MOK v Director of Public Prosecutions (NSW)

The High Court of Australia considered an appeal by an appellant who had been arrested in Victoria pursuant to a New South Wales bench warrant and subsequently ordered to be returned to New South Wales. The appellant was charged in New South Wales with attempting to escape lawful custody under section 310D of the *Crimes Act 1900* (NSW), with the prosecution contending that this State law applied to the appellant by virtue of section 89(4) of the *Service and Execution of Process Act 1992* (Cth) ("SEPA"). The central dispute concerned whether section 89(4) of SEPA operated to create a federal offence based on the New South Wales law, and if so, whether the prosecution was required to prove all the elements of the State offence as it would ordinarily apply.

The legal issues before the High Court were whether section 89(4) of SEPA applied section 310D of the *Crimes Act* as a "surrogate federal law", whether the content of the applied State law was altered by this operation, and consequently, whether the prosecution was required to prove all the elements of the offence under the State law. The Court was required to interpret the scope and effect of section 89(4) of SEPA in relation to State laws concerning escape from lawful custody when a person is being returned to a State under an order made pursuant to SEPA.

The High Court held that section 89(4) of SEPA applied section 310D of the *Crimes Act* as a surrogate federal law to the appellant. The Court reasoned that section 89(4) operates in a focused manner, applying a limited class of State laws to a person being taken to the place of issue of a warrant in compliance with an order made under SEPA. Unlike other Commonwealth provisions that might pick up State laws unaltered, section 89(4) was characterised as containing an express provision enabling the alteration of the language of a State statute and its application in that altered form. Therefore, the requirement that the person be an "inmate" for the purposes of section 310D was not a necessary condition for the application of the offence as a federal law under section 89(4). The appeal was dismissed with costs.