[17] The strength of the evidence on the general issue of guilt or innocence is an entirely different matter. It will be seen in the passages quoted above the judge effectively concludes that he had no jurisdiction because the evidence was insufficient to sustain a finding of guilt. It might well be that an acquittal would be justified on the merits after a thorough analysis of the elements of the offences charged and the admissible evidence. But that would not be for lack of jurisdiction. That would be the result if the trier of fact in a court with territorial jurisdiction concluded that the evidence did not prove the charges beyond reasonable doubt. To the extent that the judge declined jurisdiction because the evidence was insufficient it is an error that compels a new trial. For this reason it is unnecessary for the purposes of this appeal to examine the judge’s consideration of the substantive elements of the offences charged.
[18] Whether a court has jurisdiction is a condition precedent to a trial of the merits and this is as true of territorial jurisdiction as it is of temporal jurisdiction, jurisdiction over the person or jurisdiction over the subject-matter of an offence. It is a preliminary matter that affects the authority of a court to proceed at trial and ideally should be resolved before the presentation of evidence on the general issue. This does not mean that the issue cannot be raised later in a trial but the question of jurisdiction and the general issue are conceptually distinct. In the present case the question of territorial jurisdiction was only raised by the judge in the final pleadings of the prosecution and in a manner that suggested that territorial jurisdiction was an element of the offence rather than a condition precedent to proceeding on the merits at trial.
[19] Although it was not argued on the appeal, it is an error to acquit in a case where the court lacks territorial jurisdiction. Such a conclusion presupposes that the court is properly seized of the offence so as to render a decision on the general issue of guilt or innocence. But territorial jurisdiction is not a substantive defence. In a case where the court genuinely lacks territorial jurisdiction the only appropriate remedy is a stay by the prosecution that would permit a competent court in another territorial division to be seized of the prosecution.
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