R v Catanzariti
[1995] SASC 5298
•18 October 1995
COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA MATHESON J
CWDS
Criminal law - particular offences - Conspiracy - accused charged with conspiring in South Australia to grow cannabis in the Northern Territory - whether filing of new information several days before hearing of pre-trial applications was an abuse of process - application to stay on that ground dismissed - whether charges alleging conspiracy in South Australia to grow cannabis in the Northern Territory contrary to the provisions of a Northern Territory statute are offences indictable in this State - consideration of s5c of the Criminal Law Consolidation Act - application under s281 of last mentioned Act to quash information upheld.
Board of Trade v Oven and Another (1957) AC 602; R v Cox (1968) 1 WLR 88; DPP v Withers (1975) AC 842;R 276; Attorney-General's Reference (No 1 of 1982)
(1983) 1 QB 751; Libman v R (1985) 21 DLR (4th) 174; Mayer v Henderson (1993) 68 A Crim R 155; Rona v District Court of South Australia and Another (1994) 63 SASR 223; Re Anne Hamilton-Byrne (1995) 1 VR 129, considered.
HRNG ADELAIDE, 3-4 October 1995 #DATE 18:10:1995 #ADD 27:11:1995
Counsel for Crown: Mr D R Whittle
Solicitors for Crown: DPP (SA)
Counsel for accused Catanzariti: Ms B J Powell QC with
Mr D J Wardle
Solicitors for accused Catanzariti: Douglas Wardle
Counsel for accused Curcio: Mr G M Mcgee
Solicitors for accused Curcio: Greg Mcgee
Counsel for accused Koukouvitakis: Mr W R Retalic
Solicitors for accused Koukouvitakis: Sykes Bidstrup
Counsel for accused D Perre: Mr M L Abbott QC
Solicitors for accused D Perre: David Stokes and
Associates
Counsel for accused F Perre: Mr D Y Sprod
Solicitors for accused F Perre: Scammell and Co
Counsel for accused Poulos: Mr R C Bleechmore
Solicitors for accused Poulos: Ralph C Bleechmore
Counsel for accused Romeo: Mr J D Edwardson
Solicitors for accused Romeo:: Mcgee and Associates
Counsel for accused C Smyrneos: Ms M E Shaw
Solicitors for C Smyrneos: Caldicott and Co
Counsel for accused S Smyrneos: Ms M E Shaw
Solicitors for S Smyrneos: Caldicott and Co
Counsel for accused Vottari: Ms M E Shaw
Solicitors for Vottari: Caldicott and Co
ORDER
Application granted.
JUDGE1 MATHESON J The case for the Director of Public Prosecutions, stated very briefly, is that the accused, all of whom allegedly lived in South Australia at any relevant time, agreed in this State to cultivate cannabis on a property called Hidden Valley near Katharine in the Northern Territory. It is alleged that some of the accused were the organisers, some supplied the fertiliser and equipment, some worked the crops and some harvested the crops, but there was some overlap of involvement. The crop or crops were allegedly sold in South Australia and the accused shared the proceeds. This judgment deals with two pre-trial applications, for the first of which at least it is necessary to be precise about the relevant procedural steps and the dates thereof.
2. On 20 April 1995 the accused were committed for trial in the District Court of South Australia, some on one count only, and some on two counts, of conspiracy to take part in the production of cannabis, and an Information was filed in that Court on 19 May 1995 which read:
"First Count Statement of Offence
Conspiracy To Take Part in the Production of Cannabis.
(Common Law and Section 32(1)(b) of the Controlled
Substances Act, 1984).
Particulars of Offence
Saverio Francesco Catanzariti, Rocco Curcio, Christos
Koukouvitakis, Domenic Perre, Francesco Perre, Dimitrios
Poulos, Tony Antonio Romeo, Constantinos Smyrneos, Stavros
Smyrneos and Domenic Vottari between the 1st April, 1992 and
the 30th April, 1993 at Adelaide and other places, conspired
together with Robert John Helps and others to, knowingly
take part in the production of cannabis, a prohibited
substance.
SAVERIO FRANCESCO CATANZARITI, ROCCO CURCIO, DOMENIC PERRE,
DIMITRIOS POULOS and CONSTANTINOS SMYRNEOS are charged with
the following offences
Second Count Statement of Offence
Conspiracy To Take Part in the Production of Cannabis.
(Ibid).
Particulars of Offence
Saverio Francesco Catanzariti, Rocco Curcio, Domenic Perre,
Dimitrios Poulos and Constantinos Smyrneos between the 1st
April, 1993 and 22nd August, 1993 at Adelaide and other
places, conspired together with Robert John Helps and others
to, knowingly take part in the production of cannabis, a
prohibited substance."
3. They were arraigned and pleaded not guilty on 22 May 1995. Because of the argument of counsel before me, and of Miss Lindy Powell QC, counsel for Catanzariti, in particular, I set out a document dated 24 May 1995 signed on behalf of the Director of Public Prosecutions, and headed "Recommendation as to Category":
"Name of Accused: SAVERIO FRANCESCO CATANZARITI, ROCCO
CURCIO, CHRISTOS KOUKOUVITAKIS, DOMENIC PERRE, FRANCESCO
PERRE, DIMITRIOS POULOS, TONY ANTONIO ROMEO, CONSTANTINOS
SMYRNEOS, STRAVROS SMYRNEOS and DOMENIC VOTTARI
File No: 456/95
Court to which
Committed: DISTRICT COURT OF SOUTH AUSTRALIA
Charge: CONSPIRACY TO TAKE PART IN THE PRODUCTION
OF CANNABIS (2)
Recommended
Category: 2
On the 22nd August, 1993 police raided a property at Hidden
Valley in the Northern Territory. At that property they
seized 10,553 mature cannabis plants. In relation to the
same matter they also stopped a vehicle that was leaving the
property and found it to be carrying 34 garbage bags
containing cannabis weighing a total of 79.2 kilograms.
Police made inquiries and a number of people at the crop
site were arrested. The owner of the property, Dean Ottens,
was also arrested.
In June 1994, one of the participants in the 1993 crop,
Robert John Helps, was interviewed by NCA Investigators. He
gave information to the police that implicated the accused
in a crop of cannabis at the Hidden Valley station in 1992.
In that crop, approximately 4,000 plants were successfully
grown and a substantial amount of money was made from the
crop.
Helps also gave information that in 1993 the crop involving
the 10,553 plants was grown at the Hidden Valley station.
He gave information that implicated the accused on Count 2
with organisation of the finances, the equipment and the
growing of the cannabis.
The information of Robert John Helps is corroborated in a
number of respects.
Upon arrest, all accused except Poulos, declined to answer
questions.
This is a matter of some complexity involving 10 accused and
complex questions of law in relation to jurisdiction and
conspiracy."
4. On 20 June, a status conference was held before his Honour Judge Allan in the District Court. The then prosecutor advised his Honour that her witnesses would not all be available until March 1996, but suggested October 1995 as a convenient month to hear pre-trial applications. His Honour adjourned the status conference until 8 August 1995, and asked counsel for all the accused to file any pre-trial applications before then.
5. On 28 June, an order was made transferring the Information to the Supreme Court under s110 of the Summary Procedure Act, and subsequently I was rostered to hear any pre-trial applications in October, and to preside at the trial expected to last for two months and to commence in March 1996.
6. Subsequently, status conferences were held before me on 8 and 22 August and on 11 September. A number of pre-trial applications under the Supreme Court Criminal Rules had been filed, and I fixed Tuesday, 3rd October for the commencement of legal argument thereon.
7. However, the case then came before me again on 26 September for the purpose of discussing a subpoena that had been issued by one of the accused to the National Crimes Authority. After that discussion, Mr Abbott QC, who appeared for the first time as counsel for Domenic Perre (although I had been informed previously that he was to be briefed) advised me that he was in the process of redrawing his client's pre-trial application. He said:
"We intend to raise ... some issues in relation to the
Controlled Substances Act, the Constitution and what we
would regard as the forum shopping which has been involved
in this case in the laying of these charges of conspiracy in
South Australia in respect of, in essence, offences
committed in the Northern Territory."
8. On 28 September the accused, Constantinos Smyrneos, for whom Mrs Shaw acts, filed an application in the following terms:-
"The accused CONSTANTINOS SMYRNEOS hereby applies to the
Court seeking the making of the following orders:
1. A quashing of the information.
Particulars of the grounds relied upon are as follows:-
The information is bad because it does not disclose an
offence triable in the Courts of South Australia;
2. Alternatively, that further proceedings upon the
information be permanently stayed as an abuse of process.
Grounds:
(i) the conduct alleged in the information does not
disclose any offence justiciable or triable in the Courts
of South Australia or alternatively the Courts of South
Australia have no jurisdiction to try the conduct alleged
and that, in the circumstances, to proceed further with
the information would be an abuse of process.
3. ...".
9. On 29 September, the Director of Public Prosecutions filed a new Information which reads:
"First Count Statement of Offence
Conspiracy To Cultivate Cannabis. (Common Law.)
Particulars of Offence
Saverio Francesco Catanzariti, Rocco Curcio, Christos
Koukouvitakis, Domenic Perre, Francesco Perre, Dimitrios
Poulos, Tony Antonio Romeo, Constantinos Smyrneos, Stavros
Smyrneos and Domenic Vottari between the 1st April, 1992 and
the 30th April, 1993 at Adelaide and other places, conspired
together with Robert John Helps and others to do an unlawful
act at Hidden Valley Station in the Northern Territory,
namely to unlawfully cultivate a commercial quantity of
cannabis, a prohibited plant, contrary to Section 7 of the
Misuse of Drugs Act, 1990 (N.T.).
SAVERIO FRANCESCO CATANZARITI, ROCCO CURCIO, DOMENIC PERRE,
DIMITRIOS POULOS and CONSTANTINOS SMYRNEOS are charged with
the following offences
Second Count Statement of Offence
Conspiracy To Cultivate Cannabis. (Ibid).
Particulars of Offence
Saverio Francesco Catanzariti, Rocco Curcio, Domenic Perre,
Dimitrios Poulos and Constantinos Smyrneos between the 1st
April, 1993 and 22nd August, 1993 at Adelaide and other
places, conspired together with Robert John Helps and others
to do an unlawful act at Hidden Valley Station in the
Northern Territory, namely to unlawfully cultivate a
commercial quantity of cannabis, a prohibited plant,
contrary to Section 7 of the Misuse of Drugs Act, 1990
(N.T.)."
10. The case came on before me again on 3 October. Mr Whittle, counsel for the DPP, announced that he intended to proceed on the new Information. The accused, with the exception of Constantinos and Stavros Smyrneos who were absent, were then arraigned on that Information and pleaded not guilty.
11. Miss Powell then submitted that the filing of the new Information was an abuse of process and should be stayed. She strongly relied on the decision of Rona v District Court of South Australia and Another (1994) 63 SASR 223. The relevant facts were set out by King CJ at p225:
"On 22 July 1992 an Information was laid in the Adelaide
Magistrates Court against the accused charging him with four
counts of false pretences. The charges arose out of the
alleged payment to the accused by four investors of money
for the purpose of obtaining shares in a company, Sy Quest
International Ltd. On 15 February 1993 a further
Information was laid in the Adelaide Magistrates Court
charging the accused with four counts of fraudulent
conversion of the moneys allegedly paid by those persons.
The latter Information was subsequently dismissed for want
of prosecution and on 11 March 1993 the accused was
committed for trial in the District Court on the original
Information for false pretences. On 8 April 1993 the DPP
filed in the District Court an Information containing the
four counts of false pretences.
A status conference was held on 27 April 1993 in accordance
with Pt IV, r6 of the District Court Rules 1992. The DPP
and the accused were represented by counsel. Counsel for
the prosecution, Mr Powell, stated categorically that 'the
counts laid and the nature of the counts will be those that
the Crown will proceed on' although amendments might be
sought as to the detail of the cheques. That was said in
answer to a specific question by the judge as to whether the
Crown was proceeding on the Information as laid. The
conference was adjourned. The status conference resumed on
25 May 1993. Counsel for the defence expressly asked
whether the charges would remain the same with particular
reference to whether they would be false pretences or
fraudulent conversion. The answer of counsel for the DPP
was categorical, 'The charges remain as they are'. The
judge ordered 'the Crown to file and serve any further
statements of witnesses it proposes to rely on at trial, no
later than 12 July 1993 and the Crown is to attend to any
amendment to the Information on or before the same date'.
Her Honour listed the trial for 7 September 1993.
These directions were not complied with. By letter dated 30
July the DPP sent copies of statements of persons as
'potential witnesses in the trial in this matter'. Other
statements were supplied and no amendment was made to the
Information.
On 31 August 1993 the DPP sent to the accused's solicitors a
facsimile copy of a new Information in the District Court
alleging four counts of fraudulent conversion to the same
effect as those contained in the second Information in the
Magistrates Court. On 2 September the accused filed an
application to stay the proceedings on the grounds:
(1) ...
(2) that the filing of the new Information was in breach of
caseflow management principles.
The case was not reached on 7 September as no judge was
available to try it. At a subsequent status conference a
date was set, 8 February 1994, for the hearing of the
application for a stay of proceedings."
12. Judge Lunn made an order imposing a permanent stay on count 4 of the new Information, but refused the application to stay the Information in respect of counts 1, 2 and 3.
13. The Full Court quashed the Judge's order for a permanent stay on count 4, holding that there is no power to stay proceedings simply as a sanction or punishment. The Court ordered that the application for a stay of proceedings be remitted to the District Court to be heard and determined according to law. At p230, King CJ said:
"As the application will, in my judgment, now have to be
determined on its merits in the District Court, it is
important to make the point that the existence of the power
to stay resulting from the abuse of process, does not imply
that the power must be exercised. A judgment has to be made
as to what the interests of justice require. There must be
a balancing process taking into account the interests of
fairness to the accused in having the basis upon which his
trial was to take place adhered to, the integrity of the
case management system and all that it implies for the
efficient and just disposal of criminal business and 'the
community's expectation that persons who are charged with
offences are properly brought to trial': R v Mellifont
(1992) 64 A Crim R 75 at 80."
14. In due course the matter came on again before Judge Lunn, and he stayed all counts on the new Information.
15. Miss Powell argued that the trial of the accused had commenced before me, and that it was abusive of the Court's procedures for the prosecutor to lay a new information alleging a completely different offence so late in the day. She pointed out that the DPP indicated on 24 May that there were complex questions of jurisdiction involved, and that there had been no mention of a new Information at any of the status conferences which are designed to ensure that the matter is ready for trial.
16. Mr Whittle in his submission said that notwithstanding what Mr Abbott had said on 26 September, the first he realised that the actual "jurisdiction" point now being taken was to be taken was when he received on 28 September the application of Constantinos Smyrneos (supra), accompanied by a list of authorities which included such authorities as Board of Trade v Owen and Another (1957) AC 602 and Re Anne Hamilton-Byrne (1995) 1 VR 129. He argued that until then he was entitled to assume that the particular "jurisdiction" question was not an issue. The new Information was consequently filed and served on 29 September. He argued that on the statement of the prosecution witness Robert Helps, of which all accused were aware, the prosecution case had always been that the accused had conspired in South Australia to grow cannabis in the Northern Territory. Mr Whittle said that the first Information involved what he called a rather tortured approach to those facts, and that the new Information merely involved a more direct approach.
17. Having heard argument, I asked Mr Whittle to get instructions (which he did not then have) as to whether he was to file a nolle prosequi on the first Information, and I reserved my ruling on the application for a stay on the ground argued by Miss Powell until the afternoon sitting commenced. Upon resuming, Mr Whittle advised me that he was instructed to enter a nolle prosequi on the first Information, and I said that it would be recorded. Miss Powell then asked me not to accept the nolle prosequi and to order that the proceedings on the first Information be permanently stayed. She referred to the decision of R v Harris and Ors (No 2) (1990) VR 305 (to which she said that she had only been referred over the luncheon adjournment). I intimated that as I had already made an order that the nolle prosequi be recorded, I considered that I was functus officio on that question. I then refused the application for a stay of the new Information on the ground argued, and said I would give some reasons later, which I now do.
18. In my opinion, the circumstances in the case at Bar were quite different to those in Rona. There was no suggestion here that the DPP has failed to comply with directions given at status conferences or anything of that sort. Moreover, there was never any discussion at those conferences about the Information as there was in Rona. I do not overlook the statement of the DPP on 24 May (supra), or the fact that some of the earlier pre-trial applications foreshadowed some jurisdictional argument but, as it seems to me, any such argument was until 28 September focussing on the fact that a substantive offence had not been charged. In my opinion, it was not a proper case for a stay on the ground argued.
19. Mr Abbott QC and Mrs Shaw (with support from other counsel) then addressed me in turn on their respective clients' applications to quash the new Information on the ground that it did not disclose an offence known to the law of South Australia.
20. Section 281(1) of the Criminal Law Consolidation Act provides:
"Every objection to any information for any formal defect
apparent on the face thereof shall be taken by demurrer, or
motion to quash the information, before the jury is
empanelled and not afterwards."
21. Counsel for the DPP and defence counsel both sought to rely on the case of Board of Trade v Owen and Another (1957) AC 602. The facts stated briefly were that an agreement was formed in England to cause, by the use of false pretences, a government department in the Federal Republic of Germany to issue licences for the export of certain metals from Germany by fraudulently representing that the metals would be supplied to, and consumed by, Irish manufacturers, the respondents well knowing that they were in fact to be exported to Czechoslovakia, Poland, Romania and the USSR. The Court of Criminal Appeal quashed the respondents' convictions. Lord Tucker, with whose opinion the other members of the House of Lords agreed on an appeal thereto, held that the agreement was not an indictable conspiracy in England. Lord Tucker stated his conclusion at p634:
"I have reached the conclusion that the decision of the
Court of Criminal Appeal that a conspiracy to commit a crime
abroad is not indictable in this country unless the
contemplated crime is one for which an indictment would lie
here is correct, and from what I have already said it
necessarily follows that a conspiracy of the nature of that
charged ... as proved in evidence - which, in my view, was a
conspiracy to attain a lawful object by unlawful means,
rather than to commit a crime - is not triable in this
country, since the unlawful means and the ultimate object
were both outside the jurisdiction. In so deciding I would,
however, reserve for future consideration the question
whether a conspiracy in this country which is wholly to be
carried out abroad may not be indictable here on proof that
its performance would produce a public mischief in this
country or injure a person here by causing him damage
abroad.
My Lords, for these reasons I would dismiss this appeal."
22. Subsequently in delivering the judgment of the Court of Criminal Appeal in Regina v Cox (1968) 1 WLR 88, Winn LJ said at p91:
"... it is the law of this country as it now stands
(fortunately it is receiving attention by one of the law
reform committees) that there cannot be an indictment laid
in this country for the commission of criminal offences
abroad with the exception of murder and, I think, probably
treason."
23. These cases clearly supported the defence submissions before me, but Mr Whittle sought to derive some support from Lord Tucker's last words of reservation in Board of Trade v Owen and Another. However, the expression "public mischief" was disapproved in the later decision of the House of Lords of DPP v Withers (1975) AC 842 as conducing to uncertainty in the criminal law, (see especially at p861), and Lord Tucker's words were also considered in Attorney-General's Reference (No 1 of 1982) (1983) 1 QB 751. At pp758-759 Lord Lane CJ, delivering the judgment of the Court of Criminal Appeal, said:
"If ... Lord Tucker's limitation to conspiracies entered
into in England were removed, the new test would be
immensely wide. Whenever a fraudulent conspiracy made
abroad and to be carried out abroad sent ripples back to
England washing over and damaging some economic interest
here, an indictment would lie.
We can find no grounds in authority or principle for so
holding. If it is necessary to enlarge the present
jurisdiction, which we think it is not, then that is a
matter for Parliament."
24. I was also referred to the case of E. F. Skewes, F Vyner-Smith and J.S. Schneider (1981) 7 A Crim R 276, a decision of the Victorian Court of Criminal Appeal. The applicants were convicted of conspiring to contravene the provisions of Part II of the Commercial Goods Vehicles Act 1958 (Vic) ("the Act"). (Be it noted that the contravention alleged was not of a South Australian Act but of a Victorian Act.) The Act provided for contributions by transport operators towards the maintenance of public highways in Victoria. Owners of commercial goods vehicles were required to keep accurate daily records of all journeys by such vehicles on public highways in Victoria, and to deliver such records each month to the Transport Regulation Board. The applicants devised a scheme to avoid the operation of the Act. The scheme involved the setting up of companies in South Australia, and the transfer of ownership of commercial goods vehicles to those companies. Thereupon the real owner and operator would continue to operate in Victoria, but would refrain from keeping or furnishing any records to the Transport Regulation Board or paying any road charges. The applicants entered into arrangements of this kind with thirteen transport operators. The applicants were all residents of South Australia, and the scheme was hatched in South Australia. Two of the applicants, however, came to Victoria and sought to solicit Victorian operators to make use of the scheme.
25. The principal judgment was delivered by Anderson J. Young CJ said that he agreed generally in his Honour's conclusions and in the reasons he assigned for reaching those conclusions, but at pp280-281, Young CJ said:
"The next group of grounds argued contained the contention
that the Victorian court had no jurisdiction to try the
applicants for the offence charged because there was no
evidence that anything had occurred in Victoria which made
justiciable here a conspiracy entered into outside Victoria.
In my opinion, however, the Victorian court had jurisdiction
to try the offence charged because the conspiracy alleged
was a conspiracy to procure breaches of Victorian law
implemented in Victoria by the commission of the very
offences the conspirators agreed to procure ... There was
in the present case evidence from which the jury might have
found that the applicants entered into the conspiracy
alleged and there was clearly evidence that persons had been
procured to commit the contraventions in Victoria which it
was alleged the conspiracy was formed to procure ..."
26. At pp287-288, Anderson J said:
"It was the contention of the accused, since all crime is
local and the conspiracy had been hatched in South Australia
and the accused all resided there, that therefore Victorian
courts had no jurisdiction, and substantial authority was
referred to in support of the proposition that all
jurisdiction in relation to crime is local (for example,
McLeod (1891) AC 455; Keyn (1876) 2 ExD 63; Badische Anilin
und Soda Fabrik v Basle Chemical Works (1898) AC 200).
However, the Crown's contention was that the defendants were
amenable to Victorian law for two broad reasons. The
conspiracy alleged and proved, so the Crown contended, was a
conspiracy to commit offences in Victoria against the laws
of Victoria and was implemented in Victoria by the
commission of the offences which the conspirators
contemplated. The Crown approach was accordingly twofold.
In the first place, the conspiracy was a conspiracy to aid,
abet, counsel and procure the commission of offences in
Victoria, and was complete upon the hatching of the
conspiracy even though no act was done by any of the
conspirators in the furtherance of the conspiracy. Had the
hatching occurred in Victoria, courts of this State there
and then would have had jurisdiction to try the
conspirators. The Crown conceded that some nexus with
Victoria was required in the present case, but contended
that such nexus was afforded by the acts of Vyner-Smith and
Eldridge in Victoria in canvassing, as the evidence showed,
for operators in Victoria to adopt the scheme. It would
have been complete, the Crown argued, even though such
solicitation had not been successful. As authority for the
proposition that, even though the agreement constituting the
conspiracy is made outside Victoria, Victorian courts would
have jurisdiction if an act is done in Victoria by one or
more conspirators in furtherance of the conspiracy, the
Crown relied on such cases as Brisac (1803) 4 East 164; 102
ER 792; Kellow (1912) VLR 162; and DPP v Doot (1973) AC 807.
These cases would seem amply to support such a view."
27. At pp289-290, his Honour said:
"The second approach of the Crown to the objection to the
jurisdiction of the court was that, since the allegation
against the accused was that they had conspired to aid,
abet, counsel and procure the Victorian operators to commit
offences against the Commercial Goods Vehicles Act the
accused were principles in the commission of such offences
when such offences were committed in Victoria by their
agents, ie the operators, and so the offence in the
commission of which they were principles was complete when
an operator committed any of the offences which the accused
had conspired to be committed ...
Thus, though jurisdiction would have been given to the
Victorian courts because of the nexus provided by Vyner-Smith
or Eldridge, or both, doing acts in furtherance of the
conspiracy by soliciting operators in Victoria, yet the
Crown was entitled to rely also on the alternative
submission that as aiders, abetters, counsellors or
procurers the accused were principles in the commission of
the offences that the Victorian operators committed by their
breaches of the Act in Victoria ... In effect, in the
present case, the conspiracy is doubly complete and
justiciable in Victoria for two reasons: first, because
Vyner-Smith and Eldridge did acts in Victoria in furtherance
of the conspiracy; secondly, the unlawful acts in Victoria,
the commission of which the accused conspired to procure
were done in Victoria by the various operators. The learned
trial judge, in his charge to the jury clearly, and in my
view correctly, explained the different bases, either one of
which would give jurisdiction to Victorian courts."
28. In my opinion, the case does not support the Director of Public Prosecutions here. The accused were charged with breaches of Victorian law in Victoria arising from a conspiracy hatched in South Australia. There was no question as to the existence of the offence charged.
29. It is necessary also to refer to the important decision of the Supreme Court of Canada in Libman v R (1985) 21 DLR (4th) 174, if only to distinguish it. The accused was committed for trial on a number of counts, including one count of conspiracy to commit fraud arising from a telephone sales solicitation scheme. At the accused's direction, telephone sales personnel telephoned residents of the United States and attempted to induce them to buy shares in companies which were said to be carrying on gold mining in Costa Rica. In addition to the telephone representations, the United States residents received promotional material. The United States residents were directed to send their money to offices operated by the accused's associates in Panama and Costa Rica. The accused then went to locations outside Canada where he met with his associates and received his share of the proceeds, some of which found its way back to Toronto. The inducements were materially false. The count of conspiracy was laid under what was s423(1)(d) of the Criminal Code of Canada which applied to conspiracies to commit criminal offences in Canada (see pp 177-178).
30. Following the accused's committal for trial, he bought an application to quash the committal on the basis that the court had no jurisdiction over the offences. This application was dismissed as were his successive appeals to the Ontario Court of Appeal and to the Supreme Court of Canada. In my opinion, the decision does not assist the Director of Public Prosecution either. It does not deal with a conspiracy to achieve an object which was unlawful in a foreign country, or a conspiracy to commit a crime in a foreign country.
31. The DPP perhaps derived a little more assistance from the case of Mayer v Henderson (1993) 68 A Crim R 155. Mayer applied to the Supreme Court of Tasmania to review an order made by a magistrate dismissing the applicant's plea that "no further proceedings should be had on the complaint" in respect of three counts each alleging a criminal conspiracy between the applicant and Jeffrey Leon Helfenbaum contrary to the Criminal Code (Tas), s297. The conspiracy alleged in each count was to defraud various Victorian banks. The applicant and respondent agreed the following facts for the purposes of the Motion to Review:
"(1) The certified transcript already before the Court.
(2) The conspiracy alleged in each of the three counts of
the complainant, that are the subject of the Motion to
Review, was formed in Tasmania.
(3) The object of the conspiracy in the three counts was to
defraud the Banks named therein in Victoria.
(4) Evidence to be led by the Crown at the committal will
be to the effect that the alleged co-conspirator,
Helfenbaum, sent or caused to be sent through the banking
system cheques, or telegraphic transfers of the funds
represented by the cheques, from Tasmania to be deposited in
the Victorian Banks, Mayer by himself or through agents
operated accounts in those Banks in which credits were so
deposited and withdrew or attempted to withdraw monies
therefrom.
(5) The alleged intent to defraud being that the cheques
were not good and valid orders for the amounts therein,
there being insufficient funds in the accounts against which
they were drawn or to be drawn, and that the transaction of
depositing the cheques was a sham in that Helfenbaum lodged
or caused to be lodged in respect of each of the cheques a
stop-cheque notice.
(6) The only physical or overt acts or facts which took
place following the agreement (necessary to constitute the
conspiracy) done by Mayer were in Victoria not in Tasmania."
32. At p160, Wright J said (in a passage that Mr Whittle relied on):
"It may be said that in the Commonwealth of Australia there
is little reason to limit the prophylactic effect of a
prosecution for conspiracy in one State where the commission
of the substantive crime or proscribed act is to occur in
another part of Australia."
33. At pp161-162, his Honour said:
"I think the present case can be distinguished from Board of
Trade v Owen on the facts. Agreed 'fact' No (4)
acknowledges that the prosecutor will lead evidence '... to
the effect that the alleged co-conspirator, Helfenbaum, sent
or caused to be sent through the banking system cheques, or
telegraphic transfers of the funds represented by the
cheques, from Tasmania to be deposited in the Victorian
Banks ...'.
No suggestion was made by counsel for the applicant that
such evidence would be inadmissible ...
If, therefore, proof is forthcoming that Helfenbaum
performed the acts stated in par (4) of the agreed 'facts'
it will be appreciated that what occurred in Tasmania was
not a 'bare' conspiracy of the kind debated in Board of
Trade v Owen and Re A-G's Reference (No 1 of 1982) but was
one in which one of the significant steps necessary to
enable the successful completion of the alleged cheating or
fraud took place in this State."
34. His Honour held that as it was clear that at least one of the conspirators took steps in Tasmania to effect their joint unlawful purpose, and that therefore the rule in Board of Trade v Owen and Another did not apply. He refused the Motion to Review. In my opinion, the reason given by Wright J for distinguishing Board of Trade v Owen and Another also distinguished the Tasmanian case from the case before me.
35. Mayer v Henderson was not referred to in the decision of the Appeal Division of the Supreme Court of Victoria in Re Anne Hamilton-Byrne and Others, (1995) 1 VR 129. There the accused were arraigned before the County Court upon a presentment containing two counts. Count one alleged a common law offence of conspiracy to defraud, and count two a conspiracy to commit perjury or make a false statutory declaration contrary to the law of New Zealand. The Crown case was that the accused had in Victoria made false declarations pursuant to s11 of the Oaths and Declarations Act 1957 (NZ) that three children had been born in New Zealand to the accused Anne Hamilton-Byrne as triplets, and that all of the children had in fact been born to different women in Victoria.
36. This decision is important here for at least three reasons. First, the court followed the decision of Board of Trade v Owen (supra) and ruled that count one did not disclose an offence known to the law of Victoria. Secondly, Tadgell J (with whom Ormiston and Smith JJ agreed) pointed out that the case of Board of Trade v Owen is "better classified as one dealing not so much with jurisdiction as with indictability" (see p138). Thirdly, the decision highlights a difference between the relevant Victorian legislation and the South Australian Criminal Law Consolidation Act. In 1984, the Victorian legislature had abolished conspiracy at common law (except for conspiracy to defraud), and created an offence of conspiracy to commit an offence. Tadgell J at pp 134-135 set out the relevant parts of ss321 and 321A of the Crimes Act (Victoria), and I quote:
"321. Conspiracy to commit an offence
(1) Subject to this Act, if a person agrees with any other
person or persons that a course of conduct shall be pursued
which will involve the commission of an offence by one or
more of the parties to the agreement, he is guilty of the
indictable offence of conspiracy to commit that offence.
(2) For a person to be guilty under sub-section (1) of
conspiracy to commit a particular offence both he and at
least one other party to the agreement -
(a) must intend that the offence the subject of the
agreement be committed; and
(b) must intend or believe that any fact or circumstance
the existence of which is an element of the offence will
exist at the time when the conduct constituting the offence
is to take place.
...
321A. Agreements to commit offences outside Victoria
(1) The expression 'the commission of an offence' in
section 321(1) extends to the commission of an offence
against a law in force only in a place outside Victoria if,
but only if -
(a) the necessary elements of that offence include elements
which, if present or occurring in Victoria, would constitute
an offence against a law in Victoria; and
(b) one or more of the persons referred to in section
321(1) is or are in Victoria when the agreement referred to
in that sub-section is made. ..."
37. The Court held that count two did charge an offence known to the law of Victoria. It held that s321A(1)(a) of the Victorian Crimes Act, 1958 when read together with s321, envisages that a conspiracy in Victoria to pursue a course of conduct which will involve the commission of an offence against a foreign law is indictable in Victoria if pursuit of the same or a similar course of conduct in Victoria would constitute an offence against the Victorian law, the necessary elements of which Victorian offence are included in the necessary elements of the offence against the foreign law.
38. Mrs Shaw referred me to the following passage in Vol 9 of "The Laws of Australia" published by the Law Book Company Ltd in para 123:
"The unlawful object (of the conspiracy) must be one which
is unlawful under the law of the forum state. This
limitation is imposed under the Code provisions in the
Northern Territory, Queensland, Western Australia and
Tasmania, and by the statutory formula in New South Wales,
South Australia and Victoria. The same limitation applies at
common law."
39. In the event of my rejection of his principal argument based on the reservation of Lord Tucker (supra), Mr Whittle sought to rely on s5c of the Criminal Law Consolidation Act 1935 which he submitted "makes an offence which upon one view would not be an offence". The section reads:
"5c.(1) An offence against the law of the State is
committed if -
(a) all elements necessary to constitute the offence
(disregarding territorial considerations) exist;
and
(b) a territorial nexus exists between the State and at
least one element of the offence.
(2) A territorial nexus exists between the State and an
element of an offence if -
(a) the element is or includes an event occurring in the
State;
or
(b) the element is or includes an event that occurs outside
the State but while the person alleged to have committed the
offence is in the State.
(3) The existence of the territorial nexus required by
subsection (1)(b) (the 'necessary territorial nexus') will
be presumed and the presumption is conclusive unless
rebutted under subsection (4).
(4) If a person charged with an offence disputes the
existence of the necessary territorial nexus, the court will
proceed with the trial of the offence in the usual way and
if at the conclusion of the trial the court or, in the case
of a jury trial, the jury is satisfied, on the balance of
probabilities, that the necessary territorial nexus does not
exist, it must, subject to subsection (5), make or return a
finding to that effect and the charge will be dismissed.
(5) If the court or, in the case of a jury trial, the jury
would, disregarding territorial considerations, find the
person not guilty of the offence (but not on the ground of
insanity), the court or jury must make or return a finding
of not guilty.
(6) The issue of whether the necessary territorial nexus
exists must, if raised before the trial, be reserved for
consideration at the trial.
(7) A power or authority exercisable on reasonable
suspicion that an offence has been committed may be
exercised in the State if the person in whom the power or
authority is vested suspects on reasonable grounds that the
elements necessary to constitute the offence exist (whether
or not that person suspects or has any ground to suspect
that the necessary territorial nexus with the State exists).
(8) This section applies to offences committed before or
after its commencement but does not apply to an offence if -
(a) the law under which the offence is created makes the
place of commission (explicitly or by necessary implication)
an element of the offence;
(b) the law under which the offence is created is a law of
extraterritorial operation and explicitly or by necessary
implication excludes the requirement for a territorial nexus
between the State and an element of the offence;
or
(c) a charge had been laid before the commencement of this
section.
(9) This section is in addition to and does not derogate
from any other basis on which the courts of the State may
exercise criminal jurisdiction.
(10) In this section -
'event' means any act, omission, occurrence, circumstance or
state of affairs (not including intention, knowledge or any
other state of mind):
'State' includes -
(a) the territorial sea adjacent to the State;
and
(b) the sea on the landward side of the territorial sea
that is not within the limits of the State.
(11) Where a person charged with a particular offence could
be found guilty on that charge of some other offence or
offences, that person will, for the purposes of this
section, be taken to be charged with each offence."
40. In 1992, the New South Wales parliament introduced a similar section (Crimes Act s3A), but there are no reported decisions on either that or the South Australian section. It is unnecessary for me here to express an opinion on its precise ambit. It is sufficient for me to say that I do not agree with Mr Whittle's submission thereon. In my opinion, s5c is not an offence creating section. It is only concerned with the determination of whether a South Australian offence has been committed. It does not extend the jurisdiction of this court to include offences against the law of another country, or even, and more relevantly of another State or Territory of the Commonwealth of Australia. The word "offence" must mean a South Australian offence. I have already quoted s321A of the Victorian Crimes Act. Unlike s5c, that provision is an extra territorial one, and to quote from Gilles "The Law of Criminal Conspiracy" 2nd Ed p236, "it is to the opposite effect to the principle affirmed in Board of Trade v Owen and Another". Section 5c does not purport to recognise the laws of the Northern Territory or of anywhere else.
41. Having carefully considered the authorities and the submissions of counsel, I have reached the conclusion that the offences charged are not indictable in South Australia. I do not doubt that South Australia retains the crime of conspiracy at common law and that an agreement to commit a crime is a conspiracy at common law. However, the cultivation of cannabis is not a crime at common law, nor is a conspiracy to cultivate it a crime at common law. Subject to Mr Abbott's argument that s32 of the Controlled SubstancesAct has ousted the former common law crime of conspiracy to breach its provisions (an argument which I very much doubt but reserve for further consideration), the accused could have been charged with conspiracy to breach that section, but they are not so charged. The object of the alleged conspiracies is a breach of Northern Territory law. Even if all the alleged facts occurred within this State, the accused could not be charged here with breaches of the Northern Territory Misuse of Drugs Act. I would merely add that I think Mr Abbott quite rightly conceded that the accused could be charged in the Northern Territory with breaches of that Act.
42. The information is quashed.
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