Thompson v The Queen

[1989] HCA 30

High Court of Australia|1981-12-30|Before: Gaudron JJ, Dawson J, Miles JJ

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Source facts

Court

High Court of Australia

Decision date

1981-12-30

Before

Gaudron JJ, Dawson J, Miles JJ

Source

Original judgment source is linked above.

Judgment (124 paragraphs)

[1]

The applicant's case at the trial, consistent with the accounts which he gave to the police after the discovery of the two bodies in the car during the course of the police investigation, was that the two girls died when his motor vehicle hit the tree on the Monaro Highway when he endeavoured to avoid a collision with an oncoming vehicle, the headlights and driving lights of the vehicle having blinded him. The ensuing fire broke out upon the vehicle coming into collision with the tree, the girls being incinerated in the conflagration which took place. The applicant had told the police that the fire started in the engine compartment and spread to the inside of the car, engulfing it so rapidly that, although he was able to escape from the car, he could not save the deceased.

[2]

It appears that Mirjana had been living with the applicant in Queanbeyan, New South Wales, and that Ljiljana had been living with her mother in Ainslie, Australian Capital Territory. According to the applicant, he, Mirjana and Ljiljana left the house at Ainslie at about 9.30 p.m. on 29 December 1981, and subsequently drove to Bredbo, a town on the Monaro Highway in New South Wales, south of the Australian Capital Territory. The applicant told the police that he and the two girls were returning from Bredbo and travelling along the Monaro Highway towards Queanbeyan when the car hit the tree. Although the tree was only some 45 to 50 metres west of the eastern border between the Australian Capital Territory and New South Wales, it was 10 to 12 kilometres north along the Monaro Highway from the point where it crosses the southern border between the Australian Capital Territory and New South Wales. The road runs fairly close alongside the border for some distance after crossing it. If the applicant and the girls were returning from Bredbo, as he claimed, they had therefore travelled for some 10 to 12 kilometres within the Australian Capital Territory when the car hit the tree.

[39]

The fundamental principle of our criminal law is that the accused's guilt must be established beyond reasonable doubt. The law requires that standard of proof of the commission of a criminal offence in order to eliminate or minimize the chance that an innocent person might be found guilty with all the grave consequences that such an erroneous condemnation would have for the accused, for our system of justice and for the community generally: Brown v The King [20] . The fundamental principle is not offended if the facts essential to the existence of jurisdiction in the court to enter judgment are required to be established according to the civil standard of proof. That is a discrete question which may be left to a jury upon the lesser standard of proof without diverting them from the standard which they are otherwise required to apply in determining guilt or innocence. Cf. Ahern v The Queen [21] . The policy or purpose which underlies the fundamental principle is sufficiently served and the protection of the accused adequately assured if the criminal standard of proof is applied to all the facts relied upon to make out the elements of the offence. To apply that standard to the proof of facts establishing the jurisdiction of the trial court would extend the protection of an accused person to the point of entitling him to an acquittal on the ground that the prosecution could not prove beyond reasonable doubt that the offence was committed in one State or Territory rather than another, even though, if jurisdiction were assumed, the circumstances would be such as to show beyond reasonable doubt that the accused committed the offence charged. To extend the protection in this way would travel beyond the interests which the law seeks to safeguard in imposing the criminal standard of proof and at the same time adversely affect the public interest in the administration of justice by allowing a wrongdoer to escape conviction, notwithstanding that the balance of probabilities suggests that the wrongdoer is subject to the jurisdiction from which he seeks to escape. A wrongdoer clearly subject to the laws of one of two jurisdictions would escape the laws of both, even where such laws were identical, simply because the prosecution could not prove the place of the commission of the offence beyond reasonable doubt. The prospect of this outcome would be lessened if the civil standard of proof were to be applied.

[68]

In England, criminal jurisdiction in Admiralty extended to the hearing and determination of charges of murder committed on British ships on the high seas, for "it is trite and ancient law that the criminal law of England extends to British ships upon the "high seas" - an expression which in the context of Admiralty jurisdiction includes in addition to the open sea all waters below low-water mark where great ships can go": Oteri v The Queen [41] . The juristic rationalization of that doctrine, as Lord Diplock [42] stated it, "is that at common law a British ship fell under the protection of the sovereign; those on board her were within the King's peace and subject to the criminal law by which the King's peace was preserved". Their Lordships rejected the theory that a ship is a "floating island" and thus notionally within English territory. Jurisdiction was founded on the personal subjection of those aboard to the criminal law of England. By statute, the jurisdiction of the Admiral came to be exercised by the ordinary criminal courts. Jurisdiction to hear and determine charges of offences allegedly committed on British aircraft flying in foreign parts was conferred on British courts by s. 62 of the Civil Aviation Act 1949 U.K. but, in the opinion of Devlin J. in Martin [43] , that section did not apply the general body of English criminal law to persons aboard British aircraft. If that view were correct, the jurisdiction under s. 62 was limited to cases where particular criminal laws were otherwise binding extraterritorially on passengers and crew. In Reg. v Naylor [44] , Lord Parker C.J. held s. 62 to be an offence-creating section which he construed as covering "any acts or omissions which would constitute offences if committed in this country unless, and this is, I think, where Devlin J.'s case is in point, they are contrary to some purely domestic legislation". On this view, s. 62 conferred jurisdiction to hear and determine charges of offences which Devlin J. held not to be justiciable under that jurisdiction.

[73]

Nothing in this Act authorizes any court in one province in Canada to try any person for any offence committed entirely in another province. The Canadian Criminal Code, a law enacted by the Canadian Parliament, is in force throughout Canada. Therefore, the situs of an offence as between two Provinces might have affected the jurisdiction of the courts in one Province to hear and determine a charge of an offence allegedly committed in another but, as the offence is committed against a single Canadian law, no question could have arisen as to the territorial ambit of the law. In Balcombe v The Queen [50] , where a person convicted of murder in Ontario sought leave to appeal against his conviction to the Supreme Court of Canada on the ground that the evidence did not show that the murder was committed in Ontario rather than in Quebec, Fauteaux J. [51] rejected the argument that the jury should have been instructed to determine, as a matter related to jurisdiction and not as a matter related to guilt or innocence, whether, upon the view taken by them of the evidence, they were satisfied beyond a reasonable doubt that either the wounds were inflicted or the death occurred within the Province of Ontario. Holding that "the situs of the crime, in so far as it is related to the question of jurisdiction, was a question exclusively for the Court to determine", his Lordship said [52] : [The jury] are concerned only with the guilt or innocence of the prisoner at the bar. Indeed the lawful fulfilment of their duties rests on the assumed existence of the jurisdiction of the Court to try, at the place where it is held, the accused for the crime charged. They are concerned with facts as they may be related to guilt or innocence but not to jurisdiction. There is nothing under the law entitling them, through the whole course of the execution of their duties, to legally make any other pronouncements but those as to which a general or special verdict is authorized by law. If the locality of a crime is a fact on which jurisdiction to hear and determine a charge depends, I would respectfully agree. The arbiter of jurisdiction is the judge, not the jury. There can be no hearing and determination of the charge by the jury unless the court has jurisdiction to do so. Of course, the judge has jurisdiction to inquire into any facts that are necessary to determine the court's jurisdiction to hear and determine the charge but, in this country, I do not think that jurisdiction to hear and determine a charge depends upon the fact - as distinct from the allegation - that the crime occurred within a particular territory. 1. [1954] S.C.R. 303. 2. [1954] S.C.R., at p. 305. 3. [1954] S.C.R., at pp. 305-306.

[79]

apart from those exceptional cases in which specific provision is made in regard to acts committed abroad, the whole body of the criminal law of England deals only with acts committed in England. And [57] : with rare exceptions the whole body of our criminal law is "domestic" in the sense that it is made for the order and good government of this country and is applicable only to acts done on English soil. This rule may be overridden by statute but, in the construction of an offence-creating statute, the presumption is that the legislature did not intend to proscribe acts done outside the territory of the legislature. Thus, in Air-India v Wiggins [58] , Lord Diplock said: in construing Acts of Parliament there is a well-established presumption that, in the absence of clear and specific words to the contrary, an "offence-creating section" of an Act of Parliament (to borrow an expression used by this House in Cox v Army Council) was not intended to make conduct taking place outside the territorial jurisdiction of the Crown an offence triable in an English criminal court. The presumption against a parliamentary intention to make acts done by foreigners abroad offences triable by English criminal courts is even stronger. As Lord Russell of Killowen C.J. said in Jameson [59] : "One other general canon of construction is this, that if any construction otherwise be possible, an Act will not be construed as applying to foreigners in respect to acts done by them outside the dominions of the sovereign power enacting." See also per Lord Scarman [60] . And in Treacy [61] , Lord Reid said: It has been recognised from time immemorial that there is a strong presumption that when Parliament, in an Act applying to England, creates an offence by making certain acts punishable it does not intend this to apply to any act done by anyone in any country other than England. 1. [1963] A.C. 48, at p. 67. 2. [1963] A.C. 48, at p. 69. 3. (1980) 71 Cr. App. R. 213, at p. 217. 4. [1896] 2 Q.B. 425, at p. 430. 5. (1980) 71 Cr. App. R., at pp. 218-219. 6. [1971] A.C., at p. 551.

[87]

The necessity for the prosecution to prove the location of the element of an offence which brings it within the ambit of the criminal law of the forum is illustrated by Reg. v Hildebrandt [71] . There the accused was charged, inter alia, with putting explosives in an aircraft with intent to destroy it and depositing explosives in an aircraft in circumstances endangering the aircraft or persons in it. These offences were charged under the Queensland Criminal Code and related to events which occurred on a flight between Sydney and Brisbane. On appeal from his convictions before the District Court, the Court of Criminal Appeal quashed the convictions because the evidence could not establish beyond reasonable doubt that the aircraft was flying over Queensland when Hildebrandt "put" or "deposited" the explosives. Subsequently, Hildebrandt was charged and convicted before the District Court in New South Wales on three counts arising from the same incident: placing an explosive in an aircraft with intent to damage and destroy, having possession of a dangerous thing with intent to do grievous bodily harm and having possession of a dangerous thing with intent maliciously to injure the aircraft. In the Court of Criminal Appeal of New South Wales, the convictions were set aside for error in a direction to the jury, but Hildebrandt sought to avoid an order for retrial by relying on his pleas of autrefois acquit: Reg. v Hildebrandt [72] . The argument failed. Herron C.J. [73] noted that "[t]here was clearly jurisdiction in the [Queensland] District Court to try the case, including the question whether the offence took place within the borders of the State of Queensland". But the verdict of acquittal entered by the Queensland Court of Criminal Appeal was in respect of an offence different from the offence subsequently charged in New South Wales. The plea of autrefois acquit depended on the offence charged in New South Wales (which required proof of its commission in that State) being identical with the offence of which he was acquitted in Queensland (which required proof of its commission in Queensland): see per Herron C.J. [74] . Ferguson J. said [75] :

[106]

There are special circumstances in which acts committed outside a particular territory are so connected with it that their proscription and punishment can legitimately be seen as part of both the government of that territory and the government of the territory in which the acts occurred. Putting such cases to one side, it is a general thesis of the common law and an incident of the doctrine of sovereignty under international law that crime is essentially local or domestic: see e.g., Reg. v Keyn [4] . Quite apart from questions of legislative competence, it "has been recognised from time immemorial that there is a strong presumption that" a statute which creates an offence by making certain acts punishable is not intended "to apply to any act done by anyone" in a place outside the territory of the particular national legislature: see per Lord Reid, Reg. v Treacy [5] ; Cox v Army Council [6] ; Air-India v Wiggins [7] . That strong presumption applies, by analogy, to the legislation of Australian States and Territories creating criminal offences. Indeed, it is reinforced in the case of the local law of an Australian State or Territory in that the actual validity of the law will ordinarily depend upon nexus with the particular State or Territory. In the context of that strong presumption, it is clear that the provisions of the Seat of Government Acceptance Act 1909 Cth, in so far as they apply and continue the provisions of the Crimes Act 1900 N.S.W. as part of the law for the government of the Australian Capital Territory, operate to create the crime of murder under the law of the Australian Capital Territory only in circumstances where the cause of death or the death occurred within that Territory: see Crimes Act, s. 25. It follows that the locality of the acts causing death or the death is itself an ingredient or element of the crime of murder under the law of the Australian Capital Territory. If the acts causing death and death all occurred outside the Territory, there has been no offence against that law.

[108]

On the other hand, it does not follow that the jurisdiction of the Supreme Court of the Australian Capital Territory to try a charge of murder only exists if it be actually proved that the cause of death or death occurred within the Territory. The criminal jurisdiction of the Supreme Court of the Australian Capital Territory extends to the trial of alleged offences against the law of the Territory. It exists in a case where the accused is charged with murder under that law regardless of whether, in the event, the evidence establishes all or any of the ingredients of the offence charged. Indeed, where the charge is one of murder against the law of the Territory, the jurisdiction of the Supreme Court of the Australian Capital Territory is exclusive. The allegation that the cause of death or death occurred within the Territory which is implicit in a charge of murder against the law of the Territory necessarily suffices to found the jurisdiction of the Supreme Court to deal with the charge. Where locality is an ingredient of the offence charged, the matter is not, however, merely one of jurisdiction. Thus, the evidence will not suffice to prove guilt of the charge of murder under the law of the Australian Capital Territory unless it establishes the existence of all ingredients of the offence, including the locality of the cause of death or the death. That being so, the fundamental requirement of the common law that the ingredients of a criminal offence must be proved beyond reasonable doubt is prima facie applicable to the proof of locality. If the various States and Territories constituting the Commonwealth were, for purposes of identifying the content of internal laws, to be treated as independent nations with their own discrete systems of common law, the conclusion that proof of locality was required beyond reasonable doubt would, in my view, be irresistible since there would be no compelling consideration operating within the confines of the law of the particular State or Territory which would require the punishment of a person for an alleged offence against that law in circumstances where it was not established beyond reasonable doubt that the alleged offender was in fact guilty of any such offence.

[109]

In truth, however, the local laws of the various States and Territories of the Commonwealth cannot properly be treated as if they were the discrete systems of law of independent nations. They are the components of a single national legal system: see Breavington v Godleman [8] . and see, also, Sir Owen Dixon, Sources of Legal Authority, Jesting Pilate (1965), pp. 198-200. The Constitution itself embodies that system of law. It assumes the substratum of the common law upon which it was founded. It empowers the Commonwealth Parliament to make laws with respect to the subject matters which it enumerates, including laws for the government of the Territories. It continues the constitutions and laws of the States to the extent that they are consistent with both the Constitution itself and valid laws of the Commonwealth made pursuant to its terms. When inconsistency would otherwise exist between the statutory laws of different elements of the Federation, the Constitution itself resolves it: in the case of inconsistency between a Commonwealth law and a State law, by the paramountcy of Commonwealth law under s. 109; in the case of inconsistency between the laws of different States, by the confinement of the operation of State laws by reference to territorial (or predominant territorial) nexus under the constitutional structure and the mandatory full faith and credit directive of s. 118. Subject to the Constitution itself and to valid statutory provisions, the substantive law of Australia is the common law which transcends internal State or Territorial boundaries and operates as "an entire system" (cf. Sir Owen Dixon, "The Common Law as an Ultimate Constitutional Foundation", op. cit., p. 204). So it is that, within the body politic created by the Constitution, one set of facts will fall to "be adjudged by only one body of law and thus give rise to only one legal consequence, regardless of where in the Commonwealth the matter [falls] for adjudication" (per Wilson and Gaudron JJ., Breavington [9] ). That one body of law is the law of the Australian nation which speaks with a single voice and not as a babel of nine different Commonwealth, State or Territory voices all speaking at the same time but saying different things.

[111]

What then is the significance for present purposes of the fact that the laws of the various States and Territories of the Commonwealth are but part of an overall national system of law? Of itself, that fact provides no reason why the ordinary criminal onus should not apply to the proof of locality as an ingredient of an alleged offence against a law of a State or Territory to the extent that there is an issue about whether the alleged offence was committed within or beyond national territory. In such a case, the rationale of the requirement of proof beyond reasonable doubt (i.e. the protection of the innocent from wrongful conviction) exists since (special cases aside) the alleged offender will be innocent of any crime against any part of the national law if the acts constituting the alleged offence all took place outside Australian territory. The same can be said of the case where the question is whether the alleged acts took place in the State or Territory in which the accused stands charged or in some other part of the Commonwealth where they would not or might not constitute an offence. Again, in such a case, the ordinary rule that all the ingredients of a crime must be established beyond reasonable doubt should apply since there would not or might not be any crime at all if the alleged acts occurred in that other part of the Commonwealth. The position is, however, quite different in a case where the question involved in an issue about location is whether the alleged acts took place in one or other of a number of different local areas in circumstances where there is correspondence between the relevant criminal law of each in the sense that the alleged acts would constitute a criminal offence under the applicable local law if committed in any of them. In such a case, the alleged acts constitute a criminal offence under the national law regardless of in which of the possible areas of the Commonwealth they were committed and the essential relevance of their location is for the identification of the particular legal provisions under which the alleged offender is liable to be tried and punished.