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".
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…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Lipohar v The Queen [1999] HCA 65
Case
[1999] HCA 65
Decision Date
CaseChat Overview and Summary
The parties in this matter were the appellants, Lipohar and Winfield, and the respondent, The Queen. The dispute concerned the jurisdiction of the Supreme Court of South Australia to try the appellants for the common law offence of conspiracy to defraud. The appellants contended that the substantive elements of the alleged conspiracy took place in other Australian states and abroad, and that the conspiracy was not formed in South Australia, thus arguing that the South Australian court lacked jurisdiction.
The High Court of Australia was required to determine whether a conspiracy to defraud at common law was triable in a State where the substantive elements of the offence occurred in other states and overseas, and not necessarily where the conspiracy was formed. A further issue was whether there was a sufficient connection between the subject matter of the offence and the State of trial to establish jurisdiction, and whether the common law of Australia was a unified body of law or comprised individual state common laws for the purposes of criminal jurisdiction.
The High Court reasoned that the common law of Australia is a unified body of law, not distinct state common laws. The Court held that a conspiracy to defraud is triable in a state if its implementation involves deceiving people in that state and inducing them to act to their detriment. In this case, the conspiracy's objective was to defraud a South Australian company, and the necessary decisions for the fraud's effectuation were to be taken in South Australia, involving the deception of individuals within that state. Therefore, the Court found a sufficient connection to South Australia to establish jurisdiction. The appeals were dismissed.
Orders
Orders of the court
Appeal dismissed.
Background
Background to the litigation
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.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
GAUDRON, GUMMOW AND HAYNE JJ
GLEESON CJ
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. 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.
Ratio Decidendi
Legal Principle Established
Established by:
GAUDRON, GUMMOW AND HAYNE JJ,
GLEESON CJ