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NEW SOUTH WALES
EXPLANATORY NOTE
(This Explanatory Note relates to this Bill as introduced into Parliament)
In the case of Thompson v The Queen (1989) 169 C.L.R. 1, the High Court held that
proof of the locality of the elements of an offence is necessary to establish jurisdiction
and that generally proof on the balance of probabilities is sufficient. The object of this
Bill is to amend the Crimes Act 1900 to confirm the decision of the High Court in
Thompson's case and to clarify the "territorial" application of the criminal law of New
South Wales.
Clause 1 specifies the short title of the proposed Act.
Clause 2 provides that the proposed Act will commence on a day to be appointed
by proclamation.
Clause 3 gives effect to the Schedule of amendments to the Crimes Act 1900.
Schedule 1 contains the following amendments to the Crimes Act 1900:
· Schedule 1 (1) is a consequential amendment.
· Schedule 1 (2) inserts proposed section 3A which provides that an offence
against the law of New South Wales is committed if all elements necessary to
constitute the offence exist and a "territorial nexus" exists between the State and
at least one element of the offence. Such a "territorial nexus" exists if the
element is (or includes) an event occurring in the State or the element occurs
outside the State but while the person alleged to have committed the offence is in
the State. The existence of the "necessary territorial nexus" between the State
and an element of an offence is presumed and is conclusive unless the person
charged with the offence disputes the existence of the territorial nexus and the
court or jury is satisfied, on the balance of probabilities, that the nexus does not
exist.
· Schedule 1 (3) omits a section of the Crimes Act 1900 that allows a case of
homicide (where the cause of death occurs outside the State but the death occurs
inside the State, or vice versa) to be dealt with as if the offence had been wholly
committed within the State. The section will be superseded by the new section
3A which applies to all offences against the criminal law of the State.
· Schedule 1 (4) amends the Second Schedule to the Crimes Act 1900 to include a
reference to the new section 3A. The Second Schedule contains a list of
provisions of the Crimes Act 1900 that extend to all offences.