The High Court has dismissed a motion on a cause removed from the New South Wales Supreme Court relating to constitutional requirements for trials in the context of a trial for terrorism recruitment offences. The applicant is charged with seven offences against s 7(1)(e) of the Crimes (Foreign Incursions and Recruitment) Act 1978 (Cth), which makes it an offence for a person to give money, goods or services to a person or body for the purpose of supporting or promoting the commission of an incursion into a foreign country to engage in hostilities (on which see also s 6 of the Act). Pursuant to s 132 of the Criminal Procedure Act 1986 (NSW), the applicant made a motion to be tried by a judge only. Section 80 of the Commonwealth Constitution, however, provides that trials on indictment for Commonwealth offences ‘shall be by jury’. Following an application by the Commonwealth Attorney-General, French CJ ordered that part of the cause be removed into the High Court to determine the following question:

Are ss 132(1) to (6) of the Criminal Procedure Act 1986 (NSW) incapable of being applied to the Applicant’s trial by s 68 of the Judiciary Act 1903 (Cth) because their application would be inconsistent with s 80 of the Constitution?

The applicant contended that question should be answered ‘no’ on the basis that s 132 can be ‘picked up and applied’ by s 68 in that the scheme of federal judicial power in ch III, properly understood, does not prevent a court from following the requirements of s 132, that neither s 80 itself, nor ch III, nor the use of the word ‘shall’ in s 80 dictate a contrary conclusion, and that the High Court’s decision in Brown v The Queen [1986] HCA 11 does not govern the question raised here (as the prosecution here, unlike the one in Brown) supported a trial by judge alone) or alternatively Brown should be re-opened and overruled to the extent necessary. The respondent contended that s 132 is inconsistent with s 80 as it was construed by the majority in Brown, and that all trials on indictment against any federal law must be by jury without any exceptions. The Commonwealth Attorney-General intervened to submit arguments in support of the applicant’s position, including that s 80 and the understandings of prescriptive and elective mechanisms for judge-alone trials should be understood in light of the section’s pre-1900 history and developments after Federation. Several other State Attorneys-General have also intervened, with all supporting the applicant, except for South Australia which was neutral.

Following the Full Court hearing, French CJ declared that at least a majority of the Court was of the opinion that the question of whether the challenged sections were inconsistent with s 80 should be answered ‘yes’ and dismissed the motion. The Court’s reasons, published four months later, reveal that six of the Court’s judges (Kiefel, Bell & Keane JJ in a joint judgment, Gageler J, and Nettle & Gordon JJ in a joint judgment) supported the order announced by French CJ, while French CJ himself dissented.

Justices Kiefel, Bell & Keane held that the decision of Brown is not distinguishable from the present case and, therefore, that the applicant can only succeed if the Court overrules Brown [95]. They rejected the applicant’s argument that the institution of trial by jury is one that evolves in time, observing that ‘whether one characterises trial on indictment by judge alone as a qualification relating to the operation of the evolving institution of trial by jury or not, trial by judge alone is not trial by jury’ [98], and the Commonwealth’s argument that a ‘trial on indictment’ does not commence until legislative prerequisites for a jury trial (including the absence of a judicial order for a trial by judge alone) are satisfied), as ‘strained, ahistorical and somewhat improbable construction’ [109]. Finally, they dismissed arguments that s 80 should be given a purposive construction (drawing analogies to the present construction of s 92), holding that the clear command in s 80 ‘is a sufficient reason for rejecting
the invitation to re-open and to overrule Brown‘ [115]. They also accepted the analysis in previous decisions on s 80 that stressed the role of trial by jury in the structure of government, adding that contemporary trial judges have ‘mechanisms available’ to meet the problem posed by pre-trial publicity [115]-[120].

Justice Gageler’s concurrence noted that it is novel to argue that constitutional provisions should not be applied to circumstances that fall outside their apparent purpose [124]-[126]. As well, the purposes suggested by the applicant fail to explain both the content of s 80 and ‘the full significance of trial by jury within our constitutional tradition’ [127]. The ‘constitutional guarantee of democratic participation would be flouted by a capacity, on the part of one or more parties in a trial on indictment or on the part of the court, to determine that the protection of the liberty of the accused and the public interest in the administration of justice were sufficient to justify the court being constituted by a judge alone.’ [140]. Gageler J also rejected the Commonwealth’s argument that s 80 did not apply in this case because an order was made for trial by judge alone, holding that ‘[t]he prosecution has given rise to what is unquestionably, in substance and nomenclature, a proceeding “on indictment” according to the conception in Munday v Gill‘ [1930] HCA 20; 44 CLR 38, as Alqudsi ‘ has been arraigned in that proceeding on indictment and has pleaded not guilty of the offences of which he has been charged in the indictment.’ [149]-[150].

Justices Nettle & Gordon’s reasons held that many of the contentions by the applicant and the interveners ‘were directly contrary to principles which underpin our federal system of government’ [166]. Because ‘[j]udges have no power to formulate, declare or exercise the judicial power of the Commonwealth otherwise than in accordance with Ch III’ and ‘it is for the Commonwealth Parliament to provide for and regulate the exercise of federal jurisdiction, not the States’, ‘once s 80 is engaged, the Commonwealth Parliament cannot avoid its mandatory terms by attempting to rely on s 68 of the Judiciary Act to pick up and apply State laws which are inconsistent with s 80.’ [170]-[172]. They rejected the argument that s 80’s requirements can be waived, as ‘[t]he mandatory terms of s 80 cannot be ignored’ [178] and held that the Commonwealth’s narrow reading of ‘trial on indictment’ ‘is contrary to the express words of s 80 and inconsistent with the limitations that s 80 places on the legislative and judicial power of the Commonwealth.’ [179]. They likewise rejected arguments that s 80 is flexible and capable of accomodating ‘elective mechanisms’ as such mechanisms ‘cannot be
determined by the State Parliaments’ [184]. As well, s 80 differs from other more flexible constitutional guarantees as ‘[t]here is nothing open-textured or undefined about its terms’ [187] and, although the institutional of trial by jury has evolved, ‘[l]egislative and procedural mechanisms have
evolved to reinforce the fairness and integrity of a jury trial…, not destroy or detract from’ it [195]. They reviewed the text of s 68 of the Judiciary Act, observing that, if the Commonwealth’s submissions ‘were to be accepted, the phrase “trial on indictment” in s 68 of the Judiciary Act and s 80 of the Constitution would have different meanings. That cannot be so’ [201] and also the text of the state provision, observing that ‘ an order of the court under s 132(2) or (4) does not alter the nature of the trial as one ultimately proceeding on indictment’ [209]. Accordingly, they ruled that Brown should not be reopened, as the Brown majority relied on fundamental principles that are not challenged in this case. [216]. Finally, they held that state courts that are vested by state law with a mechanism for election to trial on indictment by judge alone may nevertheless be vested with federal jurisdiction that requires them to hold all federal trials on indictment by jury. [220].

Chief Justice French dissented. He reviewed the history of s 80 and cases interpreting it, observing that ‘interpreting a constitutional provision a formal rigidity which runs wider than the evident purpose of the provision is not a sensible or preferable constructional choice’ [34]. Noting that the drafters apparently did not consider the issue of waiver of trial by jury [35], he reviewed United States law on this topic, concluding that that nation’s courts have ‘recognised both an institutional and a rights protective dimension to the trial by jury mandated’ by the US Constitution and that ‘[t]hose decisions are not to be understood as simply giving effect to a proposition that trial by jury, being a right, can be waived by the person upon whom that right is conferred’ [45]. He then reviewed the rejection of those rulings in Brown and held that ‘ if Brown is not to be followed, it should not be followed on the basis that the reasoning of the majority was too broad’ [56]. Applying the criteria set out in John v Federal Commissioner of Taxation [1989] HCA 5; 166 CLR 417, French CJ observed that the Brown majority relied on earlier decisions that did not consider elective mechanisms; that the three judges’ reasons were ‘broadly similar’; that arguments that the Brown approach is not useful or convenient given the changing role of federal criminal law are ‘inconclusive’; and that the subsequent decisions have not reached the question dealt with in Brown [72]. Nor has Brown been ‘shown to be erroneous’ by later cases [73]. Nevertheless:

In the end, as Isaacs J observed, the final and paramount purpose of the exercise of federal judicial power is “to do justice”. On the authority of Brown, as it presently stands, no matter how much the interests of justice in an individual case may favour trial by judge alone and regardless of the views of the accused, the prosecutor and the court in that respect, the trial must proceed as a trial by jury. There is no constitutional imperative which requires that degree of rigidity. It is a rigidity which may in particular cases defeat the interests of justice. It is a rigidity which is incongruous when placed alongside the flexibility otherwise accorded to the Parliament upon the established interpretation of s 80. [74]

Accordingly, French CJ held that, although Brown correctly ruled that an accused alone cannot waive s 80, ‘a law allowing for trial by judge
alone, where accused and prosecutor agree, may be taken as sufficiently limited to classes of case in which the interests of justice favour such a proceeding. That is on the basis that the contending interests of the individual and the State are best served by that mode of trial. Similarly, if the accused applies for trial by judge alone and the court regards it as in the interests of justice to so order, both the institutional and rights protective dimensions of s 80 would be respected.’ [75]. Reopening Brown, he held that NSW’s law on electing for trial on indictment by judge alone is capable of being applied to Alqudsi’s trial by s 68 of the Judiciary Act [76].

Alqudsi’s application was dismissed by a 6-1 majority, which means hat Alqudsi’s trial on federal charges must be by jury. (On 12 February this year, Bell, Gageler and Keane JJ refused Alqudsi special leave to appeal against the decision of the NSWSC and the validity of the Commonwealth legislation under which he has been charged.)