Criminal Law (Territorial Application) Act 1995

The Act turns on a small number of tightly defined concepts. Each is defined in section 3 or in the operative provisions.

• Crime. The Act defines “crime” to mean (a) a crime or an offence punishable on indictment and (b) a crime under the Criminal Code that is triable summarily (s 3). The definition therefore covers both indictable offences and summary-triable Criminal Code offences; the Act’s procedures differ depending on whether the offence is indictable or is triable summarily (compare ss 5 and 6).

• Event. “Event” is defined broadly to include any act, omission, occurrence, circumstance or state of affairs, excluding states of mind such as intention or knowledge (s 3). This emphasises the Act’s focus on external occurrences as the basis for territorial nexus rather than internal mental elements.

• Necessary territorial nexus. The Act adopts the phrase “necessary territorial nexus” and expressly says it is the territorial nexus referred to in section 4 (s 3). Section 4(2) then sets out the two alternative ways a territorial nexus exists: (a) the element is or includes an event occurring in the State; or (b) the element is or includes an event that occurs outside the State while the person alleged to have committed the crime is in the State. The required nexus is therefore satisfied if any single element of the offence links to the State under either limb.

• The State. The statutory definition of “the State” extends beyond land territory to include adjacent maritime areas: the territorial sea adjacent to the State and the sea on the landward side of the territorial sea that is not within the limits of the State (s 3). This ensures the territorial nexus test applies to events occurring in those maritime zones identified.

• Presumption and rebuttal. Section 4(3) creates a legislative presumption that the necessary territorial nexus exists unless rebutted under sections 5 or 6. Sections 5 and 6 then set out different procedural rules for indictable and summary matters respectively, including who may raise the issue and the standard by which a court or jury must be satisfied that the nexus does not exist (see ss 5(6) and 6(3)).

• Procedural mechanics for disputing nexus. For indictable offences, a defendant may ordinarily only dispute the existence of the necessary territorial nexus at arraignment (s 5(1)), but the judge may permit later challenge (s 5(2)), may require the jury to determine the issue (s 5(3)), and may empanel a jury to decide the nexus before the trial (s 5(4)). If a jury is empanelled and finds the nexus exists, the same jurors may be resworn for the trial (s 5(5)). If a jury determines on the balance of probabilities that the necessary territorial nexus does not exist, the jury must return a verdict to that effect and the accused is discharged (s 5(6)). For summary matters, the court reserves and decides the issue at trial and, if satisfied on the balance of probabilities that the nexus does not exist, must return a finding to that effect and dismiss the complaint (s 6(1)-(3)). Both sections provide that, if the court or jury would in any event find the accused not guilty (other than on the ground of insanity), the verdict or finding must be not guilty rather than a factual determination about nexus (ss 5(7), 6(4)).

• Scope and non-derogation. Section 9(1) makes the Act applicable to crimes committed before or after commencement. Section 9(2) carves out three categories where the Act does not apply: where the substantive law makes place of commission an element of the crime; where the substantive law is an extraterritorial law that expressly excludes a territorial nexus requirement; or where a charge was laid before commencement. Section 9(3) states the Act is in addition to, and does not derogate from, any other basis for criminal jurisdiction.

• Powers exercisable on belief on reasonable grounds. Section 7 addresses the exercise of powers or authorities that are exercisable on a belief on reasonable grounds that a State crime has been committed. It permits those powers to be exercised if the person in whom the power is vested suspects on reasonable grounds that the elements necessary to constitute the crime exist, irrespective of whether that person suspects the territorial nexus exists.

These concepts interact to allocate where factual responsibility lies (prosecution to prove elements subject to statutory presumption about nexus), when and how the accused may litigate territorial connection, and how law enforcement may act when they have reasonable grounds to suspect criminal elements irrespective of territorial nexus suspicion.

The Act allocates rights, procedural positions and legal consequences among actors involved in criminal proceedings and enforcement. The primary affected groups, as derived from the text, are accused persons, prosecutors, courts and juries, law enforcement and other persons vested with powers or authorities, and legislators/drafters of substantive offence provisions.

• Accused persons. The Act affects an accused person’s procedural rights to dispute territorial connection. For indictable offences the Act restricts when the accused may dispute the necessary territorial nexus , ordinarily at arraignment (s 5(1)) , so accused persons must decide whether to raise the issue at that point. If they do dispute nexus on arraignment, the judge may order a pre-trial jury determination (s 5(4)) and, if a jury finds no nexus on the balance of probabilities, the accused must be discharged (s 5(6)). For summary-triable Criminal Code offences, the accused may raise the nexus issue but the court reserves consideration until trial (s 6(1)-(2)), and dismissal follows if the court is satisfied on the balance of probabilities that the nexus does not exist (s 6(3)).

• Prosecutors. The Act changes the evidential and procedural landscape prosecutors face. Section 4(1) requires that all elements necessary to constitute the crime exist and that a territorial nexus exists between at least one element and the State. However there is a statutory presumption that the necessary territorial nexus exists (s 4(3)), and the prosecution can therefore rely on that presumption unless the defence successfully rebuts it under the processes in sections 5 or 6. Prosecutors must therefore be prepared to adduce proof of the nexus if it is challenged, present evidence addressing the State-based element or the accused’s presence in the State at the time of an extraterritorial event (s 4(2)), and to meet the consequences of a jury or court finding the nexus absent.

• Courts and juries. The Act imposes duties on courts and juries to determine the territorial nexus in specific ways. Judges control when nexus challenges may be heard (s 5(2)), can require juries to determine the issue even if not raised at trial (s 5(3)), and must empanel juries for a pre-trial determination if the accused raises nexus at arraignment (s 5(4)). Juries have to apply a balance of probabilities standard to determine absence of nexus and, if satisfied the nexus does not exist, must return a verdict to that effect and the accused is discharged (s 5(6)). For summary courts the equivalent standard applies (s 6(3)).

• Law enforcement and other empowered persons. Section 7 affects persons vested with powers that are exercisable on belief on reasonable grounds that a State crime has been committed. Those persons may exercise the power if they suspect on reasonable grounds that the elements necessary to constitute the crime exist, irrespective of whether they suspect the territorial nexus exists. That means officers exercising, for example, powers under other statutes that turn on reasonable belief can rely on existence of criminal elements without needing to form or record an independent reasonable belief about territorial nexus.

• Legislators, drafters of offence provisions and policymakers. The Act interacts with the drafting of substantive offence provisions. Where a law explicitly or impliedly makes place of commission an element, or is an extraterritorial law that excludes a territorial nexus requirement, the Act does not apply (s 9(2)(a)-(b)). Therefore drafters of substantive offences and extraterritorial laws must account for these carve-outs if they intend to control territoriality differently to the default rule the Act provides.

• Parties to pre-commencement charges. Section 9(2)(c) exempts charges laid before commencement from the Act’s application. The Act therefore draws a line at commencement for outstanding prosecutions, affecting which proceedings fall under the Act’s procedural rules.

Who pays and who decides: operationally, defendants bear the risk of not raising territorial nexus issues at the times specified (particularly for indictable matters). Prosecutors bear the evidential work if the presumption is rebutted. Courts and juries decide whether the territorial nexus exists under the standards and timings set out in sections 5 and 6. Law enforcement may exercise powers without needing to establish belief in a territorial nexus (s 7), shifting practical risk about mistaken territorial assertions away from their requirement to form that belief.

The Act allocates a narrow set of duties, procedural obligations and rights to various actors. These follow from the statutory language and are confined to the Act’s purpose of fixing territorial application and dispute mechanics.

Duties and obligations

• Prosecution obligation to prove elements and, when challenged, to adduce evidence of territorial nexus. Section 4(1) sets the two-part rule: all elements necessary to constitute the crime must exist and a territorial nexus must exist between the State and at least one element. While s 4(3) creates a presumption that the necessary territorial nexus exists, that presumption may be rebutted under ss 5 or 6; when rebuttal is raised, the prosecution will be called on to meet the issue before court or jury as the procedural rules require.

• Judicial duties to manage timing and determination of nexus disputes. For indictable offences the judge ordinarily limits the accused’s right to dispute nexus to arraignment (s 5(1)), may allow later disputes (s 5(2)), may require juries to address the nexus even if not raised (s 5(3)), and must empanel a jury in certain circumstances (s 5(4)). For summary matters the court must proceed in the usual way but reserve and determine any raised issue at trial (s 6(1)-(2)). If the court or jury is satisfied on the balance of probabilities that the nexus does not exist, sections 5 and 6 prescribe the consequences (ss 5(6), 6(3)).

• Duty on jury to return particular verdicts if no nexus is found. Section 5(6) requires that if a jury is satisfied on the balance of probabilities the necessary territorial nexus does not exist, the jury must return a verdict to that effect and the accused is discharged. Section 5(7) further requires that if, irrespective of territorial nexus, the jury would find the accused not guilty (but not on the ground of insanity), the verdict must be not guilty. For summary matters the court’s power mirrors those obligations in s 6(3)-(4).

• Persons exercising powers on reasonable belief must form reasonable suspicion about the elements. Section 7 permits exercise of powers or authority exercisable on belief on reasonable grounds that a State crime has been committed if the person suspects on reasonable grounds that the elements necessary to constitute the crime exist, even if that person does not suspect a territorial nexus. That places an evidential or reasonable-suspicion-forming duty on the individual exercising the power; the Act does not require that person to hold or form a belief about territorial connection.

Rights

• Accused’s right to dispute. Accused persons have a right to dispute the existence of the necessary territorial nexus. For indictable offences that right is time-limited to arraignment unless the judge permits otherwise (s 5(1)-(2)); for summary-triable offences the issue can be reserved for trial (s 6(1)-(2)). The Act provides that a successful rebuttal results in discharge (s 5(6)) or dismissal (s 6(3)), or a finding of not guilty if the court or jury would otherwise acquit (ss 5(7), 6(4)).

• Procedural protections for jury and accused. If a jury empanelled to determine nexus finds the nexus exists, the jury may be resworn for the trial (s 5(5)), which preserves the accused’s right to trial before a jury of that panel where a nexus is found. If nexus is not established on the prescribed standard, the accused is discharged (s 5(6)) or the complaint dismissed (s 6(3)).

Limits and clarity

• No new substantive penalties or offences. The Act does not create new offences or penalties; its duties and rights are procedural and jurisdictional. The Act makes explicit that it supplements other bases of jurisdiction and does not displace those bases (s 9(3)).

• Exceptions affecting duties and rights. Section 9(2) limits application where place is an element of the offence, where extraterritorial laws exclude nexus requirements, and where charges were laid before commencement. Those exceptions alter the duties and rights created by the Act in the relevant cases.

Every duty and right described above flows from the Act’s text. The Act sets the standard of proof for a court or jury to find the necessary territorial nexus does not exist as the balance of probabilities (ss 5(6), 6(3)); that choice of standard is a key legal allocation between prosecution and defence.

The Act is procedural and territorially focused; it does not itself create new criminal penalties or specify enforcement agencies or sanctioning mechanisms. The text does, however, establish consequences and enforcement-related mechanisms which affect the progress of prosecutions and the exercise of powers.

Consequences of findings about territorial nexus

• Discharge and dismissal. Where a jury in an indictable case is satisfied on the balance of probabilities that the necessary territorial nexus does not exist, the jury must return a verdict to that effect and the accused is to be discharged (s 5(6)). For summary matters, if the court is satisfied on the balance of probabilities that the territorial nexus does not exist, the court must return a finding to that effect and the complaint is to be dismissed (s 6(3)). These outcomes terminate the prosecution in the relevant jurisdictional circumstances.

• Not guilty verdicts where appropriate. Sections 5(7) and 6(4) require that, if irrespective of whether the territorial nexus exists the jury or court would find the accused not guilty (but not on the ground of insanity), the verdict or finding must be not guilty. This preserves acquittal outcomes where the substantive merits support acquittal.

Presumptions and burden

• Statutory presumption of territorial nexus. Section 4(3) establishes a presumption that the necessary territorial nexus exists unless rebutted under sections 5 or 6. The effect is to provide prosecution with an evidentiary starting point; where the defence raises the issue under the procedures set out in ss 5 or 6 the presumption is displaced only if the court or jury is satisfied on the balance of probabilities the nexus does not exist. The Act therefore sets an evidential regime rather than altering substantive burdens of proof for criminal guilt (the Act does not alter that the prosecution must prove guilt beyond reasonable doubt).

Exercise of enforcement powers

• Exercise of powers on suspicion of elements only. Section 7 allows a person vested with powers exercisable on belief on reasonable grounds that a State crime has been committed to exercise those powers in the State if that person suspects on reasonable grounds that the elements necessary to constitute the crime exist, regardless of whether they suspect a territorial nexus exists. Practically, this provision permits law enforcement or other officials to act without having to form or hold a belief about territorial connection, so long as they reasonably suspect that the elements of a crime exist. The Act does not list particular enforcement powers; it operates by reference to powers conferred elsewhere.

No adjudicative or sanctioning body created

• The Act does not create a new enforcement agency or central body to make determinations of territorial nexus. Determinations are to be made by the courts (and juries) in the course of criminal proceedings as set out in sections 5 and 6.

No change to penalties

• The Act does not prescribe penalties for offences; it leaves penalty regimes to the substantive laws under which crimes are created. Section 9(3) confirms the Act is in addition to, and does not derogate from, other bases for criminal jurisdiction: it neither substitutes for nor amends existing penalty structures.

Implementation and enforcement risks

• Evidentiary difficulties. The Act places practical burden on prosecutions to adduce evidence of territorial nexus when challenged; conversely, defendants must marshal evidence to rebut the presumption. The Act prescribes the balance of probabilities as the standard for finding that the nexus does not exist (ss 5(6), 6(3)), which is lower than the criminal standard for guilt and may affect the course of enforcement and plea negotiations.

In sum, the Act’s enforcement impact is procedural: it determines when criminal proceedings must be dismissed or an accused discharged for lack of territorial connection and clarifies when officers may exercise powers notwithstanding uncertainty about territorial nexus. It does not itself attach or change penalties.

The Act is drafted to operate alongside, and not to supplant, substantive offence provisions and other jurisdictional bases. The text contains several explicit interactions and leaves others implicit; these are set out below with references.

Reference to the Criminal Code and summary triage

• Section 3 defines “crime” to include crimes under the Criminal Code which are triable summarily as well as indictable offences. The Act therefore interacts directly with the Criminal Code insofar as certain Criminal Code offences are summary-triable. The procedural regime in sections 5 and 6 differentiates between indictable and summary-triable offences, so practitioners must cross-reference the Code to determine trial mode.

Substantive law that makes place an element

• Section 9(2)(a) excludes the Act’s application where “the law under which the crime is created explicitly or impliedly makes the place of commission an element of the crime.” Where a substantive offence provision requires that the offence be committed within a specified place or that location be proved as an element, the Act’s territorial presumption and dispute procedures do not apply. That clause preserves drafters’ intent where territoriality is purposely part of the offence definition.

Extraterritorial laws

• Section 9(2)(b) excludes laws that are “laws of extraterritorial operation which explicitly or impliedly exclude the requirement for a territorial nexus between the State and an element of the crime.” This recognises that some offences are intended to operate extraterritorially (for example, to criminalise conduct occurring wholly outside the State) and that such laws can expressly dispense with the need for any territorial nexus.

Temporal effect and charges already laid

• Section 9(1) states that the Act applies to crimes committed before or after commencement, which is a broad temporal reach. But section 9(2)(c) carves out charges laid before commencement so that ongoing proceedings started prior to the Act’s commencement are not subject to its new procedures. This creates a transitional rule requiring cross-reference to the date a charge was laid to determine applicability.

Non-derogation and cumulative jurisdictional bases

• Section 9(3) expressly states the Act is in addition to, and does not derogate from, any other basis on which the court may exercise criminal jurisdiction. The practical effect is cumulative: the territorial test in section 4 supplements existing bases of jurisdiction (for instance, nationality, passive personality, protective jurisdiction) but does not extinguish or override them.

Exercise of powers under other statutes

• Section 7 permits exercise of powers that are otherwise exercisable on a belief on reasonable grounds that a State crime has been committed, even if the person exercising the power does not suspect a territorial nexus. That requires practitioners to interpret the Act alongside powers conferred by other statutes. Where another statute gives an officer power conditional on reasonable belief of a State crime, section 7 authorises exercise based on suspected elements, so long as reasonable grounds exist to suspect those elements.

Maritime and territorial definitions

• The Act’s definition of “the State” in section 3 includes the territorial sea adjacent to the State and certain sea areas on the landward side of the territorial sea. That interacts with maritime jurisdiction rules in other laws, and ensures that conduct in those maritime zones falls within the territorial nexus test unless excluded by section 9(2)’s exceptions.

Procedural law and jury management

• Sections 5 and 6 impose procedures on criminal proceedings (arraignment timing, pre-trial jury empanelling, reserved issues at trial). These procedural rules will interact with existing criminal procedure rules in other legislation or practice directions. For example, the right to challenge jurisdictional facts at arraignment (s 5(1)) must be reconciled with arraignment procedures otherwise prescribed. Courts will need to manage these interactions in practice.

Limits on application

• Because the Act only applies where substantive law does not already address the place of commission or explicitly exclude territorial nexus, practitioners must cross-check the specific offence provision before invoking the Act. The Act does not alter substantive elements where those elements already include place, nor does it affect extraterritorial statutes that explicitly were written to reach outside the State.

In short, the Act operates as a procedural and jurisdictional overlay. It must be read in conjunction with the Criminal Code, substantive offence provisions, statutes conferring powers and existing procedural rules. Section 9 provides express carve-outs and a non-derogation clause that frame how the Act integrates with the broader statutory landscape.

The text supplied contains no express amendments, amendment dates or schedules of changes to the Act. The Act itself records only its short title (s 1) and that it commences on the day it receives Royal Assent (s 2). There is no express schedule of amendments or later modification in the provided text.

Practical consequences of the Act’s drafting choices relevant to amendment history

• Commencement and retrospective application. The Act commences on Royal Assent (s 2) and section 9(1) states the provisions apply to crimes committed before or after commencement. That drafting choice gives the Act broad temporal reach at commencement and suggests that any subsequent amendments to the Act could have immediate effect, subject to ordinary rules about retrospective operation and the transitional carve-out in section 9(2)(c) (charges laid before commencement).

• Transitional protection for pending charges. Section 9(2)(c) protects charges laid before commencement from the Act’s application. Any amendment that seeks to change this transitional rule would materially change which pending prosecutions are covered; the current text provides a clear cut-off.

• Preservation of other jurisdictional bases. Section 9(3) declares the Act is in addition to, and does not derogate from, any other basis for criminal jurisdiction. Any amendment that sought to alter this non-derogation approach would require explicit repeal or modification to avoid conflict with existing jurisdictional doctrines.

• No recorded revisions in the supplied text. Because the provided instrument contains no amendment notes, practitioners must assume that the version they hold is the operative text. Where amendment history is material, users must consult an authorised legislative database or the parliamentary records for amendment Bills, which are not part of the supplied text.

If a reader needs a formal amendment history (dates, amending Acts), the supplied text does not provide it. The Act’s structure (short, focused provisions with explicit commencement and temporal scope) will simplify future amendment tasks: modifications would be limited to definitions, procedural timing (ss 5-6), or the carve-outs in s 9. Any change to the presumption in s 4(3) or the standard of proof in ss 5(6)/6(3) would be consequential and should be examined in that amendment context.

The supplied text contains no citations to judicial decisions, reported authority, or litigation history. The Act itself sets out procedural rules likely to generate litigation, but it does not record any past or current cases. Accordingly, there is no litigation history in the text to summarise.

Potential litigation themes signalled by the Act

Although no cases are cited in the source, the Act’s text identifies several issues that are likely to attract litigation and judicial interpretation:

• Standard of proof for a jurisdictional fact. Sections 5(6) and 6(3) state that a jury or court must be satisfied on the balance of probabilities that the necessary territorial nexus does not exist to return a verdict of no nexus and discharge or dismissal. Litigation is likely about whether applying a balance of probabilities standard to a preliminary jurisdictional fact is constitutionally or procedurally permissible and how to reconcile that standard with the criminal standard for guilt in the substantive offence.

• Timing and waiver questions. Section 5(1) limits the time at which a person charged upon indictment may dispute the necessary territorial nexus to when they enter a plea on arraignment, subject to judicial discretion in s 5(2). Litigation may arise on whether a defendant who fails to dispute nexus at arraignment has forfeited the right and on the scope of the judge’s discretion to permit a later dispute.

• Scope of “event” and the location element. The Act defines “event” widely (s 3). Litigation could address whether particular conduct qualifies as an “event” for the purposes of s 4(2), e.g., where the alleged element is partly extraterritorial and partly in the State, or where the event is a continuing course of conduct spanning jurisdictions.

• Interpretation of the maritime element of “the State”. The definition of “the State” in s 3 explicitly includes certain maritime areas. Disputes may arise about the spatial limits of the territorial sea and “sea on the landward side of the territorial sea that is not within the limits of the State,” with litigation over the precise applications in particular maritime facts.

• Interaction with substantive provisions that make place of commission an element. Section 9(2)(a) excludes the Act’s application where the substantive law makes place an element. Litigation may be necessary to decide when a statute “impliedly” makes place an element and whether the Act’s presumption can be invoked.

• Powers exercisable on reasonable belief. Section 7 permits exercise of powers where the officer suspects on reasonable grounds that the elements exist without forming a suspicion about territorial nexus. Litigation may arise about constitutional limits on such exercise, or about operational use of such powers when territorial nexus is remote.

Because the Act contains these precise procedural prescriptions, courts will likely be asked to interpret them in contested cases. However, the supplied text does not provide any reported litigation outcomes; researchers must consult case law databases or court reports beyond the Act to find judicial treatment.

The Act contains several potential procedural and evidential pitfalls that prosecutors, defence lawyers, law enforcement and magistrates should note. These are not evaluative judgments but mechanistic uncertainties and risks arising from the Act’s language.

1. Statutory presumption of territorial nexus (s 4(3)). The Act presumes the necessary territorial nexus exists unless rebutted under sections 5 or 6. Practitioners may misread this as a shift of legal burden. The Act does not alter the prosecution’s burden to prove guilt beyond reasonable doubt; rather, it creates an evidential presumption about territorial nexus that may be rebutted by defence processes. The practical risk is that defendants who do not raise the issue at the correct time will find it harder to obtain dismissal.

2. Timing limit for indictable offences (s 5(1)). For indictable offences the ability to dispute the necessary territorial nexus is ordinarily limited to when the accused enters a plea on arraignment. If counsel neglects to raise the issue at arraignment, they may need to seek the judge’s permission under s 5(2) for a later challenge. That creates a strategic trap: defendants who delay may face an uphill discretionary hurdle.

3. Judicial discretion and reswearing of juries (ss 5(2)-(5)). The judge may allow a late dispute, may empanel a jury to determine nexus before the trial, and may reswear that jury for trial if nexus is found. These procedures raise practical questions about jury management, costs, and whether the pre-trial determination effectively splits issues. Defence counsel must weigh the tactical benefits of pre-trial jury determination against the risks of having the same jury return later verdicts.

4. Balance of probabilities standard for absence of nexus (ss 5(6), 6(3)). The Act requires a jury or court to be satisfied on the balance of probabilities that the necessary territorial nexus does not exist to order discharge or dismissal. This is a civil standard applied to a jurisdictional fact that determines whether a prosecution can proceed. Practitioners should note that the lower standard for this preliminary finding does not lower the prosecution’s ultimate criminal burden for guilt.

5. Judges may require juries to decide nexus even if not raised (s 5(3)). Section 5(3) allows a judge to require the jury to determine whether the necessary territorial nexus exists even if the issue was not raised in the trial. This can produce surprise determinations and potentially affect trial strategy. Defence and prosecution should be prepared to address territorial nexus even where neither party has expressly raised it.

6. Section 7 and exercise of powers without territorial suspicion. Section 7 allows powers exercisable on reasonable belief about a State crime to be used if the officer suspects the elements exist, regardless of territorial nexus suspicion. The practical risk is that enforcement activity might proceed in circumstances where territorial connection is later found to be absent, potentially exposing evidence or operational actions to legal challenge. Officers should document the reasonable grounds for suspecting elements exist.

7. Exclusions where place is an element or law is extraterritorial (s 9(2)(a)-(b)). The Act does not apply where the substantive law explicitly or implicitly makes place of commission an element, or where extraterritorial laws exclude the territorial nexus requirement. It can be tricky to determine when a statute “impliedly” makes place an element. Practitioners must closely scrutinise the offence provision; misclassification can lead to procedural error.

8. Transitional cut-off for existing charges (s 9(2)(c)). The Act does not apply where a charge has been laid before commencement. Parties may face disputes about the date a charge is treated as “laid” for this purpose, particularly in complex procedural histories. Careful attention to commencement timing is required.

9. Broad definition of “event” (s 3). “Event” expressly excludes states of mind and covers acts, omissions, occurrences, circumstances and states of affairs. Determining whether a particular element is an “event” that can have a territorial nexus may be contentious where elements are mixed (mental and physical). This may affect offences where the territorial link is to an act or omission closely intertwined with states of mind.

10. Maritime definition of “the State” (s 3). Including territorial sea and the sea on the landward side of the territorial sea in the definition of the State extends the Act’s reach to maritime incidents. Parties should not assume territoriality is limited to land; maritime facts will engage the Act.

11. Potential for duplicative proceedings across jurisdictions. Section 9(3) preserves other bases of jurisdiction; where multiple States or jurisdictions claim jurisdiction under different bases, parallel prosecutions remain possible, and the Act does not eliminate that risk.

12. No mechanism in the Act for interlocutory review of pre-trial nexus determinations. The Act permits pre-trial jury determinations (s 5(4)) but does not specify interlocutory appeal routes or stays pending review. This creates procedural uncertainty and potential for inconsistent practice across courts.

Each of the above is a concrete interpretative or procedural issue that flows directly from the Act’s text. Practitioners should anticipate these issues in case planning, evidence collection, and procedural advocacy.

This section provides actionable steps, cross-referenced to the Act’s provisions, for prosecutors, defence lawyers, law enforcement and courts to comply with the Act’s requirements and to manage the practical issues it creates.

For prosecutors

1. Treat territorial nexus as an element to be proved when challenged. While s 4(3) creates a presumption that the necessary territorial nexus exists, prepare evidence to establish at least one element that either occurred in the State (s 4(2)(a)) or includes an event that occurred outside the State while the accused was in the State (s 4(2)(b)). Documentation and witness evidence about location, timing and movements are essential.

2. Expect early defence challenges in indictable cases. Because s 5(1) limits disputing of nexus to arraignment, anticipate that defendants will either (a) raise the issue at arraignment or (b) risk later challenge subject to judicial discretion under s 5(2). Prepare prosecutors’ responses and, if appropriate, pre-trial evidence to resist an early rebuttal.

3. Be ready for pre-trial jury empanelling (s 5(4)). If nexus is disputed on arraignment, the judge may order a jury to determine the issue before trial. Prepare to litigate the nexus issue before the same or a separate jury and to adduce evidence to meet the balance of probabilities standard for negating absence of nexus.

4. Maintain maritime and extraterritorial evidence. If events are maritime or cross-border, collect GPS, AIS, vessel logs, border entry records or other contemporaneous records to show whether events occurred in the State or while the accused was in the State.

For defence lawyers

1. Decide on timing for raising nexus early in indictable cases. Because s 5(1) privileges an early challenge at arraignment, evaluate the factual record immediately and consider whether to dispute the necessary territorial nexus at arraignment to maximise procedural protections, including empanelling a jury to decide the issue (s 5(4)).

2. Compile evidence to rebut the presumption. If planning to rebut the presumption in s 4(3), marshal location evidence (travel records, timestamped digital evidence, witness statements) to show an element did not occur in the State and/or that the accused was not in the State at the time an extraterritorial event occurred.

3. Understand the civil standard for the nexus issue. The Act requires courts and juries to be satisfied on the balance of probabilities that the nexus does not exist to discharge or dismiss (ss 5(6), 6(3)). Tailor your factual submissions to that standard, even though the ultimate criminal standard remains beyond reasonable doubt for guilt.

4. Preserve rights to not-guilty verdicts. If the absence of nexus is uncertain but the substantive case is weak, press for a not-guilty verdict if appropriate, because ss 5(7) and 6(4) require not-guilty findings where the court or jury would otherwise acquit.

For law enforcement and other officers with powers

1. Document reasonable grounds for suspecting elements. Under s 7, an officer may exercise a power if they suspect on reasonable grounds that the elements necessary to constitute the crime exist, irrespective of whether they suspect territorial nexus. Record the reasonable grounds that informed the belief about elements to support later admissibility or procedural challenges.

2. Recognise that actions may be questioned later on nexus grounds. Because the court may later find there was no territorial nexus (s 4(3) rebutted under s 5 or 6), document operational context to show the officer acted on reasonable grounds concerning elements, and be aware of potential judicial scrutiny if evidence was gathered in a jurisdiction where the nexus is later found absent.

For courts and registry staff

1. Manage arraignments carefully. For indictable matters, ensure arraignment records clearly note whether the accused disputes the necessary territorial nexus (s 5(1)); if so, record the judge’s decision on whether to empanel a jury (s 5(4)) or allow later challenge (s 5(2)).

2. Provide clear jury directions. Where juries are asked to determine nexus issues, ensure directions explain the balance of probabilities standard for finding absence of nexus (ss 5(6), 6(3)) and the consequences of such a finding (discharge or dismissal).

3. Reconcile this Act with other procedural rules. Apply sections 5 and 6 consistently with broader arraignment, pre-trial and trial rules, including any existing rules about joinder, stays and interlocutory appeals.

For drafters and policymakers

1. If the policy intent is to exclude or include particular extraterritorial scenarios, do so explicitly in the substantive law. Section 9(2) exempts substantive laws that explicitly or impliedly make place an element, or that are extraterritorial laws excluding nexus. Clear drafting will avoid costly litigation about implied elements.

2. Consider transitional consequences. Given s 9(1)-(2), any changes to territorial rules may have retrospective operational effects; provide clear commencement and transitional provisions to avoid uncertainty over which charges are affected.

Checklist summary (by section)

• s 3: Check whether the offence falls within the Act’s definition of “crime” and whether “event” definitions cover the contested element. Confirm whether maritime areas are implicated by the Act’s definition of “the State.”

• s 4(1)-(3): Prepare to prove all elements and at least one territorial link; remember the presumption that nexus exists and the routes to rebut under ss 5 or 6.

• s 5: For indictable offences, advise accused on arraignment whether to dispute nexus; judges should consider s 5(2) discretion and s 5(3) power to require jury determination. If empanelling under s 5(4), prepare for reswearing under s 5(5).

• s 6: For summary matters, reserve and decide nexus at trial; if satisfied on balance of probabilities that nexus does not exist, return finding and dismiss complaint (s 6(3)).

• s 7: If exercising powers conditioned on reasonable belief, ensure records show reasonable grounds for suspecting the elements, even if territorial nexus is not suspected.

• s 8: When charging alternative offences, take the Act’s rule that the accused is taken to be charged with each crime into account in indictment drafting and pleas.

• s 9: Check exceptions , offence provision may itself control territoriality; identify whether a charge was laid before the Act’s commencement; note the non-derogation clause.

Concluding operational note

Compliance with the Act requires early and focused fact-gathering on location and timing, prompt procedural decisions at arraignment for indictable matters, careful documentation of reasonable grounds for law enforcement, and cross-referencing of substantive offence provisions to establish whether the Act’s default territorial rules apply. The Act provides clear, text-based procedures; following the timing rules and evidence standards in sections 4-7 and the carve-outs in section 9 will mitigate the main procedural risks.