Ward v The Queen [1980] HCA 11

High Court of Australia Barwick C.J. Gibbs, Stephen, Mason, Murphy, Aickin and Wilson JJ. Ward v The Queen [1980] HCA 11

ORDER Appeal allowed. Conviction set aside for want of jurisdiction.

Cur. adv. vult.

The following written judgments were delivered:—

May 1 Barwick C.J.

I have had the advantage in this appeal of reading the reasons for judgment prepared by my brother Stephen. I agree with his conclusion that the northern boundary of Victoria is the top of the southern bank of the River Murray. I agree substantially with the reasons my brother gives for that conclusion. My brother's informative survey of colonial history affords no reason for reaching any other conclusion. On the contrary, in my opinion, it aids that conclusion.

The delineation, for electoral reasons, of the Port Phillip district of the colony of New South Wales effected by 5 & 6 Vict. c. 76 (1842) did not involve any alienation of territory. Consequently, when in 1850 a separation from the colony of New South Wales of what was to become the colony of Victoria was effected, the northern boundary of the new colony was fixed so far as it referred to the River Murray by reference to the course of that river. This was capable of being regarded as the southern bank of the river or the middle line of the river. It could scarce have been regarded as the water's edge on the river as it might be from time to time. I agree with what my brother Stephen has said as to the decision of the Supreme Court of Victoria sitting as a court of criminal appeal in this case on the relationship of the water to the inter-colonial boundary. None have suggested, nor could it properly be maintained, that by reference to "the Course of that River" (the Murray River), the indication of the northern bank of the river was intended as the inter-colonial boundary.