Fittock v The Queen

Case [2003] HCA 19

HIGH COURT OF AUSTRALIA

GLEESON CJ,
McHUGH, GUMMOW, KIRBY, HAYNE, CALLINAN AND HEYDON JJ

PETER ANDREW FITTOCK  APPLICANT

AND

THE QUEEN RESPONDENT

Fittock v The Queen [2003] HCA 19

Date of Order:  13 February 2003
Date of Publication of Reasons:  10 April 2003
D7/2001

ORDER

Application dismissed.

On appeal from the Supreme Court of the Northern Territory

Representation:

G D Wendler with S H MacFarlane for the applicant (instructed by Laurence J Fittock)

T I Pauling QC, Solicitor-General for the Northern Territory with N Rogers for the respondent (instructed by Director of Public Prosecutions (Northern Territory))

Interveners:

D M J Bennett QC, Solicitor-General of the Commonwealth with C J Horan intervening on behalf of the Attorney-General of the Commonwealth (instructed by Australian Government Solicitor)

R J Meadows QC, Solicitor-General for the State of Western Australia and J C Pritchard intervening on behalf of the Attorney-General for the State of Western Australia (instructed by Crown Solicitor for the State of Western Australia)

R A Pepper intervening on behalf of the Attorney-General for the State of New South Wales (instructed by Crown Solicitor for the State of New South Wales)

S M Crennan QC with R M Doyle intervening on behalf of the Attorney-General for the State of Victoria (instructed by Victorian Government Solicitor)

S J Gageler SC intervening on behalf of the Australian Capital Territory Attorney-General (instructed by ACT Government Solicitor)

Notice:  This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Fittock v The Queen

Constitutional law (Cth) – Indictable offence – Trial by jury – Whether law enacted by the Legislative Assembly of the Northern Territory a "law of the Commonwealth" – Whether s 80 of the Constitution applies to trials on indictment in the Supreme Court of the Northern Territory for offences against a law of the Commonwealth – Whether Territory law permitting reserve jurors, who are discharged prior to commencement of jury deliberations, is inconsistent with s 80 of the Constitution.

Constitution, s 80.
Criminal Code (NT), ss 162, 165, 348.
Judiciary Act 1903 (Cth), s 70A.
Juries Act 1962 (NT), ss 6, 37, 37A.
Northern Territory (Self-Government) Act 1978 (Cth), Pt III, Div 1.

  1. GLEESON CJ, GUMMOW, HAYNE, CALLINAN AND HEYDON JJ.   At the conclusion of the oral argument for this application for special leave to appeal, the Court ordered that the application be dismissed.  What follows are our reasons for joining in that order.

  2. The applicant was tried on indictment in the Supreme Court of the Northern Territory on two counts; one of murder, and the other of attempted unlawful killing.  The jury returned a verdict of guilty on each count.  An application for leave to appeal was made to the Court of Criminal Appeal of the Northern Territory (Angel, Mildren and Riley JJ).  After full argument, the Court dismissed the application[1].

  3. The application for special leave to appeal to this Court was…

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Details
AGLC
Fittock v The Queen [2003] HCA 19
Case
[2003] HCA 19
Decision Date

CaseChat Overview and Summary

The applicant, Fittock, was convicted in the Supreme Court of the Northern Territory of murder and attempted murder contrary to the *Criminal Code* (NT). His trial involved the empanelling of twelve jurors and two "reserve" jurors, one of whom was discharged before the prosecution's opening and the other after the final summing up but before deliberations commenced. Fittock appealed his conviction, challenging the constitutional validity of the Northern Territory legislation permitting reserve jurors. The Court of Criminal Appeal of the Northern Territory rejected these grounds, finding they were precluded by existing High Court authority concerning the status of Territory law and the application of Chapter III of the Constitution to Territory courts.

The High Court was required to determine two threshold constitutional questions. First, whether the *Criminal Code* (NT), under which Fittock was charged, constituted a "law of the Commonwealth" for the purposes of section 80 of the Constitution. Second, assuming the first question was answered affirmatively, whether the legislative power granted to the Federal Parliament by section 122 of the Constitution was qualified by section 80, thereby making section 80 applicable to the *Juries Act* (NT) and its provisions for reserve jurors.

The Court acknowledged that these questions presented significant controversy and difficulty, with substantial authority standing in the applicant's path. While several judges had previously questioned the correctness of this authority, the Court ultimately refused special leave to appeal. The reasons for this refusal were reserved and subsequently stated, indicating that the applicant's arguments faced considerable legal barriers rooted in established High Court precedent regarding the application of constitutional provisions to laws and courts of the Territories.

Special leave to appeal was refused.

Orders

Orders of the court

Application dismissed.

Background

Background to the litigation

At the close of argument the Court announced that special leave was refused. It reserved its reasons. I now state my reasons for joining in that order. The facts The applicant was charged on an indictment alleging two counts, respectively of murder and attempted murder, contrary to the Criminal Code (NT)[11]. Pursuant to the Juries Act 1962 (NT)[12] twelve jurors were empanelled for his trial. In accordance with that Act[13], an additional two persons were selected as "reserve" jurors. In the event, one such reserve juror was discharged before the prosecution opened its case. Following the final summing up, and before the jury originally chosen were asked to consider their verdict, the judge discharged the remaining "reserve" juror[14]. After deliberation, the jury returned a verdict of guilty on both counts. The applicant was convicted. Upon his conviction of murder, he was sentenced to imprisonment for life. [11]ss 162, 165.[12]s 37.[13]s 37A.[14]Pursuant to s 37A(5) of the Juries Act. The applicant appealed to the Court of Criminal Appeal of the Northern Territory. Amongst his grounds of appeal were challenges to the constitutional validity of the Territory law providing for reserve jurors. That law had been enacted after self-government was granted to the Northern Territory by legislation of the Federal Parliament[15]. [15]Northern Territory (Self-Government) Act 1978 (Cth). See Newcrest Mining (WA) Ltd v The Commonwealth (1997) 190 CLR 513. The Court of Criminal Appeal rejected the applicant's challenges. So far as the constitutional grounds were concerned, the Court did so on the basis that, in order to reach them, it would be necessary to overcome decisions of this Court, binding on the Court of Criminal Appeal, commencing with R v Bernasconi[16]. Those decisions concern the status of Territory law and the application of Ch III to it and to the courts of the Territory. [16](1915) 19 CLR 629. See Fittock v The Queen (2001) 11 NTLR 52.Two threshold questions In this Court the applicant accepted that there were two threshold questions standing in the way of success in his argument based on s 80 of the Constitution. The first was whether the law creating the "offences" with which he had been charged, namely the Criminal Code, was a "law of the Commonwealth" as that phrase is used in s 80 of the Constitution. The second, assuming the first question was answered in his favour, was whether the legislative power conferred on the Federal Parliament by s 122 of the Constitution was qualified by the requirements of s 80, making the latter provision applicable to the Juries Act as it provides for "reserve" jurors. Each of these questions presents legal issues of controversy and difficulty. Although the resolution of those questions might logically be thought to come first, it is convenient to assume that the applicant could overcome these hurdles. But it must be acknowledged that, in his path, lies a substantial barrier of much authority. Several judges of this Court, over the years, have questioned the correctness of that authority[17], including recently[18]. [17]See eg Ffrost v Stevenson (1937) 58 CLR 528 at 592-593; R v Federal Court of Bankruptcy; Ex parte Lowenstein (1938) 59 CLR 556 at 580-584; Spratt v Hermes (1965) 114 CLR 226; Capital TV and Appliances Pty Ltd v Falconer (1971) 125 CLR 591 at 598; Li Chia Hsing v Rankin (1978) 141 CLR 182 at 198-202; Gould v Brown (1998) 193 CLR 346.[18]Re Governor, Goulburn Correctional Centre; Ex parte Eastman (1999) 200 CLR 322 at 380-383 [149]-[154]; cf Northern Territory v GPAO (1999) 196 CLR 553 at 650 [252].

Evidence

Evidence Before The Court

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Decision

Reasons for decision

GLEESON CJ, GUMMOW, HAYNE, CALLINAN AND HEYDON JJ HUGH J KIRBY J

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Ratio Decidendi

Legal Principle Established

Established by: GLEESON CJ, GUMMOW, HAYNE, CALLINAN AND HEYDON JJ, HUGH J, KIRBY J

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