14 A Commonwealth place continues to be part of the State within which it is situate. Only the power to legislate with respect to that place is exclusive to the Commonwealth Parliament. (See The Queen v Phillips (1970) 125 CLR 93 at 100, 101, 111, 112, 131-132; Pinkstone supra at [38].)
15 That a State Act should apply to a Commonwealth place in the same way as it applies throughout the State is affirmed by s4(2)(b) of the Application of Laws Act, which provides:
"4(2) This section does not:
(a) …
(b) operate so as to make applicable the provisions of a law of a State in or in relation to a Commonwealth place if that law would not apply, or would not have applied, in or in relation to that place if it were not, or had not been, a Commonwealth place."
16 It is unusual to apply a State Interpretation to Commonwealth legislation to which, ordinarily, the Acts Interpretation Act 1901 (Cth) would apply. That does, however, appear to be the result of s4 of the Application of Laws Act which picks up and applies, as Commonwealth law, both the substantive State enactment and any relevant State Interpretation Act which is required to ensure that the meaning of the State Act is unchanged when it applies to the Commonwealth place.
Interpretation of the State Law
17 The Appellant's submissions on the second issue identified above turn on the proposition that the words "being stolen or otherwise unlawfully obtained" should be interpreted to refer to a theft or an 'obtaining' in a geographic area. The words identifying the geographic area should be, it is submitted, "in New South Wales". However, the words could be stated in a different way as: "in the jurisdiction". If the latter, then the relevant territorial link is the Commonwealth of Australia. Such an approach would not change the "meaning" of the State Act. It is one way of stating that meaning. I do not find it necessary to resolve the construction issue on this basis.
18 I approach the matter on the basis of the strict construction of s527C as affirmed in Grant v The Queen (1981) 147 CLR 503, where the Court said at 507:
"From the history of this offence it is important to note the consistency with which courts, both in the United Kingdom and in Australia, have insisted upon a strict construction of the words outlining the elements of the offence, recognizing the extraordinarily serious character of a law which authorizes the arrest of a person on mere suspicion, to be followed by his conviction and possible imprisonment unless he satisfies the court that he had no reasonable grounds for suspicion that the thing in his custody bore the taint of illegality."
19 Mr C Waterstreet, who appeared for the Appellant, invoked the dictum that "crime is local" in support of the proposition that the question posed should be answered in the affirmative. This glib phrase is now of dubious relevance, particularly in a federation with a single united common law. (See Lipohar v R (1999) 200 CLR 485, especially at [15] and [91].)
20 In the case of a statutory offence, the position is as described by Lord Diplock in Treacy v Director of Public Prosectuions [1971] AC 537 at 561, quoted with approval in Lipohar supra at [94]:
"When Parliament, as in the Theft Act 1968, defines new crimes in words which, as a matter of language, do not contain any geographical limitation either as to where a person's punishable conduct took place or, when the definition requires that the conduct shall be followed by specified consequences, as to where those consequences took effect, what reason have we to suppose that Parliament intended any geographical limitation to be understood?"
21 The only relevant reason was identified as the considerations of comity. That does not apply with respect to an offence expressed in terms of custody and suspicion, both of which occur in the jurisdiction. If there are consequences in another place by reason of the theft or illegality, that can readily be accommodated. (See for example Thwaites v O'Sullivan [1965] SASR 34 at 38; Lipohar at [100] - [102], [118], [126].)
22 The offence under s527C of the Crimes Act is geographically confined in the sense that a person must be found with a "thing in his custody" and that thing must answer the description of a "thing" which "may be reasonably suspected of being stolen or otherwise unlawfully obtained". Nothing in s527C requires proof that the thing was in fact stolen or unlawfully obtained. The offence recognises that such an element cannot always be established but, nevertheless, a "reasonable suspicion" that such occurred, with respect to the very thing in custody, is sufficient to indicate that criminal conduct had occurred and, subject to the statutory defence in s527C(2), sufficient to constitute a crime.
23 The Appellant relied on the Interpretation Act 1987 (NSW), specifically s12(1)(b), which provides:
"12(1) In any act or instrument:
…
(b) a reference to a locality, jurisdiction or other matter or thing is a reference to such a locality, jurisdiction or other matter or thing in and of New South Wales."
24 The relevant "matter or thing" which is the subject of a "reference" in s527C (1) is first, the custody and, secondly, the suspicion. If both exist in New South Wales, then the offence is complete. (See R v Chan (1992) 28 NSWLR 421 at 426, 432 - 433.) There is no "reference" in s527C(1) to the 'stealing' or 'unlawful obtaining', for purposes of s12(1)(b) of the Interpretation Act. These words in s527C(1) simply describe the content of the suspicion.
25 There is clear authority against the appellant in the judgment of the Full Court of the Supreme Court of South Australia in Thwaites v O'Sullivan supra. Until the submissions in this court, that judgment has not been questioned.
26 When rejecting the argument that the words "in the State" should be inserted after the words "suspected of having been stolen or unlawfully obtained" in the South Australian statute, Chamberlain J said that such a construction would render the section futile. He added at 37:
"In most cases the suspecting officer will have no idea where or from whom the property was obtained. If the charge is to fail in a case where his suspicions proved to relate to an obtaining outside the State, as for instance, where he might intercept the suspect disembarking from an interstate plane with a valuable collection of jewellery concealed about his person , it will equally fail if it cannot be proved beyond reasonable doubt that the suspicion relates to an obtaining within the State. Since, in the nature of things this would apply in the ordinary case, the qualification of the section contended for would render it ineffective to combat the mischief which it was designed to meet." (Emphasis added.)
27 His Honour went on to say, at 38, that the legislation was passed "for the very purpose of bringing within the reach of investigation by legal process people in possession of suspected goods of unknown origin. It would be an odd reading of the section to say that the fact that the origin of the goods was unknown rendered it inoperative."
28 I find this reasoning compelling. In my opinion, the offence is intended to encompass circumstances in which the provenance, including the geographical provenance, of goods in custody is unknown. Other offences, both at common law and by statute, of dealing with unlawfully obtained goods do contain elements which require proof that a thing has in fact been stolen or unlawfully obtained. An important purpose of having an offence which turns on 'reasonable suspicion' is to cover situations in which such an element cannot be established.
29 Even if I were not of the view that the reasoning of Chamberlain J in Thwaites v O'Sullivan were correct, I would nevertheless follow this long standing decision, unless I was satisfied that it was wrong, which I am not.
30 Provisions of this character have a long history in the United Kingdom and in Australia. (See English v R (1989) 17 NSWLR 149 at 151 - 152.) With only one exception, every State and Territory has an offence expressed in, relevantly, identical terms (see Criminal Code 2002 (ACT) s324(1); Summary Offences Act 1923 (NT) s61(2); Vagrants, Gaming and Other Offences Act 1931 (Qld) s 25(1); Summary Offences Act 1953 (SA) s 41(1); Police Act 1892 (WA) s69; Police Offences Act 1935 (Tas) s39(1). Only Victoria, in s 26(1) of the Summary Offences Act 1906, expressly refers to property being stolen "whether in or outside Victoria".
31 In Victoria s26 of the Summary Offences Act 1966 was amended in 1971 to add the express reference I have mentioned. This amendment was based on a report of the Chief Justices' Law Reform Committee dated 14 April 1970 entitled Report of Sub-Committee on Proposal to Introduce an Offence of Being in Possession of Goods Stolen Outside of Victoria. It appears that this report was in response to a submission to the Government from the Chief Commissioner of Police dated 26 September 1960, supplemented on 16 December 1963. The Committee report doubted whether or not the amendment it proposed to s26 of the Summary Offences Act (Victoria) was necessary but did recommend its adoption. It is noteworthy that the Report does not refer in any way to the judgment of Thwaites v O'Sullivan. The amendment to the Victorian provision is of no assistance on the proper construction of the New South Wales provision.
32 It is desirable that legislation of so uniform a character be given a uniform interpretation, at least with respect to territorial limitations, in all Australian States. The uniform application of Thwaites would result in a national regime focusing on custody and suspicion within the State, without the need to prove where, if at all, the goods were or might have been stolen or unlawfully obtained. If Thwaites is not followed then, except in Victoria, no State would have a law applicable to goods which cross State boundaries. In a federation where interstate travel is easy, this result would not have been intended.
33 My conclusion in this respect is reinforced by the fact that since the decision in Thwaites the New South Wales Parliament has re-enacted the particular section in the same terms on two occasions: first, as s50 of the Summary Offences Act 1970 (now repealed) and, in 1979, as s527C of the Crimes Act 1900. There is a principle of statutory interpretation that, where Parliament re-enacts words which have been judicially construed, it is taken to have intended the words to bear the meaning attributed to them (see Re: Alcan Australia Limited Ex Parte Federation of Industrial Engineering Employees (1994) 181 CLR 96 at 106; see also the authorities set out in Pearce and Geddes Statutory Interpretation in Australia (Fifth edition) Butterworths 2001 at [3.39] - [3.45]).
34 There is no doubt that it will often be artificial to proceed on the basis that drafters had in mind the interpretation of the same words when drafting new or replacement legislation. Where the new statute is a mere consolidation or involves a different context, the principle would appear to have no work to do. (See for example Salvation Army (Victoria) Property Trust v Fern Tree Gully Corporation (1952) 85 CLR 159; The Queen v Reynhoudt (1962) 107 CLR 381 at 388; Flaherty v Girgis (1987) 162 CLR 574 at 594; Zickar v M G H Plastic Industries Pty Ltd (1996) 187 CLR 310 at 328 - 329, 349 - 351.)
35 The principle would not be applied by a final court of appeal where the prior decision was of a court lower in the hierarchy. (See Farrell v Alexander [1977] AC 59 at 90 - 91; R v Chard [1984] AC 279 at 291 - 292; Flaherty v Girgis supra at 594; Zikhar supra at 328 - 329.)
36 Here the weight to be given to this principle is not increased, as it often is, by the fact that the interpretation has been applied on more than one occasion. Nor is there any additional factor in the legislative history or in the nature of the legislation which reinforces the application of the rule. (See for example Electrolux Home Products Pty Ltd v Australian Workers' Union (2004) 209 ALR 116 at [161] - [162] c/f [198].)
37 The rule of statutory construction, although now entitled to minimum weight, has never been overruled. It can reinforce a conclusion supported by other legal principles. In the present case the Thwaites interpretation is, at the very least, reasonably open, putting aside my opinion that it is indeed preferable. This principle of statutory interpretation reinforces the proposition that this Court should follow another intermediate court of appeal, unless convinced that the interpretation adopted by that court is wrong.
38 Mr Waterstreet relied on an analogy with the offence of receiving stolen goods. With respect to that offence, both at common law, and in its subsequent statutory formulations, there is a long line of authority which establishes that a person cannot be convicted of receiving goods stolen outside the jurisdiction. Eventually the statutory provisions were extended to encompass goods stolen elsewhere, however, the basic principle was well established (see R v Debruiel (1861) 11 Cox C.C. 207; R v Carr and Wilson (1883) 10 QBD 76; Foster v The Queen (1967) 118 CLR 117 especially at 123 - 124).
39 This analogy was rejected in Thwaites v O'Sullivan, albeit with respect to a submission about the power of the Parliament of South Australia to pass laws with extraterritorial affect. Chamberlain J said at 36 - 37:
"…The thing that stamps the position with the prima facie character of a crime is not something that happened elsewhere, but simply a reasonably entertained suspicion arising within the state."
40 Chamberlain J relied upon the way in which the line of authority concerning receiving within the jurisdiction of goods stolen elsewhere was explained and distinguished in R v Ellis [1899] 1 QB 230. In that case the Court was concerned with an offence of obtaining property by false representations, where the false representations were made outside the jurisdiction but the property was obtained within the jurisdiction. Wills J said at 237 - 238:
"The making of the false pretences is antecedent to, and not a part of, the obtaining the goods. It is a material circumstance, because it stamps the illegality of the obtaining the goods. The gist and kernel of the offence is the obtaining the goods by improper means, not in using the improper means whereby goods were obtained, and there was therefore an entire offence within the one county, though the circumstance which stamped it with illegality took place beyond the jurisdiction. … It can make no difference that the material circumstance which stamped an otherwise innocent transaction with a character of a crime took place outside the jurisdiction of the English Courts."