R v Bull

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

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(Judgment by: Gibbs J)

Between: R
And: Bull

Court:

Judges: Barwick CJ
McTiernan J
Menzies J

Gibbs JStephen 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:
Gibbs J

Four accused persons, Bull,  Plithakis, Conn and Corns, have, after a trial on indictment in the Supreme Court of the Northern Territory, been convicted of the following offences  against the Customs Act 1901-1971 (Cth) ("the Act"):

1.

Importing into Australia prohibited imports contrary to s. 233B (1)(b) of the Act;

2.

Without any reasonable  excuse having in their possession, on board a ship, prohibited  imports contrary to  s. 233B (1)(a);

3.

Assembling for the purpose of preventing the  seizure of prohibited imports contrary to s. 231(1)(c).

The  prohibited imports referred to in each of these charges comprised 31,000 grams of cannabis.  One of the accused persons, Conn, was also convicted on two further charges, laid under s. 233B(1)(b)  and s. 233B(1)(a)  respectively, of importing a prohibited import (namely, 14.8   grams of cannabis resin) and   of having the said prohibited import in his possession on a ship, and another accused, Corns, was convicted on a charge that being the master of a ship he knowingly suffered her to be used in the importation of goods (namely, 31,000 grams of cannabis) contrary to s. 233A   of the Act.  The jury returned no verdict  on certain other charges; of these it is only necessary to mention charges under s. 233B(1)(b)   of attempting to import prohibited imports, laid respectively against all four accused in respect of 31,000   grams of cannabis and against Conn in respect of 14.8   grams of cannabis resin.  Before verdict the learned trial judge was requested to reserve certain questions of law for the consideration of this   Court, and in conformity  with s. 72  of the  Judiciary Act  he has stated in a case  the questions of law so reserved and the special circumstances upon which they arose.

The circumstances of the case may be briefly stated.   On or about 1st March   1973  the Mariana, a British ship of which Corns was the master, was intercepted off the coast of the Northern Territory.  At the time of the interception a large quantity of marihuana   was thrown overboard - it included the 31,000   grams in respect of which the charges against the four accused, and  against Corns, were laid.  It was later found that Conn had 14.8  grams of cannabis resin on his person.  The offences of assembling and importing, as well as those of unlawfully having possession on a ship, were all alleged to have been constituted by acts done on the ship at or before the time of the interception.  At the trial there was a conflict of evidence as to whether at the relevant time the Mariana was within the three-mile limit, but it is now conceded that having regard to the directions given by the learned trial judge in his summing up, it must be taken that the jury found that the material events occurred within three miles of the coast of the Northern Territory.  In view of this finding it is unnecessary to consider such of the questions as were framed on the hypothesis that the offences were committed beyond the three-mile limit.  In substance the questions that now fall for decision are first,   whether  offences against ss. 231(1)(c)  and 233B(1)(a)  can be committed if the assembly or possession, as the case may be, occurs off the Australian coast between low water mark and a line three nautical miles to seaward thereof,   secondly, whether the goods are imported within s. 233B(1)(b) or an importation of goods occurs within s. 233A if the goods are brought within three miles of the coast but are not brought to shore or within the limits of a port, and thirdly, whether the Supreme Court of the Northern Territory had jurisdiction to try the accused persons for the offences   of which they were convicted.

No question arises in the present case as to the scope of the legislative power of the Commonwealth.  It was not, and could not be, suggested that ss.  231(1)(c)   and 233B(1)(a) would be beyond power if they applied to acts done at sea between low water mark and the three-mile limit or that the Commonwealth Parliament could not validly provide that importation for the purpose of the Act occurs when goods are brought across a line three miles from the coast. The questions are simply questions of construction, and in   answering them it is necessary to pay due regard to the objects of the statute and to the context which is afforded by its provisions as a whole.

Section 231(1) provides:

"All  persons to the number of two or more assembled for the purpose of-

(a)

importing prohibited imports; or

(b)

smuggling;  or

(c)

preventing the seizure, or rescuing after seizure, of any  prohibited imports or smuggled goods,

shall be guilty of an offence ..."

When the Act was first passed, it was unlikely that goods could have been imported or smuggled into Australia except from the sea.  They are still commonly so imported and, it may be supposed, smuggled.  Persons who wished to import prohibited imports or to smuggle goods might therefore have been expected to assemble on the sea on those occasions when this might enable them to achieve their unlawful ends.  Moreover,   the seizure of prohibited imports or smuggled goods may  take place on the sea.  Prohibited imports  and smuggled goods are forfeited to   the Crown under s.  229(a)  and (b)  and  are   therefore liable to seizure under s. 203.  The power given by that section is to seize (inter alia) any forfeited goods "upon land or water".  The natural meaning of those words would include the sea as well as inland waters and the provisions of  other  sections of the Act, to which I shall shortly refer, support the conclusion that this meaning was intended.  It would therefore be likely that persons desiring to prevent the seizure of prohibited imports or smuggled goods would on occasion assemble on the sea for this  purpose, as the accused persons in fact did  in the  present case.  The words of s. 231(1)  are wide enough to include an assembly on the   sea, and having regard to the objects of the section, no reason exists to give those words a restricted meaning.

The context provided by the other sections of the Act fully supports this view.  The power to board ships given by the Act clearly extends to ships arriving within three nautical miles of the coast - see ss. 59  and 185.  Moreover, ships or boats found within three nautical miles of the coast are forfeited if they fail to bring to for boarding upon being lawfully required to do so, or if they hover and do not depart  within twelve hours after being   required to do so (in which case the cargo also is forfeited), or if they have hiding places or devices adapted for the purpose of running goods - s.  228(2), (3), (6); s. 229(k).  In  the light of these express provisions it cannot  be doubted that the more general powers given by the Act to board, search and seize ships extend to vessels within the three-mile limit or that the provisions of s. 231(1)   are intended to extend to an assembly within the three-mile limit.

Section 233B(1) provides (inter alia)  that  any person who-

"(a)

without any reasonable excuse (proof whereof  shall lie upon him) has in his possession, on board any ship or aircraft, any prohibited imports to which this section applies"

shall be guilty of an offence.  I can see no justification for construing this provision as referring only to possession on a ship in a river or other enclosed water, and for reasons similar to those given in relation to s. 231(1) I consider that no such restriction of the general words of the section was intended.  The   fact that s. 233B(1)(c) is expressly limited to possession of prohibited imports "which have been imported into Australia in contravention of this Act"   supports the view that s. 233B(1)(a)   is not limited to possession of prohibited imports which have been imported into Australia, but applies to such  possession in any place to which the Act extends, including the waters within a distance of three nautical miles from the coast.

For these reasons, in my judgment, offences against ss. 231(1)(c) and 233B(1)(a) are committed notwithstanding that the acts done in contravention of those sections occurred at sea within three nautical miles of the coast of Australia.

The question that next falls to be considered is whether goods are imported within s. 233B(1)(b), or importation occurs within s. 233A, when the goods are brought across a line three nautical miles from the coast of Australia.  Section 233B(1) further provides (inter alia) that any person who-

"(b)

imports, or attempts to import, into Australia any prohibited imports to which this section applies"

shall be guilty of an offence, and s. 233A(1) reads as follows:

"The master of a ship or boat or the pilot of an aircraft shall not  use his ship boat or aircraft, or knowingly suffer her to be used, in smuggling, or in the importation of any goods in contravention of this Act, or in the exportation   or conveyance of any   goods in contravention of this Act."

No definition of "import" or of any derivative of the word is contained in the  Act.  Its ordinary dictionary meaning is "To bring in, or cause to be brought in (goods or merchandise) from a foreign country, in international commerce" (Oxford   English Dictionary).   In accordance with this meaning it has been said that the word "import" in  various sections of the Act means "bring in to the Commonwealth":   Lyons v  Smart; ^[F31]   Election Importing Co  Pty  Ltd  v  Courtice. ^[F32]   On the basis of these statements, and on the assumption that Australia includes the surrounding sea at least to a distance of three nautical miles, it was submitted by the Crown that to bring goods across the threemile limit is to bring them into Australia and therefore to import them.  However,  whether or not the sea within three nautical miles of the coast should be regarded as part of  Australia for other purposes, it is, in my opinion, clear that goods are not imported simply by bringing them within the  three-mile limit. It   does not conform to ordinary usage to say that goods are imported into a place if they are brought there in the course of transit  but with no intention that they should be unloaded there.  For example, in ordinary understanding goods would not be thought to have been imported into Australia if they were carried  through the waters  within three miles of the Australian coast by  a ship which did not put into port.  Even if goods are brought into port they are not necessarily imported; for example, a cargo being carried from England to New Zealand is not imported into Australia when the ship on which it is carried puts  into an Australian port en route:   Wilson v  Chambers & Co  Pty  Ltd. ^[F33]

Similarly, goods are not "imported  into a harbour" by being carried through the limits of the harbour and then  landed elsewhere: Wilson v  Robertson. ^[F34]   However, if goods are brought into port with the intention of being discharged there they are imported: Wilson v  Chambers & Co  Pty  Ltd; ^[F35]    and see also Forbes v  Traders Finance Corporation Ltd. ^[F36]   The words of the Act themselves make it clear that the mere entry into port is not necessarily an   importation.  Section 30 provides (inter alia) that goods shall be subject to the control of Customs - "(a)  as to all goods imported - from the time of importation ..." However, s. 31  provides (inter alia) that all goods on board any  ship from parts beyond the seas shall be subject to the control of Customs while the ship is within the limits of any port in Australia. If goods were imported  once a vessel entered port, the provisions of s. 31  to which I have just  referred would be quite unnecessary.  Of course it is not necessary, to  constitute an importation, that the goods should be brought into port - they may be landed in some other way.  The remarks made by Isaacs  J. in Wilson v  Chambers & Co   Pty  Ltd ^[F37] with regard to s. 68    appear to be a correct general statement of the meaning of  importation for the purposes of the Act.  After saying that "the expression `imported goods',   in s. 68, means goods which in fact are brought from abroad into Australian territory, and in respect of which   the carriage is ended or its continuity in some way in fact broken",  Isaacs J. went on to say: ^[F38]

"The underlying concept appears to me to be as follows:  Where,  within  our territory, some  act  takes place with   regard to goods arriving from abroad, whether in fact they are or are not dutiable or prohibited, which in the absence of some new or further arrangement for carrying them away would make the place of arrival their destination  and would therefore result in the goods remaining in Australia, then  they are `imported goods' and it is the duty of the `owner' to comply with the provisions of s. 68."

In the present case the ship was intercepted before it reached   its destination and before it had entered port or arrived at the place   where it was intended to land the goods.  For the reasons I have given,   the goods were  not imported when they were brought on the ship across a line three nautical  miles from the coast and to the place of interception.  The fact that the goods were thrown into the sea -  with the obvious intention of abandoning and destroying them - did not in my opinion mean that they were thereupon  imported.

The convictions under ss. 233B(1)(b)   and 233A therefore cannot stand and should be set aside under the power given by s. 73(b) of the Judiciary Act.

It seems probable that the jury returned no verdict on the charges of attempting to import because they were alternative to the charges of importing of which the accused were found guilty.  Counsel for the Crown accordingly submitted that we should direct a verdict of guilty to be entered on the former charges if we held that the convictions on the latter must be set aside.  To maintain this submission it is necessary to establish that an attempt to import which constitutes an offence against s.  233B(1)(b) of the Act can be constituted by acts committed on the waters within three miles of the coast, that in fact the actions of the accused amounted to an attempt to import, that s. 73 of the Judiciary Act   gives power to order that a verdict of guilty be entered in an appropriate case and that such power ought to be exercised.  In  my opinion the context and policy of the Act support the view that if acts are done which constitute an attempt to import prohibited imports, an offence against the section will be committed notwithstanding that the attempt takes  place on the sea   below low water mark at least if within three miles of the coast.  However, the case stated does not reveal whether what was done by the accused could reasonably have been regarded by a jury as an attempt to import prohibited imports.  Under s. 73  of the Judiciary Act   the Court may send a case back to be amended or restated, but in my opinion we should not take that course here.  The accused have been convicted of offences which arise out of the same circumstances as do the alleged attempts.  The  ends of justice will be sufficiently served if the accused are punished for those offences of which  they have been convicted and it is unnecessary to enquire whether, if the accused had not been convicted of those other offences, it  would have  been  possible and appropriate to direct convictions to be entered on the charges of attempting to import or whether we would have exercised the power given by s. 73(e) of the Judiciary Act to order a new   trial of those charges.

The final question that arises is whether the Supreme Court of the Northern Territory ("the Supreme  Court")   had jurisdiction to hear and determine the charges of which the accused were convicted.

The Supreme Court is constituted by the Northern Territory Supreme  Court Act 1961-1971  (Cth).   It is not expressly invested with jurisdiction to try persons charged with offences against Commonwealth laws.  Jurisdiction  is conferred upon it by s. 15 of the Northern Territory Supreme Court Act whose provisions, so far as they are material, are as follows:

"15.(1)

The Supreme Court-

(a)

has, subject to this and any other Act and to any Ordinance, in relation to the Territory, the same original jurisdiction, both   civil and criminal, as the  Supreme Court of South Australia had in relation to the State of South Australia immediately before the first day of January, One thousand nine hundred and eleven;

...

(2)

The jurisdiction of the Supreme Court of South Australia referred to in paragraph (a) of the last preceding sub-section includes jurisdiction that that Court had as federal jurisdiction.

(3)

The jurisdiction of the Supreme Court referred to in sub-section (1) of this section is in addition to the jurisdiction that the Court has under any Imperial Act."

The expression "the Territory" is defined by s. 5  to mean "the territory accepted by the Commonwealth as a Territory under the authority of the Commonwealth  in pursuance of the Northern Territory Acceptance Act 1910   by the name of the Northern Territory of Australia ..."  The Territory accepted by the Commonwealth under the  Northern Territory Acceptance Act 1910 was:

"that part of Australia which lies to the northward   of the twenty-sixth parallel of South Latitude and between the one hundred and twenty-ninth and one hundred and thirty-eighth degrees of East Longitude,  together with the bays and gulfs therein, and all and every the islands adjacent to any part of the mainland within such limits as aforesaid, with their rights, members, and appurtenances."

(s. 4 -  definition "The Northern Territory"; s. 6(1)).

It was submitted on behalf of the Crown that the Supreme Court had jurisdiction in the present case because the Supreme Court of South Australia had, in relation to the State of South  Australia, immediately before 1st January 1911, federal jurisdiction to try offenders  against laws of the Commonwealth. The federal jurisdiction which was possessed by the Supreme Court of South  Australia at the relevant date was that conferred upon it by the Judiciary Act 1903-1910 (Cth).  The material provisions of that   Act, those of ss.   39(2) and 68(2), have been amended in some respects since 1911,   but the amendments do not affect the present question.  By s. 39(2),   subject to certain conditions and restrictions which are not material, it was (and is) provided as follows:

"The several Courts of the States shall within the limits of their several jurisdictions, whether such limits are as to locality, subject-matter, or otherwise, be invested with federal jurisdiction, in all matters in which the High Court has original jurisdiction  or in which original jurisdiction can be conferred upon it ..."

Under s. 76(ii) of the Constitution original jurisdiction can be conferred on the High Court in any matter arising under  any  laws made by the Parliament.  Therefore s. 39(2)   invests the several courts of the States with federal jurisdiction in any  matter arising under any  Commonwealth law,  including the Customs Act. The federal jurisdiction is conferred on the State courts only "within the limits of their several jurisdictions".  This provision of course cannot mean that a State court can only be invested with federal jurisdiction to deal with a matter if it already has jurisdiction under State law to deal with that very matter.  It

"must be construed as relating to matters arising under federal Statutes, and being of a nature analogous to those over which such Courts respectively have jurisdiction under State laws, and  as also including any other matters in respect of which jurisdiction is conferred by a federal Statute, but so that in all respects other than subject matter the provisions of the State law ... shall prevail": Federated Sawmill, Timberyard and General Woodworkers' Employees' Association (Adelaide Branch) v  Alexander. ^[F39]

Although s. 39(2)  is an ambulatory provision, and the limits to which it refers are those "which State law may prescribe from time to time for the State jurisdiction of those courts" (The Commonwealth v  District Court at Sydney), ^[F40]    the limits with which  we are concerned in the present  case are those prescribed immediately before 1st January 1911.  The jurisdiction conferred by s. 39(2)   is not  limited except by the limits of the jurisdiction of the State court concerned and therefore,  in  the case of a Supreme Court, may include criminal as well as civil jurisdiction.  It is true that a further grant of jurisdiction in criminal cases is made by s. 68(2)  of the  Judiciary Act.  By that section the several courts of the States exercising jurisdiction with regard (inter alia) to the trial  and conviction on indictment of offenders or persons charged with offences against the laws of the States "shall have the like jurisdiction with respect to persons who are charged with offences against the laws of the Commonwealth committed within the State, or who may lawfully be tried within the State for offences committed elsewhere".  However, s. 68(2)   does not exclude the operation of s. 39(2)  in criminal cases (cf.  Adams v  Cleeve]); ^[F41] each section independently invests State courts with federal jurisdiction.  Section 68(2)   confers on a State court  "a jurisdiction analogous, similar or corresponding  to that of the State Court in respect of offences  against the laws of the State"  (Williams v  The King [No. 1]), ^[F42]    but it is of course only exercisable if the alleged offence against Commonwealth law was committed within the State or the offender may lawfully be tried within the State when the offence was committed elsewhere.  It may be that from a practical point  of view in a case like the present s. 68(2)  requires a court to have regard to much the same considerations as those raised by s. 39(2) but since, for the reasons I am about to give, I have reached the conclusion that the Supreme Court of South Australia was invested by s. 39(2)  with the relevant federal jurisdiction, it is unnecessary to consider  whether s. 68(2) also had the effect of investing it with  jurisdiction.

The  question, then, in the present case is whether immediately before 1st January 1911  it was within the limits of the jurisdiction of the Supreme Court of South Australia to try on indictment a person charged with offences analogous to those the subject of the  present charges and committed at sea below low  water mark but within three miles of the coast of the State.

At the relevant date the Supreme Court of South Australia was granted powers and jurisdiction by a number of statutes of that State which were ultimately repealed by the Supreme Court   Act, 1935 (S.A.).  Of those statutory provisions it is enough to refer to s. 7 of "An Act  to consolidate the several Ordinances relating to the Establishment of the Supreme Court  of the Province of South   Australia" (No. 31 of 1856)   which provided as follows:

"That the said Court shall be a Court of Record, and shall have cognizance of all pleas, civil, criminal, and mixed, and jurisdiction in all cases whatsoever  as fully and amply in this Province and its  dependencies as Her Majesty's Courts of King's  Bench, Common Pleas, and Exchequer, at Westminster, or either of them, lawfully have or hath in England; and the  said Court shall also be at all times a Court of Oyer and Terminer and Gaol Delivery in and for the said Province and its dependencies; and the said Judge so appointed or hereafter to be appointed as aforesaid, shall have and exercise such and the like jurisdiction and authority in this Province and its dependencies as the Judges of the said courts of King's Bench, Common Pleas, and Exchequer, or   any of them lawfully have and exercise, and as shall  be necessary  for carrying into effect the several jurisdictions, powers, and authorities committed to the said Supreme Court."

The Court of King's Bench had a jurisdiction that was "general and universal"  and held cognizance of all pleas of the Crown, although in practice it did not commonly try ordinary criminal cases (Holdsworth, History of English Law,   vol. I, p. 212).  However, it was submitted  on behalf of the accused that the jurisdiction of that Court and of the other  common law   courts  mentioned in s. 7  was limited as to locality and that no common law court had jurisdiction to try an offence committed at sea. Therefore, it was said, the jurisdiction of the Supreme Court of South Australia was  similarly limited and although it was conceded that by a succession of statutory provisions the Supreme Court was empowered to deal with certain offences committed at sea, that power, so it was submitted, was limited to offences against the law of England and to offences of a kind in no way analogous to breaches of a Customs Act.  It was involved in these submissions that the sea bounding the coast of South Australia and lying between low water mark and the three-mile limit was no part of the territory of that State.  This latter submission raises a question of the greatest public importance, but in my opinion it is not necessary to deal with it for the purpose of deciding the present case.  The Court may on some future occasion be called upon to determine whether the sea or the seabed within three miles of the coast of a State forms part of that State and I would leave that question, which I regard as a completely open one, for consideration until that occasion does arise.  I would accordingly express no opinion on the correctness of the observations directed to that matter in such cases as Reg. v  Keyn; ^[F43] Secretary of State for India v  Sri Rajah Chelikani Rama Rao; ^[F44] and Bonser v  La Macchia. ^[F45]   We are now concerned with the limits of the jurisdiction of the Supreme Court of South Australia at the relevant date rather than with the limits of the territory of that State.

It is true that by the fourteenth century the criminal jurisdiction of the Court of the Admiral had come to be recognized as exclusive on the high seas and that the criminal jurisdiction of the common law courts then did not extend below low water mark (Holdsworth, op. cit., p. 550).  However, a course of legislation commencing in the reign of Henry VIII and ending in the nineteenth century ultimately produced what Sir James Fitzjames Stephen, writing in 1883, described as "the simple result that all crimes committed at sea can be tried before any court in England, otherwise competent, before which the offender may be brought, or before any Supreme Court in a colony, or any High Court in India" (History of the Criminal Law of England, vol. II, p. 19).  Notwithstanding the argument before us, in which we were referred in some detail to this legislation (whose provisions are discussed by Stephen, op. cit., at pp. 16-31), it seems to me unnecessary to consider those statutes by which jurisdiction over offences committed at sea was conferred on the common law courts in England.  It is sufficient to refer to two statutes which conferred jurisdiction directly on the colonial courts and whose effect, in my opinion, was to invest the Supreme Court of South Australia with criminal jurisdiction in respect of all crimes committed at sea.  The first of these statutes, "An Act to provide for the Prosecution and Trial in Her Majesty's Colonies of Offences committed within the Jurisdiction of the Admiralty" (12 & 13 Vict. c. 96), passed in 1849, provided by s. I as follows:

"That if any person within any colony shall be charged with the commission of any treason, piracy, felony, robbery, murder, conspiracy, or other offence, of what nature or kind soever, committed upon the sea, or in any haven, river, creek, or place where the admiral or admirals have power, authority, or jurisdiction, or if any person charged with the commission of any such offence upon the sea, or in any such haven, river, creek, or place shall be brought for trial to any colony, then and in every such case all Magistrates, Justices of the Peace, public prosecutors, juries, Judges, Courts, public officers, and other persons in such colony shall have and exercise the same jurisdiction and authorities for inquiring of, trying, hearing, determining, and adjudging such offences, and they are hereby respectively authorized, empowered, and required to institute and carry on all such proceedings for the bringing of such person so charged as aforesaid to trial, and for and auxiliary to and consequent upon the trial of any such person for any such offence wherewith he may be charged as aforesaid, as by the law of such colony would and ought to have been had and exercised or instituted and carried on by them respectively if such offence had been committed, and such person had been charged with having committed the same, upon any waters situate within the limits of any such colony, and within the limits of the local jurisdiction of the courts of criminal justice of such colony."

It was, however, provided by s. II of that statute that persons convicted were to be punished as if the offence had been committed, and the offender tried, in England and it was said in Reg. v  Mount, ^[F46] that the Imperial Legislature by this statute "was conferring power upon the colonies to try offences properly cognizable in England, with the consequences which would have attended a trial there".  Possibly in consequence of the controversy resolved by the decision of the Judicial Committee in Reg. v  Mount, ^[F47] the Courts (Colonial Jurisdiction) Act, 1874 (37 & 38 Vict. c. 27) was passed.  By s. 3 of the Act it was provided that when a person is tried in a colonial court "for any crime or offence committed upon the high seas or elsewhere out of the territorial limits of such colony and of the local jurisdiction of such court" the offender shall upon conviction "be liable to such punishment as might have been inflicted upon him if the crime or offence had been committed within the limits of such colony and of the local jurisdiction of the court".  The section contained a proviso that if the crime or offence is one not punishable by the law of the colony in which the trial takes place, the offender is liable on conviction to "such punishment (other than capital punishment) as shall seem to the court most nearly to correspond to the punishment to which such person would have been liable in case such crime or offence had been tried in England".

In my opinion the effect of this statute was not only to substitute the punishment provided by colonial law for that provided by English law as that to be inflicted in the case for which the statute provided but also to remove any basis for holding that the jurisdiction conferred by the Act of 1849 was only to try offences against the law of England; that conclusion had been reached in Reg. v  Mount ^[F48] in reliance on the provisions of s. II of the Act of 1849, but that section was impliedly repealed by the Act of 1874.  The provisions of s. I of the Act of 1849 are expressed in the widest terms; they refer to "any ... offence, of what nature or kind soever" and after the passing of the Act of 1874 there was no justification for giving those words a limited meaning.  In my opinion, the effect of these statutes was to give to the relevant colonial courts, and in particular to the Supreme Court of South Australia, criminal jurisdiction in cases of offences committed on the high seas, whether they were offences against English or against colonial law.  Further, in my opinion, the decision in Reg. v  Keyn ^[F49] that the Admiral had no jurisdiction to try an offence committed by a foreigner on a foreign ship within a marine league of the coast, and that therefore the English courts on which the Admiral's jurisdiction was conferred had no such jurisdiction, has no application to the statutes of 1849 and 1874.

Notwithstanding the title of the earlier Act, neither of those statutes purported to confer on the colonial courts the jurisdiction of the Admiralty.  Section I of the Act of 1849 spoke, in the alternative, of any offence committed at sea or in a place where the Admiral has jurisdiction; if the offence is committed at sea and the offender is within the colony or brought for trial there, the colonial court has jurisdiction to deal with the charge in the same way as if the offence had been committed on waters within the limits of the colony and of the local jurisdiction of its criminal courts.  It is accordingly unnecessary to consider the provisions of the Territorial Waters Jurisdiction Act, 1878 (Imp.) or those of the Colonial Courts of Admiralty Act of 1890 (Imp.).  The effect of the statutes of 1849 and 1874, which are still in force, is (inter alia) to confer directly upon the Supreme Court of South Australia jurisdiction to try a person brought before that Court for any offence against the law of the State committed at sea.  No reason exists to except statutory offences from the generality of this bestowal of jurisdiction, and before federation the Supreme Court of South Australia therefore had jurisdiction in respect of offences against the customs legislation of that colony committed upon the sea.  It was accordingly within the limits of the jurisdiction of the Supreme Court of South Australia immediately before 1st January 1911 to try an offender brought before that Court charged with an offence analogous to offences against the Customs Act if committed at sea.  The effect of s. 39(2) of the Judiciary Act was therefore to invest the Supreme Court of South Australia with federal jurisdiction to try persons brought before that Court and charged with offences against the Customs Act committed at sea.  By s. 15 of the Northern Territory Supreme Court Act, the Supreme Court of the Northern Territory is then given federal jurisdiction in the present case.

If I had reached a different conclusion as to the effect of the Imperial statutes of 1849 and 1874 I should have found it necessary to make an examination of the statutes of South Australia in force immediately before 1st January 1911 in an attempt to ascertain whether any statutes of that State conferred jurisdiction on the Supreme Court to try particular offences analogous to customs offences, committed at sea.  Since Croft v  Dunphy ^[F50] it cannot be doubted that a State has power to enact laws which operate beyond its territorial limits.  It is unnecessary here to discuss the extent of that power but it is clear that State laws may, in some cases at least, validly confer jurisdiction on the Supreme Court of the State to try offences committed on the waters within three miles of the coast even if it be assumed (which I do not decide) that those waters do not form part of its territory (cf. Bonser v  La Macchia). ^[F51]   In fact by the Customs Act 1864 (S.A.) the Supreme Court of South Australia was given jurisdiction to try certain customs offences committed at sea - see ss. 10, 167, 170, 185, 211.  That Act ceased to have effect before 1st January 1911 by virtue of s. 90 of the Constitution but it is probable that other legislation in force at the relevant date gave criminal jurisdiction to the Supreme Court in respect of offences committed at sea - such jurisdiction was conferred on the Supreme Court by later legislation, as is shown by Giles v  Tumminello. ^[F52]   The limits of the jurisdiction of the Supreme Court of South Australia could have been fixed by particular legislation as well as by more general legislation of the kind already discussed.  However, as I have said, it is unnecessary to pursue this matter.

I would answer the questions asked 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. 

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

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. 

Answer: Within the ordinary jurisdiction of the Court.

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. 

Answer: Unnecessary to answer.

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 of 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. 

Answer: (a) Yes as to offences under ss. 233B(1)(a) and 231(1)(c); unnecessary to answer as to other offences (b) Unnecessary to answer.

5.

If prohibited imports are voluntarily brought from a point outside a line three nautical miles from the low water mark of 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. 

Answer: No.

I would order that the convictions of the four accused persons, and of Conn, respectively, on charges of breaches of s. 233B(1)(b) of the Customs Act 1901-1971, and of Corns on a charge of a breach of s. 233A of the said Act, be set aside, and that verdicts of not guilty be entered on those charges.