Mok v Director of Public Prosecutions (NSW) [2016] HCA 13

Today (6 April 2016), an Appeal from the Supreme Court of New South Wales Court of Appeal has been dismissed by the High Court. In the case of Mok v Director of Public Prosecutions (NSW) [2016] HCA 13 the High Court held that by operation of s 89(4) of the Service and Execution of Process Act 1992 (Cth) (SEPA), the appellant could be found guilty of the offence of attempting to escape lawful custody under s 310D of the Crimes Act 1900 (NSW).

Background to the Case

The Commonwealth SEPA Act provides for warrants authorising the apprehension of persons under State laws throughout Australia. SEPA allows for a person named in a warrant issued by one State to be apprehended and taken before a magistrate in another State. Section 83 to SEPA allows for the person to be held in remand in the State of arrest until taken into custody in the State of issue. Further to this, section 89(4) of SEPA specifies that in the event that the person named escapes from lawful custody, then the law relating to the liability of such an event which is in force in the State of issue of the warrant will apply to the person.

In this case, the appellant was convicted of a crime in NSW in 2003. He was sentenced to imprisonment but absconded. Subsequently a NSW warrant was issued for his arrest. The appellant did not surface again till several years later where he was arrested in Victoria for unrelated crimes. After being sentenced for the crimes in Victoria, a Victorian police officer further arrested him pursuant to the NSW warrant. He was then sentenced by a Victorian magistrate under s83 to be taken into custody in NSW. While in custody at Tullamarine Airport, the appellant escaped again but was re-arrested shortly. He was then charged under s310D of the NSW Act which criminalises ‘inmates’ who escape or attempt to escape from lawful custody.

Trial and Appellate Courts

At trial, the NSW Magistrate dismissed the case against the appellant after finding that he was not an ‘inmate’ at the time for the purposes of the NSW Act. The Supreme Court of NSW overturned this decision.

The Court of Appeal also agreed with the NSW Supreme Court and dismissed the appeal.   The Court of Appeal held that s 89(4) of SEPA acted on s 310D of the Crimes Act to create a new federal offence which applied to all persons being taken to New South Wales in compliance with a relevant order under SEPA. Essentially, the Court of Appeal ruled that s89(4) of SEPA applied in a way that altered the application of the NSW Act in a way that rendered the meaning ‘inmate’ irrelevant.

High Court

The High Court agreed with the Court of Appeal and dismissed the appeal, holding that s 89(4) of SEPA applied s 310D of the Crimes Act as Federal law and, by majority, that it was not a requirement of the Federal offence that the appellant answer the description of ‘inmate’.

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Mok v Director of Public Prosecutions [2016] HCA 13