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Trial by jury.

80. The trial on indictment340 of any offence against any law of the Commonwealth341 shall be by jury342, and every such trial shall be held in the State where the offence was committed, and if the offence was not committed within any State the trial shall be held at such place or places as the Parliament prescribes.

UNITED STATES.—The trial of all crimes, except in cases of impeachment, shall be by jury; and such trial shall be held in the State where the said crimes shall have been committed; but when not committed within any State, the trial shall be at such place or places as the Congress may by law have directed.—Const., Art III., sec. 2, sub-s. 3.

No person shall be held to answer for a capital or otherwise infamous crime unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall anyperson be subject, for the same offence, to be twice put in jeopardy of life or limb; nor shall be compelled, in any criminal case, to be a witness against himself; nor be deprived of life, liberty, or property, without due process of law. (Amendment V.)

HISTORICAL NOTE.—The first part of the clause, as framed and passed in 1891, ran “The trial of all indictable offences cognizable by any Court established under the authority of this Act shall be by jury.”

At the Adelaide session, 1897, the clause was introduced almost verbatim as in 1891. Mr. Higgins opposed the clause, on the ground that the question of trial by jury might safely be left to the Federal Parliament; but it was agreed to. (Conv. Deb., Adel., pp. 990–1.)

At the Melbourne session an amendment suggested by the Legislative Assembly of South Australia, to omit the requirement that trial should be by jury, was supported by Mr. Glynn and Mr. Higgins. Mr. Wise supported the clause, as a necessary safeguard of individual liberty. Mr. Isaacs thought the clause afforded little guarantee, as it might be evaded by a technicality. After further debate, the amendment was negatived on division by 17 votes to 8. An amendment by Mr. Higgins, to insert “unless Parliament otherwise provides” before the words “be held in the State where,” was negatived. Before the first report, the clause was verbally amended by the Drafting Committee. (Conv. Deb., Melb., pp. 350–4.) On recommittal after the first report, the words “trial of all indictable offences” were, on Mr. Barton's motion, altered to “trial on indictment of any offence.” The object was to allow summary punishment of minor offences and contempts, even though they might be indictable. Mr. Isaacs thought that the clause, in either form, would have little real effect. (Conv. Deb., Melb., pp. 1894–5.)




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