Director of Public Prosecutions (NSW) v Yau Ming Mathew Mok
[2014] NSWSC 618
•21 May 2014
Supreme Court
New South Wales
Medium Neutral Citation: Director of Public Prosecutions (NSW) v Yau Ming Mathew Mok [2014] NSWSC 618 Hearing dates: 24 April 2014 Decision date: 21 May 2014 Before: Rothman J Decision: 1. Pursuant to the terms of s 59(2) of the Crimes (Appeal and Review Act) 2001, the order of his Honour, M Buscombe, Local Court Magistrate, made on 1 July 2013 at Central Local Court dismissing proceedings against the respondent, Yau Ming Mathew Mok, for the offence under s 310D Crimes Act 1900 (NSW) of being an inmate attempting to escape from lawful custody, be set aside;
2. The hearing of the aforesaid charge be remitted to the Local Court to be dealt with according to law;
3. No order as to costs;
4. The respondent Yau Ming Mathew Mok, be granted a certificate under s 6 of the Suitors' Funds Act 1951;
5. The parties have liberty within 7 days to apply for any special or different orders for costs. Such application will be made with attached submissions of no more than three (3) pages by email to the Associate to Rothman J. Any party affected by any application under this order may respond, by submission of no more than three (3) pages, in a further 2 days from the receipt of such application.
Catchwords: STATUTORY CONSTRUCTION - conflict of laws - Appeal from dismissal of charges by magistrate - application of s 310D of the Crimes Act 1900 (NSW) to person fleeing custody of police in Melbourne after warrant issued by Melbourne Magistrates' Court for "extradition" to NSW - effect of s 89(4) of the Service and Execution Process Act 1992 (Cth) on meaning of term "inmate" in s 310D of the Crimes Act. Legislation Cited: Crimes Act 1900 (NSW)
Crimes (Administration of Sentences) Act 1999 (NSW)
Crimes (Appeal and Review) Act 2001 (NSW)
Interpretation Act 1987 (NSW)
Judiciary Act 1903 (Cth)
Service and Execution of Process Act 1992 (Cth)
Suitors' Funds Act 1951 (NSW)Cases Cited: Commissioner of Police v Eaton [2013] HCA 2; (2013) 87 ALJR 267
Momcilovic v R and Ors [2011] HCA 34; (2011) 245 CLR 1
Mullins v Surrey County Treasurer (1881) 7 AppCas 1
Peel v R (1971) 125 CLR 447
Project Blue Sky Inc & Ors v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355
R v Brixton Prison; Ex parte Mehamed Ben Romdan [1912] 3 KB 190
R v Giannakopoulos and Marzilli [2013] SASCFC 50
R v Carngham (1978) 140 CLR 487
Rohde v Director of Public Prosecutions (1986) 161 CLR 119
Rose v Chief Commissioner of Police [2000] VSC 281Texts Cited: Australian Concise Oxford Dictionary (4th edition, 2004) Category: Principal judgment Parties: Director for Public Prosecutions (NSW) (Plaintiff/Appellant)
Yau Ming Mathew Mok (Defendant/Respondent)Representation: Counsel:
I. Bourke (Plaintiff/Appellant)
B. Wrench (Defendant/Respondent)
Solicitors:
Director of Public Prosecutions (Plaintiff/Appellant)
Murphy's Lawyers Inc. (Defendant/Respondent)
File Number(s): 2013/316592 Publication restriction: None Decision under appeal
- Date of Decision:
- 2013-07-01 00:00:00
- Before:
- M. Buscombe, Magistrate
- File Number(s):
- 2013/62939
Judgment
HIS HONOUR: The Director for Public Prosecutions (NSW) appeals against the judgment of the Local Court of 1 July 2013, dismissing the charge against the defendant/respondent, Yau Ming Mathew Mok. The issue involves the proper construction of s 310D(a) of the Crimes Act 1900 (the Act) in circumstances of its operation pursuant to the Service and Execution of Process Act 1992 (C'th).
The appeal is lodged under s 56 of the Crimes (Appeal and Review) Act 2001, being an appeal by a prosecutor against an order dismissing a matter the subject of any summary proceedings. As a consequence, no leave is necessary and the appeal is "as of right".
Facts
The facts established by the prosecutor were not in dispute before this Court, nor in the Local Court, and the following emanates from a succinct summary that is contained in the summons filed in this Court on 21 October 2013.
On 11 March 2004, Mr Mok pleaded guilty to a number of fraud offences when he appeared before a magistrate. The magistrate granted bail and remanded Mr Mok to appear for sentence in the District Court on 13 April 2006.
On 13 April 2006, Mr Mok failed to appear. His Honour Freeman DCJ issued a bench warrant on 18 April 2006.
On 14 December 2011, police at Dandenong, Victoria, arrested Mr Mok and charged him with possessing a false passport and money laundering offences. On 26 February 2013, a magistrate in Victoria sentenced Mr Mok for the offences charged in Victoria to 6 months' imprisonment. On the same day, a Victorian detective executed the bench warrant of 18 April 2006 issued by Freeman DCJ.
On 27 February 2013, Magistrate Bazzani at the Melbourne Magistrates' Court issued a "Warrant To Remand A Person To Another State" and placed Mr Mok into the custody of Detective Sergeant McLennan of the New South Wales Police.
On 28 February 2013, Detective Sergeant McLennan, accompanied by Detective Senior Constable Hanson, escorted Mr Mok to Tullamarine Airport with the intention of transporting him back to Sydney.
While at the airport, the defendant left the custody or company of Detective Sergeant McLennan and Senior Constable Hanson as all of them were waiting to board the aircraft for the flight back to Sydney. After a short chase, Mr Mok was re-arrested.
He was charged in relation to the foregoing incident at the Melbourne Airport, with the offence described in s 310D(a) of the Act, being the offence of an inmate escaping or attempting to escape from lawful custody. It is necessary to recite the section, which is in the following terms:
"s 310D Escaping
Any inmate:
(a) who escapes or attempts to escape from lawful custody, or
(b) who, having been temporarily released from lawful custody, fails to return to lawful custody at the end of the time for which the inmate has been released,
is guilty of an offence.
Maximum penalty: imprisonment for 10 years."
The offence described by s 310D of the Act is a Table 1 offence and may be prosecuted summarily. The offence before Magistrate Buscombe was, or purported to be, a summary prosecution of the offence under s 310D of the Act.
On 14 June 2013, the Local Court heard the charge and the learned Magistrate reserved judgment, dismissing the charge and publishing reasons for that dismissal on 1 July 2013.
Reasons of the Local Court
The learned magistrate, with respect to him, delivered a succinct, well-reasoned judgment that found that there was no prima facie case and dismissed the charge, essentially on the basis that Mr Mok was not an "inmate" within the meaning of s 310D of the Act and that, therefore, he was, at the time that he left the company of the two detectives, not an inmate who escaped or attempted to escape from lawful custody.
It is appropriate to recite some of the reasoning of the learned Magistrate, who, after reciting the facts, essentially summarised above, and summarising the effect of the submissions before the Local Court said:
"[32] On its face the warrant did not commit the accused to a correctional centre as defined in the legislation. What the warrant issued by Judge Freeman did, was to authorise the arrest of the accused and to have him brought before his Honour, another District Court Judge or a Justice or Justice of the Peace in New South Wales. It may well be that in order to bring the accused before his Honour, another District Court Judge or a Justice or Justice of the Peace it would, from a practical point of view, be necessary to hold the accused in a police station or court cell complex. That practicality, in my view does not change the legal nature of the bench warrant that was issued. On its face the warrant issued by Freeman DCJ is not the type of warrant referred to in s 4(1)(e)."
The legislation to which the learned Magistrate was referring and the provision referred to as s 4(1)(e) were references to the terms of the Crimes (Administration of Sentences) Act 1999 which defines, relevantly, the term "inmate" by reference to Part 2 of the Crimes (Administration of Sentences) Act. That statute applies to a person committed by court order to a correctional centre on remand (s 4(1)(d) of the Crimes (Administration of Sentences) Act); a person the subject of a warrant or order by which a court has committed the person to a correctional centre (s 4(1)(e) of the Crimes (Administration of Sentences) Act); and any person in custody who was given into the keeping of a correctional officer under s 250 (s 4(1)(f) of the Crimes (Administration of Sentences) Act).
Otherwise, correctional centre is defined as premises declared to be a correctional centre by proclamation and any police station or court cell complex in which an offender is held in custody.
The learned magistrate then dealt with the issue of whether the warrant issued by the Victorian Magistrate was sufficient to classify Mr Mok as an inmate for the purpose of s 310D of the Act. The learned magistrate below referred to the "warrant" issued by the Victorian Magistrate as being described as a warrant but "in fact is an order, which on the face of it, in my view, complies with s 83(8) of the Service and Execution of Process Act 1992".
Again, without repeating all of the reasoning, the learned magistrate below came to the conclusion that the order or warrant under s 83(8) of the Service and Execution of Process Act 1992 was issued by a Victorian court and not a New South Wales court and that the definition of "court", together with s 12 of the Interpretation Act 1987 (NSW), leads to a conclusion that for a warrant or order to fall within the terms of s 4 of the Crimes (Administration of Sentences) Act, it must be issued by a New South Wales court. The Melbourne Magistrates' Court in Victoria is not a New South Wales court and, therefore, the warrant or order issued by it cannot give rise to the status of inmate being one that is applicable to Mr Mok.
As a consequence of those two findings, the learned Local Court magistrate dismissed the charges.
Legislation
It is necessary to recite some of the relevant legislation before embarking upon a consideration of the grounds of the appeal. I have already recited s 310D of the Act. Section 310D refers to the term "inmate" which, in turn, is defined by 310A of the Act. Section 310A is in the following terms:
"310A Definitions
In this Part:
correctional centre means a correctional centre within the meaning of the Crimes (Administration of Sentences) Act 1999, and includes a correctional complex within the meaning of that Act.
inmate has the same meaning as it has in the Crimes (Administration of Sentences) Act 1999."
As it can be seen from the foregoing, the definition of both "inmate" and "correctional centre" refers to the terms of the Crimes (Administration of Sentences) Act. As already stated, the learned magistrate referred to the term "inmate" and the term "correctional centre" under the Crimes (Administration of Sentences) Act and dealt with that issue.
It is appropriate that I repeat those definitions:
"3 Interpretation
...
correctional centre means:
(a) any premises declared to be a correctional centre by a proclamation in force under section 225, including any juvenile correctional centre declared under section 225A, and
(b) any police station or court cell complex in which an offender is held in custody in accordance with this or any other Act.
correctional complex means any premises declared to be a correctional complex by virtue of a proclamation in force under section 224.
correctional officer means a person who is employed within Corrective Services NSW as a correctional officer, as referred to in section 231.
...
court means:
(a) the Supreme Court, the Court of Criminal Appeal, the Land and Environment Court, the Industrial Relations Commission, the District Court or the Local Court, or
(b) any other court that, or person who, exercises criminal jurisdiction,
but, subject to the Children (Criminal Proceedings) Act1987, does not include the Children's Court or any other court that, or person who, exercises the jurisdiction of the Children's Court.
...
inmate means a person to whom Part 2 applies.
4 Application of Part
(1) This Part applies to:
(a) any person the subject of a warrant under section 62 of the Crimes (Sentencing Procedure) Act 1999 by which a court has committed the person to a correctional centre to serve a sentence or the remainder of a sentence by way of full-time detention, other than a person who is on release on parole, and
(b) any person the subject of a warrant under section 87 of the Fines Act 1996 by which the Commissioner of Fines Administration has committed the person to a correctional centre to serve a sentence by way of full-time detention, and
(c) any person the subject of a warrant under section 181 of this Act by which the Parole Authority has committed the person to a correctional centre to serve the remainder of a sentence by way of full-time detention, and
(c1) any person the subject of a warrant under section 20 of the Crimes (High Risk Offenders) Act 2006 by which the Supreme Court has committed the person to a correctional centre pursuant to a continuing detention order or interim detention order under that Act, and
(d) any person the subject of a warrant or order by which a court has committed the person to a correctional centre on remand in connection with proceedings for an offence committed, or alleged to have been committed, by the person, and
(d1) any person the subject of an order under section 33 (1) (g) of the Children (Criminal Proceedings) Act 1987 by which the Children's Court has committed the person to the control of the Minister administering this Act, and
(d2) any person who is the subject of a warrant under section 170 (1) (a) of the Defence Force Discipline Act 1982 of the Commonwealth by which an authorised officer under that Act has committed the person to a correctional centre pursuant to a punishment of imprisonment imposed under that Act, and
(d3) any person who is a detainee within the meaning of the Migration Act 1958 of the Commonwealth and who is held in a correctional centre as referred to in paragraph (b) (ii) of the definition of immigration detention in section 5 of that Act, and
(e) any person the subject of a warrant or order by which a court or other competent authority has committed the person to a correctional centre otherwise than as referred to above, and
(f) any person in custody who is given into the keeping of a correctional officer under section 250.
(2) Part does not apply to a person who is detained in a correctional centre in accordance with Part 16 of the Law Enforcement (Powers and Responsibilities) Act 2002. .
(3) In this Part, inmate means a person to whom this Part applies and convicted inmate means a person referred to in subsection (1) (a), (b), (c), (c1), (d1) or (d2)."
As may be clear from the foregoing, s 4 of the Crimes (Administration of Sentences) Act defines the application of Part 2 of the Crimes (Administration of Sentences) Act and is, therefore, the section to be construed in order to define the meaning of the word "inmate" where otherwise utilised in the statute.
It is also necessary to examine some of the provisions of the Service and Execution of Process Act. It is the Service and Execution of Process Act that renders the bench warrant issued by Freeman DCJ operative in Victoria and enforceable in Victoria. The magistrate in the Melbourne Magistrates' Court was exercising Federal jurisdiction under the Service and Execution of Process Act.
First, s 3 defines "authority" to mean "a judge, magistrate...or officer of a court appointed or holding office under a law of a State". Likewise, "court" is defined to mean "a court of a State". Finally, "court of issue" is defined, in relation to a process, to mean "the court by which the process was issued".
A criminal proceeding includes a prosecution for an offence or a proceeding that is related to, or associated with, a prosecution for an offence. Further, judgment is defined to include an order made by a court in a criminal proceeding under which a person is required to do or not do an act or thing.
In s 3 of the Service and Execution of Process Act "place of issue" means, in relation to a process, "the state in which the process was issued". Lastly, in terms of the definitions in s 3 of the Service and Execution of Process Act, the term "warrant" is defined to mean "a process issued by a court...in accordance with...[the Service and Execution of Process Act]; or a law of a State; or the provisions of such law as applied by s 68(1) of the Judiciary Act 1903; that authorises the apprehension of a person".
Section 8(4) of the Service and Execution of Process Act provides that, subject to the Service and Execution of Process Act itself, the Act "applies to the exclusion of a law of a State with respect to...the execution in another State of process of the relevant State that is processed to which this Act applies". It should be reiterated that the definition of warrant, to which reference is made above, describes the warrant as "a process".
As a consequence, the effect of s 8(4) is that, subject to the provisions of the Service and Execution of Process Act itself, the Service and Execution of Process Act applies to the exclusion of a State law with respect to the execution of a bench warrant in another State.
Part 5 of the Service and Execution of Process Act deals with the execution of warrants. It provides for the capacity of persons who are subject to a warrant in one State to be apprehended in another by certain specified persons. Those persons do not include a member of the police force of the issuing state.
By operation of s 83 of the Service and Execution of Process Act, a person apprehended under an interstate warrant is required to be taken, as soon as practicable, before a magistrate of the State in which the person was apprehended. At that appearance, subject to a number of procedural issues that are currently irrelevant, the magistrate must order that the person be remanded on bail to appear at the court of the place of issue or that the person be taken into custody to a specified place in the place of issue of the warrant: see s 83(8) of the Service and Execution of Process Act.
For the purpose of the proceedings under s 8, a magistrate may adjourn proceedings and remand the person on bail or remand them in such custody as the magistrate specifies for the period of the adjournment: s 8(14) of the Service and Execution of Process Act.
The law under which the bail would be granted is the law of the State in which the person was apprehended.
The procedure in relation to the execution of warrants is further codified by the provisions of s 89 of the Service and Execution of Process Act, by which a person to whom the custody of an apprehended person has been committed may, for the purpose of complying with such order, require that the person in charge of a prison in a State (i.e. any State) receive the apprehended person and keep the apprehended person in custody. The person in charge of the prison must comply with any reasonable requirements in that regard.
By operation of s 89(4) of the Service and Execution of Process Act, the law in force in the place of issue of a warrant, being the law relating to the liability of a person who escapes from lawful custody, applies to the person being taken to the place of issue in compliance with an order mentioned in s 89(1) of the Service and Execution of Process Act.
It is appropriate to recite the provisions s 89 and s 130 of the Service and Execution of Process Act, which are in the following terms:
"s 89 Custody of persons etc.
(1) For the purpose of complying with an order made under paragraph 83(8)(b), or an order confirmed, varied or made under section 86 that is similar to an order mentioned in that paragraph, the person to whom the custody of the apprehended person has been committed may require that the person in charge of a prison in a State:
(a) receive the apprehended person and keep the apprehended person in custody for such time as the first-mentioned person requires; and
(b) surrender custody of the apprehended person to the first-mentioned person at the time and in the way that the first-mentioned person requires.
(2) The person so required must comply with such requirements as are reasonable.
(3) An apprehended person who is a person under restraint and who is serving a period of home detention or a term of imprisonment by way of periodic detention is taken to be serving that period of home detention or term of imprisonment:
(a) during the period commencing when the person is apprehended under section 82 and ending when the person is first taken before a magistrate under section 83; and
(b) during any period during which the person is in custody under an order made under paragraph 83(3)(b), (4)(b), (8)(b) or (12)(b), paragraph 86(6)(b) or subsection 86(9).
(4) The law in force in the place of issue of a warrant, being the law relating to the liability of a person who escapes from lawful custody, applies to a person being taken to the place of issue in compliance with an order mentioned in subsection (1).
(5) Subsection (4) does not apply to lawful custody in respect of an offence against a law of the Commonwealth.
(6) A reference in this section to an order made under paragraph 83(8)(b) includes a reference to an order made under subsection 84(8) that relates to the first-mentioned order.
s 130 Jurisdiction not limited by locality
The jurisdiction that a court or tribunal has because of service of process under this Act is not affected by any limitation arising under a law of a State concerning the locality in which the process may be served."
As a matter of abundant caution, I should also recite the provisions of s 68 of the Judiciary Act 1903 (Cth). It is in the following terms:
"s 68 Jurisdiction of State and Territory courts in criminal cases
(1) The laws of a State or Territory respecting the arrest and custody of offenders or persons charged with offences, and the procedure for:
(a) their summary conviction; and
(b) their examination and commitment for trial on indictment; and
(c) their trial and conviction on indictment; and
(d) the hearing and determination of appeals arising out of any such trial or conviction or out of any proceedings connected therewith;
and for holding accused persons to bail, shall, subject to this section, apply and be applied so far as they are applicable to persons who are charged with offences against the laws of the Commonwealth in respect of whom jurisdiction is conferred on the several courts of that State or Territory by this section.
(2) The several Courts of a State or Territory exercising jurisdiction with respect to:
(a) the summary conviction; or
(b) the examination and commitment for trial on indictment; or
(c) the trial and conviction on indictment;
of offenders or persons charged with offences against the laws of the State or Territory, and with respect to the hearing and determination of appeals arising out of any such trial or conviction or out of any proceedings connected therewith, shall, subject to this section and to section 80 of the Constitution, have the like jurisdiction with respect to persons who are charged with offences against the laws of the Commonwealth.
(4) The several Courts of a State or Territory exercising the jurisdiction conferred upon them by this section shall, upon application being made in that behalf, have power to order, upon such terms as they think fit, that any information laid before them in respect of an offence against the laws of the Commonwealth shall be amended so as to remove any defect either in form or substance contained in that information.
(5) Subject to subsection (5A):
(a) the jurisdiction conferred on a court of a State or Territory by subsection (2) in relation to the summary conviction of persons charged with offences against the laws of the Commonwealth; and
(b) the jurisdiction conferred on a court of a State or Territory by virtue of subsection (7) in relation to the conviction and sentencing of persons charged with offences against the laws of the Commonwealth in accordance with a provision of the law of that State or Territory of the kind referred to in subsection (7);
is conferred notwithstanding any limits as to locality of the jurisdiction of that court under the law of that State or Territory.
(5A) A court of a State on which jurisdiction in relation to the summary conviction of persons charged with offences against the laws of the Commonwealth is conferred by subsection (2) may, where it is satisfied that it is appropriate to do so, having regard to all the circumstances, including the public interest, decline to exercise that jurisdiction in relation to an offence against a law of the Commonwealth committed in another State.
(5B) In subsection (5A), State includes Territory.
(5C) The jurisdiction conferred on a court of a State or Territory by subsection (2) in relation to:
(a) the examination and commitment for trial on indictment; and
(b) the trial and conviction on indictment;
of persons charged with offences against the laws of the Commonwealth, being offences committed elsewhere than in a State or Territory (including offences in, over or under any area of the seas that is not part of a State or Territory), is conferred notwithstanding any limits as to locality of the jurisdiction of that court under the law of that State or Territory.
(6) Where a person who has committed, or is suspected of having committed, an offence against a law of the Commonwealth, whether in a State or Territory or elsewhere, is found within an area of waters in respect of which sovereignty is vested in the Crown in right of the Commonwealth, he or she may be arrested in respect of the offence in accordance with the provisions of the law of any State or Territory that would be applicable to the arrest of the offender in that State or Territory in respect of such an offence committed in that State or Territory, and may be brought in custody into any State or Territory and there dealt with in like manner as if he or she had been arrested in that State or Territory.
(7) The procedure referred to in subsection (1) and the jurisdiction referred to in subsection (2) shall be deemed to include procedure and jurisdiction in accordance with provisions of a law of a State or Territory under which a person who, in proceedings before a court of summary jurisdiction, pleads guilty to a charge for which he or she could be prosecuted on indictment may be committed to a court having jurisdiction to try offences on indictment to be sentenced or otherwise dealt with without being tried in that court, and the reference in subsections (1) and (2) to any such trial or conviction shall be read as including any conviction or sentencing in accordance with any such provisions.
(8) Except as otherwise specifically provided by an Act passed after the commencement of this subsection, a person may be dealt with in accordance with provisions of the kind referred to in subsection (7) notwithstanding that, apart from this section, the offence would be required to be prosecuted on indictment, or would be required to be prosecuted either summarily or on indictment.
(9) Where a law of a State or Territory of the kind referred to in subsection (7) refers to indictable offences, that reference shall, for the purposes of the application of the provisions of the law in accordance with that subsection, be read as including a reference to an offence against a law of the Commonwealth that may be prosecuted on indictment.
(10) Where, in accordance with a procedure of the kind referred to in subsection (7), a person is to be sentenced by a court having jurisdiction to try offences on indictment, that person shall, for the purpose of ascertaining the sentence that may be imposed, be deemed to have been prosecuted and convicted on indictment in that court.
(11) Nothing in this section excludes or limits any power of arrest conferred by, or any jurisdiction vested or conferred by, any other law, including an Act passed before the commencement of this subsection."
As it can be seen from the foregoing, leaving aside certain procedural steps about which no issue has been taken, when Mr Mok appeared before the Magistrate in Melbourne, the Magistrate issued documents. The Melbourne Magistrate remanded him in custody as prescribed, being an order under s 83(3)(b) of the Service and Execution of Process Act. As a consequence, the Melbourne Magistrate was issuing an order under s 83(3)(b) which is an order referred to in s 89(1) of the Service and Execution of Process Act.
As a result of the foregoing, s 89(4) imports the law in force in the place of issue of a warrant and applies it to a person being taken to the place of issue in compliance with the order of the Melbourne Magistrate, namely Mr Mok.
The effect of s 89(4) is to apply to Mr Mok the provisions of s 310D of the Act. The immediately proceeding statement does not answer the question as to whether Mr Mok is, in those circumstances, an inmate.
Consideration
The learned magistrate in these proceedings construed the provisions of s 310D of the Act in a manner generally consistent with the principles of construction of statutes. In so doing, the learned magistrate examined the Act, including its reference to the Crimes (Administration of Sentence) Act, to determine the intention of the legislature. Intention, in the foregoing, must be understood as something other than subjective intention. In the words of Hayne J:
"[315] Second, the reach and operation of the federal law is to be determined by construing that law; that is, by reference to the language, purpose and scope of the law, viewed as a whole within its context, as well as by reference to considerations of consistency and fairness. More particularly, if the metaphor of "intention" is employed (and it now seems ineradicable), the relevant "intention" of the federal Parliament is revealed by construction of the federal law in question. Use of the metaphor of "intention" or "will" must not be understood as inviting attention to the wishes or hopes of those who promoted the legislation in question. What matters is the reach and operation of the law in question as that reach and operation are ascertained by the conventional processes of statutory construction. The metaphor of intention must not obscure the centrality of construing the laws in question" (Momcilovic v Rand Ors [2011] HCA 34; (2011) 245 CLR 1, at [315], per Hayne J).
The oft-repeated passages in Project Blue Sky Inc & Ors v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 (and see the comments of Gageler J in Commissioner of Police v Eaton [2013] HCA 2; (2013) 87 ALJR 267 at [97]-[98]) refer to the modern approach to the construction of legislation, which requires the Court to determine the purpose of the legislature and to construe the terms of the legislation as providing the achievement of harmonious goals.
The difficulty in the present situation is that the learned magistrate construed, in my view correctly, the intention of the State legislature in enacting s 310D of the Act, but did so without regard to the intention of the Federal legislature in promulgating s 89(4) of the Service and Execution of Process Act.
As earlier stated, the grant of bail by a court in the jurisdiction in which an alleged offender is arrested is determined in accordance with the law of that State or jurisdiction: see s 88 of the Service and Execution of Process Act and Rose v Chief Commissioner of Police [2000] VSC 281.
While s 130 of the Service and Execution of Process Act is not directly relevant to the exercise of power by the Magistrate or the application of s 310D, it confirms the intention of the Federal legislature that the law of the issuing state (and for some processes the arresting State) is to apply without the territorial limits otherwise associated with the provisions.
Before doing so, it is appropriate to restate that a plenary legislature such as New South Wales may (subject in Australia to the Constitution) promulgate laws with an extraterritorial effect and, in some circumstances, operation. Legislation is construed otherwise by custom and sometimes by operation of interpretation statutes or, in Australia at least, the Constitution.
In R vGiannakopoulos and Marzilli [2013] SASCFC 50, Kourakis CJ (with whom Vanstone and Kelly JJ agreed) said:
"[13] In general terms, a legislature with plenary power can make laws proscribing arrangements, the giving of inducements and the making of demands or threats, in places subject to its legislative jurisdiction. It matters not, as a matter of power, that the purpose of the conduct is to effect a result in a place outside of the legislature's sovereign area. Counsel for the defendants accepted that it is within the legislative competence of each of the States of Australia to proscribe conduct such as that dealt with by s 244 of the CLCA even if the judicial proceedings which the conduct is calculated to compromise are judicial proceedings in another State.
[14] The judicial proceedings protected by s 244 of the CLCA are defined by s 237 of the CLCA to mean proceedings of any judicial body which, in turn, is defined to mean a court or any tribunal body or person invested by law with judicial or quasi judicial powers, or with an authority to make any enquiry or to receive evidence. Whether or not the definition in s 237 of the CLCA is limited to a judicial officer and judicial body of this State need not be determined in this case. However, there is, as I have observed, no constitutional limitation on the legislative competence of this State to control the conduct of persons, within the territory of the State, even if the object of that conduct is to effect a consequence in another State.
[15] Even if a connection with the legislating State, over and above the location of the relevant acts or omissions within the territory of the legislating State were constitutionally necessary, there is such an additional connection to be found in the case of s 244 of the CLCA. It should be accepted that conduct designed to compromise judicial proceedings, wherever in Australia they are heard, is a mischief which every State has an interest to suppress because it discourages the commission of similar offences directed against its own judicial proceedings. Moreover, the civil and criminal process of all of the States and Territories of Australia is enforceable in every other State and Territory, giving each State and Territory an interest in protecting judicial proceedings which might come to be enforced within its sovereign territory."
(The "CLCA" to which Kourakis CJ refers is the Criminal Law Consolidation Act 1935 (SA).)
I turn then to the terms of the Act. As the learned magistrate explained, in order for a person to be guilty under s 310D of the Act, the person must be an inmate. In order to determine whether a person is an inmate, one is referred by s 310A to the Crimes (Administration of Sentences) Act and, in particular, to ss 3 and 4 of that Act.
The relevant parts of each of those provisions is recited above. Importantly, the definition of "court" includes "any other court that...exercises criminal jurisdiction". The definition of inmate refers to s 4 of the Crimes (Administration of Sentences) Act, which, in turn, includes a person who is the subject of a warrant or order by which a court has committed the person to a correctional centre on remand in connection with proceedings for an offence.
The Melbourne Magistrate's warrant orders that Mr Mok "be returned to Sydney Police Centre in the State of New South Wales", for which purpose he is 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 New South Wales and take him before magistrate...to answer the said judge".
The foregoing recited definitions from the Crimes (Administration of Sentences) Act includes a definition for Correctional Centre that is defined in terms to include "any police station or court cell or complex in which an offender is held in custody in accordance with this or any other Act". Sydney Police Centre is a correctional centre within the meaning of the Crimes (Administration of Sentences) Act. As a consequence, the terms of s 4(1)(d) apply to Mr Mok if the Melbourne Magistrates' Court is a court for relevant purposes. Similarly, s 4(1)(e) of the Crimes (Administration of Sentences) Act applies in like circumstances if the effect of the warrant issued by the Melbourne Magistrates' Court was not to commit the person "on remand".
The learned magistrate below came to the view that the Melbourne Magistrates' Court was not a court exercising criminal jurisdiction, because the term "court" in the Crimes (Administration of Sentence) Act referred to a court in New South Wales and, in so holding, determined that neither s 4(1)(d) nor s 4(1)(e) of the Crimes (Administration of Sentences) Act rendered Mr Mok an inmate.
The learned magistrate utilised the provisions of s 12 of the Interpretation Act 1987 to confirm that the reference to court in the Crimes (Administration of Sentences) Act is a reference to that statutory body in and for New South Wales.
The analysis by the learned magistrate is, as earlier stated, well-reasoned and correct, if the statutory expression to which reference is to be made were the terms of s 310D of the Act and the terms of the Crimes (Administration Sentences) Act, without regard to the effect of the Service and Execution of Process Act. The difficulty with the analysis, in these circumstances, is that the effect of the Service and Execution of Process Act is to supplement the legislative fiat and reach of s 310D of the Act.
The application of the Act, and the legislative provision to be construed, is the intention and purpose of s 89(4) of the Service and Execution of Process Act in so far as it applies the Act and, by reference, the Crimes (Administration of Sentences) Act. In so doing, the Interpretation Act, except as is necessary to determine the effect of s 310D the Act when applied other than by the Service of Execution of Process Act, has no work to do in so far as it limits the court or body to whom the statute refers to one in and of the State of New South Wales.
On its face, the definition in the Crimes (Administration of Sentences) Act refers to any court exercising criminal jurisdiction and it is broad enough to refer to the Melbourne Magistrates' Court. Even the term "Supreme Court" would be broad enough, in the context of Federal legislation, to include the Supreme Court of other States and Territories.
In my opinion, the learned magistrate has been led into error because the charge is misstated. The charge on the Court Attendance Notice is a charge under s 310D of the Act, without reference to its application under s 89(4) of the Service and Execution of Process Act. As a consequence, the magistrate, and the parties below to a lesser extent, dealt with the proper construction of s 310D, without regard to the intention (from its statutory context and the words of the statute) of the Federal legislature.
The offence under s 310D is a Commonwealth offence applied, by reference, under s 89(4) of the Service and Execution of Process Act. The jurisdiction conferred on the magistrate is the jurisdiction under s 68 of the Judiciary Act 1903. In particular, the jurisdiction of the Local Court is "the like" jurisdiction in relation to this offence as the jurisdiction under s 310D as if the offence were committed in New South Wales.
Similarly, the jurisdiction of this Court is the like jurisdiction to appeal: Peel v R (1971) 125 CLR 447; R v Carngham (1978) 140 CLR 487; Rohde v Director of Public Prosecutions (1986) 161 CLR 119. A nice question arises as to whether the appeal should have been lodged by the Commonwealth DPP. No one has raised that issue.
There is an added complication in that Tullamarine, where the events occurred, is a Commonwealth place, but that aspect does not alter the foregoing analysis or relevantly impact on the application of the laws.
The DPP submits, in the alternative, that if the term "court" were confined to a court within New South Wales and did not include the Melbourne Magistrates' Court, the Melbourne Magistrates' Court would be a competent authority. There is some merit in that submission.
Ordinarily, if the Interpretation Act applied to the provisions, the term "competent authority" would be a competent authority in and of New South Wales and it could not include the Melbourne Magistrates' Court. On the other hand, if the effect of the Service and Execution of Process Act is not as stated above, and does not enlarge the definition of "court" when applying, pursuant to the Service and Execution of Service Act, the definition of inmate under s310D of the Act, by reference to the Crimes (Administration of Sentences) Act, then there may be work for the term "competent authority".
The analysis would then proceed in the following manner. The Service and Execution of Process Act, by s 89(4), renders the Melbourne Magistrates' Court a competent authority for remanding or ordering Mr Mok into custody and therefore, on the expanded definition and the alternate submission of the DPP, the Melbourne Magistrates' Court would be, if not a court, a "competent authority" for the purpose of the definition of inmate as it applies under s 310D of the Act as applicable by virtue of the provisions of the Service and Execution of Process Act.
Lastly, Mr Mok submits that the terms of ss 4(1)(d) and 4(1)(e) of the Crimes (Administration of Sentences) Act utilise the term "committed", which, it is submitted, is, if properly construed, too narrow to include Mr Mok. First, ss 4(1)(d) and 4(1)(e) may be distinguished from each other because s 4(1)(d) refers to a person being committed to a correctional centre "on remand", whereas s 4(1)(e) has no such limitation. Thus, the term "committed" includes persons on remand and otherwise.
Secondly, the submission seeks to construe the term "committed" too narrowly. Its ordinary meaning includes "to entrust or consign" (Australian Concise Oxford Dictionary, 4th Edition).
The term committed must be construed, like all provisions, in its context. It has been given broader and narrower meanings: see Mullins v Surrey County Treasurer (1881) 7 App Cas 1 at [11] per Lord Watson and R v Brixton Prison; Ex parte Mehamed Ben Romdan [1912] 3 KB 190 at [194], 195, per Darling J. "Committed", in the context here in question, is not so narrow as to mean only committed to prison after conviction and plainly is not confined to committal on remand. In my view, as in the statement of Lord Watson in Mullins, where used in s 4 of the Crimes (Administration of Sentences) Act, "committed" is wide enough to include any order or warrant for the delivery of a person into the custody of a prison, "whether pending further enquiry, for trial, or for punishment".
I am comforted in that approach by the terms of s 89(1) of the Service and Execution of Process Act, which refers to the procedure implemented here as being one in which "the custody of the apprehended person has been committed". In that situation the detectives from New South Wales Police who were ordered to convey Mr Mok to Sydney Police Station were the persons to whom Mr Mok was committed, but not the only persons or body.
The foregoing is further supported by the process, to which the Service and Execution of Process Act refers, when a person is first apprehended in another State. Under ss 83(3) and 84(4) of the Service and Execution of Process Act and other provisions, a person is "remanded" or "on remand" when the magistrate first deals with a matter, assuming bail is not granted.
For the foregoing reasons, I consider that the learned magistrate, while correctly construing the provisions of s 310D of the Crimes Act, in circumstances where that provision is unaffected by federal legislation, has not appropriately taken into account the effect of the Service and Execution of Process Act in construing that section as it is applied by operation of s 89(4) of the Service and Execution of Process Act.
The foregoing conclusion does not necessarily conclude the charge against Mr Mok. There 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. As a consequence, it is appropriate that orders be made under s 59(2) remitting the matter to the learned magistrate to hear and determine the purported charge.
The Court makes the following orders:
(i) Pursuant to the terms of s 59(2) of the Crimes (Appeal and Review Act) 2001, the order of his Honour, M Buscombe, Local Court Magistrate, made on 1 July 2013 at Central Local Court dismissing proceedings against the respondent, Yau Ming Mathew Mok, for the offence under s 310D Crimes Act 1900 (NSW) of being an inmate attempting to escape from lawful custody, be set aside;
(ii) The hearing of the aforesaid charge be remitted to the Local Court to be dealt with according to law;
(iii) No order as to costs;
(iv) The respondent Yau Ming Mathew Mok, be granted a certificate under s 6 of the Suitors' Funds Act 1951;
(v) The parties have liberty within 7 days to apply for any special or different orders for costs. Such application will be made with attached submissions of no more than three (3) pages by email to the Associate to Rothman J. Any party affected by any application under this order may respond, by submission of no more than three (3) pages, in a further 2 days from the receipt of such application.
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Decision last updated: 21 May 2014
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