R v Porter

[2004] NSWCCA 353

Reported Decision: 149 A Crim R 112
61 NSWLR 384

New South Wales

Court of Criminal Appeal

CITATION:	R v PORTER [2004] NSWCCA 353
HEARING DATE(S):	20 September 2004
JUDGMENT DATE:	13 October 2004
JUDGMENT OF:	Spigelman CJ at 1; Barr J at 46; Hoeben J at 47
DECISION:	Question answered "No"
CATCHWORDS:	CRIMINAL LAW -- Proper construction of words "in accordance with their tenor" in s4(1) of the Commonwealth Places (Application of Laws) Act -- Relationship between s 12 Interpretation Act and s527C Crimes Act -- Whether s527C of Crimes Act requires stealing or unlawful obtaining to occur in NSW
LEGISLATION CITED:	Acts Interpretation Act 1901 (Cth) Commonwealth Places (Application of Laws) Act 1970 s4(1) Crimes Act 1900 s527C Criminal Code 2002 (ACT) s 324(1) Interpretation Act 1987 (NSW) s12 Judiciary Act 1903 (Cth) Police Act 1892 (WA) s 69 Police Offences Act 1935 (Tas) s39(1) Summary Offences Act (NT) s61(2) Summary Offences Act 1953 (SA) s 41(1) Summary Offences Act 1966 (Vic) s26(1) Summary Offences Act 1970 (NSW) Vagrants, Gaming and Other Offences Act 1931 (Qld) s25(1)
CASES CITED:	Commissioner of Stamp Duties (NSW) v Owens (No 2) (1953) 88 CLR 168 Commonwealth v State of Western Australia (1999) 196 CLR 392 Electrolux Home Products Pty Ltd v Australian Workers' Union (2004) 209 ALR 116 English v R (1989) 17 NSWLR 149 Farrelll v Alexander [1977] AC 59 Flaherty v Girgis (1987) 162 CLR 574 Foster v The Queen (1967) 118 CLR 117 Grant v The Queen (1981) 147 CLR 503 John Robertson & Co Ltd (in liq) v Ferguson Transformers Pty Ltd (1973) 129 CLR 65 Lipohar v R (1999) 200 CLR 485 Pedersen v Young (1964) 110 CLR 162 Pinkstone v The Queen (2004) ALJR 797 R v Carr and Wilson (1883) 10 QBD 76 R v Chan (1992) 28 NSWLR 421 R v Chard [1984] AC 279 R v Debruiel (1861) 11 Cox C.C 207 R v Ellis [1899] 1 QB 230 R v Kron (1995) 78 A Crim R 474 R v Porter (2001) 53 NSWLR 354 R v Porter (2004) 141 A Crim R 593 Re: Alcan Australia Limited Ex Parte Federation of Industrial Engineering Employees (1994) 181 CLR 96 Salvation Army (Victoria) Property Trust v Fern Tree Gully Corporation (1952) 85 CLR 159 Solomons v District Court of New South Wales (2002) 211 CLR 119 The Queen v Phillips (1970) 125 CLR 93 The Queen v Reynhoudt (1962) 107 CLR 381 Thwaites v O'Sullivan [1965] SASR 34 Treacy v Director of Public Prosecutions [1971]AC 537 Zickar v M G H Plastic Industries Pty Ltd (1996) 187 CLR 310
PARTIES :	REGINA Christopher Mark PORTER
FILE NUMBER(S):	CCA 2004/1930
COUNSEL:	C Waterstreet (Appellant) D M L Woodburne (Respondent Crown)
SOLICITORS:	Kings Lawyers (Appellant) S Kavanagh (Respondent Crown)

LOWER COURTJURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	99/12/1283
LOWER COURT JUDICIAL OFFICER :	Mahoney ADCJ

2004/1930

SPIGELMAN CJ
BARR J
HOEBEN J

13 OCTOBER 2004

REGINA v Christopher Mark PORTER

Judgment

1 SPIGELMAN CJ: On 3 December 1998, the Appellant was charged with an offence under s527C of the Crimes Act 1900, an offence often referred to as “goods in custody”. Section 527C relevantly provides:

“(1) Any person who …
(a) has anything in his custody;
…
which thing may be reasonably suspected of being stolen or otherwise unlawfully obtained, is liable on conviction before a Local Court:
…
to imprisonment for 6 months, or to a fine of 5 penalty units, or both.
…
(2) It is a sufficient defence to a prosecution for an offence under subsection (1) if the defendant satisfies the court that he or she had no reasonable grounds for suspecting that the thing referred to in the charge was stolen or otherwise unlawfully obtained.”

2 The charge was expressed as follows:

“That Christopher Mark Porter on the third day of December 1998, at Mascot, in the State of New South Wales, did have in his custody one hundred and fifty thousand dollars ($150,000 Australian currency) which may be reasonably suspected of being stolen or otherwise unlawfully obtained.”

3 On 6 October 1999, the Appellant was found guilty of the offence in the Local Court. He was sentenced to a fixed term of six months. He appealed to the District Court against his conviction and sentence and was granted conditional bail pending the hearing and determination of that appeal.

4 This is the third occasion on which a question of law has come before this Court in these proceedings. (See R v Porter (2001) 53 NSWLR 354; R v Porter (2004) 141 A Crim R 493.) The second of the appeals involved a number of questions stated by Acting Judge Mahoney, following upon his Honour’s dismissal of the appeal from the Local Court. One of those questions posed an issue which was not appropriately formulated in the Stated Case. The matter returned to his Honour to re-formulate the question in accordance with the guidance given in this Court.

5 The question of law which is now before the Court is:

“Is it an essential element of the offence that the Crown prove that the goods stolen or otherwise illegally obtained were stolen or obtained in the State of New South Wales?”

6 The facts appear in the Stated Case. The Appellant travelled from Perth to Sydney on 3 December 1998. He picked up his luggage from the baggage carousel. Shortly thereafter he was apprehended by police. A search of the bag which had accompanied him from Perth revealed that it contained $150,000 in cash. He had travelled under a false name. There was no evidence to suggest that the cash was the result of any unlawful activity that occurred in the State of New South Wales.

7 For the reasons set out in the first of the appeals to this Court, the offence with which the Appellant was charged was a Commonwealth offence, (see (2001) 53 NSWLR 354 at [35]-[43]), by reason of the application to Mascot Airport, as a Commonwealth place, of the Commonwealth Places (Application of Laws) Act 1970 (Cth) (“the Application of Laws Act”). The critical provision of which Act is s4(1):

“4(1) The provisions of the laws of the State as in force at a time, whether before or after the commencement of this Act, apply, or shall be deemed to have applied, in accordance with their tenor, at the time in and in relation to each place in that State that is or was a Commonwealth place at that time.”

8 As indicated in Porter supra 53 NSWLR 354 at [41]-[42], the effect of s4 is to enact a Commonwealth law in the same terms as each State law which falls within its terms. However, the offences are Commonwealth offences.

9 The issues that arise on the question posed in the Stated Case for this Court involve two elements. First, when a Commonwealth law is enacted “in accordance with (the) tenor” of a law of the State are the territorial limitations of the State law re-enacted? Secondly, does s527C as a matter of construction apply only to goods stolen or otherwise unlawfully obtained within New South Wales?

The Commonwealth Law

10 The first issue turns on the proper construction of the words “in accordance with their tenor” in s4(1) of the Application of Laws Act. This rather loose terminology adopted by the drafter constitutes a recognition that State legislation may not apply in a Commonwealth place in precisely the same way as a State law applies in a State place. Constitutional considerations relating to the power of the Commonwealth Parliament, even when acting under the exclusive power in s52 of the Constitution, may well operate to modify the application of an applied State law. For example, in Pinkstone v The Queen (2004) 78 ALJR 797 at [38] McHugh and Gummow JJ said the State act there under consideration “operated … as a surrogate federal criminal statute. As a result, the trial of an indictable offence under that Act must accord with s80 of the Constitution”.

11 Section 4 of the Applications of Laws Act is analogous to the application of a State procedural law to courts exercising federal jurisdiction, by the operation of s79 of the Judiciary Act 1903 (Cth). A State law so applied operates as a federal law, but the meaning of the State act is unchanged. (See Commissioner of Stamp Duties (NSW) v Owens (No 2) (1953) 88 CLR 168 at 170; Pedersen v Young (1964) 110 CLR 162 at 165-166; John Robertson & Co Ltd (in liq) v Ferguson Transformers Pty Ltd (1973) 129 CLR 65 at 88; Solomons v District Court of New South Wales (2002) 211 CLR 119 at [21], [60].)

12 Similarly, in the case of s4 of the Application of Laws Act, the meaning of the applied State law is unchanged. Section 4 applies State laws in accordance with their tenor, “not to rewrite them” (Commonwealth v Western Australia (1999) 196 CLR 392 at [51] per Gleeson CJ and Gaudron J).

13 Furthermore Gummow J said in Commonwealth v Western Australia supra at [129]:

“The State provisions can apply only ‘in accordance with their tenor’ and thus within their limits, most plainly as to locality”

See also at [244] per Hayne J.

14 A Commonwealth place continues to be part of the State within which it is situate. Only the power to legislate with respect to that place is exclusive to the Commonwealth Parliament. (See The Queen v Phillips (1970) 125 CLR 93 at 100, 101, 111, 112, 131-132; Pinkstone supra at [38].)

15 That a State Act should apply to a Commonwealth place in the same way as it applies throughout the State is affirmed by s4(2)(b) of the Application of Laws Act, which provides:

“4(2) This section does not:
(a) …
(b) operate so as to make applicable the provisions of a law of a State in or in relation to a Commonwealth place if that law would not apply, or would not have applied, in or in relation to that place if it were not, or had not been, a Commonwealth place.”

16 It is unusual to apply a State Interpretation to Commonwealth legislation to which, ordinarily, the Acts Interpretation Act 1901 (Cth) would apply. That does, however, appear to be the result of s4 of the Application of Laws Act which picks up and applies, as Commonwealth law, both the substantive State enactment and any relevant State Interpretation Act which is required to ensure that the meaning of the State Act is unchanged when it applies to the Commonwealth place.

Interpretation of the State Law

17 The Appellant’s submissions on the second issue identified above turn on the proposition that the words “being stolen or otherwise unlawfully obtained” should be interpreted to refer to a theft or an ‘obtaining’ in a geographic area. The words identifying the geographic area should be, it is submitted, “in New South Wales”. However, the words could be stated in a different way as: “in the jurisdiction”. If the latter, then the relevant territorial link is the Commonwealth of Australia. Such an approach would not change the “meaning” of the State Act. It is one way of stating that meaning. I do not find it necessary to resolve the construction issue on this basis.

18 I approach the matter on the basis of the strict construction of s527C as affirmed in Grant v The Queen (1981) 147 CLR 503, where the Court said at 507:

“From the history of this offence it is important to note the consistency with which courts, both in the United Kingdom and in Australia, have insisted upon a strict construction of the words outlining the elements of the offence, recognizing the extraordinarily serious character of a law which authorizes the arrest of a person on mere suspicion, to be followed by his conviction and possible imprisonment unless he satisfies the court that he had no reasonable grounds for suspicion that the thing in his custody bore the taint of illegality.”

19 Mr C Waterstreet, who appeared for the Appellant, invoked the dictum that “crime is local” in support of the proposition that the question posed should be answered in the affirmative. This glib phrase is now of dubious relevance, particularly in a federation with a single united common law. (See Lipohar v R (1999) 200 CLR 485, especially at [15] and [91].)

20 In the case of a statutory offence, the position is as described by Lord Diplock in Treacy v Director of Public Prosectuions [1971] AC 537 at 561, quoted with approval in Lipohar supra at [94]:

“When Parliament, as in the Theft Act 1968, defines new crimes in words which, as a matter of language, do not contain any geographical limitation either as to where a person's punishable conduct took place or, when the definition requires that the conduct shall be followed by specified consequences, as to where those consequences took effect, what reason have we to suppose that Parliament intended any geographical limitation to be understood?"

21 The only relevant reason was identified as the considerations of comity. That does not apply with respect to an offence expressed in terms of custody and suspicion, both of which occur in the jurisdiction. If there are consequences in another place by reason of the theft or illegality, that can readily be accommodated. (See for example Thwaites v O’Sullivan [1965] SASR 34 at 38; Lipohar at [100] – [102], [118], [126].)

22 The offence under s527C of the Crimes Act is geographically confined in the sense that a person must be found with a “thing in his custody” and that thing must answer the description of a “thing” which “may be reasonably suspected of being stolen or otherwise unlawfully obtained”. Nothing in s527C requires proof that the thing was in fact stolen or unlawfully obtained. The offence recognises that such an element cannot always be established but, nevertheless, a “reasonable suspicion” that such occurred, with respect to the very thing in custody, is sufficient to indicate that criminal conduct had occurred and, subject to the statutory defence in s527C(2), sufficient to constitute a crime.

23 The Appellant relied on the Interpretation Act 1987 (NSW), specifically s12(1)(b), which provides:

“12(1) In any act or instrument:
…
(b) a reference to a locality, jurisdiction or other matter or thing is a reference to such a locality, jurisdiction or other matter or thing in and of New South Wales.”

24 The relevant “matter or thing” which is the subject of a “reference” in s527C (1) is first, the custody and, secondly, the suspicion. If both exist in New South Wales, then the offence is complete. (See R v Chan (1992) 28 NSWLR 421 at 426, 432 – 433.) There is no “reference” in s527C(1) to the ‘stealing’ or ‘unlawful obtaining’, for purposes of s12(1)(b) of the Interpretation Act. These words in s527C(1) simply describe the content of the suspicion.

25 There is clear authority against the appellant in the judgment of the Full Court of the Supreme Court of South Australia in Thwaites v O’Sullivan supra. Until the submissions in this court, that judgment has not been questioned.

26 When rejecting the argument that the words “in the State” should be inserted after the words “suspected of having been stolen or unlawfully obtained” in the South Australian statute, Chamberlain J said that such a construction would render the section futile. He added at 37:

“In most cases the suspecting officer will have no idea where or from whom the property was obtained. If the charge is to fail in a case where his suspicions proved to relate to an obtaining outside the State, as for instance, where he might intercept the suspect disembarking from an interstate plane with a valuable collection of jewellery concealed about his person , it will equally fail if it cannot be proved beyond reasonable doubt that the suspicion relates to an obtaining within the State. Since, in the nature of things this would apply in the ordinary case, the qualification of the section contended for would render it ineffective to combat the mischief which it was designed to meet.” (Emphasis added.)

27 His Honour went on to say, at 38, that the legislation was passed “for the very purpose of bringing within the reach of investigation by legal process people in possession of suspected goods of unknown origin. It would be an odd reading of the section to say that the fact that the origin of the goods was unknown rendered it inoperative.”

28 I find this reasoning compelling. In my opinion, the offence is intended to encompass circumstances in which the provenance, including the geographical provenance, of goods in custody is unknown. Other offences, both at common law and by statute, of dealing with unlawfully obtained goods do contain elements which require proof that a thing has in fact been stolen or unlawfully obtained. An important purpose of having an offence which turns on ‘reasonable suspicion’ is to cover situations in which such an element cannot be established.

29 Even if I were not of the view that the reasoning of Chamberlain J in Thwaites v O’Sullivan were correct, I would nevertheless follow this long standing decision, unless I was satisfied that it was wrong, which I am not.

30 Provisions of this character have a long history in the United Kingdom and in Australia. (See English v R (1989) 17 NSWLR 149 at 151 – 152.) With only one exception, every State and Territory has an offence expressed in, relevantly, identical terms (see Criminal Code 2002 (ACT) s324(1); Summary Offences Act 1923 (NT) s61(2); Vagrants, Gaming and Other Offences Act 1931 (Qld) s 25(1); Summary Offences Act 1953 (SA) s 41(1); Police Act 1892 (WA) s69; Police Offences Act 1935 (Tas) s39(1). Only Victoria, in s 26(1) of the Summary Offences Act 1906, expressly refers to property being stolen “whether in or outside Victoria”.

31 In Victoria s26 of the Summary Offences Act 1966 was amended in 1971 to add the express reference I have mentioned. This amendment was based on a report of the Chief Justices’ Law Reform Committee dated 14 April 1970 entitled Report of Sub-Committee on Proposal to Introduce an Offence of Being in Possession of Goods Stolen Outside of Victoria. It appears that this report was in response to a submission to the Government from the Chief Commissioner of Police dated 26 September 1960, supplemented on 16 December 1963. The Committee report doubted whether or not the amendment it proposed to s26 of the Summary Offences Act (Victoria) was necessary but did recommend its adoption. It is noteworthy that the Report does not refer in any way to the judgment of Thwaites v O’Sullivan. The amendment to the Victorian provision is of no assistance on the proper construction of the New South Wales provision.

32 It is desirable that legislation of so uniform a character be given a uniform interpretation, at least with respect to territorial limitations, in all Australian States. The uniform application of Thwaites would result in a national regime focusing on custody and suspicion within the State, without the need to prove where, if at all, the goods were or might have been stolen or unlawfully obtained. If Thwaites is not followed then, except in Victoria, no State would have a law applicable to goods which cross State boundaries. In a federation where interstate travel is easy, this result would not have been intended.

33 My conclusion in this respect is reinforced by the fact that since the decision in Thwaites the New South Wales Parliament has re-enacted the particular section in the same terms on two occasions: first, as s50 of the Summary Offences Act 1970 (now repealed) and, in 1979, as s527C of the Crimes Act 1900. There is a principle of statutory interpretation that, where Parliament re-enacts words which have been judicially construed, it is taken to have intended the words to bear the meaning attributed to them (see Re: Alcan Australia Limited Ex Parte Federation of Industrial Engineering Employees (1994) 181 CLR 96 at 106; see also the authorities set out in Pearce and Geddes Statutory Interpretation in Australia (Fifth edition) Butterworths 2001 at [3.39] – [3.45]).

34 There is no doubt that it will often be artificial to proceed on the basis that drafters had in mind the interpretation of the same words when drafting new or replacement legislation. Where the new statute is a mere consolidation or involves a different context, the principle would appear to have no work to do. (See for example Salvation Army (Victoria) Property Trust v Fern Tree Gully Corporation (1952) 85 CLR 159; The Queen v Reynhoudt (1962) 107 CLR 381 at 388; Flaherty v Girgis (1987) 162 CLR 574 at 594; Zickarv M G H Plastic Industries Pty Ltd (1996) 187 CLR 310 at 328 – 329, 349 - 351.)

35 The principle would not be applied by a final court of appeal where the prior decision was of a court lower in the hierarchy. (See Farrell v Alexander [1977] AC 59 at 90 – 91; R v Chard [1984] AC 279 at 291 – 292; Flaherty v Girgis supra at 594; Zikhar supra at 328 – 329.)

36 Here the weight to be given to this principle is not increased, as it often is, by the fact that the interpretation has been applied on more than one occasion. Nor is there any additional factor in the legislative history or in the nature of the legislation which reinforces the application of the rule. (See for example Electrolux Home Products Pty Ltd v Australian Workers’ Union (2004) 209 ALR 116 at [161] – [162] c/f [198].)

37 The rule of statutory construction, although now entitled to minimum weight, has never been overruled. It can reinforce a conclusion supported by other legal principles. In the present case the Thwaites interpretation is, at the very least, reasonably open, putting aside my opinion that it is indeed preferable. This principle of statutory interpretation reinforces the proposition that this Court should follow another intermediate court of appeal, unless convinced that the interpretation adopted by that court is wrong.

38 Mr Waterstreet relied on an analogy with the offence of receiving stolen goods. With respect to that offence, both at common law, and in its subsequent statutory formulations, there is a long line of authority which establishes that a person cannot be convicted of receiving goods stolen outside the jurisdiction. Eventually the statutory provisions were extended to encompass goods stolen elsewhere, however, the basic principle was well established (see R v Debruiel (1861) 11 Cox C.C. 207; R v Carr and Wilson (1883) 10 QBD 76; Foster v The Queen (1967) 118 CLR 117 especially at 123 – 124).

39 This analogy was rejected in Thwaites v O’Sullivan, albeit with respect to a submission about the power of the Parliament of South Australia to pass laws with extraterritorial affect. Chamberlain J said at 36 – 37:

“…The thing that stamps the position with the prima facie character of a crime is not something that happened elsewhere, but simply a reasonably entertained suspicion arising within the state.”

40 Chamberlain J relied upon the way in which the line of authority concerning receiving within the jurisdiction of goods stolen elsewhere was explained and distinguished in R v Ellis [1899] 1 QB 230. In that case the Court was concerned with an offence of obtaining property by false representations, where the false representations were made outside the jurisdiction but the property was obtained within the jurisdiction. Wills J said at 237 – 238:

“The making of the false pretences is antecedent to, and not a part of, the obtaining the goods. It is a material circumstance, because it stamps the illegality of the obtaining the goods. The gist and kernel of the offence is the obtaining the goods by improper means, not in using the improper means whereby goods were obtained, and there was therefore an entire offence within the one county, though the circumstance which stamped it with illegality took place beyond the jurisdiction. … It can make no difference that the material circumstance which stamped an otherwise innocent transaction with a character of a crime took place outside the jurisdiction of the English Courts.”

(See also R v Kron (1995) 78 A Crim R 474 and note Lipohar supra at [78].)

41 With respect to the offence under consideration in Ellis the existence of a “false pretence” did have to be proven. However, as noted above, the offence presently under consideration, is complete on proof of custody and suspicion. The Crown does not have to prove that the goods were, as a matter of fact, “stolen or unlawfully obtained”.

42 In Ellis Wills J went on to distinguish, in a manner adopted by Chamberlain J in Thwaites v O’Sullivan, the very line of authority relied upon in the present case by way of analogy, when he said at 238 – 239:

“It was further urged for the prisoner that it required a statute to make the receipt of stolen property, with the guilty knowledge that it had been stolen, an offence triable in England where the property had been stolen abroad and the receiving had taken place in England. But the cases have no real analogy. The receiver, although guilty by statute of a substantive felony, is in all essential respects an accessory. There can be no receiver unless there has been a thief; if the larceny, which is the starting pointing of the crime, be not established, there is no offence in the receiver. It is, therefore, essential to show a crime in someone else before you can make any case against the receiver. A crime in English jurisprudence means a crime by English law, and cognisable by an English Court; and if there is no such crime established the receiver could not be convicted. This seems to me to be the true ground upon which it was rightly decided in R v Debruiel , that a receiver in England could not be convicted where the property had been stolen in Guernsey … In the case now under consideration no question arises as to the commission of any crime in Scotland, nor as to the application of Scottish law to any part of the case.”

43 As his Lordship made clear, the origins of the crime of receiving stolen goods is to be found in the doctrine of accessory after the fact, although the offence eventually developed at common law as an independent offence. (See Sir James Fitzjames Stephen A History of the Criminal Law of England Macmillan, London 1883 Volume ii pp 237 – 238; see also W Blake Odgers KC and Anor The Common Law of England Volume i Sweet & Maxwell, London 1961 p 37). The principle applicable to accessorial liability, as stated by Sir James Fitzjames Stephen was:

“The essential part of the doctrine of the law of principal and accessory is, that from the earliest time the doctrine prevailed that ‘no accessory can be convicted or suffer any punishment where the principal is not attainted or hath the benefit of his clergy’”[ibid at 232 see also at 235].

44 This principle was applied in the case of the receiver of stolen goods, even after that offence developed as a separate offence. No such principle applies in the context of the statutory offence presently under consideration. There was never an accessorial element in this statutory offence. The analogy is superficially attractive but false.

Conclusion

45 The question in the stated case should be answered “No”.

46 BARR J: I agree with the Chief Justice.

47 HOEBEN J: I agree with the Chief Justice.

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Last Modified: 10/20/2004