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Fittock, Laurie --- "Convicted on a Majority Verdict: The Tipiloura Case" [2004] IndigLawB 38; (2004) 6(2) Indigenous Law Bulletin 18


Convicted on a Majority Verdict: The Tipiloura Case

by Laurie Fittock

On 19 April 1991, in the Supreme Court of the Northern Territory (‘NT’), Cosmos Tipiloura was found guilty of murder by a majority verdict of the jury. Tipiloura appealed against the verdict to the Court of Criminal Appeal. The Appeal was conducted on the basis that the Trial Judge erred in accepting or permitting a majority verdict when the jury had not been instructed on the circumstances in which majority verdicts were allowed. No issue was raised at that time either as to whether a conviction by majority verdict represented proof beyond reasonable doubt or of the constitutionality of the conviction. On 11 December 1991, the Court dismissed the appeal.[1]

The legislative basis for majority verdicts in the NT is found in Section 368 of the Criminal Code of the Northern Territory:

Where upon a trial a period of not less than 6 hours has elapsed since the jury retired and the jurors are not unanimously agreed upon their verdict the court shall -
(a) if the jury consists of 11 or 12 jurors and 10 of those jurors are agreed upon a verdict to be given, take and enter that verdict as the verdict of the jury; or
(b) if the jury consists of 10 jurors and 9 of those jurors are agreed upon a verdict to be given, take and enter that verdict as the verdict of the jury.[2]

Tipiloura had remained in ignorance of the possibility of an appeal to the High Court until 2003. An application for leave to appeal (which also involves an application for an extension of time) has now been lodged and will be heard by the High Court in Canberra on 6 August 2004. It is hoped that if these applications are granted, the appeal would be heard before the end of the year. The application has an immediate problem with the time lapse between the appeal verdict and the application date and therefore the submission before the Court is that the interests of justice will best be served by allowing the extension. In any case, as Tipiloura is one of a number of (mainly Aboriginal) persons serving sentences after conviction on majority verdicts in the Northern Territory, and as the law in the Northern Territory on this point is still in force, it is inevitable that at some point the High Court will be asked to adjudicate.

If the applications for extension of time and leave to appeal are granted, success will be dependent on the Court ruling that laws of the NT, made under powers granted by Section 122 of the Constitution[3] (that is, laws made pursuant to the Self Government (Northern Territory) Act 1978) are either laws of the Commonwealth, or alternatively that the powers granted by Section 122 are qualified by or subject to, other sections of the Constitution, specifically in this case, Section 80.

In 1993 the Full Court of the High Court held unanimously that Section 80 of the Constitution requires a unanimous verdict.[3] Section 80 reads:

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.[3]

Success will also be dependent on the Court overruling long standing authority that Chapter III of the Constitution which contains Section 80, has no application in the Territories. R v Bernasconi[4] was a case stated to the High Court by the Central Court of the Territory of Papua. The geo-political circumstances of the time should be considered[5] and it may be that the Court at the time was trying to circumvent problems that may occur in the future. The Court referred to ‘recently conquered territories’ referring to former German possessions in the Pacific and said:

If, for instance, any of the recently conquered territories were attached to Australia by act of the King and acceptance by the Commonwealth the population there, whether German or Polynesian, would come within sec.122 and not within sec.80. Parliament’s sense of justice and fair dealing is sufficient to protect them, without fencing them round with what would be in the vast majority of instances an entirely inappropriate requirement of the British jury system.[6]

The Court at the time appears not to have considered the appropriateness of the British jury system for Commonwealth citizens who were residents of existing or prospective internal territories. This decision has attracted a significant amount of judicial and academic attention. McHugh J has observed that Bernasconi was ‘wrongly decided’ and created a ‘constitutional heres(y)’[7]. Mason CJ expressed intellectual discomfort (as did some other members of the Court) concerning the way the legal relationship between Chapter III of the Constitution and s 122 had been developed by the Court since Bernasconi.[8]

The issue of the difference between internal and external territories was identified by Gaudron J in Capital Duplicators Pty Ltd v Australian Capital Territory.[9]

[A]lthough s.122 operates generally and with respect to territory in the geographic sense, it is relevant to observe that Australia’s internal territories, the Australian Capital Territory and the Northern Territory (“the Internal Territories”) are historically and geographically different from other territory with which the section deals.(But cf. Attorney-General(N.S.W.) ; Ex rel. McKellar v. The Commonwealth (1977) 139 C.L.R. 527, at p.533, per Barwick C.J., where his Honour said that he was “unable to find any relevant distinction between the so-called internal Territories and the external Territories.[10]

She went on:

They and any future Territory brought into existence by separation from one or more of the states are necessarily parts of the Commonwealth of Australia, both geographically and politically.[11]

Her Honour added:

But, as is apparent from the external territories which were held under mandate from the League of Nations and, later, under trusteeship from the United Nations, the mere acquisition of territory does not, of itself, make that territory a part of the Commonwealth either in a political or geographic sense. (But cf. Spratt v. Hermes [1965] HCA 66; (1965) 114 C.L.R. 226, at p. 247, per Barwick C.J., and p.270 per Menzies J.)[12]

And:

One thing is clear: those persons who resided in the areas of New South Wales and South Australia that became the Australian Capital Territory and the Northern Territory respectively, did not, on grant or surrender of the area concerned, lose their membership of the body politic which the Constitution brought into existence as the Commonwealth of Australia.[13]

The Tipiloura matter raises important constitutional law issues, in particular whether and to what extent the legal effect of the Court’s decision in R v Bernasconi immunises s 122 from Chapter III of the Constitution. It will be submitted on behalf of Tipiloura that an extension of time and special leave should be granted because the interests of the administration of justice in his case (and generally) require consideration by the High Court of the question of whether there has been a demonstrable miscarriage of justice by reason of a jury verdict obtained by unconstitutional means. It will also be submitted that this application provides an appropriate vehicle in which the relationship between s 80 and s 122 of the Constitution can be examined for the purpose of determining whether s 80 applies to all trials upon indictment in Territory courts.

Laurie Fittock is an Adelaide-based lawyer representing Mr Tipiloura on a pro bono basis.


[1] Tipiloura v R [1992] NTCCA 2; (1992) 2 NTLR 216.

[2] Criminal Code of the Northern Territory of Australia, Section 368.

[3] Commonwealth of Australia Constitution Act 1900 (UK), Section 122, Government of Territories: The Parliament may make laws for the government of any territory surrendered by any State to and accepted by the Commonwealth, or of any territory placed by the Queen under the authority of and accepted by the Commonwealth, or otherwise acquired by the Commonwealth, and may allow the representation of such territory in either House of the Parliament to the extent and on the terms which it thinks fit.

4 Cheatle v R (199[3]) [1993] HCA 44; 177 CLR 541.

[3] Commonwealth of Australia Constitution Act 1900 (UK), Section 80.

[4] [1915] HCA 13; (1915) 19 CLR 629.

[5] Australia and much of the rest of the world was at war at the time.

[6] R v Bernasconi [1915] HCA 13; (1915) 19 CLR 629, 638 (Isaacs J).

[7] Porter v R; ex parte Yee [1926] HCA 9; (1926) 37 CLR 432.

[8] Capital T.V. and Appliances Pty Ltd v Falconer [1971] HCA 10; (1971) 125 CLR 591.

[9] Capital Duplicators Pty Ltd v Australian Capital Territory and Another [1992] HCA 51; (1992) 177 CLR 248.

[10] Ibid 285.

[11] Ibid 285.

[12] Ibid 286.

[13] Ibid.


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