Guinea in May 1905, before the Parliament of the Commonwealth had passed any legislation for the Government of New Guinea as a territory of the Commonwealth. It was held by the High Court that until such legislation took place, and the proclamation consequent thereon was made, no such relationship of master and servant existed between the Commonwealth Government and the officials of the possession as would render the Commonwealth liable in an action of tort for wrongful acts of such officers: Tobin v. The Queen, 16 C.B.N.S., 310, applied.

Number of Judges.

79. The federal jurisdiction of any court may be exercised by such number of judges144 as the Parliament prescribes.

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§ 144. SUCH NUMBER OF JUDGES."

Under this section, the Parliament has power to prescribe the number of Judges, required to exercise jurisdiction, not only in the case of Federal Courts, but also of State Courts invested with Federal jurisdiction under section 77 (III.). Per GRIFFITH, C.J., Commissioners of Taxation v. Baxter, 4 C.L.R., at p. 1145. This power has been exercised with respect to State Courts by section 17 of the Judiciary Act 1903-1910, which invests the Supreme Courts with jurisdiction, to be exercised by a single Judge, with regard to chamber applications in matters pending in the High Court in cases where the jurisdiction of the High Court is not exclusive.

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As regards the High Court, sections 15, 16 and 18 of the same Act define the jurisdiction of single Justices in Court and Chambers. Sections 19-22 define the jurisdiction of a Full Court"; which, in appeals from judgments of a single Justice of the High Court or of a State Supreme Court exercising Federal jurisdiction, or from judgments of inferior State Courts or of the Inter-State Commission, or in applications for leave to appeal from judgments of State Courts. may consist of two or more Justices, and in appeals from State Supreme Courts and applications for a certificate enabling an appeal from the High Court to the Privy Council must consist of not less than three Justices. By section 23, as amended by the Judiciary Act 1912, it is provided that a Full Court consisting of less than all the Justices shall not give a decision on a question affecting the constitutional powers of the Commonwealth, unless a majority of

all the Justices concur in the decision. By the same Act it was provided that when the Justices sitting as a Full Court are divided in opinion as to the decision to be given on any question, the question shall be decided according to the decision of the majority, if there is a majority; but if the Court is equally divided in opinion—(a) in the case where a decision of a Justice of the High Court (whether acting as a Justice of the High Court or in some other capacity), or of a Supreme Court of a State or a Judge thereof, is called in question by appeal or otherwise, the decision appealed from shall be affirmed; and (b) in any other case, the opinion of the Chief Justice, or if he is absent the opinion of the senior Justice present, shall prevail."

Part XII. of the Principal Act, passed and added in 1910, confers on the High Court jurisdiction to hear and determine any question of law referred to it by the Governor-General as to the validity of any Act or enactment of the Parliament; requires the matter to be heard and determined by a Full Court consisting of all the Justices, except such as may be absent from the Commonwealth or incapacitated by illness.

Trial by jury.

80. The trial on indictment of any offence against any law of the Commonwealth shall be by jury,145 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.

$145. "SHALL BE BY JURY."

Trial by Jury Defined.

It is the method of trial in which laymen selected by lot ascertain under the guidance of a Judge the truth in questions of fact arising either in a civil litigation or in a criminal process. The principle that a witness shall not be compelled to criminate himself has become a principle of British criminal law, departed from, no doubt, in special instances, as in the case of offences against the bankruptcy laws, but still maintained and administered as part of the great body of British criminal jurisprudence. But it is no part of the system of trial by jury, and the authority of the Parliament of the Commonwealth to create and punish offences as incidental

to the exercise of the powers conferred by the Constitution would certainly extend to the modification of any principle of British criminal law, no matter how fundamental, so long as the modification is not forbidden expressly or impliedly by the Constitution.” Miller's Constitution of the United States, (1893), at p. 511.

Self Incrimination.

In Huddart Parker & Co. v. Moorehead, 8 C.L.R., at p. 337 it was contended for the defendant appellant that the right to a trial by jury implied the ordinary common law incidents for the protection of an accused person; and therefore that section 15B of the Australian Industries Preservation Act 1906-1907, by granting powers of discovery which compelled the defendant to incriminate himself, offended against section 80 of the Constitution. The High Court, however, unanimously over-ruled the objection.

The Chief Justice (Sir SAMUEL GRIFFITH) said :- "It is sufficient to say that the doctrine expressed by the maxim nemo tenetur seipsum accusare was introduced into English law long after the institution of trial by jury; that its application has frequently been excluded by Statutes in the case of indictable offences (e.g., offences against the bankruptcy laws); and that the rule is rather one of evidence than one relating to trial by jury": 8·C.L.R., 358.

Mr. Justice ISAACS said :- -"The essence of the objection is that self-incrimination is inconsistent with trial by jury. No direct authority was or could be adduced in support of this contention; but several cases were cited which were decided upon the Fifth Amendment of the American Constitution declaring that no person shall be compelled in any criminal case to be a witness against himself.' The American Courts never, so far as I am aware rested this principle on the jury system. Section 80 of our Constitution retains, in respect of trials on indictment for Commonwealth offences, the provision of Magna Charta that the issue shall be determined per legale judicium parium suorum,' so jealously preserved in the American Constitution. The whole meaning and essence of the requirement is that a jury, and not a judicial officer, shall pronounce on the guilt or innocence of the accused. But the rule as to self-incrimination is outside the scope of that provision; it is still a mere evidentiary rule, applicable to all criminal offences, indictable or otherwise, and open like all rules of evidence to Parliamentary regulation" 8 C.L.R., at pp. 385-386.

No Appeal against Acquittal by Jury.

In the prosecution of an indictment before a Judge of the Supreme Court of South Australia for attempting to trade with the enemy contrary to the provisions of the Trading with the Enemy Act (1914), the jury, by the direction of the presiding Judge, found a verdict of not guilty. Thereupon he entered a judgment of acquittal and the accused was discharged. The Crown applied to the High Court for special leave to appeal under section 73 of the Constitution from the judgment or alternatively from the direction of the Judge. It was held by the majority of the High Court, GRIFFITH, C.J. and GAVAN DUFFY, POWERS and RICH, JJ. (ISAACS and HIGGINS, JJ. dissenting) that special leave to appeal should be refused. The King v. Snow, (1915) 20 C.L.R., at p. 315.

In this case leave was refused by GRIFFITH, C.J. and GAVAN DUFFY and RICH, JJ., as to the judgment of acquittal, on the ground that although under section 73 of the Constitution the High Court has jurisdiction to entertain an appeal from a judgment discharging an accused person, that section does not confer jurisdiction on the High Court to set aside a verdict of "not guilty," so that, when, as in this case, the judgment properly followed the verdict, the granting of special leave to appeal would be futile; and, as to the direction of the learned Judge, on the ground that it was not a "judgment" from which under section 73 an appeal lies to the High Court. Mr. Justice PoWERS based his decision on the ground that although under section 73, the High Court had jurisdiction to entertain an appeal from the judgment of acquittal, to set aside the verdict and to grant a new trial, the discretion to grant special leave should not in the circumstances be exercised: 20 C.L.R., 315-316.

The Chief Justice (Sir SAMUEL GRIFFITH) said: The common law doctrine as to the effect of a verdict of acquittal is too well settled to require exposition, and it is too late to inquire into its origin. If it had been intended by the framers of the Constitution to abrogate that doctrine in Australia, and to confer upon the High Court a new authority, such as had never been exercised under the British system of jurisprudence by any Court of either original or appellate jurisdiction, it might have been anticipated that so revolutionary a change would have been expressed in the clearest language. Section 80 lays down as a fundamental law of the Commonwealth that the trial on indictment of any offence.

against any of the laws of the Commonwealth shall be by jury The framers of the Constitution, the electors who accepted it, and the Parliament which enacted it, must all be taken to have been aware of the absolute protection afforded by verdict of not guilty under the common law of all the States. With this knowledge they thought proper to enact that any indictable offence that might be created by the new legislative authority established by the Constitution should also be tried by jury. The history of the law of trial by jury as a British institution (not forgetting the Act called Fox's Libel Act) is, in my judgment sufficient to show that this provision ought, prima facie to be construed as an adoption of the institution of " trial by jury " with all that was connoted by that phrase in constitutional law and in the common law of England. Per GRIFFITH, C.J., 20 C.L.R., at pp. 322-323.

Not Applicable to Territories.

The provisions of Chapter III. of the Constitution, including section 80, are limited in application to the exercise of the judicial power of the Commonwealth in respect of those functions of Government as to which it stands in the place of the States, and has no application to territories. Section 80, therefore, relates only to offences created by the Acts of Parliament passed in the execution of those functions which are aptly described as laws of the Commonwealth." The subordinate Legislature of a territory, such as Papua, can pass a law providing that the trial of persons of European descent charged with a crime punishable with 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." The King v. Bernasconi, (1915) 19 C.L.R., 633.

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Section 80 of the Constitution is one of a fasciculus of sections collected in one chapter and united and inter-related as members of a distinct group under the title of The Judicature.' The whole judicial power of the Commonwealth proper is there dealt with. By force of the various sections of Chapter III., other than section 80, and aided by sub-section (XXXIX.) of section 51, Parliament might have enacted, or might have enabled Courts to provide by rules, that all offences whatever should be tried by a Judge or Judges without a jury. Section 80 places a limitation on that power. Neither Parliament nor Courts may permit such a trial. If a given offence it is not made triable on indictment at all, then section 80