The jurors are charged with the responsibility of deciding whether, on the facts of the case, a person is guilty or not guilty of the offence for which he or she has been charged. The jury must reach its verdict by considering only the evidence introduced in court and the directions of the judge.
The jury does not interpret the law. It follows the directions of the judge as regards legal matters. During all stages of the trial, jurors may take notes of proceedings. Jurors may also pass notes to the foreman or forewoman of the jury to ask the judge to explain certain aspects of the case.
At the conclusion of the trial, the jurors are given an issue paper, which states the issues that the jury must consider in reaching its verdict. When a jury consists of more than 12 members, only 12 are selected to consider the verdict. A Court Garda or other official is required to keep the jury together until the verdict is reached. The jury is taken into the jury room and allowed no outside communication at all, with the exception of notes to the Court Registrar.
They may keep a copy of the indictment, the exhibits and their notes. Jurors may send out notes asking for the law to be further explained or for the judge to remind them of the details of the evidence. In reaching its verdict in a criminal trial , the jury must be satisfied that the person is guilty beyond reasonable doubt. Beyond reasonable doubt means that if there are two reasons given in the case and both are possible explanations for what happened, taken together with the evidence presented, the jury should give the person the benefit of the doubt and decide on a verdict of not guilty.
If the case is a civil one, the jury must be satisfied with its verdict on the balance of probabilities. It is not necessary that a jury be unanimous in its verdict. By a majority of four to two, the High Court refused such leave. After referring to the common law position, that there could be no appeal from a verdict of acquittal, Griffith CJ asked whether the Constitution had altered the common law position on trial by jury.
He answered that it had not:. So far from finding any such clear indication in the Australian Constitution, I find a clear indication of a contrary intention. Section 80 lays down as a fundamental law of the Commonwealth that the trial on indictment of any offence against any of the laws of the Commonwealth shall be by jury The history of the law of trial by jury as a British institution The Chief Justice then adverted to the contention that section 80 'relates merely to procedure'.
He rejected that argument. Isaacs J, who described Snow's offence as 'one of unparalleled gravity in the history of Australia'-adding that 'the crime for which Carl Lody was shot was mild in comparison'!
So did Higgins J. But Griffith CJ's views were supported by three other justices. Is it to be supposed that the British Parliament, when providing by section 80 of the Constitution that 'the trial on indictment of any offence against any law of the Commonwealth shall be by jury' were leaving to this Court in its appellate jurisdiction the right to control at its pleasure the verdict of the jury?
During the decade or so following Snow's case, the composition of the High Court changed significantly. The ascendancy of Isaacs J-who had done little to conceal his hostility towards Griffith CJ-was marked by the decision in the Engineers' case, 19 in which a number of Griffith CJ's earlier decisions were overruled. In , Isaacs J had a further opportunity to reiterate the views he had expressed on section 80 during the Convention debates, views which he had also foreshadowed in a High Court case decided in the same year as R v Snow.
In the Archdall case, two union leaders were charged with offences under section 30K of the Crimes Act Cth , in that they had hindered the provision of a lighthouse service provided by the Commonwealth. Section 30K provided that the maximum penalty for the offence it created was one year's imprisonment.
The charges were heard summarily by a police magistrate, who convicted and fined the defendants. They took proceedings in the High Court to quash the convictions. Their counsel relied on section 4 of the Acts Interpretation Act Cth -since repealed-which provided that 'offences against any Act which are punishable by imprisonment for a period exceeding six months shall, unless the contrary intention appears in the Act, be indictable offences.
Since section 30K provided for 12 months' imprisonment, it was argued that the offence was indictable, and should not have been heard summarily 'the first argument'. Alternatively, counsel argued that if the Crimes Act Cth did permit offences under section 30K to be dealt with summarily, it was in conflict with section 80 of the Constitution 'the second argument'.
The case was not a good vehicle for testing an important constitutional issue. It could hardly be described as a serious offence, warranting trial by jury and the time of the highest court in the land.
The High Court rejected the first argument, holding that the scheme of the legislative provisions in the Crimes Act Cth revealed a 'contrary intention' for the purposes of section 4 of the Acts Interpretation Act Cth. The suggestion that the Parliament, by reason of section 80 of the Constitution, could not validly make the offence punishable summarily has no foundation and its rejection needs no exposition.
In dismissing the second argument, Higgins J formulated the celebrated aphorism: 'if there be an indictment, there must be a jury; but there is nothing to compel procedure by indictment. As Deane J was to point out later in Kingswell's case, 24 the judgments in the Archdall case contain no reasoning at all in favour of the narrow view, let alone any cogent reasoning.
But they reflect a conclusion that prevailed for a period in excess of 50 years. As Barwick CJ put it, 'What might have been thought to be a great constitutional guarantee has been discovered to be a mere procedural provision.
But powerful and reasoned dissents surfaced from time to time. In Lowenstein's case, Dixon and Evatt JJ highlighted the fatuity of the notion that the framers solemnly inserted in a constitution a provision of merely procedural significance. After referring to Higgins J's statement in the Archdall case, they observed:. It is a queer intention to ascribe to a constitution; for it supposes that the concern of the framers of the provision was not to ensure that no one should be held guilty of a serious offence against the laws of the Commonwealth except by the verdict of a jury, but to prevent a procedural solecism, namely, the use of indictment in cases where the legislature might think fit to authorise the court itself to pass upon the guilt or innocence of the prisoner.
There is high authority for the proposition that 'the Constitution is not to be mocked. No court could countenance such a suggestion, and, if this explanation is rejected and an intention to produce some real operative effect is conceded to the section, then to say that its application can always be avoided by authorising the substitution of some other form of charge for an indictment seems but to mock at the provision In the Li Chia Hsing case, Murphy J endorsed these views of Dixon and Evatt JJ, and added that in his opinion section 80 'contains a guarantee of a fundamental right to trial by jury in criminal cases at least in serious ones.
To these dissenting views, one may add the sustained attack on the narrow, procedural approach which Deane J delivered in Kingswell's case. As Xavier Connor has observed:. If, by means of some judicial time machine, Dixon, Evatt, Murphy and Deane had ever sat together in a case involving section 80, they would not only have constituted a powerful High Court quartet, they would also have constituted the majority in that particular case. A number of things should be said about the narrow approach.
In the first place, as Deane J has pointed out, it was not the product of distinguished or cogent reasoning. The contrary arguments were simply rejected in a cavalier fashion until the point was reached when it was said that the matter was no longer open to argument. The dissenting judgments contained much more in the way of reasoned and logical argument. But-assuming they were not being Machiavellian-greater blame for the narrow approach is attributable to the framers of the Constitution.
As Latham CJ observed in the Lowenstein case, section 80 'could easily have been better expressed if it was intended that it should have the effect of preventing or limiting the possibility of the Commonwealth Parliament providing for the summary trial of all, or any particular offences. The next observation is that the matter has not really been tested by a case in which someone facing a long term of imprisonment has been denied the right to trial by jury. There has been, as Dawson J has pointed out, 'nothing in the Australian experience so far which would put the limits of this [narrow] view to any severe test.
A most troubling instance, however, is the case of Zarb v Kennedy. The legislation, although it provided for two years' imprisonment, authorised summary proceedings for such charges. Zarb claimed to have held an honest belief that he was an exempt person, based on an erroneous notice purporting to exempt him, which a clerk of courts had sent to him, and the advice of counsel to the effect that he was exempt. The magistrate rejected Zarb's claim, and on Zarb's refusal to undertake to render service, sentenced him to two years' imprisonment.
The High Court, led by Barwick CJ, rejected the constitutional argument based on section 80, which the Chief Justice said had been 'long settled' and 'ought not now to be reopened.
The appellant was obviously not regarded with sympathy by the justices, some of whom had rendered distinguished military service in their youth. Windeyer J commented that 'A man who under the Act is obliged to serve cannot, with impunity, refuse to do so, leaving the duty to others who are law-abiding and dutiful.
The issues raised in this case, during a turbulent period of Australian history, may have been better resolved by a jury. The entitlement of a young man facing two years' imprisonment to invoke the judgment of his peers-rather than that of a conservative, unelected judicial officer-should not have been dismissed without serious consideration of the argument.
Even if the view is taken that a jury would have been bound to convict, that would have been a more satisfactory process, and a verdict reached using this process would have generated more widespread acceptance. The jury system has not escaped criticism. Jury trials can be expensive and time-consuming, and some have suggested that they are inappropriate in complex fraud cases.
Some accused persons may prefer to have their matters dealt with by a judge alone, and there is much to be said for the right to waive trial by jury. What is contended is that persons facing long terms of imprisonment should have the option of trial by jury, even if that option is open to waiver.
Kingswell's case involved a prosecution for conspiring to import narcotic drugs. The Customs Act Cth provided for a wide variety of penalties for this offence, ranging from two years' imprisonment to life imprisonment. The determination of some of the factual elements affecting the maximum penalty-such as the quantity of the drugs and the existence of prior convictions-had been committed to the trial judge. The majority of the High Court rejected the argument that this way of determining the penalties for the offence offended section Brennan and Deane JJ, however, dissented.
Brennan J considered that the complex legislation created several distinct offences. He construed section 80 as 'prohibiting the Parliament from withdrawing issues of fact on which liability to a criminal penalty depended from a jury's determination when any offence against a law of the Commonwealth is tried on indictment. The charging document was called an 'information', but it was common ground that the trial was on indictment. The trial judge ruled that section 80 precluded such an election and the matter proceeded before a judge and jury.
When Brown was convicted, he appealed. The case thus raised the question of whether the right to trial by jury under section 80 could be waived. The majority of the High Court held that section 80 could not be waived. In doing so they revealed a quite different approach from the previous narrow construction of the section. According to Brennan J:. Trial by jury is not only the historical mode of trial for criminal cases prosecuted on indictment; it is the chief guardian of liberty under the law and the community's guarantee of sound administration of criminal justice Section 80 of the Constitution entrenches the jury as an essential constituent of any court exercising jurisdiction to try a person charged on indictment with a federal offence.
That section is not concerned with a mere matter of procedure but with the constitution or organisation of any court exercising that jurisdiction. Deane J reiterated some of the views he had expressed in Kingswell, and concluded that section 80 commanded trial by jury, rather than conferring a privilege that could be waived.
Dawson J considered that it was overstating the position to say-as had Barwick CJ in Spratt v Hermes- that section 80 has been reduced to a procedural provision, 'or that it does not yet lay down, in the words of Griffith CJ in R v Snow , "a fundamental law of the Commonwealth'''. Whether or not one takes the view that the denial of a right of waiver 'is to imprison a man in his privileges and call it the Constitution', 44 the decision in Brown's case reflects a broader and more substantive approach to section Even the minority, who considered that the right to jury trial could be waived, shared that approach.
The most recent analysis of section 80 occurred in Cheatle v R. Section 57 1 of the Juries Act SA provided for a majority verdict by ten or eleven jurors. The Cheatles were convicted based on a majority verdict. They appealed and argued that unanimity was an indispensable feature of trial by jury, according to long-established notions which continued to apply up to the time the Constitution was enacted.
The High Court unanimously accepted the appellants' argument. Once again, the decision reveals a broader approach to section Both Brown and Cheatle , however, were cases which were brought on indictment. They therefore do not directly conflict with the Archdall line of authority.
Moreover, legal precedents can only be authoritative within the limits generated by their underlying factual material. Pronouncements made in cases where the offences were plainly not serious cannot be binding on courts which have to determine whether offences carrying substantial periods of incarceration must be dealt with by juries.
Offences against a law of the Commonwealth punishable by imprisonment for a period exceeding 12 months are indictable offences, unless the contrary intention appears. Section 4H provides, by contrast, that Commonwealth offences not punishable by imprisonment or punishable by imprisonment for a period not exceeding 12 months are summary offences, unless the contrary intention appears.
Section 4J deals with the hybrid category of indictable offences that may be tried summarily. With some exceptions, it provides that indictable federal offences punishable by imprisonment for a period not exceeding 10 years may unless the contrary intention appears be heard summarily 'with the consent of the prosecutor and the defendant'. The attorney listings on this site are paid attorney advertising. In some states, the information on this website may be considered a lawyer referral service.
Please reference the Terms of Use and the Supplemental Terms for specific information related to your state. Grow Your Legal Practice. Meet the Editors. The Right to Trial by Jury. Serious Offenses Only According to the Supreme Court, the jury-trial right applies only when "serious" offenses are at hand—petty offenses don't invoke it.
Blanton v. City of N. Las Vegas , U. Adding Up Offenses Prosecutors regularly file more than one charge against defendants. State-Law Protection The Supreme Court's determination of what constitutes a serious offense and thereby entitles one to a jury trial sets a minimum standard.
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