(See now Cameron v The Queen (2002) 209 CLR 339 at [2].)
23 On the basis of an analogy with the reasoning of this court in R v Kron NSWCCA (unreported) 28 March 1995, counsel for the Appellant in the District Court, sought to contend that the theft, or the otherwise illegal obtaining, of the cash had to have occurred in New South Wales. It was in response to this submission that the Crown invoked s3A before Mahoney ADCJ.
24 It appears that his Honour proceeded on the assumption that some period of custody in New South Wales other than at Mascot had to be established. This was not consistent with the charge which specified Mascot. The first three issues identified in the Stated Case, as arising in the appeal to the District Court, were, in my opinion, misconceived. The questions posed in the Stated Case should not be answered with respect to these issues.
25 The Appellant, with respect to the first issue, invoked a proposition as a stepping-stone in his argument that appears more appropriately as a sub-category of issue 4. This was the proposition he wished to press in this Court, namely, that it is an essential element of the offence that the theft, or the illegal obtaining of the goods, the subject of the charge must have occurred in New South Wales. It is undesirable unless it is permissible to do so for this Court to embark upon a consideration of that submission. Regrettably I have come to the view it is not permissible to do so. It does not appropriately arise as a sub-issue or a stepping-stone in issue 1. Nor has issue 4 been drafted in such a way as to give rise to the question now sought to be relied upon.
26 The matter is incapable of resolution in this Court. The Court does not have the power to rewrite the question. However, if it did have that power it would be minded to do so because, notwithstanding some difficulties in the Stated Case, it does appear that the parties treated the reasons of Mahoney ADCJ as being incorporated in the Stated Case. Those reasons contain all of the relevant facts for determination of this question.
27 With respect to the first three issues, of course, there really were no relevant facts. Once it is clear that the charge related to custody at Mascot, the other circumstances and facts were not relevant to the issue. As to the facts relevant to the question now sought to be agitated it does not seem to me that there was any contention on the part of the Crown at any stage of these proceedings that the goods were stolen or illegally obtained in New South Wales.
28 I am unaware of all of the evidence that was adduced before the magistrate. I have not reviewed the evidence that was before Mahoney ADCJ in this regard. It appears unlikely that the Crown would contend that the cash was obtained in New South Wales, given the fact that on the evidence the Appellant had just flown with this money from Perth to Sydney. It does seem to me that the factual elements of the Stated Case could be readily identified and are probably sufficiently identified in the Stated Case particularly if the reasons of Mahoney ADCJ are to be treated, as I believe they have been treated, as incorporated in the Stated Case by reason of the reference in that Stated Case to those reasons.
29 Nevertheless, the question set out above as the fourth issue is of wide ranging character and does not identify with sufficient particularity the legal issue now sought to be agitated. That issue is narrow in compass, namely: Is it an essential element of the offence that the Crown prove that the goods stolen or otherwise illegally obtained were stolen or obtained in the State of New South Wales?
30 It is, in my view, strongly arguable that the question posed by issue 4 is of the character rejected by this court in R v Madden (1996) 95 A Crim R 367 at 370, i.e. it amounts in substance to an appeal from the determination, rather than the proposing of a specific legal question. However, the matter which, on the written submissions as clarified in the oral submissions, the Appellant does wish to agitate is a legal question of sufficient specificity for the purposes of s5B. It is capable of formulation. It is regrettable that the Court cannot deal with it now.
31 In my view the question in the Stated Case should be answered "inappropriate to answer" and that should apply to each of the four issues that are said to have arisen in the District Court proceedings as set out in the Stated Case.
32 The Crown has asked for its costs in this matter. There is no question of the jurisdiction of this Court to award costs in this kind of proceeding. There is no doubt that the drafting of the Stated Case and the formulation of the questions was primarily the responsibility of the Appellant. Indeed, the Court was informed that the Stated Case was so drafted. The deficiencies in the Stated Case have been identified above and must be accepted to be the responsibility of the Appellant, subject to this: the deficiencies to which I have alluded are readily apparent.
33 The fact that the charge related only to a custody occurring at the airport in Mascot was such as to render it obvious that the diversion, however induced, of Mahoney ADCJ into the consideration of custody at Maroubra or in New South Wales airspace could not be relevant to the charges formulated and the reliance in that regard on s3A was misconceived. That is a matter that, regrettably, has not been agreed between the parties.
34 Similarly the reformulation of the fourth issue, to conform with the requirements of particularity in s5B, was a matter that could readily have been agreed. It did not require any reformulation of the Stated Case in terms of identification of facts, so far as those facts have been drawn to the attention of the Court.
35 In these circumstances it is, in my view, desirable to ensure that proceedings of this character do not go off on these technical points and that the parties are encouraged to do everything they can do to ensure that the Stated Case is amended prior to the hearing in this Court. If that had occurred in this case at least the costs involved in the final preparation of the hearing and this hearing would not have been incurred.
36 The Appellant must bear a substantial proportion of the blame for the defects that have been identified; it should not, however, be ordered to pay the entirety of the Respondent's costs, in view of the fact that it was desirable, and should have been able to be of attainment, to have the technical points resolved prior to today.
37 In my view the appropriate order as to costs is that the Appellant pay half the Respondent's costs.
38 BARR J: I agree.
39 KIRBY J: I also agree.
40 SPIGELMAN CJ: Accordingly the question in the Stated Case is answered "Inappropriate to answer" and the order of the Court is that the Appellant pay half the Respondent's costs.
**********