty specified in paragraph (e) of that subsection."
Sub-section (7) of s 235 is concerned with summary proceedings and has no relevance to the questions raised in these applications.
The decision in Kingswell
As with the present case, Kingswell was concerned with the validity of ss 233B(1) and 235 of the Act. It was held in that case that the specification in s 235 of different maximum penalties according to the quantity of narcotic goods involved did not have the effect of creating different offences with respect to the importation of different quantities of narcotics[35]. Rather, there was but one offence (in that case, the offence of conspiracy to import heroin contrary to s 233B(1)(cb) of the Act), with different maximum penalties as provided in s 235 differing according to the "circumstances of aggravation"[36]. It was further held that ss 233B(1)(cb) and 235(2) did not contravene s 80 of the Constitution[37]. It will later be necessary to analyse the reasoning in Kingswell but, for the moment, it is sufficient to note that it was said in the joint judgment of Gibbs CJ, Wilson and Dawson JJ that:
"Section 80 says nothing as to the manner in which an offence is to be defined. Since an offence against the law of the Commonwealth is a creature of that law, it is the law alone which defines the elements of the offence."[38]
The other matter that was in issue in Kingswell was whether the "circumstances of aggravation" by reference to which maximum penalties are set in ss 235(2) and (3) of the Act should be included in the indictment. In this regard, Gibbs CJ, Wilson and Dawson JJ referred to the rule of practice by which "questions of fact affecting the liability of the accused to punishment should be decided by the jury when the trial is on indictment" even though the "circumstances of aggravation ... do not change the offence"[39]. Their Honours were of the view that there was no reason why the satisfaction of a judge as to the matters specified in s 235(2) "should not be founded upon the findings of the jury" and that, where those "circumstances of aggravation ... are relied on, they should be charged in the indictment."[40]
Mason J, who was the other member of the majority in Kingswell, took a different view with respect to the inclusion in the indictment of the matters specified in s 235(2) of the Act. His Honour observed:
" It is theoretically possible for the Court's satisfaction to be based upon a prior finding by the jury, but such an interpretation poses a number of difficulties. What would happen if the jury was satisfied that the aggravating circumstances had been made out but the trial judge was of a different opinion, or conversely if the jury was of the view that those circumstances had not been made out but the trial judge thought they had? To take the view that the Court's opinion ought to prevail in such a case would be merely to affirm what is explicit in s 235(2)(c) – namely that the matter is one for determination by the Court and not the jury. Alternatively, to take the view that the jury's opinion should prevail is to discard the express words of the statute and substitute a requirement not envisaged by the legislature."[41]
In Kingswell, Brennan and Deane JJ would each have held that s 235(2)(c) of the Act was invalid. Accordingly, their Honours had no need to and did not consider the question whether the "circumstances of aggravation" specified in that paragraph should be included in the indictment. There was, thus, not a majority view in favour of the rule of practice advocated by Gibbs CJ, Wilson and Dawson JJ.
The question whether the "circumstances of aggravation" should be included in an indictment was again considered in R v Meaton[42]. In that case, a majority of the Court (Gibbs CJ, Wilson and Dawson JJ) stated a rule of practice requiring "the prosecution ... to lay one charge which includes the circumstances of aggravation"[43]. Their Honours allowed, however, that "the jury [could] ... be directed that it would be open to them (in appropriate circumstances) to find the accused guilty of the charge without those circumstances of aggravation"[44]. In the case of the "circumstances of aggravation" referred to in ss 235(2)(c)(ii)(A) and (B), namely, a previous conviction or a finding that a person committed an offence without a conviction being recorded, their Honours contemplated that, if there was any dispute, that question could be determined by the jury after conviction, although, in the case of a plea of guilty, the issue would have to be determined by the judge as no jury would have been empanelled[45].
The other members of the Court in Meaton, Brennan and Deane JJ, were of the view that the rule of practice laid down in the majority judgment was "wrong in principle and ... should not be followed"[46]. Their Honours observed:
"If the s 235 matters are merely relevant to the sentencing of an offender ... and need not be charged in the indictment or found by the jury if not admitted by plea, the sentencing power conferred by pars (c) and (d) of s 235 does not and cannot be made to depend upon the jury's satisfaction of the existence of s 235 matters."[47]
Their Honours added:
" To insist on the practice would be tantamount to amending the statute so that the jury would be charged with the responsibility of finding all the issues under s 233B(1) and s 235(2)(c) and (d). If that had been the intention of the legislature, there would have been no question in Kingswell of disconformity between those provisions and the requirements of s 80 of the Constitution."[48]
The practice proposed by Gibbs CJ, Wilson and Dawson JJ in Kingswell and laid down in Meaton was followed in the present case by the inclusion in the indictment of the particulars referred to earlier.
Section 80 of the Constitution: a guarantee
Although s 80 of the Constitution has been described as "a mere procedural provision"[49], it has been referred to in more recent decisions of this Court as a "constitutional guarantee"[50]. More precisely, it is a constitutional command. As such, it stands in the same position as s 92 of the Constitution, which mandates that "trade, commerce, and intercourse among the States ... shall be absolutely free"; and s 117, which mandates that a resident of a State "shall not be subject in any other State to any disability or discrimination which would not be equally applicable to him if he were a subject of the Queen resident in such other State."
Sections 92 and 117 have conveniently been described as constitutional guarantees[51]. So, too, has s 51(xxxi) of the Constitution which, in form, is a grant of legislative power but which has been construed as operating as a guarantee by abstracting power to legislate for the acquisition of property from other heads of legislative power except those which clearly envisage the acquisition of property other than on just terms (eg taxation)[52].
The only relevant difference between s 80 and the constitutional provisions that have been recognised as constitutional guarantees is that s 80 is a limitation on judicial power. As such, it prevents the trial of indictable offences by judge alone, even if an accused person so elects[53]. That is not to say that s 80 is simply a limitation on judicial power. It is to raise the question whether, by reason that it confines the exercise of judicial power on the trial on indictment of offences against a law of the Commonwealth, s 80 should be construed differently from other provisions that have been described as "constitutional guarantees".
Trial by jury is so deeply embedded in our judicial process that its importance in protecting the liberty of the individual from oppression and injustice needs no elaboration. However, what is not generally recognised is its importance to the rule of law and, ultimately, the judicial process and the judiciary itself. Respect for the rule of law and, ultimately, the judicial process and the judiciary is enhanced if the determination of criminal guilt is left in the hands of ordinary citizens who are part of the community, rather than in the hands of judges who are perceived to be and, sometimes, are "remote from the affairs and concerns of ordinary people"[54].
The participation of the people of this country in the exercise of judicial power, through their service on juries, provides a basis for community acceptance of verdicts in criminal trials and, more broadly, an understanding of the judicial processes. As Deane J pointed out in Kingswell:
"A system of criminal law cannot be attuned to the needs of the people whom it exists to serve unless its administration, proceedings and judgments are comprehensible by both the accused and the general public"[55].
The participation of ordinary citizens, as jurors in the judicial process renders it necessary that criminal proceedings be understood by all, including the accused. It is, thus, fundamental to the law's guarantee of a fair trial.
The importance of jury trial to the individual and to the judicial system renders it imperative, in my view, that s 80 be approached in the same manner as those other provisions which have been recognised as constitutional guarantees. More precisely, that consideration necessitates that s 80 be construed by reference to the same canons of construction. And in this regard, it is well settled that constitutional guarantees are to be construed liberally and not pedantically confined[56].
In Bank of NSW v The Commonwealth, it was said by Dixon J of the guarantee in s 51(xxxi) that it "should be given as full and flexible an operation as will cover the objects it was designed to effect"[57]. Similarly, in Street v Queensland Bar Association, it was said that because s 117 "was designed to enhance national unity", by providing for the equal rights of all residents in all States, it should be given "a liberal, rather than a narrow, interpretation ... an interpretation which will guarantee to the individual a right to non-discriminatory treatment in relation to all aspects of residence"[58]. In my view, the fact that s 80 was designed to protect the individual requires that that provision be construed no less liberally than the guarantees in s 51(xxxi) and s 117 of the Constitution.
Section 80: the meaning of "offence"
When determining whether legislation infringes a constitutional prohibition, this Court looks to the substantive operation of the legislation in question and not simply to the form in which it is cast[59]. So, too, constitutional guarantees are construed liberally so that their substantive effect is not undermined and the rights which they serve to protect are not depreciated by technical, legal or drafting devices[60].
To construe "offence" in s 80 in a way that permits the Parliament to define an offence by reference to acts or omissions and in disregard of "aggravating circumstances" which expose the offender to a higher maximum penalty and which are determined, in the event of dispute, by a judge and not the jury, is to invite the triumph of form over substance. And, given the present state of authorities, it is to render s 80's guarantee of trial by jury largely ineffective.
Although, in a number of cases, individual Justices would have held otherwise[61], this Court has consistently held that s 80 allows for Parliament to decide what offences are and what offences are not to be tried on indictment[62]. In that context, to allow that Parliament may also define an offence in such a way that "circumstances of aggravation", which expose an offender to a higher maximum penalty, are to be determined by a judge and not by the jury is to give s 80 a very restricted operation.

It is not in issue in this case that the offence with which the applicants were charged is an indictable offence to which s 80 applies. It is, thus, unnecessary to consider those authorities which hold that it is for Parliament to decide what offences are to be tried on indictment. It is, however, necessary to consider how those authorities influenced the majority decision in Kingswell.
In Kingswell, Mason J agreed with Gibbs CJ, Wilson and Dawson JJ with respect to the meaning and operation of s 80 of the Constitution[63]. Referring to the fact that it has been decided that s 80 "leaves it to the Parliament to determine whether any particular offence shall be tried on indictment or summarily"[64], Gibbs CJ, Wilson and Dawson JJ observed:
"The fact that s 80 has been given an interpretation which deprives it of much substantial effect provides a reason for refusing to import into the section restrictions on the legislative power which it does not express."[65]
Their Honours added:
"To understand s 80 as requiring the Parliament to include in the definition of any offence any factual ingredient which would have the effect of increasing the maximum punishment to which the offender would be liable would serve no useful constitutional purpose; indeed the Parliament might feel obliged to provide that some offences, which would otherwise be made indictable, should be triable summarily."[66]
Their Honours' observations provide a compelling reason for reconsidering those decisions which have held that it is for Parliament to decide what offences are and are not to be tried on indictment. They do not provide a reason for holding that Parliament may define an offence so as to expose a person to higher penalties by reference to "aggravating circumstances" associated with the doing of the act which constitutes the offence and which, if put in issue, are determined by a judge and not the jury. And to construe s 80 in that way is to construe in a manner contrary to the established approach with respect to constitutional guarantees.
There is nothing novel in the idea that an offence is constituted by the combination of acts and attendant circumstances which expose a person to a specified penalty by way of punishment. Thus, for example, robbery and armed robbery are distinct offences under the criminal laws of the States and Territories[67], as are assault, assault occasioning actual bodily harm and assault occasioning grievous bodily harm[68]. Moreover, as Brennan J pointed out in Kingswell, "[a] criminal offence can be identified only in terms of its factual ingredients, or elements, and the criminal penalty which the combination of elements attracts."[69] His Honour added "[i]f a particular combination of elements attracting a particular penalty is one offence, a different combination of elements attracting a different penalty is another offence."[70]
In Kingswell[71], Brennan J referred to the statement of Lord Diplock in R v Courtie that:
"where it is provided by a statute that an accused person's liability to have inflicted upon him a maximum punishment which, if the prosecution are successful in establishing the existence in his case of a particular factual ingredient, is greater than the maximum punishment that could be inflicted on him if the existence of that particular factual ingredient were not established, it seems to me to be plain beyond argument that Parliament has thereby created two distinct offences, whether the statute by which they are created does so by using language which treats them as being different species of a single genus of offence, or by using language which treats them as separate offences unrelated to one another."[72]
It was subsequently held by the House of Lords, in Director of Public Prosecutions v Butterworth[73], that Courtie was concerned with the construction of the legislation in issue in that case and that the question whether the legislature has created one offence with a range of penalties or several offences with different penalties is a question of construction of the particular legislation by which the offence is created. So much may be accepted. But that does not say anything as to the meaning of "offence" in s 80 of the Constitution. Certainly, it does not provide any basis for thinking that, in s 80, "offence" means anything that Parliament chooses to specify as an offence.
Section 80 of the Constitution was modelled on the guarantee of trial by jury contained in Art III of the United States Constitution[74]. It was held by the Supreme Court of the United States, in Jones v United States[75] that:
"under the Due Process Clause of the Fifth Amendment and the notice and jury trial guarantees of the Sixth Amendment, any fact (other than prior conviction) that increases the maximum penalty for a crime must be charged in an indictment, submitted to a jury, and proven beyond a reasonable doubt."[76]
In Apprendi v New Jersey the Supreme Court was called upon to decide whether the Due Process Clause in the Fourteenth Amendment to the United States Constitution required that, in respect of a State statute, "a factual determination authorizing an increase in the maximum [penalty] for an offense ... be made by a jury on the basis of proof beyond a reasonable doubt."[77] It was held, again by majority, that it did[78]. In doing so the holding in Jones that "[i]t [was] unconstitutional for a legislature to remove from the jury the assessment of facts that increase the prescribed range of penalties to which a criminal defendant is exposed"[79] was confirmed.
It is true that the decision in Jones v United States was rested on the Fifth and Sixth Amendments to the United States Constitution. But, in my view, a similar result is directed by s 80 of the Constitution. The word "offence" in that section is clearly capable of bearing a meaning of the kind ascribed to it by Brennan J in Kingswell[80]. It does no violence to the language of s 80 to construe "offence" as an act or omission which exposes a person to a specified penalty by way of punishment and, also, as any combination of factual elements which directly pertain to an act or omission which exposes a person to a distinct penalty by way of punishment. And in my view it cannot be given any narrower meaning consistent with the settled approach to the construction of constitutional guarantees.
When "offence" is construed in the manner indicated, s 80 operates to deny to the Parliament the power to create a single offence with a range of different maximum penalties varying according to the circumstances of its commission which, if disputed, are to be determined by a judge and not the jury.
Construction and validity of ss 233B and 235 of the Act
In Kingswell, the majority construed ss 233B and 235 of the Act in a context in which s 80 of the Constitution was allowed no operation. Although the minority would have held that s 80 did apply in that case, they construed ss 233B and 235 as creating a single offence with a range of maximum penalties before turning to consider the operation of s 80. No one approached the construction of ss 233B and 235 on the basis that, if possible, legislative provisions should be construed in a manner which ensures validity rather than invalidity[81].
It is true that, in form, s 233B of the Act is directed to creating offences, whilst s 235(2) is directed to identifying a range of sentences for those offences according, in the main, to the quantity of narcotics involved. And it is, I think, clear that, although nowhere defined for the purposes of s 235(2), "Court", in that sub-section means the sentencing judge. In this regard, it is sufficient to refer to the penalty specified in s 235(2)(c), namely "imprisonment for life or for such period as the Court thinks appropriate". Clearly, "Court" there refers to the sentencing judge. And given that s 235 is concerned with the maximum periods to which a person may be sentenced, there is no basis for construing "Court" differently in any other part of s 235.
Although s 235 must be construed on the basis that it is a sentencing provision and was intended as such, there is no reason in principle why it should be construed as no more than a sentencing provision. Subject to two matters to which I shall shortly refer, I see no reason why s 235(2) cannot be construed as also operating in combination with s 233B of the Act to create distinct offences attracting different penalties as specified in that sub-section.
The first of the two matters to which reference should be made is s 235(3) of the Act. Sub-section (3) operates to reduce the maximum penalty if "the Court is ... satisfied that the offence was not committed by the person charged for any purposes related to the sale of, or other commercial dealing in, [the] narcotic goods". That is a matter of mitigation and cannot sensibly be read as changing the nature of the offence charged.
The second matter to which it is necessary to refer is ss 235(2)(c)(ii)(A) and (B) which operate to expose an offender to a higher maximum penalty if he or she has previously been convicted of a narcotics offence or found guilty of an offence of that kind without a conviction being recorded. That paragraph concerns matters personal to the accused, rather than circumstances which pertain to an act or omission and which, because they expose the offender to a discrete penalty, should be treated as part of the offence for the purposes of s 80 of the Constitution.
If it is accepted, as I think it should be, that s 235 is primarily a sentencing provision but that it is also capable of operating, in combination with s 233B of the Act, to create distinct offences attracting different penalties according to the different quantities of narcotic goods involved, there is no reason to construe either ss 235(2)(c)(ii)(A) and (B) or 235(3) as directed to anything but sentencing. Equally, there is no reason to construe those parts of s 235(2) which relate to the quantity of narcotic goods and which specify maximum penalties by reference to those amounts as relating solely to sentencing.
I would construe ss 233B and 235(2) as operating in combination to create distinct offences depending on the quantity of narcotic goods, in fact, involved. So far as is relevant to the present applications, they operate in combination to create the offence of being knowingly concerned in the importation of a quantity of narcotic goods which, in fact, is not less than the commercial quantity of those goods. So construed, no question arises as to an accused person's knowledge, belief or intention as to the quantity of the goods concerned[82]. And no question arises as to the infringement of the command in s 80 of the Constitution.
The indictment and convictions
Given the construction of ss 233B and 235(2) which I would adopt, there may have been some technical defect in the indictment presented in this case. Had that matter been raised at trial, however, the indictment could have been amended. Moreover, at no point have the applicants raised any matter of defence other than the contention that s 235(2) is either wholly or partly invalid. More particularly, they have not raised any issue as to the quantity of heroin specified in the indictment. That being so, their convictions involved no substantial miscarriage of justice such as would have warranted the Court of Criminal Appeal's allowing their appeals against conviction.
Sentences
So far as concerns sentence, the argument for the applicants in this Court was as follows: that, if s 235(2) were not wholly invalid, it was invalid save to the extent of the penalty provided by s 235(2)(e) of the Act. On that basis, it was contended that the sentences should be quashed and the applicants re-sentenced in accordance with that paragraph. Properly construed, s 235(2) is not, in my view, invalid in any respect. Accordingly that contention must fail.
In addition to the argument as to the partial invalidity of s 235(2), the applicants contend that the Court of Criminal Appeal, in reducing the sentences of the applicants, was not entitled to take a view of the facts which was different from the view taken by the trial judge (Debelle J). For the reasons given by Gleeson CJ, Gummow and Hayne JJ, I can discern no error of principle on the part of the Court of Criminal Appeal in that respect.
Conclusion and orders
Special leave should be granted limited to the question whether ss 233B and 235(2) of the Act are invalid, but the appeal should be dismissed.
McHUGH J. In these proceedings, three persons convicted in the Supreme Court of South Australia of knowingly being concerned in the importation of a prohibited import seek special leave to appeal against their convictions.
The principal issue in the proceedings is whether the Parliament of the Commonwealth is free to define what constitutes an "offence" for the purpose of s 80 of the Constitution which declares that:
"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."
The applicants contend that Kingswell v The Queen[83] ("Kingswell"), which held that the Parliament was free to define what constitutes an "offence" for the purpose of s 80, was wrongly decided and that the decision should be overruled. If that contention is upheld, it follows, according to the applicants, that their convictions are void and of no effect, notwithstanding that they pleaded guilty to the charges upon which they were convicted. Also involved in the proceedings are issues as to whether the Crown must prove mens rea in relation to certain sections of the Customs Act 1901 (Cth) ("the Act") and whether the Court of Criminal Appeal of South Australia erred in its treatment of factual "findings" made by the sentencing judge.
In my view, Kingswell was correctly decided. Special leave should be refused not only in respect of whether it was correctly decided but also in respect of the other issues raised by the applicants.
Background
The applicants were indicted on an information which provided:
"Information of the Commonwealth Director of Public Prosecutions
[The applicants and others]
are charged with the following offence
1^st Count STATEMENT OF OFFENCE
BEING KNOWINGLY CONCERNED IN THE IMPORTATION OF A PROHIBITED IMPORT
(Section 233B(1)(d) Customs Act 1901)
PARTICULARS OF OFFENCE
[The applicants and others], between 1^st day of November 1997 and the 9^th day of November 1997 at Adelaide and other places in the said State, were knowingly concerned in the importation into Australia of a prohibited import to which Section 233B of the Customs Act 1901 applies, namely about 9350 grams of heroin, being not less than the commercial quantity."
All parties at the hearing of this application for special leave accepted that the information was an "indictment" for the purposes of s 80[84].
Before Debelle J in the Supreme Court of South Australia, the applicants demurred to the indictment on the basis that s 233B(1)(d) of the Act was invalid. They contended that, although it was valid if Kingswell[85] was correctly decided, that case had been wrongly decided. Quite properly[86], Debelle J overruled the demurrer on the basis that his Honour was bound by the decision in Kingswell. Debelle J held that ss 233B(1)(d) and 235 of the Act were valid. The applicants then pleaded guilty and were sentenced by his Honour.
Notwithstanding that the applicants had pleaded guilty to the offences charged, they appealed to the Court of Criminal Appeal of South Australia against their convictions as well as their sentences[87]. The Crown did not assert that the appeals against their convictions were incompetent[88], but the Court of Criminal Appeal dismissed their appeals because, inter alia, of the decision in Kingswell[89]. However, the Court allowed the appeals against sentence and reduced the sentences imposed[90].
The applicants' challenge to Kingswell
Before this Court, the applicants contended that the reasoning of the majority in Kingswell was based on the premise that s 80 of the Constitution is "a mere procedural provision, rather than a fundamental Constitutional guarantee", and that subsequent decisions[91] of this Court had falsified that premise. The applicants contended that, contrary to the judgments of the majority in Kingswell, s 80 restricts the Parliament's capacity to define what constitutes an "offence". In support of their argument, the applicants relied on the dissenting judgments of Brennan and Deane JJ in that case.
The decision in Kingswell
Kingswell had been convicted after a trial by jury[92] of conspiring to import a prohibited import, an offence under s 233B(1)(cb) of the Act. At an earlier time, he had been convicted of an offence against s 233B(1)(c)[93]. There was also evidence before the trial judge that Kingswell had conspired to import not less than the trafficable quantity of a narcotic substance[94]. The trial judge sentenced[95] Kingswell on the basis that the maximum penalty was imprisonment for life, because these two factors brought the case within s 235(2)(c)(ii) of the Act.
In this Court, Kingswell argued, inter alia, that s 235 was invalid – at least in part – because it contravened s 80 of the Constitution[96]. He contended that "offence" in s 80 means a combination of the facts which make the accused liable to a criminal penalty and that, if the presence of another factor makes the accused liable to a heavier penalty than that which might be imposed without that factor, the existence of that factor creates a different offence[97]. His argument raised the issue whether, consistently with s 80 of the Constitution, the Parliament of the Commonwealth can legislate for an offence to be prosecuted on indictment and expose the accused to a range of penalties depending upon findings of fact made by the trial judge[98].
Gibbs CJ, Wilson and Dawson JJ[99] rejected Kingswell's argument. Their Honours held that, as a matter of statutory construction, the Parliament intended that s 233B(1)(cb) should create one offence with s 235(2) and (3) to provide for a range of penalties applicable to that offence depending on the existence or non-existence of various circumstances[100]. On this issue, Mason J agreed[101] with the reasons of Gibbs CJ, Wilson and Dawson JJ. The majority accepted that, where a statute provides for an accused to be exposed to a greater maximum penalty if a particular factor is present, a presumption arises that the legislature intended to create a separate offence from that which exists without that factor. However, the majority held that the words of the relevant sections rebutted that presumption[102]. The majority said that, s 80 aside, "there is no fundamental law that declares what the definition of an offence shall contain or that requires the Parliament to include in the definition of an offence any circumstance whose existence renders the offender liable to a maximum punishment greater than that which might have been imposed if the circumstance did not exist"[103]. They also said[104] that the fact that s 80 had been interpreted so as to leave it to the Parliament to determine whether any offence should be tried on indictment or summarily "provides a reason for refusing to import into the section restrictions on the legislative power which it does not express". That being so, the majority held that ss 233B(1)(cb) and 235(2) did not contravene s 80, as s 80 itself says nothing as to the manner in which an offence is to be defined[105].
Brennan J dissented. His Honour held that what constitutes an "offence" in s 80 "is not left to be defined by Parliament; in s 80 it has the meaning which it bears in the criminal law"[106]. In his Honour's view, Lord Diplock's definition of "offence" in R v Courtie[107] was both "manifestly right"[108] and applicable to s 80. That being so, Brennan J held that offences which attract the maximum penalties prescribed by s 235(2)(c) and (d) are offences distinct from s 233B offences: each element of each distinct offence is the subject of the s 80 guarantee[109]. As sub-s 2(c) and (d) and sub-s (3) of s 235 require a judge alone to determine the existence of facts which are "elements of an offence for the purpose of s 80", Brennan J held that those sections were invalid[110].

[68]See Crimes Act 1900 (NSW), ss 35, 59, 61; Crimes Act 1958 (Vic), ss 16, 18, 31; Criminal Law Consolidation Act 1935 (SA), ss 21, 39, 40; Criminal Code Act 1899 (Q), ss 320, 335, 339; The Criminal Code (WA), ss 223, 297, 306; Criminal Code Act 1924 (Tas), ss 170(1)(a), 172, 184; Criminal Code Act (NT), ss 181, 186, 188(1), (2)(a); Crimes Act 1900 (ACT), ss 19, 24, 26.

[69](1985) 159 CLR 264 at 292.

[70](1985) 159 CLR 264 at 293.

[71](1985) 159 CLR 264 at 292.

[72][1984] AC 463 at 471.

[73][1995] 1 AC 381.

[74]See the discussion in La Nauze, The Making of the Australian Constitution, (1972) at 227-228.

[75]526 US 227 at 243, n 6 (1999) per Stevens, Scalia, Souter, Thomas and Ginsburg JJ; Rehnquist CJ, O'Connor, Kennedy and Breyer JJ dissenting.

[76]As cited in Apprendi v New Jersey 68 USLW 4576 at 4579 (2000) per Stevens, Scalia, Souter, Thomas and Ginsburg JJ. In Apprendi the same majority Justices affirmed their decision in Jones.

[77]68 USLW 4576 at 4577 (2000) per Stevens, Scalia, Souter, Thomas and Ginsburg JJ.

[78]68 USLW 4576 at 4579 (2000) per Stevens, Scalia, Souter, Thomas and Ginsburg JJ.

[79]68 USLW 4576 at 4583 (2000) per Stevens, Scalia, Souter, Thomas and Ginsburg JJ, citing Jones v United States 526 US 227 at 252-253 (1999).

[80](1985) 159 CLR 264 at 292-293.

[81]See Davies and Jones v The State of Western Australia (1904) 2 CLR 29 at 43 per Griffith CJ; Federal Commissioner of Taxation v Munro; British Imperial Oil Co Ltd v Federal Commissioner of Taxation (1926) 38 CLR 153 at 180 per Isaacs J; Attorney-General (Vict) v The Commonwealth ("the Pharmaceutical Benefits Case") (1945) 71 CLR 237 at 267 per Dixon J; Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1 at 14 per Mason CJ.

[82]As to the mental element required for offences of this kind, see He Kaw Teh v The Queen (1985) 157 CLR 523. See also Kingswell v The Queen (1985) 159 CLR 264 at 293-294 per Brennan J.

[83](1985) 159 CLR 264.

[84]Section 4A of the Crimes Act 1914 (Cth) provides that in a law of the Commonwealth "'indictment' includes an information", unless the contrary intention appears. Section 4G of the Crimes Act provides that offences against a law of the Commonwealth punishable by imprisonment for a period exceeding 12 months are "indictable offences", unless the contrary intention appears.

[85](1985) 159 CLR 264.

[86]See Ravenor Overseas Inc v Readhead (1998) 72 ALJR 671 at 672 [3] per Brennan CJ; 152 ALR 416 at 416.

[87]R v Cheng, R v Chan, R v Cheng (1999) 73 SASR 502 at 506 [7].

[88](1999) 73 SASR 502 at 507 [9].

[89](1999) 73 SASR 502 at 514 [32].

[90](1999) 73 SASR 502 at 532 [120].

[91]For example Brown v The Queen (1986) 160 CLR 171; Cheatle v The Queen (1993) 177 CLR 541; Katsuno v The Queen (1999) 73 ALJR 1458; 166 ALR 159; Re Colina; Ex parte Torney (1999) 73 ALJR 1576; 166 ALR 545.

[92](1985) 159 CLR 264 at 270.

[93](1985) 159 CLR 264 at 272.

[94](1985) 159 CLR 264 at 272.

[95](1985) 159 CLR 264 at 272.

[96](1985) 159 CLR 264 at 273.

[97](1985) 159 CLR 264 at 266.

[98](1985) 159 CLR 264 at 287-288 per Brennan J.

[99](1985) 159 CLR 264 at 276-277.

[100](1985) 159 CLR 264 at 273.

[101](1985) 159 CLR 264 at 282.

[102](1985) 159 CLR 264 at 275-276.

[103](1985) 159 CLR 264 at 276; see also at 285 per Mason J.

[104](1985) 159 CLR 264 at 276.

[105](1985) 159 CLR 264 at 276.

[106](1985) 159 CLR 264 at 292.

[107][1984] AC 463 at 471.

[108](1985) 159 CLR 264 at 292.

[109](1985) 159 CLR 264 at 293.

[110](1985) 159 CLR 264 at 295.

[111](1965) 114 CLR 226 at 244.

[112](1985) 159 CLR 264 at 319.

[113](1985) 159 CLR 264 at 318-319.

[114](1985) 159 CLR 264 at 319.

[115](1985) 159 CLR 264 at 321-322.

[116]See eg R v Archdall and Roskruge; Ex parte Carrigan and Brown (1928) 41 CLR 128; R v Federal Court of Bankruptcy; Ex parte Lowenstein (1938) 59 CLR 556 ("Lowenstein"); Sachter v Attorney-General for the Commonwealth (1954) 94 CLR 86; Spratt v Hermes (1965) 114 CLR 226; Zarb v Kennedy (1968) 121 CLR 283; Li Chia Hsing v Rankin (1978) 141 CLR 182; Kingswell (1985) 159 CLR 264 at 276-277 per Gibbs CJ, Wilson and Dawson JJ. But see the dissenting judgment of Dixon and Evatt JJ in Lowenstein (1938) 59 CLR 556; and the dissenting judgment of Deane J in Kingswell (1985) 159 CLR 264 at 318-319.

[117]Cheatle v The Queen (1993) 177 CLR 541.

[118]Devlin, Trial by Jury, (1966) at 164.

[119]Blackstone, Commentaries, (1769), bk 4 at 343-344.

[120]Sutherland Publishing Co Limited v Caxton Publishing Co Limited [1938] Ch 174 at 201; Kingston v Keprose Pty Ltd (1987) 11 NSWLR 404 at 422.

[121]Dixon, Jesting Pilate, 2nd ed (1997) at 113.

[122]Official Report of the National Australasian Convention Debates, (Adelaide), 12 April 1897 at 428-429, 431-432. Professor La Nauze described this draft as the "official first Draft of [the] present Constitution": see La Nauze, The Making of the Australian Constitution, (1972) at 290 n 12.

[123]Inglis Clark used the phrase "all Crimes" in his draft of the Constitution prior to the 1891 Convention. However, Sir Samuel Griffith changed this to "all indictable offences". See Sir Samuel Griffith, Successive Stages of the Constitution of the Commonwealth of Australia, (1891); La Nauze, The Making of the Australian Constitution, (1972) at 227-228; Hanks, Constitutional Law in Australia, 2nd ed (1996) at 513. The draft adopted by the 1891 Convention used the phrase "all indictable offences": see cl 11 of Ch III of the "Draft of a Bill as adopted by the National Australasian Convention, 9th April, 1891", as reported in Sir Samuel Griffith, Successive Stages of the Constitution of the Commonwealth of Australia, (1891).

[124]Callan v Wilson 127 US 540 at 549 (1888).

[125]Official Report of the National Australasian Convention Debates, (Adelaide), 20 April 1897 at 990-991.

[126]Official Record of the Debates of the Australasian Federal Convention, (Melbourne), 31 January 1898 at 350.

[127]Official Record of the Debates of the Australasian Federal Convention, (Melbourne), 31 January 1898 at 352.

[128]Official Record of the Debates of the Australasian Federal Convention, (Melbourne), 31 January 1898 at 352.

[129]Official Record of the Debates of the Australasian Federal Convention, (Melbourne), 4 March 1898 at 1894.

[130]Official Record of the Debates of the Australasian Federal Convention, (Melbourne), 4 March 1898 at 1895.

[131]Official Record of the Debates of the Australasian Federal Convention, (Melbourne), 4 March 1898 at 1895.

[132]Official Record of the Debates of the Australasian Federal Convention, (Melbourne), 4 March 1898 at 1895.

[133](1988) 165 CLR 360 at 385.

[134]See, for example, the remarks of Dixon and Evatt JJ in Lowenstein (1938) 59 CLR 556 at 584.

[135]Lowenstein (1938) 59 CLR 556 at 583.

[136]Kingswell (1985) 159 CLR 264 at 317 (emphasis added); see also at 319.

[137]Kingswell (1985) 159 CLR 264 at 310.

[138]Kingswell (1985) 159 CLR 264 at 319.

[139]Kingswell (1985) 159 CLR 264 at 319.

[140]Kingswell (1985) 159 CLR 264 at 309-310, 316, 319.

[141]Beckwith v The Queen (1976) 135 CLR 569 at 585.

[142]Frankfurter and Corcoran, "Petty Federal Offenses And The Constitutional Guaranty Of Trial By Jury" (1926) 39 Harvard Law Review 917 at 921.

[143]See the discussion in Frankfurter and Corcoran, "Petty Federal Offenses And The Constitutional Guaranty Of Trial By Jury" (1926) 39 Harvard Law Review 917.

[144]Lash, From the Diaries of Felix Frankfurter, (1975) at 135 n 1.

[145]Article III, s 2.

[146]"Petty Federal Offenses And The Constitutional Guaranty Of Trial By Jury" (1926) 39 Harvard Law Review 917 at 928.

[147]"Petty Federal Offenses And The Constitutional Guaranty Of Trial By Jury" (1926) 39 Harvard Law Review 917 at 932 (footnotes omitted).

[148]See, for example, O'Meally v The Queen (1958) 98 CLR 13.

[149]Eighth Amendment.

[150]Brown v The Queen (1986) 160 CLR 171.

[151]Constitution Alteration (Rights and Freedoms) Bill 1988.

[152]Sachter v Attorney-General for the Commonwealth (1954) 94 CLR 86 at 88.

[153][1984] AC 463.

[154](1985) 159 CLR 264 at 276.

[155][1984] AC 463.

[156][1984] AC 463 at 470.

[157][1984] AC 463 at 471.

[158](1985) 159 CLR 264 at 276.

[159](1985) 159 CLR 264 at 276.

[160]See Sentencing Act 1991 (Vic) s 6B(3).

[161][1984] AC 463.

[162]See eg Director of Public Prosecutions v Butterworth [1995] 1 AC 381 at 388-389, 393.

[163][1993] 1 All ER 912.

[164]There were only two judges in the case.

[165][1993] 1 All ER 912 at 917.

[166][1993] 1 All ER 918.

[167][1993] 1 All ER 918 at 929, 930.

[168][1993] 1 All ER 918 at 929, 930 (original emphasis).

[169][1976] 1 WLR 87; [1976] 1 All ER 162.

[170][1995] 1 AC 381.

[171][1995] 1 AC 381 at 388.

[172][1984] AC 463.

[173][1995] 1 AC 381 at 389.

[174][1995] 1 AC 381 at 395.

[175][1995] 1 AC 381 at 394.

[176][1984] AC 463.

[177][1987] AC 1.

[178][1995] 1 AC 381 at 394-395.

[179](1985) 159 CLR 264 at 276.

[180](1986) 160 CLR 359.

[181](1985) 159 CLR 264 at 281.

[182](1986) 160 CLR 359 at 364.

[183](1985) 159 CLR 264 at 279-281.

[184](1986) 160 CLR 171.

[185](1986) 160 CLR 171 at 196-197, 201 per Brennan J, 205-207 per Deane J, 217 per Dawson J.

[186](1986) 160 CLR 171 at 215.

[187](1993) 177 CLR 541.

[188](1999) 73 ALJR 1576; 166 ALR 545.

[189](1999) 73 ALJR 1576 at 1596 [93]; 166 ALR 545 at 573.

[190](1999) 73 ALJR 1458; 166 ALR 159.

[191](1999) 73 ALJR 1458 at 1460 [10]; 166 ALR 159 at 161.

[192](1985) 159 CLR 264 at 301-302.

[193](1999) 73 ALJR 1458 at 1468 [49]; 166 ALR 159 at 171.

[194](1999) 73 ALJR 1576; 166 ALR 545.

[195](1999) 73 ALJR 1576 at 1579 [11]; 166 ALR 545 at 550.

[196](1999) 73 ALJR 1576 at 1581 [25]; 166 ALR 545 at 553; see also per Hayne J at (1999) 73 ALJR 1576 at 1600 [108], 1601 [113]; 166 ALR 545 at 578, 579.

[197](1999) 73 ALJR 1576 at 1586 [50]; 166 ALR 545 at 559.

[198](1999) 73 ALJR 1576 at 1596 [95]; 166 ALR 545 at 574.

[199](1999) 73 ALJR 1576 at 1606 [136]; 166 ALR 545 at 587.

[200](1999) 73 ALJR 1576; 166 ALR 545.

[201]R v Bernasconi (1915) 19 CLR 629 at 637 per Isaacs J; R v Archdall and Roskruge; Ex parte Carrigan and Brown (1928) 41 CLR 128 at 139 per Higgins J.

[202]R v Snow (1915) 20 CLR 315 at 323; cf Brown v The Queen (1986) 160 CLR 171 at 215 ("Brown").

[203]Evatt, "The Jury System in Australia", (1936) 10 Australian Law Journal (Sup) 49 at 65.

[204]R v Federal Court of Bankruptcy; Ex parte Lowenstein (1938) 59 CLR 556 at
581-582.

[205]eg Beckwithv The Queen (1976) 135 CLR 569 at 585 per Murphy J.

[206]Spratt v Hermes (1965) 114 CLR 226 at 244.

[207](1985) 159 CLR 264 ("Kingswell").

[208]Kingswell (1985) 159 CLR 264 at 286 per Brennan J, 298, 310 per Deane J. See also R v Meaton (1986) 160 CLR 359 at 365 per Brennan and Deane JJ ("Meaton").

[209](1986) 160 CLR 171 at 201.

[210]Brown (1986) 160 CLR 171 at 178 per Gibbs CJ, 189 per Wilson J.

[211](1993) 177 CLR 541 ("Cheatle").

[212](1993) 177 CLR 541 at 562.

[213]See eg Katsuno v The Queen (1999) 73 ALJR 1458 at 1468 [49], 1469 [52]; 166 ALR 159 at 171, 172 ("Katsuno"); cf Re Colina; Ex parte Torney (1999) 73 ALJR 1576 at 1606 [134]; 166 ALR 545 at 587 ("Colina").

[214]Re Wakim; Ex parte McNally (1999) 198 CLR 511.

[215]Wilson v Minister for Aboriginal and Torres Strait Islander Affairs (1996) 189 CLR 1.

[216]Reasons of Gleeson CJ, Gummow and Hayne JJ at [3]-[11]; reasons of Gaudron J at [66]-[68]; reasons of McHugh J at [111]-[114]; reasons of Callinan J at [256].

[217]Reasons of Gleeson CJ, Gummow and Hayne JJ at [13]; reasons of Gaudron J at [66]; reasons of McHugh J at [111]; reasons of Callinan J at [256].

[218]Customs Act 1910 (Cth), s 11.

[219]Customs Act 1967 (Cth), s 9.

[220]Customs Act (No 2) 1971 (Cth), s 8.

[221]Customs Amendment Act 1979 (Cth), s 3.

[222]The Act, s 235(2).

[223]Reasons of Gleeson CJ, Gummow and Hayne JJ at [21]; reasons of Gaudron J at [70]; reasons of Callinan J at [260].

[224]Reasons of Gleeson CJ, Gummow and Hayne JJ at [22]; reasons of Gaudron J at [70]; reasons of Callinan J at [260].

[225]Reasons of Gleeson CJ, Gummow and Hayne JJ at [28]; reasons of Gaudron J at [69]; reasons of McHugh J at [108]; reasons of Callinan J at [263].

[226]See R v Cheng, R v Chan, R v Cheng (1999) 73 SASR 502 at 506.

[227]Criminal Law Consolidation Act 1935 (SA), s 281(1).

[228]Brown (1986) 160 CLR 171; Cheatle (1993) 177 CLR 541.

[229]eg Ha v New South Wales (1997) 189 CLR 465 at 498.

[230]R v Chan unreported, Supreme Court of South Australia, 6 November 1998 at 3.

[231]cf Collins (1993) 67 A Crim R 104.

[232]Collins (1993) 67 A Crim R 104 at 107; cf R v Vecsey [1962] SASR 127 at 128; R v Maitland [1963] SASR 332; R v Welsh [1983] 1 Qd R 592; R v Clayton [1989] 2 Qd R 439 at 441; Xiao Dong Liu (1989) 40 A Crim R 468 at 474.

[233]R v Chan unreported, Supreme Court of South Australia, 3 December 1998 at 3.

[234]R v Chan unreported, Supreme Court of South Australia, 3 December 1998 at 3.

[235]R v Chan unreported, Supreme Court of South Australia, 3 December 1998 at 3.

[236]R v Cheng, R v Chan, R v Cheng (1999) 73 SASR 502.

[237]R v Cheng, R v Chan, R v Cheng (1999) 73 SASR 502 at 530-532.

[238]R v Cheng, R v Chan, R v Cheng (1999) 73 SASR 502 at 529.

[239]R v Cheng, R v Chan, R v Cheng (1999) 73 SASR 502 at 529.

[240]R v Cheng, R v Chan, R v Cheng (1999) 73 SASR 502 at 530.

[241]R v Cheng, R v Chan, R v Cheng (1999) 73 SASR 502 at 507 (Doyle CJ and Wicks J agreeing).

[242]R v Frantzis (1996) 66 SASR 558.

[243]R v Forde [1923] 2 KB 400 at 403.

[244]R v Frantzis (1996) 66 SASR 558 at 573.

[245]As in R v Howes (1971) 2 SASR 293.

[246]R v Cheng, R v Chan, R v Cheng (1999) 73 SASR 502 at 514.

[247]Relying on He Kaw Teh v The Queen (1985) 157 CLR 523 at 530 per Gibbs CJ.

[248]Allesch v Maunz (2000) 74 ALJR 1206 at 1212 [31]-[32], 1216-1217 [55]-[59].

[249]By order of Gaudron, Kirby and Hayne JJ on 8 October 1999. Note that in Kingswell, the Court was reconstituted by the addition of Wilson J: see (1985) 159 CLR 264 at 266. Only Murphy J did not participate.

[250]According to the affidavit, there are 681 federal prisoners currently serving sentences in State and Territory prisons for offences against laws of the Commonwealth, of whom at least 470 have been convicted and sentenced for offences against s 233B(1) of the Act.

[251](1986) 160 CLR 171.

[252](1993) 177 CLR 541.

[253](1999) 73 ALJR 1458; 166 ALR 159.

[254](1999) 73 ALJR 1576; 166 ALR 545.

[255]Bank of NSW v The Commonwealth (1948) 76 CLR 1 at 186; R v Hughes (2000) 74 ALJR 802 at 816 [66]; 171 ALR 155 at 173-174; Residual Assco Group Ltd v Spalvins (2000) 74 ALJR 1013 at 1030 [81]; 172 ALR 366 at 389.

[256]Katsuno (1999) 73 ALJR 1458 at 1488 [138]; 166 ALR 159 at 198-199.

[257]Colina (1999) 73 ALJR 1576 at 1581-1582 [25], 1606 [136]; cf 1586 [50]; 166 ALR 545 at 553, 587, 559.

[258](1985) 159 CLR 264 at 274 per Gibbs CJ, Wilson and Dawson JJ, 282 per Mason J, 286 per Brennan J, 296 per Deane J; cf State v Kirsch 268 NW 473 at 476 (1936).

[259]Acts Interpretation Act 1901 (Cth), s 15A.

[260]cf Re Dingjan; Ex parte Wagner (1995) 183 CLR 323 at 347-348; Victoria v The Commonwealth (Industrial Relations Act Case) (1996) 187 CLR 416 at 561.

[261]Criminal Law Consolidation Act, s 281(1); Supreme Court Criminal Rules 1992 (SA), r 8.01.

[262]R v Cheng, R v Chan, R v Cheng (1999) 73 SASR 502 at 506-508.

[263]Constitution, s 75(v).

[264]eg R v Elliott (1996) 185 CLR 250 at 256-257.

[265]As explained in R v Massey (1994) 62 SASR 481 at 482.

[266]R v Forde [1923] 2 KB 400 at 403.

[267]Kingswell (1985) 159 CLR 264 at 280.

[268][1916] 2 KB 441 at 444-445.

[269](1985) 159 CLR 264 at 280 per Gibb CJ, Wilson and Dawson JJ.

[270](1986) 160 CLR 359 at 363-364 per Gibb CJ, Wilson and Dawson JJ.

[271](1989) 51 SASR 510.

[272]R v Hietanen (1989) 51 SASR 510 at 514.

[273]Newell v The King (1936) 55 CLR 707 at 712; Director of Public Prosecutions, South Australia v B (1998) 194 CLR 566 at 589-593 [49].

[274]Attorney-General's Reference No 1 of 1988 (1988) 49 SASR 1 at 5-6.

[275](1986) 160 CLR 359.

[276]Kingswell (1985) 159 CLR 264 at 277 per Gibbs CJ, Wilson and Dawson JJ, 285 per Mason J, 299 per Deane J; cf 294 per Brennan J. See also R v Archdall and Roskruge; Ex parte Carrigan and Brown (1928) 41 CLR 128.

[277]Re Wakim; Ex parte McNally (1999) 198 CLR 511 at 599-600 [186]-[187].

[278]Colina (1999) 73 ALJR 1576 at 1596 [92]; 166 ALR 545 at 573. There are equivalent requirements under the United States Constitution to define "petty" offences within Art III, s 2 of the Sixth Amendment: see Colina (1999) 73 ALJR 1576 at 1599 [103]; 166 ALR 545 at 577.

[279]As in Colina (1999) 73 ALJR 1576 at 1597 [96]; 166 ALR 545 at 574.

[280]Official Record of the Debates of the Australasian Federal Convention, (Melbourne), 31 January 1898 at 351.

[281]Based on Ha v New South Wales (1997) 189 CLR 465 at 498.

[282]Re Wakim; Ex parte McNally (1999) 198 CLR 511 at 599-600 [186]-[187]; Colina (1999) 73 ALJR 1576 at 1597-1598 [96]-[99]; 166 ALR 545 at 574-576; Grain Pool of Western Australia v The Commonwealth (2000) 74 ALJR 648 at 665 [90]; 170 ALR 111 at 133-134; Kirby, "Constitutional Interpretation and Original Intent: A Form of Ancestor Worship?", (2000) 24 Melbourne University Law Review 1.

[283]Meaton (1986) 160 CLR 359 at 364; cf 368-369.

[284]Kingswell (1985) 159 CLR 264 at 280 per Gibbs CJ, Wilson and Dawson JJ.

[285]cf Sabapathee v The State [1999] 1 WLR 1836 at 1847.

[286]Kingswell (1985) 159 CLR 264 at 280.

[287](1989) 51 SASR 510 at 514. See at [208].

[288]Kingswell (1985) 159 CLR 264 at 285.

[289](1986) 160 CLR 359 at 364.

[290](1986) 160 CLR 359 at 368-369 per Brennan and Deane JJ.

[291]R v Hietanen (1989) 51 SASR 510 at 514.

[292]Meaton (1986) 160 CLR 359 at 369 per Brennan and Deane JJ.

[293]Brown (1986) 160 CLR 171; Cheatle (1993) 177 CLR 541.

[294]Thus Gibbs CJ did in Brown (1986) 160 CLR 171 at 179, 201-202 per Deane J; cf 190 per Wilson J.

[295](1993) 177 CLR 541 at 549.

[296](1915) 20 CLR 315 at 323.

[297](1999) 73 ALJR 1458 at 1469 [52] per Gaudron, Gummow and Callinan JJ; 166 ALR 159 at 172.

[298](1999) 73 ALJR 1576 at 1606 [134], [136] per Callinan J; 166 ALR 545 at 587.

[299]See Re Governor, Goulburn Correctional Centre; Ex parte Eastman (1999) 73 ALJR 1324 at 1356 [152]; 165 ALR 171 at 215 and cases there cited; cf Re Wakim; Ex parte McNally (1999) 198 CLR 511, which is a recent and clear illustration of the fact that even universally recognised advantages cannot govern the requirements of the Constitution or the duties of this Court, particularly where Ch III of the Constitution is concerned.

[300]cf reasons of Callinan J at [283] referring to Kingswell (1985) 159 CLR 264.

[301]cf Canadian National Railway Co v Norsk Pacific Steamship Co [1992] 1 SCR 1021 at 1175.

[302]Spring v Guardian Assurance Plc [1995] 2 AC 296 at 326.

[303]Re Governor, Goulburn Correctional Centre; Ex parte Eastman (1999) 73 ALJR 1324 at 1357 [154]; 165 ALR 171 at 216.

[304](1999) 198 CLR 511.

[305]Kingswell (1985) 159 CLR 264 at 294.

[306][1984] AC 463 at 471 per Lord Diplock.

[307]R v Bright [1916] 2 KB 441.

[308]Kingswell (1985) 159 CLR 264 at 293.

[309]Kingswell (1985) 159 CLR 264 at 296.

[310]Blackstone, Commentaries on the Laws of England, (1769), bk 4 at 344 cited by Brennan J in Kingswell (1985) 159 CLR 264 at 296.

[311]Such an offence exists in s 235(2)(c)(ii) of the Act.

[312]Kingswell (1985) 159 CLR 264 at 281 per Gibbs CJ, Wilson and Dawson JJ referring to Archbold's Criminal Pleading Evidence & Practice, 41st ed (1982) at §4-50.

[313]Kingswell (1985) 159 CLR 264 at 294 per Brennan J.

[314]Apprendi v New Jersey 68 USLW 4576 at 4585 (2000) ("Apprendi").

[315]Apprendi 68 USLW 4576 at 4585 (2000).

[316]Apprendi 68 USLW 4576 at 4585 (2000).

[317]Blackstone described this as "pious perjury" on the part of juries: Blackstone, Commentaries on theLaws of England, (1769), bk 4 at 238-239. See Jones v United States 526 US 227 at 245 (1999); Apprendi 68 USLW 4576 at 4580 (2000) per Stevens J, n 5.

[318]Apprendi 68 USLW 4576 at 4579 (2000).

[319]In Apprendi 68 USLW 4576 at 4582-4583 (2000) Stevens J, for the Court, suggested that the decision in Almendarez-Torres v United States 523 US 224 (1998), an apparent exception, may have been incorrectly decided and should be confined to its facts.

[320]In re Winship 397 US 358 at 364 (1970).

[321]United States v Tucker 404 US 443 at 447 (1972).

[322]Apprendi 68 USLW 4576 at 4581 (2000).

[323]McMillan v Pennsylvania 477 US 79 (1986); Jones v United States 526 US 227 (1999).

[324]Reasons of Gaudron J at [90].

[325]cf Jones v United States 526 US 227 (1999).

[326]In re Winship 397 US 358 at 364 (1970); Sullivan v Louisiana 508 US 275 at
277-278 (1993); United States v Gaudin 515 US 506 at 510 (1995); Apprendi 68 USLW 4576 at 4579 (2000).

[327]68 USLW 4576 at 4579 (2000) (emphasis added).

[328]Jones v United States 526 US 227 at 247-248 (1999).

[329]Apprendi 68 USLW 4576 at 4581 (2000).

[330]Apprendi 68 USLW 4576 at 4583 (2000).

[331]526 US 227 at 252-253 (1999).

[332]Apprendi 68 USLW 4576 at 4586, 4591 (2000) per Thomas J.

[333]Apprendi 68 USLW 4576 at 4579 (2000).

[334]In the United States, the importance of the strict rule is emphasised by the purported legislative provision of sentencing enhancers giving rise to the imposition of the death penalty: Walton v Arizona 497 US 639 at 647-649 (1990), 709-714 per Stevens J (diss); cf Almendarez-Torres v United States 523 US 224 at 257 (1998) per Scalia J (diss), n 2 cited in Apprendi 68 USLW 4576 at 4585 (2000). In Australia, life imprisonment, provided for under the Act, is the highest punishment known to the law.

[335](1985) 157 CLR 523.

[336](1985) 159 CLR 264 at 294.

[337]Section 4A Crimes Act 1914 (Cth):
"Meaning of certain words
4AIn a law of the Commonwealth, unless the contrary intention appears:
…
'indictment' includes an information and a presentment."

[338]R v Cheng, R v Chan, R v Cheng (1999) 73 SASR 502.

[339](1999) 73 SASR 502 at 528.

[340](1985) 159 CLR 264.

[341](1985) 159 CLR 264 at 294-295.

[342](1978) 141 CLR 182.

[343](1869) 1 CCR 182.

[344](1872) 1 CCR 363.

[345](1921) 21 SR (NSW) 240.

[346][1984] AC 463.

[347](1985) 159 CLR 264 at 307.

[348](1930) 44 CLR 38 at 86.

[349]R v Federal Court of Bankruptcy; Ex Parte Lowenstein (1938) 59 CLR 556 at 582.

[350](1938) 59 CLR 556 at 581-582.

[351](1928) 41 CLR 128 at 139-140.

[352](1986) 160 CLR 171.

[353](1986) 160 CLR 171 at 200-201 per Brennan J, 205-206 per Deane J, 218 per Dawson J.

[354](1986) 160 CLR 171 at 197.

[355](1986) 160 CLR 171 at 201-202.

[356](1915) 20 CLR 315 at 323.

[357]391 US 145 at 156 (1968).

[358](1985) 159 CLR 264 at 298.

[359](1986) 160 CLR 171 at 208-212, 215.

[360](1986) 160 CLR 171 at 215.

[361](1915) 20 CLR 315 at 323.

[362](1985) 159 CLR 264 at 308.

[363](1938) 59 CLR 556 at 583.

[364](1986) 160 CLR 171 at 179.

[365]391 US 145 at 156 (1968).

[366](1986) 160 CLR 171 at 190.

[367](1993) 177 CLR 541.

[368](1993) 177 CLR 541 at 549.

[369](1915) 20 CLR 315 at 323.

[370](1999) 73 ALJR 1458; 166 ALR 159.

[371](1999) 73 ALJR 1458 at 1469 [52]; 166 ALR 159 at 172.

[372](1999) 73 ALJR 1458 at 1471 [67]; 166 ALR 159 at 175‑176.

[373](1999) 73 ALJR 1576; 166 ALR 545.

[374](1999) 73 ALJR 1576 at 1581-1582 [25]; 166 ALR 545 at 553.

[375](1999) 73 ALJR 1576 at 1589-1590 [69]; 166 ALR 545 at 564-565.

[376](1999) 73 ALJR 1576 at 1606 [134]; 166 ALR 545 at 587.

[377](1999) 73 ALJR 1576 at 1606 [136]; 166 ALR 545 at 587.

[378](1985) 159 CLR 264 at 276.

[379](1985) 159 CLR 264 at 277.

[380](1985) 159 CLR 264 at 280-281.

[381](1985) 159 CLR 264 at 285.

[382]R v Meaton (1986) 160 CLR 359.

[383](1985) 159 CLR 264 at 276.

[384](1999) 73 ALJR 1576 at 1606 [136]; 166 ALR 545 at 587.

[385](1986) 160 CLR 359 at 364 per Gibbs CJ, Wilson and Dawson JJ.