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Court of Criminal Appeal 2 June 2003

REGINA v LOWE

[2003] NSWCCA 150

Also reported as 57 NSWLR 102
Public order & justice offences
CRIMINAL LAW CRIMINAL LAW STATUTORY INTERPRETATION INTERPRETATION ACT 1987 S 12(1)

Citation: Regina v Lowe [2003] NSWCCA 150
Court: NSW Court of Criminal Appeal
Date: 2 June 2003
Judges: Handley JA, Sully J, Buddin J

Background

The appellant was tried before Backhouse DCJ and a jury in the District Court and convicted on six counts, including threatening a witness (Count 1), supplying a prohibited drug (Count 2), using a listening device to record private conversations (Counts 3 and 4), and publishing those recordings (Counts 5 and 6).

Count 1 alleged that the appellant, while in Sydney, threatened a complainant with intent to influence her not to attend as a witness in committal proceedings then on foot at the Melbourne Magistrates' Court. The count was charged under s 322(a) of the Crimes Act 1900 (NSW) in circumstances of aggravation under s 324, which carries heavier penalties where the conduct is intended to procure the acquittal of a person charged with a serious offence.

The appellant appealed against his conviction and sentence on Count 1, arguing that the indictment disclosed no offence because the relevant judicial proceedings were in Victoria, and separately that committal proceedings could not support an aggravation finding under s 324. He also raised subsidiary grounds concerning Counts 2 through 6 and the overall sentence.

  • Whether s 322(a) of the Crimes Act 1900 (NSW), read with s 12(1) of the Interpretation Act 1987 (NSW), applied to judicial proceedings taking place in another state (Victoria)
  • Whether s 3A(1)(a) of the Crimes Act, which addresses territorial considerations, extended s 322(a) to Victorian proceedings
  • Whether committal proceedings in the Melbourne Magistrates' Court could give rise to an "acquittal" for the purposes of the aggravation provision in s 324
  • Whether the convictions and sentences on the remaining counts were affected by the quashing of Count 1

Decision

On the central question, the Court held that s 322(a), read with s 12(1) of the Interpretation Act 1987, operates only in relation to judicial proceedings that are "in and of" New South Wales. Section 12(1) confines the operation of NSW statutes to matters and things in and of that state. Because the Melbourne Magistrates' Court proceedings were plainly "in and of" Victoria, the count did not disclose an offence known to NSW law.

The Court also considered whether s 3A(1)(a) of the Crimes Act altered this conclusion. That provision removes certain territorial limitations, allowing offences to be prosecuted in NSW even where some conduct occurred elsewhere. The Court found that s 3A(1)(a) addressed only the "in" component of the territorial requirement, not the "of" component. Because the Victorian proceedings remained proceedings "of" Victoria, s 3A(1)(a) did not rescue the count.

A further, independent ground for allowing the appeal on Count 1 was that a successful outcome in committal proceedings cannot constitute an "acquittal" for the purposes of s 324. Committal proceedings determine only whether a matter should proceed to trial; they do not result in an acquittal of the kind contemplated by the aggravation provision. On this basis too, the aggravated count was not made out.

On the remaining counts, the Court rejected all grounds of appeal. In particular, the Court found that the drug supply conviction on Count 2 was sound, and that the listening device and publication counts (Counts 3 to 6) were unaffected by the quashing of Count 1. The Court also rejected the submission that sentences on the remaining counts should be reduced following the removal of Count 1 from the picture, noting that the sentencing judge had applied the totality principle and that the evidence relevant to Count 1 would have been admissible on the remaining counts in any event.

Orders Made

  • Appeal against conviction on Count 1 allowed; conviction and sentence on Count 1 quashed; judgment of acquittal entered
  • Appeal against conviction on all other counts dismissed
  • Appellant re-sentenced on Counts 3 and 4 to 2 years' imprisonment commencing 26 June 2002 and expiring 25 June 2004, with a non-parole period of 9 months commencing 26 June 2002 and expiring 25 March 2003
  • Sentences on Counts 2, 5 and 6 confirmed
  • Appeal against sentence otherwise dismissed
  • Appellant directed to be released on parole on 15 June 2003

Key Takeaways

  • Section 322(a) of the Crimes Act 1900 (NSW), as informed by s 12(1) of the Interpretation Act 1987, is confined to judicial proceedings that are "in and of" New South Wales; it does not criminalise threats directed at witnesses in proceedings conducted in another Australian jurisdiction.
  • Section 3A(1)(a) of the Crimes Act, which relaxes territorial requirements for prosecution in NSW, was held to address only the geographic location of conduct ("in" NSW), not whether the relevant judicial proceedings are proceedings "of" New South Wales. The two requirements are distinct.
  • Committal proceedings cannot support the aggravation provision in s 324, because a favourable outcome for a defendant at committal does not amount to an acquittal within the meaning of that section.
  • Quashing a conviction on one count does not automatically warrant resentencing on remaining counts, particularly where the evidence relevant to the quashed count would have been admissible on the surviving counts and the original sentencing already applied the totality principle.
  • The Court of Criminal Appeal confirmed that re-delivery of a substance jointly gifted to two recipients can constitute a supply within the meaning of s 25(1) of the Drug Misuse and Trafficking Act 1985, as property and possession do not pass to the second recipient until appropriation and delivery.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 322(a), 324, 3A(1)(a)
- Drug Misuse and Trafficking Act 1985 (NSW), ss 3, 25(1)
- Interpretation Act 1987 (NSW), s 12(1)
- Listening Devices Act 1984 (NSW), ss 5(1), 5(2), 7(1)

Cases:
- Brownlie v State Pollution Control Commission (1992) 27 NSWLR 78
- Grannall v C. Geo Kelloway & Sons Pty Ltd (1955) 93 CLR 36
- Lipohar v R (1999) 200 CLR 485
- Macleod v Attorney General (NSW) [1891] AC 455
- Miller v TCN Channel 9 (1988) 36 ACR 92
- Proudman v Dayman (1941) 67 CLR 536
- R v Carey (1990) 20 NSWLR 292
- R v Catanzariti (1995) 65 SASR 201
- R v Isaac (1996) 87 A Crim R 513
- R v Kron (1995) 78 ACR 474
- Symes v Stewart (1920) 28 CLR 386
- Thompson v R (1989) 169 CLR 1
- Ward v R (1980) 142 CLR 308