Thai v Director of Public Prosecutions (No 2) - [2009] SASC 99

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
THAI v DIRECTOR OF PUBLIC PROSECUTIONS (No 2)
[2009] SASC 99
Judgment of The Honourable Justice Gray
7 April 2009
MAGISTRATES - JURISDICTION AND PROCEDURE GENERALLY - JURISDICTION, POWERS AND DUTIES - LIMITATIONS AS TO LOCALITY
MAGISTRATES - JURISDICTION AND PROCEDURE GENERALLY - PROCEDURE - ORDERS AND CONVICTIONS
Appeal against conviction imposed by Magistrate - defendant and appellant convicted of 15 counts of engaging in conduct of falsifying document intending to deceive a bank to benefit himself or another party, contrary to section 140(4) of the Criminal Law Consolidation Act 1935 (SA) - whether Magistrate erred in concluding that Court had jurisdiction to convict - whether necessary territorial nexus existed between South Australia and the offences charged - whether legislation beyond extra-territorial competence of Parliament of South Australia.
Held: appeal dismissed - Court had jurisdiction - necessary territorial nexus established - conduct of offences charged would cause detriment or harm in South Australia - jurisdiction also established at common law.
Criminal Law Consolidation Act 1935 (SA) s E, s 5G, s 5H and s 140; Magistrates Court Act 1991 (SA) s 3(1) and s 42(1a); Australian Constitution (Cth) s 106 and s 107; Judiciary Act 1903 (Cth) s 78B; Acts Interpretation Act 1915 (SA) s 22(1), referred to.
Holder v Lewis [2003] SASC 397; Police v Turbitt (2005) 92 SASR 480; Police v G,PA (2007) 97 SASR 6; Boath v Wyvill (1989) 85 ALR 621; Minister for Employment and Workplace Relations v Gribbles Radiology Pty Ltd (2005) 222 CLR 194; Palgo Holdings Pty Ltd v Gowans (2005) 221 CLR 249; Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355; K&S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd (1985) 157 CLR 309; Wik Peoples v Queensland (1996) 187 CLR 1; K-Generation v Liquor Licensing Commission [2009] HCA 4; Lipohar v R (1999) 200 CLR 485; Broken Hill South Ltd v Commissioner of Taxation (1937) 56 CLR 337; Union Steamship Co of Australia Pty Ltd v King (1988) 166 CLR 1, considered.

THAI v DIRECTOR OF PUBLIC PROSECUTIONS (No 2)
[2009] SASC 99
Magistrates Appeal
GRAY J.

This is an appeal against conviction.
The defendant and appellant, Kim Tuan Thai, was charged on Information with 21 counts of engaging in the conduct of falsifying a document intending to deceive a bank and by that means to benefit himself or another party, contrary to section 140(4) of the Criminal Law Consolidation Act 1935 (SA). The 21 counts were allegedly committed at Adelaide or other places over a period between 5 July 2003 and 1 July 2004.
The defendant pleaded not guilty and his trial, a joint trial on all counts, was heard before a Magistrate. At the conclusion of the prosecution case, a submission was made of no case to answer. The Magistrate rejected the submission, save in respect of count two, which was dismissed.
The defendant sought to appeal from the finding of the Magistrate that there was a case to answer on the remaining 20 counts. That appeal was dismissed without consideration of the substantive merits. The Court took the view that the ruling under review was interlocutory and that permission to appeal should not be granted.[1]
[1] Thai v Police [2007] SASC 235.
The proceedings continued before the Magistrate. No evidence was called by the defendant. The Magistrate convicted the defendant on 15 counts being counts 3-9, 11 and 13-19. The Magistrate dismissed the remaining five counts being counts 1, 10, 12, 20 and 21.
Preliminary Matters
No case to Answer
On the hearing of the appeal the defendant sought to re-agitate his complaint with respect to the finding of a case to answer. The Solicitor-General appearing for the Crown contended that this ground should be rejected, as the decision sought to be reviewed remained interlocutory. It was said that the appeal in this respect was not competent.
Attention was drawn to section 42(1a) of the Magistrates Court Act 1991 (SA) which provides:
An appeal does not, however, lie against an interlocutory judgment unless—
(a)the judgment stays the proceedings; or
(b)the judgment destroys or substantially weakens the basis of the prosecution case and, if correct, is likely to lead to abandonment of the prosecution; or
(c)the Court or the appellate court is satisfied that there are special reasons why it would be in the interests of the administration of justice to have the appeal determined before commencement or completion of the trial and grants its permission for an appeal.
A judgment is defined by section 3(1) of the Magistrates Court Act to mean “a judgment or order or decision and includes an interlocutory judgment or order”.
The decision of the Magistrate that there was a case to answer was an interlocutory decision.[2]
[2] Holder v Lewis [2003] SASC 397; Police v Turbitt (2005) 92 SASR 480; Police v G,PA (2007) 97 SASR 6.
The only avenue to appeal is provided by section 42(1a) of the Magistrates Court Act. In the present case sections 42(1a)(a)-(b) do not apply. Section 42(1a)(c) will only provide an avenue for appeal, if the appellate court is satisfied that there are special reasons why it would be in the interests of the administration of justice to have the appeal determined before the commencement or completion of the trial, and grants its permission for an appeal. It is self-evident that this subsection does not apply. The arguments raised on the submission of no case to answer are the same as the arguments being advanced against the recording of the convictions and in these circumstances there is no utility in discussing the no case ruling.
The Solicitor-General further contended that the ruling in any event related to a question that should have been left until the conclusion of the trial. Attention on this occasion was drawn to the terms of section 5H of the Criminal Law Consolidation Act which provides:
(1)In proceedings for an offence against a law of the State, the existence of the necessary territorial nexus will be presumed and the presumption is conclusive unless rebutted under subsection (2).
(2)If a person charged with an offence disputes the existence of the necessary territorial nexus, the court will proceed with the trial of the offence in the usual way and if at the conclusion of the trial, the court is satisfied, on the balance of probabilities, that the necessary territorial nexus does not exist, it must, subject to subsection (3), make a finding to that effect and the charge will be dismissed.
(3)If the court would, disregarding territorial considerations, find the person not guilty of the offence, the court must—
(a) if the finding is based on the defendant's mental impairment—record a finding of not guilty on the ground of mental impairment; and
(b) in any other case—record a finding of not guilty.
(4)The issue of whether the necessary territorial nexus exists must, if raised before the trial, be reserved for consideration at the trial.
(5)A power or authority exercisable on reasonable suspicion that an offence has been committed may be exercised in the State if the person in whom the power or authority is vested suspects on reasonable grounds that the elements necessary to constitute the offence exist (whether or not that person suspects or has any ground to suspect that the necessary territorial nexus exists).
At the defendant’s trial a question concerning the jurisdiction of the court arose. In this circumstance section 5H(1) directs that the existence of a territorial nexus is presumed and is conclusive unless rebutted. Where the territorial nexus is disputed the trial is to proceed in the usual way. At the conclusion of the trial the court can dismiss the charges if satisfied on the balance of probabilities that the necessary territorial nexus does not exist. It follows in the present proceeding that the question of a territorial nexus should have been left until the conclusion of the trial and should not have been the subject of a no case submission. Any appeal against a jurisdictional decision should only lie against such a decision made at the proper time – at the conclusion of the trial.
Legislative Powers of the State
On the hearing of this appeal, the Solicitor-General raised a preliminary matter that required determination. It was pointed out that the defendant proposed to challenge the legislative competence of the State Parliament of South Australia to enact section 5H and 5G of the Criminal Law Consolidation Act. Attention was drawn to sections 106 and 107 of the Australian Constitution and to the discussion of those provisions in Boath v Wyvill[3] where Sheppard, Beaumont and Gummow JJ observed:
Section 2 of the Constitution Act 1889 (WA) empowers the Parliament of Western Australia “to make laws for the peace, order and good Government of the Colony of Western Australia and its Dependencies”. This provision is still in force: Western Australia v Wilsmore (1982) 40 ALR 213; 149 CLR 79 at 94 per Wilson J.
Section 106 of the Australian Constitution relevantly provides that the Constitution of the State of Western Australia shall, subject to the Constitution, continue as at the establishment of a Commonwealth or until altered in accordance with the Constitution of Western Australia. Section 107 of the Australian Constitution provides that every power of the Parliament of the former Colony of Western Australia shall, unless it is by the Constitution exclusively vested in the Parliament of the Commonwealth or withdrawn from the Parliament of a State, continue as at the establishment of the Commonwealth.
The Constitutions of the former colonies were not the same after federation as before it; they were continued “subject to this Constitution” and thus subjected to territorial limitations on State legislative powers inter se which are expressed or implied in the Australian Constitution: New South Wales v Commonwealth (1975) 135 CLR 337 at 372; 8 ALR 1; Union Steamship Co of Australia Pty Ltd v King (1988) 82 ALR 43; 62 ALJR 645 at 650.
Questions as to the legislative competence of State parliaments thus, within the meaning of s 78B of the Judicial Act 1903 (Cth) (the Judiciary Act), involve a matter involving the interpretation of ss 106 and 107 of the Constitution, even if that matter may not, in a particular case, arise under those provisions. Accordingly, when these proceedings first came before the Full Court on 21 December 1988, the court (without any opposition by the parties) gave directions for the serving of the necessary notices upon Attorneys-General, pursuant to s 78B of the Judiciary Act. ...
[3] Boath v Wyvill (1989) 85 ALR 621 at 634-635.
Counsel for the defendant submitted that the observations in Boath were obiter dicta and should not be followed. However, no substantive argument was advanced as to why these observations should not be followed.
In my view the observations in Boath have direct application. The defendant sought to question the legislative competence of the South Australian State Parliament. This question, within the meaning of section 78B of the Judiciary Act 1903 (Cth) raised a matter involving the interpretation of sections 106 and 107 of the Constitution. Section 78B required notices to be forwarded to the several Attorneys. I directed that the defendant serve section 78B notices, and adjourned the hearing to allow the several Attorneys to consider whether they wished to make submissions on the challenge to the extra territorial powers of the South Australian Parliament.
The Magistrates Court Proceedings
The prosecution case with respect to the counts on which convictions were recorded, was that the defendant had written false details of payees and amounts on 15 cheque forms. The payees whose names appeared on the cheques had no entitlement to any payment from the drawers named on the cheques. It was claimed that prior to July 2003 persons unknown to the prosecution had obtained particulars of cheque accounts of corporate entities and individuals whose names appeared as drawers on the cheques falsified by the defendant. Evidence revealed that the cheques did not relate to the accounts of the drawers appearing on the cheques. The cheques had been issued by banks to persons or entities unrelated to the apparent drawers. The 15 original cheques had come from cheque books on accounts controlled by the defendant. Handwriting evidence showed in respect of these cheques, conclusively in some cases, and by inference in others, that the names of the payees and the amounts payable were in the handwriting of the defendant. The prosecution was unable to say who had altered the names of the drawers on the cheques.
It was the prosecution case that the defendant at all material times was resident in Victoria. However, he made frequent visits to South Australia. A number of those visits occurred at dates proximate to the dates on which a number of the cheques were presented. The prosecution tendered no evidence to suggest that the defendant himself presented any cheque. It was said that the defendant was part of a well-organised group of offenders who together implemented the fraudulent scheme. It was the prosecution case that the defendant falsified the cheques intending to deceive the banks that they were genuine cheques and intending thereby to benefit himself or another person.
The prosecution relied on sections 5G and 5H of the Criminal Law Consolidation Act to support the existence of the necessary territorial nexus to South Australia, notwithstanding that the elements of the offences probably occurred outside of South Australia. The Solicitor-General argued that pursuant to these sections, the presentation of the cheques in South Australia created the requisite harm or threat of harm, and as a consequence the necessary territorial nexus to South Australia was established.
The defendant asserted that the prosecution could not prove the existence of the necessary territorial nexus to South Australia because no harm had resulted or could result from the defendant’s actions alone. On the defence case the further act of the presentation of the cheques was necessary before any harm could result. It was pointed out that presentation of a falsified cheque is a separate and distinct offence. The defendant claimed that there was no evidence that his conduct as proved caused or posed a threat of harm in South Australia.
The prosecution, with the consent of the defendant, tendered as part of its case statements of witnesses and financial and business records. A number of statements were from employees of banks to which the falsified cheques were presented and banks at which the defendant held an account either in his own name or in the business name associated with the defendant. Other statements were made by persons or officers of companies whose names appeared as drawers on the falsified cheques. Banking records relating to the transactions involving the falsified cheques were presented.
Other bank records were tendered including records of the defendant’s cheque accounts and records of credit card transactions by the defendant during the period of the alleged offending. These records disclosed that the defendant had a high turnover at the Adelaide Casino during the period of the alleged offending and a turnover that appeared to be disproportionately high for a person of the defendant’s apparent means. The defendant did not call any evidence.
The parties agreed the following facts which were recorded by the Magistrate as follows:
.The defendant obtained cheque books from three banks, from the Commonwealth Bank of Australia and the ANZ Bank in the name of Jeans Corp and from the Bendigo Bank in his own name.
. The banks were in Melbourne Victoria.
.The banks sent the cheque books to the defendant’s Victorian address at Springvale.
. The defendant lived in Victoria during the period of alleged offending;
.The cheques in all counts had the defendant’s handwriting on them and were for drawers other than the defendant or his business name. The handwriting was either for the amounts on the cheques or for the payee or both.
.The first cheque book was issued to the defendant on 28 March 2003.
.The last cheque in the 20 counts was presented on 22 October 2004.
.All cheques were presented to banks in South Australia except for the cheques in count 11.
.The cheques had been altered by the removal of either the name of Jeans Corp or the name K T Thai which had appeared in print form. The names of various companies or individuals had been printed on the cheques instead.
.The cheques had been altered by the removal of the digital cheque numbers at the bottom and by the printing of new numbers consistent with the series of numbers for legitimate cheques of the companies or individuals whose names appeared on the falsified cheques.
.Each company or individual who was either defrauded or the subject of an attempted fraud had had previous dealings with persons implicated in presenting the cheques. However, there was no evidence linking the defendant with these persons except in the case of count 11 where the cheque was made out to Kansai Constructions whose registered address was the address of the defendant in Victoria.
.In counts 1, 2 to 12, 16, 18 and 19 the companies or individuals names as drawers on the cheques were companies registered in South Australia. Companies and individuals named as drawers in counts 13, 14, 15, 17, 20 and 21 were either registered or resident in Victoria.
.The defendant visited South Australia from time to time between July 2003 and October 2004.
.The banks concerned had reimbursed the defrauded companies or individuals.
The parties further agree as follows:
.That there is no evidence that the defendant carried out the removal of the names and the printing of new names of drawers.
.There is no evidence linking [the defendant] to the equipment used.
.There is no evidence linking the defendant with any of the persons implicated in presenting the cheques except in the case of count 11. There is evidence that other persons were responsible for recruiting persons with bank accounts to deposit monies into their accounts and clear the cheque. There is no evidence that the defendant had recruited any such persons. The descriptions given by the depositors do not match the defendant’s appearance. The prosecution could not say how the cheques presented in South Australia arrived in [that] State.
The Magistrate relied on section 5G(2)(b) or alternatively section 5G(2)(d) in finding that the necessary territorial nexus existed with respect to each of the counts on which he recorded a conviction.
Counts 1, 10, 12, and 21 were found not proven beyond reasonable doubt as the Magistrate considered the weight of the circumstantial evidence insufficient to support the conclusion that the defendant acted dishonestly in writing on those cheques. The Magistrate found no evidence that the defendant had control over the accounts of the original cheque account holders. The Magistrate found the only connection was the defendant’s handwriting on the cheques.
The Magistrate found the elements of the remaining 16 counts proven beyond reasonable doubt. He then turned to the issue of jurisdiction. As earlier observed, this was a matter properly left for “the conclusion of the trial” once all evidence was heard.

The Magistrate found a territorial nexus existed in relation to counts 3 to 9 and 16, 18 and 19 pursuant to both sections 5G(2)(b) and 5G(2)(d). Section 5G(2)(b) was found to apply as there was at least a threat of harm in South Australia due to the drawers on the cheque accounts or the banks being South Australian entities. Section 5G(2)(d) was also found to apply as the falsification was a preparatory act to another later offence, the presentation of the cheques, which was at banks in South Australia. This established a territorial nexus for the later offence.
The Magistrate found a territorial nexus existed in relation to count 11 pursuant to section 5G(2)(b). On that count there was at least a threat of harm in South Australia due to the victim, the drawer on the cheque, being a South Australian entity.
The Magistrate found a territorial nexus existed in relation to counts 13,14,15,and 17 pursuant to section 5G(2)(d). This section was found to apply as the falsification was a preparatory act to another later offence, the presentation of the cheques, which was at banks in South Australia.
The Magistrate found no territorial nexus existed in relation to count 20 pursuant to either section 5G(2)(b) or 5G(2)(d) as neither the victim nor the bank of deposit were connected with South Australia.
The Statutory Scheme
This appeal raises questions relating to the operation of provisions of the Criminal Law Consolidation Act. Section 5G outlines the circumstances in which an act is an offence against the laws of South Australia. It is convenient to set out this section in its entirety:
(1)     An offence against a law of this State is committed if—
(a)     all elements necessary to constitute the offence (disregarding territorial considerations) exist; and
(b)     the necessary territorial nexus exists.
(2)     The necessary territorial nexus exists if—
(a)     a relevant act occurred wholly or partly in this State; or
(b)     it is not possible to establish whether any of the relevant acts giving rise to the alleged offence occurred within or outside this State but the alleged offence caused harm or a threat of harm in this State; or
(c)     although no relevant act occurred in this State—
(i)the alleged offence caused harm or a threat of harm in this State and the relevant acts that gave rise to the alleged offence also gave rise to an offence against the law of a jurisdiction in which the relevant acts, or at least one of them, occurred; or
(ii)the alleged offence caused harm or a threat of harm in this State and the harm, or the threat, is sufficiently serious to justify the imposition of a criminal penalty under the law of this State; or
(iii)the relevant acts that gave rise to the alleged offence also gave rise to an offence against the law of a jurisdiction in which the relevant acts, or at least one of them, occurred and the alleged offender was in this State when the relevant acts, or at least one of them, occurred; or
(d)     the alleged offence is a conspiracy to commit, an attempt to commit, or in some other way preparatory to the commission of another offence for which the necessary territorial nexus would exist under one or more of the above paragraphs if it (the other offence) were committed as contemplated.
Section 5E further outlines what conduct constitutes a “relevant act” for the purpose of the provisions:
"relevant act" in relation to an offence means—
(a)     an act or omission that is, or causes or contributes to, an element of the offence; or
(b)an act or omission that is, or causes or contributes to, something that would, assuming the necessary territorial nexus existed, be an element of the offence; or
(c)a state of affairs that is an element of the offence, or would, assuming the necessary territorial nexus existed, be an element of the offence.
(2)The question whether the necessary territorial nexus exists in relation to an alleged offence is a question of fact to be determined, where a court sits with a jury, by the jury.
Section 5H indicates that the existence of the territorial nexus will be presumed:
(1)In proceedings for an offence against a law of the State, the existence of the necessary territorial nexus will be presumed and the presumption is conclusive unless rebutted under subsection (2).
(2)If a person charged with an offence disputes the existence of the necessary territorial nexus, the court will proceed with the trial of the offence in the usual way and if at the conclusion of the trial, the court is satisfied, on the balance of probabilities, that the necessary territorial nexus does not exist, it must, subject to subsection (3), make a finding to that effect and the charge will be dismissed.
(3)If the court would, disregarding territorial considerations, find the person not guilty of the offence, the court must—
(a)   if the finding is based on the defendant's mental impairment—record a finding of not guilty on the ground of mental impairment; and
(b)    in any other case—record a finding of not guilty.
(4)The issue of whether the necessary territorial nexus exists must, if raised before the trial, be reserved for consideration at the trial.
Relevant Principles of Construction
Before discussing the interpretation of these provisions it is appropriate to identify the relevant principles of statutory construction.
The adoption of a purposive construction is the usual or general approach to be taken to issues of statutory construction.[4] A purposive approach to statutory construction is also prescribed by section 22(1) of the Acts Interpretation Act 1915 (SA):
[W]here a provision of an Act is reasonably open to more than one construction, a construction that would promote the purpose or object of the Act (whether or not that purpose or object is expressly stated in the Act) must be preferred to a construction that would not promote that purpose or object.
[4] Minister for Employment and Workplace Relations v Gribbles Radiology Pty Ltd (2005) 222 CLR 194 at [88] (Kirby J).
This principle was addressed by Kirby J In Palgo Holdings Pty Ltd v Gowans[5]:
... a purposive and not a literal approach[6] is the method of statutory construction that now prevails:[7]
“A search for the grammatical meaning still constitutes the starting point. But if the grammatical meaning of a provision does not give effect to the purpose of the legislation, the grammatical meaning cannot prevail. It must give way to the construction which will promote the purpose or object of the Act.”
Courts are no longer satisfied with a literal or grammatical meaning of words that does not conform to the presumed legislative intention, including the policy that can be discerned from the law in question.[8] As Lord Diplock explained, in an extra-judicial comment,[9] “if ... the Courts can identify the target of Parliamentary legislation their proper function is to see that it is hit: not merely to record that it has been missed”.[10]
[5]    Palgo Holdings Pty Ltd v Gowans (2005) 221 CLR 249 at [35]-[36].
[6]    Fothergill v Monarch Airlines Ltd [1981] AC 251 at 272-273, 275, 280, 290.
[7]    Kingston v Keprose Pty Ltd (1987) 11 NSWLR 404 at 423 (McHugh JA) approved in Bropho v Western Australia (1990) 171 CLR 1 at 20.
[8]    Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297 at 321.
[9]    Referring to Inland Revenue Commissioners v Ayrshire Employers Mutual Insurance Association Ltd [1946] 1 All ER 637 at 641.
[10] Lord Diplock, ‘The Courts as Legislators’ in Brian Harvey (ed), The Lawyer and Justice (1978) 263, 274; cited in Kingston (1987) 11 NSWLR 404 at 424.
All words in a statute must prima facie be given some meaning and effect. In Project Blue Sky v Australian Broadcasting Authority, McHugh, Gummow, Kirby and Hayne JJ observed:[11]
[A] court construing a statutory provision must strive to give meaning to every word of the provision.[12] In The Commonwealth v Baume[13] Griffith CJ cited R v Berchet[14] to support the proposition that it was “a known rule in the interpretation of Statutes that such a sense is to be made upon the whole as that no clause, sentence, or word shall prove superfluous, void, or insignificant, if by any other construction they may all be made useful and pertinent”.
[11] Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355 at [71].
[12] The Commonwealth v Baume (1905) 2 CLR 405 at 414 (Griffith CJ) at 419 (O'Connor J); Chu Kheng Lim v Minister for Immigration Local Government & Ethnic Affairs (1992) 176 CLR 1 at 12-13 (Mason CJ).
[13] Commonwealth v Baume (1905) 2 CLR 405 at 414.
[14] R v Berchet (1688) 1 Show KB 106 [89 ER 480].
The importance of context as an aid to statutory construction was noted by Kirby J in Palgo Holdings v Gowans:[15]
... the meaning of words in legislation is not derived by taking a word in isolation and construing it as if it existed in a vacuum. In the law, context is critical.[16] In a statute, a word (if undefined) normally takes its meaning from the surrounding text. Isolating a word … and affording it meaning torn from its context is a discredited approach to interpretation, given the way that language is ordinarily used and understood by human beings.[17]
The context of a statute is not confined to its own words and their deployment within it, but also includes the legislative history, the statutory context furnished by legislation in pari materia, and the existing state of the law in which the statute was enacted, which embraces the then understanding of equity and the common law.[18]
[15] Palgo Holdings v Gowans (2005) 221 CLR 249 at [37].
[16] R (Daly) v Home Secretary [2001] 2 AC 532 at 548 [28] (Lord Steyn).
[17] Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389 at 396-397, citing R v Brown [1996] AC 543 at 561.
[18] K&S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd (1985) 157 CLR 309 at 315 (Mason J); Wik Peoples v Queensland (1996) 187 CLR 1 at 171 (Gummow J).
Extrinsic Materials
The use of extrinsic materials was discussed by French CJ in K-Generation v Liquor Licensing Commission:[19]
The question whether extrinsic materials may be considered in South Australia and in what circumstances they may be considered as an aid to statutory interpretation is to be answered by the common law. The answer at common law is that such materials can be considered to determine, inter alia, the mischief to which an Act is directed. This Court has referred to Hansard in aid of its interpretation of South Australian statutes.[20] In 1996 the Full Court of the Supreme Court of South Australia referred to a minister's Second Reading Speech in order to identify the purpose of a statutory provision.[21]
At common law it is not necessary before entering upon a consideration of such material to surmount a threshold of ambiguity, obscurity or possible absurdity. Statutory interpretation requires the court to have regard to the context in which the words to be interpreted arise and also their statutory purpose. Context includes "the existing state of the law and the mischief which, by legitimate means … one may discern the statute was intended to remedy".[22]
[19] K-Generation v Liquor Licensing Commission [2009] HCA 4 at [51] - [53].
[20] Gerhardy v Brown (1985) 159 CLR 70 at 104 (Mason J), 111 (Wilson J); Hoare v R (1989) 167 CLR 348 at 360–1.
[21] Owen v South Australia (1996) 66 SASR 251 at 256–7 (Cox J), 257 (Prior J); see also Nemer v Holloway (2003) 87 SASR 147 at 166–7 (Vanstone J); and generally, in relation to South Australia, Pearce, D C, and Geddes, R S, Statutory Interpretation in Australia (6th ed, 2006) at 70–1.
[22] CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408.
In accordance with these observations it is instructive to consider the Parliamentary intent which informed the enactment of the relevant provisions of the Criminal Law Consolidation Act, before turning to the statutory context in which the provisions are to be construed.
The relevant sections were introduced by the Criminal Law Consolidation (Territorial Application of the Criminal Law) Amendment Bill 2002. In the second reading speech of this Bill, the Attorney-General addressed the operation of the precursor section 5C. Although this section was initially introduced to combat the perceived deficiencies of the common law in addressing trans-territorial criminal behaviour, this aim was not achieved. The second reading speech outlined the continuing deficiencies of the precursor section 5C at length and included the following:
In some conspiracy cases, the courts have preferred to follow common law principles on jurisdiction, and have ignored this more general provision. In the case of Isaac, in 1996, the defendants conspired in NSW to commit a robbery in the ACT and were prosecuted in NSW. The facts fell squarely within the formulation proposed in section 3F (the NSW equivalent of section 5C). The agreements which constitutes the entire conspiracy took place wholly within NSW (the prosecuting State). There was a territorial nexus between not just one but all of the elements of the offence and the prosecuting forum in that the parties made all arrangements for the robbery while in NSW. Under section 3C, the fact that the object of the conspiracy (the robbery) was to occur in another State should have been irrelevant. However, the court refused to allow a NSW prosecution, following instead a line of British cases on conspiracy, under which, simply stated, State A has jurisdiction over a charge of conspiracy to commit a crime outside State A only if State A would have jurisdiction over the crime to be committed. It was said, in Isaac, that the crime was an ACT crime over which NSW had no jurisdiction. The result of this is that the only possible place which could try the offence might have been the ACT in which no relevant act was committed at all.
…
In another conspiracy case, section 5C was shown to be entirely deficient. In Lipohar, in 2000, the High Court found that section 5C did not extend jurisdiction to South Australia but, by a variety of means, found that South Australia had jurisdiction at common law. Lipohar involved a conspiracy outside South Australia, by persons who did not enter South Australia, to defraud the State Bank of millions of dollars in relation to property in Victoria (the SGIC building in Collins Street). The only physical connection with South Australia (as it happened) was the sending of a facsimile consisting of a false bank guarantee from Victoria to the victim’s solicitors in South Australia. While the only State with any interest in prosecuting was South Australia, section 5C would not allow this, because there was no element of the offence with which a territorial nexus with South Australia could be demonstrated. (the sending of the fax was not an element of the offence, just a minor part of it. The territorial location of the victim (in this case, in South Australia) is not an ‘element’ of the common law offence of conspiracy to defraud.).
The second reading speech outlined the measures sought to be taken to rectify the deficiencies of the previous legislative scheme, and outlined the intended effect of the new provisions:
The decision in Lipohar prompted the Model Criminal Code Officers Committee of the Standing Committee of Attorneys-General (MCCOC) to review judicial decisions on section 5C and its counterparts in other States and Territories. In this report in January 2001, MCCOC endorsed a new model criminal jurisdiction provision, and recommended its adoption by all States and Territories. MCCOC pointed out that section 5C may also be ineffective in some non-conspiracy cases, citing the following example. Suppose NSW allows pyramid selling and South Australia does not. Hypothetically … this is because NSW considerspyramid [sic] selling a valid expression of free market forces with which the State should not interfere while South Australia considers such schemes to be frauds on the public and punishable by the State. If a person in NSW sets up an internet pyramid selling scheme aimed at South Australians, section 5C would not allow prosecution by South Australian authorities if none of the elements of the offence could be shown to have occurred in South Australia.
This bill, and the model provision recommended by MCCOC in Part 2.7 of the Model Criminal Code on which the bill is based, corrects this and other defects in section 5C in a number ways.
First, the bill makes it clear that the provision extends the territorial reach of State offences in a substantive sense.
Secondly, the commission of an offence is defined without reference to where it occurs, but rather by reference to the act, omission or state of affairs constituting the offence or giving rise to the offence (the relevant act).
Thirdly, the bill redefines the geographical nexus that must exist before South Australia may claim jurisdiction
The effect is that South Australia has jurisdiction in the following kinds of offences:
§ It may try offences where the relevant act giving rise to the alleged offence occurred wholly or party in South Australia.
§ It may try an offence where it cannot be ascertained whether the relevant act giving rise to the alleged offence took place within or outside South Australia, so long as it can be demonstrated that the alleged offence caused harm or a threat of harm in South Australia.
§ If the relevant act took place wholly within another State and was lawful in that State, jurisdiction may only be asserted by South Australia if the alleged offence caused harm or a threat of harm sufficiently serious to justify the imposition of a criminal penalty under South Australian law.
These excerpts indicate that the provisions were enacted as a consequence of the deficiencies of the previous legislative scheme highlighted by the decision in Lipohar[23]. The purpose of the provisions was to address those deficiencies and extend the territorial reach of State legislation.
[23] Lipohar v R (1999) 200 CLR 485.
It is instructive to note that section 5 was initially enacted on recommendation of the Standing Committee of Attorneys-General who referred the matter to a Special Committee of Solicitors-General. These bodies recommended that all States enact a statutory criminal jurisdiction provision in addition to the common law. These provisions were designed to operate alongside the common law rather than replace it. Equally, the provisions that repealed the precursor section 5 do not operate to displace the common law.
The Appeal
The Parties Submissions
The defendant’s submission on appeal was that the Magistrate erred in concluding that the court had jurisdiction, and consequently, erred in finding the defendant guilty of the charges. The basis of this submission was that there was no jurisdiction to hear the matter in South Australia, as the acts of “falsifying a document” were not committed within this State and there was not a sufficient “territorial nexus” to prosecute in this State.
The defendant submitted that an offence of falsifying a cheque contrary to section 140(3)(b) of the Criminal Law Consolidation Act occurred at a time when the document has been relevantly altered. The defendant did not challenge whether the elements of section 140 of the Criminal Law Consolidation Act were made out, but claimed the offences were not proved beyond reasonable doubt because of a lack of a territorial nexus.
It was emphasised that the defendant had not been charged with producing a false document contrary to section 140(3)(d), but rather the offence of falsifying cheques contrary to section 140(3)(b). On this basis, it was argued that the prosecution had not proved that any act of the defendant in falsifying a document - the relevant offending conduct - had been committed within the State of South Australia. It was said in these circumstances sections 5G(2)(b) or (c) provided no assistance to the prosecution in establishing the requisite territorial nexus.

The defendant submitted that there was no evidence that the defendant had any relevant involvement in any offence within South Australia. It was said that his alleged conduct of falsifying a document did not and could not cause harm or a threat of harm within South Australia because the conduct of falsification did not of itself cause harm or threaten to cause harm. It was said that as a result, the court had no jurisdiction, as the requisite territorial nexus between the offending conduct and the State had not been established. Reference was made to the High Court decision in Lipohar[24] as establishing that the Magistrates Court only had jurisdiction if the territorial nexus existed. Without such a nexus the Court did not have jurisdiction over the alleged offending conducted committed outside the State.
[24] Lipohar v R (1999) 200 CLR 485.
The Solicitor-General accepted that there was no clear evidence as to where the falsification of documents took place. However, the Solicitor-General submitted that in these circumstances it was necessary to consider whether the alleged offence caused harm or a threat of harm in South Australia, in order to ascertain the existence of the requisite territorial nexus.
According to the Solicitor-General, this loss or harm would be incurred by the South Australia entities on whom the cheques were payable, or the bank branches in South Australia which accepted the cheques. This harm would be caused if and when a falsified cheque was successfully negotiated in South Australia. Even if a falsified cheque was not successfully negotiated, a threat of harm would still have arisen. It was said that this harm or threat of harm provided the necessary territorial nexus between the act of falsification of the cheques and the State of South Australia.
The Solicitor-General further submitted that the necessary territorial nexus could be established pursuant to paragraph 5G(2)(d) in relation to a number of the counts. As outlined earlier, this section provides that the necessary territorial nexus will exist if the alleged offence is a conspiracy to commit, an attempt to commit, or in some other way preparatory to the commission of another offence for which that necessary territorial nexus would exist. It was said that the offence of “falsification” is preparatory to the offence allegedly committed by the parties who presented the cheques, that is, the presentation or production of a false document in contravention of section 140(3)(d) of the Criminal Law Consolidation Act. According to the submissions of the Solicitor-General, in the case of the “producers” of the cheques at least one “relevant act” occurred in South Australia, and consequently the necessary territorial nexus could be established under section 5G(2)(d).
The Solicitor-General submitted that the amendments to the legislation post Lipohar[25] sought to broaden the reach of territorial nexus, not to narrow it. On this basis, it was said that the requisite territorial nexus existed. It was further contended that the common law position as expounded in Lipohar[26] provided an alternative basis on which to found jurisdiction.
[25] Lipohar v R (1999) 200 CLR 485.
[26] Lipohar v R (1999) 200 CLR 485.
Territorial Nexus
The act or conduct of an offender the subject of section 140 can take various forms as described by subsection 3. The type of conduct alleged to have been engaged in by the defendant in the present matter was the “falsifying” of cheques. In the present proceedings there was no evidence as to the location of the defendant when he allegedly falsified the cheques. As with many instances of falsification or forgery it will not be ascertainable where that act was done.
Section 5E(1)(a) of the Criminal Law Consolidation Act sheds light on the interpretation of section 5G. The terms of that section provide:
"relevant act" in relation to an offence means—
(a)   an act or omission that is, or causes or contributes to, an element of the offence; or
(b)   an act or omission that is, or causes or contributes to, something that would, assuming the necessary territorial nexus existed, be an element of the offence; or
(c)   a state of affairs that is an element of the offence, or would, assuming the necessary territorial nexus existed, be an element of the offence.
The relevant act for the purposes of section 5E(1)(a) is likely to be but is not limited to the act of falsification. Falsification is an act. A relevant act can also include a state of affairs that is an element of an offence. The Magistrate did not need to consider the latter meaning based on his finding.[27]By considering the relevant act it can then be considered whether jurisdiction is established pursuant to section 5G of the Criminal Law Consolidation Act.
[27] Criminal Law Consolidation Act 1935 (SA) s 5E(1).
Jurisdiction to deal with an offence against State law is established pursuant to subsection 5G(1) if:
(a)all elements necessary to constitute the offence (disregarding territorial considerations exist); and
(b) the necessary territorial nexus exists.
On appeal, the defendant did not challenge the Magistrate’s finding that all elements of section 140 of the Criminal Law Consolidation Act existed. The contention concerned the question of whether the “necessary territorial nexus” existed. As earlier observed, the defendant claimed that the offences were not proved beyond reasonable doubt because of a lack of a territorial nexus.
Subsection 5G(2) defines the necessary territorial nexus. The prosecution was not able to establish where the relevant act - the falsification - occurred. Where the location of the relevant act cannot be established, section 5G(2)(b) provides a test to determine the nexus. This section provides that the relevant nexus exists where:
…it is not possible to establish whether any of the relevant acts giving rise to the alleged offence occurred within or outside this state but the alleged offence caused harm or a threat of harm in this State…
As it is not possible to determine in the present proceedings where the falsification occurred it must then be considered whether the alleged offence caused harm or a threat of harm in South Australia.
In the present proceedings the harm resulting from the falsifying of the cheques was the erroneous release of funds by banks on drawer’s account upon presentation of cheques. The harm would be suffered by the drawer or the drawer’s bank. If the cheque was successfully negotiated the harm would be caused. If the cheque was not successfully negotiated there would have been a threat of harm.
Assessment of Magistrate’s finding
The Magistrate was correct to find that the territorial nexus had been established to exist with respect to counts 3 to 9, 11, 16, 18, and 19 where there was a risk of harm to the banker or drawer resident in this State.
As earlier noted the defendant asserted that “all elements…occurred in Victoria”. Those elements, it is said, included the falsification and the forming of the dishonest intent. This assertion is not correct. There was no clear evidence of where the falsification took place. That is unsurprising. It is in the nature of falsification or forgery where an accused is not caught in the act, and the prosecution case is instead based on circumstantial evidence.
It is however to be noted that the Magistrate found that it was “probable” the falsification occurred in Victoria. This finding was not definitive as to location. It was an unnecessary finding. It may be inferred from the finding by the Magistrate that he considered that subsection 5G(2)(b) applied at least to some counts, and that he had not reached a definite conclusion that the falsification occurred in Victoria. That is because to apply subsection 5G(2)(b), the Magistrate had to first conclude that “…it is not possible to establish whether any of the relevant acts giving rise to the alleged offence, occurred within or outside this State…”.[28]
[28] See Criminal Law Consolidation Act1935 (SA) subsection 5G(2)(b).
In my view, the loss or harm resulting in the present proceeding would be incurred by the South Australian entities on whom the cheques were payable or the bank branches in South Australia which accepted the cheques. Accordingly, the necessary territorial nexus exists pursuant to section 5G(2)(b) of the Criminal Law Consolidation Act.
The Magistrate was correct to find that the necessary territorial nexus existed pursuant to paragraph 5G(2)(d) in relation to counts 3 to 9 and 13 to 19. The “falsification” offence was preparatory to the offence allegedly committed by the parties who presented the cheques - that is the parties whose names were written by the defendant on the cheques so that those parties could present or deposit those cheques. The parties who presented the cheques dishonestly dealt with documents pursuant to section 140 of the Criminal Law Consolidation Act by “producing” the cheques. In the case of the “producers” of the cheques at least one “relevant act” has occurred in this State. Accordingly, the necessary territorial nexus can also be established under this subsection.
The Solicitor-General submitted further, that it was open to the Magistrate to find that the relevant act was a “state of affairs that is an element of the offence”.
It is an element of the offence that a detriment be intended. The detriment would be suffered by drawers or banks resident in South Australia. Whether the specific detriment in this State was intended is irrelevant to the finding of a state of affairs regarding a detriment. The state of affairs provides a further “relevant act” to consider. That relevant act adds further scope to consider that the necessary territorial nexus exists at least pursuant to section 5G(2)(d) as there is then a relevant act in this State.
A further basis for a territorial nexus is provided by section 5G(2)(c)(ii), Criminal Law Consolidation Act. Where no relevant Act occurred in this State, that section specifies a nexus where:
The alleged offence caused harm or a threat of harm in this State and the harm or the threat, or the threat, is sufficiently serious to justify the imposition of a criminal penalty under the law of this State;
By having a South Australian link through the potential victim there was at least a “threat of harm” in this State. The threat of harm was “sufficiently serious”. A fraud of the order committed in the present proceedings was a serious matter sufficient to justify the imposing of a criminal penalty within the meaning of section 5G(2)(e)(ii). The second reading speech in relation to the amendments to the legislation noted the past difficulty in attaching jurisdiction based on the location of the victim, as the victim was not an element of the offence.[29] This difficulty was addressed by the amendments and provides a basis on which to find the necessary territorial nexus.
[29] Hansard, House of Assembly Second Reading Speech, 29 May 2002 at 368 - 370.
The Constitutional Contention
The defendant submitted that if the alleged offences did satisfy the territorial nexus for requirements described by section 5G of the Criminal Law Consolidation Act that the requirements of those sections were beyond the extra territorial legislative competence of the Parliament of South Australia and were invalid.
It was submitted that the wide reading of section 5G contended for by the prosecution would give the legislation an impermissible extra territorial operation. It was argued that to constitute acts wholly committed interstate as principal offences under the law of South Australia simply because they happen to create the occasion or opportunity for others to commit independent offences in South Australia, was beyond the constitutional competence of the Parliament of South Australia.
Attention was drawn to the following observations of Dixon J in Broken Hill South Ltd v Commissioner of Taxation:[30]
The power to make laws for the peace, order and good government of a State does not enable the State Parliament to impose by reference to some act, matter or thing occurring outside the State a liability upon a person unconnected with the State whether by domicil, residence or otherwise. But it is within the competence of the State legislature to make any fact, circumstance, occurrence or thing in or connected with the territory the occasion of the imposition upon any person concerned therein of a liability to taxation or of any other liability. It is also within the competence of the legislature to base the imposition of liability on no more than the relation of the person to the territory. The relation may consist in presence within the territory, residence, domicil, carrying on business there, or even remoter connections. If a connection exists, it is for the legislature to decide how far it should go in the exercise of its powers. As in other matters of jurisdiction or authority courts must be exact in distinguishing between ascertaining that the circumstances over which the power extends exist and examining the mode in which the power has been exercised. No doubt there must be some relevance to the circumstances in the exercise of the power. But it is of no importance upon the question of validity that the liability imposed is, or may be, altogether disproportionate to the territorial connection or that it includes many cases that cannot have been foreseen.
[30] Broken Hill South Ltd v Commissioner of Taxation (1937) 56 CLR 337, 375.
These observations were the subject of comment by the High Court in Union Steamship Co of Australia v King,[31] where the Court stated:
The Solicitor-General for New South Wales, appearing for the Attorney-General for that State as intervener, submitted that even the statement of Dixon J is too restrictive an interpretation of the Parliament's legislative authority. The nineteenth century Privy Council decisions, he submitted, recognize that the grant of power is as large and ample as that enjoyed by the Imperial Parliament itself. As that Parliament is not subject to any territorial restraint, so the Parliament of New South Wales is likewise free from such a restraint. The short answer to this contention is that the nineteenth century decisions, in comparing the scope and extent of the grant of legislative power to colonial legislatures with the power of the Imperial Parliament, explicitly qualified that comparison by reference to the limits of the grant itself: see, eg, the passage already quoted from the opinion in Hodge. Accordingly, the nineteenth century decisions do not deny that the words "peace, order and good government" may be a source of territorial limitation, however slight that limitation may be. And, as each State Parliament in the Australian federation has power to enact laws for its State, it is appropriate to maintain the need for some territorial limitation in conformity with the terms of the grant, notwithstanding the recent recognition in the constitutional rearrangements for Australia made in 1986 that State Parliaments have power to enact laws having an extraterritorial operation: see Australia Act 1986 (Cth), s 2(1); Australia Act 1986 (UK), s 2(1). That new dispensation is, of course, subject to the provisions of the Constitution (see s 5(a) of each Act) and cannot affect territorial limitations of State legislative powers inter se which are expressed or implied in the Constitution. That being so, the new dispensation may do no more than recognize what has already been achieved in the course of judicial decisions. Be this as it may, it is sufficient for present purposes to express our agreement with the comments of Gibbs J in Pearce where his Honour stated that the requirement for a relevant connexion between the circumstances on which the legislation operates and the State should be liberally applied and that even a remote and general connexion between the subject-matter of the legislation and the State will suffice.
[31] Union Steamship Co of Australia Pty Ltd v King (1988) 166 CLR 1 at 13-14.
The defendant submitted that although the connection with South Australia may be remote, it must be real and exist in substance. It was said that to interpret the provision in a way necessary to criminalise the defendant’s conduct under South Australian law demonstrated that the connection is illusory. The argument was further developed in the written submission of the defendant in the following terms:
... The falsification of the cheques in Victoria has no connexion with this State other than that the cheques happened to wind up in the hands of people who presented them here. The cheques were put into a condition which made them easier to misuse but not more likely to be misused. So the acts are not properly preparatory. To use preparatory is the sense that any fortuitous combination of acts in one place which (without more) lends opportunity to the independent commission of a crime in another place is an act preparatory to the crime and thus connects the two places, is rather an abuse of language which masks the real object of such a provision which is to criminalise ex post facto activities interstate which facilitate crime at home, not because of the inherent nature of the activity but because, with hindsight, the activities can be seen to have had repercussions here. Thus, to criminalise the cultivation, in Tasmania, of any cannabis which is subsequently sold on the streets of Adelaide is not in reality to postulate a connexion between the cultivation and South Australia, because the cultivation is not an inherently anti-South Australian activity, it doesn’t encourage or render more likely the sale of cannabis in Adelaide; nor is it possible for the grower to postulate in advance that the cultivation will contravene the laws of South Australia.
There being no constitutional nexus to sustain the Court’s interpretation of the provision, it should be read down to conform to constitutional limits: s.22 Acts Interpretation Act 1915.
Finally, as the above example reveals, the wide interpretation of preparatory relied on by the court below means that the subsection may, in certain cases, including the case at bar, entail ex post facto criminalisation – ie the consequence that an act, not criminal when it is done, may yet become so by the course of subsequent events. Such legislative techniques are of peculiar abhorrence to the common law – which is further warrant for a narrower reading of the provision.
The falsification of documents pursuant to section 140 of the Criminal Law Consolidation Act is preparatory to the production of a falsified document in breach of this section. The production of the cheques, although done by a party other than the defendant, provides a substantive link to South Australia due to the detriment threatened or caused. As a consequence there is a real connection between the defendant’s conduct and South Australia. As the Court outlined in Pearce, even a remote and general connection between the subject-matter of the legislation and the State is sufficient. The connection in the present case at the very least meets this test. The defendant’s contention that the provisions of the Criminal Law Consolidation Act is beyond the legislative reach of the South Australian Parliament should be rejected.
Each of the possible bases for finding territorial nexus provide a real connection with this State. The impact on persons in this State - the victims or banks - connect the offence with this State and make the legislation territorially competent.
Common law applies
The High Court in Lipohar concluded that at common law what is to be asked is whether there is a “sufficiency of connecting factors”. It was observed:[32]
The requirement of nexus should be liberally applied. A real connection with the jurisdiction will suffice…Here a conclusion as to the sufficiency of the connection also is to be reached by having regard to the commercial realities of the situation envisaged by the performance…
[32] Lipohar v R (1999) 200 CLR 485 at 534-5, per Gaudron, Gummow and Heydon JJ.

Applying Lipohar, the sufficiency of the connecting factors between the falsification and the impact or detriment to the victims provides a territorial nexus at common law.
The defendant contended that Lipohar is limited in its application to common law offences. The Solicitor-General argued that this contention was incorrect. In Lipohar Gleeson J observed:[33]
[33] Lipohar v R (1999) 200 CLR 485 at [38].
When the appellants and their co-conspirators set out to defraud the company, it was probably not material to them to consider where it had its central management and control, or where the money for the lease incentive payment was to come from, or where the company's legal advisers were located, although some of these facts were later made known to them. They knew that the building in respect of which the lease incentive payment was to be made was in Melbourne, but geographical considerations beyond that were probably unimportant to them. Even so, as a matter of objective fact, there was a real connection between the conspiracy and South Australia. The intended victim of the fraud was a South Australian company, whose business was controlled from that State, and in the way in which the affairs of that company were managed, the effectuation of the fraud involved the making of a false representation to people in South Australia, and their acting on that representation. That is why the facsimile communication went to South Australia. People in South Australia were intended to act on it, to the detriment of the South Australian company.
Gaudron, Gummow and Hayne JJ explained:[34]
The constraint upon State legislative power identified in Union Steamship by reference to limitations expressed or implied in the Constitution applies where the criminal offence is created by statute of the State in which the trial takes place. It does so immediately by operating upon the territorial reach of the offence specified in the statute. Where, as in the present case, the offence is not created by statute, the constraint applies but by reference to the statute which specifies the jurisdiction of the State court in question. Here this is found in the specification in s 17(2)(a) of the Supreme Court Act, "jurisdiction, in and for the State". It is jurisdiction so constrained which is the "jurisdiction ... which belongs to ... the courts of the States" within the meaning of s 77(ii) of the Constitution. This yields "the judicial proceedings of every State" spoken of in ss 118 and 51(xxv) of the Constitution and the "civil and criminal process and the judgments of the courts of the States" to which the power in s 51(xxiv) applies.
In the present case, the question becomes whether the connection between the subject matter of the charge and South Australia was sufficient. That is a search for the sufficiency of connecting factors. No question of fiction or deeming intrudes. Indeed, to adopt the comments of Wells J in R v Hansford, it is "impossible to avoid resolving issues of interpretation, characterisation and constitutional power, in cases of this sort, by purporting to find, in composite acts, some inherent and supra-legal quality that limits their geographical situation to a place to which they are not naturally confined. If a decision of a court fixes a geographical situation in that way, an element of deeming has been introduced, which itself connotes the importation of a legal fiction." In particular, the inquiry is directed to whether a particular court in Australia has jurisdiction to try an offence against the common law of Australia, not to deeming an offence against the law of one jurisdiction to be an offence against the law of another. To speak of deeming a common law offence to be an offence against the laws of another Australian jurisdiction is to deny the unity of the common law of Australia.
The requirement of nexus should be liberally applied. A real connection with the jurisdiction will suffice. The object of the conspiracy was to cheat Collins Street out of a particular receipt. In that sense the immediate victim in prospect was Collins Street. The company was incorporated in South Australia. Its legal advisers with respect to the proposed transaction were in Adelaide.
Much attention in argument was given to the circumstance that the facsimile was received on 5 March 1992 by SGIC's solicitors in Adelaide. That was a matter of some significance in the overall chain of events. This will always be so where, in furtherance of the alleged conspiracy, an unlawful act is performed in the forum or a lawful act is performed there by unlawful means. Here a conclusion as to the sufficiency of the connection also is to be reached by having regard to the commercial realities of the situation envisaged by the performance of the conspiracy and described above. Given the corporate structure which we have indicated, it would, for present purposes, be artificial to quarantine the effect sought to be obtained through the conspiracy by ignoring the real and practical consequences for SGIC, and thus for the South Australian body politic. A connection of this character will suffice.
Callinan J expressed the following view:[35]
In my opinion, having regard to the exceptional nature of a conspiracy and the authorities to which I have referred, it is proper to take the view that an offence should be regarded as having been committed against the law of South Australia if a conspiracy has been entered into anywhere which has a real link with the jurisdiction. It seems to me with respect that many of the conceptual difficulties associated with the designation of overt acts as the agreement or parts of it can be avoided by the adoption of such a test. It is, as a test, no less exact than many which common law courts are regularly called upon to apply, such as the reasonableness of conduct, whether conduct has been contributory conduct, and whether an expense is of and incidental to a particular enterprise or activity. It is also sufficiently flexible to take account of such matters as an actual or threatened breach of the peace, the place of the likely infliction, or sustaining of harm or damage, and the nature and significance of the overt acts occurring within a jurisdiction.
In this case, a relevant state of affairs existed, to provide real links in these respects: the transmission of the facsimile to South Australia as an act done in partial implementation of the conspiracy; the consideration given by the Board and solicitors of Collins St in South Australia to the transaction generally and the fraudulent representations made in furtherance of the conspiracy; and, the fact that the victim, the party directly affected, Collins St, was a South Australian corporation with its registered office in South Australia. Any one of these circumstances was sufficient in this case to provide a real link between the conspiracy and South Australia so as to make the conspiracy an offence against the law of South Australia and to ground jurisdiction in the courts of South Australia to try the offence.
[34] Lipohar v R (1999) 200 CLR 485 at [121]-[124]. (footnotes omitted).
[35] Lipohar v R (1999) 200 CLR 485 at [269]-[270].
Consequently, the common law test determining the ambit of State statutory offences is the same as that regarding the territorial application of the laws of the State. If the offence concerns an act that has a real connection with the State, it is an offence triable in the State.
As earlier outlined, the second reading speech makes it plain that the statutory scheme was intended to operate alongside the common law and was designed to supplement the common law with respect to the existing deficiencies regarding trans-territorial serious crime. In my view, this intention has been carried into effect by the legislation. As a consequence, the provisions operate to expand the reach of the common law. The defendant’s submission that Lipohar is limited in its application is illogical, as if a territorial nexus can be found at common law, such finding is also available utilising the statutory scheme. The connections identified by the Magistrate, as summarised above, provide a real connection to this State in relation to each count of which the defendant was convicted. There is a sufficient territorial nexus at common law.
A Further Matter
The defendant further submitted that section 5G(2)(c)(ii) represented an impermissible delegation of legislative power. Attention was drawn to the words “… the harm, or the threat, is sufficiently serious to justify the imposition of a criminal penalty under the laws of this State”. It was argued that it was for Parliament to decide whether criminal penalties were justified and should be imposed and for the courts then to exercise relevant sentencing discretions with respect to criminal penalties.
In my view there is no substance to this submission. Courts are often concerned in determining whether a criminal penalty is justified by particular conduct. Courts not infrequently consider whether a defendant following an acknowledgement or finding of guilt should be released without conviction or without penalty. I do not consider that the requirement that the court reach a conclusion as to whether the harm or the threat is sufficiently serious to justify the imposition of a criminal penalty, would involve an exercise of legislative power. Section 5G(2)(c)(ii) requires a court to make an assessment of the seriousness of the harm or the threat arising from the alleged offence when determining whether a territorial nexus exists. The court is required to reach a conclusion of fact in the context of reaching a decision about territorial nexus.
Conclusion
This appeal is dismissed.