Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Citation : SANTOS -v- STATE DIRECTOR OF PUBLIC PROSECUTIONS [2015] WASC 335

Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Citation : RE THE COMMISSIONER OF THE DEPARTMENT OF CORRECTIVE SERVICES; EX PARTE SANTOS [2016] WASC 139

Criminal law - Commonwealth Places (Application of Laws) Act 1970 (Cth) - Whether appellant could be charged with an offence against the Misuse of Drugs Act 1981 (WA) committed in a Commonwealth place - Whether Director of Public Prosecutions (WA) could present and prosecute an indictment alleging an offence against State law in a Commonwealth place - Whether inconsistency between State and Commonwealth drug laws - Whether applications for judicial review and for a writ of habeas corpus constituted an abuse of the process of the court

Commonwealth Places (Application of Laws) Act 1970 (Cth)

Second Respondent : Mr G R Donaldson SC & Ms R Young

First Respondent : Director of Public Prosecutions (WA)

Second Respondent : State Solicitor for Western Australia

First Respondent : Mr G R Donaldson SC & Ms R Young

Second Respondent : Mr G R Donaldson SC & Ms R Young

First Respondent : State Solicitor for Western Australia

Second Respondent : State Solicitor for Western Australia

Third Respondent : Director of Public Prosecutions (WA)

Fourth Respondent : Director of Public Prosecutions (WA)

Cameron v The Queen [2004] WASCA 16; (2014) 142 A Crim R 424

Cheatle v The Queen [1993] HCA 44; (1993) 177 CLR 541

De Alwis v The State of Western Australia [2014] WASC 161

Ex parte Williams [1934] HCA 48; (1934) 51 CLR 545

Hughes v The State of Western Australia [2015] WASCA 164

Johns v The Queen [1982] WAR 52

Maxwell v The Queen [1996] HCA 46; (1996) 184 CLR 512

Mok v Director of Public Prosecutions (NSW) [2016] HCA 13; (2016) 330 ALR 201

Momcilovic v The Queen [2011] HCA 34; (2011) 245 CLR 1

Pinkstone v The Queen [2004] HCA 23; (2004) 219 CLR 444

R v Phillips [1970] HCA 50; (1970) 125 CLR 93

R v Pinkstone [2001] WASC 172; (2001) 24 WAR 406

R v Porter [2001] NSWCCA 441; (2001) 53 NSWLR 354

R v Willoughby [1975] WAR 19

Re Ackland; Ex parte Love (1989) 1 WAR 562

Re The Commissioner of the Department of Corrective Services; ex parte Santos [2016] WASC 139

Rizeq v The State of Western Australia [2016] HCATrans 233 (7 October 2016)

Santos v The State Director of Public Prosecutions [2015] WASC 335

Santos v The State of Western Australia [2013] HCASL 123

Santos v The State of Western Australia [2014] HCASL 226

Santos v The State of Western Australia [No 2] [2013] WASCA 39

Worthing v Rowell & Muston Pty Ltd [1970] HCA 19; (1970) 123 CLR 89

1 MARTIN CJ: In CACV 37 of 2016 leave to appeal should be granted on the ground that the primary judge erred in holding that Jandakot Airport was not a Commonwealth place, and that ground of appeal allowed, but that appeal and the appeal in CACV 145 of 2015, and the appellant's application for bail, should be dismissed for the reasons given by Corboy J with which I agree.

2 MAZZA JA: I respectfully agree with Martin CJ and Corboy J that these appeals and the appellant's application for bail should be dismissed.

3 In his reasons, Corboy J has set out all of the relevant background. He has also identified the contentions upon which the appeals are based and explained why those contentions cannot be accepted. I agree with his reasoning. I wish to add the following.

4 Any person convicted of an offence by a superior court has rights of appeal including as to conviction: pt 3, Criminal Appeals Act 2004 (WA). The appellant has pursued and exhausted those rights.

5 It is patent from the applications that their true purpose was to challenge by different means the decision of this court to dismiss his appeal against conviction. In my opinion, each of the applications made to Allanson J was brought for an illegitimate or collateral purpose, namely to impugn this court's decision and thereby subvert the normal criminal appellate process. Accordingly, the applications constituted an abuse of the process of the court.

6 In any event, the appellant is in custody pursuant to an order of a superior court. To put it in a way used in the cases, he is in execution on a criminal charge after judgment. Unless that judgment is set aside, the warrant upon which it is based stands as lawful authority for his detention according to its terms. In these circumstances, a writ of habeas corpus cannot lie: see Ex parte Williams [1934] HCA 48; (1934) 51 CLR 545, 548 (Starke J), 549 - 550 (Dixon J); Johns v The Queen [1982] WAR 52, 53 (Burt CJ; with whom Wickham J agreed), 54 (Jones J); and De Alwis v The State of Western Australia [2014] WASC 161 [14] (Martin CJ).

7 With respect to the appellant's application for a writ of certiorari directed to his Honour Judge Stevenson, certiorari cannot issue to the District Court in its criminal jurisdiction, including to a judge exercising that jurisdiction, except to the limited extent provided for in s 81 of the District Court of Western Australia Act 1969 (WA): Re Ackland; Ex parte Love (1989) 1 WAR 562, 567 (Brinsden J). Section 80 of that Act relevantly provides that no judgment or order of a District Court judge

should be removed by certiorari into any other court except in a manner and according to the provisions of the Act. Section 81(1) provides that proceedings may be removed from the District Court if the Supreme Court thinks it desirable that the relevant cause, matter or proceeding should be tried in that court. As the District Court was no longer seized of the proceedings, there was no scope for the operation of s 81.

8 Finally, certiorari could not lie in this case against the Director of Public Prosecutions for the State of Western Australia. As Corboy J has demonstrated, the Director was empowered to sign the indictment in this case. The decision of the Director to commence and maintain the prosecution against the appellant was insusceptible of judicial review: Maxwell v The Queen [1996] HCA 46; (1996) 184 CLR 512, 534 (Gaudron & Gummow JJ).

9 The appellant was convicted following a trial in the District Court of two counts of possessing prohibited drugs with intent to sell or supply contrary to s 6(1)(a) of the Misuse of Drugs Act 1981 (WA) (MD Act). He was alleged to have couriered drugs in an aircraft that he piloted from New South Wales, where he was a resident, to Perth. He was arrested at Jandakot Airport after his aircraft was searched and prohibited drugs were found in the rear cargo area.

10 An appeal against conviction was dismissed: Santos v The State of Western Australia [No 2] [2013] WASCA 39. The appellant applied to the High Court for special leave. His applications were refused: Santos v The State of Western Australia [2013] HCASL 123 and Santos v The State of Western Australia [2014] HCASL 226 (the applications did not concern any issue that was raised in these appeals).

11 The appellant applied for a writ of certiorari and a declaration. Allanson J refused the application for judicial review (the Judicial Review Application): Santos v The State Director of Public Prosecutions [2015] WASC 335. The appellant then applied for a writ of habeas corpus. That application was also refused by Allanson J: Re The Commissioner of the Department of Corrective Services; ex parte Santos [2016] WASC 139.

12 The appellant appeals from those decisions. I would dismiss the appeals for the reasons that follow.

13 The appellant contended in his application for judicial review that:

(1) The District Court was exercising federal jurisdiction as the appellant was a resident of New South Wales. Accordingly, the proceedings were a matter within s 75(iv) of the Constitution (a matter between a State and a resident of another State).

(2) As the District Court was exercising federal jurisdiction, Commonwealth legislation applied so that:

(a) the indictment was invalid as it was presented in the name of the State of Western Australia;

(b) the indictment could only have been presented by a prosecutor holding an appointment under s 69 of the Judiciary Act 1903 (Cth);

(c) the indictment invalidly purported to confer the judicial power of the State on the District Court;

(d) there were provisions of Commonwealth law that applied and which overrode inconsistent State provisions - in particular, the trial judge had been required to sentence under pt 1B of the Crimes Act 1914 (Cth); pt 9.1 of the Criminal Code Act 1995 (Cth) (the Commonwealth Code) applied for the purpose of determining the weight of the drugs that the appellant had allegedly possessed and the Evidence Act 1995 (Cth) applied, particularly in relation to determining the admissibility of opinion, hearsay, accomplice and prisoner informer evidence and the warnings that were required to be given about that evidence.

14 The primary judge considered that the Judicial Review Application raised the following issues [4]:

(1) [W]as the presentation of an indictment based on an offence against the laws of Western Australia and under the judicial power of the State outside power because:

(a) the offence was a Commonwealth matter;

(b) the Director of Public Prosecutions Act 1991 (WA) was inoperative by reason of s 109 of the Constitution; and

(c) the prosecutor who signed the indictment was not appointed to present a federal indictment.

(2) [D]id the District Court judge who presided at the trial err in law because:

(a) the judicial power of the State did not apply;

(b) the Sentencing Act, under which Mr Santos was sentenced, did not apply in a court exercising federal jurisdiction; and

(c) the court was proceeding under a 'null and void' indictment.

15 His Honour accepted that the District Court had exercised federal jurisdiction as the proceedings were a matter under s 75(iv) of the Constitution. Accordingly, the District Court exercised a jurisdiction conferred by s 39(2) of the Judiciary Act. However, his Honour further held that:

(1) Section 79(1) of the Judiciary Act made binding the laws of Western Australia, including the laws relating to procedure, evidence and the competency of witnesses except as otherwise provided by the Constitution or the laws of the Commonwealth. The provisions of the Criminal Procedure Act 2004 (WA) were picked up and applied as surrogate Commonwealth law.

(2) There was no provision in the Constitution or a law of the Commonwealth that provided otherwise. In particular, s 69 of the Judiciary Act did not apply. That section required that 'indictable offences against the laws of the Commonwealth' be prosecuted by indictment in the name of the Attorney General of the Commonwealth or such other person as the Governor General appointed. However, this court had held in Hughes v The State of Western Australia [2015] WASCA 164; (2015) 299 FLR 197 that the offence created by s 6 of the MD Act was an offence against the law of the State of Western Australia even though the trial court was exercising federal diversity jurisdiction or alternatively, that the offence was not 'a law of the Commonwealth' for the purpose of s 80 of the Constitution.

(3) There was no inconsistency between, on the one hand, the MD Act and the Sentencing Act 1995 (WA) and on the other hand, the Crimes Act and the Commonwealth Code. A similar allegation of inconsistency had been rejected in Hughes and his Honour considered that the reasoning of the High Court in Momcilovic v The Queen [2011] HCA 34; (2011) 245 CLR 1 established that there was no inconsistency between State offence provisions considered with State criminal process law, and Commonwealth offences considered with Commonwealth process law.

The application for a writ of habeas corpus

16 The application for a writ of habeas corpus was based on the Commonwealth Places (Application of Laws) Act 1970 (Cth) (Commonwealth Places Act) and cases that had considered the operation of that Act: R v Porter [2001] NSWCCA 441; (2001) 53 NSWLR 354; Pinkstone v The Queen [2004] HCA 23; (2004) 219 CLR 444; and Cameron v The Queen [2004] WASCA 16; (2004) 142 A Crim R 424. The application was supported by an affidavit in which the appellant stated that, among other things, the indictment that was presented in the District Court was signed by a 'State' prosecutor who was 'authorised only to file state indictments under the judicial power of the State and not in accordance with federal statute, and the judicial power of the Commonwealth' and that the 'warrant of commitment under the Western Australian Sentencing Act 1995, s 36, ... based upon the invalid indictment is therefore invalid due to the ultra vires action of the Director of Public Prosecutions and [the prosecutor]' (affidavit 7 April 2016; AB 18). The appellant further alleged in his affidavit that the Director of Public Prosecutions (WA) (the State DPP) had erred by 'failing to correctly identify the "matter", the jurisdiction that applied, and the correct offence that applied in the federal jurisdiction, thus failed to present a valid indictment in accordance with Commonwealth law'. Accordingly, the application raised similar issues to the Judicial Review Application notwithstanding that it focussed on the authority of the prosecutor to present the indictment.

17 In dismissing the application, the primary judge observed that 'the issue of [the] application of State law in a Commonwealth place does not arise in this case' [15]. It was implicit in that finding that his Honour considered that the place at which the appellant had committed the offences was not a Commonwealth place for the purpose of the Commonwealth Places Act.

18 The indictment alleged that the offences for which the appellant was convicted were committed at Jandakot. The Attorney-General noted in his submissions that the evidence at trial had been that the police had confronted the appellant on the tarmac of Jandakot Airport; the aircraft that the appellant had flown from Sydney was searched; quantities of prohibited drugs were located and the appellant was arrested. Accordingly, the appellant was charged with and convicted of having prohibited drugs in his possession at Jandakot Airport.

19 The Attorney-General referred to r 1.03(1)(l) of the Airport Regulations 1997 (Cth) which declared that Jandakot Airport was an airport site. The site was described by the land specified in pt 1.12 of sch 1 to the regulations. Part 1.12 of sch 1 referred to a number of land titles. There was no evidence at the appellant's trial that the tarmac area of Jandakot Airport was on land described in the titles specified by pt 1.12. However, the Attorney-General was prepared to concede that 'in terms of s 52 of the Constitution, such land, acquired for uses in airport, was acquired by the Commonwealth for public purposes' (second respondent's submissions, par 16). That concession should be accepted. Accordingly, the appellant was charged with having committed offences in a Commonwealth place for the purpose of the Commonwealth Places Act.

20 Although the Judicial Review Application focussed on the Judiciary Act, it is the provisions of the Commonwealth Places Act that are to be applied as the appellant's offences were alleged to have been committed at a Commonwealth place. As McHugh and Gummow JJ observed in Pinkstone v The Queen:

Section 8(2) of the Commonwealth Places Act excludes what otherwise would have been the investment of federal jurisdiction by ss 39 and 68 of the Judiciary Act 1903 (Cth). Rather, special provision is made by s 7 of the Commonwealth Places Act. That section invests Western Australian courts with federal jurisdiction in all matters arising under applied legislation such as the [MD Act] [35].

21 Further, in my view these appeals ought to be determined without drawing a distinction between the Judicial Review Application and the application for a writ of habeas corpus. As will become apparent, there are two main issues to be considered. First, having regard to the provisions of the Commonwealth Places Act, could the appellant have been charged with offences created by a State law and if so, could the State DPP present the indictment and appear to prosecute those charges against the appellant. Second, is there an inconsistency for the purpose of either s 109 of the Constitution or s 79 of the Judiciary Act between the MD Act and the Commonwealth Code and/or the Crimes (Traffic in Narcotic Drugs and Psychotropic Substances) Act 1990 (Cth) (the Crimes Trafficking Act).

22 In CACV 145/2015 (the appeal from the Judicial Review Application), the appellant alleged in his proposed grounds of appeal that the primary judge had erred by:

(1) making 'a jurisdictional error resulting in errors [of] law, by the misapplication of State judicial power on a State Court exercising Federal diversity jurisdiction (Chapter III Court)';

(2) failing to 'take direct relevant inconsistencies, that were raised into consideration, not dealt with according to law'.

23 In CACV 37/2016 (the appeal from the application for a writ of habeas corpus), the appellant alleged in his proposed grounds of appeal that the primary judge had erred by:

(1) failing to recognise that Jandakot Airport was a Commonwealth place;

(2) exercising 'power and function repugnant to and incompatible with the powers and functions of a Chapter III Court';

(3) failing to afford procedural fairness and failing to comply with s 78B of the Judiciary Act.

24 The appellant provided particulars to the proposed grounds in both appeals; made an affidavit in CACV 37/2016 that, in part, stated arguments in support of the grounds proposed in that appeal and filed written submissions in each appeal. The following summary of the appellant's contentions is taken from all of those documents.

25 It was not in issue that the District Court exercised federal jurisdiction in the proceedings against the appellant as he was an interstate resident and/or because the offences with which he had been charged were alleged to have been committed at a Commonwealth place. The appellant contended in CACV 145/2015 that a court exercising federal jurisdiction could not 'apply State jurisdiction and State judicial power'. Rather, the effect of s 39 of the Judiciary Act was that State courts were divested of their 'inherent State jurisdiction with respect to all matters referred to in s 75 and s 76 of the Constitution, and then invested with federal jurisdiction with respect to those matters; so that there cannot be dual jurisdiction in respect of any of those matters' (CACV 145 of 2015 submissions, par 25). Accordingly, the police had laid 'incorrect' charges as the offences charged were 'not known under Commonwealth law'; the 'incorrect' prosecuting authority prosecuted the charges and the indictment was not presented in accordance with s 69 of the Judiciary Act (submissions, par 29).

26 Essentially the same arguments were advanced in CACV 37/2016, except that the appellant contended that Porter, Pinkstone v The Queen and Cameron established that there was 'no State jurisdiction' or 'State judicial power' under the Commonwealth Places Act but rather, only Commonwealth offences to which Commonwealth law applied (by which the appellant meant offences created by Commonwealth legislation and laws passed by the Commonwealth Parliament).

27 The appellant also contended in CACV 145/2015 that there was an inconsistency between the MD Act and the provisions of the Commonwealth Code and/or the Crimes Trafficking Act for the purpose of both s 109 of the Constitution and s 79 of the Judiciary Act. In relation to s 79 of the Judiciary Act, it was submitted that the Commonwealth Code and the Crimes Trafficking Act were laws that 'otherwise provided' within the meaning of that section.

28 The appellant pointed to what he alleged was an inconsistency between the way in which drugs were quantified under the MD Act and the Commonwealth Code: s 312 of the Commonwealth Code 'quantifies the amount in pure form whereas the State Act provides only in total admixture' (CACV 145 of 2015 submissions, par 67). That inconsistency was a matter that the High Court had not considered in Momcilovic and, according to the appellant, a reason why this court had erred in Hughes by holding that the there was no s 109 inconsistency between the MD Act and the Commonwealth Code. Further, the question of whether the MD Act was inconsistent with the Crimes Trafficking Act had not arisen in Hughes.

29 The appellant also contended that this court had erred in deciding in Hughes that State law applied of its own force when a State court exercised federal jurisdiction and that accordingly, s 80 of the Constitution did not apply. As will become apparent, it is not necessary to consider whether Hughes was correctly decided.

30 Finally, the appellant alleged that Allanson J had erred in the application for a writ of habeas corpus by not applying the Commonwealth Places Act, by denying the appellant the opportunity to present evidence to establish that Jandakot Airport was a Commonwealth place and by refusing to identify the source of judicial power that his Honour had exercised in hearing and determining the application.

31 Section 52(i) of the Constitution provides that, 'the Parliament shall, subject to this Constitution, have exclusive power to make laws for the peace, order, and good government of the Commonwealth with respect to the seat of government of the Commonwealth, and all places acquired by the Commonwealth for public purposes'. The Commonwealth Places Act was enacted pursuant to the legislative power conferred by s 52(i) following the High Court decisions in Worthing v Rowell & Muston Pty Ltd [1970] HCA 19; (1970) 123 CLR 89 and R v Phillips [1970] HCA 50; (1970) 125 CLR 93. The effect of those decisions was that State law ceased to apply upon the acquisition by the Commonwealth of land for public purposes. Accordingly, a person could not be charged with having committed an offence against State law on or in a Commonwealth place.

32 Relevantly, s 4 of the Commonwealth Places Act states:

(1) 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.

...

(12) Where:

(a) there is not in force an arrangement with the Governor of a State under subsection (2) of section 6 of this Act;

(b) a law of that State provides that an act may or shall be done by an authority of the State; and

(c) a part of the applied provisions corresponds to that law;

that authority is empowered to do that act under that part of the applied provisions.

...

(14) Without limiting the effect of any other law of the Commonwealth, it is declared that the powers of a person under the law of a State may be exercised in that State in respect of an act done in that State notwithstanding that the act was done in or in relation to a Commonwealth place and the provisions of the laws of the State have effect in relation to anything done by a person in the exercise of a power referred to in this subsection.

The Governor-General may make an arrangement with the Governor of a State for or in relation to the exercise or performance of a power, duty or function (not being a power, duty or function involving the exercise of judicial power) by an authority of the State under the applied provisions having effect in or in relation to a Commonwealth place in that State and, where such an arrangement is in force, the power, duty or function may or shall, as the case may be, be exercised or performed accordingly.

34 Section 6(6) provides that a copy of each instrument by which an arrangement made under s 6 has been made shall be published in the Commonwealth Gazette. An arrangement for this State made pursuant to s 6(2) was published in the Commonwealth Gazette on 30 September 1971 (Commonwealth, Government Gazette, No 91 (30 September 1971) 6161 - 6162). The Solicitor-General advised that the arrangement remained in effect.

35 Section 7 and s 8 of the Commonwealth Places Act vests State courts with federal jurisdiction in respect of matters arising under the provisions of the laws of the State to be applied to a Commonwealth place pursuant to s 4(1) of the Act. In particular, s 7(1) provides:

The several courts of a State are, within the limits of their several jurisdictions, whether those limits are as to subject matter or otherwise, but disregarding any limitation that exists by reason of a place being a Commonwealth place, invested with federal jurisdiction in all matters arising under the applied provisions as having, or as having had, effect in or in relation to a Commonwealth place.

(2) Sections 39 and 68 of the Judiciary Act 1903 - 1969, and any other law of the Commonwealth that was passed or made before the commencement of this Act, do not, and, unless the contrary intention appears, any law of the Commonwealth that is passed or made after the commencement of this Act does not, operate so as to vest a court of a State with federal jurisdiction in a matter arising under the applied provisions.

(6) Sections 72 to 76 (inclusive) of the Judiciary Act 1903 - 1969 do not apply to or in relation to a trial in a court of a State for an offence against any part of the applied provisions.

Subject to this Act, proceedings (whether civil or criminal and whether original or appellate) under any part of the applied provisions shall be instituted and conducted in the same manner as though they were proceedings under the law of the State to which that part corresponds and all other proceedings in relation to any such proceedings (including declining to proceed further in a prosecution) shall also be taken as though the first-mentioned proceedings were proceedings under that law.

38 Section 12(3) provides that the trial on indictment of an offence against any part of the applied provisions shall be by jury and s 14 states:

Where a person is charged with an offence against a law of a State and the court before which he or she is charged is satisfied that:

(a) that law is inapplicable by reason of the operation of section 52 of the Constitution in relation to Commonwealth places; and

(b) a part of the applied provisions corresponds to that law;

the proceedings shall be continued as though that person had been charged with the corresponding offence under that part of the applied provisions.

39 Section 8(2) and s 8(6) are not the only provisions that affect the interaction between the Commonwealth Places Act and the Judiciary Act. Section 5(3) of the Commonwealth Places Act provides that where there is in force an arrangement with the Governor of a State under s 6(2), the provisions of the Acts set out in a schedule to the Commonwealth Places Act do not apply 'to or in relation to matters arising under the applied provisions having effect in or in relation to a Commonwealth place in that State'. The specified provisions include s 69, s 70, s 71 and s 71A of the Judiciary Act.

40 Further, s 5(4) of the Commonwealth Places Act and the schedule also excluded the application of various provisions of the Director of Public Prosecutions Act 1983 (Cth) (Commonwealth DPP Act). The provisions that are excluded are s 6(1)(a), (b), (baa), (ba), (e) and (f); s 9(1), s 9(3), s 9(3A), s 9(4), s 9(5) and s 11. The provisions of the Commonwealth DPP Act that are excluded by the Commonwealth Places Act concern the functions and powers of the Director of Public Prosecutions (Cth) (Commonwealth DPP) in commencing and carrying on prosecutions for indictable offences against the laws of the Commonwealth or carrying on proceedings for the summary conviction of persons in respect of offences against the laws of the Commonwealth.

41 Section 6(1)(e) of the Commonwealth DPP Act is only excluded where there is an arrangement under s 6(2) of the Commonwealth Places Act and the proceedings were not instituted under the applied provisions by the Director of Public Prosecutions (Cth), or an officer of or person employed by the Commonwealth. Section 6 specifies the functions of the Commonwealth DPP. Section 6(1)(e) states that the functions of the Commonwealth DPP include carrying on proceedings of a kind referred to in s 6(1)(c) and s 6(1)(d), whether or not the proceedings were instituted by the Commonwealth DPP. Section 6(1)(c) provides that the functions of the Commonwealth DPP include instituting proceedings for the commitment of persons for trial in respect of indictable offence against the laws of the Commonwealth and s 6(1)(d) refers to instituting proceedings for the summary conviction of persons in respect of offences against the laws of the Commonwealth.

The Judiciary Act

42 The excluded provisions of the Judiciary Act concern vesting federal jurisdiction in State courts in respect of matters that are not within the exclusive jurisdiction of the High Court (s 39); the application of the laws of the State or Territory in respect of offences against the laws of the Commonwealth (s 68); the prosecution of indictable offences (s 69); the place of trial for an offence against a law of the Commonwealth (s 70 and s 70A); the discharge of a person committed for trial in respect of an indictable offence against the laws of the Commonwealth (s 71) and the power of the Attorney-General of the Commonwealth to file an indictment in a court without examination or commitment for trial (s 71A). Further, provisions relating to the reservation of points of law in respect of an indictable offence against a law of the Commonwealth (s 72 - s 74), appeals and arrests of judgment (s 75 and s 76) are also excluded.

43 Section 68 and s 69 should be further noted in light of the appellant's arguments. Section 68(1) provides that the laws of a State respecting the procedure for the trial and conviction on indictment of a person charged with an offence against the laws of the Commonwealth shall apply and be applied so far as they are applicable. The balance of the section makes further provision for the conduct of criminal proceedings for offences against the laws of the Commonwealth. The fact that the Commonwealth Places Act excludes the application of s 68 is consistent with the obvious intention of Parliament to confer jurisdiction on State courts to deal with criminal proceedings involving offences committed in Commonwealth places by the Commonwealth Places Act rather than via the Judiciary Act.

44 Section 69(1) provides that indictable offences against the laws of the Commonwealth shall be prosecuted by indictment in the name of the Attorney-General of the Commonwealth or of such other person that the Governor-General appoints on that behalf. Section 69(2A) further provides that s 69(1) does not affect the power of the Commonwealth Director of Public Prosecutions to prosecute by indictment in his or her name an indictable offence against the laws of the Commonwealth.

45 The Commonwealth Places Act does not exclude the operation of s 79 of the Judiciary Act. Section 79(1) of the Judiciary Act provides that:

The laws of each State of Territory, including the laws relating to procedure, evidence, and the competency of witnesses, shall, except as otherwise provided by the Constitution or the laws of the Commonwealth, be binding on all Courts exercising federal jurisdiction in that State or Territory in all cases to which they are applicable.

46 As s 79 makes plain, the expression 'the laws of the Commonwealth' when used in the Judiciary Act refers to laws enacted by the Commonwealth Parliament.

47 Section 3 of the Director of Public Prosecutions Act 1991 (WA) (State DPP Act) defines the term 'offence' to mean an offence against a law of the State of Western Australia and against a law of the Commonwealth but, in relation to an offence against the law of the Commonwealth, limited to an offence to which particular proceedings relate where the Director is authorised to bring or conduct those proceedings.

48 Section 11(1) of the Act provides that it is a function of the Director to commence and conduct the prosecution of any offence and at any stage of the proceedings, to take over a prosecution commenced by another person of an offence. Section 11(2) provides that the function under s 11(1) may be performed despite any other written law that, among other things, requires the consent or approval of a person for a prosecution to be commenced or prescribes who can commence a prosecution or prescribes a manner in which a prosecution may be commenced. Section 20(1) provides that the Director has the power to do all things that are necessary or convenient to be done for the purpose of performing the functions of the Director.

49 It is not necessary to decide for the purpose of these appeals whether the reference to a law of the Commonwealth in the definition of the term 'offence' in the State DPP Act is only to a law enacted by the Commonwealth Parliament or whether the reference also encompasses State law that is applied as a federal surrogate law pursuant to the Commonwealth Places Act.

Section 80 of the Constitution

50 Section 80 of the Constitution provides for trial by jury on indictment of an offence against 'any law of the Commonwealth'. The question of whether s 80 of the Constitution applies to the trial of a person who has been charged with an offence created by State law and who is either an interstate resident or who is alleged to have committed an offence in a Commonwealth place is discussed in the authorities that are considered below. However, the answer to that question cannot affect the outcome of the appeal as this appellant was tried by a jury and the jury's verdict was unanimous. Accordingly, the requirements of s 80 of the Constitution were satisfied: see Cheatle v The Queen [1993] HCA 44; [1993] HCA 44; (1993) 177 CLR 541.

51 The long title to the Crimes Trafficking Act is '[a]n Act to make provision with respect to the traffic in narcotic drugs and psychotropic substances in accordance with the United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances'. The title identifies the object of the Act. The Convention is a schedule to the Act. Article 2 states that the purpose of the Convention is to promote co-operation so that the parties may address more effectively various aspects of illicit traffic in narcotic drugs and psychotropic substances having an international dimension.

52 The appellant referred to s 10 of the Act in his submissions on inconsistency. Section 10(1) provides that:

A person commits an offence against this section if:

(a) the person, on board an Australian aircraft in flight, whether in or outside Australia, engages in conduct that is a dealing in drugs; and

(b) the conduct would constitute an offence against a law in force in a State or Territory if it were engaged in by the person in that State or Territory.

53 Section 5 provides that the Act is not intended to exclude or limit the operation of any law of the Commonwealth or of a State. Section 6 of the Act defines the meaning of 'dealing in drugs' to include the possession of a narcotic drug or psychotropic substance with the intention of sale or supply. However, s 7 defines a flight of an aircraft to commence at the time of the closing of the last external door of the aircraft to be closed before the aircraft first moves for the purpose of taking off and ends at the time of the opening of the first external door of the aircraft to be opened after the aircraft comes to rest. Accordingly, the offence created by s 10 applies between the commencement and ending of a flight.

54 Arguments similar to those advanced by the appellant are not novel. For example, the respondent in R v Willoughby [1975] WAR 19 was charged with committing an offence against s 463B of the Criminal Code (WA) at the boarding entrance of an aircraft standing on the tarmac at Perth Airport. Perth Airport is a Commonwealth place. The respondent pleaded not guilty and demurred to the indictment on the grounds that the Criminal Code did not apply to a Commonwealth place; that the District Court had no jurisdiction in respect of offences allegedly committed in a Commonwealth place and the indictment was defective in that it had been presented by and in the name of the Crown Prosecutor for the State of Western Australia. The trial judge reserved for determination by the Court of Criminal Appeal questions arising out of the respondent's plea.

55 Burt J (as his Honour then was and with whom Virtue ACJ and Lavan J agreed) held that the indictment disclosed an indictable offence 'it being an offence against the law of the Commonwealth, and more particularly an offence against s 463B of the Criminal Code of Western Australia which by force of s 4(1) of the Commonwealth [Places] Act applied in accordance with its tenor at the relevant time in and in relation to [Perth] Airport' (21). His Honour further held that it was within the power conferred by s 52(i) of the Constitution for the Commonwealth Parliament to enact a law making State law applicable to a Commonwealth place.

56 His Honour referred to the arrangement made by the Governor and the Governor-General pursuant to s 6(2) of the Commonwealth Places Act and held that the effect of s 12(1) of the Act and the arrangement was that the prosecution of the respondent was to be instituted and conducted in the same manner as though it was a prosecution under State law. The Crown Prosecutor was authorised by State law to sign and present indictments. Accordingly, he was empowered by the arrangement made pursuant to s 6(2) to sign and present an indictment against the respondent. That power was consistent with the power conferred on the Governor-General by s 69 of the Judiciary Act.

57 The applicants in R v Pinkstone [2001] WASC 172; (2001) 24 WAR 406 were charged with having committed offences against s 6(1) of the MD Act at Perth Airport. One applicant (Mr Pinkstone) applied to quash the indictment on the ground that the court had no jurisdiction to try the offence as it was a Commonwealth offence that had occurred in New South Wales. The other applicant demurred to the indictment on the ground that the offence charged was a State offence in respect of a Commonwealth place and was a nullity for that reason (the demurrer relied on the form of the indictment which alleged the commission of a State offence on a Commonwealth place rather than the commission of a Commonwealth offence by the contravention of an applied State law).

58 Roberts-Smith J explained the operation of the Commonwealth Places Act as follows:

Contrary to the submission made by Pinkstone ... the Commonwealth has not, by operation of the Commonwealth Places Act returned power to the States. The Commonwealth retains exclusive legislative power in respect of Commonwealth places; by virtue of s 51(i) of the Constitution it could not be otherwise. Whilst State laws are applied to such places by virtue of s 4 of the Commonwealth Places Act, they apply as Commonwealth law. It follows that the present offences are Commonwealth offences and the trial of them is an exercise by this court of federal jurisdiction [23].

59 As to the wording of the indictment, Roberts-Smith J concluded:

As I am satisfied the Misuse of Drugs Act (WA) and the Criminal Code (WA) are inapplicable to Perth Airport by reason of the operation of s 52 of the Constitution in relation to Commonwealth places, but are part of the applied provisions and so correspond to those laws, the effect of s 14 is mandatory: the proceedings 'shall be continued' as though these accused had been charged with the corresponding offence under those parts of the applied provisions.

...

I was informed by Mr Cock QC [the then Director of Public Prosecutions (WA)] that the Commonwealth/State Agreement under s 6(2) of the Commonwealth Places Act referred to in Willoughby and published in the 'Commonwealth Government Gazette' No 91 of 30 September 1971 at 6161 ... is still operative. However, he expressly disavowed any reliance upon that here. His contention is quite simply that s 14 of the Commonwealth Places Act dictates that the proceedings, initiated as they have been by a State prosecutor on a State indictment, but charging an offence which can only be one under the applied provisions, must continue as a prosecution of Commonwealth offences in the exercise by this Court of federal jurisdiction. I accept that submission [89], [91].

The exercise of federal jurisdiction does not come via s 68 of the Judiciary Act but directly from s 7(1) of the Commonwealth Places Act. Sections 72 to 76 inclusive of the Judiciary Act are expressly excluded in respect of proceedings under the applied provisions (see s 8(6) of the Commonwealth Places Act) as are s 69, s 70, s 71 and s 71A (see s 5(3) and the Schedule to the Commonwealth Places Act). As Mr Holdenson [counsel for one of the applicants] points out (and it seems to be common ground) s 79 of the Judiciary Act is not excluded and so in these proceedings the laws of Western Australia, including the laws relating to procedure, evidence and the competency of witnesses, are to be applied.

But of course none of these provisions could derogate from s 80 of the Constitution; these being charges of Commonwealth offences, each of the accused is guaranteed the right to trial by a jury, which means a unanimous verdict: see Cheatle v The Queen [1993] HCA 44; (1993) 177 CLR 541 at 552 - 554, 557 - 558.

61 The New South Wales Court of Criminal Appeal considered similar issues in Porter shortly after the decision in R v Pinkstone. Spigelman CJ (with whom Studdert J and Ireland AJ agreed) accepted that the effect of s 4 of the Commonwealth Places Act was to enact Commonwealth law on the same terms as each State law that fell within the section. Insofar as offences were created by such a law, they were Commonwealth offences:

The phrase 'according to its tenor' in s 4 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 s 4 becomes a Commonwealth law [41].

62 His Honour considered that the expressions 'applied provisions' and 'corresponding' to State laws used throughout the Commonwealth Places Act were appropriate descriptions of the relationship between Commonwealth law and State law that had been applied by reason of the Act. His Honour also agreed with the reasoning of Roberts-Smith J in R v Pinkstone concerning the effect of a failure in the wording of a charge to refer to the fact that the offence alleged against State law operated as Commonwealth law [50].

63 There was a challenge in Porter to the authority of the Director of Public Prosecutions (NSW) (the New South Wales DPP) to take over the conduct of an appeal from a summary conviction for an offence committed in a Commonwealth place (the charge having been prosecuted by a police prosecutor). Section 9 and s 10 of the Director of Public Prosecutions Act 1986 (NSW) (New South Wales DPP Act) authorised the New South Wales DPP to perform various functions including taking over and conducting appeals. Spigelman CJ held that:

Sections 9 and 10 are applied as Commonwealth law under either s 4(1) or s 6(2) of the Commonwealth Places (Application of Laws) Act (Cth). Section 4 and s 5 of the Commonwealth Places (Application of Laws) Act authorise the New South Wales DPP to perform these functions [56].

64 The reference to either s 4(1) or s 6(2) applying s 9 and s 10 of the New South Wales DPP Act apparently reflected a submission made by the Solicitor General for New South Wales that s 4(1) picked up State laws conferring powers of arrest and search on the police [71]. His Honour also rejected an argument that the Commonwealth DPP was given exclusive authority to conduct proceedings involving offences allegedly committed in Commonwealth places. Again, his Honour concluded that the New South Wales DPP was authorised to perform the 'Commonwealth function' by s 4 and s 5 of the Commonwealth Places Act [67].

65 Porter was determined between the decision in R v Pinkstone and Mr Pinkstone's trial in which he was convicted of offences against the MD Act. Mr Pinkstone appealed against his conviction but his grounds of appeal in the Court of Criminal Appeal and the High Court did not directly raise the issues that had been determined by Roberts-Smith J. However, McHugh and Gummow JJ commented on the operation of the Commonwealth Places Act: Pinkstone v The Queen, [33] and following. After noting that Perth Airport was a Commonwealth place, their Honours stated '[a]ccordingly, the [MD Act] (read with the Criminal Code ...) is picked up by s 4(1) and given effect to within the boundaries of Perth Airport. In this way, the [MD Act], as applied by the Commonwealth Places Act, operates as a surrogate federal law' [34]. Moreover, as the MD Act operated to create surrogate federal offences, 'the trial of an indictable offence under that Act must accord with s 80 of the Constitution' [38].

66 Kirby J also briefly mentioned the effect of the Commonwealth Places Act. His Honour stated:

Because Perth Airport is a 'Commonwealth place', by virtue of the Constitution [s 52], State law (including the provisions of State criminal statutes) does not apply of its own force. As a place 'acquired by the Commonwealth for public purposes' the airport is a place where the Federal Parliament has 'exclusive power to make laws'. It is pursuant to such powers that s 4(1) of the Commonwealth Places Act was enacted. ...

...

The relevant offence alleged against the appellant was that provided in s 6(1) of the [MD Act] as applied at Perth Airport, pursuant to the foregoing federal law [81] - [83].

67 Similarly, in Mok v Director of Public Prosecutions (NSW) [2016] HCA 13; (2016) 330 ALR 201, French CJ and Bell J accepted that s 310D of the Crimes Act 1900 (NSW) (which made it an offence to escape or attempt to escape from lawful custody) could not apply of its own force to an attempted escape at Tullamarine Airport as the airport was a Commonwealth place [19]. Kiefel and Keane JJ also observed that a 'State law made applicable by a federal law operates as federal law' [52] and Gordon J considered that State laws picked up and applied by s 4 of the Commonwealth Places Act were surrogate federal laws so that, if there was a trial on indictment, that trial had to comply with s 80 of the Constitution [99].

The Commonwealth Places Act and the appellant's offences

68 The purpose and effect of the Commonwealth Places Act can be succinctly stated in light of the authorities discussed above. The purpose of the Act is to apply State law to a Commonwealth place. The effect of the Act is to apply State law to a Commonwealth place as surrogate federal law. Where a person is charged with having committed an offence against a State law in a Commonwealth place:

(a) the court dealing with the charge is exercising federal jurisdiction;

(b) the offence will be a federal offence in terms that correspond with the terms of the State law;

(c) State criminal process laws will also apply to the investigation, prosecution and trial of the accused person by a combination of s 4 (1) or s 6(1) of the Commonwealth Places Act, any arrangement that has been made under s 6(1) of the Act and s 79(1) of the Judiciary Act (and see below regarding the effect of s 12(1) of the Commonwealth Places Act and s 11 of the State DPP Act).

69 A fundamental difficulty in the appellant's submissions was the failure to appreciate the nature of federal diversity jurisdiction. There are not two entirely independent sources of law as the appellant suggests - a binary system of either State law or Commonwealth law. Rather, the Commonwealth Parliament has legislative power to enact legislation that, in this instance, applies State law to a Commonwealth place. The offences with which the appellant was charged and convicted were offences against s 6(1) of the MD Act applied as surrogate federal law by the Commonwealth Places Act. Contrary to the appellant's submissions, the charges were validly made under a law that was 'known' to Commonwealth law.

70 In Porter, Spigelman CJ considered that the New South Wales DPP Act applied to the prosecution of an offence against State law allegedly committed in a Commonwealth place by reason of either s 4(1) or s 6(2) of the Commonwealth Places Act and that the New South Wales DPP was authorised to perform 'Commonwealth functions' in relation to criminal proceedings involving offences allegedly committed in a Commonwealth place. There is no doubt that the State DPP was authorised to present and prosecute an indictment charging the appellant with offences against the MD Act for the reasons given by Spigelman CJ in Porter and/or because a combination of s 6(2) and s 12(1) of Commonwealth Places Act, s 79 of the Judiciary Act and s 11 of the State DPP Act conferred authority on the State DPP.

71 As to the second of those sources of authority, in my view the effect of s 12(1) of the Commonwealth Places Act and s 79 of the Judiciary Act (which is not excluded by the Commonwealth Places Act) is to apply the Criminal Procedure Act 2004 (WA) (CPA) to the prosecution of an offence allegedly committed in a Commonwealth place. Section 83 of the CPA provides that a prosecution in a superior court for an indictable offence may only be commenced by an authorised officer acting in the course of his or her duties. Section 80 of the Act defines an 'authorised officer' to include the State DPP and a member of the State DPP's staff appointed in writing by the DPP as an authorised officer.

72 Section 11 of the State DPP Act then confers authority on the State DPP to commence and prosecute proceedings for offences allegedly committed in a Commonwealth place as either the offence is an offence against State law for the purpose of s 11 or the State DPP has authority to prosecute the offence as an offence against a law of the Commonwealth (a surrogate federal law) by the arrangement made pursuant to s 6(2) of the Commonwealth Places Act.

73 The conclusion that the State DPP has authority to present and prosecute an indictment alleging an offence committed in a Commonwealth place is entirely consistent with the provisions of the Commonwealth Places Act. The Act excludes the application of s 69 of the Judiciary Act and those parts of the Commonwealth DPP Act that authorise the Commonwealth DPP to initiate and prosecute proceedings for an offence against a law of the Commonwealth. Plainly, the Commonwealth Parliament intended that an offence allegedly committed against a State law in a Commonwealth place would be prosecuted by the DPP for the State in which the Commonwealth place was located.

74 Finally, R v Pinkstone and Porter establish that an indictment alleging an offence committed in a Commonwealth place is not invalid if it does not refer to the Commonwealth Places Act or otherwise indicates that the charge alleged by the indictment is for an offence against State law applied by the Act.

75 The appellant in Porter alleged that there was an inconsistency for the purpose of s 109 of the Constitution between s 527C of the Crimes Act (NSW) and s 82 of the Proceeds of Crime Act 1987 (Cth). It was submitted that s 82 of the Proceeds of Crime Act 'covered the field' of possession of proceeds of crime from the commission of a Commonwealth indictable offence. Spigelman CJ characterised that submission as being 'entirely misconceived'. His Honour stated:

As noted above, by force of s 4(1) of the Commonwealth Places (Application of Laws) Act (Cth), s 527C of the Crimes Act relevantly operates as a Commonwealth law. In the circumstances, there is no 'law of a State' within s 109 [85].

76 That conclusion was adopted and applied by this court in Cameron to reject a contention made in that case that the MD Act was inconsistent with the Crimes Trafficking Act: [12] (Steytler J).

77 For the same reason, the Crimes Trafficking Act and the Commonwealth Code are not laws that 'otherwise provide' within the meaning and for the purpose of s 79 of the Judiciary Act (assuming that s 79 applies to substantive as well as procedural provisions - as to which see Hughes at [145]).

78 There are two reasons why it is not necessary to consider whether Hughes was wrongly decided as the appellant contends. First, Hughes did not concern an offence committed in a Commonwealth place so that the provisions of the Commonwealth Places Act that apply State law were not relevant.

79 Second, the issue in Hughes that the appellant contends was wrongly decided concerned whether s 80 of the Constitution applied to a trial where a State court exercised federal diversity jurisdiction pursuant to the Judiciary Act. This court held that s 80 did not apply either because State law applied of its own force even though the trial court was exercising federal jurisdiction (so that the offence was not against a law of the Commonwealth) or because a State law applied as federal law under the Judiciary Act was not a law of the Commonwealth for the purpose of s 80 (that is, a law of the Commonwealth for the purpose of s 80 was a law enacted by the Commonwealth Parliament).

80 One of the appellants in Hughes, who was convicted on a majority verdict, has been granted special leave to appeal against this court's finding that s 80 did not apply to his trial: Rizeq v The State of Western Australia [2016] HCATrans 233 (7 October 2016). However, as has been explained, the requirements of s 80 were satisfied in the appellant's trial. Consequently, the outcome of these appeals cannot be affected by anything that was decided in Hughes.

Procedural fairness and s 78B notices

81 It is unnecessary to further consider the appellant's allegation that he was denied procedural fairness at the hearing of the application for a writ of habeas corpus having regard to the concession made by the Solicitor-General. Further, his Honour did not err in concluding that a notice under s 78B of the Judiciary Act was not required.

82 I would grant the appellant leave to appeal on the ground that the primary judge erred in holding in the application for a writ of habeas corpus that Jandakot Airport was not a Commonwealth place so that the Commonwealth Places Act did not apply to the offences committed by the appellant. I would allow that ground of appeal but would dismiss both appeals.

83 It follows that an application for bail made by the appellant in CACV 37/2016 should be refused.