Evaluation of providing interpreter services
1. Alqudsi had requested to be tried by judge only as is permitted under NSW criminal law. He argued that the word ‘shall’ in section 80 of the Australian Constitution did not stop a court from allowing the defendant to not have a jury. He also argued that section 80 should be given a purposive construction, where it is interpreted to try to achieve its purpose. Its purpose was to protect the rights of the accused, therefore allowing the defendant to waive the requirement for this purpose.
2. The majorityjudges held that, while trial by jury changes over time, trial by judge alone was still not at all the same thing as trial by jury. They also found that a purposive construction should be rejected because the language of section 80 gives a clear command. Justices Nettle and Gordon said that the Commonwealth could not avoid the mandatory terms of section 80 by choosing to apply state laws that are inconsistent with them.
In a separate opinion, Justice Gageler (with the same findings but with different reasoning), commented that a jury held more significance in the legal system than merely being a privilege of the accused. He noted that the “constitutional guarantee of democratic participation would be flouted by a capacity, on the part of one or more parties in a trial on indictment or on the part of the court, […] to justify the court being constituted by a judge alone.”
3. Chief Justice French was the sole dissenting judge in Alqudsi v The Queen. He said that the purpose of the exercise of federal judicial power is ‘to do justice’ and that, while trial by jury was a “time-honoured” means of doing this, in some cases justice might be better served without one.
4. Student responses will vary. Students may suggest that, according to the High Court’s decision in Alqudsi, the right to trial by jury for criminal offences under Commonwealth law is an important human right that will remain protected by the Constitution for some time.