AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
Court of Criminal Appeal 13 October 2004

R v PORTER

[2004] NSWCCA 353

Also reported as 149 A Crim R 112
Theft & property
CRIMINAL LAW

Citation: R v Porter [2004] NSWCCA 353
Court: NSW Court of Criminal Appeal
Date: 13 October 2004
Judge(s): Spigelman CJ; Barr J; Hoeben J

Background

The appellant was charged with a "goods in custody" offence under s 527C of the Crimes Act 1900 (NSW) after police apprehended him at Mascot Airport on 3 December 1998, following a flight from Perth. A search of his bag revealed $150,000 in cash. He had travelled under a false name, and there was no evidence that the money was connected to any unlawful activity in New South Wales.

Because the offence was detected at Mascot Airport, a Commonwealth place, the charge was in fact a Commonwealth offence. This arose through the operation of s 4(1) of the Commonwealth Places (Application of Laws) Act 1970 (Cth), which applies State laws to Commonwealth places "in accordance with their tenor."

This was the third occasion the matter came before the Court of Criminal Appeal. The question formally before the Court on this occasion was whether it is an essential element of the offence that the Crown prove the goods were stolen or unlawfully obtained within New South Wales.

  • Whether s 4(1) of the Commonwealth Places (Application of Laws) Act 1970 re-enacts the territorial limitations of a State law when that law is applied as a Commonwealth law to a Commonwealth place.
  • Whether s 527C of the Crimes Act 1900 (NSW), as a matter of statutory construction, requires that the goods in question were stolen or otherwise unlawfully obtained within New South Wales.
  • Whether the interaction between s 12 of the Interpretation Act 1987 (NSW) and s 527C affects the territorial reach of the offence.

Decision

On the first issue, Spigelman CJ held that when s 4(1) applies a State law to a Commonwealth place "in accordance with their tenor," the meaning of the State law is not rewritten. Drawing on authority from the High Court, his Honour confirmed that State laws so applied continue to operate within their own limits, including as to locality. The Commonwealth law simply adopts the State law as it stands; it does not expand or alter it.

On the second issue, the Court closely examined the language and structure of s 527C. The offence is directed at a person who has custody of something that "may be reasonably suspected of being stolen or otherwise unlawfully obtained." The Court found that the provision contains no express territorial limitation requiring the stealing or unlawful obtaining to have occurred in New South Wales.

Spigelman CJ rejected the argument that an analogy with the offence of receiving stolen goods supported a territorial requirement. The offence of receiving historically derived from accessorial liability, which demanded proof of a principal offence. No such accessorial element exists in s 527C, which is a wholly independent statutory offence. The superficial similarity between the two offences did not import a requirement that the predicate unlawful conduct occur within New South Wales.

Barr J and Hoeben J agreed with the Chief Justice without separate reasons.

Orders Made

  • The stated question ("Is it an essential element of the offence that the Crown prove that the goods stolen or otherwise illegally obtained were stolen or obtained in the State of New South Wales?") was answered "No."

Key Takeaways

  • Section 527C of the Crimes Act 1900 (NSW) does not require the Crown to prove that the goods in question were stolen or unlawfully obtained within New South Wales. The offence is established by custody of goods that may reasonably be suspected of having been stolen or unlawfully obtained, wherever that may have occurred.
  • Where s 4(1) of the Commonwealth Places (Application of Laws) Act 1970 applies a State law to a Commonwealth place "in accordance with their tenor," the State law's meaning is unchanged. The provision imports the law as written, including its territorial limitations, but does not create additional restrictions.
  • Under s 527C, there is no accessorial element requiring proof of a principal offence committed in any particular jurisdiction. The Court of Criminal Appeal distinguished this offence from receiving stolen goods, which historically depended on proof of a principal theft cognisable under the same law.
  • The analogy between s 527C and the offence of receiving stolen goods was explicitly rejected as "superficially attractive but false," given the wholly independent statutory origin of the goods in custody offence.
  • A Commonwealth place remains part of the State in which it is situated for the purposes of applying State-derived Commonwealth offences under the Commonwealth Places (Application of Laws) Act 1970.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW) s 527C
- Commonwealth Places (Application of Laws) Act 1970 (Cth) s 4(1)
- Interpretation Act 1987 (NSW) s 12
- Judiciary Act 1903 (Cth)
- Acts Interpretation Act 1901 (Cth)
- Criminal Code 2002 (ACT) s 324(1)

Key Cases:
- R v Porter (2001) 53 NSWLR 354
- R v Porter (2004) 141 A Crim R 593
- Commonwealth v State of Western Australia (1999) 196 CLR 392
- Solomons v District Court of New South Wales (2002) 211 CLR 119
- Pinkstone v The Queen (2004) 78 ALJR 797
- Commissioner of Stamp Duties (NSW) v Owens (No 2) (1953) 88 CLR 168
- Lipohar v R (1999) 200 CLR 485
- R v Chan (1992) 28 NSWLR 421
- R v Ellis [1899] 1 QB 230
- R v Debruiel (1861) 11 Cox CC 207