Lipohar v The Queen - Winfield v The Queen

[1999] HCATrans 252

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide  No A14 of 1999

B e t w e e n -

EDWARD LIPOHAR

Appellant

and

THE QUEEN

Respondent

Office of the Registry
  Adelaide  No A15 of 1999

B e t w e e n -

MARK JEFFREY WINFIELD

Appellant

and

THE QUEEN

Respondent

GLEESON CJ
GAUDRON J
GUMMOW J
KIRBY J
HAYNE J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT ADELAIDE ON THURSDAY, 12 AUGUST 1999, AT 10.15 AM

(Continued from 11/12/99)

Copyright in the High Court of Australia

____________________

GLEESON CJ:   Yes, Mr Gray.

MR GRAY:   May it please, your Honour, just before we adjourned last night, I had referred your Honours to Doot in volume 1 tab 5 and I had referred your Honours to that in the context of the bringing of a conspiracy into the jurisdiction or its continuance as such.  There was another aspect of Doot that I would wish to refer your Honours to that really formed the basis for the way the Court of Criminal Appeal approached the matter in this way and I would like to take your Honours to two passages in respect of that.

As far as the passages concerning the continuance of the conspiracy in the jurisdiction are concerned, those passages are referred to in paragraph 15 of the written submissions and I do not propose to take your Honours to them.  Specifically, I would take your Honours to what was said by Lord Wilberforce in Doot at 817G.

KIRBY J:   This is the Morocco case, is it not?

MR GRAY:   Yes, your Honour, that is the Moroccan case.

KIRBY J:   Do you just think we should sit here as the High Court of Australia and apply a principle that was developed for the relationship between England and Morocco?

MR GRAY:   No, quite the reverse.  I am going to ask your Honours to, in fact, distinguish this particular case and its reasoning in so far as it relates to what this Court should do in the application of rules as to places concerning the commission of offences but if I can elaborate on that.  I do so because, as I said, it was said in a later case of Liangsiriprasert that Doot’s Case provided the foundation for the proposition, ultimately, that a conspiracy outside of the jurisdiction to commit a crime within the jurisdiction was an offence, in effect, known to the common law and therefore, did not require overt acts to be committed in the jurisdiction.

I want to show how that developed and also to show that it had a basis in Board of Trade v Owen and I propose to ask your Honours to, in effect, say that Board of Trade v Owen, the reasoning in that case has no application in Australia.

For that reason I want to develop a further argument related to the fact that, if that be so, then it is sufficient that there be one place of commission of offences that will satisfy the jurisdictional requirements.

KIRBY J:   I think you told me and then Justice Callinan yesterday that you did not submit that Doot was incorrect or was incorrectly decided and you would not contest that the principles stated are applicable in Australia.

MR GRAY:   I do not contest that Doot was incorrectly decided in so far as it relates to the concept of a conspiracy being able to be continued within a jurisdiction.  What I do say is that what was said to be the reasoning which supported that conclusion is not reasoning that is necessarily applicable when we are dealing with crimes with respect of the various States of Australia.

KIRBY J:   The Solicitor-General has analysed the various possibilities and permutations in the Court of Criminal Appeal because their Honours do not speak with a single voice and everybody agrees that this is an area of the law which is confused and uncertain.

MR GRAY:   Yes.

KIRBY J:   But he says that your basis principle is very similar to the one that he is advancing, the real and substantial test.  Do you agree with that?

MR GRAY:   No, I do not, your Honour.  I am saying that the test of jurisdiction is the test of place, place of commission of the offence, and that founds the jurisdiction and I say that all the other embroidery that has now gone on to that essential principle of jurisdiction has been driven, in effect, in cases of conspiracy, by the decision of the House of Lords in Board of Trade v Owen and I want to show that if those facts were decided by this Court in the context of jurisdictions between Australian States, a different result would have occurred.

KIRBY J:   I will not extend this dialogue but there are two factors that are very relevant.  One is the federal factor in relation to Australia and the other is the plain factor that in today’s world, and this, I think, was pointed out in Doot and certainly in other cases, you have international and regional transactions that have connections of varying kinds with a number of jurisdictions.  It is the very nature of international telecommunication transactions and it is especially so within a federation such as Australia or Canada and, therefore, the old notion of fixing the crime with one particular jurisdiction or sub‑jurisdiction is challenged by the realities of criminality today.  The common law, one would think, would keep pace with those realities.

MR GRAY:   I accept that as a general proposition, your Honour, but I say all of that can be answered in terms of any conflicts or assumptions of jurisdiction as far as the Australian States are concerned by the adoption of a simple test of locality of the offence and allowing whatever other aspects are needed to extend State jurisdictions to be left to the States themselves to determine.

KIRBY J:   There is another simple test on offer and that is the one that Justice La Forrest expressed in Canada of a real and substantial connection and that would seem to be one apt to a federal system but if there is a real and substantial connection with one of the units in the Federation that that is enough.

MR GRAY:   There are two things we would say to that.  One of them is that that is more uncertain than a simple test of locating the place where the offence occurred.

GAUDRON J:   Does that mean where the agreement was reached?

MR GRAY:   Where the agreement was reached.

GAUDRON J:   So you then say that the first part of Doot which you do not dispute as a general proposition, namely, that a conspiracy can be continued, does not have any impact on locating the place of the crime?

MR GRAY:   It may if, as well, it is a crime in that second jurisdiction.

GLEESON CJ:   You said the place where the offence occurred.  In the case of conspiracy, do you mean where the offence first occurred or do you include where the offence continued?

MR GRAY:   I include where the offence continued as well.  I say, in this particular case, if Board of Trade v Owen is not followed and that it is a crime in a State jurisdiction to conspire to commit unlawful acts or lawful acts by unlawful means in the place of another jurisdiction, then the crime initially is justiciably recognised by the jurisdiction in which the agreement was reached.  I move from that to say it may also be because conspiracy has been recognised as a continuum but the conspiracy, if it is brought into by way of agreement into another jurisdiction, it will be an offence cognisable by that jurisdiction and an offence in that jurisdiction and, therefore, triable there as well.

HAYNE J:   There are two possible elements of artificiality in that analysis.  First, it assumes that the location of agreement can be determined certainly.  That that may not be so or may require the application of artificial rules is demonstrated, surely, by the agreement reached by telephone.  No doubt a rule can be devised that will solve that problem but, on any view, that rule will have an element of artifice about it.

The second artificial element in this rule that is presently propounded is the notion that because conspiracy continues, that is that overt acts may occur later, the conspiracy may, in some sense, be taken from one jurisdiction to another.  How does that sit with the proposition that overt acts need not, as a matter of law, be identified in the indictment or presentment though commonly, if particulars are sought, the Crown should be required to provide them?  Overt acts, at least as I understand it, if Weaver’s Case is still good law in this Court, are not part of the elements of the offence of conspiracy so at once are you not driven to a set of rules that have a degree of artificiality?  But, if that is so, that may be simply inevitable but I do not think we can avoid the recognition of the fact.

MR GRAY:   My response to that, your Honour, is that it is less artificial than other rules that might be devised in relation to it.  Your Honour raises two problems.  One is the place of the conspiracy.  In our submission, that really is not a problem as to where the conspiracy is formed.  The conspiracy is formed with the conspirators and the place where the conspirators are is the place of the conspiracy.

HAYNE J:   How do you deal with the telephone agreement, “Let’s together rob the bank at Jerilderie.”?

MR GRAY:   You will have a conspirator in the jurisdiction receiving the telephone call from a co‑conspirator.  You will have an act in the jurisdiction, an overt act – the receipt of the telephone call and the content of the call – that evidences the existence of the conspiracy.

HAYNE J:   Is it that you have an overt act or is that you have an element of the offence?  That is, are we driven, ultimately, to the construction of and application of provisions like 5C of the Criminal Law Consolidation Act and that if a State, by its criminal law, asserts a degree of extraterritorial application for its criminal law, then so be it.  If the act is a valid act, it is a crime under the law of that State, that State if it can secure the attendance of the offender in its courts, can deal with it.  Questions of jurisdiction in that sense fall away.  They are determined by the reach of the criminal law of the State.

MR GRAY:   Which I say now goes with that development to support what I am putting to your Honours.  The fact an existence of provisions like section 5C in all States, although they are not identical, I say is a background against which one can more comfortably provide a rule that the location of the offence is the place where it is committed and the territorial jurisdiction will initially appertain to that.

HAYNE J:   But by hypothesis the fact that each State has a rule dealing with extraterritoriality means that the same conduct may constitute a crime in more than one State.  Is it not inevitable then that the conduct can be punished by the law of more than one State?

MR GRAY:   Yes, but I do not see how you avoid that.  Whatever test you apply you are going to have situations like that.

HAYNE J:   But the search then for singularity of place of commission of the offence appears then to be a mirage.

MR GRAY:   Not initially, no, with respect.

HAYNE J:   In the completed offence I can understand it.  In the inchoate offence, like conspiracy, it seems to me well nigh inevitable that the location of an inchoate offence will be very difficult.

MR GRAY:   Not as I say, your Honour, if, as I say, the inchoate offence is the agreement.  The agreement is made by persons.  Persons have a location and that location will found the agreement.

HAYNE J:   And in the phone case where somebody phones from Victoria to South Australia and agreement is reached, which State or States can deal with that conduct?

MR GRAY:   As a question of location of the offence, that would be dealt with in terms of a provision like section 5C.

HAYNE J:   Yes, I do not understand the answer though.  Is it Victoria and South Australia or is it Victoria or South Australia, in my example?

MR GRAY:   Your example is conspiracy?

HAYNE J:   Yes, and the agreement is reached by phone – Melbourne to Adelaide.

MR GRAY:   I have to add this.  Victoria has a different scheme of dealing with conspiracies that does not rely upon section 5C but reverses itself as far as its law is concerned the effect of Board of Trade v Owen so that in both cases, by the operation of, I think it is section 541(2) of the Crimes Act in Victoria and by operation of section 5C in South Australia, you would have that offence committed in both jurisdictions.

HAYNE J:   Yes.

MR GRAY:   But I say that that being the case that is some support for a basic rule merely related to location rather than intruding other considerations like real and substantial link which comes to the second part of my trying to deal with real and substantial link and that is to say that if that were the test applied here, we would be arguing that, indeed, there was not a real and substantial link.

KIRBY J:   I realise that and that is pointed about by the Solicitor-General in his written submissions but his proposition was that you were agreeing with the first step and you have indicated that you are not and I take it that that is because you say real and substantial connection is a departure from (a) the singularity that you have just been discussing with Justice Hayne of the assignment of the place of the commission of an offence – query whether that is applicable to an offence like conspiracy, but that has to be worked out and (b) that it is evaluative, that it involves a judgment and it does not fix, as the common law has generally done, a specific place which can be answered yes or no.  It depends ultimately on a jury determination, I suppose, as to whether the jury concludes that the offence is made out in all of its components including that there is a real and substantial connection with South Australia.

MR GRAY:   On the authority of Thompson that would be determined on the balance of probabilities if you adopt my test of place of commission of the offence as founding the jurisdiction.

GAUDRON J:   I am now detoured, Mr Gray.

MR GRAY:   Before your Honour takes me on a detour, could I hand up to your Honours ‑ ‑ ‑

GUMMOW J:   Have you left Doot?

GLEESON CJ:   You have not really got to it, have you?  I was interested to hear the submissions you were about to make as to what Lord Wilberforce said on pages 817 and 818 in Doot.

MR GRAY:   Can your Honour’s detour wait?

GLEESON CJ:   It is not impermissible for us to know what Lord Wilberforce said, is it?

MR GRAY:   No, your Honour.  Doot at page 817G said:

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.  Judged by this test, there is every reason for, and none that I can see against, the prosecution. 

In a similar vein was Lord Salmon at 832H and following.

GLEESON CJ:   Do you accept Lord Wilberforce’s proposition on page 818C that a:

“conspiracy” is a complex, formed indeed, but not separably completed, at the first meeting of the plotters.

MR GRAY:   It may be.  I have to accept that it may be.  It may well be complete at the first meeting.  “Let’s rob a bank.”

GUMMOW J:   Now, also at 818, between D and H, Lord Wilberforce refers to what Lord Pearson has said about the United States cases.  Do you see that?

MR GRAY:   Yes, your Honour.

GUMMOW J:   In support of his general analysis there he refers to what Lord Pearson said and at 829 Lord Pearson deals with Hyde v United States (1912) 225 US 347.

MR GRAY:   Yes, your Honour.

GUMMOW J:   Now, Hyde v United States is construing, as I understand it, the Sixth Amendment which requires the trial to be conducted in the State where the crime was committed and is reflected in our section 80 of our Constitution so if you had a conspiracy to defraud the Commonwealth and you ask where that is tried then the Constitution tells you it is the State where it is committed or, if not committed within any State, where the Parliament fixes. Now, that comes out of a federal system. That line of thinking which attracted Lord Wilberforce has one of its roots in the United States.

MR GRAY:   Yes.

GUMMOW J:   Now, I would be assisted at some stage to know what discussion there is - Hyde is a long while ago now – in the United States along the same path, I think, as Lord Wilberforce is following because it is useful to us because we have a root in it through section 80.

MR GRAY:   I am not aware ‑ ‑ ‑

GUMMOW J:   I am sure there is a lot of jurisprudence on this in the United States.

MR GRAY:   Hyde more or less settled it.

GUMMOW J:   They do lots of things over the telephone.

GLEESON CJ:   And they have lots of jurisdictions.

MR GRAY:   And lots of jurisdictions, yes.  Hyde, as I understand it, really settled the question concerning overt acts and there is some discussion in the article ‑ ‑ ‑

GUMMOW J:   Justice Holmes dissented in Hyde and like Lord Wilberforce - it is probably a good idea to bear in mind what he said about something too.

MR GRAY:   Yes.

GUMMOW J:   I just think it would be helpful for it to be looked at, that is all.  If one could have a note at some stage it would be helpful, I think.

MR GRAY:   Yes, I am very happy to do that, your Honour.

GUMMOW J:   Because all of this thinking fell into the arguments in Doot as the judgments show.

MR GRAY:   Yes, although the reliance in Doot was more directed towards Brisac as being a comparable authority, a conspiracy on the high seas to present false vouchered ‑ ‑ ‑

GUMMOW J:   I know.  They discussed Brisac in Hyde too.

MR GRAY:   Can I go back to the point that I wanted to make about this concept of threat from Lord Wilberforce and from Lord Salmon.  That appears to be the reaction to and a mirroring of the reasoning of Lord Tucker in Board of Trade v Owen because his reason for supporting a finding that a conspiracy entered into within a jurisdiction to commit crimes outside of the jurisdiction was a reasoning based upon the non‑effect of that conspiracy within the jurisdiction.

If I could just take your Honours quickly to the passage that I would refer your Honours to in Board of Trade v Owen.  That is again in volume 1 under the second tab and is at page 624 four lines from the bottom.  His Lordship there said:

It is the law on this subject which your Lordships are now asked to expound in relation to agreements to commit crimes or other unlawful acts out of the jurisdiction in a country where criminal conspiracy is, according to the evidence given at the trial, unknown to its own law.  The gist of the offence being the agreement, whether or not the object is attained, it may be asked why should it not be indictable if the object is situate abroad.  I think the answer to this is that it is necessary to recognize the offence to aid in the preservation of the Queen’s peace and the maintenance of law and order within the realm with which, generally speaking, the criminal law is alone concerned.

Now that formed the foundation for conspiracies entered into inside the jurisdiction to commit crimes outside the jurisdiction not being, in effect, a crime against the law of the jurisdiction.  So that Doot, in one sense, and the reasoning that was driving Doot was the reasoning that was the obverse situation in Board of Trade v Owen.  Now, really what I am saying is that that reasoning in the reasoning of Doot can be put to one side when one is looking at the jurisdictions of the various States of Australia and to say, in effect, that a conspiracy entered into in any State of Australia to commit any unlawful acts in any other State of Australia, by reason of that agreement, should found a crime in that State.

GAUDRON J:   Now that is an interesting proposition but may I ask you why we are not determining this matter on the basis of section 5C of the Criminal Law Consolidation Act?

MR GRAY:   Because I say that the elements of the offence relate to the agreement and there is no relevant element of the offence that takes place in South Australia.

HAYNE J:   But you seem not to depend upon that as a complete answer to what is put against you and I must say that troubles me to know why you are not relying on that as a complete answer.

MR GRAY:   As a complete answer in relation to – perhaps I am at cross‑purposes with your Honour.  I say 5C does not have any effect in relation to this particular conspiracy because the elements of the conspiracy were those elements relating to the formation of the agreement in Queensland.

GUMMOW J:   I know, but why do you not then say 5C is a manifestation of legislative intent as to how long their arm is going to be and their arm, under 5C, is not long enough to catch me so that is that.

MR GRAY:   I am happy to adopt that.

GUMMOW J:   I am not suggesting you try it.

HAYNE J:   That makes me wonder what I am missing.

MR GRAY:   Yes.

GAUDRON J:   Is that not where we have to start in this case plus, of course, a presumption?

MR GRAY:   A presumption of locality?

GAUDRON J:   A presumption of the territorial nexus will be presumed and the presumption is conclusive unless rebutted under subsection (4).  I would have thought that is where we started.  There might be questions about the validity of that presumption but it seems to me that that is where this case begins and ends at this stage.

MR GRAY:   That requires the determination of the elements of the offence.

HAYNE J:   And that we know, an agreement, and overt acts ‑ ‑ ‑

GAUDRON J:   Are an agreement of a certain kind.

HAYNE J:   Yes.

GAUDRON J:   And then subsection (3) says:

The territorial nexus…..will be presumed and the presumption is conclusive unless rebutted – - -

GLEESON CJ:   An agreement formed, but not completed, at the first meeting of the plotters.  That is what a conspiracy is.

MR GRAY:   Formed or completed.

GLEESON CJ:   No, Lord Wilberforce - that is why I asked you whether you accepted what Lord Wilberforce said at page 818:

The “conspiracy” is a complex, formed indeed, but not separably completed, at the first meeting of the plotters.

That is what Doot is all about, the circumstance that the crime of conspiracy is a continuing offence.

MR GRAY:    I only interject that as – - -

GLEESON CJ:   That is fundamental to the decision in Doot.  Now you make seek to persuade us that the decision in Doot is wrong or that that particular proposition is wrong.  But if that is right ‑ ‑ ‑

MR GRAY:    I do say that it may be.

GLEESON CJ:   If that is right, how do you relate it to section 5C?  Does, for example, there come about a territorial nexus between South Australia and one element of the offence of conspiracy if we find the conspiracy being continued in South Australia?

MR GRAY:   Yes, I have to accept that, if you find the conspiracy continued in South Australia.

GLEESON CJ:   Well then a question arises as to the relationship between the concept of a conspiracy to cheat and to defraud and the event that occurred in South Australia, that is the furtherance of the conspiracy by sending to South Australia to the solicitors for the victim, a document with the intention that the solicitors would be mislead by the document and would advise the victims on the basis of that.  That being a step in the furtherance of the conspiracy.  Does that involve, or does it not involve, a territorial nexus between South Australia and one element of the offence of conspiracy to cheat and to defraud?

MR GRAY:    No, because I say that the element of the offence is the element of the making of the agreement, or the agreement itself, and that ‑ ‑ ‑

GAUDRON J:   But it has to be a particular type of agreement.  Not every agreement is a conspiracy.  It has to be a particular type of agreement, and an agreement has terms which you might deduce from the overt acts.  Now, if it is a term of the agreement that things will be done in South Australia, why is that not ‑ ‑ ‑

MR GRAY:   I invest the location of the agreement as such in the persons and minds of the conspirators.  Those persons and minds and the elements of the offence constituted by that, are not in South Australia, and do not take place in South Australia.  A manifestation of something concerning those persons and minds that takes part in South Australia is not an element which is attracted by section 5C.

GLEESON CJ:   If two people in Sydney enter into in an agreement to rob a bank in Melbourne, is there a territorial nexus between Victoria and an element of the offence?

MR GRAY:  No, there is not, your Honour.

GLEESON CJ:   Why not?

MR GRAY:   Because, again, the agreement takes place in New South Wales.

GLEESON CJ:   But what does “territorial nexus” mean, or what does it include?

CALLINAN J:   You would say ‑ ‑ ‑

MR GRAY:   It is better to say that “element” is defined as including an event occurring, and “event” is defined as:

any act, omission, occurrence, circumstance or state of affairs (not including intention, knowledge or any other state of mind).

CALLINAN J:   But, Mr Gray, if you look at 5C(2)(a) - it is set out at page 243 - it says:

The element is or includes an event occurring in the State.

Does not “event” there mean an event which is an element, or part of the element?  And is that not something different from an overt act?

MR GRAY:   Yes.  If I have not made myself clear, I do not regard overt acts as being an event.  They are merely matters which evidence the element.

CALLINAN J:   An act in furtherance of the conspiracy, and if you say an act in furtherance of the agreement, is part performance of the agreement, but it is not part of the agreement itself, it is something different from the agreement, is it not?  You see, if you look at page 244, between lines 40 and 50, you will see that Justice Bleby decided precisely really the opposite of what I have put to you.  His Honour said that the receipt of the facts:

Was an “event” occurring in South Australia.

His Honour went on:

A territorial nexus would therefore exist between the State and element of the offence –

But the event, the receipt of the facts in South Australia, surely is not an element of the offence.

MR GRAY:   No, which is a point that I wanted to make a bit later on, basically, with respect to the way Justice Bleby dealt with it.  But he is dealing with this in terms of an “as if” proposition.  He is saying, if the offence had been charged as conspiracy to commit the crime of false pretences, then you would get this situation by applying it to the element of false pretences.

CALLINAN J:   I do not know about that, Mr Gray, but if you can focus on 5C(2)(a), and I would simply like to hear some submissions as to whether “event” there can include an overt act, something other than the agreement itself.

MR GRAY:    I say it cannot.  Mr Justice Hunt in a case of Isaacs, which dealt with the situation of a conspiracy entered into in New South Wales to commit an armed robbery in the ACT, said that it did not.  It is all very well for me to say that, but he determined that the agreement being constituted of an agreement between persons that the agreement being for something was not an element of the offence within the scope of section 5C.

CALLINAN J:   Mr Gray, it seems to me that almost always, probably always, acts in part performance would constitute overt acts, acts from which one could draw the inference of the agreement.  But, surely the distinction is between the agreement on the one hand, and just as it is in civil law, the contract and part performance acts are part performance.  If that is so, it does not seem to me at first sight that the receipt of the facts involves an element, or an event which is one of the elements of the offence of conspiracy in South Australia.

MR GRAY:   With respect, that is the view that we have taken with respect to the application of section 5C, and said it is not applicable.

GLEESON CJ:   The view you are putting seems to be precisely the view that prevailed in the Court of Appeal in Doot, that is expressed in the passage from the judgment of the Court of Appeal quoted at page 821 of the decision of the House of Lords, and that was overruled in the House of Lords.

MR GRAY:    Which was overruled  ‑ ‑ ‑

GLEESON CJ:   In the House of Lords in Doot.  You seem to be putting the argument that lost in Doot, which you will find succinctly expressed on page 821 of the report in Doot that you were taking us to.  Do you see a quotation from the reasons in the Court of Appeal?

MR GRAY:   Yes, your Honour, I do.

GLEESON CJ:   And that was the summary of the reason why the Court of Appeal in the decision that was overruled by the House of Lords held that there was no jurisdiction.  Now that is precisely the argument you are putting, is it not?

MR GRAY:   I do not see that my argument is putting that, your Honour.  My argument is approaching it differently by saying that ‑ ‑ ‑

GLEESON CJ:   Have a look at line F on page 821, three sentences:

The essence of the offence is the agreement to do the unlawful act.  The offence is completed when the agreement is made.  It matters not that it is never carried out.  Acts in performance of it go to prove the offence but are not constituent or essential parts of it.

I thought that was your argument.

MR GRAY:    Yes, it is, your Honour.  But I do not see that that, of itself, was overruled in Doot itself.

GLEESON CJ:   If you want a summary statement of disagreement with that argument, have a look at what Viscount Dilhorne said on page 825, letter B to C.

MR GRAY:   With respect, I still see that going to the agreement entered into by the persons.

GLEESON CJ:   The only way you can distinguish Doot, unless you seek to persuade us that it is wrong or inapplicable in a federal system, and it may be an effective way to distinguish it, is to point out that, in the present case, there is no evidence that the conspirators entered into the State of South Australia.

MR GRAY:   Yes, your Honour.

GLEESON CJ:   But that has to be the point of distinction if there is one, does it not?  Because there was unquestionably performed within South Australia in the present case an act in furtherance of the conspiracy.

MR GRAY:   Yes, your Honour.  There was the point that I was fairly ineptly making yesterday with respect to the question of the overt act as such, and pointing to Doot as requiring the conspirators to be in the jurisdiction to continue the conspiracy.

GLEESON CJ:   Well, is that not the point we need to focus on, unless we are prepared to depart from Doot, whether or not, consistently with the principles applied in Doot, it makes all the difference in the present case that whilst there was an act in furtherance of the conspiracy in the State of South Australia there was no conspirator in the State of South Australia at any material time.

MR GRAY:    Yes, your Honour.

GLEESON CJ:   And then relate that to section 5C.

CALLINAN J:   But Mr Gray, with all due respect, if you look at 825, immediately before line C, Viscount Dilhorne says:

Proof of acts done by the accused in this country may suffice to prove that there was at the time of those acts a conspiracy in existence in this country to which they are parties –

and so on.  His Lordship does not seem to be saying that proof of acts done in the country will always prove, or establish, that there was at the time of the acts a conspiracy in existence in that country.  His Lordship is simply saying “may suffice”.  I must say, with all due respect, that I do not read that as meaning that, indeed, perhaps even mere presence, there may not even be enough.  I do not know.  But I am just saying that the word is “may” not “will” suffice.

MR GRAY:   Which was a point reserved by Lord Salmon in his discussion of this as to whether or not mere presence was enough.

CALLINAN J:   The facts in Doot were quite different, I think.  The parties were in the jurisdiction, were they not, in Doot?

MR GRAY:   Yes, they were.

CALLINAN J:   They were in the jurisdiction.  There were two vans in the jurisdiction, full of the drug.  It seems to me to be a relatively clear case, quite a different case from your case.

MR GRAY:   What I say about my case is  ‑ ‑ ‑

CALLINAN J:   Just before you do that, can you infer from the receipt of the facts in South Australia, to use the words of Viscount Dilhorne, can you say that that is sufficient to prove that there was at the time of the receipt of the facts a conspiracy in existence in South Australia?

MR GRAY:   I say not, your Honour, and you cannot infer that from it.  I do attach a great deal of weight to the fact that the conspirators did not come into the jurisdiction.  The conspiracy was not brought into the jurisdiction.  There was nothing for section 5C to attach to as an element of the offence.

GUMMOW J:   Well if you are right about that, section 5C has no operation.

MR GRAY:    Yes, your Honour.  That is the proposition we have always maintained, with respect to - - -

GUMMOW J:   And if that is so, what then follows as to any other sufficiency?  What then follows as to any common law nexus or requirement?

GAUDRON J:   Is there room for common law, in the face of section 5C?

GUMMOW J:   Yes, exactly.

MR GRAY:    We of course say there is not.  We say that the common law, indeed, requires the conspiracy to continue in the jurisdiction on the authority of Doot.  It needs to come into the jurisdiction via the conspirators.  In this case, the conspirators never came into the jurisdiction.  The next step we take is to say that, appropriately, as far as the States of Australia are concerned, one looks to the place of the conspiracy and that is, if Board of Trade known is not followed, Queensland.  If one looks at the Queensland law, in any event, a conspiracy has occurred in the jurisdiction which is justiciable in that jurisdiction, pursuant to section 541 of the Crimes Act.  If one looks to the place of the commission of the object of the conspiracy, we say one looks at considerations concerning Victoria.

GLEESON CJ:   Mr Gray, just returning to section 5C.  There never has been a finding by a jury under 5C(4), has there, in the present case?

MR GRAY:    No, there has not, your Honour.  This was trial by judge alone.

GLEESON CJ:   All right.  Well now 5C(3) tell us that the only way you can rebut the otherwise conclusive presumption of the existence of a territorial nexus is under subsection (4).  Does it follow that your argument is that, on the facts of the case, no properly instructed jury could be satisfied, or could conclude other than that the necessary territorial nexus does not exist?  Is that the ultimate question that we have to ask ourselves?

MR GRAY:    Yes, your Honour.  I suppose the matter is complicated in this sense, because the trial judge heard this matter, and determined the matter on the question of jurisdiction by also determining that it was unnecessary for him to look at section 5C, so, indeed, it was never looked at in those terms.  But on your Honour’s analysis, if it can be said to be a case which invokes 5C, then, yes.

GAUDRON J:   Now did you dispute a necessary territorial nexus at the trial?

MR GRAY:    I would say, effectively, yes, in the sense that the jurisdiction question was determined first and it always was that the court had no jurisdiction.  But, clearly, because of the view that both the learned trial judge took, there was no specific contest about it.

GLEESON CJ:   Is what you call the jurisdiction question identical with the question whether there was a contravention of what is referred to in the indictment as the common law and section 270(2) of the Criminal Law Consolidation Act?

MR GRAY:   Yes, I think that is so, your Honour.

GLEESON CJ:   So the jurisdiction question, in your submission, is identical with the question of the application of section 5C, or different from it?

MR GRAY:    Because it all took place without this sort of analysis, I do not know that I can answer that.

HAYNE J:   The trial judge, at page 17 of the appeal book, line 25, described the applications as including one to quash:

The information on the ground that the information is bad because it does not disclose not disclose an offence triable in the Courts of South Australia.

Is that an accurate description, I assume it would be, of the application that was made and, if so, does it encompass the 5C questions that have just been identified?

MR GRAY:   Other than the fact that it occurred prior to the trial and not at the conclusion of the trial.

GLEESON CJ:   And I notice that there was also an argument recorded by the judge that if 5C operated against you, it is beyond the law making power of the South Australian Parliament.

MR GRAY:   Yes.

KIRBY J:   Did you argue that?  Was that part of your submission at the trial?

MR GRAY:   I did not argue the jurisdiction point before the trial judge.  I argued it before the Court of Appeal.

KIRBY J:   Presumably that would be on the basis of going beyond the power by reason of the Australia Acts in relation to extraterritoriality by the presumption.  It would seem that the other provisions, at least arguably, are within power, if you have a sufficient connection with the State.

MR GRAY:   Yes.

KIRBY J:   The question would be, could you stretch it by the presumption?

MR GRAY:   Yes, I do not know that the argument was exactly put like that, but I quite like it.

KIRBY J:   It had occurred to me earlier as to whether it was within power.

CALLINAN J:   There is no ground of appeal to this Court, is there, about whether 5C is within power or not?

MR GRAY:   No, your Honour.

KIRBY J:   But is that because this issue was not in the way the trial judge determined it, resolved against you.

MR GRAY:   That is right, and the way it was dealt with did not give cause, really, for that argument to be further advanced and, indeed, again in the Court of Criminal Appeal, there, apart from what we say was a wrong application of 5C by Justice Bleby, the other two judges were of the view that section 5C was really of no assistance.

KIRBY J:   And if it were thought that it was of assistance, indeed, determinative, would your client wish to be heard, in resistance to that, fully to argue that 5C does not apply and if it does, it is beyond the power of the South Australian Parliament?

MR GRAY:   Yes, your Honour.  As I say, this was the way it developed, and the issue with respect to section 5C put those considerations to one side, really.

GUMMOW J:   I thought 5C was the product of an initiative between the standing committee?

MR GRAY:   It was, your Honour.  Section 5C, I think, had its genesis in some concluding remarks of Justice Deane in Thompson, at page 38, which I direct your Honours’ attention to.  There he identified certain difficulties that there were with respect to having the place of a crime the determinant factor with respect to jurisdiction, and then recommended, in effect, that legislatures turn their attention to this.  The response to that was section 5C.  But, indeed, in its context, section 5C seems, when one reads it, to be directed towards the sort of simplistic situation, if I can call it that, that existed in Thompson with respect to defined elements of an offence where there is an actus reus, as opposed to an offence like conspiracy which has an amorphous actus reus and is really, in lots of respects, a crime in the mind.

GLEESON CJ:   I think a question I put to you earlier was made on a false assumption.  I had assumed that this was a jury trial, but it was a trial without a jury, so it would have been for the trial judge to have made the decision under section 5C(4), if the occasion for making such a decision had arisen.

MR GRAY:   Yes, your Honour.

KIRBY J:   Have I missed something in the Solicitor-General’s submissions in the various permutations that he has put forward of ways to sustain the conviction?  I do not recall his arguing on 5C.  Am I right or wrong?

MR GRAY:   He, I would say, makes the same mistake as his Honour Justice Bleby did with respect to the application of 5C by transposing the offence of conspiracy to defraud into the offence of conspiracy to commit a crime, the crime of false pretences, and then analyses 5C in the context of the crime of false pretences.  But he does not put a submission in terms that 5C would have operated, up until now of course, to provide the jurisdiction by reason of the presumption and that there was no finding in relation to that.  The only thing I can say with respect to the trial by judge alone, your Honour, is that because his Honour took the view that section 5C was unnecessary for him to look at, there was, indeed, no decision one way or the other.

GLEESON CJ:   How did this come to be a trial without a jury?  Is there a right in somebody to elect?

MR GRAY:    There is a right of election and that election was made.

GLEESON CJ:   Thank you.

MR GRAY:    Can I perhaps do two things.  I hand to your Honours the various sections in relation to the States of Australia concerning the variances between conspiracies and conspiracies to defraud.  At this stage, I would not like to warrant that it is as comprehensive as we would like but we have tried to cover each of the States with respect to that, and the bundle that I hand to your Honours shows that there are differences in the States with respect to penalties ranging from, in relation to conspiracy to defraud, a penalty in Victoria of 15 years, as opposed to 7 years in South Australia and Queensland.

There are difficulties, of course, in relation to conspiracy to defraud in that in New South Wales there is just the general crime of conspiracy and conspiracies to defraud are charged under that.  All that I am saying is that there are some differences in penalty and there are some differences in the manner in which conspiracy to defraud is treated and charged.  The other material that I would also like to hand to your Honours is, as far as again, I do not wish to warrant at this stage the comprehensiveness of them – we will look at this, but it is the various territorial provisions of the various States either in similar terms to section 5C or an idiosyncratic substitution for it.

GLEESON CJ:   What is the difference between what you have just given us and what you gave us a moment ago?

MR GRAY:    One should relate to conspiracies to defraud in respect of each of the States and that bundle should be headed at the top Queensland “Conspiracy to defraud”, section 430, and thereunder are the Victorian ‑ ‑ ‑

GLEESON CJ:   I have been given two identical bundles, I think.  The two bundles I have are identical.  The one that I want is the one that Ms Musolino has in her hand at the moment.

KIRBY J:   On your presentation of your case the collection relating to the equivalence to 5C is irrelevant because that simply was not argued and determined.  You were not heard on that.

MR GRAY:    That is so, your Honour.  I am putting it to your Honours in the context of a response that I made to Justice Hayne with respect to the fact that our preferred approach and the approach we urge upon your Honours is to have an approach whereby the location of the offence is the determination for the purposes of territorial jurisdiction and to let the various provisions in each of the States do their work if there is to be a jurisdiction assumed by any other State.

KIRBY J:   But your argument, as I take it, would be that 5C can do all its work it wants but it would not be enough in your case to get you into the jurisdiction of the South Australian court.

MR GRAY:    Ultimately, in this instance ‑ ‑ ‑

KIRBY J:   The particular facts of this case.

MR GRAY:    On these particular facts, it would not operate.

KIRBY J:   If that is so, you are thrown back on to the common law and then you go through the process of evaluating which rule of common law in this rather messy area of the law is the one most appropriate to apply that does apply in the Australian Federation.  You urge that that should be the locus of the completed offence, but the other possibility is real and substantial connection with one of the jurisdictions of Australia which momentarily attracts me, as it did Justice La Forrest in Canada.

MR GRAY:   Yes.

KIRBY J:   It has a resonance with a number of the English cases where real and substantial connection - I think one of their Lordships referred to the realities of crime today, of the fact that it can originate in one place, can have consequences in another place and further consequences in a third and maybe ten, and can be communicated by telecommunications to five others, and that is the reality of crime today, but within Australia a rule of real and substantial connection seems one apt to our Federation which need not necessarily have the same rule as for international crime beyond our borders.

MR GRAY:    If your Honours were to adopt that as a rule, then we would say that there was not such a real and substantial connection ‑ ‑ ‑

KIRBY J:   I realise you say that but the victim was here, which is a pretty real and pretty substantial connection.

MR GRAY:    We say the victim was, at the relevant time, in Victoria ‑ ‑ ‑

KIRBY J:   The ultimate victim was SGIC.

MR GRAY:    The question of ultimate victim would seem, in our submission, to be far less than a real and substantial connection where one is talking about it in terms of the location of the crime itself.  I mean, this is a crime ‑ ‑ ‑

KIRBY J:   I mean, a crime is to defend society and those who are made victims by criminal conduct.  If the victim is here, that would seem to have a sufficient real connection with South Australia to protect such potential victims.

MR GRAY:    But we say, with respect, the victim relevantly was in Victoria because it was in Victoria that the – that was the place where the conspiracy to defraud was directed.  The fact that there is – well, there are two things.  One is - the question of whether or not the State was the victim is not a matter that was a matter of evidence nor was it a matter that was charged.

KIRBY J:   But there was evidence relating to the position of SGIC and, in fact, it had to go to their board, and that it did go to their board, and that had it gone through they would have suffered, they would have lost.  They would have been the victim.

MR GRAY:    Well, no, actually that last bit was not shown, that they would have lost.  We are talking about a company that is a separate entity carrying on business ‑ ‑ ‑

GAUDRON J:   Was it incorporated in South Australia?

MR GRAY:    It is incorporated in South Australia.

GAUDRON J:   Has a registered office in South Australia, has its directors in South Australia?

MR GRAY:    Carrying on its – yes, your Honour.

GAUDRON J:   It has its directors?

MR GRAY:    Yes.

GAUDRON J:   Has offices and the directors were the decision makers, relevantly?  Yes.

MR GRAY:    The economic interest which we say was to be prejudiced was the economic interest concerning the lease of a building in Victoria.

GAUDRON J:   The economic interest that was to be prejudiced was its assets, its asset holdings.

MR GRAY:    Of that company.

GAUDRON J:   Of a company incorporated in South Australia with its registered office in South Australia and with its directors present in South Australia and, presumably, making such distribution of dividends as were to be made in South Australia?

MR GRAY:    I do not know that there was ‑ ‑ ‑

GAUDRON J:   Well, it does not matter about that.  But let me ask you another question.  This is for the purposes of section 5C.  Do you say that the indictment would be complete and all elements of the offence disclosed if the indictment simply read, “conspired together to defraud Collins Street Properties Pty Ltd of an incentive payment”?

MR GRAY:    That the indictment would be complete?

GAUDRON J:   Yes, all elements of the offence would be disclosed for the purposes of the law of conspiracy to cheat and defraud.

MR GRAY:    Yes, your Honour.

GAUDRON J:   That really does invite something that perhaps has never satisfactorily been undertaken in legal jurisprudence here or elsewhere, namely, a precise definition of the crime of conspiracy to cheat and defraud.  The reason I ask this is, ultimately, so I can tell you where I am going, that the element of the offence as I read 5C need only include a circumstance or state of affairs in South Australia and if the offence of conspiracy to cheat and defraud must necessarily involve in this instance the making of a representation which had to go home to South Australia, then it may well be that 5C is satisfied.  I regret to say I am minded to think, unless one assays a precise definition of conspiracy to cheat and defraud, one cannot answer this case by reference to 5C.

MR GRAY:    That one cannot answer?

GAUDRON J:   Yes.

MR GRAY:   Yes.  One may also add to that that 5C is difficult in its application to any conspiracy generally because of the elements of the offence.

GAUDRON J:   I would have thought not.  A conspiracy to commit an illegal act in South Australia.  A conspiracy will always have to specify the illegal act.  It is the same as - when you get down to the specifics you have to look at the element of the crime in the particular context of the offence.  The agreement is agreement in such a case which I would have thought has an element which includes a circumstance or state of affairs in South Australia, namely, the illegal act.  Similarly, if you take conspiracy by unlawful means to do a lawful act, then you have to look at where it is unlawful and the element of the offence includes things, in both instances I would have thought, that could properly be described as including a circumstances in South Australia.  The difficulty is, of course, that conspiracy to cheat and defraud is a different offence and has different elements from those of other types of conspiracy.

MR GRAY:    Yes.

GAUDRON J:   What are the elements of the conspiracy to cheat and defraud?  I suspect that takes you to Peters’ Case.

MR GRAY:    In Peters’ Case it is the agreement to use dishonest means with the intention of obtaining, making use of or prejudicing another’s economic right or interest.  So, it is a crime ‑ ‑ ‑

GAUDRON J:   Now, so we are – “dishonest means”.

MR GRAY:    Yes.

GAUDRON J:   The dishonest means are the facts, are they not?

HAYNE J:   Which may or may not themselves amount to crime.  They may be dishonest, though they may not themselves amount to crime.

MR GRAY:    One could argue that the facts is not such a circumstance, that the dishonest means are representations with respect to complying with the lease and proffering a security as a good and valid security.  I am sorry, representations with respect to that, and the representations are the circumstance, not matters that are not representations but merely evidence of it, and that is not a circumstance in the territorial nexus of South Australia.

GAUDRON J:   Did those representations not have to come home to South Australia where the board of directors was, one way or another?

HAYNE J:   Or at least it was intended that they should.

MR GRAY:   I have difficulty with that in the context of the charge itself, that that elaborates on the charge related to the intention of the conspirators with respect to those representations.  Those representations were intended by the conspirators and directed towards the company carrying on business in Victoria.  The question of then some ultimate effect with respect to that, would seem to therefore impute a constructive intention on the part of the conspirators as to their conspiracy.  So they are being, in effect, convicted of an offence with which they are not charged and which is not proved against them.

GAUDRON J:   I do not follow that.

MR GRAY:    Will I try again?  What I am trying to say is that the conspiracy here charged, as opposed to the mechanism of carrying it out, is a conspiracy which is an agreement to do things.

GAUDRON J:   An agreement by dishonest means?

MR GRAY:    By dishonest means but it is ‑ ‑ ‑

GAUDRON J:   Yes, all right.  That is an element of the offence, is it not?

MR GRAY:    Yes, I would have to say that.

GAUDRON J:   Does that element include an occurrence, circumstance or state of affairs occurring in South Australia?

HAYNE J:   Does not that depend when you intercept the conspiracy?  That is, if you intercept the conspiracy and charge it before the deceitful means is effected, nothing may have happened in this State.  The parties may have intended that they would utter this false promissory note within this State and that it should come home to the board of a statutory corporation but depends when they are charged.

MR GRAY:    Which gets us back to the problem of conspiracy being a crime of intent and that the element – whilst it is the use of dishonest means that one may ‑ ‑ ‑

HAYNE J:   No, it is not the use, it is the agreement to use and that is the difference.  It is not the use, in fact.

MR GRAY:    The point that I was going to make is that it is the intention to use dishonest means and that intention is the element of the offence, not the use of the dishonest means.

HAYNE J:   Some, at least, of these problems are highlighted by Williams in Criminal Law, the general part at paragraph  222 pages 688 and following.  The author’s imagination and the common law’s imagination over history is very broad.

MR GRAY:    Your Honour, I think that is the only answer that I can make to your Honour with respect to that and use the fact that it is the intention that is the element.

GAUDRON J:   Not the term of the agreement.

MR GRAY:    Not the term.  Conspiracy has never been looked at in ways of terms of an agreement in that sense.  Agreement has been used really in the meeting of the minds as to what is intended.

GAUDRON J:   But it does require some specificity, does it not, in realistic terms?

MR GRAY:    Yes, it does, but that does not mean that 5C will operate to pick it up no matter how specific it might be.  Just to conclude that aspect is to again add that we say that the interest sought to be prejudiced is the interest that the company held in leasing the premises at 333 Collins Street but the Crown say that the interest sought to be prejudiced was the payment of moneys ultimately by SGIC, and to that we say that was not what was charged.  Had it been charged – I am sorry, can I couple that with the submission that we would make with respect to the ultimate victim.  The ultimate victim has to be, in this case, uncertain as to whether or not it was, indeed, SGIC or whether it could be, or could have been, the financier that provided the moneys against the security of the building.

GLEESON CJ:   Presumably, on the Crown’s victim theory, a conspiracy to cheat and defraud Southcorp entered into anywhere in Australia, or perhaps anywhere in the world, would be triable in South Australia.

MR GRAY:    Yes.  That theory has to encompass whatever repercussive effects flow back to affect an ultimate victim.

GLEESON CJ:   Southcorp, of course, whilst it has a central management and control in this State, has shareholders throughout Australia.

MR GRAY:    Yes.

HAYNE J:   Until recently it would have extended to Newscorp too.

MR GRAY:    Again, the ultimate victim is the victim not the subject of the charge in that analysis.  But that even goes a step further than the commentary that I have referred your Honours to in respect of Tarling’s Case where it was suggested that Tarling’s Case might suggest that it was where the victim was that the conspiracy to defraud might take place.  But the more likely explanation of that case is that it is the place of the victim’s economic interest.

CALLINAN J:   Mr Gray, is it because of section 5C(9) that the common law operates, or can operate, in addition to 5C?  Otherwise, perhaps 5C might be a complete statement on the matter but subsection (9) seems to ‑ ‑ ‑

MR GRAY:    Yes, subsection (9) allows whatever common law rules there are to operate in conjunction with section 5C.  That is, I think, clear from subsection (9).

KIRBY J:   I see that you referred us  - I think it might be the Solicitor - to a judgment of the Court of Appeal in England and Lord Justice Buxton in relation to conspiracy.  Does he throw any light on the questions that Justice Gaudron was addressing to you, that is, the elements of the offence?

MR GRAY:    Is that Manning that your Honour is referring ‑ ‑ ‑

KIRBY J:   It is a very recent decision in England.

MR GRAY:    Yes, the 1999 – no, it does not.  It reaffirmed the terminatory theory of jurisdiction that was debated in relation to crimes of deception and in relation to conspiracy was not wholeheartedly of the view that Liangsiriprasert – no overt act whether you are intending a crime in the jurisdiction – was necessarily the be‑all and the end‑all but did say that the crime of conspiracy rules with respect to jurisdiction had developed differently from those rules related to other offences concerning result crimes and termination of conduct in the jurisdiction.

KIRBY J:   The Solicitor-General’s submission refers in very general terms to, as it were, developing the common law in this area by reference to the Constitution which is the background against which the common law is developed and inconsistent with which the common law cannot be according to Lange.  Now, you have not really addressed any of this and I am just a little concerned as to what I am to do if in my thinking about the matter section 118 has any significance, given that it is not on notice by either side under section 78B.  Do you have anything to say in relation to that matter?  Section 118 is, in a sense, the explicit statement that may have some relevance to the generalities of the constitutional framework against which the common law of Australia is to develop or be expressed, but it is there and it just may have some significance in a case like this.

MR GRAY:    We would see that as fairly tangential to the determination of this case given that the common law rules as to jurisdiction have been accepted and adopted with respect to the States of Australia thus far.  The full faith and credit provision would seem to indicate that each State should be giving full faith and credit to the criminal laws of each other State and that would not preclude the operation, we would say, in terms of Thompson’s Case, of using locality as a determining factor.  Indeed, it is supportive of it because you then do not get into the situation of having to judge which laws are better if that becomes an issue.

GLEESON CJ:   Mr Gray, have you now covered the substance of the submissions you want to make?

MR GRAY:    Yes, I have.

GLEESON CJ:   May I ask you a question just to clarify one point as to the issues.  On page 17 of the appeal book between lines 38 and 43, Justice Lander records a submission that was made to him in the alternative that in so far as section 5C of the Criminal Law Consolidation Act purports to operate in a certain way, it is ultra vires and invalid.  I do not think any such submission is made in your written submissions.  Is that a matter with which we have to concern ourselves when we come to decide this case?

MR GRAY:    No, your Honour, I have not raised it in the ‑ ‑ ‑

GLEESON CJ:   All right, I just wanted to clear that up, thank you.

KIRBY J:   I am now in a state of confusion.  As I understood it, the primary judge said that 5C was raised but he determined that he would not deal with the matter on that basis.  At trial you submitted that if 5C applied it was ultra vires, but you did not have to prosecute that question in the Court of Criminal Appeal or in your written submissions to this Court because the case went off galloping away from 5C.  Now, I just want to know what is to be done if it is suggested.  There is a very simple solution to this case.  Your clients are attracted to the jurisdiction by 5C and Justice Lander was wrong and the Court of Criminal Appeal was wrong, that is it.  Now, do you say that that works any procedural unfairness to you, or do you not?  A matter was raised ‑ ‑ ‑

MR GRAY:    It only works an unfairness if the line is pursued of the presumption in 5C applying and in such a way as to mean that although 5C does not apply, the presumption stands there has been no finding and, accordingly, the court had jurisdiction to determine it on that basis.

GLEESON CJ:   Leaving aside the possibility of a 5C argument based on the effect of subsections (3) and (4), putting that to one side, are there any

submissions you want to make now or at any future time about the validity of section 5C?

MR GRAY:    No, your Honour.

GLEESON CJ:   Thank you.  Yes, thank you, Mr Gray.  Mr Solicitor.

MR SELWAY:   If it please the Court.  One quick preliminary matter:  I think your Honour Justice Gummow raised yesterday the question about the effect of a person having been brought into the jurisdiction under the Service and Execution of Process Act.  That issue was dealt with in this Court in Flaherty v Girgis (1986) 162 CLR 574 at 597 to 598, 603 and 609. The answer is that if it would otherwise be State jurisdiction, it remains State jurisdiction and is not affected because the person is brought into jurisdiction under the Service and Execution of Process Act.

KIRBY J:   Whilst you are giving us citations, are either of these decisions that of Justice Lander or of the Court of Criminal Appeal reported yet, or not?

MR SELWAY:   The first decision, if you like the jurisdiction of Justice Lander, is reported.

KIRBY J:   If you could just give us that at some stage?

MR SELWAY:   Yes, your Honour, we have it here somewhere.  We will be able to give it to you before we finish.  What I propose to do is to deal relatively quickly with, if you like, the background of our submissions and then move into the four alternative propositions that we put.  I do not propose to deal with them in the same order they are in our written submissions and, in particular, I propose to deal first with the question of the facsimile and to deal last with the question of the federalism issue.  Before getting to that, I should perhaps at least record on the transcript that I have now received formal responses to section 78B notice from New South Wales, ACT and Tasmania, in addition to the ones that I referred to the Court yesterday.

KIRBY J:   Does that close the circle?

MR SELWAY:   I still have not received anything from the Northern Territory or Queensland.  I can tell your Honours that I have the intimation from Queensland they will not be intervening but I have heard nothing whatever from the Northern Territory. 

n respect of factual background, do not need to take your Honours to it but if I could just give your Honours some references.  As to the corporate relationship between the various companies that were involved, that is detailed in appeal book at pages 18 to 19 and summaries at appeal book 219.  On the question of what the conspirators knew about SGIC’s involvement, in particular, the board’s involvement, that is dealt with in a number of letters and if I could just give your Honours the dates of the letters and the references without taking your Honours to them.

The first is 11 December 1991 which is in the appeal book at page 26; the second a letter of 22 January 1992 which is in the appeal book, page 33.  There is then reference at appeal book page 36 about an agreement being subject to the board approval.  There is then the letter of 31 January 1992 which is in appeal book at page 36 and a letter of 11 February 1992 which is in the appeal book at page 38.  What we draw from those is that the conspirators, or at least some of them, knew that the approval of the SGIC board was going to be required and that approval was going to be given in Adelaide.

KIRBY J:   I took Mr Gray’s submission to be slightly different.  It was that whatever may be the factual situation you did not in your indictment frame the counts as to allege that SGIC was the victim.

MR SELWAY:   My learned friend is exactly right about that but the question ‑ ‑ ‑

KIRBY J:   What is the significance of that, and also of the fact that you charged in the indictment that the conspiracy was made in Adelaide?

MR SELWAY:   Yes, your Honour.  What we say is that there are two issues.  One of them is what is the charge that has been laid and the charge that has been laid is certainly conspiracy to defraud Collins Street.  The next issue is, “Does the courts of South Australia have jurisdiction to hear that charge” and in determining that matter I think the Full Court, or at least one of the judges made mention of the fact that the particulars were probably insufficient in dealing with the question of jurisdiction.  But, in dealing with that matter the relationship between Collins Street and South Australia needed to be explored, in our submission.

Now, we do not take the matter any further than to say that in exploring that relationship the question is, “What is the nexus with South Australia?”, and that nexus depends upon the nature of what Collins Street is and how it does its business and we say when one gets to that the end result is that Collins Street in fact does have a nexus with South Australia which, if it matters, is significantly greater than would be, say, the connection that News Limited has with South Australia.

KIRBY J:   But do you allege that the evidence bore out the contention in the counts of the indictment that at Adelaide and at other places the appellants conspired together?

MR SELWAY:   If that means, as it may, that the evidence bore out that the agreement was made in Adelaide and that that is where they entered into the agreement then, no, we do not prove that.

KIRBY J:   What is the consequence of that if there was no application to amend the count of the indictment and you cannot establish what is charged within the high particularity with which criminal proceedings normally go ahead?

MR SELWAY:   What we would say is that the charge that was charged was conspiracy to defraud.  Picking up the comment that your Honour Justice Gaudron made earlier, that is what was charged, conspiracy to defraud.

KIRBY J:   Yes, but it is not in that generality, it is a specificity of the two counts shown on pages 1 and 2.

MR SELWAY:   Certainly, your Honour, and the question is one of particularity and the question then is, in terms of particularity, “Has the particularity been misleading or has anyone been misled?”, and in the context of this matter where the parties have entered into an agreement to produce before the court before trial all of the material relating to the issue of territorial nexus, being the only relevant issue here, we say that there is to be no allegation that the end result has been unfair or inappropriate.

KIRBY J:   Well, Mr Gray made that submission because he said that – well, he certainly said that he had not had a chance to answer a count of an indictment alleging that the victim was SGIC and that that is not what is in the charges, in the counts of the indictment that his client faced.

MR SELWAY:   With the great respect, your Honour, the material that is set out in Justice Lander’s decision is effectively the Crown opening.  That is the material that was before his Honour, before the trial started, and that material clearly showed the relationship between Collins Street and SGIC.

KIRBY J:   This is purely a technical ‑ ‑ ‑

MR SELWAY:   Yes.

KIRBY J:   It is not something that is concerned with merits?

MR SELWAY:   No.  In terms of the technical question, as we understand the rules, the offence that is charged has to be an offence known to South Australian law.  We say that it is.  If there is something in the particulars that is misleading then the question then falls to be dealt with in terms of the proviso but here ‑ ‑ ‑

HAYNE J:   But in what sense is it an offence known to the law of South Australia in the sense that the offence, speaking generally, a conspiracy to cheat and defraud is known, or is it a defence within the law of South Australia for these accused to have done what they did?

MR SELWAY:   We say it is the latter and I will come to the former in a moment, but, we say it is the latter and we say that that is the same question whether one looks at the question of jurisdiction or the question of whether it is a substantive offence and the issue, we say, is what is the territorial nexus.  Certainly it is true that the Crown case, as proved, did not prove an agreement that was made in South Australia.  The agreement was made, it appears, in Queensland and maybe in Victoria and other places.

KIRBY J:   Is it open on South Australian criminal procedure during the course of the trial to seek to amend the count of the indictment to bring it into line with what the Crown has actually proved, subject to any unfairness being done to the accused?

MR SELWAY:   Yes, your Honour.  In fact, it did happen in this case.  Your Honours might see at appeal book 1, page 1, the words:

either PT Mecosin (Indonesia) or” –

I understand that that was an amendment made during the course of trial.  I could ask your Honours just to note, if only for reasons of accuracy, that the place where it is inserted at appeal book 1 is the wrong place and it is more accurately set out at the start of Justice Lander’s judgment at appeal book 16.

GLEESON CJ:   Mr Solicitor, what is the relationship between section 5C and common law offences?  I notice that section 270 of the Criminal Law Consolidation Act refers to the offence with which we are here concerned as “a common law offence”.

MR SELWAY:   Yes, your Honour.

GLEESON CJ:   In other words, it is not an offence created by a statute enacted by the South Australian Parliament.

MR SELWAY:   Yes, your Honour.

GLEESON CJ:   What the South Australian Parliament has done is to recognise it as a common law offence and then prescribe a certain penalty for it.

MR SELWAY:   Yes.

GLEESON CJ:   Now, how does section 5C relate to that situation?

MR SELWAY:   Your Honours, we say that it has one of two operations.  We say that quite apart from section 5C that relevant territorial nexus existed for it to be an offence against the law of the State, then that territorial nexus is still recognised and that flows from section 5C(9) which your Honour Justice Callinan drew attention to a short time ago.  The other operation is that it would still apply to a common law offence as it would a statutory offence, so that if, for example, in this case an element of the offence had occurred within South Australia then we could rely upon section 5C to prove that the offence was a South Australian offence.

GLEESON CJ:   Is it your submission that there was a territorial nexus between an element of the offence and the State of South Australia?

MR SELWAY:   No, your Honour.  I may qualify that in a moment, if I might?  Our proposition is that the offence of conspiracy involves an agreement rather than the overt acts made pursuant to it.  In relation to that the relevant elements here are the elements of the conspiracy.  If I might say, the territorial nexus is not limited in respect of conspiracy to the elements, to explain our position.  So, the mere fact that an element may not have occurred within South Australia does not mean there is not a sufficient territorial nexus for the purposes of section 5C(9).

KIRBY J:   That is by the common law principles, not by section 5C, not by statutory connection.

MR SELWAY:   That is by the common law principles, not by 5C.  We use 5C in a narrower argument here which is that one of the rules, if you like, of the common law for territorial nexus is that if the agreement, wherever it is entered into, is to commit a criminal offence in a jurisdiction then that conspiracy is an offence within that jurisdiction.

GUMMOW J:   Would you say that again, Mr Selway?  Is this point 2 in your notice of contention at 254?

MR SELWAY:   Yes, your Honour, and the proposition we put which I will deal with first when I get to the proposition.  So, what we say is that that territorial nexus, assuming that we can make it out as being a common law territorial nexus, is still enough but that is not an element of the offence.

GAUDRON J:   We are talking about conspiracy to commit an offence in South Australia or conspiracy to cheat and defraud?

MR SELWAY:   Conspiracy to cheat and defraud.  We say the principles are the same.  With a conspiracy to cheat and defraud we say, as we understand the authorities, any offence that is in contemplation is enough to give us jurisdiction in respect of the whole of the conspiracy.

GAUDRON J:   Under 5C or under the common law?

MR SELWAY:   Under the common law.  So, if, for example, we could show that one effect of the conspiracy would be an uttering in South Australia, even though there may be frauds all over the place, we could charge the whole of the conspiracy in South Australia.  That is our base contention.  Here the case is somewhat better, we say, because what in fact is involved, if there had been an offence in South Australia, it would have involved fraud and in that sense we say whatever the issue is, even if one needed a fraud ‑ ‑ ‑

GAUDRON J:   Why do you need any more than a representation coming home for the conspiracy to cheat and defraud?  Why do you need more than a false representation coming home, as it were, to South Australia?

MR SELWAY:   We say that is enough but we say that the representation of coming home is an overt act.  We cannot say that the agreement was in South Australia because of the overt act.

GAUDRON J:   But the agreement had to be an agreement which involved the making of representations.

MR SELWAY:   Yes, but we ‑ ‑ ‑

GAUDRON J:   And, if the agreement did not involve the making of representations it would not have been, in this case, conspiracy to cheat and defraud.  It might have been some other conspiracy.

MR SELWAY:   Yes.  That is the qualification.  I think your Honour raised that with my learned friend just before my learned friend finished and it seems to us that may be a distinguishing feature.  It may be that here we are not merely talking about the overt act but also what the agreement was.  The problem with that is the extent to which we have proved – we have certainly proved the overt act – that that overt act was part of the conspiracy rather than merely in furtherance of it.

GAUDRON J:   It must be part of the agreement, would it not?

MR SELWAY:   Yes.

GAUDRON J:   Overt acts are acts from which you can infer an agreement.  One presumes, in this case, the making of representations was not extraneous to the agreement, was not done by somebody without authority of the conspirators.

MR SELWAY:   No.  We could certainly say, and we say in our submissions, it is in furtherance of the agreement.  We can say that.  The findings support that.  The question is, can one go the next step back and say not only that this was an overt act in furtherance of the agreement but that this overt act was part of the agreement, the overt act being to do this in South Australia.

HAYNE J:   Part of the agreement in what sense?

MR SELWAY:   As my learned friends point out, the agreement, to a certain extent is the intent of the parties, what is in their minds.  One proves that from the overt acts and then extrapolates back.

CALLINAN J:   This was an act of part performance, was it not?  It was quite different from the agreement, the sending of the facts.  It does not mean that you cannot rely upon them for your argument but, I think, is it not important to keep in mind the clear distinction between the agreement and acts done in furtherance of it?

MR SELWAY:   Your Honour is of course right but as I understand the point made by Her Honour Justice Gaudron it is that notwithstanding the fact that you have to keep them separate, one is evidence of the other, and so, consequently, if you have got an overt act ‑ ‑ ‑

KIRBY J:   Evidence but to query part.

CALLINAN J:   It is not an element.

KIRBY J:   An element.  That is what the Act says.

MR SELWAY:   Yes, but it then depends what the agreement is.  You see, if, for example, the agreement is to commit a dishonest act in sending a promissory note, is it an agreement to send a promissory note into South Australia?

GLEESON CJ:   Suppose two confidence tricksters sit down in Sydney and agree between themselves to enter the State of South Australia and make South Australian householders the target of a fraudulent scheme which will be sold from door to door in South Australia and suppose their plans are intercepted by the police before they ever come into South Australia or do anything here, does a territorial nexus exist between the State of South Australia and any element of the offence they have committed within the meaning of section 5C(1)(b)?

MR SELWAY:   No, your Honour, not within section 5C.

HAYNE J:   And at common law?

MR SELWAY:   At common law, yes.

HAYNE J:   Why?  What is it?

MR SELWAY:   At common law because we say the cases go so far – in fact we say it is absolutely clear – that where the conspiracy is to commit an offence within South Australia ‑ ‑ ‑

HAYNE J:   Well, the assumption is that the deceptive conduct is itself an offence but not all conspiracies to cheat and defraud involve, do they, the commission of an offence?

MR SELWAY:   No, your Honour, and it may be with a conspiracy to defraud one even has a broader concept.

HAYNE J:   What, then, is the offence that was the object of the conspiracy charged in this case?

MR SELWAY:   We say that the offence, in furtherance of it, the offence that would have been performed if the conspiracy had been fully performed, was not obtained by false pretences in South Australia and the reason it was ‑ ‑ ‑

HAYNE J:   An obtaining in South Australia or an obtaining by false pretences that were made in South Australia?  Do I make the distinction?

MR SELWAY:   Yes.  What we say is that this is where section 5C has a role that the representation would have been made in South Australia, we did not prove and it is not proved where the payment would have been made, but the mere fact that the representation was made in South Australia picks up 5C.  If the conspiracy had been performed, because the facts came into South Australia, South Australia could have charged obtaining by false pretences wherever it was paid.  In consequence of that, this is a conspiracy which, if performed, would have involved the commission of a criminal offence in South Australia and we say on the authorities that is enough to constitute an offence – to constitute the conspiracy, an offence against the law of South Australia.  Those cases, we say ‑ ‑ ‑

KIRBY J:   These are common law cases, they are not 5C cases?

MR SELWAY:   Not 5C cases.

KIRBY J:   I want to be absolutely clear on this.  The Crown does not seek to support a conviction on the basis of section 5C?  You use it in argument but you do not contend that jurisdiction attached by reason of section 5C?

MR SELWAY:   Your Honour, on this argument, if 5C was not there I could not put the argument because if 5C was not there the obtaining could not have been prosecuted in South Australia unless we could have proved that the payment was made in South Australia, as I understand the common law authorities.  But with 5C there, the obtaining can be proved if any element of the offence of obtaining by false pretence has occurred in South Australia.  The false pretence occurred in South Australia, therefore, the obtaining offence was an offence against the law of South Australia.

KIRBY J:   Yes, but the jurisdiction annexes by reason of the common law, it does not annexe by the operation of the statute.

MR SELWAY:   Yes.  The statute only has the secondary effect on the secondary offence, if you like.

KIRBY J:   That was your position in the Court of Criminal Appeal, I think, was it not?

MR SELWAY:   Yes.

KIRBY J:   I mean, you were not contending a 5C argument there.

MR SELWAY:   No.

KIRBY J:   Apparently, it was asserted at trial but did not impress the primary judge.

MR SELWAY:   No, your Honour.  I have got to say it has not been the Crown’s position.  We have not issued a notice on it.  The only point I make is that the point made by Her Honour Justice Gaudron that because you have an overt act which feeds back into intention there has to be a point in that at which you can say, “Well, we have established the intent, therefore we have an element of the conspiracy” but that has not been a matter argued.

GAUDRON J:   And it is not a matter that you adopt or embrace?

MR SELWAY:   Your Honour, at this stage of the matter I do not think I can except to say that it seems to me that there is some force in what your Honour puts, but in terms of the Crown position, that is not the case the Crown has put.

GLEESON CJ:   You do not embrace it but you are prepared to flirt with it?

MR SELWAY:   That is probably a fair summary, your Honour.

KIRBY J:   Float with it downstream.  Can I ask you, just to put it out of my mind entirely, the point about the indictment.  At the bottom line of your submission is if at the end of the day the objection is that the indictment did not line up with the facts as proved by the Crown no significant point was made about that at the trial and no injustice has been done to the accused by reason of it and therefore the conviction ought to be affirmed, if that be the only impediment on the basis of the proviso.

MR SELWAY:   Yes, your Honour.

KIRBY J:   What is the proviso in South Australia?  Could you let us know that in due course?

MR SELWAY:   Yes, I will do it before I finish.  If I could refer your Honours to the cases we have in paragraph 38 of our written submissions?  I do not need to take your Honours to them or through them.  We say that they all stand for the relevant proposition.  Could I perhaps give your Honours two other references which are in my learned friend’s written submissions which make the same proposition:  Isaac (1996) 87 A Crim R 513 at 515, Chief Justice Hunt at common law before the New South Wales Court of Appeal and a decision of Justice Walsh in the Western Australian Supreme Court, Schoenmakers v DPP (1991) 102 ALR 437 at 447. In both those places the proposition that a conspiracy to commit a crime within another jurisdiction is an offence within that other jurisdiction is clear and well accepted. Now, that is the use we make of ‑ ‑ ‑

KIRBY J:   Was that on the theory of where the crime was committed or on the theory of real and substantial connection?

MR SELWAY:   The difficulty of this matter is that they are explained on a number of different bases.

KIRBY J:   That is the difficult and, I mean, one of the purposes, presumably, of special leave is so that we can try to bring some clarity into this.

GAUDRON J:   One basis might be is that it is the law of that place that is being targeted, if you like, and it is therefore, in a federal system, at least, appropriate that it be that law which is applied in determining whether or not the offence was committed.

MR SELWAY:   Yes.

KIRBY J:   Do I hear section 118 – the bell of 118 chiming in the distance?

MR SELWAY:   Certainly not from me, your Honour.

KIRBY J:   It sounds like it.  I mean, that is the very thing that has been concerning me.

MR SELWAY:   I will put my federal argument in a moment but we certainly do not contend that section 118 has any essential consequences here and we certainly do not seek to reargue Mckain v Miller in this case.

GLEESON CJ:   But, it is not limited to a federal system, is it?  It probably is unattractive to English minds that two people who sit in a neighbouring country and plan to let off a bomb in Manchester are not thereby committing an offence against the law of England.

MR SELWAY:   True, and if your Honour looks at those cases there are English cases as well as Australian and Canadian cases.

KIRBY J:   Especially if they are in Edinburgh.  I think that was one of the cases.

MR SELWAY:   Yes, exactly, your Honour.  What we say the principles are, or if one approaches the matter in terms of principle there are two issues.  One of them is what is the theoretical basis for territorial jurisdiction in the first place, and we deal with that issue in our written submissions at paragraphs 19 to 24, and the summary we put is that the only principles that can now be relied upon, if you like, in respect of international common law are international comity, and, secondly, the perceived interest of the State.  There are going to be some matters where, on any view, it is of no relevance to South Australia.  The Californian being robbed in California.  Whatever one says about territorial nexus or comity it is simply of no interest to South Australia. 

We say those are the only two principles, which when analysed, the cases end up supporting, and we say you have to look at those principles as against ‑ ‑ ‑

GUMMOW J:   When you say “of no interest to South Australia”, do you mean no interest in the  Union Steamship sense?

MR SELWAY:   Yes, your Honour.

GUMMOW J:   Not for the peace, order and good government of South Australia.

MR SELWAY:   Yes, your Honour.  We do not suggest that that is the common law test for jurisdiction but it is putting it at its highest, if you like.  If the legislature would not have an interest, it is not at all obvious why the common law of South Australia would.

KIRBY J:   What about a conspiracy in New South Wales to let off a bomb in Northern Ireland?  Would jurisdiction be attracted to South Australia in such a case?

MR SELWAY:   No, your Honour.

KIRBY J:   So there has to be some connection.  Do you argue for the real and substantial test?

MR SELWAY:   Yes, your Honour.

KIRBY J:   Is that your preferred position?

MR SELWAY:   Our preferred position is probably real and substantial nexus within the Federation.  The real and substantial nexus, broadly, and leaving aside federal issues, as it appears the Canadian Supreme Court did, is arguable, but one would have to be careful as to where that ended up.  It seems a large step and maybe it is unnecessary at this point.  Our preferred position, I think, is real and substantial connection within the Federation, with some qualifications which I will come to in a moment.

GUMMOW J:   There might be a number of real and substantial connections.

MR SELWAY:   Yes.

GUMMOW J:   So, a number of States could be engaged, as it were.

MR SELWAY:   Yes, and in response to the proposition that your Honour Justice Hayne put to me yesterday that there should only be one jurisdiction that has application, we would say that is not our understanding of how the Federation operates or should operate.  At the very least, one is always at risk of two jurisdictions having application – the Commonwealth and the State.  But, as between States, it is not at all surprising if a person does an act which is going to have consequences somewhere else, that that somewhere else may have a law which attaches to it.

HAYNE J:   But in the case of the completed crime, locating that crime may be much easier than in the case of the inchoate crime, and there may then be only one State having jurisdiction or interest in it.  You may need to distinguish between a course of criminal conduct which may occur across State boundaries, but individual crimes completed may occur only in a singular place.  It is the inchoate offences which are the odd ones and which present the problem.

MR SELWAY:   I take your Honour’s point.  We have limited our submissions here to conspiracy to defraud.  The fact of the matter is, I suspect, that if your Honours adopted our submissions, there would be no reason in due course why the relevant test would not apply to attempts and other conspiracies, at least.  But there is reason for caution in this area, and certainly we do not argue that the case of Ward was wrongly decided or should be reconsidered or the case of Thompson.  We limit our submissions to these particular offences because of the nature of the offences.  That leads me to paragraph 26 of our written submissions.

KIRBY J:   Can I just ask you, Mr Gray says in objection the penalties are different from State to State; it encourages forum shopping; it encourages an unseemly race to grasp jurisdiction in one State which may not be the most appropriate State for the crime, and that to say that you can subsequently get a stay order in other States if a prosecution is under way in one is not a sufficient answer, that the criminal law should be certain and definite, and we should know where it is in real and substantial; it is evaluative and that it just be left to particular judges or maybe juries in the different States.

MR SELWAY:   We say there can be no objection to this because one particular jurisdiction has a greater or lesser penalty than some other.  We say firstly that that is not a common law issue.  At common law all of these offences had indeterminate sentences.  It is a statutory provision.  You have to look at the statutes.  We say if section 118 has any role in these matters, this is the role.  It is that you cannot come to a court and argue that South Australia is a more appropriate place to be prosecuted in than Western Australia because South Australia has a lower or higher penalty.  That is a matter of the laws of that State.  They are entitled to that respect.  We say it is not a matter that leads to any particular consequence, except for this:  it is true, we say, that within the Federation, given the nature of the Federation we have ‑ ‑ ‑

GUMMOW J:   Are you saying that 118 would enter into it in a stay application in State B where the trial is being conducted in State A, and there are proceedings also in State B?  The complaint in State B is the difference in the sentencing structure in State A, and you say 118 would provide an answer, but that is not a determinative matter.

MR SELWAY:   Yes.  Similarly, it is not a relevant issue that the laws of Victoria or Western Australia or whatever are not as good as South Australian laws, or vice versa.

KIRBY J:   Could you apply to a judge of the Supreme Court of South Australia to stay the further proceedings on the indictment in South Australia because it has a more real or substantial connection with Victoria?

MR SELWAY:   Not as such, your Honour.  We would have said that both courts ‑ ‑ ‑

KIRBY J:   Who gets in first gets it.

MR SELWAY:   Yes, your Honour.  To pick up the example that the Chief Justice gave yesterday of the conspiracy overseas to distribute in seven jurisdictions in Australia, we would say there are seven offences.

GAUDRON J:   Seven offences, or one offence committed in seven different States, or six different States?

MR SELWAY:   That raises an issue which ‑ ‑ ‑

HAYNE J:   You will move to tell us the angel is on the pinhead at the end of this, will you, Mr Solicitor?

MR SELWAY:   I was certainly hoping to avoid this one, your Honour.  In appendix 1 of page 18 paragraph 3.1 we refer to Reg v Martin, where it was suggested that the common law applied throughout the world, and that someone who committed a murder in France committed a common law murder in France and that the only reason they were not tried in England was because the courts did not have jurisdiction.  It gets back to that jurisdiction offence distinction.  In paragraph 3.2 we go on to say why that is not the law and does not provide a distinguishing consequence.         Having said all that, the situation could be different in Australia, and that is because ‑ ‑ ‑

GUMMOW J:   Paragraph 3.2 of what, Mr Solicitor?

MR SELWAY:   I am sorry. it is appendix 1 on page 18.  I apologise, your Honour.  I am mumbling again.  The issue is referred to in the footnote on page 12 of our submissions, which is the question of the unity of the common law within Australia.  Certainly, for example, in Wakim, your Honours Justices Gummow and Haynes referred to a single Australian common law.

KIRBY J:   That has been referred to in a number of cases.

MR SELWAY:   Yes, your Honour.  The question is, to put it bluntly, what that means.  Are we talking about a single Australian common law, or are we talking about seven common laws which are integrated? 

GUMMOW J:   You are talking about one common law which is personified right here.  You are looking at it.

MR SELWAY:   My problem though is what does that mean when I am appearing before Justice Lander in South Australia.  Is he trying an Australian common law offence where his issue is what jurisdiction he has, or is he trying a South Australian common law offence which has the same question – what jurisdiction he has.

KIRBY J:   You seem to be getting excited about this.  Do we have to determine this in this case?

MR SELWAY:   The answer is the same whether you look at in terms of jurisdiction or if you look at in terms of the substantive offence but it may have some consequence on this question, because on this question ‑ ‑ ‑

GUMMOW J:   What Justice Lander is doing is ultimately controlled by what we decide.  We will decide it not by reference to decisions of the South Australian courts exclusively determining the common law, we will decide it by reference to wider considerations, unconfined by any such notions, and the decision will then have effect throughout the country upon other judges in the position of that judge determining similar questions in their respective States and Territories.

GAUDRON J:   The relevance is to my question, whether it was one offence or seven offences, and if there are seven offences then perhaps prima facie can be prosecuted in all States, contemporaneously, presumably – subject to getting the person there; or seriatim.  That would not seem to be a very desirable consequence.

MR SELWAY:   No, your Honour.

KIRBY J:   The answers may flow anyway.

GAUDRON J:   Therefore, one assumes that there is one offence, but it may have been committed in each State, and that it may be triable in each State, and that at the end of the day one then has to develop a mechanism as to precedence.

MR SELWAY:   But even if one takes that approach with the common law, it does not solve the statutory problem with statutory offences.

GAUDRON J:   No.

KIRBY J:   And only in some States.  You have the Code States with Code definitions which are different; sometimes quite significantly different from the common law.

MR SELWAY:   We say that the answer to that problem, however one approaches it, is the laws in respect to double jeopardy.  Happily, at least in Australia, we say that that law does not cause problems.  We say that where a person is convicted in one State they cannot be convicted in relation to the same facts in another State.  That appears to be, if you like, the international rule.  I will just give your Honours the reference:  Reg v Treacy (1971) AC 537 at 562 D, Lord Diplock; and Reg v Thomas (1985) QB 604; Court of Criminal Appeal 610 to 611 ‑ ‑ ‑

KIRBY J:   This is the…..principle of international law as well.

MR SELWAY:   Yes.

GUMMOW J:   That is not the position in the United States.

MR SELWAY:   No, your Honour, it is not the position in the United States.

GUMMOW J:   That proceeds from the theories of State sovereignty.

MR SELWAY:   Yes, your Honour, with this qualification:  I am sorry, I do not have the reference here, but I think Marcus also raises queries about some of the early English authorities and their correctness.

GUMMOW J:   That is why it is important to get the notion of the common law of Australia, which they do not have.

MR SELWAY:   Yes, I understand that, your Honour.  Could I perhaps say we do not deny the fact that there is a single common law.  What we say, though, is that the single common law is comprised of, if you like, the common law of South Australia, and it probably has to do that because, given the rules of how the common law was initially picked up in the jurisdictions, there is at least a ‑ ‑ ‑

GUMMOW J:   No, they were colonies.  They only became States in 1901.  That is what we are looking at.

MR SELWAY:   I understand that, your Honour, but the question is:  did the common law applicable in New South Wales change as at that date?  Maybe it did, but that is the sort of analysis, and all we say is that the cases do not seem to go that far, but it leads into that question about whether there is one offence or six.

KIRBY J:   All that may be water under the bridge because at 1903 this Court was established, and certainly by now this Court is the sole voice on the statements of the common law for the whole of Australia.  I understand that is the foundation for the theory that there is one common law for Australia that ultimately comes together in us, in this Court.

MR SELWAY:   There is no doubt that that proposition is entirely true, your Honour.  The only Australian cases I can refer your Honours to on this question of double jeopardy, are three:  Ireland v Samuels (1974) 7 SASR 19, a decision of Chief Justice Bray sitting by himself. The issue there was a continuous driving of a stolen vehicle from South Australia into Victoria where the person was charged and dealt with in Victoria and then charged and dealt with in South Australia. His Honour held that there was one course of conduct and can only be punished once. So it was only a discussion of punishment, it was one page, and the Crown conceded.

There is a more detailed discussion in Maple v Kerrison (1978) 18 SASR 513, particularly at the bottom of 520, again Chief Justice Bray. The issue there was double jeopardy between the Commonwealth and the State but obiter his Honour said that there can be double jeopardy between States. There is also Reg v Hildebrandt (1963) 81 WN (Pt 1) (NSW) 143 at 151.  That was a case where jurisdiction had been refused in Queensland because there was not a territorial nexus.  The Court of Appeal in New South Wales held that in that circumstance New South Wales courts could proceed to hear the offence.

GAUDRON J:   This was the plane hijack, was it not?

MR SELWAY:   Yes, your Honour.  Special leave was refused from that decision, as we understand it.  What we say is that that is the answer to this issue, the proper development of the law of double jeopardy between Australian jurisdictions, and that the law at the moment, we would say, is sufficient to enable those issues to be properly dealt with.

The other matter I was going to take your Honours to in terms of, if you like, the background principles that should be applied, the first was:  what were the principles for territoriality in the first place?  The second is:  what is the mischief to which conspiracy to defraud is directed?  We have set that out – not just conspiracy to defraud but conspiracies generally - at paragraph 26 of our written submissions.  I will not take your Honours through that.  The relevant references are set out.  The clearest of them is probably Justice McHugh in Peters.

It is the likelihood that their common intention will be translated into socially undesirable action that prompts the State to intervene.

To pick up the point that your Honour Justice Callinan made yesterday that it is the place where the agreement occurs, in fact, as we understand it, none of the authorities say that that is the relevant nexus, for the simple reason that it is not the agreement that is the mischief.  It is the consequence of the agreement which is the mischief.  So, one always looks to the consequence to find the result, not the agreement itself.  Having said that, section 5C would enable one now to pick up the agreement but at least in relation to common law cases, it is not the agreement itself which is seen as the relevant nexus, it is the consequence of the agreement.

CALLINAN J:   I see the Queensland Criminal Code provides that it is a defence to prove that a person did not intend that the act or omission should have the effect in Queensland.

MR SELWAY:   Yes.  We say that properly reflects, if you like, the common law cases, that it is the effect that is the reason why the conspiracy is an offence in the first place.  Your Honours, if those propositions are accepted, we have made our submissions in respect of the facts, and if I could just rely then on our written submissions in that regard at paragraph 38 and following of our written submissions.

The other argument we put which we say falls clearly within existing authority is that the intended victim of the conspiracy was SGIC.  We have made our submission in respect of that in relation to the facts.  The relevant case is A‑G’s Reference (No 1).  We have set that out at paragraph 35 of our written submissions.  It is probably fair to say that we have attempted to, at least to an extent, have our cake and eat it in relation to those submissions.

GAUDRON J:   Why is it not sufficient to say that Collins Street was the intended victim?  It is a company registered in South Australia, was it not?

MR SELWAY:   Yes, your Honour.  It leads us to the problem – and that is why we have tried to have our cake and eat it.  It leads to the problem of what then happens with a corporation like News Corporation, which I think is still registered in South Australia, or Southcorp.  Wherever the corporation is registered, in fact it is an international business. 

KIRBY J:   Lots of them now.

MR SELWAY:   The same might be said with the example given by your Honour the Chief Justice this morning – a South Australian in California as against a South Australian in South Australia.  It may be that when one is really analysing this, one ends up with a real and substantial connection test rather than a test of residence of the victim, because the difficulty with the residence of the victim is it ends up being a test which is a strict test which is always applied once you come within the rules.  In actual fact, it may be that when properly analysed there is no real connection with the State at all.

KIRBY J:   Real and substantial connection is slightly different from the test that has been adopted by this Court for forum non conveniens.  It sounds a little bit like Spiliada in a sense.  I wonder if this is not an area of the law for some conceptual rationalisation between the two.  Are they doing the same job, essentially, that courts should not embark upon matters which are not truly and substantially connected with their jurisdiction?  Crimes do not occur where there is not that connection.

MR SELWAY:   They are not doing the same job.  In the civil law area the issue is not whether the court has jurisdiction, it is whether it is appropriate for it to exercise it.  In this area, the question is whether the court has jurisdiction.  If it has it, it almost certainly should exercise it, but for issues of unfairness and so forth.  So, there would be no reason in principle why the test should not be somewhat different and maybe more rigorous in relation to criminal law, given that once you are in the jurisdiction you can expect it to be exercised.

HAYNE J:   Well, in applying such a test, is residence of the company – that is, incorporation of the company - relevant or irrelevant?

MR SELWAY:   We would say it is not irrelevant, but we would accept that it cannot be the entire answer.  What we say here is that ‑ ‑ ‑

HAYNE J:   It sounds to me to be a mask for assertion rather than application of principle that real and substantial connection, or other such expressions, may mask the principle that is being applied.

MR SELWAY:   Yes, it may, your Honour.  It is always a risk.  What we would say here, though, is that it is not hard to think of examples where what you are really saying is that events which have nothing whatever to do with South Australia are criminal offences in South Australia because of a circumstance which may well be almost fortuitous.

HAYNE J:   Is the test then a negative test that if there is no real and substantial connection, then no jurisdiction?

MR SELWAY:   It certainly must be that, your Honour.  Sorry, it must be true.  If there is no real and substantial connection there cannot be jurisdiction.  That must be true.  We would still put the converse.  If there is a real and substantial connection, there is jurisdiction.  That is our primary test.

Your Honours, what we say here is that even if mere residence of the company is not enough, the circumstances of this case go beyond that.  What we have is a statutory authority.  The conspirators knew it was a statutory authority; it had been explained to them that that was one of the reasons why board approval was going to be required.  In that circumstance, the nexus with South Australia is taken beyond the fact merely that Collins Street was incorporated in South Australia, but incorporated also the fact that its shareholder was a statutory authority in this State and that the board of that statutory authority would be involved in the decision‑making process.  We say that would be enough on any view to create the relevant nexus.

That leads us to the last two alternatives.  The first of them is really set out at paragraphs 28 to 30.  That seems to be the approach adopted in fact by at least Justices Millhouse and Perry in the Full Court.

GAUDRON J:   That is not a test that will necessarily result in the crime having been committed in only one State.

MR SELWAY:   No, your Honour.  It is certainly our submission that this crime, on any view, could have been committed in Victoria and Victoria could have prosecuted.  I do not think anyone contends to the contrary of that.  We submit he could have been charged in South Australia, and my friend says no.  I think probably we would both say it could have been charged in Queensland.

GAUDRON J:   It might have been a defence in Queensland, would there have been?

MR SELWAY:   Yes, sorry, subject to the defence in Queensland.  I apologise.  At common law, at least with 5C, it could have been charged in Queensland.

The justification, we say, for the test and for the development of the law is set out at paragraph 29 of our written submissions.  Given the time, I do not think there is anything I can add to those.  If I could just ask the Court to note that those are our arguments for the real and substantial test.  Fundamentally, it is the approach of the Canadian Supreme Court in Libman, and the reasons that we say ‑ ‑ ‑

GUMMOW J:   Lord Justice Buxton was not very impressed with that in Manning.

MR SELWAY:   No, he was not, though, with all respect, he was also not very impressed with the Privy Council or the Court of Appeal two years before.

KIRBY J:   He is just not impressed.  What was his solution, given that everyone agrees that this is a mess?

MR SELWAY:   He suggested it is a mess; suggested there ought to be legislation, but with all respect ‑ ‑ ‑

GUMMOW J:   There was legislation – he suggested it be proclaimed.

KIRBY J:   Sir Richard served on the Law Commission for many years.  He thinks legislation is the solution to all the problems, still.

MR SELWAY:   One must say that some of the Australian courts have also made mention of that fact.  I think the Victorian Court of Appeal did in Mayer v Henderson.

KIRBY J:   What does it need?  It needs some elaboration of the 5C‑type provisions.

MR SELWAY:   Certainly 5C is deficient in some regards, and 5C, as my learned friend pointed out, is directed to the Thompson sort of situation and does not really deal adequately, at least, with conspiracies.  So, that point is certainly there, but the other thing to be said about that case is that it does not actually suggest what the test ought to be or is.  It does not say it is the initiatory test or the territorial test, though it has rejected the comity test.

If we could, as it were, leave the Court with paragraph 29 and then take the Court to the final issue which is Federation.  Could I ask for your Honours to note that the second sentence in paragraph 31 of our written submissions is much too wide.  It should say something like “within Australia the issue is one of domestic or federal, not international comity”.  That does not mean the proposition there was untrue, it is just that it does not lead into the argument.

What we say is if the principle that was being applied in the English cases was based upon international comity, as a number of the cases say it is, and as it was identified by the Canadian Supreme Court in Libman, then whatever else one says, that principle does not have any obvious application to the law within Australia.  The common law needs to develop within Australia simply because the reason for the common law in England has no application here.

KIRBY J:   Except for devolution.  They may well be embarked upon the same problem.

MR SELWAY:   They may be.  What is interesting is that even in Scotland it was held in Clements v HM Advocate – we have set the quotation out there in paragraph 31 – the issue is not treated as one of international comity because it is a matter of domestic constitutional law.  We say if that is true of Scotland, how much more so in Australia.

We say that within Australia it is not a surprising result and, more to the point, it is a federal result that a person may be subject to the laws – we would say including the common law, or including the jurisdiction – of more than one State in respect of the same event or action.  If we take the statutory context, we refer to the case of Brownlie, where your Honour, wearing your Chief Justice of New South Wales hat, made the point that people in Queensland could expect that if they took various actions that affected the waters of New South Wales, that may well have consequences in New South Wales.  With respect, that is right.

Similarly, we would have said that if people in Sydney are conspiring together to commit a bank robbery in South Australia, they should not be surprised if the law of South Australia has some application to them.  We say that is not a non‑federal result; in fact, it is the very opposite.  That is what the Federation suggests.  If that is true, what is necessary is to look then at what the parameters and conditions ought to be.  We say that the parameters and conditions involve, firstly, nexus, and a sufficient nexus so that the States have an interest.  Secondly, we say there has to be a rule of double jeopardy to ensure that a person is not prosecuted in more than one place in respect of the same act.  Thirdly, we say that a person cannot be subject to inconsistent duties in the same place.

In respect of the Commonwealth and the State, that issue is resolved by 109, and there is various obiter suggestions in various of the authorities to suggest that between the States a principle of inconsistency is also applicable to ensure that if, for example, a law were passed in New South Wales saying it is lawful to enter into a conspiracy to rob banks in South Australia, there is a means of resolving that dispute.

KIRBY J:   You could at least theoretically get that in the drug area, where there have been significant differences between different States.

MR SELWAY:   Yes, your Honour, and as one, if you like, experiments with solutions to the drug problem, acts which may well be an offence in this State may not be an offence somewhere else if certain conditions are complied with.

GUMMOW J:   How does the reasoning in Hyde in the United States fit in, if at all, with that scheme you have just outlined?  That seems to assume, because of the Sixth Amendment, that there is only one place, and you have to find it, and it is where the crime was committed.

MR SELWAY:   Yes.  Your Honours, we have had a bit of a look at the US authorities.  I must say, State to State, rather than federal to State, and to be perfectly frank, they did not seem to be particularly useful.  They seemed quite divergent and depended what jurisdiction you were in what the rules seemed to be.

GUMMOW J:   I was thinking about the Sixth Amendment. 

MR SELWAY:   Yes, I understand, your Honour, and I must say I had not given any ‑ ‑ ‑

GUMMOW J:   In light of section 80.

MR SELWAY:   Yes, I had not given any thought at all to that or section 80 as feeding into this issue, and federal jurisdiction obviously may raise further issues.

GUMMOW J:   What I am putting to you is the theory of the Constitution as expounded through section 80 seems to be that there will be only one jurisdiction that tries the crime and is competent to do so, and that is the one that shall do it, whereas your theory contemplates a multiplicity of possibilities, with safeguards to that situation.

MR SELWAY:   Yes, one of the problems with Chapter III, and particularly using US authorities with it, is that whilst Chapter III is based upon the US Constitution and its view of separation of powers, the reality is that certainly as the Constitution developed through the conventions, Chapter III took on a very different perspective, in particular the conferring of Commonwealth jurisdiction on State courts and the single common law and the using of this Court as the ultimate court for all matters. That, we say, has led to a different perspective which we identify as the single court system and the single common law.

GUMMOW J:   All I am putting to you is for federal crime there will be one rule.  There will only be one place possible.

MR SELWAY:   Yes.  I understand that.

GUMMOW J:   You say nothing comes out of that in determining what the common law requires otherwise within a federation?

MR SELWAY:   No, your Honour, that is what we say.

GLEESON CJ:   Mr Solicitor, is that a convenient time?

MR SELWAY:   Yes, your Honour.  In fact, I might say, subject to – I think those will be our submissions, but if I could consider the matter.

GLEESON CJ:   When we come back at 2.15 you may be able to let us know one matter that does not touch the outcome of the present appeal, but a consideration raised by what happened procedurally here.  This was a trial without a jury.

MR SELWAY:   Yes.

GLEESON CJ:   By the election of the accused or the Crown, or both?

MR SELWAY:   By the election of the accused.  The Crown cannot elect in this State.

GLEESON CJ:   Is there any State or Territory in Australia in which, in cases of trial by jury, it is not possible, either by the election of either or both parties, or upon the making of a discretionary decision by the judge, to dispense with a jury?  We will adjourn until 2.15.

AT 12.51 PM LUNCHEON ADJOURMENT

UPON RESUMING AT 2.30 PM:

GLEESON CJ:   Yes, Mr Solicitor.

MR SELWAY:   Your Honour, I have finished my standard submissions.  There are only a few matters to clear up.  Your Honour the Chief Justice asked in what States is there a capacity to have trial by judge alone.  The answer appears to be the ACT, South Australia, Western Australia and New South Wales, but in New South Wales the consent of the DPP is required, though apparently is always given.

Your Honours, I have passed up to the Court some stapled papers headed “Part B – Right to Jury Trial”.  That consists on the front of the relevant section from The Laws of Australia, in particular at the bottom of the page and over the next page, and then following that, the relevant statutes for relevant jurisdiction.  There is also the Judiciary Act in relation to the High Court but that is not to suggest that the provisions about the Judiciary Act are talking about the High Court in criminal jurisdiction.

GLEESON CJ:   Thank you.

MR SELWAY:   Your Honours, I was asked as to whether any of the decisions had been reported. Justice Lander’s decision on jurisdiction has been reported at (1995) 65 SASR 127; and the decision of the Court of Criminal Appeal has also apparently now been reported at (1997) 70 SASR 300. Your Honours, the proviso in South Australia is in section 353(1) of the Criminal Law Consolidation Act.

The final matter to which I have to refer is a matter that your Honour Justice Gummow raised with me yesterday afternoon, which is the provision relating to the jurisdiction of the Supreme Court. Your Honours, we have passed up excerpts from Mr Luntz’s book on Civil Procedure. The relevant provision in South Australia is section 17 of the Supreme Court Act.  For relevant purposes, the Supreme Court has the jurisdiction of the Court of Queen’s Bench, and our submission being, in general terms, that that submission is to hear offences against the law of England and we would say the law of South Australia.

The only other matter that we refer to:  Your Honours will recall that in our written submission we refer to the jurisdiction of the District Court of South Australia which is expressly related to offences against the law of South Australia.  Under section 24 of the District Court Act, which is referred to in the sheet immediately below the one with section 17 of the Supreme Court Act, is the provision to transfer proceedings between courts.  Your Honours, in this State in criminal matters the District Court and the Supreme Court have a joint registry and matters can proceed to the District Court or the Supreme Court depending upon their perceived complexity and the appropriateness of who should sit and the availability of judges.

GUMMOW J:   What is the year of the Supreme Court Act?

MR SELWAY:   It is 1934, your Honour.

GUMMOW J:   Thank you.

KIRBY J:   You mentioned in the list of protections against unfairness and in the context of federalism a number of – I think you mentioned three considerations, one of which was the rule against double jeopardy.

MR SELWAY:   Yes.

KIRBY J:   But you seem to be resistant against the notion that a court of one State could order a stay of prosecution in order to permit proceedings to proceed in a jurisdiction which had already started or contemplated criminal proceedings which had the closest and most natural connection with - the most real substantial connection with the prosecution.  Is your resistance to that because of some aspect of the nature of criminal jurisdiction, or do you resist the notion that if proceedings, say, here, had been started in this State and at about the same time proceedings had been commenced in Victoria, that it would not have been competent to the appellants to apply to the Supreme Court of South Australia to stay their proceedings for a time, perhaps, to see what happened in Victoria, so they would not be harassed with proceedings in two jurisdictions of the Federation?  Would that not be a federal principle too?

MR SELWAY:   There may be an issue there, your Honour.  We would have said that the power to sustain criminal proceedings relates to an abuse of the processes of the court in relation to those proceedings and it may well be that if a person is being prosecuted in another jurisdiction that a court may well take the view that that might be a breach.  But one would expect that the power of adjournment would be enough to deal with that issue, given that the person has to be within the jurisdiction anyway for the court to have jurisdiction over the person.

KIRBY J:   But within Australia that can be quite readily secured, can it not, by extradition or what is called extradition - removal?

MR SELWAY:   But usually not when the person is actually being charged before the courts of another jurisdiction, you would not normally get an order for extradition until ‑ ‑ ‑

KIRBY J:   What if the application were made in the Northern Territory and there were proceedings in the two jurisdictions and South Australia got in early and said, “Well, we have commenced our proceedings”, the person would be removed into South Australia?

MR SELWAY:   Yes, your Honour.  While that person is here, we would have expected that Northern Territory would defer.  That would be the expectation but that can be dealt with, if you like, in terms of the physical rules that the person has to be present in the jurisdiction.  It seems to us unlikely that there is going to be two cases proceeding at exactly the same time.  It may happen in magistrates courts but most unlikely would happen in superior courts.  One would expect the ordinary principles of comity with the Federation to then apply, that courts would adjourn proceedings until other proceedings are completed.  Your Honour, I cannot take the matter any further than that.

KIRBY J:   It does not arise in this case.  I am just thinking through the consequences of the principle you have urged on us.

MR SELWAY:   Yes.  If it please the Court.

GLEESON CJ:   Thank you, Mr Solicitor.  Yes, Mr Gray.

MR GRAY:   Your Honour Justice Kirby raised the technical issue related to the particulars referring to the conspiracy at Adelaide and other places.  I have to say the whole case was conducted on the basis as though those words were really in places outside the State of South Australia as far as the conspiracy was concerned, so I cannot advance any prejudice argument.

KIRBY J:   Sounds like an application of the proviso, as Mr Solicitor said.

MR GRAY:   In relation to that aspect, yes.

KIRBY J:   Yes.

MR GRAY:   We do, however, say – and once again reiterate – that the charge was conspiracy to defraud.  It was not conspiracy to commit an offence and we have in the written submissions drawn that very firm distinction in relation to it and say that the Crown’s submissions that have been made allied the charge of conspiracy to defraud into that.

The only other matter that I wanted to raise related to the American cases that your Honour Justice Gummow referred to.  I would like the opportunity to explore that and would ask, really, for leave to be able to put before the Court, I think before the end of next week, any submissions that we might wish to make in relation to that.

KIRBY J:   Yes, thank you.

GLEESON CJ:   Thank you Mr Gray.  Then we will reserve our decision in this matter.

AT 2.39 PM THE MATTER WAS ADJOURNED