R v Pinkstone - [2001] WASC 172

JURISDICTION	:	SUPREME COURT OF WESTERN AUSTRALIA
CITATION	:	R -v- PINKSTONE & ORS [2001] WASC 172

CORAM

: ROBERTS-SMITH J

HEARD

: 1 JUNE 2001

DELIVERED

: 29 JUNE 2001

FILE NO/S

:	IND 124 of 2001

BETWEEN

: THE QUEEN

AND
ANTHONY JOHN PINKSTONE
WAYNE JOHN YANKO
MICHAEL BRAZIER
PAUL PHILLIP BRAZIER

Catchwords:

Criminal law - Indictment - Jurisdiction - Charges of State offences under Misuse of Drugs Act 1981 (WA) committed in Commonwealth place - Jurisdiction of State courts - Motion to quash - Demurrer

Constitutional law - Indictment charging offences committed in Commonwealth place in Western Australia - Whether offence committed on Commonwealth place in New South Wales - Whether State legislation can operate to give Western Australian courts jurisdiction - Whether infringement of s 80 Constitution as to place of trial

Constitutional law - State legislation applied to Commonwealth places - Trial on indictment - State indictment charging State offences - Whether valid

[2001] WASC 172

Legislation:

Commonwealth Constitution, s 52, s 80, s 117
Commonwealth Places (Application of Laws) Act 1970 (Cth), s 4, s 7, s 8, s 10, s

12, s 14

Result:

Motion to quash denied

Demurrer over-ruled

Representation:

Counsel:

Crown	:	Mr R E Cock QC & Ms G A Archer
The first-named accused	:	In person
The second-named accused :	Mr O P Holdenson QC
The third-named accused	:	Mr I Fraser
The fourth-named accused :	Mr I Fraser

Solicitors:

Crown	:	State Director of Public Prosecutions
The first-named accused	:	In person
The second-named accused :	Amidzic & Co
The third-named accused	:	Laurie Levy
The fourth-named accused :	A Palumbo

Case(s) referred to in judgment(s):

Bond (1992) 62 A Crim R 383
Brownlee v The Queen [2001] HCA 36
Carroll v Attorney-General for New South Wales (1993) 70 A Crim R 162
Cheatle v The Queen (1993) 177 CLR 541
Cheng v The Queen (2000) 74 ALJR 1482
Jago v District Court (NSW) (1989) 168 CLR 23
Kovess v Commonwealth Director of Public Prosecutions (1997) 74 FCR 297
Krakouer v The Queen (1998) 194 CLR 202
Lipohar v The Queen (1999) 74 ALJR 282
Maginnis [1987] 1 AC 303
Manisco (1995) 79 A Crim R 213

[2001] WASC 172

Pelham (1995) 82 A Crim R 455
R v Carey (1990) 20 NSWLR 292
R v Hofschuster (1993) 116 FLR 222
R v Phillips (1970) 125 CLR 93
R v Rechichi [1999] WASC 45
R v Talia & Ors [1996] 1 VR 462; (1995) 82 A Crim R 373
R v Willoughby [1975] WAR 19
Re Rozenes; Ex parte Burd (1994) 68 ALJR 372
Re Wakim; Ex p McNally (1999) 198 CLR 511
Strassheim v Daily (1911) 221 US 280
Street v Queensland Bar Association (1989) 168 CLR 461
Thompson v The Queen (1989) 169 CLR 1
Tucs v Algie (1985) 19 A Crim R 401
Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538
Walton v Gardiner (1992-93) 177 CLR 378

Worthing v Rowell (1970) 123 CLR 89

Case(s) also cited:

Allders International Pty Ltd v Commissioner of State Revenue (1996) 186 CLR

630

Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (1920) 28

CLR 129

Attorney-General for the State of New South Wales v The Brewery Employees

Union of New South Wales (1908) 6 CLR 469

Barron v Attorney-General of New South Wales (1987) 10 NSWLR 215
Birch v The Queen (1994) 12 WAR 292
Board of Trade v Owen [1957] AC 602
Breavington v Godleman (1998) 169 CLR 41
Brown v The Queen (1986) 160 CLR 171
Brownlie (1992) 27 NSWLR 78
Buck v The Queen (1982) 8 A Crim R 208
Butler v Attorney-General for the State of Victoria (1961) 106 CLR 268
Clements (1991) JC 62
Commonwealth of Australia v The State of Queensland (1975) 134 CLR 298

Commonwealth of Australia v The State of Western Australia (1999) 196 CLR

392

Croome v The State of Tasmania (1997) 191 CLR 119
Cumming v The Queen (1995) 86 A Crim R 156
Dempsey (1986) 82 Cr App R 291
Deng (1996) 136 FLR 201; 91 A Crim R 80

[2001] WASC 172

Director of Public Prosecutions (UK) v Dost [1973] AC 807
Director of Public Prosecutions v Stonehouse [1978] AC 55
Director of Public Prosecutions, South Austalia v B (1998) 194 CLR 566
Ex parte Walsh and Johnson; In re Yates (1925) 37 CLR 36
Felton v Mulligan (1971) 124 CLR 367
Ffrost v Stevenson (1939) 58 CLR 528

Goben Pty Ltd v Chief Executive Officer of Customs & Anor (1997) 143 ALR

611

Gould v Brown (1998) 193 CLR 346
Gummer v Commissioner of Police [1995] 1 Qd R
Hammond v The Commonwealth of Australia (1982) 152 CLR 188
Hunter v Chief Constable of the West Midlands Police [1982] AC 5293
In re Judiary and Navigation Acts (1921) 29 CLR 257
John Pfeiffer Pty Ltd v Rogerson (2000) 172 ALR 625; 74 ALJR 1109

Kable v Director Public Prosecutions for the State of New South Wales (1996)

189 CLR 51

Kailis v The Queen (1999) 21 WAR 100; 107 A Crim R 195

Kangaroo Point East Association Inc v Balkin [1995] 2 Qd R 135; [1994] QPLR

338

King v De Villiers, unreported; Qld CA; 5904/97; 25 November 1997
Kingswell v The Queen (1985) 159 CLR 264
Kron (1995) 78 A Crim R 474
Kruger v The Commonwealth of Australia (1997) 190 CLR 1
Lawler v Prideaux [1995] 1 Qd R 186; (1993) 70 A Crim R 145
Leeth v The Commonwealth of Australia (1992) 174 CLR 455
Li Chia Hsing v Rankin (1978) 141 CLR 182
Liangsiriplasert v Govt of the USA [1991] 1 AC 225
Libman v The Queen (1985) 21 CCC (3d) 206
Macleod v Attorney-General of New South Wales [1891] AC 455
Macquarie Bank Ltd v Fociri Pty Ltd (1992) 27 NSWLR 203
Mahnke v Schmidt (1889) 15 VLR 364
Masters, Richards and Wunderlich v The Queen (1926) 26 NSWLR 450
Maxwell v the Queen (1996) 184 CLR 501
Mayer v Henderson (1993) 68 A Crim R 155
McGarry v The Queen [1999] WASCA 276
McInnis v The Queen (1976) 143 CLR 575
McKain v Miller (1991) 174 CLR 1
Mickelberg v The Queen [2000] WASCA 219
Moevao v Department of Labour [1980] 1 NZLR 464
Nicholas v The Queen (1998) 193 CLR 173
Pinkstone v The Queen [2000] WASC 199
Pinkstone v The Queen [2000] WASCA 367

[2001] WASC 172

Police v Pfeifer (1997) 68 SASR 285
Polyukhovich v The Commonwealth of Australia (1991) 172 CLR 501
R v Ancuta [1991] 2 Qd R 413; (1990) 49 A Crim R 301
R v Anderson (1974) 5 ALR 268
R v Baxter [1972] 1 QB 1
R v Bernasconi (1915) 19 CLR 629
R v Berry [1985] 133 ALR 379
R v Bevan; Ex parte Elias and Gordon (1942) 66 CLR 452
R v Brownlee (1997) 41 NSWLR 139
R v Clark (1975) 27 FLR 380
R v Day & Simon (1995) 81 A Crim R 60
R v Dietrich (1992) 64 A Crim R 176
R v Ferguson, unreported; SCt of Qld; 453/97
R v Giddings [1916] VLR 359
R v Gudgeon (1995) 133 ALR 379
R v Hamzy (1994) 74 A Crim R 341
R v Isaac (1996) 87 A Crim R 513
R v Jones [2000] NSWCCA 186
R v Kirby; Ex parte Boilermakers' Society of Australia (1956) 94 CLR 254
R v L (1989) 43 A Crim R 51
R v Lam (1998) 100 A Crim R 188
R v Leivers [1999] 1 Qd R 649; (1998) 101 A Crim R 175
R v Loewenthal; Ex parte Blacklock (1974) 131 CLR 338
R v Lorkin (1997) 15 WAR 499; 82 A Crim R 196
R v MacPherson [1996] 1 Qd R 656
R v Mai (1992) 26 NSWLR 371; 60 A Crim R 49
R v Manning [1999] 2 WLR 430
R v McNamara (No 2) [1997] 1 VR 257
R v Ong [1999] WASC 51
R v Parker [1977] VR 22
R v Perfili (1995) 128 FLR 323
R v Phillips (1970) 125 CLR 93
R v Refugee Review Tribunal; Ex parte Aala (2000) 176 ALR 219
R v Richards; Ex parte Fitzpatrick and Browne (1995) 92 CLR 157
R v Sanders (1984) 1 NZLR 636
R v Snow (1915) 20 CLR 315
R v Toubya (1993) 1 VR 226

R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd (1970) 123

CLR 361

R v Treacy [1971] AC 537
R v Trudgeon (1988) 39 A Crim R 252
R v Tyler; Ex parte Foley (1994) 181 CLR 18

[2001] WASC 172

R v Wilcox; Ex parte Venture Industries Pty Ltd (1996) 137 ALR 47
Rajalingan Sivaprahasam v The Queen [1972] WAR 137
Re Carmody; Ex parte Glennan (2000) 173 ALR 145
Re Colina; Ex parte Torney (1999) 200 CLR 386
Re Tracey; Ex parte Ryan (1989) 166 CLR 518
Re Tyler; Ex parte Foley (1994) 181 CLR 18
Riley v The Commonwealth (1985) 159 CLR 1
Rippingale v The Queen (1999) 109 A Crim R 304
Ryan v Harrison [1957] VR 210
Shoenmaker v DPP (1991) 102 ALR 437
Skewes, Vyner-Smyth and Schneider v The Queen (1981) 7 A Crim R 276
Svikart v Stewart (1994) 181 CLR 548
The Commonwealth v Kreglinger and Ferneau Ltd (1926) 37 CLR 393
The Queen v Hughes (2000) 171 ALR 155
University of Wollongong v Metwally (1984) 158 CLR 447
Winfield v The Queen (1999) 168 ALR 8
Yanner v The Queen (1997) 2 Qd R 208; 98 A Crim R 51

[2001] WASC 172

ROBERTS-SMITH J

ROBERTS-SMITH J: I am required to determine two applications to quash the indictment in these proceedings. The first is an application by the accused Anthony John Pinkstone ("Pinkstone") by notice filed 21 May 2001 (but handed up to the Court on 4 May 2001) in which Pinkstone seeks orders that:

1. the indictment dated 17 January 2001 be quashed;
2. further and/or in the alternative, the matter be remitted to the Full Court of Criminal Appeal (sic) pursuant to s 73 of the Supreme Court Act for determination according to law; and
3. such further or other orders as the Court thinks fit.

In fact Pinkstone (who is representing himself) had moved to quash the indictment on an earlier appearance on 4 May and had presented on that date an affidavit in support of a notice of motion to quash dated 3 May 2001, together with a bound volume of submissions.
The second application is one by the accused Wayne Yanko ("Yanko") dated 28 May 2001 for orders that:

1. a ruling that count 2 specified in the indictment fails to disclose an offence known to the law;
2. a ruling that count 2 specified in the indictment is a nullity;
3. such further or other orders consequential upon a ruling in accordance with such rulings or any further applications made on behalf of the Crown.

Both applications in substance assert that this Court has no jurisdiction to try the accused on this indictment, Pinkstone contending that the offences charged against him are Commonwealth offences which occurred in New South Wales and so by virtue of s 80 of the Commonwealth Constitution ("the Constitution") the trial must be held in New South Wales and Yanko contending that the offence charged is a State offence in respect of a Commonwealth place and a nullity for that reason.
As the applications clearly concern the interpretation of the Constitution or matters arising under the Constitution, it was necessary for notices to issue to the Commonwealth and State Attorneys General under s 78(B) of the Judiciary Act 1903 (Cth). That was done; all Attorneys indicated that they did not wish to apply to remove the proceedings nor take part in them at this stage.

[2001] WASC 172

ROBERTS-SMITH J

I accordingly heard oral submissions in respect of the applications on 1 June 2001. In addition, I have the benefit of the following materials:

(a) Pinkstone's affidavit and written submissions of 4 May 2001;
(b) the Crown outline of submissions in respect of Pinkstone's application (undated);
(c) an outline of submissions on behalf of Yanko dated 18 May 2001;
(d) the Crown outline of submissions in response to those of Yanko, dated 28 May 2001;
(e) a bound volume of material entitled "Applicant's reply to the Crown's outline of written submissions" from Pinkstone, dated 30 May 2001 (his "30 May Reply");
(f) a document entitled "Crown's paragraph by paragraph response to the applicant's outline of written submissions in support of notice of motion to quash indictment" dated 1 June 2001 ("the Crown Response").

As item (f) was not provided until the hearing on 1 June 2001, I gave Pinkstone leave to file further written submissions by Friday 8 June. I accordingly also have:

(g) a document entitled "Applicant's reply to the Crown's paragraph by paragraph response to the applicant's outline of written submissions of (sic) notice of motion to quash indictment (Pinkstone's "8 June Reply").

At a directions hearing on 26 March 2001, in the course of raising a number of matters to do with the future conduct of the proceedings on this indictment, Pinkstone contended a trial date could not be fixed because (inter alia) the four accused had not been arraigned. I accordingly had each of them formally arraigned. Pinkstone, who was unrepresented, stated that he wished to remain mute. I directed that a plea of not guilty be recorded. That was in accordance with s 619 of the Criminal Code (WA). Each of the other accused was represented by counsel; each of them entered a plea of not guilty. On 20 April 2001 Pinkstone sought that his plea be set aside because he wished to move to quash the indictment. Under s 614 such a motion must be made before the accused pleads. The Crown consenting, and although in light of Bond (1992) 62 A Crim R 383 it was not strictly necessary, I ordered that his plea as recorded be set aside.

[2001] WASC 172

ROBERTS-SMITH J

Section 616 of the Criminal Code (WA) stipulates that if an accused does not apply to quash the indictment they must either plead or demur to it. An accused may plead and demur together. I consider Yanko's application to be in the nature of a demurrer, although whether either application be a motion to quash or demurrer makes no practical difference in the circumstances (see R v Rechichi [1999] WASC 45).
The indictment is dated 17 January 2001. It is a State indictment signed by a prosecutor appointed pursuant to s 578 of the Criminal Code (WA). It contains charges of four offences as follow:

"(1) On 7 October 1999 at Perth Airport ANTHONY JOHN PINKSTONE supplied a prohibited drug, namely methylamphetamine, to another. (Contrary to s 6(1)(c) Misuse of Drugs Act 1981 (WA)).
(2) AND FURTHER that on the same date and at the same place, WAYNE JOHN YANKO had in his possession a prohibited drug, namely methylamphetamine, with intent to sell or supply it to another. (Contrary to s 6(1)(a) Misuse of Drugs Act).
(3) AND FURTHER that on the same date and at the same place, ANTHONY JOHN PINKSTONE attempted to supply a prohibited drug, namely cocaine, to another. (Contrary to s 6(1)(c) and s 33 Misuse of Drugs Act).
(4) AND FURTHER that on the same date and at the same place, MICHAEL BRAZIER and PAUL PHILLIP BRAZIER attempted to possess a prohibited drug, namely cocaine, with intent to sell or supply it to another. (Contrary to s 6(1)(a) and s 33 Misuse of Drugs Act)."

The statutory references were set out as marginal notes to the respective counts.
It is apparent that each offence charged is said to have occurred at Perth Airport. It is common ground that Perth Airport is Commonwealth property and a place acquired by the Commonwealth for public purposes within the meaning of that expression in s 52(i) of the Constitution and hence is a place in respect of which the Commonwealth Parliament has exclusive power to make laws.

[2001] WASC 172

ROBERTS-SMITH J

So far as is presently relevant, the Crown case, broadly stated, will be that on 7 October 1999, Pinkstone went to the Ansett depot at Sydney Airport and consigned two parcels of prohibited drugs to Perth by handing them to an Ansett employee, one Craig James O'Brien. They were consigned to fictitious addressees in Perth for collection at Perth Airport. One was in fact collected by Yanko that same night; the other was intended for Michael Brazier who sent his brother Paul Brazier to the airport to collect it, but for reasons not presently pertinent, although Paul Brazier did attend the airport he did not collect the parcel.
Again expressed in short form, Pinkstone argues that the offences for which he is brought to trial occurred (if at all) in Sydney, New South Wales, and accordingly the indictment does not disclose an offence known to the Western Australian courts; and further, because of the combined effect of the Commonwealth Places (Application of Laws) Act 1970 (Cth) ("the Commonwealth Places Act") and s 80 of the Constitution if there is to be a trial it must be held in New South Wales - as a consequence of which this Court has no jurisdiction and the indictment must be quashed.
The Crown relies on the Commonwealth Places Act and s 12 of the
Criminal Code (WA).
There is no dispute that where the Commonwealth acquires land within a State, the laws of that State cease to operate in that place except as expressly provided; and the Commonwealth has exclusive legislative power over such places (see Worthing v Rowell (1970) 123 CLR 89; R v Phillips (1970) 125 CLR 93; Constitution s 52(i)).
The Commonwealth Places Act applies State laws to Commonwealth places in certain circumstances. State laws given such application are referred to as "the applied provisions" (Commonwealth Places Act s 3).
So far as is presently relevant, s 4 of the Commonwealth Places Act
provides that:
"4(1) The provisions of the laws of a State as in force at a time … apply, or shall be deemed to have applied, in accordance with their tenor at that time and in relation to each place in that State that is or was a Commonwealth place at that time.
…

[2001] WASC 172

ROBERTS-SMITH J

5. Subsection (1) of this section does not:
…

(b) have effect so as to confer any judicial power;
…

(12) Where:
(a) there is not in force an arrangement with the Governor of a State under subsection (2) of section 6 of this Act;
(b) a law of that State provides that an act may or shall be done by an authority of the State; and
(c) a part of the applied provisions corresponds to

that law; that authority is empowered to do that act under
that part of the applied provisions.

…
(14) Without limiting the effect of any other law of the Commonwealth, it is declared that the powers of a person under the law of a State may be exercised in that State in respect of an act done in that State notwithstanding that the act was done in or in relation to a Commonwealth place and the provisions of the laws of the State have effect in relation to anything done by a person in the exercise of a power referred to in this subsection."

Section 6 provides for the making of arrangements with States for or in relation to the exercise or performance of powers, duties or functions by State authorities under the applied provisions having effect in or in relation to a Commonwealth place in that State. Such arrangements are made between the Governor General on behalf of the Commonwealth and the Governor of the State.
Section 7 deals with the jurisdiction of State courts in the following
terms:
"7.(1) The several courts of a State are, within the limits of their several jurisdictions, whether those limits are as to subject matter or otherwise, but disregarding any limitation that exists

[2001] WASC 172

ROBERTS-SMITH J

by reason of a place being a Commonwealth place, invested with federal jurisdiction in all matters arising under the applied provisions as having, or as having had, effect in or in relation to a Commonwealth place."

The conditions under which State courts are invested with federal jurisdiction by virtue of the Commonwealth Places Act are set out in s 8:
"8. (1) The jurisdiction with which courts are invested by the last preceding section or by regulations made for the purpose of subsection (6) of section 4 of this Act is invested subject to the following conditions and restrictions and no others:
(a) a decision of such a court, whether in original or appellate jurisdiction, is not subject to appeal to Her Majesty in Council, whether by special leave or otherwise; and
(b) where the law of a State prohibits any appeal from such a court, an appeal does not lie to the High Court from a decision of that court unless the High Court grants special leave to appeal.
(2) Sections 39 and 68 of the Judiciary Act 1903-1969, and any other law of the Commonwealth that was passed or made before the commencement of this Act, do not, and, unless the contrary intention appears, any law of the Commonwealth that is passed or made after the commencement of this Act does not, operate so as to invest a court of a State with federal jurisdiction in a matter arising under the applied provisions.
(3) Nothing in this Act affects the operation of section 38 of
the Judiciary Act 1903-1969.
(4) Sections 38A and 40A of the Judiciary Act 1903-1969 do not apply in relation to a matter arising under the applied provisions or under a law of a State by reason only that it involves the application or interpretation of section 52 of the Constitution in relation to Commonwealth places.
(5) Paragraph (d) of subsection (2) of section 39 of the Judiciary Act 1903-1969 does not apply in relation to a matter arising under a law of a State in respect of which a court of a State is invested with federal jurisdiction by that subsection where that jurisdiction is so divested by reason only that the

[2001] WASC 172

ROBERTS-SMITH J

matter involves the application or interpretation of section 52 of
the Constitution in relation to Commonwealth places.
(6) Section 72 to 76 (inclusive) of the Judiciary Act 1903-1969 do not apply to or in relation to a trial in a court of a State for an offence against any part of the applied provisions."

It presently remains only to set out the provisions of s 12 and s 14 of the Commonwealth Places Act. They provide as follows:
"12. (1) Subject to this Act, proceedings (whether civil or criminal and whether original or appellate) under any part of the applied provisions shall be instituted and conducted in the same manner as though they were proceedings under the law of the State to which that part corresponds and all other proceedings in relation to any such proceedings (including declining to proceed further in a prosecution) shall also be taken as though the first-mentioned proceedings were proceedings under that law.
(2) Where there is not in force an arrangement with the Governor of a State under subsection (2) of section 6 of this Act, the last preceding subsection does not prevent the institution or conduct, in accordance with a law of the Commonwealth other than this Act, of proceedings under any part of the applied provisions having effect in or in relation to Commonwealth places in that State.
(3) The trial on indictment of an offence against any part of the
applied provisions shall be by jury."
"14. Where a person is charged with an offence against a law of a State and the court before which he or she is charged is satisfied that:
(a) that law is inapplicable by reason of the operation of section 52 of the Constitution in relation to Commonwealth places; and
(b) a part of the applied provisions corresponds to that law;
the proceedings shall be continued as though that person had been charged with the corresponding offence under that part of the applied provisions."

[2001] WASC 172

ROBERTS-SMITH J

Contrary to the submission made by Pinkstone (written submissions [51]) the Commonwealth has not, by the operation of the Commonwealth Places Act returned power to the States. The Commonwealth retains exclusive legislative power in respect of Commonwealth places; by virtue of s 51(i) of the Constitution it could not be otherwise. Whilst State laws are applied to such places by virtue of s 4 of the Commonwealth Places Act, they apply as Commonwealth law. It follows that the present offences are Commonwealth offences and the trial of them is an exercise by this Court of federal jurisdiction. I shall return to this below.
In Tucs v Algie (1985) 19 A Crim R 401, a Magistrate had dismissed a charge that the respondent drove at Adelaide Airport without a valid State licence. He had been disqualified because of an accumulation of more than a prescribed number of demerit points. Both the demerit point disqualification and the prohibition against driving whilst disqualified arose under the Motor Vehicles Act 1959 (SA). The Magistrate held that the disqualification was operative only within the territorial limits of the State of South Australia and the respondent was therefore not disqualified in a Commonwealth place from holding or obtaining a licence. King CJ said the fallacy in that argument was clear: the effect of the application of the relevant provisions of the State Act to Commonwealth places within South Australia was to make it an offence against Commonwealth law to drive a vehicle on such a Commonwealth place while disqualified from holding or obtaining a driver's licence under the Motor Vehicles Act of South Australia. That flowed from s 4(1) of the Commonwealth Places Act; it was unnecessary to have recourse to s 4(11).
A case much closer to the present is that of R v Holmes (1988) 93 FLR 405. There the appellant had been convicted of possessing heroin for supply contrary to s 5(2)(c) of the Narcotic and Psychotropic Drugs Act 1934 (SA). The conduct upon which the charge was based was the possession of a quantity of heroin at Adelaide Airport. It was common ground that Adelaide Airport was land "acquired by the Commonwealth for public purposes" within the meaning of s 52(i) of the Constitution.
The argument at trial on behalf of the appellant was that the charge was bad because it purported to charge an offence against the law of South of Australia which had no application to a place acquired by the Commonwealth for public purposes and that the Commonwealth Places Act was invalid as being beyond the powers of the Commonwealth Parliament. The primary argument advanced in support of the latter contention was that the Commonwealth Places Act was in breach of the fundamental principle that the Commonwealth cannot abdicate its

[2001] WASC 172

ROBERTS-SMITH J

exclusive legal power over Commonwealth places. King CJ (with whom White and Bollen JJ agreed) held that the Parliament was entitled to use any machinery considered appropriate for carrying out its legislative purposes; in this instance the machinery chosen was the application to a Commonwealth place of the body of law existing from time to time in the State in which the place is located. There was no relinquishment nor abdication of power. The Commonwealth Parliament may amend or appeal the Commonwealth Places Act and replace it with a new body of law at any time. There was no inconsistency with the grant of exclusive legislative power in s 52(i) of the Constitution. The Chief Justice could see no reason why the Commonwealth Parliament could not lawfully exercise its exclusive legislative authority with respect to Commonwealth places by applying to those places State law as it existed from time to time. The Commonwealth Places Act was therefore a valid exercise of Commonwealth legislative power.

There was a further point raised which is apposite to the present case. It was explained by King CJ at 409 (ibid):
"The alternative contention for the appellant was that the conviction was bad because the Information was drafted in terms alleging a breach of a State statute and not a breach of Commonwealth law. There is no doubt that the offence would have been more accurately described if the count in the Information had alleged that the offence occurred in a Commonwealth place, namely Adelaide Airport, and had referred to the section of the Narcotic and Psychotropic Drugs Act 1934 (SA) as having been applied by the federal Act. Whether, apart from express statutory provision that defect would have been fatal to the conviction need not be determined because the situation is provided for by s 14 of the Commonwealth Places (Application of Laws) Act…
The point was raised before the trial judge who was referred to s 14. He allowed the proceedings to continue as though the appellant had been charged under the federal law. He was correct to do so as there could be no doubt that s 5(2)(c) of the Narcotic and Psychotropic Drugs Act is a law that is inapplicable to the Adelaide Airport by reason of s 52 of the Commonwealth Constitution but as 'part of the applied provisions corresponds to that law'.
In my opinion, therefore, the appeal should be dismissed."

[2001] WASC 172

ROBERTS-SMITH J

In R v Willoughby [1975] WAR 19 various points of law had been reserved for the opinion of the Court of Criminal Appeal in respect of proceedings in the District Court. Willoughby had been indicted on a charge of making a false statement from which it could reasonably be inferred that there was a plan to endanger the safety of an aircraft contrary to s 463(B) of the Criminal Code (WA). The conduct complained of occurred at the boarding entrance of a stationary aircraft at Perth Airport. When called upon to plead, Willoughby pleaded not guilty and demurred to the indictment on the ground that it did not disclose an offence cognisable by the court because it was alleged to have occurred in a Commonwealth place where the Criminal Code of Western Australia had no operation. He also pleaded the court had no jurisdiction to try him for that offence and that the indictment was defective in having been presented by, and in the name of the State Crown Prosecutor. Burt J (with whom Virtue ACJ and Lavan J agreed) held that as a matter of pleading, the indictment did disclose an offence against a provision of the law of the State of Western Australia and that law was within the meaning of s 4(1) of the Commonwealth Places Act. It followed the indictment did disclose an indictable offence, it being an offence against the law of the Commonwealth:
"… and more particularly an offence against s 463B of the Criminal Code of Western Australia which by force of s 4(1) of the Commonwealth Act applied in accordance with its tenor at the relevant time in and in relation to [the] airport."
Counsel for the accused had also contended that s 4(1) of the Commonwealth Places Act was invalid but no ground of any substance had been advanced in support of that contention. Burt J held that once the material place was seen to be within s 52(i) of the Constitution, the power of the Commonwealth Parliament with respect to that place to make a law either directly, or in some other chosen manner, by reference to an existing State law was undoubted. The District Court had federal jurisdiction in the circumstances, that being conferred by s 7 of the Commonwealth Places Act. His Honour referred to an agreement between the Governor General and the State Governor in the exercise of the power conferred by s 6(2) of the Commonwealth Places Act, such agreement being published in the "Commonwealth Gazette" on 30 September 1971. Consequently, by reason of the Commonwealth Places Act and the Commonwealth/State arrangement, s 69 of the Judiciary Act did not apply to that particular prosecution which was to be instituted and conducted in the same manner as though it were a prosecution under State law and the Crown Prosecutor of the State of Western Australia, being empowered by

[2001] WASC 172

ROBERTS-SMITH J

the law of the State to sign and present indictments, had the power to sign
and present that particular indictment.

In the instant case Pinkstone asserts that he was never physically at Perth Airport on 7 October 1999; he says he was in Sydney in the State of New South Wales from 6 to 12 October 1999 inclusive and that if the drugs were supplied to anyone they were supplied to Mr O'Brien, the airline clerk who received them for consignment to Perth. His argument runs that if an offence was committed, it could only be an offence against the corresponding New South Wales provision which is to be found in s 25 of the Drug Misuse and Trafficking Act (NSW) as applied to Sydney Airport by s 4(1) of the Commonwealth Places Act. He says that being so, the Western Australian courts have no territorial jurisdiction because his conduct as alleged does not constitute an offence against the laws of Western Australia and that in any event, if there is to be a trial of a charge arising out of those circumstances, s 80 of the Constitution requires it be held in New South Wales.
I shall deal at this point with Pinkstone's submission that the conduct alleged against him does not constitute an offence against the laws of Western Australia because if such offences were committed, they were completed wholly outside the territorial boundaries of this State and for that reason are not offences against Western Australian law with the consequence that the courts of Western Australia have no jurisdiction to hear the matter.
The submission is predicated at least in part on the proposition that if there was a supply of these drugs, it was a supply to O'Brien at the Sydney Airport. That of course is not at all the prosecution case, which is rather that the supply of methylamphetamine was to Yanko at Perth Airport and the attempted supply of cocaine was an attempt to supply Michael Brazier, also at Perth Airport.
Nor can the handing of the parcels containing drugs to O'Brien be a "supply" to him within the meaning of s 6 of the Misuse of Drugs Act 1981 (WA). Since Manisco (1995) 79 A Crim R 213 it has been the law in this State that "supply" is not synonymous with "delivery".
That case was principally concerned with the question whether the return of physical control of drugs from a person, with whom they had been temporarily deposited by their owner, to that owner, was a "supply" within the meaning of s 6(1)(a) of the Misuse of Drugs Act, but that question did involve consideration of the meaning of "supply" generally.

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Pidgeon J (with whom Rowland J agreed) regarded the surrender of proprietary rights by delivery to be a form of supply, although he did not suggest the transfer or surrender of proprietary rights would of itself be determinative of whether there was a supply. His Honour said (at 215-216 ibid):
"An owner delivering a product to a defendant so that the defendant is an agent or factor of the owner to arrange its further sale or distribution could well amount to a supply by the owner. The fact that the defendant received the drug for further distribution would mean that he is in possession of it with the necessary intent. However, I do not consider the re-delivery to the owner pursuant to a bailment comes within this category. The legislature has used the word 'supply' as distinct from the word 'deliver'."

His Honour repeated the view that the legislature had purposely used the word "supply" in s 6(1) as distinct from the word "deliver". Steytler J, having examined the English and Australian authorities, came to a similar conclusion.
Manisco was followed in Pelham (1995) 82 A Crim R 455. As in Manisco, that was a case in which the accused said she was minding the illicit drug (heroin) for the owner, to whom she was to return it. It was held that an intention of a bailee to return drugs to their owner is not an intention to supply. Although Malcolm CJ expressed the view such an intention was within the ordinary meaning of the word "supply" he considered that view had to be subordinated to the weight of authority (ibid 463), particularly as the point had been conceded by the Crown. His Honour referred to the judgment of Hunt J in R v Carey (1990) 20 NSWLR 292 in which Hunt J refused to follow the majority of the House of Lords in Maginnis [1987] 1 AC 303. The Chief Justice pointed out that in Carey, Hunt J had said (294-295 ibid) that the various dictionary meanings of the word "supply" mean "to furnish or to provide something which is needed, wanted or required by the person to whom it is given". Malcolm CJ thought the delivery by a bailee of a quantity of a drug to the owner who wants, needs or requires it for his own use seemed to him to fall squarely within that meaning.

37	The Chief Justice noted that in Maginnis the House of Lords was concerned with a definition of "supplying" which included "distributing", and that opposing views of what "supply" meant were expressed by

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Lord Keith on the one hand and Lord Goff on the other. He quoted
Lord Keith (Maginnis at 309):
"The word 'supply' in its ordinary natural meaning, conveys the idea of furnishing or providing to another something which is wanted or required in order to meet the wants or requirements of that other. It connotes more than the mere transfer of physical control of some chattel or object from one person to another. No-one would ordinarily say that to hand over something to a mere custodian was to supply him with it. The additional concept is that of enabling the recipient to supply the thing handed over to purposes which he desires or has a duty to apply it. In my opinion, it is not a necessary element of the conception of supply that the provision should be made out of the personal resources of the person who does the supplying."

The Chief Justice also quoted Lord Goff (Maginnis, 314) (Pelham at
460) as being not:
"… able to say that either the delivery of goods by a depositor to a depositee or the redelivery of goods by a depositee to a depositor can sensibly be described as an act of supplying goods to another. I certainly cannot conceive of myself using the word 'supply' in this context in ordinary speech. I ask myself: why should I not do so? I answer: 'I would not describe the delivery of the depositor to the depositee as a supply of goods, because the goods are not being made available to him but are rather being entrusted to him; and I would not describe the redelivery by the depositee to the depositor as a supply of goods, because the goods are simply being returned to him, rather than being made available too him from resources other than his own'."
In Carey, Hunt J had reached the conclusion that the dictionary meanings of the word "supply" do not suggest that it is appropriate when something is merely returned to its owner, and illustrated the point by reference to the analogy of the loan of a lawnmower by a neighbour. In Pelham, Malcolm CJ thought the use of the word "supply" in that context was entirely appropriate. His Honour said (ibid at 462):
"In my view, if my neighbour lends me his lawnmower, he is supplying me with a lawnmower as something which is needed, wanted or required by me. It is necessarily to be implied in the

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transaction that the lawnmower is something which is needed, wanted or required by my neighbour for his own purposes. When I return the lawnmower, why am I not furnishing or providing something which is needed, wanted or required by the person to whom it is given, so that the return of it is within the ordinary meaning of 'supply'?"

Franklyn J remarked that the observation made by the Chief Justice as to what constituted "supply" - and in particular whether that included return by the bailee of drugs to the bailor - had considerable merit and deserved close attention. However, because of the concession by the Crown the point had not been fully argued. Thus Franklyn J said that his agreement with the Chief Justice's reasons was not to be taken as an unreserved agreement with the observations of the Chief Justice as to the law and the relevant decisions. Walsh J simply said that the concession made by the Crown was in accord with the authority of the Court of Criminal Appeal in Manisco, and the appellant had to succeed on those grounds for that reason.
As a result of the decision in Manisco the Misuse of Drugs Act (WA) was amended in 1998 by defining the term "to supply" so as to include returning something to the owner or bailer of it. This is raised by Pinkstone in a different way which I will deal with later.
Notwithstanding the different conclusions and views expressed as to whether "supply" could encompass the return of property to its owner by a person who was a mere temporary custodian of it, what is apparent from the authorities generally is that "supply" for the purposes of s 6(1) of the Misuse of Drugs Act (WA), requires more than mere delivery - and that will generally be seen as furnishing or providing something which is needed, wanted or required by the person to whom it is given. It cannot therefore be said that the delivery of the drugs to O'Brien in Sydney was a "supply" within the meaning of the section.
Furthermore, it is the Crown case that O'Brien was an innocent agent. There was therefore no "supply" to him - there was no delivery of the parcel to him for the purpose of meeting any want or need on his part. He was Pinkstone's instrument for the movement of the drugs from Sydney to Perth. The supply alleged in count 1 was not complete until Yanko received the drugs at Perth Airport. Likewise the acts alleged to constitute the attempted supply in count 2 were not complete until the parcel containing the cocaine was delivered to the airline cargo depot at Perth Airport for collection by or on behalf of Michael Brazier.

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It is convenient at this point to deal with Pinkstone's submission that if offences were committed, they were committed when the possession of the consignments was relinquished in Sydney, as there could be no "constructive custody" of them once they were airborne (see eg Pinkstone's written submissions [180]-[210]. As I understand it, this argument is founded on the idea of "possession" and constructive custody. Pinkstone points out that the definition of "to possess" in s 3 of the Misuse of Drugs Act (WA) does recognise the concept of "constructive custody" whereas the definition of "to supply" does not. Thus it is argued that once a person has delivered, dispensed, distributed, forwarded, furnished, made available, provided, returned or sent a thing to another (ie here, to the Ansett Cargo clerk in Sydney) the first person cannot be regarded as having constructive custody of it and so cannot be guilty of supplying (or attempting to supply) it to a third person. Pinkstone argues that the Crown's contention that he can be guilty of supplying to Yanko or attempting to supply to the Braziers, is inconsistent with the position it adopted in submissions before the High Court in Krakouer v The Queen (1998) 194 CLR 202.

The first point to be made about that is that the two cases are fundamentally different. Krakouer had been convicted of conspiracy to possess methylamphetamine with intent to sell or supply. By s 6(1)(a) of the Misuse of Drugs Act (WA) it is an offence for a person to have in his possession a prohibited drug with intent to sell or supply it to another. Under s 33 a person who attempts, incites or conspires with another to commit such an offence is deemed to have committed that offence. Section 11(a) provides that for the purposes of s 6(1)(a) a person is deemed to be in possession with intent to sell or supply if the quantity of drug is not less than a specified quantity. The amount involved in Krakouer's case far exceeded that specified. The Crown led no evidence that Krakouer was ever in possession of the drug. The case was that by arrangement with Krakouer, a co-accused, Foster, had consigned a car in which the drug was secreted, from Victoria to Western Australia. The learned trial Judge directed the jury that (if they found a conspiracy) because the amount of the drug exceeded the specified quantity, s 11(a) applied to deem the conspiracy to be one to possess with intent to sell or supply. The Crown sought to argue on appeal that the deeming provision applied because once Foster consigned the car in accordance with Krakouer's instructions and because Krakouer followed the transport to Western Australia and was present when the drug was being retrieved from the car, he was in "constructive possession" of it. The High Court

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rejected that argument and held the trial Judge's direction to the jury that
s 11(a) was applicable to have been a misdirection.

The charges against Pinkstone are not charges of either possessing the prohibited drugs nor of attempting to possess them. He is charged with supplying methylamphetamine and attempting to supply cocaine. The concepts of possession and supply are completely different. Furthermore, the Crown case is that Pinkstone was in fact in physical possession of both drugs at Sydney Airport and he handed them to an innocent agent with instructions that they be delivered in accordance with his directions. No question of s 11(a) of the Misuse of Drugs Act (WA) arises. The argument sought to be made here by Pinkstone in reliance upon the decision in Krakouer cannot be sustained. Likewise, given the entirely different circumstances of the two cases, I see no necessary inconsistency between the arguments advanced by the Crown in Krakouer and those it advances here. Even if there were, that could not be a ground for quashing or staying the present indictment.
In the circumstances of this case the elements of count 1 are that:
1.          Pinkstone did something
2           which constituted supply to another (Yanko)
3.          of a prohibited drug, namely methylamphetamine.
A similar analysis applies to the "attempt to supply" alleged in count 2.
Section 12 of the Criminal Code (WA) provides that:

"12 (1) An offence under this Code or any other law of Western
Australia is committed if -

(a)

all elements necessary to constitute the offence exist; and

(b)

at least one of the acts, omissions, events, circumstances or state of affairs that make up those elements occurs in Western Australia.

(2) Without limiting the general operation of
subsection (1), that subsection applies even if the only thing that occurs in Western Australia is an event, circumstance or state of affairs caused by an act or omission that occurs outside Western Australia.

(3) This section does not apply to an offence if -

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(a) the law under which the offence is created explicitly or by necessary implication makes the place of commission 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 need for a territorial nexus between Western Australia and an element of the offence."

The words "events, circumstances or state of affairs" which appear in s 12 are not defined in the Criminal Code (WA). They must accordingly be given their ordinary and natural meaning. In the "Oxford English Dictionary" (2nd Ed) those meanings are:

(a) An "event" includes the "(actual or contemplated) fact of anything happening"; the "occurrence of" or "anything that happens, or is contemplated as happening";
(b) A "state of affairs" includes "the way in which events or circumstances stand disposed (at a particular time or within a particular sphere);
(c) A "circumstance" includes "that which stands around or surrounds; the totality of surrounding things; surroundings, environment", or "the logical surroundings" or "adjuncts" of an action; the time, place, manner, cause, occasion, etc amidst which it takes place.

The "Macquarie Dictionary", (2nd revised ed) defines "event" as including "anything that happens or is regarded as happening; an occurrence, esp. one of some importance". It defines "state" as "the condition of a person or thing, as with respect to circumstances or attributes. "Circumstance" is defined as "a condition, with respect to time, place, manner, agent, etc, which accompanies, determines, or modifies a fact or event".
Here, all the elements necessary to constitute the offence exist and (on the above reasoning) at least one of the acts making up the element of supply - namely the actual delivery of physical custody and control of the drug to Yanko - occurred in Western Australia. So too, the element that the substance supplied to Yanko was a prohibited drug, namely methylamphetamine, is to be proved by reference to a circumstance or a state of affairs existing in this State - that is the location of the substance where Yanko placed it in this territorial jurisdiction and that on analysis it

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was shown to be methylamphetamine. As well, proof of the element of supply to another is to be made by showing delivery of the item to Yanko in Western Australia. Subsection (2) of s 12 brings the offence within the territorial jurisdiction of Western Australia even if those circumstances or that state of affairs are caused (as is alleged here) by acts done by Pinkstone outside this State. Again, with reference to count 2 it is the Crown case that the offence was an attempt to supply to another in Western Australia. The arrival of the cocaine package at Perth Airport allegedly at Pinkstone's directions and pursuant to an arrangement made by him with Michael Brazier for its collection by Paul Brazier, is a circumstance or state of affairs existing in Western Australia caused by acts done by Pinkstone which occurred outside Western Australia.

In Lipohar v The Queen (1999) 74 ALJR 282 the High Court held that a common law conspiracy was triable in South Australia where the intended victim of the fraud was a company incorporated and based in that State, because the planned crime was to have its effect within South Australia. The offence was triable in South Australia so long as a "real connection" existed between the State and the offence; that the crime was to have its effect within the State was a sufficient nexus to give the South Australian Supreme Court jurisdiction to hear the matter. Five of the six justices reached that conclusion; the sole dissentient was Kirby J.
In his consideration of the territorial theory of crime, Gleeson CJ observed that (ibid 285):
"[18] Where a crime is created by statute, which normally describes the crime without making any particular reference to territorial locality, and where the nature of the crime is such that elements may occur in a number of territories, the resolution of questions of jurisdiction and justiciability may involve both questions of statutory construction, and the application of common law principles according to which courts decide where, out of a number of competing possibilities, a crime has been committed. An example is provided by the common law rule by which courts in England, and Australia, decide where the statutory offence of obtaining property by false pretences has been committed: eg R v Manning [1999] QB 980; Kron (1995) 78 A Crim R 474. According to the preponderance of authority, the offence is committed in the place where the property is obtained, which may be different from the place or places where the deception occurred. Discussion of the rule usually proceeds upon the assumption that the offence is

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committed in only one place. That assumption is not a logical necessity, and whether it should be revised is a question that may be addressed in some future case.
[19] The last mentioned assumption would be inconsistent with a rule, of common law or statute, to the effect that in the case of a crime consisting of multiple elements, an offence was committed wherever one of those elements occurred, or a rule to the effect that the offence would be taken to be committed in any territorial area where there is a real and substantial link between the offence and the territory. When the Supreme Court of Canada, in Libman v The Queen [1985] 2 SCR 178 at 198-199 decided to adopt the latter rule for Canada, involved in that decision was an abandonment of the objective of finding a single situs of a crime."

The Chief Justice then pointed out that in South Australia as well as in a number of other Australian States, legislation now applies which involves a similar abandonment. Section 12 of the Criminal Code clearly falls into that category.
His Honour went on to point out (ibid 286) that the general common law requirement of a single situs has never been absolute, and there is no reason either in principle or practice why it should be; conduct which occurs in one Australian State may well be affected by the laws of that State and another. There is nothing new about trans-jurisdictional activity giving rise to potential breaches of the laws of a number of States or Territories. Thus, when considering the question whether there was in that case a sufficient connection between South Australia and the conspiracy alleged, his Honour pointed out that the question should be approached without any preconception that there is a requirement of either the common law or a principle of statutory construction that there can be only a single situs.
Gleeson CJ, in holding that the conspiracy to defraud, although entered into in Queensland, was punishable according to the law of South Australia, commented (ibid at 288) that he could:
"… see no material difference between a conspiracy, entered into in Queensland, to bring prohibited drugs into South Australia, and a conspiracy, entered into in Queensland, to perpetrate a fraud which, by reason of the objective circumstances, involves practising a deception upon people in

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South Australia with a view to their acting, in South Australia, to their detriment."

In their joint judgment, Gaudron, Gummow and Hayne JJ referred (inter alia) to the opinion of the Supreme Court of the United States delivered by Holmes J in Strassheim v Daily (1911) 221 US 280 at 285 in which his Honour said:
"Acts done outside a jurisdiction, but intended to produce and producing detrimental effects within it, justify a state in punishing the cause of the harm as if (the actor) had been present at the effect."
Their Honours pointed out that because the common law offence of conspiracy as charged was an offence against the (single) common law of Australia, States other than South Australia had an interest in the matter - yet only South Australia moved to prosecute. The jurisdiction was not a national jurisdiction in the sense that the South Australian court was exercising federal jurisdiction in respect of prosecutions of offences against laws of the Commonwealth (a point of distinction with the present case) and there therefore had to be "some adequate contact between the State and the particular offence charged" (ibid 294).
At [86] their Honours turned to s 5C of the Criminal Law Consolidation Act 1935 (SA) which was introduced following the decision in Thompson v The Queen (1989) 169 CLR 1 and was intended to have analogous effect to that of s 12 of the Criminal Code (WA). The South Australian provision had no bearing on the appeal in Lipohar because it was expressed to deal with offences against the "law of the State" - and the conspiracy there, being an offence under the common law of Australia, could not be so characterised. The Supreme Court of South Australia was not exercising federal jurisdiction (ibid[15]). So far as the connection necessary for the exercise of State territorial jurisdiction was concerned, their Honours held (ibid [123]):
"The requirement of nexus should be liberally applied. A real
connection with the jurisdiction will suffice."
The applicant Pinkstone places much reliance on the dissenting judgment of Kirby J in Lipohar. In his consideration of the problem of territorial criminal jurisdiction, Kirby J pointed out the distinction between the legal framework of the United Kingdom and that of Australia. The relationship between the jurisdictions of the several States and the Commonwealth is one to be determined not by reference to the

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rules of international law but by reference to the Australian Constitution.
Having mentioned a number of those, his Honour continued (ibid [168]):
"Two other sections of the Australian Constitution may be mentioned. By s 80, express provision is made for jury trial of certain federal offences: cf Re Colina; Ex parte Torney (1999) 73 ALJR 1576. That section requires that 'every such trial shall be held in the State where the offence was committed, and if the offence was not committed within any State the trial shall be held at such place or places as the Parliament prescribes'. The section was obviously influenced by antecedents in the United States Constitution (United States Constitution, Art III, s 2 and Sixth Amendment). It reflects, in the case of the federal offences specified, the assumption that it is normally possible to ascertain the identify [sic] of the 'State' where the offence was committed'."

His Honour then went on to examine situations in which it was not readily possible to identify the State in which an offence was committed and the various legislative attempts to deal with offences having trans-jurisdictional features. In that context he analysed s 5C of the Criminal Law Consolidation Act (SA) in some detail and highlighted a number of substantial deficiencies. His Honour saw this as a cautionary exercise as demonstrating that where legislation specifically designed to address that kind of problem was shown to afford no relief to the Crown, judges should not be enthusiastic to repair the perceived omissions. It was in that context then that Kirby J made the following observations upon which the applicant Pinkstone relies (ibid [194] - [195]):
"[194] First, it is one thing for courts to fashion rules to govern the exercise of their jurisdiction where an offence clearly exists within the jurisdiction. It is quite another for courts, in respect of offences that have occurred in another jurisdiction (and are completed) to deem the latter to be an offence against their own laws. Fictions should not be encouraged in the law. Fictions which create new criminal offences are especially objectionable. Those which do so, effectively, with retrospective operation, are particularly offensive to fundamental principle: Welch v United Kingdom (1995) 20 EHRR 247; SW v United Kingdom (1995) 21 EHRR 363. If, by a deft fiction an offence, all elements of which were completed in Victoria (or Queensland) is

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deemed to be an offence against the law of South Australia, this should only occur with legislative authority. In the business of criminal offences, the common law is past child bearing. Presumably a Parliament would provide checks and exceptions for the operation of such a fiction. The inadequacies of s 5C to respond to the problem of this case demonstrate the need for considerable caution in judicial invention in this area: cf Hinton and Lind, 'The Territorial Application of the Criminal Law - When Crime is not Local' (1999) 23 Criminal Law Journal 285 at 298-299.
[195] Secondly, it is important to recognise a distinction hitherto observed in Australian law (and also reflected in s 5C itself in the terms of s 5C(1) which is expressed by reference to the commission of an 'offence against the law of the State') between the existence of different offences in different parts of the Australian federation called forth by similar or even identical facts and circumstances. The division of the Australian federation into separate geographical units called States or Territories is so fundamental to the federal character of the Constitution that it should not be swept aside by a common law invention. The common law does not challenge the Constitution's fundamental hypotheses. There are great risks in invoking a common law fiction to treat a completed 'offence' in one Australian jurisdiction as an 'offence' against the law of another, although Parliament in that other jurisdiction has never so expressly provided (as it might have done). This is because, even within Australia, different States and Territories have chosen to criminalise and decriminalise similar or identical activities. They have regularly provided different definitions of common offences. They have sometimes afforded different defences to the accused (as to the Criminal Code (Qld) does in this case: s 12(3A). See also Thompson v The Queen (1989) 169 CLR 1). They frequently apply different sentencing regimes, sometimes with markedly different penal consequences for the person who is convicted. If a swathe is to be cut through these complexities and a completed criminal offence in one Australian

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jurisdiction is now to be deemed a crime in another, at the least the foregoing disparities suggest the need for intricate legislative reform which will establish clear criteria for the operation of the fiction. Judges should walk with extreme care. This is one occasion to suppress the instinct to creativity." (My emphasis)

There are two points to be made about this. The first is that his Honour was careful to confine his remarks to offences that were "completed" in another jurisdiction; the second is that he was referring specifically to judicial determinations at common law assuming criminality and jurisdiction in the State which was not that in which the acts occurred and (ex hypothesi) in the absence of any relevant legislation. In the present case the offences charged were not "completed" in New South Wales; and s 12 of the Criminal Code (WA) is legislation of the relevant kind.
The effect of such legislation was explained in the context of s 5C of the Criminal Law Consolidation Act 1935 (SA), s 3A of the Crimes Act 1900 (NSW) and s 3A of the Crimes Act 1900 (ACT) in the article by Hinton & Lind to which Kirby J referred (at 33) "The Territorial Application of the Criminal Law - When Crime is not Local" (1999) 23 Crim LJ 285, at 289:
"Quite clearly s 5C and its equivalents in New South Wales and the Australian Capital Territory, seek to relieve the prosecution of the necessity of proving the locus of an offence where that is in issue. This is achieved by the legislation in two respects. First, the ambit of the criminal law in South Australia, New South Wales and the Australian Capital Territory is expanded to the extent that the locus of an offence will be attributed to the relevant jurisdiction provided there exists the necessary territorial nexus - all crime is no longer strictly local. Secondly, it is not incumbent upon the prosecution to prove in every case the existence of the necessary territorial nexus. It is presumed that the nexus exists. Should the accused wish to challenge this presumption, he or she bears the burden of satisfying the trier of fact on the balance of probabilities that the necessary territorial nexus does not exist. In effect it is intended that s 5C and its equivalents in New South Wales and the Australian Capital Territory overcome the difficulties confronting the prosecution in situations where the facts of a particular matter as known reveal a positive link between a particular jurisdiction and the

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offence but also reveal the possibility of a link between the offence and another jurisdiction such as the location of the commission of the offence cannot be ascertained with confidence."

Section 12 of the Criminal Code (WA) is in essentially similar terms to the legislative provisions there being referred to.
Furthermore, this is not a case in which the same offences may have been charged in both New South Wales and Western Australia. It may be that what Pinkstone is alleged to have done in New South Wales could constitute an offence in that State - but it would not be the offence with which he is charged here. Thus, while the Commonwealth offence of importing narcotic goods contrary to s 233B of the Customs Act 1901 (Cth) is the same offence no matter in which State of Australia the relevant acts occur, and that the trial would then have to be held in the State of situs by virtue of s 80 of the Constitution, the Commonwealth offence of supplying prohibited drugs contrary to s 6(1) of the Misuse of Drugs Act (WA) will only constitute that offence if the acts relied on would have otherwise constituted that offence in Western Australia absent the factor that they occurred on a Commonwealth place in that State.
For the reasons given above, there is a sufficient territorial nexus in light of Lipohar for the Misuse of Drugs Act (WA) offences to be justiciable in Western Australia if Perth Airport were not a Commonwealth place. That being so, and Western Australian State law being inapplicable at Perth Airport because of s 51(i) of the Constitution, s 4(1) of the Commonwealth Places Act operates to apply the Criminal Code (WA) (including s 12) and the Misuse of Drugs Act (WA) to Perth Airport as laws of the Commonwealth.
Pinkstone's contention that Lipohar does not assist the Crown here because if these offences were committed, they could only have been committed in New South Wales, cannot be sustained. The contention assumes all elements of the offences were completed in New South Wales; and as has been explained above, that is not so.
The possibility that a Commonwealth offence may be partly committed in different States is recognised by s 70 of the Judiciary Act 1903 which reads:

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"Offences committed in several States
When an offence against the laws of the Commonwealth is begun in one State or part of the Commonwealth and completed in another, the offender may be dealt with, tried and punished in either State or part in the same manner as if the offence had been actually and wholly committed therein."

That section is one of those expressly excluded from application to proceedings covered by the Commonwealth Places Act (see s 5(3) and the Schedule), no doubt because whether or not an offence under an applied provision corresponding to a law of a particular State has been committed and is justiciable will depend upon the law of that particular State (which itself would be an applied provision). That is the situation here, insofar as it involves the inter-relationship of the Misuse of Drugs Act 1981 (WA) and s 12 of the Criminal Code (WA).

Pinkstone argues that the territorial jurisdiction "venue field" is occupied by s 80 of the Constitution and accordingly s 12 of the Criminal Code is inoperative and cannot apply to Commonwealth offences anyway. There is no substance to these contentions. That is not the way s 12 works. It does not purport to operate upon Commonwealth offences. It is part of the statutory framework which determines that supplying or attempting to supply prohibited drugs is an offence in Western Australia and what the territorial nexus must be for the Western Australian courts to have jurisdiction in respect of such offences which have a trans-jurisdictional character. If what is done falls within the terms of those statutory provisions, then it will be an offence "committed" in Western Australia. Section 4(1) of the Commonwealth Places Act simply picks that situation up and makes it a Commonwealth offence if committed on a Commonwealth place in Western Australia. There is no inconsistency between s 12 of the Criminal Code (WA) and s 80 of the Constitution. For the trial to be held in Western Australia would constitute compliance with the constitutional imperative in s 80 of the Constitution and be in accord with authorities relied upon by the applicant Pinkstone (such as Cheng v The Queen (2000) 74 ALJR 1482).
That beings me to the form of the indictment. This will also involve a consideration of the arguments advanced by Mr Holdenson QC on behalf of Yanko.

71	The first contention here is that count 2 (and the same argument would apply to the counts against the other accused) clearly and expressly charges the commission of a State offence on a Commonwealth place

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within the meaning of s 52(i) of the Constitution. Since State law cannot run at that place, the charge must be a nullity. It is further submitted that s 14 of the Commonwealth Places Act does not save the present situation because the scope of its operation is confined to proceedings prior to arraignment, and here Yanko has been arraigned and pleaded not guilty.

It is convenient to address the latter submission first. This submission turns on the words underlined below in s 14 of the Commonwealth Places Act:
"Where a person is charged with an offence against the law of a State and the court before which he or she is charged is satisfied that:

(a) that law is inapplicable by reason of the operation of s 52 of the Constitution in relation to Commonwealth places; and
(b) a part of the applied provisions corresponds to that law;
the proceedings shall be continued as though that person had been charged with the corresponding offence under that part of the applied provisions."

It is put on behalf of Yanko that the section therefore applies only to a person who has the status of being a person who "… is charged" and can therefore only apply until arraignment, because thereafter the person is no longer a person who is charged but a person "on trial". It is said that Holmes and Willoughby are distinguishable because this point was not argued in those cases.
Mr Holdenson points to s 612 of the Criminal Code (WA) as defining the point at which the status of the person changes from that of a person charged to that of a person upon trial. That section provides that:
"At the time appointed for the trial of an accused person he is to be informed in open court of the offence with which he is charged, as set forth in the indictment, and is to be called upon to plead to the indictment, and to say whether he is guilty or not guilty of the charge.
The trial is deemed to begin when he is so called upon."

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The fact that in accordance with long-standing practice the accused may be "re-arraigned" in the presence of the jury panel at the commencement of his trial is said to be of no moment.
Section 622 of the Criminal Code (WA) provides that where an accused pleads any plea other than one of guilty, he is deemed to have demanded that the issues raised by the plea shall be tried by a jury and those issues are triable accordingly.
These and related provisions were considered by Murray J in Bond (supra) at 394-397. His Honour (with whom Nicholson and Anderson JJ agreed on this) was of the view that it was competent for the appellant in that case to move to quash the indictment and to demur to it immediately before being arraigned in front of the jury panel in May 1992, even though he had been arraigned upon the presentment of the indictment in December 1991 and entered a plea of not guilty. The issue was whether or not the appellant was able to take that course given the provisions of the Code which require a motion to quash or a demurrer to be made before the accused pleads. Murray J referred to various sections of the Criminal Code (WA) which deal with situations arising before trial and concluded (at 395 ibid) that all of the provisions were consistent with an interpretation which would apply the description of a "trial" to proceedings directed to the substantive disposition of a case by the court after arraignment and that the provision in s 612 that the trial is deemed to begin when the accused is arraigned, applies in terms of that section to the case where the arraignment occurs "at the time appointed for the trial" of the accused in the substantive sense. The sections to which his Honour referred did not preclude the accused being arraigned on some earlier occasion before the time appointed for the trial.
A contrary conclusion was reached in R v Talia & Ors [1996] 1 VR 462; (1995) 82 A Crim R 373 a decision of the Court of Criminal Appeal of Victoria. The point at issue there was whether the applicant had lost his right to make an unsworn statement on his trial by the operation of the Evidence (Unsworn Evidence) Act 1993 (Vic) ("the Unsworn Evidence Act"). That amending Act came into operation on 11 May 1993. By s 7(1) it was expressed to apply to the trial or hearing of a charge that commenced on or after that date. By s 7(2) it was provided that a trial commences upon the arraignment of the accused. The applicant had been arraigned under s 391A of the Crimes Act 1958 (Vic) on 2 February 1993 and there had thereafter been various interlocutory or pre-trial applications and rulings made. It was not until 15 April 1994 that he was re-arraigned in the presence of the jury panel and his substantive trial in fact began.

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The trial Judge ruled that the applicant's trial had not commenced until 15 April 1994 and so by virtue of s 7(2) of the Unsworn Evidence Act his right to give unsworn evidence had been abolished (on 11 May 1993) before his trial commenced.

On appeal it was held that the applicant had been arraigned within the meaning of s 7(2) on 2 February 1993 and accordingly by virtue of that subsection his trial was deemed to have commenced for the purposes of subs (1) and the amendment had not abolished his right to make an unsworn statement.
At VR 470-471, A Crim R 381-382 the Court said:
"…the sole ground which is relied upon by the applicant Centra before this Court is that the trial judge erred in ruling that he (the applicant) was precluded by the Evidence (Unsworn Evidence) Act from giving unsworn evidence upon his trial and that, as a result, his trial has miscarried.
In our view, this ground has been made out. The amendments made to s 25 of the Evidence Act 1958 (abolishing the right to give unsworn evidence) only apply to trials which commence after the commencement of the amending legislation and the legislation defines 'commencement of trial' as occurring 'on arraignment of the accused'. It appears to us to be obvious that the legislature has chosen the 'arraignment of the accused' as being the date from which persons charged with indictable offences will lose their right to give unsworn evidence so that there will be an unambiguous point in time at which pre-existing rights will be affected. This point in time must in our view be the time at which arraignment occurs in accordance with ss 391 and 391A of the Crimes Act."
Having set out the terms of those sections the Court continued:
"The procedure provided by these sections constitutes the only procedure by means of which an accused charged with an indictable offence in this State can be 'arraigned', that being the occasion upon which an accused is called upon to plead to the charge or charges preferred against him by the Crown. By his plea of 'not guilty' the accused joins issue with the Crown and is deemed to have 'placed himself upon his country' for trial (ponit se in patriam). Such a plea entitles the accused to have the issue thus joined determined by a jury and thereafter he is entitled to

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have a jury empanelled to try the issue thus joined. As a matter of practice and in various circumstances (eg where amendments have been made to the presentment, see Radley (1974) 58 Crim App R 394 it may be deemed necessary to have the accused re-arraigned. But the process of re-arraignment cannot obscure the fact that the procedure of formal arraignment has occurred at the time when the accused has first, by his plea, joined issue with the Crown."

At 368 (ibid) the Court observed that counsel for the applicant:
"… further sought to derive support for this argument by referring to the remarks made by the Attorney-General when introducing the Evidence (Unsworn Evidence) Bill (Vic) to the Parliament. The particular remarks upon which he relied are to be found in Hansard, 18 March 1993, p 285:
'The only people who will be affected by the immediate commencement of the Bill are those who have been charged but have yet to appear in court for their trials. The perception of fairness in our criminal justice system would be sorely tested if, years from now, persons could rely on unsworn testimony simply because they had been charged prior to this Bill being implemented. If a trial or hearing is in progress at the time the Bill commences, the right will remain.'
In particular Mr Lincoln placed reliance on the concluding words: 'if a trial or hearing is in progress at the time the Bill commences…'.
We cannot agree that the views expressed by the learned trial judge or the submissions made by the Crown are correct. The legislature, in our view, clearly intended to identify a particular point in time after which the right of an accused to give unsworn evidence would be lost. The point of time identified is the 'arraignment of the accused'. This, as we have already indicated, means the process of arraignment identified by ss 391 and 291A of the Crimes Act. There is no indication that the word 'arraignment' is to be given a flexible interpretation to take account of the concept of a 'first arraignment' or a 'second or subsequent arraignment'. Such an interpretation is not only a misconception as to when an accused is 'arraigned' in

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accordance with the procedure laid down in the Crimes Act but would in our view defeat the obvious intention which the legislature had in setting a definite point in time at which the relevant right would be lost. For our part we cannot see, in the words used by the Attorney-General in introducing the Bill, anything which would indicate that the legislature had in mind any other 'arraignment' than the procedure referred to in the Crimes Act. Rather it seems to us that the particular passage in Hansard to which Mr Lincoln referred drew a distinction between persons who had been charged with offences and those who had been charged and had 'appeared in court for their trials'.
If our construction of the relevant procedure laid out in the Crimes Act is correct, the trial begins upon the arraignment contemplated by ss 391 and 391A of that Act which in this case occurred on 2 February 1993. Thereafter the trial of the applicant, for relevant purposes, was 'in progress'."

Talia is quite distinguishable from the present case. The decision in Talia turned on a specific statutory provision from another jurisdiction, in a different statutory context which itself defined the point at which it operated by reference to a specific statutory event, viz, the "arraignment" of an accused. That is not the situation here. Section 612 of the Criminal Code (WA) commences with the words "At the time appointed for the trial of an accused…"; furthermore, the reference in the Commonwealth Places Act to a person who "… is charged" is not expressly referrable to anything other than the fact of being a person charged. It seems to me that in that context a person does not cease to be a person who "… is charged" once they have put themselves upon their country by a plea on arraignment - a person on trial is still a person charged with an offence. In any event, if there is any relevant conflict between Talia and Bond, the latter is binding upon me.
The construction adopted in Bond militates against the contention advanced by Mr Holdenson, but in any event there are also other factors against his contention.
Mr Holdenson acknowledged that if his construction were correct, there would be an hiatus in the legislation between the time from the entry of a plea and that of an appeal following conviction.

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Section 15 of the Commonwealth Places Act makes provision similar to that in s 14 but does so in respect of appeals. Thus, on the argument as put, if in proceedings relating to an offence against a law of a State a court were satisfied that the law was inapplicable by reason of the operation of s 52 of the Constitution and a part of the applied provisions corresponds to that law, then if that were established prior to the entry of a plea, the proceedings at trial must be continued as though the person had been charged with the corresponding offence under that part of the applied provisions; and if that were to be established on appeal following conviction, the appeal must proceed as though it had been brought under that part of the applied provisions - but if those matters were to be shown in the course of the trial between plea and conviction, the charge of the State offence would be a nullity and therefore so would the proceedings!
First, as I have said, I do not discern in either the Criminal Code (WA) or the Commonwealth Places Act an intention to draw a distinction otherwise than as a matter of description, between the status of a person who is charged with an offence and one who is charged with an offence and whose trial on that charge has begun once he or she has been arraigned. Indeed, I consider that on a plain reading of the Commonwealth Places Act, the expression a person who "… is charged" is both apt and intended to describe a person from the time presented in court on a charge through to conviction. Any jurisdictional problem arising in the circumstances described in s 14 is overcome by that section to that point. Such a problem occurring thereafter - that is on an appeal - is picked up by s 15. That construction of s 14 accords with common-sense, is consistent with the plain meaning of the words used and avoids the strange hiatus which would otherwise result were the construction advocated by Mr Holdenson to be adopted.
Even were I wrong about that, then on the authority of Bond, the trial of these accused will not begin until they are arraigned before the jury panel at the time appointed for the substantive trial to commence (which will be 2 October 2001), notwithstanding Yanko and the two Braziers have already been arraigned and pleaded not guilty. That being so, each accused is still appropriately described as a person who "… is charged" with an offence within the meaning of s 14 of the Commonwealth Places Act.
On either view just expressed, s 14 of the Commonwealth Places Act operates on these proceedings. That being so, Holmes (supra) and Willoughby (supra) are apposite. As I am satisfied the Misuse of Drugs Act (WA) and the Criminal Code (WA) are inapplicable to Perth Airport

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by reason of the operation of s 52 of the Constitution in relation to Commonwealth places, but are part of the applied provisions and so correspond to those laws, the effect of s 14 is mandatory: the proceedings "shall be continued" as though these accused had been charged with the corresponding offence under those parts of the applied provisions.

As the South Australian Court of Criminal Appeal said in Holmes, the present offences would have been more accurately described if the indictment had alleged the offences occurred in a Commonwealth place, namely Perth Airport, and had referred to the relevant sections of the Misuse of Drugs Act (WA) as having been applied by s 4(1) of the Commonwealth Places Act, as was done in Tucs v Algie (supra). The form is not uncommon; it is used for instance in proceedings relating to charges of a "territory offence" under s 61(1) of the Defence Force Discipline Act 1982 (Cth). Nonetheless, although such a formulation here would have been preferable, the lack of it is not fatal for the reasons given in Holmes and Willoughby.

I was informed by Mr Cock QC that the Commonwealth/State Agreement under s 6(2) of the Commonwealth Places Act referred to in Willoughby and published in the "Commonwealth Government Gazette" No 91 of 30 September 1971 at 6161 (exhibit A) ("the Commonwealth/State Agreement") is still operative. However, he expressly disavowed any reliance upon that here. His contention is quite simply that s 14 of the Commonwealth Places Act dictates that the proceedings, initiated as they have been by a State prosecutor on a State indictment, but charging an offence which can only be one under the applied provisions, must continue as a prosecution of Commonwealth offences in the exercise by this Court of federal jurisdiction. I accept that submission.
In addition and despite the respondents' non-reliance on the Commonwealth/State Agreement embodying an arrangement made pursuant to s 6(2) of the Commonwealth Places Act, as a matter of law that agreement, in combination with s 10, s 11 and s 12(1) of the Commonwealth Places Act would also save this indictment. In the absence of such an arrangement the indictment in its current form and the proceedings upon it would be saved by s 4(12) and (14) of the Commonwealth Places Act.
Further, s 10 provides that:

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"10. Where an authority of a State or a person has purported to do an act under a law of a State in or in relation to a Commonwealth place and:

(a)

that law was inapplicable by reason of the operation of section 52 of the Constitution in relation to that Commonwealth place; and

(b) a part of the applied provisions corresponded to the law;
that act shall be deemed to have been done under that part of the
applied provisions"

and s 11 of the Commonwealth Places Act is a similar provision with respect to instruments in writing, so would relate to the indictment in this case. Subsection (2) of s 12 seems to imply that subs (1) will apply only in, or to, circumstances in which a State prosecuting authority initiates or conducts a prosecution of a charge of an offence under an applied provision pursuant to a Commonwealth/State agreement under s 6(2) - but as I have observed, there is such an agreement in force between Western Australia and the Commonwealth. The effect of these provisions is to make this State indictment charging State offences in respect of a Commonwealth place, a valid Commonwealth indictment charging Commonwealth offences. That is no doubt why s 69 of the Judiciary Act is one of those provisions which has been specifically excluded from application to proceedings under the Commonwealth Places Act by s 5(3) and the Schedule to that Act.

In his 8 June Reply Pinkstone contends that since the Australia Act 1986 (Cth) and the Australia Act 1986 (UK) the Governor-General of Australia and the Governors of the Australian States are merely figureheads of the Crown and do not possess any independent discretion in the exercise of the authority vested in them. He contends further that although the Constitution requires the Governor-General to exercise some powers on the advice of the Federal Executive Council, there is no provision which would enable the Governor-General and a State Governor to exercise powers such as those in s 5(3) and s 6(2) "to fetter the Australian Federal judicial process". He argues the 30 year old agreement is arguably unconstitutional as purporting:
"… to confer all original Federal jurisdiction into an authority of the State, where an 'applied provision' is invoked by s 4(1) of the (Commonwealth Places) Act,"

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and he refers to Re Wakim; Ex p McNally (1999) 198 CLR 511.

There is no suggestion s 6(3) of the Commonwealth Places Act ever gave the Governor-General and the State Governors an independent discretion to enter into formal agreements concerning prosecutions for federal offences under applied provisions relating to Commonwealth places. Statutory references to the Governor-General and State Governors are to be read as referring to the federal Executive Council and the State Executive Council respectively (s 16A Acts Interpretation Act 1901 (Cth); s 60 Interpretation Act 1984 (WA). Indeed, the recital to the Arrangement between the Governor-General on behalf of the Commonwealth and the Governor of Western Australia on behalf of this State, dated 16 September 1971 begins with the words:
"AN ARRANGEMENT made between HIS EXCELLENCY THE GOVERNOR-GENERAL OF THE COMMONWEALTH OF AUSTRALIA, acting with the advice of the Federal Executive Council, and HIS EXCELLENCY THE GOVERNOR OF THE STATE OF WESTERN AUSTRALIA, acting with the advice of the Executive Council of the State:"
The State Governor was authorised to enter into this arrangement by s 4(2) of the Commonwealth Places (Application of Laws) Act 1970 (WA) which came into operation on 30 November 1970. More to the point, the Commonwealth/State Agreement neither purports to, nor does, "fetter the Australian judicial process": it is an executive instrument expressly authorised by Commonwealth law to give effect to that law. Section 6(2) itself stipulates that the arrangement cannot be in respect of a power, duty or function involving the exercise of judicial power. The agreement itself does not confer federal jurisdiction be that judicial or executive (putting aside for the moment the question whether it is appropriate to use the term "jurisdiction" at all with reference to the exercise of executive power). Judicial and executive jurisdiction are conferred by the Commonwealth Places Act itself. The Agreement embodies an arrangement for the exercise or performance of powers, duties or functions by State authorities under the applied provisions having effect in relation to Commonwealth places in Western Australia. Re Wakim was concerned with State laws purporting to vest State jurisdiction in the Federal Court and corresponding Commonwealth law purporting to authorise the exercise of State jurisdiction so conferred upon it. The High Court held that the jurisdiction that could be conferred upon a federal court is limited by reference to the matters in s 75 and s 76 Constitution, and no polity other

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than the Commonwealth could confer such jurisdiction. Re Wakim has
no application to the present case.

The Commonwealth/State Agreement has effect according to its tenor. It was not limited in time. It therefore continues to operate until superseded or terminated by the Governor-General and State Governor, or until its statutory foundation is removed. The Australia Act 1986 (Cth) was intended to remove whatever constitutional restrictions or limitations flowed from the former colonial status of the Australian States. The effect broadly was (inter alia) to terminate the legislative authority of the United Kingdom Parliament with respect to Australia and to declare that the powers of the Crown in relation to a State (other than the power to appoint or remove a Governor) are exercisable only by a Governor on the advice of the Premier (Australia Act 1986 (Cth), s 7) - that is to say, by the Governor in Executive Council. The Australia Act 1986 (Cth) had no effect upon the Commonwealth Places Act nor on the Commonwealth/State Agreement.
The exercise of federal jurisdiction does not come via s 68 of the Judiciary Act but directly from s 7(1) of the Commonwealth Places Act. Sections 72 to 76 inclusive of the Judiciary Act are expressly excluded in respect of proceedings under the applied provisions (see s 8(6) of the Commonwealth Places Act) as are s 69, s 70, s 71 and s 71A (see s 5(3) and the Schedule to the Commonwealth Places Act). As Mr Holdenson points out (and it seems to be common ground) s 79 of the Judiciary Act is not excluded and so in these proceedings the laws of Western Australia, including the laws relating to procedure, evidence and the competency of witnesses, are to be applied.
But of course none of these provisions could derogate from s 80 of the Constitution; these being charges of Commonwealth offences, each of the accused is guaranteed the right to trial by a jury, which means a unanimous verdict (see Cheatle v The Queen (1993) 177 CLR 541, 552-4, 557-8).
At various points in his submissions Pinkstone makes a number of complaints of disadvantage or otherwise about the proceedings before the Court of Petty Sessions in respect of these charges, for example, that because the offences were charged under State law he was denied his right to challenge his detention on remand on the ground of insufficient territorial jurisdiction under s 80 of the Constitution. Without making any further observation about submissions of that kind, it is sufficient to say I have found against him on the issue of territorial jurisdiction for the

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reasons given above - and in any event those complaints do not raise any
question of the indictment being formally defective.

This does, however, bring me to the last broad ground of Pinkstone's motion to quash, which (in the terms of s 614 of the Criminal Code (WA), is that the indictment is calculated to prejudice or embarrass him in his defence to the charges.
I accept that this limb of s 614 is of broad application. It can cover cases of abuse of process where the proceedings amount to a collateral attack on the verdict of a jury in previous proceedings (R v Hofschuster (1993) 116 FLR 222), or where the proceedings may have the effect of avoiding an earlier time limitation or be an attempt to gain some other collateral advantage (Kovess v Commonwealth Director of Public Prosecutions (1997) 74 FCR 297). Even so, on its construction it seems to me s 614 is confined to some quality or characteristic or feature of the charge or indictment itself which gives rise to prejudice or embarrassment to the accused in his defence to the charge. The second limb, namely that the indictment is formally defective, supports this view and Hofschuster and Kovess are consistent with it. Thus I would not see it as dealing with abuse of process arising from circumstances not to do with the nature of or formulation of the charge or indictment. Such cases would be dealt with not by quashing the indictment under s 614 but by ordering that proceedings on the indictment be stayed in the inherent jurisdiction of the court (see Jago v District Court (NSW) (1989) 168 CLR 23). I consider that those aspects of the charges and the indictment said by Pinkstone to prejudice and embarrass him in his defence have already been dealt with above. To the extent that he claims prejudice or embarrassment in a wider sense, I consider that to fall within the purview of an application for a stay rather than a motion to quash under s 614 of the Criminal Code (WA). Nonetheless I will proceed to deal with it.
Pinkstone relies on the judgment of Mason CJ, Deane and Dawson JJ in Walton v Gardiner (1992-93) 177 CLR 378 at 393, and the following passage in particular:
"… proceedings within the jurisdiction of a court will be unjustifiably oppressive and vexatious of an objecting defendant, and will constitute an abuse of process, if that court is, in all the circumstances of the particular case, a clearly inappropriate forum to entertain them."

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The authority cited by their Honours for that proposition was Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538. That was a civil case in which a New South Wales company had sued in the Supreme Court of that State an accountant who was a citizen of the United States of America practising in Missouri, for damages for professional negligence. The five member majority of the High Court (Mason CJ, Deane, Dawson, Toohey and Gaudron JJ) held that the act upon which the company relied for its cause of action was committed in Missouri and so the tort, if there was one, was committed there. Even if the matter were litigated in Australia, the accountant would be liable only if he were liable under the law of Missouri. It was in those circumstances their Honours held the action should be stayed on the ground that New South Wales was clearly an inappropriate forum.
Walton v Gardiner (supra) itself was a case in which the New South Wales Court of Appeal had stayed proceedings before the Medical Tribunal on complaints against three medical practitioners. Complaints had been issued in 1986 in respect of events between 1973 and 1977. Those proceedings were stayed. There was then a Royal Commission, as a result of which further (different but related) complaints were laid in 1991. The Court of Appeal stayed them on the ground they were so unfairly and unjustly oppressive as to constitute an abuse of the Tribunal's process. Mason CJ, Deane and Dawson JJ (Brennan and Toohey JJ dissenting) held the proceedings had been properly stayed. The majority said (at 392-3, ibid):
"The inherent jurisdiction of a superior court to stay its proceedings on grounds of abuse of process extends to all those categories of cases in which the processes and procedures of the court, which exist to administer justice with fairness and impartiality, may be converted into instruments of injustice or unfairness."
They acknowledged that the categories of injustice or unfairness are
not closed.
There is much in Pinkstone's various submissions both on this issue and generally, which is merely argumentative, consists of unsupported allegations of fact (many of which have no bearing on the offences charged nor the conduct of the proceedings) or are statements which reflect no more than his preferred view of circumstances and events. I do not propose to canvass all of those matters.

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The first aspect raised here is said to be that he cannot be tried alongside his three co-accused because they are all alleged "State offenders" whereas he is an alleged "Commonwealth offender" where "procedures and Acts differ considerably." The fact is that (using Pinkstone's own terminology) all four accused are "Commonwealth offenders" because they are all charged with Commonwealth offences under applied provisions which correspond to State law. The proceedings in respect of each accused are being conducted under the provisions of the Commonwealth Places Act. In these proceedings all of them are subject to the same procedural and legislative regime.
The second aspect is a claim by Pinkstone that he will suffer prejudice by being prosecuted in Western Australia. He refers to the judgment of Gaudron J in Cheng v The Queen (supra) and in particular her Honour's reference (at [77]-[78]) to the constitutional guarantee embodied in s 80 of the Constitution and to s 117 of the Constitution which mandates that a resident of a State:
"… shall not be subject in any other State to any disability or discrimination which would not be equally applicable to him if he were a subject of the Queen resident in such other State."
Pinkstone's argument here is that to be deprived of the guarantee of a unanimous jury verdict on a trial in New South Wales, as a resident of that State and "where all the conduct occurred", and where the penalties are substantially higher than those of "the lex loci actus (NSW)" gives rise to a justifiable sense of grievance and as a consequence offends s 117 of the Constitution.
The first response to this is that s 117 concerns discrimination in one State, by the laws of that State, against residents of another. The principle is that s 117 renders a disability or discrimination invalid if the notional fact of residence within the legislating State would effectively remove the disability or discrimination or substantially deprive it of its onerous nature (per Mason CJ in Street v Queensland Bar Association (1989) 168 CLR 461, 489). There is no feature of that here. Were Pinkstone to be notionally resident in Western Australia the matters of which he complains would not be ameliorated nor avoided; they would apply to exactly the same extent as they do to him in his present circumstances. In addition, those matters are not the product of State, but of Commonwealth, law, in the form of the applied provisions.

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The second response is that already given above: Pinkstone will not be deprived of the unanimous verdict of a jury (nor of any other constitutionally imperative features of trial by jury: see Brownlee v The Queen [2001] HCA 36) and he will be tried in the State in which the offence allegedly occurred.
His reference to a higher penalty is to the fact that an offence of supplying methylamphetamine committed in New South Wales contrary to s 25 of the Drug Misuse and Trafficking Act 1985 (NSW) is punishable by a maximum term of imprisonment of 20 years, as opposed to one of 25 years for a similar offence in Western Australia contrary to s 6(1) of the Misuse of Drugs Act (WA). However, whether or not Pinkstone may have committed offences contrary to the New South Wales Act as an applied provision operating with respect to Sydney Airport, that is not the entirety of the conduct which founds the offences with which he is charged here - and he could not have been charged under the applied provisions of the New South Wales legislation with the offences of supplying prohibited drugs at Perth Airport.
These circumstances give rise to no disability nor discrimination within the meaning of s 117 of the Constitution.
Pinkstone further complains that he is disadvantaged by being charged and tried in Western Australia because a "Manisco defence" would not be open to him here whereas it would in New South Wales. By that is meant that on charges of supplying prohibited drugs in New South Wales he could raise a defence that he was merely returning the drugs to their owners (see R v Carey (supra), whereas the amendment to the Misuse of Drugs Act (WA) introduced in 1998 following the decision in Manisco v The Queen (supra), precludes such a defence in Western Australia.
The Misuse of Drugs Amendment Act 1998 (WA) amended the definition of "to supply" in s 3 of the principal Act to read:
"'to supply' includes to deliver, dispense, distribute, forward, furnish, make available, provide, return or send, and it does not matter that something is supplied on behalf of another or on whose behalf it is supplied;" (emphasis added).
The point has no substance for the reasons already given above. Section 3 of the Misuse of Drugs Act (WA) as amended, is part of the applied provisions made Commonwealth law by s 4(1) of the Commonwealth Places Act. The Commonwealth Parliament may define

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offences which may be committed on Commonwealth places in Western Australia howsoever it chooses (Holmes, supra, at 246). There is no "discrimination" in this regard.

He submits that it will be impossible for him to obtain a fair trial in Western Australia as he intends to call 65 defence witnesses from "the 'law area' where all the alleged conduct occurred" (that is to say, New South Wales). He refers to the excessive financial burden that will impose upon him and the procedural unfairness it will involve. He reiterates that all the alleged conduct and elements of the offence dictate that the proper venue for trial is New South Wales. I have already dealt with this last point.
So far as the matter of witnesses is concerned, it is necessary to have regard to the nature of the case. I have already given a briefly-sketched outline of the prosecution case. To develop that a little more, the evidence will apparently include transcripts of intercepted telephone calls between Pinkstone in New South Wales and Yanko and Michael Brazier in Western Australia, which the Crown will allege were discussions about and involved making arrangements for the supply of the drugs by Pinkstone to them before, on and after 7 October 1999. There will be evidence of Pinkstone's activities in Western Australia after 12 October 1999 and in particular further telephone intercepts and attempts by him to evade capture by the police. In the context of such a case it is difficult in the extreme to see any basis upon which there could possibly be 65 witnesses from New South Wales who could possibly give relevant evidence.

The question of alibi aside (of which s 636A of the Criminal Code (WA) requires prior notice to be given) an accused is not obliged to reveal his defence or witnesses prior to trial. Be that as it may, the fact remains that all that is before me on Pinkstone's behalf is his mere assertion, without more, that he intends to call 65 witnesses from New South Wales, apparently to give evidence about his activities in that State. On the material presently before me I can see no basis upon which that could justifiably be done and so quite apart from the prospect of evidence from interstate witnesses being given by video-link or of satisfactory arrangements being made for their attendance, I cannot accept there will or may reasonably be such unusual or extreme prejudice of embarrassment at unfairness created to Pinkstone's defence to the charges as to require the exceptional course of ordering a stay of the indictment as against him. In any event, this case does not involve a choice of jurisdiction. For the reasons already given Western Australia is the only

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State in which it would be appropriate to exercise jurisdiction and there can be no relevant unfairness nor oppression for the proceedings to be conducted here.

At the hearing before me on 1 June, Pinkstone requested that if I were to find against his application, I order that it be removed into the High Court under s 40 of the Judiciary Act 1903 (Cth). I pointed out to him then that such removal could be ordered only by the High Court itself.
Finally, Pinkstone seeks an order that the matter be remitted to the Full Court pursuant to s 43 of the Supreme Court Act 1935 (WA). That section allows the reservation of a case or point of law to be argued before the Full Court. That course is open in a criminal case, (s 43(1) ibid) but the fragmentation of a criminal trial by interlocutory appeals or similar processes is undesirable and is to be discouraged. As Kirby ACJ (as he then was) said in Carroll v Attorney-General for New South Wales (1993) 70 A Crim R 162 at 168:
"The rule restraining interference in the conduct of criminal proceedings is well established and regularly followed. In respect of committal proceedings it was well expressed by the High Court of Australia in Barton (1980) 147 CLR 75 at 99 and in Sankey v Whitlam (1978) 142 CLR 1 at 25. See also Lamb v Moss (1983) 76 FLR 296 at 305-306; cf Miller v Ryan [1980] 1 NSWLR 93 and Cain v Glass (No 2) (1985) 3 NSWLR 230 at 252f (CA).
Nevertheless, there are cases where, in exceptional circumstances, the Court intervenes. Thus, relief was provided in the exceptional circumstances of Chow v DPP(1992) 28 NSWLR 593 at 612f; 63 A Crim R 316 at 333 (CA)."
The point that fragmentation of a criminal trial by the contest of a trial Judge's rulings will be permitted only in exceptional circumstances was reiterated by Dawson J in Re Rozenes; Ex parte Burd (1994) 68 ALJR 372 - where his Honour pointed out (ibid, 373-4) that the circumstance that an applicant who might ultimately succeed on appeal upon the grounds sought to be raised by interlocutory application would nonetheless have by then suffered the expense and strain of a criminal trial, is always present when it is sought to contest the ruling of a trial Judge and is not an exceptional circumstance. In my view the undesirability of the fragmentation of criminal proceedings is a relevant

[2001] WASC 172

ROBERTS-SMITH J

consideration here. There would therefore need to be some very cogent reason going to the proper conduct of the trial (or obstacle to that) to justify the reservation of a point or points of law to the Full Court at this stage of the proceedings. This is not a case in which I consider the points of law raised to be the subject of conflicting higher authorities nor otherwise incapable of resolution by me as trial Judge. I accordingly decline to accede to the request to refer the application or any point of law arising out of it to the Full Court.

The applicant Pinkstone's motion to quash the indictment is denied; the applicant Yanko's demurrer is overruled.

"(1)	On 7 October 1999 at Perth Airport ANTHONY JOHN PINKSTONE supplied a prohibited drug, namely methylamphetamine, to another. (Contrary to s 6(1)(c) Misuse of Drugs Act 1981 (WA)).
(2)	AND FURTHER that on the same date and at the same place, WAYNE JOHN YANKO had in his possession a prohibited drug, namely methylamphetamine, with intent to sell or supply it to another. (Contrary to s 6(1)(a) Misuse of Drugs Act).
(3)	AND FURTHER that on the same date and at the same place, ANTHONY JOHN PINKSTONE attempted to supply a prohibited drug, namely cocaine, to another. (Contrary to s 6(1)(c) and s 33 Misuse of Drugs Act).
(4)	AND FURTHER that on the same date and at the same place, MICHAEL BRAZIER and PAUL PHILLIP BRAZIER attempted to possess a prohibited drug, namely cocaine, with intent to sell or supply it to another. (Contrary to s 6(1)(a) and s 33 Misuse of Drugs Act)."

(a)	all elements necessary to constitute the offence exist; and
(b)	at least one of the acts, omissions, events, circumstances or state of affairs that make up those elements occurs in Western Australia.

(a)	the law under which the offence is created explicitly or by necessary implication makes the place of commission 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 need for a territorial nexus between Western Australia and an element of the offence."

(a)	that law is inapplicable by reason of the operation of s 52 of the Constitution in relation to Commonwealth places; and
(b)	a part of the applied provisions corresponds to that law;

(a)	that law was inapplicable by reason of the operation of section 52 of the Constitution in relation to that Commonwealth place; and
(b)	a part of the applied provisions corresponded to the law;