Hamdi Alqudsi v The Queen [2016] HCA 24

In the recent published decision of Alqudsi v R [2016] HCA 24 (15 June 2016), the High Court has dismissed the applicant’s application to be tried without a jury. The Court found that the applicant’s trial could not be heard without a jury under the Criminal Procedure Act (NSW) as to do so would be inconsistent with section 80 of the Australian Constitution.

Background

The applicant was charged on indictment with seven offences under the Crimes (Foreign Incursions and Recruitment) Act 1978 (Cth). The applicant was arraigned on the indictment in the Supreme Court of New South Wales and pleaded "not guilty" to each charge. His trial was listed to commence on 1 February 2016 before a judge and jury. The State Court operated under section 68 of the Judiciary Act 1903 (Cth) which confers jurisdiction on it to try offences against a law of the Commonwealth as well as applying the laws of that state concerning procedures and trials.

The applicant applied under the New South Wales Criminal Procedure Act, section 132, to be tried by a judge alone. However, section 80 of the Constitution provides that “trial on indictment of any offence against any law of the Commonwealth shall be by jury.”

High Court Decision

The majority found that that question could only be answered favourably to the applicant by overruling Brown v The Queen (1986) 160 CLR 171; [1986] HCA 11. The majority declined to do so, holding there was no reason to doubt the correctness of Brown. The majority also rejected the claim that section 80 could be subject to an exception where a court assesses that it is in the best interest of the applicant to be tried by a judge alone. 

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Alqudsi v The Queen [2016] HCA 24 and accompanying judgment summary