Simpson, Amelia; Wood, Mary --- "A Puny Thing Indeed'-Cheng v The Queen and the Constitutional Right to Trial by Jury" [2001] FedLawRw 5; (2001) 29(1) Federal Law Review 95

^[1] Cheng v The Queen [2000] HCA 53; (2000) 175 ALR 338; per Kirby J at [250] referring to the prevailing interpretation of s 80 of the Constitution.

^[*] BA/LLB (ANU), Lecturer, Faculty of Law, Australian National University.

^[**] BA/LLB (ANU), Visiting Fellow, Centre for International and Public Law, Australian National University.

^[2] Cheng v The Queen and Chan v The Queen [2000] HCA 53; (2000) 175 ALR 338.

^[3] Section 80 has been regarded as anything from a mere procedural provision—as Gleeson CJ, Gummow and Hayne JJ put it in Cheng at [29], a provision that simply "imposes various imperatives upon trials on indictment of offences against Commonwealth law"—through to a constitutional "guarantee" that protects the Australian people against any decision by Parliament to depart from fundamental aspects of the criminal trial by jury: see, for instance, the unanimous view of the High Court in Cheatle v The Queen (1993) 177 CLR 451. See more generally G Williams, Human Rights under the Australian Constitution (Melbourne, OUP, 1999), pp 103-109.

^[4] Cheng [2000] HCA 53; (2000) 175 ALR 338; at [173] per Kirby J.

^[5] [1985] HCA 72; (1985) 159 CLR 264.

^[6] The joint judgement on Gibbs CJ, Wilson and Dawson JJ, with whom Mason J agreed on this point, affirmed the narrow interpretation of s 80.

^[7] The particulars of the offence state that "[the applicants and others], between 1^st day of November 1997 and the 9^th day of November 1997 at Adelaide and other places in the said State, were knowingly concerned in the importation into Australia of a prohibited import to which Section 233B of the Customs Act 1901 applies, namely about 9350 grams of heroin, being not less than the commercial quantity.": see Cheng at [13], [66], [111] and [256].

^[8] R v Chan (SC(SA) 3 December 1998, unreported).

^[9] Ibid at 3.

^[10] R v Cheng, R v Chan, R v Cheng [1999] SASC 175; (1999) 73 SASR 502.

^[11] Ibid at [32] per Bleby J (Doyle CJ and Wicks J agreeing).

^[12] Gleeson CJ, Gummow and Hayne JJ held that knowledge of the quantity of the prohibited substance imported, or attempted to be imported, is not required by the expression "knowingly concerned" in 233B(1).

^[13] Cheng at [32].

^[14] Cheng at [283].

^[15] Cheng at [122].

^[16] Cheng at [158].

^[17] Cheng at [95].

^[18] Ibid at [102].

^[19] Ibid at [102]-[103].

^[20] Ibid at [229].

^[21] Cheng at [234].

^[22] Cheng at [255].

^[23] The other reasons cited in the judgment of Gleeson CJ, Gummow and Hayne JJ for refusing to consider the merits of the applicants' submissions were: that Kingswell had involved a challenge on identical grounds to the Customs Act provisions (see discussion at (c) below); that undesirable practical consequences would flow from holding those provisions invalid (see discussion below in text at nn 72-75); and that the drafter's intentions as reflected in historical material, together with existing authority on s 80's construction, militate against a rights-protective view: Cheng at [52]. The flaws in this reasoning are discussed below in text at nn 76-100.

^[24] Cheng at [47]; see also at [103] per Gaudron J, who gave similar reasons for holding that there was no substantial miscarriage of justice such as to warrant quashing of the convictions. Justice Callinan at [284] thought the guilty pleas meant that "[n]o issue was raised as to any relevant circumstances of aggravation for resolution by a jury". However, other factors were more important to his conclusion that the appeal should be dismissed. Justice McHugh, addressing the significance of the guilty pleas, simply pointed to the fact that the applicants challenged the correctness of Kingswell, not R v Meaton.

^[25] See footnote 7

^[26] Cheng at [48].

^[27] [1986] HCA 27; (1986) 160 CLR 359.

^[28] Cheng at [236].

^[29] Cheng at [209].

^[30] Cheng at [236].

^[31] Cheng at [237].

^[32] Cheng at [50].

^[33] Cheng at [57].

^[34] Cheng at [52]-[54]. See discussion below in text at nn 76-100.

^[35] Cheng at [143].

^[36] [1986] HCA 11; (1986) 160 CLR 171.

^[37] [1993] HCA 44; (1993) 177 CLR 541.

^[38] [1999] HCA 50; (1999) 166 ALR 159.

^[39] Cheng at [268].

^[40] Cheng at [283].

^[41] Cheng at [87].

^[42] Cheng at [82].

^[43] Cheng at [176].

^[44] Cheng at [219].

^[45] Cheng at [220].

^[46] Cheng at [218].

^[47] For example, see G Williams, Human Rights under the Australian Constitution (1999) at 107.

^[48] [1928] HCA 18; (1928) 41 CLR 128 at 136 per Knox CJ, Isaacs, Gavan Duffy, and Powers JJ.

^[49] Knox CJ et al said this interpretation was so self-evident that it "needs no exposition": ibid.

^[50] AM Gleeson, "Judicial Legitimacy", an address to the Australian Bar Association Conference, New York, 2 July 2000.

^[51] EH Levi, "The Nature of Judicial Reasoning" (1965) 32 University of Chicago Law Review 395, 409.

^[52] This seems implicit in the discussion in John v Federal Commissioner of Taxation [1989] HCA 5; (1989) 166 CLR 417 regarding the factors to be weighed in considering a departure from earlier High Court authority: at 438 per Mason CJ, Wilson, Dawson, Toohey and Gaudron JJ.

^[53] [1938] HCA 10; (1938) 59 CLR 556.

^[54] Ibid at 571 per Latham CJ and at 573 per Rich J.

^[55] Starke J and McTiernan J.

^[56] [1938] HCA 10; (1938) 59 CLR 556 at 582.

^[57] Gleeson CJ, Gummow and Hayne JJ acknowledged these two authorities as being at the root of the procedural view of s 80: Cheng at [55] and [56]. McHugh J at [152] also made passing reference to this line of authority.

^[58] Ibid at [103] per Gaudron J and at [108]-[109] per McHugh J.

^[59] Ibid at [41].

^[60] Cheng at [43]-[44].

^[61] The competence, in the circumstances, of the appeals was confirmed by the South Australian Court of Criminal Appeal on appeal from Debelle J: R v Cheng [1999] SASC 175 at [8]- [11] per Bleby J, Doyle CJ and Wicks J agreeing.

^[62] Cheng at [43].

^[63] Ibid at [258].

^[64] See: Proprietary Articles Trade Association v A-G (Can) [1931] AC 310 at 324 per Lord Atkin (for the Privy Council).

^[65] R v Cheng, R v Chan, R v Cheng [1999] SASC 175; (1999) 73 SASR 502; at [8]-[11] per Bleby J, Doyle CJ and Wicks J agreeing; R v Frantzis (1996) 66 SASR 558; R v Howes (1971) 2 SASR 293; R v Forde [1923] 2 KB 400; see also R v Parsons [1998] 2 VR 478.

^[66] Cheng at [56].

^[67] Cheng at [144]-[145].

^[68] Beckwith v The Queen [1976] HCA 55; (1976) 135 CLR 569 at 585 per Murphy J.

^[69] R v Federal Court of Bankruptcy; Ex parte Lowenstein [1938] HCA 10; (1938) 59 CLR 556 at 583 per Dixon and Evatt JJ.

^[70] Kingswell v The Queen [1985] HCA 72; (1985) 159 CLR 264 at 319 per Deane J.

^[71] Recent examples include: Mabo v Queensland [No 2] (1992) 175 CLR 1, as to the existence and attributes of native title; Re Australian Education Union; Ex parte Victoria [1995] HCA 71; (1995) 184 CLR 188, as to the circumstances in which States enjoy immunity from Commonwealth law; Australian Capital Television Pty Ltd v Commonwealth [1992] HCA 45; (1992) 177 CLR 106, as to when the protection of the implied freedom of political communication is attracted; John v FCT [1989] HCA 5; (1989) 166 CLR 417, as to when the Court will overrule its own decisions; and, Stingel v The Queen [1990] HCA 61; (1990) 171 CLR 312, as to the availability of a defence of provocation.

^[72] Cheng at [37].

^[73] Cheng at [283].

^[74] Re Wakim; Ex parte McNally (1999) 198 CLR 511.

^[75] Wilson v Minister for Aboriginal and Torres Strait Islander Affairs [1996] HCA 18; (1996) 189 CLR 1.

^[76] Cheng at [176] and [227].

^[77] New South Wales v Commonwealth (Incorporation Case) (1990) 169 CLR 482.

^[78] Deane J insisted that it is morally objectionable that the framers' intentions should constrain the meaning which the Court gives to the Constitution's provisions, because the Constitution gained its authority from its acceptance by the people, not the framers: Ibid at 511. See also Theophanous v Herald and Weekly Times Ltd [1994] HCA 46; (1994) 182 CLR 104 at 167-168 and 171 per Deane J.

^[79] New South Wales v Commonwealth (Incorporation Case) (1990) 169 CLR 482 at 511.

^[80] Official Record of the Debates of the Australasian Federal Convention, vol I, Sydney 1891, at 958.

^[81] Official Record of the Debates of the Australasian Federal Convention, vol III, Adelaide 1897, at 990-1.

^[82] Official Record of the Debates of the Australasian Federal Convention, vol IV, Melbourne 1898, at 350.

^[83] Ibid.

^[84] Ibid at 351-2.

^[85] Ibid at 352.

^[86] Ibid.

^[87] Ibid.

^[88] Ibid at 353.

^[89] Cheng [2000] HCA 53; (2000) 175 ALR 338; at [134].

^[90] Official Record of the Debates of the Australasian Federal Convention, vol V, Melbourne 1898, at 1894.

^[91] J Quick and R Garran, Annotated Constitution of the Australian Commonwealth (1995 rep) at 194.

^[92] Official Record of the Debates of the Australasian Federal Convention, vol V, Melbourne 1898, at 1894.

^[93] Hawkins (1824) Pleas of the Crown, 8^th edn, Book 1, Ch 6, s 8, vol I, p 63; Book 2, Ch 25, s 4, vol II, p 289. Also Skipworth's Case (1873) LR 9 QB 230 at 233.

^[94] Summary disposal of these contempt matters is sometimes said to have evolved from the necessity promptly to reaffirm the authority of the court after an incident: R v Taylor; Ex p Roach [1951] HCA 22; (1951) 82 CLR 587. Others have viewed the evolution of the summary procedure as an historical accident or error: Fox (1927) The History of Contempt of Court, Clarendon Press, Oxford; Miller (1989) Contempt of Court, 2^nd edn, Clarendon Press, Oxford, p 48.

^[95] For example, Tibbits and Windust [1902] 1 KB 77, where each defendant was indicted, found guilty by a jury and sentenced to six weeks' imprisonment.

^[96] Official Record of the Debates of the Australasian Federal Convention, vol V, Melbourne 1898, at 1894 (emphasis added).

^[97] Ibid at 1895.

^[98] Cheng per Gleeson CJ, Gummow and Hayne JJ at [53]-[54] and McHugh J at [137].

^[99] Isaacs suggests that Parliament could, if it wanted, "[say] that the jury should be composed of two persons, or of only one person.": Official Record of the Debates of the Australasian Federal Convention, vol V, Melbourne 1898, at 1895. Interestingly, the High Court has already rejected the possibility of Parliament's tampering with the composition or operation of a jury: Cheatle v The Queen [1993] HCA 44; (1993) 177 CLR 541.

^[100] J Quick and R Garran, The Annotated Constitution of the Australian Commonwealth (1995 rep) at 808.

^[101] [1988] HCA 18; (1988) 165 CLR 360.

^[102] D Dawson, "Intention and the Constitution—Whose Intent?" (1990) 6 Aust Bar Rev 93; see also: Tasmania v Commonwealth [1904] HCA 11; (1904) 1 CLR 329 at 358-60 per O'Connor J; Attorney-General (Cth; Ex rel McKinlay v Commonwealth [1975] HCA 53; (1975) 135 CLR 1 at 17 per Barwick CJ.

^[103] [1986] HCA 11; (1986) 160 CLR 171.

^[104] [1993] HCA 44; (1993) 177 CLR 541.

^[105] See R Dworkin, Law's Empire (1986) at 225-7.

^[106] R v Federal Court of Bankruptcy; Ex Parte Lowenstein [1938] HCA 10; (1938) 59 CLR 556.

^[107] Cheng at [176].

^[108] The "presumption against surplusage" is discussed in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 382 per McHugh, Gummow, Kirby and Hayne JJ. In the constitutional context, see: Victoria v Commonwealth and Hayden (AAP Case) [1975] HCA 52; 134 CLR 338 at 354 per Barwick CJ. The Court has always viewed principles of statutory construction as generally applicable in the constitutional context: Amalgamated Society of Engineers v Adelaide Steamship Co [1920] HCA 54; (1920) 28 CLR 129 at 148-150 per Knox CJ, Isaacs, Rich and Starke JJ and at 161-2 per Higgins J.

^[109] R v Federal Court of Bankruptcy; Ex Parte Lowenstein [1938] HCA 10; (1938) 59 CLR 556 at 582 per Dixon and Evatt JJ.

^[110] Cheng at [85].

^[111] For example: Cole v Whitfield [1988] HCA 18; (1988) 165 CLR 360 at 399-400; Street v Queensland Bar Association [1989] HCA 53; (1989) 168 CLR 461 at 488 and 469; Philip Morris Ltd v Commissioner of Business Franchises (Vic) [1989] HCA 38; (1989) 167 CLR 399 at 433 and 449-50; Ngo Ngo Ha v New South Wales [1997] HCA 34; (1997) 189 CLR 465 at 491 and 498.

^[112] See, eg: Bank of NSW v Commonwealth [1948] HCA 7; (1948) 76 CLR 1 at 349-350 per Dixon J; Georgiadis v Australian and Overseas Telecommunications Corporation (1994) 179 CLR 297 at 305 per Mason CJ, Deane and Gaudron JJ.