Mok v Director of Public Prosecutions (NSW)

[2015] NSWCA 98

NSW Court of Appeal

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Interrogate

Catchwords

1. Constitutional Law (Cth)
2. › Commonwealth places
3. › Application of State laws
4. › Two federal laws potentially applying State law in different terms
5. › Whether Commonwealth Places (Application of Laws) Act 1970 (Cth) or Service and Execution of Process Act 1992 (Cth) applied
6. › Commonwealth Places (Application of Laws) Act 1970 (Cth), s 4
7. › Service and Execution of Process Act 1992 (Cth), ss 8(4), 89(4)
1. Criminal Law
2. › Escape from lawful custody
3. › Person being returned to another State pursuant to order under Service and Execution of Process Act 1992 (Cth)
4. › Attempted escape at Commonwealth place
5. › Whether prima facie case established
6. › Whether person required to satisfy definition of 'inmate'
7. › Crimes Act 1900 (NSW), s 310D
1. Federal Jurisdiction
2. › State criminal law applied as surrogate federal law
3. › Service and Execution of Process Act 1992 (Cth), s 89(4)
4. › State law relating to escape from lawful custody applied to person being returned under SEP Act order
5. › Federal offence created by application of State law
6. › Whether decisions on Judiciary Act 1903 (Cth), ss 68(2), 79 applicable to differently worded federal law
1. Statutory Interpretation
2. › Two federal laws potentially applying State law in different terms
3. › Resolution of potential conflict between federal statutes
4. › Proper construction before applying conflict resolution rules
5. › Service and Execution of Process Act 1992 (Cth), ss 8(4), 89(4)
6. › Commonwealth Places (Application of Laws) Act 1970 (Cth), s 4(2)(a)

Quick Take

Section 89(4) of the Service and Execution of Process Act 1992 (Cth) creates a federal offence by applying State escape-from-custody laws directly to all persons being returned under SEP Act orders, without requiring satisfaction of State-law definitional prerequisites such as the definition of 'inmate'. Where both the Commonwealth Places (Application of Laws) Act 1970 (Cth) and the SEP Act potentially apply State law at a Commonwealth place, s 8(4) of the SEP Act renders State law inoperative in the field of execution of interstate process, engaging the disabling provision in s 4(2)(a) of the Commonwealth Places Act. Decisions on the operation of ss 68(2) and 79 of the Judiciary Act 1903 (Cth) in making State laws applicable cannot be uncritically applied to differently worded federal provisions.