and Ha v The Queen
[2013] VSCA 77
•9 April 2013
SUPREME COURT OF VICTORIA
COURT OF APPEAL
| S APCR 2012 0114 | |
| HA | Appellant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES | NETTLE AP, BUCHANAN and PRIEST JJA | |
| WHERE HELD | MELBOURNE | |
| DATE OF HEARING | 9 April 2013 | |
| DATE OF JUDGMENT | 9 April 2013 | |
| MEDIUM NEUTRAL CITATION | [2013] VSCA 77 | |
| JUDGMENT APPEALED FROM | DPP v [HA] (Unreported, County Court of Victoria, Judge Gaynor, 6 February 2012) | |
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CRIMINAL LAW – Conviction – Sexual penetration of child under 16 and indecent act with child under 16 – Jurisdiction – Offences committed on ferry steaming between Port of Melbourne, Victoria and Port of Devonport, Tasmania – Whether and when necessary for Crown to prove that offences committed within Victorian jurisdiction – Thompson v R (1989) 169 CLR 1, considered; Reg v Wallwork (1958) 42 Cr App R 153; Reg v Hildebrandt (1963) 81 WN (NSW) 143, referred to.
CRIMINAL LAW – Procedure – Indictment – Pleading – Whether necessary for Crown to plead place of commission of offences – Whether pleading that offences committed at place ‘adjacent to Victoria’ adequate to invoke statutory presumption applicable to offences alleged to have been committed within ‘adjacent area’ for Victoria – Whether failure to invoke statutory presumption inimical to pleading – Reg v Wallwork (1948) 42 Cr App R 153, applied; Criminal Procedure Act 2009 (Vic), Schedule 1 – Crimes at Sea Act 1999 (Vic), Crimes at Sea Act 2000 (C’th), Schedules 1, Clauses 1, 2 and 4.
CRIMINAL LAW – Evidence – Mode and form – Evidence of former Master of ferry as to ‘legal boundary’ between Victorian and Tasmanian waters – Whether evidence as to ‘legal boundary’ objectionable as hearsay or opinion or otherwise in point of mode and form – Whether objection waived – R v Ford [1972] VR 3; R v Radford (1993) 6 A Crim R 210; R v Clark (2005) 13 VR 75, referred to – Evidence Act 2008 (Vic), s 143.
CRIMINAL LAW – Juries – Transcript of discussion between judge and counsel in absence of jury – Transcript inadvertently given to jury – Whether productive of miscarriage of justice – Juries Act 2000 (Vic), s 78(4).
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| Appearances: | Counsel | Solicitors |
| For the Appellant | Mr P F Tehan QC | McNamaras |
| For the Crown | Mr B F Kissane | Mr C Hyland, Solicitor for Public Prosecutions |
NETTLE AP:
Following a trial in the County Court at Melbourne, the appellant was convicted of one count of sexual penetration of a child under the age of 16 and two counts of indecent act with a child under 16 and was sentenced therefor to a total effective sentence of three years' imprisonment with a non‑parole period of one year and six months.
This is an appeal against conviction. Originally there were four grounds of appeal. On 30 November 2012, Bongiorno JA granted the appellant leave to appeal on Ground 2 only. The appellant, however, has since elected to renew his application to appeal on Grounds 3, 4 and 1. Accordingly, it is convenient to deal with Grounds 2, 3 and 4 first in that order and then with Ground 1.
Ground 2
With respect to Ground 2, the offences were alleged to have been committed on 8 April 2003 on the Spirit of Tasmania ferry as it steamed between the Port of Melbourne and the Port of Devonport. The indictment alleged that the offences took place, 'at a place adjacent to Victoria'.
The point of Ground 2 that is, in order to track the language of clause 2 of schedule 1 to the Crimes at Sea Act2000 (Cth), the indictment needed to allege that the offences occurred in the 'adjacent area' for Victoria and that the failure to do so caused a miscarriage of justice because the appellant stood trial 'for offences the jurisdictional element of which was not properly pleaded'.
In my view the argument is unsound. As a result of the Indictments Act 1915 (UK), of which the substance is reproduced in Victoria as schedule 1 to the Criminal Procedure Act2009, an indictment is sufficient if it contains a statement of the specific offence or offences with which the accused person is charged, together with such particulars as may be necessary for giving reasonable information as to the nature of the charge.
It follows that, except for offences of which the location is an essential element, it is not necessary, although it is frequently done, to identify in an indictment the place where the offence is alleged to have occurred. Neither sexual penetration of a child under 16 nor indecent act with a child under 16 is an offence of which location is an essential element. Like incest,[1] each is an offence wherever it is committed and consequently the indictment would have been perfectly good if the words 'in an area adjacent to Victoria' had been omitted.[2]
[1]Reg v Wallwork (1958) 42 Cr App R 153, 156–7 (Goddard LCJ, Donovan and Havers JJ).
[2]Ibid 158.
It is true that, if jurisdiction of the court is challenged, the Crown bears the onus of establishing on the balance of probabilities that the crime was committed within jurisdiction.[3] In that sense, the place of commission may become a necessary ingredient of the offence.[4] But that does not mean that it is or becomes necessary for the indictment to allege the place of commission. It is essentially a question of proof.
[3]Thompson v The Queen (1989) 169 CLR 1, 13 (Mason CJ and Dawson J), 39 (Gaudron J).
[4]Reg v Hildebrandt (1963) 81 WN(NSW) 143, 150–151 (Herron CJ).
No doubt, the Crown could have pleaded that the offences occurred 'in the adjacent area for Victoria' and, had the Crown done so, then, by force of clause 4 of Schedule 1 to the Crimes at Sea Act2000, it would have been presumed that, in the absence of evidence to the contrary, the offences did occur in the adjacent area. But it is not mandatory for the Crown to invoke that presumption. It is permissible to prove jurisdiction aliunde.
Ground 3
I do not consider that Ground 3 is reasonably arguable. The evidence as to where the ferry was when the offences occurred consisted in part of evidence given by the complainant and in part of evidence given by a former master of the ferry, Captain Michael, to the effect that the offences occurred well before the ferry crossed into Tasmanian waters.
The complainant swore that he boarded the ferry at Melbourne in darkness some time after dinner. He said that he then spent about 30 or 40 minutes inside the cabin before going out by himself to ‘have a wander’. Then he spent about another 30 or 40 minutes wandering about before going back to the cabin. Then, after he had been back in the cabin for a further 30 or 40 minutes, the appellant came back to the cabin and said that he would buy the appellant a Playstation game if the complainant would allow the appellant to play with the complainant's 'willie'. With that, the appellant got a towel from the bathroom, manually masturbated the complainant for a short time so as to cause him to achieve an erection, then sucked the complainant's penis, and then manually masturbated the complainant again for a further two or three minutes until the complainant ejaculated.
Captain Michael’s evidence was that the ferry departed from the dock at the Port of Melbourne at 9.01 pm on the night of 8 April 2003 and was in Victorian waters until approximately 1.40 am of 9 April 2003 when it crossed the ‘legal boundary’ between Victorian and Tasmanian waters. That evidence was not subjected to cross‑examination or otherwise contradicted. It is also to be observed that it followed evidence given by Captain Michael on the voir dire to the effect that, by the ‘legal boundary’, he meant the line 39 degrees 12 minutes south.[5]
[5]Which was in fact the southern boundary of the ‘adjacent area’ as defined.
Taken as a whole, therefore, the clear effect of the evidence was that, even assuming against the Crown that the complainant did not board the ferry until the instant before embarkation at 9.01 pm, the offences began at no later than approximately 11.00 pm on 8 April 2003 and concluded shortly after that, well before the ferry passed the boundary between Victorian and Tasmanian waters at 1.40 am on 9 April 2003.
Admittedly, as counsel for the appellant contended, there was no proof as such that what Captain Michael described as the ‘legal boundary’ between Tasmanian and Victorian waters was the boundary of the 'adjacent area' as defined at the Crimes at Sea Act 2000. But, under s 143 of the Evidence Act2008, proof is not required about the provisions of a Commonwealth Act. The judge was entitled to inform herself about it in any way that her Honour thought fit and the fact is, as her Honour evidently ascertained and in effect directed the jury, the boundary described by Captain Michael was the boundary of the ‘adjacent area’ as defined in the Act. As I have said, Captain Michael’s evidence as to the time of crossing the ‘legal boundary’ followed evidence given by him on the voir dire to the effect that the ‘legal boundary’ was the southern boundary of the ‘adjacent area’. That was clear evidence, albeit objectionable in point of mode and form, that the ferry did not pass out of Victorian jurisdiction until 1.40 am.
The defence might have objected to the mode and form of Captain Michael’s evidence and required strict proof of the bounds of the adjacent area and of the coordinates of the ferry's position at 1.40 am. But, plainly, defence counsel chose not so to object, in view of what Captain Michael had said in his evidence on the voir dire. Indeed, so far from objecting, it is apparent that, following the voir dire, counsel and the judge alike, as it were by tacit agreement, used the expression 'legal boundary' as synonymous with the southern boundary of the ‘adjacent area’ as defined.
In those circumstances, defence counsel is to be taken to have waived the right of objection to the mode and form of Captain Michael’s evidence and there is no longer any right to object as such.[6]
[6]R v Ford [1972] VR 3, 11 (Gowans J); R v Radford (1993) 6 A Crim R 210, 222–3; R v Clark (2005) 13 VR 75, 81 [27] (Maxwell P) and 82 [54] (Charles JA).
In keeping with the procedure prescribed by the High Court in Thompson v R,[7] the judge took a special verdict on the issue of jurisdiction and the jury returned the verdict that the ferry was within the ‘legal boundary’ of the jurisdiction at the time of the alleged offences. Given the state of the evidence, there is no question that it was open to the jury to do so.
[7](1989) 169 CLR 1, 15 (Mason CJ, Dawson J).
Ground 4
The argument advanced in support of Ground 4 was that the judge failed to relate the complainant's evidence as to the time of the offences to the law concerning jurisdiction. I do not consider that ground to be reasonably arguable either.
After consulting with counsel as to the form which the direction should take, and obtaining counsel's assent to the form of direction which her Honour proposed, the judge specifically directed the jury, that:
In addition to the elements that the prosecution must prove beyond reasonable doubt that I have outlined to you in relation to each of the charges, it must also prove that at the time of the alleged offences, the ferry was in Victorian waters. That is why evidence was called from Stewart Michael about the ferry log, showing that the Spirit of Tasmania let go, or left the wharf in Melbourne at 9.01 pm on 8 April 2003 and crossed the legal boundary between Tasmanian and Victorian waters at 1.40 am on 9 April. It is therefore the prosecution contention that the alleged offences occurred on the spirit of Tasmania between 9.01 pm on 8 April 2003 and 1.40 am on 9 April 2003. That is, after the ferry left the dock in Melbourne, and before it crossed into Tasmanian waters.
Of course, if the alleged offending occurred in Tasmanian waters, the matter could not be heard here. So it is what is called a jurisdictional point. That is, does this court have jurisdiction to hear this matter, because this court can only hear cases which are said to have happened in Victoria or in Victorian waters. And you will remember on the indictment it was described, it was put that the offences occurred in an area adjacent to Victoria, and that is referring to the Victorian waters.
Now, there are two differences resulting from this issue to other criminal trials. First, the prosecution must prove this issue that the alleged offences occurred after the ferry left the dock and before crossing into Tasmanian waters to a lesser standard than beyond reasonable doubt. All right? So you have got the elements of the charges that I have told you about. All of them must be proved beyond reasonable doubt. The issue of whether the ferry was in Victorian waters must also be proved by the prosecution but only to the standard of on the balance of probabilities. All right? The civil standard.
But because this is a criminal trial, and serious matters are at stake, I direct you that you must be satisfied on this point to a high degree of probability. All right? So it is not a question of deciding that it is just ‘probable’, or just possible that the scales are tipped just that way that the prosecution is alleging. You must be satisfied to a high degree of probability before you may decide that the offending occurred in Victorian waters. Now, this standard of high probability is not as high as the standard of beyond reasonable doubt. I make that very clear, and I am sure you understand that. But it must be to a high degree of probability.
So that, in addition to proving each of the elements making up the charges, the prosecution must also satisfy you to a high degree of probability that they occurred after the ferry left Melbourne…
But if you are satisfied beyond reasonable doubt of the guilt of the accused man on any of the charges, you must then consider this question, and whether the prosecution has proved the issue of jurisdiction. Do you understand what I am saying by jurisdiction? That is, that it was in Victorian waters to a high degree of probability.
Now, the way in which the prosecution puts its case in relation to jurisdiction is it relies on the evidence of [the complainant], and you will remember he was asked questions about getting in the car, then going to the cabin, whether the boat was moving or not, and the evidence of Mr Michael that the boat left at 9.01, that it would take four hours and 40 minutes to cross Victorian waters, there was other evidence about when passengers could get on the boat and so forth and so on.
What I am going to do now, is I am going to do now is I am going to summarise the evidence for you…
Then, later in the charge, her Honour did indeed summarise the relevant evidence for the jury, as follows:
… He [the complainant] said the boat, the car – he was in [HA’s] car, which went into the boat. He was in the car too. And after that, they went to their rooms. He said his friend Luke was there, who was in his late twenties, he was pretty sure he had his own key to the cabin which they went to after getting out of the car. He said there were two double bunk beds, and he said [HA] and Luke went off to a gambling area, which he was not allowed into, and then he walked around.
He thought he walked around for 30 or 40 minutes and then went back to his room, and then after about 30 minutes, [HA], he said, came back by himself. He said that he wanted some PlayStation 2 games, and he was asking [HA] about it, and asking him to buy him some. He had not bought him games like that before. He could not remember word for word, but he thought [HA] said something like, ‘Playing with my willy.’ And he took it that if he let him play, that is, [HA], play with his willy, he would buy him the PlayStation games, so he agreed, and [HA] told him to lie down, and he did so on the bottom of one of the two bunk beds, and [HA] went to the toilet and got a towel, took his pants and underpants off, and he put, he, [the complainant], put a pillow over his face.
He said [HA] then masturbated him by rubbing his penis, that is the basis of the allegations underlying Charge 1. He said he rubbed it up and down, and he got an erection. And then he said [HA] put his mouth on his penis, and was sucking it. He did not know for exactly how long. And during this, [the complainant] said he was saying, ‘Oh man’, and [HA] asked if he was crying, and that he said, ‘No’, and that he was not crying. And by saying, ‘Oh man’, he was trying to express that he did not like it. He said he was trying to move his legs around.
He said that then [HA] started using his hand again to rub his penis, and as he was rubbing it, [the complainant] ejaculated, and that ejaculate ended up on the towel. He believed that [HA] rubbed his penis after sucking on it for two to three minutes. He said after he ejaculated [HA] said, ‘Finished?’ and went to the toilet with the towel. He put his pants back on. He was feeling confused. He said that Luke then came back. He cannot – he was asked if he could remember when Luke returned to the cabin and he said he could not really remember what happened, but that Luke came back. He was pretty sure he had stayed in the cabin after that. He said the incident was in the evening, because it was dark when they got onto the boat, and he remembered sleeping after that.
…
He said the longest period of time that he would have been in the cabin before going out and having a wander was maybe 30 to 40 minutes. He did not know what was happening in that 30 to 40 minutes.
…
He said he was in the cabin for maybe 30 minutes before leaving it to wander. Around the ship, then, he said he thought he was moving around 30 to 40 minutes on the one level. He did not remember seeing any stairs or elevators. He said it was about 30 minutes before [HA] came to the cabin after he had got back.
…
Then Stewart Michael gave evidence, he is the general manager of marine operations for TT-Line Pty Ltd, and he is an ex-master of the Spirit of Tasmania II. And he was a master from late 2003 until about early 2008, and he examined the deck logbooks relating to 6 March 2003 through to 13 June 2003. And he was able to say from those records that on 8 April 2003, the Spirit of Tasmania left the wharf at one minute past 9 pm, and her normal arrival time in Tasmania would have been 6 am the next morning. And the ferry crossed the legal boundary between Victorian and Tasmanian waters at 1.40 in the morning.
Arguably, the judge's direction that the jury needed to be satisfied to 'a high degree of assurance' that the offences occurred in Victorian waters was unduly favourable to the appellant. But the appellant can have no cause for complaint about that. In the way in which the jury were directed, they were left in no doubt that they needed to be satisfied at least to the standard of proof on the balance of probabilities that the offences were committed before 1.40 am on the morning of 9 April 2003 before the ferry crossed the ‘legal boundary’ into Tasmanian waters, and that the critical evidence on that aspect of the matter was the evidence of the complainant as to when the offences occurred. As observed, that evidence was adequate to sustain the jury’s conclusion.
Ground 1
The nub of the application for leave to appeal on Ground 1 is that, by reason of an investigation conducted by the Director of Public Prosecutions after the trial,[8] the results of which are contained in a letter from Victoria Police to the Director dated 10 September 2012 and the annexes thereto,[9] it is apparent that the jury were mistakenly provided with pp.345 and 346 of the transcript containing a discussion between counsel and the judge in the absence of the jury, and that the jury may have drawn an inference adverse to the appellant from the content of that discussion.
[8]Juries Act 2000, s 78(4).
[9]Exhibit A.
I do not consider that point to be reasonably arguable. All that comes out of the transcript of the discussion is that the judge was concerned that, unless the jury were informed as to why an associate of the appellant, called Jaques, was not called to give evidence in support of the appellant's version of events, the jury might infer that Jaques declined to give evidence because anything he might say would have been adverse to the appellant. Examination of the pages of the transcript in question shows that the judge was alive to that possibility and thus directed the prosecutor, with which direction the prosecutor immediately complied, to lead from the police witness then in the witness box that Jaques had not been able to be located despite diligent searches.
In those circumstances, I do not consider there to be a realistic chance of the jury drawing an adverse inference from Jaques' absence from the witness box and I am fortified in that conclusion by the fact that the judge expressly directed the jury that they were to decide the case on the basis only on the evidence before them and not on the basis of speculation.
For these reasons, I would dismiss the appeal and refuse the renewed application for leave to appeal.
BUCHANAN JA:
I agree.
PRIEST JA:
I agree that the application for leave on Grounds 1, 3 and 4 should be refused and the appeal on Ground 2 dismissed, but wish to add some observations of my own. Nettle AP has summarised the background facts, grounds of appeal and submissions and I am thus relieved from their repetition.
As will become clear, in my opinion the questions that need to be asked and answered in this case are: first, did the prosecution establish on the balance of probabilities the authority of jurisdiction in the County Court to enter judgment, by proving that the offences were committed within the jurisdiction (that is, the adjacent area to Victoria)? Secondly, did the prosecution – by alleging in the indictment that the relevant acts ‘happened in the adjacent area’ – have available to it a statutory presumption that the offence occurred within jurisdiction?
In my view there can be no demur from the proposition that it was necessary for the prosecution to show that the offences charged in the Indictment were justiciable within Victoria. In Thompson,[10] Mason CJ and Dawson J provided the following guidance with respect to jurisdiction:[11]
[10]Thompson v The Queen (1989) 169 CLR 1 (‘Thompson’).
[11]Ibid 12 (emphasis added).
The issue of guilt is necessarily determined within a particular jurisdiction. But the issue cannot be determined unless the prosecution establishes the authority of the jurisdiction to enter judgment. This issue, namely, whether the offence was committed within the jurisdiction, is distinct from that of guilt, namely, whether the elements of the offence are made out. Proof of jurisdiction is a prerequisite of guilt but otherwise it is not an element in proof of the commission of the offence except in those cases in which the offence is so
defined that commission of it in a place or locality is made an element of the offence charged …
With respect, I do not accept that the prosecution bears the onus of proving on the balance of probabilities that the crime was committed within jurisdiction only ‘if the jurisdiction of the court is challenged’. Proof of jurisdiction is a prerequisite of guilt. Absent jurisdiction there can be no conviction. I am persuaded, however, that there was adequate evidence before the jury to establish jurisdiction.
The Crimes at Sea Act 1999 (Vic.) (‘the Victorian Act’) and Crimes at Sea Act2000 (Cth) (‘the Commonwealth Act’) are designed – among other things – to simplify proof of jurisdiction. They are part of a cooperative scheme to apply the criminal laws of the States extraterritorially in the areas adjacent to the coast of Australia. Under the scheme, and pursuant to State laws, the criminal law of each State is to apply in the area adjacent to the State for a distance of 12 nautical miles from the baseline for the State (the ‘inner adjacent area’); and, by force of the law of the Commonwealth, the criminal law of a State is to apply beyond 12 nautical miles up to a distance of 200 nautical miles from the baseline for the State or the outer limit of the continental shelf, whichever is the greater distance (‘the outer adjacent area’).
Of particular relevance to this case ‑ and somewhat simplified ‑ the effect of the cooperative scheme established by the Victorian Act and Commonwealth Act is to apply the substantive criminal law of Victoria to an ‘adjacent area’ of the State. As it stood at the time of the offences, the ‘adjacent area’ for Victoria was as described in Schedule 2 to the Petroleum (Submerged Lands) Act1967 (Cth).[12] Thus, for there to be jurisdiction reposing in the County Court of Victoria to try the appellant, proof was required that the offences had occurred with an ‘adjacent area’ of the State as described in that Act.
[12]By virtue of amendments effected by the Offshore Petroleum Amendment (Greenhouse Gas Storage) Act 2008, Schedule 3 (item 6), the Commonwealth Act now picks up the definition of ‘scheduled area’ in Clause 2 of Schedule 1 of the Offshore Petroleum and Greenhouse Gas Storage Act 2006 (Cth). There are minor – and, for present purposes, immaterial – differences between the description of ‘scheduled area’ in that Act, and the description of the ‘Area Adjacent to the State of Victoria’ contained in Schedule 2 of the Petroleum (Submerged Lands) Act1967 (Cth).
The provisions of both the Victorian Act and the Commonwealth Act largely mirror each other. Both Acts apply the substantive criminal law of Victoria to a ‘maritime offence’,[13] which relevantly is ‘an offence against a law that applies in the adjacent area’ for Victoria.[14]
[13]Schedule 1, cl 2 of each Act.
[14]Schedule 1, cl 1 of each Act.
Proof that the offences occurred in an adjacent area of Victoria was a jurisdictional fact which needed to be proved on the balance of probabilities.[15] And the trial judge’s taking of a special verdict relating to jurisdiction was proper.[16] Moreover, in my opinion, despite the fact that the judge did not direct the jury according to the rather convoluted statutory definition of ‘adjacent area’, the evidence before the jury was sufficient to permit the necessary conclusion that the offences relevantly had occurred in an adjacent area as legislatively defined.
[15]Thompson, 15.
[16]Ibid.
Stewart Michael was a Captain and Director of Marine Operations who had spent a period of time as Master of the Spirit of Tasmania – although he was not the Master in 2003 – gave evidence on the voir dire. From the relevant log book he was able to calculate the time the vessel ‘left Victorian waters’. Having made those calculations, he said it was correct to say ‘the vessel crossed 39 degrees twelve minutes South at approximately 1.40 am on 9 April 2003’;[17] and that, ‘[b]eyond that particular point of reference, the vessel would be regarded as being in Tasmanian waters’. He agreed with the proposition that after ‘ten o’clock, 10.30 or so, on 8 April 2003, clearly the vessel is within Victorian waters’, observing ‘She’s within Victorian jurisdiction’. Variously the expressions ‘Victorian waters’, ‘Tasmanian waters’ and ‘Victorian jurisdiction’ were employed in his evidence, without distinct reference to what these expressions were meant to convey. The only attempt at eliciting evidence to reflect strict the definition of ‘Area Adjacent to the State of Victoria’ as found in Schedule 2 to the Petroleum (Submerged Lands) Act1967 seems to have been the reference to the reference point ‘39 degrees twelve minutes South’.
[17]Compare the definition of ‘Area Adjacent to the State of Victoria’ as found in Schedule 2 to the Petroleum (Submerged Lands) Act1967.
Two observations should be made at this juncture. First, counsel for the appellant accepted on the voir dire the expertise of Captain Michael to give the evidence that he did. Secondly, in discussion after the voir dire, the prosecutor drew the trial judge’s attention to the Crimes at Sea Act2000.
Captain Michael then gave evidence before the jury. By reference to log books, he gave evidence that the Spirit of Tasmania ‘crossed the boundary – the legal boundary between Victorian and Tasmanian waters at 1.40 in the morning of the 9th [of April 2003]’. Apart from the reference to the ‘legal boundary’, in his evidence various references were made to ‘Victorian waters’ and ‘Tasmanian waters’, but no attempt was made distinctly to have him explain what he meant by those expressions, or to marry his evidence to the statutory definition of ‘adjacent area’. Undoubtedly this was because counsel for the appellant accepted Captain Michael’s expertise to express the opinions that he did; and, more importantly, because it was tacitly accepted that his evidence amounted to, and was a convenient way of shortly describing, adjacent area.
In my view, therefore, the appellant’s counsel accepted for the purposes of the trial that, Stewart Michael being an experienced mariner of the waters separating Victoria and Tasmania, his bare description of when the Spirit of Tasmania probably crossed from Victorian waters into Tasmanian waters was sufficient to prove the vital jurisdictional fact. His evidence related to ‘the legal boundary between Victorian and Tasmanian waters’ with no further elucidation of what he meant by that evidence. But in my opinion this evidence was sufficient to prove that the offence fell within the area defined in Schedule 2 of the Petroleum (Submerged Lands) Act1967.
For these reasons Ground 3, which claims that there ‘has been a substantial miscarriage of justice because the prosecution failed to prove that the alleged offences occurred within the “adjacent area” of the State of Victoria’, has not been made out.
Ground 2 is also without substance. Clause 4 of Schedule 1 of both the Victorian Act and the Commonwealth Act relevantly provides:[18]
If, in proceedings for a maritime offence, an alleged act, omission or state of affairs, that is an element of the offence, is proved, an allegation in the information or complaint[19] that the act, omission or state of affairs happened in the adjacent area, inner adjacent area, or outer adjacent area for a particular State is taken to be proved in the absence of proof to the contrary.
[18]Emphasis added.
[19]An ‘information or complaint’ includes an indictment: R v Hull (1989) 16 NSWLR 385, 392–3; Fraser v The Queen (No 2) (1985) 1 NSWLR 680, 689–91.
By the simple expedient of pleading that the offences had occurred in the ‘adjacent area’ for Victoria, by force of clause 4 of Schedule 1 it would have been presumed that, in the absence of evidence to the contrary, the offences did occur in the adjacent area. But that is not what occurred. Inexplicably the Indictment alleged that the offences in each instance occurred ‘at a place adjacent to Victoria’rather than in an ‘adjacent area’. That form of pleading was ineffective to enliven the statutory presumption.
Thus, there cannot have been, as Ground 2 asserts, ‘a substantial miscarriage of justice because the indictment did not properly plead the locus of the alleged offences’. Had the Indictment been pleaded conformably with Clause 4 of Schedule 1 the prosecution could have invoked the statutory presumption to the legitimate prejudice of the appellant.
Ground 2 cannot be upheld.
Given my conclusion on Ground 3, it is unnecessary to consider Ground 4, which alleges misdirection ‘on the issue of jurisdiction’, including whether the directions as to standard of proof were unduly favourable to the appellant. It is enough to observe that the judge did no more than repeat the pertinent evidence of Captain Michael as to ‘the legal boundary between Tasmanian and Victorian waters’,
directing the jury that if they were satisfied beyond reasonable doubt of the guilt of the appellant with respect to a particular charge, they then needed to ‘consider whether [they] are satisfied to a high degree of probability that the offence occurred in Victorian waters as alleged’. This was a course of convenience apparently adopted with the approval (at least tacit) of defence counsel. I am fortified in my opinion by the fact that no exception was taken.
Ground 3 is without merit.
As to proposed Ground 1, I agree with the reasons of Nettle AP. I can see no possibility that justice miscarried. Assuming that the impugned piece of transcript had found its way into the jury room, it would not have generated any unfairness or prejudice to the appellant.
For these reasons the appeal should be dismissed, and the application for leave refused.
NETTLE AP:
The orders of the Court are that the appeal is dismissed and the renewed application for leave to appeal is refused.
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