Brownlee V the Queen: Method in the Madness
| Published date | 01 June 2001 |
| Author | James Stellios |
| DOI | 10.22145/flr.29.2.8 |
| Date | 01 June 2001 |
| Subject Matter | Comment |
BROWNLEE V THE QUEEN: METHOD IN THE MADNESS
James Stellios*
INTRODUCTION
In Brownlee v The Queen1, the High Court was asked to consider whether the trial of the
applicant pursuant to current legislative standards of trial practice in New South Wales
was compatible with s 80 of the Constitution. Pursuant to provisions of the Jury Act
1977 (NSW)2, the jury was reduced during the course of the trial from twelve jurors to
ten, and during jury deliberation, the jury members were allowed to separate at the
end of each day. The applicant contended before the High Court that such practices
were incompatible with the essential characteristics of a 'trial … by jury' in s 80 of the
Constitution. The Court unanimously rejected that argument.
Brownlee v The Queen provided the High Court with another opportunity to explore
the scope of s 80 of the Constitution. It also provided the Court with another
opportunity to develop an accepted method of constitutional interpretation. Despite
the insistence by some Justices for the adoption of a particular label for constitutional
interpretation, it would appear that, at least as far as the meaning of 'trial … by jury' in
s 80 of the Constitution is concerned, the High Court has adopted an accepted
framework.
FACTS
The applicant was charged with conspiracy to defraud the Commonwealth in
contravention of s 86A of the Crimes Act 1914 (Cth). He was tried on indictment in the
District Court of New South Wales and was convicted. The District Court had
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*
Lecturer, Faculty of Law, Australian National University. The author appeared as counsel
for the Commonwealth of Australia at the hearing of Brownlee v The Queen (2001) 75 ALJR
1180 before the High Court. The views expressed in this Comment are those of the author's.
1
(2001) 75 ALJR 1180.
2
Hereafter referred to as the Jury Act.
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jurisdiction conferred on it to try and convict the applicant under s 68(2) of the Judiciary
Act 1903 (Cth).3 The conferral of jurisdiction is expressed to be subject to s 80 of the
Constitution. In accordance with s 68(1) of the Judiciary Act, the laws of New South
Wales respecting the procedure for the trial and conviction on indictment were to be
applied to the applicant's trial so far as they were applicable.
During the course of the trial, two jurors were discharged. The relevant provision
for the discharge of jurors is contained in s 22 of the Jury Act. Paragraph (b) of that
section provides that in the case of criminal proceedings, where, in the course of any
trial, any member of the jury dies or is discharged by the court (whether as being
through illness incapable of continuing to act or for any other reason), the jury shall be
considered as remaining properly constituted if the number of its members:
(i)
is not reduced below ten,
(ii) is reduced below ten but approval in writing is given to the reduced number
of jurors by or on behalf of both the person prosecuting for the Crown and the
accused or each of the accused, or
(iii) is reduced below ten but not below 8 and the trial has been in progress for at
least 2 months.
The first juror was discharged under s 22 of the Jury Act because continued jury
duty would have clashed with prearranged travel commitments.4 The second juror
was discharged because continued service would have imperilled his business. In
accordance with s 22, the trial continued to conclusion with a jury of ten.
On Wednesday, 3 July 1996, the jury retired to consider its verdict. Section 54(b) of
the Jury Act provides that the jury in criminal proceedings, may, if the court so orders,
be permitted to separate at any time after they retire to consider their verdict. Pursuant
to this section, the jury was allowed by the trial judge to separate after each day's
deliberation and over the weekend of 6 and 7 July.5 The jury returned its unanimous
verdict of guilty on Monday, 8 July 1996. The trial judge then sentenced the applicant
to a term of imprisonment.
The applicant's appeal to the New South Wales Court of Criminal Appeal was
dismissed.6 Grove J (with whom Bruce J and Cooper AJ agreed) held that neither the
reduction of the jury from twelve to ten, nor the separation of the jury after the
commencement of deliberation, was incompatible with s 80 of the Constitution.
The applicant applied to the High Court for special leave to appeal. At the hearing
of the special leave application, Gaudron, Gummow and Hayne JJ referred to the Full
Bench so much of the special leave application as raised the question of whether s 68 of
the Judiciary Act operated at the trial of the applicant to 'pick up' (i) s 22 of the Jury Act
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3 Being a law investing any court of a State with federal jurisdiction: s 77(iii) of the
Constitution.
4
See the judgment of Kirby J in Brownlee v The Queen (2001) 75 ALJR 1180, 1195-6 for a
detailed account of the events leading up to the discharge of the two jurors.
5
Prior to the jury retiring, the jurors were not confined. They were permitted to separate
after each day's hearing – see ibid, 1196 (Kirby J); 1212 (Callinan J).
6
R v Brownlee (1997) 41 NSWLR 139.
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Brownlee v The Queen
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and (ii) s 54(b) of that Act.7 That is, whether s 68 operated to apply those provisions to
the trial of the applicant.
Thus, it was not in issue that the trial of the applicant was a trial on indictment for
the purposes of s 80. Neither was it in issue before the High Court whether the trial
judge had properly exercised the discretionary powers under ss 22 and 54(b) of the
Jury Act.8 The applicant's objection was to the application of ss 22 and 54(b) of the Jury
Act by the trial judge because of their alleged incompatibility with s 80 of the
Constitution.
THE 'PICKING UP' OF THE STATE PROVISIONS
The applicant was tried and convicted of an offence against a law of the
Commonwealth and, therefore, the District Court of New South Wales was exercising
federal jurisdiction conferred upon it by s 68(2) of the Judiciary Act.9 However, the
vesting of that federal jurisdiction in a State court by s 68(2) is expressly subject to s 80
of the Constitution. Further, s 68(1) provides that State laws are 'picked up'10 only so
far as they are applicable. Thus, this was not a case in which s 80 operated to invalidate
a federal or state law.11 If the relevant state provisions were incompatible with s 80 of
the Constitution, then the state laws should not have been 'picked up' and applied in
federal jurisdiction. In short, if ss 22 and 54(b) were incompatible with s 80, the
applicant's trial would not have been held in accordance with the command in s 80 and
the conviction would be liable to be set aside.
DECISION OF THE COURT
Four separate judgments were delivered by the Court. Joint judgments were delivered
by Gleeson CJ and McHugh J, and by Gaudron, Gummow and Hayne JJ. Justices Kirby
and Callinan each delivered a separate judgment.
On the question of separation, the Court unanimously held that s 80 did not
mandate an absolute rule that juries could not separate after the deliberation process
had commenced.12 Their Honours also held unanimously that it was not an imperative
of s 80 that the number of jurors remain at twelve after the trial has commenced.13
Thus, ss 22(a)(i) and 54(b) of the Jury Act were not incompatible with s 80 and were
appropriately 'picked up' by s 68(1) of the Judiciary Act.
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7 See High Court transcript of proceedings, application for special leave to appeal, 11
February 2000.
8
See, for example, Brownlee v The Queen (2001) 75 ALJR 1180, 1184 (Gleeson CJ and McHugh
J).
9
See the discussion by Gaudron, Gummow and Hayne JJ, ibid, 1188. See also Kirby J, ibid,
1197.
10 Ibid, (Gaudron, Gummow and Hayne JJ). See also ibid, (Kirby J).
11 Ibid, 1189 (Gaudron, Gummow and Hayne JJ). See also Kirby J, ibid, 1198. Therefore, there
was no question of s 68 of the Judiciary Act being invalid.
12 Ibid, 1186 (Gleeson CJ and McHugh J); 1193 (Gaudron, Gummow and Hayne JJ); 1211
(Kirby J); 1216 (Callinan J).
13 Ibid, 1185 (Gleeson CJ and McHugh J); 1193-4 (Gaudron, Gummow and Hayne JJ); 1209-10
(Kirby J); 1216 (Callinan J).
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APPROACH TO CONSTITUTIONAL INTERPRETATION AND TO S 80
OF THE CONSTITUTION
The Perennial Tension
The application of s 80 of the Constitution to the facts in this case provided another
opportunity for further debate on the proper method of constitutional interpretation.
Brownlee v The Queen again raised the perennial tension between the view that the
Constitution is to be interpreted as a statute,14 and the recognition that the
Constitution is a special statute intended to endure and 'apply to the varying
conditions which the development of our community must involve'.15 While this
tension has existed since the establishment of the Court, very few High Court Justices
have been prepared to engage in the debate of the proper judicial method for
constitutional interpretation. Certainly,...
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