THE JURY IN FEDERAL JURISDICTION­CONSTITUTIONAL ASPECTS

By C. K. COMANS*

INTRODUCTORY

The only mention of juries in the Commonwealth Constitution is insection 80, which provides (inter alia) that "The trial on indictmentof any offence against any law of the Commonwealth shall be by jury".Apart from cases on the question what is meant by " trial on indictment",there is not a great deal of authority on the constitutional questionsthat arise in relation to juries, civil and criminal, in federal jurisdiction.

It is not proposed in this paper to examine in any detail the meaningof "trial on indictment". It is now, of course, well settled that thesection does not' prevent the Parliament from making any offence triableotherwise than on indictment and hence triable without a jury.' It isnot so clear, however, precisely what forms of prosecution will be heldto amount to indictment, and there may still be room for the Courtto hold that an "official" prosecution in a superior court may giverise to a trial on indictment even though proceedings do not commencewith an instrument of the kind traditionally' covered by the term" indictment". Sachter v. Attorney-Genera12 however indicates that thepossibility of such a decision is not great. For example it is submittedthat proceedings in the Commonwealth Industrial Court under section 68of the Trade Practices Act 1965-1967 (Cth) instituted, with the consentof the Attorney-General, by summons on information in accordance withthat section, section 111 of the Conciliation and Arbitration Act 1904­1967 (Cth) and regulation 76 (2) of the Conciliation and ArbitrationRegulations, would not come within the scope of section 80 even thoughthe proceedings are in a superior court and imprisonment may result.

THE JURY AND JUDICIAL POWER

Federal judicial power may be exercised only by federal courts orby State courts invested with federal jurisdiction. The question ariseswhether, where a court tries a case with a jury, the jury is an integralpart of the court for this purpose. If the answer is in the negative, thenthe use of juries in federal jurisdiction would require an exception to

* LL.M. (Melb.) First Assistant Parliamentary Draftsman, Commonwealth ofAustralia.

1 R. v. Federal Court of Bankruptcy; Ex parte Lowenstein (1937-1938) 59 C.L.R..556. In Sachter v. Attorney-General (Cth) (1954) 94 C.L.R. 86, the Court declined tOIallow the correctness of Lowenstein's case to be canvassed. See also Spratt v. Hermes;(1965) 114 C.L.R. 226,244 per Barwick C.J.

2 (1954) 94 C.L.R. 86.51

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the doctrine that only a court can exercise judicial power, unless the viewis taken that the jury does not itself exercise judicial power. It is submittedthat a jury is not an integral part of the court. In Le M esurier v. Connor,3

Isaacs J. said that a court consists of the judges, and them only. InRe Bell,4 Mansfield S.P.J. expressly held, in a case involving the validityof the investing of a State court with federal jurisdiction, that the courtconsists of the judge and does not include the jury. The language ofstatutes by which courts are created is consistent with the view that thecourt consists of the judges only. For example section 2 of the SupremeCourt of Judicature (Consolidation) Act 1925 of the United Kin6domprovides that "The High Court shall be constituted of the foLo\vingJudges, that is to say ... ". Section 7 of the Supreme Court Act 1958of Victoria provides that "The Court shall consist of and be held by andbefore a Judge or Judges not exceeding fourteen in number ... ". Theprovisions of the Constitution itself are consistent with the view that acourt con~'i~ts of the judges only. Thus section 71 provides that "TheHigh Court shall consist of a Chief Justice and so many other Justices, notless than twc, as the Parliament prescribes", and section 79 provides thatthe federal jurisdiction of any court may be exercised by such number ofjudges as the Parliament prescribes. There is one recent authority to thecontrary. In Hayes v. The Queens the question arose, in relation to acriminal trial in the Northern Territory, whether a provision of the Inter­pretation Ordinance 1931-1959 (N.T.) had the effect of a 1plying section19 (2.) of the Crimes Act 1914-1960 (Cth) (dealing WIth cumulativesentences) to the proceedings. The provision of the Interpretation Ordin­ance str ted that the provision of the Crimes Act "shall not apply in relationto an Crdinance ... unless the Court before which the person is convictedis constituted by a Judge, a Stipendiary Magistrate or a SpecialMagistrate". The High Court held that the provision of the Crimes Actdid not apply because "the Court before which the applicant wasconvicted was constituted not by a judge but by a judge and jury".6It is submitted that, if this means that the jury was an integral part of thecourt, it is contrary to principle and authority.

Even if, as has been submitted, the jury is not part of the court, itfollows from the express provision for juries in section 80 of the Constitu­tion that, at least in criminal cases, the use of juries in federal jurisdiction

3 (1929) 42 C.L.R. 481, 511.4 1954 St.R.Qd. 159.5 (1967) 41 A.L.J.R. 137. The view of the Court appears to be an example of

unnecessarily narrow interpretation, which did violence to the probable intention ofthe legislature. Surely the policy disclosed was that the application of the section ofthe Crimes Act 1914-1960 (Cth) should not be entrusted to honorary justices of thepeace; there seems no reason to think that the legislature would not have considereda judge sitting with a jury equally competent to apply the section as a judge sittingwithout a jury.

6 Ibid. 138.

JUNE 1968] The Jury in Federal Jurisdiction 53

is possible, and it can hardly be doubted that the framers of theConstitution intended to permit the use of juries in civil cases as well.In order to reconcile the use of civil juries with established principlesconfining the exercise of judicial power strictly to courts, it may beargued that the judgment of the court itself i~ the binding and authoritativedetermination of the issues and, moreover, that the judgment does notnecessarily follow automatically from the finding of the jury. Such casesas the Rola case7 may assist the argument. But whatever the difficultiesin theory may be, no doubt resort would, if necessary, be had to thetraditional use of juries at the time of Federation to support the viewthat their use in civil cases in federal jurisdiction is permitted by theConstitution.

LEGISLATIVE POWER WITH RESPECT TO JURIES

(a) General

Once it is accepted that criminal and civil juries may be used in federaljurisdiction, it must follow that the Parliament has some legislativepowers with respect to juries. These powers must extend, in criminalcases, to the necessary machinery provisions for the composition andfunctioning of juries in federal courts. It will be seen later that certainlimits on this power are implicit in section 80 of the Constitution. Asregards civil juries, the powers must extend to prescribing the cases inwhich juries shall or may be used, as well as the necessary machineryprovisions for juries in federal courts. In relation to State courts exercisingfederal jurisdiction, whether in criminal or civil cases, it does notnecessarily follow that the powers of the Parliament are as extensive asin the case of federal courts. It may be argued that, whilst Parliamentmay prescribe the offences that are to be indictable and (perhaps) thecivil cases in which a jury shall or may be used, it must choose a Statecourt which functions under State law with a jury and accept the applica­tion of the State law regulating the composition and functioning ofjuries in respect of that court. Before considering further the sourceand extent of the Parliament's powers with respect to juries, it may beuseful to outline the kind of provision that has been made by the Parlia­ment.

(b) Legislative provisions made

Sections 68 and 79 of the Judiciary Act 1903-1965 (Cth) provide forthe application of State laws by courts exercising federal jurisdictionin the States and, subject to more specific provisions made elsewhere,these sections appear to extend to the laws relating to juries. Section 68deals with criminal cases and section 79 is expressed in general terms.These sections apply both to federal courts and State courts invested withfederal jurisdiction.

7 Rola Co. (Australia) Pty Ltd v. The Commonwealth (1944) 69 C.L.R. 185.

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A number of specific provisions relating to juries have been made andthese are, in general, applicable both to federal courts and State courtsexercising federal jurisdiction. These include provisions:

(a) enabling the court to direct the trial of a question of fact beforea jury (Bankruptcy Act 1966 (Cth) section 30 (3.)) ;

(b) prescribing rules for determining whether or not there shallbe a trial with a jury (Commonwealth Motor Vehicles (Liability)Act 1959 (Cth) section 6) ;

(c) for trial without a jury (Matrimonial Causes Act 1959-1967(Cth) section 119) ;

(d) regulating the composition of a jury where, in accordance withsection 68 of the Judiciary Act 1903-1965 (Cth), there wouldbe a jury (Australian Industries Preservation Act 1906-1950(Cth) section 12);

(e) specifying, in cases where, in accordance with section 79 ofthe Judiciary Act 1903-1965 (Cth), there is a jury, the particularissues that are to be tried by the jury (Civil Aviation (Carriers'Liability) Act 1959-1962 (Cth), sections 12 (9.) and 35 (9.)).

As regards trials on indictment in the High Court, section 15A of theHigh Court Procedure Act 1903-1950 (Cth) provides that such a trialshall be by a justice with a jury and section 15B (1.) makes provisionfor the application, in such a trial held in a State, of the laws of theState relating to juries, including laws relating to " the number of jurors"and" the disagreement of jurors". (The question whether this provisionis consistent with section 80 will be discussed later). No provision appearsto exist as to the law relating to juries that is to apply if such a trial isheld in a Territory. As regards civil cases in the High Court, sections 12to 15 of the High Court Procedure Act 1903-1950 (Cth) provide for thetrial of a suit or of an issue of fact in a suit either with or without a juryand, where the trial is held in a State, for the application of the laws,of the State relating to juries. Again no provision appears to be madeas to the law relating to juries that is to apply if such a trial is held in aTerritory, nor is any provision made as to the law relating to juries thatis to apply to a civil or criminal trial in a federal court other than theHigh Court that is held in a Territory.

(c) Legislative Power-Federal Courts

On the basis that the jury is not part of the court and does not exercisejudicial power, legislation with respect to the constitution and use ofjuries may be regarded as analogous to legislation for the regulationof procedure. There is authority8 for the view that the power to regulateprocedure in federal courts derives from the portion of section 51 (xxxix.)

8 Infra 55.

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that relates to matters incidental to the execution of powers vested bythe Constitution in the Federal Judicature.

Another possible view is that the legislative power to invest a court(State or federal) with jurisdiction, either in itself or with the aid ofsection 51 (xxxix.), gives rise to a power to regulate procedure, but thewriter is not aware of any case in which this view has been relied onand, even if sound, it would not assist in regard to the original jurisdictionof the High Court under section 75. Other possible sources of power arethe various paragraphs of section 51 under which are made the lawsthat give rise to the litigation. For example section 30 (3.) of the Bank­ruptcy Act 1966 (Cth) may itself be regarded as a law with respect tobankruptcy.

The view that the power to regulate procedure derives from theincidental power in its application in relation to the powers of the FederalJudicature is supported by Griffin v. South Australia9 and Commonwealthv. Limerick Steamship Co. Ltd and Kidman. 10 However, it has not yetbeen clearly decided that the power of the Parliament under section51 (xxxix.) to make laws with respect to matters incidental to the executionof any power "vested by this Constitution" in the Federal Judicatureapplies in relation to powers vested in courts (including the High Court)by statutes made pursuant to the Constitution. In Griffin's caseIsaacs A.C.J. expressed the view that the power does so extend, andthis view was repeated shortly afterwards by Isaacs and Rich JJ. in theLimerick case in the context of State courts exercising federal jurisdiction.However, in Le Mesurier v. Connor 11 Knox C.J. and Rich and Dixon JJ.referred to the question as being an open one, and in Lowenstein's case12

Dixon and Evatt JJ. again referred to the question as undecided. InThe Queen Victoria Memorial Hospital v. Thornton13 the Court, inreference to State courts invested (by statute) with federal jurisdiction,said:

On the assumption that section 51 (xxxix.) applies to federaljurisdiction vested in State courts it would doubtless give theParliament power to legislate in respect of some matters which areincidental to the exercise of that jurisdiction.

In the Boilermakers' Case14 Dixon C.J. and McTiernan, Fullagar andKitto JJ. referred to the incidental power in terms that appear to thewriter to have treated it as extending to all federal jurisdiction. It seemslikely that, if the question were squarely raised, the court would hold

9 (1924) 35 C.L.R. 200, especially per Isaacs A.C.J. 205.10 (1924) 35 C.L.R. 69, 105.11 (1929) 42 C.L.R. 481, 498.12 (1937-1938) 59 C.L.R. 556, 587.13 (1953) 87 C.L.R. 144, 151.14 R. v. Kirby and Others,· Ex parte Boilermakers' Society of Australia (1955-1956)

94 C.L.R. 254, 269-270.

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that powers vested by statute in a court are vested (indirectly) by theConstitution for the purposes of section 51 (xxxix.). The opposite viewwould appear to give an inconvenient and anomalous result and doesnot seem to be compelled by the words of the paragraph.

(d) State Courts invested with Federal Jurisdiction

Apart from the federal courts, the only bodies that can be authorizedto exercise federal jurisdiction are, of course, courts of the States, andthe general investing of jurisdiction by section 39 of the Judiciary Act1903-1965 (Cth) refers to "The several Courts of the States". It hasalready been submitted that a jury is never part of a court of a State,so that the mere investing of a State court with jurisdiction does notattract the State jury system. However, sections 68 and 79 of the JudiciaryAct appear to provide the basis of the long-standing practice whereby,in the absence of provision to the contrary in Commonwealth legislation,State courts exercising federal jurisdiction employ juries in cases in which,and in the manner in which, they would do so if they were exercisingState jurisdiction. In Green v. The Commonwealth15 a New South WalesDistrict Court had to decide whether, in an " appeal" to the Court underthe Commonwealth Employees' Compensation Act 1930-1964 (Cth),the plaintiff was entitled to have the proceedings heard by a jury. TheDistrict Courts Act 1912-1965 (N.S.W.) provided that in all actions wherethe amount claimed exceeded £20 the plaintiff or the defendant mightrequire a jury or the judge might order a jury to be summoned. TheCourt treated this provision of the District Courts Act as being applicableby virtue of section 79 of the Judiciary Act but held that, as no specificamount was claimed in the proceedings, the appellant was not entitledto a jury.

The question arises, however, whether the Parliament can validlyprescribe and regulate the use or non-use ofjuries by State courts exercisingfederal jurisdiction, having regard to the principles enunciated inLe Mesurier v. Connor.16 In that case the majority judges (Knox C.J.,Rich and Dixon JJ.), said, after referring to sections 77 and 79 of theConstitution:

It is no less certain that these general powers cannot be inter­preted as authorizing legislation dealing with the organization ofState Courts. The power conferred by sec. 77 (iii.) is expressed interms which confine it to making laws investing State Courts withFederal jurisdiction. Like all other grants of legislative powerthis carries with it whatever is necessary to give effect to the poweritself. But the power is, to confer additional judicial authorityupon a Court fully established by or under another legislature.Such a power is exercised and its purpose is achieved when the

15 (1965) 1 D.C.R. (N.S.W.) 189; 1967 A.L.M.D. (May) 45.16 (1929) 42 C.L.R. 481.

JUNE 1968] The Jury in Federal Jurisdiction 57

Parliament has chosen an existing Court and has bestowed uponit part of the judicial power belonging to the Commonwealth.To affect or alter the constitution of the Court itself or of theorganization through which its jurisdiction and powers are exercisedis to go outside the limits of the power conferred and to seek toachieve a further object, namely, the regulation or establishmentof the instrument or organ of Government in which judicial poweris invested, an object for which the Constitution provides anothermeans, the creation of Federal Courts. Sec. 77 (iii.), therefore,does not enable the Parliament to make a Commonwealth officer afunctionary of a State Court and authorize him to act on its behalfand administer part of its jurisdiction.17

It has already been submitted that a provision for the use or non-useof a jury does not affect the constitution of the court itself, but it mightwell be argued that such a provision affects or alters the constitutionof the organization through which the jurisdiction and powers of thecourt are exercised.

The matter arose in th~ Supreme Court of Queensland, exercisingjurisdiction under the Bankruptcy Act 1924-1950 (Cth), in the case ofRe Bell.18 In that case it was contended that section 217 of the Bank­ruptcy Act, providing for the trial of certain offences summarily by ajudge sitting without a jury, was not valid in relation to the SupremeCourt of Queensland. It was contended that as a judge of the SupremeCourt has no power under State law to try summarily any offencesagainst State law and can only try such offences sitting with a jury, thesection was an attempt to alter the constitution or structure of the court.Mansfield S.P.J. rejected this contention on the ground that the courtconsists of the judges only and that the section does not in any wayaffect the structure or constitution of the court. He referred, of course,to Le Mesurier v. Connor, but did not discuss the question whether theAct affected the organization by which the jurisdiction and powers ofthe court were exercised, as distinct from the constitution of the courtitself. His Honour may have taken the view that a jury is not, in therelevant sense, a part of the organization through which the jurisdictionand powers of the court are exercised. The registrar referred to inLe Mesurier v. Connor was to be part of the permanent organizationattached to, and used by, the court, whereas a jury is an ad hoc instrumentforming an element in the procedure, in some cases only, rather thanin the organization of the court itself. An appeal against the decisionin Re Bell was dismissed by the High Court, but unfortunately the decisionis not reported.

If the decision in Re Bell is correct, the principle of Le Mesurier v.Connor would not seem to be a constitutional objection to any of theprovisions referred to under heading (b) above. If the exclusion of a

17 Ibid. 496-497. (Italics supplied).8 1954 St.R.Qd. 159.

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jury provided for in State jurisdiction does not affect the constitution ororganization of the court, then neither does the addition of a jury nor achange in the composition of a jury.

There remains the question of the source of the legislative power toenact, as regards State courts, provisions in relation to the compositionand use of juries. As in the case of federal courts, paragraph (xxxix.)of section 51 appears to be the appropriate power. In so far as thatparagraph relates to matters incidental to the execution of the powersof the Federal Judicature, it has not been clearly decided that Statecourts invested with federal jurisdiction are included in "the FederalJudicature". In the Limerick case19 Isaacs and Rich JJ. expressly statedthat such courts are " part of the system of Federal Judicature" and thatparagraph (xxxix.) applies in relation to their powers. But in Le Mesurierv. Connor,20 and again in Lowenstein's case,21 the question was referredto as undecided. In The Queen Victoria Memorial Hospital v. Thorntonin the passage already quoted,22 it was regarded at least as a possibleassumption that the incidental power extends in relation to State courtsexercising federal jurisdiction. As already stated, in the Boilermakers'Case23 language was used in the High Court that appears to the writerto support the view that paragraph (xxxix.) applies in relation to allfederal jurisdiction.

It is established that, if a State court may be constituted in differentways, the Commonwealth can limit the exercise of federal jurisdictionto the court constituted in a particular one of those ways, even if thecourt would be otherwise constituted for a similar matter in Statejurisdiction24 and this principle could have furnished an alternativeground for the decision in Re Bell.25 But these cases do not seem to berelevant in relation to juries if it be true that the jury is not part of theconstitution of the court. Moreover, even if the principle in these caseswere applicable, it would not enable the Commonwealth to provide fora jury in a court that never functions with a jury under State law, or tocontrol the composition of the jury.

In Musgrove v. McDonald26 an action in federal jurisdiction in theSupreme Court of South Australia was, in accordance with SouthAustralian law, tried, with a jury, in the Circuit Court, which appearsto have been a distinct court. The Circuit Court was presided over by

19 (1924) 35 C.L.R. 69, 105.20 (1929) 42 C.L.R. 481.21 (1937-1938) 59 C.L.R. 556.22 Supra, n. 13.23 (1955-1956) 94 C.L.R. 254.24 Troy v. Wrigglesworth (1919) 26 C.L.R. 305; Lorenzo v. Carey (1921) 29 C.L.R.

243; and R. v. Ray; Ex parte Smith [1948J S.A.S.R. 216.25 1954 St.R.Qd. 159.26 (1905) 3 C.L.R. 132.

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a judge of the Supreme Court, and he proceeded to enter judgment,but he appears to have done this in his capacity as a judge of the SupremeCourt. The following was said in argument :

It happened that Gordon J., who tried the case, was a SupremeCourt Judge, but it might have been tried by any practitioner ofnot less than seven years' standing. There is no judgment of theCircuit Court here, but only a verdict which stands until set asidein the proper way.27

If such a case occurred at the present time, it would be clear that theCircuit Court could not validly try the issues of fact unless, in doing so,it was exercising judicial power in the constitutional sense.28 If it betrue that there was no judgment of the Circuit Court but only a verdictwhich was given effect to in the Supreme Court, it may be doubtedwhether the Circuit Court did exercise judicial power. As far as thewriter is aware, such a procedure would not now be open under thelaw of any State.

SECTION 80- ESSENTIALS OF "TRIAL BY JURY"

The provisions made by the Parliament with respect to criminal juries(whether in federal courts or State courts) must be consistent with theessential features of "trial by jury", as required by section 80. Whatthese essential features are will now be considered.

Quick and Garran29 refer to the provision of Article III of the Constitu­tion of the United States that" The trial of all Crimes, except in Casesof Impeachment, shall be by Jury". Also relevant to the position in theUnited States, although not referred to by Quick and Garran, is theSixth Amendment, which provides, inter alia, that "In all criminalprosecutions, the accused shall enjoy the right to a speedy and publictrial, by an impartial jury of the State and the district wherein the crimeshall have been committed". Quick and Garran, on the authority ofAmerican cases, state that section 80 " guarantees not merely the formof trial by jury, but all the substantial elements of trial by jury, as theyexist at common law".30 These essential elements include, accordingto the American cases cited by Quick and Garran, trial by a jury oftwelve men and a unanimous verdict. Since Quick and Garran wrote,the United States Supreme Court has re-affirmed these principles inPatton v. United States. 31 In that case the Court also held that a legislativeprovision for the continuance of a trial by eleven jurors if onejuror becomes incapacitated could not be upheld simply on the ground

27 Ibid. 136.28 The Queen Victoria Memorial Hospital v. Thornton (1953) 87 C.L.R. 144.29 Quick and Garran, The Annotated Constitution of the Australian Commonwealth

(1901) 807.30 Ibid. 810.31 (1930) 281 U.S. 276.

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that the infraction of the constitutional requirement was unimportant.However, the Court did hold that the provisions of the Constitutionrelating to trial by jury confer a right upon the accused which he canforego at his election. This applies, the Court held, both to a completewaiver of trial by jury and to a waiver of the right to have twelve juro(s.The Court further held that, before a waiver of a constitutional juryin a criminal case can become effective, the consent of governmentcounsel and the sanction of the court must be had, in addition to theexpress and intelligent consent of the defendant, and that the duty ofthe trial court in this regard is to be discharged with a sound and adviseddiscretion.

United States doctrine seems to be that not every legislative departurefrom the common law rules relating to juries is an infringement of theConstitution: it is only those common law principles which the courtregards as "essential" that are sacrosanct. Thus in United States v.Wood,32 the question was whether employees of the Government couldsit on a criminal jury and the Court said that :

The ultimate question is not whether Congress has changed acommon law rule but whether, in reason, an absolute disqualifica­tion of governmental employees to serve as jurors in criminalcases is essential to the impartiality of the jury.33

The Court also pointed out that, in Patton's case, the Court concededthat, at common law, the accused was not permitted to waive trial byjury, but nevertheless held valid the statute permitting such waiver,saying that" the rule of the common law, whether exclusive or subjectto exceptions, was justified by conditions which no longer exist".34And in Wood's case, the Supreme Court approved decisions to the effectthat the Sixth Amendment does not preclude legislation making womenqualified to serve as jurors in criminal prosecutions although that wasnot permitted at common law. The same appears to be the position underArticle III. (The use of the expression " twelve men " instead of " twelvepersons" in Patton's case was probably inadvertent).

It is not yet clear whether the High Court will, in interpreting section 80,follow the decisions of the Supreme Court of the United States as to theessential elements of trial by jury, but there are two High Court casesthat indicate that the Court does regard trial by jury as having certainessentials. The first of these cases is Huddart Parker & Co. Pty Ltd v.Moorehead,35 in which the Court held that legislative provisions underwhich a suspected person could be compulsorily examined by an officer,and under which his answers were admissible in evidence against him

32 (1936) 299 U.S. 123.33 Ibid. 147-148.34 (1930) 281 U.S. 276, 306.35 (1908-1909) 8 C.L.R. 330.

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on his trial on indictment, were not inconsistent with section 80. TheCourt thought that the provisions related to evidence only and not tothe essentials of trial by jury. O'Connor J. made a positive statementof the essential features of trial by jury in the following terms:

What are the essential features of a trial by jury? I adopt thefollowing from the definition approved of by Mr. Justice Miller inhis lecture on the Constitution of the United States (1893 ed. atp. 511). It is the method of trial in which laymen selected by lotascertain under the guidance of a Judge the truth in questions offact arising either in a civil litigation or in a criminal process.36

If his Honour intended this to be an exhaustive definition thenit would appear that he did not regard the presence of twelve jurorsand a unanimous verdict as essential features, but there is no indicationthat he was addressing his mind to these questions. Isaacs J. said:

Sec. 80 of the Constitution retains, in respect of trials on indict­ment for Commonwealth offences, the provisions of Magna Chartathat the issue shall be determined "per legale judicium pariumsuorum," so jealously preserved in the American Constitution.

The whole meaning and essence of the requirement is that ajury, and not a judicial officer, shall pronounce upon the guilt orinnocence of the accused.37

Although his Honour did not refer to the question of the number ofjurors or of the necessity for a unanimous verdict, his reference to theAmerican Constitution might be thought to indicate his readiness tofollow the decisions of the American Court.

The other Australian case is R. v. Snow38 in which Griffith C.J., GavanDuffy and Rich JJ. and Powers J. expressed the opinion (probablyobiter), that section 80 precludes the High Court from setting aside, onan appeal, a verdict of not guilty, even though the verdict was directedby the trial judge. Griffith C.J. expressed the view that section 80 " oughtprima facie to be construed as an adoption of the institution of " trialby jury" with all that was connoted by that phrase in constitutionallaw and in the common law of England ".39 He was unable to accept theargument that section 80 relates merely to procedure and has nothing tosay to the substantial protection afforded by a verdict of acquittal.Gavan Duffy and Rich JJ. said that:

The truth is that, in saying that the trial of offences shall be byjury, Parliament [i.e. the British Parliament] has said that the personstried shall have all the benefits incidental to a trial by jury, and oneof them is that a verdict of "not guilty" shall be final and con­clusive on the issue the jury are sworn to try, the issue of "guilty ornot guilty".40

36 Ibid. 375.37 Ibid. 385-386.38 (1915) 20 C.L.R. 315.39 Ibid. 323.40 Ibid. 365.

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Powers J. said:

The right to "trial by jury" has been specially preserved by theConstitution to British subjects within the Commonwealth (seesec. 80), and heretofore in all British communities, except Canada,a verdict of not guilty by a jury in a criminal trial has in every casebeen accepted as conclusive, although no Statute law prevents anappeal from judgments of acquitta1.41

Isaacs J., who dissented, agreed that the Constitution entrusts the decisionon the evidence to the jury, but thought that leave to appeal should begiven because, in the case concerned, the Judge was alleged to havewrongly directed the jury to bring in a verdict of " not guilty" and soto have prevented the jury from performing its constitutional functions.Higgins J., who also dissented, took a view similar to that of Isaacs J.

It is clear, therefore, that the High Court will regard trial by jury ashaving certain essential features, but it remains to be seen whether itwill regard those features as including a jury of twelve persons and aunanimous verdict. However, it is relevant to mention that, under thelaw of England at the time of the enactment of the Constitution, therewas no provision for majority verdicts in criminal cases and moreover,if a juror died or was taken ill, a fresh jury had to be sworn.42 The writerhas not ascertained what was the position under the law of the Australiancolonies, but it seems likely that it was the same.

At the present time, under provisions of the law of South Australia andTasmania, majority verdicts may be accepted in criminal cases in certaincircumstances. It seems open to grave doubt whether these provisionscan validly be applied in respect of offences tried in federal jurisdiction.

The laws of some at least of the States also provide that, in certaincircumstances, criminal trials may continue notwithstanding that thenumber of jurors is reduced below twelve. In New South Wales, this issubject to consent in writing by the accused.43

However, in Victoria the consent of the accused does not appear tobe required.44 If the American cases are followed by the High Court,the New South Wales provision could be applied in relation to offencesagainst laws of the Commonwealth but the Victorian provision couldnot be applied in full. Whether the Victorian provision could validlybe applied if the accused in fact consented is a moot point. An affirmativeanswer would seem to require the reading of a qualification into section 68of the Judiciary Act, but such a reading may be assisted by the fact thatthe section requires State laws to be applied only "so far as they areapplicable".

41 Ibid. 374-375.42 Halsbury's Laws of England (1st ed. 1911) v. 18, 254, 258.43 Jury Act 1912-1965 (N.S.W.), section 27A.44 Juries Act 1958 (Vic.), section 44.

JUNE 1968] The Jury in Federal Jurisdiction 63

Huddart Parker & Co. Pty Ltd v. Moorehead45 is authority that sec­tion 80 does not preclude alteration of the common law rules regardingevidence, but it may be that there are limits to the extent to whichParliament can go in this regard. For example it might be held thatprovision for conclusive proof of a fact by the certificate of an officeror an averment, or a complete reversal of the burden of proof of guilt,was inconsistent with the essential features of trial by jury. An attemptto produce an almost inevitable verdict of guilty by legislation of thekind condemned by the Privy Council in Liyanage v. The Queen46 mightalso infringe section 80.

Quick and Garran47 express the view that section 80 is only intendedto apply to trials in federal courts and courts exercising federal jurisdiction,and not to extend to the courts of the States in those cases in whichthey may have a concurrent (State) jurisdiction to try offences againstthe laws of the Commonwealth. The correctness of this view seems opento doubt, but the question is now academic, as any such State jurisdictionthat State courts may have had has been removed by section 39 (1.)of the Judiciary Act, considered in conjunction with section 30 (c).

As regards criminal trials in the courts of Commonwealth Territories,it now seems clear that section 80 has no application.48 This appearsto be so whether the offence is against a local law of the Territory oris against a law of the Commonwealth of general application extendingto the Territory. The law of the Northern Territory provides for majorityverdicts in certain circumstances, and consideration has been given tomaking similar provision in the law of the Australian Capital Territory.

45 (1908-1909) 8 C.L.R. 330.46 [1966] 2 W.L.R. 682.47 Quick and Garran, Ope cit. 808.48 Spratt v. Hermes (1965) 114 C.L.R. 226 affirming R. v. Bernasconi (1915) 19

C.L.R.629.