Sutherland v The King

Reginald James Vivian Sutherland applied to the High Court for special leave to appeal against his conviction and sentence by the Supreme Court of the Territory of New Guinea for two charges of stealing gold specimens and gold amalgam. The primary ground for his appeal was that he was entitled to be tried by a jury, rather than by a judge alone as had occurred.

The central legal issue before the High Court was whether the applicant was lawfully tried without a jury. This involved determining the applicability and effect of various legislative provisions, including clause 21 of the Criminal Procedure Ordinance 1889 (British New Guinea), the Laws Repeal and Adopting Ordinance 1921 (New Guinea), the Judiciary Ordinance 1921 (New Guinea), and the Criminal Code of Queensland. The court also considered whether the common law of England, which includes the right to trial by jury, applied to the Territory of New Guinea.

The High Court, comprising Rich and Dixon JJ., refused the application for special leave to appeal. Both judges concluded that the applicant had been lawfully tried without a jury. Rich J. found that clause 21 of the Criminal Procedure Ordinance 1889, which provided for trials by the chief magistrate alone, was applicable to New Guinea and had not been repealed, thus excluding trial by jury. Dixon J. agreed, reasoning that while the Laws Repeal and Adopting Ordinance 1921 incorporated various laws, including the Criminal Procedure Ordinance 1889, it did so only insofar as they were applicable and not inconsistent with other laws in force. He found that clause 21, even with amendments made by the Jury Ordinance 1907 of Papua, remained in force and was applicable to the circumstances of New Guinea, effectively excluding trial by jury. Both judges also found the evidence sufficient to support the convictions.