COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA LANDER J
CWDS
Criminal law - jurisdiction, practice and procedure - jurisdiction - Accused charged with conspiracy to defraud - conspiracy was planned in Victoria and intended victim was a South Australian corporation - test for jurisdiction is whether the conduct complained of affects the Queen's peace in South Australia - the offence of conspiracy is justiciable in a State where the intended object of the conspiracy would affect the peace, welfare or good government of that other State - at least one act in furtherance of the conspiracy was performed in South Australia - it is not necessary to prove an overt act within the jurisdiction if the conspiracy has in its contemplation the commission of a criminal offence within jurisdiction - s5c of the Criminal LawConsolidation Act discussed - applications to quash to stay the information dismissed.
Criminal Law Consolidation Acts5c, referred to. Thompson v R (1989) 169 CLR
1; Mulcahy v R (1868) LR 3 HL 606; R v Rogerson (1992) 174 CLR 268; Liangsiriprasert v United States (1991) 1 AC 225; R v Treacy (1971) AC 537; R v Doot (1973) AC 807; Board of Trade v Owen (1957) AC 602; R v Coz (1968) 1 All ER 410; Attorney-General's Reference (No. 1 of 1982) (1983) 1 QB 751; Re Hamilton-Byrne and Ors (1995) 1 VR 129; R v Kron (Court of Criminal Appeal NSW - Unreported 28/3/95); Viro v R (1978) 141 CLR 88; Cook v Cook (1986) 162 CLR
376; Bassell v McGuiness (1981) 29 SASR 508; R v Hansford (1974) 8 SASR 164; R v Collins (1986) 44 SASR 214; DPP v Doot (1973) AC 807; Re Skewes and Ors
(1981) 7 A Crim R 276; DPP v Stonehouse (1978) AC 55; Brownlie v SPCC (1992) 27 NSWLR 78, applied. Macleod v The Attorney-General for NSW (1891) AC 455; Huntington v Attrill (1893) AC 150; Libman v R (1985) 21 CCC (3d) 206; Mayer v Henderson (1993) 68 A Crim R 155: R v Cantanzariti and Ors (unreported, Judgment Number 5298, available on SCALE) considered.
HRNG ADELAIDE, 3, 9-10, 16 October 1995 #DATE 3:11:1995 #ADD 13:12:1995
Counsel for plaintiff DPP: Mr M Boylan with
Mr M Hinton
Solicitors for plaintiff DPP: DPP (SA)
Counsel for defendant Winfield: Mr M Barnett
Solicitors for defendant Winfield: Galbally Fraser and Rolfe
Counsel for defendant Chandler: Mr C Caldicott (16 Oct),
in person (3, 9-10 Oct)
Solicitors for defendant Chandler: Caldicott and Co.
Defendant Lipohar: In person
ORDER
Applications dismissed.
JUDGE1 LANDER J The three accused were arraigned on 3 October 1995, having been charged on information with:
"First Count Statement of Offence
Conspiracy to Defraud. (Common Law and Section 270(2) of
the Criminal Law Consolidation 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 PT 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.
Second Count Statement of Offence
Attempted False Pretences. (Sections 195 and 270a of the
Criminal Law Consolidation 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, together with Roosevelt Tan and
Jack Samardzija attempted to obtain from Collins Street
Properties Pty Ltd an incentive payment in the sum of about
$6,500,000 by falsely pretending 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."
2. Whilst the accused were arraigned and pleaded not guilty, the parties thereafter treated their plea as being one of a denial of jurisdiction rather than a submission to jurisdiction. The accused have each elected, subject to this Court being satisfied that it has jurisdiction, for trial by judge alone (s7 Juries Act 1927).
3. After the arraignment I was presented with seven volumes of declarations, together with a further eight volumes of exhibits which were referred to in those declarations by the Director of Public Prosecutions (DPP), who, with the agreement of each of the accused, requested that I read those documents for the purpose of consideration of various applications.
4. Each of the accused have applied, pursuant to Rule 8 of the Supreme Court Criminal Rules for an order quashing the information on the ground that the information is bad because it does not disclose an offence triable in the Courts of South Australia.
5. In the alternative, again pursuant to Rule 8 of the Supreme Court Criminal Rules, each of the accused seeks an order that further proceedings upon the information be permanently stayed upon the grounds that the conduct alleged in the information does not disclose any offence justiciable or triable in the Courts of South Australia, or alternatively, the Courts of South Australia have no jurisdiction to try the conduct alleged, and that, in the circumstances, to proceed further with the information would be an abuse of process, or in the alternative, insofar as the Criminal Law Consolidation Act and, in particular, s5c of that Act, purports to operate so as to make the conduct alleged in the information justiciable or triable in the Courts of South Australia, it is ultra vires the law-making power of the State of South Australia and is thereby invalid. Further, in the further alternative, insofar as the Criminal Law Consolidation Act has valid extra-territorial operation to make the conduct alleged in the information justiciable or triable in South Australia, the prosecution, upon the information, is foredoomed to failure for the reasons set out above and should be thereby stayed as an abuse of process.
6. After the applications under Rule 8 were argued, the Court convened for the purpose of hearing other voir dire applications pursuant to Rule 9 of the Supreme Court Criminal Rules. At that time counsel for the DPP entered a nolle prosequi in relation to the second count and that nolle prosequi was noted. The other voir dire applications have been argued and separately disposed of and all that remains to be decided are the applications under Rule 8.
7. The accused's applications therefore fall to be considered upon the basis that they each are only charged jointly with conspiracy to commit fraud at common law and under the Criminal Law Consolidation Act.
8. As I have stated, I was provided with voluminous material which the parties asked me to read for the purpose of this application.
9. That material contained formal material relating to the structure of companies, material directly related to these charges and material relating to other transactions which took place not in Melbourne, but in Sydney, and which did not involve Collins Street Properties Pty Ltd, but which has been supplied to me, because it is the intention of the DPP in due course to seek to lead that evidence as similar fact evidence.
10. Whilst I was given a very large body of material, I think the allegations which are relevant for the purpose of this application can be stated reasonably simply.
11. In setting out the facts which are alleged, I shall not continue to state that they are at this stage allegations, but simply state the allegations in narrative form, but in doing so it must be understood that I am making no findings, nor drawing any inferences whatsoever.
12. Collins Street Properties Pty Ltd was incorporated in South Australia on 15 March 1991 as Penzina Pty Ltd and changed its name to its current name on 10 July 1991. Its registered office is situated at 211 Victoria Square, Adelaide, and its principal business office is also at 211 Victoria Square, Adelaide.
13. The principal Executive Officer of the company is Mr Malcolm Jones of Beaumont in this State and there are two secretaries of the company, Messrs Sheldrick and Lang, of Millswood and Dernancourt, respectively, in South Australia. There are six directors of the company, four of whom are resident in South Australia, and two of whom are resident in New South Wales. The auditors of Collins Street Properties Pty Ltd appointed under the Corporations Law are resident in South Australia.
14. Collins Street Properties Pty Ltd has issued two fully paid $1.00 shares which are beneficially owned by SGIC Pty Ltd whose address is given care of State Government Insurance Commission, 211 Victoria Square, Adelaide.
15. SGIC Pty Ltd is also incorporated in this State and its registered office and principal place of business is also at 211 Victoria Square, Adelaide. It has the same directors and secretaries as Collins Street Properties Pty Ltd. It has two shareholders, Mr Malcolm Jones and Mr Sam Scammell who hold the shares on behalf an entity not disclosed, but I understand the ultimate beneficial owner of those shares to be the State Government Insurance Commission (SGIC).
16. SGIC is a statutory corporate body, incorporated under the State Government Insurance Commission Act 1970-1974. By virtue of s3(3) of the State Government Insurance Commission Act 1970, SGIC is subject to the control and directions of the Government of the State of South Australia, acting through the Minister. SGIC consists of five members appointed by the Governor of South Australia (s3(5)). Under s14 of the Act, all real and personal property of SGIC is held by the Commission for and on behalf of the Crown in the right of the State of South Australia.
17. It would follow that the shares which it held by virtue of its beneficial shareholding in SGIC Pty Ltd in Collins Street Properties Pty Ltd were held according to the injunctions in s14 of the Act.
18. The principal activity carried on by Collins Street Properties is that of a trustee (property trust). Collins Street Properties Pty Ltd owns the building at 333 Collins Street, Melbourne.
19. Malcolm Jones was employed by SGIC as its manager and held directorship in Collins Street Properties Pty Limited and SGIC Pty Limited and was the principal executive officer of the first mentioned company.
20. Darren Rehn was employed by SGIC as Manager, Property Investments, and one of his responsibilities was the management of 333 Collins Street.
21. John Apps was employed by Collins Street Properties Pty Limited as the manager of the building at 333 Collins Street from November 1990 to 30 June 1992.
22. Baillieu Knight Frank (Vic) Pty Ltd (BKF) of 360 Collins Street, Melbourne, was employed by Collins Street Properties Pty Limited to act as that company's letting agent in the letting of that building.
23. BKF employed Darryl Browning as head of its leasing department, and Paul Toussaint and Stuart Wardrop as leasing negotiators. Messrs Toussaint and Wardrop acted in conjunction and were answerable to Mr Browning.
24. Jones Lang Wootton (JLW) were retained by Collins Street Properties Pty Limited to act as managers and leasing agents of 333 Collins Street and Paul Griffiths was employed by JLW as a Building Engineer Manager.
25. P T Mecosin Indonesia is a company which was incorporated in Indonesia in 1961. In 1963 it ceased operations but was 'resurrected' in 1965. The company had as its principal shareholders and controllers at different times, members of the same family. In 1984 Artir Haslim became the principal director of the company and two of his brothers also became directors, one of whom assumed the position of Chairman of the company. At that stage a major shareholder of the company was Mrs Muliani Widjava, who was the mother of those three directors.
26. In September 1991 an extraordinary general meeting of the company was called and at that meeting the three brothers resigned from their respective positions and a fourth brother, Edward Suwardi Salim was appointed Chairman of the company and Dra Inge Maslim was appointed sole director.
27. The principal business of P T Mecosin Indonesia is the manufacture of Filarzan, which is a drug used in the treatment of Filariasis (Elephantiasis) which is apparently a disfiguring and crippling disease prevalent in Indonesia, and Trivexan which is a drug used to eradicate a wide variety of intestinal worms.
28. P T Mecosin (Australia) Limited was incorporated in Queensland on 3 June 1991. The Memorandum of Association shows that its original subscribers and their subscription to be:
"P.T. MECOSIN INDONESIA 35 000
JALAM PALMERAH UTRA 14A
JEKARTA
INDONESIA 11480
ROOSEVELT TANN 1 000
C/- JALAM PALMERAH UTRA 14A
JEKARTA
INDONESIA 11480
SWISS SECURITIES USA INC. 12 000
237 PARK AVENUE
NEW YORK
NEW YORK
U.S.A. 10017
ALLAN GEORGE RAINOR 1 000
C/- 237 PARK AVENUE
NEW YORK
NEW YORK
U.S.A. 10017
PETER RAYMOND WINFIELD 1 000
395 LOFTS ROAD
WESTLAKE QLD. 4074"
29. Its principal place of business is at Level 15, Brisbane Club Tower, 241 Adelaide Street, Brisbane, Queensland, and its principal activity, investment.
30. Initially, Peter Raymond Winfield of Westlake, Queensland, Allan George Rainor of New York, USA, Ranko Pavlovich of Heidelberg, Germany, and Brian Gretton of Kangaroo Point, Queensland, consented to become directors, but Mr Winfield was not appointed a director. Shares were allotted in accordance with the memorandum, except that Mr Winfield did not take up his subscription.
31. Mr Anthasios Georgeopoulos became a director on 14 June 1991 and resigned on a date that is unclear.
32. One of the accused, Mr Ian Chandler, became a director again on a date that is not entirely clear.
33. On 12 December 1991 Mr Chandler was also appointed a director of the Australian Fidelity Friendly Society, which is a body incorporated under the Friendly Societies Act 1991 (Queensland).
34. Swiss Securities USA Inc was incorporated in New York on 11 August 1989. Initially its Chief Executive Officer was Mr Jack Samardzija, its Vice-President, the accused, Mr Winfield, and its President, Dr Ranko Pavlovic II. Mr Winfield and his wife were shareholders and each held 2 000 000 partly paid shares. The shares were issued on terms that the balance payable (0.99 cents) on the shares was due on 1 January 1990. That required a payment by each of Mr and Mrs Winfield of US$1.98 million on that date.
35. On 4 January 1991 Mr and Mrs Winfield called a meeting of creditors, pursuant to Part X of the Bankruptcy Act. Their major creditor was Swiss Securities USA Inc.
36. That company eventually became a major subscriber in P T Mecosin (Australia) Ltd.
37. The accused, Edward Lipohar, is resident in Melbourne.
38. On 18 November 1991 Mr Wardrop received a telephone call from Mr Chandler, who told Mr Wardrop that he was calling from Brisbane and was enquiring after 3 000 square metres of office space in Melbourne. He told Mr Wardrop that he was an independent property consultant acting on behalf of an Indonesian pharmaceutical company which wanted to set up its headquarters in Melbourne. He also told Mr Wardrop that that company wished to remain unnamed at that stage.
39. In response to that enquiry Mr Wardrop sent Mr Chandler a list of properties and Mr Chandler responded to that with a further telephone call to Mr Wardrop and at that stage inquired after the six major buildings then available in Melbourne. Mr Wardrop sent him details of those buildings and later that day received a reply from Mr Chandler on a letterhead which disclosed his address as Level 15, 215 Adelaide Street, Brisbane, in the following terms:
"20th November
Attn Mr. Stuart Wardrop
Baillieu Knight Frank
Fax (03) 604-4750
Stuart,
Further to our telephone conversation of today I wish to
express my clients (sic) intentions and procedures in
respect of the premises situated at 333 Collins St
Melbourne.
RE:
Level 15
Lease term 12 years
Option 5 years
Rental $500.00 per sqm.
INCENTIVES:
1 year rent free
3 years cash
Fitout to be supplied by vendor
Cash and incentive to be secured by first mortgage over
Commercial Melbourne CBD property - dollar for dollar or
better. (This eliminates attraction of tax on incentives
and secures vendor)
This security to be held by vendors for four years and
released upon expiration of this time.
Before we can proceed any further my client wishes to have
the vendor accept the terms set out in principal subject to
covenant being acceptable.
Looking forward to your reply at your earliest convenience.
Yours sincerely
Ian D Chandler"
40. The response of Mr Chandler of 20 November did not disclose who the proposed lessee would be, but the facsimile transmission showed it to have been sent from Westworld Film.
41. Westworld Film Corporation Ltd is a company incorporated in Queensland, having as its directors, Allan Rainor, Ranko Pavlovich, Dean Marshal Davis and Jack Miroslav Samardzija.
42. The major shareholders of the company are Swiss Securities USA Inc (15 000), Exxon Oil Corporation Ltd (40 000), Ranko Pavlovich (15 000), Jack Samardzija (20 000) and Roosevelt Tan (10 000).
43. Exxon Oil Corporation Ltd also carries on business at Level 15, 215 Adelaide Street, Brisbane.
44. The letter of 20 November sought incentives being one year rent free and three years cash. The cash and incentive were to be secured by first mortgage over a commercial Melbourne CBD property, but the property was not identified.
45. The original communication from Mr Chandler of 20 November was not signed as a result of which Mr Wardrop sought a signed copy of the letter which was transmitted later that day.
46. After receipt of the communication from Mr Chandler, Mr Browning of BKF sent a memorandum to Mr Apps of Collins Street Properties in the following terms:
"We have been approached by Mr. Ian Chandler, independent
property consultant in Brisbane who is acting on behalf of
an Indonesian Pharmaceutical Company who has decided to set
up their Australian headquarters in Melbourne and has
earmarked 333 Collins Street as the base in which they wish
to start negotiating to conclude a deal by the earliest
possible date.
It would be our recommendation that we proceed to the next
stage and that Collins Street Properties Pty. Ltd. agree in
principle to the incentive as stated in Mr. Chandler's
letter (copy attached) in order that we are able to proceed
further with this requirement.
We would be pleased if you could discuss the foregoing with
SGIC as a matter of urgency as I think there is real scope
to conclude a deal this side of Christmas.
We look forward to discussing this with you further."
47. On 26 November Mr Wardrop, on behalf of BKF responded to Mr Chandler's offer.
48. The communication stated, inter alia:
"Our client has no basic problems with respect to the
incentives with the exception that any fitout to be supplied
by our client would come out of the three years cash
contribution that our client would make to your client.
The other proviso would be that our client would require a
guarantee over the entire lease period. This guarantee
could be in the form of personal director's guarantees which
we understand your client is prepared to give.
With respect to the first mortgage over a commercial
Melbourne CBD property, dollar for dollar value or better,
our client has no major concerns with this.
NOTE: The contents of this letter are subject to our
clients (sic) formal Board approval.
We trust the above satisfies you and your client at this
stage, and we look forward to proceeding to the next stage
of negotiations."
49. On 27 November 1991 Mr Toussaint sent a memorandum to Mr Apps which calculated the net present value of the incentive payment to be $5 466 840.40.
50. Sometime between 26 and 28 November Mr Chandler asked Mr Wardrop for BKF's client's approval to the offer made of 20 November. Mr Chandler indicated that upon that approval being given he would reveal his client's identity.
51. In response to that request Mr Wardrop responded in a letter of 28 November, the relevant portion of which was:
"We refer to our letter of the 26th November, 1991 and
subsequent telephone conversation and wish to confirm that
at this stage of pre-negotiation, the owners of 333 Collins
Street is (sic) unable to confirm in writing the current
verbal proposal without knowledge of the tenant."
52. On 1 December 1991 a telephone conversation took place between Mr Wardrop and Mr Chandler, in which Mr Chandler sought a commission for himself of $20 000, which was to be payable by BKF upon finalization of the lease and BKF's receipt of its commission in respect of the leasing. He confirmed that request in writing on the same day.
53. That was responded to in writing on 3 December 1991 in which BKF agreed to pay a commission of $15 000 to Mr Chandler for his part in the transaction, provided that his client executed a lease document satisfactory to BKF's client and provided that BKF itself received its commission from its client.
54. Some time after that date and before 6 December Mr Chandler advised Mr Wardrop that he was acting on behalf of the Mecosin group.
55. On 6 December 1991 BKF wrote to Mr Chandler in the following terms:
"We refer to our letter of 3rd December 1991 and subsequent
telephone conversation and confirm the name of your client,
being Mecosin Group, and we understand that this group may
be involved in a joint venture with a building society.
We ask that you provide detailed information with respect to
your client, as outlined below, in order for our client to
adequately assess the potential of your client:-
1. Full details of the Directors of your client company,
together with personal asset and liability statements of
each Director.
2. Fully audited trading figures for your client company
over the last three yeas.
3. A detailed description of the type of business your
client wishes to carry out.
4. The address and any tenancy details regarding the
building currently owned by your clients in Melbourne's
Central Business district.
5. Any other relevant information that you believe would be
of benefit for our client to know.
We look forward to receiving the requested information and
at a later date receiving an offer from your client.
Please contact the writer should you require clarification
of any of the above."
56. It can be seen from that letter that BKF was by then aware of the name of Mr Chandler's client, namely the Mecosin group, and secondly, something had apparently been said in relation to the involvement of the Mecosin group and a building society in a joint venture.
57. The letter of 6 December, after reciting those facts, seeks, as can be seen, further details of the corporate structure of the Mecosin group. In response to that request, a confidentiality agreement was sent by Mr Chandler to BKF. That was executed on 10 December 1991 by both Collins Street Properties Pty Ltd, through the agency of Mr Apps and BKF, through the agency of Mr Toussaint, and returned to Mr Chandler on 11 December 1991.
58. Either on or immediately before 11 December 1991 a conversation was had with the accused, Mr Winfield. A letter of 11 December 1991, to which I will have regard shortly, refers to that discussion being between Mr Winfield and Mr Wardrop. Mr Toussaint, in his declaration, says that he had a conversation on the same day with Mr Winfield. He said to Mr Winfield, "If you are a consultant, then who is Ian Chandler? What is his role in this?" Mr Winfield was very direct and authoritative and told Mr Toussaint that all the details which BKF required would be sent to its office by courier. He told Mr Toussaint that he wished to have a meeting on 23 December 1991 with representatives from SGIC and BKF, specifically asking for "decision makers" to attend.
59. The letter of 11 December 1991 from BKF addressed to Mr M. Winfield, care of the P T Mecosin group, stated inter alia:
"Further to your recent discussion with Mr. Stuart Wardrop
of our office with respect to 333 Collins Street, we now
take pleasure in enclosing for your consideration further
information on the building together with relevant terms and
conditions.
The property is now owned by Collins Street Properties Pty
Ltd, a wholly owned subsidiary of the State Government
Insurance Commission of South Australia which is guaranteed
by the Government of South Australia. State Government
Insurance Commission is rated by Standard and Poor's
Australia Pty Limited at a rating of AA and Moody's
Investors Service Inc. Aa1.
State Government Insurance Commission has demonstrated its
commitment to the building by the rationalisation of the
ownership and management structure. This now presents the
opportunity to initiate and conclude commercial negotiations
in a prompt and efficient manner."
60. That communication to Mr Winfield revealed to him that Collins Street Properties Pty Limited was the owner of the property at 333 Collins Street and was itself owned by SGIC, which was an instrumentality rated highly in financial markets and guaranteed by the government of South Australia.
61. The letter also referred to the terms and conditions of a lease of an area of approximately 3 000 square metres and then went on to describe in favourable and striking terms the building itself.
62. In furtherance of the telephone call of 11 December with Mr Winfield, on 17 December 1991 Mr Toussaint sent a memorandum to John Apps (with copies to Mr Rehn of SGIC and Mr Wardrop of BKF) advising that Mr Winfield was sending information relating to the Mecosin Group, and that further he had requested a meeting for Monday, 23 December, with "the decision makers from the lessor company (SGIC), Baillieu Knight Frank (Vic.) Pty. Ltd. and the Mecosin Group's consultant, Mr. Winfield".
63. On 18 December 1991 Mr Chandler wrote to Mr Wardrop enclosing a formal response to Collins Street Properties Pty Ltd leasing submission, and stated:
"Representatives of the Mecosin Group will fly to Melbourne
on Monday the 23rd of December in order to meet with you and
your clients (sic) representatives.
Would you kindly ensure that the attached material is
submitted to your clients in ample time for them to consider
all relevant matters prior to such meeting.
Could you also ensure that your clients (sic)
representatives be fully authorised to finalise any
arrangement that may be agreed. I trust that we can
finalise this transaction at the proposed meeting as up to
this point I have managed to deter any other approaches."
64. The formal response sent on 18 December was on the letterhead of Mr Chandler and was dated 17 December 1991. I will not set out the whole of that response, but it included the following:
"The Mecosin Group hereby offers to lease the whole of the
second floor as summarised and on the basis set out in the
attached BKF report dated 11th December 1991 and on those
further terms and conditions now referred:"
65. That response referred to the BKF letter of 11 December 1991, which was the letter that was addressed to Mr Winfield. The prosecution case would be that the response by Mr Chandler showed firstly that Mr Winfield had received the letter, and secondly, that he had published the letter to Mr Chandler. No doubt also, and perhaps on the prosecution case, more importantly, it will be argued that the publication of that letter to Mr Chandler gave Mr Chandler the information as to the ownership of the property and the ownership of Collins Street Properties Pty Limited and the other matters to which I have already referred.
66. The formal response also included the following:
"4. INCENTIVE
In line with the offer outlined to the Lessee, the Lessor
shall settle the following lease incentive with the Lessee
as part of the proposed Lease.
a) 12 Months free rent commencing on and from the
commencement date of the lease (exclusive of outgoings).
AND
b) The Lessor shall pay to the Lessee a cash amount
equivalent to 36 months rental according to the commencement
rental rate. This shall be paid to the Lessee as
consideration for the lease and guarantee documentation
being executed by the Lessor or it solicitors.
OR
c) The Lessor shall pay to the Lessee a cash amount
equivalent to 42 months rental according to the commencement
rental rate. This shall be paid to the Lessee as
consideration for the lease documentation being executed by
the Lessor and the granting of a first mortgage over a
Melbourne CBD property the value thereof exceeding or equal
to the cash component of the incentive payment.
...
6 CONFIDENTIALITY
The Lessor, its agents and representatives and others who
are directed by the Lessor in the business of the Lessee,
shall keep confidential the identity of the Lessee until the
Lessee's official Australian launch planned for the
beginning of the second quarter in 1992.
7. LESSEE
THE MECOSIN GROUP
HEAD OFFICE
JALAN PALMERAH UTARA No 14 A
JAKARTA 11480
...
9. DIRECTORS (sic) GUARANTEES
MR AZHAR ARTIR
HASLIM SH
LIM SOAN HONG
JALAN PALMERAH UTARA No 14 A
JAKARTA 11480
MR ROOSEVELT TAN
JALAN PALMERAH UTARA No. 14 A
JAKARTA 11480"
67. The response concluded:
"This offer is made this (18th) day of (December) 1991 and
remains open unless revoked for unconditional acceptance by
the Lessor until December 31, 1991."
68. At about the same time as the communication of the formal response, someone, and it is presently not clear to me whom, sent to BKF information about the Mecosin group. I will not set out all of the information, but it includes a document headed, "P T Mecosin (Australia) Limited - Australian Expansion Strategy". That document included projections as to future expansion, funding and income. It also talks of a formal launch to be in April 1992, which will include the attendance of Commonwealth Ministers. It also includes a document headed, "Message from the Board of Directors" and pictures of the Board. The persons pictured, as I understand the prosecution case, had ceased to be directors in September 1991. The document also included financial statements of the group, a "Comprehensive Credit and Business History Report" and a "Recent Banker's Opinion".
69. The proposed meeting of 23 December 1991 did not take place for reasons which are not entirely clear, but in response to the letter of 18 December 1991 from Mr Chandler, Mr Toussaint wrote to Mr Winfield on 24 December 1991 in the following terms:
"We acknowledge receipt of the letter from Mr. I.D. Chandler
dated December 18, 1991, comprising an offer to lease office
accommodation on Level 2 at 333 Collins Street on behalf of
the Mecosin Group.
We understand that you will be responsible for negotiating
the terms and conditions of the lease agreement on behalf of
the Mecosin Group and liaising with Baillieu Knight Frank or
Collins Street Properties Pty. Ltd. on all aspects relating
to this matter.
The owners of 333 Collins Street, Collins Street Properties
Pty. Ltd., are interested in securing the Mecosin Group as a
long term tenant at 333 Collins Street and look forward to
meeting with yourself and representatives of the Mecosin
Group to discuss this matter further.
We understand that you will be in contact with Mr. John Apps
to arrange a mutually convenient time for this meeting."
70. Nothing much seems to have happened between the period shortly before Christmas 1991 and 21 January 1992, although either Mr Toussaint or Mr Wardrop attempted to contact Mr Winfield on 15 January 1992.
71. On 21 January 1992 a letter was written under the name of P T Mecosin Group to Mr Toussaint, enclosing "Additional terms and conditions for proposed lease 2nd floor 333 Collins Street, Melbourne, Australia".
72. The letter itself is not unimportant. It states:
"We have been advised by Mr Winfield that your client is not
confident of his position in assisting our group in its
accommodation requirement in Australia. We understand that
there may have been some confusion as to the role of Mr Ian
Chandler in these negotiations also. We are also concerned
that your client is not taking our interest in your clients
(sic) building seriously at this time, even though it has
had the benefit of privileged information and documentation
forwarded by us to it, as well as a formal submission for
the area on the second floor.
Should your client be serious in leasing the proposed space
to us, we encourage them to deal exclusively with
Mr Winfield, in whom we have full confidence. Mr Chandler
is not an officer of the corporation neither does he hold an
executive position with the group. As you well know,
Mr Chandler is an agent who referred your clients (sic)
building to us and we understand you have entered into
commission arrangements with him in that regard.
As stated in our submission, we are keen to finalise our
accommodation requirement in Melbourne as soon as possible.
You should be aware that we have received proposals for
other suitable locations within the Melbourne CBD. We will
strongly consider the advise (sic) and recommendation of
Mr Winfield in our final decision.
Please advise your client that we would like to know of its
decision to our amended proposal in the next few days.
Mr Winfield will tend to any further matters in this
regard."
73. The additional terms and conditions included, inter alia:
"4. INCENTIVE
The Lessor shall settle the following lease incentive with
the Lessee as part of the proposed Lease.
a) 12 months rent free commencing on and from the date of
the lease (exclusive of outgoings); and
b) the Lessor shall pay to the Lessee a cash amount
equivalent to 36 months rental according to the commencement
rental rate. This shall be paid to the Lessee in exchange
for the lease and guarantee documentation being executed by
the Lessee and Guarantors, and delivered to the Lessor or
its solicitors.
...
6. CONFIDENTIALITY
The Lessor, its agents and representatives and those other
(sic) who are directed by the Lessor in the business of the
Lessee, shall keep confidential the identity of the Lessee
until the Lessee's official Australasian launch planned for
the beginning of the second quarter in 1992.
7. LESSEE
P.T. MECOSIN INDONESIA
HEAD OFFICE
JALAN PALMERAH UTARA No 14 A
JAKARTA 11480
...
9. DIRECTORS (sic) GUARANTEES
MR AZHAR ARTIR
HASLIM SH
LIM SOAN HONG
JALAN PALMERAH UTARA No 14 A
JAKARTA 11480
10. LEASE SECURITY
Upon the execution of the Lease by both parties, the Lessor
shall accept a 'Bank Promissory Note' (BPN) issued by the
Lessee's bank as security on the lease and in exchange for
the payment by the Lessor to the Lessee the cash incentive
mentioned in Section 4(b) hereof. The terms of the BPN
shall be as follows:-
a) Amount (face value)
US$10 Million
b) Term (call date)
Not before five (5) years from the date of the Lease.
c) Holder
The lessor shall hold the BPN during the first five years of
the lease or in any event for the full term of the BPN. At
the expiry of the BPN term, the Lessor shall return the BPN
to the Lessee, provided the Lessee shall not be in a state
of default according to the provisions of the lease at such
time. In the event that the Lessee is in default, the
Lessor shall be at liberty to call up the BPN in application
for exchange to the bank forthwith without reference to the
Lessee."
74. It would seem from a facsimile transmission, that that communication emanated from Mr Winfield. The facsimile shows the sender to be:
"FROM: MARK WINFIELD
STRATEGIC ENTERPRISES LTD
GPO BOX 2222
BRISBANE QLD 4001
PH (07) 397 4222
FAX (07) 397 5454"
75. That offer was in turn communicated by Mr Toussaint to Mr Apps and Mr Rehn.
76. On 22 January 1992 Mr Toussaint had a telephone conversation with Mr Winfield who requested the name of the person within the lessor with whom P T Mecosin Indonesia bankers ought to communicate. On the same day Mr Toussaint drafted a communication to Mr Winfield in the following terms:
"Further to our conversation of January 22, 1992, we
understand that PT Mecosin Indonesia will instruct their
bankers to contact the lessor (Collins Street Properties
Pty. Ltd.) to discuss the details of the proposed guarantee
for the proposed lease agreement at 333 Collins Street.
The relevant person to contact is as follows:-
Mr. Malcolm Jones,
General Manager Finance,
State Government Insurance Commission,
211 Victoria Square,
ADELAIDE SA 5000.
GPO Box 1814 (Postal Address)
ADELAIDE SA 5001
Telephone: (08) 233 1000
Facsimile: (08) 233 1089
We trust the above is satisfactory to your purposes,
however, should you require any additional information,
please do not hesitate to contact the writer."
77. Mr Jones was a director of Collins Street Properties Pty Ltd, SGIC Pty Limited and held the position indicated with SGIC.
78. As a result of the telephone discussion with Mr Winfield on the dame day, Mr Toussaint wrote to Mr Rehn of the SGIC in the following terms:
"We refer to correspondence from the Mecosin Group dated
January 21, 1992, outlining the terms and conditions
agreeable to the Mecosin Group together with details of the
proposed guarantee to be provided for the lease agreement at
333 Collins Street.
Mr. Winfield has requested we provide PT Mecosin with the
details of the relevant person from SGIC so that they may
instruct their bankers to discuss the details of the
proposed guarantee directly with SGIC's financial
representative. It is Mecosin's preference to ensure that
the guarantee is acceptable to both parties before any
further time is spent on negotiations.
I have attached a copy of a draft letter which may be
suitable to forward to Mr. Winfield subject to SGIC's
approval, which refers to Mr. Malcolm Jones as a contact.
Should you prefer to nominate yourself in this instance
please advise.
I await your reply."
79. The letter referred to a copy of the draft to which I have already had regard, which indicated to the addressee that in answer to their oral request which had been communicated in writing as set out above, P T Mecosin ought to deal with Mr Malcolm Jones, General Manager Finance, State Government Insurance Commission.
80. That correspondence and the earlier correspondence is relied upon by the prosecution to establish that two of the conspirators at this point in time were aware of the details of ownership of 333 Collins Street, ownership of Collins Street Properties Pty Ltd, and that the ultimate victim of the conspiracy would be the State Government Insurance Commission, which is resident in South Australia. Whether that knowledge is important for the purpose of the proof of the elements of the said to be offence is another matter.
81. It appears the draft communication was sent later that day to Mr Winfield in the same terms.
82. On 29 January 1992, Mr Toussaint wrote to Mr Winfield at Strategic Enterprises Ltd in Brisbane in response to the letter of 21 January 1992 and the offer contained in that letter. I set out relevant aspects of that communication:
"We refer to your letter of January 21, 1992, with regard to
your client's interest in leasing office accommodation at
333 Collins Street, Melbourne. We provide the following
leasing proposal for PT Mecosin Indonesia which is subject
to final approval by the lessors board of directors and the
lessee providing a guarantee to the lease which is
acceptable to the lessor.
...
Incentive: a) Rent Free Period
Twelve months rent free commencing from the commencement
date of the lease agreement (exclusive of outgoings).
b) Incentive
The lessor to provide the lessee with a cash amount
equivalent to 36 months rental in accordance with the rental
commencement rate. These monies shall be transferred to the
lessee in exchange for the signed lease together with the
guarantee documentation being executed by the lessee and
guarantors and delivered to the lessor or its solicitors.
...
Confidentiality: The lessor and its agents and
representatives and those others who are directed by the
lessor in the preparation of the lease shall keep
confidential the identity of the lessee until the lessee's
official Australian launch planned for the beginning of the
second quarter in 1992.
Lease Security: The lessee shall provide a guarantee to
secure the lease which is acceptable to the lessor. We have
been advised that this guarantee will be in the form of a
Bank Promissory Note.
Note: This Promissory Note to be from a local bank and
shall be for:
a. Amount face value $US10 million
b. Term (Call Date)
Not before twelve (12) years from the lease commencement
date."
83. The reference in the letter of 29 January 1992 to the matter of the negotiations being subject to Board approval, caused a reaction from Mr Ian Richardson, who claimed to be the solicitor to PT Mecosin.
84. He spoke to Mr Toussaint, and advised Mr Toussaint that his client had previously sought an offer directly from Mr Toussaint's client to lease the subject premises, subject only to Mr Toussaint's client being satisfied as to the security being offered.
85. Mr Richardson apparently advised that his client believed an offer subject to Board approval was insulting and was in some ways indicative of xenophobic behaviour. Apparently, on 30 January Mr Richardson advised that the offer, in its form, meant that all further negotiations were to cease.
86. Those allegations were confirmed by Mr Richardson in a letter dated 31 January 1991, written on the letterhead of Australian Fidelity Friendly Society to Mr Toussaint.
87. Mr Richardson's letter of 31 January, to which I have referred, was the subject of a reply of even date by Mr Toussaint and I set out the first paragraph of that reply:
"Further to our conversation of January 30, 1992, we
understand that your client requires an unconditional offer
to lease office accommodation at 333 Collins Street, subject
to your client providing acceptable guarantees to the
Lessor. Unfortunately, the owners of 333 Collins Street
(Collins Street Properties Pty. Ltd. a company owned by the
South Australian Government Insurance Commission) are
publicly accountable and therefore the clause 'Subject to
Board Approval' is required."
88. Notwithstanding Mr Richardson's statement that all negotiations were to cease, there were in fact, further negotiations. Some days before 7 February 1992 Mr Apps spoke to Mr Winfield. As a result of that communication, which I shall refer to later, on 7 February Collins Street Properties Pty Ltd, itself, through Mr Apps, wrote directly to Mr Winfield in relation to PT Mecosin Indonesia's interest in leasing accommodation at 333 Collins Street.
89. In that letter Collins Street Properties offered to lease to PT Mecosin Indonesia the premises situate at levels eleven and twelve at 333 Collins Street, Melbourne. The lease term was to be for twelve years, commencing on 1 March 1992, with an option period available at the lessee's request. The proposal of the 7 February 1992 set out matters relating to annual rental and rent reviews and the usual matters relating to outgoings and some matters relating to car parking.
90. In relation to an incentive it was proposed:
"a) Rent Free Period
Twelve months (sic) rent free commencing from the
commencement date of the lease agreement (exclusive of
outgoings).
b) Incentive
The lessor to provide the lessee with a cash amount
equivalent to 36 months rental in accordance with the rental
commencement rate. These monies shall be transferred to the
lessee in exchange for the signed lease together with the
guarantee documentation being executed by the lessee and
guarantors and delivered to the lessor or its solicitors."
91. As can be seen, the incentive required the payment of the incentive moneys in exchange for the signed lease and guarantee documentation having been executed by the lessee and guarantors.
92. The lease security sought by Collins Street Properties Pty Ltd was identified as follows:
"The lessee shall provide a guarantee to secure the lease
which is acceptable to the lessor. We have been advised
that this guarantee will be in the form of a Bank Promissory
Note.
Note: This Promissory Note to be from an international bank
and shall be for:
a) Amount face value $U10 million
b) Term (Call Date)
Not before twelve (12) years from the lease commencement
date."
93. The letter confirmed the previous conversation which had occurred on the Thursday before this date in which the following points had been agreed.
"1. A letter of offer, subject to 'Board Approval' would be
forwarded (offer enclosed).
2. PT Mecosin or its representatives will confirm
acceptance of this offer in writing.
3. Once the offer has been confirmed by PT Mecosin,
representatives of Collins Street Properties will have the
right to contact the relevant bankers acting on behalf of
PT Mecosin to resolve and agree on the International
Promissory Note which is to form the basis of the
guarantee."
94. On 10 February the accused, Mr Lipohar, inspected 333 Collins Street, and in particular, the floors then under negotiation, being levels eleven and twelve. The inspection was in the company of Mr Apps and Mr Griffiths. Mr Lipohar introduced himself as Mr Lippy and told Messrs Apps and Griffiths that he represented P T Mecosin and was looking for suitable premises for that company.
95. During the inspection Mr Lipohar took a number of photographs, made notes and sought answers to technical and non-technical questions from those other gentlemen. He told Mr Apps that he was highly impressed with the office accommodation and that his report, which he had to submit to Mecosin by the following Monday, would be favourable.
96. Mr Winfield, in a letter written by him dated 11 February 1992, advised Mr Apps that Mr Lipohar, whom he called Mr Lippy, had forwarded a report to himself, as instructed, which addressed some of the questions raised concerning layout, security and services.
97. Mr Winfield wrote on 11 February:
"We are satisfied that 333 Collins street (sic) is the
premium building in Melbourne and will complement the image
Mecosin will insist upon as they establish their presence in
this country."
98. That letter then addressed the offer of 7 February 1992 in these terms:
"I confirm receipt of your amended fax dated the 7th
February and advise that P.T.Mecosin Indonesia accept the
offer set out therein. Mecosin now ask that you submit your
lease and guarantee documentation to their solicitors in
Brisbane, Mr Ian G Richardson who can be contacted on 07 221
1000. We also ask that this lease proposal (as agreed
between the parties), be submitted to the Board of the SGIC
for approval forthwith and an answer put before Mecosin
enabling the commencement of their program."
99. The letter also sought information in relation to plans, fit out, security, surveillance, building accessibility and a list of other tenants. In conclusion, Mr Winfield wrote:
"We ask that upon board approval of Mecosin by SGIC, your
Mr Malcolm Jones, General Manager Finance, contact
P.T. Mecosin's bankers under invitation at that time to
finalise matters concerning the international promissory
note pursuant to the security under the lease. The
solicitor for Mecosin will provide these details to Mr Jones
regarding same.
Thank you for your expediency and I look forward to this
deal being concluded successfully. Please advise myself in
the first instant of the decision of the board."
100. The letter was signed by Mr Winfield who described himself as "Mark Winfield, Authorised to negotiate on behalf of the Mecosin Group". That letter, as the prosecution case shows, reveals Mr Winfield's knowledge that SGIC, as the ultimate owner of the property, had to approve the lease and thus the payment of the incentive, which, of course, would ultimately have been at the cost of SGIC.
101. On 19 February 1992 Mr Toussaint calculated the net present value of the cash fitout to be $6 466 025, which information he gave to Mr Apps.
102. I think Board approval, of a kind, was given sometime in February 1992. Solicitors (Mr McKenzie of Finlaysons) were instructed on behalf of the lessors.
103. On 28 February 1992 Mr Malcolm Jones wrote to Mr Winfield of Strategic Enterprises Ltd in the following terms:
"The Board of Collins Street Properties Pty Ltd has approved
the offer submitted to you on 7 February 1992, by Mr John
Apps with the lessee arranging security for its obligations
in a form satisfactory to our solicitors.
As advised, the Board has a definite preference for the
security being an irrevocable letter of credit confirmed by
an Australian trading bank. Apparently, there is settled
practice governed by Uniform Customs and Practice rules in
respect of this form of security which should be acceptable
to all parties involved in providing the letter of credit
and parties that may be relying upon it. As you suggested,
this issue may be advanced by your client's bank contacting
our solicitors, Finlaysons, represented by Mr George
McKenzie, telephone number (08) 235 7400.
As you would appreciate, our Board requires that lease
documentation be prepared to its satisfaction and that of
our solicitors.
You have previously indicated that part of the incentive
will be applied to fitting out the premises. I am sure
there is a mutual desire for you to quickly fit out and
occupy the premises and accordingly, it would seem
advantageous to both parties if the time period within which
the fitout is to be completed and the premises occupied, and
the amount to be expended on the fitout is agreed and
reflected in the documentation.
In order to assist in the preparation of the lease
documentation, could you please advise the name and the
identity of the lessee.
We look forward to conducting this transaction in an
expeditious manner."
104. It was after that correspondence that a meeting occurred on 5 March 1992. It is not entirely clear how and by whom that meeting came to be arranged, but that probably does not matter.
105. On 5 March 1992 a meeting took place. Mr Apps, of Collins Street Properties Pty Ltd and Mr Rehn of SGIC travelled to Brisbane for the purpose of attending that meeting with Mr Winfield and other Mecosin representatives.
106. The main purpose of the meeting was a concern on the part of the prospective lessors over the security which would be provided for the lease.
107. Mr Rehn and Mr Apps were met at the Brisbane airport by a male person who introduced himself as Mark Winfield. They had not previously met Mr Winfield as all communication with him had either been by telephone or by facsimile transmission. They accompanied Mr Winfield to 215 Adelaide Street, Brisbane. At that address they went to the offices described as Westworld Film Corporation. Mr Apps observed that these offices also claimed to be the offices of Mr Winfield, described as a property consultant, and Mr Ian Richardson, described as a solicitor, Australian Fidelity Friendly Society and Mr I.D. Chandler, described as a property consultant.
108. Mr Apps and Mr Rehn then met with Mr Winfield, a Mr Gary Herring, a Mr John Tunn and a lady who acted as stenographer, and at that time discussed Mecosin's proposal to lease, and in particular, details of a guarantee to be given by Mecosin.
109. At that meeting Mr Rehn handed to Mr Winfield copies of Collins Street Properties' draft leasing documents. Those documents had been prepared by Mr George McKenzie, a partner of Messrs Finlaysons, Solicitors of 81 Flinders Street, Adelaide.
110. The meeting of 5 March discussed the form of securities to be given by Mecosin. The conversation was mainly had between Mr Rehn and Mr Winfield. Mr Rehn told Mr Winfield that Collins Street Properties Pty Ltd did not want a promissory note, but rather a letter of credit from an Australian bank. He gave as his reason that there are international bank rules which govern a letter of credit, but no international bank rules applicable to a promissory note. Mr Winfield advised that Mecosin did not have any business dealings with any Australian bank and that Mecosin would have difficulties in meeting the requirement. Mr Winfield stated that Collins Street Properties ought not to have problems in accepting a promissory note from a reputable international bank and he proposed that the Krung Thai Bank would provide that promissory note. Mr Rehn had not previously heard of that bank.
111. Mr Winfield advised that details of the promissory note had been faxed to SGIC's solicitors.
112. The meeting concluded with that exchange of information and after Mr Rehn had handed to Mr Winfield drafts of the leasing documents.
113. Subsequent to that meeting, but on the same day, Mr George McKenzie, in Adelaide, received a document under the letterhead of Krung Thai Bank Ltd. It read, and I set out its terms in full:
"Re: P.T. Mecosin Indonesia
Pursuant to instructions by our client, P.T. Mecosin
Indonesia, we are issuing a Bank Promissory Note to the
amount of USD10 Million (United States Dollars Ten Million).
We have been advised to forward the verbiage for your
perusal.
Enclosed you will find the terms and conditions of our
Promissory Note which is issued in accordance with the laws
of I.C.C. Paris. Please note that in this instance the
clauses 1 to 5 are not applicable.
Should any queries arise, please do not hesitate to contact
the writer on fax number 66-2-5392284."
114. On the reverse side it set out the "terms and conditions" -
"1. Evidence of The Loan
This Note is one of a series of Notes and ranks pari passu
and rateable without preference or priority against the
other Notes subject to date of maturity mentioned overleaf.
2. Interest Rate
Interest is payable as directed overleaf.
3. Payment
The payment of principal and interest in the currency of
this Note shall be made in favour of the Lender at the bank
mentioned on the front side of this Note who has been
appointed by the Borrower as Paying Agent.
4. Evidence of Default
The total principal amount of the Loan and interest accrued
will immediately become repayable without prior notice if
the Borrower fails for fourteen days to make a payment
wholly or partly when due on any obligation for capital or
interest.
5. Financial Information
The Borrower is obliged to deliver, without demand, to the
Lender within six months after the end of its business year
a copy of its audited Balance Sheet and Statement of Profit
and Loss together with the Annual Report.
6. Assignment of Note
This Note is freely assignable or endorseable (sic) to third
parties.
7. Discharge of Note
Surrender of this Note to the Borrower against payment of
its face value and interest accrued shall constitute a
complete discharge to the Borrower of its obligations under
said Note.
8. Choice of Law
This Note shall be governed by and construed and interpreted
in accordance with the Laws of I.C.C., Paris."
115. A summary of the topics that were discussed at the meeting of 5 March 1992 is contained in a letter of 6 March 1992 from Mr Apps to Mr Winfield and I set out that letter:
"I refer to the above prospect tenancy and confirm that at
our meeting on Thursday afternoon, March 5, at which Darren
Rehn and myself attended, the following points were
discussed:
1. A list of the requirements that P.T. Mecosin need to
fulfil to satisfy Collins Street Properties (sic)
requirements.
2. A request from Collins Street Properties for a detailed
dossier on the company together with its last three years
trading figures, was requested.
3. A 'draft' copy of documents was handed over for perusal
by Mecosins (sic) solicitors, both locally and in Indonesia.
4. It was made clear by Collins Street Properties (sic)
representatives that the proposed deal is contingent on
satisfactory financial guarantees being put in place which
will satisfy Collins Street Properties.
We further confirm that you advised that you believed that
all documentation and signing of lease documents should be
finalised and delivered to the owners by the end of March.
We will now await your further advice and action."
116. Whilst Mr Rehn was en route to Adelaide he heard and saw media reports to the effect that several people had been arrested in Adelaide in relation to dealings with the Krung Thai Bank.
117. On his return to Adelaide he received the following letter:
"6th March 1992
Mr John Apps
Owner's Representative
333 Collins Street
Melbourne VIC 3000
Mr Darren Rehn
Manager Property Investment
SGIC
211 Victoria Square
Adelaide SA 5001 (sic)
By Fax 03 204 3366
By Fax 08 233 1010
Dear Gentlemen,
Thankyou (sic) for taking the time to meet with myself and
Mecosin representatives in Brisbane yesterday. Matters
raised at that meeting have been relayed to Mecosin in
Indonesia and they have been given a total update of the
situation.
Late last night I was contacted by Mecosin and asked to
withdraw the offer to lease space in 333 Collins Street. I
have been given limited details of their change in
direction, however believe it to be related to other
initiatives they are undertaking at this time in Australia
at a corporate level. I eluded (sic) to some of these
during our meeting.
Thank you for your prompt attention to date and I will
advise you should the matter be given further consideration
in the future.
Kind regards,
(Signature)
Mark Winfield"
118. That, in a broad sense, sets out the DPP case in relation to the charges. The DPP will seek to support the prosecution case with similar fact evidence and other evidence, but that other evidence is not relevant to a consideration of these applications.
119. The prosecution case, put simply, is that a conspiracy to defraud was arrived at outside the State of South Australia, with the object of the conspiracy being to defraud corporate citizens resident within the State.
120. It is in those circumstances each of the accused submits that there is no jurisdiction for this Court to try the charge remaining on the information.
121. The Court is able to inquire into the question of jurisdiction upon the allegations made by the Crown and the Court need not first make findings of fact before reaching a conclusion as to jurisdiction. I have, as I have said, made no findings of fact, but I have simply recounted the prosecution case as I understand it. In Thompson v R (1989) 169 CLR 1 at pages 21-22, Brennan J said:
"The arbiter of jurisdiction is the judge, not the jury.
There can be no hearing and determination of the charge by
the jury unless the court has jurisdiction to do so. Of
course, the judge has jurisdiction to inquire into any facts
that are necessary to determine the court's jurisdiction to
hear and determine the charge but, in this country, I do not
think that jurisdiction to hear and determine a charge
depends upon the fact - as distinct from the allegation -
that the crime occurred within a particular territory."
122. The accused are charged with conspiracy to defraud, which is a common law offence. The information also refers to s270(2) which reads:
"Any person convicted of any of the following common law
offences, that is to say, any conspiracy to cheat or
defraud, or to extort money or goods, or false to accuse of
any crime, or to obstruct, prevent, pervert or defeat the
course of public justice, shall be liable to be imprisoned
for a term not exceeding seven years."
123. Section 270(2) is relevant, therefore, only to the question of penalty upon conviction of the common law offence.
124. Conspiracy consists of an agreement to do an unlawful act, or to do a lawful act by unlawful means, and it is an offence, whether it be carried into effect or not. Conspiracy to defraud consists of an agreement between two or more persons, to deprive a person of their property by dishonesty. Conspiracy is an inchoate act, a preparatory offence, and it acquires its criminal character from the object which it envisages, but it is the agreement which gives rise to the indictability. Mulcahy v R (1868) LR 3 HL 606; R v Rogerson
(1992) 174 CLR 268.
125. The particulars of this offence are that the accused, between the dates alleged, agreed together and with other persons to defraud a South Australian company of an incentive payment by falsely representing to that company that P T Mecosin (Australia) Ltd was a representative of the Indonesian company and that the Australian company intended to comply with the terms of a lease agreement in relation to part of a property situate at 333 Collins Street, Melbourne, and further that a Krung Thai Bank Promissory Note was a good and valid negotiable instrument.
126. In the circumstances of this case the prosecution allege that this was a conspiracy to do an unlawful act, i.e. to defraud. The agreement which is alleged to have been made was entered into outside of this State. Some, but not all of the representations alleged in the particulars also apparently occurred out of this State. The party to which the agreement to do the unlawful act was directed, and who would have been the victim of the illegal act was resident in South Australia, and would have paid the moneys from this State after a decision was made within this State to do so.
127. Lord Halsbury LC said in Macleod v The Attorney-General for New South Wales (1891) AC 455 at 458-459, when considering a construction of an Act of Parliament of the colony of New South Wales:
"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."
128. In Huntington v Attrill (1893) AC 150, Lord Watson, in giving the opinion of the Privy Council said at pages 155-156:
"The general law upon this point has been correctly stated
by Mr Justice Story in his 'Conflict of Laws,' and by other
text writers; but their Lordships do not think it necessary
to quote from these authorities in explanation of the
reasons which have induced courts of justice to decline
jurisdiction and suits somewhat loosely described as penal,
when these have their origin in a foreign country. The rule
has its foundation in the well recognised principle that
crimes, including in that term all breaches of public law
punishable by pecuniary mulct or otherwise, at the instance
of the State Government, or of some one representing the
public, are local in this sense, that they are only
congnizable and punishable in the country where they were
committed. Accordingly no proceeding, even in the shape of
a civil suit, which has for its object the enforcement by
the State, whether directly or indirectly, of punishment
imposed for such breaches by the lex fori ought to be
admitted in the courts of any other country."
129. In Thompson v R Deane J said at page 33:
"There are special circumstances in which acts committed
outside a particular territory are so connected with it that
their proscription and punishment can legitimately be seen
as part of both the government of that territory and the
government of the territory in which the acts occurred.
Putting such cases to one side, 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: see, e.g., Reg. v Keyn
(1876) 2 Ex D 63 at pages 68, 117, 152, 160-161, 239."
130. The reason for the proposition that all crime is local is clear enough. The purpose of the criminal law is the protection of the citizens of the State and not for the purpose of the protection of other persons of other States. Those other persons will be protected by their own criminal justice system. Liangsiriprasert v United States (1991) 1 AC 225 per Lord Griffiths at page 244.
131. Another reason to justify the proposition is said to be found in the recognition of the international rules of comity. As Lord Diplock said in R v Treacy (1971) AC 537 at page 561:
"It would be an unjustifiable interference with the
sovereignty of other nations over the conduct of persons in
their own territories if we were to punish persons for
conduct which did not take place in the United Kingdom and
had no harmful consequences there."
132. Whilst accepting the principle that a State has no interest in the criminal conduct of the citizens of another State, committed in that other State, or indeed, except in some special circumstances recognized by the law, of the conduct of its own citizens in that other State, the abstract proposition as stated by their Lordships in Macleod v The Attorney-General for New South Wales and Huntington v Attrill has led to considerable difficulties in determining when a court can assume jurisdiction.
133. The proposition is easy enough to apply in circumstances where a crime such as larceny is committed by a citizen of another State in that other State or a citizen of this State in another State, but it is less easy to apply the proposition to inchoate crime or to what has been more recently described as trans-national crime.
134. Crime has ceased in fact to be local in its planning or consequences. It has become, especially in the case of an inchoate crime, trans-national in its operation. Liangsiriprasert v United States at page 251. In R v Doot
(1973) AC 807, Lord Wilberforce said at page 817:
"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 L.C.'s words in Macleod v
Attorney-General for New South Wales (1891) A.C. 455 or
otherwise, which can solve these."
135. If it is said that the State is not interested in the protection of the citizens of another State and therefore jurisdiction is denied that is in logic a sound reason for assuming jurisdiction where the crime is committed outside the State, but with its object the harm of persons within the State.
136. So also, if it is for reason of international comity that jurisdiction is declined, for the same reason jurisdiction might be assumed where the conspiracy took place in this State, even though the object of the conspiracy is harm to persons outside the State. As Lord Diplock said in R v Treacy at page 562:
"Indeed, where the prohibited acts are of a kind calculated
to cause harm to private individuals it would savour of
chauvinism rather than comity to treat them as excusable
merely on the ground that the victim was not in the United
Kingdom itself but in some other state."
137. Notwithstanding his Lordship's reasons, the fact that the victim or the object of the conspiracy was outside the United Kingdom did lead to a determination that jurisdiction ought to be declined in Board of Trade v Owen
(1957) AC 602. In that case the respondents were convicted of a charge of a conspiracy in England to defraud an export control department of the Federal Republic of Germany by falsely representing that certain goods would be consumed in Ireland when the respondents knew they would be consumed in Czechoslovakia, Poland, Romania and the USSR.
138. Lord Tucker said at pages 624-625, after referring to observations of Wright J in his Law of Criminal Conspiracies and Agreements published in 1873:
"My Lords, I have thought it right to cite these passages to
show how ill defined and uncertain were the limits of this
crime in 1873, and I may add that neither subsequent
judicial decision nor legislation has helped to set limits
or afford more certainty. It is the law on this subject
which your Lordships are now asked to expound in relation to
agreements to commit crimes or other unlawful acts out of
the jurisdiction in a country where criminal conspiracy is,
according to the evidence given at the trial, unknown to its
own law. The gist of the offence being the agreement,
whether or not the object is obtained, 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 within 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 attempt."
139. After discussing Sir William Holdsworth's history of English Law, his Lordship went on to say at page 626:
"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. I
cannot, therefore, accept the view that the locality of the
acts to be done and of the object to be attained, are
matters irrelevant to the criminality of the agreement."
140. In the end his Lordship went on to say at page 634:
"I have reached the conclusion that the decision of the
Court of Criminal Appeal that a conspiracy to commit a crime
abroad is not indictable in this country unless the
contemplated crime is one for which an indictment would lie
here as correct, and from what I have already said it
necessarily follows that a conspiracy of the nature of that
charged in count 3 as proved in evidence - which, in my
view, was a conspiracy to attain a lawful object by unlawful
means, rather than to commit a crime - is not triable in
this country, since the unlawful means and the ultimate
object were both outside the jurisdiction. In so deciding,
I would, however, reserve for future consideration the
question whether a conspiracy in this country which is
wholly to be carried out abroad may not be indictable have
on proof that its performance would produce a public
mischief in this country or injure a person here by causing
him damage abroad."
141. His Lordship confined himself to crimes of conspiracy, and indeed, Lord Diplock said in R v Treacy at page 563:
"He (Lord Tucker) 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."
142. Clearly enough, however, the case stands as authority for the proposition that where the conspiracy is entered into in England, to attain a lawful object by unlawful means outside of England, the conspiracy is not indictable in England.
143. In Board of Trade v Owen, Lord Tucker reached his conclusion for the reason that conspiracy is a crime because it is necessary to preserve the Queen's peace and maintain the law within the realm. As the objects of the conspiracy were outside the realm so it followed there was no threat to the Queen's peace. One would think, therefore, that it would be consistent with his Lordship's reasoning that if the objects of the conspiracy were within the realm, that jurisdiction would be assumed. Professor Glanville Williams in an article Venue and the Ambit of Criminal Law (1965) 81 LQR 518, said:
"It seems to follow from Owen as a logical corollary that
our courts will assume jurisdiction to punish a conspiracy
entered into abroad to commit a crime here. Although the
general principle is that crimes committed abroad do not
become punishable here merely because their evil effects
occur here, there may well be an exception for inchoate
crimes aimed against persons in this country. Since
conspiracy is the widest and vaguest of the inchoate crimes,
it seems clear that the rule for conspiracy must apply to
the more limited crimes for incitement and attempt also."
144. That would be consistent, or at least not inconsistent, with what Lord Tucker said at page 634:
"In so deciding I would, however, reserve for future
consideration the question whether a conspiracy in this
country which is wholly to be carried out abroad may not be
indictable here on proof that its performance would produce
a public mischief in this country or injure a person here by
causing him damage abroad."
145. Whilst Board of Trade v Owen was a case of conspiracy to achieve a lawful object by unlawful means, the Court of Criminal Appeal in England was concerned with a conspiracy formed in England to commit a crime abroad in R v Cox ((1968)) 1 All ER 410. The Court said at page 413:
"There is no doubt at all, as indeed the House of Lords
contemplated in Board of Trade v. Owen ((1957) 1 All ER 411;
(1957) AC 602), that even as the law stands it might be
possible to indict persons here for conspiracy if the
conspiracy consisted of committing crimes abroad, provided
it could be shown that the performance of the conspiracy
would cause a public mischief in this country or injure a
person here by causing him damage abroad. Neither of those
possibilities referred to in the speech of Lord Tucker
((1957) 1 All ER at pp 412-422; (1957) AC at pp 621-634)
comprises the situation with which this court has to deal
today."
146. Again the Court left open the question of an assumption of jurisdiction in circumstances where harm is caused to persons within the jurisdiction.
147. Board of Trade v Owen was followed by the Court of Appeal in England in Attorney-General's Reference (No. 1 of 1982) (1983) 1 QB 751, which concerned, again, a conspiracy in England, to commit a crime in Lebanon.
148. It was also followed by the Full Court of the Supreme Court of Victoria in Re Hamilton-Byrne and Ors (1995) 1 VR 129. The facts in that case were that the accused were charged with two offences, the first being a common law offence of conspiracy to defraud, and the second being a conspiracy to commit perjury or make a false statutory declaration contrary to the law of New Zealand. The Crown case was that the accused had in Victoria made false declarations, pursuant to s11 of the Oaths and Declarations Act 1957 (New Zealand), to the effect that three children had been born in New Zealand to the accused as triplets when in fact each of the children had been born in Victoria to different mothers.
149. Tadgell J said at page 142:
"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 s.80A 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 Queens'
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."
150. The Victorian Full Court was asked not to follow Board of Trade v Owen and to follow Libman v R (1985) 21 CCC (3d) 206, a decision of the Supreme Court of Canada. The Court, at page 139, declined to apply the Canadian decision in preference to the decision of the House of Lords because the Canadian decision-
"... did not deal with a common law conspiracy to defraud
and it did not deal with a conspiracy 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. Nor
did it deal with a conspiracy to commit a crime in a foreign
country."
151. Wright J was presented with the same submission in Mayer v Henderson
(1993) 68 A Crim R 155, but he found it unnecessary to attempt to resolve any differences in the approaches adopted in the Board of Trade v Owen and Libman v R. He was able to distinguish the Board of Trade v Owen upon its facts.
152. Of course the factual situation in Board of Trade v Owen is the reverse of the factual situation in this case, which on the Crown case is an agreement entered into outside of the jurisdiction with the intent of injuring persons within the jurisdiction.
153. It is to be remembered that Lord Tucker in Board of Trade v Owen expressly found that the charge was not indictable in England because it did not affect the Queen's peace in England. In this case, the Crown's case is that the Queen's peace within this jurisdiction is affected by the conspiracy which has been entered into outside of the jurisdiction. In that respect this case is the antithesis of the decision in the Board of Trade v Owen .
154. A number of tests have been developed for the determination of jurisdiction. The more common have included the initiatory test, the terminatory test, the essential element test, the continuing offences test, and the test which examines the gravamen of the offence. I have already pointed to the test of the interference with Queen's peace. The tests are not necessarily exclusive of each other, but if one of those tests can be satisfied, then Courts have assumed jurisdiction. The initiatory test has been largely discredited, and in Australia, the terminatory test more widely accepted; R v Kron (Court of Criminal Appeal NSW - Unreported 28 March 1995).
155. In Libman v R , La Forest J drew together the English legal background dealing with the question of criminal jurisdiction. He pointed to a number of cases which showed that the Courts have taken different positions at different times and raised different tests for the determination of whether jurisdiction should be assumed. La Forest J concluded at page 232 that the universal test for jurisdiction in Canada is that there be a real and substantial link between the offence and Canada.
156. Counsel for the DPP urged me to adopt one of two tests, being either, that the conduct complained of affects the Queen's peace in South Australia, or that there is a real and substantial connection between the criminal conduct and the State of South Australia.
157. The second test is that stated by La Forest J which would require me to decline to follow the decision in Board of Trade v Owen , and probably even more importantly, to decline to follow Re Anne Hamilton-Byrne. I think to decline to follow authorities of such persuasiveness would be inappropriate. A decision of the House of Lords whether technically binding or not, is highly persuasive; Viro v R (1978) 141 CLR 88; Cook v Cook (1986) 162 CLR 376 per Mason, Wilson, Deane, Dawson JJ at 390. A decision of a Full Court of another State is a persuasive precedent of great authority. Bassell v McGuiness (1981) 29 SASR 508.
158. Such a course is also unnecessary, because in my opinion, those two cases are not inconsistent with the first test propounded by counsel for the DPP, nor inconsistent with the terminatory test which has been applied in this State. R v Hansford (1974) 8 SASR 164; R v Collins (1986) 44 SASR 214.
159. In The Laws of Australia, Volume 9, The Criminal Laws, paragraph 119, the authors write:
"In the Australian Capital Territory, territorial
jurisdiction exists where one or other of three common law
tests is satisfied. The first test appears to be whether an
'essential element' of the offence was committed within the
territorial boundaries. A second test, known as the
'terminatory' test, is geared to whether the accused's act,
or the result or effect of that act, terminated within the
territorial limits. The third test is whether the conduct
of the accused adversely affected the peace, welfare or good
government of the Territory. Special statutory provisions
govern territorial jurisdiction in the context of unlawful
homicide.
In New South Wales and South Australia, the position is the
same as in the Australian Capital Territory, except that an
additional statutory basis of territorial jurisdiction has
been introduced. This statutory basis of jurisdiction
requires a territorial nexus between the State and at least
one element of the offence, and a territorial nexus exists
if the element is or includes an event occurring in the
State; or the element is or includes an event that occurs
outside the State while a person alleged to have committed
the offence is in the State. These rules are a particular
expression of the 'peace, order and good government' test."
160. The terminatory test allows for the assumption of jurisdiction in offences of conspiracy. That is so because although the alleged conspiracy may have been entered into outside the jurisdiction, the unlawful object of the conspiracy is committed or intended to be committed in the State. Indeed, the assumption of jurisdiction where the objects of the conspiracy are within the jurisdiction is not inconsistent with the reasoning in Board of Trade v Owen. It was the fact that the Queen's peace was not affected which gave rise to the declining of jurisdiction, so it would follow that where the objects of the conspiracy will affect the Queen's peace, jurisdiction ought to be assumed.
161. So also it would follow that the offence of conspiracy is justiciable in a State where the intended object of the conspiracy would affect the peace, welfare or good government of that other State. That may also be described as a circumstance where the Queen's peace is affected. There are a number of authorities for the proposition that a conspiracy entered into outside the forum State is justiciable where the object of that conspiracy is intended to affect the peace, order and good government, or the Queen's peace in the forum State, or is intended to terminate within the forum State.
162. In DPP v Doot (1973) AC 807, the respondents who were American citizens agreed outside England to import drugs into the United States via England. Drugs were brought into England and were discovered in the ports from whence it was intended to ship the drugs to the USA. The question which was reserved for the House of Lords and which their Lordships answered in the affirmative was:
"Whether an agreement made outside the jurisdiction of the
English courts to import a dangerous drug into England and
carried out by importing it into England is a conspiracy
which can be tried in England."
163. That case, of course, included acts which were performed in England and is therefore authority for that alone. However, their Lordships left open the question of whether a conspiracy formed outside England without any act performed in England would still be justiciable.
164. DPP v Doot was followed in Victoria in Re Skewes and Ors (1981) 7 A Crim R 276. In Re Skewes and Ors four persons were charged in Victoria with conspiracy to aid and abet counsel and procure diverse persons to contravene the Commercial Goods Vehicles Act 1958 (Victoria). The Crown case was that the conspiracy was hatched in South Australia by four residents of South Australia. Two of the conspirators had entered Victoria for the purpose of recruiting persons to contravene the Victorian Statute. The Crown contended that it was a conspiracy to commit offences in Victoria against the laws of Victoria and was implemented in Victoria by the commission of the offences which the conspirators contemplated. Anderson J said at pages 287-288:
"The Crown approach was accordingly twofold. In the first
place, the conspiracy was a conspiracy to aid, abet, counsel
and procure the commission of offences in Victoria, and was
complete upon the hatching of the conspiracy even though no
act was done by any of the conspirators in the furtherance
of the conspiracy. Had the hatching occurred in Victoria,
courts of this State there and then would have had
jurisdiction to try the conspirators. The Crown conceded
that some nexus with Victoria was required in the present
case, but contended that such nexus was afforded by the acts
of Vyner-Smith and Eldridge in Victoria in canvassing, as
the evidence showed, for operators in Victoria to adopt the
scheme. It would have been complete, the Crown argued, even
though such solicitation had not been successful. As
authority for the proposition that, even though the
agreement constituting the conspiracy is made outside
Victoria, Victorian courts would have jurisdiction if an act
is done in Victoria by one or more conspirators in
furtherance of the conspiracy, the Crown relied on such
cases as Brisac (1803) 4 East 164; 102 ER 792; Kellow
(1912) VLR 162; and D.P.P. v Doot (1973) AC 807. These
cases would seem amply to support such a view."
165. After discussing DPP v Doot his Honour said at page 289:
"As well as endorsing the views of the other members of the
House, Lord Salmond gives a further reason why a conspiracy
of the nature dealt with in Doot's case and the subject of
the applications now before this Court, was justiciable in
the country against whose laws the conspiracy was directed.
His Lordship said, at pp. 832-833:
'Accordingly, having regard to the special nature of the
offence a conspiracy to commit a crime in England is, in my
opinion, an offence against the common law even when entered
into abroad, certainly if acts in furtherance of the
conspiracy are done in this country. There can in such
circumstances be no doubt that the conspiracy is in fact as
well as in theory a real threat to the Queen's peace.'
And later, his Lordship said, at p.833:
'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 here. It is unnecessary for
me to consider what the position might be if the
conspirators came to England for an entirely innocent
purpose unconnected with the conspiracy. If, however, the
conspirators come here and do acts in furtherance of the
conspiracy, for example, by preparing to commit the planned
crime, it cannot, in my view, be considered contrary to the
rules of international comity for the forces of law and
order in England to protect the Queen's peace by arresting
them and putting them on trial for conspiracy whether they
are British subjects or foreigners and whether or not
conspiracy is a crime under the law of the country in which
the conspiracy was born.'"
166. It seems to me that Re Skewes and Ors, like DPP v Doot, is authority for the proposition that a conspiracy entered into outside the jurisdiction is justiciable if an act is done within the jurisdiction in furtherance of the conspiracy.
167. The allegations in this case included an allegation that at least one act was performed in South Australia, namely the publication of the Krung Thai Bank promissory note. Upon that basis, DPP v Doot and Re Skewes and Ors would be decisive of the matter in issue.
168. In DPP v Stonehouse (1978) AC 55 a Member of Parliament insured his life in England for the benefit of his wife. He then went abroad and fabricated the appearance of his death. He was charged in England with attempting to obtain, in England, property by deception. He argued that the offence of an attempt to obtain property by deception was not justiciable in England. The House of Lords concluded that the offence was justiciable because the acts, even though done outside the jurisdiction, had the result of obtaining the property from the persons to whom it belonged in England. Lord Diplock said at page 67:
"The accused had done all the physical acts lying within his
power that were needed to comply with the definition of a
complete crime justiciable by an English court; and his
state of mind at the time he did them also satisfied the
definition of that crime. All that was left was for him not
to be found out before the intended consequence could occur.
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 caused 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 no 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."
169. He went on to say later at the same page:
"If in order to found jurisdiction it were necessary to
prove that something had been actually caused to happen in
England by the acts done by the offender abroad a qualified
answer to the certified question would be called for. I do
not think that it is necessary. So I would answer with an
unqualified 'Yes'."
170. The application of that reasoning to this case would make this charge justiciable.
171. In Liangsiriprasert v United States the Privy Council was concerned with a question of extradition which depended upon it being established that the Courts in Hong Kong had jurisdiction to hear the charges. The circumstances of the alleged offence were a conspiracy entered into in Thailand with the intention of committing the criminal offence of trafficking in drugs in Hong Kong. It was argued that such did not make the offence justiciable in Hong Kong, and alternatively, a conspiracy entered into outside of Hong Kong to commit an offence in Hong Kong was not justiciable in Hong Kong unless an overt act was committed in Hong Kong.
172. Lord Griffiths said at page 244:
"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."
173. His Lordship discussed the modern authorities and then said this at page 250:
"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."
174. His Lordship went on to say at page 251:
"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.
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.
This then is a sufficient reason to justify the magistrate's
order under crime 1."
175. It follows on his Lordship's reasoning that a crime is justiciable if the conspiracy has in its contemplation the commission of a criminal offence within the jurisdiction. It is not necessary to prove an overt act within the jurisdiction.
176. Whilst I believe R v Doot is of itself authority for the assumption of jurisdiction, in this case I think Liangsiriprasert v United States makes certain that the charge is justiciable.
177. In my opinion, where a conspiracy has been entered into outside South Australia, a Court will assume jurisdiction if that conspiracy is either to terminate within the State, or alternatively the object of the conspiracy would lead to a breach of the Queen's peace, or alternatively, as it may be put, interfere with the peace, welfare and good government of this State.
178. In my opinion, upon the allegations, and of course I only consider this matter upon the allegations, this Court is entitled to assume jurisdiction because the ultimate object of the conspiracy was the defrauding of Collins Street Properties Pty Ltd or SGIC Pty Ltd, or SGIC, which would be a circumstance which could affect the peace, welfare and good government in this State.
179. I have reached the conclusion at which I have arrived without reference to s5c of the Criminal Law Consolidation Act 1935.
180. Section 5c reads:
"(1) An offence against the law of the State is committed
if -
(a) all elements necessary to constitute the offence
(disregarding territorial considerations) exist; and
(b) a territorial nexus exists between the State and at
least one element of the offence.
(2) A territorial nexus exists between the State and an
element of an offence if -
(a) the element is or includes an event occurring in the
State; or
(b) the element is or includes an event that occurs outside
the State but while the person alleged to have committed the
offence is in the State.
(3) The existence of the territorial nexus required by
subsection (1)(b) (the 'necessary territorial nexus') will
be presumed and the presumption is conclusive unless
rebutted under subsection (4).
(4) If a person charged with an offence disputes the
existence of the necessary territorial nexus, the court will
proceed with the trial of the offence in the usual way and
if at the conclusion of the trial the court or, in the case
of a jury trial, the jury is satisfied, on the balance of
probabilities, that the necessary territorial nexus does not
exist, it must,subject to subsection (5), make or return a
finding to that effect and the charge will be dismissed.
(5) If the court or, in the case of a jury trial, the jury
would, disregarding territorial considerations, find the
person not guilty of the offence (but not on the ground of
insanity), the court or jury must make or return a finding
of not guilty.
(6) The issue of whether the necessary territorial nexus
exists must, if raised before the trial, be reserved for
consideration at the trial.
(7) A power or authority exercisable on reasonable
suspicion that an offence has been committed may be
exercised in the State if the person in whom the power or
authority is vested suspects on reasonable grounds that the
elements necessary to constitute the offence exist (whether
or not that person suspects or has any ground to suspect
that the necessary territorial nexus with the State exists).
(8) This section applies to offences committed before or
after its commencement but does not apply to an offence if -
(a) the law under which the offence is created makes the
place of commission (explicitly or by necessary implication)
an element of the offence; or
(b) the law under which the offence is created is a law of
extraterritorial operation and explicitly or by necessary
implication excludes the requirement for a territorial nexus
between the State and an element of the offence; or
(c) a charge had been laid before the commencement of this
section.
(9) This section is in addition to and does not derogate
from any other basis on which the courts of the State may
exercise criminal jurisdiction.
(10) In this section -
'event' means any act, omission, occurrence, circumstance or
state of affairs (not including intention, knowledge or any
other state of mind);
'State' includes -
(a) the territorial sea adjacent to the State; and
(b) the sea on the landward side of the territorial sea
that is not within the limits of the State.
(11) Where a person charged with a particular offence could
be found guilty on that charge of some other offence or
offences, that person will, for the purposes of this
section, be taken to be charged with each offence."
181. Counsel for the DPP, and Mr Barnett, who appeared for Mr Winfield, and the accused, Mr Chandler and Mr Lipohar, who adopted Mr Barnett's submissions, submitted that s5c is not concerned with indictability, but only concerned with locality. It was submitted that the "offence" appearing in s5c had to be understood to mean an offence known to the law of South Australia. The distinction between issues of locality and indictability was identified by Brennan J in Thompson v R at page 22, where his Honour said:
"The term 'jurisdiction' in this context is attended with a
certain ambiguity. It may refer to the authority of the
court to hear and determine the issues arising in a criminal
trial, or it may refer to the power of the court to enter a
judgment of conviction and to impose a penalty after hearing
the determining the issues. Jurisdiction in the latter
sense does depend on the jury's verdict when the accused
pleads not guilty to the indictment: the power of the court
to enter a judgment of conviction and to punish depends upon
a guilty verdict. All the facts on which liability to
conviction depends are facts to be found by the jury. In
other words, if the charge alleges the commission of an
offence against the law administered by the court (the law
of the forum), the court has jurisdiction to hear and
determine the charge, but when an issue is raised as to the
locality of the offence the jury may have to decide the
issue in order to determine whether the conduct charged
falls within the territorial ambit of the law of the forum.
Locality then become a fact on which liability to conviction
depends. In R v Johnson ((1805) 6 East 583 (102 ER 1412))
the court noted the difference between a plea to the
jurisdiction of the court to hear and determine a charge and
a plea of not guilty on the ground that the acts charged did
not fall within the law applicable to the accused."
182. In R v Kron, Gleeson CJ said:
"Issues as to jurisdiction to try an offender, and issues as
to the location of the actus reus of an offence, are not
identical. However, the issues as to where an offence is
committed, and whether it is justiciable by a New South
Wales court are often closely related."
183. In Brownlie v SPCC (1992) 27 NSWLR 78 at page 83, Gleeson CJ said;
"However, offences sometimes relate to conduct which may
take place across territorial boundaries. Upon the basis of
the so-called 'terminatory theory' of criminal jurisdiction,
there is no doubt about the jurisdiction of a New South
Wales court to try a person who is charged with a 'result
offence' where the result is one that occurs, or, is likely
to occur, in New South Wales, even though the acts bringing
about that result took place outside New South Wales, for
example, Director of Public Prosecutions v Stonehouse.
Issues as to jurisdiction to try an offender are not
identical with issues as to the location of the actus reus
of an offence, but there are some common considerations that
apply. Where a certain result is an essential part of
conduct constituting a given offence, then that conduct may
be relevantly regarded as local if the result in question is
one occurring within the territory in question."
184. It was submitted that s5c was enacted in response to the decision in Thompson v R and that fact and the fact that s5c(4) reserved the question for the jury, established that s5c was concerned only with locality and did not of itself confer jurisdiction. It was still necessary, it was put, to first establish that the offence was an offence against the laws of South Australia and justiciable in South Australia. That submission is consistent with the view expressed by Matheson J in R v Catanzariti and Ors (Unreported Judgment No. 5298, 18 October 1995. unreported, available on SCALE). The applicability of the equivalent to s5c, namely s3A of the Crimes Act 1900 (New South Wales) was left open in R v Kron.
185. I have reached the conclusion at which I have arrived, namely, that the charge is justiciable in South Australia without the need to determine whether s5c has any wider application than an application as to the question of locality.
186. The applications of all three accused, pursuant to Rule 8, for orders quashing or staying the information are dismissed.
- AGLC
- R v Mark Jeffrey Winfield, Ian David Chandler and Edward Lipohar No. SCCRM 95/216 Judgment No. 5325 Number of Pages 40 Criminal Law (1995) 65 Sasr 121 [1995] SASC 5325
- Case
- [1995] SASC 5325
- Decision Date
CaseChat Overview and Summary
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