Editorial
| DOI | 10.1177/000486908601900201 |
| Published date | 01 June 1986 |
| Date | 01 June 1986 |
AUST &NZ
JOURNAL
OF CRIMINOLOGY (June 1986) 19 (65-66)
EDITORIAL
65
Right to Trial by Jury, the Constitution and the High Court
It is commonplacethat the system of jury trial is now, and has beenfor some time,
under attack from a variety of sources. Certain groups, most notably the police,
have seen what they perceive to be a high acquittal rate in jury trials as a
demonstration of the jury's incompetence; others by contrast have been concerned
at what they perceive as unjust convictions by juries. Still others consider that in
complex lengthy cases, especially those involving technical evidence, the jury is
simply not competent to arrive at reliable and proper decisions. In this controversy
it can be said that judges by and large have been strong supporters of the jury
system.
Against this background of judicial support for the jury, the attitude of the High
Court towards s 80 of the Constitution can only be described as puzzling.
Section 80 states, insofar as is relevant:
The trial on indictment of any offence against any law of the Commonwealth shall be by jury . . .
The High Court has consistently interpreted this provision to mean simply that
if the Commonwealth parliament makes an offence triable on indictment there must
be a jury trial, but there is nothing in s 80 which compels the parliament to make
any offence triable on indictment. Put another way, the Commonwealth could
without contravening s 80 create a summary offence punishable by life
imprisonment. Section 80 in other words imposes no real restrictions upon
Commonwealth legislative power. As Chief Justice Barwick said of s 80: "What
might have been thought to be a great constitutional guarantee has been discovered
to be a mere procedural provision". 1
This interpretation of s 80 has not been without its critics. In a joint judgment in
Lowenstein's case", Justices Dixon and Evatt stated that the present interpretation
of s 80 virtually made a mockery of the Constitution. Very recently in Kingswell's
case", Justice Deane after a carefully researched and comprehensive analysis of s 80
and the High Court decisions dealing with s 80concluded that "one searches in vain,
in judgments favouring the view which would deprive the 'fundamental law' of s 80
of effective operation, for any coherent statement of a line of reasoning leading to
that conclusion'". Justice Deane considered that s 80 required that there be a trial
by jury in cases where a person was charged with an offence against a law of the
Commonwealth, the charge was brought by the State or an agency of the State and
the defendant would, if found guilty, stand convicted of a "serious offence". For
Justice Deane a"serious offence" was one that could not appropriately be dealt with
summarily by justices or a magistrate and a general rule of thumb would be that any
offence for which the maximum punishment was more than one year would be a
"serious offence".
While one might cavil about this suggested limit for "serious offence" (in some
Australian jurisdictions in courts of summary jurisdiction a common maximum
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