Newell v R [1936] HCA 50; (1936) 55 CLR 707 (29 October 1936)

HIGH COURT OF AUSTRALIA

Newell Appellant; and The King Respondent.

H C of A

On appeal from the Court of Criminal Appeal of Tasmania.

29 October 1936

Latham C.J., Dixon and Evatt JJ.

Gorman K.C. (with him T. W. Smith), for the applicant.

Griffiths K.C. and Coppel, for the respondent.

Gorman K.C., in reply,

The following judgments were delivered:—

Latham C.J.

In this case special leave has been granted to appeal from a decision of the Court of Criminal Appeal of Tasmania. One Newell, who was charged with manslaughter, was presented for trial at the criminal sittings at Launceston on 26th March, and on being arraigned pleaded not guilty. Upon the trial the jury failed to agree, with the result that on 12th June he came before the Supreme Court again and was asked by the clerk: "Have you already pleaded not guilty to this indictment?" to which he replied: "Yes." An application was made for an adjournment. On 18th August he again appeared at the Bar, and the same question was put and the same answer was given. On 28th August a trial was had before a judge and jury of twelve men. At the end of two hours' deliberation the jury had not agreed, and a verdict of the majority, ten to two, was taken. An amendment to the Jury Act had come into force on 10th August. The question arose on appeal to the Court of Criminal Appeal, whether the amendment applied to this trial. Sub-sec. 2 of the section substituted for sec. 48 of the Jury Act 1899 (63 Vict. No. 32) by sec. 2 of the Jury Act 1936 (1 Edw. VIII. No. 2) provides: "If, on the trial of any criminal issue, other than a charge of a crime punishable with death, when the jury shall have remained for two hours in deliberation they shall not have arrived at a unanimous decision as to their verdict but ten of them have agreed as to a verdict, the decision of such ten jurors shall be taken and entered as, and shall be the verdict of the jury, and, in default of agreement as to a verdict by ten or more jurors, the jury may be discharged at any time after such period of two hours unless in the opinion of the judge further deliberation is desirable." It was the opinion of the Chief Justice of Tasmania that the new section was applicable to the trial, and in the Court of Criminal Appeal the opinion of the Chief Justice prevailed under secs. 400 and 402 of the Criminal Code. It is a general proposition that a statute is not presumed to be retrospective unless a special intention appears, but we have been referred to authorities to show that it is otherwise with regard to the retrospective operation of procedural statutes. Most of the decisions on procedural statutes relate to civil proceedings commenced before a statute comes into operation.

The matter debated before us was whether or not this is a procedural statute. The cases draw a distinction between substantive rights and rights under laws of procedure relating to proceedings in which substantive rights are in question. The right to a jury is one of the fundamental rights of citizenship and not a mere matter of procedure, and so the courts have said. In Looker v. Halcomb[1], per Best C.J., it is said: "An Act of Parliament which takes away the right of trial by jury, and abridges the liberty of the subject, ought to receive the strictest construction; nothing should be holden to come under its operation that is not expressly within the letter and spirit of the Act". When I come to the words of the section, it appears that they may apply either to all trials that may hereafter begin or to all trials whether not yet completed or not yet commenced. The Criminal Code provides that the trial in criminal cases shall be deemed to be begun when the prisoner is called upon to plead, and this took place in March. Accordingly we have to consider the application of this section to a trial beginning many months before. In my opinion, the rules of strict construction of Acts relating to trial by jury, of which I have cited an example, apply to this case; and further, the right to have only the verdict of the full twelve was an essential part of the right to trial by jury which the accused had before the amendment was made. It is not merely a procedural matter. The question is not free from doubt, but the general principle of construction must, in my opinion, be applied.

The appeal will be allowed.

Dixon J.

I agree. When the prisoner was arraigned and pleaded not guilty, then under sub-sec. 6 of sec. 351 of the Criminal Code Tas. his trial began. Issues were joined between himself and the Crown. Under sec. 361 his plea amounted to a demand that he be tried by a jury, and he became entitled to be tried accordingly.

The right which his plea so asserted had this conspicuous feature, namely, that although he was placed in jeopardy, he was placed in jeopardy of the unanimous verdict of twelve men. This was the position he occupied when the Jury Act 1936 altered the law and made the concurrence of ten sufficient for a conviction or acquittal. When it says that this should be so "on the trial of any criminal issue," should these general words be understood as applying to a trial already begun of issues already joined? In my opinion they should not. They should be taken to mean on the trial of any criminal issue joined after the commencement of the Act. They should not be construed as depriving a prisoner standing in peril at the time of their enactment of so important a thing as his protection from conviction except by a unanimous verdict.

Evatt J.

I agree. On 26th March 1936 when the appellant answered the charge contained in the indictment by pleading not guilty, he became entitled to have the question of guilt determined by the unanimous decision of a jury of twelve. The only question before us is whether, in August, 1936, when the principle of unanimity in criminal cases was abrogated in Tasmania, the Act used terms sufficiently clear to show that it operated to deprive the appellant of his pre-existing right to a unanimous decision. It was argued that, in criminal issues, unanimity, as opposed to majority, decision is a mere matter of procedure. But this argument is answered by the fact that in Tasmania, as elsewhere in common-law countries, trial by jury has been universally regarded as a fundamental right of the subject, and unanimity in criminal issues has been regarded as an essential and inseparable part of that right, not a subordinate or merely procedural aspect of it (Cf. Stephen, History of the Criminal Law of England (1883), vol. I., pp. 304, 305; Ford v. Blurton[2], per Atkin L.J.; R. v. Armstrong[3], per Hewart L.C.J.; Australian Law Journal, vol. 10, Supplement, p. 64).

In the United States, the principle of unanimity has been treated as an integral part of the constitutional guarantee of the jury system, and a similar guarantee (in respect of offences against the laws of the Commonwealth) is contained in sec. 80 of the Commonwealth Constitution. For the Supreme Court of the United States, Brewer J. said, in American Publishing Co. v. Fisher[4]:—

Now unanimity was one of the peculiar and essential features of trial by jury at the common law. No authorities are needed to sustain this proposition. Whatever may be true as to legislation which changes any mere details of a jury trial, it is clear that a statute which destroys this substantial and essential feature thereof is one abridging the right. It follows, therefore, that the court erred in receiving a verdict returned by only nine jurors, the others not concurring.

In view of this overriding principle, which cannot be overlooked on the question of construction, the better interpretation of the recent Tasmanian Act is to confine it to "criminal issues" joined after the Act was passed. On that view the majority rule was inapplicable to the present issue.

The appeal should be allowed.

Appeal allowed.

Solicitors for the appellant, Shields, Heritage & Stackhouse.

Solicitor for the respondent, A. Banks-Smith, Crown Solicitor for Tasmania, by F. G. Menzies, Crown Solicitor for Victoria.

[1] [1827] EngR 460; (1827) 4 Bing. 183, at pp. 188, 189; [1827] EngR 460; 130 E.R. 738, at pp. 740, 741.

[2] (1922) 38 T.L.R. 801, at p. 805.

[3] (1922) 2 K.B. 555, at p. 568.

[4] [1897] USSC 87; (1897) 166 U.S. 464, at p. 468; [1897] USSC 87; 41 Law. Ed. 1079, at p. 1081.