Mok v Director of Public Prosecutions (NSW)

[2016] HCATrans 14

[2016] HCATrans 014

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S246 of 2015

B e t w e e n -

YAU MING MATTHEW MOK

Appellant

and

DIRECTOR OF PUBLIC PROSECUTIONS (NSW)

Respondent

FRENCH CJ
KIEFEL J
BELL J
KEANE J
GORDON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 11 FEBRUARY 2016, AT 10.00 AM

Copyright in the High Court of Australia

MR G.R. JAMES, QC:   May it please the Court, I appear for the appellant with my learned friend, MR P.D. LANGE.  (instructed by Murphy’s Lawyers)

MS N.J. ADAMS, SC:   May it please the Court, I appear for the respondent with my friend, MS B.K. BAKER.  (instructed by Solicitor for Public Prosecutions (NSW))

FRENCH CJ:   Yes, Mr James.

MR JAMES:   This is an appeal brought by a grant of special leave on the whole of the judgment of the New South Wales Court of Criminal Appeal.  The ground of appeal which appears at page 121 of the appeal book contends that:

The Court of Appeal erred in concluding that a person could be guilty of an offence contrary to s. 310D Crimes Act 1900 (NSW), as applied by operation of s. 89(4) Service and Execution of Process Act 1992 (C’th), even if that person was not an “inmate” as required by s. 310D, so long as that person was –

in effect, subject to the execution of a warrant under the Service and Execution of Process Act.  The orders sought are that the appeal be allowed and that the whole of the judgment be set aside, that the appeal to the New South Wales Court of Appeal be allowed and for consequential orders as to costs.             Your Honours will have the short history of the matter which does not involve any contest of fact.  Your Honours will have the short outline of argument ‑ ‑ ‑

FRENCH CJ:   Yes, thank you, Mr James.

MR JAMES:   ‑ ‑ ‑ the outline of the oral submissions.  A number of issues between the parties arose on the written submissions, the notice of contention and the reply.  Those issues particularly arose concerning what is the nature of the liability imposed by section 89(4) of the Service and Execution of Process Act.  The relevant passages of legislation appear in the material filed as Annexure A to our original submissions, but quickly turning to that provision of the Service and Execution of Process Act, section 89 provides for the custody of persons for the purpose of complying with an order made under the Act.  Section 89(4) provides, crucially:

The law in force in the place at issue of a warrant –

that being, in this case, New South Wales –

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).

The language is quite specific.  It refers to “law in force”, “in the place of issue” and “being the law relating to the liability”.  It does not, on its face, purport to create, in our submission, as the Court of Appeal held, an offence under the Commonwealth federal criminal regime.  It purports to apply law in force and it does not merely purport to pick up, however one phrases that, the content solely of the New South Wales legislative provision defining the offence.  It picks up the whole of the law in force relating to the liability of the person. 

The upshot of the Court of Appeal decision was a conclusion that this provision created a Commonwealth offence in respect of persons being taken to the place of issue in compliance with an order, who have escaped from lawful custody.  That, in our submission, does not accord with the language, the purpose or the context.

Further, the law in force in New South Wales relating to the provision not only refers to one of the elements of the offence, that is the particular status of the person who is said to have escaped lawful custody, being an inmate - the nature of that concept is defined by other legislation, but it also refers to that New South Wales law which bears upon the true construction of those matters so as to know what was the law in force in relation to liability.

Much occurs in the written material relating to whether section 89(4) picks up or catches up in the manner of section 79 of the Commonwealth Places (Application of Laws) legislation, the Trade Practices Act, the Judiciary Act and so forth.  This provision is markedly and substantially different to all of those.  We had opted in the submissions for the proposition that what it seeks to do is to apply State law, not the law of the State in which the escape occurred, but the law of the State issuing the warrant.

FRENCH CJ:   But it does that as a rule of federal law.

MR JAMES:   Section 89(4) is federal law.  We accept that, your Honour.  The words “of their own force” we would either abandon or at least assert that what we are talking about is it takes New South Wales law as it stands of its own content out of its own effect and applies it.

FRENCH CJ:   The liability is created by federal law, is it not, albeit the content is derived from the State law?

MR JAMES:   Well, your Honour, with respect, the way in which the section is expressed is interesting.  It says that the liability is the law in force, being the law relating to the liability.  Certainly in answer to the Chief Justice’s question, one of the ways in which that could occur is on the basis that 89(4) creates a federal offence, the content of which is the content of the State law relating to liability of a person who escapes from lawful custody. 

One of the ways that can occur is that, but there is also the possibility that what they are seeking to do when they say that is to provide that the law in force will be the law relating to liability in the State.  Whatever, however, in the context of this case may not directly matter for the result.

KIEFEL J: The law in force relating to the liability of a person who escapes is a reference to the provision in section 310D(a) of the Crimes Act, is it not?

MR JAMES:   At least to that, but we submit, of course, to all the law that bears upon what that means.

KIEFEL J:   Well, no, it is referring to the law, potentially so far as it concerns the liability of a person who escapes and it is applying that liability for the purposes of the federal law.  It is creating a federal offence.

MR JAMES:   Your Honours, from our viewpoint, we are accepting it is a federal offence.  The appellant was not charged expressly with any federal offence and, indeed, that was why Justice Rothman referred the matter back to the magistrate and ‑ ‑ ‑

KIEFEL J:   Section 89(4) does not state an offence.  It creates an offence by reference to the State provision.

MR JAMES:   We accept that.

KIEFEL J:   Necessarily it would apply only insofar as it is necessary for it to have the parameters of the offence that section 89(4) requires.

MR JAMES: As I said – in a sense it may not matter at the end of the day – one of those parameters is plainly that the person concerned be an inmate. This offender was not charged with the common law offence of simply escape lawful custody. A decision was made to charge a statutory offence, whether it be a statutory offence under section 310 or, more properly described, a statutory offence under section 89(4). Whatever it be, it still, in our submission, comes back to the necessity that the person concerned be an inmate if the law relating to his liability from New South Wales is to be applied to him. This is not merely adjectival. It is part of the definition of the offence, part of the elements of the offence of section 310D.

BELL J:   Your point, if I may put it this way, if one goes to the definition of “inmate” one sees, amongst other things, that it excludes a person who is detained in a correctional centre under the Law Enforcement (Powers and Responsibilities) Act. So a person in the custody of a police officer at a police station being interviewed, under arrest in connection with a matter, who escapes, does not commit under the law of New South Wales an offence contrary to section 310D. It may be that person commits a common law offence or perhaps there is some statutory offence, but it is not a section 310D offence. Your contention is that ‑ ‑ ‑

MR JAMES:   By analogy from ‑ ‑ ‑

BELL J:   ‑ ‑ ‑ the analysis of the Court of Appeal would hold that the federal offence under 89(4) would apply 310D to that offence wrongly.  Is that it?

MR JAMES:   In effect, the analysis of the Court of Appeal at the end of the day, whatever be the law in force, has resulted in the omission from it of a substantial and crucial requirement of the law in force, that being the necessity to establish inmate.

FRENCH CJ:   The question is what is involved in the notion of “applies” in section 89(4), and I think the critical point in the Court of Appeal and put against you by the respondent is at paragraph 39 of their submissions, is it not, that the element that the appellant be an inmate as required by State law was satisfied because that State law applied to the appellant by virtue of 89(4).  It is a sort of a getting around the notion of the inmate requirement by saying the appellant fits the description because that is a result of the application of the law to that setting.

MR JAMES:   Yes.  The way in which Justice Leeming came to that was a process of reasoning whereby – perhaps I would be best to take your Honours precisely to what Justice Leeming says in response to that paragraph.  In the appeal book at page 112 ‑ ‑ ‑

BELL J:   I think it was a judgment of the Court.

FRENCH CJ:   Yes.

MR JAMES:   A judgment of the Court of Appeal, Justice Leeming at paragraph 47 where his Honour distinguishes between this provision, 89(4), and the other picking up type provisions and says, reading from line 51:

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.

Then it says, putting aside the factual material at the commencement of paragraph 48:

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.

Within that sentence there are two elements:  the escape; and he was a person being taken to the place of issue in compliance with that order.  Then his Honour makes the next logical step:

Section 89(4) applied New South Wales law relating to the liability of a person who escapes from lawful custody to Mr Mok.

That does not look to the definition of the offence of escape lawful custody under 310D.  If it looks to anything, it looks to a different offence, which is the common law offence.  Then his Honour goes on at 49 to say:

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 person who are “inmates” as defined.

His Honour accepts that 310 only applies to inmates as defined:

But the effect of s 89(4) applying to 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”.

His Honour has there made a logical leap to the conclusion.

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” –

paraphrasing Sir Anthony Mason’s judgment in John Robertson.  But there is no – not to be found in section 89(4) anything by way of any express or detailed provision ‑ ‑ ‑

FRENCH CJ:   Would you not read 89(4) this way consistently with the reasoning – the law in force in New South Wales relating to the liability of an inmate 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)?  In other words, if you read it that way, of course, the person does not have to fit within the definition of an inmate because what you are doing is applying the law relating to an inmate to a person covered by 89(4). 

MR JAMES:   In effect, what you are saying when you do that is that given that he is a person to whom the descriptor “being subject to the execution of a warrant, being taken to the place of issue” applies and he escapes lawful custody then that suffices for liability under the law in force of the State, notwithstanding that the liability under the law in force of the State may be subject to conditions, specific definitions and so forth.

KIEFEL J: Well, that is because for section 89(4), it itself identifies the person for its purposes. It identifies the person to which it applies as the person who has been taken to a place of issue and who escapes from lawful custody. So a person falling within that description is the subject of section 89(4). Section 89(4) then applies liability to that person being the liability for escape as identified in section 310D and so understood there is no need, let alone any room for the person to be anyone other than the person as described in section 89(4) as the respondent’s submissions at paragraph 39 show.

MR JAMES:   Your Honour, we accept that it describes and refers to the relevant person, but as soon as you apply the law in force in New South Wales with relevance to the law relating to escape ‑ ‑ ‑

KIEFEL J:   No, it is the law as it relates to the liability of the person so identified.  That is how you read section 89(4).

MR JAMES:   Precisely, no, I am accepting that.

KIEFEL J:   The liability in section 310D(a) is to an inmate - put that to one side, but the liability is to a person who escapes or attempts to escape from lawful custody is guilty of an offence.

MR JAMES:   That may well have been the case if he had been - that the law that was invoked in force in New South Wales as to liability was the law that solely related to persons who escape from lawful custody.  This does not involve a concept of lawful custody in the sense of the State law at all.  It involves the custody being the custody by way of application of the law under the SEP Act. 

But if the law in force is said to be 310 and that is what is being applied, that law contains as its constituent that concept of “inmate”.  To take it out is to create something that is very different.  The 89(4) provision so far as it is expressed in that language does not simply refer to a person who escapes from lawful custody shall be subject to similar penalty as might be provided for by the law of the State.

BELL J: Mr James, is your point that the law of New South Wales relating to the liability of escaping from lawful custody is not contained solely within section 310D, and that your argument is that what is applied as federal law, contrary to 89(4) of the SEP Act, is the law of the State of the issue of the warrant that creates liability for escaping? In this case, your argument is the common law offence.

MR JAMES:   I do not go so far as to argue he was guilty of the common law offence but I do ‑ ‑ ‑

BELL J:   I understand that, but ‑ ‑ ‑

MR JAMES: ‑ ‑ ‑ go to the point that he was charged with an offence under section 310D. For that charge to be successful, it was necessary that that the elements of that offence, whether it be as a Commonwealth offence, being the content of the Commonwealth offence, or a State offence, be satisfied and that required satisfaction of the requirement of inmate, and that what the Court of Appeal has in effect done is to hold that 89(4), although on its face, seeking to define the law that will be applied, creates a new offence, not containing an element at least of the elements that on its face it would seem to require if a person is charged with the offence my client was charged with.

We try to make that point, and perhaps we have gone about it in an obscure way, particularly in paragraphs 1 and 2 of our outline of oral submissions. Paragraph 3 makes the point succinctly. We do understand the argument that is put against us as asserting that it is not necessary to be able to establish “inmate”, but to put it at its bluntest and crudest, when the matter is before the magistrate or the Tribunal determining guilt, and the charge is under section 310D, whether it be caught up by the Commonwealth statute or not, we say it is incumbent on that body to be able to determine guilt under section 310D according to its terms.

This is not just a matter of altering the language to fit.  This is a completely different thing, which is the point we have tried to make, albeit somewhat discursively in all the written submissions that have been made.  This is also a different provision to all those others that create surrogate or catch‑up or apply type law or law according to their tenor.  It provides specifically that the law in force shall apply.

GORDON J: Mr James, your principal complaint is the last line of 49 of the Court of Criminal Appeal’s decision. Is that as I understand it, that is, that you accept that there are provisions that pick up State law? You accept that they do it in different ways, but you say here section 89(4) does not in its terms, either by reference to its language, purpose or otherwise, contain such provision which enables you to adjust the language in order to pick up the substantive rather than the elemental elements of section 310D.

MR JAMES:   Yes, your Honour, and nor is there any express warrant to do so.

GORDON J:   That is the last line in paragraph 49?

MR JAMES:   Yes.

GORDON J:   Have I done a disservice to the way you put it?

MR JAMES:   No.  We put it again and again in different places in different ways, but the central concept comes down to the proposition that to leave out “inmate” is not justified either by the language of the provision, by the concept that the provision speaks to, by the purpose of the creation of that provision within SEPA or by analogy from any other picking up type legislation.  It goes too far to leave it out.

GORDON J:   So we are driven back to the words of 89(4)?

MR JAMES:   Precisely, the law in force relevant to liability.

KEANE J:   Mr James, do you accept that when 89(4) speaks of “The law in force . . . being the law relating to” is speaking of ‑ if, for example, there were several statutes, as well as the common law, that create liability in a person who escapes lawful custody, there might, for example, be special laws in relation to outlaw bikies.  If there are a number of statutes that create liability in persons who escape lawful custody, the language of 89(4) is sufficiently comprehensive to capture all those laws so that all those laws that relate to the liability or that create a liability in a person who escapes lawful custody are captured by 89(4).  That is, that it is comprehensive of all those laws?

MR JAMES:   If your Honour leaves out the term “lawful” because we are simply dealing with custody under the SEP Act.

KEANE J:   Lawful custody, yes.

MR JAMES:   Yes, but that is not the end of it, of course, from the point of view of a criminal prosecution.  If the prosecution selects amongst all those laws in force imposing liability in the State relevant to escaping lawful custody, and assuming there are 10 of them and the prosecution selects one, then that law is the one under which the criminal proceedings will proceed with its requirements as to elements.

KEANE J:   I understand that, but we are not concerned with bad pleading of the indictment.

MR JAMES:   No.

KEANE J:   What we are concerned with is this notion of identifying or being able to identify, for the purposes of the operation of 89(4), of one of possibly a number of State laws that relate to the liability of a person who escapes from lawful custody.

MR JAMES:   Yes, I accept that, your Honour.

KEANE J:   Why is 310D not one of the laws that relates to a person escaping from lawful custody?

MR JAMES:   I have to accept, your Honour, that it is part of that body of law in New South Wales which relates to the liability of persons escaping from custody in New South Wales, where that person is an inmate.  So it is circumscribed in its operation.  The law relating to escaping from lawful custody is another aspect of law in force in New South Wales relating to escaping from lawful custody.  There may be others.

BELL J:   Mr James, accepting that had your client turned up at the Sydney District Court in answer to the sentence, but then escaped, he would not have been liable for the 310D offence but might have been liable for escaping from lawful custody.  In these circumstances, the federal offence that he committed at Tullamarine airport involved escaping from the custody of an officer in whose custody he was placed by force of an order under the SEP Act, which directed that he be taken to the Sydney Police Centre.

MR JAMES:   Yes.

BELL J:   In the circumstances as they unfolded, and this is the contention point, why did he not answer the description, in terms of his liability, of being an inmate who had escaped from lawful custody?

MR JAMES:   Dealing with the first part of that, your Honour’s reference to the escaping in the courtroom in fact refers to an actual New South Wales Court of Criminal Appeal decision concerning the common law offence of escaping lawful custody being available and not the then Prison Act offence, case of ‑ ‑ ‑

BELL J:   Yes.

MR JAMES:   The second part to which your Honour refers is:  why is he not an inmate.  The answer to that is because when you apply the law in force relating to the liability, you apply the whole of the law in force relating to liability.  It is not just a matter of playing with the wording or fitting the wording, or tailoring it to suit the Act.  Section 89(4) requires that the law in force be provided and our contention is - and we have set it out in detail - that having regard to the limitations on the various concepts involved, imposed within the law of New South Wales which is in force, he is not an inmate in those circumstances.  Now, we have gone through that in some considerable detail and ‑ ‑ ‑

BELL J:   This is because the magistrate issuing the order under the SEP Act was not a competent authority.

MR JAMES:   Yes, was not a court, was not for the purposes of the issue a magistrate, in the sense that it was - we have referred to “personal” or “sole”, maybe persona designate, but the competence to do the work that is applicable in New South Wales to make someone an inmate in New South Wales did not reside in the Victorian magistrate or the Victorian person or the Victorian court. 

So this is not the response to the contention and this seemed to attract the Court of Appeal in that there was no need to go to the extent that they did except for the problems arising from “inmate”.  It certainly attracted what was then - now District Court Judge Buscombe.  His Honour Justice Rothman, whilst he saw problems with the concept on its face, sought to overcome those difficulties by returning to the purpose of the Service and Execution of Process Act and saying that thereby he could look at the law in force in New South Wales in relation to the definition of the elements of the offence charged, not by altering the words but by substantially altering the law.

That is why we are seeking to appeal in the whole of the judgment of the court and seeking to have the appeal upheld.  Now, your Honours, much has been said in writing ‑ ‑ ‑

FRENCH CJ:   If I can just follow up on something that Justice Keane put to you, let us suppose you have – you have the law relating to the inmate who escapes from lawful custody under New South Wales law, and let us imagine that there is another one which says, “Any member of a declared organisation who escapes”, et cetera, and then that may, say, attract some sort of loaded penalty – we have seen models of that kind of legislation before.

I suppose you would say, would you, that for the purpose of 89(4) the first law is one which relates not just to a person but to an inmate and therefore it does not fit within 89(4); and the second is that the person who is a member of a declared organisation - if there was a law imposing a penalty on a person who is a member of a declared organisation who escapes from lawful custody, would not be a law relating to the liability of a person.  It would be the law relating to the liability of a member of a declared organisation, et cetera.  So you say that there was an extra element brought into that which goes beyond what is, as it were, picked up by 89(4)?

MR JAMES:  There is an alternative as well.  You can pick it up by 89(4), but you would have to be able to show he was a part of a designated organisation.  You cannot pick it up and drop out the designated organisation, so our submission goes, and in our submission we can put it either way.  Your Honours, I have been unable to find anything that is closely analogous enough to 89(4) in terms of applying the law as to liability.  That concept of liability is not entirely clear either.  It can be referring not only to guilt, but also liability to penalty, and so forth.  The language, particularly for something which is designed obviously to produce a criminal conviction and penalty in certain circumstances is not so hard‑edged and clear as to assist completely.

KEANE J:   But we would not be disposed to read it down because it is creating a crime.  This is a provision concerned with order in relation to the movement interstate of people who are in lawful custody.

MR JAMES:   I am not going to ask your Honours to read it down.

KEANE J:   This is not the sort of provision that we would be looking to read down.

MR JAMES:   No, I am not going to ask your Honours to read it down.  I am simply saying that it is, however, necessary to grapple with what it actually says rather than to produce some additional content from it so as to alter substantially the law which it purports to apply.  That is as far as we need go.

KEANE J:   If one is concerned to identify the law being applied as a law that relates to a person who escapes from lawful custody, if someone answers that description or if the law applicable to person answers the description of a law relating to a person who escapes from lawful custody,

the law does not cease to answer that description because the person has characteristics in addition to being a person.

MR JAMES:   It may not, but I gave the answers that I did to the Chief Justice advisedly.  Could I say that the alternative position then applies.  The law that is in force is the law of inmates or of designated prohibited organisations or whatever.  What one does not do is take from that the proposition ‑ ‑ ‑

KEANE J:   You are saying it is the law relating to inmates?

MR JAMES:   Yes.  What one does not do is take from that the proposition that you can drop off part of the law in order to create an offence which fits the descriptor under the Service and Execution of Process Act. 

GORDON J:   Mr James, in relation to “inmate” - which I read has three elements - do you say that each of those elements is not satisfied, that is, within the definition of the Crimes (Administration of Sentences) Act?

MR JAMES:   So far as the limitation on “inmate” requires the occupation in New South Wales of the relevant – or being committed to prison in New South Wales of a person having competent authority to do so, yes, your Honour, or any of them will do.

GORDON J:   Any of the what, sorry?

MR JAMES:   Any of the elements ‑ ‑ ‑

GORDON J:   Do you say each of the elements is not satisfied?

MR JAMES:   Yes.  Unless I can assist the Court further, they are the oral submissions we would seek to make.

FRENCH CJ:   Thank you, Mr James.  Yes, Ms Adams.

MS ADAMS:   If the Court pleases, does the Court have a copy of our outline?

FRENCH CJ:   Yes, thank you.

MS ADAMS:   As your Honours will see we advance three central propositions concerning the construction of section 89(4) of – I do not mean any disrespect if I call it SEPA rather than the Service and Execution of Process Act.  It seems to us that the first of those propositions has now been conceded by Mr James who, on my count at least, twice did concede that this is a federal law.  If that be the case, I do not propose to orally address that aspect save as to say it is set out in paragraphs 2 to 4 of our outline and paragraphs 26 to 32 of our written submissions. 

The second proposition we advance is this, that when section 89(4) of SEPA picks up and applies section 310D of the Crimes Act it does so in the manner found by the Court of Appeal.  I will turn to that submission now.

BELL J:   That accepts that an element of liability for the statutory offence “proof of inmate” is not requisite when the federal offence is prosecuted.

MS ADAMS:   Yes, because of the very specific language of 89(4) itself, that it applies a specific law not to a particular court or a jurisdiction - it applies it to the specific person named in the warrant and because of that, this law applies specifically to that person. One way of putting it, as we put in paragraph 7 of the outline, is that if you accept that the purpose of the definition of “inmate” in section 310D or as described in section 4 of the Crimes (Administration of Sentences) Act, it specifies the custody of the person.  So the whole purpose of that inmate is to identify who is it that the escape provision applies to.

BELL J:   But the definition does limit the class of people who may be described as being in lawful custody to certain categories of people, leaving other persons who are in lawful custody to the common law, and it may be some other statutory provision, in the event those persons escape, so that it is correct to say as an element of analysis that the ingredient of the statutory offence under 310D requires proof that the person answers the description of being an inmate.

When one looks to the liability that is being applied to the federal offence created by 89(4), is it the liability of a person who escapes from lawful custody pursuant to the warrant that is referred to in the opening words of the section, which really takes you back to the position in New South Wales, or do you apply, as I understand your notice of contention point - the liability in fact is the liability of a person who answers the description of inmate because an order had been issued by a competent authority committing him to a correctional centre.

MS ADAMS:   If I respond to the first part first. The definition of “inmate”, every one of those subsections that describes an inmate, is someone who has been committed to a correctional facility. So yes, there is the common law offence of escape and there is an overlap to some extent, so a person could be charged both under section 310D and under the common law if they were a person committed by warrant to a correctional centre, but they could not be charged under both if they were under the custody of police, and the courtroom example that was given earlier, and clearly I am referring to a State law in New South Wales. All of the laws are picked up.

The Court of Appeal was dealing specifically with 310D, but there is nothing to exclude that the common law could also be picked up as well.  But if I understand your Honour’s question correctly, if the common law was to be picked up and applied as federal law, it would not have to be – the element would already be satisfied by being in the lawful custody of the police officer.

BELL J:   If you look at the Court of Appeal’s reasoning at paragraph 51, it says 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.  So this is an analysis that says what 89(4) does when it applies the law in force in the place of issue is to drop an element of liability and it does so, as I understand the court’s reasoning, on an analysis that otherwise the provision would lack operative effect.

The alternative argument, for which Mr James contends, is that that is not so.  Liability for escaping from lawful custody under the law of New South Wales is found in a number of places and the prosecutor selected the wrong offence.  Your notice of contention then raises a discrete issue, which is when you look to the liability of Mr Mok as he is alleged to have attempted or to in fact have escaped at Tullamarine airport he was a person who was in the custody of a New South Wales police officer, pursuant to an order that was directing him to be taken to a correctional authority, being an order issued by a Victorian magistrate under the SEP Act.  Accordingly, when one asks:  what is the law in force in New South Wales that applies to a person in that circumstance, 310D is the answer.

MS ADAMS:   Yes, your Honour.  In response to a question from her Honour Justice Gordon, of the three elements that we say can be established regarding an inmate the first is that a person is the subject of a warrant or order – I actually do not understand that element to be in dispute.

GORDON J:   I think it might be.  I asked Mr James and he said he disputed the three of them.

MS ADAMS:   It has not been in dispute in the proceedings thus far, your Honour, because there has been no challenge to the validity of the warrant.  Mr Mok was under a SEPA warrant at the time.  That is the first element.  The second element is that the warrant or order committed the person to a correctional centre and, given the definition of “correctional centre” in section 3 of the Crimes (Administration of Sentences) Act, that extends to a police centre such as the Sydney Police Centre.  The third element is that that warrant or order was made by a court or competent authority.

As I apprehend it, the argument against us on number 3 is that when the laws under section 89(4) pertaining to escape are picked up and applied as federal law by section 89(4), the State Interpretation Act is also picked up, and if that happens, if that occurs, if the Interpretation Act is picked up and applied, then section 12 means that that the words “court” and “competent authority” as they appear in section 4 of the Crimes (Administration of Sentences) Act must be read to be in and of New South Wales.

GORDON J:   Unless the contrary intention is shown.

MS ADAMS:   That is our argument, your Honour.  What we would say is this, that it does seem that the State Interpretation Act would have to be picked up ‑ and I am now, sorry, just to be clear, addressing our notice of contention point ‑ because not only section 310D was picked up, by necessity sections 3 and 4 of the Crimes (Administration of Sentences) Act had to be picked up because that was the definition section.  So, given that, that was also picked up, it seems to us that section 12 would also be picked up, but your Honour is quite correct, unless there is a contrary intention.  And what section 5 of the New South Wales Interpretation Act provides, section 5(2) to paraphrase is that section 12 would only apply insofar as a contrary intention appears in the Act concerned.

What we would say is the Act concerned would be the federalised version of section 4, the definition section, of the Crimes (Administration of Sentences) Act because once it is picked up and applied as federal law there cannot be an intention that we are only referring to a State Act which would completely thwart, in our respectful submission, the intention of section 89(4).

KIEFEL J:   The question is essentially one of construction of section 89(4).

MS ADAMS:   Yes.

KIEFEL J:   Section 89(4) is concerned with a person being taken to the place of issue of a warrant and that person escapes and it seeks to render that person liable for an offence.  It does so by applying the federal offence that it creates to a person who escapes from lawful custody and the federal offence is made out where a State law renders such a person, namely, a person who escapes from lawful custody liable for an offence.  That is what it means when it says a “law relating to the liability of a person who escapes from lawful custody”.

On that view, what need is there?  It is not a question of changing the State ‑ and perhaps this is a point of distinction from the Court of Appeal ‑ it is not so much a question of changing the language of the State law as saying that it simply does not apply because section 89(4) identifies the person to whom it relates and the liability of the State law, so long as it relates to a person who escapes from lawful custody, is satisfied and the offence provision is then drawn into the federal offence.

MS ADAMS:   That is our primary submission as we have set out in our submissions.  The notice of contention point is just in the event that this Court does not accept the Court of Appeal’s construction.

FRENCH CJ: If we had a section 310D(a) which, instead of using the words “any inmates” said “any member of a declared organisation” and then put at the end “maximum penalty – imprisonment for 25 years”, would that be a law relating to the liability of a person who escapes from lawful custody for the purposes of section 89(4)?

MS ADAMS:   Yes, because it would be an escape provision of the place of issue.

FRENCH CJ:   That is a necessary consequence of your argument about the way it works in relation to “inmate”.  It works in relation to any subset of people who are affected by a law relating to escape from lawful custody.

MS ADAMS:   Just to clarify on the hypothetical your Honour described, presumably he is an inmate as well, but yes.  Your Honour, in section 310 ‑ ‑ ‑

FRENCH CJ:   Sorry – in such a case, the application of the declared organisation member law would not be concerned with whether the person escaping was, in truth, a member of a declared organisation?

MS ADAMS:   No, just whether he was in lawful custody and escaped.

FRENCH CJ:   But if you just happened to choose that one you could go for 25 years as distinct from 10.

MS ADAMS:   Your Honour, can I just – the definition of “inmate”, all of the definitions there, all of the subsections defining who an inmate is, they all refer to the status of a person and obviously a status can change whereas the hypothetical that is raised here is an objective characteristic personal to the offender and, I think, my friend raised what if it was a person under 18?  That is a different provision to the one we are considering here.

FRENCH CJ:   Well, that is what I am – I am just trying to work out the point of distinction because does one say that because the law relating to the member of a declared organisation or a person under age, relates to some characteristics as distinct from status then it is not – it does not fit within the notion of a law relating to the liability of a person, any person who escapes.

MS ADAMS:   That is still an element of the offence.  The offence is picked up because he is a person who is escaping and that is what the law is directed to.  Presuming he is an inmate as well and he is under a SEPA warrant.  I may not be quite apprehending your Honour’s question.  If the law picks up and applies the escape law to a person who escapes under a SEPA warrant being taken from State A to State B, the effect of the Court of Appeal’s decision is that the law applies to him so long as he is, in this particular case, an inmate or if it was the common law, so long as he was under lawful custody.  So, so long as he or she is under lawful custody and there was a State law that was picked up and they have escaped under a SEPA warrant, it would apply.

FRENCH CJ:   I think I understand that implicit in what you are saying, there is a distinction able to be made between the application of the inmate law and the application of a law relating to somebody who is, let us say, a member of a declared organisation, and that the latter category would not simply fit into the description of a law relating to the liability of a person because of those extra elements which have to do with characteristics.  It is not just a person; it is a particular kind of person.

MS ADAMS:   And presuming he is an inmate, it would be ‑ ‑ ‑

FRENCH CJ:   But the inmate characteristics are to do with status in relation to the subject of previous court orders and so forth.

MS ADAMS:   Yes, but my point is if the member of the outlaw motorcycle gang is an inmate, that law would be picked up and he would be liable to ‑ ‑ ‑

FRENCH CJ:   You would apply the inmate law to him.  You would not apply a loaded up law based upon the status of his or her membership of a declared organisation.

MS ADAMS:   Yes.  I do not wish to speak any more to why we say the Court of Appeal’s construction is correct.  I will just turn to make some further submissions in relation to the notice of contention point.  I was submitting before as to why we would say that the phrase “competent authority” and the word “court” can be satisfied in this case and what is put against us is that because they have to be read in and of New South Wales, they cannot be established.

I think I have addressed why we say that even if that is picked up, unless there is a contrary intention – I do not think I need to address that any further.  But just to make it quite clear, the whole Service and Execution of Process Act is predicated on the fact that a court in one State is going to issue a warrant to take someone to another State.  So, if Mr James’ construction was accepted, the purpose of 89(4) would be thwarted because it could never be – those elements could not be established.

BELL J:   Well, I understand his argument is that the Court of Appeal wrongly understood that there would be no useful effect to 89(4) when in fact all that happened was the prosecutor selected the wrong law to apply.

MS ADAMS:   Yes, I understand that, and I think I have responded to that.  Your Honour, can I just clarify one aspect?  In my friend’s reply submissions at 18, they have set out that we have conceded in our submissions that the appellant would not have been guilty if he had escaped in New South Wales.  That is actually not our submission.  Our submission is – and this has not been in dispute at any stage since the Local Court – that if he had escaped under the bench warrant he would not have been an inmate.  But we say if he had escaped in New South Wales under the SEPA warrant, then he would have been.  Your Honours, unless there is anything else, those are our oral submissions.

FRENCH CJ:   Thank you, Ms Adams.  Yes, Mr James.

MR JAMES:   I will be very short, if your Honours please. We accept what my friend says about paragraph 19, which was that the effect of the concession was very simply to the effect of what your Honour Justice Bell put to me in argument earlier on, not relating to the SEPA warrant but relating to the position of leaving a court in New South Wales outside the provisions of section 310D.

Secondly, your Honours, we would emphasise that 89(4) does not provide for an offence either in the following terms or to the following effect:  a person who escapes from lawful custody being a person being taken to the place of issue in compliance with an order under this Act commits an offence under this Act.  That is not what the section sought to achieve, but it is the effect of simply referring to the descriptors to designate the person and then saying there is an offence of escape lawful custody. 

Even if it were that product being the offence, that is not what this appellant was ever charged with, and the magistrate was right in those circumstances in the result.  The upshot of that is that it is our submission that the simple descriptor “offence” does not accord with the language by applying the liability of the law in force in the State.  If it were, it is a very, very complicated way to produce a very, very simple result, which is not the result that resulted in the charge my client faced and that charge required inmate. 

KEANE J:   On the other hand, if your view of the statute were right, one would have expected it to read “the law in force in the place of the issue of a warrant applies where a person is being taken to the place of issue”.

MR JAMES:   We are closer to it than any of the rival submissions, your Honour.  As I said, the language is difficult and we accept that here we are trying to look to concept to make a provision which applies to the different regimes and the different laws of the different States work in defining process and its consequences throughout Australia.

The language of its nature has to contain within it some degree of flexibility but at bottom our submission is that flexibility cannot possibly extend to, as it were, rejecting the applicability of part of the law in force in the State in relation to the liability of a person who escapes from lawful custody in order to try to produce an offence, or to produce an offence which is simply to be described and not chosen as the way in which that liability might be expressed.

Section 89(4), as I am reminded, only deals with an escape provision, not assaulting the constable or whatever.  Then you get into – I mean, you could get a rather peculiar trial with all sorts of different law applying to different offences in the one trial even if it is federal, State, Application of Laws Act, catch up, extraterritorial of New South Wales and, in our submission, the way through that is to simply take the view that if you are saying the law in force shall apply, to apply the law in force.

BELL J:   Mr James, when you look at the prosecutor working out the charge to prefer in the circumstances of this case, you say the correct answer, as I understand your submission, was to look at what is the law as to the liability for a person who escapes from a bench warrant in the terms of Judge Freeman’s warrant in New South Wales and you apply that law. 

But, looking at the circumstances, what happened here was that Mr Mok is said to have escaped from the custody of a police officer taking him to the Sydney police station pursuant to an order issued under the federal law and he is liable under federal law for an offence of escaping, his liability being picked up by applicable New South Wales law.  Why, in those circumstances, are we concerned with what might have happened in terms of liability had he escaped from the District Court of New South Wales under the bench warrant?

MR JAMES:   Because the first – the bench warrant – is not the whole of the position.  We put there is that and we also put that his liability goes to escape lawful custody.  But whatever it is, it does not go to inmate.

BELL J:   Yes, I understand.

MR JAMES:   Particularly because when you pick up the New South Wales law which defines what is an “inmate” and defines that by reference to organs of limited applicability, you cannot give them extended applicability – extraterritorially, and so forth – and different functions to the functions they might otherwise have to make them a competent authority - a court, a magistrate, or whatever – under the law of New South Wales.  You are picking up the law of New South Wales on that hypothesis.  You are not adding to it or altering it so substantially.  So, they are the submissions we make in response, if your Honours please.

FRENCH CJ:   Yes, thank you, Mr James.  The Court will reserve its decision.  The Court adjourns to 9.30 in Canberra tomorrow and 9.30 tomorrow in Sydney.

AT 11.02 AM THE MATTER WAS ADJOURNED