Thompson v The Queen - [1988] HCATrans 308

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IN THE HIGH COURT OF AUSTRALIA

Registry No C21 of 1986

B e t w e e n -

ALLEN DOUGLAS THOMPSON
Applicant

and
THE QUEEN
Respondent

Application for special
leave to appeal

MASON CJ
BRENNAN J
DEANE J
DAWSON J
GAUDRON J

Thompson
TRANSCRIPT OF PROCEEDINGS
AT CANBERRA ON THURSDAY, 8 DECEMBER 1988, AT 10.27 AM
Copyright in the High Court of Australia

C2T4/l/HS 1 8/12/88

MR B.J. SALMON, QC: May it please the Court, I ~opear wir~
my learned friend, MR K. CRISPIN, QC,

for the applicant. (instructed by Legal Aid Oftice)

MR M.S. WEINBERG, QC: May it please the Court, in t~is ~atte~
I appear together with my learned friends,
MR T.J. HIGGINS, QC, and MR J. SABHARWAL, on behal:
of the respondent. (instructed by the Director
of Public Prosecutions.

MASON CJ: Yes, Mr Salmon.

MR SALMON: I hand up an outline of the applicant's submis s io,Is.
Your Honours. it is proposed that I will deal with the
first point, the jurisdiction point, and my learned
junior will deal with the similar facts point.
Your Honours, the point raised first in this
application, it is submitted, goes right to the
heart of criminal proceedings, particularly in a

federation. So far as our researches go, in
what, President Reagan would say we anticipate, is
the greatest federation of modern times, the point has
not been authoritatively determined by the
Supreme Court. Amongst the authorities which we
have provided copies to the Court is a case of
STATE V BALDWIN, 67 ALR 3d 979 and, Your Honours,
there have been in the various courts of the States
of America many cases dealing with venue and with
what is called in America, appropriately enough,

"territorial jurisdiction". This case deals with
both.
I really only want to draw Your Honours'

attention to what appears on the second last page,
page 986, where the Appeal Court of the State of Maine,
in the judgment in this case say, at point 2:

(Continued on page 3)

C2T4/2/HS 2 8/12/88
Thompson
MR SAL'-ON (continuing):
We are aware there is a split of
authority in the courts of this country
as to the quantum of proof required to
establish both venue and jurisdiction.

It is our submission, Your Honours, that whilst
this matter comes before the Court as a facts
issue, it raises, as a threshold point, for
determination by this Court, we submit, exactly
what the onus of proof should be in a case where
the question of where the crime was cormnitted is
raised; that is, it is raised in the sense that
there is material which would raise the issue of
whether or not the crime was cormnitted, if it was
committed at all, within the jurisdiction of the
court trying the case.
Your Honoum, as a starting point, it is

submitted that the Federal Court, in its decision, was
not guided by MOFRIS V REG, a case, if I nay say so,
of great value in…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Thompson v The Queen

Details

AGLC: Thompson v The Queen [1988] HCATrans 308
Case: [1988] HCATrans 308
Decision Date

CaseChat Overview and Summary

This matter comes before the High Court of Australia on an application for special leave to appeal by Allen Douglas Thompson against a decision of the Federal Court. Thompson, represented by Mr. B.J. Salmon, QC, and Mr. K. Crispin, QC, sought to challenge the Federal Court's determination concerning the jurisdiction of the trial court. The respondent, the Queen, was represented by Mr. M.S. Weinberg, QC, Mr. T.J. Higgins, QC, and Mr. J. Sabharwal.

The central legal issue before the High Court was the onus of proof in criminal proceedings when the question of where a crime was committed, specifically whether it occurred within the jurisdiction of the trial court, is raised by the evidence. Thompson's submission argued that the Federal Court failed to properly apply the principles established in *Morris v R*, which requires the court to examine the evidence itself and determine if a jury could be satisfied beyond reasonable doubt on the issue of jurisdiction.

Mr. Salmon submitted that the Federal Court's decision was not guided by *Morris v R*. He contended that while the Federal Court acknowledged the argument that the verdicts were unsafe and unsatisfactory due to insufficient evidence of jurisdiction, it did not undertake the necessary examination of the evidence to determine if the jury could have been satisfied beyond reasonable doubt that the acts and deaths occurred within the Australian Capital Territory. The applicant argued that this failure to assess the evidence on jurisdiction was a critical error.

Orders