I have heard submissions by Mr. Ross Munro and Mr. Palakrishnan on behalf of their respective clients that I should quash the conspiracy charges against them on the grounds that the prosecution cannot establish that this court has jurisdiction to entertain those charges. These submissions depend in the particular circumstances of this case as to whether the prosecution can establish that these offences were committed within Brunei within the meaning of the Code.

In commendable attempts to clarify the issues and therefore to shorten the case, all counsel agree that I should hear and determine these submissions. In the course of them, I asked that counsel should agree on the particular factual basis upon which I should make my ruling, which was of course essentially a ruling of law. Counsel bent their efforts to this task and agreed certain propositions about the evidence available to the prosecution for the purposes of these submissions only. Having considered those propositions, it became clear to me that I could make no proper ruling upon the submissions without hearing evidence.

Insofar as it is for the prosecution to prove the facts upon which the jurisdiction of the court depends, these facts can be proved, of course, by both direct and indirect evidence expressed in the agreement as express evidence; especially in conspiracy cases, proof is often established by inference. Whether or not such inference is proper cannot be determined without me hearing the evidence. In these circumstances, it is premature and, indeed, improper for me to make a ruling upon those submissions as presented and I decline to do at this stage. The submissions that I should quash the charges are therefore rejected, without prejudice to the right of counsel for the accused to take the point again either at the end of the prosecution case or, indeed, at the conclusion of the whole of the evidence.

However, the detailed arguments upon the jurisdiction of the Brunei court are arguments which would in any event have been presented in the course of the case or may well have been presented, and I am asked by counsel to rule upon the arguments and, in particular, upon the proper construction of section 7 of the Criminal Procedure Code read together with section 2 of the Penal Code and section 120(A) of that Code, as they relate to the jurisdiction of the court.

Of course, I am prepared to assist in any way that I am properly able to do but no court can be asked to make a ruling in a vacuum. I am told that there will be an issue as to whether any agreement proved by the prosecution as the basis of a conspiracy was made within Brunei or without. The question raised is, what is the jurisdiction of the Brunei court if a conspiratorial agreement to do the matters complained of was first made between the conspirators outside Brunei, although later all the conspirators came to Brunei, and overt acts in pursuance of the agreement were carried out in Brunei. Improper though it is for a judge to be drawn into making rulings without evidence, it is permissible for counsel to ask a judge if he is prepared to indicate his likely view upon any particular matter. This is done to assist counsel in the presentation of their cases, for in this way counsel may be assisted in their task of identifying the true issues and presenting their cases economically upon those issues, for it is only when the issues can be accurately identified that the decision-making process can be effected efficiently, particularly in adversarial proceedings.

With this in mind, I am prepared to indicate a view upon the arguments that have been presented.

Mr. Ross Munro submits — and these submissions were adopted by Mr. Palakrishnan — first, that once the court's jurisdiction is challenged the court must satisfy itself that the offence has been committed within the jurisdiction and that the burden of showing this is on the prosecution. Now, there is no dispute that, of course, the court mu