§ 340. “The Trial on Indictment.”

THE TRIAL.—It has been held in the United States that the word “trial” means the trying of the cause by the jury, and not the arraignment and pleading preparatory to such trial. (United States v. Curtis, 4 Mason 232.),

It would seem that this provision is only intended to apply to trials in federal courts, and courts exercising federal jurisdiction; and not to extend to the courts of the States in those cases in which they may have a concurrent jurisdiction to try offences against the laws of the Commonwealth. With regard to the corresponding provision of the Constitution of the United States (set out above), Miller, J., in Eilenbecker v. District Court, 134 U.S. at p. 35, said:—

“This article is intended to define the judicial power of the United States, and it is in regard to that power that the declaration is made that all crimes … shall be by jury. It is impossible to examine the accompanying provisions of the Constitution without seeing very clearly that this provision was not intended to be applied to trials in the State Courts.”

“As the Constitution of the United States was ordained and established by the people of the United States, for their own government as a nation, and not for the government of the individual States, the powers conferred, and the limitations on power contained in that instrument, are applicable to the Government of the United States, and the limitations do not apply to the State Governments unless expressed in terms.” (Kent Comm. i. 407; Barron v. Baltimore, 7 Peters, 243.)

ON INDICTMENT.—The constitutional requirement of trial by jury only applies when the trial is “on indictment;” and there is no provision, corresponding to the Fifth Amendment of the United States Constitution, that all capital or infamous crimes must be tried on indictment. As was pointed out by Mr. Isaacs (Conv. Deb., Melb., p. 1894), “it is within the powers of the Parliament to say what shall be an indictable offence and what shall not. The Parliament could, if it chose, say that murder was not an indictable offence, and therefore the right to try a person accused of murder would not necessarily be by jury.”

It is submitted that, according to general usage in Australia, “indictment” includes an information filed by the Attorney-General or other proper officer for the prosecution of an indictable offence. In England, an indictment in the strict sense is “a written accusation of one or more persons of a crime presented upon oath by a jury of twelve or more men, termed a grand jury.” (Chitty, Crim. Law, i. 167.) An indictment by a grand jury is in England “the most usual and constitutional course for bringing offenders to justice on criminal charges” (Broom, Com. Law, p. 1047); whilst an ex officio information by the Attorney-General is only employed in the case of offences of peculiar public danger. Accordingly it has been held that the word “indictment” occurring in a particular statute did not include an ex officio information. (Reg. v Slator, 8 Q.B.D. 267.) In some Acts, however, for instance, 14 and 15 Vic. c. 100, s. 30, “indictment” is defined as including information. And “indictment” includes inquisition. (2 Hale, 155; Withipole's Case, Cro. Car. 134; Maxwell, Interpr. of Stat. p. 456.)

In New South Wales and Van Diemen's Land, by the Constitution Act of 1828 (9 Geo. IV. c. 83, s. 5) it was provided that “until further provision be made as hereinafter directed for proceeding by juries,” all offences cognizable in the Supreme Courts of those colonies should be “prosecuted by information in the name of His Majesty's Attorney-General, or other officer duly appointed for such purpose by the Governor of New South Wales and Van Diemen's Land respectively,” and that such information should be tried before a Judge and seven naval or military officers. By sec. 10 the Legislatures of the two colonies respectively were authorized to “extend and apply the form and manner of proceeding by grand and petit juries.” It was doubtless contemplated that when the colonies became ripe for the jury system, the procedure by information would be superseded by indictment before a grand jury; but in both colonies an information in the name of the Attorney-General continues to be the usual mode of prosecuting indictable offences, and the information is called, in the

  ― 809 ―
Statute book and in common parlance, an “indictment.” The same is the case in Queensland. (See Crim. Law Amendment Act of 1883 [N.S.W.], s. 3; Crim. Practice Act, 1865 [Queensland], s. 76.) In South Australia and Western Australia grand juries were instituted for a time, but were abolished in 1865 and 1883 in those colonies respectively, an information by the Attorney-General, in lieu of a grand jury, being substituted. In Victoria there is provision made for indictment by grand juries; but the most usual form of prosecuting indictable offences is by “presentment” by the Attorney-General. (See Crimes Act 1890 [Vic.], ss. 387–9.)

In all the Australian colonies, therefore, indictable offences are prosecuted in the name of the Attorney-General by a procedure variously known as information, presentment, or indictment, and chiefly differing from an indictment in being found by a law officer instead of by a grand jury. It seems clear that the words “on indictment” would extend to any such form of prosecution as this. The distinction intended by the section is between indictable offences and offences punishable in a summary way; and its operation ought, therefore, to extend to all prosecutions which are substantially in the nature of an indictment.