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Stellios, James --- "Brownlee v The Queen: Method in the Madness" [2001] FedLawRw 14; (2001) 29(2) Federal Law Review 319

* Lecturer, Faculty of Law, Australian National University. The author appeared as counsel for the Commonwealth of Australia at the hearing of Brownlee v The Queen (200[1]) [2001] HCA 36; 75 ALJR 1180 before the High Court. The views expressed in this Comment are those of the author's.

1 [2001] HCA 36; (2001) 75 ALJR 1180.

[2] Hereafter referred to as the Jury Act.

[3] Being a law investing any court of a State with federal jurisdiction: s 77(iii) of the Constitution.

[4] See the judgment of Kirby J in Brownlee v The Queen [2001] HCA 36; (2001) 75 ALJR 1180, 1195-6 for a detailed account of the events leading up to the discharge of the two jurors.

[5] Prior to the jury retiring, the jurors were not confined. They were permitted to separate after each day's hearing – see ibid, 1196 (Kirby J); 1212 (Callinan J).

[6] R v Brownlee (1997) 41 NSWLR 139.

[7] See High Court transcript of proceedings, application for special leave to appeal, 11 February 2000.

[8] See, for example, Brownlee v The Queen [2001] HCA 36; (2001) 75 ALJR 1180, 1184 (Gleeson CJ and McHugh J).

[9] See the discussion by Gaudron, Gummow and Hayne JJ, ibid, 1188. See also Kirby J, ibid, 1197.

[10] Ibid, (Gaudron, Gummow and Hayne JJ). See also ibid, (Kirby J).

[11] Ibid, 1189 (Gaudron, Gummow and Hayne JJ). See also Kirby J, ibid, 1198. Therefore, there was no question of s 68 of the Judiciary Act being invalid.

[12] Ibid, 1186 (Gleeson CJ and McHugh J); 1193 (Gaudron, Gummow and Hayne JJ); 1211 (Kirby J); 1216 (Callinan J).

[13] Ibid, 1185 (Gleeson CJ and McHugh J); 1193-4 (Gaudron, Gummow and Hayne JJ); 1209-10 (Kirby J); 1216 (Callinan J).

[14] Most classically stated in Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (Engineers' case) [1920] HCA 54; (1920) 28 CLR 129, but certainly adopted from the very beginning of the Court - see Tasmania v The Commonwealth and Victoria [1904] HCA 11; (1904) 1 CLR 329, 358-60 (O'Connor J).

[15] Jumbunna Coalmine, No Liability v Victorian Coal Miners' Association (1908) 6 CLR 309, 368.

[16] Leslie Zines, The High Court and the Constitution (4th ed, 1997) 19.

[17] See, for example, Re Wakim; Ex parte McNally (1999) 198 CLR 511; Eastman v The Queen [2000] HCA 29; (2000) 74 ALJR 915; Grain Pool of Western Australia v Commonwealth (2000) 74 ALJR 648.

[18] Eastman v The Queen [2000] HCA 29; (2000) 74 ALJR 915, 939.

[19] Ibid, 940.

[20] See, for example, his Honour's judgments in Grain Pool of Western Australia v The Commonwealth (2000) 74 ALJR 648; Eastman v The Queen [2000] HCA 29; (2000) 74 ALJR 915.

[21] Grain Pool of Western Australia v The Commonwealth (2000) ALJR 648, 670.

[22] Ibid.

[23] Although, if there is indeed a real difference between the approach advocated by McHugh J and that of Kirby J, there have been indications that the other Justices have accepted a more conventional approach as evidenced by the joint judgment in Grain Pool of Western Australia v The Commonwealth (2000) 74 ALJR 648.

[24] [1993] HCA 44; (1993) 177 CLR 541.

[25] Brownlee v The Queen [2001] HCA 36; (2001) 75 ALJR 1180, 1183.

[26] Ibid.

[27] Ibid.

[28] Ibid.

[29] Ibid.

[30] Ibid.

[31] Eastman v The Queen [2000] HCA 29; (2000) 74 ALJR 915, 940.

[32] Brownlee v The Queen [2001] HCA 36; (2001) 75 ALJR 1180, 1203.

[33] Ibid, 1203.

[34] Ibid, 1204.

[35] Ibid.

[36] Ibid.

[37] Ibid, 1207.

[38] There was legislation in Victoria, Queensland, Western Australia and New Zealand which permitted a jury to continue with fewer than twelve jurors – see ibid, 1184-5 (Gleeson CJ and McHugh J); 1192 (Gaudron, Gummow and Hayne JJ); 1206 (Kirby J); 1215 (Callinan J). In fact, prior to federation, even the common law position was not entirely clear – see ibid 1184 (Gleeson CJ and McHugh J); 1192 (Gaudron, Gummow and Hayne JJ); 1215 (Callinan J).

[39] Although at federation jurors could not separate after they had retired for deliberation, the strict common law rule against separation prior to deliberation had been relaxed progressively by 1900 – see ibid, 1185 (Gleeson CJ and McHugh J); 1191-2 (Gaudron, Gummow and Hayne JJ); 1216 (Callinan J).

[40] Ibid, 1192.

[41] Ibid, 1184 (Gleeson CJ and McHugh J); 1190 (Gaudron, Gummow and Hayne JJ); 1207 (Kirby J); 1216 (Callinan J).

[42] Ibid, 1190.

[43] AW Scott, 'Trial by Jury and the Reform of Civil Procedure' (1918) 31 Harvard Law Review 669, 671.

[44] Brownlee v The Queen [2001] HCA 36; (2001) 75 ALJR 1180, 1183 (Gleeson CJ and McHugh J); 1190 (Gaudron, Gummow and Hayne JJ); 1208 (Kirby J).

[45] Ibid, 1190.

[46] Ibid, 1185 (Gleeson CJ and McHugh J); 1191 (Gaudron, Gummow and Hayne JJ); 1209 (Kirby J).

[47] Ibid, 1184 (Gleeson CJ and McHugh J); 1191 (Gaudron, Gummow and Hayne JJ).

[48] Other than Callinan J who did not undertake an extensive jurisprudential analysis.

[49] Brownlee v The Queen [2001] HCA 36; (2001) 75 ALJR 1180, 1183.

[50] Ibid, 1207.

[51] Graeme Hill has noted that there 'may be very little difference, in practice, between McHugh and Kirby JJ's approaches to interpretation' - see '"Originalist" vs "Progressive" Interpretations of the Constitution – Does it Matter?' (2000) 11 Public Law Review 159, 162.

[52] Ibid.

[53] Ibid (emphasis added).

[54] Ibid, 1204.

[55] [1993] HCA 44; (1993) 177 CLR 541, 552.

[56] Cheatle v The Queen [1993] HCA 44; (1993) 177 CLR 541.

[57] Brownlee v The Queen [2001] HCA 36; (2001) 75 ALJR 1180, 1183.

[58] (1997) 41 NSWLR 139, 145-6.

[59] [1970] USSC 150; 399 US 78 (1970).

[60] Ibid, 100.

[61] Brownlee v The Queen [2001] HCA 36; (2001) 75 ALJR 1180, 1185.

[62] Ibid, 1192 quoting from White J in Williams v Florida [1970] USSC 150; 399 US 78, 100 (1970). As their Honours noted, it is an 'instrument in the administration of justice' ibid, 1190 quoting from Ex parte Peterson [1920] USSC 123; (1920) 253 US 300, 309-10 (Brandeis J).

[63] Ibid, 1193. Or, as put by Grove J in the Court below, and approved by their Honours, 'that a jury exercise its function without fear or favour and without undue influence ...' ibid.

[64] Ibid, 1193.

[65] Ibid, 1209.

[66] Which might include guarding against the force of strong personalities on the jury – see ibid.

[67] This would include the objective of ensuring that the jury composition reflects the variety of opinions that exist in the community concerning society, the law and public authority, and minorities within the community – see ibid.

[68] Ibid. His Honour quoted from the Canadian Supreme Court decision in R v Sherratt [1991] 1 SCR 509, 524.

[69] Ibid.

[70] Ibid, 1216.

[71] Ibid.

[72] Ibid, 1186.

[73] Ibid, 1192-3. Such an assessment was undertaken in a contemporary context, in particular, taking into account the greater trust placed in modern jurors 'to heed the directions of the presiding judge' ibid, 1193. Kirby J also noted that strict rules of sequestration would result in circumstances that were not conducive to the proper performance of the jury function ibid, 1210.

[74] For example, parents with young children or persons caring for sick and elderly relatives ibid, 1210.

[75] Brownlee v The Queen [2001] HCA 36; (2001) 75 ALJR 1180, 1185.

[76] Ibid, 1193.

[77] Ibid.

[78] Ibid, 1193-4 adopting the words of Brandeis J in Ex parte Peterson 243 US 300, 309-310 (1920), quoted by Gaudron, Gummow and Hayne JJ at ibid, 1190.

[79] In their Honours' view, this reflected 'not only the increased complexity of the substantive issues to be tried but the expansion of procedural rights favouring the accused' - Brownlee v The Queen [2001] HCA 36; (2001) 75 ALJR 1180, 1193.

[80] [1999] HCA 52; (1999) 199 CLR 99, 106.

[81] Brownlee v The Queen [2001] HCA 36; (2001) 75 ALJR 1180, 1193.

[82] Ibid, 1194.

[83] Ibid, 1208.

[84] Ibid.

[85] Ibid, 1209.

[86] Ibid, 1210.

[87] Ibid, 1216.

[88] See the similar observations made in relation to Grain Pool of Western Australia v The Commonwealth (2000) 74 ALJR 648; see Hill above n 54, 160.

[89] Ibid, 1183.

[90] Ibid.

[91] Cheatle v The Queen [1993] HCA 44; (1993) 177 CLR 541, 560.

[92] See for example the judgment of Gaudron, Gummow and Kirby JJ in Brownlee v The Queen [2001] HCA 36; (2001) 75 ALJR 1180, 1189. To the extent that a reduction could be made with the consent of the accused under s 22(a)(ii), the question of waiver arises. This will depend upon whether the decision in Brown v The Queen [1986] HCA 11; (1986) 160 CLR 171 is overruled by the Court.

[93] Brownlee v The Queen [2001] HCA 36; (2001) 75 ALJR 1180, 1194.

[94] Ibid, 1193.

[95] [1970] USSC 150; 399 US 78 (1970) cited at [2001] HCA 36; (2001) 75 ALJR 1180, 1185.

[96] Their Honours noted that White J's observations applied 'with even greater force' to a system allowing a reduction from twelve to ten – ibid.

[97] Ibid, 1216. His Honour acknowledged that a line had to be drawn, but did not speculate as to where that line might be drawnibid.

[98] Ibid, 1210.

[99] Ibid, 1208.

[100] Ibid, 1210.

[101] Ibid, 1188.

[102] Ibid, 1193. See also ibid, 1194.

[103] Ibid, 1193.

[104] Ibid.

[105] [1970] USSC 150; 399 US 78 (1970) cited at [2001] HCA 36; (2001) 75 ALJR 1180, 1185.

[106] Ibid, 1216.

[107] Ibid, 1209.

[108] (1995) 15 WAR 404.

[109] Section 646 of the Criminal Code (WA) allows a trial judge to reduce the number of jurors from twelve to ten in certain circumstances. However, s 646 does not apply if there are sufficient reserve jurors to have a jury of twelve persons including replacements – see s 18(5) of the Juries Act 1957 (WA).

[110] See High Court transcript of proceedings, application for special leave to appeal, 5 August 1996. The Court comprised Dawson, McHugh and Kirby JJ for the hearing of the special leave application.

[111] Ibid.

[112] Brownlee v The Queen [2001] HCA 36; (2001) 75 ALJR 1180, 1210 (Kirby J).

[113] [1986] HCA 11; (1986) 160 CLR 171.

[114] Brownlee v The Queen [2001] HCA 36; (2001) 75 ALJR 1180, 1186.

[115] Ibid (Gleeson CJ and McHugh J); 1189 (Gaudron, Gummow and Hayne JJ); 1216 (Callinan J); 1199 (Kirby J dissenting).

[116] Ibid, 1199.

[117] [1984] HCA 18; (1984) 154 CLR 311, 316.

[118] Brownlee v The Queen [2001] HCA 36; (2001) 75 ALJR 1180, 1200.

[119] Ibid.

[120] Ibid.

[121] [1986] HCA 11; (1986) 160 CLR 171.

[122] Brownlee v The Queen [2001] HCA 36; (2001) 75 ALJR 1180, 1201.

[123] Ibid, 1194.

[124] Ibid, 1201.

[125] Ibid, 1203.

[126] Ibid, 1194 (Gaudron, Gummow and Hayne JJ).

[127] Cheng v The Queen [2000] HCA 53; (2000) 74 ALJR 1482, 1508.

[128] In other contexts, the High Court has emphasised the need to focus on the task at hand and to avoid unnecessary 'distractions' – John Pfeiffer Pty Ltd v Rogerson [2000] HCA 36; (2000) 74 ALJR 1109, 1114 (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ).

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