Lipohar v The Queen
[1999] HCA 65
•9 December 1999
HIGH COURT OF AUSTRALIA
GLEESON CJ,
GAUDRON, GUMMOW, KIRBY, HAYNE AND CALLINAN JJ
EDWARD LIPOHAR APPELLANT
AND
THE QUEEN RESPONDENT
Lipohar v The Queen [1999] HCA 65
9 December 1999
A14/1999
ORDER
Appeal dismissed.
On appeal from the Supreme Court of South Australia
Representation:
M F Gray QC with G P G Mead for the appellant (instructed by Legal Services Commission of South Australia)
B M Selway QC, Solicitor-General for South Australia with M T Boylan for the respondent (instructed by Director of Public Prosecutions (South Australia))
Notice: This copy of the Court’s Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
HIGH COURT OF AUSTRALIA
GLEESON CJ,
GAUDRON, GUMMOW, KIRBY, HAYNE AND CALLINAN JJ
MARK JEFFREY WINFIELD APPELLANT
AND
THE QUEEN RESPONDENT
Winfield v The Queen
9 December 1999
A15/1999
ORDER
Appeal dismissed.
On appeal from the Supreme Court of South Australia
Representation:
M F Gray QC with G P G Mead for the appellant (instructed by Legal Services Commission of South Australia)
B M Selway QC, Solicitor-General for South Australia with M T Boylan for the respondent (instructed by Director of Public Prosecutions (South Australia))
Notice: This copy of the Court’s Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Lipohar v The Queen
Winfield v The Queen
Criminal law – Jurisdiction – Conspiracy – Conspiracy to defraud at common law – Whether offence triable in a State where substantive elements of offence took place in other States and abroad – Whether offence triable in a State other than the State where the conspiracy was formed – Whether sufficient connection between subject matter of offence and State of trial.
Common law – Nature – Whether common law of Australia or individual States – Criminal law – Whether considerations of comity arise between States – Relevance of Australian Constitution – Conspiracy to defraud – Whether offence against common law of South Australia or "laws of that State".
Courts and judges – Supreme Court of South Australia – Jurisdiction – Criminal law – Conspiracy to defraud at common law.
Words and phrases – "overt act" – "crime is local" – "comity" – "jurisdiction" – "venue" – "law area" – "law district".
Criminal Law Consolidation Act 1935 (SA), ss 5C, 270(2).
Supreme Court Act 1935 (SA), s 17(2)(a).
GLEESON CJ. These appeals raise questions concerning the operation, within the Australian Federation, of common law principles of territoriality in relation to the crime of conspiracy to defraud.
The issue
The appellants, one a resident of Queensland, and the other a resident of Victoria, were tried before Lander J, sitting without a jury, in the Supreme Court of South Australia, on a charge of conspiracy to defraud. They were convicted and sentenced to terms of imprisonment. At the commencement of the trial, Lander J considered and rejected an application to quash the indictment, or to grant a permanent stay of proceedings, upon the grounds that the alleged conduct of the appellants, even if it occurred, did not constitute an offence against the law of South Australia, and that the issue raised by the indictment was not justiciable in South Australia[1]. The appellants appealed against their convictions, raising the same arguments as had been rejected by Lander J. Their appeals were dismissed by the Court of Criminal Appeal (Millhouse, Perry and Bleby JJ)[2].
[1]R v Winfield, Chandler & Lipohar (1995) 65 SASR 121.
[2]R v Winfield & Lipohar (1997) 70 SASR 300.
The relevant count in the indictment commenced as follows:
"Conspiracy to Defraud. (Common Law and Section 270(2) of the Criminal Law Consolidation Act, 1935)".
There followed certain particulars of the offence.
In South Australia, conspiracy to defraud is a common law offence. The penalty for the offence is prescribed by s 270(2) of the Criminal Law Consolidation Act 1935 (SA) ("the Act") which, so far as material, provides:
"270(2) Any person convicted of any of the following common law offences, that is to say, any conspiracy to cheat or defraud … shall be liable to be imprisoned for a term not exceeding seven years."
The appellants were sentenced pursuant to that provision.
In brief, the appellants were tried in a South Australian court, convicted of a common law offence, and sentenced under a South Australian statute, in relation to conduct which, they contend, did not constitute an offence that was punishable under the law of the forum. It is that contention which is central to the present appeal.
The facts
The particulars in the indictment identified the intended victim of the conspiracy as Collins Street Properties Pty Ltd ("the company"). The company was incorporated in South Australia, where it had its registered office. Its principal executive officer, the joint secretaries, and four of the six directors, resided in South Australia. It was a wholly owned subsidiary of SGIC Pty Ltd, another South Australian company. SGIC Pty Ltd was, in turn, a wholly owned subsidiary of a South Australian body corporate, the State Government Insurance Commission (SGIC), which was under the control and direction of the South Australian government. The company's central control and management was located in South Australia. In relation to the transaction in question, it was advised by Adelaide solicitors. It was in South Australia that the decision to make the payment which was the commercial objective of the intended fraud would need to be taken.
The company owned an office building in Melbourne, Victoria, and was looking for tenants. The letting agents for the building were in Melbourne. At the relevant time, it was common practice for owners of commercial premises to offer substantial inducement payments in order to attract suitable tenants to occupy their buildings[3].
[3]See Federal Commissioner of Taxation v Montgomery (1999) 73 ALJR 1160; 164 ALR 435.
The appellants and others devised a fraudulent scheme, the object of which was to induce the company to make a large incentive payment to a sham tenant. The scheme involved activity, or supposed activity, in Indonesia, Thailand, Queensland, Victoria, and, in respects that will appear, South Australia. The appellants and others agreed to form a Queensland company which was represented to be associated with an Indonesian company. They negotiated with the letting agents of the company for a lease of part of the Collins Street premises, seeking to obtain a cash incentive ultimately agreed at $6.5 million. They were made aware that any such payment would require the approval of the SGIC Board in Adelaide. They were required to provide security for the obligations of the proposed lessee. They falsely represented that the Krung Thai Bank would provide such security in the form of a promissory note. (In truth the bank had no knowledge of the transaction.) There was a meeting in Brisbane between representatives of the SGIC and the conspirators to discuss the proposed security. Following that meeting, a document was sent by facsimile transmission from Thailand to the office of the company's solicitors in Adelaide. The document, which was a sham, purported to confirm that the bank would provide a promissory note, in a certain form, as security for the tenant's obligations under the lease. Clearly, this was for the purpose of procuring advice to be given, in Adelaide, to the SGIC Board, and a decision to be made, in Adelaide, approving the lease incentive payment. The circumstance that the facsimile was sent to Adelaide was no mere accidental, or incidental, feature of the events. It reflected a fact which is of more fundamental importance. The central control and management of the intended corporate victim of the fraud was in South Australia, and it was there that the decisions necessary for the effectuation of the fraud were to be taken.
The conspiracy went no further. Some people involved in dealings with the bank were arrested, and, when news of that came out, the negotiations for the lease and the incentive payment were terminated. Subsequently the South Australian authorities prosecuted the appellants.
The alleged crime
Lord Diplock, in R v Bhagwan[4], said of the role of criminal conspiracy in the common law:
"The least systematic, the most irrational branch of English penal law, it still rests upon the legal fiction that the offence lies not in the overt acts themselves which are injurious to the common weal but in an inferred anterior agreement to commit them."
[4][1972] AC 60 at 79.
As has been pointed out by other judges, however, there may be very good reasons why the law would wish to punish people who make some agreements without waiting for the agreements to be performed[5].
[5]eg Liangsiriprasert v United States [1991] 1 AC 225.
The elements of a common law conspiracy to defraud were considered in Peters v The Queen[6], where McHugh J said[7] that, in most cases, a conspiracy to defraud arises when two or more persons agree to use dishonest means with the intention of obtaining, making use of or prejudicing another person's economic right or interest, or inducing another person to act or refrain from acting to his or her economic detriment. To that proposition, in its application to the present case, there should be added a significant rider. The fact that an offence of conspiracy is complete does not mean that it has come to an end[8]. Parties can join, or leave, a conspiracy after it has been formed, and acts done in furtherance of a conspiracy will constitute continuing performance, as well as evidence, of the unlawful agreement. An agreement formed in one territorial area may be aimed at people in another area or other areas, or may reach into such other area or areas in the course of its performance. It is this aspect of criminal conspiracy that has made it difficult to relate to the theory of territoriality which has had so much influence upon common law rules concerning the administration of criminal justice.
[6](1998) 192 CLR 493.
[7](1998) 192 CLR 493 at 525.
[8]R v Doot [1973] AC 807 at 827 per Lord Pearson.
The territorial theory of crime
Lord Halsbury's famous, and dogmatic, assertions that "(a)ll crime is local", and that jurisdiction over a crime belongs to the country where the crime was committed[9], were made in a case about the reach of a statute enacted by a colonial legislature, but they reflected the territorial focus of the common law of crime, and they embodied a presumption of the common law which applied to the interpretation of statutes of all parliaments, including the parliament of the United Kingdom, whether or not their legislative competence was limited territorially. Considerations of international comity were influential in the development of this focus. Dixon CJ pointed this out in The Queen v Foster; Ex parte Eastern and Australian Steamship Co Ltd[10]:
"It does not follow from the adoption of the Statute of Westminster that Commonwealth legislation should be construed as if there were no territorial considerations affecting its interpretation. Indeed it may be fairly said that when the consequence of invalidity is removed from extra-territorial legislation it becomes more important to give effect to the presumption governing the interpretation of English legislation. That is a presumption which assumes that the legislature is expressing itself only with respect to things which internationally considered are subject to its own sovereign powers."[11]
[9]Macleod v Attorney-General for New South Wales [1891] AC 455 at 458.
[10](1959) 103 CLR 256 at 275.
[11]See also Jumbunna Coal Mine, No Liability v Victorian Coal Miners' Association (1908) 6 CLR 309 at 363 per O'Connor J.
In R v Treacy[12] Lord Reid said:
"It has been recognised from time immemorial that there is a strong presumption that when Parliament, in an Act applying to England, creates an offence by making certain acts punishable it does not intend this to apply to any act done by anyone in any country other than England."
[12][1971] AC 537 at 551.
One aspect of this territorial focus was the idea that most crimes have but a single location which, once established, is relevant both to the question of the jurisdiction of a court to deal with an alleged offender, and the different, although usually related, question whether the conduct of the offender violated the law of the forum in which the offender is tried[13]. The techniques adopted by common law courts to determine that location have been criticised as artificial, and lacking coherent principle[14], but they were developed as a response to problems of practical necessity, and considerations of pragmatism were probably more influential than a desire for theoretical symmetry. An example of such practical necessity is Ward v The Queen[15]. In that case a decision as to whether the unlawful homicide of a person, fatally shot whilst standing near the bank of the Murray River, occurred in New South Wales or Victoria, determined the availability of a defence of diminished responsibility, with the potential to reduce the offence from murder to manslaughter. Judgments of that kind may often appear to turn upon fine, and even artificial, distinctions, but in the administration of practical justice they are inescapable. It was the fact that New South Wales and Victoria had different laws about homicide, (a commonplace example of federalism at work), that made a territorial decision necessary.
[13]Thompson v The Queen (1989) 169 CLR 1.
[14]eg Goode, "The Tortured Tale of Criminal Jurisdiction" (1997) 21 Melbourne University Law Review 411.
[15](1980) 142 CLR 308.
Where a crime is created by statute, which normally describes the crime without making any particular reference to territorial locality, and where the nature of the crime is such that elements may occur in a number of territories, the resolution of questions of jurisdiction and justiciability may involve both questions of statutory construction, and the application of common law principles according to which courts decide where, out of a number of competing possibilities, a crime has been committed. An example is provided by the common law rule by which courts in England, and Australia, decide where the statutory offence of obtaining property by false pretences has been committed[16]. According to the preponderance of authority, the offence is committed in the place where the property is obtained, which may be different from the place or places where the deception occurred. Discussion of the rule usually proceeds upon the assumption that the offence is committed in only one place. That assumption is not a logical necessity, and whether it should be revised is a question that may be addressed in some future case.
[16]eg R v Manning [1999] QB 980; Kron (1995) 78 A Crim R 474.
The last mentioned assumption would be inconsistent with a rule, of common law or statute, to the effect that, in the case of a crime consisting of multiple elements, an offence was committed wherever one of those elements occurred, or a rule to the effect that the offence would be taken to be committed in any territorial area where there is a real and substantial link between the offence and the territory. When the Supreme Court of Canada, in Libman v The Queen[17], decided to adopt the latter rule for Canada, involved in that decision was an abandonment of the objective of finding a single situs of a crime[18].
[17][1985] 2 SCR 178.
[18][1985] 2 SCR 178 at 198-199.
In South Australia, as in a number of Australian States, there is now legislation which, in cases to which it applies, involves a similar abandonment. Section 5C of the Act provides, without derogating from any other basis on which the courts of the State may exercise criminal jurisdiction, that an offence against the law of the State is committed if all elements necessary to constitute the offence (disregarding territorial considerations) exist and a territorial nexus exists between the State and at least one element of the offence. The respondent did not place primary reliance on that section, probably for the reason given by Lord Diplock in the passage from R v Bhagwan quoted above. Technically, the elements of the offence of conspiracy occurred outside South Australia, and it is at least doubtful that there was a territorial nexus between an element of the offence and the State. There was a subsidiary argument based on the section but, as will appear, I find it unnecessary to deal with that argument. The point of referring to the existence of s 5C is that, like its counterparts in other Australian jurisdictions, it represents a legislative departure from the theory that crimes generally have a single situs.
The courts of England have declined to make such a substantial alteration to the common law[19], and to do so in Australia would involve overturning established authority in this country, of the kind applied by this Court in ThompsonvThe Queen[20] and WardvThe Queen[21]. It would also involve disturbing the common law background to legislation such as s 5C of the Act. The general common law requirement of a single situs has never been absolute, and there is no reason, either in principle or in practical necessity, why it should be. Conduct which occurs within a single territory may well offend a number of laws of that territory. As the case of Brownlie v State Pollution Control Commission[22] illustrates, conduct which occurs in one Australian State may well be affected by the laws of that State and another State as well. There is nothing new about trans-jurisdictional activity giving rise to potential breaches of the laws of a number of territories. As La Forest J pointed out in Libman, developments in communication by post and telegraph more than a century ago gave rise to such problems[23].
[19]eg Board of Trade v Owen [1957] AC 602; R v Treacy [1971] AC 537.
[20](1989) 169 CLR 1.
[21](1980) 142 CLR 308.
[22](1992) 27 NSWLR 78.
[23][1985] 2 SCR 178 at 213-214.
The implications of attempts to regulate the activities of trans-jurisdictional combinations or conspiracies, including considerations of international comity, have been explored in cases arising out of antitrust legislation. There is a discussion of such issues, in the context of the interpretation of the Australian Industries Preservation Act 1906 (Cth), in Meyer Heine Pty Ltd v China Navigation Co Ltd[24]. That case provides an example of the extra-territorial reach of a penal statute, aimed at combinations, being affected by issues relating to international comity which were obviously taken into account by the legislature.
[24](1966) 115 CLR 10.
The common law offence of conspiracy which, by its nature, is capable of having trans-jurisdictional operation and effect, has not been subjected to a rigid, single-situs, rule of territoriality. Before examining the leading authorities on that subject, however, it is necessary to advert to an issue which arose in argument concerning the significance of this being a common law offence.
The common law and the statute
This Court, in Lange v Australian Broadcasting Corporation[25], said that "there is but one common law" in Australia, and explained what was meant by that, contrasting the position in the United States. That common law, however, recognises the States as separate jurisdictions, or law areas, where to do so is appropriate in the application of common law principles. Decisions such as Breavington v Godleman[26] and McKain v R W Miller & Co (SA) Pty Ltd[27] illustrate this.
[25](1997) 189 CLR 520 at 563.
[26](1988) 169 CLR 41.
[27](1991) 174 CLR 1.
When this Court, in Ward, and Thompson, set about resolving issues relevant to the situs of homicide, it did so pursuant to what Deane J, in the latter case, referred to as "a general thesis of the common law and an incident of the doctrine of sovereignty under international law that crime is essentially local or domestic"[28]. In the former case they treated Victoria and New South Wales as relevantly separate territories. In the latter case the relevant territories were New South Wales and the Australian Capital Territory. No question of sovereignty under international law, or of international comity, arose as between those territories. Nevertheless, the assumption was that, for purposes of applying a common law principle concerning the reach of criminal laws, although part of the Australian Federation, they were distinct. The implications, constitutional and otherwise, of treating the States as separate law areas for various purposes associated with penal laws have not yet been fully explored. As has been observed[29], a case such as Brownlie illustrates some of the issues that may need to be resolved.
[28]Thompson v The Queen (1989) 169 CLR 1 at 33.
[29]Leeming, "Resolving Conflicts between State Criminal Laws" (1994) 12 Australian Bar Review 107.
What is involved in the present case is not only the application of the common law. The punishment to which the appellants were subjected was prescribed by a South Australian statute. The Act, in s 270(2), establishes a penalty for the common law offence of conspiracy to defraud. Plainly there are territorial limitations upon the operation of that provision. Does it apply to a conspiracy to defraud, entered into and carried out in England, having no connection of any kind with South Australia? Surely not. Does it apply to a conspiracy to defraud, entered into and carried out in Tasmania, having no connection of any kind with South Australia? I would give a negative answer, for substantially the same reasons, which are to be found in the common law principles earlier discussed. The premise that there is but one common law in Australia, not fragmented between different States, does not require or justify the conclusion that, when a South Australian Act refers to a common law offence, it is referring to conduct occurring anywhere in Australia regardless of any connection with South Australia. If it were otherwise, in its operation within the Australian Federation, the scope of s 5C of the Act would be narrower than that of s 270(2).
The issue whether the conduct of the appellants constituted an offence punishable according to the law of South Australia raises questions both as to the common law principles concerning the required nexus between conduct and territory for the offence of conspiracy to defraud, and as to the meaning of s 270(2) of the Act. Both questions should be given the same answer.
Was there sufficient connection?
This question should be approached without any preconception that, in the case of the crime of conspiracy, there is a requirement of the common law, or a principle of statutory construction, that there can be only a single situs.
Conspiracies to export drugs from one jurisdiction to another have provided cases in which courts have had to address this issue[30].
[30]See, for example, R v Fan (1991) 24 NSWLR 60.
In R v Doot[31], Lord Wilberforce said:
"In the search for a principle, the requirement of territoriality does not, in itself, provide an answer. To many simple situations, where all relevant elements occur in this country, or, conversely, occur abroad, it may do so. But there are many 'crimes' (I use the word without prejudice at this stage) the elements of which cannot be so simply located. They may originate in one country, be continued in another, produce effects in a third."
[31][1973] AC 807 at 817.
In that case the House of Lords upheld convictions of conspiracy to import drugs into England even though the conspiracy had been entered into, and the offence was in that sense complete, elsewhere. By hypothesis, a crime had been committed outside England, but the conspiracy was a continuing offence, and continued into England.
Lord Wilberforce said[32]:
"In my opinion, the key to a decision for or against the offence charged can be found in an answer to the question why the common law treats certain actions as crimes. And one answer must certainly be because the actions in question are a threat to the Queen's peace, or, as we would now perhaps say, to society. … Conspiracies are intended to be carried into effect, and one reason why, in addition to individual prosecution of each participant, conspiracy charges are brought is because criminal action organised, and executed, in concert is more dangerous than an individual breach of the law. Why, then, refrain from prosecution where the relevant concert was, initially, formed outside the United Kingdom?"
[32]R v Doot [1973] AC 807 at 817-818.
Lord Pearson said[33] that the fact that the offence of conspiracy is complete when agreement is reached does not mean that it is finished, and that a conspiracy to commit a crime in England ought to be triable there if it has been wholly or partly performed there. That was sufficient to dispose of that case.
[33]R v Doot [1973] AC 807 at 827.
In Liangsiriprasert v United States[34] Lord Griffiths, speaking for the Judicial Committee of the Privy Council, went further. His Lordship said[35]:
"Unfortunately in this century crime has ceased to be largely local in origin and effect. Crime is now established on an international scale and the common law must face this new reality. Their Lordships can find nothing in precedent, comity or good sense that should inhibit the common law from regarding as justiciable in England inchoate crimes committed abroad which are intended to result in the commission of criminal offences in England. Accordingly a conspiracy entered into in Thailand with the intention of committing the criminal offence of trafficking in drugs in Hong Kong is justiciable in Hong Kong even if no overt act pursuant to the conspiracy has yet occurred in Hong Kong."
[34][1991] 1 AC 225.
[35][1991] 1 AC 225 at 251.
I respectfully agree with that proposition which was also accepted by the English Court of Appeal in R v Manning[36].
[36][1999] QB 980 at 1000.
As the facts of the present case show, a conspiracy to defraud, unlike a conspiracy to go into another territory and there commit a discrete crime, such as robbing a bank, or supplying prohibited drugs, may involve an agreement to engage in conduct where the dishonesty is practised by trans-jurisdictional communications, and where the inducement of another person to act to his or her economic detriment operates across jurisdictional boundaries.
Trans-jurisdictional commerce and intercourse, whether within the Australian Federation or international, is now accomplished with such speed and facility, that for many purposes jurisdictional boundaries are irrelevant. They remain relevant for purposes of criminal law, but there is every reason to apply the law in a manner which accommodates the reality, especially in relation to transactions occurring within the Federation, where considerations of international comity do not inhibit such accommodation[37].
[37]cf R v Treacy [1971] AC 537 at 564.
When the appellants and their co-conspirators set out to defraud the company, it was probably not material to them to consider where it had its central management and control, or where the money for the lease incentive payment was to come from, or where the company's legal advisers were located, although some of these facts were later made known to them. They knew that the building in respect of which the lease incentive payment was to be made was in Melbourne, but geographical considerations beyond that were probably unimportant to them. Even so, as a matter of objective fact, there was a real connection between the conspiracy and South Australia. The intended victim of the fraud was a South Australian company, whose business was controlled from that State, and in the way in which the affairs of that company were managed, the effectuation of the fraud involved the making of a false representation to people in South Australia, and their acting on that representation. That is why the facsimile communication went to South Australia. People in South Australia were intended to act on it, to the detriment of the South Australian company.
I see no material difference between a conspiracy, entered into in Queensland, to bring prohibited drugs into South Australia, and a conspiracy, entered into in Queensland, to perpetrate a fraud which, by reason of the objective circumstances, involves practising a deception upon people in South Australia with a view to their acting, in South Australia, to their detriment. The conspiracy to defraud was of such a nature that its implementation involved deceiving people in South Australia, and inducing them to act to their detriment. It was, for that reason, punishable according to the law of that State.
Conclusion
The appeals should be dismissed.
GAUDRON, GUMMOW AND HAYNE JJ.
Index
paragraphs
I Introduction 41
The common law 43
The proceedings in South Australia 60II The Issues 65
III The Supreme Court of South Australia 75
IV "Jurisdiction", "Venue" and "Crime is Local" 78
V Statute and Criminal Law 94
VI The Doctrine of Comity Within Australia 99
VII Crime and Private International Law 104
VIII The Facts 109
IX Conclusion 111
I INTRODUCTION
These appeals are brought from the decision of the Supreme Court of South Australia sitting as the Court of Criminal Appeal (Millhouse, Perry and Bleby JJ)[38] which dismissed the appeals by the present appellants against a decision of the Supreme Court (Lander J)[39]. His Honour had dismissed the applications by the present appellants and a third accused to quash and stay proceedings on an information which materially charged them with conspiracy to defraud.
[38]R v Winfield & Lipohar (1997) 70 SASR 300.
[39]R v Winfield, Chandler & Lipohar (1995) 65 SASR 121.
In South Australia this remains a common law offence. Its elements were propounded by this Court in Peters v The Queen[40]. In the Court of Criminal Appeal, Perry J observed[41]:
"Conspiracy is an agreement to do an unlawful act, or a lawful act by unlawful means. The agreement itself constitutes the offence[42]. The peculiar characteristics of the crime of conspiracy are apt to bring the problems associated with the territorial aspects of the crime into sharp focus."
The Criminal Law Consolidation Act 1935 (SA) ("the Criminal Law Act") was engaged with respect not to the specification of the offence but to punishment. Section 270(2) provides a penalty of imprisonment for a term not exceeding seven years upon conviction of any conspiracy to cheat or to defraud.
[40](1998) 192 CLR 493.
[41](1997) 70 SASR 300 at 314.
[42]Mulcahy v The Queen (1868) LR 3 HL 306 at 317.
The common law
To say, as it was put in some of the submissions, that the offences in question were offences "against the law of South Australia" is to conceal the true position and to provide a false starting point for analysis. The starting point is that indicated by McHugh J in Kable v Director of Public Prosecutions (NSW), where his Honour said[43]:
"Unlike the United States of America where there is a common law of each State, Australia has a unified common law which applies in each State but is not itself the creature of any State[44]. Perhaps the validity of that proposition is not as readily apparent to a State judge bound by the authority of his or her own Full Court or Court of Appeal as it is to a judge of a federal court who must apply the common law."
His Honour added[45]:
"[T]hat there is a common law of Australia as opposed to a common law of individual States is clear".
[43](1996) 189 CLR 51 at 112. See also the judgment of the Court in Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 562-566.
[44]Mabo v Queensland [No 2] (1992) 175 CLR 1 at 15; Environment Protection Authority v Caltex Refining Co Pty Ltd (1993) 178 CLR 477 at 556.
[45](1996) 189 CLR 51 at 113.
The common law has its source in the reasons for decisions of the courts which are reasons arrived at according to well recognised and long established judicial methods. It is a body of law created and defined by the courts. Whatever may once have been the case in England[46] the doctrine of precedent is now central to any understanding of the common law in Australia. To assert that there is more than one common law in Australia or that there is a common law of individual States is to ignore the central place which precedent has in both understanding the common law and explaining its basis.
[46]Simpson, "The Common Law and Legal Theory", Oxford Essays in Jurisprudence, 2nd Series (1973), 77 at 77-78.
This Court is placed by s 73 of the Constitution at the apex of a judicial hierarchy to give decisions upon the common law which are binding on all courts, federal, State and territorial. Different intermediate appellate courts within that hierarchy may give inconsistent rulings upon questions of common law. This disagreement will indicate that not all of these courts will have correctly applied or declared the common law. But it does not follow that there are as many bodies of common law as there are intermediate courts of appeal. The situation which arises is not materially different to that which arises where trial judges in different courts or within the same court reach different conclusions on the same point of law.
The ultimate foundation of precedent which binds any court to statements of principle is, as Barwick CJ put it[47], "that a court or tribunal higher in the hierarchy of the same juristic system, and thus able to reverse the lower court's judgment, has laid down that principle as part of the relevant law". Until the High Court rules on the matter, the doctrines of precedent which bind the respective courts at various levels below it in the hierarchy will provide a rule for decision. But that does not dictate the conclusion that until there is a decision of the High Court the common law of Australia does not exist, any more than before 1873 it would have been true to say that there was not one English common law on a point because the Court of King's Bench had differed from the Court of Common Pleas.
[47]Favelle Mort Ltd v Murray (1976) 133 CLR 580 at 591.
In decisions respecting such diverse subjects as the rule in Rylands v Fletcher[48], corporate privilege against self-incrimination[49], the absence of a right of accused persons to the provision of counsel at public expense[50] and native title[51], this Court has spoken with respect to "the common law of Australia", not the common law of the State or Territory from whose courts the appeal came to the High Court, or in which a federal court or the High Court sat in exercise of original jurisdiction.
[48]Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520 at 556.
[49]Environment Protection Authority v Caltex Refining Co Pty Ltd (1993) 178 CLR 477 at 508, 556.
[50]Dietrich v The Queen (1992) 177 CLR 292 at 297-298, 311.
[51]Mabo v Queensland [No 2] (1992) 175 CLR 1 at 15, 69-71, 109-113; Western Australia v The Commonwealth (Native Title Act Case) (1995) 183 CLR 373 at 452-453.
In certain circumstances, or for certain purposes, it may be useful to inquire about the source of the power to enforce orders made by a court. In the case of a State Supreme Court it may be that the most immediate answer to that inquiry, in some kinds of case, is that it is a power derived from the State as a body politic or from the State Act establishing the Court or from the Constitution of that State. (Such answers might well be said to ignore the significance that should be attached to s 106[52] of the Constitution and covering cl 5[53].) But that kind of inquiry (or an analysis by reference to more abstract notions of sovereignty) is apt to mislead and it does not lead to any conclusion that there is more than one common law of Australia.
[52]Section 106 states:
"The Constitution of each State of the Commonwealth shall, subject to this Constitution, continue as at the establishment of the Commonwealth, or as at the admission or establishment of the State, as the case may be, until altered in accordance with the Constitution of the State."
[53]Covering cl 5 states:
"This Act, and all laws made by the Parliament of the Commonwealth under the Constitution, shall be binding on the courts, judges, and people of every State and of every part of the Commonwealth, notwithstanding anything in the laws of any State; and the laws of the Commonwealth shall be in force on all British ships, the Queen's ships of war excepted, whose first port of clearance and whose port of destination are in the Commonwealth."
Nor is it relevant to inquire about the powers of State legislatures to pass laws modifying or abrogating the common law any more than it is relevant to inquire about the powers of the Commonwealth Parliament to do so. Such inquiries are irrelevant because the answers to questions about how rules established by judicial decision may be abrogated or modified by legislative action say nothing about the creation of the rules or their content. So too, the converse question of whether a State legislature has abrogated or modified a common law rule is irrelevant for present purposes. The answers to such questions are silent about whether there are, or can be, rules established by judicial decision that are to remain peculiar to a particular State.
As indicated above, from time to time there will be decisions made by courts of record which will bind courts lower in the relevant curial hierarchy but which are not decisions made by this Court as the final appellate court for Australia. Because that is so, it is tempting, as McHugh J pointed out in Kable[54], for a State judge bound by the authority of his or her own Full Court or Court of Appeal to conclude that the common law for the State is fixed by that appellate decision. And inevitably there will be times when intermediate appellate courts do not speak with one voice on particular questions[55]. It by no means follows, however, that a common law rule enunciated by the appellate courts of that State is a rule which is or should remain peculiar to that State. This Court is the final appellate court for the nation. When an appeal is dealt with in this Court, and its reasons are published, those reasons will form part of the common law of Australia and will bind all courts in the country. The Court never has and never should seek to identify some common law rule that is peculiar to one or more of the States. And yet that is the role which would be assigned to it if there were more than a single common law of Australia.
[54](1996) 189 CLR 51 at 112.
[55]Australian Securities Commission v Marlborough Gold Mines Ltd (1993) 177 CLR 485.
The federal system operates with what is now the common law of Australia. One consequence is that there do not arise in Australia, as once might have been thought[56], difficulties with the notion of a distinct "federal common law" which still are encountered in the United States after the overruling of Swift v Tyson[57] by Erie Railroad Company v Tompkins[58]. In Erie, Brandeis J, delivering the plurality opinion of the Court, said that there was "no federal general common law"[59].
[56]R v Kidman (1915) 20 CLR 425 at 445, 454; In re Usines de Melle's Patent (1954) 91 CLR 42 at 49.
[57]16 Peters 1 (1842) [41 US 1].
[58]304 US 64 (1938).
[59]304 US 64 at 78 (1938). See as to the continuing uncertainty respecting the subject after Erie, Wright, Law of Federal Courts, 5th ed (1994), §60. Professor Wright concludes:
"It may be, as Justice Brandeis said, that there is no federal general common law, but there remains a substantial area for the application of federal common law."
The liability of the Commonwealth in tort and contract is created by the common law; s 75(iii) of the Constitution denies operation of what otherwise might be doctrines of Crown or executive immunity in these fields[60]. The "common law" here is that of Australia, rather than a "federal common law" distinct from the common law of each of the other bodies politic in Australia.
[60]The Commonwealth v Mewett (1997) 191 CLR 471 at 491, 526-527, 542, 550-551.
The activities of the executive government of the Commonwealth which give rise to liabilities in contract and tort will, to a very significant degree, be conducted outside the seat of government and in the States. If the common law were fragmented, it would be necessary to spell out of the Australian constitutional structure principles to resolve conflicts or variances between, in particular, "federal common law" and that of the particular State in which the executive government of the Commonwealth conducted its activities. There is no textual equivalent to the mechanism which s 109 of the Constitution provides with respect to legislation. However, any conundrum is avoided once it is seen that there is but one common law, not as many as there are bodies politic.
It is true, as the Solicitor-General for South Australia emphasised in the submissions for the respondent, that the common law of England was received at different times and in different circumstances in various parts of what is now Australia[61]. Although some parts of the Province of South Australia had previously been part of the Colony of New South Wales, s 1 of the South Australia Colonisation Act 1834 (Imp) expressly excluded any continued application of the laws of that Colony, and the Province was established on 19 February 1836[62]. The common law of England was received into what were then colonies, not what are now States. Nonetheless, as Griffith CJ emphasised[63], the common law did not thereby "become disintegrated into six separate codes of law", one for each colony. Rather, in Skelton v Collins[64], Windeyer J spoke of what was inherited as both a body of doctrines and principles, and "its method and its spirit", including "the creative element in the work of courts". His Honour there identified this as having become the common law of Australia.
[61]R v Kidman (1915) 20 CLR 425 at 435-436; Commissioner of Stamps (SA) v Telegraph Investment Co Pty Ltd (1995) 184 CLR 453 at 466-467; Castles, "The Reception and Status of English Law in Australia", (1963) 2 Adelaide Law Review 1 at 2-19.
[62]The State of South Australia v The State of Victoria (1911) 12 CLR 667 at 676677.
[63]R v Kidman (1915) 20 CLR 425 at 436.
[64](1966) 115 CLR 94 at 134-135. See also, as to common law and crime, the observations of Webb J in R v Sharkey (1949) 79 CLR 121 at 163.
At the time of federation the English common law was treated as a single body of law, although local conditions might render a particular part of it "inapplicable". However, there was a view supported by Barton J and O'Connor J in Delohery v Permanent Trustee Co of NSW[65] that even then the law was "dormant" until the "occasion arises for enforcing it". In its original form, s 80 of the Judiciary Act 1903 (Cth) ("the Judiciary Act") spoke of "the common law of England as modified by the Constitution and by the statute law in force in the State in which the Court … is held". This is consistent with the view of Griffith CJ set out above, not with fragmentation by reason of the erection by the Constitution of the colonies into States.
[65](1904) 1 CLR 283 at 291.
The uniform nature of English common law attracted the attention of the Privy Council in the practical context of the operation of the system of precedent within what was then the Empire. In 1879, their Lordships declared in an appeal from New South Wales that it was[66]:
"of the utmost importance that in all parts of the empire where English law prevails, the interpretation of that law by the Courts should be as nearly as possible the same".
When this position was changed in 1967, their Lordships spoke in Australian Consolidated Press Ltd v Uren[67], litigation which had commenced in New South Wales, not of the law in that State but of the law in Australia and of the authority of this Court to change it.
[66]Trimble v Hill (1879) 5 App Cas 342 at 345.
[67](1967) 117 CLR 221 at 241; [1969] 1 AC 590 at 644.
As was emphasised in Lange v Australian Broadcasting Corporation[68], the development of the common law in Australia must conform with the Constitution because "[t]he common law and the requirements of the Constitution cannot be at odds"[69]. The recognition of an Australian common law was essential to the reasoning in that case, particularly for the putting to one side of any question of adoption from the United States of a "constitutional privilege" against enforcement of the distinct common laws of the several States of the Union[70]. However, within their respective spheres of competence, the common law may be abrogated or amended by the federal Parliament and the Parliaments of the States and legislatures of certain Territories. Laws so made may be repealed and the common law revived. The result at any given time may be that the operation of the common law upon a particular subject may vary according to the circumstances of litigation, including the identity of the forum and of the lex causae. For example, in one Australian forum the applicable lex causae may be found in a statute, enacted by its legislature, and in another Australian forum that statute would not operate to displace or vary the common law. Further, in that second forum, the common law may be displaced or varied by statute enacted by its legislature.
[68](1997) 189 CLR 520 at 566.
[69]See Zines, "The Common Law in Australia: Its Nature and Constitutional Significance", (1999) Law and Policy Papers, Paper No 13, Centre for International and Public Law, Australian National University.
[70]Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 562-565.
The Court was told that this is what had happened with respect to the common law offences charged here. In some States criminal codes applied, in others statute had modified or displaced the common law. But, as will appear in Section VII, this does not yield issues of the type to which the rules of private international law speak.
It also is important for an understanding of the issues which arise to appreciate the position had the common law been supplanted in South Australia by statute. A "remote and general connexion" between the State and the elements of the statutory offence of conspiracy would have sufficed for the valid operation of that law[71].
[71]Union Steamship Co of Australia Pty Ltd v King (1988) 166 CLR 1 at 14.
The proceedings in South Australia
In South Australia, all indictable offences are charged on an information. Section 275 of the Criminal Law Act permitted this to be done[72]. When the accused were arraigned and pleaded not guilty, their pleas were treated as being a denial of jurisdiction. Further, each of the accused applied pursuant to r 8 of the Supreme Court Criminal Rules 1992 (SA) ("the Rules") for an order quashing the information on the ground that the information was bad because it did not disclose an offence triable in the courts of South Australia. Also pursuant to r 8, each accused sought an order on like grounds permanently staying further proceedings upon the information[73].
[72]Section 275 stated:
"(1) Any person may be put upon his trial at any criminal sessions of the Supreme Court, for any offence, on an information presented to the Court in the name and by the authority of the Attorney-General.
(2) Every rule of law and enactment for the time being in force in the State relating to indictments and to the manner and form of pleading thereto and to the trial thereon, and generally to all matters subsequent to the finding of the indictment, shall apply to any information so presented."
[73]Rule 8 provides that any application to quash any proceedings before the Supreme Court in its criminal jurisdiction or to stay such proceedings be made in a prescribed form and, unless a judge otherwise directs, the application shall:
"(a)be filed in the Court and made returnable before the person committed for trial has pleaded to the charges which are to be the subject of the application;
(b)be supported by any affidavit upon which the person committed for trial relies in support of the application, which affidavit shall be filed with the notice of the application;
(c)be served with copies of any supporting affidavit upon all other interested parties as soon as possible after it has been filed;
(d)be returnable before a Judge in open Court whether he is to be the Judge upon the trial of the accused or not."
With the consent of the parties, Lander J was presented with a large body of material for the purpose of determining the applications. His Honour held that the charge was "justiciable" in South Australia[74] and dismissed the applications. The accused elected for trial by judge alone pursuant to s 7 of the Juries Act 1927 (SA). The present appellants were convicted, whilst the other person accused was acquitted.
[74](1995) 65 SASR 121 at 155.
The issue before this Court is whether the Court of Criminal Appeal erred in rejecting the appeals from the decision of Lander J dismissing the applications under r 8 of the Rules. The appellants contend that the applications should have been successful because the conspiracy to defraud alleged against them was formed wholly outside the territorial boundaries of South Australia and was not a crime to commit an unlawful act in that State. We would reject those submissions, because they proceed from false premises as to the relevant legal foundation of the jurisdiction of the Supreme Court, and would dismiss the appeals.
The facts giving rise to the offences are set out in Section VIII of these reasons but it is convenient now to refer to the particulars of the offences and the object of the conspiracy by way of background to the issues in these appeals. The particulars of the offence given in the information were:
"Mark Jeffery Winfield, Ian David Chandler and Edward Lipohar between the 1st November, 1991 and the 7th March, 1992 at Adelaide and other places, conspired together and with Roosevelt Tan and Jack Samardzija to defraud Collins Street Properties Pty Ltd of an incentive payment in the sum of about $6,500,000 by falsely representing that either P T Mecosin (Indonesia) or P T Mecosin (Australia) Ltd was an authorised representative of P T Mecosin Indonesia and that P T Mecosin (Australia) Ltd intended to comply with the terms of a lease agreement in relation to part of the property situated at 333 Collins Street, Melbourne, Victoria and that a Krung Thai Bank promissory note of an alleged value of US$10,000,000 proffered as security was a good and valid negotiable instrument."
Despite the averment of conduct "at Adelaide and other places", neither appellant nor the other alleged conspirators were present at any stage in South Australia. Substantial activities in furtherance of the conspiracy were conducted in Queensland and Victoria, and it may be inferred that, at least in part, the conspiracy was formed there. Collins Street Properties Pty Ltd ("Collins Street") was incorporated in, directed from and had its registered office in Adelaide but carried on business of leasing premises at 333 Collins Street, Melbourne, of which it was the owner. Collins Street was a wholly owned subsidiary of a company which also was incorporated in South Australia. It, in turn, was owned by a statutory body corporate of that State, the State Government Insurance Commission ("SGIC"), controlled by the Government of South Australia. The object of the conspiracy was to defraud Collins Street of an incentive payment in a proposed lease of the premises.
II THE ISSUES
In Strassheim v Daily, Holmes J, delivering the opinion of the Court, said[75]:
"Acts done outside a jurisdiction, but intended to produce and producing detrimental effects within it, justify a State in punishing the cause of the harm as if [the actor] had been present at the effect".
Later, in R v Doot[76], whilst Lord Wilberforce reserved the question "whether a conspiracy formed abroad to do an illegal act in England, but not actually implemented [there], could be tried in the courts of [England]"[77], his Lordship declared[78]:
"The truth is that, in the normal case of a conspiracy carried out, or partly carried out, in this country, the location of the formation of the agreement is irrelevant: the attack upon the laws of this country is identical wherever the conspirators happened to meet; the 'conspiracy' is a complex, formed indeed, but not separably completed, at the first meeting of the plotters."
We respectfully agree. The reference by Lord Wilberforce to the attack on the laws of England reflects his earlier statement in Doot that "the common law treats certain actions as crimes" on the ground that the "actions in question are a threat to the Queen's peace, or, as we would now perhaps say, to society"[79].
[75]221 US 280 at 285 (1911).
[76][1973] AC 807.
[77][1973] AC 807 at 818.
[78][1973] AC 807 at 818.
[79][1973] AC 807 at 817.
On one branch of the written submissions (which were developed in argument), the respondent advocates a similar approach, but adjusted to fit the structure of the Australian legal system. The submission is that if (a) the agreement was made, in whole or in part, and was to be performed, in whole or in part, within Australia and (b) the performance of the relevant common law conspiracy to defraud would have a real and substantial effect within a particular Australian forum, two consequences follow. First, there is an offence under the common law of Australia. Secondly, the offence may be tried in the courts of that particular forum. This, in substance, reflects the approach taken by Perry J in the Court of Criminal Appeal. His Honour said[80]:
"[T]here would appear to be no good reason why, in a federation of States such as the Commonwealth of Australia, the ambit of the crime of conspiracy at common law should not extend to encompass a conspiracy hatched in another State or Territory, when the forum State or its citizens, stand to be the ultimate victims of it.
I add that I do not see that it is at all inconsistent with the view which I have just expressed that there may be more than one jurisdiction in which a given crime of conspiracy may be prosecuted. Where an agreement is reached, and acts which are an expression of the agreement are performed in different jurisdictions, a crime against the law of more than one jurisdiction may have been committed.
I do not think that in such circumstances, there is any question of 'comity'.
…
Here, the target of the conspiracy was a South Australian company, [Collins Street]. If the conspiracy had been successfully carried out, that company would have been induced to pay about $6.5 million to the appellants as a result of their fraudulent representations. I do not think it matters whether one speaks in terms of 'harm', 'public mischief', disturbance of the 'Queen's peace', the 'good of society', or even 'peace, welfare and good government'. It seems to me that if the impact of the substantive offence would have been felt in South Australia, in the sense that the resulting loss would have been suffered in this State, the inchoate offence constituted by the agreement was a breach of South Australian law, that is, the common law offence of conspiracy to defraud.
The fact that the company was carrying on business at the time in Victoria, in the sense that it was offering a lease of a building in Melbourne, is not a circumstance which, in my view, detracts from the opinion which I have just expressed."
[80](1997) 70 SASR 300 at 319-320.
It is here that the significance of the present appeals is found. Perry J referred to "a breach of South Australian law" but that does not put the matter accurately. As has been indicated in Section I, the offences were against the common law of Australia and the threat, in the sense used by Lord Wilberforce, was to Australian society rather than to any narrower community interest represented by a particular State. Substantial steps in furtherance of the conspiracy took place within Australia and, it may be inferred, that, at least to a significant degree, the conspiracy itself was formed within Australia.
Had the Supreme Court been exercising a national jurisdiction, then the case would have fallen fairly closely within the reasoning of Lord Wilberforce in Doot. However, the Supreme Court was not exercising a national jurisdiction as it does when exercising federal jurisdiction, for example under s 68 of the Judiciary Act in respect of prosecutions of offences against laws of the Commonwealth[81].
[81]See the discussion by Gaudron J in The Commonwealth v Mewett (1997) 191 CLR 471 at 524-525.
It is necessary for the exercise by the Supreme Court of its authority to try and punish those accused of indictable offences that they be brought before the Supreme Court, there being no trial in absentia at common law in the ordinary course[82]. In the present case this was achieved by the operation of the Service and Execution of Process Act 1992 (Cth) ("the Service and Execution of Process Act"), apparently pursuant to the provisions of Pt 5 Div 1 (ss 81-90). However, such legislation does not expand the "subject-matter" as distinct from the "territorial" jurisdiction of the State court[83]. Nor does it have the consequence that the State court is exercising federal jurisdiction at the trial of persons in the position of the appellants. The legislation operates "in aid of the functions of the States and does not relate to what otherwise is a function of the Commonwealth"[84].
[82]See Lawrence v The King [1933] AC 699 at 708; Athanassiadis v Government of Greece [1971] AC 282 at 294-296 (n); R v Jones (Robert) (No 2) [1972] 1 WLR 887 at 890-891; [1972] 2 All ER 731 at 734-736; Tassell v Hayes (1987) 163 CLR 34 at 43-44; Wiest v Director of Public Prosecutions (1988) 86 ALR 464 at 494; R v Hallocoglu (1992) 29 NSWLR 67 at 71-72; Kunnath v The State [1993] 1 WLR 1315 at 1319-1320; [1993] 4 All ER 30 at 35-36; R v Jones (1998) 72 SASR 281 at 292-295; Ebatarinja v Deland (1998) 194 CLR 444 at 454.
[83]Flaherty v Girgis (1987) 162 CLR 574 at 598.
[84]Aston v Irvine (1955) 92 CLR 353 at 364.
Given the connections between the offences charged and the area of Australia beyond South Australia, other States had interests in the matter. Yet only South Australia moved to prosecute. The Supreme Court, as will shortly appear, had jurisdiction "in and for the State". In such a situation, where the accused are brought before the Supreme Court of a State by processes of extradition from other States under federal law, and they are charged with offences against the Australian common law, is there a further requirement of contact between those alleged offences and the forum State before it can properly be said that the Supreme Court is exercising jurisdiction "in and for" that State? Does it accord with the Australian constitutional structure, including the requirement that each State accord full faith and credit to the judicial proceedings of the other States, that the prosecution authorities of the forum State may proceed to prosecute and seek punishment in that State of offences against common law only if there be some adequate contact between the State and the particular offences charged? If so, what is the requisite nature of that contact?
Must it at least be as strong as those which would support the validity of State legislation which provided that an act done outside the State was a punishable offence? In that regard, it should be noted that well before the commencement of the Australia Act 1986 (Cth) ("the Australia Act"), it was competent for a State legislature to provide that an act done outside the State be a punishable offence if there were "elements sufficiently connected with [the State] to enable the legislature of that State to deal with them"[85].
[85]Grannall v C Geo Kellaway and Sons Pty Ltd (1955) 93 CLR 36 at 52. See also Ex parte Iskra; Ex parte Mercantile Transport Co Pty Limited (1962) 63 SR (NSW) 538 at 552.
First, the questions arise from the identification by its governing statute of the jurisdiction of the Supreme Court of South Australia as one "in and for the State". To give effect to the statute, upon its proper construction, is neither to sweep away settled jurisdictional rules, to ignore the division of the country into geographical and political units, nor to create new common law offences.
Secondly, in answering these questions respecting the authority of the Supreme Court, regard must be had to the framing by the parties of their respective submissions. This requires treatment of a number of matters which, whilst at first blush are of primary significance, in the end are not determinative. To a degree they reflect a tendency to treat the State of South Australia as if it stood on the same footing, with respect to the common law, as does England, and to translate directly the reasoning of the House of Lords in Doot. In short, there was a failure in some of the submissions to view the problem through Australian spectacles, which should be bifocal.
The distractions to which this gives rise include what in Grannall v C Geo Kellaway and Sons Pty Ltd[86] this Court identified as "the rule that all offences are local and territorial" and related notions of comity between nation states (Section VI) and of "jurisdiction" and "venue" in criminal law (Section IV). It also is appropriate to consider the significance of statute (Section V) and why the issues relating to criminal law with which this case is concerned are not resolved by reference to the rules of private international law, whether in its international or intra-Australian dimension (Section VII). With an understanding of the true significance of these matters for the appeals, it will be convenient (in Section IX) to dispose of the appeals after an appreciation of the facts (Section VIII).
[86](1955) 93 CLR 36 at 52.
III THE SUPREME COURT OF SOUTH AUSTRALIA
Some consideration of the constitution and authority of the Supreme Court of South Australia is necessary. The Supreme Court has vested in it by s 17(2)(a) of the Supreme Court Act 1935 (SA) ("the Supreme Court Act") "the like jurisdiction, in and for the State, as was formerly vested in, or capable of being exercised by" certain English courts. These are identified to include both the courts at Westminster which were united and consolidated by s 3 of the Supreme Court of Judicature Act 1873 (UK) ("the Judicature Act") to constitute the Supreme Court of Judicature, and the courts created by commissions of assize. Paragraphs (b) and (c) of s 17(2) respectively vest such other jurisdiction "as is vested in, or capable of being exercised by the court" and "as is in [the Supreme Court Act] conferred upon the court". The latter includes jurisdiction in probate (s 18) and matrimonial causes (s 19). The matrimonial causes jurisdiction is now subject to the operation given to the Family Law Act 1975 (Cth) by s 109 of the Constitution.
The phrase "in and for the State" in s 17(2)(a) indicates the federal structure into which the powers of the old English courts, which existed before the Judicature Act, were assimilated by the Supreme Court Act. This place in the federal structure is further indicated by: the established position provided for the State Supreme Courts by s 73 of the Constitution; the reach of s 77(iii) of the Constitution with respect to investment of federal jurisdiction in State courts; the reasoning in Kable[87]; the powers of the Parliament to legislate to confer original jurisdiction on this Court in any matter "[r]elating to the same subject-matter claimed under the laws of different States" (s 76(iv)), and to legislate with respect to the service and execution throughout the Commonwealth of the civil and criminal process and the judgments of the courts of the States (s 51(xxiv))[88] and the recognition of State laws, public Acts and records and judicial proceedings (s 51(xxv))[89]; and the full faith and credit directly required by s 118.
[87](1996) 189 CLR 51.
[88]Now provided for by the Service and Execution of Process Act.
[89]See State and Territorial Laws and Records Recognition Act 1901 (Cth) ("the Recognition Act").
The Australian legal system, of which South Australia and its institutions of government, including the Supreme Court, are part, differs considerably from that in England in the last century. Assimilation rather than direct translation is what is achieved by the phrase in par (a) of s 17(2), "like jurisdiction, in and for the State".
IV "JURISDICTION", "VENUE" AND "CRIME IS LOCAL"
The term "jurisdiction" here, as elsewhere, gives rise to difficulty. It is a generic term, a point made by Isaacs J in Baxter v Commissioners of Taxation (NSW)[90]. It is used in a variety of senses, some relating to geography, some to persons and procedures, others to constitutional and judicial structures and powers. Thus, "federal jurisdiction" is "the authority to adjudicate derived from the Commonwealth Constitution and laws"[91] whereas the phrase "inherent jurisdiction", used in relation to such things as the granting of permanent stays for abuse of process, identifies the power of a court to make orders of a particular description[92].
[90](1907) 4 CLR (Pt 2) 1087 at 1142. In United States v Vanness 85 F 3d 661 at 663(n) (1996), "jurisdiction" was said to be "a word of many, too many, meanings".
[91]Baxter v Commissioners of Taxation (NSW) (1907) 4 CLR (Pt 2) 1087 at 1142. See also Ah Yick v Lehmert (1905) 2 CLR 593 at 603; Gould v Brown (1998) 193 CLR 346 at 379.
[92]Williams v Spautz (1992) 174 CLR 509 at 518-519; Pelechowski v Registrar, Court of Appeal (1999) 73 ALJR 687 at 695-696; 162 ALR 336 at 346-348.
"Jurisdiction" may be used (i) to describe the amenability of a defendant to the court's writ and the geographical reach of that writ, or (ii) rather differently, to identify the subject-matter of those actions entertained by a particular court, or, finally (iii) to locate a particular territorial or "law area"[93] or "law district"[94]. The distinction between (i) and (ii) was drawn by Mason ACJ, Wilson and Dawson JJ in Flaherty v Girgis[95]. In passages in their joint judgment in Thompson v The Queen[96], Mason CJ and Dawson J used the term "jurisdiction" in all three of these senses.
[93]An expression used by the Court in Laurie v Carroll (1958) 98 CLR 310 at 331, with respect to New South Wales and Victoria. See also Breavington v Godleman (1988) 169 CLR 41 at 77, 97, 107.
[94]An expression used by Wilson and Gaudron JJ in Breavington v Godleman (1988) 169 CLR 41 at 87.
[95](1987) 162 CLR 574 at 598. See also Parsons v Martin (1984) 5 FCR 235 at 240.
[96](1989) 169 CLR 1 at 11-12.
The present appeals concern a variant of (ii). The law area (which here is Australia, for it is with offences against its common law that the appellants were tried and punished) operates upon a wider plane than that of the State by whose institutions the trial and punishment of the appellants were undertaken. Thus, the law area and the venue do not coincide. This disparity, in the Australian legal system, is a significant but not a determinative consideration in ascertaining the nature of the jurisdiction exercised in these prosecutions and the limitations upon it.
What has been identified as the refusal of common law courts to entertain prosecutions save at and by the law of the place where the offence had been committed appears to have grown out of the classification of criminal trials as local actions (as indicated below in Section VII). Conditions respecting venue thereby arose[97]. Further, it was significant that, at common law, the grand jury was sworn to inquire of acts done within their vicinage, so that if a person were wounded in one vicinage but died in another, the offender was indictable in neither[98]. These considerations appear also to have provided the source of the rule attributed to British South Africa Company v Companhia de Moçambique[99] whereby the common law courts refused to try issues respecting title to immovables located outside the forum[100]. However, venue is concerned with the place of trial whilst "jurisdiction" is aptly used here to identify the existence of authority to adjudicate a particular dispute.
[97]Leflar, "Extrastate Enforcement of Penal and Governmental Claims", (1932) 46 Harvard Law Review 193 at 198.
[98]Blackstone, The Laws of England, vol 4, §303.
[99][1893] AC 602.
[100]Dagi v The Broken Hill Proprietary Company Ltd (No 2) [1997] 1 VR 428 at 438439.
The reasoning respecting the common law as to venue was expounded in decisions before the law in England was changed by s 13 of the Juries Act 1825 (UK). This was before the establishment of the Province of South Australia. In R v Treacy, Lord Diplock said that the decisions respecting what his Lordship identified as "the rules of venue" involved different questions from those which arose in the modern criminal trials. His Lordship stated[101]:
"In the venue cases, the facts alleged against the prisoner unquestionably amounted to a criminal offence in English law. The only question was whether under the technical rules of venue he was liable to be tried before a court whose jurors were drawn from one locality rather than another. The historical origin of those rules dated back to the embryonic stage of development of English trial by jury. Jurors originally combined the functions of 'know-ers' of facts as well as 'tri-ers' of facts and the prisoner was entitled to have his guilt determined by jurors drawn from an area where the inhabitants would be most likely to know the facts alleged to constitute the crime with which he was charged. The rules of venue continued to be applied long after the jury had assumed its modern function of deciding facts upon evidence adduced before it."
Lord Diplock went on to explain that, before the law was changed by statute, "jurisdiction" was involved, but in the particular sense of the competing local jurisdictions of courts in England and Wales. Lord Salmon spoke to similar effect in Doot[102].
[101][1971] AC 537 at 559. See also George, "Extraterritorial Application of Penal Legislation", (1966) 64 Michigan Law Review 609 at 610.
[102][1973] AC 807 at 834.
Difficulties arise in the application of the notion of venue to crimes the crucial element of which may be an omission, or a series of steps by a number of actors in different places, or a meeting of minds united in time but divorced in location although the actors are linked by telephone or like means. The facts of the present case emphasise the point.
In Ward v The Queen[103] the prosecution accepted that it was not the law area where the act of the accused was done (Victoria) but the law area where that act took effect upon its victim (New South Wales) which "determine[d] the locus of the crime [of murder] and, in turn, the courts having jurisdiction in respect of it". The consequence of the basis upon which that case was argued is that the case does not lay down any settled requirement as to what is a sufficient territorial nexus between the elements of a common law offence and the territory of the State in which it is prosecuted. However, Ward does indicate that it would have been within the power of the Parliament of Victoria to legislate "to provide that a crime should be justiciable by a Victorian court if the initiating act (such as the firing of a shot) was done in Victoria notwithstanding that the result occurred in New South Wales"[104].
[103](1980) 142 CLR 308 at 315; cf Hazlett v Presnell (1982) 149 CLR 107 at 111.
[104](1980) 142 CLR 308 at 314.
Thus, statute may intervene. The appellant in Thompson v The Queen[105] had been charged in the Australian Capital Territory with murder. The relevant statute law[106] provided that, where the cause of death occurred outside the Territory (for example, in New South Wales) but the death occurred inside the Territory, the offence of murder might be dealt with in all respects as if it had been wholly committed inside the Territory. This Court was concerned to determine the standard of proof applicable to the establishment of the authority of the Supreme Court of the Australian Capital Territory to try the appellant. There was some discussion in the judgments as to the nature of the jurisdiction to try crime where some elements of the offence took place outside the law area in which the charge is laid. However, this was against the background of submissions, the effect of which would have been that neither the courts of the Territory nor of New South Wales had jurisdiction to try the appellant. Thus, like Ward, Thompson did not directly concern issues of the nature which arise here. The present case is different. Here, as has been pointed out in Section II, several States had interests in the matter, although only one moved to prosecute.
[105](1989) 169 CLR 1.
[106]s 25 of the Crimes Act 1900 (NSW), as adapted to the Australian Capital Territory.
Following the decision in Thompson, what is now numbered s 5C was introduced into the Criminal Law Act[107]. This provision was debated in the course of argument but it "does not derogate from any other basis on which the courts of the State may exercise criminal jurisdiction" (s 5C(9)). It deals with offences against the "law of the State" (s 5C(1)), and thus not with the offences involved in these appeals. The provision was designed to provide[108]:
"for the application of the criminal law of the State in any case where all of the elements of an offence exist and a territorial nexus exists between the State and at least one of these elements. The territorial nexus exists if the element is or includes an event occurring in the State, or the person alleged to have committed the offence was in the State at the time of the occurrence of an event that is, or is included in, an element of the offence. The existence of the territorial nexus will be presumed, and the presumption will be conclusive unless the court of trial is satisfied, on the balance of probabilities, that the necessary territorial nexus does not exist. The provision will not apply to an offence that makes the place of the commission of the offence an element of the offence, to an offence that excludes the requirement for a territorial nexus, or to an offence for a charge laid before the commencement of the section."
[107]By s 2 of the Criminal Law Consolidation (Application of Criminal Law) Amendment Act 1992 (SA). Similar provision is made by the Crimes (Application of Criminal Law) Amendment Act 1992 (NSW). See also ss 243B and 243C of the Australian Securities and Investments Commission Act 1989 (Cth) ("the ASIC Act").
[108]South Australia, House of Assembly, Parliamentary Debates (Hansard), 13 October 1992 at 790.
In Thompson, Brennan J[109] referred to the speech of Lord Diplock in Treacy and observations of Devlin J in R v Martin[110], and said:
"The jurisdiction of a court to hear and determine a charge of a criminal offence and the territorial ambit of a law which creates or defines the offence charged are two distinct questions".
Accordingly, the question of "[w]hat constitutes an offence known to the law of a jurisdiction is a separate and distinct question from that of whether the law of a particular jurisdiction extends beyond the geographical borders of that jurisdiction"[111].
[109](1989) 169 CLR 1 at 19.
[110][1956] 2 QB 272 at 285.
[111]Hinton and Lind, "The Territorial Application of the Criminal Law – When Crime is not Local", (1999) 23 Criminal Law Journal 285 at 297.
Thus, in Treacy, Lord Diplock had said[112]:
"In view of the way in which the question is framed and the wide-ranging argument about 'jurisdiction' before your Lordships' House, I am prompted to state at the outset that the question in this appeal is not whether the Central Criminal Court had jurisdiction to try the defendant on that charge [of blackmail contrary to s 21 of the Theft Act 1968 (UK)] but whether the facts alleged and proved against him amounted to a criminal offence under the English Act of Parliament.
…
The fact that the appellant was arrested in Greater London and committed for trial at the Central Criminal Court unquestionably gave to that court jurisdiction to determine whether or not he was guilty of the offence for which he was indicted."
[112][1971] AC 537 at 559.
Recently, in R v Manning[113], the English Court of Criminal Appeal doubted the correctness of such statements as to the sufficiency of presence to found jurisdiction. Buxton LJ said[114]:
"The English courts had jurisdiction subject to two conditions: that the defendant was physically present before the court (a matter that cannot be affected by construction of the statute) and that he had completed the crime, as defined, within England and Wales. The latter was an overriding requirement that was applied in the light of, rather than which affected the terms of, the definition of the crime charged."
[113][1999] 2 WLR 430; [1998] 4 All ER 876.
[114][1999] 2 WLR 430 at 444; [1998] 4 All ER 876 at 889.
However, the distinction drawn by Lord Diplock has attracted support in this country[115]. In the course of her reasons for judgment in Thompson[116], Gaudron J observed:
"The issue of jurisdiction is … a discrete issue and distinct from the issue of guilt which depends upon the elements of the offence charged being made out."
[115]Thompson (1989) 169 CLR 1 at 19; McDonald v Bojkovic [1987] VR 387 at 392; Re Anne Hamilton-Byrne [1995] 1 VR 129 at 138-139; Isaac, Tajeddine & Elachi (1996) 87 A Crim R 513 at 514.
[116](1989) 169 CLR 1 at 39.
Nevertheless, to accept that distinction, as it must be, is not fully to resolve the issue in the present appeals. Nor is analysis in the present case assisted by repetition of the maxim that "crime is local" and by treating the locality here as the territory of South Australia. In Hyde v United States[117], Holmes J referred to the extrapolation of rules respecting trials in particular localities in England and Wales to the level of a general principle that "crime is local". When applied to the law of conspiracy, this demonstrated to Holmes J "one of the misfortunes of the law that ideas become encysted in phrases and thereafter for a long time cease to provoke further analysis"[118]. Professor W W Cook took up the point in his famous article published in 1924, "The Logical and Legal Bases of the Conflict of Laws"[119]. He wrote:
"We are told – the accuracy of the statement is not entirely clear – that at one period in the development of English law, a murderer could not be punished unless both the blow and the death took place in the county in which the prosecution was brought. The difficulty seems to have been connected with the fact that the early triers of fact answered of their own knowledge and without testimony of witnesses, and therefore could not know both who struck the blow and that the death had happened unless both events occurred in the county. This rule was changed, or at least the doubt as to the law settled, by statute in the reign of Edward VI so as to give jurisdiction to the county in which the death occurred. It is interesting to find this common-law rule, introduced originally apparently for purely practical reasons, later erected into an immutable 'principle' of 'jurisdiction,' based on arguments as to the territorial nature of law."
[117]225 US 347 (1911).
[118]225 US 347 at 391 (1911).
[119](1924) 33 Yale Law Journal 457 at 460-461 (footnotes omitted).
I was also assisted by the analysis by Priestley JA in the same article, of the theory of a uniform common law which had been propounded by Sir Owen Dixon before the advice of the Privy Council in Uren[364]. To give context to what Priestley JA was saying, it is necessary first to set out Sir Owen Dixon's theory[365]:
"We do not of course treat the common law as a transcendental body of legal doctrine, but we do treat it as antecedent in operation to the constitutional instruments which first divided Australia into separate Colonies and then united her in a federal Commonwealth. We therefore regard Australian law as a unit. Its content comprises besides legislation the general common law which it is the duty of the courts to ascertain as best they may … [The general common law] is one system which should receive a uniform interpretation and application, not only throughout Australia but in every jurisdiction of the British Commonwealth where the common law runs." (emphasis added)
[364](1967) 117 CLR 221 at 238; [1969] 1 AC 590 at 641.
[365]Address to the Section of the American Bar Association for International and Comparative Law, (1943) 17 Australian Law Journal 138 at 139.
Priestley JA wrote of that passage[366]:
"In the first of the emphasised sentences, Dixon seems to have been indicating agreement with Homes' basic point, but then in the second seems to be using a premise closely analogous to Story's in Swift v Tyson. In this paper Dixon's principal points were, first, that the State derived from the common law, and, second, that Australian law could be regarded as a unit. I do not see the validity of either proposition depends on the identity of the common law first in the colonies and later in the States.
He ended with the observation that:
' … under the Australian conception, while on the one hand there is neither need nor room for the doctrine of Swift v Tyson 41 US (16 Pet) 1 (1842) on the other hand the basal principle of Erie Railroad Co v Tompkins 304 US 64 (1938) is contradicted.'
This final observation was questioned by Professor Cowen[367]. Cowen fastened on what seems to me to be the key point, namely that it does not necessarily follow that because the authority of the United Kingdom Parliament rested on the common law, the common law therefore produced singleness of result in all jurisdictions. He said that if the Swift v Tyson / Erie Railroad Co v Tompkins problem had no relevance for Australia it was not because the authority of the United Kingdom legislature rested on the common law but because of the more cogent point that s 73 of the Commonwealth Constitution conferred general appellate jurisdiction on the High Court."
[366]Priestley, "A Federal Common Law in Australia?" (1995) 6 Public Law Review 221 at 231.
[367]Cowen, "Diversity Jurisdiction: The Australian Experience", (1955) 7 Res Judicatae 1 at 29.
Save perhaps for the reference to the "brooding" presence of the High Court, I would be strongly inclined to adopt also what Priestley JA said in the following passages[368]:
"In recent years, judges in the High Court have referred to 'the Australian common law' or 'an Australian common law'. This has happened in circumstances where there has been no apparent point in asking whether there is one Australian or six State bodies of common law, or considering the distinction between Australian and federal common law. Because nothing has turned on these questions, assumptions have simply been made that there is an Australian common law. Looked at broadly, there is no visible harm in such assumptions, but it is arguable that they are not strictly correct.
…
There is no reason why variant judicial decisions on common law rules may not occur in different States and thus create divergences in the common law of the States. The brooding presence of the High Court will act as a brake on any such divergence but until such time as any particular point is dealt with by the High Court, which may take some time to happen or, as a matter of possibility, may never happen, the position will in fact be that the common law rule on the particular point will be different in at least two States. This in itself is sufficient to show in theory that there is not one common law throughout Australia, nor an Australian common law[369].
Another way of showing this is to consider the total law in force in a State at any time. This will comprise the statute law (Imperial, Commonwealth and State) and the decisional law (common law) there prevailing. The whole of the law in the State is the background to the decision of any particular case. A court cannot be sure that the particular rule by which it decides a case is appropriate without considering that background. (Experience, convention and occasional help from legal representation usually keep this task, in theory almost impossibly onerous, within manageable limits.) That is, although it is possible to divide the law into the different areas of applicable statute and decisional law, what the court is seeking in any case is the rule thought to be most appropriate to be found in or derived from the global mass of all law in the State. For practical purposes, it is the totality that matters. This is different in every State. Even if it is assumed that the decisional component of the law in every State was identical when as a colony its legal system began to function, it must follow that from the time differences developed in statute law in the jurisdiction, the total effect of the decisional law in that jurisdiction necessarily became different from that in the others.
This was so in the colonies before federation. In regard to confessions for example, by 1894 the statutory position was different in New South Wales, Victoria and Queensland[370]. It necessarily followed that the common law position concerning confessions was also different in each jurisdiction[371]. Variation between common law rules in different States is bound to happen. Although there will be uniformity in the common law if the High Court speaks on the point, until that happens, the common law in the two States is in fact different."
[368]Priestley, "A Federal Common Law in Australia?" (1995) 6 Public Law Review 221 at 232-233.
[369]An example of this was the different reception in different states of the Mareva injunction. See Meagher, Gummow and Lehane, Equity Doctrines and Remedies, 3rd ed (1992), at 605-614.
[370]R v Connors (1990) 20 NSWLR 438 at 456-458, 462.
[371]There must be numerous examples; one is Delehunt v Carmody (1986) 161 CLR 464 at 471-473. Another difference in approach to spillage cases in supermarkets: see Shoeys Pty Ltd v Allan [1991] Aust Torts Rep ¶81-104.
There is another respect in which the common law at times will differ from State to State in a practical sense. Although a difference between decisions in different States may provide a criterion for a grant of special leave to appeal to this Court, the existence of that criterion may not guarantee the resolution of the difference by the Court. It may be that no litigant has applied to this Court for special leave in such a case for years, or even ever. Naturally, if and when the matter comes to this Court, the result is likely to be a decision binding for all of Australia; but in the meantime, the common law applied in the States will be that which has been stated to be the law by the respective Courts of Appeal and Full Courts.
In Lange v Australian Broadcasting Corporation[372] there are several unequivocal statements by this Court that there is one common law for the whole of Australia. If I were convinced that remarks to that effect so understood were necessary for that decision, I would of course have to apply them accordingly. I am bound on any view to accord them great weight and respect which I do. However, I do not think that their Honours' remarks were necessary for the decision in Lange. Once the Court said, as it did[373], that, "[O]f necessity, the common law must conform with the Constitution" and that [they] cannot be at odds, it becomes apparent that this was so, no matter whether there might be one, or six or more, common laws of defamation in Australia. None of them could prevail over the Constitution. The same may be said of the remarks of McHugh J in Kable[374], which was also a constitutional case and which would have been decided the same way no matter what view was taken of the common law in Australia.
[372](1997) 189 CLR 520 at 562-563.
[373](1997) 189 CLR 520 at 566.
[374](1996) 189 CLR 51.
Unlike in the United States[375] there were no colonies in which the civil law was the applicable law at the time of union. It follows that there were unlikely to be any significant differences in Australia in the common law throughout the colonies.
[375]eg Florida and Louisiana.
The Privy Council as a final court of appeal from the Australian colonies had before federation inevitably exerted a strong, unifying influence on the common law in this country. There were not, so far as the administration of justice was concerned, the same difficulties and unevenness in the application of the law as between the respective colonies and their citizens, as existed in North America at the time of the establishment of the United States.[376] Any differences that exist or may emerge in the common law of the States in this country are likely to be extremely rare and slight, but in my view it is not appropriate and there is no Constitutional imperative to foreclose the possibility of such differences.
[376]See Re Wakim; Ex Parte McNally (1999) 73 ALJR 839; 163 ALR 270. The experience in the United States was different. After the ratification of the Constitution it was realized that there was an immediate need for a system of federal courts, not only as a unifying influence over very parochial communities and States, but also because, during the Confederation, many of the State courts had been heavily partial in their determinations of suits involving sister States, citizens of those States and foreign governments and foreigners: see Morris, Federal Justice in the Second Circuit: A History of the United States Courts in New York (1987) at 6-11.
Another reason for the view that I take is that it is important that the autonomy (subject to the Constitution) of the States not be eroded. The people of a State look to that polity for the enforcement of the law. The police force is part of the executive of each State. It falls to the police force of each State to be the primary law enforcer of, and within the boundaries of a State. It is, in my opinion well settled that "all offences are local and territorial"[377]. The locality and territory for Australian purposes should be taken to be the State (except of course with respect to offences enacted to be such by Commonwealth legislation within power). The people have, and are entitled to have an expectation that breaches of the law within the State, or having a sufficient connexion with it, will be checked and punished by the polity of the State. It is important that there be, close at hand a sovereign authority, empowered so to act and with the means of doing so. The truth is that a person, and indeed a police officer living in Cape York is unlikely to have very much interest in the apprehension and punishment of an offence against the common law committed in the Riverlands of South Australia.
[377]Grannall v C Geo Kellaway and Sons Pty Ltd (1955) 93 CLR 36 at 52 per Dixon CJ, Webb, Fullagar, Kitto and Taylor JJ.
As H L A Hart wrote in The Concept of Law[378]:
"The legal system of a modern state is characterized by a certain kind of supremacy within its territory and independence of other systems".
[378]2nd ed (1994) at 24.
The same author[379] makes the related point that there must be a genuine sovereign power territorially and politically defined to which the subject may look for enforcement and protection.
[379]2nd ed (1994) at 50.
Is not a notion with which Australians so far have become acquainted that a common law offence perpetrated in, say, South Australia which would be a statutory (Code) offence in Queensland should nonetheless be regarded as an offence against the common law of the whole of Australia, that is to say, the polity of Australia of which Queensland is part. I am unaware of any difficulties that have arisen in treating crime as territorial and referable to a particular State if committed within it or having a sufficient connexion with it. But I would be concerned, if all common law offences were to be treated as offences against the polity of Australia, that on occasions there might be either a disinclination to prosecute because of perceived remoteness or otherwise, or competition between States to prosecute in circumstances in which the existence of the relevant connexion is tenuous or controversial in relation to one or other of the States.
There is another potential problem. Assume that the legislature of Western Australia (a Code State) legislates to define an offence in such a way as to make its elements different from, or more numerous than those which would suffice to constitute an offence at common law. If a common law offence in Australia is against the broad, Australian community rather than against the community of the State (territory) in which it is committed would that not then leave open the possibility that a person doing the relevant acts in Western Australia might be guilty of a common law offence against the Australian community whilst at the same time what that person had done would not be an offence according to Western Australian law? The mere fact that such a possibility exists argues against any proposition that offences at common law are offences against the Australian community at large.
The Court system in this country is divided among the polities. It is, in my opinion, consistent with the legal and administrative fact of this division that the common law be regarded as the common law of each State, even though the differences between the common laws of each State may tend to be non-existent or insignificant.
There is perhaps another view again, and that is that although the common law is the common law of Australia and that common law is unvarying throughout the country, it is enforceable as such only by a State with which the relevant acts or elements have a sufficient connexion. It is not however a view to which I am attracted or which I think I am bound by authority to adopt.
There are, as I have indicated as many persuasive and authoritative statements for the proposition that the States each have their own, albeit virtually identical, common laws as there are statements the other way, if, as I think, is the position, such of those statements as were made in Lange[380] and Kable[381] were unnecessary for the decision in those cases.
[380](1997) 189 CLR 520.
[381](1996) 189 CLR 51.
It has not been suggested that the common law of conspiracy differs anywhere in Australia. However I do not propose to look beyond South Australian law, and by that I mean the common law in and of South Australia, to decide this case.
There are five possible bases for argument that an offence contrary to the law of South Australia has been committed and that the South Australian courts had jurisdiction in respect of it: first, that if the conspiracy had been carried out, there would have been an impact upon a "resident" of South Australia or, to put it another way, a "victim" in South Australia; that the conspiracy, if effected, would have involved a breach of the Queen's Peace in South Australia; that the conspiracy was effected in part in South Australia by the dispatch of the facsimile to, and its receipt in, that State; the occurrence of a relevant event in South Australia, the consideration given to there to the representations and the proposed transaction and, that in a federal system such as the Australian one, s 118[382] of the Constitution operated so as to make it an offence against South Australian law for conspirators elsewhere in Australia to agree to do an act which, if the agreement were made in South Australia, would be a criminal conspiracy in that State.
[382]Section 118 provides: "Full faith and credit shall be given, throughout the Commonwealth to the laws, the public Acts and records, and the judicial proceedings of every State."
As Doot itself shows, much crime may be international, crossing many borders and of potential danger to many states. (That does not mean that at the same time crime may not also be local.) The extent of criminal activity across borders is likely to be greatly increased as a result of developments in and the use of electronic technology to effect transactions. The difficulties in searching for a principle were adverted to by Lord Wilberforce in Doot[383]:
"In the search for a principle, the requirement of territoriality does not, in itself, provide an answer. To many simple situations, where all relevant elements occur in this country, or, conversely, occur abroad, it may do so. But there are many 'crimes' (I use the word without prejudice at this stage) the elements of which cannot be so simply located. They may originate in one country, be continued in another, produce effects in a third. Some constituent fact, the posting or receipt of a letter, the firing of a shot, the falsification of a document, may take place in one country, the other necessary elements in another. There is no mechanical answer, either through the Latin maxim or by quotation of Lord Halsbury LC's words in Macleod v Attorney-General for New South Wales [1891] AC 445 or otherwise, which can solve these. The present is such a case."
The difficulties were also referred to by La Forest J delivering the judgment of the Supreme Court of Canada in Libman v The Queen[384]:
"But once it is decided that transnational crimes must come within the jurisdiction of one State, then on what basis should one take or refuse jurisdiction?
The cases reveal several possibilities, of which I mention a few. One is to assume that jurisdiction lies in the country where the act is planned or initiated. Other possibilities include the place where the impact of an offence is felt, where it is initiated, where it is completed or again, where the gravamen or essential element of the offence took place. It is also possible to maintain that any country where a substantial or any part of the chain of events constituting an offence takes place may take jurisdiction.
Though counsel for Mr Libman argued that exclusive jurisdiction belongs to the country where the gravamen of the offence took place or where it was completed, a review of the English authorities does not really support that position. What it shows is that the courts have taken different stances at different times and the general result, as several writers have stated, is one of doctrinal confusion, a confusion compounded by the fact that the discussion often focuses on the specific offence charged, a discussion made more complicated by the further fact that some offences are aimed at the act committed and others at the result of that act."
[383]R v Doot [1973] AC 807 at 817.
[384][1985] 2 SCR 178 at 185-186.
In the United States, in Hyde v United States, McKenna J, delivering the opinion of the Court, posed the question in this way[385]:
"The question, therefore, is presented as to the venue in conspiracy cases, whether it must be at the place where the conspiracy is entered into or whether it may be at the place where the overt act is performed, the Sixth Amendment of the Constitution of the United States requiring all criminal prosecutions to be in the 'district wherein the crime shall have been committed'."
[385]225 US 347 at 357 (1912).
The majority justified their decision to hold that a court of a state in which an overt act is performed had jurisdiction by the following reasons[386]:
"It is not an oppression in the law to accept the place where an unlawful purpose is attempted to be executed as the place of its punishment, and rather conspirators be taken from their homes than the victims and witnesses of the conspiracy be taken from theirs. We must not, in too great a solicitude for the criminal, give him a kind of immunity from punishment because of the difficulty in convicting him – indeed, of even detecting him. And this may result, if the rule contended for be adopted. Let him meet with his fellows in secret and he will try to do so; let the place be concealed, as it can be, and he and they may execute their crime in every State in the Union and defeat punishment in all. And the suppositions are not fanciful, as illustrated by a case submitted coincidentally with this[[387]]. The possibility of such a result repels the contention and demonstrates that to yield to it would carry technical rules and rigidity of reasoning too far for the practical administration of criminal justice. We see no reason why a constructive presence should not be assigned to conspirators as well as to other criminals; and we certainly cannot assent to the proposition that it is not competent for Congress to define what shall constitute the offense of conspiracy or when it shall be considered complete and do with it as with other crimes which are commenced in one place and continued in another. Nor do we think that the size of our country has become too great for the effective administration of criminal justice."
[386]Hyde v United States 225 US 347 at 363-364 (1912).
[387]Brown v Elliott 225 US 392 (1912).
Delivering the minority opinion, Holmes J pointed out that the statute had not made the overt act part of the crime. The appellants in the present case relied upon his Honour's reasoning there[388]:
"It would be an amazing extension of even the broadest form of fiction if it should be held that an otherwise innocent overt act done in one State drew to itself a conspiracy in another State to defraud people in the latter, even though the first State would punish a conspiracy to commit a fraud beyond its own boundaries. Of course in the present case the conspiracy as well as the overt act was within the United States, but the case that I have supposed of different jurisdictions is a perfect test of where the crime was committed. If a conspiracy exists wherever an overt act is done in aid of it, the act ought to give jurisdiction over conspirators in a foreign State, if later they should be caught in the place where the act was done.
The defendants were in California and never left the State, so far as this case is concerned. The fraud, assuming as I do for the purposes of decision that there was one, was to get land from the United States there and elsewhere on the Pacific Coast. If successful it would be punished there. The crime with which the defendants are charged is having been engaged in or members of a conspiracy, nothing else; no act, other than what is implied as necessary to signify their understanding to each other. It is punished only to create a further obstacle to the ultimate crime in California. The defendants never were members of a conspiracy within a thousand miles of the District in fact. Yet if a lawyer entered his appearance there in a case before the Land Department, and the defendants directed it and expected to profit by it in carrying out their plans, it is said that we should feign that they were here in order to warrant their being taken across the continent and tried in this place. The Constitution is not to be satisfied with a fiction. When a man causes an unlawful act, as in the case of a prohibited use of the mails, it needs no fiction to say that the crime is committed at the place of the act, wherever the man may be[[389]]. But when the offense consists solely in a relation to other men with a certain intent, it is pure fiction to say that the relation is maintained and present in the case supposed. If the Government, instead of prosecuting for the substantive offence, charges only conspiracy to commit it, trial ought to be where the conspiracy exists in fact."
[388]Hyde v United States 225 US 347 at 389-390 (1912).
[389]Inre Palliser 136 US 256 (1890).
The respondent's principal submission in this case is that, by its nature, conspiracy cannot be subject to the usual rules of the territoriality of crime, that the offence has always been treated as something of an exception to that usual rule and that the common law has now developed to the stage that an offence should be regarded as having been committed in the jurisdiction if the relevant agreement has a real and substantial link with the jurisdiction.
In my opinion, having regard to the exceptional nature of a conspiracy and the authorities to which I have referred, it is proper to take the view that an offence should be regarded as having been committed against the law of South Australia if a conspiracy has been entered into anywhere which has a real link with the jurisdiction. It seems to me with respect that many of the conceptual difficulties associated with the designation of overt acts as the agreement or parts of it can be avoided by the adoption of such a test. It is, as a test, no less exact than many which common law courts are regularly called upon to apply, such as the reasonableness of conduct, whether conduct has been contributory conduct, and whether an expense is of and incidental to a particular enterprise or activity. It is also sufficiently flexible to take account of such matters as an actual or threatened breach of the peace, the place of the likely infliction, or sustaining of harm or damage, and the nature and significance of the overt acts occurring within a jurisdiction.
In this case, a relevant state of affairs existed, to provide real links in these respects: the transmission of the facsimile to South Australia as an act done in partial implementation of the conspiracy; the consideration given by the Board and solicitors of Collins St in South Australia to the transaction generally and the fraudulent representations made in furtherance of the conspiracy; and, the fact that the victim, the party directly affected, Collins St, was a South Australian corporation with its registered office in South Australia. Any one of these circumstances was sufficient in this case to provide a real link between the conspiracy and South Australia so as to make the conspiracy an offence against the law of South Australia and to ground jurisdiction in the courts of South Australia to try the offence.
I need only make these further observations.
In some cases the occurrence of an overt act in the State claiming jurisdiction may provide the relevant link. In others it may be the threatened or actual breach of the peace of the State if the conspiracy were to be brought into effect. Some acts within a State may not suffice to provide the necessary link to ground jurisdiction. In Board of Trade v Owen[390] the conspiracy was hatched and indeed partially carried out in the United Kingdom, but its object, to defraud a state department of the Federal Republic of Germany, and its unlawful means, were wholly outside the jurisdiction. There was no actual or threatened breach of Her Majesty's peace in the United Kingdom. Liangsiriprasert v United States[391] was an extradition case. There an agreement was made in Thailand to export heroin to the United States. The drug entered the United States in a diplomatic pouch. Two of the conspirators travelled to Hong Kong to receive payment and were arrested there. An extradition request was made by the United States to the Governor of Hong Kong. The question at the extradition hearing was whether the evidence established a prima facie case against the conspirators on the assumption that the drug was to be imported into Hong Kong. The Privy Council advised that the importation into the United States was an overt act in that country in fulfilment of the conspiracy and the occurrence of such an overt act in Hong Kong would have been sufficient to ground jurisdiction there.
[390][1957] AC 602.
[391]Liangsiriprasert v United States [1991] 1 AC 225.
In Liangsiriprasert the actual overt acts were of such a kind as to satisfy a test of a real link, just as the direct sustaining of damage might do so if the other elements of the offence of conspiracy are present. It seems to me that, despite some suggestions to the contrary[392], damage to local economic interests, particularly direct damage in consequence of a conspiracy made elsewhere, is a relevant consideration and will usually, if it exists, be a decisive factor in establishing the relevant link and therefore of grounding jurisdiction.
[392]Attorney-General's Reference (No 1 of 1982) [1983] 1 QB 751 at 758.
It is unnecessary to consider the argument of the respondent based on s 118 of the Constitution.
I would dismiss the appeals.
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