Mok v Director of Public Prosecutions (NSW)

[2015] HCATrans 301

[2015] HCATrans 301

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney   No S105 of 2015

B e t w e e n -

YAU MING MATTHEW MOK

Applicant

and

DIRECTOR OF PUBLIC PROSECUTIONS (NSW)

Respondent

Application for special leave to appeal

BELL J
GAGELER J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 13 NOVEMBER 2015, AT 10.56 AM

Copyright in the High Court of Australia

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

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

BELL J:   Yes, Mr James.

MR JAMES:   Your Honours, the application is within a very, very tight compass.  It concerns the ‑ ‑ ‑

BELL J:   Just before you lead off, Mr James, I think there is an extension of time that is sought.  I will just inquire whether there is any opposition to that.

MS ADAMS:   There is not, your Honour.

BELL J:   Yes, very well.

MR JAMES:   Your Honours, it concerns the effect of section 89(4) of the Service and Execution of Process Act, in relation to New South Wales.  That section is extracted in the application book at page 139 – or the relevant subsection at page 139:

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).

The New South Wales offence that was charged was one charged under section 310D of the Crimes Act (NSW). That offence is to be found set out at page 107 of the application book. The heading is “Escaping”. The section, which focuses upon the status of the person concerned, reads:

Any inmate:

(a)who escapes or attempts to escape from lawful custody –

relevantly –

is guilty of an offence.

The contest below before the learned magistrate, subsequently before Justice Rothman, concerned whether or not the applicant was an inmate for the purposes of the application to the applicant under section 89(4) of section 310D. In the Court of Appeal, however, the court resolved the matter differently. When one turns to the application book at page 89, paragraph 51 of the judgment of the court, their Honours concluded as follows:

This appeal is not determined by a strained reading of whether the Victorian Magistrate was a “court exercising criminal jurisdiction”, or a “competent authority”.

Those definitions were important to determine whether or not Mr Mok was an inmate –

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.

In effect, what their Honours did was to determine that section 89(4) created a new federal offence, the content of which was anything but clear.  The Interpretation Act (NSW), so far as it might apply to the elements of the New South Wales law that go to make up whether the concept of “inmate” for the purposes of the definition would be excluded, the term and qualification on the New South Wales section “inmate” would be excluded, and one would simply look to the fact that, as far as the Commonwealth offence was concerned, the applicant was a person who escaped lawful custody when being transmitted from one place to another pursuant to the Service and Execution of Process Act.  It has a virtue of simplicity.

GAGELER J:   Your point is simply that section 89(4) picks up the State law with its meaning unchanged?

MR JAMES:   Or, if its meaning is changed, it has certainly not changed that far.  That is our short point, yes.

BELL J:   Can I take you back one step?  Do you accept, having regard to the scheme of the Service and Execution of Process Act, that on these facts, the place of issue of the warrant was New South Wales because one is concerned with the warrant that led to the issue of the process by the Victorian magistrate under section 83(8)(b).  Is that accepted?

MR JAMES:   Your Honour, we have to, in that that is the way the case was conducted from first to last.  I would be raising something novel now if I was to say that the relevant warrant is the Victorian warrant.

BELL J:   The consideration below of whether or not the applicant answered the description of being an inmate was in part – this is in the way the matter was run – by reference to an escape from a warrant issued by the Victorian magistrate under 83(8)(b).

MR JAMES:   Yes.  There were all manner of complications.  The Crimes Act (NSW) has territorial extension. The Commonwealth Places (Application of Laws) Act applies, in some circumstances, State law to Commonwealth places, including Tullamarine.  The Service and Execution of Process Act itself makes application and seeks to exclude State law; that seems to be both State’s laws.  But the attempt to cut the Gordian knot by the Court of Appeal simply shears through all of that, and creates a brand new offence.  The reasoning for it is contained in the previous three paragraphs.

BELL J:   Which are those?

MR JAMES:   That is on page 88 of the application book, paragraph 48.  Your Honour will see, in answer to your Honour’s question, there is the way in which it was done:

the Victorian Magistrate’s order under s 83(8)(b) required Mr Mok to be conveyed by a particular New South Wales police officer to the Sydney Police Centre.

BELL J:   Yes.

MR JAMES: The first thing we would say about that is it was a commitment to the person, not to the place. Secondly, when he attempted to escape, he was a person being taken to the place of issue in compliance with that order. This foreshadows, putting aside as irrelevant the issue of whether the New South Wales law requiring him to be an inmate for an offence under section 310D might supply the content of the Service and Execution of Process Act offence, and by way of simply in passing, he was not charged with an offence which could have avoided all this, which is the common law escape offence.

BELL J:   Your point is 89(4) of the Service and Execution of Process Act picks up the whole of the law, including the unwritten law of New South Wales respecting escaping from lawful custody.

MR JAMES:   And the Interpretation Act.

BELL J:   Yes.

MR JAMES: When one comes to consider in New South Wales what is lawful custody for the purposes of section 310D, one cannot put aside the concept of being an inmate. That is the short point, if your Honours please.

We point out that Justice Rothman excluded, in effect, the Interpretation Act, opting for a concept of purpose in the Service and Execution of Process Act of vague content and application.  He held the magistrate was completely correct, except that the magistrate had not looked to some purposive intentional element of the Service and Execution of Process Act to somehow displace the New South Wales legislation’s clear meaning.

The Court of Appeal’s decision, as it stands, is one applicable to all States and Territories so far as the Service and Execution of Process Act runs.  It is precedential.  Its interpretation in this way raises a question of general public importance, and the interests of justice in the individual case.  The decision leaves the content for Australia of the criminal offence so created under section 89(4) as vague and incapable of being resolved prior to charge.

We take the point in our reply – three points:  firstly, as to the meaning of section 89(4); secondly, that he is not an inmate – it is not a court or competent authority according to the law of New South Wales; and that the warrant did not commit him to a place, but to a person.  All of these mean that the matter can be disposed of on a clear factual basis. 

This case presents no complication of facts, and it is, in our submission, an entirely suitable vehicle to determine whether the Service and Execution of Process Act gets some special rule of construction, or secondly, whether appropriately the section catches up the relevant State law according to its terms.  They are the submissions we make, if your Honour please.

BELL J:   Thank you.  Yes, Ms Adams.

MS ADAMS:   Thank you, your Honours.  In our submission, neither of the questions identified by the applicant raises issues appropriate to the grant of special leave.  Those two questions as identified by the applicant are at application book 97.

In our respectful submission, in relation to the first of those questions, the answer is clearly no for the reasons set out in our submissions, because nowhere in the Court of Appeal decision does it say that the prosecution is relieved of proving an element.  Rather, it is dealt with at paragraph 47, which is at application book 87 – this is of the Court of Appeal judgment.  This is the basis upon which the Court of Appeal dismissed the appeal, which is this.  What 89(4) of the Service and Execution of Process Act does is:

takes a limited class of State laws –

and we would submit, the escape laws – that does not include the Interpretation Act – and apply them to a particular person – the person named in the warrant.  So it does not relieve the prosecution of proving that element.  That element is satisfied by the Court of Appeal’s construction of 89(4).

GAGELER J:   There is no Acts Interpretation Act that applies to the law as picked up by 89(4) ‑ ‑ ‑

MS ADAMS:   It would be the Commonwealth Interpretation Act, not the State one, which is more in relation to the alternative argument; the alternative argument being, I should say, the way it was run in the Court of Appeal.  In our submission – and we are certainly not submitting the Court of Appeal decision is wrong, but our submission is even if he was an inmate in any event, for the reasons that we have set out in our written submissions – because in order 4, Mr Mok, to be an inmate, had to be a person the subject of a warrant or order, and that is certainly not disputed, as I apprehend it.  It had to be a warrant or order that committed the person to a correctional centre. 

I should note, your Honour Justice Bell made the interaction with my friend, that the warrant was to a person, not a place, but under section 83(8)(b) of the Service and Execution of Process Act, it is to a specified place.  That is in the Court of Appeal judgment, 24, which is application book 81; if I can just turn to that.  Under section 83(8) of the Service and Execution of Process Act, what the Victorian magistrate had to do was one of (a) or (b).  In relation to (a), I should note, Mr Mok was a sentenced prisoner at this stage.  He had been sentenced to six months the day before, so clearly ‑ ‑ ‑

BELL J:   That was for federal offences, and he had been sentenced in Victoria for those?

MS ADAMS:   Yes, yes.

BELL J:   We are concerned, are we not, with the warrant that was issued by Judge Freeman in New South Wales insofar as that grounds the issue of the order by the magistrate under the Service and Execution of Process Act, and it is Judge Freeman’s warrant that directs us to the place of issue for the application of the law governing escape.  Is that so?

MS ADAMS:   Yes.

BELL J:   So that on the argument that found favour in the Court of Appeal, one looks to the elements of the statutory offence under the Crimes Act (NSW) of escaping from lawful custody by reference to whether the applicant answers the description of being an inmate, having regard to the terms of the order made by the magistrate under the Service and Execution of Process Act.  That is the argument that you are advancing, as it were, as your alternative argument?

MS ADAMS:   Yes.

BELL J:   Yes, I understand.

MS ADAMS:   Because Mr Mok was subject of a warrant or order which committed the person to a correctional centre – namely, the Sydney Police Centre – and that order was by, at the very least, a competent authority, being the magistrate.  In any event, the prosecution could establish the elements of the offence.

BELL J:   Turning to the analysis of the Court of Appeal at application book 87, paragraph 47, the Court of Appeal proceeded, as I read their Honours, upon acceptance that for the purposes of section 89(4), there was an order.  The applicant was named in the order, and for that reason, consideration of whether he answered the description of being an inmate for the purposes of 310D of the Crimes Act (NSW) was simply beside the point.

MS ADAMS:   It was, and the point ‑ ‑ ‑

BELL J:   Do you support that reasoning?

MS ADAMS:   Not for the reason advanced by the applicant; not because the court found that the prosecution did not need to prove it, but because section 89(4) picks up and applies section 310 as federal law, that law applies.  That element is satisfied, not that it does not have to be proved.  It is satisfied because there is such a particular focus on 89(4), and what the Court of Appeal – sorry, your Honour.

BELL J:   Ms Adams, “inmate” has, for the purpose of this offence, a defined meaning.

MS ADAMS:   Yes.

BELL J:   Do you accept that had the applicant turned up at the District Court and, having surrendered himself in answer to the warrant issued by Judge Freeman, had a change of heart, jumped over the dock and run away, he would not have committed an offence under 310D of the Crimes Act, but he would arguably have committed the common law offence of escape lawful custody?

MS ADAMS:   He would, your Honour, and there is a New South Wales case of Peehi that says that you are in custody in a courtroom.

BELL J:   Yes.  Accepting that, when one looks at the approach that the magistrate took, the magistrate was concerned to see whether each of the elements of the offence with which the applicant was charged had been established, and the magistrate found that the element of proof that he was an inmate had not been established.  Now, either that is right or wrong – and I understand your arguments about competent authority and the issue of the Victorian warrant – but that is not the reasoning that underpins the approach of the Court of Appeal, is it?

MS ADAMS:   It was the argument before it.  The court did not feel it needed to make that point because of the primary point, but the fact ‑ ‑ ‑

BELL J:   Because the Court of Appeal approached it on the basis that by application of 89(4), one need not establish that the individual was an inmate, because they were the person named in the 89(4) warrant.  Is that the point?

MS ADAMS:   More specifically, because of the construction of 89(4) of the Service and Execution of Process Act, it takes a limited class of laws.  I should say what the court, in my understanding of 47 is – they are perhaps being impliedly critical of the way the argument had proceeded by way of analogy, because a lot of the arguments had compared cases on section 68(2) of the Judiciary Act, or section 79.

The point that the Court of Appeal is making there is it is not necessarily helpful to compare apples and oranges, if I can say so.  The point that they are making there is this is a particular statutory provision that does something different to those other federal provisions that pick up and apply State law.  They do something very focused; they apply whatever the State law is – in this case, it is 310 – they apply it to the person named in the warrant.  Therefore, they fit within that definition, and it applies, not that it is ‑ ‑ ‑

BELL J: But an element of the offence is proof that the person answers the description of being an inmate. Now, either the court was applying section 310D according to its terms, or it was applying to this federal offence 310D minus one of its elements.

MS ADAMS:   Our respectful submission is it is not minus one of its elements.  It is that that element is satisfied.  Your Honour, can I just return to ‑ ‑ ‑

GAGELER J:   Ms Adams, can I just try to understand this argument?  Do you support the construction of section 89(4) advanced by the Court of Appeal in paragraph 51 of its reasons?

MS ADAMS:   We do not say it is wrong, but even if it is, it does not matter in the circumstances of this particular case, because he was an inmate.

GAGELER J:   It is put against you that it is wrong.  You say nothing about that?

MS ADAMS:   No, we say we accept the Court of Appeal decision for the reasons I have indicated, that they are not saying you do not have to prove an element.  It is saying that that element is satisfied.  In circumstances where this is a special leave application and in circumstances where there is no other State in Australia that has the same wording as 310D, with the exception of Victoria, all the other States and Territories in Australia, the statutory escape provision is simply “escape lawful custody”.

This is, with respect, a special leave application about a particular statutory escape offence picked up by a particular federal statute turning on the particular factual scenario of a person escaping in Victoria and being picked up under a New South Wales Bench warrant, and the particular wording of that warrant in circumstances where we say he clearly was an inmate in any event.  So although we certainly do not ‑ ‑ ‑

GAGELER J:   Let me just understand that.  For you to say he clearly was an inmate in any event would involve you advancing that by way of notice of contention, I think, in an appeal to this Court.

MS ADAMS:   If special leave was granted, we certainly would do that, yes.  The point I am trying to address is whether this is an appropriate matter for special leave, and the two reasons why we say it is not are the two I have already adverted to, which is it has no application beyond the very unusual facts of this case, and in any event, the offence can be proved by the prosecution in any event, because he is an inmate.  We say the articulation of the first question misstates what the Court of Appeal is saying at, for example, paragraph 47.  Unless there is anything further.

BELL J:   We do not need to hear further from you, thank you, Mr James.  There will be a grant of special leave in this matter.  What is the estimate?

MR JAMES:   Your Honour, having regard to the written material, we would expect, if the parties remain the same, that the argument would not be likely to take longer than about an hour or so.  Indeed, everything is presently in the application book.  However, it is a matter that does have an effect, notwithstanding what my friend has put, on the other States and Territories.  There is no need for them to be notified at law, but it is a matter in which they may well have an interest and, subject to the Court’s view – because the judgment will apply to the offences thereto in the Service and Execution of Process Act as it operates there.  We would be happy to have my friend notify them, in case they wish to make application.  We think that it is likely they will not, but we would expect that it could be dealt with in two hours total.

BELL J:   Yes.  We are not minded to give any direction in that respect, Mr James.  Ms Adams, half a day?

MS ADAMS:   Two hours to half a day, yes, your Honour.

BELL J:   Yes.  There is some prospect that the matter might be accommodated in the February sittings, although that is perhaps not likely.  Would there be any difficulty with that?

MR JAMES:   I think it unlikely, your Honour, that there would be any difficulty.

BELL J:   Yes, very well.  What I will ask your instructing solicitors to do is to collect from the Deputy Registrar the directions for the filing of submissions.  The Deputy Registrar will indicate – in the event that there is a prospect of the matter being listed in February, there is a slightly shortened timetable, but one that nonetheless takes account of the Christmas break.  In the event that that is not a possibility, the Deputy Registrar will give you a timetable that is attuned to a March hearing date.  Yes, thank you.

MR JAMES:   May it please the Court.

AT 11.20 AM THE MATTER WAS CONCLUDED