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McConvill, James; Joy, Martin --- "Approaching Constitutional Trial by Jury: Brownlee v The Queen" [2001] DeakinLawRw 19; (2001) 6(2) Deakin Law Review 344


Approaching Constitutional Trial By Jury: Brownlee V The Queen

JAMES MCCONVILL[*] AND MARTIN JOY [**]

I INTRODUCTION

The High Court in Brownlee v The Queen[1] further clarified the meaning of - to use the words of Dixon and Evatt JJ - the ‘illusory’ guarantee afforded by s 80 of the Australian Constitution.[2] This provision expresses the rule that trials of Commonwealth criminal offences upon indictment shall be by jury.[3] The decision of Brownlee further articulates the understanding of s 80 developed over the last hundred years: that it is no more than a procedural guarantee and cannot be considered a right of an accused.

II BACKGROUND TO SECTION 80

The principal restriction on the operation of s 80 has been the judicial understanding that the provision only provides for trial by jury where parliament has declared a charge indictable. In R v Bernasconi,[4] Isaacs J foreshadowed this by suggesting that the provision would not operate where the offence was not indictable, thus leaving the decision whether an accused would enjoy trial by jury for a particular offence upon Parliament's discretion to declare the charge indictable.[5] This understanding was adopted by the High Court in Kingswell v R,[6] and recently reaffirmed by the High Court in Re Colina; Ex parte Torney[7] and Cheng v R.[8]

Two further interpretations of s 80 were articulated in Brown v R [9] and Cheatle v R.[10] In the first case, the court found that the method of trial cannot be waived by an accused. The requirement is thus a mandatory one and once the accused is charged upon indictment for a Commonwealth offence, he or she cannot elect to be tried by a judge alone. In Cheatle, the court held that majority verdicts were not consistent with the notion of trial by jury contemplated in s 80. Central to the court's reasoning was the method of conduct of jury trials at the time of federation. Since majority verdicts were not incorporated into practice at that point, unanimity was essential in order to comply with s 80.

The jurisprudence surrounding s 80 has leant it a procedural, rather than a substantive, character. Arguably, it is this concern with procedural qualities that has been addressed in the decision of Brownlee.

III FACTS

Upon trial by jury in the District Court of Sydney, the appellant was convicted of conspiracy to defraud the Commonwealth contrary to s 86A of the Crimes Act 1914 (Cth). He appealed the conviction to the New South Wales Criminal Court of Appeal and, upon rejection in that court, applied to the High Court for special leave.

The appellant contended that his trial, being upon indictment, had not been conducted in accordance with s 80 of the Australian Constitution for two material reasons. First, the jury had been reduced to the number of ten from the original twelve and; secondly, the jurors had been allowed to separate (meaning they could return to their respective homes and thus be potentially exposed to external influences) whilst they deliberated.

There was no question that the trial had been carried out in accordance with the applicable state law. Section 22(a)(i) of the Jury Act 1977 (NSW) (‘Jury Act) permits in criminal trials the reduction of the jury to a number not below ten. The section further permits reduction below that number if there is consent from the accused and the prosecution, or to a number not below eight if the trial has been in progress for at least two months. Section 54(b) provides that the jury may, if the court so orders, be permitted to separate after they retire to consider their verdict. Section 68 of the Judiciary Act 1903 (Cth) was held applicable to pick up the relevant provision of the Jury Act.[11]

The issue raised by the appellant was that that these provisions were contrary to the notion of 'trial by jury' as provided by s 80 of the Australian Constitution. Since s 68 of the Judiciary Act is expressed to be subject to s 80, the validity of that provision was not contested. The question, therefore, was whether the notion of 'trial by jury' as established by the Jury Act was consonant with the notion as expressed in the Australian Constitution.

IV DECISION

All seven members of the court dismissed the appeal, holding the state provisions were compatible with s 80.

A Gleeson CJ and McHugh J

Gleeson CJ and McHugh J approached the issue by posing the question of what 'trial by jury' means in s 80. The justices adopted the interpretative approach used by the court in Cheatle[12] where the validity of majority verdicts was assessed by ‘standards inherent in the constitutional expression’.[13] In Cheatle, the court looked to historical circumstances but also to principle and authority to hold that unanimity was an essential element of the concept of jury trial as expressed in s 80.

In Brownlee, Gleeson CJ and McHugh J found this approach to be consistent with that adopted by Brennan J in Theophanous v Herald & Weekly Times Ltd where his Honour said that the Australian Constitution ‘speaks continually to the present and operates in and upon contemporary conditions’.[14] Notwithstanding this, ‘it speaks in the language of the text, which is to be ‘construed in the light of its history, the common law and the circumstances or subject matter to which the text applies’’.[15] Accordingly, this meant that if the NSW provisions were inconsistent with s 80 it would be because ‘the meaning of the constitutional text produces that result. It cannot be because the contemporary judiciary espouses values different from those of the contemporary legislature.’[16]

With this interpretative approach, Gleeson CJ and McHugh J considered the nature of trial by jury and recognised that the ‘incidents of the procedure never have been immutable.’[17] Yet, within this process of evolution that has influenced the shape and operation of the jury, Cheatle identifies a distinction between 'essential' and 'inessential' elements of the institution. Whilst the justices did not identify those elements of trial by jury which can be classified as essential or inessential, they cited provisions of colonial and historical state legislation which allowed for the continuance of a trial where the jury had fallen below twelve.[18] Thus, they concluded that the requirement of twelve jurors could not be considered an essential element of the meaning of jury trial as expressed by s 80. According to Gleeson CJ and McHugh J: ‘There is, therefore, no historical foundation for a claim that the context in which the Constitution was framed suggests that 'trial...by jury' in s 80 means a trial at which a verdict is given by no fewer than 12 jurors.’[19]

A similar conclusion is drawn with respect to s 54(b). The central argument with respect to this provision is that separation is not an end in itself but only one means historically employed to ensure that jurors were free of external influence in their deliberations. Thus, the essential element in this regard is the preclusion of corrupting communications to the jury. The nature of the threat ‘changes with varying social conditions and methods of communication.’ Furthermore, the ‘discretion that is reposed in a trial judge by s 54(b)...enables a judge to form an opinion, in the circumstances of a particular case, as to whether separation is incompatible with the need to protect the integrity of the jury's verdict.’[20] Gleeson CJ and McHugh J thus concluded that there was no derogation from the meaning of 'trial...by jury' in conducting the case according to the Jury Act.[21]

B Gaudron, Gummow and Hayne JJ

Justices Gaudron, Gummow and Hayne, like Gleeson CJ and McHugh J, adopted the distinction drawn in Cheatle between essential and inessential elements of trial by jury.[22] The issue was ‘whether a reduction, for cause shown to the satisfaction of the court, in the number of jurors from 12 to no fewer than 10 and the permission for the jury to separate after they had been charged to consider their verdict involve changes to the details of the conduct of jury trial mandated by s 80 or destroy an essential feature or fundamental thereof.’[23]

To consider whether the requirement of absolute confinement is an essential feature, the justices considered the law before and at the time of federation. This revealed that there were legislative provisions for the separation of jurors both in the colonies and newly formed states and within England.

A similar type of argument was applied to find that reduction in jury numbers is compatible with s 80. Notwithstanding the policy consideration of permitting the trial to continue despite sickness, death or incapacity, the justices stated ‘legislation in several of the colonies fixed upon the number 10 as the minimum for the remaining jurors whose unanimous agreement would be sufficient to ensure observance of the deliberative process required by the institution of trial by jury’.[24] Whilst the justices considered that the provision in issue was not incompatible with s 80, ‘there is much force in the contention that no reduction below 10 is permissible.’[25] The justices therefore considered there would be a real question as to whether a reduction below that number would be compatible with s 80.

C Callinan J

Justice Callinan did not explicitly adopt the essential/inessential distinction and assessed the appellant’s submission by considering whether there was support at the time of Federation for a reduction in jury numbers below twelve. According to his Honour, an examination of various colonial and state laws demonstrated that ‘these were by no means uniform and did permit a reduction in the number of jurors during a trial.’[26] Further to this, Callinan J stated that there is no reason in principle why a jury of twelve should be considered more representative of the community than a smaller-sized jury although, ‘...there may come a point at which a smaller number could not, in a real sense, be regarded as a jury...’[27] - yet it was not necessary to decide this point.

As to the issue of separation, his Honour states that ‘the fact that a jury may, and has separated, will not necessarily impair or destroy the essential character of the jury as a jury.’[28] Notwithstanding this, Callinan J envisaged that separation may lead to improper influences which the trial judge would be obliged to deal with.[29] He did not provide an example of such a situation, but held that in this case the issue did not arise and accordingly, this ground of appeal also failed.

D Kirby J

Whilst Justice Kirby held the same view as the other justices that s 22(a)(i) and s 54(b) of the Jury Act did not offend s 80 of the Australian Constitution, his Honour departed from the position of the other justices in relation to the question of waiver. By focusing on the question of waiver, it was necessary for Kirby J to deal also with the issue of whether leave is required in order to re-argue constitutional holdings.

1 Waiver and leave

According to the previous High Court decision in Brown,[30] s 80 of the Australian Constitution precludes a person from waiving the constitutional requirements of ‘trial by jury’. In Brownlee, the Attorney-General of the Commonwealth sought leave to re-open Brown, on the contention that Brown was incorrectly decided and that the appellant had waived in fact any constitutional rights which were supposedly impugned by s 22(a)(i) and s 54(b) of the Jury Act. The other judgments in Brownlee dealt only briefly with waiver, as a majority of the court had earlier refused leave to re-open Brown. Accordingly, to deal with waiver, Kirby J also had to deal with the separate issue of whether leave to re-open previous constitutional holdings was a procedural requirement.

Justice Kirby was critical of the court’s approach to the issue of waiver. His Honour believed that the court should not have refused leave to re-open Brown. Indeed, Kirby J went further than this, arguing that leave to re-open previous constitutional holdings of the court should not be a requirement as it is ‘a procedure incompatible with the Constitution.’[31] Since the Australian Constitution is an evolving document there should not be any procedural obstacle preventing parties from presenting the court with evidence that its meaning has changed. [32] Further, Kirby J submitted that Brown was incorrectly decided and therefore waiver was legally effective. Accordingly, Kirby J was prepared to re-open Brown and allow the respondents to argue that the appellant had waived his constitutional right to ‘trial by jury’ under s 80.

On the question of waiver, Kirby J opined that while Brown had the effect of strengthening the protection afforded by s 80, to allow the decision to stand such as to forbid waiver by the accused of the entitlements of s 80 would ‘impose a most capricious operation upon s 80. It would hold that the section demands that an accused person must accept trial by jury, although there is an alternative procedure which the accused would prefer to adopt.’[33]

Having decided that Brown should be overruled and that the waiver was legally effective, Kirby J went on to consider whether the appellant had waived his rights under s 80 of the Australian Constitution. It was quite clear to Kirby J that during the course of the hearing and jury deliberations, the appellant did not object to either the reduction in the number of jurors below twelve (pursuant to s 22(a)(i) of the Jury Act),[34] or to the separation of the jurors during the hearing and during deliberations (pursuant to s 54(b) of the Jury Act),[35] and as such waived his right to argue that these provisions offend s 80 of the Australian Constitution.

As the majority of the court, however, declined to reopen Brown, and due to the importance of the matters raised on appeal in Brownlee, Kirby J considered it ‘appropriate’[36] that he should address the remaining arguments concerning whether s 22(a)(i) and s 54(b) of the Jury Act offended the constitutional requirement of ‘trial by jury’ in s 80. In order to deal with the arguments, Kirby J agreed with the submission advanced for South Australia that it is ‘necessary to have a theory about constitutional interpretation’ when considering s 80 of the Australian Constitution. His Honour therefore proceeded to expound his approach to constitutional interpretation, in the context of s 80.

2 Justice Kirby’s approach to constitutional interpretation

A significant part of Justice Kirby’s judgment in Brownlee contains his Honour’s passionate explanation and justification of his preferred approach to constitutional interpretation. His Honour stressed that there is a need for a proper theory of constitutional interpretation to be applied by the court because ‘[o]therwise, the result will inevitably be inconsistent decisions reflecting no more than the intuitive responses to the text of the Constitution by different Justices (or of the same Justices at different times)’.[37]

In this part of his judgment, with the heading ‘The approach to construction: Jury trial in 2001 not 1900’, Kirby J took the same approach to constitutional interpretation as expressed both in recent judgments[38] and extra-curially.[39] This approach requires that ‘constitutional expressions must be given contemporary meaning’,[40] such that ‘it is imperative to keep the mind open to the possibility that a new context, presenting different needs and circumstances and fresh insights, may convince the court, in later times and of later composition, that its predecessors had adopted an erroneous view of the Constitution.’[41] In the context of s 80 of the Australian Constitution, Kirby J considered that this approach required that the meaning given to the expression ‘trial by jury’ must be such as befits a ‘modern democratic society’.[42]

In order to give s 80, and indeed the Australian Constitution as a whole, a ‘contemporary meaning’ which meets the standards of a ‘modern democratic society’, Kirby J propounded that it is futile to construe words in the Australian Constitution according to the intention and understandings of the framers in 1900. In relation to s 80, this is particularly important as jury trial in 1900 is very different to jury trial in 2001.[43] In Brownlee, Justice Kirby’s attitude towards the Australian Constitution and constitutional interpretation, recently referred to by Professor Goldsworthy as ‘radical non-originalism’,[44] is clearly and forcefully highlighted in two key statements:

Because, by definition, the world of the framers was not that of today’s Australians, it is misleading, and prone to result in serious error, to accept as the applicable principle of constitutional interpretation the ‘intention’ of those who framed it.[45]

And (speaking of those that adhere to the intention of the framers in 1900):

Either they must indulge in false history, laying emphasis on exceptional straws in the wind to ascribe extraordinary prescience to the framers. Or they must embrace counter-factual fictions about what those framers would have intended. ... The present application demonstrates vividly why the 1900 criterion is unacceptable.[46]

In concluding his discussion about the proper approach to constitutional interpretation, Kirby J conceded that ‘[I]t will take time for the search for constitutional meaning by reference to the imputed ‘intention of the framers’ in 1900 to be abandoned’[47], but urged the court to engage in a ‘search for the essential characteristics of words and phrases having enduring constitutional operation’[48] so that the Australian Constitution can be applied with consistency and certainty into its second century. Having clearly outlined his preferred approach to constitutional interpretation, Kirby J then proceeded to apply this approach when commenting on the validity of s 22(a)(i) and s 54(b) of the Jury Act.

3 Constitutional validity of s 22(a)(I) and s.54(b) of the Jury Act

Applying the ‘radical non-originalist’ approach of determining the requirements of ‘trial by jury’ under s 80 of the Australian Constitution ‘from the perspective of contemporary considerations that identify the essential characteristics of that mode of trial in Australia’,[49] Kirby J arrived at the same decision as the other justices that a verdict from twelve jurors is not constitutionally essential, and accordingly s 22(a)(i) did not offend s 80 and was valid. The rule of unanimity of jury verdicts[50] and the notion that a jury must be representative of the community,[51] according to his Honour, did not mean that a verdict only from twelve jurors could be permissible.

Interestingly, in order to determine whether the process allowed under s 22(a)(i) answers the description of ‘trial by jury’ for the purposes of s 80, Kirby J was drawn to the jurisprudence developed by the United States Supreme Court in its consideration of the ‘trial by jury’ requirement under the Sixth Amendment to the Constitution of the United States. In a number of decisions, the United States Supreme Court has employed a ‘functional analysis’ to determine whether the function which a statutory provision under question performs is inconsistent with the requirement of ‘trial by jury’ envisaged by the Sixth Amendment.[52] In Brownlee, Kirby J attempted to relate his adoption of the US ‘functional analysis’ approach to his overriding non-originalist approach to constitutional interpretation by emphasising that the US functional analysis is based on how the institution of jury trial has ‘evolved and operates for constitutional purposes in the United States today’,[53] rather than the nature of jury trial at the time the Sixth Amendment was adopted.

In his judgment, Kirby J insisted that:

A similar functional analysis, and not a purely historical one, must be applied in Australia to determine whether, relevantly, the provisions of s 22 of the Jury Act, are inconsistent with the type of jury trial that s 80 of the Constitution envisages, and thus are ‘inapplicable’ to a trial held in accordance with that provision, as envisaged by s 68 of the Judiciary Act. Only if the mode of trial envisaged by s 22 of the Jury Act is functionally incompatible with the essential requirements of ‘trial ... by jury’, as that phrase is used in Constitution, will s 22 be regarded as inapplicable.[54]

In order to perform this ‘functional analysis’ of s 22 of the Jury Act, Kirby J lists a number of ‘functional considerations’, taken from principles established in important Sixth Amendment cases in the United States,[55] which ‘permit a distinction to be drawn between a trial that answers to the description of ‘trial ... by jury’ and one that does not ...’. These functional considerations include: (1) whether the jury is of a sufficient size to promote group deliberation; (2) whether there are a sufficient number of jurors so that a cross-section of community opinion is expressed and shared among the jurors; (3) whether there is a sufficient number of jurors to guard individuals from potential oppression by the government and/or judiciary; (4) whether the number of jurors is sufficient to reflect, in a general way, minorities within the community. [56] Applying these functional considerations to the provisions of s 22(a)(i) of the Jury Act, Kirby J determined that this provision is functionally compatible with the requirements of ‘trial by jury’- as far as those requirements are understood in ‘contemporary Australia’.[57]

Using the same functional analysis, Kirby J upheld the constitutional validity of s 54(b) of the Jury Act which allows for the separation of jurors, so long as there is an express order for such by the trial judge. According to his Honour:

[W]hatever may have been the assumptions or intentions of the framers of the Constitution in 1900, viewed with due regard to the functions of ‘trial ... by jury’ by contemporary Australian standards, the separation of jurors during a trial, and even when deliberating on their verdict, is not incompatible with the constitutional requirement.[58]

Justice Kirby did note, however, that in some cases separation of jurors may still be functionally incompatible with the requirements of ‘trial by jury’ for the purposes of s 80 and therefore constitutionally invalid. The outcome will depend on the facts of each case. His Honour advised that:

...[T]o the extent that a trial involves sensational or highly charged circumstances, that may be reported or even commented upon in the media, the old rule of separation during verdict deliberation will usually still be appropriate, notwithstanding the inconvenience that this causes to jurors.[59]

V ANALYSIS

Due to the different approaches taken in the various judgments to the issue for determination in Brownlee, the analysis of the decision is divided into two parts. The first part analyses the respective judgments of Gleeson CJ and McHugh J, Gaudron, Gummow and Hayne JJ and Callinan J. The second part of the analysis looks closely at the judgment of Kirby J.

A Analysis of judgments of Gleeson CJ and McHugh J, Gaudron, Gummow and Hayne JJ and Callinan J

The central result arising from these judgments in Brownlee is that the nature of the guarantee of trial by jury in s 80 is now dependent upon the notion of ‘essential’ elements of jury trial. Five of these justices explicitly adopted this approach in assessing whether jury practice accords with s 80’s contemplation of jury trial, and a sixth, Callinan J, referred to the ‘essential character of the jury’[60] in his consideration of the issue of separation. Thus, whilst not explicitly adopting the distinction drawn in Cheatle, Callinan J’s statement could be read as an implicit endorsement of the approach.

The result of vesting the nature of the guarantee within this notion of ‘essential’ can be seen as two-fold. Firstly, in contradistinction to Gleeson CJ and McHugh J’s assertion that it is not for the courts to ‘formulate and declare their own standards of jury trial’[61] it seems that this test of essentiality does exactly that. Indeed, there is little explanation of what the term ‘essential’ means and little indication of how it will be applied in the future, except for vesting the delineation in the hands of the court. This leaves the guarantee arguably more indeterminate than before Brownlee.

In one respect however, Brownlee may place an effective judicial limit upon what the parliament may do in relation to jury trial procedure. Thus, Gaudron, Gummow, Hayne and Callinan JJ in their respective judgments recognised that there may be limits upon the number of jurors who may form a valid jury. Whilst these comments are merely obiter dicta, it would seem that the court could be reluctant to endorse a jury emaciated much beyond the ten jurors of this case as meeting the essential nature of a jury.

Secondly, the predication of the guarantee in the terms of ‘essential’ and ‘inessential’ has the effect of raising the form of interpretative approach adopted by the court to be of paramount importance in the operation of the guarantee. In this regard, the failure of the justices to give clear guidelines along which future interpretative issues may be addressed, is disconcerting given the importance of the guarantee at stake.

Most hopeful amongst the judgments, Chief Justice Gleeson and McHugh J adopted the method outlined in Cheatle and Theophanous of looking to history, authority and principle. This involved consideration of the historical circumstances of jury trial in conjunction with modern praxis and principle to provide an answer as to what constitutes an essential element. Similarly, Gaudron, Gummow and Hayne JJ considered the legislation at the time of Federation with the intent of discovering the essential features of trial by jury.

Justice Callinan’s judgment did not directly with the issue of interpretation being more concerned with a factual finding which contradicted the appellant’s contention. His Honour did, however, defer to the nature of the Australian Constitution at the time of its enactment.

These interpretative approaches may be contrasted with that adopted by Kirby J in his judgment. In this regard, they are much more concerned with remaining true to historical notions of jury trial. Two readings may be derived from this approach. On the one hand, this could be seen as giving a greater degree of stability to the guarantee as its historical underpinnings would be clear and thus available for appreciation of the notion of jury trial. On the other hand, it may be argued that this could lead to an ossification of the institution of jury trial and deny it the ability to evolve according to community standards.

B Analysis of Kirby J’s judgment

Justice Kirby’s attempt to make the requirement of ‘trial by jury’ for the purposes of s 80 reflective of the needs and expectations of contemporary Australia was commendable. The present writers, however, have some concerns with the appropriateness of applying his Honour’s ‘radical non-originalist’ approach to constitutional interpretation in Brownlee.

First, the unanimous decision in Brownlee that s 22(a)(i) and s 54(b) of the Jury Act did not offend the constitutional requirement of ‘trial by jury’ has the effect of further diminishing the potency of s 80 as a ‘rights protective instrument’,[62] a result which Kirby J was eager to prevent in a number of earlier s 80 cases. In Re Colina; ex parte Torney,[63] for example, Kirby J proclaimed that:

[I]n matters of fundamental constitutional rights a greater vigilance will be adopted by this court than elsewhere. ... It is for this court to give meaning to the section. It is fundamentally inconsistent with its imperative language and place in Chapter III of the Constitution to leave it to the parliament (or the Executive Government), unbridled, to give the provision its meaning and practical operation.[64]

The requirement that there be a jury made up of no less than twelve members is extremely important from a rights protective view, the traditional view being that this number ensures that the jury is truly representative of a cross-section of the community and therefore capable of reaching a fair and unbiased decision.[65] Consequently, a jury constituted by any less than twelve members, presents a greater risk of a serious miscarriage of justice - usually detrimental to the accused.[66] Equally important is the need to ensure that jurors are not allowed to separate either during the course of the trial or deliberations. Upon separation a strong risk arises that jurors will discuss the case with non-jurors (despite being prohibited from doing so) and be influenced to decide in a particular way.[67] Such a situation is a significant impediment to achieving integrity of jury deliberations - which is such a crucial aspect of the ‘trial by jury’ process.

As a consequence of the Brownlee decision, not only is parliament able to legislate as to the applicability of trial by jury, parliament can also legislate to determine the nature of a jury trial. The outcome in Brownlee concerning the validity of s 22(a)(i) and s 54(b) of the Jury Act highlights this. As parliament has control over both the applicability and nature of jury trial for Commonwealth indictable offences, s 80 has been withered away to an ‘ineffective hortation’ that ‘might just as well not have been included in the Constitution’.[68] By deciding that s 22(a)(i) and s 54(b) of the Jury Act were functionally compatible with the requirement of ‘trial by jury’ under s 80, Kirby J has unfortunately supported a characterisation of the nature and scope of s 80 that is completely incompatible with his previously versed objectives for s 80 as an important constitutional guarantee.

Second, an approach to constitutional interpretation in which provisions are given a ‘contemporary’ meaning, as befits a ‘modern democratic society’[69] is problematic. While Kirby J commented in Brownlee that adopting his approach would avoid ‘inconsistent decisions reflecting no more than the intuitive responses to the text of the Constitution by different Justices...’[70], it is submitted that the opposite situation is more likely. An approach to constitutional interpretation which dismisses the value of considering the intention of the framers of the Australian Constitution, and instead requires justices to interpret constitutional provisions to reflect notions of ‘contemporary Australia’ and ‘modern democratic society’ is more likely to rely on judicial intuition and foster rather than prevent inconsistencies in judicial decision-making in an attempt to give the Australian Constitution a contemporary meaning.

It is extremely difficult for judges to attempt to determine a perceived contemporary meaning of constitutional provisions. How is this to judged, and what criteria or tests can be applied which ensure that an interpretation of constitutional text accords with a meaning understood by contemporary Australia? This problem is highlighted in Kirby J’s reasoning in Brownlee. Rather than engage in an empirical study of the expectations and understandings of contemporary Australians as to the requirement of ‘trial by jury’ when dealing with the issue of whether s 80 imposes the requirement that there be no less than twelve jurors, Kirby J instead chose to apply the understanding of the United States Supreme Court – through a collection of principles developed by the court over the years - of what is meant by ‘trial by jury’ for the purposes of the Sixth Amendment. For some reason Kirby J considered that if the process of jury trial facilitated by s 22(a)(i) of the Jury Act was ‘functionally compatible’ with this understanding of a foreign court, then ‘such provisions [do not] offend the constitutional requirements for ‘trial ... by jury’, as those requirements are understood in contemporary Australia.’[71] Although Sixth Amendment jurisprudence is useful when trying to determine what is meant by the requirement ‘trial by jury’ for the purposes of s 80 of the Australian Constitution,[72] it is submitted that the contention that contemporary Australians’ understanding of the ‘trial by jury’ requirement is reflected in legal principles established by the United States Supreme Court decades ago is erroneous and highlights the dilemma of using such a vague and aspirational approach to constitutional interpretation. Indeed, Kirby J did not need to resort to such ‘functional considerations’ in deciding that the requirement of ‘trial by jury’ under s 80 does not prohibit the contemporary practice of jurors separating during the course of the trial, and during deliberations.[73]

In future cases in which s 80 is open to interpretation, it is imperative that Kirby J makes a decision as to whether s 80 must be upheld as a rights-protective instrument incapable of being impugned by legislative or executive initiative, or whether his overriding objective of ensuring that constitutional provisions engage and reflect the understanding of contemporary Australians must take precedence. Justice Kirby’s judgment in Brownlee highlights that there may often be a conflict between the two approaches, which his Honour should recognise and attempt to reconcile.

VI CONCLUSION

The result of Brownlee is the further diminution of s 80 as a constitutional right to trial by jury. The effect is that s 80 provides very little guarantee at all that people exposed to the criminal justice system in relation to Commonwealth offences will be protected by the requirement of trial by jury. Parliament can not only, by legislative initiative, dictate whether a jury trial will be applicable in particular Commonwealth offence cases, it can also determine the nature of jury trial. As in other recent decisions of the High Court, Brownlee confirms that s 80 is merely a procedural provision, rather than a rights protective instrument.

The diminution of s 80 as a constitutional guarantee is not, however, the primary reason for consideration of the Brownlee decision. There has already been commentary highlighting that the effect of s 80 decisions prior to Brownlee is ‘the present court’s waning interest in the Constitution’s role as a rights protective instrument.’[74] The Brownlee decision is significant and open to criticism due to the questionable reasoning employed in the judgments.

The present court has confirmed that ultimate sovereignty, reflected in the Australian Constitution, is reposed in the Australian people.[75] An important consideration for the Australian people is the extent to which the Australian Constitution, our most fundamental legal document, protects and upholds basic human rights and freedoms- including trial by jury. It therefore becomes the duty of the High Court to interpret and apply the Australian Constitution in such a way so as not to impugn these rights and freedoms unless coherent and principled judicial reasoning necessitates this. In Brownlee, it is submitted, the court failed to adhere to this duty.


[*] LLB Candidate, Deakin University.

[**] BA(Hons)(Mon), LLB Candidate, Monash University.

[1] [2001] HCA 36; (2001) 180 ALR 301 (‘Brownlee’).
[2] Dixon and Evatt JJ in R v Federal Court of Bankruptcy; Ex parte Lowenstein [1938] HCA 10; (1938) 59 CLR 556, 582.
[3] Section 80 of the Australian Constitution provides that:

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.

[4] [1915] HCA 13; (1915) 19 CLR 629.
[5] Ibid 637.
[6] (1985) 159 CLR 264.
[7] [1999] HCA 57; (1999) 166 ALR 545.
[8] Cheng v R [2000] HCA 53; (2000) 175 ALR 338 (‘Cheng’).
[9] Brown v R [1986] HCA 11; (1986) 160 CLR 171 (‘Brown’).
[10] Cheatle v R [1993] HCA 44; (1993) 177 CLR 541 (‘Cheatle’).
[11] Section 68 provides:
(1) 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 herewith;
and for holding accused person 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.
(2) The several Courts of a State or Territory exercising jurisdiction with respect to:
(a) summary conviction; or
(b) the examination and commitment for trial on indictment; or
(c) the trial and conviction on indictment;
of offenders or persons charged with offences against the laws of the State or Territory, and with respect to the hearing and determination of appeals arising out of any such trial or conviction or out of any proceedings connected therewith, shall, subject to this section and to section 80 of the Constitution, have the like jurisdiction with respect to persons who are charged with offences against the laws of the Commonwealth.
[12] [1993] HCA 44; (1993) 177 CLR 541.
[13] Ibid 562.
[14] [1994] HCA 46; (1994) 182 CLR 104, 143-4.
[15] [2001] HCA 36; (2001) 180 ALR 301, 305.
[16] Ibid.
[17] Ibid.
[18] Ibid 306-7.
[19] Ibid 306.
[20] Ibid 308.
[21] Ibid. The judges further concluded on this basis that there was no issue as to whether the appellant waived the protected afforded by s 80 of the Australian Constitution. This issue will be discussed below in relation to Kirby J’s judgment.
[22] Ibid 313-4.
[23] Ibid 314.
[24] Ibid 318.
[25] Ibid.
[26] Ibid 347.
[27] Ibid 349.
[28] Ibid 350.
[29] See ibid 350.
[30] [1986] HCA 11; (1986) 160 CLR 171.
[31] Brownlee [2001] HCA 36; (2001) 180 ALR 301, 326.
[32] Ibid 328, Kirby J submits that ‘[T]here is no warrant in the text of the Constitution for assigning to some Justices of the Court a right to prevent others, in effect, from even considering, with the benefit of full argument, and deciding, points of constitutional principle which parties before the Court wish to propound.’
[33] Ibid 330. Kirby J endorsed the comment of McHugh J in Cheng [2000] HCA 53; (2000) 175 ALR 338, 373: ‘To some accused, trial by jury is not a boon.’
[34] Brownlee [2001] HCA 36; (2001) 180 ALR 301, 328.
[35] Ibid 329: ‘Certainly, there was no indication of any objection to such separation by, or for, the applicant’, and: ‘The inescapable inference is therefore that the applicant was content to have the jury separate (as they had done throughout the trial) to their homes.’
[36] Ibid.
[37] Ibid.
[38] See, for example, In Re Colina; Ex parte Torney [1999] HCA 57; (1999) 166 ALR 545, 574 in which Kirby J rejected as fundamentally erroneous an approach to construction of the Australian Constitution ‘as if the task of the Court were to give effect to the opinions, expectations, beliefs and hopes of the founders of the Constitution.’
[39] See Justice Michael Kirby, ‘Constitutional Interpretation and Original Intent’ [2000] MelbULawRw 1; (2000) 24 Melbourne University Law Review 1, 14: ‘In my opinion, a consistent application of the view that the Constitution was set free from its founders in 1901 is the rule that we should apply. That our Constitution belongs to succeeding generations of the Australian people. That it is bound to be read in changing ways as time passes and circumstances change. ... Our Constitution belongs to the 21st century, not to the 19th.’
[40] Brownlee [2001] HCA 36; (2001) 180 ALR 301, 332.
[41] Ibid 327.
[42] The phrase ‘modern democratic society’ is taken from the High Court’s earlier s 80 decision in Cheatle [1993] HCA 44; (1993) 177 CLR 541, 561.
[43] Brownlee [2001] HCA 36; (2001) 180 ALR 301, 336.
[44] See Jeffrey Goldsworthy, ‘Interpreting the Constitution in its Second Century’ [2000] MelbULawRw 27; (2000) 24 Melbourne University Law Review 677. Professor Goldsworthy is highly critical of Justice Kirby’s approach to constitutional interpretation, arguing that ‘[r]adical non-originalism has unacceptable consequences, in terms of democracy, the rule of law and federalism. The original, intended meaning of the Constitution cannot be, as he claims, largely irrelevant to its current interpretation. An attempt to ascertain that meaning must be, at the very least, the starting point for interpretation’ (710).
[45] Brownlee [2001] HCA 36; (2001) 180 ALR 301, 333.
[46] Ibid 336.
[47] Ibid 337.
[48] Ibid.
[49] Ibid 341 (Kirby J).
[50] See the High Court of Australia’s previous decision in Cheatle [1993] HCA 44; (1993) 177 CLR 541. See also Halsbury’s Laws of Australia, Vol. 5, para [90-2233], and The Laws of Australia, Vol. 21, para [12].
[51] See Justice Kirby’s discussion of the concept of ‘representativeness’ in the context of jury trials in Brownlee [2001] HCA 36; (2001) 180 ALR 301, 338-9.
[52] See, in particular, Williams [1970] USSC 150; 399 US 78 (1970); Ballew [1978] USSC 40; 435 US 223 (1978); Apodaca v Oregon [1972] USSC 103; 406 US 404 (1972); Duncan v Louisiana [1968] USSC 152; 391 US 145 at 156 (1968). Justice Kirby’s discussion of these cases is found in Brownlee [2001] HCA 36; (2001) 180 ALR 301, 339-341.
[53] Brownlee [2001] HCA 36; (2001) 180 ALR 301, 339.
[54] Ibid 340.
[55] Refer to the cases listed in n 52 above.
[56] For a full and detailed list of the functional considerations applied by Kirby J, see his Honour’s decision in Brownlee [2001] HCA 36; (2001) 180 ALR 301, 339-40.
[57] Ibid. Then, at 341, Kirby J concludes his discussion of the validity of s 22(a)(i) with the statement that: ‘Whatever may have been the assumptions and ‘intentions’ of the framers of the Constitution in 1900, viewed in terms of the function that ‘trial ... by jury’ in s80 of the Constitution fulfils, the provisions of s22(a)(i) of the Jury Act meet contemporary Australian notions of that mode of trial.’
[58] Ibid 341.
[59] Ibid 342.
[60] Ibid 350.
[61] Ibid 305.
[62] For a discussion of what is meant by referring to s 80 of the Australian Constitution as a rights protective instrument, and for arguments in favour of interpreting s 80 as a rights protective instrument, see Amelia Simpson and Mary Wood, ‘‘A Puny Thing Indeed’- Cheng v The Queen and the Constitutional Right to Trial by Jury’ [2001] FedLawRw 5; (2001) 29 Federal Law Review 95, particularly at 111-113.
[63] [1999] HCA 57; (1999) 166 ALR 545. For a useful discussion of the Re Colina decision see Grant Webster, ‘Trial by Jury? Re Colina; ex parte Torney[2000] DeakinLawRw 11; (2000) 5 Deakin Law Review 217.
[64] Ibid 577-8. See also a similar statement by Kirby J in Cheng [2000] HCA 53; (2000) 175 ALR 338, 398-99: ‘The constitutional guarantee of trial by jury ... reflects a fundamental unwillingness to leave all issues of criminal justice to the state and its officials and a determination to reserve some aspects of criminal proceedings to civil society, as represented by citizen jurors.’
[65] See the comment of the Supreme Court of Canada in R v Biddle [1995] 1 SCR 761, 788: ‘Representativeness 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.’ This comment is reproduced by Kirby J in Brownlee [2001] HCA 36; (2001) 180 ALR 301, 338.
[66] See Brownlee [2001] HCA 36; (2001) 180 ALR 301, 336 (Kirby J).
[67] Ibid 342 (Kirby J).
[68] Quoting from Kirby J in Cheng [2000] HCA 53; (2000) 175 ALR 338, 380.
[69] Brownlee [2001] HCA 36; (2001) 180 ALR 301, 333 (Kirby J).
[70] Ibid 332 (Kirby J).
[71] Ibid 340-1.
[72] See, for example, Kirby’s comments in Cheng [2000] HCA 53; (2000) 175 ALR 338, 397-401. At 401, Kirby J states: ‘Section 80 appears in the Constitution. It has been mocked and evaded in Australia for too long. It is time for this court to give the section a constitutional construction. The analogous decisions on United States constitutional law reinforce this resolve.’
[73] Justice Kirby’s arguments as to why the practice of separation is consistent with the contemporary understanding of ‘trial by jury’ are contained in his judgment in Brownlee [2001] HCA 36; (2001) 180 ALR 301, particularly at 342-3.
[74] Simpson and Wood, above n 62, 113. See also generally Webster, above n 63.
[75] See, for example, Sue v Hill [1999] HCA 30; (1999) 199 CLR 462; also Justice Michael Kirby, ‘Deakin: Popular Sovereignty and the True Foundation of the Australian Constitution[1996] DeakinLawRw 10; (1997) 3 Deakin Law Review 129, and James McConvill and Darryl Smith, ‘Interpretation and Cooperative Federalism: Bond v R from a Constitutional Perspective’ [2001] FedLawRw 4; (2001) 29 Federal Law Review 75, 92-3.


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