IN THE COURT OF CRIMINAL APPEAL OF SOUTH AUSTRALIA
PERRY, BLEBY AND MILLHOUSE JJ
CATCHWORDS:
Criminal law - jurisdiction, practice and procedure - jurisdiction - where question of extra-territoriality raised.
Appeal and new trial - new trial - in general and particular grounds - particular grounds - verdict against evidence and weight of evidence
Criminal law - jurisdiction, practice and procedure - jurisdiction - appellants charged with conspiracy to defraud - conspiracy formed outside the jurisdiction - object of the conspiracy was to defraud a company carrying on business in Melbourne but incorporated in South Australia - consideration of whether ownership of the intended victim by the government and hence the public of South Australia is itself sufficient to ground jurisdiction - charges of conspiracy will be justiciable in South Australia if that can be said to aid in the preservation of the Queen's peace here - in determining where the Queen's peace is likely to be affected regard must be had to the principal object of the conspiracy and not the incidental effects - notion of the Queen's peace as being primarily concerned with breaches of the criminal law considered - loss to the public of this State only an incidental consequence of the conspiracy, not its object, and not a threat to the Queen's peace in South Australia - public ownership not sufficient to ground jurisdiction. - Overt act. Scheme depended to a large extent upon the offering of a forged promissory note as valid security - forged facsimile containing terms and conditions of the promissory note sent to the company's solicitors in Adelaide - this was the only act in furtherance of the conspiracy performed in South Australia - consideration of whether the receipt of the facsimile sufficient to confer jurisdiction on South Australian Courts - a conspiracy formed outside South Australia to commit a crime in South Australia is justiciable in this State even in the absence of an overt act performed in this State - information did not alleged whether the subject matter of the conspiracy involved the commission of a criminal offence - reasonably clear that if scheme was brought to fruition the elements of the offence of obtaining money by false pretences would have been establishedSending of the facsimile was an element of the offence which had occurred in this State - was intended to have an effect here - had the capacity to affect the maintenance of the Queen's peace - jurisdiction properly lay - application of s5C of the Criminal Law Consolidation Act would yield the same result. - Consideration of whether in any event the fact that the intended victim was a company resident in South Australia was sufficient to establish jurisdiction - observations as to the peculiarity of the crime of conspiracy to defraud - residence sufficient to establish jurisdiction - observations as to the procedure followed by the trial judge in determining the jurisdictional question. Criminal Law Consolidation Act 1935 ss5C,195,270(2); State Government Insurance Commission Act 1970 , referred to. Board of Trade v Owen [1957] AC
602; Treacy v Director of Public Prosecutions [1971] AC 537; Re Hamilton-Byrne [1995] 1 VR 129; Attorney-General's Reference (No 1 of 1982) [1983] QB 751; R v Catanzariti (1995) 65 SASR 201; R v Isaac (Unreported CCA (NSW) 5 February 1996); DPP v Doot [1973] AC 807; R v Skewes (1981) 7 ACR 276; Liangsiriprasert v Government of the U.S.A. [1991] 1 AC 225; R v Sansom and Others [1991] 2 QB
130; R v Fan (1991) 24 NSWLR 60; R v Baxter [1972] 1 QB 1; DPP v Stonehouse [1978] AC 55; Thomson v R (1989) 169 CLR 1; Ward v R (1980) 142 CLR 308, applied. Mayer v Henderson (1993) 68 ACR 155, distinguished. Libman v R (1985) 21 CCC (3d) 206; R v Douglas (1989) 51 CCC (3d) 129, not followed. Scott v Metropolitan Police Commissioner [1975] AC 819; R v Welham (1960) 44 Cr App R
124; Macleod v The Attorney-General for New South Wales [1891] AC 455; R v Hansford (1974) 8 SASR 164; Secretary of State for Trade v Markus [1975] 1 All ER 598; Clements v HM Advocate [1991] SLT 388, discussed. R v Howes (1971) 2 SASR 293, considered.
HEARING:
ADELAIDE, 18-19 August 1997 (hearing), 29 October 1997 (decision)
#DATE 29:10:1997
#ADD 3:11:1997
APPEARANCES
Appellant Winfield:
Counsel: Mr M Gray QC with Mr D Stokes
Solicitors: David Stokes & Associates
Appellant Lipohar:
Counsel: Mr M Barnett
Solicitors: David Stokes & Associates
Respondent:
Counsel: Mr M Boylan with Mr M Hinton
Solicitors: DPP (SA)
ORDER: appeals dismissed.
PERRY J
The appellants appeal against their conviction on a joint charge of conspiracy to defraud.
The trial was heard by a judge sitting alone without a jury. The information alleged that the appellants, at Adelaide and other places, conspired with two other men to defraud Collins Street Properties Pty Ltd ("Collins Street Properties") of about $6.5 million. The fraud was alleged to be the making of false representations that an Indonesian company, which the appellants purported to represent, intended to comply with a lease agreement which they were negotiating with Collins Street Properties, and that a Krung Thai Bank promissory note in the sum of US$10 million, to be paid over as security, was a good and valuable negotiable instrument.
Collins Street Properties is a South Australian company. The proposed lease related to a building which it owned at 333 Collins Street, Melbourne.
The conspiracy was entered into during the course of dealings in Victoria and Queensland. With one exception, which I will come to, all of the relevant acts which occurred during the working out of the conspiracy occurred outside the State of South Australia.
I do not pause to refer to other relevant circumstances which are set out in the other judgments.
The appeal raises the question whether a conspiracy to defraud entered into outside the State of South Australia may successfully be prosecuted in this State.
Jurisdiction
After the election by the appellants for trial by judge alone, they applied for an order quashing the information, or alternatively, for a permanent stay, on the ground, inter alia, that it did not disclose an offence triable in the courts of South Australia. With the consent of the parties, the learned trial judge was presented with no less than seven volumes of declarations and eight volumes of exhibits, with a request that he read those documents for the purpose of determining the application.
Having read through all of that material, by reasons published on 3 November 1995, the learned trial judge held that the charge was "justiciable" in South Australia. Accordingly, he dismissed the applications for orders quashing or staying the information.
The learned trial judge then proceeded with the trial, after which he delivered further reasons to support the entry of a guilty verdict against each of the appellants.
With respect to the learned trial judge, I do not think that it was right to determine the so-called jurisdiction question in that way.
The information alleged, inter alia, that the appellants (together with others) "between 1 November 1991 and 7 March 1992 at Adelaide and other places conspired together ......". The Statement of Offence alleged a conspiracy to defraud at common law.
This Court unquestionably has jurisdiction to try an information alleging an offence against the criminal law of South Australia. Indeed, its criminal jurisdiction is confined to trying offences against the law of South Australia as opposed to offences against the law of any other place. See Thompson per Brennan J (at 22):
"Although the locality of an element of the offence charged may affect the power to convict and punish, the jurisdiction of the court to hear and determine the charge depends on what the indictment charges. .....The judge is concerned to ascertain only whether the indictment charges an offence against the criminal law of the forum. When an indictment charges an offence as having been committed against the criminal law of the forum so that the court has jurisdiction to hear and determine on a plea of not guilty whether the offence was in fact committed in contravention of that law, and when liability to conviction for an offence against that law depends on the locality of an offence, locality is a fact for the jury to determine."
So the appropriate course for the learned trial judge should have been to have ruled at the outset that, on the face of the information and without reference to the large volume of material which he was given, there was jurisdiction for him to enter upon the trial.
The real question was whether "the facts alleged and proved" against the appellants constituted an offence against the law of South Australia. If the learned trial judge had been sitting with a jury, this would have been a question for the jury to consider at the end of the trial.
However, given that he was sitting as a judge alone, without a jury, I do not think that the manner in which the learned trial judge went about determining the so-called question of jurisdiction caused any injustice to the appellants. The findings of fact which he pronounced at the end of the trial did not differ in any relevant respect from the tentative findings which he had pronounced before the trial commenced, upon the basis of which he held the charge to be justiciable in South Australia.
The relevant ultimate findings of fact made by the learned trial judge have not been placed under challenge on the appeal. So that the question for this Court is whether, on the basis of those findings, the prosecution proved an offence against the law of this State.
Conspiracies hatched outside the jurisdiction
High authority has emphasised again and again the essentially territorial nature of the criminal law. See, for example, the remarks of Deane J in Thompson:
"... it is a general thesis of the common law and an incident of the doctrine of sovereignty under international law that crime is essentially local or domestic ...."
The practical application of the view that jurisdiction to try an offence depends upon proof that it was committed within the jurisdiction, in circumstances where the commission of a crime is the culmination of a series of acts done or occurring at different places over a period of time, admits of no little difficulty. In an endeavour to overcome the difficulty, various theories have been propounded, such as those described by Glanville Williams as the "initiatory theory" and the "terminatory theory".
Conspiracy is an agreement to do an unlawful act, or a lawful act by unlawful means. The agreement itself constitutes the offence. The peculiar characteristics of the crime of conspiracy are apt to bring the problems associated with the territorial aspects of the crime into sharp focus.
The agreement may be reached between persons who are in different jurisdictions at the time. Even if that is not so, the conspirators may agree that the act is to be carried out in another jurisdiction. In an age of computerised communication, the situation may be even more complicated.
The starting point for most modern discussions of the jurisdictional aspects of criminal conspiracy is the decision of the House of Lords in The Board of Trade v Owen and Anor. That case concerned a conspiracy entered into in London to commit a crime abroad, namely, to defraud an export control department of the Federal Republic of Germany. The House of Lords held that a conspiracy to commit a crime abroad was not indictable in England unless the contemplated crime was one for which an indictment would lie in England.
The judgment of Lord Tucker, with whom the other members of the court agreed, contained an important reservation:
".... 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 on proof that its performance would produce a public mischief in this country or injure a person here by causing him damage abroad."
A situation which was the converse of Owen, namely, a conspiracy abroad to commit a crime in England, was considered by the House of Lords in DPP v Doot and Ors. In that case, a conspiracy hatched in either Belgium or Morocco involved importing cannabis into the United States via England. The trial judge overruled the submission that the court had no jurisdiction to try the conspirators. The Court of Appeal quashed the convictions, which were restored by the House of Lords.
For many years, indeed, since Brisac, the courts in England had held that "overt acts" done within the jurisdiction was sufficient to confer jurisdiction to prosecute, even if initially the conspiratorial agreement was entered into outside of the jurisdiction. See, for example, Russell on Crime:
"It would, therefore, seem that if there was a conspiracy on land abroad, a jury might try it at any place in England where an overt act in pursuance of it was done."
In Doot this approach was rationalised on the footing that evidence of an overt act in England was evidence from which it might properly be deduced that the conspiracy, being a continuing offence, had been "continued" in England. During the course of his judgment, Lord Wilberforce observed:
"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. ......... Could it be said, with any plausibility, that if the conclusion or a possible conclusion to be drawn from overt acts in England was that there was a conspiracy, entered into abroad, a charge of conspiracy would not lie? ............. A legal principle which would enable concerting law breakers to escape a conspiracy charge by crossing the Channel before making their agreement or to bring forward arguments, which we know can be subtle enough, as to the location of agreements, or, conversely, which would encourage the prosecution into allegation or fiction of a renewed agreement in this country, all this with no compensating merit, is not one which I could endorse. In addition to these considerations, there is substantial authority, both English and American, that jurisdiction exists to try in our courts conspiracies entered into abroad but implemented here."
Lord Wilberforce added the rider:
"I would add that the further question whether a conspiracy formed abroad to do an illegal act in England, but not actually implemented here, could be tried in the courts of this country is not before us and I express no opinion on it."
Subsequent authorities address that question. They establish that a conspiracy hatched abroad to commit a criminal act within the forum is actionable even if there is no "overt act" performed within the jurisdiction.
In Stonehouse, the charge was that the defendant had attempted to obtain in England property by deception, namely the payment on a life insurance policy, by fabricating the appearance of his death by drowning abroad. The House of Lords held that to found jurisdiction it was not "necessary to prove that something had been actually caused to happen in England by the acts done" abroad. The reasoning would appear to be applicable to other inchoate offences. See per Lord Diplock:
"Once it is appreciated that territorial jurisdiction over a "result-crime" does not depend upon acts done by the offender in England but on consequences which he causes to occur in England, I see no ground for holding that an attempt to commit a crime which, if the attempt succeeded, would be justiciable in England does not also fall within the jurisdiction of the English courts, notwithstanding that the physical acts intended to produce the proscribed consequences in England were all of them done abroad."
The Privy Council addressed the question in Somchai Liangsiriprasert v Government of the United States of America and Anor. In that case, the Board held that a common law conspiracy to traffic in a dangerous drug in Hong Kong entered into in Thailand could be tried in Hong Kong without any act pursuant to the conspiracy being done in Hong Kong.
In the course of his judgment, Lord Griffiths, giving the advice of the Board, observed:
"But why should an overt act be necessary to found jurisdiction? In the case of conspiracy in England the crime is complete once the agreement is made and no further overt act need be proved as an ingredient of the crime. The only purpose of looking for an overt act in England in the case of a conspiracy entered into abroad can be to establish the link between the conspiracy and England or possibly to show the conspiracy is continuing. But if this can be established by other evidence, for example the taping of conversations between the conspirators showing a firm agreement to commit the crime at some future date, it defeats the preventative purpose of the crime of conspiracy to have to wait until some overt act is performed in pursuance of the conspiracy."
He went on to say:
"Unfortunately in this century crime has ceased to be largely local in origin and effect. Crime is now established on an international scale and the common law must face this new reality. Their Lordships can find nothing in precedent, comity or good sense that should inhibit the common law from regarding as justiciable in England inchoate crimes committed abroad which are intended to result in the commission of criminal offences in England."
Liangsiriprasert was applied in Sansom and Ors. That case concerned a conspiracy to evade the prohibition on the importation of a controlled drug. It was alleged that the defendants had entered into an agreement abroad to bring a quantity of cannabis from Morocco to England. It was held by the Court of Appeal that the conspiracy could be prosecuted in England, even where there was no proof of any overt act pursuant to the conspiracy having been committed in England.
Liangsiriprasert has been considered in Australia: see, for example, the decision of the Court of Criminal Appeal of the Supreme Court of New South Wales in Fan. Conspiracy to import prohibited imports into Australia is a statutory offence under s233B(1)(cb) of the Customs Act 1901 (Cth). The point decided in Fan is that on a proper construction of the statute, it is not limited to conspiracies committed in Australia. In the course of so deciding, Gleeson CJ, with whose judgment Loveday and Sharp JJ agreed, cited with approval the passage from the advice of the Board in Liangsiriprasert to which I have referred.
In Re Hamilton-Byrne and Ors, Tadgell J, with whom Ormiston and Smith JJ agreed, after referring to Doot, went on to say
"In the case of Liangsiriprasert the Judicial Committee took the extra step to say that a conspiracy entered into abroad to commit a crime within the jurisdiction (Hong Kong) is indictable within the jurisdiction whether or not any overt act in furtherance of the conspiracy had been done there. A justification was that the crime of conspiracy is designed to intercept contemplated crimes intended to be committed within the jurisdiction to the detriment of society within the jurisdiction."
Later he observed:
"Perhaps the cardinal reason for the preservation in Victoria of the common law offence of conspiracy to defraud is that it enables planned substantive offences to be intercepted in aid of the preservation of the Queen's peace. There is therefore good reason for this court to confine the offence to cases in which the Queen's peace - the good of society - is threatened within Victoria."
Secretary of State for Trade v Markus concerned an international swindle known as Agri-Fund. Subscribers in West Germany were induced by salesmen operating there to forward application forms, with cheques for the necessary payment, to the fund's office in London. The defendant was a director of the Panamanian corporation which managed the fund. He was charged under the Prevention of Fraud (Investments) Act 1958 with "conniving" at the "fraudulent inducement" of the West German residents who subscribed.
In the course of his opinion, Lord Diplock (with whom Lords Wilberforce, Kilbrandon and Salmon agreed) said:
"The offences with which the appellant was charged were 'result-crimes' of the same general nature as the offence of obtaining goods on credit by false pretences which was the subject of the charge in R v Ellis. That case is well-established authority for the proposition that, in the case of what is a result crime in English law, the offence is committed in England and justiciable by an English court if any part of the proscribed result takes place in England."
Clements v HM Advocate involved an offence being concerned in the supplying of a controlled drug. The defence was that the Scottish courts did not have jurisdiction, as the only acts proven against the accused all occurred in London. After expressing the view that what he described as "territorial limitation as between the different jurisdictions within the United Kingdom" depended on constitutional practice, not on international comity, the Lord Justice-General, Lord Hope, observed:
"But for the purposes of the present case it is, I think, sufficient to look only to the situation within the United Kingdom and to ask why the courts of one part of it should be denied jurisdiction if the activities of persons elsewhere in the United Kingdom are seen to have their harmful effects in that part."
Hansford concerned a charge of fraudulent conversion of share certificates. No act of the defendant took place in South Australia. However, he directed the Strathmore, Victoria, branch of the National Bank to transmit money representing the proceeds of the sale of the share certificates to the Adelaide branch of the bank. In the course of his judgment Wells J said:
"The true basis, in my opinion, for the conclusion that acts performed or taking place partly in South Australia and partly outside may be governed by South Australian laws is that it is proper for them to be so governed when they constitute behaviour that affects, and is clearly linked with, the peace, welfare and good government of the State."
To summarise, the line of authority to which I have referred supports the proposition that the common law offence of conspiracy comprehends an agreement entered into outside the jurisdiction to commit a crime within the jurisdiction, even though no overt act within the jurisdiction is proved. Furthermore, although the point is not expressly adverted to in the cases, given that a conspiracy may take the form of an agreement to do a lawful act by unlawful means, the offence must be taken to comprehend as well the situation where the harm, in the sense of the consequences of the "lawful" act, would, if the unlawful means were carried into effect, be suffered within the jurisdiction.
It might be argued that if the only occurrence within the jurisdiction is a lawful act, and the conduct constituting unlawful means is committed out of the jurisdiction, there is less reason to recognise the conspiracy as a crime against the forum State.
Here, if the conspiracy had been carried out, the ultimate effect of the payment which the fraud was designed to secure would have been felt in South Australia, by whatever means the payment was to be made. In that sense, it might be difficult to isolate an unlawful act occurring within the State of South Australia.
But the law of criminal conspiracy focuses on the agreement, which may never proceed beyond the minds of the conspirators. As the cases demonstrate, there may be a criminal conspiracy without an "overt act" occurring anywhere.
It follows that to focus on whatever act occurs within the forum State, and to attempt to characterise it in terms of its intrinsic criminality, is to have regard to a circumstances which may be irrelevant to proof of the offence. Of course, evidence of an overt act, whether occurring within or outside the forum State, may be evidence from which the existence of the conspiracy may be deducted. But it is not an item of evidence which goes to an element, proof of which is necessary to sustain the charge.
The analysis which I have offered is consistent with the view, often espoused in the authorities, that the juristic basis underlying the law of criminal conspiracy, and for that matter other inchoate crimes, is to "nip in the bud" conduct which, if unchecked, might result in a substantive crime or civil wrong.
If that is the underlying rationale of conspiracy, there would appear to be no good reason why, in a Federation of States such as the Commonwealth of Australia, the ambit of the crime of conspiracy at common law should not extend to encompass a conspiracy hatched in another State or Territory, when the forum State or its citizens, stand to be the ultimate victims of it.
I add that I do not see that it is at all inconsistent with the view which I have just expressed that there may be more than one jurisdiction in which a given crime of conspiracy may be prosecuted. Where an agreement is reached, and acts which are an expression of the agreement are performed in different jurisdictions, a crime against the law of more than one jurisdiction may have been committed.
I do not think that in such circumstances, there is any question of "comity".
While in Thompson (supra) the court was considering an offence created by statute, the remarks of Deane J in that case in the following passage would nonetheless appear apposite:
"The construction of an offence-creating statute is affected by international comity which requires the courts of each state to respect the sovereignty of others. Where a statute creates an offence in order to suppress the harmful consequences of acts or omissions - a 'result-crime' rather than a 'conduct-crime' in the terminology discussed by Lord Diplock in Treacy - comity does not require the courts of the forum to abstain from punishing breaches of the statute when the harmful consequences occur within the territory of the forum even if the act which causes those consequences is done outside: Director of Public Prosecutions v Stonehouse. "
Here, the target of the conspiracy was a South Australian company, Collins Street Properties. If the conspiracy had been successfully carried out, that company would have been induced to pay about $6.5 million to the appellants as a result of their fraudulent representations. I do not think it matters whether one speaks in terms of "harm", "public mischief", disturbance of the "Queen's peace", the "good of society", or even "peace, welfare and good government". It seems to me that if the impact of the substantive offence would have been felt in South Australia, in the sense that the resulting loss would have been suffered in this State, the inchoate offence constituted by the agreement was a breach of South Australian law, that is, the common law offence of conspiracy to defraud.
The fact that the company was carrying on business at the time in Victoria, in the sense that it was offering a lease of a building in Melbourne, is not a circumstance which, in my view, detracts from the opinion which I have just expressed.
For these reasons, in my opinion, the learned trial judge correctly dismissed the application to quash or stay the indictment, and (given the facts as found by him) correctly held that the charge was proved.
The facts of this case do not give rise to the need to address the interesting question whether Owen v Board of Trade (supra) should be followed in Australia, at least as between the States and Territories of the Commonwealth. Quite apart from considerations such as the full faith and credit provisions of the Commonwealth Constitution, it is at least arguable that, given the interest of all States and Territories in preventing the commission of crimes within any other State or Territory of the Commonwealth, judges interpreting the common law in Australia should be prepared to take the leap which the House of Lords felt unable to take in Owen v Board of Trade. But that is a question best left for decision by the High Court.
Having regard to the conclusion which I have reached, it is unnecessary to deal with the arguments put with respect to s5(c) of the Criminal LawConsolidation Act. However, I agree with Millhouse J that it is doubtful that the section assists the Crown in this case.
I have not so far referred to the facsimile message sent to Mr McKenzie in South Australia referred to in the reasons of Millhouse J. As will have been seen, on the view of the law which I have reached, there is no necessity for the proof of any overt act within South Australia for the prosecution to succeed. If, on the other hand, there was a need for the proof of an overt act, the fax was a not insignificant step in the implementation of the conspiracy, and would properly be characterised as an overt act, within the sense in which those words have been used in the cases.
The other grounds of appeal
I am in substantial agreement with the reasons expressed by Millhouse J with respect to the other grounds of appeal against conviction, and the appeals against sentence.
At the time the appeals were argued, I entertained some concern at the soundness of the finding of guilt against Mr Lipohar. It seemed to me that the Crown might well have failed to establish beyond reasonable doubt that he was a co-conspirator, as opposed to being simply an agent, albeit a willing agent, used by the other conspirators during the course of the conspiracy.
On reflection, I have reached the view that the findings made by the learned trial judge as to the circumstances of Mr Lipohar's involvement, coupled with his absence from the witness box, were sufficient to support the conclusion reached by the learned trial judge.
I would dismiss the appeals.
BLEBY J
Introduction
The appellants appeal against their conviction and sentence after trial by judge alone.
The appellants and Ian David Chandler were charged on information with:
"Statement of Offence
Conspiracy to Defraud. (Common Law and Section 270(2) of the Criminal LawConsolidation Act, 1935.)
Particulars of Offence
Mark Jeffrey Winfield, Ian David Chandler and Edward Lipohar between the 1st November, 1991 and the 7th March, 1992 at Adelaide and other places, conspired together and with Roosevelt Tan and Jack Samardzija to defraud Collins Street Properties Pty Ltd of an incentive payment in the sum of about $6,500,000 by falsely representing that P T Mecosin (Australia) Ltd was an authorised representative of P T Mecosin Indonesia and that P T Mecosin (Australia) Ltd intended to comply with the terms of a lease agreement in relation to part of the property situated at 333 Collins Street, Melbourne, Victoria and that a Krung Thai Bank promissory note of an alleged value of US$10,000,000 proffered as security was a good and valid negotiable instrument."
Prior to the trial commencing, the learned trial judge heard a number of applications in relation to the conduct of the trial, including an application for dismissal of the information on the ground that the Supreme Court lacked jurisdiction to hear the matter. For that purpose, the learned trial judge had before him the information and a large volume of declarations and exhibits to which, with the consent of counsel for all parties, he had regard for the purpose of considering the various applications. The application to quash the information was dismissed on 3 November 1995 (see R v Winfield, Chandler and Lipohar (1995) 65 SASR 121). The trial eventually proceeded by judge alone, resulting in the conviction of the present appellants. Chandler was acquitted at the trial.
The Facts
For present purposes a much abbreviated summary of the facts is all that is necessary. Collins Street Properties Pty Ltd ("the company") was the owner of a large modern office building situated at 333 Collins Street, Melbourne in the State of Victoria. The company was incorporated in South Australia, where its registered office was also situated. The principal Executive Officer, the joint Secretaries and four of the six directors of the company were resident in South Australia. Two directors were resident in New South Wales. The company had only issued two fully paid $1 shares which were beneficially owned by SGIC Pty Ltd, also incorporated in South Australia and having its registered office in South Australia. It had the same directors and secretaries as the company. The beneficial owner of the issued capital of SGIC Pty Ltd was State Government Insurance Commission (SGIC) which was a statutory body corporate, incorporated under the State Government Insurance Commission Act 1970. Under that Act, SGIC was subject to the control and direction of the Government of South Australia through the relevant Minister. SGIC consisted of five members appointed by the Governor of South Australia, and by virtue of s14 of the State Government Insurance Commission Act, all real and personal property of SGIC was held by the Commission for and on behalf of the Crown in the right of the State of South Australia. It therefore followed that the shares in the company were ultimately similarly held.
The building in Collins Street was a relatively new building with relatively few tenants. At the time in question there was a surplus of good quality office space in Melbourne, and landlords were offering inducements to potential tenants by way of "rent holidays", paying the cost of a tenant's fit-out, and in some cases paying a cash inducement to a potential tenant in order to attract tenants.
The company had appointed a Mr Apps as Manager of the building and Baillieu Knight Frank in Melbourne was the company's letting agent for the building.
The appellant Winfield was a real estate agent. He and the accused Chandler were residents of Queensland. The appellant Lipohar was a resident of Victoria. P T Mecosin Indonesia was a company incorporated in Indonesia, carrying on business in Jakarta. It manufactured and distributed pharmaceutical and therapeutic products. It was a family owned company. One of its employees, the alleged co-conspirator Roosevelt Tan, who worked in Indonesia, was a close friend of one of the directors. However, he was not authorised to represent the company.
P T Mecosin (Australia) Ltd was a company which, according to its memorandum and articles of association, was substantially controlled by P T Mecosin Indonesia. In fact, however, it was not. It was a company which had been incorporated in Queensland at the instigation of a Mr Samardzija, another of the alleged conspirators and a business associate of the appellant Winfield. The memorandum of association contained an untrue assertion that the Indonesian company was a subscriber and shareholder. In fact, its seal and other signatures on the memorandum had been forged.
Through the agency of the accused Chandler, Baillieu Knight Frank was approached in November 1991, initially on behalf of an undisclosed tenant, seeking to negotiate the lease of a whole floor of the building. He proposed a twelve year lease, with one year rent-free and a cash incentive equivalent to three years' rent, with the fit-out to be paid for by the landlord. Performance of the lease was to be secured by a mortgage over some undisclosed commercial Melbourne CDB property. Negotiations continued, and the proposed tenant was revealed as the Mecosin group, intending to commence business in Australia. Negotiations continued with the letting agent, and included the appellant Winfield, who had also been involved in the formation of Mecosin Australia Pty Ltd. Samardzija was also involved in the negotiations. A further proposal was put to the agent in writing on 21 January 1992. This included an offer of security for the cash incentives in the form of a bank promissory note issued by the lessee's bank. By this time, it seems that Winfield and Samardzija were aware of the identity of the owner of the building and of the ultimate ownership of the company by SGIC. Indeed, Baillieu Knight Frank had made it clear that any proposals would have to be subject to the approval of SGIC.
There was some disquiet expressed on behalf of those supposedly negotiating for the Mecosin group about the time that negotiations were taking. Mr Apps, the Manager of the building then began dealing directly with the appellant Winfield, and showed the appellant Lipohar around the building, supposedly to enable him to prepare a report about the property for Mecosin. On 11 February 1992 Winfield purported to accept a final offer of SGIC for the lease of the property (including a cash incentive of $6.5 million), and on 28 February 1992 SGIC approved the transaction. A meeting in Brisbane was arranged between representatives of SGIC - Mr Rehn from Adelaide and Mr Apps, the building Manager, from Melbourne - and representatives of Mecosin Australia. That meeting took place on 5 March 1992. There was discussion about the proposed promissory note, the appellant Winfield informing the SGIC representatives that the Krung Thai Bank was Mecosin Indonesia's banker, and was the bank that would be supplying the promissory note for $US10 million by way of security. On the same day a document was faxed to the company's solicitors in Adelaide signed by a Miss Nutcharee, purporting to be sent by the Krung Thai Bank, confirming that upon instructions from P T Mecosin Indonesia, it was issuing a promissory note of the required amount, and setting out its terms and conditions. Miss Nutcharee was not in fact employed by the Krung Thai Bank, and it appeared that the facsimile had been sent from a public facsimile machine in Thailand. It was at no stage authorised by the bank. On the same day it was publicly announced through Reuters newsagency that Australian Police had uncovered an international fraud in Adelaide relating to forged promissory notes on the Krung Thai Bank with a face value of approximately $14 million. By letter dated 6 March 1992 the appellant Winfield wrote to Mr Apps in Melbourne withdrawing the offer to lease the building space, owing to an alleged change of direction by Mecosin Indonesia. Accordingly, the plan to defraud the company was never brought to fruition.
Several things need to be noted about those facts. All the acts performed by or at the instigation of the conspirators in furtherance of the conspiracy were conducted either in Queensland, Victoria, Indonesia or Thailand. With the one exception of the facsimile sent to the company's solicitors in Adelaide, all contact with the company was through its agents in Victoria, who in turn dealt with the company's principals in Adelaide. The decision to agree to the lease proposal was made in Adelaide. The building in respect of which the defrauding was to take place was located in Victoria. It is not possible to tell where the defrauding, if it had occurred, would have taken place. Mr Jones, the former General Manager of Finance at SGIC said that the company's continuing operation was "supported by, ultimately, SGIC", and it depended for its financial support upon its shareholders and those who stood behind the shareholders, namely SGIC. He said in cross-examination that Westpac Bank was the major funds provider to the company through a branch in Melbourne. One could perhaps infer, but it would be little more than an educated guess because there was no evidence on the topic, that the cheque might have been drawn on a Melbourne bank account and handed over in Melbourne. On the other hand, the company had instructed solicitors in Adelaide who were preparing the lease. It may possibly have happened there.
Conspiracy to Defraud
It is to be noted that the information alleged common law conspiracy to defraud. The allegation was that "at Adelaide and other places" the appellants conspired with others to defraud the company of a large amount of money by falsely representing three facts.
As the learned author of Gillies: "The Law of Criminal Conspiracy" (2nd Edition) says in his Introduction at p1:
"At the present time, the common law offence of conspiracy consists in an agreement between two or more persons for the effectuation of one or more acts whose nature is such that at common law each of them renders an agreement for its effectuation criminal... The crime does not consist in any of the overt acts which may be done by the conspirators pursuant to it. In practice, however, nearly all conspiracies which come to be prosecuted have been transacted, in part or in whole, and the prosecution will generally seek to demonstrate their content (and the identity of the parties to them) very largely by reference to these overt acts; ie, they are relied upon as proving, inferentially, a preconceived and continuing consensus between the defendants who are responsible for them."
The essence of the crime is an agreement, usually to perform an unlawful act, or to perform a lawful act by unlawful means, although with the common law crime of conspiracy to defraud, there may not even by an element of illegality in the act intended to be performed.
Scott v Metropolitan Police Commissioner [1975] AC 819 established that common law conspiracy to defraud was not even limited to an agreement to deceive the intended victim and thereby to defraud him. The House of Lords identified two categories of conspiracy to defraud. Viscount Dilhorne, who delivered the leading judgment, said, at p840:
"[I]n my opinion it is clearly the law that an agreement by two or more by dishonesty to deprive a person of something which is his or to which he is or would be or might be entitled and an agreement by two or more by dishonesty to injure some proprietary right of his, suffices to constitute the offence of conspiracy to defraud."
In the same vein Lord Diplock said (at p841):
"Where the intended victim of a 'conspiracy to defraud' is a private individual the purpose of the conspirators must be to cause the victim economic loss by depriving him of some property or right, corporeal or incorporeal, to which he is or would or might become entitled. The intended means by which the purpose is to be achieved must be dishonest. They need not involve fraudulent misrepresentation such as is needed to constitute the civil tort of deceit. Dishonesty of any kind is enough."
The second category was identified also by Lord Diplock at 841:
"Where the intended victim of a 'conspiracy to defraud' is a person performing public duties as distinct from a private individual it is sufficient if the purpose is to cause him to act contrary to his public duty, and the intended means of achieving this purpose are dishonest. The purpose need not involve causing economic loss to anyone."
An example of the second type is Board of Trade v Owen [1957] AC 602, a case to which I will need to return. That was a case where a conspiracy was hatched in the United Kingdom to procure from the German government an export licence by making false representations in Germany. It was held not to be indictable in the United Kingdom, but Lord Tucker who gave the principal judgment, having held that if the acts conspired to be done and the objects to be achieved were in the UK, the allegation would have disclosed a conspiracy said (at p622):
"It is a conspiracy by unlawful means, viz., by making representations known to be false, to procure from a department of government an export licence which, but for such representations, could not have been lawfully obtained. It is an example of a conspiracy by unlawful means to achieve an object in itself lawful, i.e., the issue of an export licence."
It is also helpful to refer generally to what Lord Radcliffe said in R v Welham (1960) 44 Cr App R 124 at 141-143: "Now I think that there are one or two things that can be said with confidence about the meaning of this word 'defraud'. It requires a person as its object: that is, defrauding involves doing something to someone. Although in the nature of things it is almost invariably associated with the obtaining of an advantage for the person who commits the fraud, it is the effect upon the person who is the object of the fraud that ultimately determines its meaning. This is nonetheless true because since the middle of the last century the law has not required an indictment to specify the person intended to be defrauded or to prove intent to defraud a particular person.
Secondly, popular speech does not give, and I do not think ever has given, any sure guide as to the limits of what is meant by 'to defraud'. It may mean to cheat someone. It may mean to practise a fraud upon someone. It may mean to deprive someone by deceit of something which is regarded as belonging to him or, though not belonging to him, as due to him or his right. It passes easily into metaphor, as does so much of the English natural speech. Murray's New English Dictionary instances such usages as defrauding a man of his due praise or his hopes. Rudyard Kipling in the First World War wrote of our 'angry and defrauded young'. There is nothing in any of this that suggests that to defraud is in ordinary speech confined to the idea of depriving a man by deceit of some economic advantage or inflicting upon him some economic loss.
Has the law ever so confined it? In my opinion, there is no warrant for saying that it has. What it has looked for in considering the effect of cheating upon another person and so in defining the criminal intent is the prejudice of that person: what Blackstone (4 Commentaries 245) called 'to the prejudice of another's right.' East's Pleas of the Crown (1803) Vol. II, pp. 852-854, makes the same point in the chapter on Forgery: 'in all cases of forgery, properly so called, it is immaterial whether any person be actually injured or not, provided any may be prejudiced by it.'
Of course, as I have said, in ninety-nine cases out of a hundred the intent to deceive one person to his prejudice merely connotes the deceiver's intention of obtaining an advantage for himself by inflicting a corresponding loss upon the person deceived. In all such cases the economic explanation is sufficient; but in that special line of cases where the person deceived is a public authority or a person holding a public office, deceit may secure an advantage for the deceiver without causing anything that can fairly be called either a pecuniary or an economic injury to the person deceived. If there could be no intent to defraud in the eyes of the law without an intent to inflict a pecuniary or economic injury, such cases as these could not have been punished as forgeries at common law, in which an intent to defraud is an essential element of the offence, yet I am satisfied that they were regularly so treated."
That passage was cited with approval by this Court in R v Howes (1971) 2 SASR 293 at 302.
What emerges from these cases is that in conspiracy to defraud there need not be an intention to commit any offence. Any dishonesty will suffice. And in the first category of conspiracy to defraud identified in Scott's case, there will always be a victim or victims to whom it is intended to cause economic loss. This case is in that first category.
The Connection with South Australia
The particulars given in the Information in this case did not allege whether the defrauding of the company or the false representations involved the commission of a criminal offence or, if so, where that criminal offence might have been committed. However, it is reasonably clear from the particulars and from the facts found by the learned trial judge and the inferences to be drawn from those facts that if the scheme had been brought to fruition all the necessary elements of the offence of obtaining money by false pretences contrary to s195 of the Criminal Law Consolidation Act 1935 would have been established. However, it was not possible to tell from the information where all the elements of the offence would have occurred, nor was it possible, if there was to be no criminal offence, to determine where the several false representations or acts of dishonesty might have been carried out, or where the victim might be located at the time. This is not surprising, as the essence of conspiracy, as I have pointed out, is an agreement.
There were only three possible relevant connections with South Australia. First, in furtherance of the conspiracy, the forged facsimile setting out the terms and conditions of the proposed promissory note from the Krung Thai Bank, although dispatched from Bangkok, was received by the company's solicitors in Adelaide. Secondly, the company was incorporated in, directed from, and had its registered office in Adelaide, although its sole business appears to have been the operation of the building in Melbourne. Thirdly, the ultimate beneficial ownership of the company was vested in the Government of South Australia. The question is whether any of these connections are sufficient to confer jurisdiction on a South Australian Court to hear the charges contained in the information. In order to determine that it is necessary to analyse what consistent threads (if any) can be seen in a number of the relevant cases concerning conspiracies which have a connection with more than one jurisdiction. The notion propounded in Macleod v The Attorney-General for New South Wales [1891] AC 455 by Lord Halsbury LC that all crime is local and jurisdiction over crime belongs to the country where the crime is committed has been found wanting in relation to transnational crimes such as conspiracy, obtaining by false pretences, blackmail, demanding money with menaces and other similar economic crimes.
Inter-jurisdictional Conspiracy Cases
It will be convenient to deal with the cases in two groups - on the one hand, those in which a conspiracy is hatched in the jurisdiction of the forum but which has as its object the performance of a crime or some illegal act in another jurisdiction, and on the other hand, those where a conspiracy is hatched outside the jurisdiction to commit a crime or some unlawful act within the jurisdiction of the forum.
In the first category the starting point is Board of Trade v Owen [1957] AC
602, where an agreement had been made in England to defraud the government of West Germany by inducing it to issue export licences for certain materials by the use of forged documents. Notwithstanding that the essence of conspiracy is the agreement, the House of Lords held that there could be no indictment in England in those circumstances. Lord Tucker said at p625:
"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. Furthermore, historically it appears to be closely allied in its development to the law with regard to attempts..."
At p626 Lord Tucker quoted an extract from Holdsworth's History of English Law, Volume 5 at 203-205, and in particular a footnote quoting in turn from Coke:
"'The usual commission of oyer and terminer gives power to the commissioners to enquire etc. de omnibus coadunationibus, confoederationibus, et falsis alligantiis ... in these cases, before the unlawful act executed, the law punishes the coadunation, confederacy or false alliance, to the end to prevent the unlawful act' (my italics). '... And in these cases the common law is a law of mercy, for it prevents the malignant from doing mischief, and the innocent from suffering it.' (9 Co.Rep. at p56b.) Accepting the above as the historical basis of the crime of conspiracy, it seems to me that the whole object of making such agreements punishable is to prevent the commission of the substantive offence before it has even reached the stage of an attempt, and that it is all part and parcel of the preservation of the Queen's peace within the realm."
Thus it can be seen, at least through the eyes of the members of the House of Lords, that one of the main objects of the indictment for conspiracy was to prevent the commission of a crime, and to aid the maintenance of law and order and the maintenance of the Queen's peace within the jurisdiction where the crime or unlawful act was to take place. That particular case, as I have pointed out, involved a conspiracy to attain a lawful object by unlawful means, and not a conspiracy to defraud any particular individual.
The other important aspect of Board of Trade v Owen to be noted is that it was dealing with substantive rather than procedural law. As Lord Diplock later pointed out in Treacy v Director of Public Prosecutions [1971] AC 537 at 563: "The question there (in Board of Trade v Owen) was whether a conspiracy entered into in England to commit acts in Germany which were unlawful under German law to achieve an object which was unlawful there constituted a conspiracy at common law which was indictable in England. The unanimous opinion of this House was given in the speech of Lord Tucker. He treated the question correctly - as one not of jurisdiction but as to what were the characteristics of the crime of conspiracy at common law. The conclusion reached upon examination of the authorities was that the common law crime of conspiracy did not extend to an agreement to achieve an object which was unlawful in a foreign country or to use means to achieve it which were unlawful in a foreign country." See also Re Hamilton-Byrne [1995] 1 VR 129 per Tadgell J at 138.
Attorney-General's Reference (No. 1 of 1982) [1983] QB 751 again involved a conspiracy entered into in England which was treated on the facts as being one aimed at defrauding purchasers in the Lebanon of whisky which was falsely labelled to be that of a distiller whose registered office was in England. It was argued that the conspiracy was indictable in England because the ultimate object of the conspiracy was to injure the distiller in England. That argument was rejected, it being held that damage to the distiller might have been a side effect or an incidental consequence of the conspiracy, but it was not its object. The object was to deceive the consumers in the Lebanon. Because of its significance to one of the possible connections in this case with South Australia, I set out what Lord Lane CJ said at p757:
"The real question must in each case be what was the true object of the agreement entered into by the conspirators? In our judgment, the object here was to obtain money from prospective purchasers of whisky in the Lebanon by falsely representing that it was the X company's whisky. It may well be that if the plan had been carried out, some damage could have resulted to the X company. But that would have been a side effect or incidental consequence of the conspiracy, and not its object. There may be many conspiracies aimed at particular victims which in their execution result in loss or damage to third parties. It would be contrary to principle, as well as being impracticable for the courts to attribute to defendants constructive intentions to defraud third parties based on what the defendants should have foreseen as probable or possible consequences. In each case to determine the object of the conspiracy, the court must see what the defendants actually agreed to do."
Lord Tucker in Board of Trade v Owen had expressly left open the question of whether a conspiracy to be carried out abroad might be indictable in England on proof that its performance would produce a public mischief in England or injure a person there by causing him damage abroad (ibid at p634). The door to that possibility was closed by the decision in Re Attorney-General's Reference. Lord Lane CJ continued, at pp758-759: "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."
At first sight it might appear that Canadian courts have taken a different view from what was decided in Board of Trade v Owen. Libman v R (1985) 21 CCC (3d) 206 was a case of an indictment on seven counts of fraud and one count of conspiracy to commit fraud in the Province of Ontario. The accused's staff in Toronto telephoned persons in the United States to try to persuade them to purchase shares in what were said to be gold mining companies in Costa Rica. Promotional material was mailed from Panama and Costa Rica, and purchasers were asked to send their money there. The inducements to purchase the shares were materially false. Libman periodically went to either Costa Rica or Panama to receive his share of the proceeds of sale of the shares which he brought back to Canada and banked for himself and paid his sales people. He also received money by telegraphic transfer from Panama. Both the fraud charges and the conspiracy charge were statutory offences in Ontario. In the case of the fraud charges the question for determination was whether the defrauding of the American citizens had materially taken place in Canada, and in relation to the count of conspiracy, whether it was a conspiracy to commit a criminal offence in Canada. The court held, on the facts, that the substantive offences were committed in Canada. The case is therefore of doubtful assistance in determining the substance of conspiracy at common law. In determining that the offences had taken place within the jurisdiction, the court considered whether there was a "real and substantial link" between the offence and the forum. There was that link in the case of the charges of fraud, and hence also in relation to the statutory conspiracy to defraud. The court (at 233) considered that it was not necessary to resolve an apparent difference between Board of Trade v Owen and some earlier Canadian decisions. I respectfully agree with Tadgell J in Re Hamilton-Byrne (supra) at 140 that Libman v R offers little guidance on the trial of common law conspiracy entered into in the jurisdiction of the forum. On the other hand, it is not inconsistent with some other cases to which I shall need to refer relating to the jurisdiction of courts to try similar substantive crimes.
Notwithstanding the distinction from Board of Trade v Owen based on the Canadian legislation, La Forest J considered that the English cases expressed a narrow view of the territorial application of English law. He went on to say (supra at p233): "How considerate is it of the interests of the United States in this case to permit criminals based in this country to prey on its citizens? How does it conform to its interests or to ours for us to permit such activities when law enforcement agencies in both countries have developed co-operative schemes to prevent and prosecute those engaged in such activities? To ask these questions is to answer them. No issue of comity is involved here. ...[W]e should not be indifferent to the protection of the public in other countries. In a shrinking world, we are all our brothers' keepers. In the criminal arena this is underlined by the international co-operative schemes that have been developed among national law enforcement bodies."
However, in R v Douglas (1989) 51 CCC (3d) 129 two persons had entered into an agreement with an American undercover police officer in Canada to supply cocaine to that officer in the United States. The conspirators encountered some difficulty with their supplier and the deal was unable to go ahead. Nothing had been done in Canada in furtherance of the crime contemplated by the conspiracy, and there was therefore no act to which the Canadian Criminal Code could attach in order to bring it within the decision in Libman v R. However, the court was satisfied that the mere making of the agreement was a sufficient link to justify the Canadian courts hearing the charge.
In Re Hamilton-Byrne [1995] 1 VR 129 Tadgell J undertook a comprehensive survey of all the cases in this area. The accused were arraigned on one count of alleged common law conspiracy to defraud and one count of conspiracy to commit perjury or make a false declaration contrary to the law of New Zealand. The allegation was that the accused in Victoria had 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 female accused as triplets, whereas all of the children had in fact been born to different women in Victoria. The Victorian Court of Appeal held that the first count (conspiracy to defraud) did not disclose an offence known to the law of Victoria. The decision was based largely on Board of Trade v Owen or, more importantly for present purposes, the reasoning behind it. Tadgell J said at pp142-143:
"The legislature could have chosen, but has not, to extend the justiciability in Victoria of extra-territorial common law conspiracies. I particularly note that by s80A of the Crimes Act 1958 (enacted in 1988) certain extra-territorial offences were rendered justiciable by reference to acts or omissions outside Victoria having a 'real and substantial link' with Victoria. It would be a remarkable thing for the judiciary to take a step of that kind in relation to common law conspiracy when the legislature has evidently chosen not to do so. Perhaps the cardinal reason for the preservation in Victoria of the common law offence of conspiracy to defraud is that it enables planned substantive offences to be intercepted in aid of the preservation of the Queen's peace. There is therefore good reason for this court to confine the offence to cases in which the Queen's peace - the good of society - is threatened within Victoria. That is not this case; and if such a case as this is to be rendered justiciable in Victoria it should be done by achievement of the Parliament and not of the judiciary. In my opinion, therefore, count 1 does not disclose an offence known to the law of the State of Victoria."
One of the more difficult cases to reconcile in this group is Mayer v Henderson (1993) 68 ACR 155. There the accused were charged with three counts of conspiracy contrary to the Tasmanian Criminal Code, s297(1). In each case, the conspiracy was formed in Tasmania to defraud a number of banks in Victoria. One of the conspirators sent or caused to be sent through the banking system cheques or telegraphic transfers of funds represented by cheques from Tasmania to be deposited in Victorian banks. The other conspirator, either by himself or through agents, operated accounts in those banks and withdrew monies from them, but the deposits were not valid orders because there were insufficient funds in the accounts against which they were drawn, and in respect of each cheque deposited, a stop-cheque notice was also given. The conspiracy was plainly directed towards defrauding banks in Victoria. However, because cheques were sent from Tasmania, that was sufficient for the Tasmanian court to hold that it had jurisdiction to try the charges. Board of Trade v Owen was distinguished because some of the overt acts (the posting of the cheques) took place in Tasmania. It was therefore not a "bare" conspiracy of the kind considered in Owen and Re Attorney-General's Reference (No 1 of 1982). The court pointed out that if the alleged conspiracy had been in respect of a crime under s297(1)(c) of the Code, s8 of the Code, which provided that Tasmanian courts would have jurisdiction in respect of crimes even if only partially committed within the State's geographical limits, the crime would have been able to be the subject of a separate indictment in Tasmania. However, it had to be assumed that the unlawful purpose to be achieved by the conspiracy fell short of a crime, and the only distinction that could be applied to Board of Trade v Owen was that this was not a "mere" or "bare" conspiracy, and that fact itself removed it from the effect of the rule in Owen's case. In my opinion, that is a somewhat tenuous distinction, as it fails to apply the reasoning behind Owen's case, namely the preservation of the Queen's peace and the prevention of crime in the "target" State. Mayer v Henderson, although decided before Re Hamilton-Byrne (supra), was not referred to by the Victorian Court of Appeal in that case.
It was referred to by Matheson J in R v Catanzariti (1995) 65 SASR 201. Based largely on the decision in Board of Trade v Owen, Matheson J held that an indictment would not lie in South Australia for a conspiracy formed in South Australia to produce cannabis in the Northern Territory, even though it was alleged that at least some of the crops were to be sold in South Australia. It was held that the cultivation of cannabis was not a crime at common law, and conspiracy to cultivate cannabis was not a crime at common law. However, because of Board of Trade v Owen, the accused could not be charged in South Australia with conspiracy to breach a Northern Territory law. It was also held that they could not be charged with conspiracy to breach a South Australian statute in respect of conspiracy to produce cannabis wholly in the Northern Territory. Matheson J considered that the reason given by Wright J in the Tasmanian case for distinguishing Board of Trade v Owen also distinguished the Tasmanian case from the case before him. In quashing the information, Matheson J largely followed the reasoning behind Owen's case.
Finally, in this series, is the case of R v Isaac (Unreported CCA (NSW) 5 February 1996). The charge there was conspiracy to commit a robbery in the ACT. The agreement to commit the robbery was formed in New South Wales by means of telephone calls and meetings. The conspirators then travelled to Canberra, where further planning took place at the home of one of them there, and they were arrested by police in the ACT on the way to the address in Canberra where the robbery was to be carried out. The question, as in Owen's case and other similar cases, was whether the offence was justiciable in New South Wales. The Court of Criminal Appeal held that it was not. By reference to Board of Trade v Owen (supra) at 623-626, DPP v Doot [1973] AC 807 at 817-818, 832-833 and Liangsiriprasert v United States [1991] 1 AC 225 at 244-245, 250-251, Hunt CJ made the following remarks about conspiracy and its justiciability: "An agreement to commit a crime precedes an attempt to commit that crime, and it is merely auxiliary to the law which creates the contemplated crime agreed to be committed. The justification for making the agreement itself a crime flows from the preventative purpose of the law of conspiracy, in that it enables the law to step in and to frustrate that agreement even before it has reached the stage of amounting to an attempt to commit the contemplated crime. As the purpose is to prevent the commission of the contemplated crime, the crime of conspiracy is said to be 'all part and parcel of the preservation of the Queen's peace within the realm' - or, in the more modern cases, it is said to protect society in the country (or jurisdictional area) in which the contemplated crime was to have been committed.
Because the crime of conspiracy is of such a nature, various courts have held that a conspiracy formed in the country (or jurisdictional area) of the forum to commit a crime elsewhere is not justiciable (or not known to the law) in that forum, although a conspiracy formed elsewhere to commit a crime in the country (or jurisdictional area) of the forum is justiciable there."
After an extensive review of the cases, Hunt CJ at CL, speaking on behalf of the Court of Criminal Appeal, held that, accepting Board of Trade v Owen, no crime of conspiracy formed within the State to commit a crime in the ACT was known to the law of New South Wales. His Honour observed, however, that the restrictions imposed by the law laid down in Owen's case are "highly artificial" in the political and geographical circumstances of the Australian federation, but he considered that it was for Parliament to change the law, particularly as it had been accepted by courts both in Victoria and South Australia.
Board of Trade v Owen, R v Catanzariti and R v Isaac have not escaped academic criticism: see Matthew Goode: "Contemporary Comment - Two New Decisions on Criminal 'Jurisdiction': The Appalling Durability of Common Law"
(1996) 20 CLJ 267. However, as Tadgell J pointed out in Re Hamilton-Byrne (supra) at 137, it has been treated as accurately stating the law in courts both in the United Kingdom and Australia, including the Privy Council. Likewise, Hunt CJ at CL in R v Isaac (supra) referred to its widespread acceptance, noting nevertheless the different view having been taken by courts in Canada.
Whilst this case is not a case of a conspiracy being formed within the jurisdiction to commit a crime or to defraud a person in another jurisdiction, it is nevertheless important to understand why it is that cases like Board of Trade v Owen and those which have followed it have been decided the way they were and to understand that those cases are still good law in this jurisdiction in relation to common law conspiracy to defraud, whatever may be the strength of academic criticism of them or of judicial reservation about them. The essential reasoning behind those cases is that although a conspiracy may be formed within the jurisdiction to commit a crime or to defraud a person in another jurisdiction, such a conspiracy is not an indictable conspiracy in this jurisdiction, the reason being that common law conspiracy to defraud is directed to the prevention of substantive crime and other mischief, or to protect society in the country or jurisdictional area in which the contemplated crime or mischief was to have been committed.
Against that background I now turn to consider cases where the conspiracy has been formed outside the jurisdiction but directed towards some person or object within the jurisdiction of the forum.
My consideration of this group of cases begins with DPP v Doot [1973] AC
807, where a conspiracy was formed outside the UK to import cannabis into the United States by way of England. The cannabis was found in England before it could be shipped to America. The respondents were charged with conspiracy to import dangerous drugs. Although conspiracy is complete when the agreement is made, the House of Lords held that it continued in existence for so long as there were two or more parties to it intending to carry out its design. English courts had jurisdiction if the evidence showed that the conspiracy, whenever or wherever formed, was still in existence when the accused were in England. The acts of the respondents were sufficient to establish the continuing existence of the conspiracy. They were therefore properly convicted. Lord Wilberforce, in identifying the principle upon which English courts could try conspiracy, once again identified a possible threat to the Queen's peace. He said, at pp817-818:
"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. Conspiracies are intended to be carried into effect, and one reason why, in addition to individual prosecution of each participant, conspiracy charges are brought is because criminal action organised, and executed, in concert is more dangerous than an individual breach of the law. Why, then, refrain from prosecution where the relevant concert was, initially, formed outside the United Kingdom?"
Lord Wilberforce reserved the question as to whether a conspiracy formed outside England to perform an illegal act in England but not actually implemented in England could be tried in an English court. A similar reservation was expressed by Lord Salmon at 833, but his Lordship also made the point that if a conspiracy is entered into abroad to commit a crime in England, exactly the same public mischief is produced by it as if it had been entered into in England. Lord Salmon, although prepared to support the conviction on the ground that the conspiracy was shown to exist in England, went further and held that any act committed in England in furtherance of the conspiracy formed abroad would justify the conviction in England for that conspiracy.
R v Skewes (1981) 7 ACR 276 was a case of a conspiracy formed in South Australia by persons, including solicitors, to procure the commission in Victoria by the operators of commercial goods carrying vehicles of offences against the Commercial Goods Vehicles Act 1958 by avoiding the payment of road charges. The scheme was devised and formulated in South Australia, but two of the applicants went to Victoria to solicit Victorian operators to make use of the scheme. The Victorian Court of Criminal Appeal held that the Victorian court had jurisdiction to try the conspiracy. The nexus with Victoria was provided by two circumstances, namely the acts of the two applicants in Victoria soliciting the cooperation of transport operators, and also the fact that it was an agreement that the conspirators would commit an offence in Victoria, namely aiding, abetting, counselling and procuring the commission of offences in Victoria by others.
In Attorney-General v Yeung Sun-shun [1987] HKLR 987 there was a conspiracy formed in Macau to ship elephant tusks to Hong Kong in breach of the Import and Export Ordinance and the Animals and Plants (Protection of Endangered Species) Ordinance of Hong Kong. All the acts in furtherance of the conspiracy had been carried out outside Hong Kong, but the vessel carrying the tusks was intercepted by customs officers in Hong Kong waters. It was held by the Hong Kong Court of Appeal that entry into Hong Kong waters was a sufficient act in performance of the conspiracy within the jurisdiction to justify the conviction in Hong Kong. The importation was being assisted by the assistant purser of the vessel who had intentionally misdescribed the ivory on the manifest. Roberts CJ considered that it was not necessary to entertain the question of whether a conspiracy, formed abroad, to commit an offence in Hong Kong, was within the jurisdiction if no acts in furtherance of the conspiracy were committed in Hong Kong. He continued, at p998: "In principle, however, we are not unsympathetic to the view, expressed in recent cases, that the territorial basis for jurisdiction is becoming outmoded, and that in such circumstances the Hong Kong courts should assume jurisdiction upon the basis that: (a) the conspiracy is aimed at Hong Kong and intended to bring about a breach of the peace here; (b) since the conspiracy is not directed at the residents of the country where it is entered into, the courts of that country could raise no reasonable objection to this course on the ground of comity.
This approach finds support in Reg. v Treacy [1971] AC 537, 561-562 per Lord Diplock; Libman v The Queen (1985) 21 CCC (3d) 206, in the Supreme Court of Canada; and Mharapara v The State [1986] LRC (Const.) 235, in Zimbabwe.
Thus those who conspire in Macau to send a parcel bomb to Hong Kong should be triable here, even if for some reason the parcel does not arrive within the Territory."
Somchai Liangsiriprasert v Government of the USA [1991] 1 AC 225 confirmed the view expressed in some earlier cases that the actual performance of an act within the jurisdiction of the forum was not necessary where the conspiracy was directed to a breach of the law of the forum. The case itself involved a conspiracy to import heroin into the US from Thailand, the proceeds of which were to be collected in Hong Kong. In what the conspirators believed to be in fulfilment of their scheme, some of the heroin had been taken to New York. In fact it had been taken by an undercover agent, and so no acts in furtherance of the conspiracy had been committed in the US. What is more important for the purpose of the case was that no acts in furtherance of the conspiracy had been committed in Hong Kong. The participants were arrested in Hong Kong and were sought to be extradited to the US. For the purpose of extradition the case proceeded upon the ground that the task of the Hong Kong court was to apply Hong Kong law and to consider whether the evidence disclosed a prima facie case against the appellant upon the assumption that the drugs were to be imported into Hong Kong rather than into the United States. The crimes alleged, somewhat artificially, were therefore conspiracy to traffic in a dangerous drug contrary to common law and s39 of the Dangerous Drugs Ordinance of Hong Kong. There were other allegations of trafficking in dangerous drugs and of performing acts preparatory to trafficking in dangerous drugs. It was held by the Privy Council that a conspiracy to traffic in drugs formed outside Hong Kong could be tried within Hong Kong without any acts in furtherance of the conspiracy having been performed in Hong Kong. The Privy Council, once again, applied the principle established in Board of Trade v Owen (supra) that the preservation of the Queen's peace in the forum required, in those circumstances, that the court of the forum have jurisdiction to try the offence. After a comprehensive review of the authorities the Privy Council said, at pp250-251: "Apart from the dictum of Lord Keith of Kinkel in Director of Public Prosecutions v Stonehouse [1978] AC 55, 93, there is no affirmative statement in the authorities that an inchoate crime is not justiciable in England unless its effect or some action pursuant to the crime takes place in England, and there are the dicta of the Court of Appeal, Lord Diplock and Lord Salmon to the contrary effect. As Lord Tucker pointed out in Board of Trade v Owen [1957] AC 602, 626, inchoate crimes of conspiracy, attempt and incitement developed with the principal object of frustrating the commission of a contemplated crime by arresting and punishing the offenders before they committed the crime. If the inchoate crime is aimed at England with the consequent injury to English society why should the English courts not accept jurisdiction to try it if the authorities can lay hands on the offenders, either because they come within the jurisdiction or through extradition procedures? If evidence is obtained that a terrorist cell operating abroad is planning a bombing campaign in London what sense can there be in the authorities holding their hand and not acting until the cell comes to England to plant the bombs, with the risk that the terrorists may slip through the net? Extradition should be sought before they have a chance to put their plan into action and they should be tried for the conspiracy or the attempt as the case may be. Furthermore, if one of the conspirators should chance to come to England, for whatever purpose, he should be liable to arrest and trial for the criminal agreement he has entered into abroad...
But why should an overt act be necessary to found jurisdiction? In the case of conspiracy in England the crime is complete once the agreement is made and no further overt act need be proved as an ingredient of the crime. The only purpose of looking for an overt act in England in the case of a conspiracy entered into abroad can be to establish the link between the conspiracy and England or possibly to show the conspiracy is continuing. But if this can be established by other evidence, for example the taping of conversations between the conspirators showing a firm agreement to commit the crime at some future date, it defeats the preventative purpose of the crime of conspiracy to have to wait until some overt act is performed in pursuance of the conspiracy...
Particulars
3.1.1 The learned trial Judge should not, in the circumstances of the case against the appellant, have more readily drawn inferences adverse to him by reason of his failure to give evidence. ..........
3.1.2 The evidence was insufficient for the learned trial Judge to find beyond a reasonable doubt that:
3.1.2.1 The appellant "knew that P T Mecosin (Australia) Ltd had taken a lease at The Gateway and had not occupied the premises .... [and] ...that the Indonesian company had not taken up occupation" .........
3.1.2.2 The appellant "was aware of the ultimate source of the funds which he received" .... 3.1.2.3 "the letter makes it clear that Edward Lipohar was travelling to Bangkok for the purpose of obtaining those promissory notes .... [and] .... that Mr Lipohar left Australia with the knowledge of the Krung Thai promissory notes and for the purpose of dealing in those notes" ........
3.1.2.4. "....Mr Lipohar ... knew how the conspiracy was to be carried out ... agreed in the conspiracy .... [and] demonstrated his agreement by travelling to Bangkok on 22 January 1992...." ........
3.1.2.5. "Each was aware of the participation of each other and each was generally aware of the part each other were to play. In this case each knew how the fraudulent object would be satisfied" ........
3.2 Alternatively, on the whole of the evidence, it was not open for the learned trial Judge to have been satisfied beyond a reasonable doubt that the appellant was guilty.
Particulars
The appellant repeats the particulars set out in sub-paragraphs 3.1.1 and 3.1.2 above.
3.3 Further or alternatively, the learned trial Judge should have allowed the applicant's application to take evidence from a Mr Roosevelt Tan and should have received that evidence at the appellant's trial and the absence of Mr Tan's evidence has resulted in an unfair trial and is (sic) thereby occasion a miscarriage of justice."
I hope this all will make sense after I set out a summary of the facts. [The facts are set out in extenso in the Reasons of the learned trial Judge.]
It was a conspiracy to obtain $6.5m from Collins Street Properties Pty Ltd, a company incorporated in South Australia, having its registered office here and wholly owned by SGIC Pty Ltd which in turn is wholly owned by the State Government Insurance Commission (now called the Motor Accidents Commission), a statutory corporation. The corporation is owned by the State Government, so that any payment would eventually have been borne by the South Australian tax payer. Collins Street Properties was the owner of a building at 333 Collins Street in Melbourne. In the 1980s through a series of unwise business dealings, one of which was a "put option" the SGIC in 1991 came, unwillingly I believe, to own the building. The building could be described as a financial "white elephant": the SGIC had to pay too much for it: there were few tenants. That is from my own recollection.
They were most anxious to have the building fully occupied and offered big inducements to prospective tenants. One inducement was a cash payment together with a "rent holiday" and outfitting of the space to be leased. [I should say that, with a glut of good office space in the various cities of Australia, inducements like this were not and I think are still not, uncommon.]
The two appellants, with others, of whom Roosevelt Tan and Jack Samardzija, named in the Information, were two, conspired to get $6.5m from Collins Street Properties by pretending that they had a client looking for good rental accommodation in Australia and interested in taking space at 333 Collins Street. The client named was a company, P T Mecosin (Australia) Ltd said to be a subsidiary of P T Mecosin Indonesia, a big manufacturing concern in Indonesia. In fact P T Mecosin (Australia) Ltd was dishonestly formed in that its incorporation was without the knowledge, let alone the assent of the Indonesian company. There was no connection between the two. Winfield was concerned in the formation of the company.
Collins Street Properties required security before it entered into any arrangement. Normally this would be in the form of a mortgage. As the conspirators had no property over which to give a mortgage they suggested instead a promissory note, issued by the Krung Thai Bank for US$10m. No promissory note was ever produced but a faxed letter, purporting to be from the Krung Thai Bank and signed by "Miss T W N Nutcharee, Assistant General Manager", accompanied by the terms on which a promissory note would be issued, was sent to Mr George McKenzie, a partner in the well known Adelaide firm of solicitors, Finlaysons, acting for Collins St Properties. In fact the Krung Thai Bank had absolutely no knowledge of this. At trial it was an agreed fact that the Krung Thai Bank, a Thai bank as the name implies, does not issue such promissory notes. The letter was a forgery, as the result of an elaborate scheme. The fax was sent from a public fax machine in Bangkok. The trial judge found that the appellant Lipohar went to Thailand to further the scheme. As well Lipohar, who lived in Melbourne, had carried out an inspection of the space in the building, 333 Collins Street, on behalf of the purported prospective tenant.
Negotiations were abruptly terminated by a letter from Mark Winfield using letterhead "Strategic Enterprise", dated 6 March 1992, the day it became public knowledge that the Krung Thai Bank promissory note was a fraud.
It is common ground between appellants and respondent that the conspiracy was hatched either in Queensland or in Victoria, most likely in Queensland. The body to be defrauded, Collins Street Properties Pty Ltd, carried on business in Victoria, although its registered office was in South Australia. The only "overt act" in South Australia to which the Crown could point was the fax sent to Mr McKenzie.
What I have written is from the findings of the learned Judge in his Reasons, after the trial.
He decided the question of jurisdiction as a preliminary point and for the purposes of that decision, assumed the case for the Crown. His assumptions became, after trial, his findings.
Counsel for the appellants, Mr Malcolm Gray QC with Mr David Stokes for Winfield and Mr Michael Barnett for Lipohar, argued the jurisdiction point at greatest length.
The appellants' argument was that the Court had no jurisdiction because no act in relation to the conspiracy was carried out in this State: the conspirators entered into the conspiracy elsewhere: the intended victim was in Victoria and carried on business there: the conspirators would have received payment of the $6.5m in Victoria not here, wherever the final loss may have fallen. Mr Michael Boylan, for the respondent, on the other hand argued that, because, finally, the victim would have been the South Australian taxpayer, the conspiracy was a disturbance here of the Queen's Peace and that was sufficient to give jurisdiction. In any case the fax was an act done in South Australia and that meant that part of the plan was carried out in this State: there had been an "overt act".
Lord Halsbury LC in Macleod v Attorney General (NSW) ([1891] AC 455 at 458-459) set out the accepted rule as to jurisdiction:-
"All crime is local. The jurisdiction over the crime belongs to the country where the crime is committed, and, except over her own subjects, Her Majesty and the Imperial Legislature have no power whatever."
That was a definite rule, perhaps easy to observe a hundred years ago. Now alas, with the development of transnational crime, with modern means of communication and transport, the world becoming more and more the global village, the rule has long since ceased to be enough. The courts have been grappling with the problem of finding an appropriate test to take its place for a long time now.
Lord Wilberforce in Director of Public Prosecutions v Doot and others ([1973] 1 All ER 940 at 943) put the problem plainly and also laid down a test which I suggest is decisive here:- " In the search for a principle, the requirement of territoriality does not, in itself, provide an answer. To many simple situations, where all relevant elements occur in this country, or, conversely, occur abroad, it may do so. But there are many 'crimes' (I use the word without prejudice at this stage) the elements of which cannot be so simply located. They may originate in one country, be continued in another, produce effects in a third. Some constituent fact, the posting or receipt of a letter, the firing of a shot, the falsification of a document, may take place in one country, the other necessary elements in another. There is no mechanical answer, either through the Latin maxim or by quotation of Lord Halsbury LC's words in Macleod's case or otherwise, which can solve these. The present is such a case.
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. Conspiracies are intended to be carried into effect; and one reason why, in addition to individual prosecution of each participant, conspiracy charges are brought, is because criminal action organised, and executed, in concert, is more dangerous than an individual breach of the law. Why, then, refrain from prosecution, where the relevant concern was, initially, formed outside the United Kingdom."
I must say that I find the authority of Director of Public Prosecutions v Doot & Others conclusive. Following the chain of ownership from Collins Street Properties South Australians would have suffered a loss of $6.5m had the plan succeeded. This would have been a threat to the Queen's Peace. We South Australians would have been the victims. So far as I know, no other jurisdiction has shewn any interest in prosecuting these men. If they are not to be dealt here, then they may escape punishment for any wrong doing altogether. Then the law really would be an ass!
I accept, too, the respondent's other argument, that part of the action, through the fax to Mr McKenzie, took place in South Australia. The fax was a step in the scheme, meant to help convince Collins Street Properties to enter into the arrangement. I do not accept the appellants' argument that it was an act in Thailand from where the fax was sent. The intention of the sender in Thailand was that the fax should have an effect in South Australia and it may have done.
So that for both reasons, on the question of jurisdiction, I am in favour of the respondent.
Of course the law has moved on since 1972. I should mention some (but by no means all) more recent authorities which confirm my conclusion.
The first is a dictum of Wells J in 1974, in The Queen v Hansford (1974) 8 SASR 164 at 195:-
".... The true basis, in my opinion, for the conclusion that acts performed or taking place partly in South Australia and partly outside may be governed by South Australian laws is that it is proper for them to be so governed when they constitute behaviour that affects, and is clearly linked with, the peace, welfare and good government of the State."
The Attorney General's Reference (No. 1 of 1982) [1983] 2 All ER 721 may appear to be against my conclusion. That is the "whisky case". People in Germany thought up the scheme to put, I think, Johnny Walker labels (printed in England) on their own inferior whisky and then sell it in the Lebanon. The Court of Appeal decided that the buyers in the Lebanon were the victims, rather than Johnny Walker in the United Kingdom and consequently the English courts had no jurisdiction. Lord Lane CJ (at 724):-
"The real question must in each case be what the true object of the agreement entered into by the conspirators? In our judgment, the object here was to obtain money from prospective purchasers of whisky in the Lebanon by falsely representing that it was X Co's whisky. It may well be that, if the plan had been carried out, some damage could have resulted to X Co, but that would have been a side effect or incidental consequence of the conspiracy, and not its object. There may be many conspiracies aimed at particular victims which in their execution result in loss or damage to third parties. It would be contrary to principle, as well as being impracticable for the courts, to attribute to defendants constructive intentions to defraud third parties based on what the defendants should have foreseen as probable or possible consequences. In each case, to determine the object of the conspiracy, the court must see what the defendants actually agreed to do."
Here I do not regard the loss to be incurred in South Australia as merely "a side effect or incidental consequence" of the fraud, rather it would be an immediate effect and a direct consequence.
The Canadian Supreme Court decision of Libman v. The Queen (1985) 21 CCC (3d) 206 concerned a telephone scam in which people in the United States were to be persuaded to buy dud shares in Central American mining companies to the profit of the promoters of the scheme in Canada. The telephoning was done from Canada.
The judgment of the court was delivered by La Forest J. In the course of it he said (at 228-229):- " Counsel distinguished the Chapman case on the basis that there the moneys were sent to Canada, and more fundamentally that Chapman having been decided before Olan was wrong in holding that the completion of the offence of fraud lies in the obtaining of the money.
I find it unnecessary to enter these niceties because my difficulties with the gist of the offence and the completion of the offence tests arise on a much broader plane. To begin with, these tests seem to me to involve a large measure of unreality. It requires, for example, that one hold that what happens to money obtained abroad when it is in fact brought to Canada in accordance with a carefully concocted fraudulent scheme originating here, is, in the words of the Rush case, neither here nor there. This kind of thinking has, perhaps not altogether fairly, given rise to the reproach that a lawyer is a person who can look at a thing connected with another as not being so connected. For everyone knows that the transaction in the present case is both here and there. ........................
As noted earlier, the territorial principle in criminal law was developed by the courts to respond to two practical considerations, first, that a country has generally little direct concern for the actions of malefactors abroad, and secondly, that other States may legitimately take umbrage if a country attempts to regulate matters taking place wholly or substantially within their territories. For these reasons the courts adopted a presumption against the application of laws beyond the realm,....................................................... .
While, we saw, there were occasional strong expressions of the territorial doctrine, particularly in earlier times, the fact is that the courts never applied the doctrine rigidly. To have done so, as Cockburn C.J. noted in R. v. Keyn (1876), L.R. 2 Ex. D. 63 at p. 233, would have meant that a State could not apply its laws to offences whose elements occurred in several countries. This would have provided an easy escape for international criminals. What the courts sought to do, albeit in ways that were sometimes rather unsophisticated and at times inconsistent with the expressed rationales in earlier cases, was to give the principle an interpretation consistent with its underlying rationale. They did not, and indeed were not really invited to deal with transactions in other countries that had no domestic impact. But Canadian courts (like those in England and other countries for that matter) frequently took jurisdiction over transnational offences that occurred partly in Canada where they felt this country had a legitimate interest in doing so. .........
This country has a legitimate interest in prosecuting persons for activities that take place abroad but have an unlawful consequence here ................. example. Indeed, from an early period the English courts have recognized such an interest in other countries: see R. v. Jacobi and Hiller (1881), 46 L.T. 595n; R. v. Nillins (1884), 53 L.J.M.C. 157, and R. v. Godfrey, [1923] 1 K.B. 24. The protection of the public in this country is widely acknowledged to be a legitimate purpose of criminal law, and one moreover that another nation could not easily say offended the dictates of comity."
Liangsiriprasert v US Government and another ([1990] 2 All ER 866) was an appeal to the Privy Council from Hong Kong. People were smuggling drugs from Thailand into the United States via Hong Kong. They were arrested in Hong Kong. Lord Griffiths delivered the judgment. He said (at 872-873):- " As a broad general statement it is true to say that English criminal law is local in its effect and that the common law does not concern itself with crimes committed abroad. The reason for this is obvious: the criminal law is developed to protect English society and not that of other nationals, who must be left to make and enforce such laws as they see fit to protect their own societies. To put the matter bluntly, it is no direct concern of English society if a crime is committed in another country. It was for this reason that the law of extradition was introduced between civilised nations so that fugitive offenders might be returned for trial in the country against whose laws they had offended.
There have, however, from medieval times been a number of exceptions to this general principle, such as treason, piracy and murder committed by a British subject abroad. In more recent times the English Parliament has legislated to make certain crimes committed abroad triable in England, particularly those crimes which have been the subject of international conventions. There has as yet, however, been no decision in which it has been held that a conspiracy entered into abroad to commit a crime in England is a common law crime triable in English courts in the absence of any overt act pursuant to the conspiracy taking place in England. There are however a number of dicta in judgments and academic commentaries suggesting that it should be so."
His Lordship then considered a number of cases, including Director of Public Prosecutions v Doot and others and went on (at 878):- " But why should an overt act be necessary to found jurisdiction? In the case of conspiracy in England the crime is complete once the agreement is made and no further overt act need to be proved as an ingredient of the crime. The only purpose of looking for an overt act in England in the case of a conspiracy entered into abroad can be to establish the link between the conspiracy and England or possibly to show the conspiracy is continuing. But if this can be established by other evidence, for example the taping of conversations between the conspirators showing a firm agreement to commit the crime at some future date, it defeats the preventative purpose of the crime of conspiracy to have to wait until some overt act is performed in pursuance of the conspiracy.
Unfortunately in this century crime has ceased to be largely local in origin and effect. Crime is now established on an international scale and the common law must face this new reality. Their Lordships can find nothing in precedent, comity or good sense that should inhibit the common law from regarding as justiciable in England inchoate crimes committed abroad which are intended to result in the commission of criminal offences in England. Accordingly, a conspiracy entered into in Thailand with the intention of committing the criminal offence of trafficking in drugs in Hong Kong is justiciable in Hong Kong even if no overt act pursuant to the conspiracy has yet occurred in Hong Kong."
The court had jurisdiction. The ground fails.
Before I leave the question of jurisdiction, though, I should mention s5(c) of the Criminal Law Consolidation Act. That is a section headed "Territorial application of the criminal law of the State". The first two sub-sections are:- "(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."
The learned judge did not rely on the section to come to his conclusion, nor do I. I doubt if it could be relied on in this case. The offence here is the conspiracy. That was concluded either in Queensland or in Victoria. No "element" of the offence, therefore, it seems to me, could be said to have occurred in this State. The sending of that fax may have been an overt act, evidence of the conspiracy and sent as part of putting the conspiracy into effect but it was not itself an "element" of the conspiracy.
I come now to the appellant's Winfield's third ground of appeal, that the verdict was unreasonable etc. This ground hinges on whether the trial judge was entitled to disbelieve the appellant's story as to who signed the letter.
It is a letter on Mecosin letterhead, dated 11 February 1992, to "Mr John Apps, Owner's representative, Collins Street Properties Pty Ltd .....". Winfield said that he had prepared the letter and took it to Mr Jack Samardzija for his approval. He shewed it to Samardzija who read it and said, "Well done Mr Winfield!" - and then immediately signed it "Mark Winfield"! How completely bizarre! "Inherently improbable" as the learned judge put it. Why should Samardzija sign, in Winfield's name, a letter prepared by Winfield and ready for Winfield to sign? Samardzija had never done such a thing before - why now?
His Honour had already formed an adverse view of Winfield's credibility and simply disbelieved the story. He thought Winfield made it up because that signature had been used by a hand-writing expert, who assumed it to be genuine, called by the Crown, to shew that Winfield had forged other documents. His Honour accepted, as he was entitled to do, the evidence of the Crown expert instead of that of a hand-writing expert called by the defence. As a result he found that Winfield had forged other documents.
When Mr Gray put the point, I remarked it was a question of fact for the judge. Mr Gray's reply was that where the judge, in a written judgment, exposes his Reasons they may be scrutinised and challenged. Under scrutiny I can see no flaw in the learned judge's reasoning, quite apart from his fundamental finding that Winfield was a man whose word could not be trusted.
The point fails.
I have not set out a fourth ground of appeal, concerning the taking of evidence on commission. Mr Gray did not argue it.
I suggest therefore that Winfield's appeal against conviction be dismissed.
The appellant Lipohar also complained that the verdict against him was unreasonable etc. The kernel of complaint was that the learned judge had been unduly influenced in his findings against him because he had not given evidence.
I doubt it. The Crown had adduced similar fact evidence about two other attempts made by this group of men to get money in much the same way as alleged in this case. One of the other attempts concerned a building, I think in Sydney, known as "The Gateway". The explanation at trial by Lipohar's counsel was that he did not want to give evidence about the 333 Collins St matter for fear of incriminating himself over The Gateway. The learned judge found this a pretty unlikely reason and I agree.
The learned judge said:- " Neither Mr Chandler" (a man charged but not concerned in the appeal) "nor Mr Lipohar were bound to give evidence. They have a right, given to them by law, to remain silent and to require the prosecution to prove its own case. The onus is always upon the prosecution to satisfy the trier of fact beyond reasonable doubt that the accused is guilty as charged. I cannot infer guilt by reason of the failure to give evidence. Their failure to give evidence is not of itself evidence an admission of guilt by conduct, because they are simply exercising the right which any accused has to put the prosecution to proof. Therefore the absence of evidence on the part of both Mr Chandler and Mr Lipohar cannot repair any deficiencies, if there are deficiencies, in the prosecution case against them. Failure to give evidence cannot be used as a make weight. However in some cases the Crown case calls for explanation or contradiction because there are facts peculiarly within the knowledge of the accused. This is one of those cases. I am entitled, in those circumstances, to more readily draw inferences adverse to Messrs Chandler and Lipohar where, being in a position to deny the allegations against them, they have failed to do so. In those circumstances their failure to give evidence is to that extent capable of strengthening the prosecution case against them by allowing me to more readily draw inferences adverse to them: The Queen v Weissensteiner (1993) 178 CLR 217."
His Honour accepted that Chandler had good reason for not giving evidence and went on:- "....... there was sufficient evidence" (for the crown)", in my opinion, for Mr Lipohar to give evidence and his failure to do so allows me to more readily draw inferences adverse to him than otherwise would be the case."
All that seems reasonable. In the absence of explanation from Lipohar, the learned judge was entitled to make the findings against Lipohar which he did.
I suggest that the appellant Lipohar's appeal against conviction be dismissed.
Finally I come to the appeals against penalty. Section 270(2) of the Criminal Law Consolidation Act has the penalty for the common law offence of conspiracy to defraud. A person so convicted is "liable to be imprisoned for a term not exceeding seven years."
The learned judge properly took this as his benchmark.
As mentioned at the beginning, each appellant was originally charged, on a second count, with attempted false pretences. The Crown entered a nolle prosequi on those counts before the trial but after the decision on jurisdiction.
Both appellants argued, separately, that the penalties should have been fixed by consideration of the maximum penalty for attempted false pretences. The maximum for false pretences is four years imprisonment: the penalty for attempt is two-thirds of the penalty for the substantive offence: the substantive offence. The substantive offence, if the scheme had succeeded, would have been false pretences: the maximum penalty therefore should have been two years and eight months. The penalty for conspiracy should not exceed the penalty for the substantive offence. Therefore both penalties are too high.
Counsel relied on a dictum in the joint judgment of Gibbs CJ, Mason, Aickin and Brennan JJ in The Queen v. Hoar (1981) 148 CLR 32 at 38:-
" In exceptional cases the element of concert may justify a more severe penalty for conspiracy than for the substantive offence which the conspirators commit (see Verrier v. Director of Public Prosecutions (9)), but where a court, imposing a penalty for conspiracy, takes into account the overt acts of the conspiracy, it would be wrong to impose a further penalty in respect of those acts."
I draw attention to the qualification at the beginning of that passage, " In exceptional cases". If it be necessary, I rely on that. These were exceptional cases justifying the penalties imposed.
However, as I have already said, the correct bench-mark, which His Honour used, is the penalty in s.270(2) of the Criminal Law Consolidation Act.
My brother Perry pointed out, during argument, that forgery also was involved and that carries life. My brother also pointed out that there can be conspiracy to achieve a lawful end by unlawful means: then, on the appellants' arguments, there would be no penalty! Those remarks, I think expose the fallacy of the appellants' submissions. That they were also charged on a second count with false pretences is irrelevant.
The learned judge has dealt entirely justly with each appellant. I suggest that their appeals against sentence also fail.
I suggest that all appeals be dismissed.
- AGLC
- R v Mark Jeffery Winfield and Edward Lipohar Nos. Sccrm-97-66, Sccrm-97-67, Sccrm-97-123, Sccrm-97-130 Judgment No. 6400 Number of Pages 44 Criminal Law [1997] SASC 6400
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- [1997] SASC 6400
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