R v Petropoulos & Taddeo No. DCCRM-97-195 Judgment No. D3725

[1997] SADC 3725

R  v  GEORGE PETROPOULOS and FIORALDO TADDEO

FILE NO. DCCRM-97-195

REASONS FOR RULING OF HIS HONOUR JUDGE WILSON

ON QUESTION OF JURISDICTION

(relating to page 184 of transcript)

DELIVERED ON MONDAY, 1 DECEMBER 1997

THE BACKGROUND

The two accused are charged with taking part in the sale of cannabis, contrary to s.32(1)(d) of the Controlled Substances Act and s.5C of the Criminal Law Consolidation Act (two counts). Particulars of the offence alleged (in count one) are that they, together with Sam Kyriacou, between 22 February 1996 and 2 April 1996 at Norwood and other places knowingly took part in the sale of cannabis, a prohibited substance, to another person. Particulars of the offence alleged (in count two) are that they, together with Nick Arthur Papadelos, between 12 April 1996 and 17 June 1996 at Norwood and other places knowingly took part in the sale of cannabis, a prohibited substance, to another person.

The further and better particulars now given in response to orders of this court make it clear that, in relation to count one, it is alleged by the Crown inter alia that the two accused and Mr Kyriacou were involved in a joint enterprise in which cannabis was purchased and packaged in South Australia, transported to New South Wales, and there to be sold.  In relation to count two, it is alleged by the Crown inter alia that the two accused and Mr Papadelos were involved in a joint enterprise in which cannabis was purchased and packaged in South Australia, transported interstate, and there sold.

Each of the two accused has submitted, through his counsel, that this court does not have jurisdiction to hear and determine either of the alleged offences. They each objected to the information pursuant to s.281(1) of the Criminal Law Consolidation Act and moved to quash the information upon that basis. In the case of the accused George Petropoulos, his counsel further argued that the information does not disclose an offence triable in South Australia. There is no substance in that argument.

It was the primary argument of Mr M. Gray QC for the accused George Petropoulos, supported by Mr Edwardson for the accused Fioraldo Taddeo, that the District Court has no jurisdiction to try either accused in relation to any crime alleged in the information. This raises a fundamental issue going to the extra-territorial jurisdiction of this court conferred by the Controlled Substances Act and the Criminal Law Consolidation Act.

SOME GENERAL OBSERVATIONS 1.

The principle of territorial jurisdiction requires that the offence take place within, or be sufficiently connected with, the territory of the State of South Australia under the laws of which sovereign power the prosecution is brought.

This requirement, to the effect that there be a significant link between an offence and the territory concerned in order to ground jurisdiction in the court, is reinforced by the rule of statutory construction that, in the absence of an express or implied provision to the contrary, offences created by legislation require territorial jurisdiction.

In South Australia territorial jurisdiction exists where one or other of three common law tests it satisfied; i.e. the ‘essential element’ test or the ‘terminatory’ test or the ‘peace, welfare and good government’ test, or where an additional statutory basis of territorial jurisdiction has been introduced; i.e. s.5C of the Criminal Law Consolidation Act 1935 (S.A.). This statutory basis of jurisdiction requires there to be 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.

1. extracted from The Laws of Australia Volume 9 paras. 109 to 132 and adapted to this State.

   In the context of the law of complicity, there may be territorial jurisdiction in all jurisdictions where, in essence, the accused has performed an act of assistance or encouragement (or, as in this case, an act of ‘taking part’) within the territorial boundaries with a view to the principal offence, the sale or sales, occurring elsewhere.

   In South Australia jurisdiction also exists on the statutory basis that an element of the offence (the taking part) has occurred within the State or on the alternative statutory basis that a relevant ‘event’ (for example, the act contributing towards the commission of the principal offence) occurred while the accused was within the State [see s.5C(3) and (10)].

THE SITUATION HERE

If I may adopt and adapt the words of Lord Griffiths, who gave the advice of the Privy Council, in LiangsiriprasertvUnitedStates (1991) 1 AC 225 at p.244, as a broad general statement it is true to say that South Australian criminal law is local in its effect and that the common law does not concern itself with crimes committed outside this State; the reason for this is obvious: the criminal law is developed to protect the people of South Australia and not the people of other States and Territories and of other nations, who must be left to make and enforce such laws as they see fit in order to protect themselves; to put the matter bluntly, it is no direct concern of South Australian society if a crime is committed in another State or Territory or overseas; it was for this reason that the law of extradition was introduced between civilised nations so that fugitive offenders might be returned for trial in the jurisdiction against whose laws they had offended.

The decision in LiangsiriprasertvUnitedStates was based, in part, upon Boardof TradevOwen (1957) AC 602, a decision which has been referred to with the apparent approval in the High Court in Thompsonv R (1989) 169 CLR 1 at p.28, and it has been considered and followed by the Appeal Division of the Supreme Court of Victoria in ReHamilton-Byrne (1995) 1 VR 129 and by Matheson J in the Supreme Court of South Australia in R v Catanzariti (1995) 65 SASR 201. It is to be noted all of these cases were cases of conspiracy, either common law conspiracy or statutory conspiracy (as in the case of Catanzariti).

SECTION 5C OF THE CRIMINAL LAW CONSOLIDATION ACT

That section provides that an offence is committed against the law of this State if all elements necessary to constitute the offence (disregarding territorial considerations) exist and if a territorial nexus exists between this State and at least one element of the offence. Such a territorial nexus exists if an element of the offence is, or includes, an ‘event’ which occurs in the State or an ‘event’ which occurs outside the State but while the person alleged to have committed the offence is in the State, and the existence of the territorial nexus is presumed unless rebutted by the accused at the trial.  An ‘event’ is defined to mean any act, omission, occurrence, circumstance or state of affairs but not including intention, knowledge or any other state of mind.  As was pointed out by  Hunt CJ at CL in Isaac, Tajeddine and Elachi (1996) 87 ACrimR 513, when discussing a comparable provision in New South Wales [s.3A of the Crimes Act 1900 (N.S.W.)] this legislation was introduced by each State and Territory, by agreement between the Standing Committee of Attorneys-General, in order to overcome the jurisdictional problems identified in Thompsonv R. Section 3A (and, I would add, s.5C of the Criminal Law Consolidation Act) resolves the problem of jurisdiction where not all of the elements of a crime take place within the State by making the offence constituted by all the elements an offence against the law of this State provided that all of those elements exist and that there is a territorial nexus (as defined) with this State.

The legislation of the type under consideration here did not “resolve the problem” in Isaac's case because as Hunt CJ at CL pointed out (at p.525), “there was no event which occurred outside (the State of New South Wales) to which s.3A could apply”.

It is otherwise here (and the problem is resolved) where the ‘event’ occurring outside South Australia is the act of sale in New South Wales (in count two) or the circumstance or state of affairs in which a sale (or sales) in New South Wales or elsewhere interstate was (or were) anticipated (in count one).

Even if the conduct of the two accused in South Australia when taking part in something that occurred, or was to occur, in New South Wales or elsewhere interstate, as part of a joint enterprise, did not constitute an offence known to the law of this State (as the argument based on BoardofTradevOwen and Thompsonv R suggests that it does not) then s.5C does, in my judgment, constitute it an offence against the law of this State. Section 5C is relevant to the present case.

I accept (and am content to follow) the opinion of Matheson J in Catanzariti that s.5 is not “an offence-creating” section (see p.215). I am persuaded that “it is only concerned with the determination of whether a South Australian offence has been committed”. Whilst it is, in a sense, jurisdiction-extending, I am further persuaded that it does not extend the jurisdiction of this Court to include offences “against the law of another country or, even more relevantly, of another State or Territory of the Commonwealth of Australia”. Matheson J went on to state (at p.215):

“The word ‘offence’ must mean a South Australian offence .... Section 5C does not purport to recognise the laws of the Northern Territory or of anywhere else.”

For these reasons I conclude that the offences, as charged, are prima facie indictable in South Australia. However, I should (and do) treat my conclusion as tentative only. Whilst the defence maintained that this court had no jurisdiction at all and did not seek to rely upon an argument based upon the contention that no necessary territorial nexus existed, it is appropriate that I should reserve to the defence the right to assert such a contention [see s.5(4)], and I should “proceed with the trial” of the offences “in the usual way”.  The issue of whether the necessary territorial nexus exists, having been raised before the trial, I reserve that issue for consideration at the trial.  I am presently of the opinion that sub-s.(8A) does not apply.

It follows from these reasons thus far expressed that I consider that Mr Gray QC presented a forceful and persuasive argument based upon the High Court decision of Thompsonv R to the effect that, as a general rule, a statute which creates an offence does not apply to acts by anyone in a place outside the territory of the legislative enactment. It was argued that this principle is of importance in a case such as this, where the offences charged require a sale or a contemplated sale outside South Australia.  It was submitted that there must be a sale (whether actual or in contemplation) within the territorial application of the offence-creating enactment.

But for the enactment of s.5C of the Criminal Law Consolidation Act there would, I think, be no jurisdiction to try the conduct alleged against each accused. The authority of Thompsonv R would prevail, supported as the principle laid down therein is by R v Martin (1956) 2 QB 272; R v Naylor (1962) 2 QB 527 and CoxvArmyCouncil (1963) AC 48.

Notwithstanding Mr Snopek's argument to the contrary, I conclude that, the effect of s.5C aside, the place where the cannabis was sold or where it was going to be sold is an element of the charge. The thrust of the authorities referred to by Mr Gray QC precludes the drawing of the conclusion that the place where the cannabis was sold or was to the sold is irrelevant. But for the operation of s.5C, I am of the opinion that the Crown would need to prove that the cannabis was sold or was to be sold in South Australia.

Both Catanzariti and Isaac are cases to be distinguished from the present on their facts. But, applying the principles laid down therein, I find that this Court has jurisdiction extended to it by virtue of s.5C.

I rule accordingly.