Winfield v The Queen A4/1998 [1999] HCATrans 200 (18 June 1999)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Adelaide No A3 of 1998

B e t w e e n -

EDWARD LIPOHAR

Applicant

and

THE QUEEN

Respondent

Office of the Registry

Adelaide No A4 of 1998

B e t w e e n -

MARK JEFFREY WINFIELD

Applicant

and

THE QUEEN

Respondent

Applications for special leave to appeal

GLEESON CJ

McHUGH J

TRANSCRIPT OF PROCEEDINGS

FROM ADELAIDE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 18 JUNE 1999, AT 9.54 AM

Copyright in the High Court of Australia

____________________

MR M.F. GRAY, QC: May it please the Court, I appear with MR G.P.G. MEAD, for both the applicants, Winfield and Lipohar. (instructed by Legal Services Commission of (South Australia))

MR M.T. BOYLAN: May it please the Court, I appear with my learned friend, MR M.G. HINTON, for the respondent. (instructed by the Director of Public Prosecutions (South Australia))

MR GRAY: Your Honours, we would wish to make four points concerning these applications for special leave. Firstly, the principles underlying jurisdiction over inchoate crimes where conduct occurs outside the jurisdiction that is seeking to try those crimes has not previously been considered by this Court. These principles are important in the resolution of the jurisdictional issue in this case, and their application will determine whether the offence charged here is an offence under South Australian law.

McHUGH J: What do you say about the fax being sent to South Australia?

MR GRAY: Can I come to that? That fax is used in the context of being an overt act with respect to the conspiracy. The principles concerning conspiracies formed outside the jurisdiction, and being justiciable in the jurisdiction, relate to concepts of the conspiracy being brought into the jurisdiction. If anything, the fax must amount to the bringing of that conspiracy into the jurisdiction. We say it is not an overt act of that kind by the conspirators.

If one analyses the cases, and particularly analyses the case of Director of Public Prosecutions v Doot, your Honours will see in that case that there were specific overt acts committed by the conspirators in the jurisdiction which ultimately caused the House of Lords - certainly four of their Lordships - to find that the conspiracy was, in effect, continuing in the jurisdiction, and were it not for those overt acts, they would reserve the question concerning conspiracies formed outside the jurisdiction being justiciable in the jurisdiction.

McHUGH J: Take a mail order fraud: supposing a misrepresentation had been sent by mail from people residing in New South Wales to South Australia for the purpose of defrauding one or more people in South Australia, surely the South Australian court would have jurisdiction in those circumstances, even though the agreement was made outside the jurisdiction and the conspirators never entered South Australia.

MR GRAY: Yes, it may but that mail order fraud would rely upon crimes being committed in South Australia. The distinction we want to make in relation to this particular matter is that this is a conspiracy to defraud. It is not a conspiracy to commit a crime. We accept, for the purposes of this argument, the proposition that a conspiracy to commit a crime where that crime is directed to South Australia may well be justiciable in South Australia, but here the conspiracy charge is a conspiracy to defraud.

GLEESON CJ: Mr Gray, I am sorry to interrupt you, but we thought we might be assisted by hearing from Mr Boylan at this stage.

MR GRAY: Thank you, your Honour.

GLEESON CJ: Yes, Mr Boylan.

MR BOYLAN: May it please your Honours, the respondent's submission is that there is nothing unusual about this case. The facts of the case are such that the conspirators - - -

McHUGH J: It is unusual in the sense of being unique, is it not? It is quite unique.

MR BOYLAN: It is unique, your Honour, in the sense that my learned friend is correct in saying that there has never been a decision granting jurisdiction to the equivalent of the South Australian court in a case such as this where the allegation or the charge is one of a conspiracy to defraud as opposed to a conspiracy to commit a substantive offence. But the respondent says that the principles are exactly the same.

GLEESON CJ: I may be under a misapprehension, but there was no allegation, was there, that it was part of the agreement in the present case that an offence would be committed in South Australia? The offence was going to be committed in Victoria, was it not?

MR BOYLAN: It is unclear, your Honour. There was no evidence to explain where any offence of obtaining by false pretences would, in fact, have been committed, in the sense that - - -

McHUGH J: That does not help you. You have the onus of proving jurisdiction.

MR BOYLAN: Yes, your Honour, but we say that the aim of the conspiracy was South Australia, in that it was the State Government Insurance Commission, and further - - -

GLEESON CJ: You would have made exactly the same point if the object of the conspiracy had been John Smith, a resident of South Australia.

MR BOYLAN: Yes, your Honour.

GLEESON CJ: That is what the case turned on, is it not; that the people who were going to suffer financial harm ultimately, if this conspiracy had been put into effect, were the shareholders of the company in South Australia or the South Australian public.

MR BOYLAN: Yes, your Honour, but we say further that the conspiracy was actually implemented in South Australia. That is, that there was an overt act in South Australia in that a false representation was made in this State. The conspirators caused a representation to be made in the offices of the intended victim's solicitors here in Adelaide. So we would say, your Honours, that there are two reasons to found jurisdiction: one is on what we would say is the now established rationale, that there would have been harm to the good of society in South Australia - in the older cases referred to as a breach of the Queen's peace. Secondly, that there was an act implementing the conspiracy in this State, and therefore, on two bases we say that there is jurisdiction. The conspirators knew - - -

GLEESON CJ: On that first basis, leaving aside the overt act, would the same apply if, for example, a South Australian corporation, or a corporation owned by the South Australian Government, was carrying on business in London and two Englishmen conspired in London to defraud the South Australian corporation in London?

MR BOYLAN: We say if there was loss here, that yes, there would be jurisdiction. The law has reached the stage where there could be jurisdiction in more than one place, given the opportunity for transnational fraud. It may be that the jurisdiction apparently most concerned or most closely associated with the formation of the conspiracy has no interest in prosecuting it.

GLEESON CJ: That may be the importance of this case. It may be that it raises for consideration the whole question of the basis of jurisdiction in frauds that cross State and perhaps even national boundaries.

MR BOYLAN: With respect, your Honour, it, of course, raises that interesting point. What we say is that the facts of this case have a sufficient connection with South Australia because there is one, an object - the conspirators knew that SGIC would lose; and secondly, as I have said, that the conspiracy was implemented here.

McHUGH J: When you say it was implemented here, it was implemented, if it was implemented at all, by sending a forged facsimile setting out the terms and conditions of a proposed promissory note to the company's solicitors in Adelaide, is it not? Is there any other fact associated with South Australia?

MR BOYLAN: That is the only fact which could be classed as an overt act which occurred in South Australia, your Honour. We say, of course, that the conspirators knew from a month or so at the very least before the collapse of the plan that the victim was plainly the State Government Insurance Commission.

McHUGH J: Yes, that may be so, but it is a company incorporated in South Australia; the beneficial ownership is vested in the government of South Australia, but everything occurs in Melbourne. It concerns a lease in Melbourne about a building in Melbourne; everything seems to have happened in Melbourne, apart from the sending of this facsimile from Bangkok.

MR BOYLAN: With respect, your Honour, much may have happened in Queensland.

McHUGH J: That may be, but it seems to me there are only three matters that connect the case in any way with South Australia, and that is that the company is incorporated in South Australia; secondly, that the beneficial ownership of the company is the government of South Australia, and the third thing is the sending of this facsimile from Bangkok to the company's solicitors in Adelaide.

MR BOYLAN: I respectfully agree with your Honour.

McHUGH J: That may be enough, but it does seem to raise a very important point of jurisdiction in these cases.

MR BOYLAN: As your Honour pleases, I cannot say any more about the connection with South Australia than I have said.

GLEESON CJ: Thank you. In these two cases, Lipohar v The Queen and Winfield v The Queen, there will be a grant of special leave to appeal.

AT 10.05 THE MATTER WAS CONCLUDED