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LLB203 Study Guide - Final Guide: Jury Trial, Indictable Offence, Summary OffencePremium

3 pages29 viewsSpring 2018

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Peter black
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Jury Trial
The trial on indictment of any offence against any law of the Commonwealth shall be by
jury, and every such trial shall be held in the State where the offence was committed, and if
the offence was not committed within any State the trial shall be held at such place or
places as the Parliament prescribes
Constitution s 80
Section 80 was the result of compromise between two rival proposals, and appears on
its face to be meaningless
R v Archdall
FACTS: The High Court considered provisions of the Crimes Act (Cth) which
provided that some offences could be punished either on indictment or on summary
conviction and provided for lesser maximum penalties on summary conviction.
HELD: following argument about the definition of summary conviction, that this case
was a summary matter and therefore s 80 was not infringed.
HIGGINS J: ‘’if there be an indictment, there must be a jury; but there is nothing to
compel procedure by indictment’’: on the basis of this the commonwealth could
provide summary trial of the most serious offences and negate the supported effect of
s 80.
Majority has so far take this view, but there has been a significant minority, which has
tried to give the section some force
Criticisms of the literal approach
The literal approach has been criticised on many occasions
White v Director of Military Prosecutions (2007) 231 CLR 570 per Kirby J at [167]:
To take the literal approach renders trial by jury for the applicable offences optional in
the hands of the governmental agencies against whom jury trials can be a precious
protection for the individual. When Australian judges and lawyers become more
accustomed to reasoning by reference to fundamental rights, they will see the truth of
this proposition more clearly
The Cth is able to negate the supposed effect of s 80 by simply providing for summary
trial of the most serious offences
S 80 does not limit the legislative power of the States
The power of the Cth to make laws with respect to defence are not subject to the
constitutional guarantee of trial by jury in respect of Cth indictable offences
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