(nll~c.it;LII crroncous judgnlrnt) in determining its julisdiction is ti \~ry tint, one. It is tlifficult to see what is the precise tlistinctio~l 1)c~twcen type of jurisdiction denied in Conncll's Case ancl that tht, 111)hc~ld the present case.18 I t is clear, however, that whrre there in is do111,t a privative clause such as s. 108 will operatc to validate what czh initin is in excess of jurisdiction except in the case where tl~c tril~unnlacts altogether outside its jurisdiction or in bad faith1" SEC7'IOS $12 O F THE CONSTITrTIOK .'IXD "W0KI)EH HOPPING" =\lthough Harris 11. W a g n e r 1 is only another of the now long series of transport cases, it is something of a landmark in the law of Queensland. The case received a deal of publicity in the popular p r c s and produced several ripples in the political life of the State. The dr-ain on State revenue caused by the practice known as "border hopping" focuscd public attention on a case which would otlierwise have l~ccnrecognized by lawyers as a mere further refinement of tllc principle in Hzrghes a ~ V a l e Proprietary Limited I,. T h e Stntr of ~ d .Ycii' Sortth I.Valcs KO. 1.' Thc appellant, a Queensland carrier, contracted to carry goods from one Qurensland town to another via a town in Sew South \Vales. This detour was unnecessary and was done solely to attract thc application of Section 82 of the Constitution. The drixrer of the vehicle was intercepted in Queensland on tlie direct routc between the point of departure and the point of destination and at a point prior to making the detour. The question arose whcthcr the transaction was protected from certain provision-; of State transport legislation. Two relevant cases discussed by the High Court were Go/ricli 7 ' . H o t c h f < ~ and Beach 71. Wagner3. In the former caw the c,rrrier \~~ itarted from a itation within the border of New South \17alei and t h c n , b~ the only route which was possible for him, he crosied the I t co111tl be said t h a t the xvords "if the Industrial Authority is sahstied t h a t the rates of remuneration in respect of which the alteration is sought are anomalous" imply a firmer and more ol~jcctit-el). 1)ascd oplni(m than the words "\vhere i t appears rensonablj. likely t o the Court t h a t an act . . . \rill occur and t h a t the result of such an act . . . \\-ill be t o contribnte t o a lock-out". III. In Co??~zell's Cusc there was also a privative clause. Ho\re\-er, t h r Illgh <'ourt held such a clause could not deprive t h e High Court of tllv juristllctiorl conferred upon i t by s. 55 (v) of t h e Constitut~orlt o gr:iht prohibition against a n officer of tlie Common\vealth. 1 . I I!):TO) 33 X.L. T.K. 353. 2 . (1954) 93 C.L.R. 1. 18. Legal L~lrlrimitrks, I!)5C)-l!+(iO 103 I~ordt.fo~-c, recrossing thc 1>o1-der into Nclu South \l7alcs and from therv drove to Sydney. It was hcld that Section $12 applied to protrct the. carrier from thr rc.lcvant transport Icgislation of New South 11'alt.i. In the latter case the carrier carried on business at a poilit in Queensland and also at a storage dcpot which tlcl had across tlir hordcr in Yew South \Vales. In the customarj- course of his buiiricls. he loaded wool at thc. point in Qurensland for transport to Briil~aneand then carried the wool to his depot in Kew Soutll Wales whtw he transferred the wool to a larger scmi-trailer more suited for the longer haul to Brisbane. In a short joint judgment the High Court held that the carrier was protected from tlic Queensland tranhport legislation. In H i l ~ r i sv. Wagner Dixon C.J. distinguished Beach thus : 71. 1Vugtzer "Saturally in support of the appeal reliance is placed upon the deci,ion of the Court in Beach v. Wagner. But the present case cliffel-5 markedly from that. For here the undisguised fact is that thc carriage of goods to Rrisbane frorn Jandowae was the ic.r\.icc to be performed and there was no purpose to be scr~red in contracting to carry them into New South IVales and back except to secure, if it would suffice to do it, the protection of s. 92 from the application to the transaction of Pt. 111 of the Statc T ~ n ~ z s p oFacilities Acts 1946 to 1955 (Q.). But for that rt the vehicle would have taken the shortest practicable route and no contract to do otherwise would have been made."j 1)istinguishing Golden z'. Hotchkiss Taylor J . said: "In the earlier case it appeared that the only route available for tlie transport of goods lay, first of all, along public roads in Quee~iiland and then, after crossing the border into New South \\`ales, along the public roads in that State. In those circum~ t a n c e s ,carriage from the point of origin to the point of tliicharge could not be accomplished without carriage from one Statc t o a n ~ t h e r . " ~ It can be seen from the judgments delivered in Harris v. I17iigucr that the High Court has set its face against further extensions of v. the principles in Colde~z Hotchkiss and Beach o. Wagner. He who wishes to explore new devices in this field may do so at his peril. -7. 33 1.I.. J . I<., at 353. fi. 33 A.1.. J . K . a t 380. * l I . H . , R.S., LL.B, (Qld.); Senior Lecturer in Law in the Iinii.ersitx (!~uecn~iantl. >f ('IiIMIN41a LAW Murder t1j8 .Ve.glzjicncr There is no space here to do more than notice the astounding dvcision of the House of Lords in D.P.P. 11. Smith', which, if it is taken at its face value, is the greatest disaster to befall the criminal law in modern times. D was driving a car in the back of which he was carrying some sacks of stolen property. V, a policeman, noticed these sacks when the car stopped in obedience to the signal of another policeman on point duty. De4ring to investigate further, V told D to pull in to the kerb. D panicked, and instead of pulling in, accelerated. V clung on to the car but eventually was thrown off, or knocked off by collisions with other cars, and killed. D lvas convicted of capital murder.2 The Court of Criminal Appeal allowed an appeal3 against conviction and substituted a verdict of manslaughter. The ground of the appeal was that the trial judge misdirected the jury by telling them that if in their opinion a reasonable man in D's position would have "contemplated that gric\.ous I~odilyharm was likely to result" to \', then that was murder. '1'lli.i was held to be a misdirection bccause, so far as rcspoiihibility for murder was concerned, the question was what D in fact contemplated, and not what a reasonable man in his position ~vouldhave contemplated. Onc might 11:~vc thought that this conclusion was almost trite at the prcscnt day. The whole history of the law of nlurder shows a progress from the indiscriminate application of arbitrary outer standards to thrl individual, to a general rule that a man is not to be convicted of murder, as opposed to manslaughter, unlei5 he actually intended at least to inflict grievous bodily harm, or was reckless thereto. This is a progress from injustice and reflects our growing understanding of the workings of the human mind. 1 hcse considerations did not prevent Viscount Icilmuir L.C. and Lords Goddarcl, Tucker, Denning, and Parker, from unanimously reversing the decision of the Court of Criminal Appeal and laying down the barbaric rule that, insanity apart, the test of intention in murdcr "is what the ordinary responsible man would, in all the circu~nstancesof the case, have contemplated as the natural and probabl(, rt.sultu of the accused's actions. In other words, in thcir IAordshil,' opinions, murder ought to be a crime of negligcncts. 1. il9tiOj 3 \ V . l . . I < . 546. 2. Homicide . k t , 1957 (Eng.), s. 5 ( 1 ) ( d ) : "any murder of a police utllcer acting in the execution of his dut\,". A capital murder in England is one for \ v l ~ i c ht h e death penalty i i retained.3. [1960] 3 l V . l . . l i . !&-", r .