Criminal Law (Territorial Application) Act 1995


Published: 2019-11-05

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Criminal Law (Territorial Application) Act 1995

An Act to provide for procedures relating to crimes and offences involving territorial nexus between the State and at least one element of the crime or offence

[Royal Assent 22 September 1995]

Be it enacted by His Excellency the Governor of Tasmania, by and with the advice and consent of the Legislative Council and House of Assembly, in Parliament assembled, as follows:

1.   Short title

This Act may be cited as the Criminal Law (Territorial Application) Act 1995 .

2.   Commencement

This Act commences on the day on which it receives the Royal Assent.

3.   Interpretation

In this Act –
crime means –
(a) a crime or an offence which is punishable on indictment; and
(b) a crime under the Criminal Code which is triable summarily;
event means any act, omission, occurrence, circumstance or state of affairs (not including intention, knowledge or any other state of mind);
necessary territorial nexus means the territorial nexus referred to in section 4 ;
the State includes –
(a) the territorial sea adjacent to the State; and
(b) the sea on the landward side of the territorial sea that is not within the limits of the State.

4.   Territorial application of criminal law

(1)  A crime against the law of the State is committed if –
(a) all elements necessary to constitute the crime exist; and
(b) a territorial nexus exists between the State and at least one element of the crime.
(2)  A territorial nexus exists between the State and an element of a crime if –
(a) the element is or includes an event occurring in the State; or
(b) the element is or includes an event that occurs outside the State while the person alleged to have committed the crime is in the State.
(3)  There is a presumption that the necessary territorial nexus exists unless rebutted under section 5 or 6 .

5.   Dispute of necessary territorial nexus in indictable crimes

(1)  Subject to subsection (2) , a person charged with a crime upon indictment may only dispute the existence of the necessary territorial nexus at the time the person enters a plea on arraignment.
(2)  The judge may allow the person to dispute the existence of the necessary territorial nexus during the trial.
(3)  The judge may require the jury to determine whether the necessary territorial nexus exists even though the issue has not been raised at all in the trial.
(4)  If the existence of the necessary territorial nexus has been disputed on arraignment, the judge may order a jury to be empanelled to determine the issue before the trial.
(5)  A jury empanelled under subsection (4) may be resworn for the trial if it determines that the necessary territorial nexus exists.
(6)  If a jury is satisfied on the balance of probabilities that the necessary territorial nexus does not exist –
(a) the jury, subject to subsection (7) , must return a verdict to that effect; and
(b) the accused is to be discharged.
(7)  If the jury, irrespective of whether or not there was a territorial nexus, would find a person not guilty (but not on the ground of insanity), it must return a verdict of not guilty.

6.   Dispute of necessary territorial nexus in crimes dealt with summarily

(1)  If a person charged with a crime which is triable summarily disputes the existence of the necessary territorial nexus, the court is to proceed with the trial in the usual way.
(2)  If raised before the trial, the issue of whether the necessary territorial nexus exists must be reserved for consideration at the trial.
(3)  If the court is satisfied on the balance of probabilities that the necessary territorial nexus does not exist –
(a) the court, subject to subsection (4) , must return a finding to that effect; and
(b) the complaint is to be dismissed.
(4)  If the court, irrespective of whether or not there was a territorial nexus, would find the person not guilty of the crime (but not on the ground of insanity), it must return a finding of not guilty.

7.   Exercise of certain powers and authority

A power or authority exercisable on belief on reasonable grounds that a crime against the law of the State has been committed may be exercised in the State if the person in whom the power or authority is vested suspects on reasonable grounds that the elements necessary to constitute the crime exist (whether or not that person suspects or has any ground to suspect that the territorial nexus with the State exists).

8.   Charged with several crimes

A person charged with a crime who could be found guilty of that crime or some other crime is taken to be charged with each crime.

9.   Application of Act

(1)  The provisions of this Act apply to crimes committed before or after its commencement.
(2)  The provisions of this Act do not apply to a crime if –
(a) the law under which the crime is created explicitly or impliedly makes the place of commission an element of the crime; or
(b) the law under which the crime is created is a law of extraterritorial operation which explicitly or impliedly excludes the requirement for a territorial nexus between the State and an element of the crime; or
(c) a charge has been laid before the commencement of this Act.
(3)  The provisions of this Act are in addition to, and do not derogate from, any other basis on which the court may exercise criminal jurisdiction.

10.   

The amendments effected by this section have been incorporated into the authorised version of the Criminal Code.