French CJ
4.
The statutory framework
Although the indictment did not so specify on its face, the offence with which each of the appellants was charged was, as indicated on the reverse of the indictment, the offence created by s 11.5 of the Criminal Code which is scheduled to the Criminal Code Act 1995 (Cth). The offence-creating part of that section provides:
"(1) A person who conspires with another person to commit an offence punishable by imprisonment for more than 12 months, or by a fine of 200 penalty units or more, is guilty of the offence of conspiracy to commit that offence and is punishable as if the offence to which the conspiracy relates had been committed."
The remaining sub-sections of s 11.5 are not material for present purposes.
Section 233B(1) of the Customs Act provided, at the relevant time:
"(1) Any person who:
- …
- (b) imports into Australia any prohibited imports to which this section applies or exports from Australia any prohibited exports to which this section applies; or
- …
- shall be guilty of an offence."
The District Court of New South Wales, in trying the indictments, was exercising the federal jurisdiction conferred upon the several courts of the States and Territories by s 68(2) of the Judiciary Act 1903 (Cth). The New South Wales Court of Criminal Appeal in hearing and deciding the appeals was also exercising jurisdiction under that provision[1]
When a State or Territory court tries a person on indictment for a Commonwealth offence in the exercise of jurisdiction conferred by s 68(2) then, by force of s 68(1), the laws of the State or Territory respecting, inter alia, the trial and conviction of accused persons on indictment apply. That application is subject to the other provisions of s 68. The laws of the State or Territory with respect to the hearing and determination of appeals arising out of any such trial or
- ↑ See generally 'Zines, Cowen and Zines's Federal Jurisdiction in Australia, 3rd ed (2002) at 224–233.
