Cheng v The Queen

The applicants, Yu Shing Cheng, Gang Cheng, and Bach An Chan, challenged the validity of provisions of the *Customs Act 1901* (Cth) under which they were convicted. The central issue concerned the constitutional validity of these provisions in light of section 80 of the Australian Constitution, which mandates trial by jury for indictable offences. The applicants had pleaded guilty to being knowingly concerned in the importation of prohibited narcotic goods, following the rejection of their demurrers which raised constitutional objections to the information laid against them.

The High Court was required to determine whether the provisions of the *Customs Act* concerning the classification of prohibited imports as either "commercial quantities" or "trafficable quantities" for sentencing purposes, and the differential penalties attached to these classifications, infringed section 80 of the Constitution. Specifically, the Court had to consider whether the determination of these quantity-based elements, which significantly impacted the available penalties, constituted an essential element of the offence that must be decided by a jury in a trial on indictment.

The Court reasoned that section 80 of the Constitution guarantees the right to trial by jury for "treason, felony and other crime" and applies to offences against the laws of the Commonwealth. However, the Court distinguished between the elements of an offence that define guilt and those that relate to the severity of the penalty. The Court held that the determination of whether narcotic goods met the threshold of a "commercial quantity" or "trafficable quantity" for the purposes of sentencing under section 235 of the *Customs Act* did not constitute an element of the offence itself, but rather a matter for the sentencing judge to determine. Therefore, the determination of these quantities by the judge, rather than a jury, did not infringe section 80 of the Constitution.

The applications were dismissed.