Citation: Regina v Porter [2004] NSWCCA 32
Court: NSW Court of Criminal Appeal
Date: 20 February 2004
Judge(s): Spigelman CJ, Barr J, Kirby J
Background
The appellant arrived at the Ansett terminal at Mascot Airport in December 1998 on a flight from Perth. NSW Police, acting on prior information, searched his bag upon arrival and found $150,000 in cash. He was arrested and charged under s 527C of the Crimes Act 1900 with having goods in his custody that were reasonably suspected of being stolen or otherwise unlawfully obtained.
The appellant was convicted before a Magistrate and appealed to the District Court. After an interlocutory jurisdictional application was determined against him (reported at (2001) 53 NSWLR 354), the matter eventually came before Mahoney ADCJ for a full appeal hearing in June 2003. The District Court judge determined all four issues against the appellant.
The matter then came before the Court of Criminal Appeal by way of a case stated under s 5B of the Criminal Appeal Act 1912, with the question being whether Mahoney ADCJ's determinations on any of those four issues were wrong in law.
Legal Issues
The case stated raised four questions:
- Whether s 4(1) of the Commonwealth Places (Application of Laws) Act 1970 (Cth) had the effect of incorporating s 3A of the Crimes Act 1900 into federal law.
- Whether, if so, there was a sufficient territorial nexus between the custody of the goods and the State of NSW.
- Whether the aircraft passing through NSW airspace was sufficient to establish the necessary territorial nexus for the charge as laid.
- Whether, on the facts before the District Court, the goods could reasonably be suspected of being stolen or unlawfully obtained.
Decision
The Court of Criminal Appeal declined to answer the stated question, finding it "inappropriate to answer." The primary reason was that the Stated Case, as drafted, was deficient in ways that made meaningful resolution of the stated legal questions impossible.
Mahoney ADCJ's reasoning had strayed into matters not properly raised by the charges as formulated. In particular, the District Court's reliance on a "resumption of custody" at Maroubra Police Station, and on the aircraft's passage through NSW airspace, were irrelevant to a charge that related only to custody occurring at Mascot Airport. The invocation of s 3A in those respects was, as Spigelman CJ described it, misconceived.
The fourth issue as stated also failed to meet the requirements of particularity demanded by s 5B of the Criminal Appeal Act 1912. The Court noted that it has the power to rewrite deficient questions in a stated case, but found that the deficiencies here were so fundamental that rewriting would not be appropriate in the circumstances.
Spigelman CJ noted that the responsibility for drafting the Stated Case lay primarily with the appellant, and that the problems were readily apparent. He expressed the view that parties should take steps to resolve such technical defects before a case stated hearing proceeds to a final hearing.
Orders Made
- The question in the Stated Case was answered: "Inappropriate to answer."
- The appellant was ordered to pay half of the respondent's costs.
Key Takeaways
- A deficiently drafted Stated Case can result in the Court of Criminal Appeal declining to answer the stated question entirely, rather than attempting to resolve the underlying legal issues.
- Under s 527C of the Crimes Act 1900, the charge as formulated confined the relevant custody to a specific location (Mascot Airport); findings by the District Court about custody at other locations or in NSW airspace did not correspond to the charge as laid and were therefore irrelevant.
- The relationship between s 4(1) of the Commonwealth Places (Application of Laws) Act 1970 and s 3A of the Crimes Act 1900 was raised but left unresolved, meaning no binding determination was made on whether s 3A is incorporated into federal law or whether it overcomes any territorial nexus requirement.
- Responsibility for ensuring a Stated Case is properly drafted and that technical defects are resolved before the final hearing falls primarily on the party who prepared it, and cost consequences may follow from a failure to attend to this.
- Where the drafting party bears substantial responsibility for the deficiencies in a Stated Case but the opposing party also had reasonable opportunity to resolve them, a court may apportion rather than award full costs against the defaulting party.
Legislation and Cases Referenced
Legislation:
- Criminal Appeal Act 1912 (NSW), s 5B
- Crimes Act 1900 (NSW), ss 3A, 527C
- Commonwealth Places (Application of Laws) Act 1970 (Cth), s 4(1)
- Interpretation Act 1987 (NSW), s 12
Cases:
- R v Porter (2001) 53 NSWLR 354
- Cameron v The Queen (2002) 209 CLR 339
- R v Kron, NSWCCA (unreported), 28 March 1995
- R v Madden (1996) 95 A Crim R 367