REGINA v PORTER

LOWER COURT District Court JURISDICTION : LOWER COURT 99/12/1283 FILE NUMBER(S) : LOWER COURT Mahoney ADCJ JUDICIAL OFFICER :

• 9 - IN THE COURT OF CRIMINAL APPEAL 60338/03

SPIGELMAN CJ BARR J KIRBY J

Friday 20 February 2004 REGINA v Christopher Mark PORTER Judgment 1 SPIGELMAN CJ: This is an appeal by way of a case stated by Mahoney ADCJ pursuant to s5B of the Criminal Appeal Act 1912. 2 On 3 December 1998 the Appellant flew from Perth to Sydney and arrived at the then Ansett terminal at Mascot. The New South Wales Police had information about the Appellant which caused them to be at the airport when he arrived. The police searched the Appellant's bag and found $150,000 in Australian currency. The Appellant was arrested and taken to Maroubra Police Station. He was charged pursuant to s527C of the Crimes Act 1900 with having currency in his possession which was reasonably suspected of being stolen, or otherwise unlawfully obtained. 3 The Appellant was convicted on 6 October 1999 before a Magistrate. The Appellant lodged an appeal to the District Court and Ainslie-Wallace DCJ heard an interlocutory application on 15 September 2000 in relation to jurisdiction, which was determined adversely to the Appellant. (See R v Porter (2001) 53 NSWLR 354.) Thereafter, the Appellant exercised further rights of appeal which resulted in the matter being heard by Mahoney ADCJ on 2 June 2003 as an 'all grounds' appeal. 4 According to the Stated Case, the Appellant raised four issues on the appeal:

1. Whether s4(1) of the Commonwealth Places (Application of Laws) Act 1970 had the effect of incorporating s3A of the Crimes Act 1900 into the federal law.

2. Whether, if the answer to the first question was "Yes", there was a sufficient nexus between the custody of the goods and the State of New South Wales.

3. Whether the fact that the aircraft must have passed through New South Wales airspace was sufficient to establish the necessary territorial nexus with the State of New South Wales for the charge, as laid, to be proven.

4. Whether, on the facts before the District Court the goods may reasonably be suspected of being stolen or otherwise unlawfully obtained. 5 Mahoney ADCJ determined:

As to (1): that s4(1) of the Commonwealth Places (Application of Laws) Act 1970 had the effect of incorporating s3A of the Crimes Act into the federal law.

As to (2): that (omitting irrelevant words) there was a sufficient nexus between the custody of the goods and the State of New South Wales and further, that there was a resumption of earlier custody at Maroubra Police Station after the Appellant had been arrested. (I note that the reference to the "resumption of earlier custody" goes beyond a response to the issue raised in par 4(2) of the issues. Nor is it referred to in the relevant section of the Stated Case containing "the Appellant's Contention".)

As to (3): that the fact that the aircraft must have passed through New South Wales airspace was sufficient to establish the necessary territorial nexus with the State of New South Wales for the charge, as laid, to be proven.

As to (4): as to the facts before him, the goods may reasonably be suspected of being stolen or otherwise unlawfully obtained. 6 The question of law to be determined by this Court is whether Mahoney ADCJ's determination on any of the four issues was wrong in point of law.

ISSUE 1: Whether s4(1) of the Commonwealth Places (Application of Laws) Act 1970 had the effect of incorporating section 3A Crimes Act into federal law. 7 The Appellant submitted:

1. Section 3A is not incorporated into federal law by s4(1) of the Commonwealth Places Act because of its particular tenor.

2. Alternatively, even if s3A is incorporated, it does not give New South Wales jurisdiction over the alleged offence. 8 Section 3A Crimes Act 1900 was repealed in 2000. It provided: "(1) An offence against the law of the State is committed if: (a) all elements necessary to constitute the offence (disregarding territorial considerations) exist; and (b) a territorial nexus exists between the State and at least one element of the offence." 9 Section 4(1) of the Commonwealth Places (Application of Laws) Act 1970 provides: "The provisions of the laws of a State as in force at a time (whether before or after the commencement of this Act) apply, or shall be deemed to have applied, in accordance with their tenor, at that time in and in relation to each place in that State that is or was a Commonwealth place at that time." 10 The Appellant submitted that s3A of the Crimes Act cannot be applied as federal law "in accordance with [its] tenor" pursuant to s4(1) of the Commonwealth Places (Application of Laws) Act because it deals with the territorial application of the criminal law of the State of New South Wales and its "tenor" is therefore necessarily specific to New South Wales. 11 The Appellant further submitted that because the law applied under the Commonwealth Places (Application of Laws) Act is itself a law of extraterritorial operation, s3A's operation is excluded by s3A(8)(b) (also now repealed) of the Crimes Act, which provided: "(8) This section… does not apply to an offence if: (b) the law under which the offence is created is a law of extraterritorial operation and explicitly or by necessary implication excludes the requirement for a territorial nexus and an element of the offence". 12 The Appellant's second submission appeared to be that, even if s3A applies as a federal law, this only goes to jurisdiction and does not create an offence where none previously existed. This submission does not actually address the question stated at all. Rather, it tends to support the Respondent's submission that whether s3A is incorporated or not is irrelevant to the determination of the case. 13 The thrust of the submission is: · the offence with which the Appellant was charged under s527C of the Crimes Act must be read down in accordance with s12 of the Interpretation Act NSW 1987 Section 12 of the Interpretation Act provides that in any act "a reference to locality, jurisdiction or other matter or thing is a reference to such a locality, jurisdiction or other matter or thing in and of NSW". such that it is necessary for a person actually to have a thing in their custody in New South Wales, which gives rise to a reasonable suspicion in New South Wales, that the thing has been illegally obtained or stolen in New South Wales. (This is an argument to which I will return, as it forms the foundation of submissions on the fourth issue.) · Only after s527C has been read down is s3A applied. · The effect of s3A is to grant jurisdiction over the offence that already existed, not to create a new offence - thus the effect of s3A is not that the offence is now made out if there is a reasonable suspicion outside of New South Wales that a person has in their custody inside New South Wales a thing that was illegally obtained or stolen outside of New South Wales. · Therefore, s3A does not overcome the problem that, in the Appellant's submission, there is no evidence that allowed an inference that the banknotes were illegally obtained or stolen in NSW. 14 As I understood Mr Waterstreet's oral submission today he accepted that the custody of the notes had occurred in New South Wales and that the existence of the suspicion was, in accordance with the authorities, not limited to the time of custody. He relied on the determination of whether or not the goods were illegally obtained or stolen in New South Wales, as an essential element of the offence.

ISSUE 2: Whether if the answer to the first question was "Yes", there was a sufficient nexus between the custody of the goods and the State of New South Wales. 15 The Appellant submitted that the trial judge's finding that there was a sufficient territorial nexus between the facts and the State of New South Wales because the aircraft passed through airspace over New South Wales is contrary to law - State law is subject to Commonwealth law on international and interstate flights and "it would be absurd to suggest that aircraft laden with drug dealers and their cargo could be liable in each State over which they flew". 16 The Appellant also submitted that the seizure by the police of the money at the airport immediately deprived the Appellant of custody and the Appellant did not resume custody of the money at the police station at the time he was charged. 17 The statement in the Stated Case of the issues raised in the appeal to the District Court does not refer to any such issue, although his Honour purported to determine it. Possession at Maroubra was irrelevant to a charge which referred to custody at Mascot. This was not a matter "arising on the appeal to the District Court", and, therefore, did not fall within s5B of the Criminal Appeal Act 1912. Indeed, the section of the Stated Case headed "Appellant's Contention" did not refer to this aspect of his Honour's Grounds for Determination.

ISSUE 3: Whether the fact that the aircraft must have passed through New South Wales airspace was sufficient to establish the necessary territorial nexus with the State of New South Wales for the charge, as laid, to be proven. 18 The Appellant submitted that an aircraft flying in airspace over an Australian State is insufficient to create a territorial nexus with the State below. The Appellant submitted criminal law must be pragmatically applied such that "international passengers cannot commit State offences merely by staying within an aircraft and be subject to arbitrary arrest upon landing on some foreign soil". Again, I am unable to see how possession in New South Wales air space is relevant to a charge of custody at Mascot.

ISSUE 4: Whether, on the facts, the goods may reasonably be suspected of being stolen or otherwise unlawfully obtained. 19 In written submissions the Appellant submitted that s12 of the Interpretation Act NSW applies to read down the reasonable suspicion offence dealing with goods stolen or illegally obtained, to such conduct having occurred in New South Wales. In this Court, however, Mr Waterstreet formulated his submission only in terms of the essential nature of stealing or otherwise illegally obtaining as occurring in New South Wales. He relied on s12 and also on the common law principle that crime is local. He drew an analogy with the legal history of the offences with respect to receiving stolen goods. 20 The charge before the Court was laid pursuant to s527C(1)(a) of the Crimes Act 1900 which at the relevant time provided: "(1) Any person who … (a) has anything in his or her custody, … which thing may be reasonably suspected of being stolen or otherwise unlawfully obtained, shall be liable on conviction before a stipendiary magistrate to imprisonment for 6 months, or to a fine of 5 penalty units." 21 The charge set out in the Stated Case was quite specific about the location. It contained an express reference to having money in custody "at Mascot in the State of New South Wales". The facts set out in the Stated Case make it clear that the location was the airport at Mascot. 22 The airport at Mascot is a Commonwealth place. By virtue of s4(1) of the Commonwealth Places (Application of Laws) Act 1970, s527C of the Crimes Act 1900 became a Commonwealth law applying in that place. The Appellant was found to have stolen or unlawfully obtained in that place. The Court, therefore, has before it an offence against a Commonwealth law. As I said in R v Porter, supra at [41]: "The effect of s4 of the Commonwealth Place Act is to enact a Commonwealth law in the same terms as each State law which falls within its terms. Insofar as offences are created by such a law, they are Commonwealth offences. The phrase 'according to its tenor' in s4 does not in any way prevent the transmogrification of a State law into a Commonwealth law. Any State law which is 'applied' or is 'deemed to have applied' by s4 becomes a Commonwealth law."

(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. **********

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