Reid v The Queen S191/1996 [1998] HCATrans 34 (13 February 1998)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S191 of 1996

B e t w e e n -

JOHN JURIEDINI REID

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

BRENNAN CJ

CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 13 FEBRUARY 1998, AT 11.49 AM

Copyright in the High Court of Australia

MR J.C. PAPAYANNI: If the Court pleases, I appear for the applicant. (instructed by Jeffreys & Associates)

MR A.M. BLACKMORE: If the Court pleases, I appear for the respondent. (instructed by the Office of the Director of Public Prosecutions (New South Wales))

BRENNAN CJ: Yes, Mr Papayanni.

MR PAPAYANNI: The charge in this case was one of, by deception, dishonestly obtain a valuable thing. The offence is set out on page 21 of the application book and sets out between 29 April 1987 and 9 May 1987. Now, during those times, and at all relevant times in relation to the elements of the offence, the applicant, who was born in the Philippines, had a Filipino passport and was also, from 30 July 1986 until about May 1988, resident in the Philippines.

The question here, really, in relation to the charge, which your Honours have a copy of, refers to - it is section 178BA of the Crimes Act:

Whosoever by any deception dishonestly obtains for himself or another person any money or valuable thing -

et cetera, and the vital word there is the word "whosoever". Now, the question here is does "whosoever" mean within or without the State of New South Wales in relation to a person who is, in a factual sense, an accessory before the fact and all the acts that the accessory before the fact committed are committed outside the jurisdiction? Now, there is no reported case which says that that person is so liable.

BRENNAN CJ: Does not Stonehouse's Case (1978) AC 55 say it?

MR PAPAYANNI: No, he was a principal, your Honour. There has been a lot of criticism of that in Treacy v The DPP.

BRENNAN CJ: Or what about Rajalingam Sivaprahasam v The Queen (1972) 20 FLR 393?

MR PAPAYANNI: That case was different to this case, your Honour.

BRENNAN CJ: What is the difference?

MR PAPAYANNI: Well, it was not accessory. They were all principals. See, in the case of Stonehouse, he was a principal who was outside the jurisdiction but who held a British passport. Now, upon the terminatory theory it was decided that the last act in the terminatory theory would have taken place in England and, therefore, that it gave them jurisdiction.

So, the terminatory theory, as far as an accessory is concerned, and by reason of what "whosoever" means - and that was decided in McLeod v The Attorney-General - and McLeod v The Attorney-General held that there was no jurisdiction in the State to make any extraterritorial legislation. They said in that - - -

BRENNAN CJ: Just a moment. What are the elements of this offence?

MR PAPAYANNI: Your Honour, the elements were all committed within the jurisdiction by the principal, Violich.

BRENNAN CJ: That is right.

MR PAPAYANNI: But the acts of the accused - - -

BRENNAN CJ: Which was what?

MR PAPAYANNI: The applicant.

BRENNAN CJ: Aiding and abetting?

MR PAPAYANNI: Aiding - no, not - well, accessory before the fact, were all committed outside the jurisdiction.

BRENNAN CJ: Are you saying that an accessory before the fact to an offence committed within the jurisdiction is not amenable to the jurisdiction?

MR PAPAYANNI: Accessory outside the jurisdiction. The situation is this - that is what I am saying.

BRENNAN CJ: Yes. Have you any authority for that?

MR PAPAYANNI: There is no authority to say otherwise, your Honour, except that McLeod v The Attorney-General says that and also in Air-India v Wiggins at page 217, which your Honours have a copy, it goes on the construction of the section.

My Lords, 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 was not intended to make conduct taking place outside the territorial jurisdiction of the Crown an offence triable in an English criminal court. As Viscount Simonds put it.....". . . apart from those exceptional cases in which specific provision is made in regard to acts committed abroad -

and that is as in the case of the English Acts which have offences against the person, the foreign Extradition Acts and so on -

the whole body of the criminal law of England deals only with acts committed in England." Cox v Army Council was concerned with a statute which in the plainest possible words made acts committed abroad by serving members of the British Army offences triable by court-martial. 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 CJ said in Jameson: "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."

So, you get a situation here that in relation to these acts, that in order to prove an accessory before the fact situation, you prove the principal offence which was that down by Violich inside the jurisdiction and then you prove that the acts of the accessory before the fact, you prove those acts - you also prove that by those acts he assisted and you also prove that he knew - and that is Giorgianni's Case - of the plan or knew that the principal act was to be committed. So, you get the situation there that in relation to those acts the "whosoever" in 178BA should include "whosoever, within or without New South Wales" and McLeod v The Attorney-General said that that is not within the territorial legislation of the State of New South Wales.

BRENNAN CJ: How do you distinguish Stonehouse's Case?

MR PAPAYANNI: Stonehouse's Case is a principal in the first place. Stonehouse was an attempt situation. Stonehouse was criticised in Treacy v The DPP. There are a number of reasons why Stonehouse is not good law. First of all, in relation to that, the acts were so remote. Secondly, the situation relied upon a presumption that the wife would make an application in England. No application was made by her which was against Robinson's Case. Robinson's Case was a case where it was said that a person was not guilty of the offence or attempt to commit offence in relation to that by setting up a robbery because he had not made a claim on the insurance company. No claim was made in Stonehouse's Case. If the wife had been in Germany and applied for the money - in relation to Stonehouse - and they had sent it to her, she would not have been guilty of an offence in England because the obtaining would have been in Germany. So, the presumptions in relation to Stonehouse and also in relation to the last act - - -

BRENNAN CJ: That would depend on whether the wife had made a representation in England in that situation.

MR PAPAYANNI: Well, she had not.

BRENNAN CJ: No, but the proposition that was advanced at pages 66 to 67 are quite clear that in circumstances of the kind that were there under consideration, the fact that the person who had done what was done in order to permit the wife to make the application in England was outside the jurisdiction, was nothing to the point when it came to the question of the jurisdiction of the court to try him for an attempt.

MR PAPAYANNI: It was also put that Stonehouse had a British passport and if you look at the Offences Against the Persons Act it applies to British subjects. Now, there is no such provision and we do not have any such provision here. In fact, they have brought in the Aiders and Abettors Act in England which applies to persons outside the jurisdiction but there is no such Act in New South Wales. New South Wales does not have territorial jurisdiction in relation to that.

BRENNAN CJ: They do have a provision which covers it but was not in force at the time of this case, I think.

MR PAPAYANNI: Section 3A still does not cover it, your Honour.

BRENNAN CJ: Does it not?

MR PAPAYANNI: In any case, the Commonwealth does have territorial jurisdiction, as your Honour knows, but the situation in relation to New South Wales - and that was made very clear in McLeod v The Attorney-General where they said:

In the first place it is necessary to construe the word "whosoever"; and in its proper meaning it comprehends all persons all over the world, natives of whatever country. The next word which has to -

and it goes on to that, on to "wheresoever":

Therefore, if their Lordships construe the statute as it stands, and upon the bare words, any person, married to any other person.....anywhere in the habitable globe, is amenable to the criminal jurisdiction of New South Wales, if he can be caught in that colony. That seems to their Lordships to be an impossible construction of the statute; the colony can have no such jurisdiction, and their Lordships do not desire to attribute to the colonial Legislature an effort to enlarge their jurisdiction to such an extent as would be inconsistent with the powers committed to a colony, and, indeed, inconsistent with the most familiar principles of international law.

Well, the international law says the subjects of different States are, in effect - that you cannot make laws in relation to them.

England can make laws in relation to a person in France. If a person in France murders somebody else or kills somebody else, they can try that in England, that they had a case in relation to a situation where, if a person was killed in France and came to England for treatment and died in England, could he be tried in England? The situation was in England that where the death occurred in relation to murder there was jurisdiction but because of the comity of nations that they decided they could not try it and Dr Glanville Williams agrees with that in relation to it.

The situation here is simple, that if a person sells to somebody outside New South Wales, a steel jaw trap, for argument sake, and the persons says to him, "We are going to use this to kill dingoes in New South Wales", and the steel jaw trap is banned in New South Wales and illegal and an offence to use it, that person then who sells that person the steel jaw trap would be guilty of an offence within New South Wales.

CALLINAN J: Mr Papayanni, part of the offence was undoubtedly committed in New South Wales, was it not?

MR PAPAYANNI: The whole offence was committed here, your Honour.

CALLINAN J: Yes, and Lord Halsbury in McLeod says at page 235:

The jurisdiction over the crime belongs to the country where the crime is committed -

and the crime was, as you say, wholly committed in New South Wales.

MR PAPAYANNI: The crime was committed in New South Wales but what I am putting is that the accessory before the fact - there is no case when an accessory before the fact has been found guilty of being accessory to a crime committed within New South Wales.

CALLINAN J: I would not characterise your client as a mere accessory before the fact, Mr Papayanni.

MR PAPAYANNI: Your Honour, the situation is this - and the Court of Criminal Appeal talked about a plan and so on, but the three things in relation to that matter is in relation to a question of common purpose - taking it broadly - you have a situation, you can charge a person with conspiracy. He was not charged with conspiracy. He was not charged with being present aiding and abetting because he was miles away in the Philippines. So, he was charged with an accessory before the fact. This was one of the matters that was put to the Court of Criminal Appeal, that when he gave evidence he said then that he was not aware that any claim was going to be made and he was not aware that a claim had been made until after the claim was, in fact, made which did not make him an accessory before the fact and it was said that his Honour should not have accepted that plea in relation to the matter.

So, the situation there was that according to Giorgianni's Case, if Giorgianni had been living in Victoria - Giorgianni, as your Honours probably know, was accessory before the fact to this driver of the truck driving down Mount Ousley with defective brakes and killing five people. Now, if Giorgianni had been living in Victoria as the owner of the vehicle, would he have been susceptible to the jurisdiction of New South Wales? The answer is no, for the simple reason that New South Wales only has the jurisdiction as specifically stated in 178BA.

The Privy Council has decided that "whosoever" refers to people residing or within the jurisdiction at the time of the commission of the offence. The situation here, in my submission, is quite clear, that one gets into a ridiculous situation if one can say that it is going to extradite all the people who sell - somebody might say, "I'm going to do a robbery in New South Wales", and he would sell them an SKS assault rifle overseas and that person can then be extradited if that person commits the offence as being an accessory before the fact.

BRENNAN CJ: Mr Papayanni, the answer, according to the English Court of Criminal Appeal to the Giorgianni Case is that a person who procures the driver to drive in the dangerous fashion is liable and the case in question is quoted in the case that I referred to before, Rajalingam Sivaprahasam v The Queen 20 FLR and the passage appears at page 397. The citation is from the judgment of Lord Justice Fenton Atkinson and he points out that there is one crime and it is committed in a particular place, and he adds:

"To make a man responsible for a crime . . . it is not essential that he should be present at the place where the crime takes effect if he had in fact set in motion the agencies by which the crime is effected.

MR PAPAYANNI: That is the terminatory theory, your Honour, and the situation in relation to the terminatory theory, as your Honour knows, is that where the last act in relation to the crime takes place, well then, that gives jurisdiction to that particular court.

Now, there have been a number of cases - gives jurisdiction - venue - but it does not make the persons - it does not extend the ambit of the criminal law to persons outside the jurisdiction because the State of New South Wales can only have jurisdiction over the persons within it. They are able to regulate but perhaps, according to those situations, they are there for the protection. But regulation is a different matter from protection. In the case of those cases, terminatory theory in relation to the act itself, each one has been a principal whose act: whether he posts a letter; whether he sends a missile in the post as in McNealy's Case or some of those cases, if that act, by the principal, is taken to have been - taken place within the jurisdiction.

Now, in this case all the acts of the applicant took place outside the jurisdiction when he was on a passport, a Philippine passport, and also - so the situation is completely different to any of the other cases where - he is not a principal. His act does not extend into the jurisdiction. It is a point that has not been determined before and it is a point that, in my submission, is of considerable importance because it means it gives the - it says, in effect, that McLeod v The Attorney-General is not good law within this State. It is good law within this State. In my submission, the point is of importance and which has not been decided in relation to this matter.

BRENNAN CJ: Thank you, Mr Papayanni. We need not trouble you, Mr Blackmore.

The decision of the Court of Criminal Appeal is correct. Special leave is therefore refused.

AT 12.07 PM THE MATTER WAS CONCLUDED