R v Bull

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

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(Judgment by: McTiernan J)

Between: R
And: Bull

Court:

Judges: Barwick CJ

McTiernan JMenzies J
Gibbs 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:
McTiernan J

The accused persons were indicted before the Supreme Court of the Northern Territory for offences against the Customs Act 1901-1971 (Cth).  The material provisions are in Div. 2 of Pt XIII of the Act.  They are as follows: s. 231(1)(a)(c); s. 233A; s. 233B (1)(a)(b)(c).  It was stated in argument by counsel for the accused that the accused persons were Australians travelling on a British vessel, at the time of the commission of the alleged offences, and were travelling in the direction of Darwin.  There are twelve counts in the indictment.  All the accused were convicted of the following offences: Assembling for the purpose of preventing the seizure of prohibited imports: s. 231(1)(c); importing into Australia a prohibited import: s. 233B (1)(b); and having a prohibited import in their possession on board a ship without any reasonable excuse: s. 233B (1)(a).  The prohibited goods were 31,000 grams of cannabis.  The accused, Conn, was also convicted of importing a prohibited import into Australia - s. 233B (1)(b) - and of having a prohibited import in his possession on board a ship - s. 233B (1)(a).  The goods in question were 14.8 grams of cannabis resin found on his person.  The accused, Corns, the master of the vessel involved, was convicted of knowingly suffering his ship to be used in the importation of goods in contravention of the Act - s. 233A.

The presiding judge pursuant to s. 72 of the Judiciary Act 1903-1969 (Cth) reserved for the High Court questions of law arising on the trial, which was by jury.  It was common ground in the High Court that the evidence proved that the contraventions of the Customs Act 1901-1971 (Cth) charged by the indictment all occurred within a line three miles to sea of the low water mark of the Australian coast.  In view of this, it does not seem necessary to deal with questions 1(b) and 4(b).  Question 1(a) is 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."

The Australian Parliament has full power to legislate with regard to the acts described by the sections of the Customs Act 1901-1971 (Cth) mentioned above, whether occurring within or outside Australia (Croft v  Dunphy; ^[F25] Statute of Westminster 1931).  The jurisdiction of the Supreme Court of the Northern Territory is defined by s. 15 of the Northern Territory Supreme Court Act 1961-1968 (Cth).  It is necessary to refer only to sub-ss. (1)(a), (2) and (3) of this section.  These provisions are as follows:  

"(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 accused were indicted and tried by the Supreme Court of the Northern Territory in the exercise of the jurisdiction conferred by s. 15.

It is necessary to refer to Act No. 31 of 1855-1856 (S.A.) entitled "An Act to consolidate the several Ordinances relating to the Establishment of the Supreme Court of the Province of South Australia" to ascertain the scope of the criminal jurisdiction of the Supreme Court of South Australia referred to in s. 15(1)(a).  Section 7 of Act No. 31 of 1855-1856 (S.A.) is 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 crucial question is whether by virtue of this section jurisdiction was conferred upon the Supreme Court of South Australia to hear and determine proceedings for offences committed on the seas bordering South Australia.  It did so if the English Courts referred to had at the time of the passing of the Act jurisdiction to try offences committed at sea.  It is contended for the accused that this jurisdiction did not pass to the Supreme Court of South Australia by virtue of the provisions of s. 7 of Act No. 31 of 1855-1856 (S.A.).

Professor Holdsworth in his History of English Law, vol. I., at pp. 550-552, gives an account of the transfer by Parliament of the Admiral's criminal jurisdiction to the courts of common law and the "ordinary justices of oyer and terminer and gaol delivery".  He mentions the following statutes which were referred to in argument: 28 Hen. VIII. c. 15 (1536); 39 George III. c. 37 (1799); 4, 5, Wm IV. c. 36 (1834); and 7, 8 Vict. c. 2 (1844).  From these statutes the learned author drew the conclusion that,

"The criminal jurisdiction of the Admiralty has thus for almost four centuries been exercised by the judges of the courts of common law".

Sir James Fitzjames Stephen in his work History of the Criminal Law of England, vol. II., at p. 19, said in reference to the statute, 28 Hen. VIII. c. 15 (1536)

"the change made by this statute has formed the foundation of subsequent legislation ... which has ultimately produced 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 ..."

It follows that the criminal jurisdiction formerly exercised by the Admiral which was transferred to the courts of common law is embraced by the words of s. 7 of Act No. 31 of 1855-1856 (S.A.), namely,

"the said Court ... shall have ... criminal ... 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".

("Province" means, of course, South Australia.)  I think it follows that by reason of s. 7,  the Supreme Court of  South Australia would as a court of  common law, have jurisdiction to hear and determine proceedings for an offence against South Australian law committed at sea, and that by reason of s. 39(2) of the Judiciary Act 1903-1910 (Cth) the South Australian Supreme Court had a like jurisdiction to hear and determine an offence against a Commonwealth law committed at sea.

By reason of s. 15(2) of the Northern Territory Supreme Court Act 1961-1968 (Cth) the Supreme Court of the Northern Territory was invested with jurisdiction to try the accused for each offence against the Customs Act 1901-1971 (Cth).

I would therefore answer question 1(a) "Yes".

It is unnecessary to answer question 1(b).

The view which I take of the jurisdiction of the Supreme Court of the Northern Territory requires the answer to question   2 to be that the indictment is a matter in  the "ordinary jurisdiction" of the Court.

As regards question 3, it does not seem to me that this question arises for determination.

Question 4(a) reads:

"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".

If the purpose of the question is to raise the point whether the Customs Act  1901-1971 (Cth) can validly apply to the acts constituting the said offences, I would say that there is no doubt that it can apply to such acts. On the other hand, if the point raised is whether the Act upon its true construction applies to such acts, I think the answer is clearly "Yes".

It is unnecessary to answer question 4(b).

The fifth and last question is as follows:

"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."

It appears from s. 185 of the Act that the Customs Act 1901-1971 (Cth) operates in relation to goods which are being imported into Australia by a ship when the ship comes within three nautical miles of the coast. If the goods are prohibited imports, they come within the operation of s. 233B and the person who is importing them may be liable under the section.

I think that question 5 should be answered in the affirmative.

For these reasons my answers to the questions are as follows:

1.

(a)

Yes.

(b)

Unnecessary to answer.

2.

The matter is within the  ordinary jurisdiction of the Supreme Court of the Northern  Territory.

3.

This question does not arise.

4.

(a)

Yes.

(b)

Unnecessary to answer. 

5.

Yes.