R v Bernasconi (1915) 19 CLR 629; 21 ALR 86 [3/1915]

• Jurisdiction: Papua New Guinea
• Court: High Court
• Judge: Gavan Duffy J and Rich J:
• Judgment Date: 16 March 1915
• Citation: (1915) 19 CLR 629; 21 ALR 86 [3/1915]
• Year: 1915

High Court: Griffith CJ, Isaacs J, Gavan Duffy J, Rich J

Judgment Delivered: 16 March 1915

1 Constitutional Law—Powers of Commonwealth legislation as to territory acquired by Commonwealth—Indictable offence—Trial by jury—Appeal from Central Court of Papua—The Constitution (63 & 64 Vict c 12), s80, s122—Papua Act 1905 (No 9 of 1905) s5, s6, s43—Criminal Code (Qld) (63 Vict No 9, Sch1), s339, s604—Act No XI of 1889 (British New Guinea), s21—Act No VII of 1902 (British New Guinea)—Act No VII of 1907 (Papua)—Act No VIII of 1909 (Papua), s1.

2

___________________________

SUMMARY: The power of the Commonwealth Parliament conferred by s122 of the Constitution to make laws for the government of a territory, whether that 19 CLR 629 power is exercised directly or through a subordinate legislature, is not restricted by the provision in s80 of the Constitution that the trial on indictment of any offence against any law of the Commonwealth shall be by jury. By s21 of Act No XI of 1889 of British New Guinea it was provided that trials of persons accused of crimes and offences cognizable in the Central Court should be by the Chief Magistrate sitting alone. Act No VII of 1902 of British New Guinea provided that the Queensland Criminal Code should be the law of British New Guinea with respect to the several matters therein dealt with. By s339 of that Code an assault occasioning bodily harm is an indictable offence, and by s604 it is provided that on a trial for an indictable offence, if the accused pleads any plea other than a plea of guilty or a plea to the jurisdiction, he is to be deemed to have demanded, and is entitled to have, trial by a jury. By Act No. VII. of 1907 of Papua it was provided that the trial of persons of European descent charged with a crime punishable by death should be held before a jury of four persons, but that "save as aforesaid the trials of all issues, both civil and criminal, shall as heretofore be held without a jury."

Held, that a person of European descent who was charged in Papua with an assault occasioning bodily harm, to which he pleaded not guilty, was properly tried without a jury. 19 CLR 629 S1 of Act No VIII of 1909 of Papua, which provides that the Central Court must, on the application of counsel for the accused made before verdict, and may in its discretion, either before or after judgment, without such application, reserve any question of law which arises on the trial of an accused person for the consideration of the High Court, does not impose any restriction on the general right of appeal to the High Court given by s43 of the Papua Act 1905.

JUDGES: Griffith CJ (1), Isaacs (2), Gavan Duffy (3) and Rich (3) JJ.

JUDGMENT–1:

Buchanan v The Commonwealth 16 CLR 315 Merchant Service Guild v Newcastle and Hunter River Steamship Co (No. 1) 16 CLR 591 Dearman v Dearman 7 CLR 549 Canepa v Larios 2 Knapp 276

R v BERNASCONI.

HIGH COURT OF AUSTRALIA.

THE KING AGAINST

BERNASCONI.

ON APPEAL FROM THE CENTRAL COURT OF PAPUA.

1915: MELBOURNE, March 11, 12, 16.

Constitutional Law—Powers of Commonwealth legislation as to territory acquired by Commonwealth—Indictable offence—Trial by jury—Appeal from Central Court of Papua—The Constitution (63 & 64 Vict. c. 12), s80, s122—Papua Act 1905 (No. 9 of 1905) s5, s6, s43—Criminal Code (Qd.) (63 Vict. No. 9, Sch1), s339, s604—Act No. XI. of 1889 (British New Guinea), s21—Act No. VII. of 1902 (British New Guinea)—Act No. VII. of 1907 (Papua)—Act No. VIII. of 1909 (Papua), s1.

The power of the Commonwealth Parliament conferred by s122 of the Constitution to make laws for the government of a territory, whether that power is exercised directly or through a subordinate legislature, is not restricted by the provision in s80 of the Constitution that the trial on indictment of any offence against any law of the Commonwealth shall be by jury.

By s21 of Act No. XI. of 1889 of British New Guinea it was provided that trials of persons accused of crimes and offences cognizable in the Central Court should be by the Chief Magistrate sitting alone. Act No. VII. of 1902 of British New Guinea provided that the Queensland

Criminal Code should be the law of British New Guinea with respect to the several matters therein dealt with. By s339 of that Code, an assault occasioning bodily harm is an indictable offence, and by s604 it is provided that on a trial for an indictable offence, if the accused pleads any plea other than a plea of guilty or a plea to the jurisdiction, he is to be deemed to have demanded, and is entitled to have, trial by a jury. By Act No. VII. of 1907 of Papua it was provided that the trial of persons of European descent charged with a crime punishable by death should be held before a jury of four persons, but that "save as aforesaid the trials of all issues, both civil and criminal, shall as heretofore be held without a jury."

Held, that a person of European descent who was charged in Papua with an assault occasioning bodily harm, to which he pleaded not guilty, was properly tried without a jury.

S1 of Act No. VIII. of 1909 of Papua, which provides that the Central Court must, on the application of counsel for the accused made before verdict, and may in its discretion, either before or after judgment, without such application, reserve any question of law which arises on the trial of an accused person for the consideration of the High Court, does not impose any restriction on the general right of appeal to the High Court given by s43 of the Papua Act 1905.

CASE STATED and APPEAL.

At the Central Court of Papua, before His Honor J H. P. Murray, Chief Judicial Officer, George Bernasconi was tried on a charge of assault causing bodily harm, and was found guilty and sentenced to twelve months' imprisonment with hard labour. At the request of the solicitor for the accused, his Honor stated a case reserving for the consideration of the High Court the following question (inter alia):—

(1) Whether the accused's deemed request for a jury was rightly refused.

During the argument of the case, on the application of counsel for the accused he was allowed to treat it as an appeal from the conviction on the grounds that the verdict was against evidence, and that evidence was wrongly admitted.

The material facts are stated in the judgments hereunder.

Sir William Irvine K.C. (with him Cussen), for the accused. The accused was entitled to a jury under s80 of the Constitution. That section applies to all offences against any law of the Commonwealth. The words "any law of the Commonwealth" include laws made either directly by the Commonwealth Parliament itself or indirectly by an authority to which the Parliament has delegated the power of making laws. The Parliament can delegate only such powers as it has itself, and if s80 applies to all laws which the Parliament makes, it also applies to all laws made by a delegated authority. The fact that a law made by the Parliament is applicable to only a particular part of the Commonwealth does not make that law any the less a law of the Commonwealth. S339 of the Queensland Criminal Code of 1899, which creates the offence with which the accused was charged, derives its efficacy from the Papua Act 1905, and is therefore a law of the Commonwealth.

[ISAACS J Ought not s80 to be read as a qualification upon Chapter III. of the Constitution just as s55 is to be read as a limitation upon s51 (II.)?]

It is submitted that s80 should not be so read. The language of that section is plain and unambiguous, and there is no reason for imposing any limitation upon the words "any law of the Commonwealth." A law made under s122 of the Constitution is as much a law of the Commonwealth as one made under any other power conferred by the Constitution. The words "laws of the Commonwealth" are used in s61 of the Constitution, which provides that the executive power of the Commonwealth extends to the execution and maintenance of the "laws of the Commonwealth." That cannot be limited to laws made directly by the Parliament. In the United States Constitution there is a provision similar to s80 which is placed in that part dealing with the judicial power. There is also a similar provision to s122. Yet the provision as to trial by jury has been held in the United States to apply to territories: Callan v Wilson 1 127 US, 540; Thompson v Utah 2 170 US, 343 at 346; Dorr v United States 195 US, 138; Rassmussen v United States 197 US, 516 at 526. The words "trial on indictment" in s80 mean trial by formal charge before a superior Court and not of a summary nature. The trial in this case was in that sense a trial on indictment.

A general right of appeal to this Court is given by s43 of the Papua Act 1905, and no limitation has been placed upon that right by Act No VIII. of 1909 of Papua.

Starke and Morley, for the...