LWB242 Constitutional Law

LWB242 Constitutional Law • Lecture 8: Jury trial Photo by Bentley Smith (Court room) http://www.flickr.com/photos/superciliousness/80142044/

Jury trial 80. 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.

Introduction • Section 80 was the result of compromise between two rival proposals, and appears on its face to be meaningless. • As Higgins J said in R v Archdall, “if there be an indictment, there must be a jury; but there is nothing to compel procedure by indictment”. On this basis the Commonwealth could simply provide for summary trial of the most serious offences and negate the supposed effect of s 80. The majority in the High Court has so far taken this view, but there has been a significant minority, which has tried to give the section some force. • R v Archdall • The High Court considered provisions of the Crimes Act(Cth) which provided that some offences could be punished either on indictment or on summary conviction, and provided for lesser maximum penalties on summary conviction. • Held, following argument about the definition of summary conviction, that this case was a summary matter and therefore s 80 was not infringed.

Criticisms of the literal approach • The literal approach has been criticised on many occasions. • White v Director of Military Prosecutions(2007) 231 CLR 570 per Kirby J at [167]: • “In past cases, a majority of this Court has favoured the tautological view that s 80's guarantee of ‘trial by jury’ is limited to cases in which the Parliament and the Executive provide for the commencement of prosecution by filing an indictment. However, a persistent minority has rejected this view as inconsistent with the function of s 80 as providing a guarantee of jury trial which could not so easily be circumvented. With respect, I favour what is presently the minority view. It is more harmonious with the language, constitutional context, purpose and function of the section. The contrary view renders trial by jury for the applicable federal offences optional in the hands of the very governmental agencies against whom jury trials can be a precious protection for the individual. That cannot be the meaning of the Constitution. When Australian judges and lawyers become more accustomed to reasoning by reference to fundamental rights, they will see the truth of this proposition more clearly.”

Limits on s 80 • These are some of the limits on s 80: • it does not apply to the States or Territories; • it does not extend to courts martial; • the right to trial by jury cannot be waived by the accused.

Does not apply to the States or Territories • Section 80 does not limit the legislative power of the States. • Byrnes v The Queen • The phrase “law of the Commonwealth” does not include laws passed under s 122 for Territories; therefore there is no requirement for jury trial even upon indictment in the Territories. • R v Bernasconi

Does not extend to courts martial • The power of the Commonwealth to make laws with respect to defence and, incidentally, military discipline, were not subject to the constitutional guarantee of trial by jury in respect of Commonwealth indictable offences. • Re Tyler; Ex parte Foley

Cannot be waived by the accused • If a federal law provides for proceedings on indictment, then the words of s 80 literally require that there “shall” be a trial by jury - and the accused cannot waive this right. • Brown v R

Juries must be unanimous • Cheatle v R • Held that a person charged with an indictable offence against a Commonwealth law who is tried in a State Court in accordance with state procedural law could not be convicted by a majority jury verdict provided for in state legislation. A unanimous verdict is required. Such a State law will be inconsistent with s 80 of the Constitution. • A unanimous jury of six, or 10, but not 12 is required. • Brownlee v R

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LWB242 Constitutional Law