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-Argued that this contravened s 80. Held: (Majority) -Dividing line is drawn at conviction –up to point of conviction all factual matters had to be left to the jury, but after conviction a person could then be subject to judicial determination of facts in terms of penalty. (Minority) -If a more serious content is to be given to s 80, it should be that factual matters are always left to the jury, and this should not be diluted. Cheng v R (2000) 203 CLR 248 Facts: -Same legislation as Kingswell challenged Held: (Gleeson CJ, Gummow and Hayne JJ) -Not appropriate case to revisit Kingswellbecause K had pleaded not-guilty, run the course of a jury trial, was found guilty, and then raised constitutional argument. Here, C had pleaded guilty then tried to have whole provision invalidated. (McHugh J) -Revisits issue of s 80’s limits –where is a criteria to be found for setting a standard of trials on indictment under s 80? (Kirby J) -Should not be ruled by voices of past. Would not look at Constitutional Debates. Wanted to give greater content to s 80. R v Brown (1986) 160 CLR 171 Facts: -Brown was charged under a Commonwealth offence -In SA the accused can opt for summary conviction by trial by judge alone rather than a jury -Section 79 JA ostensibly picks that up Distributing prohibited | Downloaded by Wai Wong ([email protected])lOMoARcPSD
93 Held: -Did not have the right to choose a trial by judge alone –cannot waive the obligation imposed by s 80. -The mandatory requirement of s 80 of the Constitution prevails over any contrary provision of a State. R v Cheatle (1993) 177 CLR 541 Facts: -What is a jury? -Judiciary Act (Cth) should always be referred to when dealing with matter of federal jurisdiction. -Section 79 of Judiciary Act provides that when there is a court in states exercising federal jurisdiction, it applies local rules of procedure. -Some states allow for majority verdicts in jury trials (eg, majority of 10) -In Cheatle, person applied on Commonwealth offence -Section 79 applied and there was a majority of 10 –found guilty Held: (Unanimous) -State procedures cannot pick up a provision that is incompatible with s 80. -Unanimity of verdict is a non-negotiable minimum requirement of s 80. Brownlee v R (2001) 180 ALR 301 Held: -Court accepted that if one or possibly two jurors either died, fell ill, or had to be discharged for some other reason, it was acceptable to take the verdict of the remaining jurors provided it was unanimous.Katsuno v R (1999) 166 ALR 159 Facts: -Prosecutor made peremptory challenge to juror -Was based on information that was illegally obtained Held: -The breaches of the Juries Act 1967 (WA) that did occur took place anterior to the selection of the jury and did not deny the accused his constitutional right to trial by jury. -The fact that the prosecutor made use of the information in making the peremptory challenge was not such a departure from a mandatory provision relating to the authority and constitution of the jury as to deny the constitutionality of the appellant’s trial.Ng v R  HCA 20 Held: -Reduction of jurors from 15 to 12 -