Kingswell v The Queen

[1985] HCA 72

HIGH COURT OF AUSTRALIA

Gibbs C.J., Mason, Wilson, Brennan, Deane and Dawson JJ.

KINGSWELL v. THE QUEEN

(1985) 159 CLR 264

18 November 1985

Constitutional Law (Cth)—Criminal Law (Cth)

Constitutional Law (Cth)—Criminal law—Offence against law of Commonwealth—Importing narcotics—Maximum penalty dependent on quantity of narcotics imported and previous conviction for similar offence—Court required to determine penalty and existence of matters on which maximum penalty depends—Validity—Consistency with constitutional requirement of trial for indictable offence by jury—The Constitution (63 &64 Vict. c. 12), s. 80—Customs Act 1901 (Cth), ss. 233B(1)(cb), 235. Criminal Law (Cth)—Offence—Customs—Importation of narcotics—Maximum penalty dependent on quantity of narcotics imported and previous conviction—Whether one or more than one offence created—Indictment—Whether matters upon which high penalties depend should be alleged—Customs Act 1901 (Cth), ss. 233B(1)(cb), 235.

Decisions

GIBBS C.J., WILSON, DAWSON JJ.: The applicant was on 8 March 1984 convicted after a trial by jury in the District Court of New South Wales on a charge which was laid in the indictment in the following terms:

"For that he between the first day of December, 1982 and about the fifth day of April, 1983, at Sydney, in the said State, and elsewhere did conspire with Andrew Wellington Lowe, Robert Norman Drury, and Robert Sydney Halliwell to import into Australia prohibited imports to which s.233B of the Customs Act 1901 applied, to wit narcotic goods consisting of heroin."

He was sentenced by the learned trial judge to eleven years' imprisonment with hard labour to date from 4 April 1983 (the date on which he was taken into custody) and the learned trial judge prescribed a minimum period of seven years' imprisonment with hard labour to date from 4 April 1983. He gave notice of appeal to the Court of Criminal Appeal of the Supreme Court of New South Wales against his conviction and sentence, but did not pursue the appeal against conviction. The Crown also appealed, on the ground that the sentence was inadequate. The Court of Criminal Appeal dismissed the applicant's appeal, but allowed the appeal of the Crown and substituted a sentence of eighteen years' imprisonment to commence from 4 April 1983, with a minimum term of twelve years commencing from the same date. The applicant now seeks special leave to appeal to this Court.

2. The charge was laid under s.233B(1)(cb) of the Customs Act 1901 (Cth), as amended, which provides as follows:

"Any person who -

...

(cb) conspires with another person or other

persons to import into Australia any prohibited imports to which this section applies or to export from Australia any prohibited exports to which this section applies;

...

shall be guilty of an offence."

The prohibited imports to which s.233B applies are narcotic goods: s.233B(2). Sub-section (3) of s.233B provides:

"A person who is guilty of an offence against

sub-section (1) of this section is punishable upon conviction as provided by section 235."

Sub-sections (2), (3) and (4) of s.235 provide as follows:

"(2) Subject to sub-sections (3) and (7), where -

(a) a person commits an offence against

sub-section 231(1), section 233A or sub-section 233B(1); and

(b) the offence is an offence that is punishable

as provided by this section,

the penalty applicable to the offence is -

(c) where the Court is satisfied -

(i) that the narcotic goods in relation to

which the offence was committed consist of a quantity of a prescribed narcotic substance that is not less than the commercial quantity applicable to that substance; or

(ii) that the narcotic goods in relation to

which the offence was committed consist of a quantity of a narcotic substance that is not less than the traffickable quantity applicable to that substance and also that, on a previous occasion, a court has -

(A) convicted the person of another offence, being an offence against a provision referred to in paragraph (a) that involved other narcotic goods which consisted of a quantity of a narcotic substance not less than the traffickable quantity that was applicable to that substance when the offence was committed; or

(B) found, without recording a conviction, that the person had committed another such offence -

imprisonment for life or for such period as the Court thinks appropriate;

(d) where the Court is satisfied that the narcotic

goods in relation to which the offence was committed consist of a quantity of a narcotic substance that is not less than the traffickable quantity applicable to the substance but is not satisfied as provided in paragraph (c) -
(i) if the narcotic substance is a narcotic

substance other than cannabis - a fine not exceeding $100,000 or imprisonment for a period not exceeding 25 years, or both; or

(ii) if the narcotic substance is cannabis - a

fine not exceeding $4,000 or imprisonment for a period not exceeding 10 years, or both; or

(e) in any other case - a fine not exceeding

$2,000 or imprisonment for a period not exceeding 2 years, or both.

(3) Where -

(a) the Court is satisfied that the narcotic goods

in relation to which an offence referred to in sub-section (2) was committed consist of a quantity of a narcotic substance that is not less than the traffickable quantity applicable to that substance, but is not satisfied as provided in paragraph (c) of that sub-section in relation to those narcotic goods; and

(b) the Court is also satisfied that the offence

was not committed by the person charged for any purposes related to the sale of, or other commercial dealing in, those narcotic goods,

notwithstanding paragraph (d) of that sub-section, the penalty punishable for the offence is the penalty specified in paragraph (e) of that sub-section.

(4) An offence referred to in sub-section (1) or (2) may be prosecuted summarily or upon indictment or, where the law of the State or Territory in which the proceedings are brought makes provision for an offender who pleads guilty to a charge to be dealt with by the Court otherwise than on indictment, the Court may deal with an offender in accordance with that law."

Sub-section (7) provides the penalties that may be imposed when a court of summary jurisdiction determines proceedings summarily.

3. The trafficable quantity of heroin is 2 grams and the commercial quantity of heroin is 1.5 kilograms (see definitions in s.4, and Schedules VI and VIII).

4. The applicant had, in April 1978, been convicted of an offence against s.233B(1)(c), viz., possessing a prohibited import. The circumstances of that offence were that he had been involved with Robert Norman Drury (who is named in the present charge) in the importation of 20.6 kgs. of cannabis in the form of buddha sticks - narcotic goods which consisted of a quantity of a narcotic substance not less than the trafficable quantity. There was evidence in the present case that the quantity of heroin which was the subject of the conspiracy charged was 1.332 kgs. The witnesses whose evidence established that fact were not cross-examined and there was no evidence to the contrary. The quantity of heroin was not in dispute, but it was not mentioned in the charge. In these circumstances the learned trial judge proceeded on the understanding that the maximum penalty that might be imposed was that provided by s.235(2)(c)(ii), and the Court of Criminal Appeal held that he was correct in doing so.

5. On behalf of the applicant it was submitted that the maximum term of imprisonment to which he was liable was that provided by s.235(2)(e) - two years. The starting point of this submission was that s.233B(1)(cb) and s.235(2) together create a number of separate offences, including one created by the combined effect of s.233B(1)(cb) and s.235(2)(c)(ii) and another by s.233B(1)(cb) and s.235(2)(e). The former of those offences has, as its ingredients, (so it was submitted) not only the matters described in s.233B(1)(cb), but also the facts that the narcotic goods in relation to which the offence was committed consisted of a quantity of a narcotic substance that was not less than a trafficable quantity and that the accused had been previously convicted of an offence of the kind described in s.235(2)(c)(ii). Then it is said that if these facts were elements of the offence they should have been charged in the indictment and proved to the satisfaction of the jury. The indictment did not charge that the heroin was of a trafficable quantity or that the applicant had been previously convicted of an offence of the kind to which s.235(2)(c)(ii) refers. Therefore, it was submitted, the applicant was not charged with the offence created by s.233B(1)(cb) and s.235(2) (c)(ii) and was punishable only as provided by s.235(2)(e). It was further submitted that if, on the proper construction of these provisions of the Customs Act, the issues arising under s.235(2)(c)(ii) were to be decided by the judge and not by the jury, s.235 would be invalid, at least in part, as being in contravention of s.80 of the Constitution, which provides (inter alia) that "the trial on indictment of any offence against any law of the Commonwealth shall be by jury". It was finally contended that if all these submissions were rejected the two matters referred to in s.235(2)(c)(ii) were nevertheless circumstances of statutory aggravation, and should have been charged in the indictment and found by the jury.

6. An examination of the provisions of the Customs Act does not support the argument that the Parliament intended that s.235(2), read together with each paragraph of s.233B(1), should have the effect of creating a number of distinct offences whose elements are to be found described partly in s.233B(1) and partly in s.235(2). The words of s.233B(1) and (3) could hardly indicate more plainly that it was intended that each paragraph of s.233B(1) of itself creates an offence and that a person who is guilty of such an offence is punishable on conviction as provided by s.235. Consistently with this intention, s.235(2) speaks of "an offence against ... sub-section 233B(1)", and provides a range of penalties for any such offence. Sub-section (3) of s.235 provides for a reduced penalty where (a) the court is satisfied that the narcotic goods in relation to which the offence was committed consist of a quantity of a narcotic substance that is not less than the trafficable quantity applicable to that substance, but is not satisfied as provided in s.235(2)(c) in relation to those narcotic goods, and (b) the court is also satisfied that the offence was not committed for any purposes related to the sale of, or other commercial dealing in, those narcotic goods. Sub-section (3)(b) describes circumstances which, if they existed, would add to the gravity of the offence and it would give these provisions a strained interpretation to regard the absence of those circumstances as an element of an offence. Clearly enough, sub-s.(3) declares what the punishment is to be, in certain circumstances, for an offence already defined. The same is true of sub-s.(2). The proper conclusion is that the Parliament intended by s.233B(1)(cb) to create one offence and to provide by s.235(2) and (3) a range of penalties applicable to that offence in certain circumstances. The range is large. Section 235(2)(e) provides the lowest maximum penalty; par.(c) describes circumstances of aggravation of the offence which could increase the maximum penalty to imprisonment for life and par.(d), which is subject to sub-s.(3), describes other circumstances of aggravation that entail liability to penalties less than the maximum provided by par.(c) but greater than those provided by par.(e).

7. This conclusion is supported by the reference to "the Court" in s.235. The concluding words of s.235(2)(c) - "as the Court thinks appropriate" - must refer to the judge who imposes the sentence rather than to the jury which finds the facts, and "the Court" in sub-s.(4) refers to a judge or a magistrate sitting without a jury. Since, in the absence of some indication to the contrary, the same words may be expected to be used consistently throughout the section, "the Court" which is, according to the statute, to be satisfied of the matters mentioned in s.235(2) and (3), must be the judge or the magistrate and not the jury. This view of the effect of the statute has been taken by the Supreme Court of Victoria in Reg. v. King (1979) VR 399, at p 407 and by the Supreme Court of Queensland in Reg. v. Gardiner (1981) QdR 394, at pp 399-400, 410.

8. In the applicant's argument to the contrary, strong reliance was placed on the recent decision of the House of Lords in Reg. v. Courtie (1984) AC 463. In that case the appellant had pleaded guilty to a count of buggery with a male person under the age of twenty-one years. The indictment did not charge that the offence was committed without the consent of the other person, but after conviction the trial judge, sitting with two justices of the peace, tried the issue whether the other person had consented. They found that there was no consent and the judge sentenced on that basis. The House of Lords allowed an appeal against the sentence. It held that the statutes there in question, s.12(1) of the Sexual Offences Act 1956 (U.K.), as modified by ss.1 and 3 of the Sexual Offences Act 1967 (U.K.), created more than one offence, that the absence of consent was a factual ingredient of one of those offences and that the appellant, by pleading guilty to a lesser offence which did not require the existence of that factual ingredient, had not admitted its existence and that in those circumstances the question was one to be determined by the jury. Lord Diplock (with whom the other members of the House agreed) referred, at pp.466-467, to two basic principles of English criminal law. The first is a substantive principle, viz. that:

"an accused person cannot be convicted of any offence with which he is charged unless it has been established by the prosecution that each one of the factual ingredients, which are included in the legal definition of that specific offence, was present in the case that has been brought against him by the prosecution".

The second is a procedural principle, that:

"if there has not been an informed and unequivocal plea of guilty, the question whether any particular factual ingredient of the specific offence charged (or of any lesser offence of which he might be convicted on that indictment) was present in the case against an accused person, falls to be determined by those persons, and by those persons alone, in whom, under English criminal procedure, there is vested the function of finding whether or not the factual ingredients necessary to constitute the offence have been proved to their satisfaction. Who those persons are in any particular case depends upon the mode of trial, i.e. summarily or on indictment; but in the instant case your Lordships are concerned only with a prosecution on indictment, and where such is the mode of trial, those persons are the jury."

Lord Diplock went on to say, at p.468, that:

"It lies within the power of parliament to modify or exclude by statute either or both of these basic principles of English criminal law and to do so either generally or in relation to particular offences: but, as was said by this House in Reg. v. Miller (1983) AC 161, 174, where it is contended that particular provisions of a statute do have that effect:

'Those particular provisions will fall to be construed in the light of general principles of English criminal law so well established that it is the practice of parliamentary draftsmen to leave them unexpressed in criminal statutes, on the confident assumption that a court of law will treat those principles as intended by Parliament to be applicable to the particular offence unless expressly modified or excluded.'"

He then considered the statutory provisions in question and held that the Act of 1967 created a number of specific offences and in that context went on to make the statement upon which particular reliance is placed by the counsel for the applicant in the present case. He said, at p.471:

"My Lords, where it is provided by a statute that an accused person's liability to have inflicted upon him a maximum punishment which, if the prosecution are successful in establishing the existence in his case of a particular factual ingredient, is greater than the maximum punishment that could be inflicted on him if the existence of that particular factual ingredient were not established, it seems to me to be plain beyond argument that Parliament has thereby created two distinct offences, whether the statute by which they are created does so by using language which treats them as being different species of a single genus of offence, or by using language which treats them as separate offences unrelated to one another."

9. This passage cannot have been intended to state an absolute rule of law, but rather a rule of construction or an indication of the way in which the courts will approach a question of this kind. The word "offence" has no fixed technical meaning in the law and Lord Diplock was probably using it in the broad sense of any conduct forbidden by law on pain of punishment. As his judgment recognizes, in the passage at pp.466-467 already cited, it is the legal definition of the offence which indicates which are its factual ingredients. Putting aside, for the moment, s.80 of the Constitution, there is no fundamental law that declares what the definition of an offence shall contain or that requires the Parliament to include in the definition of an offence any circumstance whose existence renders the offender liable to a maximum punishment greater than that which might have been imposed if the circumstance did not exist. The existence of a particular circumstance may increase the range of punishment available, but yet not alter the nature of the offence, if that is the will of the Parliament. The rule of construction which Lord Diplock has enunciated is a salutary one, but must yield to an expression of a contrary intention. A contrary intention does appear in the provisions of the Customs Act with which we are concerned. The elements of the offence are defined in s.233B(1)(cb) and the additional matters stated in s.235(2) and (3) are relevant to the maximum sentence that may be imposed but are not ingredients of an offence.

10. Sections 233B(1)(cb) and 235(2) do not contravene s.80 of the Constitution. Section 80 requires that if there is a trial on indictment of any offence against any law of the Commonwealth it shall be by jury. The sections now in question do not provide to the contrary. If there is a trial by jury the ordinary incidents of such a trial will apply; the judge will continue to exercise his traditional functions, and, for the purpose of imposing a sentence within the limits fixed by the law, will form his own view of the facts, provided that that view is not in conflict with the verdict of the jury. Section 80 says nothing as to the manner in which an offence is to be defined. Since an offence against the law of the Commonwealth is a creature of that law, it is the law alone which defines the elements of the offence. The fact that s.80 has been given an interpretation which deprives it of much substantial effect provides a reason for refusing to import into the section restrictions on the legislative power which it does not express. It has been held that s.80 does not mean that the trial of all serious offences shall be by jury; the section applies if there is a trial on indictment, but leaves it to the Parliament to determine whether any particular offence shall be tried on indictment or summarily. This result has been criticized, but the Court has consistently refused to reopen the question and the construction of the section should be regarded as settled: R. v. Archdall and Roskruge; Ex parte Carrigan and Brown (1928) 41 CLR 128; R v. Federal Court of Bankruptcy; Ex parte Lowenstein (1938) 59 CLR 556; Sachter v. Attorney-General for the Commonwealth (1954) 94 CLR 86, at p 88; Zarb v. Kennedy (1968) 121 CLR 283; Li Chia Hsing v. Rankin (1978) 141 CLR 182. To understand s.80 as requiring the Parliament to include in the definition of any offence any factual ingredient which would have the effect of increasing the maximum punishment to which the offender would be liable would serve no useful constitutional purpose; indeed the Parliament might feel obliged to provide that some offences, which would otherwise be made indictable, should be triable summarily.

11. It has been held in the Supreme Courts of three States that the provisions of s.235 of the Customs Act do not offend against s.80: Reg. v. King; Reg. v. Gardiner; Reg. v. Kayal (1979) 2 NSWLR 117. For the reasons given, that conclusion was correct. Even if s.235 leaves it entirely to the judge to determine whether the matters mentioned in sub-ss.(2) and (3) exist, the jury still have the function of deciding whether or not the accused committed an offence against s.233B(1).

12. The final submission on behalf of the applicant is that the matters mentioned in s.235(2), if not ingredients of the offence, are nevertheless circumstances of aggravation which should be included in the indictment. That submission correctly states the position in Queensland where, under the Criminal Code, if any circumstance of aggravation is intended to be relied upon it must be charged in the indictment: s.564 of the Criminal Code (Q.). The term "circumstance of aggravation" is defined to mean and include "any circumstance by reason whereof an offender is liable to a greater punishment than that to which he would be liable if the offence were committed without the existence of that circumstance": s.1 of the Criminal Code. Those provisions are rendered applicable to the trial of Commonwealth offences in Queensland by s.68(1) of the Judiciary Act: see Reg. v. Gardiner, at pp 399, 409. Until 1982 the position was the same in Western Australia (see Davis v. The Queen (1978) WAR 237, at p 239), but in that year s.582 of the Criminal Code (W.A.) was amended by deleting the words, "If any circumstance of aggravation is intended to be relied upon, it must be charged in the indictment": see Acts Amendment (Criminal Penalties and Procedure) Act 1982 (W.A.), s.5.

13. In Reg. v. De Simoni (1981) 147 CLR 383, a case under the Criminal Code (W.A.) before its amendment in 1982, a majority of this Court held that where an indictment does not refer to a particular circumstance of aggravation, a judge in imposing sentence may have regard to that circumstance only if it would not render the accused liable to a greater punishment pursuant to the Criminal Code. It was pointed out, at p.389, that "at common law the principle that circumstances of aggravation not alleged in the indictment could not be relied upon for purposes of sentence if those circumstances could have been made the subject of a distinct charge appears to have been recognized as early as the eighteenth century". Of course s.564 of the Criminal Code (Q.) and, before its amendment, s.582 of the Criminal Code (W.A.), read in conjunction with the definition of "circumstance of aggravation" in s.1, stated a wider rule, since the definition extends to circumstances which would render the offender liable to a greater punishment without necessarily exposing him to conviction for a distinct and more serious offence. Reference was made in Reg. v. De Simoni to R. v. Bright (1916) 2 KB 441, where the judgment of the Court of Criminal Appeal appears to support a rule similar to that in force under the Criminal Codes of Queensland and (formerly) Western Australia. There Darling J., who delivered the judgment of the Court, said, at pp.444-445, that the judge "must not attribute to the prisoner that he is guilty of an offence with which he has not been charged - nor must he assume that the prisoner is guilty of some statutory aggravation of the offence which might, and should, have been charged in the indictment if it had been intended that the prisoner was to be dealt with on the footing that he had been guilty of that statutory aggravation". The circumstances of aggravation referred to in the regulations in question in that case could not have been made the subject of a distinct charge, but the regulations expressly stated that the increased penalty which those circumstances attracted could be imposed only if the circumstances were found by the jury. It may therefore be thought that the language of Darling J. went beyond the necessity of the particular case. However, ever since that time textwriters have regarded the statement by Darling J. as correctly stating the practice to be followed. All the editions of Halsbury's Laws of England since 1916 have stated the rule in those terms: see 2nd ed., vol.9, p.181, note (q); 3rd ed., vol.10, p.435, note (k); 4th ed., vol.11, par.330, note (2). In Archbold's Criminal Pleading Evidence &Practice, 41st ed. (1982), at par.4-473, it is said:

"Where a defendant pleads guilty, the judge before passing sentence, in order to form an opinion as to the degree of culpability, may hear evidence as to the motive which induced the defendant to commit the offence; but where the offence is, by statute, punishable by a more severe sentence if accompanied by circumstances of aggravation, such circumstances may be taken into account in passing sentence only if they have been charged in the indictment and been proved to the satisfaction of the jury or admitted by the plea of Guilty."

14. The same view appears to have been taken in New Zealand: see Adams, Criminal Law and Practice in New Zealand, 2nd ed. (1971), at pars.1851, 2112, 2587; R. v. Kirk (1901) 20 NZLR 463, at pp 472, 473, 474; R. v. Martini (1941) NZLR 361. R. v. Bright has been followed in a Canadian decision, R. v. Drysdale (1933) 1 DLR 60; 59 Can.C.C. 83. In that case the accused had pleaded guilty to a charge of unlawfully having liquor in his possession. The legislation under which he was convicted had originally provided a pecuniary penalty only for the offence but, by an amendment in 1932, it required the imposition of a term of imprisonment if the liquor exceeded $50 in value. After the plea of guilty evidence was given that the liquor in question was over the value of $50, although the value had not been alleged in the information, and the accused was sentenced to imprisonment. The Supreme Court of Nova Scotia, by a majority, held that the value of the liquor ought to have been set out in the information and quashed the conviction. Ross J. said, at p.65 of D.L.R.; p.88 of Can.C.C.:

"Even if it can be successfully contended that the 1932 amendment creates no new offence, surely it does create a statutory aggravation of the offence which ought to be set out in the information."

15. In Australia R. v. Bright was cited with approval in Lovegrove v. The Queen (1961) Tas.SR 106 but in that case the circumstances of aggravation were ingredients of a more serious offence than that charged. On the other hand, in R. v. Sawyer (1967) VR 725, Smith J. considered a statute which created the offence of dangerous driving, and provided that if the misdemeanour so created resulted in death or bodily injury, the maximum punishment that might be imposed for the offence was increased. Smith J. held that the question whether the misdemeanour had resulted in death or bodily injury was one for determination by the judge and not by the jury. R. v. Bright was not cited in the judgment. In Reg. v. Martin (1984) 2 NSWLR 236, Street C.J., although not without doubts, expressed the view that it was desirable that a common approach should be adopted throughout the Commonwealth in matters arising under the Customs Act and said that since the aggravating circumstances mentioned in s.235 must be specifically alleged in Queensland and Western Australia it would be desirable that the same course should be taken in New South Wales. Enderby J. went further, stating, at p.241, that he was persuaded that the common law does require the matters of aggravation to be pleaded. In the present case, however, on reconsideration, the Court of Criminal Appeal has taken a different view.

16. There is a close analogy between those cases in which the existence of the circumstances of aggravation converts the offence from a lesser to a greater one and those in which the existence of the circumstances of aggravation renders the accused liable to a penalty greater than that which could have been imposed if the circumstances did not exist. In cases of the first-mentioned kind, the circumstances of aggravation become elements of a distinct offence and therefore must be specifically alleged in the indictment. Where the circumstances of aggravation do no more than increase the maximum penalty, they do not alter the nature of the charge although they do affect, sometimes very materially, the legal consequences that may flow from a conviction. The rule of practice laid down in R. v. Bright is consistent with the fundamental principle that questions of fact affecting the liability of the accused to punishment should be decided by the jury when the trial is on indictment. The position is different when the circumstances said to aggravate the offence are relevant only to the exercise of the sentencing discretion of the judge. Although it would be an exaggeration to say that the rule of practice in R. v. Bright has been generally applied in cases where the circumstances of aggravation increase the maximum punishment but do not change the offence, it is a beneficial rule and ought generally to be followed.

17. It is, as Street C.J. recognized in R v. Martin, a real question whether s.235, by requiring the judge to be satisfied of the existence of the circumstances of aggravation, renders the rule of practice inapplicable to trials for offences against s.233B. However, the framers of the Customs Act should have contemplated that in Queensland and in Western Australia at least the practice as embodied in the Criminal Codes would be applied by the Judiciary Act and that practice has in fact been followed without apparent inconvenience. There is no reason why the satisfaction of the judge should not be founded upon the findings of the jury. We consider that the practice has not been abrogated by s.235 and should be followed in all States. Where the circumstances of aggravation described in s.235(2) are relied on, they should be charged in the indictment. If necessary, of course, an alternative charge, omitting the circumstances of aggravation, could be laid in addition.

18. The allegations that the accused was previously convicted of an offence of the kind described in s.235(2) (c)(ii) stand in a special position. Speaking generally, it would not be proper to bring the fact of the previous conviction to the notice of the jury until the guilt of the accused had otherwise been established: see Faulkner v. The King (1905) 2 KB 76. The practice in New South Wales is governed by ss.394 and 414 of the Crimes Act 1900 (N.S.W.), as amended. It is the same as that stated in Archbold, op.cit., at par.4-50:

"The mode of arraigning a defendant on an indictment for any offence committed after a previous conviction is, in the first instance, to arraign him upon so much only of the indictment as charges the subsequent offence, and, if he pleads not guilty or the court orders a plea of not guilty to be entered, to charge the jury in the first instance to inquire only concerning the subsequent offence."

Then if the accused is convicted the jury will, if the accused does not admit the previous conviction, be asked to find whether he was previously convicted of the earlier offence alleged.

19. The practice which ought to be observed was not followed in the present case. However, no objection was taken to the course followed at the trial or to the charge delivered by the learned trial judge to the jury. There was no dispute as to the quantity of the heroin involved and the evidence on that point was uncontradicted and unchallenged. No question was raised as to the accuracy of the material concerning the previous conviction. It is quite impossible to suggest that any miscarriage of justice occurred.

20. The importance of the matter warrants the grant of special leave to appeal. Special leave should be granted but the appeal should be dismissed.

MASON J.: This is an application for special leave to appeal from a judgment of the New South Wales Court of Criminal Appeal increasing the applicant's sentence following his conviction on a charge of conspiring to import a prohibited import contrary to s.233B of the Customs Act 1901 (Cth) ("the Act"). The circumstances of the applicant's conviction, the history of appeals and the relevant statutory provisions have been described in the joint judgment of Gibbs C.J., Wilson and Dawson JJ. and there is no need for me to repeat them here. I agree with their Honours, for the reasons that they give, that neither the first nor second of the applicant's submissions can succeed. However, in relation to the third submission, I am unable to agree that the circumstances in s.235(2)(c)(ii) that aggravate the maximum penalty that may be imposed should be included in the indictment and proved to the jury.

21. The question whether the existence of the aggravating circumstances should be proved to a judge or jury is answered by the terms of the statute itself. Section 235(2) (c) clearly requires the Court to be satisfied of the aggravating circumstances. The expression "the Court", which occurs inter alia in s.235(2), (3) and (4) of the Act, has been consistently interpreted by State Supreme Courts to mean the judge or magistrate who passes sentence on the offender, and not the jury (Reg. v. Martin (1984) 2 NSWLR 236, at pp 239, 240; Reg. v. Gardiner (1981) QdR 394, at p 410; Reg. v. Kayal (1979) 2 NSWLR 117, at p 121; Reg. v. King (1979) VR 399, at p 407). This interpretation accords with the terms of the statute. Section 235(2)(c) provides that the penalty for the relevant offence is "imprisonment for life or for such period as the Court thinks appropriate". Since it is a judge or magistrate who imposes sentence, the expression "the Court" in the concluding words of the paragraph must be taken to be a reference to a judge or magistrate and not a jury. Section 235(4) refers to laws which allow an offender who has pleaded guilty to be dealt with by "the Court" otherwise than on indictment, and thus clearly contemplates a judge or magistrate sitting alone. When the expression "the Court" is first used in s.235(2)(c), it should not be given a meaning different from that which it bears in other parts of the same section. It is necessary, therefore, for the aggravating circumstances in s.235(2)(c)(ii) to be proved to the satisfaction of the judge or magistrate who has the function of sentencing the offender.

22. It is theoretically possible for the Court's satisfaction to be based on a prior finding by the jury, but such an interpretation poses a number of difficulties. What would happen if the jury was satisfied that the aggravating circumstances had been made out but the trial judge was of a different opinion, or conversely if the jury was of the view that those circumstances had not been made out but the trial judge thought they had? To take the view that the Court's opinion ought to prevail in such a case would be merely to affirm what is explicit in s.235(2)(c) - namely that the matter is one for determination by the Court and not the jury. Alternatively, to take the view that the jury's opinion should prevail is to discard the express words of the statute and substitute a requirement not envisaged by the legislature.

23. Because the question before this Court is resolved by construction of the Act, it is not necessary to determine in this application whether the existence of facts relevant to sentencing but not to conviction should in some circumstances be decided by the jury rather than by the judge, or to decide whether some distinction should be drawn for these purposes between facts relating to the offence, facts relating to the offender and other facts which may be relevant to the sentencing discretion. However, there is strong support for the view that a jury, once it has returned a verdict, has discharged its duties and has no further function to perform (R. v. Larkin (1943) KB 174, at pp 175-176; Reg. v. Warner (1967) 1 WLR 1209, at pp 1213-1214; (1967) 3 All ER 93, at p 96; Reg. v. Gardiner, at p 409). The finding of facts relevant to the proper exercise of the sentencing discretion would then fall within the province of the trial judge, subject to the qualification that the view he adopts must be consistent with the verdict or plea (Reg. v. Gardiner, at p 400; Reg. v. King, at p 407; Reg. v. Harris (1961) VR 236, at pp 236-237; Reg. v. Webb (1971) VR 147, at pp 152-153; Reg. v. Bedington (1970) QdR 353, at p 364; Hughes v. The Queen (1983) 49 ALR 110, at p 122; Reg. v. Stehbens (1976) 14 SASR 240, at p 245; Reg. v. De Simoni (1981) 147 CLR 383, at pp 392, 396, 399; Laporte v. The Queen (1970) WAR 87, at p 89).

24. Counsel for the applicant submitted that a distinction should be drawn between cases in which facts must be determined for the purpose of deciding the appropriate sentence within a given range up to a stated maximum and cases in which the finding of certain facts alters the range of penalties itself. It was said that even if questions of fact are properly to be decided by a judge in the first case, in the second such questions should be left to the jury. No reason emerges for entrusting the function to a jury in the second case when it is accepted that it is the function of the judge in the first. I agree with the statement of Street C.J. in Reg. v. Kayal in which, after referring to the statutory scheme for the escalation of penalties in s.235 of the Act, he said (at p 121):

"There is no relevant distinction between, on the one hand, determining the factual elements which locate the offence in that statutory scale; and, on the other hand, determining any other disputed question of fact touching the question of sentence. Such facts are decided by the sentencing judge, and not by the jury affecting, as they do, only the quantum of the sentence and not the essence of the offence."

25. The determination of facts relevant to the sentencing of an offender is a routine function of judges in the administration of criminal justice. The determination of the aggravating circumstances in s.235(2)(c)(ii), relating as they do to the existence and gravity of prior convictions, is no different in kind from the determination of the class of matters commonly dealt with by trial judges exercising a sentencing discretion. There is no reason why the jury rather than the trial judge should determine these issues, and indeed convenience indicates that it is the judge who should undertake the function.

26. In Queensland, s.564 of the Criminal Code states that if any "circumstance of aggravation" (as defined in s.1) is intended to be relied upon it must be charged in the indictment. Section 68(1) of the Judiciary Act 1903 (Cth) makes s.564 apply to trials in Queensland of offences against the laws of the Commonwealth, and it is said that in order to have uniformity throughout Australia in the administration of the Customs Act a similar practice should be adopted in other States. It may be readily acknowledged that it is generally desirable for a Commonwealth Act to be consistently administered in all jurisdictions in Australia (Reg. v. Martin, at p 240; Reg. v. Kingswell (1984) 3 NSWLR 273, at p 278). But the commendable goal of uniformity is not a justifiable basis for imposing on States with a different practice, the practice that prevails in a single Code State. In any event it is perhaps more important to preserve uniformity within a State in matters of criminal law practice than to promote uniformity of practice in matters of federal jurisdiction.

27. It was also argued that there is a marked similarity between the present case, in which aggravating factors may make an accused liable to a greater penalty for the same offence, and cases in which aggravating circumstances convert a lesser offence into a greater one. The similarity is that in both cases the finding of additional facts subjects the accused to the jeopardy of greater punishment, and so it is said that the two cases should be treated alike by imposing a requirement that in the first case, as in the second, the aggravating circumstances be included in the indictment and proved to the jury. The short answer to the argument is that it is open to Parliament to define the ingredients of offences and the circumstances to be taken into account in sentencing in whatever way it pleases. However cogent the reasons for treating the two cases on the same footing, it is entirely a matter for Parliament whether or not it will adopt that course.

28. Once it is accepted that under s.235(2)(c) the determination of the aggravating circumstances is a matter properly within the domain of the judge, the question arises whether any purpose is served by including these matters in the indictment. One reason for doing so is to alert the accused that aggravating circumstances may be relied upon to support a greater penalty, and thereby afford him the opportunity to prepare to meet those allegations. However, as has been pointed out by Gibbs C.J., Wilson and Dawson JJ., real harm might be done to the interests of an accused if the indictment revealed any prior convictions before his guilt on the present charge had been established. Once a reference to a prior conviction is omitted from an indictment, it is pointless to include the only other circumstance of aggravation - namely that the prior conviction involved a trafficable quantity of a narcotic substance. It follows that neither circumstance should be included. The position is necessarily different in Queensland where s.564 of the Criminal Code calls for circumstances of aggravation to be charged in the indictment. But s.235 of the Customs Act still requires these matters to be proved to the satisfaction of the judge, notwithstanding that they have been included in the indictment in accordance with the section.

29. I would grant the application for special leave to appeal, but dismiss the appeal.

BRENNAN J.: By ss.233B and 235 of the Customs Act 1901 (Cth) ("the Act"), the Parliament has sought to provide condign penalties for persons involved in, inter alia, the illegal importing of narcotic goods or in the possession of illegally imported narcotic goods. Section 233B(1) creates a number of offences (which I shall call s.233B offences) which are "punishable upon conviction as provided by section 235" (s.233B(3)). The s.233B offences are defined in general terms, comprehending cases of varying gravity. They cover cases involving commercial drug traffickers as well as cases involving an individual drug user who provides himself with a small quantity of narcotic goods solely for his own consumption. To discriminate among the cases which fall within the general proscriptions contained in s.233B(1), s.235 provides for four levels of maximum penalty in respect of any s.233B offence "that is punishable as provided by this section" (sub-s.(2)(b)). The four levels of maximum penalty prescribed by s.235 are: (i) imprisonment for life (sub-s.(2)(c)); (ii) a fine of $100,000 and 25 years imprisonment (sub-s.(2)(d)(i)); (iii) a fine of $4,000 and 10 years imprisonment (sub-s.(2)(d)(ii)); and (iv) a fine of $2,000 and imprisonment for 2 years (sub-s.(2)(e) and sub-s. (3)). The liability of an offender to one of the higher levels of penalty depends upon the satisfaction of the Court as to the facts prescribed by s.235(2)(c) and (d) which attract the particular penalty. The prescribed facts are the quantity of the narcotic substance in the narcotic goods to which the s.233B offence relates and any curial finding of the commission of, or any conviction for, an earlier serious offence involving narcotic goods. Sub-section (2)(e) provides for a residual category - "in any other case" - for which the fourth, or lowest, level of penalty is prescribed.

30. In whom does s.235 repose the function of finding the facts which take a case out of the residual category and attract a higher level of penalty? In two contexts in s.235 the term "the Court" clearly means the sentencing judge alone: in sub-s.(2)(c) where it is used in reference to the exercise of a sentencing discretion and in sub-s.(4) where it is used in reference to the exercise of a jurisdiction to pass judgment on an offender who pleads guilty. There is no reason inherent in s.235 for attributing a different meaning to the term where it is used in reference to the finding of facts ("where the Court is satisfied") in sub-ss. (2) and (3). In a North Dakota statute where it was provided that "if the evidence ... convinces the court" of certain circumstances the offender should be guilty of a felony, "the court" was construed to mean the judge and jury: State v. Kirsch 268 NW 473 (1936). The statute was thus held to conform with a constitutional guarantee of a right to trial by jury, but it is not possible so to construe "the Court" in s.235. The division between s.233B and s.235 suggests an intention to separate the finding of facts by the judge for the purposes of s.235 from the returning of a verdict by the jury on an indictment for a s.233B offence. The textual division of the functions suggests that the finding of facts for the purposes of s.235 is a function reposed in the sentencing judge alone.

31. If the finding of facts for the purposes of s.235 is divorced from the returning of a verdict on an indictment for a s.233B offence, the sentencing judge has no authority to invite the jury to find facts for the purposes of s.235. In a criminal trial, the indictment must charge the elements of an offence, but if it charges more, the additional matter is mere surplusage (R v. Horne (1777) 2 Cowp 672, at pp 682-683 (98 ER 1300, at p 1306); R. v. Jones (1831) 2 B. &Ad. 611 (109 ER 1270)). When an accused pleads not guilty to an indictment, the whole of the issues on which the accused's guilt of the offence charged depends are joined between the Crown and the accused and those are the issues to be tried by the jury (Chitty's Criminal Law, 2nd ed. (1826), vol.1, pp.470-471,532). The jury's function is to try, and to try only, the issues joined between the Crown and an accused when the accused pleads to the indictment. And thus, if an accused pleads not guilty to an indictment charging a s.233B offence, a jury must try the whole of the issues on which the accused's guilt of that offence depends, including the mental elements of the offence, but no other issue. A jury which is charged to try the issues on an indictment is not at liberty to find facts which are not pertinent to those issues. It has long been established that, if a jury returns a special verdict, its verdict must be confined to the issues which they are sworn to try (Dowman's Case (1586) 9 Co.Rep.7b, at pp.12b-13a, 14b (77 E.R.743, at pp.750-751,752); Priddle and Napper's Case (1612) 11 Co.Rep.8b, at p.13a (77 E.R.1155, at p.1162)), else a finding on any other issue is per non juratos and void (Foster v. Jackson (1615) Hobart 52, at p 53 (80 ER 201, at p 203)). Therefore a jury charged to try issues on an indictment framed under s.233B is not empowered to find the facts specified by s.235. Once the jury's verdict on the indictment is returned and accepted, the jury has no further function to perform. If the jury, after returning its verdict on such an indictment, could be required to try an issue of fact arising under s.235, they would be entering on a new inquiry. The parties would be entitled to challenge any member of the jury anew, and the jury would have to be resworn to try the further issue. Section 235 gives no countenance to that procedure. That section requires the sentencing judge alone to find the facts on which an offender's liability to a greater maximum penalty ultimately depends, though the offence for which the offender is convicted is prosecuted on indictment. Liability to a particular maximum penalty thus depends in part upon the verdict of a jury and in part upon findings of fact by a judge. The question is whether s.80 of the Constitution invalidates a law of the Commonwealth which makes liability to a greater maximum penalty for an offence prosecuted on indictment depend upon findings of fact made by a judge.

32. Before an answer to that question is attempted, a distinction should be drawn between a finding of fact to guide the exercise of a sentencing discretion and a finding of fact on which the liability of an offender to a particular maximum penalty depends. The former is a familiar aspect of sentencing; the latter is ordinarily a consequence of a plea of guilty or of a jury's verdict of guilty. The distinction is drawn in R. v. Horne, where it was laid down that the charge must contain such a description of the crime that the court "may apply the punishment which the law prescribes", but the charge need not set out circumstances which "do not contribute to make the offence" though they "may aggravate". Thus the conviction on an indictment ordinarily determines the maximum penalty which the law prescribes, and other circumstances - though relevant to the seriousness of the offender's conduct and to the exercise of the sentencing discretion - are left to the consideration of the judge. The distinction was not drawn in Reg. v. Kayal (1979) 2 NSWLR 117, at p 121, or in Reg. v. King (1979) VR 399, at p 407. The decisions in those cases proceeded on an erroneous equation of the function of finding the facts on which the liability to a particular maximum penalty depends with the function of finding on facts to guide the exercise of a sentencing discretion.

33. When the ambit of the sentencing discretion is ascertained by reference to the conviction, the judge alone determines any question of disputed fact on which the exercise of his discretion depends (Reg. v. Bedington (1970) QdR 353, at p 364; Reg. v. Harris (1961) VR 236, at pp 236-237). The judge is not at liberty to find that the offender was guilty of an offence graver than the offence of which he was convicted (R. v. King (1925) 25 SR (NSW) 218; Reg. v. De Simoni (1981) 147 CLR 383, at p 389) nor to make findings that conflict with the verdict of the jury (Reg. v. Harris; Reg. v. Haselich (1967) QdR 183, at pp 185-186; Reg. v. Boyd (1975) VR 168, at p 172). Even where the practice of charging a representative offence has been sanctioned, it has been held essential that the express and unequivocal assent of the offender be given before an offence for which he has not been convicted is taken into account: Reg. v. Anderson (1978) AC 964, at p 977. Without the offender's assent, it would be wrong to deprive him of his right to trial by jury for that offence: Huchison (1972) 56 Cr.App.R 307; (1972) 1 WLR 398; Reg. v. Reiner (1974) 8 SASR 102.

34. If a legislature's exercise of its powers is untrammelled by s.80 of the Constitution, it is free to confer wider powers on the sentencing judge. It is free to create an offence and prescribe different maximum penalties depending not on the jury's verdict but on the judge's finding that a specified fact or circumstance exists. Given the power to do so, there may be yet a question whether the specified fact or circumstance is an element in a distinct offence attracting the greater penalty or whether there is but one offence for which different maximum penalties are prescribed (see, for example, Rowe v. Butcher (1936) VLR 103; De Romanis v. Sibraa (1977) 2 NSWLR 264; Ross v. The Queen (1979) 141 CLR 432). If the legislature makes the specified fact or circumstance an element in an offence, the fact or circumstance must be charged in the indictment and, upon a plea of not guilty, its existence is determined by the jury's verdict; but if the fact or circumstance is not an element of an offence, its existence is a matter for the sentencing judge. If the legislature is unfettered by s.80 of the Constitution, the question whether the fact or circumstance is an element of an offence is resolved simply by construing the statute. A familiar example is the prescribing of a greater penalty for an offence committed after a previous conviction. Ordinarily the previous conviction is treated as an element of an offence. The indictment must charge the previous conviction as well as the subsequent offence and the accused must be arraigned accordingly (Metcalfe (1913) 9 Cr.App.R.7, at p.9) and, if the accused pleads not guilty, both issues must be found by the jury against the accused before he is liable to the greater penalty. However, in order to secure a fair and impartial trial in such cases, it was enacted that the jury should not be charged to inquire concerning the former offence until after they found the accused guilty of the later offence (6 and 7 Wm.IV c.111; see now Crimes Act 1900 (N.S.W.), s.394; Faulkner v. The King (1905) 2 KB 76, at pp 80-81). After finding the accused guilty of the later offence, the jury were charged to inquire into the previous conviction without being resworn or being open to fresh challenge (Reg. v. Key (1851) 3 Car. &K.371 (175 ER 593); Reg. v. Shuttleworth (1851) 3 Car. &K.375 (175 ER 596)) and that is the present practice (Archbold Criminal Pleading Evidence &Practice, 41st ed. (1982), p 229, par.4-50). If the previous conviction is not an element of an offence, it is not charged in the indictment nor is it submitted to the jury as an issue to be tried.

35. Although the terms of the particular statute must be construed to determine whether a previous conviction which exposes an offender to liability for a greater punishment for a second offence must be charged in an indictment, the prima facie rule is that no sentence legally dependent on a previous conviction can be imposed unless the indictment charges the previous conviction: Reg. v. Summers (1869) LR 1 C.C.R 182; Reg. v. Willis (1872) LR 1 C.C.R 363; Ex parte Weismantel (1921) 21 SR (NSW) 240, at p 245. When an indictment might and should have charged a previous conviction or any other circumstances by reason of which an offender is liable to a maximum penalty greater than the maximum penalty to which he would otherwise be liable, the sentencing judge cannot assume the jury's function and, finding what was not charged, hold the offender liable to the greater maximum penalty. In R. v. Bright (1916) 2 KB 441 Darling J. said, at pp 444-445:

" (The judge) must not attribute to the prisoner that he is guilty of an offence with which he has not been charged - nor must he assume that the prisoner is guilty of some statutory aggravation of the offence which might, and should, have been charged in the indictment if it had been intended that the prisoner was to be dealt with on the footing that he had been guilty of that statutory aggravation."

The rule exemplifies an underlying principle, namely, that an offender's liability to punishment or his liability to a particular maximum penalty depends on the facts determined by his plea of guilty or by the verdict of a jury. The principle underlies a provision which Sir Samuel Griffith included in his draft Criminal Code. As enacted, the Criminal Codes of Queensland and of Western Australia contained - and the Queensland Code continues to contain - a provision that any circumstance of aggravation that is intended to be relied upon should be charged in the indictment (s.564 (Q.); s.582 (W.A.)), a circumstance of aggravation being defined to mean and include "any circumstance by reason whereof an offender is liable to a greater punishment than that to which he would be liable if the offence were committed without the existence of that circumstance" (s.1). Whether or not a circumstance of aggravation when added to the other elements of a particular offence constitutes a different offence for the purposes (or some purpose) of the Code - a question discussed in Ross v. The Queen - the Code ensured that, in the absence of a plea of guilty, the extent of an offender's liability to punishment should depend on the jury's verdict. In Reg. v. De Simoni differing views were expressed as to whether the omission of a circumstance of aggravation from the indictment affects only the limits of the sentencing power or whether it affects also the exercise of the sentencing discretion (see pp.392,396,405), the majority holding the wider operation of the provision to be its true operation. On any view, when a circumstance of aggravation is omitted from an indictment under the Code, the offender is not liable to a greater maximum penalty than that to which he would be liable if the offence had been committed without the existence of that circumstance.

36. In the present case we are not primarily concerned with the interpretation of the Code provisions relating to the charging in an indictment of a circumstance of aggravation, nor are we primarily concerned with the construction of statutes which may create distinct offences containing circumstances of aggravation as elements. The Code provisions and the prima facie rule of construction merely exemplify the common law principle that a conviction on indictment, whether by plea or verdict, determines the extent of the offender's liability to punishment. The question is whether s.80 denies the Parliament power to abrogate that principle.

37. It is clear that the Parliament has purported to abrogate that principle. A conviction for a s.233B offence makes the offender liable only to the prescribed basic level of penalty (that is, the penalty prescribed by s.235(2)(e)), but the Parliament has provided that a person who is not liable by reason of his conviction for a s.233B offence to any greater maximum penalty becomes liable to a greater maximum penalty if a judge finds that the facts prescribed by sub-s.(2)(c) or (d) exist. None of those facts is properly included in an indictment framed under s.233B, an accused is not properly charged with them, and the jury is not empowered to try the issue of their existence. The Parliament may, of course, create such offences as it chooses within the limits of its constitutional powers. It has chosen to create the offences contained in s.233B(1) and it is argued that the mode of trial prescribed for s.233B offences when they are prosecuted on indictment conforms to the requirement of s.80. The argument acknowledges that s.235(2)(c) and (d) provide for greater maximum penalties, but denies that the facts prescribed by those paragraphs are elements of offences distinct from the s.233B offences. If the argument turned on the intention of the Parliament, it would succeed. But the argument must turn on the power of the Parliament and that depends upon the meaning of the term "offence" in s.80 of the Constitution. Section 80 provides:

" The trial on indictment of any offence against any law of the Commonwealth shall be by jury, and every such trial shall be held in the State where the offence was committed, and if the offence was not committed within any State the trial shall be held at such place or places as the Parliament prescribes."

An "offence against any law of the Commonwealth" is, of course, an indictable criminal offence created by or under a law made by the Parliament. Section 80 is expressed as a constitutional guarantee of trial by jury and the issues to be so tried must be elements of what constitutes a criminal offence. But the term "offence" is not left to be defined by Parliament; in s.80 it has the meaning which it bears in the criminal law. In Reg. v. Courtie (1984) AC 463, Lord Diplock said (at p 471):

" My Lords, where it is provided by a statute that an accused person's liability to have inflicted upon him a maximum punishment which, if the prosecution are successful in establishing the existence in his case of a particular factual ingredient, is greater than the maximum punishment that could be inflicted on him if the existence of that particular factual ingredient were not established, it seems to me to be plain beyond argument that Parliament has thereby created two distinct offences, whether the statute by which they are created does so by using language which treats them as being different species of a single genus of offence, or by using language which treats them as separate offences unrelated to one another."

In my respectful opinion, Lord Diplock is manifestly right. The passage cited conforms to the principle that an offender's liability to punishment depends on the facts which are determined by a plea or verdict of guilty. What is a criminal offence? A criminal offence can be identified only in terms of its factual ingredients, or elements, and the criminal penalty which the combination of elements attracts. Littledale J., speaking of criminal offences in Mann v. Owen (1829) 9 B &C 596, at p 602 (109 ER 222, at p 224), said: "The proper definition of the word 'crime' is an offence for which the law awards punishment". That view accords with Sir James Fitzjames Stephen's definition of crime as "an act or omission in respect of which legal punishment may be inflicted on the person who is in default either by acting or omitting to act" (History of the Criminal Law of England, (1883), vol.I, p.1). See also Sir Samuel Griffith's Code definition of offence: "An act or omission which renders the person doing the act or making the omission liable to punishment" (The Criminal Code (Q.), s.2) and the congruent views of Lord Esher M.R in Rayson v. South London Tramways Company (1893) 2 QB 304, at p 307, and of Bramwell L.J. in Mellor v. Denham (1880) 5 QBD 467, at p 469. If a particular combination of elements attracting a particular penalty is one offence, a different combination of elements attracting a different penalty is another offence. Therefore a combination of the factual elements in s.233B(1) and s.235(2)(c) and (d) which renders an offender liable to a maximum penalty prescribed by s.235(2)(c) or (d) is an offence distinct from an offence consisting in factual elements derived from s.233B(1) which render an offender liable to the maximum penalty prescribed by s.235(2)(e) but not to any greater penalty.

38. It cannot be right to identify a s.233B offence which attracts the basic penalty as the "offence" for the purpose of s.80 in a case where facts prescribed by s.235(2)(c) or (d) are found to exist and where the offender becomes liable to a greater maximum penalty. If an offence were identified for the purpose of s.80 only by reference to those elements which a jury might find to exist, the guarantee given by s.80 would be nugatory: in a prosecution on indictment, no issues would have to be tried by jury save those which Parliament ordained to be tried by jury. Given that Parliament may determine which offences are to be prosecuted on indictment and which are not, the Parliament has no power to determine that offences in the former category may be tried otherwise than by jury. In my opinion, offences which attract the maximum penalties prescribed by s.235(2)(c) and (d) are offences distinct from s.233B offences and each element of the distinct offences is the subject of the s.80 guarantee.

39. As the facts prescribed by s.235(2)(c) and (d) are not intended by Parliament to be elements of offences distinct from s.233B offences, Parliament does not intend them to be treated as elements of an offence at all. If the facts prescribed by s.235(2)(c) and (d) were to be treated as elements of an offence, each external element would be accompanied by a mental element, just as each external element in a s.233B offence is accompanied by a mental element: He Kaw Teh v. The Queen (1985) 59 ALJR 620; 60 ALR 449. However, as the Parliament did not intend the quantities of narcotic substances in the narcotic goods to which s.233B offences relate to be elements of an offence, it may be wrong to presume that Parliament intended an offender's liability to greater maximum penalties to depend on his knowledge of, or the absence of any honest and reasonable mistake about, the quantity of narcotic substance in the goods imported or possessed. It would be a curious result indeed to find that a mental element applies to each of the external elements prescribed in s.233B but not to any fact which attracts maximum penalties greater than the basic penalty, even when the fact attracts the greatest maximum penalty, imprisonment for life. When a statute conforms to s.80, it is clear that all external facts the existence of which attracts a criminal penalty or a particular level of maximum penalty are elements of an offence, and therefore a presumption arises that a mental element must accompany each of those facts. When a statute does not conform to s.80, the mental state of the offender with respect to the facts which attract a greater penalty may be immaterial. It is not necessary now to resolve the question. It is sufficient to note that the guarantee given by s.80 with respect to the trial of each element of an "offence" (in the sense which I attribute to the term in s.80) ensures a consistent application of the presumption with respect to mental states in relation to all external facts the existence of which attracts a particular level of maximum penalty.

40. Although it has been held that s.80 guarantees trial by jury only in cases where an offence against a law of the Commonwealth is prosecuted on indictment (Li Chia Hsing v. Rankin (1978) 141 CLR 182 and the cases there cited), the purpose of the guarantee is clear: a person should not be held liable to punishment as for an offence against a law of the Commonwealth when he is prosecuted on indictment and pleads not guilty unless the jury's verdict makes him liable to that punishment. The purpose of s.80 corresponds with the principle underlying s.564 of the Criminal Code of Queensland and the decisions in Summers, Willis, Weismantel and Courtie, namely, that an offender's liability to punishment or to a particular maximum penalty depends on the facts determined by a plea or verdict of guilty. Accepting that a legislature unfettered by s.80 might enact a law that an offence committed with a circumstance of aggravation should not constitute an offence different from an offence committed without a circumstance of aggravation, I construe s.80 as prohibiting the Parliament from withdrawing issues of fact on which liability to a criminal penalty or to a particular maximum penalty depends from the jury's determination when any offence against a law of the Commonwealth is tried on indictment. If the Parliament creates what are distinct offences for the purpose of s.80, the Parliament cannot divide the offences into elements to be tried by the jury and elements to be tried by the judge and, by calling the former elements the "offence", cast aside the constraints of the Constitution as to the mode of trial of the latter elements. The Parliament cannot treat facts on the existence of which liability to different maximum penalties depends as though they are not elements of an offence and withdraw from jury determination the issue of their existence.

41. As sub-s.(2)(c) and (d) (and the interlocking provision of sub-s.(3)) of s.235 require a judge alone to determine the existence of facts which, in my opinion, are elements of an offence for the purpose of s.80, those provisions offend s.80. Their validity cannot be sustained by inviting the jury to make a finding as to the existence of the facts prescribed by sub-s.(2)(c) and (d) nor by adopting the procedure prescribed by s.564 of the Criminal Code of Queensland. In Reg. v. Gardiner (1981) QdR 394, at p 399, Hoare J. held that that procedure was made applicable to prosecutions on indictment in Queensland by s.68(1) of the Judiciary Act 1903 (Cth), but s.68(1) could not displace the operation of s.235(2)(c) and (d) which, if valid, confers on the judge alone the function of finding the facts therein prescribed. The procedure prescribed by the Criminal Code of Queensland for charging a circumstance of aggravation and trying the issue whether it exists cannot be adopted if the jury is not competent to try that issue. I am unable to agree with the approach of the Court of Criminal Appeal in New South Wales that the Code procedure could and should be followed in all States: Reg. v. Martin (1984) 2 NSWLR 236, at p 240. I would hold sub-s.(2)(c) and (d) and sub- s.(3) of s.235 invalid.

42. If this conclusion were to prevail, it would redound to the advantage of an applicant who is utterly without merit. The applicant was involved in trafficking in heroin after a previous conviction for possessing a prohibited import. The Court of Criminal Appeal, allowing a Crown appeal against sentence and dismissing the applicant's appeal, imposed a sentence of 18 years imprisonment and specified a minimum term of 12 years. Although the Constitution constrains me to allow the applicant's appeal, I should not wish to cast the slightest doubt on the correctness on the merits of the sentence which the Court of Criminal Appeal imposed. The suffering of heroin addicts and the malignant avarice of those who feed upon that suffering make the illegal importing of large quantities of heroin a crime deserving of rigorous punishment. But the Constitution must prevail. Trial by jury is guaranteed by s.80 of the Constitution when an offence against a law of the Commonwealth is tried on indictment. The offence with which the applicant was charged and the offence for which he was convicted was an offence constituted by elements drawn from s.233B(1)(cb) alone. He cannot be sentenced as for another offence - an offence constituted in part by s.233B elements and in part by elements drawn from s.235(2)(c) - for which he was not convicted on the jury's verdict. Had he been charged on indictment with the offence for which he was sentenced, the law which created that offence would have precluded its trial by jury. By providing that the issues derived from s.235(2)(c) are to be tried by a judge, that paragraph denies the guarantee given by s.80 of the Constitution. In my opinion, the Parliament's attempt to provide condign punishment for persons involved in the illegal importing of narcotic goods or in the possession of illegally imported narcotic goods has miscarried for failure to observe the imperative requirements of s.80. Parliament ignored Blackstone's warning in his Commentaries (1769), Book IV, p.344:

" ... inroads upon this sacred bulwark of the nation are fundamentally opposite to the spirit of our constitution; and that, though begun in trifles, the precedent may gradually increase and spread, to the utter disuse of juries in questions of the most momentous concern."

The failure to observe the imperative requirements of s.80 carries the deplorable consequence that invalidity strikes provisions enacted for the suppression of some of the most serious crimes in the criminal calendar.

43. I would grant special leave, allow the appeal, set aside the sentence and impose in lieu thereof the maximum penalty available for the offence for which the applicant was convicted, namely, that prescribed by s.235(2)(e), a fine of $2,000 and 2 years imprisonment.

DEANE J.: The first question on this appeal is one of statutory construction. It is whether the references to "the Court" in s.235 of the Customs Act 1901 (Cth) ("the Act") are, in a case of a trial by jury, properly to be construed as being to the judge, to the jury or to whichever of the judge or the jury is appropriate for the particular function. The conclusion to which I have come is that, for the reasons which follow, the references to "the Court" in s.235 are, in the case of such a trial, references to the judge. As will appear, that conclusion gives rise to a second question, namely, whether the operation of the relevant provisions of the Act in the present case is consistent with the provisions of s.80 of the Constitution.

CUSTOMS ACT 1901, SECTION 235

44. Section 235 is to be found in Division 2 of Part XIII of the Act. Throughout that Division, there can be discerned a distinction between the statement of what the Parliament has specified as the ingredients of an offence and the statement of what the Parliament has fixed as the maximum punishment for an offence once an accused has been found guilty of it. In some cases, the distinction is drawn in the ordinary way, by identifying the ingredients of the offence and fixing, after that identification, the maximum punishment or penalty. In some other cases, the distinction is highlighted by making provision for the punishment upon conviction of an offence in a different sub-section of the relevant section from that in which the ingredients of the offence are specified. In yet other cases, where the one set of punishment provisions is intended to be applicable to a number of different offences, the designation of maximum punishment is to be found in a different section of the Act from the section or sections containing the provisions identifying the ingredients of the relevant offences. The provisions of s.235 of the Act fall into this last-mentioned category. They are punishment provisions which are applicable only after an accused has been found guilty of an offence against the provisions of one of a number of other nominated sections of the Act (i.e. s.50(4), s.112(2B), s.231(1), s.233A or s.233B(1)).

45. The offence of which the present applicant was convicted was an offence against the provisions of s.233B(1)(cb). Both s.233B and s.235 make clear that the ingredients of that actual offence are those identified in s.233B and that, as a matter of form, the provisions of s.235 are concerned only with punishment. Thus, s.233B(3) provides that a "person who is guilty of an offence against sub-section (1) of this section is punishable upon conviction as provided by section 235". For its part, s.235 fixes the maximum penalties in cases where "a person commits an offence against ... sub-section 233B(1)" (s.235(2)(a)) and "the offence is an offence that is punishable as provided by this section" (s.235(2)(b)). It is true that, viewed as a matter of substance, the result is artificial to the extent of sheer sophistry in that the maximum punishment upon conviction of what are identified as the ingredients of the actual offence will vary, according to whether or not other matters are found to have existed, from two years' imprisonment and a $2000 fine to life imprisonment. As a matter of statutory construction however, the distinction between the specified ingredients of an offence and facts determinative of the maximum punishment accords with the clear intention of the Parliament.

46. On a trial by jury, the burden of sentencing under the punishment provisions of Division 2, including the provisions of s.235, is imposed upon the judge. Plainly enough, the reference to "the Court" in the phrase "such period (of imprisonment) as the Court thinks appropriate" in s.235(2)(c) is a reference to the trial judge. There is nothing in the provisions or context of s.235 which warrants the conclusion that the legislative intent was that the words "the Court" should be given a different meaning where they occur in other parts of s.235. To the contrary and notwithstanding considerations of constitutional validity (see below), it is plain that the Parliament intended that, once guilt of the ingredients of an offence specified in one of the other provisions of the Act to which s.235 relates had been established, the proceedings should move to the sentencing or punishment stage in which the remaining functions would be discharged by the judge alone. That being so, it was, as a matter of statutory construction, for the learned trial judge to determine whether, in the light of the jury's verdict, he was satisfied of the matters specified in s.235(2)(c)(ii) with respect to the offence against s.233B(1)(cb) of which the applicant had been found guilty. This is what his Honour did. While the indictment on which the applicant was arraigned and convicted did not allege that a "trafficable" quantity of heroin was involved as postulated by s.235(2)(c)(ii) or that the applicant had, on a previous occasion, been convicted of an offence of the kind there described, his Honour acted on the basis that the facts of the crime of which the jury had convicted the applicant involved such a trafficable quantity and that, as was common ground, the applicant had such a prior conviction. His Honour accordingly proceeded to sentence the applicant on the basis that the maximum sentence was that prescribed by s.235(2)(c), namely, imprisonment for life. In these circumstances, the question arises whether the combined operation of the provisions of ss.233B(1)(cb) and 235(2)(c)(ii), pursuant to which the applicant was convicted and sentenced, is consistent with the provision of s.80 of the Constitution that the "trial on indictment of any offence against any law of the Commonwealth shall be by jury".

CONSTITUTION, SECTION 80

47. The guarantee of s.80 of the Constitution was not the mere expression of some casual preference for one form of criminal trial. It reflected a deep-seated conviction of free men and women about the way in which justice should be administered in criminal cases. That conviction finds a solid basis in an understanding of the history and functioning of the common law as a bulwark against the tyranny of arbitrary punishment. In the history of this country, the transition from military panel to civilian jury for the determination of criminal guilt represented the most important step in the progress from military control to civilian self-government.

48. In Spratt v. Hermes (1965) 114 CLR 226, at p 244 however, Barwick C.J. expressed the view that the inclusion of the words "on indictment" in the relevant provision of s.80 had the result that "(w)hat might have been thought to be a great constitutional guarantee has been discovered to be a mere procedural provision" (cf. Clyne v. Director of Public Prosecutions (1984) 58 ALJR 493, at p 498, 55 ALR 9, at p 17). If that view be correct and the ostensible guarantee of the section be, in any event, no more than "a mere procedural provision" whose operation can be avoided at whim by the Parliament, there can be little objection in principle to an insular and narrow construction of its terms. If, on the other hand, the section is properly to be seen as embodying a fundamental and substantive constitutional guarantee of trial by jury, the settled principles of legal interpretation applicable to such a guarantee require that it be broadly interpreted and applied; that its ambit be not confined by narrow technicality (cf. Jumbunna Coal Mine N.L. v. Victorian Coal Miners' Association (1908) 6 CLR 309, at pp 367-368; Reg. v. Coldham; Ex parte Australian Social Welfare Union (1983) 153 CLR 297, at p 314); that its substance be not confounded by devious drafting (cf. The Commonwealth and Commonwealth Oil Refineries Ltd. v. South Australia (1926) 38 CLR 408, at p 423; Gosford Meats Pty. Ltd. v. New South Wales (1985) 59 ALJR 221, at pp 226-227, 57 ALR 417, at pp 425-427). It is to the question whether the relevant provision of s.80 is properly to be seen as constituting a mere procedural provision or a fundamental and effective guarantee that I now turn.

49. Regardless of whether one traces the common law institution of trial by jury to Roman, Saxon, Frankish or Norman origins, the underlying notion of judgment by one's equals under the law was traditionally seen as established in English criminal law, for those who had the power to be heard, at least by 1215 when the Charter of that year provided, among other things, that no man should be arrested, imprisoned, banished or deprived of life otherwise than by the lawful judgment of his equals ("per legale judicium parium suorum") or by the law of the land. Modern scholarship would indicate that much of the traditional identification of trial by jury with Magna Carta was erroneous. It is, however, clear enough that the right to trial by jury in criminal matters was, by the fourteenth century, seen in England as an "ancient" right. In the centuries that followed, there was consistent reiteration, by those who developed, pronounced, recorded and systematized the common law of England, of the fundamental importance of trial by jury to the liberty of the subject under the rule of law (see, e.g., Co. Inst., Part II, 45ff.; Black. Comm. (1st ed., 1966 rep.), Book III, pp.379-381, Book IV, pp 342-344, and, generally, Singer v. United States (1965) 380 US 24, at p 27 (13 Law Ed 2d 630, at p 633); Mr. Justice Evatt, "The Jury System in Australia", Australian Law Journal, vol. 10 (1936), Supplement, 49, at pp.66-67, 72). When British settlements were established in other parts of the world, trial by jury in criminal matters was claimed as a "birthright and inheritance" under the common law and as an institution to be established and safeguarded to the extent that local circumstances would permit (cf. the passage from Story's Commentaries on the Constitution quoted in Patton v. United States (1930) 281 US 276, at p 297 (74 Law Ed 854, at p 862); Kent's Commentaries, Lecture 24, pp 1-6; Rutland, The Birth of the Bill of Rights, 1776-1791 (1983), p.19; United States ex rel. Toth v. Quarles (1955) 350 US 11, at pp 16-17, n.9 (100 Law Ed 8, at p 14, n.9), and, as to Australia, J.M. Bennett, "The Establishment of Jury Trial in New South Wales", Sydney Law Review, vol. 3 (1959-1961), 463).

50. In R v. Snow (1915) 20 CLR 315, at p 323, Griffith C.J. described the constitutional guarantee which s.80 contains as "a fundamental law of the Commonwealth". The rationale and the essential function of that guarantee are the protection of the citizen against those who customarily exercise the authority of government: legislators who might seek by their laws to abolish or undermine "the institution of 'trial by jury' with all that was connoted by that phrase in constitutional law and in the common law of England" (per Griffith C.J., ibid.); administrators who might seek to subvert the due process of law or be, or be thought to be, corrupt or over-zealous in its enforcement; judges who might be, or be thought to be, over-remote from ordinary life, over-censorious or over-responsive to authority. To quote from the majority opinion of the United States Supreme Court (delivered by White J.) in Duncan v. Louisiana (1968) 391 US 145, at p 156 (20 Law Ed 2d 491, at pp 499-500):

"...the first of them would be seen to be that some authority constituted under the law to represent the public interest for the purpose took the responsibility of the step which put the accused on his trial; the grand jury, the coroner's jury or the coroner, the law officer or the court. A second element, we think, would be found in the liability of the offender to a term of imprisonment or to some graver form of punishment. We should not have taken the view that sec.80 was intended to impose no real restriction upon the legislative power to provide what kind of tribunal shall decide the guilt or innocence on a criminal charge".

60. Subject to one qualification, the first of those additional elements of a trial on indictment identified by Dixon and Evatt JJ. in Lowenstein would seem clear enough. The trial must be initiated by some step taken by the Crown or by some instrumentality or agent of government such as a magistrate or justice on a committal hearing or a coronial inquest, a director of prosecutions or a law enforcement officer. The qualification is that it is unnecessary to consider here whether this first additional element would be more accurately and more simply stated as being that the trial be instituted by a charge brought by the State or by some agency or person acting on behalf of or with the authority of the State with the result that the relevant class would include any individual exercising a statutory right to prosecute another citizen for an offence against the State. The second additional element - the liability of the offender to a term of imprisonment - is not so clear. It is true that, by 1900, there was a well-established practice that some less serious offences, often described as "summary" as distinct from "indictable" offences, should be punishable pursuant to special statutory provisions providing for summary (in the sense of immediate) trial by justices or magistrates. It would also seem plain enough that the framers of the Constitution used the words "on indictment" in s.80 to ensure that the guarantee of trial by jury was not applicable to the type or class of less serious offences which were generally seen, in the last decade of the nineteenth century, as appropriate to be dealt with by justices or magistrates. The borderline between such less serious or summary offences and other more serious or indictable felonies or misdemeanours had not, however, customarily been drawn on the basis suggested by their Honours, namely, that the less serious or "non-indictable" offences were restricted to those which were not punishable by any term of imprisonment at all.

61. An examination of the legislation in force in England and the Australian colonies at the time of Federation discloses that, subject to some exceptions (cf., e.g., Minor Offences Procedure Act, 1869 (S.A.), s.3, dealing with the consent jurisdiction of magistrates), the less serious offences punishable summarily before justices or magistrates were restricted to offences for which the maximum punishment was, when they were so tried, a term of imprisonment of not more than one year. This general boundary between the less serious offences which were appropriate to be dealt with summarily by justices or magistrates and the more serious offences which were not appropriate to be so dealt with was subsequently accepted in the first Commonwealth Crimes Act which was enacted in 1914 and which provided (s.12(3)) that a Court of Summary Jurisdiction might not impose a longer period of imprisonment than one year in respect of any one offence against that Act (but cf. Acts Interpretation Act 1904 (Cth), s.4: not more than 6 months). The distinction between the less serious - or, to use a common term which was adopted by Sir Samuel Griffith in the Queensland Criminal Code (see his letter dated 29 October 1897 accompanying the draft Code and s.3 of the Code, in Wilson and Graham (eds), The Criminal Code of Queensland (1901), pp.xi, 31), the "simple" - offences appropriate to be dealt with summarily by justices or magistrates and the more serious offences which were not appropriate to be so dealt with was well established in 1901 (see, e.g., Black. Comm., Book IV, pp.279-280). Indeed, it is possible to point to many instances of 19th century legislation requiring justices or magistrates to determine whether a particular charge was "fit" to "be disposed of summarily" (see, e.g., Hall v. Braybrook (1956) 95 CLR 620, at pp 630-632, 649-650). Obviously, there are elements of subjective judgment and discretion involved in determining whether a particular alleged offence falls into the less serious category which is capable of being appropriately dealt with by justices exercising summary jurisdiction. Those elements of subjective judgment and discretion did not and do not, however, preclude that question from being susceptible of judicial determination.

62. In my respectful view, Dixon and Evatt JJ. were correct in their conclusion that there lies at the heart of the concept of "trial on indictment" in s.80 the notion of the trial of a "serious offence". I am, however, unable to accept their Honours' view that the criterion of what constitutes, for relevant purposes, a serious offence is that it be punishable by any term of imprisonment at all. In the light of the foregoing, it appears to me that the correct criterion of what constitutes a serious offence is that it not be one which can appropriately be dealt with summarily by justices or magistrates. Within the limits of those offences which are capable of being appropriately so dealt with, the question whether a particular offence should, as a matter of legislative policy, actually be dealt with summarily by justices or magistrates is a matter for the Parliament. The question arises whether the identification of the limits beyond which a charge cannot properly be seen as fit to be dealt with as a summary offence is a matter of legislative policy in the discretion of the Parliament or is a matter for judicial determination by the courts. If it is a matter for the courts, the provisions of s.80 will extend to ensure that a person accused by the Commonwealth or an agency of the Commonwealth of what is, in the relevant sense, properly to be regarded as a "serious offence" against a law of the Commonwealth enjoys an effective constitutional right of trial by jury. If it is a matter for the Parliament, s.80 will afford such a person no effective protection at all. It has already been seen that the question whether a particular offence is, for the purposes of s.80, a "serious" one in the relevant sense is susceptible of judicial determination. Plainly, when two constructions are available, the construction which will give the guarantee of trial by jury in s.80 "a real operative effect" is to be preferred to that which would make that guarantee illusory in the sense that it would represent no effective restraint upon Commonwealth legislative power (cf., e.g., Lowenstein, at p.582). That being so, it follows as a matter of principle that the question whether a particular offence is, for the purposes of s.80, a serious one in the sense that it is not capable of appropriately being dealt with summarily by justices or magistrates is, ultimately, a question of law to be determined by the courts. That conclusion accords with the United States decisions to the effect that particular Constitutional provisions relating to juries confer a right to jury trial in the case of offences other than "petty offences" and that the boundary of what constitute "petty offences" is a matter for judicial determination (see, e.g., Callan v. Wilson (1888) 127 US 540 (32 Law Ed 223); District of Columbia v. Clawans (1937) 300 US 617, at pp 623-625 (81 Law Ed 843, at pp 845-846); Baldwin v. New York (1970) 399 US 66, at pp 68-74 (26 Law Ed 2d 437, at pp 440-443)). It becomes necessary to consider whether that conclusion is precluded by the previous cases in this Court involving the provisions of s.80 of the Constitution.

63. In R. v. Archdall and Roskruge; Ex parte Carrigan and Brown (1928) 41 CLR 128, it was held by a unanimous court that the provisions of the Crimes Act 1914 (Cth) to the effect that an alleged offence against s.30K of that Act could be tried in a court of summary jurisdiction without a jury did not conflict with the provisions of s.80 of the Constitution. The maximum penalty for an offence against s.30K was imprisonment for one year. Knox C.J., Isaacs, Gavan Duffy and Powers JJ. joined in the main judgment which disposed of the argument based on s.80 in one peremptory sentence (ibid., at p.136):

" The suggestion that the Parliament, by reason of sec.80 of the Constitution, could not validly make the offence punishable summarily has no foundation and its rejection needs no exposition".

It is unnecessary to go beyond the subsequent judgment of Dixon and Evatt JJ. in Lowenstein to demonstrate the error of their Honours' assertion that the rejection of the argument based on s.80 needed no exposition. Indeed, almost sixty years after Archdall was decided, one is left to speculate about what constituted the precise basis of the rejection of that argument. Since Isaacs J. was a party to it, it is possible that the judgment reflected the view which had been expressed by his Honour in R. v. Bernasconi (1915) 19 CLR 629, at p 637 that "(i)f a given offence is not made triable on indictment at all, then sec.80 does not apply". Even if that be the case however, one is left uninformed about the precise reason why the proceedings in Archdall were not "on indictment". A similar observation can be made about the judgment, in Archdall, of Higgins J. who rejected the argument based on s.80 with the comment (at pp.139-140): "if there be an indictment, there must be a jury; but there is nothing to compel procedure by indictment".

64. As has been seen, a constitutional guarantee of trial by jury in criminal matters is directed, to no small extent, to the protection of the citizen against being subjected to having criminal guilt or innocence determined by a judge alone. In that context, there is an obvious need for cogent reasoning to support and explain any decision by judges that such a guarantee should be given a construction which would effectively render it illusory. In the absence of any reasoning at all in the majority judgment in Archdall, the decision in that case should not be seen as extending beyond the particular legislative provisions there involved or as establishing more than the proposition that the trial of the particular complaint made by the Deputy Director of Navigation in respect of the alleged offence in that case was not "on indictment" for the purposes of s.80. On that approach, Archdall does not compel rejection of the construction of s.80 which was subsequently accepted by Dixon and Evatt JJ. in their joint judgment in Lowenstein as modified in the manner which I have indicated: provided that a maximum term of 12 months' imprisonment be, as it would seem to be, the ordinary reference point for determining whether an offence is capable of being properly seen as fit to be prosecuted summarily before justices or magistrates, the trial in question in Archdall would not have been a trial on indictment in that the offence involved would not have been a "serious" one in the relevant sense. It becomes necessary to consider whether there is any other decision of this Court which compels rejection of the views of Dixon and Evatt JJ. as so modified.

65. In Lowenstein itself, the s.80 point was not raised in argument by Mr. Barwick (as he then was) who appeared for the applicant. Latham C.J. referred (at p.570) to the definitions of "indictment" in Byrne's Law Dictionary (1923) and Stroud's Judicial Dictionary, 2nd ed. (1903) as disclosing the meaning of "indictment". The only definition of "Indictment" in Byrne, however, confined an indictment to an accusation "presented on oath by a grand jury". The second edition (1903) of Stroud also defined "Indictment" by reference to the grand jury (or an inquest) and seemingly favoured the view that "'Indictment' does not include an 'Information'". Such definitions of "indictment", while instructive about the historical meaning of the term in England, are, as has been seen, inappropriate to define the sense in which the word is used in s.80. Indeed, acceptance of them as applicable to s.80 would have the consequence that "trial on indictment" was used in that section in a sense which would effectively exclude almost all criminal trials in the Australian colonies including trials pursuant to an Attorney-General's information under the Australian Courts Act. Latham C.J. also made an indirect reference to some pre-Federation views expressed by Isaacs J., as a delegate to the 1898 Convention, to the effect that the Parliament could provide that murder was not an indictable offence and "therefore the right to try a person accused of murder would not necessarily be by jury". In the course of the Convention debates, Isaacs J. also expressed the unlikely views that trial on indictment in s.80 would not even include trial "on presentment" and that, even where the section applied, it could be satisfied by trial by a jury of two (Record of Convention Debates, Third Session (1898), pp.352, 1895). Even if regard could properly be had to such views expressed by a delegate in the course of debate however, it could scarcely be assumed that they were shared by the majority of the Convention which adopted the section. After referring to Archdall, Latham C.J. concluded that s.80 did not prevent the Commonwealth Parliament "from determining whether any particular offence should be prosecuted on indictment or summarily" and "that sec.80 relates only to trials which are in fact trials on indictment". Plainly, his Honour's views about s.80 were contrary to those of Dixon and Evatt JJ. Rich J. confined his judgment to the statement (at p.573) that he agreed "that the questions submitted by the special case should be answered in the manner stated by the Chief Justice". McTiernan J. pointed out (at p.591) that the s.80 question had not been argued and added that he did not propose to say "any more" on that question than that he considered that he was "bound by the previous decisions of the court". The only other member of the Court, Starke J., restricted his judgment to dealing with matters which had been raised in argument and made no reference at all to s.80 of the Constitution. It follows that Lowenstein cannot, properly understood, be seen as providing an authoritative general exposition of the overall operation of s.80 of the Constitution. A fortiori, the actual decision in that case cannot properly be seen as inconsistent with my qualified acceptance of the views about s.80 expressed by Dixon and Evatt JJ. in their joint dissenting judgment since the maximum punishment under the relevant provisions of the Bankruptcy Act 1924 (Cth) was, when the charge was tried "summarily", six months' imprisonment (s.217(2)). The same comments apply with respect to the subsequent acceptance by the Court in Sachter v. Attorney-General (Cth) (1954) 94 CLR 86, at p 88 of the actual decision in Lowenstein as establishing the validity of the relevant provisions of the Bankruptcy Act 1924 (Cth).

66. In Zarb v. Kennedy (1968) 121 CLR 283, the Court upheld the appellant's summary conviction by a magistrate of the offence of failing to comply with the requirement of a "call-up notice" which had been served upon him pursuant to the provisions of the National Service Act 1951 (Cth). An argument, on the appellant's behalf, that the provisions of that Act providing for summary trial of the offence were invalid as inconsistent with s.80 of the Constitution was unanimously rejected.

67. The main judgment in Zarb was that of Barwick C.J. His Honour dismissed (at p.294) the s.80 argument with the comment that "the proposition that the Parliament is unable to provide that any offence shall be tried summarily is untenable". The Chief Justice's only other comment (ibid.) in relation to the point was that "(t)he question of the scope of sec.80 has, in my opinion, not only been long settled but ought not now to be reopened". McTiernan J. dealt with the s.80 point (at p.297) as follows:

"The other point is that s.51(4) is obnoxious to s.80 of the Constitution. It was sought to support this submission by referring to comment on R. v. Archdall made in the case of R. v. Federal Court of Bankruptcy; Ex parte Lowenstein. In my opinion this comment does not show that R. v. Archdall and Roskruge; Ex parte Carrigan and Brown was wrongly decided. I am of opinion that there is no conflict between s.80 of the Constitution and s.51(4) of the present Act".

Menzies J. (at pp.298-299) rejected the s.80 argument on the basis that it had been established in Archdall and Lowenstein that s.80 "means no more than it says, i.e., that every trial on indictment shall be by jury". His Honour supported that conclusion by quoting the passage from the judgment of Latham C.J. in Lowenstein to which I have already referred in some detail. Owen J. disposed of the submission based on s.80 with the comment (at p.312) that he was "unable to agree" with it and that it was "sufficient to refer in this connexion to the decision of this Court in R. v. Archdall". Of the other members of the Court, Taylor J. indicated his general agreement with the judgment of Barwick C.J. while Kitto and Windeyer JJ. indicated their general agreement with the comments of the then Chief Justice, Menzies and Owen JJ.

68. It appears from the judgment of Barwick C.J. in Zarb that he mistakenly regarded Archdall and Lowenstein as having "settled" that s.80 did not prevent the Parliament from making any offence at all, no matter how serious in its nature and grave in its consequences, triable summarily by a magistrate without a jury. Arguably, Taylor J. and Menzies J. both shared that view. It is, however, impossible to assert with confidence that a similar view was shared by any other member of the Court. The offence in Zarb may well be considered to have come within the limits of the type of offence which can properly be regarded as appropriate to be dealt with summarily by a magistrate without a jury. The primary maximum penalty for the offence was a fine of $200. While it is true that the mandatory penalty in the circumstances of the particular case was two years' imprisonment, that penalty fell into a special category in that it was a secondary penalty imposed only in circumstances where the accused was unwilling to enter forthwith into a satisfactory recognizance that he would comply with the requirements of any "call-up notice" that was subsequently served upon him. It was imposed more in substitution for the period of military service that an accused refused to undergo than as punishment for the offence of failing to comply with the requirement of his call-up notice. In my view, the decision in Zarb should not, in the absence of any clearly disclosed process of majority reasoning, be seen as advancing the decisions in Archdall and Lowenstein as an authoritative general exposition of the effect of s.80.

69. The other decision of the Court to which particular reference should be made is Li Chia Hsing v. Rankin (1978) 141 CLR 182. The offence involved in that case was a fisheries offence for which the maximum term of imprisonment was six months. Plainly enough, it was not a "serious offence" in the sense in which I have used that phrase. Differing views were expressed by members of the Court about the scope of s.80 and the effect of previous decisions. Barwick C.J. referred (at p.190), in dismissive terms, to the joint judgment of Dixon and Evatt JJ. in Lowenstein:

" Notwithstanding the views expressed obiter by the dissenting Justices in (Lowenstein), it is, in my opinion, not possible to conclude, apart of course from the expressed intention of the Parliament in the relevant statute, that an offence is of its nature 'indictable'. Summary prosecution for a wide variety of offences has a long history, though punishment upon summary conviction is generally limited so far as imprisonment is provided to a term of twelve months or less".

Those comments simply do not deal with the views which Dixon and Evatt JJ. had expressed. Their Honours did not suggest that an offence was, of its nature, "indictable". To the contrary, it would seem likely that they would have agreed with Barwick C.J. that any offence could be made "indictable" in accordance with "the expressed intention of the Parliament". Unlike the discarded earlier draft of the section which had referred to "(t)he trial of all indictable offences", s.80 looks essentially to the nature of the trial. With the introduction and general acceptance of special statutory proceedings for disposing of minor offences however, it would not have sufficed to identify the nature of a trial on indictment by reference only to the element deduced from the procedures (such as the Attorney-General's information or presentment) which had been adopted in this country to perform the essential operative function of the traditional indictment, namely, that the trial be initiated by some step taken by the Crown or some instrument or agent of government. That being so, the choice became essentially one between substance and procedural form. The fact that a choice of procedural form would effectively reduce s.80 to a hollow mockery led inevitably, in accordance with settled principles of constitutional construction, to the choice of substance which Dixon and Evatt JJ. made. That choice having been made, it was but a short step for their Honours to conclude, as they did, that the further element which sufficed to identify a trial on indictment, and to distinguish it in nature from the trial of minor offences which might, in accordance with established practice, take the form of a statutory summary proceeding, was that a trial on indictment involved a serious matter in the sense that it exposed the accused to grave punishment in the event of conviction.

70. Gibbs J. referred (at p.193) to "the existing state of the authorities, which have given to sec.80 the effect attributed to it by Higgins J. (in Archdall): 'if there be an indictment, there must be a jury; but there is nothing to compel procedure by indictment'". In support of that proposition, the present Chief Justice referred to the cases which I have mentioned: Bernasconi, Lowenstein, Sachter and Zarb. His Honour added, however, that Li Chia was "not an appropriate case in which to consider further the scope of s.80 - here the offence is not grave in its nature, the term of imprisonment for which the offender may be sentenced does not exceed six months, the prosecution was instituted in an inferior court and the complaint was laid by an officer attached to a fisheries unit. On no possible view could the trial be said to be a trial on indictment". Of the other four members of the Court, Stephen and Jacobs JJ. pointed out (at p.195) that "the offence for which the defendant (was) prosecuted, being a fisheries offence and one for which the maximum term of imprisonment (was) six months, (was) clearly one which (could) be prosecuted summarily". Their Honours added that they found it unnecessary "to say anything further on the meaning and effect of s.80". Mason J. and Aickin J. agreed with the judgment of Barwick C.J. Murphy J. expressed the view (at p.202) that, while the concessions made by the applicant prevented the question arising in the circumstances of that particular case, s.80 constituted an effective guarantee of trial by jury "at least in serious criminal cases" (see, also, Murphy J's comments in Beckwith v. The Queen (1976) 135 CLR 569, at p 585).

71. Three matters emerge from the above review of the previous cases. The first is that there is no actual decision of the Court requiring that the provisions of s.80 be construed in the manner in which Latham C.J. in Lowenstein and Barwick C.J. in Zarb and Li Chia construed them, namely, as placing no impediment in the way of the Parliament providing for the summary prosecution of any offence at all. If the ordinary measure of a "serious" offence be that, when prosecuted and tried in the manner which is suggested to involve a "trial on indictment", it is punishable by a maximum term of imprisonment of more than one year, all of the actual decisions of the Court other than Zarb are obviously consistent with the conclusion to which I have come as a matter of principle, namely, that, for the purposes of s.80, the trial of a person charged with a serious offence at the suit of the State or an agency of the State is a "trial on indictment". The decision which comes closest to being inconsistent with that conclusion is Zarb. As has been seen, however, the mandatory two year penalty in Zarb fell into a category all of its own in that it was a secondary penalty imposed in substitution for a term of military service which the accused refused to undergo. I should acknowledge that the contrary view about the "effect of ... decisions of the Court" expressed by me in Clyne v. Director of Public Prosecutions, 58 ALJR, at p 498, 55 ALR, at p 17 was expressed after an inadequate consideration of the relevant cases and now appears to me to have been mistaken.

72. The second matter which emerges from the above review of previous cases in this Court is that, if one refers to numbers rather than weight of reasoning, the predominant tendency of the views expressed in judgments of members of the Court is plainly enough towards the conclusion that s.80 should be construed, in the light of what is perceived as having been decided in Archdall and Lowenstein, as enabling the Parliament to avoid the guarantee of the section in relation to any offence by merely providing that the trial be by way of summary proceedings. The weight which one would otherwise give to that predominant tendency is, however, greatly lessened by the third matter which emerges from that review. That third matter is that one searches in vain, in judgments favouring the view which would deprive the "fundamental law" of s.80 of effective operation, for any coherent statement of a line of reasoning leading to that conclusion. As has been seen, neither such a conclusion nor any reason at all to support it was expressly advanced in the majority judgment in Archdall. The statement of Higgins J. to the effect that s.80 only requires trial by jury where there is an indictment simply fails to address the question what constitutes a "trial on indictment". The judgment of Latham C.J. in Lowenstein, after unhelpful references to two legal dictionaries and to a comment made in the course of discussion at the 1898 Convention, apparently attributes to Archdall an effect which is unwarranted by either the actual decision or the judgments. Subsequent judgments favouring such a narrow view of s.80 do not, upon analysis, further advance reasoned argument. In contrast, there remains unanswered the powerful reasoning of Dixon and Evatt JJ. in Lowenstein rejecting the proposition that the Constitution is to be mocked by a construction which would make the guarantee of s.80 illusory.

73. The conclusion to which I have finally come is that, notwithstanding the contrary trend in subsequent judgments in this Court, the views expressed by Dixon and Evatt JJ. in Lowenstein, as qualified in the manner which I have mentioned, should be accepted as a correct statement of the effect of the reference to "trial on indictment" in s.80 of the Constitution. On that construction, the guarantee of the section is applicable in respect of any trial of an accused charged with an offence against a law of the Commonwealth in circumstances where the charge is brought by the State or an agency of the State and the accused will, if found guilty, stand convicted of a "serious offence". As has been said, a particular alleged offence will, for the purposes of characterizing a particular trial as a "trial on indictment", be a "serious offence" if it is not one which could appropriately be dealt with summarily by justices or magistrates in that conviction will expose the accused to grave punishment. It is unnecessary, for the purposes of the present case, to seek to identify more precisely the boundary between offences which are not and offences which are capable of being properly so dealt with. I have, however, indicated the tentative view that that boundary will ordinarily be identified by reference to whether the offence is punishable, when prosecuted in the manner in which it is being prosecuted, by a maximum term of imprisonment of more than one year.

74. In the light of the conclusion which I have reached about the effect of the reference to "trial on indictment", the starting point of a consideration of the s.80 argument in the present case is that the section is not "a mere procedural provision". It embodies a constitutional guarantee of trial by jury in any case where a person is charged by the Commonwealth or an agency of the Commonwealth with a serious offence against a law of the Commonwealth. The content of that guarantee (where applicable) is not to be determined on the basis that the guarantee itself can be avoided completely by a procedural technicality so that the wider the content of the guarantee in a case to which it is applicable the stronger will be the incentive to avoid the guarantee altogether. To the contrary, the conclusion that the guarantee represents an effective restraint upon Commonwealth legislative power necessitates the approach that the words of the fundamental law which it embodies must, in accordance with settled principles of constitutional interpretation, be given their full force and effect.

75. In terms, s.80 of the Constitution requires, in a case to which it is applicable, that "the trial ... of (the alleged) offence ... shall be by jury". That guarantee of trial by jury is directed to matters of substance and not of mere form. In a case to which it is applicable, it requires that the trial of the whole offence of which a person stands accused and in respect of which he stands threatened with punishment should be by jury. That requirement involves the identification of what are, as a matter of substance, the elements of the relevant offence. The effect of the guarantee of s.80 is that the accused is entitled to a trial by jury of all of those elements which are not admitted (cf. Miller, Lectures on the Constitution of the United States (1893), p.500, and, e.g., see, generally, United States v. Meltzer (1938) 100 F 2d 739, and Corpus Juris Secundum, vol. 50, "Juries", esp. pp 780, 784-785, 831, 833, 835-836, 859). Any law of the Parliament which purported to provide for the trial of one or more of them otherwise than by jury would be inconsistent with the overriding terms of the constitutional guarantee.

76. There is no dispute that the trial of the present applicant was a "trial on indictment". That being so, s.80 required that the trial of all elements of the substantive offence alleged against him be by jury. While the Parliament was competent to define the elements of an offence under the provisions of the Act for the limited purpose of the proper statutory construction of the provisions which it has enacted, such definition cannot exclude the effective operation of a fundamental law of the Constitution from which it derives both its existence and its legislative purposes (cf. University of Wollongong v. Metwally (1984) 59 ALJR 48, at pp 50-51, 56, 58-59, 60, 56 ALR 1, at pp 5-7, 15, 19-20, 22-23). Ultimately, the critical question in the present case is the identification, as a matter of substance, of the elements of the offence for which the applicant in the present case was purportedly punished. Under the combined effect of s.233B(1)(cb) and s.235(2), the maximum penalty for the offence with which the accused was charged and of which he was found guilty by the jury was, if no more appeared, a fine not exceeding $2000 or imprisonment for a period not exceeding two years or both. Under s.235(2)(c) and (d), the maximum penalty was drastically increased in the event that "the Court", meaning the presiding judge, was satisfied of other matters. Thus, in the case of the applicant, the maximum penalty was increased to imprisonment for life upon the Court being "satisfied" that a "trafficable quantity" was involved and that the applicant had a prior conviction of a specified kind.

77. At the end of the day, one is left with the question whether the various combinations of primary conviction and additional ingredients which attract much higher maximum punishments under pars. (c) and (d) of s.235(2) are, as a matter of substance, the same offence as the bare primary offence punishable under s.235(2)(e). It appears to me that the answer to that question is that they plainly are not. The offence punishable under s.235(2)(e) is the simple offence of which the elements are set out in s.233B(1)(cb). The offences in respect of which punishment is provided by pars. (c) and (d) of s.235(2) are offences including the additional elements of commercial quantity or trafficable quantity and prior conviction or trafficable quantity alone. It would be to confound substance with form to say that an offence with respect to a very small quantity of a proscribed drug for personal use which was punishable under s.235(2)(e) with a maximum penalty of a fine of $2000 and imprisonment for two years was the same offence as an offence with respect to a trafficable quantity of that proscribed drug committed by a person with a relevant prior conviction which was punishable under s.235(2)(c)(ii) and in respect of which the maximum penalty was imprisonment for life. The offence for which the applicant was punished under s.235(2)(c)(ii) involved two essential elements which were not elements of the primary offence under s.233B(1) (cb). The distinction between that primary offence and an offence punishable under s.235(2)(c)(ii) is of the kind referred to by Lord Diplock, in a judgment with which the other members of the House of Lords agreed, in Reg. v. Courtie (1984) AC 463, at p 471:

" My Lords, where it is provided by a statute that an accused person's liability to have inflicted upon him a maximum punishment which, if the prosecution (is) successful in establishing the existence in his case of a particular factual ingredient, is greater than the maximum punishment that could be inflicted on him if the existence of that particular factual ingredient were not established, it seems to me to be plain beyond argument that Parliament has thereby created two distinct offences, whether the statute by which they are created does so by using language which treats them as being different species of a single genus of offence, or by using language which treats them as separate offences unrelated to one another".

78. The conclusion that the offences punishable under s.235(2)(c) and (d) of the Act are, as a matter of substance, different offences and with different elements from the bare primary offence punishable under s.235(2)(e) effectively disposes of the issue in the present case. As has been seen, the Act makes the existence of the additional elements essential to the establishment of the offences punishable under s.235(2)(c) and (d) a matter for the satisfaction of the trial judge alone. That being so, s.235(2)(c) and (d) purport to create separate offences of which the essential elements necessary to distinguish them from the simple offence under s.233B(1)(cb) are not matters to be determined by the jury. They are, if not admitted, to be determined by a judge alone. By purporting so to provide, those provisions contravene the guarantee of trial by jury of s.80 of the Constitution. They are invalid.

79. In the result, I would grant special leave to appeal, allow the appeal and set aside the sentence of eighteen years' imprisonment imposed by the Court of Criminal Appeal. In view of the fact that my conclusion in that regard is contrary to the conclusion reached by a majority of the Court, it is unnecessary to consider whether the appropriate course would be to substitute the maximum sentence of imprisonment for two years and a fine of $2000 under s.235(2)(e) or to remit the matter to the learned trial judge in the District Court of New South Wales in its criminal jurisdiction for the imposition of the appropriate sentence in the circumstances of the case. It should be mentioned that it has not been suggested in argument that the effect of the invalidity of s.235(2)(c) and (d) would be that the provisions of s.235(2)(e) or s.233B(1)(cb) were also invalid.

Orders

Application for special leave to appeal granted.

Appeal dismissed.