The location in which alleged criminal conduct occurred is almost always the first issue facing police and prosecutors in deciding who is responsible for prosecuting and the Court in which the proceedings are brought. These considerations are often broadly described as “geographical jurisdiction”.
Often the question of geographical jurisdiction is simple. For example, the act of knowingly possessing a prohibited drug in Martin Place, Sydney would result in criminal liability in NSW. The act of deliberately striking a passer-by in Garema Place, Canberra without a lawful excuse would result in criminal liability in the Australia Capital Territory.
In other cases, geographical jurisdiction for an alleged offence is not so straightforward.
Take for example, the case of an unregistered firearm supplied from one person to another within the borders of the ACT but then on-supplied to facilitate the commission on an offence in NSW.
What of a case in which border controlled drugs are imported into Australia (a Commonwealth offence), held in storage within NSW for months before being collected, transported and delivered to various locations in the ACT?
The increased prevalence, complexity and scale of financial crime also raises novel jurisdictional questions. Financial crime is, by its very nature, not limited or restricted by geographical borders. How then do law enforcement authorities prosecute the transfer of illicit funds when the conduct concerns accounts held, and transfers made, in various Australian State and Territory jurisdictions?
NSW
Questions of geographical jurisdiction in NSW are addressed in Part 1A of the Crimes Act 1900 (NSW). Offence provisions are enlivened in NSW if all elements of the offence are proved and “a geographical nexus exists between the State and the offence” under s. 10C(2):
(2) A geographical nexus exists between the State and an offence if—
(a) the offence is committed wholly or partly in the State (whether or not the offence has any effect in the State), or
(b) the offence is committed wholly outside the State, but the offence has an effect in the State.
Part 1A of the Crimes Act 1900 applies to all criminal offences legislated in NSW, not just those contained with the Crimes Act 1900.[1] The necessary geographical nexus for an offence is presumed during the course of proceedings until such time as the presumption is rebutted by an accused person.[2]
The Crimes Act 1900 can import criminal liability for conduct which occurs beyond the geographical borders of the State of NSW, if the nexus requirement of s. 10C is made out.
Whether conduct has an effect in NSW, and is capable of satisfying the required nexus, is a question which will turn on the facts of the particular case.
ACT
Questions of geographical jurisdiction in the ACT are addressed in Part 2.7 of the Criminal Code 2002 (ACT). Offence provisions are enlivened in the ACT if all elements of the offence exist and “a geographical nexus exists between the ACT and the offence” under s. 64(2):
(2) A geographical nexus exists between the ACT and an offence if—
(a) the offence is committed completely or partly in the ACT, whether or not the offence has any effect in the ACT; or
(b) the offence is committed completely outside the ACT (whether or not outside Australia) but has an effect in the ACT.
Part 2.7 of the Criminal Code 2002 applies to all offences against territory laws.[3] As in NSW, the necessary geographical nexus for an offence is presumed during the course of proceedings until such time as the presumption is rebutted by an accused person.[4]
Again, criminal liability can arise under the Criminal Code 2002 for conduct which occurs beyond the geographical borders of the ACT, if the nexus requirement of s. 64 is made out.
Similarly, whether conduct has an effect in the ACT, and is capable of satisfying the required nexus, is a question which will turn on the facts of the particular case.
Commonwealth
The Australian Federal Government also assumes responsibility for legislating particular offences. The provisions relevant to Commonwealth offences are primarily contained under the Crimes Act 1914 (Cth) and the Criminal Code Act 1995 (Cth). Categories of Commonwealth specific offences include drug importation, terrorism and child exploitation matters.
By virtue of s. 3A, the Crimes Act 1914 (Cth) applies in all locations throughout and beyond ‘the Commonwealth and the Territories’. This starting point means that proceedings can be brought against persons for offences said to have been committed or have ‘a result’ within the geographical borders of Australia.[5]
Division 15 of the Criminal Code Act further provides for four categories of extended geographic jurisdiction.
Category A (See s. 15.1).
-
- Conduct occurs wholly or partly in Australia; or
- Conduct occurs wholly outside Australia, and the result of the conduct occurs wholly or partly in Australia; or
- Conduct occurs wholly outside Australia and the accused is an Australian citizen or a corporation incorporated under the law of Australia or an Australian State or Territory; or
- The offence is an ancillary offence[6] where the conduct occurs wholly outside Australia and the conduct constituting the primary offence or the result of the conduct occurs or is intended to occur wholly or partly in Australia.
Category B (See s. 15.2)
As per Category A, but also encompassing individuals who were residents of Australia at the time of the offence alleged.
Category C (See s. 15.3)
Geographical jurisdiction is unrestricted under this category.
Defences exist dependant on the laws of the foreign country or territory in which the offence is alleged to have occurred
Category D (See s. 15.4)
Geographical jurisdiction is unrestricted under this category.
Useful Cases
For a non-exhaustive list of authorities which consider geographical jurisdiction see:
- R v Kron(1995) 78 A Crim R 474
- McDonald v Bojkovic [1987] VicRp 33
- Director General NSW Department of Agriculture v Temmingh [2003] NSWSC 247
- R v Hoang [2015] ACTSC 17
- Smith v State of NSW [2016] NSWDC 55
Should you be charged with a criminal offence in NSW, ACT or under Commonwealth legislation, it is important that you get specific legal advice on any issues which relate to geographical jurisdiction.
Even when all other elements of an offence are proved, failure by the prosecution to establish the requisite geographical jurisdiction for an offence may result in the charges being dismissed.
—
Damien Mahon, Senior Lawyer
[1] See section 3 and Schedule 2 of the Crimes Act 1900 (NSW).
[2] Section 10E(1) of the Crimes Act 1900 (NSW).
[3] Section 7 of the Criminal Code 2002 (ACT)
[4] Section 66(1) of the Criminal Code 2002 (ACT)
[5] See also section 14.1 of the Criminal Code Act 1995 (Cth), the ‘standard geographical position’.
[6] As defined in the Dictionary, Criminal Code Act.
