Fittock, Ng v The Queen

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Darwin No D7 of 2001

B e t w e e n -
PETER ANDREW FITTOCK
Applicant
and
THE QUEEN
Respondent

Office of the Registry
Melbourne No M148 of 2002

B e t w e e n -
PHILIP CHEE MING NG
Applicant
and
THE QUEEN
Respondent
Applications for special leave to appeal

GLEESON CJ
McHUGH J
GUMMOW J
KIRBY J
HAYNE J
CALLINAN J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 13 FEBRUARY 2003, AT 11.06 AM

_________________

MR A.W. STREET, SC: If it please the Court, in the matter of Ng v The Queen, No M148 of 2002, I appear with my learned friend, MR G.D. WENDLER, for the applicant. (instructed by Allan McMonnies)

MR G.D. WENDLER: If the Court pleases, in matter No D7, the matter of Fittock, I appear with MR S.H. MacFARLANE for the applicant. (instructed by Laurence J. Fittock)

MR T.I. PAULING, QC, Solicitor‑General for the Northern Territory: May it please the Court, in the matter of D7, Fittock, I appear with MS N. ROGERS for the respondent. In the matter of Ng, I appear for the Attorney‑General for the Northern Territory intervening. (instructed by the Director of Public Prosecutions (Northern Territory))

MR D.J. BUGG, QC: If the Court pleases, in the matter of Ng, I appear with my learned friend, MR N.T. ROBINSON, for the respondent. (instructed by the Director of Public Prosecutions (Commonwealth))

MR D.M.J. BENNETT, QC, Solicitor‑General of the Commonwealth of Australia: In both matters, if your Honours please, I appear with my learned friend,

MR C.J. HORAN, for the Attorney‑General of the Commonwealth intervening. (instructed by the Australian Government Solicitor)

MR R.J. MEADOWS, QC, Solicitor‑General for the State of Western Australia: May it please the Court, I appear with my learned friend, MS J.C. PRITCHARD, on behalf of the Attorney‑General for Western Australia intervening in both matters in support of the respondent. (instructed by the Crown Solicitor for the State of Western Australia)

MS R.A. PEPPER: May it please the Court, I appear on behalf of the Attorney‑General for New South Wales intervening in both matters. (instructed by the Crown Solicitor for the State of New South Wales)

MS S.M. CRENNAN, QC: If the Court pleases, in both matters I appear with MS R.M. DOYLE on behalf of the Attorney‑General for Victoria intervening in support of both respondents. (instructed by the Victorian Government Solicitor)

MR S.J. GAGELER, SC: If the Court pleases, I appear for the Attorney‑General of the Australian Capital Territory intervening in the Fittock matter only. (instructed by the ACT Government Solicitor)

GLEESON CJ: Yes, Mr Street. Thank you for making the arrangements about the time allocations.

MR STREET: If the Court pleases. It is our case, your Honours, that the trial of the applicant Philip Chee Min Ng, upon indictment as required for a serious alleged offence, was not a trial by jury as mandated by section 80 of the Constitution. In substance, a statutorily protected foreman self‑selected by the jury is not a trial by jury of equals, is not a trial by jury of persons randomly selected. In our respectful submission, it is a trial by a statutory foreman together with 11 or 14 other persons.

We have in substance three issues that we seek to develop. Two issues go to conviction and one goes to sentence in support of an application for special leave. The first issue is in substance whether the statutory protection of the foreman in section 48A(4) of the Juries Act 1967 offends the essential features of trial by jury mandated by section 80. The second issue is in substance whether the balloting down of additional jurors under section 48A from 15 to 12 offends the essential features of trial by jury mandated by section 80.

The third issue is whether there was an error of sentencing principle by reason of the disparity in sentence and an alleged penalising of the applicant for not pleading guilty.

GLEESON CJ: Is there not an issue about waiver?

MR STREET: No issue now is raised in relation to the matter of Ng in respect of waiver as I understand it, your Honours. On the facts I understand it to be accepted, the way in which the case was conducted below at trial, waiver does not arise.

GLEESON CJ: Is that right, Mr Bugg?

MR BUGG: Yes, that is correct.

GLEESON CJ: Yes, thank you, Mr Street.

MR STREET: Your Honours, I propose, if convenient, to take the Court briefly through the relevant facts to identify the nature of the trial to which the applicant was subjected. Then I seek to go briefly to the legislation and then I will take the Court to the argument by reference to the judgment of the Court of Appeal. Finally, I will seek to address the issue of sentence.

Your Honours, the applicant has prepared a more fulsome chronology and also a document which it seeks to summarise as “essential features”, which the court officer has been handed and which I seek to have handed up to the Court.

GLEESON CJ: Yes, we already have that I think.

KIRBY J: We have it.

MR STREET: And I hand to my learned friends at the Bar table ‑ I have already given the parties the chronology ‑ I hand out the essential features document and I will come back to the essential features document shortly, but if I can by the reference to the chronology identify for your Honours or see very briefly the sequence in which the events occurred. The arraigning occurred actually on 13 April 2000. The jury was empanelled on 14 April. For the purpose of section 80, we would have said, notwithstanding views that may have been expressed to the contrary, for the purpose of section 80 the trial by jury, we would respectfully submit, commenced on 14 April 2000 when the jury was empanelled.

Your Honours will see from the chronology that the jury retired under a direction to select a foreman and they were told after they had selected the foreman that the foreman was one who now that they have elected him cannot be balloted out, a proposition somewhat surprising in relation to the role of a foreperson given that there is no legislative identification of the foreperson having some special position or being in some way protected as a matter of history in the role played.

GLEESON CJ: I read that in the papers somewhere that the trial judge actually gave some instructions to the jury about the role of the foreman.

MR STREET: He did, your Honour, before the election. I will take your Honours to that if I may, but before I take your Honour the Chief Justice to that may I go first to the application book just to identify some relevant matters in relation to the sequence of events.

As your Honours will appreciate, one of the matters that we seek to develop is the nature of the trial to which my client was subjected when a jury of 15 was empanelled. But can I just take your Honours, first of all, to page 34. This is on 13 April when the panel is present and before the actual empanelment of the jury, but after the arraignment. Your Honours will see the arraignment on page 34 about lines 8 to 12 and your Honours will see that the trial judge identifies at about 18:

The trial in which 15 of you will be empanelled as jurors concerns the following criminal charge –

and his Honour goes on then to identify what they are, categorising the jury as a jury that will be sworn of 15.

If your Honours then go back, if I may take you to page 18, just by way of completeness, your Honours will see that there was actually a plea taken on 28 February, but not in front of the jury panel so that was not the proper arraignment. The proper arraignment, your Honours will see appears, if one goes to page 15 on the left‑hand side, that is the back of page 14, on the second column towards the bottom, 13 April, your Honours will see the reference to the arraignment. If I can take your Honours then to page 11, your Honours will see what occurred on 7 July after his Honour had concluded his directions in relation to a balloting that took place under section 48A which we seek to challenge, and your Honours can see the “Foreman’s name is called first”, and what occurred was pursuant to the statutory provision. The foreman remained as a member of the jury and three others were balloted out.

Your Honours will see, if one goes back to page 13, on the back of page 12 is the sentence both for the applicant and also the person who was, to all intents and purposes, a person who the trial judge found had equally participated to the same extent in terms of culpability with the offence with which the applicant was accused.

Your Honours, if I can then just turn briefly to address the issue in part raised by the Chief Justice to the application book because it does include the matter that was referred to. If I can go first to page 18 – perhaps I should go back, I apologise, your Honours, to page 12 and your Honours will see that at page 12 there is the empanelling of the jury. At this stage a jury of 15 was empanelled and we say for the purpose of section 80, that is the commencement of trial by jury and his Honour refers then to ‑ ‑ ‑

KIRBY J: I am losing you. Where are we now?

MR STREET: I am sorry, your Honour, page 12, line 14 of the supplementary application book. I apologise, your Honours.

KIRBY J: Yes.

MR STREET: In that supplementary application book page 12, line 14, the empanelling of the jury, his Honour refers to “ladies and gentlemen of the jury”, identifies the need to select a foreman. Over the top of the page, the matter raised by your Honour the Chief Justice, prior to the selection of a foreman is identified at page 13 between line 7 to 13, in terms of a warning ‑ a proposition that they are equal ‑ but at that point of time no reference, and we emphasise this, to the legislation that protected ‑ ‑ ‑

GLEESON CJ: But it was made clear to the jurors, was it not ‑ and I might say this is a matter of some practical importance in all jury trials ‑ that the foreman had no special position of authority other than as a, as it were, channel of communication between the judge and the jurors?

MR STREET: Your Honour, in sequence we would say no because the special treatment of the foreman, that is the treatment of him differently, takes place after this warning, which appears on page 13, and as one sees ‑ ‑ ‑

HAYNE J: What, that negates what is said at page 13, does it?

MR STREET: Your Honours, we say it clearly does because it puts the foreman in a different position to that of the other jurors. It treats him differently and that disparity is one which we seek to attack because it gives him a status and potential appearance of power and position different from that of the other jurors. Your Honours will see after the warning that is referred to on page 13 at line 10, the actual retiring to select the foreman appears at line 29 on page 13 and ‑ ‑ ‑

KIRBY J: Mr Wendler did not criticise or note any dissent from what his Honour said nor seek any redirection of the jury on this point. Why does not the matter of waiver arise?

MR STREET: Your Honour, in relation to the issue that ultimately is raised in terms of section 48A(2), there was clear challenge to the proposition that the legislation was valid in permitting the foreman to be treated differently, and protected by that statutory provision. There was argument on it and I will take your Honours to that very briefly.

GLEESON CJ: Mr Wendler actually took the point that the legislation was invalid.

MR STREET: Quite, your Honour, and it was argued ‑ and he took the point on both grounds, both at the time when it came to reducing the jury from 15 to a lesser number. In my respectful submission, that was something that offends section 80, given that the trial, the hearing of the evidence, it being conducted up to that date with a jury of 15. This is not a case wherefore cause or death or illness or some tainting of a juror, someone was discharged.

GLEESON CJ: The trial judge actually gave a ruling on the validity of the legislation?

MR STREET: He did, your Honour, on 8 May, that is so, and so this is not a case where it can be suggested that that arises. Your Honours, I took your Honours to the bottom of the page where on page 13 the jury retired and, your Honours, in the ‑ ‑ ‑

KIRBY J: I am just thinking of page 17:

Is there any exception to anything I said to the jury?
COUNSEL: No, your Honour.

But, anyway, you will take us in due course to where the objection was reserved?

MR STREET: I will, your Honours, but if I can treat it in this way; your Honours will see that on 14 April we have then on page 14 – it is obviously later in the day – the trial judge addressing the foreman and members of the jury, at about line 9. This is after they had obviously chosen a foreman and giving them the standard instruction one might expect in respect of discussing the case with no one but themselves, that is, the 15 of them.

GUMMOW J: How long did this trial go on for?

MR STREET: Almost three months, your Honour, and then again on 14 April, if one goes over to page 15, about line 6, your Honours will see the reference:

it is because it is the 15 of you who has either taken the oath –

in other words, identifying that 15 as the jury, and coming down to line 15:

Mr Foreman and members of the jury –

and coming down to line 22 he then explains the position in relation to the foreman where:

The law which was made by Parliament in this State provides that in such a case before the jury retires to consider its verdict a ballot must be held to reduce the number of jurors to 12. Thus, that is something which will occur at a later stage in this trial. The foreman you have elected can’t be balloted out of the 12 jurors.

Can I just pause there? That takes place on 14 April after the foreman has been selected. The spokesperson on the jury had no special status. He could have been changed at any point of time. There is, in our respectful submission, a real difference and distinction for looking at equal members of a jury between a person who is selected by the jurors themselves to remain a member of the jury and random selection of jurors, and in our respectful submission, that is one of the problems that arises in relation to this legislation.

Your Honours, on page 16 – this is the day when the jury are being balloted down and a second jury, we submit, being created, but one sees on page 16 line 9, the trial judge again, as has obviously been the case throughout the trial, addressing the foreman and members of the jury, and referring to the balloting process at line 12 and then he says at line 19:

If your name comes out, Mr Forman, that card will be put aside and another card will be drawn because you are effectively required to remain on the jury by virtue of the legislation –

and then the jury leaves the precincts of the court and Mr Wendler again raised, on page 17, the constitutional challenge in respect of which there had been argument on 5 May, notice is given to the attorneys and there had been a judgment delivered on 8 May, which is in the application book.

Following that, your Honours will see on page 19, the jury re-enters, at line 6. Line 7:

Mr Foreman and members of the jury we will now proceed with the ballot.

And it is at that point that the balloting, as identified in the respect where the foreman’s name is first drawn out, where I took your Honours to page 11 of the application book, takes place, and then the instruction, line 21:

Could I ask you, Mr Foreman and the jury to now retire to the jury room for a short time, please.

And your Honours will see at page 21, at line 22, swearing of jury keepers and again an instruction to the foreman and members of the jury, who are now 12, and at page 22, line 12, the instruction to the foreman and members of the jury of 12 to retire and consider their verdict. And, at the end of the day, on 7 July, that is after the balloting down and there had obviously been some deliberation before the jury is discharged. At page 23 your Honours will see a reference at line 24:

Up until about 10.15 this morning there were 15 of you. There are now 12 of you, and you 12 are the jury –

So, up to that point of time ‑ ‑ ‑

GLEESON CJ: Under this system, if somebody falls by the wayside during the deliberations, that person cannot be replaced?

MR STREET: That is so.

GUMMOW J: How long were they out?

MR STREET: They were out for approximately three days, your Honour. They came back on Monday, 10 July, and I think the verdict was on 11 July. Your Honours, what we seek to emphasise is that even his Honour identified the difference in jury at this point of retirement and, in our respectful submission, even applying a literalist interpretation of section 80, which I do not embrace as necessarily being the correct canon of interpretation, this was not a trial by a jury; it was a trial by two different juries.

Your Honours, can I just briefly refer to the legislation and, in that regard, it is perhaps convenient to go to the application book, which sets out the Victorian Act sections at page 105.

Your Honours will see the critical provisions are section 14 and 14A at the bottom of page 105 and section 48A. Can I just emphasise for your Honours the significance of section 14(2). What it provides is in its first limb a number consistent with that found in other States, but what it says is:

A criminal inquest in the Supreme Court or the County Court is to be tried by a jury of 12 or, where the court makes an order in accordance with s.14A, by a jury of not more than 15.

In other words, it identifies that there can be a different jury, a jury of up to 15, and although there was an attack on the making of the order because the order was not made before the empanelling, other than by implication ‑ ‑ ‑

GUMMOW J: Why are we looking at section 14 first? What is the relevant section of the Judiciary Act? Section 14, of its own force, cannot apply to this.

MR STREET: Your Honour, I accept that section 14 cannot ‑ ‑ ‑

GUMMOW J: What is the relevant section of the Judiciary Act?

MR STREET: Section 68, in terms of what it may pick up, your Honour, but in relation to section 14 can I emphasise ‑ ‑ ‑

GUMMOW J: Just a minute. Your submission has to be that, what, section 68 is subject to section 80 of the Constitution because of section ‑ ‑ ‑

MR STREET: Expressly, yes, your Honour.

GUMMOW J: All right.

MR STREET: But, your Honour, can I just emphasise, the significance of section 14, unlike legislation in other States ‑ ‑ ‑

GUMMOW J: I am just inviting you start at the beginning, Mr Street. It is usually a good idea, especially in a constitutional case.

MR STREET: Your Honour, I apologise. In relation to sequence, I sought to identify one which I thought would be useful but, your Honours, in relation to section ‑ ‑ ‑

GUMMOW J: Well, I do not find it useful to jump in the middle.

MR STREET: Your Honour, I certainly do seek to focus first on section 80, and section 80 is obviously the provision that is qualified in section 68 in picking up – or least is the relevant provision in relation to what section 68 picks up. In relation to section 68, we would have said that there is no problem with picking up legislation such as in section 14 which provides for a jury of 15. Clearly Brownlee identified that the number in that regard is not of moment. So one can have State legislation that provides for a jury of more than 12, and section 14(2) so provided, and for all intents and purposes, in relation to this stage of proceedings, an order can be taken to have been made requiring a jury of more than 15.

It is in those circumstances that we have a trial that takes place in terms of the hearing of evidence with a jury of 15 and then a balloting down and a second jury to obtain a number of 12, pursuant to the provisions of section 48A.

KIRBY J: Why is it a second jury? Why is it not the same jury only smaller?

MR STREET: Because, your Honour, in essence, the way in which the trial was conducted – and that is why I took your Honours to what happened at the commencement – were that these jurors were empanelled as 15 jurors, not reserve jurors. This is not a case which raises the reserve jury system. This is a case of additional jurors. In our respectful submission, that is of considerable moment when one comes to look at the application of section 80 and the essential features that it requires.

GUMMOW J: Now, do you say a jury of 15 would offend section 80?

MR STREET: Not at all, your Honour, and in light of Brownlee it could not. But what I do say is that if you commence a trial with a jury of 15, in our respectful submission, one cannot under section 80 permit that jury to be discarded and a second jury, in essence, elected by some procedure before retiring for a verdict.

HAYNE J: It is not election; it is ballot, is it not?

MR STREET: And it is a limited ballot which excludes a self‑elected person from that ballot. But, in any event, your Honours, one can see that the critical provision – and your Honour Justice Hayne is quite right, it refers to the ballot procedure in relation to the drawing of cards in section 3(2). Subsection (1) refers to:

a ballot must be held . . . to reduce the number to 12 before the jury retires –

Then, if one comes down to subsection (4) – and it is the first provision that we attack in saying we did not have a trial as mandated by section 80.

GUMMOW J: Your complaint is not that any legislation is invalid, is it?

MR STREET: No, it is not picked up, that is so, your Honour.

GUMMOW J: So your complaint does not seem to say that any federal or State Acts were beyond power. It just is that the process that applied did not answer section 80.

MR STREET: Yes.

GUMMOW J: So section 80 operates directly in that sense?

MR STREET: Yes, and what we say is that this exclusion of the foreperson from the balloting that took place in relation to those 15 is a very different process and creates a different jury from that that had heard the evidence up to the time of retirement and, in our respectful submission, it is one which offends the essential feature which we would say must be found within section 80, that is, that the jurors are persons who are equal as between themselves.

GLEESON CJ: Is it different in any sense from what would be the case if you started off with 12 and one of them died?

MR STREET: It is materially different, in our respectful submission, your Honour, because this is a case where the court has empanelled a jury of 15. It is not a case where one is having additional – at least reserve jurors replace a person who died or was excused for illness or some other cause. This is a case where the jury that was empanelled were 15 jurors to hear the evidence. And the trial, on a literalist construction of section 80, required in relation to trial by jury, must include the hearing of the evidence and retiring to deliberate and deliver a verdict.

GLEESON CJ: If you started off in a long trial with a jury of 12 and two of them died and the numbers got down to 10, and the two who died were dominant personalities, the disappearance of those two could make a very considerable practical impact on what might be called the chemistry of the jury, could it not?

MR STREET: It may, your Honour, but that is a world of difference from what happened in this case and that is why I sought to take your Honours to the way in which the trial was conducted. This was a trial where what occurred up to the stage of retiring was there was a jury treated as a jury of 15, not a jury where there are 12 and three reserve jurors and it was that ‑ ‑ ‑

KIRBY J: What is your concept of reserve jurors, that they sit on the side and only come forward and take their place in the jury if needed, if one dies or is excused?

MR STREET: Your Honour, that would be the most preferable course but we do not have to attack directly the reserve jury system here because it does not arise.

GUMMOW J: That is a preferable system, is it?

MR STREET: Your Honours, to the extent that ‑ ‑ ‑

KIRBY J: You say it leaves the possibility that the jury of 12 is completely uncontaminated, save for the possibility of extraneous circumstances requiring it being invoked?

MR STREET: Yes, that is so.

KIRBY J: So you can get away without using them.

MR STREET: Yes, and a number of the States have ‑ ‑ ‑

HAYNE J: What is the fundamental principle underlying that distinction that you seek to draw?

MR STREET: Your Honour, the impartiality of the jurors and in that regard by keeping the reserve jurors separate in that way which one identifies ‑ ‑ ‑

HAYNE J: But you have begun your submissions by identifying the jury. The jury in this trial were the 15 persons first drawn from the pool. If that is the correct starting point and the right attribution of title, any change in membership is fatal, is it not?

MR STREET: No, your Honour, I cannot advance that and that would ‑ ‑ ‑

HAYNE J: That is inconsistent with Brownlee and what is different between the present case and what was held in Brownlee?

MR STREET: What is materially different is there one is talking about the discharge of a juror for cause.

HAYNE J: That is the occasion, but if the starting proposition is, “I can identify the jury in this case as those identified 15 who were drawn from the pool”, how do you distinguish that from what was held in Brownlee?

MR STREET: Your Honour, it is materially different from what happened in Brownlee because of the way in which those additional jurors are treated. It is materially different in relation to a reserve system of jurors. These three additional people were not isolated; they formed part of the number that were then the subject of this balloting down. In our respectful submission, that is in marked contradistinction to a position where a juror suffers from some particular ailment or the like.

If I could progress, your Honours, in relation to the issue, given the time constraints, can I take your Honours just briefly to outline what the position in the different States is. There is a reserve jury system in the Northern Territory, Western Australia, Tasmania and Queensland. It is only Victoria, South Australia and the ACT that has additional jurors who become part of the jury but it is only Victoria that has language of the kind found in section 14 where one can have a jury of more than 12. South Australia has a provision almost similar where it says, “Subject to this Act, the jury shall consist of 12”, but Victoria alone in their Juries Act 1967 had a procedure for a jury of more than 12 provided for in section 14. It is only South Australia and Victoria that had a provision protecting the foreperson.

The position in Victoria has remained the same, despite the introduction of their Juries Act 2000. In their Juries Act 2000 section 14 is to be found in section 22(2) and section 23 and the old section 48A, and in particular subsection (4), is to be found in section 48(2) of the 2000 Act.

KIRBY J: What is section 48A now?

MR STREET: It is now 48(2) of the 2000 Act.

KIRBY J: I have the 2000 Act but it runs out at section 24. Anyway, you can perhaps have that supplied later on.

MR STREET: There was an amendment in 2000 in South Australia. I will check, your Honour. I had the Act and section 48 ‑ ‑ ‑

GLEESON CJ: Just supplement it at lunchtime.

MR STREET: Your Honours, it is section 48(2). I do not know what statute your Honour Justice Kirby has. It is Act No 53 of 2000.

KIRBY J: Yes, I have the print but my copy runs out at section 24.

MR STREET: I apologise, your Honour. Can I take your Honours then to page 113 in the application book in relation to the reasoning of the Court of Appeal. Could I just emphasise that we do say that this is legislation quite different to that that was considered in Ah Poi Wai, which was obviously the reserve jury system. At page 113 at about line 10 your Honours will see a passage that starts:

In our view the process by ballot which reduced their number from 15 to 12 (itself a random process) –

which we say, in our respectful submission, is not so –

did not diminish the randomness, nor the representativeness of the remaining 12 jurors who deliberated.

In our respectful submission, that ignores the way in which the 12 were selected, ignores the isolation of the foreman and ignores the fact that the foreman was chosen by the jury themselves. The Court of Appeal continues:

The randomness of the jury which s.80 of the Constitution contemplates is randomness at the point of creation of the panel of jurors from whom the ultimate jury is chosen.
Your Honours, in our respectful submission, that cannot be correct. The selection of the panel may go to ensure that the jurors are representative of the wider community but it does not address the randomness of the selection of the jurors. The two are, in our respectful submission, clearly distinct. To suggest that section 80 is concerned with the point of creation of the panel ignores its focus upon the trial. It is the trial in respect of which the jurors who participate in that trial must be randomly selected and participate in relation to that trial in hearing the evidence and delivering the verdict. By having a specially selected foreman selected by the jury, one removes that randomness. By having a position where the foreman is protected from a balloting process, one does not have equality between those jurors.

KIRBY J: In your client’s case the foreman’s name did not come out of the ‑ ‑ ‑

MR STREET: No, I apologise, your Honour. I took the Court to that earlier. In my client’s case it came out.

KIRBY J: Yes, I know that, but what I am saying is it does not affect the constitution of the jury in your client’s case, does it?

MR STREET: Yes, it does, your Honour. In my client’s case the first card drawn ‑ ‑ ‑

KIRBY J: I see.

MR STREET: The very first card drawn and, your Honour, that was at page 11, I think that I took your Honours to, in the first column of 7 July, the first card drawn was the foreman, so it directly affected my client’s trial. Your Honours, the Court of Appeal, in our respectful submission, treated section 80 as if it was concerned with the creation of a panel rather than the trial itself and, in our respectful submission, it is not the panel who delivers any verdict, it is the persons who are empanelled on the jury. To have a jury in relation to which at one stage, that is the stage for retirement and deliberation of verdict, a juror is selected by the jury themselves is not a random selection.

Can I give your Honours an example of the potential problem it might cause? The selection of that foreman may be by a majority within the jury, a majority who are, perhaps, of one particular mindset and it means that that mindset has the opportunity to entrench their foreperson or foreman in relation to the panel that will ultimately deliberate on the verdict. Section 80 does not contemplate two different trials by jury.

GUMMOW J: I understand that, but none of three factors seem to be answering what Justice Hayne is asking?

MR STREET: Well, your Honour, I apologise for not answering directly. That is the substance of the answer I would seek to give. If I am able to give a better answer, I will contemplate it, your Honour. In relation to the case, we respectfully submit, that at 114, line 7, the suggestion that the foreperson was in some way equal, in our respectful submission, just fails to recognise the disparity of treatment and the fact that he would have the appearance inevitably of being in a special position or special status. If one treated this analogy where one has perhaps a football team and all are to be exposed to being dropped except the captain, and the captain, because he is simply the captain, if his performance falls below standard, is excluded from being dropped, one can immediately perceive the unfairness and the distinction that would be perceived by the rest of his team.

If at the Bar table there was to be a lot drawn in respect of who might be roasted on a barbecue, and in relation to that lot Mr Bennett were to be excluded, it would be unfair in respect of those at the Bar table. There is a distinction and a different treatment and that disparity and unequal treatment, in our respectful submission, is one in respect of which the foreperson is not unequal for the purpose of an inviolable feature of section 80, nor has he been randomly chosen for the purpose of that inviolable feature of randomness in section 80.

Your Honour, in our respectful submission, if one uses the trilogy of history, principle and authority as a relevant criteria for determining whether a foreperson can be statutorily protected in this way, with respect, it offends those three criteria. If applying a test of contemporary eyes in the construction of the Constitution, we would say it offends contemporary eyes as a matter of interpretation of the Constitution to have a trial by a statutory foreman and other persons. If one applies a literalist interpretation, it was a trial by a statutory protected foreperson and a jury and, in our respectful submission, for that reason the provisions of section 48A(4) had no application to my client who was denied a trial in accordance with that mandate by section 80. Your Honour, we advance ‑ ‑ ‑

KIRBY J: You might be on stronger ground on a literalist view adapted from what has happened in 1900, but you are on pretty weak ground, are not you, on a contemporary eye’s view, because in 1900 they did not have three months’ trials. They did not have the problem. We now have the problem and this is one of the two solutions which the parliaments of Australia have adopted to meet the problem.

MR STREET: Your Honour, construing the Constitution through contemporary eyes cannot be governed by legislation passed by States. It must be one of construction. There has to be a proper canon of construction applied to section 80 on its face alone, irrespective of what might be contemporary standards being taken into account. Applying a correct canon of construction, we would respectfully submit, requires applying what was said Justice Deane in Kingswell 159 CLR 264 at 299, and what was said by Justice Gaudron in Cheng 203 CLR 248 at 278. Your Honour, even if one does apply a contemporary eye’s view, there is the world of difference between additional jurors and a reserve jury system.

This case is one where the legislation provided for additional jurors to serve on the jury, to hear the evidence, to interact as if they were the jury, and then permits a balloting down to 12, what would prevent a balloting down to 10. In our respectful submission, when one comes to the second limb of our case which is the reduction of numbers, that impacts not only on the principle of impartiality but also on the principle of unanimity. To permit a balloting down process just before the verdict in relation to a panel means that one can change the constitution of that jury, and it means it is a second jury that goes to retire to deliberate upon the verdict, and quite distinct from the position of jurors replaced through illness or through death and a reserve juror has a different function because he knows or she knows they may never participate in the verdict whereas these jurors, up until this time of retiring, were the ones who heard the evidence and then, in our respectful submission, a fresh jury was created and there would be nothing if that is not protected by section 80 to prevent a reduction to eight jurors at the time of retiring to deliberate upon a verdict. Your Honours, can I then turn very briefly ‑ ‑ ‑

KIRBY J: In the reserve jury States, how do they bring – select out of the reserve jurors the one who will take the place of a deceased juror? Is there a ballot?

MR STREET: Your Honour, they are nearly all by ballot. They are either by ballot or in sequence in which they were called, in respect of those three reserved jurors and so, to that extent again, contemporary standards would not support this type of legislation.

Your Honours, having addressed that matter can I turn briefly to the sentence issue. On the sentence issue can I take your Honours to page 175 in the judgment and your Honours will see at line 11 the Court of Appeal picks up the passage which is the kernel of our argument, namely that the applicant was in essence penalised for pleading not guilty. As a matter of parity there was no difference in the criminality or culpability of the applicant and Mr Lee and the relevant passages, if your Honours look at 72.12 and 72. ‑ ‑ ‑

GUMMOW J: You do not have leave in respect of this.

MR STREET: Quite, your Honour.

GLEESON CJ: Or in respect of anything, do you?

MR STREET: I accept the former, that the Chief Justice said. In relation to page 175, can I just identify that the first sentence at line 12 says:

“There is patently no remorse demonstrated by you, just as there is no acknowledgment of any wrongdoing by you in respect of this offence.

Now, where he then goes further than a mere reference to the absence of any mitigating factor, is the very next sentence:

I make these findings and observations as factors influencing my consideration of the need for deterrence of you personally ‑ ‑ ‑

GUMMOW J: Where did the Court of Appeal go wrong?

MR STREET: Court of Appeal, your Honour.

GUMMOW J: Yes, you are seeking special leave to appeal from them not the trial judge; where did they go wrong?

MR STREET: They went wrong, your Honour, over at page 176. They left out a second sentence and from line 10 to line 15 you will see they have picked up the first sentence, omitted the second sentence which plainly took the demonstrated no remorse and no acknowledgment of wrongdoing; the acknowledgment of wrongdoing was linked to the sentence being imposed; the need for deterrence of you. The need for deterrence of you is a guise for penalising the accused for not pleading guilty ‑ ‑ ‑

HAYNE J: Is not the reading of that last sentence in paragraph 150 a recitation of what was put to the court and its rejection.

MR STREET: But, your Honour ‑ ‑ ‑

HAYNE J: Well, is it?

MR STREET: ‑ ‑ ‑at line 15 on page 176, your Honour, I accept that the court is rejecting the proposition that there is an increase in ‑ ‑ ‑

HAYNE J: Lines 8 to 15, is not the court doing two things, reciting what was put to it and saying that is not right?

MR STREET: Your Honour, it is purporting to reject the argument advanced, I accept, but what it does is it omits, and omits fundamentally, an analysis of what was said in the second sentence linking it back to the first. This is not a case like Siganto where there was a mere reference to the absence of mitigation in passing. Here there was a linking of the failure to acknowledge wrongdoing with the need for deterrence of you. That is to punish you, that is, I am going to sentence you ‑ ‑ ‑

KIRBY J: Mr Street, this is a matter that has been raised by the Court on a number of occasions. Justice McHugh did it recently. I think it was in Cameron.

MR STREET: It was.

KIRBY J: It is an important issue. The question in my mind is whether this would be a suitable vehicle and there is the problem Justice Hayne has drawn attention to as to how it was presented in the court below. You have other fish to fry and I must say that I think, given the way it has been expressed in the Court of Appeal’s judgment, it would be a great pity if this matter went off on that sort of ground.

MR STREET: I understand that, your Honour, but can I just identify that we do say that it is a matter of importance that one cannot, under the guise of specific deterrent or under the guise of rehabilitation, impose a greater sentence, because you pleaded not guilty, and it is our submission that when one reads what has been said, the failure to acknowledge wrongdoing, under the guise of specific deterrence and further on there is a passage, I think it is, 83.30, a reference to “rehabilitation”, under the guise of those two heads my client had his sentence, in our respectful submission, increased and, to

that extent, that would be contrary to principle; four years cannot otherwise be explained in the disparity of sentence.

McHUGH J: Why? It hardly does justice to the trial judge’s judgment in respect of your client. He thought your client was an out‑and‑out liar who would say anything and do anything and who his Honour described as a cold manipulator of facts. Your client was lucky to get off a light sentence. That was what the judge was considering. The other co‑accused pleaded guilty.

MR STREET: But, your Honour, it is one where this linking of the failure to acknowledge wrongdoing with the specific deterrent of you does directly throw up the problem of whether he has been penalised for not pleading guilty.

McHUGH J: But deterrence is a relevant factor to be taken into account.

MR STREET: Undoubtedly, your Honour, but not in the context and link with a failure to acknowledge wrongdoing, and it is the combination of the two and it is the danger of the two that creates the question of importance in that regard. If the Court pleases.

GLEESON CJ: Thank you, Mr Street. Yes, Mr Wendler.

MR WENDLER: If the Court pleases, in broad terms, in the application of Fittock, this application raises essentially two matters of constitutional importance, in my respectful submission. They can be identified in the following questions. First, whether section 80 of the Constitution applies to trials on indictment in the Territories of Australia. If the answer to that question is in the affirmative, then the next question that necessarily arises is as follows: whether any of the imperatives suggested to exist in section 80 of the Constitution have been violated in the circumstances of the applicant’s trial in the Supreme Court of the Northern Territory. If the answer to both of those questions is in the affirmative, then the result would be that the applicant has not had a trial according to law because he has not had a trial by jury within the meaning of section 80 of the Constitution and his conviction or convictions must be set aside. Can I move back to the first question, or return to it ‑ ‑ ‑

GUMMOW J: Now, is it to be approached on the basis that the Supreme Court of the Northern Territory is exercising federal jurisdiction pursuant to the Customs Act?

MR WENDLER: I approach it on that basis.

GUMMOW J: Yes.

MR WENDLER: I have to because I am about to grab the Bernasconi ‑ ‑ ‑

GUMMOW J: So therefore 68(2) of the Judiciary Act would apply in the Territory, would it not?

MR WENDLER: That is my submission, yes.

GUMMOW J: There is no other special provision, is there, of the Judiciary Act about the Northern Territory?

MR WENDLER: I think section 79 from memory is also of relevance.

KIRBY J: That is of the Judiciary Act of the Federal Parliament, section 79, is that what you are referring to?

GUMMOW J: Yes.

MR WENDLER: I thought it was 79.

GUMMOW J: I just need to know what the starting point is, you see ‑ ‑ ‑

KIRBY J: No one will start with federal jurisdiction.

MR WENDLER: I am sorry, your Honours. I missed that last bit.

GUMMOW J: I just need to know where we are starting from.

MR WENDLER: Yes. The starting point, in my respectful submission, is the question whether ‑ ‑ ‑

GUMMOW J: The starting point is what statutes apply (a) of the Commonwealth, (b) of the Territory and (c) what was the impact upon that of the Constitution.

MR WENDLER: The statute that immediately applies are sections 162 and 165 of the Northern Territory Criminal Code.

GUMMOW J: No.

MR WENDLER: Well, they were the offences with which the applicant was charged. The question is whether those offences are offences against any law of the Commonwealth.

GUMMOW J: That is right.

MR WENDLER: Right. Now, the identification from there ‑ ‑ ‑

GUMMOW J: So there is no operation of the Judiciary Act section?

MR WENDLER: That is right, no operation at all. I wish it did operate, but they would have to remove ‑ ‑ ‑

GUMMOW J: No federal jurisdiction?

MR WENDLER: No. You would have to redefine the meaning of “federal jurisdiction” if the Judiciary Act were to apply. We would have to redefine the meaning of “Commonwealth judicial power” in section 71 if the Judiciary Act were to apply.

GUMMOW J: Anyhow, you do not try to.

MR WENDLER: I am about to confront the Bernasconi problem, which will immediately address the concerns that your Honour Justice Gummow has in relation to the threshold issues of this application. Can I identify immediately then, and handle the question, was the applicant in the circumstances tried for an offence or offences against the law of the Commonwealth, and what is this law of the Commonwealth in the circumstances of this application? In our submission, the law of the Commonwealth was the Criminal Code. The offences were murder and attempted murder.

GUMMOW J: The Criminal Code of the Northern Territory.

MR WENDLER: The Criminal Code of the Northern Territory, in my respectful submission, is a piece of what might vehemently be described as “delegated legislation” and the force of that legislation comes from the authority given by the Parliament of the Commonwealth. It is by section 122 of the Constitution.

GUMMOW J: Wait a minute, is the Criminal Code enacted by the Assembly after self‑government?

MR WENDLER: Pursuant to section 6 of the Northern Territory (Self‑Government) Act ‑ ‑ ‑

GUMMOW J: So it is not a case of a law applying under the previous system carried into the new system.

MR WENDLER: No, it is a law which was enacted pursuant to the authority, in my respectful submission, given to the Assembly via section 122 of the Constitution. The submission is this, that that law, that is the Criminal Code, is nothing more or less than a piece of delegated legislation. It is no different ‑ ‑ ‑

KIRBY J: You do not have to go that far, I mean delegated legislation has nuances of inferiority. This is, after all, an Act of an elected Australian legislature and there is a whole lot of doctrine about what happens once a form of self‑government is granted. But, its authority must ultimately be traced back to the federal Constitution.

MR WENDLER: That is right.

KIRBY J: It is a Territory. It is not a hybrid, it is not a State, it is a territory.

MR WENDLER: And a practical example of this, of course, was some years ago when I think the Territory Assembly passed what was described as the Rights of the Terminally Ill Act. It absolved from criminal and civil responsibility persons who would assist in good faith in suicide, but what happened to that? The Commonwealth, admittedly, passed laws to repeal it, so that was the end of that.

In short, this legislature that has been created by a section 122 law and empowered with authority to make laws, owes its legal existence entirely to section 122, or the power rather given to the Parliament of the Commonwealth, in section 122 of the Constitution, read always with section 111.

KIRBY J: But was not this issue debated as recently as Eastman and I can count.

MR WENDLER: It was debated in Capital Duplicators, but in the context of section 90 of the Constitution. The Court in Capital Duplicators, or certainly the majority of the Court in Capital Duplicators, when handling the nature of the legal authority given to the Assembly in that case of the Territory Parliament held that its enactments were not tantamount to Commonwealth enactments, but that was in the context of section 90 and it would be surprising if that decision did not resolve itself in the way it did having regard to that part of the Constitution in which it was dealing.

As I set out in the outline of contention the Capital Duplicators problem, if I can use that broad expression, appears to be an impediment upon the initial threshold question, whether or not the Criminal Code Act is a law of the Commonwealth. In my respectful submission, it is a law of the Commonwealth in the same way as any other law is passed by the Commonwealth or enacted pursuant to any head of power given to the Parliament of the Commonwealth by the Constitution.

KIRBY J: But you have not sought remedies under the constitutional writs here against any officer of the Commonwealth.

MR WENDLER: No.

KIRBY J: You have come up the appellate chain. You are seeking special leave to appeal.

MR WENDLER: That is right.

KIRBY J: And this Court has recently considered the issue that you want to argue and the issue went against the principle that you are arguing. I favour that you are pressing on the Court, but it is a special leave matter. Why would the Court reopen the matter so soon after it has been considered by the Court?

MR WENDLER: Your Honours, the principle that your Honour alludes to is a principle which was fashioned first in relation to – and I am referring now to Capital Duplicators - it is section 90 of the Constitution, a section of the Constitution, a purpose of which is essentially to maintain and ensure that an Australia common market will exist forever as it were in the life of the Federation. But ultimately what I am dealing with here is section 80 of the Constitution.

GUMMOW J: I know, and can we look at the second limb of section 80?

MR WENDLER: Yes.

GUMMOW J: Now, this:

offence was not committed within any State –

Obviously not.

MR WENDLER: No, but if your Honour reads the rest of the words in the way that Justice Evatt did in Ffrost v Stevenson the implication there clearly is that it does have an application outside the States.

GUMMOW J:

shall be held at such place or places as the Parliament prescribes.

Now, that means Parliament of the Commonwealth?

MR WENDLER: That is right.

GUMMOW J: Has the Parliament of the Commonwealth prescribed here?

MR WENDLER: No.

GUMMOW J: Why not? Because there was no offence against the law of the Commonwealth would be one answer.

MR WENDLER: We get back to the argument in relation to the definition of “law of the Commonwealth”.

GUMMOW J: I am just asking you to read section 80 as a whole. That might be a good idea.

MR WENDLER: Those words implicitly, in my respectful submission, will support the argument that section 80 of the Constitution has wider application than ‑ ‑ ‑

GUMMOW J: You do not say that this trial miscarried because the Parliament of the Commonwealth could not prescribe the place, do you?

MR WENDLER: No, I say this trial miscarried because he did not have trial by jury within the meaning of section 80 of the Constitution and section 80 applied to the trial in the ‑ ‑ ‑

GUMMOW J: The first limb of section 80 applied.

MR WENDLER: That is right, yes, the first limb of section 80 applied. So that, what I have just been handling immediately ‑ ‑ ‑

KIRBY J: You have to say that section 80 covers the whole universe. It is either in a State, where it has to take place in the State or is in a State in such “place or places as the Parliament prescribes” and that that, therefore, in the case of Territories has to contemplate it and has to apply to the place which under a law traced back to a law of the Parliament the trial is to take place.

MR WENDLER: Otherwise you continue to enter this controversy of the notion of two separate sovereign lawmaking identities, one created by virtue of the power given to the Parliament under section 122 and then another one created by virtue of the power given to the Parliament in section 51. In other words, there has been and continues to be this controversy and there has been a significant amount of treatment by this Court in relation to this bifurcation of judicial power; one federal system judicial power, another territory system judicial power.

Now, section 80, in my respectful submission, just because it happens to be in Chapter III of the Constitution is by that very mere fact of no legal consequence as the Chief Justice pointed out, I think, in Spratt. We should not say you look at Chapter III and go, “Well, it’s in Chapter III of the Constitution. It must have something to do with the judicial power of the Commonwealth in the federal system sense and nothing to do with anything else, or any other power which is given to the Parliament of the Commonwealth by the Constitution.”

Your Honours, I want to move now to the situation concerning the application of the propositions of law that were created by R v Bernasconi and, in effect, can I indicate to your Honours all I am doing at the moment is putting the argument that Sir William Irvine, who acted for Bernasconi and who was later the Chief Justice of Victoria ‑ all I am doing is putting the argument that he put and should have succeeded almost 90 years ago.

Your Honours, the passage that I am about to read in (1915) 19 CLR 335 are perhaps the most controversial words written in Australian constitutional jurisprudence and they have created - I think it was Justice Windeyer who said it - as many problems that have been solved by the statement and that is a statement by the Chief Justice at page 635 which reads as follows:

In my judgment, Chapter III is limited in its application to the exercise of the judicial power of the Commonwealth in respect of those functions of government as to which it stands in the place of the States, and has no application to territories. Sec.80, therefore, relates ‑ ‑ ‑

GUMMOW J: One can disagree with that without agreeing with you. That is your problem.

MR WENDLER: No, it is not, with great respect.

GUMMOW J: One can disagree with that and say that section 80 still does not apply in this case because this is a different sort of Territory. It is making its own laws now, not by ordinance.

MR WENDLER: Let us raise a practical example on your Honour’s analysis.

GUMMOW J: Bernasconi might be really difficult for, I do not know, Christmas Island maybe, but this is not Christmas Island.

MR WENDLER: Could the Legislative Assembly of the Northern Territory pass a law abolishing trial by jury completely?

GUMMOW J: They have not tried to do so yet.

MR WENDLER: No, but theoretically its courts do not exercise federal jurisdiction. They are not federal courts for the purpose of Chapter III of the Constitution. What is the impediment then for the Assembly if it is an independent authority omnipotent within its ambit of authority? What is the impediment in law for such a law not to be passed? There is none of course, unless Chapter III of the Constitution - or unless a constitutional guarantee such as section 80 were to apply universally. Why could not the Territory pass a law and say, “Trial for indictable offences in the Territory from now on will be by a magistrate sitting with four retired police officers nominated by the administrator from time to time”?

KIRBY J: That argument would have much greater force if section 80 were the great protection of trial by jury that you seem to assert but, on the construction adopted by this Court, they could do that anyway and the States could do it.

MR WENDLER: They may not be able to because there may be some tension perceived.

GUMMOW J: The answer is: there may be a Kable problem, Mr Wendler.

MR WENDLER: That is right.

GUMMOW J: And it has been said subsequently that the reason in Kable would apply in the Territories, so it is sufficient unto the day to sort that question out.

MR WENDLER: Your Honour calls it a Kable problem. I call it a Kable protection.

GUMMOW J: Kable problem for the legislature and ‑ ‑ ‑

MR WENDLER: Right, and a protection to the citizens.

GUMMOW J: We are not getting anywhere by trading that sort of remark.

MR WENDLER: I was just trying to develop the example, with respect. I was not being disrespectful.

KIRBY J: They could just redefine the indictable offences and walk right out of section 80. That is what the Court has held.

MR WENDLER: There have been significant statements by this Court ‑ ‑ ‑

GUMMOW J: It now is settled that the Territory courts exercise significant measure of federal jurisdiction.

MR WENDLER: Quite, and ‑ ‑ ‑

GUMMOW J: And that entails Kable. That can all be worked out at some future date when Mr Pauling’s client engages in this dreadful ‑ ‑ ‑

MR WENDLER: In my respectful submission, this may well be a vehicle to do such a thing. The redefinition of federal jurisdiction and its consequent redefinition, as it were, of Commonwealth judicial power. We need to unlearn the definition of “Commonwealth judicial power” before it can move ahead.

The submission, your Honours, is this, that section 80 of the Constitution applied to the trial of the applicant. The statement by the Chief Justice in Bernasconi, the wider statement, has been criticised regularly in this Court but that still leaves remaining what might be described as the limited statement in that passage, namely that section 80 does not apply to the Territories or to laws enacted by the Territories, whether those laws have been enacted by the Parliament of the Commonwealth or a subordinate legislature created by the Parliament of the Commonwealth pursuant to, in this case, section 122 of the Constitution.

Section 80 of the Constitution, in my respectful submission, is not a section which threatens the federal system. It is not a section of the kind, for instance, that section 90 and those sections allied to section 90 in section 51, sections which are geared or focused to maintaining the federal system in relation to taxation and uniform duties of customs and excise. It is a section, in my respectful submission, that should be construed as having broad application to the nation. The Territories are not disjoined; they are not satellites of the Commonwealth. In the years of the federal movement it was anticipated that in time the Commonwealth would acquire in some way other Territories and at the very commencement of the Constitution, the preamble to the Constitution, contemplates that in the second paragraph.

It is my respectful submission that as a matter of construction section 80 of the Constitution would apply to the trial of the applicant in the Territory, and if it did, those features or inviolable mandated essential requirements apply to that trial.

GUMMOW J: Another reason for refusing leave to reopen Bernasconi is that it would produce a futility because even if section 80 did apply in this case, there would be no violation of it.

MR WENDLER: In my respectful submission, there was a violation of it and it occurred in a number of ways. The system in the Territory in relation to reserve jurors at the time of the trial of the applicant was such that there was power to empanel under the Territory Juries Act up to three jurors and two extra jurors were in fact empanelled. One was discharged for cause before the trial commenced and the other remained throughout the trial and was discharged just prior to the jury retiring to consider their verdict. What is of fundamental importance ‑ ‑ ‑

KIRBY J: You are on your second issue now?

MR WENDLER: Yes.

KIRBY J: There is no dispute about the facts.

MR WENDLER: There is no dispute about the facts, no. What is important insofar as this application is concerned in relation to the construction of section 80 is the question: what does the word “jury” mean for the purpose of section 80? Well, it must mean all those persons indifferent and empanelled in the trial of any particular accused, and in whom the accused is put in charge and who are capable of participating in the verdict.

KIRBY J: So you would forbid any form of reserve or supplementary jury. You say that it is fixed as 12 and 12 it is. People can die or get sick or excused - nothing you can do?

MR WENDLER: No, the jury is that body of persons empanelled in the trial of an accused in whose charge the accused is placed.

KIRBY J: Yes, I know all this historical stuff, but does that mean you could have a jury of 15?

MR WENDLER: You could have a jury of 20 and it would not be constitutionally impermissible. Brownlee established that the number is of no constitutional importance. The minimum number may be of constitutional importance, because it would violate the feature of representativeness. The minimum can assume constitutional importance. There is no doubt about that, but the number is of no constitutional importance.

If I could just give your Honours an example in criminal practice. A jury of reserved jurors is empanelled, the accused is put in charge of that jury, and the reason the accused is put in charge of that jury is because he joins general issue. He says, “Not guilty.” The minute he or she says, “Not guilty”, that is a signal that that person has put himself on his country and a jury is empanelled. Now, at the close of the prosecution case – and this happens regularly – juries can acquit either by direction, either by the judge being invited to give what is sometimes described as a Prasad direction or, as has happened in my experience, a note will come back from the foreman to say, “We don’t want to hear any more of this. We want to acquit this person.” I do not get it often but I have had it. But what is the jury that acquits that person? There is no ballot, there is no differentiation of reserved jurors. The judge does not say, “Well, look, I’m going to discharge the reserved jurors and the only jury that can acquit this person are the remaining jurors”.

KIRBY J: Yes, but we have a new problem, Mr Wendler. We have had cases on this and we know that in the old days jurors were locked up in the dome of the Supreme Court because trials were very short. They were capital offences. People were hanged if they were convicted, and they went on one day, two days, and now they are months. How long was your trial? How long was the trial in this case?

MR WENDLER: I think about seven days, this particular trial, the Territory trial, but the number is of no constitutional importance. The submission we make here ‑ ‑ ‑

KIRBY J: This is the reason why the States and Territories have enacted this law and the question is: does the Constitution, speaking to 2000 or 2003, forbid it?

MR WENDLER: When I say it is of no constitutional importance, its only importance is to preserve representativeness. That is why extras are empanelled because otherwise there is a potential in a long trial for the number to decrease to such a state where immediately there is a question about representativeness, or an issue of representativeness. That is the only reason that – and to preserve the statutory formula in all the States and
Territories that all criminal trial commence, initially, with 12 persons.

KIRBY J: But even in the United States where they hold much more firmly to originalist views, they have systems of replacement jurors.

MR WENDLER: Yes, I appreciate that but their system of replacement protects the appearance of impartiality because, of course, that expression is used in the Sixth Amendment of the Constitution. In the circumstances of this case all we say is that of the 13 persons who are eligible and capable of going to verdict should have been allowed to do so and to the extent that one was balloted off, that has violated, in my respectful submission, the features of secrecy of the deliberative process and impartiality.

Now, no one would, hopefully, disagree that they are inviolable features in the notion of trial by jury in section 80, impartiality, the appearance and fact of it and, of course, the secrecy of the deliberative process I think it was your Honour Justice Hayne proposed a question to Mr Street a moment ago. The question was along the lines that, “Well, what is the difference of a person who is not a reserve juror but a juror who is part of the jury and is a powerful personality and communicates, how is that any different from reserve jurors who are part of the jury?”

The big difference is this that the persons who are dismissed or discharged for cause have a responsibility in the verdict. Reserve jurors may not have any responsibility in relation to the verdict. So, if you are responsible for the verdict or had that responsibility in relation to the verdict you are entitled to influence the outcome of the verdict. That is the big difference. In other words, influence in relation to the jury is the influence that you are entitled to have if you are a person that will be ultimately responsible for the verdict.

The problem with reserve jurors is that they are contingent or titular jurors and rely on some event taking place before they become part of the jury. It is our respectful submission that of the 13 jurors that remained, all of those jurors were the jury for the purposes of section 80 of the Constitution. To have discharged one of those jurors, without cause, has created a majority verdict which you cannot have in a federal trials. What has happened, essentially, is a de facto majority verdict because you have discharged the person, not because of any impediment or cause but discharged that person for no other reason that he is a titular juror in circumstances when the accused was put in charge of that particular jury.

So, if you are put in charge of the jury for the purpose of section 80 of the Constitution it is that jury that eventually goes to verdict. The alternative submission we make which necessarily arises out of the submissions I have made, if the 13 were not the jury to go to verdict then the question is, “Either the jurors are for the Constitution or they are not”. If they are not jurors for the purpose of the Constitution they should not be allowed to influence it.

In the United States the Federal Rules are structured in such a way that none of the jury, including alternates, can discuss the case until retirement for verdict.

KIRBY J: They are so instructed.

MR WENDLER: Yes, they are instructed but the federal rule provides that. Rule 24(c) specifically provides that there be no discussion in relation to ‑ ‑ ‑

KIRBY J: It has a realm of Alice in Wonderland about it to think that they are in there sitting there talking about baseball the whole time.

GLEESON CJ: Especially if they are sequestered.

MR WENDLER: The fact is no one knows what jurors talk about.

GUMMOW J: They do in the United States. There is endless literature ‑ ‑ ‑

HAYNE J: And endless interviews ‑ ‑ ‑

GUMMOW J: Yes.

MR WENDLER: The reason for that system is to protect of course the idea of impartiality. To the extent that the reserve juror systems in Australia do not protect that, in my respectful submission, there is no trial by jury within the meaning of section 80, because impartiality in fact in appearance must be an essential feature of trial by jury. The jury are obliged to be indifferent to everything except the evidence. Your Honours, I think I have run out of time anyway, but your Honours ‑ ‑ ‑

KIRBY J: Could I just ask you on Brownlee. Are there dicta in Brownlee that you can have a jury of greater than 12?

MR WENDLER: No.

KIRBY J: The issue did not arise but ‑ ‑ ‑

MR WENDLER: There is nothing in the ‑ ‑ ‑

KIRBY J: At least on one view the English jury was always 12 allegedly because of the apostles but I do not remember the court ever having said, “Well, you can have a jury of more than 12 as a jury”.

MR WENDLER: No, they certainly did not.

KIRBY J: The legislation seems to be positive on the fact that you have to get back in the end to 12.

MR WENDLER: Yes, but Brownlee ultimately stands for the proposition that there is no constitutional importance in relation to the number as such. As your Honours remember the facts in Brownlee, the question was there whether the trial was contrary to section 80 because the trial judge had discharged, during the course of the trial, a number of jurors and there was a constitutional right to 12 fixed in the Constitution, and you would not have a constitutionally valid trial unless you started with 12 and ended up with 12.

KIRBY J: That is quite a different problem to the problem presented to us today. That is 12 down. The question here is 12 up.

MR WENDLER: Yes. It is a different problem but it is not a problem because, as I have indicated to your Honours, there is just no constitutional importance, for the purpose of section 80, of the number. You can empanel 15, 20, 30. What difference would it make? Why identify the jurors ‑ ‑ ‑

GLEESON CJ: It would make a difference if they have to be unanimous, that is the ‑ ‑ ‑

MR WENDLER: Well, that may be a difference, but I am not sure necessarily whether an increase in number would mean more hung juries, if that was the insinuation that your Honour the Chief Justice was ‑ ‑ ‑

GLEESON CJ: No, I think I can understand the attraction to you of a jury of 30.

MR WENDLER: Today is the 13^th, is it not?

KIRBY J: But at least on one view, if the search is for an essential feature of jury trial, an essential feature historically and right up to the moment has been 12 or, in certain exceptional cases, fewer but it has never been more than 12 as far as I know.

MR WENDLER: No.

KIRBY J: In our system at least.

MR WENDLER: No, but I am not, as it were, making a ‑ ‑ ‑

KIRBY J: Except in civil trials, they have had smaller juries, but in criminal trials on indictment it has always been 12.

MR WENDLER: Yes. I am not making a submission that there should be, as it were, a fixed number that ‑ ‑ ‑

McHUGH J: I am not sure that is right. I think you may have had a jury of 24 in certain cases where women were tried for murder of infants. I am not sure about that.

KIRBY J: King Charles I, of course, was put on his country before a jury which was of many more than 12, and I have an idea that in the Queen’s case there were ‑ ‑ ‑

MR WENDLER: In Roman law of course, it is well known that juries were often in the hundreds, or at least 100 or more. So there was historical ‑ yes, if the Court pleases.

GLEESON CJ: Yes, thank you, Mr Wendler. In relation to the matter of Ng and that aspect of the application that is concerned with the sentencing point, we do not need to hear further argument. The Court is of the view that there are insufficient prospects of success on that point to warrant a grant of special leave to appeal in relation to it and, to that extent, the application is dismissed. Yes.

MR PAULING: Thank you, your Honours. Can I say, firstly, in relation to the number of jurors, that in Bernasconi’s Case itself the ordinance of 1907 of Papua:

provided that the trial of persons of European descent charged with a crime punishable by death should be held before a jury of four persons, but that “save as aforesaid the trials of all issues, both civil and criminal, shall as heretofore be held without a jury.”

So that, even for capital offences, four at one stage was considered appropriate in that respect.

Can I say three brief things about Ng. The first is there was an analogy made to the question of a captain of a sporting team and whether or not people would be outraged to think that the captain, though not performing, might be carried on. I have two things to say to that, Mark Taylor and Stephen Waugh.

KIRBY J: Who was the first person?

MR PAULING: Mark Taylor, your Honour. I am sorry, it is a cricketing analogy, your Honour.

KIRBY J: I will ask privately about it.

MR PAULING: Yes, Mark Taylor was scoreless, at least in terms of significant numbers, for a very long time and everyone wondered why he continued, but he was the captain. But your Honour Justice Hayne was searching for a principle in relation to equality, because it was used in that sort of way. The principle is the equality of the vote, the fact that each juror has one vote, and it is not equality of status or equality of treatment or anything else.

The third thing we would say about randomness, which really the argument in relation to balloting is that there should be some process where it is always random. It is our submission ‑ ‑ ‑

McHUGH J: We said in Cheatle that it has to be random in the sense that they are representative of the community.

MR PAULING: That is precisely right, and that is why, in our written submissions in Ng, your Honours, we draw attention to the Northern Territory case called Diack, in which Justice Nader heard a challenge to the arraign. What had happened was that the sheriff’s officers, not being over eager to work ‑ ‑ ‑

GUMMOW J: What is the citation, Mr Solicitor?

MR PAULING: I am about to give it to you, your Honour. It is R v Diack (1983) 19 NTR 13 at 16 to 18. What had happened was that the sheriff’s officers, when they received a praecipe from the Chief Justice to issue jury summonses, if they got a praecipe to issue 75, would issue 150 and tell the officers whose job it was to serve these things to stop when they got to 75. It turned out that women at home not employed outside the home were much easier to find than men at work and so we ended up with a panel that had more than 70 per cent female representation and his Honour found that that was not representative of the community.

The point we make from that is, in the formation of the panel, that is where randomness and representativeness comes in. The further processes for selecting a jury from the panel and in the Ng Case of balloting off other than the foreman does not violate ‑ ‑ ‑

KIRBY J: Yes, but why is the foreman purportedly made by State legislation in a federal case – applied to a federal case more equal than others? He is guaranteed. He must stay. They cannot vote him off, even though they find, after a few days, months, that he is a terrible bore and he is stupid and they want to get rid of him. They are stuck, and he must be part of the jury?

MR PAULING: Well, I do not know that it is not open for the jury to sack, as it were, the foreman that was first selected and appoint somebody else.

KIRBY J: It does not seem to be what Judge Wodak said to the jury.

MR PAULING: Yes.

KIRBY J: I will read it again, but I thought he said, “You have to stay”, and that is, in fact, what happened.

MR PAULING: Our submissions do not sort of go ultimately to that issue because we have a different provision in the Northern Territory and I merely wanted to say those short things about Ng.

Can I move on to Fittock. Your Honour, we see only one issue emerging, that is, whether or not, the accused had the trial by jury to which he said he was entitled. As has become clear, there are three obstacles to that proposition. The first is, of course, that offences against section 162 and 165 of the Criminal Code Northern Territory, that is murder and attempted murder respectively, are not offences against any law of the Commonwealth within section 80 of the Constitution. The second is that on the authority of Bernasconi, as recently noticed in Eastman and not disturbed, section 80 of the Constitution does not apply to trials on indictment in the Supreme Court of the Northern Territory. The third problem they have ‑ ‑ ‑

KIRBY J: Would you remind me, was that point – the challenge there was to the Supreme Court in Ex parte Eastman?

MR PAULING: Yes.

KIRBY J: Was that the issue of the jury?

MR PAULING: No, the issue in Eastman (1999) 200 CLR 322 ‑ ‑ ‑

McHUGH J: It is a section 72 point.

MR PAULING: Yes. It is whether or not the Acting Justice Carruthers needed to be appointed in accordance with section 72 of the Constitution.

KIRBY J: So there was no section 80 point at all?

MR PAULING: No.

KIRBY J: This is a new point not decided by any authority of the Court.

MR PAULING: Yes, except that the authority of Spratt v Hermes, which itself in a limited way approved Bernasconi, was challenged directly in the Court ‑ ‑ ‑

KIRBY J: That was the challenge to a magistrate deciding a case. It was not a challenge to the constitution of a jury. Mr Hermes was a magistrate.

MR PAULING: Yes, he was, your Honour, but in Capital TV & Appliances v Falconer importantly Chief Justice Barwick held that there was no material difference in principle between the Magistrates Court and the Supreme Court of the Australian Capital Territory. So those two cases together get you to that point.

GUMMOW J: What is the law of the Northern Territory that applied in this case to produce a jury?

MR PAULING: The Juries Act. There are also provisions in the Criminal Code. They are set out, your Honour, at the rear of our submissions.

GUMMOW J: In a way the first question is, what did that require? Did that permit this to happen?

MR PAULING: Section 6, your Honour, in relation to juries says “the jury shall consist of 12”.

HAYNE J: What is the relevant law in force in the Territory that required this offence to be tried with a jury?

MR PAULING: It is the Criminal Code, your Honour. There is also a schedule to Mr Fittock’s submissions that set out those provisions.

GUMMOW J: You have not set about abolishing jury trials in the Northern Territory?

MR PAULING: No, we have not.

KIRBY J: Yes, but you did have other strange procedures and what is put to us is we have to test this proposition in the normal way by what happens if it is taken to a particular extreme.

MR PAULING: Yes.

KIRBY J: That is a legitimate point of argument of a constitutional issue.

MR PAULING: Your Honour, in our submissions, we have developed, but do not now put and do not seek to press before the Court, a way of interpreting Chapter III which, if we were correct and if Mr Ng’s trial for example took place in the Northern Territory, section 80 would apply to it. That is not the current view of all members of the Court. Our argument would be – just put briefly and then I will leave it, but our argument basically is – and it is one that your Honours Justice Gummow and Justice Hayne have examined recently – that the Territory Supreme Court would be one of such other courts as the Parliament invest with federal jurisdiction, that in section 73 the Supreme Court would be a court exercising federal jurisdiction and therefore an appeal would lie to this Court rather than through the mechanism of a statutory appeal under 35AA of the Judiciary Act. That proposition then would say that in relation to offences against laws of the Commonwealth, section 80 would apply. So, if it was the Customs Act, section 80 would apply and ‑ ‑ ‑

GUMMOW J: But it is not the Customs Act. That is the problem.

MR PAULING: It is not a problem for me, with respect, your Honour. It is our primary submission that this case falls at the first hurdle.

GLEESON CJ: But you were in the course of drawing our attention to the statutory provisions and you took us to section 6 of the Juries Act which says that:

“Where . . . an offence prosecuted in the Court is required to be tried with a jury, the jury shall consist of 12 jurors

et cetera. Where do we find the requirement that this offence be tried with a jury?

MR PAULING: Section 348 of the Criminal Code of the Northern Territory reads, subject to section 348A:

If the accused person pleads that he is not guilty he is by such plea, without any further form, deemed to have demanded that the issues raised by such plea shall be tried by a jury and is entitled to have them tried accordingly.

HAYNE J: But what is it that tells you you cannot try someone for murder summarily before a magistrate? There is something somewhere that will tell us that, surely.

MR PAULING: That is what section 348 does, with respect, your Honour.

HAYNE J: Once he has been committed and standing for trial. That I can understand. What is it that tells you you cannot deal with him for murder on complaint and summons?

MR PAULING: Because the Justices Act which controls what magistrates can do in inferior courts has limitations and sets out ‑ and we could prepare ‑ ‑

GUMMOW J: It might be best if we just had a note at some stage, just tracking it through, seeing there is other people to follow?

MR PAULING: Yes, we will give you a note straight after lunch. I take it that all your Honours have the schedule we put up about jury provisions in the various jurisdictions?

GUMMOW J: Yes, I do.

MR PAULING: Thank you. So that in that sort of broad context – and this is not the case to decide it in. At some stage, we will be arguing for a further advance in the evolution of the ‑ ‑ ‑

KIRBY J: There has not been much evolution so far, not since Bernasconi ‑ ‑ ‑

MR PAULING: That is only in respect of one aspect, your Honour, but that argument had better wait for another day. It does not need to arise here. Once we reach the conclusion, supported by Capital Duplicators, the authority which is doubted but not challenged, then we come to the position that ‑ ‑ ‑

KIRBY J: Doubted by whom?

MR PAULING: By Mr Wendler. In the written submissions it is said that – first of all, it is put that the difference between the majority and the minority in Capital Duplicators was on the question of delegated legislation which it was not. The difference between the majority and the minority in Capital Duplicators was on the meaning of “exclusive”. So it was explained in Svikart v Stewart that where you say to preserve a free market, you need “exclusive” to mean exclusive of all legislatures including Territory legislatures. When you are talking about Commonwealth places, you do not need “exclusive” to mean any more than was found to be required in Nott Bros v Barkley meaning exclusive of the States. I mean, it is all explained, so that the point of distinction fails when one examines the reasoning in the case but, more importantly, when you then go the next step and deal with the question of a legislature of a self‑governing Territory is explained in our written submissions which, of course, we adopt, one gets there.

Looking at the application of section 80, if one goes back to Bernasconi (1919) 19 CLR 629, commencing at 634 at the bottom of the page, one starts to understand what sort of laws of the Commonwealth were in contemplation in the judgment of Chief Justice Griffith, and this is in the passage immediately preceding that read to the Court:

The general power to deal with criminal law was not transferred to the Commonwealth, but the imposition of penalties, either personal or pecuniary, by way of sanction, was a matter plainly incidental to the exercise of the enumerated legislative powers of the Commonwealth. At that time the laws of all the States provided for the trial by jury of persons tried on indictment, and it was thought desirable to lay down the rule that the trial of persons charged with new indictable offences created by the Commonwealth Parliament should be tried in the same way. Such a provision naturally found place in Chapter III of the Constitution dealing with the Judicature, of which sec. 80 forms part.

The authority of Capital Duplicators is subsequently adopted and applied. There is no room for any finding that the Criminal Code of the Northern Territory is any law of the Commonwealth.

KIRBY J: You can read it that way but the other way is to read it as deriving its ultimate constitutional force from legislation of the Commonwealth and in that way it is a law of the Commonwealth. This is the Constitution we are construing here, it is not a Dog Act.

MR PAULING: I understand that, your Honour. May I simply say this that in Eastman – that is Re The Governor, Goulburn Correctional Centre and Another; Ex parte Eastman (1999) 200 CLR 322 ‑ the point of distinction that arose between the Supreme Court of the Australian Capital Territory and the Supreme Court of the Northern Territory was that the former was created by the Parliament and then by a process transmogrified – the Act, that is, that sustained the court – into an enactment of the Legislative Assembly of the Australian Capital Territory, whereas the Supreme Court Act of the Northern Territory was passed directly by the Assembly. The Commonwealth Act was repealed and the Northern Territory Act commenced.

KIRBY J: Yes, but they only got their authority to do this by dint of the Self‑Government Act of the Federal Parliament made under section 122 of the Constitution.

MR PAULING: Yes, I am coming to that point, your Honour. What was important about the fact that the Australian Capital Territory Supreme Court Act had become an enactment of the Assembly there falls in the same way as the Rights of the Terminally Ill Act and the way in which the Commonwealth Parliament dealt with it. The Commonwealth Parliament cannot amend the ACT Supreme Court Act. The Commonwealth Parliament, if it wishes to do away with it has to pass inconsistent legislation or pass legislation which abolishes the court in the same way ‑ ‑ ‑

KIRBY J: I think that is the big question as to whether under the plenary power of section 122 the Federal Parliament could not amend the statute of a Territory – any Territory.

MR PAULING: The argument we put in Eastman we put again that whilst the Commonwealth Parliament could do what it did in relation to euthanasia, to use the shorthand, and that is to not only pass an Act of the Parliament which did away with the Northern Territory law but also to amend the Self‑Government Act to prevent the Northern Territory from making such a law again rather points up the fact that the Criminal Code of the Northern Territory is sustained by the Self‑Government Act because that is where the Legislative Assembly of the Northern Territory derives its power.

To say that that also is sustained by 122 does not deny the plenary nature of the legislature that has been set up and as was explained it is no less efficacious that is set up under a law passed by the Parliament than it was efficacious for the legislatures of the colonies before Federation to be established by laws of the Imperial Parliament. The fact of the matter is - and that is what Capital Duplicators go to – that what was intended to be granted and was in fact granted was plenary power and it is according to that plenary power that the Criminal Code was set up and that this person was tried in a court under a Northern Territory law. That is the point of departure and that is explained in Svikart v Stewart and subsequent cases. That is where it has moved to.

So that the idea that somehow one can as a matter of constitutional theory, roll everything back, abolish self‑government, pass a law that would abolish the Supreme Court and ‑ ‑ ‑

KIRBY J: You do not roll it back. What you do is simply read it in the context of the federal Constitution.

MR PAULING: Yes.

KIRBY J: And it means that citizens of this country, and subject to the Queen, are not put out of the guarantee of a jury trial in section 80.

MR PAULING: That is right, for offences against laws of the Commonwealth.

KIRBY J: Exactly.

MR PAULING: And the more extended argument we make in our written submissions would get to that point, that in the end residents of the Territories, that is self‑governing Territories, would be in the same position as residents of States, that their courts would exercise federal jurisdiction that it has invested in them, that their citizens, when tried in the courts would have a constitutional right of appeal to this Court under 73(ii), that if they were being tried for an offence against a law of the Commonwealth, as Mr Ng was, if he was tried in the Territory, he would be entitled to a unanimous verdict of a jury. He would be entitled to the very things this Court has identified in cases dealing with it.

So there are ways to get to the desirable end that Territorians are not in an inferior situation to residents of States, and it does not involve treating either the laws of the Legislative Assembly as federal laws or, to come to the view that Professor Zines has in the third edition of his work, “Federal Jurisdiction in Australia”, Cowen and Zines, that one way of looking at it is to say, “Well, Territory courts are always exercising federal jurisdiction”. That is the conclusion that he prefers, even when ‑ ‑ ‑

KIRBY J: It sounds right to me, but you disagree with it.

MR PAULING: Yes, because ‑ and I am under a self‑imposed time limit, but for this reason, take it to its logical extension, you have really returned to Boilermakers. You are saying, “Wouldn’t it have been easier to have said the Territory courts are federal courts, Territory laws are federal laws”. The consequence of that, when one proceeds further, is to say, “Well, if they are federal laws they attract 109”. If, for example, a Territory fishing law was inconsistent with a Queensland fishing law and there was sufficient nexus for the Northern Territory law to operate extraterritorially, then it would invalidate the Queensland law to the extent of the inconsistency.

CALLINAN J: That is an unattractive argument.

MR PAULING: Yes, your Honour, it is indeed, and what we say is ‑ ‑ ‑

McHUGH J: Lamshed v Lake does not apply now, does it?

MR PAULING: Does not apply in what sense, your Honour?

McHUGH J: Does not apply in the sense that when it was decided it was a law of the Commonwealth.

MR PAULING: Yes, it was.

McHUGH J: But since you have self‑government, the problem that Lamshed v Lake created would not arise, would it, about inconsistency?

MR PAULING: Well, it depends what the federal government wished to do. Say, for example, it wished to pass a law specific to the Northern Territory in relation to defence, or in relation to some of the matters taken out of the grant of power, for example, to do with uranium or Aboriginal land, that is under the Land Rights Act. It is possible that the Parliament could pass a law, having extraterritorial effect, which might invalidate a contrary law.

Let me give you an example, that if they exercised - through the Territory’s power, they passed a law which said that you can transport spent uranium from the Northern Territory to South Australia and bury it, and the South Australian Parliament passed a law saying, “You can’t bring uranium into South Australia”.

KIRBY J: Well, the question would be whether that was a valid or under the grant of self‑government to the Northern Territory.

MR PAULING: No, your Honour.

KIRBY J: The reason would be whether it was a valid law of the Commonwealth.

MR PAULING: No, your Honour, because, as I say, the Northern Territory legislature does not have power to make laws about uranium. It would have to be the Parliament.

GUMMOW J: You are postulating a federal law.

MR PAULING: Yes, I am. That is why I am saying it was a federal law in Lamshed v Lake.

McHUGH J: That is right, but what I am saying to you now is that the legislation in Lamshed v Lake is now enshrined in your Self‑Government Act, is it not, from recollection?

MR PAULING: Yes.

McHUGH J: But if the Territory had passed such a law and somehow had had extraterritorial effect and it was regarded as a law of the Parliament, then section 109 would operate and it would invalidate any inconsistent Queensland, South Australian ‑ ‑ ‑

MR PAULING: That is the point I am making, which is why I say ‑ ‑ ‑

KIRBY J: So long as it was a valid law of the Northern Territory, made validly under a federal mandate. It always has to be traced back to its root.

MR PAULING: Yes, there would be arguments postulated on the assumption that it is a valid law and operates according to its terms.

KIRBY J: Well, that would be a question.

MR PAULING: Yes. But what I am saying is that Professor Zines goes beyond where we would go. By going only as far as we have gone, we have created practical equality between residents of Territories and residents of States in relation to the operation of Chapter III.

KIRBY J: Yes, you have done that without becoming a State, as the Constitution provides for.

MR PAULING: Well, there are other ‑ ‑ ‑

KIRBY J: That is the question. You may not like to be told it, but you are still a section 122 Territory of the Commonwealth.

MR PAULING: Your Honour, we are a self‑governing 122 Territory.

KIRBY J: You are a section 122 Territory of the Commonwealth of Australia.

MR PAULING: Yes, well, I do not propose to engage your Honour on that. Your Honours, all I wanted to say was, in relation to Professor Zines, if you go as far as we go, there are not any serious problems in terms of the texts of the Constitution, it is practical and it operates to achieve a desirable end. But I do not have to present that any further in this case to resolve the baroque complexities and many uncertainties that Professor Zines speaks of. This case – because the case should decide no more than is necessary to quell the controversy that is presented – need go no further than say that the Criminal Code of the Northern Territory is not any law of the Commonwealth for the purpose of section 80, and leave should be dismissed.

GLEESON CJ: Thank you. Yes, Mr Bugg.

MR BUGG: Your Honours, the questions in relation to the foreperson, particularly that which your Honour Justice Kirby just asked my learned friend, Mr Pauling, the foreperson was not entrenched and could have been changed at any stage during this three-month trial. There is authority in the learned Solicitor’s outline from Victoria, Lonsdale, where approximately 90 years ago the jury, after retiring to consider its verdict in Victoria, returned to the court with a request that the foreman be changed. “He was hard of hearing and had a difficult manner of speech” was the way in which the very brief one-page report is written up, but I do note that the foreman was asked whether or not he consented to that change, and he did. Another foreman was chosen and the trial continued, returning a verdict of guilty. That, as I understand it, is still good law in Victoria. So to say that the foreperson obtains some status above that of other jurors, other than as a spokesperson, is, with respect, incorrect.

KIRBY J: Yes, but once he is elected and until removed – I accept what you say – he is entrenched and no other juror is and therefore he is given a special status under the Victorian Act.

MR BUGG: He can be discharged for cause, just as any other juror.

KIRBY J: Yes, but he gets a leg‑up, if I could put it that way. He gets a privileged position.

MR BUGG: Your Honour, I accept that there are good practical reasons for retaining, particularly at the end of a long trial, the foreperson who would have asked questions through the trial, no doubt taken notes and had all that material available. But to remove that person at that stage of the trial might be seen by many as to frustrate the task of the jury by taking that person who had on its behalf asked questions, raised matters, and no doubt, as I say, recorded the product of that in notes and there would have likewise, I suppose, been a challenge if that person’s notes had been left with the rest of the panel once that person had been balloted off.

So there are, in my submission, very good reasons for identifying the spokesperson as a person who is important to the function of the jury in that sense alone and for that reason, in my submission, there is no affront to the essential ingredients or characteristics of a jury by retaining the foreperson in that way. But throughout the trial process, and it would seem when one looks at Lonsdale, the foreman is not immune from ultimately being changed by the rest of the panel.

KIRBY J: The affront that is suggested is that it is not something that is integral to the nature of the jury to give a particular privilege to one member and it immures that particular one who may have particular views from being removed and thereby removes or reduces the randomness of the jury. That is the suggestion.

MR BUGG: Yes. As far as randomness is concerned, there is no authority for the proposition that randomness goes beyond the selection of the panel of jurors from which the jury ultimately is selected because even within that process, that is the jury selection, there is a restriction or a confinement of the process which one might say continues to be random in the sense that both parties have an opportunity to challenge peremptorily and for cause in a way that therefore the ultimate jury could be said to have gone through a process which lacks randomness. So to say that randomness must remain until the very end is something that is not supported by authority and certainly not supported by what this Court said in Cheatle.

KIRBY J: Cheatle did not really deal with 12 up. Cheatle dealt with 12 minus.

MR BUGG: Unanimity and, of course, unanimity with a sufficient number was the proposition considered in Brownlee.

GUMMOW J: There is no question of waiver, is there?

MR BUGG: No, there is not, your Honour.

GUMMOW J: I did not think so. It seems to be agitated in the ‑ ‑ ‑

MR BUGG: It has been abandoned or withdrawn. That was the indication given at the start of this morning’s proceedings.

KIRBY J: Mr Wendler reserved it, really, right from the beginning. On page 12 or 11, I think, it is reserved.

MR BUGG: In a narrow sense confined only to this issue of the foreman, not in the broader sense that is now raised in the submissions which your Honours have heard this morning, but I do not pause to ‑ ‑ ‑

GLEESON CJ: You do not have to justify not having an argument.

MR BUGG: No.

GLEESON CJ: We will adjourn until 2.00 pm.

AT 1.01 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.03 PM:

MR PAULING: Your Honours, the note requested by Justice Gummow on Trials by Jury for Murder and Attempted Murder in the Northern Territory, we have written a note and circulated it.

GUMMOW J: Thank you.

GLEESON CJ: Thank you. Yes, Mr Bugg.

MR BUGG: Thank you, your Honour. Just finishing with the foreperson, there are just a couple of other points that I wish to make and firstly, when under this legislative regime the jury retires to consider its verdict, the foreperson is, as are the other 11 jurors, a person who has not been balloted off the jury and therefore at that point, I would submit, that there is any distinction about ‑ ‑ ‑

KIRBY J: But the point made, whether it is good or bad, is that he is given a privileged status against being balloted off and, indeed, that his name came up and it was put to one side and therefore could not be balloted off.

MR BUGG: Yes.

KIRBY J: This is what reduces the randomness of the selection.

MR BUGG: Your Honour, in terms of ‑ ‑ ‑

KIRBY J: We cannot get away from the problem; it is just an issue of whether it is relevant or not.

MR BUGG: It is there. I repeat what I said before the luncheon break, but the proposition is that the foreman, like all the other members of the jury, has been through a random selection process, a challenged process and the jurors have chosen that person, amongst the 15, to be their spokesperson, and that, for the practical reasons I indicated, leaves that person for good reasons someone who should remain amongst the final 12.

The question of randomness I have covered. There is no authority to the contrary that randomness is at the time of selection of the bulk panel –and there were 150 persons selected for this particular panel – who entered court and were then given the witness lists to excuse themselves or not.

The situation in Victoria is that the prisoner is not put in the charge of the jury until after the foreperson is appointed and then counsels’ appearances are announced as well. The judge’s directions in this particular trial are there in the supplemental application book and are quite plain, and clearly indicate in terms of the deliberative process, the equality of the jurors along with the foreperson.

I must say that the program of preserving a jury of 12, established under this legislation, has certain appeals to it in terms of the concentration and attention to detail of a jury panel of 15, none of them knowing, except for the foreperson, whether or not at the end of the trial process they will in fact be deliberating on a jury. With the reserve jurors system, one of which I am terribly familiar with, there is the possibility that the reserved jurors may not have the same attention to detail and evidence as the trial progresses.

KIRBY J: But it has the downside that a stranger to the ultimate jury takes part in the deliberations of the ultimate jury?

MR BUGG: Yes, a stranger, in the sense, that that person has not been regarded as being a person who will deliberate until the very end of the proceedings or at the time.

KIRBY J: But they can deliberate amongst themselves. In Australia we face up to the reality and they can deliberate amongst themselves and naturally do so, so that person influences the deliberative process before the final retirement of the jury but yet can take no part in the final deliberation.

MR BUGG: That is the very same situation with anyone who may be discharged either because of illness or through cause.

KIRBY J: It would not have happened in 1900.

MR BUGG: Well, no, but really, as most of the outlines of argument suggest, Brownlee has dealt with that particular problem, and certainly there is a big distinction between the situation here and in the United States.

Your Honours, I am conscious of time. I rely on the outline of submissions which has been placed before the Court in response to those matters which Mr Street, through constraints of time perhaps, did not cover as fully as they are covered in the applicant’s outline. We had some brief discussion about this during the luncheon break. The correct full name of the applicant is Phillip Chee Ming Ng. There is a difference in the Court record in some of the documents, but that is the correct full name of the applicant.

Your Honours, I was not sure just how much time I would have before you today, so last night I prepared a very brief summary of what I wanted to conclude with, and I will make that available to the Court and to my colleagues. The proposition that I seek to develop in it is really to trace, because this Court has not definitively listed all those essential characteristics of the jury trial following on from the decision in Cheatle, but what I try to do in this brief outline is follow from the judgment of Justice Deane in Kingswell, and the passage that is often referred to there and repeated by his Honour in his judgment in Brown, through to the references to it made in recent decisions, but particularly in Brownlee where clearly what this Court has been focusing on is community confidence in the jury process, as in the joint judgment in Brownlee of Justices Gaudron, Gummow and Hayne, your Honours said:

large enough to promote measured deliberation and indicates to the community sufficient participation by its members to vindicate the outcome.

The paragraph is 68.

KIRBY J: How would we ever know that, except perhaps by asking a person on the Underground?

MR BUGG: Well, it was your Honour who also said in that case, at paragraph 141:

a danger to the community’s perception of the impartiality of the jury and thus to the community’s unquestioning acceptance of jury verdicts in serious criminal matters.

And your Honour then referred to what Justice Deane had said in Kingswell. Now, it seems to me that if one is trying to characterise these essentials of the jury process in a way that some guidance can be given, then if a legislative change or requirement of the jury process in some way undermines or has the risk of undermining community confidence in the deliberative process of that jury, then, clearly, that step is likely to offend section 80. However, if, as we say here, none of this program in any way would undermine community confidence in the product, then section 80 is of no effect at all. Your Honours, I will make that available. It is merely a brief summary and they are my submissions.

GLEESON CJ: Yes, thank you, Mr Bugg. Yes, Mr Solicitor.

MR BENNETT: May it please the Court. The issue of waiver, not having been raised by either of the respondents, does not arise, so I will not, in this case, be making the submission that Brown should be overruled, but I will be waiting my opportunity.

That leaves two issues: the jury issues and the Bernasconi issues. I will deal with each briefly. So far as the jury issues are concerned there is an irony in this case. One of the first comments made by judges to jurors since time immemorial is that you do not leave your commonsense behind when you enter the jury room. Yet the submissions that are made by my learned friends, Mr Street and Mr Wendler, about the invalidity of aspects of the jury system here, when one analyses them, really do invite your Honours to disregard that aphorism. May I deal with them in turn.

The argument about the foreperson seems to be this, that there is a breach of randomness because it is conceivably possible that a jury, knowing of the rule about retention of the foreperson, may during the trial, decide to elect a foreperson who is a member of the pro tanto majority with a view to increasing the chance that it is a member of the pro tanto pro tem minority who is removed by ballot and, thereby, get rid of an inconvenient minority member.

The unlikelihood of that occurring only needs to be referred to, to be understood. But that remote possibility is said in some way to interfere with randomness. It does not of course interfere with randomness one‑hundredth of the amount that peremptory challenges do. As everyone knows, peremptory challenges are frequently used to eliminate people of a particular gender or a particular age group or a particular apparent professional status, because ‑ ‑ ‑

KIRBY J: But that is before you get into the jury.

MR BENNETT: Yes.

KIRBY J: This is a randomness that is effected in the Constitution of an extant jury.

MR BENNETT: That is precisely the point, your Honour. There is no requirement of randomness at that stage. The randomness is concerned with the….., with the selection of the members of the public for the panel, the selection of the array. But even if it extends at this stage, that does not make it worse. It just is not a significant challenge on any view to the true randomness of the jury. It is a highly technical possibility which is not one which, in my respectful submission, can possibly take it out of the Constitution or conception of a jury.

KIRBY J: Is there any analogy in the United States procedures for standby jurors?

MR BENNETT: I am not aware of any, your Honour. The other argument which is put about the foreperson is the argument based on equality, but of course equality does not require equality in all things. The foreperson is not equal in any event. The foreperson has the privilege that other jurors do not have of interrupting the trial to ask a question.

That does not invalidate anything. There are, of course, good reasons for excluding the foreperson from the balloting out. One very good reason is that is saves time. It saves the juror having to go through the exercise again of appointing a fresh foreperson. Another very good reason is that it prevents or makes less likely the further dissension that may occur on a jury, perhaps unfortunate dissension, involved in the selection of a foreperson at that stage of the trial. There are good common sense reasons for the rule.

KIRBY J: The accused might want a little bit of dissension. It is natural that the Crown should not want dissension.

MR BENNETT: It depends what sort of dissension, your Honour. The absence of time and dissension over selecting a foreperson may enable the jury to devote its attention to dissenting on more important issues.

At the end of the day, the sacrifice is a tiny one. The benefit is seen to outweigh it and it is clearly, we would submit, within the leeway that is permitted once one has a system involving a reduction in numbers on the jury.

KIRBY J: Is there a similar system in Canada?

MR BENNETT: I do not know, your Honour, I am not aware of any.

KIRBY J: Or New Zealand?

MR BENNETT: I am not aware, your Honour. I do not think anyone in this case has found any analogies to that aspect of the procedure ‑ ‑ ‑

KIRBY J: You have that material on the United States though, which in some respects is materially different.

MR BENNETT: Yes.

Your Honours, in relation to reserve and additional jurors, may I just say this. There are two basic arguments put. One is the highly technical argument which says, “Oh, there is ‘a jury’. Section 80 requires ‘a jury’” –rather ignoring that the singular includes the plural, even in the Constitution – and therefore it is said there is some violation of that.

First of all, that is inconsistent with Brownlee. In Brownlee we know that a jury – reducing from 12 to 10 is permissible, so the jury that ultimately makes the decision is not the same people who were originally empanelled. We know that is valid. So there is no such absolute rule.

The second part of the argument is that there is a contamination. This is another example of what I describe as departing from commonsense. What is said is “Oh, there is someone in that jury room during the trial who is not there as part of the final deciding jury, therefore the jury may have been contaminated by that person’s views.” If the rule about contamination were so strict, two things would follow. First, Brownlee would be wrong and, secondly, it would not be permissible to fail to sequestrate a jury because of the possibility that the jury might disregard the judge’s direction. Something one would have thought in reality a far more significant risk than the risk of so‑called contamination by the juror who ceases to be a member.

Then it is said, “Oh, no, this is different, at least in relation to the reserve juror system, because the person knows he or she may not be on the final jury.” Well, in one sense, so does any juror. Any juror knows that he or she may die or suffer a disease or bereavement which results in the juror being excused before the end. Indeed, in one sense, that may be a little more within the juror’s own control. Yet that does not invalidate it. So why should the balloting off or, in the case of the Northern Territory – yes, in both cases – why should the balloting off of certain people who in the Northern Territory know that they have a chance of being balloted off or a chance of not being balloted on, affect the result? They are people who are there and they are part of the system. They are no doubt part of the jury at the time if the jury is going to acquit in the middle of the evidence, but they are not part of the jury which eventually retires.

That, I submit, is totally within the contemplation of Brownlee and totally within the sort of progression of the jury system which must be regarded when one applies a jury and the jury concepts to a day when we have trials lasting, in the case of one of these trials, for 48 hearing days, and sometimes longer. The risk of a trial aborting because of a juror becoming unavailable is obviously a serious matter.

HAYNE J: Just before you go on, Mr Solicitor, the position in other countries is perhaps most conveniently set out in the schedule I think supplied to us by the Northern Territory. They set out Canada, UK, Hong Kong, Ireland, New Zealand, Scotland and the federal position in the US.

MR BENNETT: I am indebted to your Honour.

HAYNE J: I am indebted to the Northern Territory.

MR BENNETT: Yes, we all are. I think I am correct in saying that material does not show the same foreperson procedure in other systems. Now, turning to the Bernasconi argument ‑ ‑ ‑

KIRBY J: Only Scotland, in that list, has 15. Everywhere else is 12.

MR BENNETT: Your Honours, in relation to Bernasconi we submit this. It is a case which has survived for 90 years despite criticisms of some aspects of it but the aspect which has not been criticised is the ultimate decision that the constitutional requirement of trial by jury does not apply to a trial conducted in a Territory for an indictable offence against a law enacted pursuant to section 122.

KIRBY J: In the context of Papua where there were very peculiar and special circumstances which one can understand.

MR BENNETT: Your Honour, that is part of the reason given by Justice Isaacs, that the – of course, there were no Territories at the time of Federation and one did not know what sort of Territories there would be. We now know. The three that were contemplated, it is said, were Fiji, British New Guinea and the Northern Territory, possibly the seat of government, although possibly not.

GLEESON CJ: Presumably, if the argument had gone the other way, you would have had to appoint the magistrate in Papua for life.

MR BENNETT: Precisely, your Honour. We have Territories now which are totally uninhabited and there would be, no doubt, at least serious difficulties if one were to attempt to establish a jury in the Territory of Heard and McDonald Island, at least if one wanted a human jury. The very variety of Territories is a reason why one may not have wished to tie them down. One reason given in Bernasconi was that Papua had a large German population and that it might well have been inappropriate to apply the British system of trial by jury to a German population. That is an argument which does not sound very attractive today.

KIRBY J: It certainly does not.

MR BENNETT: The point being that they were used to a civil law system rather than that they were inappropriate to sit on a jury.

KIRBY J: Is that the point?

MR BENNETT: Even so, the argument is unattractive. What it illustrates is the range of Territories is a reason why one would not be in a hurry to construe section 88 as applying to all of them. There are also practical considerations which we refer to in paragraph 44 of our submissions. This is a reason by leave should not be granted or why the case should not be overruled. If it were overruled, many convictions might now be subject to question in many of the Territories.

The inconvenience resulting from that – perhaps some hundreds of convictions – the inconvenience resulting from that should not be underestimated. We do still have a double jeopardy rule in all parts of Australia. The consequences of invalidating hundreds of convictions ‑ ‑ ‑

GUMMOW J: Were there many Territories with laws for trial on indictment without a jury?

MR BENNETT: Norfolk Island has provision, I think, your Honour, under which there is not necessarily a jury, and the smaller Territories tend to use – the Australian Antarctic Territory, the Jervis Bay territory and Heard and McDonald Islands use the laws of the ACT.

GUMMOW J: Yes.

MR BENNETT: There are different provisions in Christmas Island and Cocos (Keeling) Islands. I am not sure about the Coral Sea Islands territory, but I think that is all referred to in our submissions.

KIRBY J: But you are pressing on us arguments of convenience or inconvenience. I sat here and listened to all of those arguments in Re Wakim. We are talking here about Chapter III. This is a provision in Chapter III. Inconvenience will not ultimately weigh in the requirements of the Constitution.

MR BENNETT: It is a factor, your Honour, in a special leave application and it is a factor in an application that the Court overrule one of its previous decisions. It may not be a factor in the ultimate decision once one gets over those hurdles.

KIRBY J: Yes, but if the constitutional point is good, then it is obviously one that requires leave to be granted. Even if it is arguable, it seems to me, it is one that requires leave to be granted. The disposition of it is another matter.

MR BENNETT: There may be reasons in a particular case where it does not, your Honour, for example, if the case would involve extensive analysis of facts.

KIRBY J: That is not so in either of the cases before us.

MR BENNETT: No, but I say that to illustrate that one does not grant leave just because there is an arguable constitutional point. One still has to look at the convenience of the vehicle and at the various other matters that this Court looks at on special leave.

KIRBY J: If the Court took that view too readily, an applicant for special leave could simply go back and come back to us in the original jurisdiction seeking orders under the Constitution.

MR BENNETT: Yes, your Honour, and it would then be a question of whether one remitted it or whether one treated it as a matter that would have to proceed.

KIRBY J: It is a reason for looking with special care in constitutional matters, especially where, upon the view that is propounded, they affect the sentence, which is not inconsiderable, on the applicant.

MR BENNETT: Yes. In my submission, the other factors still require weighing in a case of this nature. One must also remember that this Court has consistently held by majority, despite a long‑standing minority view, that the section is not a constitutional guarantee in the traditional sense of those words. It can be avoided or evaded, whichever word one prefers, by simply making offences non‑indictable. So the arguments based on the constitutional guarantee, in my submission, do not assist.

May I say a couple of other things about the more detailed submission. Chapter III is not, as we have stated in our submissions, all of one piece – that is the phrase from Spratt v Hermes. We know, for example, from GPAO that a Federal Court exercising jurisdiction under section 76(ii) exercises federal jurisdiction. We know from Pfeiffer that a Territory court exercising jurisdiction under section 76(i) exercises federal jurisdiction. We do not know whether a Territory court exercising section 76(ii) exercises federal jurisdiction, nor do we know if a Territory court exercising jurisdiction under a law made under section 122 is exercising federal jurisdiction. Those are matters which remain for future decision.

But whatever decision one reaches on those matters, we would submit that the existence or otherwise of federal jurisdiction does not determine this case. The issue here is simply the application of section 80 and that can be decided without determining ‑ ‑ ‑

KIRBY J: But if it is federal jurisdiction, then section 68 in its terms excludes any derogation from section 80, is that not correct?

several courts of a State or Territory exercising jurisdiction ‑ ‑ ‑

MR BENNETT: That cannot affect the construction of the Constitution, your Honour.

KIRBY J: No, of course not, but the section specifically refers to section 80: “and subject to this section and to section 80 of the Constitution”.

MR BENNETT: That is just for more abundant caution, we would submit. At the end of the day, we submit that what is important is that section 80 just does not apply to trials in Territories for what are compendiously called Territory offences, indictable or not. There is no case suggesting the contrary and, in my respectful submission, that proposition can survive, whatever view one takes in relation to the various aspects of federal jurisdiction in Chapter III to which I have referred.

Our fall-back position is that put to your Honours by the learned Solicitor for the Northern Territory in relation to the Capital Duplicators issue. That, we submit, is clear, whatever flows in relation to the other matters. We, however, do make the wider submission because that may be important for the smaller Territories. The Capital Duplicators issue does determine it for the Northern Territory because the whole basis of Capital Duplicators, following from the 19^th century cases of Apollo Candle and Burah and the third one, whose name escapes me, was that where one sets up a legislature with power to legislate for peace, order and good government, one has set up a body with plenary powers and it does not act as a delegate.

The mere fact that it was appointed by or set up by the Commonwealth Government, or even that it could be abolished by the Commonwealth Government, does not mean that it acts as a delegate so that its enactments are laws of the Commonwealth, certainly not in the sense used in section 80. Whether or not they are for some other purposes depends on the construction of each section in the Constitution. This Court in Svikart v Stewart showed that it was prepared to construe the word “exclusive” differently in two sections. Of course, phrases like “laws of the Commonwealth” and “laws of the Parliament of the Commonwealth” are used in different senses in different parts of the Constitution and one should

not necessarily search for absolute parity of meaning every time the words occur.

Finally, may I simply say two things: first, that I have been brief of necessity, because we have all had to comply with that. I formally adopt all the matters in my submissions that I have not referred to. Secondly, I remind your Honours again that this is a special leave application and there are high hurdles the applicants need to overcome. At least in relation to the jury issues, in my respectful submission, the case on those issues is so weak that your Honours should not get to the Bernasconi issue. If your Honours are satisfied that leave should not be granted on those issues, the Bernasconi issue simply does not arise and, in my respectful submission, that is the appropriate way for the Court to dispose of the matter. May it please the Court.

GLEESON CJ: Thank you. Mr Solicitor for Western Australia.

MR MEADOWS: May it please the Court, Ms Pritchard will present the submissions on behalf of the Attorney‑General.

GLEESON CJ: Yes, Ms Pritchard.

MS PRITCHARD: May it please the Court. The Court should have before it the written outline of submissions on behalf of the Attorney‑General for Western Australia which were dated 4 February 2003. We rely on those written submissions and simply seek to develop one particular aspect of them, namely our response in relation to the ground of appeal asserted which may be described in brief as the contamination point, a matter which has already been briefly alluded to by my learned friend the Solicitor‑General for the Commonwealth.

In particular, we wish to draw the Court’s attention to the dealing with the very same issue – that is the contamination issue – in the decision of the Court of Criminal Appeal in Western Australia in Ah Poh Wai v The Queen (1995) 15 WAR 404.

KIRBY J: What year?

MS PRITCHARD: 1995, your Honour. In our submission, the Court may find the decision in Ah Poh Wai of particular assistance in relation to this contamination point for a number of reasons. First of all, the decision deals with the very same issue that is raised in relation to contamination by both applicants in this case. Secondly, the factual context in terms of the legislative provisions was not materially different from that under consideration here, and I will come to that in a moment. Thirdly, that the reasoning of the members of the court in Wai is, in my respectful submission, cogent and consistent with the reasoning adopted by the members of this Court in relation to the question of the separation of the jury in Brownlee v The Queen.

Fourthly, tacit approval was given to the reserve juror system, which was under consideration in Wai, by three of the members of this Court in Brownlee, namely your Honours, Justices Gummow and Hayne, together with Justice Gaudron at page 304 of the report in Brownlee. Finally, special leave to appeal to this Court from the decision of the Court of Criminal Appeal in Ah Poh Wai was refused by a majority and the reference to the result of the special leave application can be found at (1996) 14 LR 24 and I note, with some gratitude to my friends in Victoria that the transcript of that special leave application has been provided to the Court in materials provided on behalf of Attorney-General for Victoria.

Your Honours, if I can elaborate now on the reasoning process which was adopted in Wai and which, in my submission, may be of assistance to the Court in looking at this contamination point. Before I do that, your Honours, it is appropriate to draw the Court’s attention to a similarity between the legislative provision under consideration in Ah Poh Wai, namely section 18 of the Juries Act of Western Australia and, in particular, the provisions of section 37A of the Juries Act of the Northern Territory, which are under consideration here. The relevant provisions from Western Australia can be found at the report in Ah Poh Wai 15 WAR 404 at pages 412 to 413.

In brief, your Honours, the provision of section 18 is in virtually identical terms to that in section 37A of the Northern Territory’s Juries Act, with two exceptions: the first is that up to six reserve jurors can be empanelled in Western Australia, as opposed to three in the Northern Territory and, secondly, that reserve jurors in Western Australia replace jurors who are discharged in the order in which the reserved jurors themselves are called. There is no ballot in other words, as there is ‑ ‑ ‑

KIRBY J: So they are sitting outside the jury room until they are called forward to participate according to need, is that correct?

MS PRITCHARD: No, your Honour, as I understand the position, in fact they sit with the jury ‑ and I will come to that in a moment ‑ but they are treated in precisely the same respect as the remaining members of the jury, but when they come to need a reserve juror to replace a juror who has been discharged, it is in the order in which that reserve juror was first called or empanelled.

The provisions in relation to the Juries Act in Western Australia though are in identical respects to those under consideration here, with respect, to the contamination point in a number of important respects, and your Honours will see those by a comparison between section 18(3) of the Juries Act, which is at page 413 of the report in Ah Poh Wai and ‑ ‑ ‑

KIRBY J: Does it have a foreman provision?

MS PRITCHARD: There is no similar foreman provision, no, your Honour, and that is because of the way that the reserve jurors come to be discharged at the end. In Western Australia, as in the Northern Territory, if there are any reserve jurors who have not been incorporated into the jury itself, at the end of the trial judge’s summing up and before the jury retire to consider their verdict, those reserve jurors are simply discharged. There is therefore no necessity for a foreman provision.

I was saying though, your Honours, that the provisions in relation to reserve jurors in Western Australia being treated the same as ordinary members of the jury are precisely the same as those under consideration here and, in particular, one can see at page 413 of the report in Ah Poh Wai:

(3) Reserve jurors –
(a) shall have the same qualifications;
(b)shall be called and empanelled in the same manner;
(c) shall be subject to the same challenges, stand asides, and liability to discharge;
(d) shall take the same oath; and
(e) shall have the same functions, powers, facilities, and privileges, as jurors –
Those were the considerations that were important when the Court came to consider the question of whether a contamination issue was a problem in Ah Poh Wai.

KIRBY J: It says “not more than 6 persons”. How is it decided whether there is a need for four persons or five persons, is that made clear in the Act, or is that left to the trial judge?

MS PRITCHARD: It is not made clear in the Act as far as I am aware, your Honour. As I understand it, it is a matter of judgment in a particular case as to how many are likely to be required to be empanelled.

KIRBY J: Yes, but judgment by whom? Judgment by the Crown?

MS PRITCHARD: I will have to take instructions on that, your Honour, but I understand it is by the trial judge. Yes, your Honour, it is by the trial judge.

Before dealing with the particular similarities between reserve jurors and “ordinary members of the jury” if I may use that term, it is appropriate to refer the Court to the reasoning process as adopted by the members of the court in Ah Poh Wai, particularly Chief Justice Malcolm, who looked at what the essential features of trial by jury were with reference to the contamination point. If I can take your Honours to page 417 of the report, at about point B to C, his Honour the Chief Justice notes that in his opinion:

the relevant essential feature of “trial . . . by jury” in the present context is that the 12 persons who constitute the jury who give their verdict make their determination whether the accused is guilty or not guilty on the basis of the evidence led at the trial and not otherwise.

His Honour elaborated on that point at the bottom of page 422, your Honours, where in the last sentence on that page he said that in his opinion:

the essential feature of the jury system sought to be protected by the discretion not to allow the jury to separate, and the duty to warn them if they are so allowed, is to ensure that the jury consider their verdict in complete freedom, uninfluenced by any promise, unintimidated by any threat and uninfluenced by anyone outside their number –

and his Honour referred to McKenna’s Case.

KIRBY J: This is not really something for you to answer because it is not your system in Western Australia, but the suggestion is definitional that an essential element is 12. The only exception in the schedule handed to us is Scotland which has always had a slightly different system and where jurors have a different mandate to return different verdicts than the English common law and the system is different from the United States. But what is said here is that the unacceptable element is that by definition of the Victorian statute this jury begins as something other than 12 and it has a built‑in prejudice of one of the 15 and that that it is that makes it a departure from an essential element, which this Court has said has to be observed and which naturally if you read section 80 as a constitutional provision has to be discerned and preserved as a definitional element of a jury.

That is the argument that we have before us and really the position in Western Australia is significantly different.

MS PRITCHARD: It is very similar with respect, your Honour, in relation to the Northern Territory provisions but not in relation to the foreperson situation to which your Honour has referred. Our written submissions do deal in some detail with the question whether there is a difficulty by virtue of starting out with a jury of more than 12 and having only 12 deliberate and reach a verdict. In our respectful submission, there is no difficulty constitutionally in relation to that.

KIRBY J: Can you explain to me again what actually happens to the reserve jurors? You say they sit in Western Australia with the selected jurors?

MS PRITCHARD: Yes, your Honour, as I understand it they sit with the jury.

KIRBY J: They go into the jury room and deliberate with the jury?

MS PRITCHARD: They do, your Honour, as I understand it. As I understand it they do, your Honour. They are treated in all material respects precisely the same as the first 12 jurors whose names are called and who are not subject to challenge.

KIRBY J: Is that the position in the United States is your understanding?

MS PRITCHARD: My understanding of the United States position, your Honour, and I could be subject to correction by my learned friends, is that there is a degree of separation, a greater degree of separation between the “alternate jurors”, as they are called.

KIRBY J: We who are unused or undesirous of giving section 80 a constitutional reading have to look at what happens in the United States, which in some ways is more analogous to our federal position.

MS PRITCHARD: With some consideration for the differences there, your Honour, in relation to the Sixth Amendment and so forth, concerns which have been identified in this Court in earlier cases.

HAYNE J: In the transcript of the special leave in this matter of Wai, there is reference at page 4, as it happens, by Justice Kirby, to the point not impressing the US Supreme Court. At some point it might be of value if we could have a reference to any consideration by the US Supreme Court of the issue.

MS PRITCHARD: Your Honour, returning briefly to the similarities between the reasoning process in Ah Poh Wai, and that is the essential feature of the jury which is identified by the Chief Justice in that case. Can I draw the Court’s attention that the essential feature referred to by his Honour there resonates with comments made by various members of this Court in Brownlee, namely, to the point that the concern is to ensure that the jury are not influenced by “improper outside influence”, in the words of your Honour the Chief Justice and Justice McHugh at page 290, paragraph 27, and in the words of Justices Gummow and Hayne, together with Justice Gaudron at page 302 referring to the jury being able to exercise its functions without fear or favour.

When the court came to apply considerations of that kind to the provisions in Western Australia in relation to this issue of tampering or contamination, your Honours, reliance was placed by the members of the court on the similarities in the way that the reserve jurors are treated as opposed to members of the jury, the first 12. At page 423 his Honour the Chief Justice referred to the fact that the reserve jurors are bound by the same oath or affirmation as that taken by original jurors, and similarly at page 428 in some greater detail - and I will not take the Court to it now - Justice Pidgeon refers to the fact that the structure created in relation to reserve jurors did not bring about a situation where tampering was possible, that is, reserve jurors had no prior knowledge of the case and if they did, they were obliged, like other jurors, to declare that and to be excused, that they were subject to the same oath, that they were subject in all other material respects to the same treatment, and the same ‑ ‑ ‑

KIRBY J: Why is unanimity an essential characteristic, as this Court has held, but 12 which is equally part of the history of jury trial, and one might say, of the definition of a jury? Why is that not an essential characteristic?

MS PRITCHARD: In Cheatle, your Honour, the Court identified a number of reasons why unanimity was an essential requirement, having regard to both history, authority and principle. Turning to the principle considerations it was, as I understand it, the fact that unanimity would assist deliberations of the jury to ensure that all members of the jury, their perspectives and views were taken into account.

KIRBY J: But that can be done by a majority verdict. That cannot be the reason.

MS PRITCHARD: It will be a matter of fact and degree, your Honour, but that was not the only consideration. In addition, it was the fact that the accused deserves the benefit of any reasonable doubt and that unanimity would ensure that there was that protection for the accused person.

KIRBY J: But the integrity of the process, the integrity and the non‑addition of strangers would seem equally important for the proper functioning of the jury system.

MS PRITCHARD: But therein, with respect, your Honour, lies the difference. In our submission, reserve jurors cannot properly be treated as strangers to the jury proper. That is because ‑ ‑ ‑

KIRBY J: That means you have 12 plus. That means you acknowledge that you can go beyond 12.

MS PRITCHARD: With respect, your Honour, you can go beyond 12 in terms of the number of the jury. That is a matter of historical reference point and, as Brownlee decided, 12 is not a magic number.

KIRBY J: No, but Brownlee was dealing with the problem of less than 12. We are here, for the first time, being asked to say you can go up.

MS PRITCHARD: With respect, your Honour, as I read Brownlee nothing in it suggests that there is any difficulty with exceeding the number of 12 in terms of the number of jurors one starts out with. The question in this case, whether one ends up with less than the number one starts out with, is not different, with respect, to the situation where a juror is discharged for illness or for incapacity or for cause.

KIRBY J: But could you then say in a terrorism trial the Federal Parliament passes law and says, “Well, these are very difficult and very long and very special, so we are going to lay down special qualifications. You’ve got to have a university degree, and there will be 15”? You see, we have to keep our eye on what happens around the corner in these things.

MS PRITCHARD: Precisely, your Honour, but as the Court observed in Brownlee and in Cheatle, there will be permissible differences in terms of the qualifications for jury members. The guiding light might be in that situation that your Honour has referred to, where the jury remains representative of the community and to impose certain restrictive requirements may lead to a departure from that requirement of representativeness.

McHUGH J: In 1900 the jury was hardly representative of the community.

MS PRITCHARD: Precisely.

McHUGH J: It was white, middle‑class and middle‑aged.

HAYNE J: And male.

MS PRITCHARD: And male, your Honour.

McHUGH J: And male.

MS PRITCHARD: Your Honour, there was a question before as to the United States system of alternate jurors. The leading case there is United States v Olano 507 US 725. The system there is that there is a system of alternate jurors which is ‑ your Honours, yes, I am drawing to the end of my time. The relevant passages are, your Honours, at pages 739 to 740 of that report.

The final point to note, your Honours, is that in Ah Poh Wai the Chief Justice did accede to the possibility that there could be an influence exerted by a member of one of the reserve jurors over the remaining members of the jury. His Honour’s conclusion in that case though was that any such possibility would be cured by direction by the trial judge. That conclusion, your Honours, is entirely consistent with the views expressed by members of this Court in Brownlee but in more recent times a greater weight has been given to the giving of directions and the fact that the jury will take those into account and will act in accordance with those directions.

HAYNE J: The more deep‑seated question is, what do you mean when you say no influence by people outside the jury, or outside the process? If you mean outside the trial process, all 15 are within.

MS PRITCHARD: Precisely.

HAYNE J: The notion that the jury should remain uninfluenced by those outside the 12 of them gives a particular role to counsel which counsel may not find to their advantage I would have thought.

MS PRITCHARD: Yes, your Honour. I probably cannot take that point too much further.

McHUGH J: Ms Pritchard, my recollection is that a woman charged with murdering her husband, at one stage of the common law, was charged with petty treason and it was heard by a jury of 24. Have you any recollection ‑ ‑ ‑

MS PRITCHARD: When the question was posed this morning, your Honour, in relation to increased numbers of jury members, the only one that came to my recollection was the Scottish provisions for 15. I am not actually aware of the 24 that your Honour is referring to.

KIRBY J: These are current. What his Honour is asking is historical.

MS PRITCHARD: Yes, your Honour.

KIRBY J: But if it is historical, it is before our Federation and it is something exceptional and unusual. The normal principle for the whole of

the period of Australian colonisation would have been 12 I would have thought. I do not know.

MS PRITCHARD: Your Honour, I cannot advance the proposition I have already advanced.

KIRBY J: Perhaps more to the point, in Olano, which you have drawn to our notice, the Supreme Court of the United States said that the presence alternate jurors during jury deliberation was an error that could not be corrected by the court of appeals, and they seem to have set their face against that. Why are we different?

MS PRITCHARD: As I understand it, the concern of the court in Olano has been with respect to the role of the reserve jurors or their participation once the denigration has started.

KIRBY J: That is why they keep them separate in the United States. That is why they keep them out.

MS PRITCHARD: Yes, it is once the jury has retired that the question has arisen in Olano, as I understand it, your Honour, not the situation we are dealing with here.

KIRBY J: Why are we different? Why are the words “a jury” in section 80 to be construed differently in our Constitution than in the United States? We have already whittled down section 80 so much. Why do it again? It is there, and it was intended to be a constitutional provision and I differ from the Solicitor for the Commonwealth. The court has never questioned that it is a constitutional guarantee, as far as I know, it has simply taken a view concerning how you can interpret and apply the constitutional guarantee.

MS PRITCHARD: With respect, your Honour, the difference may lie in views about where contemporary responses to changing community needs arises and where essential features stop. May it please the Court, they are the submissions for Western Australia.

GLEESON CJ: Thank you. Yes, Ms Pepper.

MS PEPPER: Your Honours, I do not seek to put any additional oral submissions and seek to rely only on the written submissions that have been provided to the Court.

GLEESON CJ: Thank you.

KIRBY J: Do you know anything about the position in Canada, Ms Pepper?

MS PEPPER: I am afraid I cannot assist you there, your Honour, other than what has already been provided to the Court by way of the material in the chart.

KIRBY J: I wondered if the Criminal Code provisions had been challenged under the Charter and on the equality provision.

MS PEPPER: I do not believe they have at this stage but I am happy to take that on notice, your Honour, and provide you with an answer to that.

GLEESON CJ: Yes, Ms Crennan.

MS CRENNAN: If the Court pleases, for the sake of brevity, we adopt as part of our submissions the submissions made by the respondent in Ng in paragraphs 3.1 to 3.6, the respondent in Fittock at paragraphs 35 to 40. We also adopt the submissions of the Attorney-General for the Commonwealth on the particular constitutional issues dealt with at paragraphs 9 to 34 and on the Bernasconi issue in Fittock we adopt the submissions of the Attorney-General for the ACT at paragraph 6(b), 11 to 13 inclusive and 15 and 16.

We otherwise rely on our written submissions and only wish to make further submissions about two matters, firstly the foreman issue and secondly, about the relationship between unanimity and jury numbers.

In relation to the foreman issue might we ask your Honours to turn to the supplementary appeal book at page 12 and ask you to look at that. Whilst I will not read it, may we point out to your Honours that there was a direction given on page 12 by Judge Wodak commencing at about line 15 continuing on over at page 13 to about line 13 and in that direction his Honour spoke several times of the fact that the foreman’s role was as no more than a spokesman or a channel of communication as between the relationship to the jury asking questions of the judge and he also emphasised that the foreman had no special position. We would submit that that direction was impeccable in terms of the principle of equality which is equality in terms of the deliberative process. It is not equality ‑ ‑ ‑

KIRBY J: It is equality until the critical moment arrives of constituting the jury to try the accused. At that point of time your legislation uniquely, save I have not looked at the South Australian, gives a special leg‑up to the foreperson. It cannot be put off.

MS CRENNAN: With respect, we would say that the balloting process in relation to the foreperson has nothing to do with the equality in the deliberative process because ‑ ‑ ‑

KIRBY J: But it has an enormous to do. He cannot be put out of the deliberative process. Everyone else is random except the foreperson who is not constituted as part of the jury of the accused. He is elected by 15 persons, some of whom will not be the jury of the accused.

MS CRENNAN: But, with great respect, your Honour, the point is not his presence or absence from the deliberative process. The equality is the equality of voting and the equality in relation to taking part in the deliberative process.

KIRBY J: It does not have the equality of chance. He or she has more than equality, has guarantee – no equality.

MS CRENNAN: Our submission would be, your Honour, that the balloting process is irrelevant to the issue of equality and the deliberative process and insofar as the issue raised by the applicant is that the principle of juror equality and the deliberative process is somehow offended by the ballot, we would say it is not. That would be our submission. We would also inform your Honours that the direction given by Judge Wodak is standard form direction in a standard book of charges and we have given both our learned friends and the Court that standard form direction. We would make the further point, your Honours ‑ ‑ ‑

KIRBY J: His Honour is a very experienced judge and he is giving a standard direction on the state of the current Act, but this is a question of whether the Act in a federal trial is valid and applicable to a federal trial for an indictable offence against the law of the Commonwealth. It is irrelevant that he gives directions on Victorian law to the issue we are addressing.

MS CRENNAN: We are making a distinction about the - the fact that he is balloted off in that process, we would say, is completely irrelevant to the role he plays in discussions and otherwise in the deliberative process.

KIRBY J: But he cannot be balloted off. That is the whole point. He was balloted off and then somehow or other under your Act in a federal trial he has a guaranteed place because he has been elected by 15 persons.

MS CRENNAN: But it is not to the point, your Honour, in relation to his role in the deliberative process. In any event, that is our submission, that it is irrelevant ‑ ‑ ‑

KIRBY J: It just cannot stand with the United States Supreme Court. It cannot stand and I want to know why we are different.

MS CRENNAN: My learned junior has ‑ ‑ ‑

GLEESON CJ: The error that was identified in the United States Supreme Court was a breach of a rule that said that after the jury retired for their deliberations the reserve or additional jurors, if not called on, should be excluded from those deliberations.

MS CRENNAN: Yes.

GLEESON CJ: That was the error the subject of the decision in Olano.

MS CRENNAN: Yes, that is right.

GUMMOW J: It was held not to be an error of sufficient gravity.

MS CRENNAN: We have made written submissions about that issue, your Honour, at paragraphs 3.51 to 3.57 and we have directed attention to Olano which we would say, so far as the United States position is concerned, is the entry point in relation to that issue. But, we would say, with respect, your Honour, that is quite different from this foreman issue. The copy standard charge has not been handed up, so we would now hand that up, if your Honours please.

We would also say in relation to the direction which Judge Wodak gave that in the absence of any evidence to the contrary, for the purposes of this Court, it ought to be assumed that the jury followed those directions. Also in that context it is worth looking at what his Honour said at the bottom of page 23 in the supplementary application book at line 30 where he gave directions after the ballot had taken place and was directing the remaining 12 not to speak:

to any of the other three persons on the jury . . . because they are no longer members of the jury.

He was treating them as all members of the one jury – jurors for all constitutional purposes and the three balloted off as being “no longer members of the jury” after the balloting process took place. We would say, your Honours, that emphasises that the additional jurors are not strangers to the jury, they are part of the jury process and they simply do not consider the verdict in the context that 12 is the maximum number for that purpose.

KIRBY J: If it is the maximum number for the purpose of considering the verdict, why are you permitted to increase it and also to give it a power to give a guaranteed position to one of its number?

MS CRENNAN: We would say the legislative provisions for additional or reserved jurors, not unlike the legislative provisions for minimum numbers of jurors, are all designed to ensure that in long trials they will not abort by reason of juries falling below a minimum number. So they have the same utilitarian person, both the provisions considered in Brownlee, and these provisions for additional or reserved jurors and we would ‑ ‑ ‑

KIRBY J: Yes, but you have to test it by this: what happens if an Act is passed that says the jury shall be 27 and before the final jury is constituted, they shall select amongst their number the 12 who will be the final jury? That gives, in effect, a power to a majority of the jury to select who will be the accused’s jury. If it can be done for one to give a guaranteed place, why can it not be done for 12 or 15? You see, that is the suggested contamination problem. Then you get the jury whittled away from being a fixed number who are randomly selected and no more than 12 to a group who can select themselves and thereby affect the outcome of jury trials.

MS CRENNAN: Well, we would submit that no necessary contamination arises out of the extra numbers being there for part of the process only. They are part of the process. In Australia, regularly pre-considering a verdict, jurors have discussions with each other and we would say those jurors, being part of the process and being properly directed as they were ‑ ‑ ‑

KIRBY J: You must just forgive me for being a bit suspicious, because once one step is taken, it is pushed and things are changed. We have to stand as guardian against that because it is in the Constitution.

McHUGH J: But that is the whole purpose of the discussion, the evolution of jury trials. I mean, in the United States until today and in England until 1933, you had a grand jury of 24 presenting indictments. The Constitution does not say anything about petit juries or grand juries; it talks about a jury. In England you had special list juries whereby you had 48 people selected by the sheriff and then the attorney for each party crossed off 12 names each, leaving 12 people to decide many of the important commercial cases and civil cases in England for a long period of time in the 19^th century.

MS CRENNAN: Well, there are two points to be raised about that, your Honour, which are these: first of all, the Constitution says nothing about numbers. It was known at Federation that there were Scottish juries of 15, it was also known that majority verdicts were taken in respect of those juries of 15. So we would submit that, whilst the easy answer in this case, which is the answer we and others have given in relation to what we would see as the real issue in the case. We would see the real issue in this case as being whether or not a unanimous verdict of guilt from a jury of 12 is contrary to the section 80 mandate, because more than 12 had been empanelled and were available to sit.

Now, the simple answer is that it is not unlike Brownlee. In Brownlee it was a minimum number provision; in this case it is an additional juror provision. They have the same utilitarian purposes and they are merely incidents of procedure, which are meant to be helpful in the context of long criminal trials.

There are some other points to be made other than that simple answer and they relate to the synergy, if you like, between the Cheatle requirement of unanimity and maximum numbers. In Brownlee, lurking in the interstices of Brownlee, if I can pick up a phrase from Mr Walker this morning, is the concern that there may be some point at which juror numbers are too low. The US cases were discussed in that context - Williams v Florida and Ballew v Georgia. The implicit point is that if they are not sufficiently representative - even agreeing that that is relative in any event - if there is too great a chance of conviction or too small a chance of acquittal ‑ ‑ ‑

McHUGH J: Those who believe in a progressive interpretation of the Constitution have to be very careful about tying down the Parliament.

MS CRENNAN: Well, that is right.

McHUGH J: In Cheatle’s Case I sat here with six other Justices, and we were belaboured with arguments that juries at Federation consisted of men, so was that a fundamental requirement of a jury? We said in Cheatle it was not.

MS CRENNAN: No, that is right. Cheatle, of course, was decided against a background where every relevant trial in Australia was conducted of juries of no more than 12, so that was the background to Cheatle. In Brownlee when discussions about 12 arose, 12 was found a sufficient number to be representative, and also a proper number for group deliberations, to facilitate group deliberations, and of course, 10 found to fall into the same category. Query, what about six, what about five? Now, the point here is the reverse. Well, what about numbers above 12?

We would say one can give the simple answer that numbers above 12 are simply incidental matters of procedure, but a point may arise, say, with a jury of 18, where they are representative all right because they are greater in number, but they do not promote group deliberation. In fact, the point about the juries in relation to women that were larger than normal juries - I cannot remember the number. I am happy to rely on ‑ ‑ ‑

McHUGH J: I just have a recollection at some stage of seeing a thesis prepared by a woman on this issue, or some part of a thesis which said this applied in New South Wales in the 1800s.

MS CRENNAN: I cannot remember the number. I can remember there were larger juries, and I do remember the rationale for it, at least I think I do. It was not that the crime was serious and a capital offence, because 200 other crimes were also capital offences at the time. The rationale for the larger jury was, it was so contrary to nature – this was the thinking at the time – for a woman to murder her husband, that in order to have a safe conviction, you would have a larger jury.

GLEESON CJ: That sounds very sensible.

MS CRENNAN: Yes, quite. Implicit in that, of course, is that the larger the jury, the different prospects of getting a unanimous verdict. That is the point. In relation to juries above 12, it may be that a jury of 18 is inimical to getting a unanimous verdict and so that may be completely incompatible with Cheatle. That is the point about the applicant’s argument so far as we are concerned.

GLEESON CJ: That is why nobody on behalf of the applicants is arguing that you cannot have more than 12 jurors?

MS CRENNAN: No, precisely right.

GLEESON CJ: They are very enthusiastic for large juries.

MR CRENNAN: That is right. They are quite happy for section 80 to be utilised to sanction juries of 15 or, indeed, even 18. That is another related aspect to the practical implications of the applicant’s argument. The practical implications are that juries would vary in number in Victoria, between 10 and 15, and would vary in number in Western Australia between 10 and 18.

Now, it is an extreme example, of course, but take Western Australia, you may have co‑conspirators being tried by different juries; one is convicted by the jury of 10, the jury cannot decide in relation to 18. That is a function more difficult to achieve - the Cheatle unanimity, the greater the numbers. So it may be that a point comes when a jury is sufficiently large possibly to contravene the mandate of section 80. So that is one implication of the applicant’s argument.

The other point about the applicant’s argument in relation to numbers is this. The more you have, say, a jury of 10 convicting and a co‑conspirator’s jury of 18 not being able to decide, the greater you undermine or erode public confidence in the jury system, because at the moment, jurors accept that your chances of conviction, acquittal or hung jury all depend on 12 or a similar number, conscientiously looking at all the evidence, whereas if a jury of 10 convicts, a jury of 18 cannot decide, the risk is that the public will think the chances of conviction or acquittal depend on jury numbers, not on a deliberative body of 12, which is what it commonly is in Australia at the moment, looking at the evidence.

McHUGH J: Selection of the number 12 is just an accident.

MS CRENNAN: Well, it is.

McHUGH J: Some people say because there were 12 apostles, but I think the better view is it was because you required 12 witnesses in the former trial.

MS CRENNAN: I think in Brownlee it was said that 12 has been lost in the mists of time and history, and that is right of course. And true it is there is no magic about 12. The point about 12 is it has been found to be big enough to be representative and big enough to have the appropriate group deliberations. The point about five is it may not be sufficiently representative, so it may contravene section 80. The point about 18 is it may be inimical to unanimity and therefore be contrary to section 80. So they are the more difficult issues lurking, although as I say the simple answer to the applicant’s case is the one we have given which is that additional juror provisions, like minimum number provisions as in Brownlee, are simply incidental matters of procedure.

There is one other matter we need to deal with just for the sake of completion. It is that in Canada we have a correction to make to our submissions, which is this. In paragraph 3.7 of our submissions we dealt with the Bill No C‑13, which has been the relevant Bill, and we found out since that in fact the correct number is ‑ we called it Bill C‑24. It is in fact Bill C ‑13, and we have provided the correct copies. I just mention that for the sake of completeness. That information came through the good offices of the Department of Justice in Ottawa. We found out on the occasion of that inquiry that in fact the alternate juror provisions in Canada are quite distinct from those in the US, or the ones under consideration here, and the Northern Territory’s chart of different juror provisions in different jurisdictions does not make this point, which we are bound to make having found it out.

The alternate juror provisions in Canada only apply from the time the jury is empanelled up until the time evidence commences. So they are quite distinct provisions. They seem to us to have something to do with those rather long proceedings on voir dire that you can have.

GLEESON CJ: Thank you.

KIRBY J: So once the trial begins, in the sense of the evidence, you are stuck with the 12 who are there at that time?

MS CRENNAN: Yes, that is right. Those alternate juror provisions in Canada came in in early 2002 in July. So there is no decision actually in relation to those of which we are aware.

GLEESON CJ: Yes, thank you.

KIRBY J: There is no jury guarantee in the Canadian Constitution I think. I do not remember seeing a jury guarantee provision in the Canadian Constitution.

MS CRENNAN: In the Charter of Rights I think there is an analogous guarantee.

KIRBY J: There is now, is there?

MS CRENNAN: And I think it might be clause 11, and I think you will find it set out in Sherratt’s Case which is on our list of authorities, according to Sherratt. If the Court pleases.

GLEESON CJ: Thank you. Yes, Mr Gageler.

MR GAGELER: If the Court pleases. My intervention is limited to the Fittock case and limited to the Bernasconi point in that case. The proposition for which Bernasconi stands, stripped of embellishment, is in my submission, that set out in paragraph 8 of my written submissions. It is a proposition about the proper construction of section 80 of the Constitution and it is a proposition that involves no more and no less than reading the words “law of the Commonwealth” in section 80 as excluding a law made under section 122.

If one looks at Bernasconi itself, despite the broader and more controversial statements in the case, that proposition reflects the question in the case as posed by Chief Justice Griffith in 19 CLR 629 at page 634, point 5. It reflects, in my submission, the answer as stated by Justice Isaacs at page 637, point 1, and it reflects the terms of the concurrence that Justices Gavan, Duffy and Rich at page 640, point 3. If one looks to ‑ ‑ ‑

KIRBY J: There would have been great practical problems in summoning a jury in the territory of Papua or in India, whereas there are not such problems in Australia’s mainland territories, they are just the same in that respect as a State.

MR GAGELER: Your Honour, I will come to that point in a moment. That is Bernasconi itself. If one looks to subsequent authority it is in terms of the proposition that I have set out in paragraph 8 that Bernasconi was in substance explained in Lamshed v Lake 99 CLR at page 148, point 7, in the judgment of Chief Justice Dixon, a judgment with which other members of the Court concurred.

GUMMOW J: I would have thought you were on happier ground with your narrower proposition, which is all you need.

MR GAGELER: Your Honour will have seen the complication that arises in relation to ACT legislation that I have referred to in paragraph 4 of my written submission which means that I cannot take the narrower proposition without adding at least some embellishment to it because there are criminal laws in the ACT that apply by virtue of section 34 of the Commonwealth Act, that is of the ACT Self‑Government Act, and that have not been re‑enacted by the local legislature.

But your Honour may have noted in Bernasconi itself that it may have been possible to decide Bernasconi by reference to that narrower proposition. Indeed, page 634, point 3 ‑ ‑ ‑

GUMMOW J: At the end of the Commonwealth’s submissions, they are lost at the moment, there is some to majority verdicts in some particular Commonwealth Territories and I think references to no juries at all in some serious matters. It is page 28 of Mr Bennett’s submission, the very last heading. To what extent are those characteristics (a) and (b) present in the laws of the Territory, your Territory?

MR GAGELER: If your Honour will excuse me while I locate it.

GUMMOW J: I would be surprised that the Territory Assembly is going around abolishing trial by jury.

MR GAGELER: Your Honour, it is really not a matter of abolishing trial by jury in the ACT but in the ACT, as Mr Bennett’s submissions show ‑ ‑ ‑

GUMMOW J: Do you have majority verdicts?

MR GAGELER: No, we do not have majority verdicts ‑ ‑ ‑

GUMMOW J: You do not.

MR GAGELER: But we do have an opportunity for election to be tried by judge alone.

GUMMOW J: So you have a wavier question.

MR GAGELER: Yes.

GUMMOW J: Right. Anything else.

MR GAGELER: We also have a provision equivalent in the Juries Act, equivalent to the provision in question in Ng.

GUMMOW J: Which is?

MR GAGELER: A provision that allows for additional jurors to be empanelled at the discretion of a judge but then to be balloted off back to 12 at the conclusion of the trial.

GUMMOW J: They are the three areas?

MR GAGELER: Yes.

KIRBY J: No special status for foremen?

MR GAGELER: No. Your Honours, I was speaking of the Bernasconi proposition, that is what I described as a wider proposition. I said that it is consistent with Lamshed v Lake. It is in terms of that proposition that Bernasconi has been explained by members of the current Court in GPAO and Eastman, as we have mentioned in paragraph 8 of the written submissions.

Can I add three further references, all in terms of the same proposition, that is in Spratt v Hermes 114 CLR 227 at 243 to 244, the judgment of Sir Garfield Barwick; Newcrest Mining 190 CLR 513 at 558 point 9 Justice Dawson and Kruger v The Commonwealth 190 CLR 1 at 108 point 5 Justice Gaudron?

In support of that proposition, borrowing in part from the language of the joint judgment in Eastman set out in paragraph 9 of the written submissions, the things to be said are these, and essentially there are four of them. One, it is a proposition which, although not compelled by the language, is at least open on the language, that is it involves reading the words “law of the Commonwealth” in section 80 as referring to a law “for the peace, order and good government of the Commonwealth”, to pick up the language of sections 51 and 52 of the Constitution and not as including a law “for the government” of the Territory, to use the language of section 122.

KIRBY J: But why would that be so? This is a provision in Chapter III which is not, as it were, locked into Chapter II. Section 51 says “subject to this Constitution” I think it begins with.

MR GAGELER: Your Honour, the only point I was seeking to make is why were these not compelled by the language. It is a construction that is open on the language. The second point is that it pays due regard to the practical considerations that arise from the varied nature and circumstances of Territories, a point that has been made by others, and thirdly, it places an Australian citizen tried for a serious offence against the general criminal law, say murder, say stealing in a territory, in no different position from an Australian citizen tried for precisely the same sort of offence in a State in that section 80 is applicable to neither. The fourth proposition is this ‑ ‑ ‑

KIRBY J: What about the inconvenient necessity to become a State, which could not happen in the case of your client, or at least probably could not happen?

MR GAGELER: That is correct.

KIRBY J: It certainly could not happen with the seat of government if that is distinct from the ACT.

MR GAGELER: Yes, but my point is that it places a person tried for murder in the ACT in exactly the same position as person tried for murder in Queanbeyan, for example.

KIRBY J: But it is not a State. You cannot escape section 122.

MR GAGELER: I accept that, but the fourth point is this in support of the proposition. It is that it does not stand in the way of the application of section 80 of the Constitution to the trial of an offence against a Commonwealth law that is made under section 51 or section 52 of the Constitution, but which operates in the Territory.

The narrower proposition, if I can deal with that very quickly, is what Mr Bennett described as the fall‑back proposition. I adopt what is said

in paragraphs 58 to 60 of the Commonwealth’s submissions in paragraphs 10 to 18 of the Northern Territory submissions, the proposition being that law of the Commonwealth in section 80, at the very least, does not encompass a law of a self‑governing Territory but I add ‑ ‑ ‑

KIRBY J: Did I hear the word “sovereign” there? Did I hear you say “sovereign governing territory”?

MR GAGELER: I said “self”. I may have slurred but I only meant self.

GUMMOW J: I note that you are falling in love with “plenary” though, I see, in paragraphs 15 and 16 of the written submissions.

MR GAGELER: I knew your Honour would not like that word but I did check.

GUMMOW J: That is why you put it in, I suppose.

MR GAGELER: I know your Honour never likes that word but I did check and it was used by other members of this Court, I think, in Capital Duplicators and so I felt ‑ ‑ ‑

KIRBY J: But we just quoted what the Act said.

MR GAGELER: I felt able to use it in the submissions. I need to add one qualification, gloss or addition to the submissions that have been made by the Northern Territory and the Commonwealth on this point and that is that I would seek to characterise as within the conception of a law of a self‑governing Territory and therefore not a law of the Commonwealth, not only a law enacted by the legislature of such a Territory, whether it is the Northern Territory under section 6 of its Act or the ACT Legislative Assembly under section 22 of its Act, but also a law that is capable of amendment or repeal by the legislature of a self‑governing Territory therefore catching former laws continued in existence by section 34 of the ACT Self‑Government Act. If the Court pleases.

GLEESON CJ: Thank you. Yes, Mr Street.

MR STREET: May it please the Court. Your Honours, for almost three months, from 14 April until 6 July 2000, my client had a trial involving a jury of 15. If anyone had asked the question, “Who was the jury for that three month period?”, it was the 15 persons. This is not a case where there was a reserve system of the kind dealt with in Ah Poh Wai. The statute in Victoria is materially different from a reserve jury legislation of the kind discussed in Western Australia and in the Northern Territory.

So that here the panel that was empanelled on 14 April were 15 jurors. What section 80 addresses when it talks about “trial” cannot be trial from the point of retirement, it must be a trial where one listens to the evidence. The jurors perform their task. Who was the jury doing that? In our respectful submission, it was the 15. Your Honour the Chief Justice asked the question about what would happen if there was a jury of 30. No doubt the unanimity there might be one in favour of a particular party but the concept of unanimity and its consequences in relation to 30 applies equally to 15. What is the consequence of reducing the number below 15, the jurors that sat for those three months being reduced below 15? That was, in our respectful submission, to offend Cheatle because what ‑ ‑ ‑

GLEESON CJ: You do not argue that the fact that there were 15 contravenes section 80?

MR STREET: Not at all, your Honour, but the legislation in Victoria provided to have a jury of 12 or more, up to 15. Such a jury was fixed. Your Honour, there may have been any number of events that took place where that 15-panel jury was reduced through death or illness of those jurors. In this case, though, none of the jurors were lost and when one came to the point of retirement there were still 15. In those circumstances, to permit the reduction of that jury simply for the purpose of retiring for deliberations is in fact to offend the principle of unanimity identified in Cheatle.

Your Honours, can I then just touch upon the issue that was raised by my learned friend, Ms Crennan, in relation to the direction that was given to the jury. It is of particular moment that that standard form of direction is addressing nothing more than that the foreperson is a spokesman. It is a direction to deal with the fact that if you do have a spokesperson, they do not, by reason of being a spokesperson, have a special status. It is not concerned at all nor does it address the special provision that, “You will, as Mr Foreman, not have your card put back in the ballot after it has been drawn out, but you, Mr Foreman, once chosen, if there has been no change, will remain on the jury.” There was no such direction of a kind addressing the inequality and disparity that flows from that and it creates a real unfairness or appearance of unfairness between the juror who has been elected foreman and whose card is kept separate from the other jurors at the time of this balloting process before retirement for verdict.

It creates a disparity in relation to both position and power and contrary to the submissions that were put that one has an equal vote, it is not the case that the consensus or agreement to be arrived at by jurors is won by a vote; it is by deliberation. There is no dictation as to how they might reach a consensus in respect of their unanimous decision. It is not equality of vote that would be of moment and answer. It is a position where it is equality of position between those jurors.

Here one has a juror given a special status, a status that permits that juror to have their card removed from the balloting process that takes place towards the end of a trial just before retirement. Your Honours, in our respectful submission, the direction referred to does not assist and nor does the proposition of some equality in relation to voting.

Your Honours, there was a reference by your Honour Justice McHugh in relation to the number of jurors historically. I do understand the position in England was that there were juries of 24. There is a reference in Cowper or an interpretation ‑ ‑ ‑

McHUGH J: At one stage in early common law there were jurors from 24 to 84 and the presenting jury would have jurors added to them and for a long period of the common law jurors who were on the grand jury were also on the jury which actually tried a case. It has been a course of development for 600 years.

MR STREET: Your Honour, that may be so, but it is very odd to have a position where a jury having been empanelled for 15, one then has a position where one of those jurors is given a special status, a statutory status, a statutory protection, removed from a random process of selection for the purpose of any reduction, if there is to be a reduction ‑ ‑ ‑

McHUGH J: What we said in Cheatle, Mr Street, was that the jury must be representative of the community and if you start with 15 and they are drawn by lot, why is that not representative of the community? The fact that by some device you cut them down to 12, what does it matter?

MR STREET: Your Honour, in this case, it is not representative of the community. It is representative of the jury. The jury has participated in electing one of the persons to participate on the deliberation.

KIRBY J: Yes, but only from those who were selected from the community.

MR STREET: Quite, but the question of representativeness of the panel, in our respectful submission, is something different from the random selection of the jury. The jury, in terms of its random selection, is tainted in the present case because it is, in fact, members of the jury that elect the foreman; self‑elected by members of the jury, not elected by random.

McHUGH J: What difference does it make that the judge in the exercise of his discretion discharges a jury, as in Wu?

MR STREET: But, your Honour, the difference ‑ ‑ ‑

McHUGH J: So you start with 12, but the judge has a discretion to discharge a juror. Here a statute says three people have to go. What difference in principle? How can your argument stand with Brownlee?

MR STREET: Your Honour, what it does is it focuses directly on Cheatle and says, if you have a jury of 15 and you reduce it to 12, as the Chief Justice said, that will reduce the need for unanimity. It impacts on the obligation for unanimity, quite apart ‑ ‑ ‑

McHUGH J: So does a jury of 10.

MR STREET: Your Honour, here, there had been for this three‑month period, almost, a jury of 15 and, in our respectful submission, section 80 when it speaks of trial shall be by jury or a point where it is upon indictment, it is not speaking of trial at a particular point. It is speaking of trial from the time that the jury is empanelled until the time of verdict, and it is speaking, in our respectful submission, of a jury that performs the function, ordinarily performed, of listening to the evidence and then deliberating. Here, you had 15 for three months, and then by statute, the impact of which is to reduce the obligation in terms of unanimity, reduces it to 12. That is one leg.

The other leg of our argument, your Honour, which we respectfully press is that in relation to the selection of the jury, no doubt the 15 were randomly selected at the point of time that the 15 were empanelled, but from then on, when one gets to this creation of a reduction to 12, that is not a random selection of the ‑ ‑ ‑

McHUGH J: But you are picking on certain words that were used in Cheatle about random selection and, if I remember rightly, it was just added as a sentence after where we said that it was necessary to be representative of the community. But if you look at the constitutional purpose of this, it is that you want somebody that will protect the citizen against the forces, in those days, of the Crown, now the Commonwealth, and why does not this jury do it? It is selected at random. It is not selected by the Commonwealth or by the State. It is selected at random and there is a statutory procedure. The jurors themselves select the foreman, two or three go, and you still have this body which stands between the citizen and the Crown.

MR STREET: Your Honour, if one tests it in relation to that question of confidence of the public in the performance of the task and one posed the question to a member of the public as a reasonable person observing a jury, where an order has been made for a jury of 15 – that is not a problem, that is not violating any particular feature of section 80 – and that jury of 15 is participating in hearing the evidence, the ordinary man, we would respectfully submit, would be incredulous of the proposition that by simply a stroke of the pen the legislature can reduce that jury at the time they retire to deliberate – no events having taken place that has reduced the number – to 12. That does not build confidence; in our respectful submission, it undermines it. Equally, in relation to confidence, the man on the street, if exposed to the position ‑ ‑ ‑

KIRBY J: Man or woman, Justice Gaudron would require you to say.

MR STREET: I do apologise, I use it in appropriately in that context. Insofar as the person on the street looks at – perhaps the pun was not intended either – insofar as the ordinary person may be asked do they have confidence in a system where the foreperson is given a particular special status, where the foreperson ‑ ‑ ‑

McHUGH J: That is an argument you can direct to the legislature as to why you should have it, but we have to deal with a constitutional provision and look at what its purpose is.

MR STREET: But, your Honour, that legislative status, in our respectful submission, means you do not have a jury. It is not a jury where one of the persons participating is a special statutorily preserved person. What we had was a trial, either a trial by two juries or we had a trial by a jury and a statutory foreman, and a jury and a statutory foreman is not a trial by jury, it was not a trial by equal persons. In our respectful submission, that does violate an essential and fundamental feature of section 80.

KIRBY J: I understand the way you put that and I understand why you put it that way but, on one view, once you give away the 12, which you do, you have sold the pass because if you are looking at the words “a jury” it is a legal notion and once you look at that and you ask yourself, “What is its purpose? What is its fundamental character? Property? No. Gender? No. Unanimity? Yes.” At least arguably you could say historically with unanimity 12 for ordinary trials was the universal rule, but once you give that away and say you can have 15, it seems to me you have given away the argument because once you can have 15 you can vary it a little bit more and you can have 15 minus three ‑ ‑ ‑

MR STREET: Your Honour, with respect, one must ‑ ‑ ‑

KIRBY J: ‑ ‑ ‑ in particular circumstances or 15 minus three with special provision for one, once you can vary from the 12.

MR STREET: But, your Honour, the answer to that is that one must not focus just on the meaning of “jury”. One has to also embrace the meaning of “trial” because section 80 when it speaks of jury speaks of trial and there is a nexus between the two. The trial, in our respectful submission, has to be given its full meaning. If the trial in relation to that jury is one which commences with 15, that is the jury.

KIRBY J: Yes, but it has to be a trial by a jury and the question is: is “number” in the same category as “unanimity” or is it in the same category as “gender” and “property”?

MR STREET: Your Honour, we would respectfully embrace the concept of unanimity as an essential feature as Cheatle identifies.

KIRBY J: Of course you do, and the Court has too.

MR STREET: Once one has that though and one seeks for reasons of convenience to empanel a jury of 15, then it is that jury of 15 that section 80, subject to death or cause, must go to verdict.

KIRBY J: You say with the unanimity notion is the unanimity of whom. If unanimity is important, then it is the one mind of whom, and you say that it is of all those who are the jury?

MR STREET: Yes, your Honour. Insofar as there is some suggestion or appearance that there is some practical advantage for the accused, that does not necessarily follow at all, and the accused participated in circumstances – perhaps I withdraw that. I put it this way, your Honours. In relation to that number of 15, in our respectful submission, to have a process that permits it to be reduced by statute down to 8 or down to 10 or down to 12, must be impacting on the obligation of unanimity.

Your Honours, the other way we dealt with the 15 is the impartiality aspect and that is the interference of what amounts to then three strangers throughout a process for three months and the influence of those strangers over that period of some three months. In relation to the foreman’s position, we do respectfully maintain that to have that statutory status is not something which, when tested by a matter of function, permits one to say that the function that was being performed by that statutorily protected foreman could in some way justify the protection.

Reasons were advanced by my learned friend the Solicitor‑General for the Commonwealth to suggest that it was to save time. In our respectful submission, there is no foundation for suggesting a basis upon which the foreperson should be entrenched in this way. In our respectful submission,

it is in those circumstances one that violates an essential feature of section 80. If the Court pleases.

GLEESON CJ: Yes, thank you, Mr Street. Yes, Mr Wendler.

MR WENDLER: Your Honours, very briefly three matters. The first matter arises in relation to a submission that was made by the learned Solicitor for the Commonwealth and the submission was in a context of a reason why the narrower proposition in Bernasconi should not be overruled and the reason advanced was that there are some Territories – and he gave the example I think of Heard Island as a Territory – where obviously a system of trial by jury would be inconvenient and practically impossible to enforce. Of course the short answer to that is in the Constitution itself. The Parliament simply passes a law under section 122 and picks up the final words in section 80 and identifies where the trial will take place. So there is no inconvenience at all in relation to some Territories being sparsely populated and as being a reason that the principle in Bernasconi concerning the relationship between section 80 and section 122 of the Constitution should be maintained.

The next short submission I want to make is this, that in my outline of contention on page 13, paragraph 5.17, I have identified there in a sentence that there is no reserve juror system in England, Canada or New Zealand. The Canada part is of course wrong. I think last year a reserve juror system was activated, as it were, in Canada, different in style ‑ ‑ ‑

GUMMOW J: Ms Crennan told us about it.

MR WENDLER: Yes. I just wanted to correct that in the outline. The last matter is a matter which emerged though an exchange between your Honour Justice McHugh and other counsel concerning the notion or concept of jury has over time changed. Of course it has, as it must. There was a time in history where the function of a jury was testimonial. It was a fact‑finding function. That has changed. The function of the jury now of course is decisional. It makes decision. So it is transmogrified so far as its function is concerned.

We do not make any submission that things cannot, as it were, change, but the submission we make is essentially this; that there are some features of trial by jury which must not be permitted to change, because if they do change, there is a diminution in the integrity of the criminal justice system. The integrity of a verdict would be at stake if certain things were to change, and once that situation arises, of course, confidence in the administration of justice also suffers.

The Victorian example, I challenge anyone to put the Victorian position to any man in the street and describe how it functions. The answer every time is, “Why is the foreman being protected? Why is not he balloted off? What is so special about him?” That is the reaction you get on every occasion, certainly every occasion I have described in the Victorian system to a layman, that the immediate reaction is, “What’s ‑ ‑ ‑

CALLINAN J: Giving some evidence now?

MR WENDLER: No.

KIRBY J: It is a wonder you have not referred to the Underground.

MR WENDLER: Your Honours, I would be happy to – my time is limited. I would like to give some evidence of it. Yes, thank you.

GLEESON CJ: Thank you. Yes, Ms Pepper.

MS PEPPER: Your Honour, just in relation to the question posed by your Honour Justice Kirby about decisions pursuant to the Charter. The relevant clause is clause 11(f). In the time available perhaps it would be convenient to prepare a short note to the Court in that regard?

GLEESON CJ: Yes, thank you, Ms Pepper. We will adjourn for a few minutes to consider the course we will take in this matter.

AT 3.44 PM SHORT ADJOURNMENT

UPON RESUMING AT 3.44 PM:

GLEESON CJ: In each of these matters at least a majority of the Court is of the view that the application should be dismissed. The order of the Court in each case is that the application is dismissed. We will give our reasons in due course.

We will adjourn.

AT 3.45 PM THE MATTERS WERE CONCLUDED

[2003] HCATrans 563

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