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Court of Criminal Appeal 2 November 2001

R v PORTER

[2001] NSWCCA 441

Also reported as 126 A Crim R 83
Fraud & dishonesty
CONSTITUTIONAL LAW CRIMINAL LAW COMMONWEALTH OFFENCE CRIMINAL LAW COMMONWEALTH OFFENCE CRIMINAL LAW

Citation: R v Porter [2001] NSWCCA 441
Court: NSW Court of Criminal Appeal
Date: 2 November 2001
Judge(s): Spigelman CJ, Studdert J, Ireland AJ

Background

The appellant arrived at the Ansett terminal at Mascot airport in December 1998, having flown from Western Australia. NSW Police, acting on information about the appellant, were present at the airport, arrested him, and searched his bags. The search revealed $150,000 in Australian currency. The appellant was charged under s527C of the Crimes Act 1900 (NSW) with having goods (the currency) in custody where those goods were reasonably suspected of being stolen or unlawfully obtained. A magistrate convicted him.

The appellant appealed to the District Court. At the commencement of that appeal, the NSW Director of Public Prosecutions (DPP) took over the conduct of the proceedings from the police prosecutor. The appellant then raised several preliminary legal issues before District Court Judge Ainslie-Wallace, each of which her Honour decided against him. The appellant appealed those rulings to the Court of Criminal Appeal by way of a stated case.

A central factual concession framed the appeal: the arrest occurred in a Commonwealth place (an airport terminal), which engaged the operation of the Commonwealth Places (Application of Laws) Act 1970 (Cth) ("the Commonwealth Places Act"). That Act effectively converts applicable State laws into Commonwealth laws within Commonwealth places.

  • Whether the Commonwealth Places Act is itself a constitutionally valid enactment.
  • Whether NSW Police had power to arrest and search within a Commonwealth place under the relevant State legislation, as applied by the Commonwealth Places Act.
  • Whether the NSW DPP had standing to conduct the proceedings, given the existence of the Commonwealth DPP and the Director of Public Prosecutions Act 1983 (Cth).
  • Whether s527C of the NSW Crimes Act was inconsistent, under s109 of the Constitution, with s82 of the Proceeds of Crime Act 1987 (Cth).

Decision

The Court of Criminal Appeal, with Spigelman CJ delivering the principal judgment and the other judges agreeing, resolved all four issues against the appellant.

On constitutional validity, the Court confirmed that the Commonwealth Places Act is a valid Commonwealth law. The Act does not impermissibly delegate the Commonwealth's exclusive legislative power to the States. Rather, it enacts Commonwealth law in the same terms as each applicable State law, so that any offence arising within a Commonwealth place is properly characterised as a Commonwealth offence.

On the power of NSW Police to act, the Court held that the powers of arrest and search contained in ss352 and 357E of the Crimes Act 1900 (NSW) are "powers or functions" within the meaning of s6(2) of the Commonwealth Places Act and the relevant intergovernmental Arrangement made under it. State police were therefore authorised to arrest the appellant and search his bags within the airport terminal, even though it was a Commonwealth place.

On the standing of the NSW DPP, the Court held that the Commonwealth DPP does not hold exclusive authority to prosecute Commonwealth offences in Commonwealth places. Section 24 of the Director of Public Prosecutions Act 1986 (NSW) does not operate as an implied repeal of the Arrangement between New South Wales and the Commonwealth made under s6(2) of the Commonwealth Places Act. The Court applied a strong presumption against implied repeal of legislation forming part of a collaborative federal scheme. The NSW DPP accordingly had standing to conduct the appeal proceedings. Finally, the s109 inconsistency argument was dismissed as misconceived: because s527C operates as a Commonwealth law by force of the Commonwealth Places Act, there is no "law of a State" capable of being inconsistent with the federal Proceeds of Crime Act.

Orders Made

  • Paragraph [5] of the Stated Case answered: "No determination was erroneous in law."

Key Takeaways

  • The Commonwealth Places Act is constitutionally valid and does not unlawfully delegate Commonwealth legislative power to the States. Offences committed in Commonwealth places under that Act are Commonwealth offences, even where the underlying provision originates in State legislation.
  • A strong presumption applies in federal systems against construing a State Act as impliedly repealing legislation that forms part of a collaborative, uniform national scheme. Express language is required to achieve that result.
  • Under s6(2) of the Commonwealth Places Act and the intergovernmental Arrangement made under it, State police officers retain authority to exercise their arrest and search powers within Commonwealth places.
  • The Commonwealth DPP does not hold exclusive authority to prosecute Commonwealth offences arising in Commonwealth places. The NSW DPP can lawfully conduct such proceedings under the applicable Arrangement.
  • Where State legislation is applied as Commonwealth law by the Commonwealth Places Act, no s109 constitutional inconsistency arises between that provision and a Commonwealth statute, because there is no longer a "law of a State" for s109 to operate upon.

Legislation and Cases Referenced

Legislation:
- Commonwealth Places (Application of Laws) Act 1970 (Cth), ss4, 5, 6, 12, 14
- Commonwealth Places (Administration of Laws) Act 1970 (NSW)
- Director of Public Prosecutions Act 1983 (Cth), s6(1)
- Director of Public Prosecutions Act 1986 (NSW), s24
- Crimes Act 1900 (NSW), ss352, 357E, 527C
- Proceeds of Crime Act 1987 (Cth), s82
- Criminal Appeal Act 1912 (NSW), s5B
- Crimes Act 1914 (Cth)
- Constitution, ss52(i), 109
- Statute Law (Miscellaneous Provisions) Act (No 2) 1986 (Cth)
- Misuse of Drugs Act 1981 (WA)

Cases:
- R v Holmes (1988) 93 FLR 405
- R v Pinkstone [2001] WASC 172
- Australian Securities Commission v Marlborough Gold Mines Ltd (1992-1993) 177 CLR 485
- Bond v The Queen (2000) 201 CLR 213
- Butler v Attorney General (Vic) (1961) 106 CLR 268
- Cobb & Co Ltd v Kropp [1967] 1 AC 141
- The Queen v Phillips (1970) 125 CLR 93
- Worthing v Rowell and Muston Pty Ltd (1970) 123 CLR 89
- United States v Sharpnack 355 US 286 (1958)
- Mistretta v United States 488 US 361 (1989)