Trial by Jury

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Section 80 of the Commonwealth Constitution

It is a common belief among OPCA theorists that the judiciary is denying a defendant his rights under chapter 29 of the Magna Carta by not allowing him “the judgment of his peers” implying that a trial by jury 1 must be conducted for every matter before the court, including summary offences. Section 80 of the Commonwealth Constitution 2 states:

“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.”

Section 80 does not require that summary offences be dealt with by way of jury trial, such proceedings are not “on indictment.” As originally drafted the section applied to trials of “all indictable offences.” However during the Constitution Convention an amendment was successfully moved to change the words “indictable offences” to the present “trial on indictment” so as to ensure that the less serious offences could be prosecuted summarily. (See Pannam C “Trial by Jury and Section 80 of the Australian Constitution” (1968) 6 Sydney Law Review 1 at 3.)

Even the amendment proposed to section 80 in 1988 (which would have enlarged the right to jury trial, but was defeated) specifically exempted summary offences from its operation. (See Constitutional Alteration (Rights and Freedoms) Bill 1988)

OPCA theorists generally hold that the chapter 29 of the Magna Carta, together with section 80 of the constitution, grants them this right, despite it being long recognised neither establishes an immutable right to trial by jury for criminal offences.

Brown v The Queen (1985-86) 160 CLR 171 Gibbs CJ at 181: 3

“It has been held in a long line of cases … that s 80 applies only if there is an indictment and that the Parliament is free to decide whether any particular offence, however serious, may be tried summarily.”

Click to access brown-v-the-queen-1986-hca-11.pdf

The judgment of his peers

The phrase “The judgment of his peers” in c. 29 of the Magna Carta did not even refer to “trial by jury”(See Adams and Schuyler, Constitutional History of England, Jonathon Cape, London at 136-7; Forsyth, History of Trial by Jury, 2nd Edition, Burt Franklin, New York, 1878 at pp 91-92; Holdsworth, History of English Law, 6th edition, volume 1 at pp 59-660, 385 48; Holt, Magna Carta, 2nd edition, Cambridge University Press, 1992, pp 9-10; Howard, Magna Carta Text and Commentary, The University Press of Virginia, at 14; Lyon, Magna Carta, the Common Law, and Parliament in Medieval England, Forum Press, Missouri, 1980 at p 7; McKechnie, Magna Carta, 2nd edition, 1914 at pp 375-379; Windeyer, Lectures on Legal History, Law Book Company, 1938, “Magna Carta” at pp 64-66.)

Magna Carta c 29 embodies a “protest against arbitrary punishment, and against arbitrary infringements of personal liberty and rights of property”. (See Holdsworth, Volume II at p 215; Wade and Bradley, Constitutional and Administrative Law, 10th edition, Longman, London, pp 13-14) The summary procedure undertaken in this case accords with these principles.

Although c.29 traditionally has been thought to embody this fundamental principle, historical analysis reveals that this chapter:

“…has had much read into it that would have astonished its framers: application of modern standards to ancient practice has resulted in complete misapprehension”

(See McKechnie, Magna Carta, 2nd ed (1914) at 395 as quoted by Toohey J in Jago v District Court (NSW) (1989) 168 CLR 23 at 66). 4 In Jago Toohey J thought it pertinent to note Holdsworth’s observation that whilst it was said in the seventeenth century that c. 29 (together with related chapters) embodied the principles of the writ of Habeas Corpus and of trial by jury:

“It is not difficult to show that, taken literally, these interpretations are false. Trial by jury was as yet in its infancy…”

Click to access jago-v-district-court-nsw1989-hca-46.pdf

(See Holdsworth, History of English Law, 7th edition (1956), volume 2 at pp 214-215 cited by Toohey J at p 66) Similarly in Kingswell v The Queen (1985) 159 CLR 264, 5 Deane J (in dissent as to the outcome of the appeal) observed that modern scholarship would indicate that much of the traditional identification of trial by jury with Magna Carta was erroneous.

For many years after the establishment of the colony of NSW there were no jury trials, with criminal matters being heard by the Judge Advocate and a panel of six military officers. (See Evatt J “The Jury System in Australia” (1936-37) 10 ALJ (Supplement) 49, Bennett JM “The Establishment of jury Trial in NSW” (1956-61) 3 Sydney Law Review 463 and Neale D The Rule of Law in a Penal Colony, Cambridge University Press, 1991.)

Click to access kingswell-v-the-queen-1985-hca-72.pdf

Van den Hoorn v Ellis, [2010] QDC 451: 6

“Concerning Magna Carta, the Queensland Court of Appeal decision in Carnes v Essenberg; Lewis v Essenberg [1999] QCA 339 obliges me to conclude that it is “completely inaccurate” to say that colonial parliaments, or indeed the Parliament of Westminster, could not alter, modify or even repeal the provisions of centuries old legislation: see Chesterman J (as he then was) at p 4. Accordingly, after the Australian Courts Act 1828, enacted by the Imperial Parliament, became part of the law of Queensland upon its separate establishment in 1859, the Colonial Laws Validity Act 1865, also passed by the Imperial Parliament, removed doubts about the extent to which Australian Colonial Parliaments could alter imperial legislation as it applied to the colonies: at p 5.

This had the consequence that no colonial law was void on the ground that it was repugnant to the fundamental principles of English law: also p 5. As Chesterman J goes on to note, the matter is made even more explicit by s 3(2) of the Australia Act 1986, which provides that no law and no provision of any law made after it by the Parliament of a State shall be void or inoperative on a ground that it is repugnant to the laws of England or to the provisions of an existing or future Act of Parliament of the United Kingdom: also p 5.

Thus, as is clearly concluded in Carnes v Essenberg, both Magna Carta and the Bill of Rights are not untouchable and unalterable sources of private rights or immunities. As for the Bible, it never has had civil effect in this State. This has the result that the legislation in Queensland, as well as the Justices Act 1886, are Acts that have both abrogated the rights of citizens to do as they wish and have changed the manner in which prosecutions may be brought. Thus, where, as here, the appellant was charged with offences for which he may be summarily convicted by a Magistrates Court [s 3(4) of The Criminal Code], he had no right to a trial by jury, being subject to that specific legislation that was referred to in the Reasons for Judgment at first instance.

In dealing with the issue of royal instructions in his comprehensive text, The Reception of English Law Abroad (BH McPherson CBE) (Supreme Court of Queensland Library 2007), the former Justice of Appeal wrote that the language of such royal instructions has obvious links with cl 29 of Magna Carta and the Six Statutes: at pp 211-212; and see Magna Carta (2nd ed) (JC Holt) (Cambridge University Press) at pp 10-11. Nevertheless, he concludes (consonant with the conclusions reached above and citing relevant authority), that, like any other legislation, the provisions of Magna Carta are liable to repeal expressly, or by implication, by later enactments that are inconsistent with it, in the absence of constitutional entrenchment: at p 218. Again, analogously, the royal Instructions here would similarly be subject to repeal, there being no evidence of constitutional entrenchment.

By way of further clarification, McPherson JA (as he then was), speaking generally for the Queensland Court of Appeal in Bone v Mothershaw [2003] 2 Qd R 600 noted that the common law received in Australia under the Australian Courts Act 1828 (particularly by s 24) was received as a body of common law and not of enacted law, with the effect that the common law so received in Australia in 1828 was not so received as a body of statute law: at 610. As McPherson JA goes on to observe, the whole notion of such conversion is opposed to the established view that local laws or by-laws are capable of altering the received English law [as was recognised by the High Court in Widgee Shire Council v Bonney (1907) 4 CLR 977: also at 610. The legal outcomes were utilised by White DCJ in Hubner v Erbacher [2004] QDC 345 in determining that the Transport Operations (Road Use Management) Act 1995, and Regulations made thereunder; was a valid enactment made pursuant to the legislative power of the Queensland Parliament and prevailed over all common law or other rights and freedoms to the extent that they were inconsistent therewith: at 13. He expressed the conclusion as being subject to the Constitution (Cwth), but concluded that there was no relevant inconsistency.”

Click to access van-den-hoorn-v-ellis-2010-qdc-451.pdf

All States have Magistrate’s Courts or Courts of Petty Sessions, in which summary trials of summary offences are conducted. Summary offences are heard by a magistrate, who determines both the verdict and the sanction. Persons charged with a summary offence cannot have the matter heard by a jury, so there is no point in demanding “trial by one’s peers” if the Justices Act or Summary Offences Act of your State says the charge is triable summarily.

Every Australian jurisdiction has legislation that outlines which offences can be heard summarily, as well as prescribing penalties for each offence. Commonwealth law also outlines numerous summary offences, but since there is no network of Commonwealth criminal courts, most Commonwealth summary offences are heard in State or Territory Magistrate’s Courts.

Summary offences 7 are generally dealt with quickly and efficiently. If the accused pleads guilty, the prosecution simply summarises the offences and establishes the basic facts. The accused or their legal counsel will speak on their behalf, offer mitigating factors and/or character references. The magistrate will then find the matter proven, speak briefly to the accused and deliver a sanction. This process may take no more than several minutes. If the accused pleads not guilty, the magistrate will review the evidence, hear witnesses and decide whether or not the matter is proven ‘beyond reasonable doubt’. If the magistrate returns a finding of guilt, he or she will then decide an appropriate sanction.

Click to access trial-by-jury-e28093-parliament-of-australia.pdf