#7322 - Express Guarantees - Federal Constitutional Law

R v Federal Court of Bankruptcy; Ex parte Lowenstein (1938) 59 CLR 556

Facts: IN a famous joint dissent, Dixon and Evatt J argued for a wider interpretation of s 80. The case centered around s 217 of the Bankruptcy Act that provided that one charged under the Act could be tried summarily and imprisoned for up to 6 years.

Dixon and Evatt JJ started by recognizing that while the Australia Constitution (unlike the USC) does not have its guiding purpose as framing rights, there are a few rights it does recognize – and a s80 is one of them.

1. While in the USC the difficulty arose from the words “all crimes”, the formula in AU doesn’t lie in “any offence” but rather “trial on indictment’

   1. Their honours considered the dominant approach and regarded this as a “queer intention to ascribe to the constitution” that rather than to protect people by trial by jury for serious crimes but rather to make indictments a tool for legislatures to decide cases that they think fit to authorize courts to pass judgment on guilt/innocence

   2. Relying on the principle of ‘high authority’ that the “constitution is not to be mocked” they regarded the purported effect – that substitution of some other form of charge other than indictment could avoid the section – as a mockery

2. They then postulated, even if this was the case, what is meant by indictment?
   To answer this their honours said it was necessary to look for the substantial elements common to recognized forms of procedure making up the conception of prosecution on indictment. These were:

   1. That some authority constituted under the law to represent the public interest for the purpose, took the responsibility of the step which put the accused on trial (grand jury, coroner’s jury etc.)

   2. The liability of the offender to a term of imprisonment or some graver form of punishment

The mentioned, declaring the law invalid, “to treat such a constitutional provision as producing no substantial effect seems rather to defeat than to ascertain its intention”

Latham CJ and McTiernan J held on the basis of R v Archdall (where Higgins J affirmed the old view) that s 80 had no effective meaning.

Kingswell v The Queen (1985) 159 CLR 264

Facts: Murphy J’s argument was taken up and delivered by a powerful dissenting judgment by Deane J. The joint judgment of Gibbs CJ, Wilson and Dawson JJ affirmed the narrow interpretation of s 80.

The Customs Act imposed forfeitures and penalties on customs offences. S 233B set out offences which depended on a finding by a judge under s 235 as to whether a “commercial quantity” of narcotics was involved – if so a maximum sentence up to life imprisonment could be imposed.

Gibbs CJ, Wilson and Dawson JJ noted that s 80 had no effect – if it was a triable by indictment there would be a trial by jury and the provisions don’t contradict. Further it says nothing about the manner in which an offence is defined – the law supplies this. The section only applies in trials on indictment and this is for parliament to decide – this approach has been criticized but it has been settled.

Deane J expressed his view that s 80 was not the ‘mere expression for one form of criminal trial’ but rather it reflected the ‘deep-seated conviction of free men and women about the way in which justice should be administered in criminal cases’. This conviction is rooted in the history and function of the common law as a “bulwark against the tyranny of arbitrary punishment”

• His honour noted the dominant view and stated two alternatives:

  • If the dominant view be correct then there can be little objection to a narrow construction

  • If the section is to be seen as embodying a fundamental constitutional guarantee then the principles of legal interpretation applicable to such a guarantee requiring it be broadly

His honour then noted the history of trial by jury and its characterisation by the 14^th century as an “ancient right”, the rationale of which was “the protection of the citizen against those who customarily exercise the authority of government” (legislators who seek to undermine it, administrators who seek to subvert the process of law and corrupt/over-zealous judge)

He then went on to consider the practical benefits of juries:

• Systems of criminal law aren’t attuned to the needs of the people unless comprehensible by both the accused and the public – having a jury forces lawyers to argue their cases/evidence in a manner understood by laymen

• Further there is a well-known tendency of jurors to side with fellow-citizens being denied a “fair go” and ensure observance of consideration/respect which ordinary notions of fair play entitled accused or witnesses

He also considered its social function – protecting the administration of justice and the accused from the rash judgment and prejudices of the community. Generally the community will be much more willing to accept guilty verdicts from a jury than a judge or magistrate.

He then considered identifiable weaknesses:

• Unavoidably there will be cases where jury’s will get it wrong and constitute a miscarriage of justice

• Furthermore there is force in the argument that juries of ordinary men/women lack knowledge and experience to responsibly judge they type of scientific disputes that arise in the course of criminal trials on detailed technical questions (e.g. white collar/computer crime)

  • But then much is to be said about the introduction of a system of “court witnesses” to guide a lay jury in such areas

• The media is also a concern and has led to problems concerning the extent to which public freedom of discussion should be restrained to preserve impartiality of jurors

Notwithstanding all these potential weaknesses, however, “the institution of trial by jury remains as important a safeguard of the liberties of free men and women as it ever was and, if it be effective, the constitutional guarantee of jury trial will remain as much a fundamental law of the Constitution as It was at the time when the Constitution was adopted…”

He then went on to consider what is meant by indictment:

• His honour preferred a criterion different to that of Dixon and Evatt JJ – namely the guarantee would apply in respect of “any trial of an accused charged with an offence….and the accused will, if found guilty, stand convicted of a “serious offence”” (conviction of which will expose him to grave punishment – this boundary will ordinarily be identified by reference to whether it is punishable by imprisonment for more than one year.

Brennan J also dissented but on the wider question as to what constitutes an “offence”

Cheung v The Queen (2000) 203 CLR 248

Facts: Once again the issue of trial by jury was revisited. Guadron and Kirby J in dissent expressed favour for Brennan J’s view which the majority rejected. Gleeson, Gummow and Hayne JJ refused to reopen Kingswell and were supportive of their interpretation of s 80. McHugh and Callinan J went further and explicitly reaffirmed the majority in Kingswell and rejected Deane J’s judgment.

McHugh J started by noting that when the section was read in light of its USC counterpart, the drafts and the Constitutional conventions it was clear that the words of s 80 were deliberately chosen to give Parliament the capacity to avoid trial by jury when it wished to do so.

• Text, history and purpose point to the same conclusion – the majority in Kingswell were right, s 80 applies to trial on indictment and Parliament defines whether something is to be tried by indictment

  • Despite this probably not going well with civil libertarians it is what our Constitution mandates – a contrary result can only be reached by disregarding s 80s plain meaning, drafting history and purpose

• But even if one was to come to this contrary conclusion about s 80’s purpose, issues would arise as to what is the meaning to be placed on the section to give effect to that purpose. None of the judges who have rejected the dominant interpretation have agreed as to a meaning of “trial on indictment”

  • All of these judges have disagreed in their formulation, using their own categories of indeterminate reference (”serious criminal offences” “grave punishment” etc.) – the result of adopting such an approach would be an absence of any objective criterion, judges could decide each case according to their opinion

  • The problems would be similar to those faced in the US deciding the interpretation of “cruel and unusual punishment” in the USC

  • The essential problem is where does one draw the line? Would indecent exposure/larceny require trial by jury? Would it make a difference if the maximum penalty was two years? Etc.

    • Hence the approach of Dixon and Evatt JJ, Murphy J or Deane J would provoke much uncertainty and create new constitutional jurisprudence.

• His honour went on to say that even...