33.
GUMMOW J. In his reasons the Chief Justice explains the constitutional and statutory (federal and State) structure upon which rested the trial on joint indictment of the appellants in the District Court of New South Wales on charges laid under federal law. The provisions of s 11 of the District Court Act 1973 (NSW) and s 131 of the Criminal Procedure Act 1986 (NSW) produced the result that, as a matter of New South Wales law, the trial was to be "by a jury". There is no suggestion that these provisions were not "picked up" by federal law and no suggestion that they conflicted with the requirements of s 80 of the Constitution.
Argument on the appeals to this Court was limited to what was said to be a serious systemic failure in the conduct of the jury trial by reason of a lack in the necessary superintendence of the proceedings by the trial judge. The appellants complained that the Court of Criminal Appeal of the Supreme Court of New South Wales (Grove and Howie JJ, Basten JA dissenting)[1] had erred in dismissing the appeals against conviction. The appellants contended that there had been "a miscarriage of justice" and that this had not attracted the exercise of the power to dismiss an appeal because the appellate court "considers that no substantial miscarriage of justice has actually occurred" within the meaning of s 6(1) of the Criminal Appeal Act 1912 (NSW) ("the Criminal Appeal Act"), again as "picked up" by federal law.
The appeals to this Court may be decided favourably to the appellants by reference to the State legislative structure and the common law of Australia respecting the character of trial by jury, without entering upon the question whether s 80 of the Constitution imposed requirements which both went beyond those of the common law and were not satisfied by the conduct of the trial of the appellants.
The relevant characteristic of the institution of jury trial inherited in Australia and elsewhere from the English common law was explained by Sir Matthew Hale in his work The History of the Common Law, first published posthumously in 1713[2]. The tenth of the excellencies of the jury trial was identified by Hale as follows[3]:
"that the judge is always present, at the time of the evidence given in it. Herein he is able, in matters of law, emerging upon the evidence, to direct
