Fittock v The Queen

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.