Mok v Director of Public Prosecutions (NSW)

The case of *Mok v Director of Public Prosecutions (NSW)* concerned an appeal to the Court of Appeal of New South Wales. The appellant, Mok, had pleaded guilty to fraud charges in New South Wales and a bench warrant was issued for his arrest. He was arrested in Victoria and a Victorian magistrate ordered his return to Sydney. While attempting to escape at Tullamarine Airport en route to Sydney, Mok was charged with escaping from lawful custody under section 310D of the *Crimes Act 1900* (NSW). The central dispute revolved around whether the New South Wales law could apply to an act committed in Victoria, and if so, under what federal legislative framework.

The legal issues before the Court of Appeal were whether the charge under the New South Wales *Crimes Act* was validly laid, and if so, whether it constituted a federal offence. Specifically, the court had to determine the effect of the *Service and Execution of Process Act 1992* (Cth) and other federal legislation in rendering state criminal laws applicable to conduct occurring outside the state of origin, particularly when that conduct involved an attempted escape from lawful custody during interstate transfer. The court also considered how to reconcile potentially conflicting federal provisions that might cause the New South Wales law to apply in different ways.

The Court of Appeal reasoned that the *Service and Execution of Process Act 1992* (Cth), by virtue of section 8(4), operated to create a federal offence by making the New South Wales *Crimes Act* applicable to the appellant's conduct. This provision indicated that the federal law was intended to operate to the exclusion of state law, meaning the state law was made applicable by the federal law, thereby investing the state court with federal jurisdiction. The court distinguished this from earlier cases concerning the *Judiciary Act 1903* (Cth), finding that the *Service and Execution of Process Act 1992* (Cth) directly created a federal offence by applying the relevant state law. The court concluded that the charge should be read as a charge against a federal offence created by the application of the *Crimes Act 1900* (NSW) to the appellant while he was being returned to Sydney.

The appeal was dismissed. The court granted leave to appeal but ultimately upheld the decision below, directing the appellant to file a notice of appeal and dispensing with certain procedural requirements.