R v Bull

131 CLR 203
3 ALR 171; 1974 - 0611A - HCA

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(Judgment by: Menzies J)

Between: R
And: Bull

Court:

Judges: Barwick CJ
McTiernan J

Menzies JGibbs J
Stephen J
Mason J

Subject References:
Trade and commerce
Customs offences
Prohibited imports
Whether goods imported into Australia
Courts and judicial system
Whether admiralty jurisdiction

Legislative References:
Customs Act 1901 (Cth) - s 231; s 233A; s 233B
Northern Territory Supreme Court Act 1961 (Cth) - The Act
Judiciary Act 1903 (Cth) - s 39(2)
Supreme Court Act 1856 (SA) - The Act

Hearing date: Sydney 26 November 1973; 27 November 1973; 28 November 1973; 29 November 1973
Judgment date: 11 June 1974

Melbourne

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Judgment by:
Menzies J

In the Supreme Court of the Northern Territory four men were convicted of offences under the Customs Act  1901-1971 (Cth) arising out of the interception of the ship Mariana on the sea off the coast of the Northern Territory.  Upon that interception by helicopter and launch the accused men threw into the sea 31,000  grams of cannabis - narcotic goods and as such prohibited imports - which were being brought from Bali to Australia. All the accused were convicted of offences: 1. of importing into Australia a prohibited import contrary to s. 233B (1)(b); 2. of being in possession on board a ship of prohibited imports contrary to s. 233B (1)(a); 3. of assembling to prevent the seizure of prohibited imports contrary to s. 231 (1)(c).  One of the accused, Conn, was convicted of importing a prohibited import contrary to s.  233B (1)(d) and being in possession  on a ship of a prohibited import contrary to s. 233B (1)(a).  These  two charges relate to 14 grams of cannabis resin which Conn was carrying on his person when he was brought to shore.  However, the charge of importing was supported merely by his possession  of that cannabis on board the ship.  One of the accused, Corns, was convicted of being the master of a ship who knowingly suffered her  to be  used in the importation  of goods contrary to s. 233A.  Upon other charges, including charges of attempting to import prohibited imports, either no verdicts were taken or there were acquittals.

Points of law were prior to verdict reserved for consideration by the Full Court of the High Court pursuant to s. 72 of the Judiciary Act. These were as follows:

"1.

Does the Supreme Court of the Northern Territory have jurisdiction to hear and determine the charges contained in the indictment:

(a)

if the offences were committed  in the area between the low water mark of the Australian  coast adjacent to the Northern Territory and a line three nautical miles to the seaward thereof.

(b)

if the offences were committed between a line three nautical miles to seaward of the said coast and a line ten nautical miles to seaward of the said coast.

2.

If the Supreme Court of the Northern Territory has jurisdiction, is the matter within the ordinary jurisdiction of  the Court or can the Court only hear and determine the charges by exercising jurisdiction in Admiralty.

3.

If the Supreme Court of the Northern Territory can only hear and determine the charges by exercising jurisdiction in Admiralty is it necessary for that fact to be averred on the face of the indictment and for the Court to declare itself to be so sitting.

4.

Does the  Customs  Act 1901-1971 extend to the said offences:

(a)

if they were committed in the area between the low water mark off the Australian coast adjacent to the Northern Territory and a line three nautical miles to seaward thereof.

(b)

if the offences in counts 2, 3, 5, 7 and 8 were committed in the area between a line three nautical miles to seaward of the said coast and a line  ten nautical miles to seaward of the said coast.

5.

If prohibited imports are voluntarily brought from  a point outside a line three nautical miles from the low water  mark off the Australian coast adjacent to  the Northern  Territory to a point within the area between the said low  water mark and the said line have they been imported into  Australia within the meaning of s. 233B of the Customs Act 1901-1971."

By the verdicts returned it was made apparent that the jury found that the interception took place on the sea within three miles of the coastline. It seems to me that the points of law reserved for this Court should be considered in the light of that determination.

The first matter to be determined is whether the Supreme Court of the Northern Territory had jurisdiction to try the  offenders and convict them of offences against the Customs Act  in respect of happenings upon the sea within  three miles of the coastline.

Counsel for the Queen and counsel for the accused both argued the case upon the footing that waters within the three miles of the coast of the Northern Territory and the land thereunder are not part of the Northern  Territory. I accept  this  as the basis upon which this case falls to be decided, particularly having regard to the terms of the Northern Territory Acceptance  Act, but I reserve again, as I did in Bonser v  La Macchia, ^[F26] the question  as to the status of the land under the sea off the coast of Australia.

I am not prepared to conclude without argument that the  ordinary laws of a State do not extend to those who commit  crimes while standing on the beach below low water mark, or,  that the jurisdiction of the Supreme Court of a State to try a person for a crime so committed is not the ordinary jurisdiction  of the court and not its Admiralty jurisdiction with the resultant problems of the law to be applied in the exercise of that jurisdiction. For instance, as at present advised, I am not disposed to think that in trying Plomp for the murder of his wife by drowning her in the sea  off the coast of Queensland, and in treating the  offence as one against the Criminal Code of Queensland without  regard to whether the killing took place above or below low  water mark, the Supreme Court of Queensland was in error, nor  was this Court in error in Plomp v  The Queen, ^[F27] in confirming the conviction upon the offence as charged. When these  problems arise for determination and are argued, that will, I  think, be the appropriate time to reach a conclusion upon these important matters, which are not, I think, to be disposed of by obiter dicta .

The general jurisdiction of the Supreme Court is, in relation to the Territory, that which the Supreme Court of South Australia  had on 1st January 1911: Northern Territory  Supreme Court Act, s. 15(1).

It is my opinion that the Supreme Court of the Northern Territory did have jurisdiction to hear and determine the charges  brought against the accused under the Customs  Act because the  Supreme Court of South Australia had such a jurisdiction before  1st January 1911 by virtue of s. 39(2)  of the Judiciary Act which  comprehends  jurisdiction in criminal matters:  Adams v  Cleeve. ^[F28] That section confers  upon the several courts of the States within the limits of their several jurisdictions, federal jurisdiction  (inter alia) in any matter arising under any law made by the Parliament.  Accordingly, this jurisdiction was given to the  Supreme Court of the Northern Territory in relation to the Territory by s. 15 of the Northern Territory Supreme Court Act, 1961 (Cth).  What I have just asserted involves two matters that require  discussion.

The first is that in 1911 there was no limit to the jurisdiction  of the Supreme Court of South Australia, as to locality or otherwise, to try offenders against laws made by the Parliament and in  particular offences against the Customs Act.  It is true that the  jurisdiction which that court had by virtue of s. 7 of "An Act to  consolidate the several Ordinances relating to the Establishment of the Supreme Court of the Province of South Australia" 1855-1856, No. 31 (S.A.), was given by reference to the Province of  South Australia and its dependencies. This, however, was not the  imposition of a  limit as to locality upon the jurisdiction of the  court.  The court's jurisdiction in the Province and its dependencies  was the same as the common law courts at Westminster  "lawfully have or hath in England".  As the common law courts  were courts of unlimited jurisdiction, so the Supreme Court of South Australia became a court of unlimited jurisdiction but with a jurisdiction to be exercised in South Australia and not  elsewhere. Furthermore, it was not necessary to distinguish  between the power of a judge as  a member of a court and the  powers of the court.

When, therefore, the Supreme Court of South Australia was invested with federal jurisdiction by the  Judiciary Act it was given jurisdiction in all matters arising under  any laws made by the Parliament. The limits of jurisdiction with  which s. 39(2) of the Judiciary Act was concerned are limits  within particular States imposed by State laws. The purpose of  the words of limitation in s. 39(2) was to keep within any limits  of jurisdiction arising from the State laws constituting the several courts; and the intention was, within those limits, to give State  courts jurisdiction in  matters  arising  under any law of the  Parliament  no matter where the acts were done or the events  occurred which attracted the operation of that law. Thus, for  instance, if a law of the Parliament were to make it an offence  for a person, wheresoever he might be, to alter an Australian  passport issued to him by the Commonwealth, an offence against  that law wherever it was committed could, without any special  provision, be heard by the Supreme Court of any State in which  the offender might be found. Otherwise it would seem that,  without special provision, no court in Australia would have jurisdiction to try a person for such an offence.  It should perhaps be  observed, however, that there are instances of special provisions  being made for the trial of offences against Commonwealth law committed outside Australia.  See, for instance, Crimes Act 1914-1966, s. 85E (5).

The other matter requiring consideration arises of  the words in s. 15(1)(a) of the Northern Territory Supreme Court Act,  namely "in relation to the Territory".  These words do not mean  that the jurisdiction of the court is limited to what happens  within the Territory.  The significance of these words lies in the  contrast that there is between "the Territory" and "the State of  South Australia".  Light is thrown upon what is meant by  s. 15(1)(a) by what appears in ss. 15(1)(c), 16 and 17.  The Supreme Court of the Northern Territory has, therefore, in relation to the Territory the same jurisdiction as the Supreme Court of South Australia in relation to South  Australia.  Thus the  Supreme Court of the Northern Territory could entertain an  action against a person in the Northern Territory by a person  outside the Northern Territory in relation to events occurring  outside the Northern Territory. Such an action would be "in relation to the Northern Territory" as the words are used in s. 15(1)(a).

It was argued, however, that the jurisdiction of the Supreme Court of South Australia in 1911 did not extend to trying offences committed upon the sea because of the actual decision  of the majority of the court in  Reg. v  Keyn (The Franconia). ^[F29]   That decision was no more than that, because the Admiralty had no jurisdiction to try offences committed by a foreigner  upon a foreign ship upon the high seas even within the three  mile limit, the Central Criminal Court did not have that power by  virtue of 4 & 5 Wm IV. c. 36 which gave that court power to try  "offences committed on the high seas and other places within the  jurisdiction of the Admiralty of England". Although,  as previously indicated, I would not without full argument accept all of  what was said by the majority, I would now say that it appears to me that it would be a far-reaching extension of the decision of  the majority to conclude that the common law courts had no jurisdiction to try offences committed at any place below the low  water mark upon the English coast.  However that may be, the  Supreme Court of South Australia did have in 1911 the jurisdiction conferred by s. 1 of 12 & 13 Vict. c. 96.  That section, relating to specified offences and other offences "of whatever nature or kind soever", provides inter alia that a person charged with such an offence committed on the high seas may be brought to trial in a colony and that the courts of the colony shall have the  same jurisdiction as if the offence had been committed, and the person  had been charged with committing it, within the local  jurisdiction of the courts of criminal justice in the colony.

It is  true that in Reg. v  Mount ^[F30] it was said that the powers conferred by s. 1 of this statute, because of the terms of s. 2,  should be regarded as no more than the power to try offences properly  cognizable in England, but when s. 2 was in 1874 superseded by  s. 3 of 37 & 38 Vict.  c. 27 there seems to me to be no reason  whatever for not giving the words of s. 1 their plain, literal  meaning. Accordingly, apart from anything else, after 1874 the  Supreme Court of South Australia had jurisdiction to try persons charged before it with the commission of any offence upon the sea. There was, therefore, no limit as to the locality upon the  jurisdiction of the Supreme Court of South Australia which  would prevent s. 39(2) of the Judiciary Act from giving federal  jurisdiction to try offences against the Customs Act committed  upon the high seas.

Concluding as I do that the Supreme Court of the Northern  Territory had jurisdiction to try the offenders for the  offences  charged by virtue of the combined operation of s. 1 of 12 & 13 Vict. c. 39, the Supreme Court Act 1878 (S.A.) and the Judiciary Act, it becomes unnecessary to consider whether or not there  may be some other source of jurisdiction that might be relied upon.

Accordingly, I  answer the questions relating to jurisdiction as  follows:

1.

(a) Yes. (b) Unnecessary to answer.

2.

The jurisdiction to hear and determine the charges is part of the ordinary jurisdiction of the court.

3.

Not necessary to answer.

The fourth and fifth questions should, I think, having regard to  the finding that the interception took place within the three mile  limit, be treated as limited by that circumstance and should be regarded as asking whether or not the offences upon which there  were convictions were committed by bringing the prohibited imports within the three mile limit, by having them in possession upon a ship within that limit, or by assembling within that limit  to prevent their seizure.

Upon the basis which the matter was argued and upon which I have already stated, it is my opinion that the  cannabis was not  imported when the ship travelled from outside the three mile  limit into the three mile limit. I am not in doubt that the power  of the Parliament to legislate in relation to imports would extend  to making laws prohibiting the bringing of goods into the three mile limit but I do not consider that this power has been exercised by the Customs Act as it presently stands.  The word  "import" is not defined. It is my opinion, upon  a survey of the Act as a whole, that importing by a ship constitutes either  landing goods or bringing them into port.  Our attention was  drawn by counsel for the Queen to a number of provisions of the  Act  conferring powers in relation to ships within the three mile  limit, but, in my opinion, these conditions do not warrant the  conclusion that  goods are imported by being brought within that  limit.  Accordingly, I  consider that the convictions for importing prohibited  goods by bringing them within the three mile limit were wrong.

The provisions relied upon by counsel for the Queen do, however, warrant the conclusion that it is an offence against the  Act to have possession on board a ship within the three mile  limit of goods to which s. 233B applies.

It is an unnecessary task to determine the furthest point from  the coast at which the possession of prohibited imports upon a  ship approaching Australia constitutes an offence under the  Customs Act, but it does seem to me that possession of goods on  a ship at a time when the ship is subject to the provisions of the  Customs Act does constitute an offence under s. 233B (1)(a).  Sections 59, 184 to 190 and 228 (2), (3) and (6), which all  indicate that once past a line three nautical miles from the coast  a ship may be searched and goods seized,  justify the conclusion that a person, in possession of prohibited imports within that limit, does commit an offence. I would hold, therefore, that s. 233B (1)(a) does apply within the three mile limit. A comparison between s. 233B (1)(a) and s. 233B (1)(c) indicates that  the former provision does apply at some point prior to importation. This being so, I think it can be decided with assurance that  s. 233B (1)(a) does apply when a ship is within the three mile  limit.

I would therefore answer question 4(a) to the effect that an offence under s. 233B (1)(a) is committed if a person has, without  reasonable excuse, goods in his possession upon a ship within  three nautical  miles of the coast when the import of those goods  is prohibited by s. 233B.  Furthermore, in my opinion, the cannabis on board the Mariana was a prohibited import notwithstanding that it has not been imported. Of course it would have continued to be a prohibited import after importation, but when  a statute prohibits the import of goods, such goods cannot lawfully be brought into Australia. Their importation is prohibited  and they are prohibited imports. The point outside Australia at  which those having possession of them become subject to the  operation of Australian law is, as I have already said, a different  matter. It should perhaps be observed too that the view I take  would not require any goods which are in Australia but have not  been imported into Australia to be classed as prohibited imports.  Question 4(b)  need not  be answered. Question 5  should be answered but merely to say that to bring goods across a line within  three nautical miles of the coast is not to  import them within the  meaning of s. 233B.

Because the accused have not been convicted of the offence  of attempting to import prohibited imports, to which s. 233B  applies, I do not think it necessary to deal with whether or not  they could have been convicted  of so doing by bringing them by ship from a point outside a line three nautical miles off the low water mark of the coast to a point within that line.  It seems that  the jury were satisfied that the offence of assembling to prevent  the seizure of prohibited imports took place within the three  mile limit.  If that be so, I  think that in law there was an offence  against s. 231(1)(c) because such an assembly within the three  mile limit would be within the scope of the Customs Act for the  same reasons as I have found that having goods in possession  within the three mile limit is within the scope of the Act.  Accordingly, in further answer to question 4(a), I would say that  an offence under s. 231(1)(c) was committed by an assembly  within the three mile limit for the purpose of preventing the  seizure of prohibited imports.

The conviction of the master for an offence against s. 233A  was, it seems, based upon the conclusion that cannabis was  imported by being brought across the three mile limit. If so, it  was, for reasons already given, wrong.

For these reasons I would answer the questions of law  reserved for this Court as follows:

1.

(a)

Yes.

(b)

Unnecessary to answer.

2.

The jurisdiction to hear and determine the charges is  part of the ordinary jurisdiction of the court.

3.

Not necessary to  answer.

4.

(a)

An offence against s. 233B (1)(a) of the Customs Act is committed if a person has, without reasonable excuse,  prohibited imports in his possession upon a ship within three  nautical  miles of the coast. An offence against s. 231(1)(c) is  committed if persons assemble, within three nautical miles of the  coast, for the purpose of preventing the seizure of prohibited  imports. It is unnecessary to decide whether an offence of  attempting to import prohibited goods contrary to s. 233B (1)(b)  is committed if a person brings prohibited imports by ship to a  point within three nautical miles of the coast.

(b)

Unnecessary to  answer.

5.

To bring goods across a line three nautical miles from  the coast is not to import them within the meaning of s. 233B.