R v Glynn
[2002] SASC 117
•7 June 2002
R v GLYNN
[2002] SASC 117Court of Criminal Appeal: Perry, Wicks and Gray JJ
PERRY J. This is an appeal by leave on an issue antecedent to trial brought pursuant to s 352(1)(c) of the Criminal Law Consolidation Act 1935. The order under appeal is an order of a District Court judge made on 9 November 2001, in which he refused an application by the appellant that there be a stay of proceedings with respect to the trial of the appellant on a charge of unlawful importation into Australia of a prohibited import, namely, the drug commonly known as Ecstasy.
The Attorney-General for the State of South Australia, represented by the Solicitor-General Mr Selway QC, exercised his right of intervention on the hearing of the appeal, pursuant to s 78A(1) of the Judiciary Act (1903) (Cth). No other Attorney intervened, although notices were given pursuant to s 78B.
The offence is a Commonwealth offence. The appellant was presented for trial in the District Court upon the information of the Commonwealth Director of Public Prosecutions. Relevantly, the information reads as follows:
“STATEMENT OF OFFENCE
Import into Australia a Prohibited Import
Section 233B(1)(b) of the Customs Act 1901PARTICULARS OF THE OFFENCE
On or about the 4th day of April 2001 at Adelaide in the State of South Australia [the appellant] imported into Australia a prohibited import to which section 233B of the Customs Act 1901 applies, namely 359.6 g of 3,4 methylenedioxymethamphetamine (MDMA) [Ecstasy], being not less than a trafficable quantity.”
Following the appellant’s arraignment, at which he pleaded not guilty, the trial commenced before a Judge and jury on 4 October 2001.
The jury retired to consider its verdict on the next day, that is, 5 October 2001.
After the jury had retired for more than four hours, but before they had returned a verdict, counsel for the appellant sought a direction by the trial judge in accordance with s 57 of the Juries Act 1927 (SA) (“the Juries Act”), to the effect that it was open to the jury to return a verdict of acquittal by a majority.
Relevantly, s 57 provides:
“(1)Subject to subsection (2), where a jury, having retired to consider its verdict, has remained in deliberation for at least four hours and the jurors have not then reached a unanimous verdict-
(a) if a sufficient number agrees to enable the jury to return a majority verdict - a majority verdict will be returned; but
(b) otherwise - the jury may be discharged from giving a verdict.
(2)..................
(3)..................
(4)In this section-
“majority verdict” means-
(a) where the jury, at the time of returning its verdict, consists of twelve jurors - a verdict in which ten or eleven jurors concur;
(b) where the jury, at the time of returning its verdict, consists of eleven jurors - a verdict in which ten jurors concur;
(c) where the jury, at the time of returning its verdict, consists of ten jurors - a verdict in which nine jurors concur.
And “by majority” has a corresponding meaning.”
In this case, the jury was a jury of twelve jurors.
After hearing argument, the learned trial judge declined to direct the jury that it was open for them to return a majority verdict of not guilty.
After they had retired for about five hours, the jury was unable to reach a verdict, and was discharged. The accused was remanded for a further trial.[1]
[1] Juries Act 1927 s 59 and s 60.
Subsequently, before the appellant was arraigned again, he brought the application for a stay, on the ground of abuse of process.
The abuse of process was said to arise in this way. The ruling of the learned trial judge against giving the direction sought by the appellant’s counsel was said to be wrong in law, and as a result, the appellant had lost the opportunity of securing an acquittal by a majority verdict. In those circumstances, the appellant contended that it would be unfair to the appellant to permit the Crown to proceed further on the information.
The learned District Court judge who heard the application for a stay gave written reasons for his rejection of the application. Put shortly, he held that s 80 of the Commonwealth Constitution (“the Constitution”) precluded the return by a jury of a majority verdict of not guilty on the trial of an indictment of an offence against a law of the Commonwealth. In reaching that view, he relied heavily on the decision of the High Court in Cheatle and Anor v The Queen.[2]
[2] (1993) 177 CLR 541.
Cheatle
Harvey Holland Cheatle and Beryl Cheatle were convicted in the District Court on a charge of conspiracy to defraud the Commonwealth. This was an indictable offence. The conviction was by a majority verdict of a jury of twelve persons. The majority verdict was returned pursuant to s 57 of the Juries Act 1927.
An appeal against the conviction was dismissed by the Court of Criminal Appeal.[3]
[3] Cheatle and Anor v DPP (unreported) (1992) judgment No S3452.
The High Court allowed an appeal against the decision of the Court of Criminal Appeal, quashed the conviction and ordered a new trial. In doing so, the High Court held that s 80 of the Constitution precluded the return of a guilty verdict following the trial on indictment for an offence against the law of the Commonwealth, other than by the unanimous decision of all of the jurors.
Section 80 of the Constitution 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.”
In its unanimous judgment,[4] the High Court traced the history of trial by jury. It accepted the long line of authority dating from 1367, when the Common Bench in a judgment delivered by Thorpe CJ held that it was well settled that at common law the verdict of a jury must be unanimous. [5]
[4] See the joint judgment of Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ.
[5] An Anonymous Case (1367) 41 Lib Ass 11 translated in Thayes, A Preliminary Treatise on Evidence at the Common Law (1898), page 89.
As the High Court pointed out, by 1900 trial by jury was “firmly established by legislation in each of the federating Colonies as the universal method of trial of serious crime”.[6] Furthermore:
“.... it was recognised, as a basic principle of the administration of criminal justice in each of the Colonies, that the verdict of a criminal jury could be returned only by the agreement of all the jurors.”[7]
[6] 177 CLR at 551.
[7] Ibid at 551.
It followed that:
“.... section 80’s directive that the trial to which it refers must be by a jury was intended to encompass that requirement of unanimity.”[8]
[8] Ibid at 552.
The High Court regarded the requirement of unanimity as independently supported by considerations of principle:
“..... the common law’s insistence upon unanimity reflects a fundamental thesis of our criminal law, namely, that a person accused of a crime should be given the benefit of any reasonable doubt.[9] ...... a verdict returned by a majority of the jurors, over the dissent of others, objectively suggests the existence of reasonable doubt and carries greater risk of conviction of the innocent than does a unanimous verdict.”[10]
[9] Citing Reg v Thatcher [1987] 1 SCR at 698.
[10] 177 CLR at 553, citing Sir James Stephen, A History of the Criminal Law of England (1883) Vol 1 at 304-305 and Sir Patrick Devlin, Trial by Jury (1966) at 48.
The High Court concluded that the “requirement of unanimity is one of the essential features of the common law institution of trial by jury adopted by s 80 of the Constitution” (emphasis added).[11] In doing so, they agreed with the view expressed by Evatt J in his article The Jury System in Australia, during the course of which he observed:
“One important question is whether, in cases under s 80 of the Constitution, unanimity of the jury is essential. The answer is yes.”[12]
[11] The High Court accepted the thesis that the trial by jury referred to in s 80 encompassed the “essential features” of trial by jury as that phrase was understood in constitution law and in the common law of England, citing Huddart, Parker & Co Pty Ltd v Moorehead (1909) 8 CLR 330 at 375, R v Snow (1915) 20 CLR 315 at 323 and Brown v The Queen (1986) 160 CLR 171 at 201-202, following Newell v The King (1936) 55 CLR 707 per Evatt J at 713.
[12] (1936) 10 ALJ (supplement) at 64, cited in 177 CLR at 558-559.
The High Court accepted the legitimacy of some of the changes in the procedures for trial by jury which had taken place since 1900, such as the abandonment of the requirement that women be excluded from service on juries, considerations of convenience or recognition of changing contemporary standards, while having some part to play in justifying unessential modifications of jury trial procedures, could not be permitted “... to abrogate the requirement of unanimity” which, if it was permitted, would result in “... an abandonment of an essential feature of the institution of trial by jury”.[13]
[13] 177 CLR at 560.
In Cheatle, the High Court had regard to s 22A(1) of the Acts Interpretation Act 1915 (SA), which relevantly provides that every provision of every Act of the Parliament of South Australia is to be construed “so as not to exceed the legislative power of the State”.
The legislative power of the State (and of the Commonwealth) did not extend to enacting a law which infringed s 80 of the Constitution.
It followed, applying s 22A(1), that s 57 is to be read down so that it does not of its own force authorise the return of a majority verdict of guilty in the trial on indictment of an offence against the law of the Commonwealth.
It is important to note that the conclusion which the High Court reached in Cheatle is limited to guilty verdicts. That conclusion finds expression in the following passage in the joint judgment:
“....history, principle and authority combine to compel the conclusion that s 80’s guarantee of trial by jury precludes a verdict of guilty being returned in a trial upon indictment of an offence against a law of the Commonwealth other than by the agreement or consensus of all the jurors.”
What the High Court did not decide in Cheatle is whether or not a verdict of not guilty may properly be returned following the trial on indictment of an offence against a law of the Commonwealth by verdict of a majority of the jury. This question was expressly left open in a footnote to the passage which I have just cited. The footnote reads:
“It is unnecessary for the purposes of the present case, to consider the related question whether s 80 would also invalidate a legislative provision allowing for an acquittal by a majority verdict.”[14]
[14] 177 CLR at 562.
This case now raises that question.
A Majority Verdict of Acquittal
The reasoning of the High Court in Cheatle is predicated upon recognition of the fact that the requirement of unanimity was an essential characteristic of trial by jury at the time the Constitution was enacted. While some non-essential aspects of trial by jury could properly be modified, having regard to changing community standards and arguments of convenience,[15] such considerations could not justify “an abandonment of an essential feature of the institution of trial by jury”.[16]
[15] See, for example, Brownlee v R (2001) 180 ALR 301, but c/f Brown v The Queen (1986) 160 CLR 171.
[16] 177 CLR at 560.
For present purposes, the question which must be posed is whether a verdict of acquittal, as opposed to a guilty verdict, is to be approached in the same way. Is it an essential characteristic of trial by jury that an acquittal, as opposed to a conviction, may only be entered by a unanimous verdict?
It must be accepted that in the long line of cases which establish for the purposes of the common law the requirement of unanimity in the verdict of the jury, no distinction is drawn between verdicts recording a conviction or acquittal. Hitherto, formulations of the common law principles have not been accompanied by any attempt to distinguish between the two.
But the very fact that the High Court saw fit in Cheatle to confine their decision in that case to convictions by majority verdict must be taken to imply that the court recognised that a different conclusion might properly be reached with respect to the legitimacy of majority verdicts of acquittal.
Much authority cited by the High Court in support of the conclusion which it reached in Cheatle turned upon recognition of the view that if a jury was not unanimously of the view that the accused should be convicted, a reasonable doubt of the accused’s guilty could not be excluded.
However, it does not follow that there would be any threat to the integrity of the criminal justice system, or an infringement of the fundamental requirement that guilt must be proved beyond reasonable doubt, that a verdict of acquittal might properly be entered if a substantial majority of the jurors are unconvinced of the guilt of the accused.[17]
[17] Interestingly, in France, although majority guilty verdicts are accepted, a failure by the requisite majority to agree results in an acquittal: see the article What can we learn from the French Criminal Justice System? By Brown McKillop (2002) 76 ALJ 49 at 66.
If as many as ten out of twelve jurors are unconvinced of the guilt of the accused, I am unable to perceive that to regard the accused as entitled in those circumstances to a verdict of acquittal does any violence to basic precepts of the criminal law. I do not think that it could seriously be questioned that a failure by ten out of twelve jurors to be satisfied of the guilt of the accused might safely be taken as an indication that there is a reasonable doubt as to his or her guilt. To accept the legitimacy of a statutory provision which would enable an acquittal to be entered in such circumstances, would do no more to confirm rather than detract from basic principle.
Furthermore, to recognise the legitimacy of such a measure would be consistent with the avoidance of double jeopardy. If the outcome of a trial is clearly indicative of a reasonable doubt as to the guilt of the accused, it would seem to be unfair that he or she should be obliged to face trial again.
For these reasons, I would hold that although a unanimous verdict for an acquittal was an invariable feature of trial by jury at the time the Constitution was enacted, it was not an essential concomitant of such a trial. It follows that there is no reason in principle why a State legislature should not be permitted to enact, with respect to the trial of Commonwealth offences, that a verdict of acquittal may be entered by a majority of jurors. Such an enactment would not conflict with s 80 of the Constitution.
The remaining question is whether or not the relevant statutory provisions governing the trial of Commonwealth offences permit that course to be followed in this case.
Relevant Statutory Provisions
The Supreme Court and the District Court of this State derive their authority to try persons charged with offences against the Commonwealth from s 68(2) of the Judiciary Act 1903 (Cth) which relevantly provides:
“The several courts of a State ..... exercising jurisdiction with respect to .....
(c)the trial and conviction on indictment; of ..... persons charged with offences against the laws of the State ..... shall, subject to this section and to section 80 of the Constitution, have like jurisdiction with respect to persons who are charged with offences against the laws of the Commonwealth.”
The Judiciary Act also makes provision for the procedure to be applied by State courts when exercising jurisdiction to try persons for Commonwealth offences. In particular, s 68(1) of the Judiciary Act relevantly provides:
“The laws of a State ..... respecting the arrest and custody of persons charged with offences, and the procedure for .....
(c)their trial and conviction on indictment ...... shall ..... apply and be applied so far as they are applicable to all persons who are charged with offences against the laws of the Commonwealth .....”
Against that background, the Solicitor-General for the State of South Australia put an argument which may be summarised as follows:
Section 68(1) of the Judiciary Act does not apply to “pick up” a State law when to do so would be in breach of s 80 of the Commonwealth Constitution.
Section 57 of the Juries Act does not differentiate between verdicts of guilty or not guilty. It simply refers to “a verdict”.
Insofar as s 57 permits majority verdicts of both guilty and not guilty, and does not differentiate between them, s 68(1) of the Judiciary Act does not operate to “pick up” any part of s 57, given that a provision permitting the entry of a majority verdict of guilty in present circumstances infringes s 80 of the Constitution.
In the result, in the case of a trial on indictment of an offence against a law of the Commonwealth, the common law rules applicable to jury verdicts apply.
At common law, unanimity is required for both verdicts of guilty and not guilty.
In my opinion, that reasoning should not be accepted.
I have already referred to s 22A(1) of the Acts Interpretation Act 1915. I quote in full the terms of the section:
“22A(1)Every Act and every provision of an Act will be construed so as not to exceed the legislative power of the State.
(2)Any Act or provision of an Act which, but for this section, would exceed the power of the State, is nevertheless a valid enactment to the extent to which it does not exceed that power.”
As I have explained, it was by reference to that section that the High Court in Cheatle held that the provisions of s 57 “must be read down so as not to purport to apply, of their own force, to the trial on indictment of an offence against a law of the Commonwealth”. This was because it was not within the legislative power of the State of South Australia to enact legislation which would infringe s 80 of the Constitution.
But pursuant to s 22A(2), the validity of the relevant enactment is preserved to the extent that it does not exceed the legislative power of the State. Given the fact that in my view, to the extent that s 57 permits the return of a unanimous verdict of not guilty, this would not infringe s 80, it seems to me that s 22A(2) preserves the validity of the section insofar as it permits the entry of majority verdicts of acquittal on trials on indictment for offences against the Commonwealth.
Furthermore, in my opinion, s 68(1) of the Judiciary Act should be given a similar application, to the intent that the provisions of s 57 “so far as they are applicable to persons who are charged with offences against the laws of the Commonwealth in respect of whom jurisdiction is conferred” on the District Court by s 68(2) should take effect.
Once it is accepted that s 57 must be read down by reference to s 22A(2), to the extent that it conflicts with s 80 of the Constitution, there is no reason to deny the applicability of what remains after that process of reading down, to the trial and conviction on indictment of persons charges with offences against the laws of the Commonwealth.
I appreciate that if s 57 had dealt separately with majority verdicts of guilty and not guilty, the application of s 22A of the Acts Interpretation Act and of s 68(1) of the Judiciary Act so as to render applicable to the trial of Commonwealth offences the provisions as to one but not as to the other, would be more obvious. But it seems to me that the result should be the same, whether or not the legislature saw fit to enact one provision dealing with both, or separate provisions.
For these reasons, in my view, on a trial on indictment for an offence against the Commonwealth, while a verdict of guilty may only be returned where it represents the unanimous view of the members of the jury, a verdict of not guilty by a majority of the jurors may be returned in accordance with the provisions of s 57 of the Juries Act.
It follows that the learned trial judge erred when he declined to direct the jury accordingly.
However, it does not follow that the learned District Court judge who dealt subsequently with the application for a stay erred in refusing the order sought.
Application for a Stay of Proceedings
As I have already explained, the application for a stay was based upon an alleged abuse of process which was said to arise by reason of the fact that the appellant lost a chance of acquittal, in that a majority of the jurors might have returned a verdict of acquittal under s 57 if the learned trial judge had directed that it was open for them to do so.
It is unnecessary for present purposes to discuss the width of the inherent jurisdiction of both superior and inferior courts to prevent an abuse of process.[18] Ordinarily, there is no abuse of process if further proceedings are brought in a case where an earlier trial has miscarried by reason of an error of law on the part of the trial judge. It is true that in most such cases it can properly be contended that the error has resulted in the loss of the chance of an acquittal. That is certainly literally true in this case.
[18] See Metropolitan Bank v Pooley (1885) 10 App Cas 210 at 220-221, Jago v District Court (NSW) (1989) 168 CLR 23 at 46-48, 56-58 and Mason The Inherent Jurisdiction of the Court (1983) 57 ALJ 449 at 453-456.
But it does not follow that further proceedings on the indictment should be stayed. If that argument was to be accepted, in the ordinary appellate jurisdiction of the court in criminal matters, whenever an appellant was able to demonstrate an error of law which resulted in the loss of a chance of acquittal, the court could never order a re-trial.
That is not, and never has been, the law. Routinely, an appeal court in such circumstances will order a re-trial.
For the Crown to present the accused again for trial cannot properly be characterised as an abuse of process. In such circumstances the Crown is simply exercising its obligation to answer to the public interest in ensuring that persons charged on indictment with criminal offences are brought to trial.
Conclusions
For the reasons given, I am of the view that the learned trial judge erred in failing to accede to the request by counsel for the appellant to direct the jury that it was open to them to return a verdict of not guilty by a majority, in accordance with the provisions of s 57 of the Juries Act. But notwithstanding that error, the application for a stay of further proceedings on the indictment was properly refused.
The appeal against the order of refusal should be dismissed.
WICKS J I have read the judgment of Gray J in draft form in this matter. I agree that the appeal be dismissed for the reasons which he has given.
GRAY J. This is an appeal against a District Court Judge’s decision to refuse to permanently stay a trial.
Background
John Patrick Glynn, the appellant, was charged with one count of importing a prohibited import into Australia[19]. This is a Commonwealth indictable offence. The trial commenced on 4 October 2001. The following day the jury retired to consider its verdict. After fours hours, counsel for Mr Glynn sought a direction by the trial judge that if a sufficient number of the jurors agreed, they were entitled to return a majority verdict of not guilty. The direction was sought pursuant to section 57 of the Juries Act 1927 (SA) which provides:
[19] The information was in the following terms:(1)Subject to subsection (2), where a jury, having retired to consider its verdict, has remained in deliberation for at least 4 hours and the jurors have not then reached a unanimous verdict –
(a) if a sufficient number agrees to enable the jury to return a majority verdict – a majority verdict will be returned; but
(b) otherwise – the jury may be discharged from giving a verdict.
(2)No verdict that an accused person is guilty of murder or treason can be returned by majority.
(3)Where an accused person is charged with a particular offence (the major offence) and it is possible for a jury to return a verdict of not guilty of the offence charged but guilty of some other offence for which the person has not been charged (the alternative offence) –
(a) the jury must consider whether the accused is guilty of the major offence before considering whether he or she is guilty of the alternative offence; and
(b) if the jury reaches a verdict (either unanimously or by majority) that the accused is not guilty of the major offence but then, having been in deliberation for a least 4 hours, is unable to reach a verdict on the question of whether the accused is guilty of the alternative offence –
(i) the accused must be acquitted of the major offence; and
(ii) the jury may be discharged from giving a verdict in respect of the alternative offence; and
(iii) fresh proceedings may be taken against the accused on a charge of the alternative offence.
(4) In this section –
“majority verdict” means –
(a) where the jury, at the time of returning its verdict, consists of 12 jurors – a verdict in which 10 or 11 jurors concur;
(b) where the jury, at the time of returning its verdict, consists of 11 jurors – a verdict in which 10 jurors concur;
(c) the jury, at the time of returning its verdict, consists of 10 jurors – a verdict in which 9 jurors concur, and “by majority” has a corresponding meaning.
Counsel for Mr Glynn requested the trial judge to give a direction to the jury pursuant to section 57 that they were entitled to reach a majority verdict of not guilty. It was contended that section 57 should be applied by the Court in exercising Federal jurisdiction pursuant to section 68(2) of the Judiciary Act 1903 (Cth). It was said that Section 57 should apply and be applied pursuant to section 68(1) of the Judiciary Act. Section 57 did not conflict with section 80 of the Constitution because a unanimous verdict of not guilty was not an essential feature of a jury trial. The High Court’s decision in The Queen v Cheatle[20] did not preclude such a conclusion.
[20] (1993) 177 CLR 541
Counsel for the Crown opposed the direction. It was submitted that a non-unanimous verdict of not guilty was unavailable.
The trial judge declined to give a direction pursuant to section 57. The jury failed to reach a verdict and was discharged.
Mr Glynn applied to have his retrial permanently stayed on 9 November 2001. This application was refused. The retrial judge concluded:
“…I am not satisfied that either contemporary standards or matters of convenience, allow the importation into section 80 of the Constitution of an understanding that a jury can return a majority verdict of not guilty, in circumstances where those same considerations do not, on current authority, permit a majority verdict of guilty.
Further to that, I should say that, even if I am wrong, at the very least, there is uncertainty and an unresolved and significant question as to the accused’s entitlement to a majority acquittal verdict. In that state of affairs, I would not be prepared to grant a permanent stay of proceedings.”[21]
[21] R v Glynn [2001] SADC 159
Mr Glynn sought leave to appeal. Leave was granted on the basis that it was in the interests of justice to have the issue of majority verdicts of not guilty finally resolved before the commencement of the second trial.
The Appeal
The appeal to this court concerns the retrial judge’s refusal to grant a stay, not the trial judge’s decision declining to give a direction pursuant to section 57. However the correctness of the trial judge’s decision necessarily arises.
Counsel for Mr Glynn submitted that a second trial would be an abuse of process. It was said that Mr Glynn lost the opportunity of a majority acquittal when the trial judge declined to give the section 57 direction. If the question remained open there was nothing to stop the same situation occurring again.
It was further submitted that the High Court in Cheatle had not resolved whether section 80 of the Constitution permits a majority verdict of not guilty. It was contended that an acquittal by majority would not detract from an accused’s fundamental right to a trial by jury.
Counsel for the Crown submitted that the trial judge was correct in refusing to give the section 57 direction. It was said that unless and until the High Court decided otherwise, this court was obliged to apply the reasoning in Cheatle.
Counsel further argued that the facts of this case were insufficient to justify the granting of a permanent stay. Even if the direction should have been given, Mr Glynn could not demonstrate the necessary abuse of process. At best, the error could only give rise to a further trial.
The Attorney-General for the State of South Australia submitted that the appeal should be dismissed. It was said that the court was not required to address section 80 of the Constitution before disposing of the appeal.
It was acknowledged that the High Court had purposely left open the question of whether unanimity was required for a verdict of not guilty.[22] It was contended that while section 80 of the Constitution protected the unanimity of a guilty verdict because it was an essential feature of a jury trial, unanimity of a verdict of not guilty was not an essential feature nor was it protected by section 80.
[22] (1993) 177 CLR 541 at 562 footnote 9
It was further submitted that section could not “apply or be applied” by section 68 (1) of the Judiciary Act 1903 (Cth). Despite the trial judge’s decision, Mr Glynn should stand trial a second time. There was no abuse of process. It was contended that the application for a permanent stay should be refused for the reasons advanced by the Crown. The application for a stay of proceedings was said to be unarguable.
Stay of Proceedings
It is only in rare cases that a court will order that proceedings be permanently stayed. In Barton v The Queen[23] Gibbs ACJ and Mason J said:
“It has generally been considered to be undesirable that the court, whose ultimate function it is to determine the accused’s guilt or innocence, should become too closely involved in the question whether a prosecution should be commenced…though it may be that in exercising its power to prevent an abuse of process the court will on rare occasions be required to consider whether a prosecution should be permitted to continue.”
In Jago v The District Court of New South Wales & Ors[24] Mason CJ confirmed that the power to stay proceedings was only to be exercised in exceptional circumstances.
“Ultimately, it does not matter whether the problem is resolved in this way, by invoking a wide interpretation of the concept of abuse of process, or by saying that courts possess an inherent power to prevent their processes being used in a manner which gives rise to injustice. In either event the power is discretionary, to be exercised in a principled way, and the same considerations will govern its exercise. And in each case the power will be used only in most exceptional circumstances to order that a criminal prosecution be stayed. I have already noted that a similar result was reached by taking a broad view of the concept of abuse of process in Reg v Derby Crown Court; Ex parte Brooks. If the distinction matters, I would prefer to regard the power as an incident of the general power of a court of justice to ensure fairness.”
[23] (1980 – 1981) 147 CLR 75 at 94-95
[24] (1989 – 1990) 168 CLR 23 at 31
Before proceedings can be permanently stayed, a court must be satisfied that the continuation of a prosecution would result in an abuse of process. Such a continuation must offend the principles of justice. There must be no other way of remedying the problem. There must be no other available means to bring about a fair trial. An order for a stay is an order of last resort. In Williams & Ors v Spautz[25] Mason CJ and Dawson, Toohey and McHugh JJ said:
“If a permanent stay is sought to prevent the accused from being subjected to an unfair trial, it is only natural that the court should refrain from granting a stay unless it is satisfied that an unfair trial will ensue unless the prosecution is stayed. In other words, the court must be satisfied that there are no other available means, such as directions to be given by the trial judge, of bringing about a fair trial. Jago was such a case. Consequently, the judgments in that case gave emphasis to the necessity that the court should satisfy itself upon this point before granting the relief sought.”
[25] (1991 – 1992) 174 CLR 509 at 519
The test for whether an abuse has occurred is whether the relevant act or omission is one which diminishes public confidence in the court as an institution[26]. In Ridgewayv The Queen[27] Gaudron J explained the position as follows:
“The inherent powers of superior courts to prevent an abuse of process exist to protect the courts and their proceedings, and to maintain public confidence in the administration of justice. And the maintenance of public confidence in that regard depends on ensuring that judicial proceedings serve the ends of justice, not injustice.
The powers to prevent an abuse of process have traditionally been seen as including a power to stay proceedings instituted for an improper purpose, as well as proceedings that are ‘frivolous, vexatious or oppressive’. This notwithstanding, there is no very precise notion of what is vexatious or oppressive or what otherwise constitutes an abuse of process. Indeed, the courts have resisted, and even warned against, laying down hard and fast definitions in that regard. That is necessarily so. Abuse of process cannot be restricted to ‘defined and closed categories’ because notions of justice and injustice, as well as other considerations that bear on public confidence in the administration of justice, must reflect contemporary values and, as well, take account of the circumstances of the case. That is not to say that the concept of ‘abuse of process’ is at large or, indeed, without meaning. As already indicated, it extends to proceedings that are instituted for an improper purpose and it is clear that it extends to proceedings that are ‘seriously and unfairly burdensome, prejudicial or damaging’ or ‘productive of serious and unjustified trouble and harassment.”
[26] Ridgeway v the Queen (1995) 184 CLR 19
[27] (1995) 184 CLR 19 at 74-75
Mr Glynn did not lose a majority verdict of acquittal. It is not known how many of the jurors may not have chosen to acquit. At best, he lost the chance of the jury returning a majority verdict of not guilty. This loss of a chance does not justify the imposition of a stay. It has not been shown that a second trial would be unfair. Public confidence is not diminished in the court as an institution. The retrial judge was entitled to refuse the application for a permanent stay.
Constitutional Interpretation
For some time there has been tension between the view that the Constitution is to be interpreted as a statute, and the view that it is a special statute intended to endure and apply to the varying conditions which the development of the Australian community must necessarily involve.
Counsel for Mr Glynn submitted that the Constitution should be interpreted having regard to contemporary circumstances. The remarks of the High Court in Theophanous v The Herald & Weekly Times Ltd & Anor [28] and Brownlee v R[29] were relied upon.
[28] (1993-1994) 182 CLR 104
[29] (2001) 180 ALR 301
In Theophanous v The Herald Weekly Times Ltd & Anor[30] Brennan J said:
“In the interpretation of the Constitution, judicial policy has no role to play. The Court, owing its existence and its jurisdiction ultimately to the Constitution, can do no more than interpret and apply its text, uncovering implications where they exist. The Court has no jurisdiction to fill in what might be thought to be lacunae left by the Constitution.
…
The notion of ‘developing’ the law of the Constitution is inconsistent with the judicial power it confers. Clearly the Court cannot change the Constitution, nor can it convert constitutional silence into a legal rule with constitutional force. I do not mean that, in changing conditions, the Constitution does not have a changing effect, that the denotation of its terms does not change, that the course of judicial interpretation does not reveal that a past constitutional doctrine is untenable or that new situations do not reveal new doctrines inherent in the constitutional text. The Constitution speaks continually to the present and it operates in and upon contemporary conditions. But, in the interpretation of the Constitution, judicial policy provides no leeway for judgment as it does when the Court is developing the common law. Nor can the Court find implications in the text by referring to extrinsic sources.”
The court emphasised that judicial interpretation should not go so far as to change the meaning of the text.
[30] (1993-1994) 182 CLR 104 at 143-144 See also Brownlee v R (2001) 180 ALR 301 at 304 per Gleeson CJ and McHugh J
In Brownlee Gleeson CJ and McHugh J referred to the way in which history was used by the court in Cheatle to ascertain the meaning of certain provisions of the Constitution. It was noted that it was proper to resort to such historical considerations because the Court was embarking on an enquiry to ascertain the meaning of an instrument which came into being in a certain manner at a certain time and for a certain purpose. An analysis of the historical context was, “potentially relevant to a question about the meaning of the instrument.” Given its enduring nature the Constitution was, “brought into being as a instrument of government, which would need to respond to changing circumstances and conditions over time.” It would be wrong to attribute to the Constitution a meaning “frozen in time”.
Gaudron, Gummow and Hayne JJ did not develop any general approach to determining questions of constitutional interpretation. However it was recognised that a consideration of the historical context in which the Constitution was drafted had relevance. It was their view that the goal was to ascertain the meaning through a temporary context.
Kirby J was of the view that constitutional expressions must be given their contemporary meaning as such an approach is the only approach that:
“... befits the character of a national basic law, which is extremely resistant to formal amendment, but which must, of necessity, apply to new, unforeseen and possibly unforeseeable circumstances.”
Trial by Jury
The institution of trial by jury has been accepted as fundamental to the criminal justice system. Section 80 has been interpreted as providing constitutional protection to the right to a jury trial. Section 80 of the Constitution 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.”
Only essential features of the jury trial are protected by section 80. Over time the legislature has sought to make inroads into the traditional features of the jury trial. They have included the issues of unanimity, the number of jurors on a jury and the manner of their selection. On each occasion, the High Court has had to decide whether the traditional feature under attack is an essential feature. This case raises for consideration the necessity for unanimity of a verdict of not guilty. The point was specifically reserved for consideration and not resolved in Cheatle. Before attempting to resolve the issue it is important to note remarks made by the High Court with respect to section 80.
In Kingswell v The Queen[31] Deane J made the following observations:
“The institution of trial by jury also serves the function of protecting both the administration of justice and the accused from the rash judgment and prejudices of the community itself. The nature of the jury as a body of ordinary citizens called from the community to try the particular case offers some assurance that the community as a whole will be more likely to accept a jury’s verdict than it would be to accept the judgment of a judge or magistrate who might be, or be portrayed as being, over-responsive to authority or remote from the affairs and concerns of ordinary people. The random selection of a jury panel, the empanelment of a jury to try the particular case, the public anonymity of individual jurors, the ordinary confidentiality of the jury’s deliberate processes, the jury’s isolation (at least at the time of decision) from external influences and the insistence upon its function of determining the particular charge according to the evidence combine, for so long as they can be preserved or observed, to offer some assurance that the accused will not be judged by reference to sensational or self-righteous pre-trial publicity or the passions of the mob.”
[31] (1985) 159 CLR 264 at 301-302
In Brown v The Queen[32] Deane J referred to his decision in Kingswell and said:
“As Griffith CJ pointed out in R v Snow, the requirement of s 80 is ‘a fundamental law of the Commonwealth’ which should be prima facie construed as ‘an adoption of the institution of ‘trial by jury’ with all that was connoted by that phrase in constitutional law and in the common law of England.’ The adoption of that institution reflected ‘a fundamental decision about the exercise of official power’ (see Duncan v Louisiana) or, to repeat words I used in Kingswell v The Queen, ‘a deep-seated conviction of free men and women about the way in which justice should be administered in criminal cases’, namely that, regardless of the position or standing of the particular alleged offender, guilt or innocence of a serious offence should be determined by a panel of ordinary and anonymous citizens, assembled as representative of the general community, at whose hands neither the powerful nor the weak should expect or fear special or discriminatory treatment. That essential conception of trial by jury helps to ensure that, in the interests of the community generally, the administration of criminal justice is, and has the appearance of being, unbiased and detached.”
It is to be observed that Deane J’s remarks refer to the determination of guilt or innocence as being part of the essential conception of trial by jury.
[32] (1986) 160 CLR 171 at 201-202
In Cheatle the court held that for a conviction of a Commonwealth indictable offence section 80 of the Constitution requires unanimity before a verdict. Section 80 was interpreted as preserving the essential features of a jury trial:
“…it was recognized in this Court from an early stage that s. 80’s mandatory direction that ‘a trial on indictment of any offence against any law of the Commonwealth shall be by jury’ should be construed as prima facie encompassing ‘the essential features’ of ‘the institution of ‘trial by jury’ with all that was connoted by that phrase in constitutional law and in the common law of England’.
...
... history, principle and authority combine to compel the conclusion that s. 80’s guarantee of trial by jury precludes a verdict of guilty being returned in a trial upon indictment of an offence against a law of the Commonwealth otherwise than by the agreement or consensus of all the jurors. That being so, s. 57 of the Juries Act 1927 (SA) cannot, consistently with s. 80, operate to authorize the conviction of either of the appellants by a majority verdict.”[33]
The court added:
“The relevant essential feature or requirement of the institution was, and is, that the jury be a body of persons representative of the wider community. It may be that there are certain unchanging elements of that feature or requirement such as, for example, that the panel of jurors be randomly or impartially selected rather than chosen by the prosecution or the State.” [34]
[33] (1993) 177 CLR 541 at 557, 562
[34] (1993) 177 CLR 541 at 560;
Counsel for Mr Glynn submitted that a footnote in Cheatle suggested that a different situation may prevail with respect to verdicts of not guilty:
“It is unnecessary, for the purposes of the present case, to consider the related question whether section 80 would also invalidate a legislative provision allowing for an acquittal by majority verdict.”[35]
[35] (1993) 177 CLR 541 at 562 footnote 9
In this footnote the court referred to “a legislative provision”. Section 57 was not identified. For reasons to be discussed later particular problems arise when the interpretation and application of section 57 are considered.
The essential features of a jury trial cannot be altered except by Constitutional amendment. Nonessential features may be adjusted where necessary. In Cheatle the Court said:
“... to abrogate the requirement of unanimity involves an abandonment of an essential feature of the institution of trial by jury. In contrast, a liberalization of the qualifications of jurors involves no more than an adjustment of the institution to conform with contemporary standards and to bring about a situation in which it is more truly representative of the community.”[36]
[36] Cheatle v R (1993) 177 CLR 541 at 560
In Brownlee the court further considered the essential features of a jury trial. Gleeson CJ and McHugh J said:
“The function of a jury trial is not such as to make it essential that the common law rule be preserved in its full rigour. Adopting a functional approach to questions of the validity of state legislation permitting juries of a lesser number than 12, the Supreme Court of the United States held that such a reduction in numbers was consistent with the corresponding constitutional guarantee. In Williams v Florida White J, delivering the opinion of the court, said:
‘The purpose of a jury trial ... is to prevent oppression by the Government ... Given this purpose, the essential feature of a jury obviously lies in the interposition between the accused and his accuser of the commonsense judgment of a group of laymen, and in the community participation and shared responsibility that results from that group’s determination of guilt or innocence. The performance of this role is not a function of the particular number of the body that makes up the jury. To be sure, the number should probably be large enough to promote group deliberation, free from outside attempts at intimidation, and to provide a fair possibility for obtaining a representative cross-section of the community. But we find little reason to think that these goals are in any meaningful sense less likely to be achieved when the jury numbers six, than when it numbers 12 - particularly if the requirement of unanimity is retained.’
Those observations apply with even greater force to a system which requires 12 jurors to begin with, but permits the trial to continue with 10 of the original 12 where two have been discharged, and requires a unanimous verdict of the remaining ten. Such a system is not inconsistent with the purposes of trial by jury. In particular, it is not inconsistent with the objectives of independence, representativeness and randomness of selection, or with the need to maintain the prosecution’s obligation to prove its case beyond reasonable doubt.”[37]
Gaudron, Gummow and Hayne JJ noted that the distinction between essential and nonessential had been drawn into the constitutional doctrine respecting section 80 of the Constitution. Their Honours added:
“Classification as an essential feature or fundamental of the institution of trial by jury involves an appreciation of the objectives that institution advances or achieves.”
[37] Brownlee v R (2001) 180 ALR 301 at 338-339
In Brownlee Kirby J made the following observations about the need for unanimity:
“... In 1986, Deane J saw as the essence of jury trial the assembly of a panel of ‘ordinary and anonymous citizens’ who were, in a sense, ‘representative of the general community’. This notion that jurors represent the diversity of the community recurs in numerous decisions of this court.[38] To some extent there appears to be a tension between the idea that jurors will represent a cross-section of the community and the notion that they will afford an ‘impartial’ mode of trial. However, these features can be reconciled as the Supreme Court of Canada explained in R v Biddle:
[38] Cheatle (1993) 177 CLR 541 at 560; 116 ALR 1; Kingswell (1985) 159 CLR 264 at 301-2; 62 ALR 161; Wu (1999) 199 CLR 99 at 114 [45]; 116 ALR 200
‘[R]epresentativeness is a characteristic which furthers the perception of impartiality even if not fully ensuring it. While representativeness is not an essential quality of a jury, it is one to be sought after. The surest guarantee of jury impartiality consists in the combination of the representativeness with the requirement of a unanimous verdict.’
.....
Secondly, the rule of unanimity of jury verdicts has been held necessary to the United States constitutional requirements. Although there have been occasional suggestions to the contrary, the requirement of unanimity has been accepted as an assurance against dilution of the ‘reasonable doubt’ standard observed in criminal trials. If only one juror has a reasonable doubt as to the guilt of the accused, the latter is entitled to the benefit of that doubt, and should not be convicted.”
Kirby J identified a number of “functional considerations” that permitted a distinction to be drawn between a trial that answers the description of trial by jury and one that does not
-the jury must be of a size sufficient to promote group deliberation;
-there must be a sufficient number of jurors to ensure that the common sense attributed to a lay jury can be given effect, so that a cross-section of community opinion will be expressed and shared among the jurors;
-because an important purpose of trial by jury is to guard individuals from the danger of oppression by the government or by the judiciary, the jury rendering a verdict in a criminal trial must be, and remain of, a sufficient number to reflect, in a general way, the variety of opinions that exist in the community concerning society, the law and public authority;
-there must be sufficient jurors to guard against the force of personality of one or more jurors and to ensure the expression, during deliberation, of any differing viewpoints which can then be shared and evaluated by all of the jurors collectively;
-the number must also be sufficient to reflect, in a general way, those members of , or acquainted with, minorities within the community so tht the dangers of prejudice against an accused, who may be a member of one or more of such minorities, are eliminated or at least reduced;
-given that contemporary trials, particularly of federal offences, can be extremely complex and lengthy, the inconvenience to the community, to jurors and the cost to parties should not needlessly be incurred by unnecessary termination and relitigation of jury trials where (as will inevitably happen from time to time) jurors die, fall ill or are otherwise incapable of continuing to act;
-ultimately ‘trial ... by jury’, being a mode of trial envisaged within Chapter III of the Constitution, it is essential that it should continue to hold public confidence and ‘through the involvement of the public, societal trust in the system as a whole.
Unanimity of Verdict - An essential feature
The maintaining of public confidence in the integrity of the legal system is fundamental. This confidence is best maintained by the public’s acceptance of all jury verdicts. The community has a legitimate interest in verdicts of guilty and not guilty. The requirement of unanimity protects that interest.
The presumption of innocence has remained a cornerstone of the criminal justice system for centuries. The common law has preserved this presumption. The jury system is an element of that protection. The presumption of innocence is maintained until the jury return a unanimous verdict. Protection has also been provided by the insistence that an accused’s guilt must be established by facts proved beyond reasonable doubt to the unanimous satisfaction of a jury.
It has been settled at common law that before an accused is entitled to a verdict of acquittal, a jury must be unanimous in their verdict[39]. All members must be satisfied that there is a reasonable doubt.
[39] Cheatle v R (1993) 177 CLR 541 at 550-552
Proof beyond reasonable doubt of the facts necessary to lead to a verdict of guilty at common law means proof to the unanimous satisfaction of the jury. A dissenting view by a jury member must lead to the conclusion that the prosecution failed to establish the requisite proof. Unanimity of verdict guarded against those individual members of a jury who would convict on inadequate evidence. In requiring unanimity, the common law provided protection against those individual members of a jury, who through prejudice may acquit even when evidence of guilt is clear.
The obligation for a jury to strive to reach a consensus is important. A minority of jurors may be satisfied beyond reasonable doubt of the guilt of an accused. If a majority verdict of not guilty is available, the majority of jurors may choose to ignore that minority view. The need for unanimity of verdict allows a minority the opportunity to seek consensus, to seek to persuade the majority. The minority may succeed and a unanimous verdict of guilty may be reached. The advantages of this process should not be lost or eroded.
The corollary is also true. A majority of jurors may initially be satisfied beyond reasonable doubt of the guilt of an accused’s guilt. That majority may choose to ignore the minority view. The need for consensus allows the minority the opportunity to persuade the majority and a verdict of not guilty to be reached. The strength of this protection should be maintained.
It might be suggested that there is an incongruity in permitting a majority verdict of not guilty and requiring a unanimous verdict of guilty. The former calls for a democratic decision – a majority view. The latter seeks a consensus - a common decision. To leave both approaches open to a jury may cause considerable confusion. Different processes of debate argument and reasoning may be adopted. The permitting of majority verdicts of acquittal and at the same time insisting on unanimity of guilty verdicts may intrude into and adversely affect a proper consideration of a jury’s verdict.
A deadlocked jury leaves the presumption of innocence intact. A second trial may be held. Both the Crown and the defence can lead further evidence, or have the same evidence viewed in a different light. In this way the interests of the community interests are protected.
An essential feature of the jury system is its broad random selection.[40] As earlier observed unanimity compels a consideration of another juror’s view. The jury members must listen to and consider the views of the others in an attempt to reach a common conclusion. If unanimity is not required minority members of the jury will not form part of the ultimate jury decision. Yet their selection was part of an essential feature of the jury. A majority verdict weakens and has the capacity to destroy this essential feature. This is so whether the majority verdict is guilty or not guilty. Unanimity protects and maintains this essential feature.
[40] Brownlee v R (2001) 180 ALR 301 at 307 and 315
While the requirement of unanimity for a verdict of guilty is often described as being founded on a need to protect the innocent from wrongful conviction, the public have a corresponding right to be protected from wrongful acquittal. The common law does not countenance a different process. As earlier observed public confidence in the jury system and its outcomes must be maintained.[41]
[41] A majority verdict of not guilty could lead to unfortunate consequences. Take for example the problems that would arise in the Australian Federation with a provision State by State allowing for different majorities. An accused charged with identical Commonwealth offences before different state courts would face a different majority verdict regime. In those circumstances the same prosecution for the same offence in one state may lead to a verdict of acquittal but in another State, to a hung jury. It would follow that the discourse in the jury room from State to State may follow a different process. Such a consequence may be considered discriminatory with a tendency to bring the system of criminal justice into disrepute. The public would rightly expect quality of treatment throughout the Commonwealth. When tested at this pragmatic level the need for unanimity of verdict is both illustrated and underscored.
Notwithstanding the need to interpret section 80 of the Constitution having regard to contemporary circumstances, the requirement of unanimity remains an essential feature of the jury trial. If significant change is desired, the proper processes must be followed.[42]
[42] s 128 Constitution
The Judiciary Act
The Attorney General contended that the common law rule of unanimity for jury verdicts prevailed by reason of the provisions of the Judiciary Act.
It was submitted that the procedure applicable at the trial of the appellant was relevantly prescribed by section 68(1) of the Judiciary Act. That section provides:
“(1)The laws of a State or Territory respecting the arrest and custody of offenders or persons charged with offences, and the procedure for:
(a) their summary conviction; and
(b) their examination and commitment for trial on indictment; and
(c) their trial and conviction on indictment; and
(d) the hearing and determination of appeals arising out of any such trial or conviction or out of any proceedings connected therewith;
and for holding accused persons to bail, shall, subject to this section, apply and be applied so far as they are applicable to persons who are charged with offences against the laws of the Commonwealth in respect of whom jurisdiction is conferred on the several courts of that State or Territory by this section.”
It was said that subject to section 80 of the Constitution, section 57 of the JuriesAct is applicable to Commonwealth offences as it is ‘picked up’ by section 68(1) of the Judiciary Act. It is Commonwealth law that applies the procedure and it is this law that must be considered in conjunction with section 80. There is no issue of reading down State law. Section 68(1) does not apply to pick up a State law when to do so would be in breach of section 80.[43]
[43] Brown v The Queen (1986) 160 CLR 170, 200-201, 206, 218; Brownlee v R (2001) 180 ALR 301, at 315
It was then contended that section 57 of the Juries Act refers only to a single verdict. The expression majority verdict is defined within section 57 in terms that include both verdicts of ‘guilty’ and ‘not guilty’. It was contended that section 57 could not be ‘picked up’ as it addressed majority verdicts of guilty. As section 57 does not differentiate between verdicts of guilty and not guilty no part of the section could be picked up.
Counsel for the Mr Glynn drew attention to the following remarks in Cheatle concerning the validity of section 57:
“It follows from what has been said above that history, principle and authority combine to compel the conclusion that s.80’s guarantee of trial by jury precludes a verdict of guilty being returned in a trial upon indictment of an offence against a law of the Commonwealth otherwise than by the agreement or consensus of all the jurors. That being so, s. 57 of the Juries Act 1927 (S.A.) cannot, consistently with s. 80, operate to authorize the conviction of either of the appellants by a majority verdict. Their convictions were unconstitutional and must be set aside.
The conclusion that s. 57 cannot validly apply to authorize the return of a majority verdict of guilty in the trial on indictment of an offence against a law of the Commonwealth does not mean that the South Australian courts lack jurisdiction to entertain such trials. Section 22a(1) of the Acts Interpretation Act 1915 (S.A.) requires that every provision of every Act of the Parliament of South Australia ‘be construed so as not to exceed the legislative power of the State’. In compliance with that directive, the provisions of s. 57 must be read down so as not to purport to apply, of their own force, to the trial on indictment of an offence against a law of the Commonwealth. The guarantee of trial by jury contained in s. 80 also precludes any law of the Commonwealth from making the provisions of s. 57 applicable to such a trial. For the reasons given in Brown v. The Queen, however, s. 80 of the Constitution does not preclude the relevant provisions of the Judiciary Act 1903 (Cth) from otherwise operating to vest jurisdiction in respect of trials on indictment of offences against laws of the Commonwealth in the South Australian Supreme and District Criminal Courts constituted by a judge and jury.”[44]
[44] Cheatle v R (1993) 177 CLR 541 at 563
The question was further addressed in Brownlee, where Kirby J said:
“The applicant further submitted that, in the case of a ‘picked up’ or surrogate federal law, when applied to a trial on indictment of a federal offence, it was impermissible to invoke the State Interpretation Act, in respect of the Jury Act s 22, to permit severance of parts of the section. So much may be accepted. However, s 68 of the Judiciary Act contains its own formula for adaptation and severance of parts of otherwise applicable ‘laws of a State’. The section contemplates, expressly, the adaptation of such laws ‘to section 80 of the Constitution’.[45] It provides that such laws are to ‘apply and be applied’ but only ‘so far as they are applicable’.[46] Therefore, should the requirements of s 80 of the Constitution necessitate that a ‘jury’, empanelled to try on indictment an offence against federal law, in no case be reduced below, say, 10 jurors,[47] such a result could be secured, quite simply, by the application to the Jury Act s 22 of s 68(1) of the Judiciary Act itself. Subparagraph (i) of s22(a) of the Jury Act would then be treated as ‘applicable’ whereas subparas (ii) and (iii) would be disregarded as inapplicable. The language and structure of s 22 facilitate such differentiation.”
[45] Judiciary Act 1903 (Cth) s 68(2)
[46] Judiciary Act 1903 (Cth) s 68(1)
[47] cf Ballew v Georgia 435 US 223 (1978) (Ballew) concerning juries of five and six jurors.
The approach advanced by Kirby J cannot be readily applied to section 57. It is not possible to adopt and sever. To have section 57 accord with the Constitution would require that the section be read down.
It is one matter to construe the State law in accordance with section 22a(1) of the Acts Interpretation Act 1915 (SA) for the purposes of its operation with respect to a State matter. It is another whether it may be “apply and be applied” pursuant to s68(1) of the Judiciary Act. It cannot. To do so would be to pick up a State law that on its express terms, permits majority verdicts without differentiating between verdicts of guilty and not guilty.
Conclusion
Unanimity is an essential feature of a jury trial whether the verdict is guilty or not guilty. The trial judge was correct in declining to give a direction concerning a majority verdict of not guilty. No error has been demonstrated.
The argument that the rule against double jeopardy has been offended necessarily implies that the trial judge should have given the direction sought. The trial judge was correct in declining to give the direction. It follows that the issue of double jeopardy does not arise.
Alternatively, if the trial judge was wrong in declining to give the section 57 direction at its highest, the appellant lost the chance of a majority verdict of not guilty. I am not satisfied that an abuse of process would result if the appellant is tried again. This is not an appropriate case for a permanent stay of proceedings.
This appeal must be dismissed.
JUDGMENT CITATIONS
LISTED IN ORDER OF APPEARANCE IN JUDGEMENTCitations in Perry J’s judgment:
1. Juries Act 1927 s 59 and s 60.
2. (1993) 177 CLR 541.
3. Cheatle and Anor v DPP (unreported) (1992) judgment No S3452.
4. See the joint judgment of Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ.
5. An Anonymous Case (1367) 41 Lib Ass 11 translated in Thayes, A Preliminary Treatise on Evidence at the Common Law (1898), page 89.
6. 177 CLR at 551.
7. Ibid at 551.
8. Ibid at 552.
9. Citing Reg v Thatcher [1987] 1 SCR at 698.
10. 177 CLR at 553, citing Sir James Stephen, A History of the Criminal Law of England (1883) Vol 1 at 304-305 and Sir Patrick Devlin, Trial by Jury (1966) at 48.
11. The High Court accepted the thesis that the trial by jury referred to in s 80 encompassed the “essential features” of trial by jury as that phrase was understood in constitution law and in the common law of England, citing Huddart, Parker & Co Pty Ltd v Moorehead (1909) 8 CLR 330 at 375, R v Snow (1915) 20 CLR 315 at 323 and Brown v The Queen (1986) 160 CLR 171 at 201-202, following Newell v The King (1936) 55 CLR 707 per Evatt J at 713.
12. (1936) 10 ALJ (supplement) at 64, cited in 177 CLR at 558-559.
13. 177 CLR at 560.
14. 177 CLR at 562.
15. See, for example, Brownlee v R (2001) 180 ALR 301, but c/f Brown v The Queen (1986) 160 CLR 171.
16. 177 CLR at 560.
17. Interestingly, in France, although majority guilty verdicts are accepted, a failure by the requisite majority to agree results in an acquittal: see the article What can we learn from the French Criminal Justice System? By Brown McKillop (2002) 76 ALJ 49 at 66.
18. See Metropolitan Bank v Pooley (1885) 10 App Cas 210 at 220-221, Jago v District Court (NSW) (1989) 168 CLR 23 at 46-48, 56-58 and Mason The Inherent Jurisdiction of the Court (1983) 57 ALJ 449 at 453-456.Citations in Gray J’s judgment:
19. The information was in the following terms:
“On or about the 4th day of April 2001 at Adelaide in the State of South Australia, imported into Australia a prohibited import to which section 233B of the Customs Act 1901 applies, namely 359.6 g of 3,4 Methylenedioxymethamphetamine, being not less than a trafficable quantity.”
20. (1993) 177 CLR 541
21. R v Glynn [2001] SADC 159
22. (1993) 177 CLR 541 at 562 footnote 9
23. (1980 – 1981) 147 CLR 75 at 94-95
24. (1989 – 1990) 168 CLR 23 at 31
25.(1991 – 1992) 174 CLR 509 at 519
26. Ridgeway v the Queen (1995) 184 CLR 19
27. (1995) 184 CLR 19 at 74-75
28. (1993-1994) 182 CLR 104
29. (2001) 180 ALR 301
30. (1993-1994) 182 CLR 104 at 143-144 See also Brownlee v R (2001) 180 ALR 301 at 304 per Gleeson CJ and McHugh J
31. (1985) 159 CLR 264 at 301-302
32. (1986) 160 CLR 171 at 201-202
33. (1993) 177 CLR 541 at 557, 562
34. (1993) 177 CLR 541 at 560;
35. (1993) 177 CLR 541 at 562 footnote 9
36. Cheatle v R (1993) 177 CLR 541 at 560
37. Brownlee v R (2001) 180 ALR 301 at 338-339
38. Cheatle (1993) 177 CLR 541 at 560; 116 ALR 1; Kingswell (1985) 159 CLR 264 at 301-2; 62 ALR 161; Wu (1999) 199 CLR 99 at 114 [45]; 116 ALR 200
39. Cheatle v R (1993) 177 CLR 541 at 550-552
40. Brownlee v R (2001) 180 ALR 301 at 307 and 315
41. A majority verdict of not guilty could lead to unfortunate consequences. Take for example the problems that would arise in the Australian Federation with a provision State by State allowing for different majorities. An accused charged with identical Commonwealth offences before different state courts would face a different majority verdict regime. In those circumstances the same prosecution for the same offence in one state may lead to a verdict of acquittal but in another State, to a hung jury. It would follow that the discourse in the jury room from State to State may follow a different process. Such a consequence may be considered discriminatory with a tendency to bring the system of criminal justice into disrepute. The public would rightly expect quality of treatment throughout the Commonwealth. When tested at this pragmatic level the need for unanimity of verdict is both illustrated and underscored.
42. Section 128 Constitution
43. Brown v The Queen (1986) 160 CLR 170, 200-201, 206, 218; Brownlee v R (2001) 180 ALR 301, at 315
44. Cheatle v R (1993) 177 CLR 541 at 563
45. Judiciary Act 1903 (Cth) s 68(2)
46. Judiciary Act 1903 (Cth) s 68(1)
47. cf Ballew v Georgia 435 US 223 (1978) (Ballew) concerning juries of five and six jurors.
“On or about the 4th day of April 2001 at Adelaide in the State of South Australia, imported into Australia a prohibited import to which section 233B of the Customs Act 1901 applies, namely 359.6 g of 3,4 Methylenedioxymethamphetamine, being not less than a trafficable quantity.”
6
9
0