Lipohar v The Queen

High Court of Australia|1999-12-09|Before: Gleeson CJ, Callinan JJ, Lander J, Bleby JJ

High Court of Australia Gleeson CJ Gaudron, Gummow, Kirby, Hayne and Callinan JJ Lipohar v The Queen (A14/1999) [1999] HCA 65

These appeals raise questions concerning the operation, within the Australian Federation, of common law principles of territoriality in relation to the crime of conspiracy to defraud.

The appellants, one a resident of Queensland, and the other a resident of Victoria, were tried before Lander J, sitting without a jury, in the Supreme Court of South Australia, on a charge of conspiracy to defraud. They were convicted and sentenced to terms of imprisonment. At the commencement of the trial, Lander J considered and rejected an application to quash the indictment, or to grant a permanent stay of proceedings, upon the grounds that the alleged conduct of the appellants, even if it occurred, did not constitute an offence against the law of South Australia, and that the issue raised by the indictment was not justiciable in South Australia [1] . The appellants appealed against their convictions, raising the same arguments as had been rejected by Lander J. Their appeals were dismissed by the Court of Criminal Appeal (Millhouse, Perry and Bleby JJ) [2] .

R v Winfield, Chandler & Lipohar (1995) 65 SASR 121. 2. R v Winfield & Lipohar (1997) 70 SASR 300.

The relevant count in the indictment commenced as follows:

Conspiracy to Defraud. (Common Law and Section 270(2) of the Criminal Law Consolidation Act, 1935).

There followed certain particulars of the offence.

In South Australia, conspiracy to defraud is a common law offence. The penalty for the offence is prescribed by s 270(2) of the Criminal Law Consolidation Act 1935 SA (the Act) which, so far as material, provides:

Any person convicted of any of the following common law offences, that is to say, any conspiracy to cheat or defraud shall be liable to be imprisoned for a term not exceeding seven years.

The appellants were sentenced pursuant to that provision.

In brief, the appellants were tried in a South Australian court, convicted of a common law offence, and sentenced under a South Australian statute, in relation to conduct which, they contend, did not constitute an offence that was punishable under the law of the forum. It is that contention which is central to the present appeal.

The particulars in the indictment identified the intended victim of the conspiracy as Collins Street Properties Pty Ltd (the company). The company was incorporated in South Australia, where it had its registered office. Its principal executive officer, the joint secretaries, and four of the six directors, resided in South Australia. It was a wholly owned subsidiary of SGIC Pty Ltd, another South Australian company. SGIC Pty Ltd was, in turn, a wholly owned subsidiary of a South Australian body corporate, the State Government Insurance Commission (SGIC), which was under the control and direction of the South Australian government. The company's central control and management was located in South Australia. In relation to the transaction in question, it was advised by Adelaide solicitors. It was in South Australia that the decision to make the payment which was the commercial objective of the intended fraud would need to be taken.

The company owned an office building in Melbourne, Victoria, and was looking for tenants. The letting agents for the building were in Melbourne. At the relevant time, it was common practice for owners of commercial premises to offer substantial inducement payments in order to attract suitable tenants to occupy their buildings [3] .

See Federal Commissioner of Taxation v Montgomery (1999) 198 CLR 639.

The appellants and others devised a fraudulent scheme, the object of which was to induce the company to make a large incentive payment to a sham tenant. The scheme involved activity, or supposed activity, in Indonesia, Thailand, Queensland, Victoria, and, in respects that will appear, South Australia. The appellants and others agreed to form a Queensland company which was represented to be associated with an Indonesian company. They negotiated with the letting agents of the company for a lease of part of the Collins Street premises, seeking to obtain a cash incentive ultimately agreed at $6.5 million. They were made aware that any such payment would require the approval of the SGIC Board in Adelaide. They were required to provide security for the obligations of the proposed lessee. They falsely represented that the Krung Thai Bank would provide such security in the form of a promissory note. (In truth the bank had no knowledge of the transaction.) There was a meeting in Brisbane between representatives of the SGIC and the conspirators to discuss the proposed security. Following that meeting, a document was sent by facsimile transmission from Thailand to the office of the company's solicitors in Adelaide. The document, which was a sham, purported to confirm that the bank would provide a promissory note, in a certain form, as security for the tenant's obligations under the lease. Clearly, this was for the purpose of procuring advice to be given, in Adelaide, to the SGIC Board, and a decision to be made, in Adelaide, approving the lease incentive payment. The circumstance that the facsimile was sent to Adelaide was no mere accidental, or incidental, feature of the events. It reflected a fact which is of more fundamental importance. The central control and management of the intended corporate victim of the fraud was in South Australia, and it was there that the decisions necessary for the effectuation of the fraud were to be taken.

The conspiracy went no further. Some people involved in dealings with the bank were arrested, and, when news of that came out, the negotiations for the lease and the incentive payment were terminated. Subsequently the South Australian authorities prosecuted the appellants.

Lord Diplock, in Director of Public Prosecutions v Bhagwan [4] , said of the role of criminal conspiracy in the common law:

The least systematic, the most irrational branch of English penal law, it still rests upon the legal fiction that the offence lies not in the overt acts themselves which are injurious to the common weal but in an inferred anterior agreement to commit them. 1. [1972] AC 60 at 79.

As has been pointed out by other judges, however, there may be very good reasons why the law would wish to punish people who make some agreements without waiting for the agreements to be performed [5] .

eg, Liangsiriprasert v United States [1991] 1 AC 225.

The elements of a common law conspiracy to defraud were considered in Peters v The Queen [6] , where McHugh J said [7] that, in most cases, a conspiracy to defraud arises when two or more persons agree to use dishonest means with the intention of obtaining, making use of or prejudicing another person's economic right or interest, or inducing another person to act or refrain from acting to his or her economic detriment. To that proposition, in its application to the present case, there should be added a significant rider. The fact that an offence of conspiracy is complete does not mean that it has come to an end [8] . Parties can join, or leave, a conspiracy after it has been formed, and acts done in furtherance of a conspiracy will constitute continuing performance, as well as evidence, of the unlawful agreement. An agreement formed in one territorial area may be aimed at people in another area or other areas, or may reach into such other area or areas in the course of its performance. It is this aspect of criminal conspiracy that has made it difficult to relate to the theory of territoriality which has had so much influence upon common law rules concerning the administration of criminal justice.

(1998) 192 CLR 493. 2. Peters (1998) 192 CLR 493 at 525. 3. Director of Public Prosecutions v Doot [1973] AC 807 at 827, per Lord Pearson.

Lord Halsbury's famous, and dogmatic, assertions that "(a)ll crime is local", and that jurisdiction over a crime belongs to the country where the crime was committed [9] , were made in a case about the reach of a statute enacted by a colonial legislature, but they reflected the territorial focus of the common law of crime, and they embodied a presumption of the common law which applied to the interpretation of statutes of all parliaments, including the parliament of the United Kingdom, whether or not their legislative competence was limited territorially. Considerations of international comity were influential in the development of this focus. Dixon CJ pointed this out in R v Foster; Ex parte Eastern and Australian Steamship Co Ltd [10] :

It does not follow from the adoption of the Statute of Westminster that Commonwealth legislation should be construed as if there were no territorial considerations affecting its interpretation. Indeed it may be fairly said that when the consequence of invalidity is removed from extra-territorial legislation it becomes more important to give effect to the presumption governing the interpretation of English legislation. That is a presumption which assumes that the legislature is expressing itself only with respect to things which internationally considered are subject to its own sovereign powers. [11] 1. Macleod v Attorney-General (NSW) [1891] AC 455 at 458. 2. (1959) 103 CLR 256 at 275. 3. See also Jumbunna Coal Mine, NL v Victorian Coal Miners' Association (1908) 6 CLR 309 at 363, per O'Connor J.

In Treacy v Director of Public Prosecutions [12] Lord Reid said:

It has been recognised from time immemorial that there is a strong presumption that when Parliament, in an Act applying to England, creates an offence by making certain acts punishable it does not intend this to apply to any act done by anyone in any country other than England. 1. [1971] AC 537 at 551.

One aspect of this territorial focus was the idea that most crimes have but a single location which, once established, is relevant both to the question of the jurisdiction of a court to deal with an alleged offender, and the different, although usually related, question whether the conduct of the offender violated the law of the forum in which the offender is tried [13] . The techniques adopted by common law courts to determine that location have been criticised as artificial, and lacking coherent principle [14] , but they were developed as a response to problems of practical necessity, and considerations of pragmatism were probably more influential than a desire for theoretical symmetry. An example of such practical necessity is Ward v The Queen [15] . In that case a decision as to whether the unlawful homicide of a person, fatally shot whilst standing near the bank of the Murray River, occurred in New South Wales or Victoria, determined the availability of a defence of diminished responsibility, with the potential to reduce the offence from murder to manslaughter. Judgments of that kind may often appear to turn upon fine, and even artificial, distinctions, but in the administration of practical justice they are inescapable. It was the fact that New South Wales and Victoria had different laws about homicide, (a commonplace example of federalism at work), that made a territorial decision necessary.

Thompson v The Queen (1989) 169 CLR 1. 2. eg, Goode, "The Tortured Tale of Criminal Jurisdiction", Melbourne University Law Review, vol 21 (1997) 411. 3. (1980) 142 CLR 308.

Where a crime is created by statute, which normally describes the crime without making any particular reference to territorial locality, and where the nature of the crime is such that elements may occur in a number of territories, the resolution of questions of jurisdiction and justiciability may involve both questions of statutory construction, and the application of common law principles according to which courts decide where, out of a number of competing possibilities, a crime has been committed. An example is provided by the common law rule by which courts in England, and Australia, decide where the statutory offence of obtaining property by false pretences has been committed [16] . According to the preponderance of authority, the offence is committed in the place where the property is obtained, which may be different from the place or places where the deception occurred. Discussion of the rule usually proceeds upon the assumption that the offence is committed in only one place. That assumption is not a logical necessity, and whether it should be revised is a question that may be addressed in some future case.

eg, R v Manning [1999] QB 980; R v Kron (1995) 78 A Crim R 474.

The last mentioned assumption would be inconsistent with a rule, of common law or statute, to the effect that, in the case of a crime consisting of multiple elements, an offence was committed wherever one of those elements occurred, or a rule to the effect that the offence would be taken to be committed in any territorial area where there is a real and substantial link between the offence and the territory. When the Supreme Court of Canada, in Libman v The Queen [17] , decided to adopt the latter rule for Canada, involved in that decision was an abandonment of the objective of finding a single situs of a crime [18] .

[1985] 2 SCR 178. 2. Libman [1985] 2 SCR 178 at 198-199.

In South Australia, as in a number of Australian States, there is now legislation which, in cases to which it applies, involves a similar abandonment. Section 5C of the Act provides, without derogating from any other basis on which the courts of the State may exercise criminal jurisdiction, that an offence against the law of the State is committed if all elements necessary to constitute the offence (disregarding territorial considerations) exist and a territorial nexus exists between the State and at least one element of the offence. The respondent did not place primary reliance on that section, probably for the reason given by Lord Diplock in the passage from R v Bhagwan quoted above. Technically, the elements of the offence of conspiracy occurred outside South Australia, and it is at least doubtful that there was a territorial nexus between an element of the offence and the State. There was a subsidiary argument based on the section but, as will appear, I find it unnecessary to deal with that argument. The point of referring to the existence of s 5C is that, like its counterparts in other Australian jurisdictions, it represents a legislative departure from the theory that crimes generally have a single situs.

The courts of England have declined to make such a substantial alteration to the common law [19] , and to do so in Australia would involve overturning established authority in this country, of the kind applied by this Court in Thompson v The Queen [20] and Ward v The Queen [21] . It would also involve disturbing the common law background to legislation such as s 5C of the Act. The general common law requirement of a single situs has never been absolute, and there is no reason, either in principle or in practical necessity, why it should be. Conduct which occurs within a single territory may well offend a number of laws of that territory. As the case of Brownlie v State Pollution Control Commission [22] illustrates, conduct which occurs in one Australian State may well be affected by the laws of that State and another State as well. There is nothing new about trans-jurisdictional activity giving rise to potential breaches of the laws of a number of territories. As La Forest J pointed out in Libman, developments in communication by post and telegraph more than a century ago gave rise to such problems [23] .

eg, Board of Trade v Owen [1957] AC 602; Treacy v Director of Public Prosecutions [1971] AC 537. 2. (1989) 169 CLR 1. 3. (1980) 142 CLR 308. 4. (1992) 27 NSWLR 78. 5. Libman [1985] 2 SCR 178 at 213-214.

The implications of attempts to regulate the activities of trans-jurisdictional combinations or conspiracies, including considerations of international comity, have been explored in cases arising out of antitrust legislation. There is a discussion of such issues, in the context of the interpretation of the Australian Industries Preservation Act 1906 Cth, in Meyer Heine Pty Ltd v China Navigation Co Ltd [24] . That case provides an example of the extra-territorial reach of a penal statute, aimed at combinations, being affected by issues relating to international comity which were obviously taken into account by the legislature.

The common law offence of conspiracy which, by its nature, is capable of having trans-jurisdictional operation and effect, has not been subjected to a rigid, single-situs, rule of territoriality. Before examining the leading authorities on that subject, however, it is necessary to advert to an issue which arose in argument concerning the significance of this being a common law offence.

This Court, in Lange v Australian Broadcasting Corporation [25] , said that "there is but one common law" in Australia, and explained what was meant by that, contrasting the position in the United States. That common law, however, recognises the States as separate jurisdictions, or law areas, where to do so is appropriate in the application of common law principles. Decisions such as Breavington v Godleman [26] and McKain v R W Miller & Co (SA) Pty Ltd [27] illustrate this.

(1997) 189 CLR 520 at 563. 2. (1988) 169 CLR 41. 3. (1991) 174 CLR 1.

When this Court, in Ward, and Thompson, set about resolving issues relevant to the situs of homicide, it did so pursuant to what Deane J, in the latter case, referred to as "a general thesis of the common law and an incident of the doctrine of sovereignty under international law that crime is essentially local or domestic" [28] . In the former case they treated Victoria and New South Wales as relevantly separate territories. In the latter case the relevant territories were New South Wales and the Australian Capital Territory. No question of sovereignty under international law, or of international comity, arose as between those territories. Nevertheless, the assumption was that, for purposes of applying a common law principle concerning the reach of criminal laws, although part of the Australian Federation, they were distinct. The implications, constitutional and otherwise, of treating the States as separate law areas for various purposes associated with penal laws have not yet been fully explored. As has been observed [29] , a case such as Brownlie illustrates some of the issues that may need to be resolved.

Thompson v The Queen (1989) 169 CLR 1 at 33. 2. Leeming, "Resolving Conflicts between State Criminal Laws", Australian Bar Review, vol 12 (1994) 107.

What is involved in the present case is not only the application of the common law. The punishment to which the appellants were subjected was prescribed by a South Australian statute. The Act, in s 270(2), establishes a penalty for the common law offence of conspiracy to defraud. Plainly there are territorial limitations upon the operation of that provision. Does it apply to a conspiracy to defraud, entered into and carried out in England, having no connection of any kind with South Australia? Surely not. Does it apply to a conspiracy to defraud, entered into and carried out in Tasmania, having no connection of any kind with South Australia? I would give a negative answer, for substantially the same reasons, which are to be found in the common law principles earlier discussed. The premise that there is but one common law in Australia, not fragmented between different States, does not require or justify the conclusion that, when a South Australian Act refers to a common law offence, it is referring to conduct occurring anywhere in Australia regardless of any connection with South Australia. If it were otherwise, in its operation within the Australian Federation, the scope of s 5C of the Act would be narrower than that of s 270(2).

The issue whether the conduct of the appellants constituted an offence punishable according to the law of South Australia raises questions both as to the common law principles concerning the required nexus between conduct and territory for the offence of conspiracy to defraud, and as to the meaning of s 270(2) of the Act. Both questions should be given the same answer.

This question should be approached without any preconception that, in the case of the crime of conspiracy, there is a requirement of the common law, or a principle of statutory construction, that there can be only a single situs.

Conspiracies to export drugs from one jurisdiction to another have provided cases in which courts have had to address this issue [30] .

In Director of Public Prosecutions v Doot [31] , Lord Wilberforce said:

In the search for a principle, the requirement of territoriality does not, in itself, provide an answer. To many simple situations, where all relevant elements occur in this country, or, conversely, occur abroad, it may do so. But there are many "crimes" (I use the word without prejudice at this stage) the elements of which cannot be so simply located. They may originate in one country, be continued in another, produce effects in a third. 1. [1973] AC 807 at 817.

In that case the House of Lords upheld convictions of conspiracy to import drugs into England even though the conspiracy had been entered into, and the offence was in that sense complete, elsewhere. By hypothesis, a crime had been committed outside England, but the conspiracy was a continuing offence, and continued into England.

In my opinion, the key to a decision for or against the offence charged can be found in an answer to the question why the common law treats certain actions as crimes. And one answer must certainly be because the actions in question are a threat to the Queen's peace, or, as we would now perhaps say, to society Conspiracies are intended to be carried into effect, and one reason why, in addition to individual prosecution of each participant, conspiracy charges are brought is because criminal action organised, and executed, in concert is more dangerous than an individual breach of the law. Why, then, refrain from prosecution where the relevant concert was, initially, formed outside the United Kingdom? 1. Director of Public Prosecutions v Doot [1973] AC 807 at 817-818.

Lord Pearson said [33] that the fact that the offence of conspiracy is complete when agreement is reached does not mean that it is finished, and that a conspiracy to commit a crime in England ought to be triable there if it has been wholly or partly performed there. That was sufficient to dispose of that case.

Director of Public Prosecutions v Doot [1973] AC 807 at 827.

In Liangsiriprasert v United States [34] Lord Griffiths, speaking for the Judicial Committee of the Privy Council, went further. His Lordship said [35] :

Unfortunately in this century crime has ceased to be largely local in origin and effect. Crime is now established on an international scale and the common law must face this new reality. Their Lordships can find nothing in precedent, comity or good sense that should inhibit the common law from regarding as justiciable in England inchoate crimes committed abroad which are intended to result in the commission of criminal offences in England. Accordingly a conspiracy entered into in Thailand with the intention of committing the criminal offence of trafficking in drugs in Hong Kong is justiciable in Hong Kong even if no overt act pursuant to the conspiracy has yet occurred in Hong Kong. 1. [1991] 1 AC 225. 2. Liangsiriprasert [1991] 1 AC 225 at 251.

I respectfully agree with that proposition which was also accepted by the English Court of Appeal in R v Manning [36] .

As the facts of the present case show, a conspiracy to defraud, unlike a conspiracy to go into another territory and there commit a discrete crime, such as robbing a bank, or supplying prohibited drugs, may involve an agreement to engage in conduct where the dishonesty is practised by trans-jurisdictional communications, and where the inducement of another person to act to his or her economic detriment operates across jurisdictional boundaries.

Trans-jurisdictional commerce and intercourse, whether within the Australian Federation or international, is now accomplished with such speed and facility, that for many purposes jurisdictional boundaries are irrelevant. They remain relevant for purposes of criminal law, but there is every reason to apply the law in a manner which accommodates the reality, especially in relation to transactions occurring within the Federation, where considerations of international comity do not inhibit such accommodation [37] .

cf Treacy v Director of Public Prosecutions [1971] AC 537 at 564.

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.

I see no material difference between a conspiracy, entered into in Queensland, to bring prohibited drugs into South Australia, and a conspiracy, entered into in Queensland, to perpetrate a fraud which, by reason of the objective circumstances, involves practising a deception upon people in South Australia with a view to their acting, in South Australia, to their detriment. The conspiracy to defraud was of such a nature that its implementation involved deceiving people in South Australia, and inducing them to act to their detriment. It was, for that reason, punishable according to the law of that State.

Index paragraphs I Introduction 41 The common law 43 The proceedings in South Australia 60 II The Issues 65 III The Supreme Court of South Australia 75 IV "Jurisdiction", "Venue" and "Crime is Local" 78 V Statute and Criminal Law 94 VI The Doctrine of Comity Within Australia 99 VII Crime and Private International Law 104 VIII The Facts 109 IX Conclusion 111

These appeals are brought from the decision of the Supreme Court of South Australia sitting as the Court of Criminal Appeal (Millhouse, Perry and Bleby JJ) [38] which dismissed the appeals by the present appellants against a decision of the Supreme Court (Lander J) [39] . His Honour had dismissed the applications by the present appellants and a third accused to quash and stay proceedings on an information which materially charged them with conspiracy to defraud.

R v Winfield & Lipohar (1997) 70 SASR 300. 2. R v Winfield, Chandler & Lipohar (1995) 65 SASR 121.

In South Australia this remains a common law offence. Its elements were propounded by this Court in Peters v The Queen [40] . In the Court of Criminal Appeal, Perry J observed [41] :

Conspiracy is an agreement to do an unlawful act, or a lawful act by unlawful means. The agreement itself constitutes the offence [42] . The peculiar characteristics of the crime of conspiracy are apt to bring the problems associated with the territorial aspects of the crime into sharp focus. The Criminal Law Consolidation Act 1935 SA (the Criminal Law Act) was engaged with respect not to the specification of the offence but to punishment. Section 270(2) provides a penalty of imprisonment for a term not exceeding seven years upon conviction of any conspiracy to cheat or to defraud. 1. (1998) 192 CLR 493. 2. R v Winfield & Lipohar (1997) 70 SASR 300 at 314. 3. Mulcahy v The Queen (1868) LR 3 HL 306 at 317.

To say, as it was put in some of the submissions, that the offences in question were offences "against the law of South Australia" is to conceal the true position and to provide a false starting point for analysis. The starting point is that indicated by McHugh J in Kable v Director of Public Prosecutions (NSW) [43] , where his Honour said:

Unlike the United States of America where there is a common law of each State, Australia has a unified common law which applies in each State but is not itself the creature of any State [44] . Perhaps the validity of that proposition is not as readily apparent to a State judge bound by the authority of his or her own Full Court or Court of Appeal as it is to a judge of a federal court who must apply the common law. His Honour added [45] : [T]hat there is a common law of Australia as opposed to a common law of individual States is clear. 1. (1996) 189 CLR 51 at 112. See also the judgment of the Court in Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 562-566. 2. Mabo v Queensland [No 2] (1992) 175 CLR 1 at 15; Environment Protection Authority v Caltex Refining Co Pty Ltd (1993) 178 CLR 477 at 556. 3. Kable (1996) 189 CLR 51 at 113.

The common law has its source in the reasons for decisions of the courts which are reasons arrived at according to well recognised and long established judicial methods. It is a body of law created and defined by the courts. Whatever may once have been the case in England [46] the doctrine of precedent is now central to any understanding of the common law in Australia. To assert that there is more than one common law in Australia or that there is a common law of individual States is to ignore the central place which precedent has in both understanding the common law and explaining its basis.

Simpson, "The Common Law and Legal Theory", Oxford Essays in Jurisprudence, 2nd series (1973) 77, at pp 77-78 .

This Court is placed by s 73 of the Constitution at the apex of a judicial hierarchy to give decisions upon the common law which are binding on all courts, federal, State and territorial. Different intermediate appellate courts within that hierarchy may give inconsistent rulings upon questions of common law. This disagreement will indicate that not all of these courts will have correctly applied or declared the common law. But it does not follow that there are as many bodies of common law as there are intermediate courts of appeal. The situation which arises is not materially different to that which arises where trial judges in different courts or within the same court reach different conclusions on the same point of law.

The ultimate foundation of precedent which binds any court to statements of principle is, as Barwick CJ put it [47] , "that a court or tribunal higher in the hierarchy of the same juristic system, and thus able to reverse the lower court's judgment, has laid down that principle as part of the relevant law". Until the High Court rules on the matter, the doctrines of precedent which bind the respective courts at various levels below it in the hierarchy will provide a rule for decision. But that does not dictate the conclusion that until there is a decision of the High Court the common law of Australia does not exist, any more than before 1873 it would have been true to say that there was not one English common law on a point because the Court of King's Bench had differed from the Court of Common Pleas.

Favelle Mort Ltd v Murray (1976) 133 CLR 580 at 591.

In decisions respecting such diverse subjects as the rule in Rylands v Fletcher [48] , corporate privilege against self-incrimination [49] , the absence of a right of accused persons to the provision of counsel at public expense [50] and native title [51] , this Court has spoken with respect to "the common law of Australia", not the common law of the State or Territory from whose courts the appeal came to the High Court, or in which a federal court or the High Court sat in exercise of original jurisdiction.

Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520 at 556. 2. Environment Protection Authority v Caltex Refining Co Pty Ltd (1993) 178 CLR 477 at 508, 556. 3. Dietrich v The Queen (1992) 177 CLR 292 at 297-298, 311. 4. Mabo v Queensland [No 2] (1992) 175 CLR 1 at 15, 69-71, 109-113; Western Australia v The Commonwealth (Native Title Act Case) (1995) 183 CLR 373 at 452-453.

In certain circumstances, or for certain purposes, it may be useful to inquire about the source of the power to enforce orders made by a court. In the case of a State Supreme Court it may be that the most immediate answer to that inquiry, in some kinds of case, is that it is a power derived from the State as a body politic or from the State Act establishing the Court or from the Constitution of that State. (Such answers might well be said to ignore the significance that should be attached to s 106 [52] of the Constitution and covering cl 5 [53] .) But that kind of inquiry (or an analysis by reference to more abstract notions of sovereignty) is apt to mislead and it does not lead to any conclusion that there is more than one common law of Australia.

Section 106 states: "The Constitution of each State of the Commonwealth shall, subject to this Constitution, continue as at the establishment of the Commonwealth, or as at the admission or establishment of the State, as the case may be, until altered in accordance with the Constitution of the State." 2. Covering cl 5 states: "This Act, and all laws made by the Parliament of the Commonwealth under the Constitution, shall be binding on the courts, judges, and people of every State and of every part of the Commonwealth, notwithstanding anything in the laws of any State; and the laws of the Commonwealth shall be in force on all British ships, the Queen's ships of war excepted, whose first port of clearance and whose port of destination are in the Commonwealth."

Nor is it relevant to inquire about the powers of State legislatures to pass laws modifying or abrogating the common law any more than it is relevant to inquire about the powers of the Commonwealth Parliament to do so. Such inquiries are irrelevant because the answers to questions about how rules established by judicial decision may be abrogated or modified by legislative action say nothing about the creation of the rules or their content. So too, the converse question of whether a State legislature has abrogated or modified a common law rule is irrelevant for present purposes. The answers to such questions are silent about whether there are, or can be, rules established by judicial decision that are to remain peculiar to a particular State.

As indicated above, from time to time there will be decisions made by courts of record which will bind courts lower in the relevant curial hierarchy but which are not decisions made by this Court as the final appellate court for Australia. Because that is so, it is tempting, as McHugh J pointed out in Kable [54] , for a State judge bound by the authority of his or her own Full Court or Court of Appeal to conclude that the common law for the State is fixed by that appellate decision. And inevitably there will be times when intermediate appellate courts do not speak with one voice on particular questions [55] . It by no means follows, however, that a common law rule enunciated by the appellate courts of that State is a rule which is or should remain peculiar to that State. This Court is the final appellate court for the nation. When an appeal is dealt with in this Court, and its reasons are published, those reasons will form part of the common law of Australia and will bind all courts in the country. The Court never has and never should seek to identify some common law rule that is peculiar to one or more of the States. And yet that is the role which would be assigned to it if there were more than a single common law of Australia.

(1996) 189 CLR 51 at 112. 2. Australian Securities Commission v Marlborough Gold Mines Ltd (1993) 177 CLR 485.

The federal system operates with what is now the common law of Australia. One consequence is that there do not arise in Australia, as once might have been thought [56] , difficulties with the notion of a distinct "federal common law" which still are encountered in the United States after the overruling of Swift v Tyson [57] by Erie Railroad Co v Tompkins [58] . In Erie, Brandeis J, delivering the plurality opinion of the Court, said that there was "no federal general common law" [59] .

R v Kidman (1915) 20 CLR 425 at 445, 454; In re Usines de Melle's Patent (1954) 91 CLR 42 at 49. 2. (1842) 16 Peters 1 [41 US 1]. 3. (1938) 304 US 64. 4. Erie (1938) 304 US 64 at 78. See as to the continuing uncertainty respecting the subject after Erie, Wright, Law of Federal Courts, 5th ed (1994), s60. Professor Wright concludes: "It may be, as Justice Brandeis said, that there is no federal general common law, but there remains a substantial area for the application of federal common law."

The liability of the Commonwealth in tort and contract is created by the common law; s 75(iii) of the Constitution denies operation of what otherwise might be doctrines of Crown or executive immunity in these fields [60] . The "common law" here is that of Australia, rather than a "federal common law" distinct from the common law of each of the other bodies politic in Australia.

The Commonwealth v Mewett (1997) 191 CLR 471 at 491, 526-527, 542, 550-551.

The activities of the executive government of the Commonwealth which give rise to liabilities in contract and tort will, to a very significant degree, be conducted outside the seat of government and in the States. If the common law were fragmented, it would be necessary to spell out of the Australian constitutional structure principles to resolve conflicts or variances between, in particular, "federal common law" and that of the particular State in which the executive government of the Commonwealth conducted its activities. There is no textual equivalent to the mechanism which s 109 of the Constitution provides with respect to legislation. However, any conundrum is avoided once it is seen that there is but one common law, not as many as there are bodies politic.

It is true, as the Solicitor-General for South Australia emphasised in the submissions for the respondent, that the common law of England was received at different times and in different circumstances in various parts of what is now Australia [61] . Although some parts of the Province of South Australia had previously been part of the Colony of New South Wales, s 1 of the South Australia Colonisation Act 1834 Imp expressly excluded any continued application of the laws of that Colony, and the Province was established on 19 February 1836 [62] . The common law of England was received into what were then colonies, not what are now States. Nonetheless, as Griffith CJ emphasised [63] , the common law did not thereby "become disintegrated into six separate codes of law", one for each colony. Rather, in Skelton v Collins [64] , Windeyer J spoke of what was inherited as both a body of doctrines and principles, and "its method and its spirit", including "the creative element in the work of courts". His Honour there identified this as having become the common law of Australia.

R v Kidman (1915) 20 CLR 425 at 435-436; Commissioner of Stamps (SA) v Telegraph Investment Co Pty Ltd (1995) 184 CLR 453 at 466-467; Castles, "The Reception and Status of English Law in Australia", Adelaide Law Review, vol 2 (1963) 1, at pp 2-19 . 2. South Australia v Victoria (1911) 12 CLR 667 at 676-677. 3. R v Kidman (1915) 20 CLR 425 at 436. 4. (1966) 115 CLR 94 at 134-135. See also, as to common law and crime, the observations of Webb J in R v Sharkey (1949) 79 CLR 121 at 163.

At the time of federation the English common law was treated as a single body of law, although local conditions might render a particular part of it "inapplicable". However, there was a view supported by Barton J and O'Connor J in Delohery v Permanent Trustee Co of NSW [65] that even then the law was "dormant" until the "occasion arises for enforcing it". In its original form, s 80 of the Judiciary Act 1903 Cth spoke of "the common law of England as modified by the Constitution and by the statute law in force in the State in which the Court is held". This is consistent with the view of Griffith CJ set out above, not with fragmentation by reason of the erection by the Constitution of the colonies into States.

The uniform nature of English common law attracted the attention of the Privy Council in the practical context of the operation of the system of precedent within what was then the Empire. In 1879, their Lordships declared in an appeal from New South Wales that it was [66] : "of the utmost importance that in all parts of the empire where English law prevails, the interpretation of that law by the Courts should be as nearly as possible the same". When this position was changed in 1967, their Lordships spoke in Australian Consolidated Press Ltd v Uren [67] , litigation which had commenced in New South Wales, not of the law in that State but of the law in Australia and of the authority of this Court to change it.

Trimble v Hill (1879) 5 App Cas 342 at 345. 2. (1967) 117 CLR 221 at 241; [1969] 1 AC 590 at 644.

As was emphasised in Lange v Australian Broadcasting Corporation [68] , the development of the common law in Australia must conform with the Constitution because "[t]he common law and the requirements of the Constitution cannot be at odds" [69] . The recognition of an Australian common law was essential to the reasoning in that case, particularly for the putting to one side of any question of adoption from the United States of a "constitutional privilege" against enforcement of the distinct common laws of the several States of the Union [70] . However, within their respective spheres of competence, the common law may be abrogated or amended by the federal Parliament and the Parliaments of the States and legislatures of certain Territories. Laws so made may be repealed and the common law revived. The result at any given time may be that the operation of the common law upon a particular subject may vary according to the circumstances of litigation, including the identity of the forum and of the lex causae. For example, in one Australian forum the applicable lex causae may be found in a statute, enacted by its legislature, and in another Australian forum that statute would not operate to displace or vary the common law. Further, in that second forum, the common law may be displaced or varied by statute enacted by its legislature.

(1997) 189 CLR 520 at 566. 2. See Zines, "The Common Law in Australia: Its Nature and Constitutional Significance" [1999] Law and Policy Papers, Paper No 13, Centre for International and Public Law, Australian National University. 3. Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 562-565.

The Court was told that this is what had happened with respect to the common law offences charged here. In some States criminal codes applied, in others statute had modified or displaced the common law. But, as will appear in Section VII, this does not yield issues of the type to which the rules of private international law speak.

It also is important for an understanding of the issues which arise to appreciate the position had the common law been supplanted in South Australia by statute. A "remote and general connection" between the State and the elements of the statutory offence of conspiracy would have sufficed for the valid operation of that law [71] .

Union Steamship Co of Australia Pty Ltd v King (1988) 166 CLR 1 at 14.

In South Australia, all indictable offences are charged on an information. Section 275 of the Criminal Law Act permitted this to be done [72] . When the accused were arraigned and pleaded not guilty, their pleas were treated as being a denial of jurisdiction. Further, each of the accused applied pursuant to r 8 of the Supreme Court Criminal Rules 1992 SA (the Rules) for an order quashing the information on the ground that the information was bad because it did not disclose an offence triable in the courts of South Australia. Also pursuant to r 8, each accused sought an order on like grounds permanently staying further proceedings upon the information [73] .

Section 275 stated: "(1) Any person may be put upon his trial at any criminal sessions of the Supreme Court, for any offence, on an information presented to the Court in the name and by the authority of the Attorney-General. (2) Every rule of law and enactment for the time being in force in the State relating to indictments and to the manner and form of pleading thereto and to the trial thereon, and generally to all matters subsequent to the finding of the indictment, shall apply to any information so presented." 2. Rule 8 provides that any application to quash any proceedings before the Supreme Court in its criminal jurisdiction or to stay such proceedings be made in a prescribed form and, unless a judge otherwise directs, the application shall: "(a) be filed in the Court and made returnable before the person committed for trial has pleaded to the charges which are to be the subject of the application; (b) be supported by any affidavit upon which the person committed for trial relies in support of the application, which affidavit shall be filed with the notice of the application; (c) be served with copies of any supporting affidavit upon all other interested parties as soon as possible after it has been filed; (d) be returnable before a Judge in open Court whether he is to be the Judge upon the trial of the accused or not."

With the consent of the parties, Lander J was presented with a large body of material for the purpose of determining the applications. His Honour held that the charge was "justiciable" in South Australia [74] and dismissed the applications. The accused elected for trial by judge alone pursuant to s 7 of the Juries Act 1927 SA. The present appellants were convicted, whilst the other person accused was acquitted.

R v Winfield, Chandler & Lipohar (1995) 65 SASR 121 at 155.

The issue before this Court is whether the Court of Criminal Appeal erred in rejecting the appeals from the decision of Lander J dismissing the applications under r 8 of the Rules. The appellants contend that the applications should have been successful because the conspiracy to defraud alleged against them was formed wholly outside the territorial boundaries of South Australia and was not a crime to commit an unlawful act in that State. We would reject those submissions, because they proceed from false premises as to the relevant legal foundation of the jurisdiction of the Supreme Court, and would dismiss the appeals.

The facts giving rise to the offences are set out in Section VIII of these reasons but it is convenient now to refer to the particulars of the offences and the object of the conspiracy by way of background to the issues in these appeals. The particulars of the offence given in the information were:

Mark Jeffery Winfield, Ian David Chandler and Edward Lipohar between the 1st November, 1991 and the 7th March, 1992 at Adelaide and other places, conspired together and with Roosevelt Tan and Jack Samardzija to defraud Collins Street Properties Pty Ltd of an incentive payment in the sum of about $6,500,000 by falsely representing that either P T Mecosin (Indonesia) or P T Mecosin (Australia) Ltd was an authorised representative of P T Mecosin Indonesia and that P T Mecosin (Australia) Ltd intended to comply with the terms of a lease agreement in relation to part of the property situated at 333 Collins Street, Melbourne, Victoria and that a Krung Thai Bank promissory note of an alleged value of US$10,000,000 proffered as security was a good and valid negotiable instrument.

Despite the averment of conduct "at Adelaide and other places", neither appellant nor the other alleged conspirators were present at any stage in South Australia. Substantial activities in furtherance of the conspiracy were conducted in Queensland and Victoria, and it may be inferred that, at least in part, the conspiracy was formed there. Collins Street Properties Pty Ltd (Collins Street) was incorporated in, directed from and had its registered office in Adelaide but carried on business of leasing premises at 333 Collins Street, Melbourne, of which it was the owner. Collins Street was a wholly owned subsidiary of a company which also was incorporated in South Australia. It, in turn, was owned by a statutory body corporate of that State, the State Government Insurance Commission (SGIC), controlled by the Government of South Australia. The object of the conspiracy was to defraud Collins Street of an incentive payment in a proposed lease of the premises.

In Strassheim v Daily [75] , Holmes J, delivering the opinion of the Court, said:

Acts done outside a jurisdiction, but intended to produce and producing detrimental effects within it, justify a State in punishing the cause of the harm as if [the actor] had been present at the effect. Later, in Director of Public Prosecutions v Doot [76] , whilst Lord Wilberforce reserved the question "whether a conspiracy formed abroad to do an illegal act in England, but not actually implemented [there], could be tried in the courts of [England]" [77] , his Lordship declared [78] : The truth is that, in the normal case of a conspiracy carried out, or partly carried out, in this country, the location of the formation of the agreement is irrelevant: the attack upon the laws of this country is identical wherever the conspirators happened to meet; the "conspiracy" is a complex, formed indeed, but not separably completed, at the first meeting of the plotters. We respectfully agree. The reference by Lord Wilberforce to the attack on the laws of England reflects his earlier statement in Doot that "the common law treats certain actions as crimes" on the ground that the "actions in question are a threat to the Queen's peace, or, as we would now perhaps say, to society" [79] . 1. (1911) 221 US 280 at 285. 2. [1973] AC 807. 3. Doot [1973] AC 807 at 818. 4. Doot [1973] AC 807 at 818. 5. Doot [1973] AC 807 at 817.

On one branch of the written submissions (which were developed in argument), the respondent advocates a similar approach, but adjusted to fit the structure of the Australian legal system. The submission is that if (a) the agreement was made, in whole or in part, and was to be performed, in whole or in part, within Australia and (b) the performance of the relevant common law conspiracy to defraud would have a real and substantial effect within a particular Australian forum, two consequences follow. First, there is an offence under the common law of Australia. Secondly, the offence may be tried in the courts of that particular forum. This, in substance, reflects the approach taken by Perry J in the Court of Criminal Appeal. His Honour said [80] :

[T]here would appear to be no good reason why, in a federation of States such as the Commonwealth of Australia, the ambit of the crime of conspiracy at common law should not extend to encompass a conspiracy hatched in another State or Territory, when the forum State or its citizens, stand to be the ultimate victims of it.

I add that I do not see that it is at all inconsistent with the view which I have just expressed that there may be more than one jurisdiction in which a given crime of conspiracy may be prosecuted. Where an agreement is reached, and acts which are an expression of the agreement are performed in different jurisdictions, a crime against the law of more than one jurisdiction may have been committed.

I do not think that in such circumstances, there is any question of "comity".

Here, the target of the conspiracy was a South Australian company, [Collins Street]. If the conspiracy had been successfully carried out, that company would have been induced to pay about $6.5 million to the appellants as a result of their fraudulent representations. I do not think it matters whether one speaks in terms of "harm", "public mischief", disturbance of the "Queen's peace", the "good of society", or even "peace, welfare and good government". It seems to me that if the impact of the substantive offence would have been felt in South Australia, in the sense that the resulting loss would have been suffered in this State, the inchoate offence constituted by the agreement was a breach of South Australian law, that is, the common law offence of conspiracy to defraud.

The fact that the company was carrying on business at the time in Victoria, in the sense that it was offering a lease of a building in Melbourne, is not a circumstance which, in my view, detracts from the opinion which I have just expressed.

R v Winfield & Lipohar (1997) 70 SASR 300 at 319-320.

It is here that the significance of the present appeals is found. Perry J referred to "a breach of South Australian law" but that does not put the matter accurately. As has been indicated in Section I, the offences were against the common law of Australia and the threat, in the sense used by Lord Wilberforce, was to Australian society rather than to any narrower community interest represented by a particular State. Substantial steps in furtherance of the conspiracy took place within Australia and, it may be inferred, that, at least to a significant degree, the conspiracy itself was formed within Australia.

Had the Supreme Court been exercising a national jurisdiction, then the case would have fallen fairly closely within the reasoning of Lord Wilberforce in Doot. However, the Supreme Court was not exercising a national jurisdiction as it does when exercising federal jurisdiction, for example under s 68 of the Judiciary Act in respect of prosecutions of offences against laws of the Commonwealth [81] .

See the discussion by Gaudron J in The Commonwealth v Mewett (1997) 191 CLR 471 at 524-525.

It is necessary for the exercise by the Supreme Court of its authority to try and punish those accused of indictable offences that they be brought before the Supreme Court, there being no trial in absentia at common law in the ordinary course [82] . In the present case this was achieved by the operation of the Service and Execution of Process Act 1992 Cth, apparently pursuant to the provisions of Pt 5 Div 1 (ss 81-90). However, such legislation does not expand the "subject matter" as distinct from the "territorial" jurisdiction of the State court [83] . Nor does it have the consequence that the State court is exercising federal jurisdiction at the trial of persons in the position of the appellants. The legislation operates "in aid of the functions of the States and does not relate to what otherwise is a function of the Commonwealth" [84] .

See Lawrence v The King [1933] AC 699 at 708; Athanassiadis v Government of Greece [1971] AC 282 at 294-296 (n); R v Jones (Robert) [No 2] [1972] 1 WLR 887 at 890-891; [1972] 2 All ER 731 at 734-736; Tassell v Hayes (1987) 163 CLR 34 at 43-44; Wiest v Director of Public Prosecutions (1988) 86 ALR 464 at 494; R v Hallocoglu (1992) 29 NSWLR 67 at 71-72; Kunnath v The State [1993] 1 WLR 1315 at 1319-1320; [1993] 4 All ER 30 at 35-36; R v Jones (1998) 72 SASR 281 at 292-295; Ebatarinja v Deland (1998) 194 CLR 444 at 454. 2. Flaherty v Girgis (1987) 162 CLR 574 at 598. 3. Aston v Irvine (1955) 92 CLR 353 at 364.

Given the connections between the offences charged and the area of Australia beyond South Australia, other States had interests in the matter. Yet only South Australia moved to prosecute. The Supreme Court, as will shortly appear, had jurisdiction "in and for the State". In such a situation, where the accused are brought before the Supreme Court of a State by processes of extradition from other States under federal law, and they are charged with offences against the Australian common law, is there a further requirement of contact between those alleged offences and the forum State before it can properly be said that the Supreme Court is exercising jurisdiction "in and for" that State? Does it accord with the Australian constitutional structure, including the requirement that each State accord full faith and credit to the judicial proceedings of the other States, that the prosecution authorities of the forum State may proceed to prosecute and seek punishment in that State of offences against common law only if there be some adequate contact between the State and the particular offences charged? If so, what is the requisite nature of that contact?

Must it at least be as strong as those which would support the validity of State legislation which provided that an act done outside the State was a punishable offence? In that regard, it should be noted that well before the commencement of the Australia Act 1986 Cth, it was competent for a State legislature to provide that an act done outside the State be a punishable offence if there were "elements sufficiently connected with [the State] to enable the legislature of that State to deal with them" [85] .

Grannall v C Geo Kellaway and Sons Pty Ltd (1955) 93 CLR 36 at 52. See also Ex parte Iskra; Ex parte Mercantile Transport Co Pty Ltd (1962) 63 SR (NSW) 538 at 552.

First, the questions arise from the identification by its governing statute of the jurisdiction of the Supreme Court of South Australia as one "in and for the State". To give effect to the statute, upon its proper construction, is neither to sweep away settled jurisdictional rules, to ignore the division of the country into geographical and political units, nor to create new common law offences.

Secondly, in answering these questions respecting the authority of the Supreme Court, regard must be had to the framing by the parties of their respective submissions. This requires treatment of a number of matters which, whilst at first blush are of primary significance, in the end are not determinative. To a degree they reflect a tendency to treat the State of South Australia as if it stood on the same footing, with respect to the common law, as does England, and to translate directly the reasoning of the House of Lords in Doot. In short, there was a failure in some of the submissions to view the problem through Australian spectacles, which should be bifocal.

The distractions to which this gives rise include what in Grannall v C Geo Kellaway and Sons Pty Ltd [86] this Court identified as "the rule that all offences are local and territorial" and related notions of comity between nation states (Section VI) and of "jurisdiction" and "venue" in criminal law (Section IV). It also is appropriate to consider the significance of statute (Section V) and why the issues relating to criminal law with which this case is concerned are not resolved by reference to the rules of private international law, whether in its international or intra-Australian dimension (Section VII). With an understanding of the true significance of these matters for the appeals, it will be convenient (in Section IX) to dispose of the appeals after an appreciation of the facts (Section VIII).

Some consideration of the constitution and authority of the Supreme Court of South Australia is necessary. The Supreme Court has vested in it by s 17(2)(a) of the Supreme Court Act 1935 SA "the like jurisdiction, in and for the State, as was formerly vested in, or capable of being exercised by" certain English courts. These are identified to include both the courts at Westminster which were united and consolidated by s 3 of the Supreme Court of Judicature Act 1873 UK (the Judicature Act) to constitute the Supreme Court of Judicature, and the courts created by commissions of assise. Paragraphs (b) and (c) of s 17(2) respectively vest such other jurisdiction "as is vested in, or capable of being exercised by the court" and "as is in [the Supreme Court Act] conferred upon the court". The latter includes jurisdiction in probate (s 18) and matrimonial causes (s 19). The matrimonial causes jurisdiction is now subject to the operation given to the Family Law Act 1975 Cth by s 109 of the Constitution.

The phrase "in and for the State" in s 17(2)(a) indicates the federal structure into which the powers of the old English courts, which existed before the Judicature Act, were assimilated by the Supreme Court Act. This place in the federal structure is further indicated by: the established position provided for the State Supreme Courts by s 73 of the Constitution; the reach of s 77(iii) of the Constitution with respect to investment of federal jurisdiction in State courts; the reasoning in Kable [87] ; the powers of the Parliament to legislate to confer original jurisdiction on this Court in any matter "[r]elating to the same subject matter claimed under the laws of different States" (s 76(iv)), and to legislate with respect to the service and execution throughout the Commonwealth of the civil and criminal process and the judgments of the courts of the States (s 51(xxiv)) [88] and the recognition of State laws, public Acts and records and judicial proceedings (s 51(xxv)) [89] ; and the full faith and credit directly required by s 118.

(1996) 189 CLR 51. 2. Now provided for by the Service and Execution of Process Act. 3. See State and Territorial Laws and Records Recognition Act 1901 Cth (the Recognition Act).

The Australian legal system, of which South Australia and its institutions of government, including the Supreme Court, are part, differs considerably from that in England in the last century. Assimilation rather than direct translation is what is achieved by the phrase in par (a) of s 17(2), "like jurisdiction, in and for the State".

IV. " Jurisdiction ", " Venue " and " Crime is Local "

The term "jurisdiction" here, as elsewhere, gives rise to difficulty. It is a generic term, a point made by Isaacs J in Baxter v Commissioners of Taxation (NSW) [90] . It is used in a variety of senses, some relating to geography, some to persons and procedures, others to constitutional and judicial structures and powers. Thus, "federal jurisdiction" is "the authority to adjudicate derived from the Commonwealth Constitution and laws" [91] whereas the phrase "inherent jurisdiction", used in relation to such things as the granting of permanent stays for abuse of process, identifies the power of a court to make orders of a particular description [92] .

(1907) 4 CLR 1087 at 1142. In United States v Vanness (1996) 85 F 3d 661 at 663(n), "jurisdiction" was said to be "a word of many, too many, meanings". 2. Baxter v Commissioners of Taxation (NSW) (1907) 4 CLR 1087 at 1142. See also Ah Yick v Lehmert (1905) 2 CLR 593 at 603; Gould v Brown (1998) 193 CLR 346 at 379. 3. Williams v Spautz (1992) 174 CLR 509 at 518-519; Pelechowski v Registrar, Court of Appeal (1999) 198 CLR 435 at 450-453.

"Jurisdiction" may be used (i) to describe the amenability of a defendant to the court's writ and the geographical reach of that writ, or (ii) rather differently, to identify the subject matter of those actions entertained by a particular court, or, finally (iii) to locate a particular territorial or "law area" [93] or "law district" [94] . The distinction between (i) and (ii) was drawn by Mason A-CJ, Wilson and Dawson JJ in Flaherty v Girgis [95] . In passages in their joint judgment in Thompson v The Queen [96] , Mason CJ and Dawson J used the term "jurisdiction" in all three of these senses.

An expression used by the Court in Laurie v Carroll (1958) 98 CLR 310 at 331, with respect to New South Wales and Victoria. See also Breavington v Godleman (1988) 169 CLR 41 at 77, 97, 107. 2. An expression used by Wilson and Gaudron JJ in Breavington v Godleman (1988) 169 CLR 41 at 87. 3. (1987) 162 CLR 574 at 598. See also Parsons v Martin (1984) 5 FCR 235 at 240. 4. (1989) 169 CLR 1 at 11-12.

The present appeals concern a variant of (ii). The law area (which here is Australia, for it is with offences against its common law that the appellants were tried and punished) operates upon a wider plane than that of the State by whose institutions the trial and punishment of the appellants were undertaken. Thus, the law area and the venue do not coincide. This disparity, in the Australian legal system, is a significant but not a determinative consideration in ascertaining the nature of the jurisdiction exercised in these prosecutions and the limitations upon it.

What has been identified as the refusal of common law courts to entertain prosecutions save at and by the law of the place where the offence had been committed appears to have grown out of the classification of criminal trials as local actions (as indicated below in Section VII). Conditions respecting venue thereby arose [97] . Further, it was significant that, at common law, the grand jury was sworn to inquire of acts done within their vicinage, so that if a person were wounded in one vicinage but died in another, the offender was indictable in neither [98] . These considerations appear also to have provided the source of the rule attributed to British South Africa Co v Companhia de Mo¸cambique [99] whereby the common law courts refused to try issues respecting title to immovables located outside the forum [100] . However, venue is concerned with the place of trial whilst "jurisdiction" is aptly used here to identify the existence of authority to adjudicate a particular dispute.

Leflar, "Extrastate Enforcement of Penal and Governmental Claims", Harvard Law Review, vol 46 (1932) 193, at p 198 . 2. Blackstone, The Laws of England, vol 4, s303. 3. [1893] AC 602. 4. Dagi v Broken Hill Pty Co Ltd [No 2] [1997] 1 VR 428 at 438-439.

The reasoning respecting the common law as to venue was expounded in decisions before the law in England was changed by s 13 of the Juries Act 1825 UK. This was before the establishment of the Province of South Australia. In Treacy v Director of Public Prosecutions, Lord Diplock said that the decisions respecting what his Lordship identified as "the rules of venue" involved different questions from those which arose in the modern criminal trials. His Lordship stated [101] :

In the venue cases, the facts alleged against the prisoner unquestionably amounted to a criminal offence in English law. The only question was whether under the technical rules of venue he was liable to be tried before a court whose jurors were drawn from one locality rather than another. The historical origin of those rules dated back to the embryonic stage of development of English trial by jury. Jurors originally combined the functions of "know-ers" of facts as well as "tri-ers" of facts and the prisoner was entitled to have his guilt determined by jurors drawn from an area where the inhabitants would be most likely to know the facts alleged to constitute the crime with which he was charged. The rules of venue continued to be applied long after the jury had assumed its modern function of deciding facts upon evidence adduced before it. Lord Diplock went on to explain that, before the law was changed by statute, "jurisdiction" was involved, but in the particular sense of the competing local jurisdictions of courts in England and Wales. Lord Salmon spoke to similar effect in Doot [102] . 1. Treacy [1971] AC 537 at 559. See also George, "Extraterritorial Application of Penal Legislation", Michigan Law Review, vol 64 (1966) 609, at p 610 . 2. [1973] AC 807 at 834.

Difficulties arise in the application of the notion of venue to crimes the crucial element of which may be an omission, or a series of steps by a number of actors in different places, or a meeting of minds united in time but divorced in location although the actors are linked by telephone or like means. The facts of the present case emphasise the point.

In Ward v The Queen [103] the prosecution accepted that it was not the law area where the act of the accused was done (Victoria) but the law area where that act took effect upon its victim (New South Wales) which "determine[d] the locus of the crime [of murder] and, in turn, the courts having jurisdiction in respect of it". The consequence of the basis upon which that case was argued is that the case does not lay down any settled requirement as to what is a sufficient territorial nexus between the elements of a common law offence and the territory of the State in which it is prosecuted. However, Ward does indicate that it would have been within the power of the Parliament of Victoria to legislate "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" [104] .

(1980) 142 CLR 308 at 315; cf Hazlett v Presnell (1982) 149 CLR 107 at 111. 2. Ward (1980) 142 CLR 308 at 314.

Thus, statute may intervene. The appellant in Thompson v The Queen [105] had been charged in the Australian Capital Territory with murder. The relevant statute law [106] provided that, where the cause of death occurred outside the Territory (for example, in New South Wales) but the death occurred inside the Territory, the offence of murder might be dealt with in all respects as if it had been wholly committed inside the Territory. This Court was concerned to determine the standard of proof applicable to the establishment of the authority of the Supreme Court of the Australian Capital Territory to try the appellant. There was some discussion in the judgments as to the nature of the jurisdiction to try crime where some elements of the offence took place outside the law area in which the charge is laid. However, this was against the background of submissions, the effect of which would have been that neither the courts of the Territory nor of New South Wales had jurisdiction to try the appellant. Thus, like Ward, Thompson did not directly concern issues of the nature which arise here. The present case is different. Here, as has been pointed out in Section II, several States had interests in the matter, although only one moved to prosecute.

(1989) 169 CLR 1. 2. s 25 of the Crimes Act 1900 NSW, as adapted to the Australian Capital Territory.

Following the decision in Thompson, what is now numbered s 5C was introduced into the Criminal Law Act [107] . This provision was debated in the course of argument but it "does not derogate from any other basis on which the courts of the State may exercise criminal jurisdiction" (s 5C(9)). It deals with offences against the "law of the State" (s 5C(1)), and thus not with the offences involved in these appeals. The provision was designed to provide [108] :

for the application of the criminal law of the State in any case where all of the elements of an offence exist and a territorial nexus exists between the State and at least one of these elements. The territorial nexus exists if the element is or includes an event occurring in the State, or the person alleged to have committed the offence was in the State at the time of the occurrence of an event that is, or is included in, an element of the offence. The existence of the territorial nexus will be presumed, and the presumption will be conclusive unless the court of trial is satisfied, on the balance of probabilities, that the necessary territorial nexus does not exist. The provision will not apply to an offence that makes the place of the commission of the offence an element of the offence, to an offence that excludes the requirement for a territorial nexus, or to an offence for a charge laid before the commencement of the section. 1. By s 2 of the Criminal Law Consolidation (Application of Criminal Law) Amendment Act 1992 SA. Similar provision is made by the Crimes (Application of Criminal Law) Amendment Act 1992 NSW. See also ss 243B and 243C of the Australian Securities and Investments Commission Act 1989 Cth (the ASIC Act). 2. South Australia, House of Assembly; Parliamentary Debates (Hansard); 13 October 1992, p 790.

In Thompson [109] , Brennan J referred to the speech of Lord Diplock in Treacy and observations of Devlin J in R v Martin [110] , and said:

The jurisdiction of a court to hear and determine a charge of a criminal offence and the territorial ambit of a law which creates or defines the offence charged are two distinct questions. Accordingly, the question of "[w]hat constitutes an offence known to the law of a jurisdiction is a separate and distinct question from that of whether the law of a particular jurisdiction extends beyond the geographical borders of that jurisdiction" [111] . 1. (1989) 169 CLR 1 at 19. 2. [1956] 2 QB 272 at 285. 3. Hinton and Lind, "The Territorial Application of the Criminal Law - When Crime is not Local", Criminal Law Journal, vol 23 (1999) 285, at p 297 .

In view of the way in which the question is framed and the wide-ranging argument about "jurisdiction" before your Lordships' House, I am prompted to state at the outset that the question in this appeal is not whether the Central Criminal Court had jurisdiction to try the defendant on that charge [of blackmail contrary to s 21 of the Theft Act 1968 UK] but whether the facts alleged and proved against him amounted to a criminal offence under the English Act of Parliament.

The fact that the appellant was arrested in Greater London and committed for trial at the Central Criminal Court unquestionably gave to that court jurisdiction to determine whether or not he was guilty of the offence for which he was indicted.

Recently, in R v Manning [113] , the English Court of Criminal Appeal doubted the correctness of such statements as to the sufficiency of presence to found jurisdiction. Buxton LJ said [114] :

The English courts had jurisdiction subject to two conditions: that the defendant was physically present before the court (a matter that cannot be affected by construction of the statute) and that he had completed the crime, as defined, within England and Wales. The latter was an overriding requirement that was applied in the light of, rather than which affected the terms of, the definition of the crime charged. 1. [1999] QB 980. 2. R v Manning [1999] QB 980 at 995-996.

However, the distinction drawn by Lord Diplock has attracted support in this country [115] . In the course of her reasons for judgment in Thompson [116] , Gaudron J observed:

The issue of jurisdiction is a discrete issue and distinct from the issue of guilt which depends upon the elements of the offence charged being made out. 1. Thompson (1989) 169 CLR 1 at 19; McDonald v Bojkovic [1987] VR 387 at 392; Re Hamilton-Byrne [1995] 1 VR 129 at 138-139; R v Isaac, Tajeddine & Elachi (1996) 87 A Crim R 513 at 514. 2. (1989) 169 CLR 1 at 39.

Nevertheless, to accept that distinction, as it must be, is not fully to resolve the issue in the present appeals. Nor is analysis in the present case assisted by repetition of the maxim that "crime is local" and by treating the locality here as the territory of South Australia. In Hyde v United States [117] , Holmes J referred to the extrapolation of rules respecting trials in particular localities in England and Wales to the level of a general principle that "crime is local". When applied to the law of conspiracy, this demonstrated to Holmes J "one of the misfortunes of the law that ideas become encysted in phrases and thereafter for a long time cease to provoke further analysis" [118] . Professor W W Cook took up the point in his famous article published in 1924, "The Logical and Legal Bases of the Conflict of Laws" [119] . He wrote:

We are told - the accuracy of the statement is not entirely clear - that at one period in the development of English law, a murderer could not be punished unless both the blow and the death took place in the county in which the prosecution was brought. The difficulty seems to have been connected with the fact that the early triers of fact answered of their own knowledge and without testimony of witnesses, and therefore could not know both who struck the blow and that the death had happened unless both events occurred in the county. This rule was changed, or at least the doubt as to the law settled, by statute in the reign of Edward VI so as to give jurisdiction to the county in which the death occurred. It is interesting to find this common-law rule, introduced originally apparently for purely practical reasons, later erected into an immutable "principle" of "jurisdiction," based on arguments as to the territorial nature of law. 1. (1911) 225 US 347. 2. Hyde (1911) 225 US 347 at 391. 3. Yale Law Journal, vol 33 (1924) 457, at pp 460-461 (footnotes omitted).

The issue here arises from the concurrent interests of several States with respect to the events founding the prosecution of the appellants in South Australia. In particular, the substantive law in question does not derive its force from the authority of the venue in which the prosecution takes place. The unified common law applies in South Australia but it is not itself the creature of any State. The result, as indicated earlier in this Section, is that the law area and the venue do not coincide.

The presence of the present appellants before the Supreme Court of South Australia was secured by interstate rendition procedures established by federal law. The essential question is whether they were properly tried and punished in the Supreme Court of South Australia in exercise of jurisdiction vested by s 17(2) of the Supreme Court Act for offences against the common law of Australia respecting conspiracy to defraud. In the circumstances, was the Supreme Court exercising jurisdiction "in and for" that State?

In modern times, with respect to crimes created by statute, where it is specified as sufficient for liability that some or all of the elements are located outside the territory of the enacting legislature, two questions arise. The first is one of construction. With respect to the United Kingdom, it was described as follows by Lord Diplock in Treacy [120] :

The Parliament of the United Kingdom has plenary power, if it chooses to exercise it, to empower any court in the United Kingdom to punish persons present in its territories for having done physical acts wherever the acts were done and wherever their consequences took effect. When Parliament, as in the Theft Act 1968, defines new crimes in words which, as a matter of language, do not contain any geographical limitation either as to where a person's punishable conduct took place or, when the definition requires that the conduct shall be followed by specified consequences, as to where those consequences took effect, what reason have we to suppose that Parliament intended any geographical limitation to be understood? 1. [1971] AC 537 at 561.

His Lordship answered that question by stating, now that the technicalities of venue had long been abolished, the "only relevant reason" was to be found in the municipal rules of international comity which "in the absence of express provision to the contrary, it is presumed that Parliament did not intend to break" [121] . Lord Diplock added [122] :

It would be an unjustifiable interference with the sovereignty of other nations over the conduct of persons in their own territories if we were to punish persons for conduct which did not take place in the United Kingdom and had no harmful consequences there. But I can see no reason in comity for requiring any wider limitation than that upon the exercise by Parliament of its legislative power in the field of criminal law. In delivering the judgment of the Supreme Court of Canada in Libman v The Queen [123] , La Forest J reached a similar conclusion. 1. Treacy [1971] AC 537 at 561. 2. Treacy [1971] AC 537 at 561. 3. [1985] 2 SCR 178 at 208-214. See also his Lordship's judgment in United States of America v Cotroni [1989] 1 SCR 1469 at 1486-1488.

An example in South Australia of crime with "extraterritorial" elements is provided by s 206 of the Criminal Law Act. This states [124] :

Any person who commits any robbery on the high seas shall be guilty of an offence and liable to be imprisoned for life. Another example is provided by federal criminal law. Section 3A of the Crimes Act states: This Act applies throughout the whole of the Commonwealth and the Territories and also applies beyond the Commonwealth and the Territories. Section 3A is intended to and does displace any presumption that a penal statute will be taken not to have extraterritorial operation [125] . Further, s 3A applies to provisions of the Crimes Act such as s 86(1), which states: A person who conspires with another person to commit an offence against a law of the Commonwealth punishable by imprisonment for more than 12 months, or by a fine of 200 penalty units or more, is guilty of the offence of conspiracy to commit that offence and is punishable as if the offence to which the conspiracy relates had been committed. [126] 1. Section 206 restates the common law position put by Story J in The Marianna Flora (1826) 11 Wheat 1 at 40-41 [24 US 1 at 38] that pirates are "the common enemies of all mankind". Provision for the punishment of acts of piracy is also made by Pt IV (ss 51-56) of the Crimes Act 1914 Cth. 2. McDonald v Bojkovic [1987] VR 387; cf Australian Industries Preservation Act 1906 Cth, s 4(1) and Meyer Heine Pty Ltd v China Navigation Co Ltd (1966) 115 CLR 10; War Crimes Amendment Act 1988 Cth and Polyukhovich v The Commonwealth (War Crimes Act Case) (1991) 172 CLR 501; Crimes Act, Pt IIIA (ss 50AA-50GA); Criminal Code Act 1995 Cth, Ch 8. 3. See McDonald v Bojkovic [1987] VR 387 at 394-395.

The second question with respect to statute will arise if the legislature in question is one of limited competence with respect to the territorial reach of its laws. As is indicated in Section I, that is the position of the legislatures of the Australian States. Speaking in 1988, but with respect to legislation passed before the enactment of the Australia Act, the Court in Union Steamship Co of Australia Pty Ltd v King [127] confirmed that the words "peace, order and good government" may be a source of territorial limitation "however slight that limitation may be". The Court continued [128] :

[A]s 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], 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 recognise 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 [v Florenca] [129] where his Honour stated that the requirement for a relevant connection between the circumstances on which the legislation operates and the State should be liberally applied and that even a remote and general connection between the subject matter of the legislation and the State will suffice. Further, s 22B of the Acts Interpretation Act 1915 SA states [130] : Each provision of an Act or statutory instrument enacted or made, or purporting to have been enacted or made, before the commencement of the Australia Acts is as valid as it would have been, and has the same effect as it would have had, if the Australia Acts had been in operation at the time of its enactment or making or purported enactment or making. 1. (1988) 166 CLR 1 at 13-14. 2. Union Steamship (1988) 166 CLR 1 at 14. See also the observations of Mason CJ, Brennan J and Deane J respectively in the War Crimes Act Case (1991) 172 CLR 501 at 529, 550, 635-636. 3. (1976) 135 CLR 507 at 518. 4. Section 22B was inserted by s 4 of the Acts Interpretation (Australia Acts) Amendment Act 1992 SA.

Section 22B operates upon statutes creating criminal offences. None is presently relevant. However, it also operates upon the vesting of jurisdiction in the Supreme Court by s 17(2)(a) of the Supreme Court Act, so as to give to the phrase "in and for the State" a liberal construction. It is this circumstance which, as will be indicated in Section IX, will be crucial to the outcome of these appeals.

The Court was referred to various decisions in which "comity" was invoked as a significant consideration. However, it will be seen that such a doctrine or precept has no operation with respect to the issues in these appeals. Rather, the respective operations inter se of the judicial proceedings of the States are regulated by the Constitution, its text and structure.

In any event, the common law doctrine of comity is neither "a matter of absolute obligation, on the one hand, nor of mere courtesy and good will, upon the other" [131] . As Story put it, in the nature of things comity cannot "be defined and fixed", but "must necessarily depend upon a variety of circumstances which cannot be reduced to any certain rule" [132] . For example, in R v Bow Street Magistrate; Ex parte Pinochet [No 3] [133] , Lord Hope of Craighead said that English common law would regard as "justiciable" in England a conspiracy to commit an offence anywhere which was triable in England as an extraterritorial offence in pursuance of an international convention, even though no act was done in England in furtherance of the conspiracy. The common law would be extended in this way, on the grounds of comity, to promote the aims of the convention. It is unnecessary to consider here the applicability of his Lordship's reasoning in this country.

Hilton v Guyot (1895) 159 US 113 at 163-164. 2. Story on the Conflict of Laws, 8th ed (1823), s28; approving Porter J in Saul v His Creditors (1827) 5 Martin (NS) 569 at 596; 16 American Decisions 212 at 225. 3. [2000] AC 147 at 233.

Lord Hope had earlier pointed out in Clements v HM Advocate [134] that considerations of comity do not arise between the various component parts of the United Kingdom. In Clements [135] , Lord Hope observed:

I do not think that we are concerned here at all with the extra-territorial effect, if any, of the Misuse of Drugs Act 1971. All the activities in this case took place in the United Kingdom, within the jurisdiction of the United Kingdom Parliament. The problem in this case is one as to territorial limitation as between the different jurisdictions within the United Kingdom. This depends on constitutional practice, not on international comity: see [Treacy ] [136] . I accept that questions of comity could arise if the physical activities of the appellants had taken place outside the United Kingdom, such as were envisaged by Lord Diplock in his discussion of this topic in that case [137] . But for the purposes of the present case it is, I think, sufficient to look only to the situation within the United Kingdom and to ask why the courts of one part of it should be denied jurisdiction if the activities of persons elsewhere in the United Kingdom are seen to have their harmful effects in that part. 1. 1991 SC 62. 2. 1991 SC 62 at 69. 3. [1971] AC 537 at 564, per Lord Diplock. 4. Treacy [1971] AC 537 at 562.

The circumstances referred to by Story must allow for the relationships between the components of a federal structure; there, territorial conceptions of national sovereignty and of comity between nation states cannot be determinative. Within Australia, any rationale for the common law rule respecting comity between what became the States disappeared with federation [138] .

See Thompson v Australian Capital Television Pty Ltd (1996) 186 CLR 574 at 577, 584-585, 591, 614-615.

One consequence is that there does not apply within Australia the common law rule, based upon notions of comity and territorial sovereignty, that the courts of the forum do not assume or exercise jurisdiction to enforce the revenue laws of a foreign country [139] . Again, in State Authorities Superannuation Board v Commissioner of State Taxation (WA) [140] , McHugh and Gummow JJ pointed out that:

The fundamental difference of opinion in Breavington v Godleman [141] and McKain v R W Miller & Co (SA) Pty Ltd [142] concerned the impact of the national legal structure created by or pursuant to the Constitution upon the common law choice of law rules as they exist in the various States and Territories. However, choice of law considerations do not apply to the operation of the criminal law. 1. See R v White; Ex parte T A Field Pty Ltd (1975) 133 CLR 113 at 117; cf Attorney-General (UK) v Heinemann Publishers Australia Pty Ltd (1988) 165 CLR 30 at 41; State Authorities Superannuation Board v Commissioner of State Taxation (WA) (1996) 189 CLR 253 at 270-271, 293-294; Williams & Humbert Ltd v W & H Trade Marks (Jersey) Ltd [1986] AC 368 at 428; R v Martin [1956] 2 QB 272 at 286. 2. (1996) 189 CLR 253 at 285, fn 126. 3. (1988) 169 CLR 41. 4. (1991) 174 CLR 1.

The common law rules of private international law adopt by analogy the classification developed in the courts of England and Wales in former times between local actions and transitory actions. In the first category, venue, that is to say the place of trial in a particular county or locality, and vicinage, the area from which the jury was drawn, were essential. This was because the facts relied upon as the foundation of the plaintiff's case had a necessary connection with that county or locality. There was no such requirement of a necessary connection with the second category, transitory actions [143] .

The distinction was drawn by Lord Herschell LC in British South Africa Co v Companhia de Mo¸cambique [1893] AC 602 at 618. See also Hale, History of the Common Law, 5th ed (1794), vol 2, pp 135-136.

The common law rules of private international law proceed on the footing that most civil causes of action are transitory. Transitory actions (i) may be sued upon in the forum if it has jurisdiction over the person of the defendant; (ii) this is so regardless of the "law area" where the facts creating the cause of action happened to occur [144] ; but (iii) one or more issues may be determined by the court of the forum by reference to a "choice" it makes, under its common law rules, of the law of another "law area" as the lex causae.

H C Sleigh Ltd v Barry Clarke & Co Ltd [1954] SASR 49 at 52.

Crime stands apart. Jurisdiction is founded by presence to stand trial [145] and the "general presumption at common law is that crime is local" [146] involves rejection of propositions (ii) and (iii) set out above. The result for the administration of the criminal law is that [147] "the question of jurisdiction and that of governing substantive law receive the same answer. The governing law is always that of the forum state, if the forum court has jurisdiction."

See Brilmayer, An Introduction to Jurisdiction in the American Federal System, (1986), p 329. 2. Brownlie v State Pollution Control Commission (1992) 27 NSWLR 78 at 83. 3. Leflar, McDougal and Felix, American Conflicts Law, 4th ed (1986), p 309. See also Leeming, "Resolving Conflicts between State Criminal Laws", Australian Bar Review, vol 12 (1994) 107, at p 108 .

This state of affairs reflects the difference in kind of the criminal law. It is not concerned with the adjudication of disputes as to the respective rights and obligations of parties to a particular transaction or with respect to property in particular subject matter. The body politic by which or on whose behalf the prosecution is instituted and maintained seeks the adjudication of guilt and imposition of punishment by its judicial branch. Professor Brilmayer makes the point [148] :

In criminal cases, the state is both a party - granted standing to prosecute by statute - and the adjudicatory forum - given jurisdiction to decide criminal cases brought by the state against alleged criminals. Because one state cannot validly involve the other's interest as a party in redressing an injury, states do not enforce one another's criminal laws. Once it is determined that the criminal law of another state will be applied, the forum court dismisses the case. Dismissal is not, of course, automatic in civil cases. 1. Brilmayer, An Introduction to Jurisdiction in the American Legal System (1986), p 321. See also Brilmayer, Conflict of Laws, 2nd ed (1995), p 152.

Moreover, where the "law area" of the court of the forum is a component of a federal system, further questions arise with respect to the scope of the criminal law and its administration. Investigative and prosecution procedures may differ and the rules of evidence lack uniformity in significant respects [149] . The crime in question may be created by federal law and the trial court be a State, Territorial or federal court. In Australia, requirements as to particular venue are imposed by s 80 of the Constitution which asks whether the federal crime was or was not "committed within any State". The Judiciary Act makes further provision [150] .

See, as to the United States, Corr, "Criminal Procedure and the Conflict of Laws", Georgetown Law Journal, vol 73 (1985) 1218. 2. Sections 70 and 70A of the Judiciary Act state: "70. When an offence against the laws of the Commonwealth is begun in one State or part of the Commonwealth and completed in another, the offender may be dealt with tried and punished in either State or part in the same manner as if the offence had been actually and wholly committed therein. 70a. The trial on indictment of an offence against a law of the Commonwealth not committed within any State and not being an offence to which section 70 applies may be held in any State or Territory."

It is convenient now to refer more fully to the facts. In the Court of Criminal Appeal, Bleby J summarised the relevant facts as follows [151] :

[Collins Street] was the owner of a large modern office building situated at 333 Collins Street, Melbourne in the State of Victoria. The company was incorporated in South Australia, where its registered office was also situated. The principal executive officer, the joint secretaries and four of the six directors of the company were resident in South Australia. Two directors were resident in New South Wales. The company had only issued two fully paid $1 shares which were beneficially owned by SGIC Pty Ltd, also incorporated in South Australia and having its registered office in South Australia. It had the same directors and secretaries as the company. The beneficial owner of the issued capital of SGIC Pty Ltd was State Government Insurance Commission (SGIC) which was a statutory body corporate, incorporated under the State Government Insurance Commission Act 1970 SA. Under that Act, SGIC was subject to the control and direction of the government of South Australia through the relevant minister. SGIC consisted of five members appointed by the governor of South Australia, and by virtue of s 14 of the State Government Insurance Commission Act, all real and personal property of SGIC was held by the Commission for and on behalf of the Crown in the right of the State of South Australia. It therefore followed that the shares in the company were ultimately similarly held.

The building in Collins Street was a relatively new building with relatively few tenants. At the time in question there was a surplus of good quality office space in Melbourne, and landlords were offering inducements to potential tenants by way of "rent holidays", paying the cost of a tenant's fit-out, and in some cases paying a cash inducement to a potential tenant in order to attract tenants.

The company had appointed a Mr Apps as manager of the building and Baillieu Knight Frank in Melbourne was the company's letting agent for the building.

The appellant Winfield was a real estate agent. He and the accused Chandler were residents of Queensland. The appellant Lipohar was a resident of Victoria. P T Mecosin Indonesia was a company incorporated in Indonesia, carrying on business in Jakarta. It manufactured and distributed pharmaceutical and therapeutic products. It was a family owned company. One of its employees, the alleged co-conspirator Roosevelt Tan, who worked in Indonesia, was a close friend of one of the directors. However, he was not authorised to represent the company.

P T Mecosin (Australia) Ltd (Mecosin Australia) was a company which, according to its memorandum and articles of association, was substantially controlled by P T Mecosin Indonesia (Mecosin Indonesia). In fact, however, it was not. It was a company which had been incorporated in Queensland at the instigation of a Mr Samardzija, another of the alleged conspirators and a business associate of the appellant Winfield. The memorandum of association contained an untrue assertion that the Indonesian company was a subscriber and shareholder. In fact, its seal and other signatures on the memorandum had been forged.

Through the agency of the accused Chandler, Baillieu Knight Frank was approached in November 1991, initially on behalf of an undisclosed tenant, seeking to negotiate the lease of a whole floor of the building. He proposed a twelve year lease, with one year rent-free and a cash incentive equivalent to three years rent, with the fit-out to be paid for by the landlord. Performance of the lease was to be secured by a mortgage over some undisclosed commercial Melbourne CBD property. Negotiations continued, and the proposed tenant was revealed as the Mecosin group, intending to commence business in Australia. Negotiations continued with the letting agent, and included the appellant Winfield, who had also been involved in the formation of Mecosin Australia. Samardzija was also involved in the negotiations. A further proposal was put to the agent in writing on 21 January 1992. This included an offer of security for the cash incentives in the form of a bank promissory note issued by the lessee's bank. By this time, it seems that Winfield and Samardzija were aware of the identity of the owner of the building and of the ultimate ownership of the company by SGIC. Indeed, Baillieu Knight Frank had made it clear that any proposals would have to be subject to the approval of SGIC.

There was some disquiet expressed on behalf of those supposedly negotiating for the Mecosin group about the length of time that negotiations were taking. Mr Apps, the manager of the building then began dealing directly with the appellant Winfield, and showed the appellant Lipohar around the building, supposedly to enable him to prepare a report about the property for the Mecosin group. On 11 February 1992 Winfield purported to accept a final offer of SGIC for the lease of the property (including a cash incentive of $6.5 million), and on 28 February 1992 SGIC approved the transaction. A meeting in Brisbane was arranged between representatives of SGIC - Mr Rehn from Adelaide and Mr Apps, the building manager, from Melbourne - and representatives of Mecosin Australia. That meeting took place on 5 March 1992. There was discussion about the proposed promissory note, the appellant Winfield informing the SGIC representatives that the Krung Thai Bank was Mecosin Indonesia's banker, and was the bank that would be supplying the promissory note for $US10 million by way of security. On the same day a document was faxed to the company's solicitors in Adelaide signed by a Miss Nutcharee, purporting to be sent by the Krung Thai Bank, confirming that upon instructions from Mecosin Indonesia, it was issuing a promissory note of the required amount, and setting out its terms and conditions. Miss Nutcharee was not in fact employed by the Krung Thai Bank, and it appeared that the facsimile had been sent from a public facsimile machine in Thailand. It was at no stage authorised by the bank. On the same day it was publicly announced through Reuters newsagency that Australian police had uncovered an international fraud in Adelaide relating to forged promissory notes on the Krung Thai Bank with a face value of approximately $14 million. By letter dated 6 March 1992 the appellant Winfield wrote to Mr Apps in Melbourne withdrawing the offer to lease the building space, owing to an alleged change of direction by Mecosin Indonesia. Accordingly, the plan to defraud the company was never brought to fruition.

R v Winfield & Lipohar (1997) 70 SASR 300 at 322-324.

His Honour concluded by pointing out several salient features of the facts [152] :

All the acts performed by or at the instigation of the conspirators in furtherance of the conspiracy were conducted either in Queensland, Victoria, Indonesia or Thailand. With the one exception of the facsimile sent to the company's solicitors in Adelaide, all contact with the company was through its agents in Victoria, who in turn dealt with the company's principals in Adelaide. The decision to agree to the lease proposal was made in Adelaide. The building in respect of which the defrauding was to take place was located in Victoria. It is not possible to tell where the defrauding, if it had occurred, would have taken place. Mr Jones, the former general manager of finance at SGIC said that the company's continuing operation was "supported by, ultimately, SGIC", and it depended for its financial support upon its shareholders and those who stood behind the shareholders, namely SGIC. He said in cross-examination that Westpac Bank was the major funds provider to the company through a branch in Melbourne. One could perhaps infer, but it would be little more than an educated guess because there was no evidence on the topic, that the cheque might have been drawn on a Melbourne bank account and handed over in Melbourne. On the other hand, the company had instructed solicitors in Adelaide who were preparing the lease. It may possibly have happened there. To this the respondent adds that the appellants knew that the decision to proceed with the transaction required the approval of the SGIC board in Adelaide and, for that purpose, that the false representations made by them would be conveyed to and considered by that board. 1. R v Winfield & Lipohar (1997) 70 SASR 300 at 324.

The present appeals concern the common law offence of conspiracy to defraud. What are the territorially fixed components of the offence under the common law of Australia? In order for the Supreme Court of South Australia to have power to try and to punish the appellants, to what degree was it necessary that components of the offence be located in South Australia, or have or be likely to have harmful consequences there?

Like Lord Wilberforce in Doot, with respect to the position in England, we would leave open the question whether a conspiracy formed abroad to do in Australia an unlawful act or a lawful act by unlawful means, but not to any degree actually implemented in this country, suffices to support a charge of a conspiracy under Australian common law. In the present case, it is not clear the degree to which the conspiracy itself was formed outside Australia. However, it is clear from the treatment of the facts by Bleby J, set out in Section VIII, that to a significant degree steps were taken in furtherance of the agreement between the conspirators inside Australia, particularly in Queensland and Victoria. That, in our view, is sufficient to support a charge of conspiracy under Australian common law, even if the conspiracy had been formed wholly outside Australia. The respondent's submission set out in Section II required that the agreement be formed at least partly in Australia. But, as indicated, we would go further. It is enough if steps were taken in Australia in furtherance of the agreement.

It is unnecessary to determine, as it was unnecessary in Doot, whether the mere suffering of the consequences of the implementation of the conspiracy would, if felt in Australia, be sufficient. Nor does any question arise here respecting conspiracies formed in Australia for implementation outside this country, or in that regard, the controversial [153] decision of the House of Lords in Board of Trade v Owen [154] .

Goode, "Contemporary Comment - Two New Decisions on Criminal "Jurisdiction": The Appalling Durability of Common Law", Criminal Law Journal, vol 20 (1996) 267, at pp 270-272 . 2. [1957] AC 602.

However, territorial nexus with the nation as a whole is not sufficient to provide an answer for the present appeals. Nor is it sufficient that the appellants were before the South Australian Court to face the charges brought against them. What, then, was the connection with South Australia that gave the South Australian court jurisdiction?

The offences charged in these appeals were common law offences and were not created by federal law [155] . The Supreme Court was not exercising federal jurisdiction; s 73(ii) of the Constitution established the right of final appeal to this Court. At the trial, there was no departure from the traditional common law notion that the governing law, as to substance and procedure, was that in force in the South Australian forum. Three aspects of the matter may be noted: (i) the substantive offences were created by the common law of Australia (in force in the South Australian forum), not by South Australian statute having some specified or necessary nexus with that "law area"; and (ii) the conduct constituting the offences charged would, it may be assumed, have rendered the appellants liable to prosecution in the courts of other States, had they had control over the persons of the appellants, for crimes against the common law or the statute law of the States in question; and (iii) the investigative methods and procedure of police and prosecution authorities, the rules of evidence and the penalties may have differed between States. But none of these three aspects of the matter means that some question of conflict of laws or choice of laws arose. The governing law, both as to substance and procedure, was that in force in South Australia.

Where, by statute enacted by the Parliament or by the legislature of a Territory under authority derived from such a statute of the Parliament, the Supreme Court of that Territory exercises jurisdiction with respect to common law rights and duties, the rights and duties in question ultimately depend for enforcement on that statute.

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