Ng v The Queen

Case [2003] HCA 20

HIGH COURT OF AUSTRALIA

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

PHILIP CHEE MING NG  APPLICANT

AND

THE QUEEN RESPONDENT

Ng v The Queen [2003] HCA 20

Date of Order:  13 February 2003
Date of Publication of Reasons:  10 April 2003
M148/2002

ORDER

Application dismissed.

On appeal from the Supreme Court of Victoria

Representation:

A W Street SC with G D Wendler for the applicant (instructed by Allan McMonnies)

D J Bugg QC with N T Robinson for the respondent (instructed by Director of Public Prosecutions (Commonwealth))

Interveners:

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

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

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

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

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

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

CATCHWORDS

Ng v The Queen

Constitutional law (Cth) – Law of the Commonwealth – Indictable offence – Trial by jury – Whether State law requiring, by ballot, a reduction in the number of jurors from 15 to 12 prior to commencement of jury deliberations contravenes s 80 of the Constitution – Whether State law exempting foreperson from removal from jury by ballot contravenes s 80 of the Constitution.

Constitution, s 80.
Judiciary Act 1903 (Cth), s 68.
Juries Act 1967 (Vic), ss 14, 14A, 48A.

  1. GLEESON CJ, GUMMOW, HAYNE, CALLINAN AND HEYDON JJ. The applicant was charged with conspiracy to import into Australia a commercial quantity of heroin contrary to s 233B(1)(cb) of the Customs Act 1901 (Cth) ("the Customs Act"). He was tried on indictment in the County Court of Victoria. Section 80 of the Constitution was engaged. The County Court was invested with federal jurisdiction by virtue of s 68(2) of the Judiciary Act 1903 (Cth) ("the Judiciary Act"). That investment of jurisdiction is stated in s 68(2) to be subject both to the other provisions of s 68 and to s 80 of the Constitution. Section 68(1) authorised the County Court to apply the laws of Victoria but only "so far as they are applicable to persons who are charged with offences against the laws of the Commonwealth".

  2. The applicant pleaded not guilty. The effect of s 14(2) of the Juries Act 1967 (Vic) ("the Juries Act

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AGLC
Ng v The Queen [2003] HCA 20
Case
[2003] HCA 20
Decision Date

CaseChat Overview and Summary

The applicant, Ng, was charged with conspiracy to import a commercial quantity of heroin under the *Customs Act 1901* (Cth) and tried in the Victorian County Court. The trial attracted federal jurisdiction, allowing the application of Victorian law to the trial of the federal offender, provided such laws did not contravene section 80 of the Australian Constitution. At the commencement of the trial, fifteen jurors were empanelled, including three "additional" jurors. Before deliberations, a ballot was conducted to reduce the jury to twelve. The foreperson's name was drawn first and set aside, with three further names drawn to eliminate the additional jurors, resulting in a jury of twelve that included the foreperson. This jury returned a guilty verdict, and Ng was convicted. He appealed to the Victorian Court of Appeal, raising constitutional arguments, which were dismissed. The matter then proceeded to the High Court of Australia.

The High Court was required to determine several legal issues concerning the constitutional validity of the Victorian jury selection process under section 80 of the Constitution. These issues included whether the initial empanelment of fifteen jurors meant the applicant was entitled to a verdict from that enlarged jury, rather than a reduced jury of twelve. Further, the Court had to consider whether the process of reducing the jury involved taking a verdict from only some of the original jurors, thereby contravening the requirement for a unanimous verdict as established in *Cheatle v The Queen*. Additionally, the Court examined whether the exclusion of non-selected jurors from deliberations, after participating in the ballot, violated the essential characteristics of jury secrecy and privacy. Finally, the Court considered whether exempting the foreperson from the ballot, or the process of random selection itself, infringed the applicant's right to a fair trial or the constitutional requirements of randomness and equality among jurors.

The High Court dismissed the application, finding that the Victorian law did not contravene section 80 of the Constitution. The Court reasoned that section 80 guarantees the right to trial by jury for indictable Commonwealth offences, but it does not prescribe the precise composition or size of the jury beyond the requirement of twelve jurors. The process of empanelling additional jurors and then reducing the jury to twelve through a ballot, even with the foreperson's name being set aside, was considered a permissible procedural mechanism that did not offend the constitutional guarantee. The Court held that the jury ultimately selected to deliberate and deliver the verdict comprised twelve persons, and the process did not involve a non-unanimous verdict or a breach of jury secrecy. The exemption of the foreperson from the ballot was also deemed not to infringe the constitutional requirement of randomness or equality, as the foreperson was still part of the jury from which the verdict was taken.

Orders

Orders of the court

Application dismissed.

Background

Background to the litigation

Additionally, the issue decided concerns the constitutional law of the nation. It involves part of a mosaic of law by which the requirements of s 80 of the Constitution are explained. Apart from the parties and the participating governments, the citizens should know not only what the Court holds, but its reasons for doing so – that being the means by which this Court is rendered accountable to the parties and to the community in such matters[22].[22]Gleeson, "Judicial legitimacy", (2000) 20 Australian Bar Review 4 at 10. The facts The applicant was charged with conspiracy to import a commercial quantity of heroin into Australia contrary to the Customs Act 1901 (Cth), s 233B(1)(cb). He was tried on indictment in the Victorian County Court. The trial attracted federal jurisdiction in accordance with the Judiciary Act 1903 (Cth)[23]. Pursuant to that Act, the County Court was empowered to apply to the trial and conviction of the applicant the laws of the State of Victoria so far as they were applicable to the trial of a federal offender[24]. However, a law that contravened s 80 of the Constitution would be inapplicable to such application. It could not be "picked up" by the Judiciary Act. [23]s 68(2).[24]s 68(2)(c). At the outset of the applicant's trial, in April 2000, fifteen persons were empanelled to serve as the jury. The jury thus included three "additional" jurors. A challenge to the constitutional validity of this procedure was reserved by the applicant's counsel. The trial proceeded until July 2000 when the summing up of the presiding judge was completed. At that stage a ballot was conducted of all the jurors to reduce their number from fifteen to twelve. The first card drawn in the ballot bore the name of the member of the jury who, at the outset of the trial, had been elected the jury foreperson. In accordance with the Victorian law, the card bearing his name was put aside. Three further draws were made to eliminate the three "additional" jurors and so to produce the final jury of twelve. So derived, the jury included the foreperson. It was that jury that then retired to consider their verdict. After deliberations of four days, the jury announced their verdict of guilty. In August 2000 the applicant was convicted and sentenced to twenty-five years imprisonment with a non-parole period of twenty years. He sought leave to appeal to the Court of Appeal of the Supreme Court of Victoria. His grounds of appeal included relying on the constitutional issue now before this Court. The Court of Appeal dismissed the application[25]. It rejected the constitutional arguments[26].[25]R v Ng [2002] VSCA 108.[26]R v Ng [2002] VSCA 108 at [16]-[30].The issues The issues arising on the application for special leave were:(a)The jury definition issue: Whether once constituted to include "additional" jurors, the applicant's "jury" comprised a number greater than twelve, entitling him to the verdict of that enlarged "jury", not the verdict of a smaller number of jurors comprising some only of his "jury"; (b)The unanimous verdict issue: Whether the impugned law of Victoria involved taking the verdict of some only of the applicant's jurors and, in that way, the acceptance of a non-unanimous jury verdict contrary to the decision of this Court in Cheatle v The Queen[27];(c)The jury contamination issue: Whether, if the applicant's "jury" were properly reduced to the twelve jurors from whom the verdict was taken, this meant that persons who were not ultimately members of the "jury", had been permitted to participate in the jury's deliberations although strangers to the jury, thereby offending "essential characteristics" of jury trial, namely jury secrecy and privacy; and(d)The random selection issue: Whether the provisions requiring the participation of the jury foreperson in the verdict of the jury offended against the constitutional requirements of randomness in the selection of the jury and equality of the jurors as between themselves or otherwise infringed the applicant's right to a fair trial.[27](1993) 177 CLR 541.Essential and inessential requirements of jury trial

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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

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Ratio Decidendi

Legal Principle Established

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

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