Ward v The Queen

[1980] HCA 11

HIGH COURT OF AUSTRALIA

Barwick C.J., Gibbs, Stephen, Mason, Murphy, Aickin and Wilson JJ.

WARD v. THE QUEEN

(1980) 142 CLR 308

1 May 1980

Constitutional Law—Criminal Law

Constitutional Law—States—Boundary between New South Wales and Victoria—Boundary fixed by Imperial Statute—" Water-course" of River Murray—13 &14 Vict. c. 59—18 &19 Vict. c. 54 s. V. Criminal Law—Murder—Locus of the crime—Act causing death committed on southern bank of River Murray above actual water level—Victim within New South Wales—Whether offence committed in Victoria.

Decisions

May 1.
The following written judgments were delivered:-
BARWICK C.J. I have had the advantage in this appeal of reading the reasons for judgment prepared by my brother Stephen. I agree with his conclusion that the northern boundary of Victoria is the top of the southern bank of the River Murray. I agree substantially with the reasons my brother gives for that conclusion. My brother's informative survey of colonial history affords no reason for reaching any other conclusion. On the contrary, in my opinion, it aids that conclusion. (at p311)

2. The delineation, for electoral reasons, of the Port Phillip district of the colony of New South Wales effected by 5 &6 Vict. c. 76 (1842) did not involve any alienation of territory. Consequently, when in 1850 a separation from the colony of New South Wales of what was to become the colony of Victoria was effected, the northern boundary of the new colony was fixed so far as it referred to the River Murray by reference to the course of that river. This was capable of being regarded as the southern bank of the river or the middle line of the river. It could scarce have been regarded as the water's edge on the river as it might be from time to time. I agree with what my brother Stephen has said as to the decision of the Supreme Court of Victoria sitting as a court of criminal appeal in this case on the relationship of the water to the inter-colonial boundary. None have suggested, nor could it properly be maintained, that by reference to "the Course of that River" (the Murray River), the indication of the northern bank of the river was intended as the inter-colonial boundary. (at p312)

3. I would have thought myself that, bearing in mind the earlier delineation of the Port Phillip district, the specification of the course of the river as the northern boundary of the new colony pointed towards the adoption of the southern bank of the river as that boundary. But, as my brother recites, the administration of inter-colonial customs evidently gave rise to doubts and difficulties. Those doubts were intended to be laid to rest by the Act of 1855, 18 &19 Vict. c. 54. This Imperial statute declared "that the whole Watercourse of the said River Murray" was within the colony of New South Wales. To my mind, bearing in mind the antecedent historical events, beginning with the erection of the Port Phillip district of the colony of New South Wales, the Imperial statement that the whole watercourse of the river was within the territory of New South Wales meant, and, in my opinion, unambiguously meant, that the colony of New South Wales extended territorially to the southern bank of the River Murray. Whatever ambiguity might remain in the description "Watercourse" when used alone, in my opinion "the whole Watercourse" of a river definitely means the area between the extremities of the banks of the river: they, except in times of flood, determine the course of the river. Indeed, even in times of flood, it might well be said that they, even then, determine the course of the river itself. I agree entirely with what my brother Stephen has written on the connotation and the denotation of the expression "Watercourse of the river". For my part, I derive somewhat more than my brother seems willing to take from the emphatic use of the word "whole", particularly bearing in mind the circumstances in which it was statutorily employed. The whole watercourse of a river must, in my opinion, include the territory which lies between its banks. (at p312)

4. If, as is the case with English or some European continental streams, there is a seasonal flooding, the extremity of the stream's watercourse may extend to the seasonal flood bank. But no such question arises in this case. When this river bursts its banks in flood, so far as presently relevant, it submerges adjacent lands without forming either a flood plain or a flood bank. Here, the southern bank of the river is clearly apparent and easily defined. (at p313)

5. The absence of a pattern of seasonal flooding of a fairly regular nature contributed to the decision in quite early colonial days to vest flowing water in the Crown, thus avoiding arguments as to the use of flowing waters between proprietors on either bank, as well as between upper and lower riparian owners. (at p313)

6. To my mind, the statutory assertion in 18 &19 Vict. c. 54 that the whole watercourse of the river was within New South Wales was, as a matter of statement, unambiguous. When the antecedent history is taken into account, including the influential and cogent opinion of the law officers of the colony of New South Wales which is recited in my brother's reasons for judgment, I have no doubt that the meaning of the expression "the whole Watercourse" of the river was intended to ensure that all within the banks of the river was accepted as being within New South Wales. (at p313)

7. I therefore agree that the appeal be allowed and the appellant's conviction set aside. The deceased, the victim of the appellant's gunfire, was killed not in Victoria but in New South Wales. (at p313)

GIBBS J. I have had the benefit of reading the reasons for judgment prepared by my brother Stephen. I agree with his conclusion that at the relevant place the northern boundary of the State of Victoria was the top of the southern bank of the River Murray and, with the following reservations, concur in the reasons he has given for reaching that conclusion. (at p313)

2. I am, with respect, unable to agree that the colonial history before 1855 throws any clear light on the meaning of the statute passed in that year. The history discloses that the doubts which, according to the recital in the statute, were entertained as to the true meaning of the description of the boundary related particularly to the power of the colony of New South Wales to exact customs duties in respect of goods brought on to the River Murray and to administer its customs laws on those waters. The position of New South Wales in this regard would have been made secure whether the top of the southern bank of the river, or the line formed by the water level for the time being on the southern bank, was the southern boundary of the colony. A consideration of the state of affairs before 1855 therefore does not assist me in deciding which of these alternatives the Parliament intended to select when it spoke of "the whole Watercourse of the said River Murray". (at p314)

3. For the reasons which my brother Stephen has given, those words, upon their proper construction, include the banks of the river as well as the stream. In addition, although logically the use of the word "whole" should not assist in the construction of the phrase, since the choice is between two different meanings of the word "Watercourse", I incline to think, having regard to the obscurity of the provision, that the word "whole" can properly be regarded as providing some indication of a legislative intention that the word "Watercourse" should include all those features (bed, banks and stream) that the wider meaning would embrace. (at p314)

4. On any view the boundary fixed by the statute of 1855 may cause some inconvenience, but not such as cannot be remedied by sensible co-operation between the States, if not by unilateral action. So far as the circumstances of the present case are concerned, it would clearly have been within the power of the Victorian legislature to provide that a crime should be justiciable by a Victorian court if the initiating act (such as the firing of a shot) was done in Victoria notwithstanding that the result occurred in New South Wales. However, no legislation of that kind is in force in Victoria, and the crime in the present case is, on the concessions made, triable only in New South Wales. (at p314)

5. I would allow the appeal and quash the conviction. (at p314)

STEPHEN J. When Edward Donald Ward, now an applicant for special leave to appeal, shot and killed Alexander Joseph Reed beside the Murray River near Echuca he fired from the top of the steep bank of the river down at Reed, who was fishing by the river's edge, some thirty feet below. (at p314)

2. This killing took place on the Victorian side of the river and Ward was tried and convicted of murder in the Supreme Court of Victoria. The jury were given an unusual task: not merely to determine upon Ward's guilt but also whether when he shot Reed both were in Victoria. This issue arose not because of any dispute about the facts of the shooting itself but because of doubts about where precisely along the southern bed or bank of the Murray River ran the boundary of Victoria, whether along the top edge of the bank or down at the then water's edge or, perhaps, at some other point above or below the surface of the water as it was at the time of the shooting (as a matter of convenience, I shall refer to the bank on the Victorian side as the southern bank). (at p314)

3. Matters of fact were little in dispute. As I have said, Ward was standing on top of the bank and probably, on any view, within Victoria; Reed was down by the water's edge, perhaps in New South Wales, perhaps not. After hearing argument, the learned trial judge directed the jury that at least so much of the southern bank of the Murray as was not covered by water was within Victoria (1979) VR 205 . Being so directed, the jury found that when Reed was shot both he and the accused were in Victoria. They brought in a verdict of guilty of murder. (at p315)

4. On appeal to the Court of Criminal Appeal this direction of the judge was upheld (1980) VR 209 . The applicant now seeks special leave to appeal to this Court on the sole ground of misdirection as to the location of the boundary between Victoria and New South Wales. Its location has especial relevance since the Solicitor-General for Victoria accepts that, for the purposes of this case, it is, to use the terminology adopted by Glanville Williams in "Venue and the Ambit of Criminal Law, Part 3 Law Quarterly Review, vol. 81 (1965), p. 518, the terminatory, as distinct from the initiatory, theory that will determine venue. That is to say, it is not where the physical act of Ward was done but where that act took effect upon its victim, Reed, which determines the locus of the crime and, in turn, the courts having jurisdiction in respect of it. What, then, is critical is the particular State in which Reed was situated when, being below the top of the southern bank of the Murray but above the then level of its waters, he was shot and killed. (at p315)

5. It is in this way that there arose in this criminal trial a question concerning the position of the common boundary between New South Wales and Victoria. If that boundary runs not at or below the water level of the Murray as it stood on the day of the killing but at some point higher up on the southern bank, Reed will have been shot and killed in New South Wales. In the agreed absence of any statutory provision to the contrary it will then be only the New South Wales' courts which have jurisdiction to try Ward. (at p315)

6. The position of the boundary between New South Wales and Victoria depends upon the meaning of certain Imperial legislation of the mid-nineteenth century, legislation which is surprisingly imprecise in view of the existence at that time of what was already a long history of difficulties to which the use of rivers to delineate territorial boundaries had given rise - see, for example, the instances referred to in Stephen B. Jones' Boundary-Making (1945) Ch VI and in the article by L J Bouchez, "The Fixing of Boundaries in International Boundary Rivers", International and Comparative Law Quarterly, vol. 12 (1963), p. 789. River boundaries involve difficulties of definition which even meticulous drafting may not wholly avoid: the doctrines of law which have been developed in an effort to meet such problems are scarcely proof against determinedly obscure or imprecise language. (at p316)

7. It is not merely because rivers change their courses or because their waters rise and fall that they provide awkward boundary markers: they necessarily of themselves provide no boundary line but only a boundary zone. Only by a combination of appropriate terms of definition, wholly lacking in the present case, and the application of conventional rules can a precise dividing line readily be made to emerge. (at p316)

8. It will be necessary later to set out verbatim some parts of the relevant Imperial statutes; however, by way of introduction to the problem, their general effect may be put quite shortly. By an Act of 1850, "the Territories now comprised within the said District of Port Phillip" were separated from the colony of New South Wales and became the colony of Victoria. These territories were described as in part bounded "by the course of" the River Murray. Then in 1855 a further Act, after referring to doubts entertained as to the true meaning of that earlier boundary description, declared the whole watercourse of the River Murray to be within the territory of New South Wales. (at p316)

9. Each of these Acts legislated by reference to what it took to be a pre-existing state of affairs. The Act of 1850 assumed the prior existence of the District of Port Phillip, possessing territories having defined bounds. There was to be no question of the delineation of any new boundaries; instead, what were formerly the territories of a District became the territories of a separate Colony, its boundaries being those of the former District. The Act of 1855 was expressed to do no more than elucidate "the true Meaning of the said Description of the Boundary" as described in the Act of 1850, a task said to be necessary because "Doubts have been entertained" as to their true meaning. It follows that any proper understanding of these Acts requires some understanding of their historical setting. (at p316)

10. When in the early 1830s the first permanent settlements were made in what was to become the colony of Victoria, the flow of settlement was predominantly north from Launceston, across Bass Strait, rather than overland from Sydney across the River Murray. It was upon the coast rather than the inland areas that interest was concentrated. The inland was little explored whereas the coast had been charted. Sir Richard Bourke's commission as Governor of the colony of New South Wales illustrates this: in it the colony's eastern boundary is readily enough described, it extends from Cape York in the north down the entire eastern coast of Australia to Wilson's Promontory in the south; of its other boundaries the commission says only that the colony embraces "all the country inland to the westward, so far as the 129 degrees of east longitude", that is, to the present Western Australian border. (at p317)

11. The District of Port Phillip seems first to have received offical recognition in January 1839, when Captain Lonsdale was first appointed Police Magistrate for the District. Its boundaries were then wholly undefined. They still remained uncertain when, on 21st May 1839, a proclamation which divided New South Wales into nine districts for the collection of assessments upon stock described the ninth district, Port Phillip, as lying to the south of the main range between the Rivers Ovens and Goulburn and adjacent to Port Phillip. They were precisely identified in 1839, when C. J. La Trobe was appointed Superintendent of the District, it being for that purpose geometrically described as "that portion of the Territory of New South Wales" lying to the south of 36 degrees S. latitude and between 141 degrees and 146 degrees E. longitude - proclamation of 10th September 1839. Those bounds enclosed a relatively confined area, from just west of Wilson's Promontory to the South Australian border and north to about the line Yarrawonga-Birchip. It included some land north of the Murray near Echuca but excluded not only the Wimmera and Mallee to the north west but also much of the southern bank of the Murray to the north of Melbourne as well as all land to the east of 146 degres E. (at p317)

12. The reason why geometrical, rather than natural, boundaries were adopted in defining the extent of the district placed under Superintendent La Trobe's care appears from a despatch of 4th November 1839 from Governor Gipps to the Colonial Office:

"The features of the country not being sufficiently known to enable me to define the District by natural boundaries, I have directed it to be considered as consisting of that part of the territory of New South Wales which lies to the south of the 36 degrees South latitude, and between the 141st and 146th degrees of East longitude" -

See Votes and Proceedings, Legislative Council of Victoria, 1853- 1894, vol. 2, pp. 735 et seq. The evidence of Surveyor-General Perry reproduced in Historical Records of Australia (First Series), vol. 25, p. 649, establishes that even as late as 1847 there had been no accurate surveys made of the areas on either side of the Murray River. (at p317)

13. By 1840 the rapid and widespread expansion of settlement in the colony made necessary a new lands management policy. At the Colonial Office Lord John Russell decided that for the purposes of lands management the colony should be divided into three districts, of which the southern was to be the district of Port Phillip. It was not, however, to be confined to the Port Phillip district of Superintendent La Trobe's geometrically bounded jurisdiction. Instead it was to extend north of the Murray so as to include the Riverina. It was described as bounded to the north and west by the southern boundary of the county of St. Vincent and the south western boundary of the county of Murray "as far as the River Murrumbidgee, and from thence by the said River Murrumbidgee, and the River Murray, until the same reaches" the South Australian border - Order in Council of 23rd May 1840. St. Vincent and Murray were the two most southerly of the nineteen counties surrounding Sydney. As thus described the District extended far beyond the present limits of the State of Victoria; not only the Riverina but also the east coast and its hinterland as far north as Bateman's Bay were to be included. (at p318)

14. Although the Order in Council involved no creation of a new political unit, it was welcomed by some and feared by others as foreshadowing the territorial extent of what in the future would become a separate southern colony. The reaction of the Legislative Council of the colony was to resolve to petition the Queen. The petition requested that, if eastern Australia were ultimately to be divided into distinct colonies, the southern boundary of New South Wales should "be a line drawn from near Cape Howe to the source of the River Hume or Murray; and from thence, the course of that River itself" to the South Australian border. The resolution for the petition sought for New South Wales such limits "as may secure to it the course of the principal Rivers within the Territory, which have been discovered and explored by the enterprize, and at the expense of the Settlers," - Votes and Proceedings, Legislative Council of New South Wales, 1840, No. 50, 10th December 1840. By way of contrast, a petition, emanating from Melbourne, sought separation on the basis of the extensive Murrumbidgee boundary set by the Order in Council of 23rd May 1840. (at p318)

15. Meanwhile, for other administratiave purposes, geometrical boundaries continued to be employed for the definition of the District of Port Phillip: in February 1841 the jurisdiction of the newly appointed Resident Judge for the District was described by reference to them. In September 1841, by s. 3 of 5 Vict. No. 9, the Governor was empowered, for purposes of the jurisdiction of the Resident Judge, to enlarge or alter the limits of the District. (at p318)

16. When Lord Stanley succeeded Lord John Russell as Colonial Secretary in September 1841 there appears to have been a abandonment of the Murrumbidgee as the District's northern boundary for the purpose of lands administration. Lord Stanley, on 18th October 1841 in a despatch to Governor Gipps relating to the sale of land, described the District of Port Phillip as "the whole of the land bounded by a line drawn from Cape Howe along the south-west boundary of the Manaroo (sic) District to the head of the Murray, and thence along the Murray to the frontier of South Australia". This appears to have been, in substance, an adoption of the boundaries sought in the Legislative Council's petition. (at p319)

17. In the next year a measure of self government was secured for the colony by 5 &6 Vict. c. 76, entitled "An Act for the Government of New South Wales and Van Diemen's Land". This Act provided for a Legislative Council of thirty-six members, of whom twelve were to be appointed and twenty-four elected. Although the Legislative Council was entrusted with the general task of determining electoral districts, the Act itself defined the boundaries of the electoral District of Port Phillip. The north and north-eastern boundary of the Port Phillip District was, for the purpose of the Act, declared to be "a straight line drawn from Cape Howe to the nearest Source of the River Murray, and thence the Course of that River to the Eastern Boundary of the Province of South Australia". The adoption of this boundary for the Port Phillip District reflected the views of the Colonial Office as expressed in Lord Stanley's despatch of October 1841 and seem again to involve an acceptance of the views of the Legislative Council expressed in its resolution of December 1840. (at p319)

18. The movement for separation from New South Wales, which had led to public meetings and petitions in Melbourne as early as 1840, continued throughout the decade, encountering some opposition from Sydney. Although succesful in procuring the general support of the Colonial Office, it never succeeded in securing a return to the Murrumbidgee as the northern boundary of the proposed new colony. In a dispatch of 12th June 1845 from Lord Stanley to Governor Gipps the latter was asked for "a report of your views as to the proposed separation of the Port Phillip District from the Government of New South Wales, embracing in that report not only the probable advantages and disadvantages of the measure, but also . . . the boundaries by which any such new Province should be separated". The response, dated 29th April 1846, was that "In respect to boundaries . . . there is in the Council no difference of opinion. It is unanimously recommended that the boundary established in the second section of 5th &6th Vict. c. 76 and repeated in the local Act 6th Vict. No. 16, be adhered to as nearly as possible". The result is reflected in a dispatch dated 30th August 1850 in which Earl Grey observes that the boundary between New South Wales and the new colony of Victoria is to be the same as that which had previously spearated the Sydney and Port Phillip districts. The Imperial Act 13 &14 Vict. c. 59 (5th August 1850), entitled "An Act for the better Government of Her Majesty's Australian Colonies", accordingly substantially repeated the boundary provisions of the earlier Act of 1842. It provided that what were to be separated from New South Wales and erected into the colony of Victoria were the territories then comprised within the District of Port Phillip, "bounded on the North and North-east by a straight Line drawn from Cape Howe to the nearest Source of the River Murray, and thence by the Course of that River to the Eastern Boundary of the Colony of South Australia". (at p320)

19. The separation of Victoria from New South Wales was soon followed by the first navigation of the upper reaches of the Murray by paddle steamer from South Australia in 1853. This rapidly led to extensive use of the River Murray for the carriage of goods from South Australia into northern Victoria and the Riverina. This immediately gave rise to concern on the part of New South Wales as to customs duty on goods brought upstream from South Australia: some would be destined for Victoria and some for New South Wales and, quite apart from possible evasion of duty, there were doubts as to how duty might be collected and the validity of the collection of duty on goods while still in transit on the river, general problems of customs administration also arose. The Executive Council had doubts "whether customs duty can be legally enforced in New South Wales in respect of goods whilst being conveyed on the waters of the Murray, which divide the colonies of New South Wales and Victoria and are common to both" (Proceedings, 1st and 22nd November 1853). The Law Officers of New South Wales, however, advised the Executive Council on 22nd November 1853 that "we are much inclined to think that, in strictness of law, the whole of the stream continues to form part of the territory of New South Wales". Accordingly, New South Wales might, they advised, collect duty on all goods coming up the river from South Australia, whereas Victoria was probably only entitled to demand duty "at the place at which goods might be landed on the Victorian side of the river". To avoid administrative inconveniences anticipated from the application of this interpretation they recommended the enacting of simultaneous legislation in both Victoria and New South Wales. A description of this early stage in the protracted history of inter-colonial customs disputation appears in Quick and Garran, The Annotated Constitution of the Australian Commonwealth, pp. 100- 101, and, in greater detail, in G. D. Patterson's "The Murray River Border Customs Dispute 1853-1880", Business Archives, vol. 2 (1962), p. 122. (at p321)

20. The reasoning of the Law Officers of New South Wales, which led them to reject the view originally held by the Executive Council that the waters of the River Murray were "common to both" colonies, appears from their advice to have been as follows: the boundary delineating New South Wales and South Australia had been established before the separation of Victoria; hence, before separation, there could be no question but that the "entire channel" of the River Murray to the eastward of 141 degrees E longitude lay within New South Wales; as the colony of New South Wales had originally included "the whole channel" and the Separation Act of 1850 had not expressly given to Victoria "any portion of the area forming (the) channel", the whole of the stream continued to lie within New South Wales (Attorney-General and Solicitor-General to Colonial Secretary, Sydney, 22nd November 1853). (at p321)

21. The Executive Council accepted these conclusions of its Law Officers. To overcome anticipated difficulties to which they might give rise, particularly relating to river navigation and customs duties, the Council sought from the Imperial Parliament legislation conferring on the two colonies concurrent jurisdiction in all matters civil and criminal on the waters of the Murray. This proposal, not ultimately acted upon by the Imperial Parliament, recalls a provision of the Act of 1841 relating to the jurisdiction of the Resident Judge at Port Phillip. Section IV of that Act, 5 Vict. No. 9, provided for concurrent jurisdiction of the Judges of the Supreme Court at Sydney and of the Resident Judge at Port Phillip "along the borders of the line now dividing . . . the said district from the other parts of New South Wales and throughout a space or tract of country extending twenty-five miles on each side of such line". It is only for want of some such provision that the question in the present case has arisen. (at p321)

22. Contemporaneous with these questions of customs duty was the imminence in 1853 of responsible government for the Australian colonies. New South Wales and Victoria each formulated draft constitutions providing for responsible government and a bicameral legislature and embodied them in bills. These bills were reserved for the Royal Assent, which required prior authorization by the Imperial Parliament. Accordingly, two Imperial Acts were passed enabling assent to be given to the colonial bills. Colonial Office dispatches of 20th July 1855 to the Governors of New South Wales and of Victoria described the purpose of these two Imperial enabling Acts, 18 &19 Vict. c. 54 and c. 55 respectively, as being to permit the grant of powers additional to those previously held by the colonial Executive Council and in excess of those conferred by 13 &14 Vict. c. 59. They were also, it was said, intended to provide for any matters of more than local significance and which directly affected the relationship of the colonies to the Imperial Government. (at p322)

23. The New South Wales Constitution Statute, 18 &19 Vict. c. 54, seems to reflect the view that New South Wales was pre-eminently the dominant or mother colony. It is this Act and not 18 &19 Vict. c. 55, the Victorian Constitution Statute, which establishes the northern boundary of Victoria. Again, it is only in the future New South Wales Constitution, being the bill which is scheduled to 18 &19 Vict. c. 54, that there appears any description of the colonies. New South Wales is there described in the same broad terms as were employed in Governor Bourke's commission of 1835, accommodating the existence of South Australia and Victoria only by excepting out of the general description of eastern Australia "the Territories comprised within the Boundaries of the Province of South Australia and the Colony of Victoria". The Victorian Constitution, scheduled in bill form to 18 &19 Vict. c. 55, although otherwise similar in arrangement, omits this section altogether. In his dispatch of 20th July 1855 to the Governor of New South Wales, Lord John Russell said of s. 5 of 18 &19 Vict. c. 54 that it had been introduced in deference to the wishes of the New South Wales Executive Council and pursuant to the report of its Law Officers. His dispatch of the same date to the Governor of Victoria was significantly silent concerning any definition of the northern boundary of Victoria. (at p322)

24. The foregoing is necessarily a quite cursory account of events which appear to have relevance in understanding the Imperial Acts which determine the Murray River boundary between New South Wales and Victoria. Despite errors and omissions, whether due to want of historical method or otherwise, it does, I think, supply certain indications of legislative intent. These I have found to be helpful in distilling from language which is neither specific nor explicit, and which gives little sign of advertence to the problem in hand, a resolution of the problem of where precisely lies the Murray River boundary. (at p323)

25. The two Imperial Acts should now be referred to in more detail. The Act of 1850, 13 &14 Vict. c. 59, recites the enactment of the 1842 Act establishing a Legislative Council in New South Wales and other earlier and later Acts, all relating to the government of the Australian colonies. It then recites the expediency of erecting "the District of Port Phillip, now part of the Colony of New South Wales" into a separate colony. It proceeds to enact that "the Territories now comprised within the said District of Port Phillip, including the Town of Melbourne, and bounded on the North and North-east by a straight Line drawn from Cape Howe to the nearest Source of the River Murray, and thence by the Course of that River to the Eastern Boundary of the Colony of South Australia," shall be separated from the colony of New South Wales and be erected into the colony of Victoria. Its remaining sections are of no immediate relevance. Its effect was to describe the territories of the new colony as "bounded . . . by the course" of the Murray. (at p323)

26. The Act of 1855, 18 &19 Vict. c. 54, entitled "An Act to enable Her Majesty to assent to a Bill, as amended, of the Legislature of New South Wales 'to confer a Constitution on New South Wales, and to grant a Civil List to Her Majesty'", recites, inter alia, the passing by the colonial legislature of the Bill which is scheduled to the Act, the reservation of that Bill for Royal Assent and the need for legislative authorization before the giving of that assent. Section V of the Act provides:

"And whereas by the before-mentioned Act of the Fourteenth Year of Her Majesty, Chapter Fifty-nine, it is amongst other things enacted, that the Territories therein described as bounded on the North and North-east by a straight Line drawn from Cape Howe to the nearest Source of the River Murray, and thence by the Course of that River to the Eastern Boundary of the Colony of South Australia, should be erected into a separate Colony to be known and designated as the Colony of Victoria: And whereas Doubts have been entertained as to the true Meaning of the said Description of the Boundary of the said Colony: It is hereby declared and enacted, That the whole Watercourse of the said River Murray, from its Source therein described to the Eastern Boundary of the Colony of South Australia, is and shall be within the Territory of New South Wales: Provided nevertheless, that it shall be lawful for the Legislatures and for the proper Officers of Customs of both the said Colonies of New South Wales and Victoria to make Regulations for the levying of Customs Duties on Articles imported into the said Two Colonies respectively by way of the River Murray, and for the Punishment of Offences against the Customs Laws of the said Two Colonies respectively committed on the said River, and for the Regulation of the Navigation of the said River by Vessels belonging to the said Two Colonies respectively; Provided also, that it shall be competent for the Legislatures of the said Two Colonies, by Laws passed in concurrence with each other, to define in any different Manner the Boundary Line of the said Two Colonies along the Course of the River Murray, and to alter the other Provisions of this Section".

As already mentioned, s. 46 of the bill scheduled to the Act declares the boundaries of the colony of New South Wales to be the whole of Eastern Australia, "except as hereinafter excepted"; that exception being expressed as follows: "save and except the Territories comprised within the Boundaries of the Province of South Australia and the Colony of Victoria, as at present established". (at p324)

27. Whereas it is now apparent that the Act of 1850 may have left open a number of possible alternatives as regards the precise boundary line along the Murray, the Act of 1855 at least narrowed the field. Section V by the very act of resolving former doubts, rules out certain of those alternatives as possible meanings of the Act of 1850. Its language is explicit in denying to Victoria any claim to a mid-river boundary line or to what is commonly known as a thalweg boundary, outcomes which may have been possibilities in terms of the Act of 1850. It must be some boundary line on the south side of the river, to use a neutral phrase, that the Act of 1855 established. (at p324)

28. The alternatives in the case of such a boundary seem to be three in number: a line drawn at a particular water-level, a line along the top of the river's southern bank or the fluctuating line formed by the water-level for the time being on the southern bank. I say three alternatives, but the first of these really consists of a number of possibilities: any one of a number of differently defined water-levels could provide a boundary. For example, mean high or low water-level or mean summer or winter level could be adopted, or else, perhaps, one or other of the formulas referred to in Howard v. Ingersoll (1851) 13 How 381 (14 Law Ed 189) . In that case, Nelson J. spoke (1851) 13 How, at p 424 (14 Law Ed, at p 208) of "the line marked by the permanent bed of the river by the flow of the water at its usual and accustomed stage, and where the water will be found at all times in the season except when diminished by drought or swollen by freshets"; Curtis J. (1851) 13 How, at p 427 (14 Law Ed, at p 209) referred to the line where "the presence and action of water are so common and usual, and so long continued in all ordinary years, as to mark upon the soil of the bed a character distinct from that of the banks". (at p325)

29. Each of these possible water-levels would seem to require considerable elaboration if it were to provide any sort of comprehensible boundary description. For example, the word "mean", as in mean high or low water, requires detailed definition, as experience has shown - see Jones, Boundary-Making, pp. 111- 113. The latent ambiguities of which Jones speaks, and which lie concealed in even such an apparently specific term as "mean high water level", will have particular scope and potency in a river like the Murray, which is subject to extreme fluctuations in water-levels. Evidence in this case, such as that of the two witnesses, Keep and Freeman, who had the greatest personal knowledge of the vagaries of the Murray near Echuca, disposes of the prospect of any one of those possible criteria of river levels having any meaning if applied to the Murray. In particular, the sort of line or level contemplated in the judgments in Howard v. Ingersoll would seem not to exist in that river. (at p325)

30. All this would perhaps, in itself, suffice to dispose of the first of the three above alternatives. But there is more: nothing in the language of the Imperial Acts would, I think, justify the selection of one particular water level rather than another and I know of no rule of law which, at least in non-tidal rivers, could be relied upon as requiring any one water level to be selected. Accordingly, the first alternative can, I think, be discarded without examination of other difficulties which it may involve, due to the dramatic man-made changes in the nature of the River Murray which have occurred since the 1850s. These have resulted in it now, thoughout much of its length, being accurately enough described as a series of great pools formed above a series of locks; in consequence mean levels, however articulated, will not only have greatly altered in the past 120 years but are unlikely at any one time to possess any constant relationship throughout the river's length. (at p325)

31. I am encouraged in discarding this alternative by the fact that it was not advocated by any of the parties before the Court. The applicant and, as I understand it, the State of New South Wales, advocated a line along the top of the southern bank, whereas the Solicitor-General for Victoria put forward, as his preferred submission, the third alternative, the actual water-level from time to time. (at p326)

32. Before deciding between these two alternatives, in the light of the language of the Imperial Acts, understood in their historical context, some observations may be made concerning each of them. I preface these with the remark that s. V of the Act of 1855 must be understood as concerned, first and foremost, with boundary description. In express terms it sets out to resolve the question of the territorial boundary and not any question of the ownership or control of waters or the like. Questions such as those may in fact prove to be resolved as a necessary consequence of the resolution of doubts about the territorial boundary, but it is to the latter that the section directs itself. (at p326)

33. To adopt the actual water-level from time to time is to accept the notion of a boundary between States which is constantly altering as the water-level rises and falls at any particular spot along so much of the 1,609 mile long bank of the Murray as forms Victoria's northern border. Such a boundary would, in the words of Nelson J. in Howard v. Ingersoll (1851) 13 How, at p 423 be "wholly undefinable, and designated neither by high water nor low water, nor by the usual stage, but left to vibrate between what is called high water and the accustomed bed of the river". It would lack what in this Court O'Connor J. described as "the ordinary conception of a boundary line between the territories of adjoining Governments, exercising jurisdiction independent of each other. In other words, the very term 'boundary' connotes in its ordinary natural meaning a line of division capable of being permanently fixed": South Australia v. Victoria (1911) 12 CLR 667, at p 712 The line from Cape Howe to the nearest source of the Murray possesses the quality of fixed certainty which his Honour attributes to "the ordinary conception of a boundary line", but thereafter once it encountered the headwaters of the Murray, the boundary would lose that quality. (at p326)

34. Unsatisfactory as this notion of an ever-fluctuating boundary may seem when matched against the need for fixity in boundary demarcation, this in itself perhaps presents less difficulty than does another feature of this alternative: namely, the dependence for the boundary's very existence upon the presence of a continuous stream of water capable of being described as the waters of the River Murray and of providing a continuous water-level line along the southern bank. Any temporary disappearance of that water-level would result in there being no ascertainable boundary whatever between the States: yet, upon the continuous existence of such a water line all along the Murray River boundary little reliance can be placed. I have already referred to the extreme fluctuations in water-level to which the Murray is subject. These are no new phenomena, the product of recent damming and locking, or of irrigation schemes or water conservation policies: in Rivers of History (1970), Edmund Gill says of the Murray-Darling river system that its great variations make its flow one of the "most unreliable in the world"; since gaugings of the Murray began at Swan Hill in 1909 the river has on four occasions, for short periods, ceased to flow altogether and in April 1915 it was no more than "a chain of waterholes"; pp. 17-18. As recently as 1945 one could walk across it dry shod some distance down stream from Echuca: p. 13. Early river gaugings at Echuca over the period of twelve years from 1885 to 1897 disclosed a similar pattern, with occasional zero readings; full details of this appear in the Australasian Federal Convention Proceedings (1897), Appendix (compiled by F. N. Burchell). (at p327)

35. Again, the floods to which the river is notoriously subject present a problem. When the river is in flood, having burst its banks so that its flood waters spread over the adjoining countryside, as it was accepted by the parties that the Murray does from time to time, where lies the boundary between the States? The Solicitor-General for Victoria would answer by calling in aid a qualification upon the universality of a boundary dictated by the water-level. In such a case, he says, the boundary will remain at the submerged top of the southern bank over which the river has broken. While this is, with respect, an eminently sensible solution it is, perhaps, difficult to regard it as at all the product of the language found in the Imperial Acts. (at p327)

36. Difficulties are not, of course, confined to the alternative favoured by the Solicitor-General for Victoria. That supported by the applicant and by the State of New South Wales, which would place the boundary at the top of the southern bank, has its own difficulties. The most obvious is that at any time other than times of high water it preserves to New South Wales an isolated strip of territory along the southern or Victorian shore of the river. Perhaps no less significant is the imprecision involved in the notion of "the top of the bank". It assumes that the bank is a constantly ascertainable physical feature having an identifiable "top". Certainly the evidence in this case establishes that at the spot where this murder took place there was such a bank, having a clearly defined top, but it is not, I think, to be assumed that this will necessarily be so throughout the very many hundreds of miles of the river's frontage which divides New South Wales and Victoria. In Men of the Murray (1966), G. W. Broughton, a surveyor and engineer who, in the early 1920s, spent some years surveying the New South Wales reaches of the river for the New South Wales Irrigation Commission, writes of "the strange contrast" between the gorge through which the river flows downstream of Swan Hill, where "it now lies far below the general level of the ancient valley floor" and its banks upstream of Swan Hill, which "built up by centuries of flood deposit, are several feet higher than the surrounding alluvial flats. In fact they 'command' the land, and the flood waters, when they rise over the banks spread quickly over a considerable area": p. 69. (at p328)

37. Difficulty in identifying what is the bank is not a problem in any way unique to the River Murray. In Dr. J. R. V. Prescott's work Boundaries and Frontiers (1978) the author describes the literature on positional boundary disputes as replete with examples of problems of geographical definitions. He instances the difficulties which may arise in "the identification of a geographical feature, such as the bank of a river": p. 113. His citation of the situation arising from the Anglo-German treaty of 1890, by which certain colonial boundaries in Africa were defined, is of particular interest in view of the attitudes adopted by the respective disputing nations. The treaty described the boundary between German South West Africa and South Africa as "the north bank" of the Orange River but "in some sections of the course of the Orange River it was difficult to be certain where the bank was located, especially in view of the fact that the flow exhibited wide seasonal fluctuations". This led to dispute, Germany insisting that the boundary was the fluctuating water-level on the the north bank. Britain, on the other hand, denied this since she regarded the concept of a fluctuating border "as intolerable and wanted a fixed line". The outbreak of war in 1914 put an end to negotiations and the question is said to be still unresolved: p. 114. (at p328)

38. So much for some of the practical difficulties involved in a resolution of the question of the Murray River boundary. This Court is neither a treaty-making body nor a boundaries commission, nor is it presently concerned with the resolution of such a dispute between States as that to which s. 75 (iv.) of the Constitution refers. Its present concern is with the interpretation of Imperial statutes of the middle of the last century as they bear on the present application for special leave, although in arriving at a decision it cannot be unaware of the broader consequences that that decision may entail, and which account for the intervention of the States of New South Wales and South Australia. Reference was made in the argument of the Solicitor-General for Victoria to the weight given to matters of convenience where the United States Supreme Court has been concerned with border adjudication. In South Australia v. Victoria, O'Connor J. (1911) 12 CLR, at pp 708-709 explained the special jurisdiction possessed by the United States Supreme Court in "controversies between the States", a jurisdiction which includes wide powers of settlement and adjudication and the determination of matters not of themselves justiciable, as well as matters justiciable. The approach of the United States Supreme Court in Howard v. Ingersoll (1851) 13 How 381 (14 Law Ed 189) and in Handly's Lessee v. Anthony (1820) 5 Wheat 374 (5 Law Ed 113) as well as in subsequent cases involving the determination of border questions between States, with its emphasis upon "public convenience and the avoidance of controversy" may be a product of experience of that jurisdiction. In its determination of the present case this Court would, I think, be transgressing the limits of its jurisdiction were it to have regard to present convenience in determining the location of the River Murray boundary. No doubt the gross inconvenience of a particular solution to the problem before the Court may suggest that it does not represent a proper reflection of legislative intent, but it is only in this way that I would regard convenience as a factor in the final decision. (at p329)

39. I turn now, and perhaps not before time, to the critical question: the effect of the Imperial Acts of 1850 and, especially, of 1855. It is, essentially, upon the meaning of the phrase "the whole Watercourse of the said River Murray" in s. v of the Act of 1855 that the decision in this case must turn. The word "Watercourse" is itself equivocal; it may, in an appropriate context, apply as aptly to the stream of water which is the river as it does to the contour feature on the land surface, being the channel which the flow of that stream of water has, over time, created and which forms the bed and banks within which the stream of water itself flows. The reported cases in this Court in which the meaning of watercourse has been considered, Gartner v. Kidman (1962) 108 CLR 12 and Knezovic v. Shire of Swan-Guildford (1968) 118 CLR 468 , were not concerned with the particular distinction which requires to be drawn in the present case. Although the general tenor of the judgments in those cases, as well as a number of the works of authority and earlier decisions to which those judgments refer, would strongly support the view that watercourse more usually refers to the contour feature rather than to the waters flowing in it, this is perhaps no more than a reflection of the subject-matter of the disputes with which the Court was there concerned. These decisions cannot be decisive of the outcome in the present case. (at p330)

40. However, although watercourse may mean either the stream of water or the contour feature of the land, it will, I think, but rarely bear the former meaning when used not as a substitute for the word river but, as in s. V in association with that word. The reason for this is clear enough. When used as a synonym for the stream of water, its use makes unnecessary further reference to the river. When further reference does occur, as when "the Watercourse of the river" is spoken of, I would understand the ordinary meaning of the phrase to involve reference not merely to the stream of water, for which purpose the words "the Watercourse of" would be superfluous, but to the contour feature forming the bed and banks of the river. The point may be made by reference to the main meanings assigned to "watercourse" in the Shorter Oxford English Dictionary. They are: 1. a stream of water, a river or brook; 2. the bed or channel of a river or stream. When watercourse bears the first of these meanings, it is a synonym for the stream of water, or river or brook; it is self-sufficient and needs no additional words to complete its meaning. When, on the other hand, it bears the second meaning the contrary is the case and a reference to a river or stream is necessary to complete the meaning. Thus, when watercourse is found standing not alone but in conjunction with "of the river", the ordinary meaning which it will convey will be that of the contour feature in which the river runs, and not the flowing water or river. (at p330)

41. In saying this I differ from the views of the Court of Criminal Appeal. I would not agree that, according to ordinary use of language "the watercourse of a river is that flowing water itself". No authorities which I have read suggest that to be so, although, as I have said, watercourse standing on its own may well refer to the flowing water. Likewise, I am unable to agree that in s. v, watercourse is used as a synonym for course, nor does reference to the second proviso in s. v persuade me to that view. (at p330)

42. In s. V "Watercourse" is preceded by the word "whole", thereby somewhat emphasizing the considerable width of meaning intended to be given to "Watercourse". However, I place no great weight on the use of "whole": it may have been intended to do no more than refute any suggestion that any part of the stream of water forming the river was excluded from the territory of New South Wales. (at p330)

43. On the other hand, the mode of expression adopted in the declaratory paragraph of s. V looked at in its entirety, is significant. The paragraph does not take up the task of better defining the boundary, instead it seeks to overcome previous doubts by describing the "Territory" which that boundary preserves to New South Wales, territory which, so it declares, "is and shall be" within New South Wales. These words of the declaratory paragraph suggest, I think, that it is an area of fixed and certain extent that is thus described as being included within New South Wales, an area having static, not fluid, boundaries. The words seem to be ill-chosen if intended either to describe only a stream of water, itself necessarily of variable width, or else to describe that stream of water and the earth from time to time covered by it. (at p331)

44. The opening words of the declaration rather support this view by speaking not of "the whole of the said River Murray" or of "the whole of the waters of the said River Murray" but of "the whole Watercourse of the said River Murray". I have already referred to the effect upon meaning resulting from the use of "Watercourse" and "River" in conjunction. Section 5 having earlier referred to the River Murray by name, the change of language involved in its subsequent reference to the "Watercourse" of that river suggests that something other than just the waters of the River are in question. The still later references in s.v to the "River Murray" and "the said River", are, I think, neutral in effect, no other words would have been appropriate in the context. (at p331)

45. These, then, are the indications of meaning which I extract from the declaratory provisions of s. V. The section concludes with two provisos. The first of these empowers the legislatures of the two colonies to impose, and enforce payment of, customs duties on Murray River traffic and to regulate the navigation of the river. It represents a partial carrying out of the proposals of the Law Officers of New South Wales contained in the concluding paragraphs of their advice. The second proviso is concerned with the manner of definition of "the Boundary Line" along the course of the river. The power conferred seems to be quite limited, being a power to define "in any different Manner", rather than to alter, "the Boundary Line of the said Two Colonies along the Course of the River Murray". Neither of these two provisos appears to me to throw any light one way or another upon the matter presently in controversy. (at p331)

46. Of great significance in the interpretation of s. V must be its reference to the doubts which were entertained and which the declaratory provision sought to dispose of. There can surely be few clearer examples of a proper case for the application of the mischief rule laid down in Heydon's Case (1584) 3 Co Rep 7a (76 ER 637) . The section itself informs that it was as to "the true Meaning of the said Description of the Boundary of the said Colony" that doubts were entertained and it must be to the history of the matter that one looks to learn the nature of those doubts. They appear to be mirrored in what I have already referred to as the initial uncertainty on the part of the New South Wales Executive Council concerning the status of the Murray and which prompted the obtaining of advice from the Law Officers of that colony. The Council were at first of the view that the river was "common to both" colonies but were advised that "the whole stream continues to form part of the Territory of New South Wales". It is clear that s. V resolved this particular doubt, settling the matter in conformity with the views expressed by the Law Officers. Those views, which were accepted by the Executive Council and which appear to have formed the basis upon which s. V was conceived, have already been referred to; however I should, I think, now set out in full the relevant portions of the Law Officers' advice. They read:

". . . the boundary which divided New South Wales from South Australia was established before the erection of Victoria into a separate Colony. It then ran across the Murray, so as to include within New South Wales, the entire Channel of that river to the Eastward of the 141st degree of East Longitude." "It is clear, therefore, that as between South Australia, on the one hand, and the two colonies of New South Wales and Victoria on the other, all goods brought along the course of the River from the Westward to the Eastward of that crossing place of that line must be liable to duty, and it is also clear that, but for and until the separation of Victoria those duties would have belonged to New South Wales." "The question then becomes, how does the separation of Victoria affect the question?"

"As the Colony of New South Wales originally included the whole Channel of the Murray to the Eastward of the 141st degree of East Longitude, and as the Act of 13 &14 Victoria, Cap 59, in erecting Victoria into a Separate Colony, makes the course of 'that river' the boundary of Victoria, without expressly giving to that colony any portion of the area forming its channel, we are much inclined to think that, in strictness of law, the whole of the stream continues to form part of the Territory of New South Wales. If this be so, there can be no question of the right of this Colony to demand duties of Customs at the point at which the South Australian Boundary crosses the river; though, with respect to Victoria, it would be doubtful whether such duties could be demanded anywhere, except at the place at which goods might be landed on the Victorian side of the river." (Emphasis added).

"Still there would be great inconvenience in the demand by this Colony of duties upon all such goods, because they would have to be returned in the shape of drawbacks upon such of the goods as were afterwards landed in, that is to say re-exported to Victoria."

"It appears, therefore, to be highly desirable that simultaneous Acts should be passed by the Legislatures of New South Wales and Victoria, for putting this matter upon a satisfactory footing." (J. H. Plunkett A.G.; W. M. Manning S.G.) (at p333)


47. The Law Officers were, of course, directing their attention first to the lawfulness of the exaction by New South Wales of customs duty on goods in transit up the Murray from South Australia and, secondly to the convenient administration of the customs laws. For those purposes it was of prime importance to establish beyond doubt that the waters of the Murray were indeed within the territory of the colony. This could, no doubt, have been achieved by confining the declaratory provision in s. V of the Act of 1855 to those waters, without any concern for territorial frontiers. But in fact s. V is drafted in terms of territory and its purpose it stated to be the removal of doubts as to the boundary between the States, that purpose being attained by a description of the territory retained by New South Wales after separation. To have confined the declaratory provision in s. v to the matter of sovereignty over the waters of the Murray would have left unresolved the question of the boundary between the States, unless indeed the southern margin of the waters of the Murray at any given time were also to be made to mark out that boundary. But such a boundary would not only fail to preserve to New South Wales "the whole channel of the Murray" except at times of high water, but would have the unique quality of constant variability, advancing and retreating as the waters rose and fell. (at p333)

48. That such a boundary was not within the contemplation of the Law Officers of New South Wales is clear from their advice. Not only did they regard the whole "channel" of the Murray as part of New South Wales but they appear to have regarded the territory of the new colony of Victoria as properly to be narrowly confined to that which was expressly given. They refer to "the whole channel of the Murray" to the eastward of 141 degrees E. longitude as having been originally included in New South Wales and lay stress upon the fact of the Act of 1850 not "expressly giving to that colony any portion of the area forming its channel". This being their process of reasoning, it is significant that not only was their advice forwarded by Governor-General Fitzroy to the Colonial Office on 20th December 1853 but that, when Lord John Russell forwarded the Act of 1855 to the Governor-General, he said, in his despatch of 20th July 1955, that "Section 5 has been introduced in pursuance of the opinion given by the Law Advisers of New South Wales, and communicated by Sir C. Fitzroy's despatch of 20th December, 1853, No. 160, and of the wishes of the Executive Council therein expressed". (at p334)

49. Quite apart from the particular views held by the Law Officers, it was, as s. v itself states, with "the boundary of the Colony" that Imperial legislation was to deal. Although it was the levying of customs duty on goods carried on the waters of the Murray that gave point to the boundary question, the resolution of the matter of the boundary in manner satisfactory to New South Wales called for a boundary which would ensure that at all times goods afloat were unquestionably within New South Wales. For any fixed boundary to achieve this result, it would necessarily have to be set at the top of the river's banks. (at p334)

50. The degree to which the views of those in government in New South Wales were adopted by the Colonial Office, thus influencing the form taken by s. V of the Imperial Act of 1855, may be contrasted with what appears to have been the absence of any advertence to the Murray River boundary in the course of the dealings of the Colonial Office with the colony of Victoria at this time. When Lieutenant-Governor La Trobe transmitted to the Colonial Office Victoria's Constitution Bill on 25th March 1854, together with a draft of what became 18 &19 Vict. c. 55, enabling Royal Assent to be given to the colony's Constitution, he spoke of that draft as "following the precedent of the sister colony": and so it did but, as already mentioned, with the significant exception that it contained no equivalent of s. v. Only in 18 &19 Vict. c. 54, which concerned the New South Wales Constitution, was the Murray River boundary defined. Accordingly, when Lord John Russell, following their enactment, forwarded the two measures, c. 54 and c. 55, each scheduling a new Constitution, to the respective colonies his despatch to the Victorian Governor, Sir Charles Hotham, made no reference whatever to the boundary question; and in a sense none was called for, since neither c. 55 nor Victoria's Constitution which it scheduled made any mention of it. Both at the Colonial Office and in the colonies the view seems to have been taken that it was New South Wales rather than Victoria which was primarily concerned with delineation of the Murray River boundary. (at p335)

51. This is unlikely to have been due to any Victorian sense of deference to the mother colony, a feeling which does not seem to have been a common characteristic of the Victoria of the time. It may have been due to the relative lack of interest felt in Victoria concerning the drafting of its new Constitution: as Geoffrey Serle notes in The Golden Age, A History of the Colony of Victoria 1851-1861 (1963), p. 146, "Separation had temporarily satisfied yearnings for self-government; there was less irritation with the Colonial Office than in Sydney; the golden turmoil preoccupied everyone. The contrast with New South Wales is striking." In Melbourne neither public meetings nor popular controversy accompanied its formulation, which was very largely left to the nominated members of the Council. This lack of interest in the terms of the new Constitution may have communicated itself to the associated issue of the River Murray boundary. This explanation gains support from G. D. Patterson's article "The New South Wales-Victorian Border: a Note on its Determination", Historical Studies, vol. 10 (1962), p. 214, encountered only after the initial preparation of this judgment. The author's account of events not only provides some independent confirmation of the version of historical context which I have attempted to describe, but also suggests, at p. 218, that, after the mid-1840s, concern in Victoria over the River Murray boundary "becomes drowned in the constitutional controversy and the general restiveness of Port Phillip over delays in bringing down legislation to effect separation". (at p335)

52. It is also possible that, at least in New South Wales and in London, the influence of the doctrine enunciated by Vattel and referred to by Marshall C.J. in Handly's Lessee v. Anthony (1820) 5 Wheat, at pp 379-380 (5 Law Ed, at p 114) may have played some part. Vattel said of a state which, being the original owner of the land on both sides of a river, ceded to another the land on one side only, that it was to be taken as retaining to itself the whole of the river, the other's territory extending only to the river. Certainly the spirit of this doctrine seems to have animated the Law Officers of New South Wales, despite the fact that the creation of the colony of Victoria had been the result of the exercise of Imperial power and was not at all the act of the colony of New South Wales. It is noteworthy that a few years later, when the Pental Island Dispute, which involved questions of the Murray River boundary, was before the Privy Council in 1872, this doctrine expounded by Vattel featured among the arguments unsuccessfully urged by counsel for New South Wales in pressing its claim to that Murray River island. (at p336)

53. Again, what Patterson describes, loc. cit., p. 221, as the powerful influence which the relatively large group of well-established and well-connected settlers in the Sydney District were able to exercise upon Colonial Office policy in the 1840s, may have remained efficacious in the 1850s to attain for New South Wales the result it sought concerning the River Murray boundary. Perhaps each of these factors played some part in the final outcome. (at p336)

54. My conclusions concerning s. 5 are, then, that it is expressed in language which refers not to the flowing waters of the Murray but, rather, to the contour feature within which those waters flow: that, although it was the product of problems relating to the collection of customs duty on Murray River traffic, it is expressed to be, and takes the form of, a measure for defining territorial boundaries: that in taking this form it gives effect to the proposals of its initiators in New South Wales: that, on its proper construction, it declares the whole of the contour feature, to the top of the southern bank, to be the territory of New South Wales. It follows that the boundary line between the States runs along the top of the southern bank of the Murray, all territory to the north being within New South Wales. In referring to the "bank" of the river I adopt the description given in Howard v. Ingersoll (1851) 13 How, at p 427 (14 Law Ed 209) : "the banks of a river are those elevations of land which confine the waters when they rise out of the bed". In Jones v. Mersey River Board (1958) 1 QB 143 , Jenkins L.J., after citing with approval this passage from Howard v. Ingersoll (1958) 1 QB, at p 151 , pointed out that the identification of the "bank" at any particular point along a river "must be a question very largely of fact to be decided in each particular case by reference to the size and habits of the river, the geological composition of the land, and the level of the land as compared with the river, and no doubt, other circumstances of that kind". The relevant topography at the site of the shooting in the present case leaves no room for doubt: the bank is well defined and its top can be instantly recognized. His Lordship, having regard to the statutory context there in question, would have included in "banks" rather more than "the slope or vertical face" which confines the waters when they rise out of the bed, extending its meaning to land adjoining the river (1958) 1 QB, at pp 152-153 . However in the present case it will be along the top or upper edge of "the slope or vertical face" of the southern bank that the boundary between the States is to be found. (at p337)

55. Much of the reasoning which accounts for the difference between the conclusion at which I have arrived and that expressed in the judgment of the Victorian Court of Criminal Appeal will already have emerged. However, in deference to their Honours' detailed consideration of the matter, I add the following remarks. (at p337)

56. Two considerations are perhaps central to their Honours' view of the matter: the meaning they give to "Watercourse" in s. v and the significance they attach to the problem of the collection of customs duty on goods carried up the Murray from South Australia. As to the former, what I have already said sufficiently states my reasons for differing from their Honours' view that "watercourse" means no more than the stream of water from time to time. As to the latter there exists, I think, a degree of common ground: thus I agree that it was the problem of customs duties which led to the enactment of s. V. It is rather concerning the way in which that problem is seen to have been resolved in 1855 that I part company with their Honours. For the reasons given above I have concluded that, so as to ensure that the waters of the Murray lay always within New South Wales, the boundary line of that colony's territory was drawn along the top of the southern bank of the river. (at p337)

57. Their Honours cite a number of authorities as recognizing the concept which they adopt, that of the fluctuating water-line from time to time along the southern bank of the Murray, as forming the boundary. In my view these authorities, Scratton v. Brown (1825) 4 B &C 485 (107 ER 1140) , Smart &Co. v. Town Board of Suva (1893) AC 301 , Verrall v. Nott (1939) 39 SR (NSW) 89 and, in particular, the decision of this Court in Williams v. Booth (1910) 10 CLR 341 , lend no support to such a concept. Each is concerned only with the application of the doctrines of accretion and erosion and hence with those gradual and imperceptible changes which, over time, may occur in boundaries marked by the margins of rivers or of the sea. Only in that quite different sense do they relate to changes in boundaries occurring as a result of changes in the position of the water's edge. They provide no precedent for what, in Howard v. Ingersoll (1851) 13 How, at p 423 (14 Law Ed, at p 207) , Nelson J., in rejecting the concept, described as a boundary "left to vibrate" between extremes of water-level. (at p337)

58. These doctrines of accretion and erosion are not, of course, irrelevant to the problems of the Murray River boundary. Where substantial evidence exists of changes having taken place in the river's southern bank since the 1850s they may become of critical importance, as they often have in the case of international boundary disputes and of boundary disputes between States in the United States of America - see generally Bouchez' article, loc. cit., pp. 799-812, and W. Clayton Carpenter's "The Red River Boundary Dispute" American Journal of International Law, vol. 19 (1925), p. 517. In the present case there is no evidence of avulsion, that is of sudden change, in the southern bank of the river where the shooting occurred. There is some suggestion of gradual erosion of the bank, exposed tree roots being apparent in photographs and being the subject of some evidence at the trial. There is no occasion to give to the words of the Act of 1855 a meaning, seldom encountered in the literature of river boundaries (see Bouchez, loc. cit., p. 801, Jones, p. 122), which would locate it forever where it happened to lie at some date in 1855. Indeed, it would clearly be wrong to attribute any such intention to the legislature in the case of a river then barely explored and wholly unsurveyed. The better view must be that, at least in the case of processes of gradual erosion or accretion, the common situation will prevail and, as the bank changes, so will the boundary line which it marks. (at p338)

59. Their Honours stress the convenience of the solution which they favour. The view I take both of the words of s. v and of the historical context compels me to another, possibly less convenient, conclusion. However the balance of convenience is scarcely all one way. As Mr. Kelly pointed out in argument on behalf of the applicant, there can be few situations more inconvenient for those erecting jetties, wharves or other structures at the water's edge on the southern shore of the river than to find that the laws applicable to part at least of their structure, and no doubt also the industrial laws relating to its construction, change with every rise and fall of the river. Moreover, the apparent inconvenience occasioned by the existence, except at times of high water, of a strip of New South Wales territory along the southern bank of the Murray may seem less acute when it is recalled that it is not title boundaries or the ownership of land but matters of jurisdiction, both curial and legislative, that are here in question. It must only be in rare cases that it will be of any practical importance which State's writ runs. At least wherever the Murray's southern bank resembles the particular stretch of bank where this shooting took place, the strip of land involved would seem of no economic value. Nor would its inclusion in New South Wales have affected questions of customs or navigation on the Murray before federation: the first proviso in s. v preserved to Victoria legislative power over these subject-matters. As to riparian rights and the use and control of water, the stormy history of conflicting colonial interests described by Professor Clark in his articles on "The River Murray Question" in the Melbourne University Law Review, vol. 8 (1971), seem in the outcome to have been unaffected by the question of where precisely along the river bank Victoria's border should be drawn. In relation to the use and control of the waters of the river, the operations of the River Murray Commission have long since deprived the question of practical significance. (at p339)

60. Unlike the Court of Criminal Appeal, I have found little assistance in the transcript of argument in the Pental Island Dispute. The nature of those proceedings, characterized by the absence of any reasons for judgment, in any event much reduce their utility and if, as Professor W. Harrison Moore suggests in his article in the Law Quarterly Review, vol. 20 (1904), 236, at p. 243, their Lordships' decision turned upon the fact that in 1842 the stream of water to the south of Pental Island, then not fully explored, was not known to be continuous, the outcome of the dispute provides little guidance in the present case. (at p339)

61. I would allow the appeal. (at p339)

MASON J. I would allow this appeal and I would do so for the reasons given by Stephen J., subject to one qualification. The qualification is that, in common with the Chief Justice and Murphy J., I would be disposed to place more weight on the significance of the words "the whole watercourse" and considerations of convenience and less weight on the guidance to be derived from historical considerations. But this is a relatively minor consideration and it in no way detracts from the strength of the conclusion reached by Stephen J. on the location of the boundary between New South Wales and Victoria as it relates to the circumstances of this case. (at p339)

MURPHY J. The appellant, while standing on the top of the southern bank of the Murray River, shot and killed the deceased. He was convicted of murder in the Supreme Court of Victoria after trial by jury. His appeal to the Full Court of the Supreme Court was dismissed (1980) VR 209 . His appeal by special leave relies on one ground: that, although he was in Victoria at the time he shot the deceased, the deceased was wholly within New South Wales. The State of Victoria conceded that, if this were so, the conviction could not stand (see Reg. v. Keyn (1876) 2 Ex D 63, at pp 102-103 ; R. v. Coombes (1785) 1 Leach's Crown Cases 388 (168 ER 296) ; R. v. Waugh (1909) VLR 379 ; Glanville Williams, "Venue and the Ambit of Criminal Law", Law Quarterly Review, vol. 81 (1965), p. 518). If the appellant is correct, he would be liable to trial for murder in New South Wales. However, the appeal is not a mere academic exercise; if he were tried in New South Wales it would be open to him to raise a defence of diminished responsibility which reduces the crime from murder to manslaughter. This defence is not available in Victoria. (at p340)

2. It was common ground between the appellant and respondent and the State of New South Wales, intervening, that the boundary between New South Wales and Victoria was fixed by the 1855 Imperial Act, 18 &19 Vict., c. 54, entitled "An Act to enable Her Majesty to assent to a Bill, as amended, of the Legislature of New South Wales to confer a Constitution on New South Wales and to grant a Civil List to Her Majesty". Section V of that Act provides: ". . . That the whole Watercourse of the said Rivery Murray, from its Source . . . to the Eastern Boundary of the Colony of South Australia, is and shall be within the Territory of New South Wales: . . ." (at p340)

3. In determining the boundary at the place where the killing occurred, the critical words are "the whole Watercourse". New South Wales contended that "Watercourse" means the area between the top of the bank on each side of the river; Victoria conceded that "Watercourse" was reasonably capable of that meaning. Victoria claimed, however, that the watercourse could also mean the space between the two sides of the water and contended that this meaning should be preferred because it would be inconvenient if New South Wales had a strip of territory, that is, the bank above the water on the southern side of the river. (at p340)

4. However, even if the southern side of the river is taken as the boundary, as Victoria contends, New South Wales would have territory (half the river bed) on the southern side of the midline. The amount of such territory would depend on the height of the river and whatever boundary is fixed, there will be inconveniences relating to application of laws for construction and operation of wharves and other structures. This was recognized in s. v of the 1855 Act. (at p340)

5. If "Watercourse" has, as Victoria contended, two meanings, one, a lesser space and the other a larger space or, in a sense, one a larger, the other a lesser watercourse, the effect of the word, "whole", suggests that the larger concept is intended. The meaning advanced by Victoria would substitute "water" for "Watercourse" as the boundary criterion. There is force in the suggestion that the 1855 Act intended to fix the boundaries at that time, that is, they were to remain irrespective of changes in the course of the river or of the banks. Apparently there are no surveys as at 1855. The sensible course might be, in the absence of evidence on where the edge of the watercourse was in 1855, to apply the presumption (of continuance) that the boundary as it is now was the boundary in 1855, thus fixing a permanent boundary. (at p341)

6. The boundary is along the top of the southern bank of the river. The place where the deceased was killed was below the top of the clearly carved out bank, so that he was in New South Wales when he was killed. The directions to the jury were incorrect. The appeal should be allowed and the conviction quashed. (at p341)

AICKIN J. I have had the advantage of reading the reasons for judgment of my brother Stephen. I agree with his reasons and have nothing to add. (at p341)

WILSON J. I have had the advantage of reading the interesting and detailed reasons for judgment prepared by Stephen J. I agree entirely with his conclusion and the reasoning in support of it and have nothing to add. (at p341)

2. I would therefore allow the appeal. (at p341)

Orders

Appeal allowed. Conviction set aside for want of jurisdiction.