Ng v The Queen

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.