Mok v Director of Public Prosecutions (NSW)

1. [1]

   THE COURT: Mr Yau Ming Matthew Mok was in lawful custody during his return from Victoria to New South Wales, pursuant to orders made by a Victorian Magistrate in accordance with the Service and Execution of Process Act 1992 (Cth) (SEP Act) in the execution of a New South Wales bench warrant. He escaped and was recaptured at Tullamarine Airport in Victoria, which is a Commonwealth place for the purposes of s 52(i) of the Constitution. He was charged in New South Wales with the offence of attempting to escape from custody contrary to s 310D of the Crimes Act 1900 (NSW).

2. [2]

   A Magistrate (Buscombe LCM) dismissed the charge as not disclosing a prima facie case. A judge in the Common Law Division (Rothman J) allowed an appeal. The Director acknowledged that Mr Mok’s further appeal raised important questions of law, and that there should be a grant of the leave required by Supreme Court Act 1970 (NSW), s 101(2)(h). For the reasons which follow, there should be a grant of leave, but Mr Mok’s further appeal to this Court should be dismissed. Rothman J was correct to conclude that Mr Mok must be taken to have been charged with a federal offence, namely, a contravention of s 310D of the Crimes Act as made applicable by reason of s 89(4) of the SEP Act, giving rise to a prima facie case.

Factual background

1. [3]

   The facts were at no stage in dispute, and may be summarised as follows. On 11 March 2004, Mr Mok pleaded guilty before a Magistrate to 14 charges of obtaining money by deception, one charge of attempt, and nine other offences involving fraud. All were offences under State law. The Magistrate granted bail and remanded Mr Mok to appear for sentence in the District Court of New South Wales on 13 April 2006. He failed to appear. His Honour Freeman DCJ issued a bench warrant on 18 April 2006. The warrant was directed to “the Commissioner of Police for the State of New South Wales, and to all Police Officers in the said State”, and after reciting the background, commanded them:

2. [4]

   On 14 December 2011, Mr Mok was arrested in Victoria and charged with two federal offences (possessing a false Australian passport and money laundering). He was granted conditional bail, and was sentenced to six months’ imprisonment by the Victorian Magistrates’ Court on 26 February 2013. On that day he was arrested by a Victorian detective in execution of the bench warrant issued by Freeman DCJ. A remand warrant was issued under the Magistrates’ Court Criminal Procedure Rules 2009 (Vic) requiring Mr Mok to be kept in custody and conveyed to the Magistrates’ Court in Melbourne at 2pm on 27 February 2013; nothing turns for present purposes on that warrant.

3. [5]

   On 27 February 2013, a Victorian Magistrate issued a “Warrant to Remand a Person to Another State”, expressed to be under the SEP Act. The warrant referred to the 14 charges of obtaining money by deception and the one charge of attempt. It ordered that Mr Mok “be returned to Sydney Police Centre in the State of NSW”, for which purpose he was to be delivered into the custody of the New South Wales police officer named in the warrant and for him and any other police officer to “convey [Mr Mok] to Sydney Police Centre in the State of NSW and take him before a Magistrate ... to answer the said charge and to be further dealt with according to law”.

4. [6]

   On 28 February 2013, Mr Mok was accompanied by the officer named in the warrant and another New South Wales police officer to Tullamarine Airport. He was not handcuffed. While waiting at the gate to board their aircraft, Mr Mok tried to flee. The evidence was that he ran past a number of retail outlets and up a flight of stairs, being pursued by both officers, who eventually detained him and applied flexi-cuffs to him. The three then boarded the same flight (which had been slightly delayed by the attempted escape). When asked why he had run, Mr Mok said, “I’m sorry Bob. I just had to try it. It was a last minute thing.”

5. [7]

   Mr Mok was taken to Sydney, where he was charged, later that day, with an offence under s 310D(a) of the Crimes Act 1900 (NSW). That section provides:

6. [8]

   “Inmate” is defined in s 310A to have “the same meaning as it has in the Crimes (Administration of Sentences) Act 1999”. There are in fact two definitions of “inmate” in that Act, in ss 3 and 4(3). Section 3 of the latter Act defined “inmate” to mean “a person to whom Part 2 applies”. Section 4(1) (which is the first section in Part 2) identifies, elaborately, the persons to whom Part 2 applies, and s 4(3) provides that in Part 2, an “inmate” means a person to whom this Part applies. Thus both references are to the same definition, and it is convenient to refer to s 4(1) as the definition of “inmate”.

7. [9]

   It is the complexity of the definition of “inmate” which has been central to the litigation thus far, and which dominated the written and oral submissions on appeal. However, as will be seen below, that is a false issue. The resolution of the appeal turns primarily on an appreciation of the role of the SEP Act and the operation of its terms, which are not dependent upon that definition. Indeed, they operate to its exclusion.

The definition of “inmate”

1. [10]

   Paragraphs (d), (e) and (f) of the definition of inmate are as follows:

2. [11]

   Those paragraphs are to be read with the definitions of “correctional centre”, “correctional officer” and “court” which are as follows:

The decisions of Buscombe LCM and Rothman J

1. [12]

   The prosecution under s 310D was heard in Sydney Central Local Court on 14 June 2013. There was no contest to the Crown’s evidence establishing the escape and the lawfulness of the custody. By reserved decision given on 1 July 2013, the Magistrate dismissed the charge on the basis that there was no prima facie case. The Director of Public Prosecutions appealed as of right pursuant to s 56(1)(c) of the Crimes (Appeal and Review) Act 2001 (NSW), and his appeal was allowed by Rothman J, who set aside the dismissal and remitted the hearing of the matter to the Local Court to be dealt with according to law: [2014] NSWSC 618.

2. [13]

   The Magistrate at first instance considered that neither paragraphs (d) or (e) of the definition of inmate applied to the bench warrant, because it directed Mr Mok be brought before a judge or magistrate, rather than committing him to a correctional centre. No challenge has been made to this conclusion.

3. [14]

   The warrant issued by the Victorian Magistrate on 27 February 2013 did commit Mr Mok to a correctional centre (namely, Sydney Police Centre, noting that the definition of a correctional centre included a police station). However, the Magistrate considered that this warrant had not been made by a “court” within the meaning of paragraphs (d) or (e), because those paragraphs were confined to courts in New South Wales, in accordance with s 12 of the Interpretation Act 1987 (NSW) and the “general rule of construction” to the same effect identified in Solomons v District Court (NSW) [2002] HCA 47; 211 CLR 119 at [9] and [37]. Finally, because Mr Mok, when he attempted to escape, had not yet been given into the keeping of a correctional officer but was in the custody of two police officers, the Magistrate considered that paragraph (f) did not apply.

4. [15]

   On appeal, Rothman J disagreed, concluding that paragraphs (d) and (e) of the definition of “inmate” did apply. His Honour expressed his conclusion as follows (at [69]):

5. [16]

   Section 89(4) and the other provisions of the SEP Act are addressed in detail below; it suffices presently to note that it applies the law in force in the place of issue of a warrant to a person being taken to the place of issue in compliance with an order such as that made by the Victorian Magistrate on 27 February 2013. The essential reasoning turned on his Honour’s view of the role of the SEP Act, as found in [54]-[56]:

6. [17]

   In short, his Honour held that both (d) and (e) of the definition of “inmate” applied because the definition of “court” was to be read as extending to the Magistrates’ Court of Victoria. His Honour also expressed the view that there was “merit” in the Director’s alternative submission that the Melbourne Magistrates’ Court was a “competent authority” within the meaning of paragraph (e) of the definition of “inmate”; in light of his conclusion on “court” it was unnecessary for him to reach a concluded view. His Honour rejected a submission by Mr Mok that neither paragraph (d) nor (e) applied because he had not been “committed” to a correctional centre; this latter submission was not renewed on further appeal.

7. [18]

   Finally, his Honour concluded that the charge had been misstated, for failing to refer to the application of s 310D under s 89(4) of the SEP Act: at [57]. His Honour said that “[t]he offence under s 310D is a Commonwealth offence applied, by reference, under s 89(4) of the Service and Execution of Process Act”: at [58]. For that reason, his Honour considered that “[t]here may be issues associated with the irregularity or necessity to amend the charge so as to refer to the operation of the Service and Execution of Process Act”: at [70]. For that reason, his Honour remitted the matter to the Local Court.

The issues on appeal to this Court

1. [19]

   On appeal, Mr Mok challenged the primary judge’s conclusions that the Victorian Magistrate was a “court” or a “competent authority”. By his notice of contention, the Director submitted that either the Victorian Magistrates’ Court or the Magistrate personally was a “competent authority”. In addition, the Director submitted that the Victorian Magistrate was a “court” on the basis that she was a “person who exercises criminal jurisdiction”.

2. [20]

   It will be seen that those submissions proceeded upon a common premise: that it was necessary, in order for s 310D to apply to Mr Mok on 28 February 2013, for s 89(4) of the SEP Act to bring about the conclusion that he was an “inmate”. Senior counsel who appeared for Mr Mok on the appeal conceded, candidly and properly, that if that were not so, the appeal must fail. As will be seen below, the premise is not made out.

Analysis of the two federal laws capable of applying State statutes

1. [21]

   It is obvious that s 310D did not apply of its own force at Tullamarine Airport at any time. Tullamarine Airport is a Commonwealth place within the meaning of s 52(i) of the Constitution, and it is settled that State law cannot of its own force apply in such a place: Worthing v Rowell and Muston Pty Ltd [1970] HCA 19; 123 CLR 89 and R v Phillips [1970] HCA 50; 125 CLR 93. Applications to reopen Worthing were refused in Allders International Pty Ltd v Commissioner of State Revenue (Vic) [1996] HCA 58; 186 CLR 630 at 635 and Permanent Trustee Australia Ltd v Commissioner of State Revenue (Victoria) [2004] HCA 53; 220 CLR 388 at 393-394.

2. [22]

   It is less obvious that there are two federal laws capable of causing State laws to apply (as federal law) to Mr Mok at Tullamarine Airport on 28 February 2013. The first is s 4 of the Commonwealth Places (Application of Laws) Act 1970 (Cth), which causes laws of a State to “apply, or shall be deemed to have applied, in accordance with their tenor” in relation to Commonwealth places in a State. Moreover, s 4(4) deals with the possibility of a State law having extraterritorial operation, and provides that insofar as a State law has effect in another State, s 4(1) operates to make the provisions of that other State law applicable in a Commonwealth place. The second turns on the much less well known provisions (notwithstanding their importance) of the SEP Act.

3. [23]

   The SEP Act defines a warrant to mean a process issued by, inter alia, a court in accordance with a law of a State. The breadth of the term “process” was emphasised in Dalton v New South Wales Crime Commission [2006] HCA 17; 227 CLR 490 at [29]-[34] and [48]-[53]. A bench warrant is a canonical example of a process. The bench warrant issued on 18 April 2006 was executed (a) by the arrest on 26 February 2013 and (b) by the warrant issued by the Victorian Magistrate on 27 February 2013.

4. [24]

   As to the arrest, Mr Mok was named in the warrant. Section 82 of the SEP Act authorises, inter alia, an officer of the police force of the local State to apprehend a person who is named in a warrant. That occurred on 26 February 2013. Section 83(1) required the person to be taken before a magistrate of the State in which the person was apprehended as soon as practicable. That occurred on the following day, 27 February 2013. The bench warrant being produced, the provisions of s 83(3)-(7) (which, speaking generally, make provision for a strictly limited period to produce the warrant during which the person may be remanded on bail or held in custody) did not apply. However, s 83(8) was applicable. It provided:

5. [25]

   It was not suggested that subsections (10) or (14) or s 84 applied. Accordingly, on 27 February 2013, the Victorian Magistrate was obliged to make one of the orders specified in s 83(8)(a) or (b). The mandatory nature of the task tended to confirm, as was held in Renton v Renton [1918] HCA 57; 25 CLR 291 of broadly comparable federal legislation, that her Honour was “not acting as a court acts”, but instead was acting administratively.

6. [26]

   Unsurprisingly, the Magistrate did not remand Mr Mok on bail pursuant to s 83(8)(a). Instead, she made an order under s 83(8)(b).

7. [27]

   Section 89 of the SEP Act, and in particular s 89(4), is critical to this appeal. The section relevantly provides:

8. [28]

   It was common ground that s 89(4) applied when Mr Mok was at Tullamarine Airport on 28 February 2013. The parties were correct to proceed on that basis, for these reasons.

9. [29]

   First, subsection 89(5) did not apply. Although Mr Mok had been convicted the previous day of two federal offences, he was not, on 27 and 28 February 2013, in lawful custody in respect of an offence against the law of the Commonwealth. Instead, he was in lawful custody pursuant to an order made the previous day in the execution of the New South Wales bench warrant, which had issued after he had failed to attend for sentence following his guilty plea in respect of State offences.

10. [30]

    Secondly, it will be seen that s 89(1) authorises a person with custody of an apprehended person to require that person to be kept in a local prison for a period of time. That power was not exercised, so far as the record discloses. However, s 89(4) applies more broadly, whenever a person is “being taken to the place of issue in compliance with an order mentioned in subsection (1)”. Mr Mok was undoubtedly being taken to the place of issue of the bench warrant, and this was taking place in compliance with an order made under s 83(8)(b), which is one of the orders mentioned in s 89(1).

Which federal law caused State law to apply?

1. [31]

   Accordingly, there were two federal laws which were potentially capable of applying State laws to Mr Mok on 28 February 2013: the Commonwealth Places (Application of Laws) Act 1970 (Cth) and the SEP Act. Importantly, they did so in different terms. The Commonwealth Places (Application of Laws) Act applied State laws generally and “in accordance with their tenor”. The SEP Act applied a limited class of State laws to “a person being taken to the place of issue in compliance with [an order under s 83(8)(b)]”.

2. [32]

   Fortunately, it is straightforward to resolve the potential conflict between the two federal laws. The resolution occurs not because the SEP Act is later in time and more specific in its application (although in the absence of s 4(2) of the Commonwealth Places (Application of Laws) Act 1970, it is evident that that would be the case). To the contrary, before applying a conflict resolution rule, it is necessary first to construe the two apparently conflicting laws, for “[n]o conclusion can be reached about whether a later statutory provision contradicts an earlier without first construing both provisions”: Ferdinands v Commissioner for Public Employment [2006] HCA 5; 225 CLR 130 at [47]. The application of local and extraterritorial State laws in Commonwealth places effected by subss 4(1) and (4) is expressly qualified by s 4(2)(a):

3. [33]

   That disabling provision is engaged by the effect of s 8(4) of the SEP Act. Unlike its predecessor (the Service and Execution of Process Act 1901 (Cth) which was facultative and non-exclusive: see Flaherty v Girgis [1987] HCA 17; 162 CLR 574), s 8(4) of the SEP Act provides that:

4. [34]

   Subsection 8(4) amounts to an expression of intention that the federal law should (subject to its exceptions) have an exclusive operation: see Western Australia v Commonwealth [1995] HCA 47; 183 CLR 373 at 467-468. It was not suggested s 8(4) might be invalid.

5. [35]

   Section 8(4)(a) and (b) of the SEP Act produce the result that any New South Wales or Victorian law falling within the description in s 8(4) (i.e. with respect to the execution of another State’s process) which might otherwise have applied to Mr Mok on 28 February 2013 is inoperative by reason of s 109 of the Constitution. Otherwise such a law would be inconsistent with the command in s 8(4) that the federal regime be exclusive. A law imposing criminal sanctions upon a person who is in custody, pursuant to the execution of a New South Wales bench warrant, and who escapes in Victoria while being returned, is plainly a law with respect to the execution of process in another State.

6. [36]

   Accordingly, s 4(2)(a) of the Commonwealth Places (Application of Laws) Act ensured that s 310D was not made applicable by subs 4(1) and (4) of the same Act. The only federal law, relevant for present purposes, making State law applicable was s 89(4) of the SEP Act. It followed that s 310D was not made applicable “in accordance with [its] tenor”. To the contrary, s 310D was made applicable “to a person being taken to the place of issue in compliance with an order mentioned in subsection (1)”.

The effect of s 89(4) of the SEP Act making s 310D applicable

1. [37]

   As Rothman J observed, s 310D of the Crimes Act 1900 (NSW) applied to Mr Mok in Tullamarine on 28 February 2013 not of its own force, but because it was made applicable by s 89(4) of the SEP Act. It followed that Buscombe LCM was exercising federal jurisdiction, invested pursuant to s 77(iii) of the Constitution by s 68(2)(a) of the Judiciary Act 1903 (Cth) with respect to the summary conviction of Mr Mok on the charge of escaping from custody. Moreover, Rothman J on appeal, and in turn this Court on further appeal, was exercising “the like jurisdiction” invested under s 68(2) of the same Act.

2. [38]

   Moreover, s 89(4) applies State law in circumstances where otherwise it would not apply. It is well established in such circumstances that a State law made applicable by a federal law does so as federal law. That must be so; the State law is not applicable of its own force. One example may be seen in s 74(2A) of the Trade Practices Act 1974 (Cth), which provided that where there was a breach of a term implied by reason of s 74 of that Act, then “the law of the State or Territory applies to limit or preclude liability for the breach, and recovery of that liability” in the same way that it would apply in respect of breaches of other terms. A unanimous High Court in Insight Vacations Pty Ltd v Young [2011] HCA 16; 243 CLR 149 described State laws so applied as “surrogate federal law” (a term also commonly used to describe the law applied by s 79 of the Judiciary Act 1903 (Cth)). Another example, in a criminal context, may be seen in R v Porter [2001] NSWCCA 441; 53 NSWLR 354, which at [41]-[43] dealt with the effect of s 4 of the Commonwealth Places (Application of Laws) Act 1970 (Cth) which caused laws of a State to “apply, or shall be deemed to have applied, in accordance with their tenor” in relation to Commonwealth places in a State. Spigelman CJ (with whom Studdert J and Ireland AJ agreed) said at [41]:

3. [39]

   That reasoning was more recently applied in Cameron v The Queen [2004] WASCA 16 at [12] (Steytler J) and [34] (McKechnie J, Wallwork AJ agreeing) and Lorrimar v Serco Sodexo Defence Services Pty Ltd [2014] NSWCA 371 at [89] (McColl JA, Macfarlan JA and Tobias AJA agreeing).

4. [40]

   However, there are many federal laws which apply State law, and they do so in different ways. The ultimate effect turns on the terms of the particular federal law. It is wrong to apply, uncritically, a decision on the effect of one federal law making State laws applicable to a differently worded federal law.

5. [41]

   For example, the Director relied on a line of decisions based on s 68(2) of the Judiciary Act 1903 (Cth) which, speaking generally, invested State courts with “the like jurisdiction” in respect of federal offences as they already possessed in respect of State offences pursuant to s 77(iii) of the Constitution. It has been held of s 68(2) that “the adoption of State law must proceed by analogy”, to use Dixon J’s language in Williams v The King [No 2] [1934] HCA 19; 50 CLR 551 at 561, applied in Rohde v Director of Public Prosecutions [1986] HCA 50; 161 CLR 119 at 124 by Gibbs CJ, Mason and Wilson JJ. Thus in Williams and Rohde it was held that the effect of s 68(2) is to authorise a right of appeal by the Commonwealth Attorney-General in circumstances where State law authorises an appeal by the State Attorney-General. The Director invoked the reasoning in those decisions to support the conclusion that the definition of “inmate” applied by analogy to Mr Mok.

6. [42]

   Those decisions are of minimal assistance. Section 68(2) invests State courts with a “like jurisdiction”. Section 89(4) is not a provision which invests jurisdiction at all, and even if it were, it does not use language which requires proceeding by analogy, such as is implicit in the term “the like jurisdiction”.

7. [43]

   Both parties took the Court to a series of decisions on s 79 of the Judiciary Act. Section 79(1) provides that (emphasis added):

8. [44]

   Section 79(1) is not a law which in terms makes specific State laws or a specific class of State laws applicable; instead it is directed to courts exercising federal jurisdiction, as Gageler SC as he then was submitted in Solomons (2002) 211 CLR 119 at 125. The joint judgment agreed, and noted, relevantly for present purposes, that s 79 is “not, for example, directed to the rights and liabilities of those engaged in non-curial procedures under State laws”: at [23]. That is one reason why authorities on s 79 are of limited assistance to this appeal.

9. [45]

   Moreover, s 79 concludes with the words “in all cases to which they are applicable”. Those words confine the operation of s 79; see Solomons at [72]-[74]. Even so, there is a limited power to alter the operation of State laws applied as federal law, so as to advance the evident federal legislative purpose. The Court was taken to what Gibbs J said in John Robertson & Co Ltd v Ferguson Transformers Pty Ltd [1973] HCA 21; 129 CLR 65 at 88:

10. [46]

    The principle at play was explained by Mason J in John Robertson & Co at 95 (emphasis added):

11. [47]

    None of these nuances arise in the case of s 89(4) of the SEP Act. Subsection 89(4) takes a limited class of State laws: laws of the place of issue which relate to the liability of a person who escapes from lawful custody. Subsection 89(4) does not purport to apply that class of laws generally, or “in accordance with their tenor”, or “in all cases to which they are applicable”. Subsection 89(4) does something far more focussed. Its premise is that there is a person being taken to the place of issue in compliance with an order made under the SEP Act. That order will at least ordinarily name the person. Subsection 89(4) applies that limited class of laws to that person – the person named in the order.

12. [48]

    In its application to the present facts, the Victorian Magistrate’s order under s 83(8)(b) required Mr Mok to be conveyed by a particular New South Wales police officer to the Sydney Police Centre. When he attempted to escape at Tullamarine Airport, Mr Mok was a person being taken to the place of issue in compliance with that order. Section 89(4) applied New South Wales law relating to the liability of a person who escapes from lawful custody to Mr Mok.

13. [49]

    The matter may be tested this way. The lengthy submissions and analyses in the courts below all turned on the elaborate definition of “inmate”, for s 310D in terms applies only to persons who are “inmates” as defined. But the effect of s 89(4) applying s 310D to persons being returned to New South Wales was not merely confined to those persons who were being returned in accordance with the SEP Act and who sought to escape who happened to be “inmates”. Unlike s 79, s 89(4) does contain an “express provision which would enable [the court] to alter the language of a State statute and apply it in that altered form”, to paraphrase what Mason J said in John Robertson & Co.

14. [50]

    The matter may be further tested as follows. The premise of s 89(4) is that a person is in custody by reason of an order made under the SEP Act in the execution of a warrant. On that assumption, s 89(4) makes applicable the law of the warrant’s place of issue relating to the liability of a person who escapes from lawful custody. The place of issue will often (as here) be different from the place where an escape takes place. The place of issue will always be different from the place where the order committing the person into custody is made (that is why the SEP Act has been invoked). And of course it would not be expected that one State will enact laws relating to the escape from lawful custody where a person is in custody by reason of an order or warrant made by another State’s court or magistrate. To paraphrase once more what Mason J said in John Robertson & Co, State law relating to the liability of a person who escapes from lawful custody must be applied, as surrogate federal law, upon the assumption that escape from lawful custody imposed by an order made by a magistrate in another State is not outside their field. If that were not so, the section could have no work to do.

15. [51]

    This appeal is not determined by a strained reading of whether the Victorian Magistrate was a “court exercising criminal jurisdiction”, or a “competent authority”. Section 89(4) requires putting to one side the carefully crafted definitions of “inmate”, and applying the new federal offence to all persons being taken to the place of issue. Section 89(4) leaves no room for debate about whether or not Mr Mok is a person who, as an “inmate”, is within the scope of s 310D in its ordinary operation as an offence under State law. The new federal offence created by s 89(4) acting upon s 310D applies to all persons who are being taken to New South Wales in compliance with an order under the SEP Act mentioned in s 89(1). Mr Mok was such a person.

Orders

1. [52]

   The appeal must be dismissed. The Director did not seek leave to appeal from the orders made by Rothman J remitting the proceeding for further hearing, against the possibility that there was a material defect in the Court Attendance Notice through failing to specify that s 310D did not apply of its own force. Accordingly it is not appropriate to express any view as to the operation of Part 2 of Criminal Procedure Act 1986 (NSW) (made applicable by reason of s 68(1)(a) and s 79 of the Judiciary Act 1903 (Cth)), and in particular, whether ss 16(2) and 21 permit in the circumstances of this case the amendment of the Court Attendance Notice (noting the extended definition of “indictment” which includes such a notice).

2. [53]

   The Director sought an order for costs. The position as to costs is the converse of that in Director of Public Prosecutions v El Mawas [2006] NSWCA 154; 66 NSWLR 93 at [86] and Poidevin v Semaan [2013] NSWCA 334; 85 NSWLR 758 at [36]. Costs of Mr Mok’s unsuccessful appeal should follow the event.

3. [54]

   The orders of the Court will be: