Consideration
41The learned magistrate in these proceedings construed the provisions of s 310D of the Act in a manner generally consistent with the principles of construction of statutes. In so doing, the learned magistrate examined the Act, including its reference to the Crimes (Administration of Sentence) Act, to determine the intention of the legislature. Intention, in the foregoing, must be understood as something other than subjective intention. In the words of Hayne J:
"[315] Second, the reach and operation of the federal law is to be determined by construing that law; that is, by reference to the language, purpose and scope of the law, viewed as a whole within its context, as well as by reference to considerations of consistency and fairness. More particularly, if the metaphor of "intention" is employed (and it now seems ineradicable), the relevant "intention" of the federal Parliament is revealed by construction of the federal law in question. Use of the metaphor of "intention" or "will" must not be understood as inviting attention to the wishes or hopes of those who promoted the legislation in question. What matters is the reach and operation of the law in question as that reach and operation are ascertained by the conventional processes of statutory construction. The metaphor of intention must not obscure the centrality of construing the laws in question" (Momcilovic v R and Ors [2011] HCA 34; (2011) 245 CLR 1, at [315], per Hayne J).
42The oft-repeated passages in Project Blue Sky Inc & Ors v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 (and see the comments of Gageler J in Commissioner of Police v Eaton [2013] HCA 2; (2013) 87 ALJR 267 at [97]-[98]) refer to the modern approach to the construction of legislation, which requires the Court to determine the purpose of the legislature and to construe the terms of the legislation as providing the achievement of harmonious goals.
43The difficulty in the present situation is that the learned magistrate construed, in my view correctly, the intention of the State legislature in enacting s 310D of the Act, but did so without regard to the intention of the Federal legislature in promulgating s 89(4) of the Service and Execution of Process Act.
44As earlier stated, the grant of bail by a court in the jurisdiction in which an alleged offender is arrested is determined in accordance with the law of that State or jurisdiction: see s 88 of the Service and Execution of Process Act and Rose v Chief Commissioner of Police [2000] VSC 281.
45While s 130 of the Service and Execution of Process Act is not directly relevant to the exercise of power by the Magistrate or the application of s 310D, it confirms the intention of the Federal legislature that the law of the issuing state (and for some processes the arresting State) is to apply without the territorial limits otherwise associated with the provisions.
46Before doing so, it is appropriate to restate that a plenary legislature such as New South Wales may (subject in Australia to the Constitution) promulgate laws with an extraterritorial effect and, in some circumstances, operation. Legislation is construed otherwise by custom and sometimes by operation of interpretation statutes or, in Australia at least, the Constitution.
47In R v Giannakopoulos and Marzilli [2013] SASCFC 50, Kourakis CJ (with whom Vanstone and Kelly JJ agreed) said:
"[13] In general terms, a legislature with plenary power can make laws proscribing arrangements, the giving of inducements and the making of demands or threats, in places subject to its legislative jurisdiction. It matters not, as a matter of power, that the purpose of the conduct is to effect a result in a place outside of the legislature's sovereign area. Counsel for the defendants accepted that it is within the legislative competence of each of the States of Australia to proscribe conduct such as that dealt with by s 244 of the CLCA even if the judicial proceedings which the conduct is calculated to compromise are judicial proceedings in another State.
[14] The judicial proceedings protected by s 244 of the CLCA are defined by s 237 of the CLCA to mean proceedings of any judicial body which, in turn, is defined to mean a court or any tribunal body or person invested by law with judicial or quasi judicial powers, or with an authority to make any enquiry or to receive evidence. Whether or not the definition in s 237 of the CLCA is limited to a judicial officer and judicial body of this State need not be determined in this case. However, there is, as I have observed, no constitutional limitation on the legislative competence of this State to control the conduct of persons, within the territory of the State, even if the object of that conduct is to effect a consequence in another State.
[15] Even if a connection with the legislating State, over and above the location of the relevant acts or omissions within the territory of the legislating State were constitutionally necessary, there is such an additional connection to be found in the case of s 244 of the CLCA. It should be accepted that conduct designed to compromise judicial proceedings, wherever in Australia they are heard, is a mischief which every State has an interest to suppress because it discourages the commission of similar offences directed against its own judicial proceedings. Moreover, the civil and criminal process of all of the States and Territories of Australia is enforceable in every other State and Territory, giving each State and Territory an interest in protecting judicial proceedings which might come to be enforced within its sovereign territory."
(The "CLCA" to which Kourakis CJ refers is the Criminal Law Consolidation Act 1935 (SA).)
48I turn then to the terms of the Act. As the learned magistrate explained, in order for a person to be guilty under s 310D of the Act, the person must be an inmate. In order to determine whether a person is an inmate, one is referred by s 310A to the Crimes (Administration of Sentences) Act and, in particular, to ss 3 and 4 of that Act.
49The relevant parts of each of those provisions is recited above. Importantly, the definition of "court" includes "any other court that...exercises criminal jurisdiction". The definition of inmate refers to s 4 of the Crimes (Administration of Sentences) Act, which, in turn, includes a person who is the subject of a warrant or order by which a court has committed the person to a correctional centre on remand in connection with proceedings for an offence.
50The Melbourne Magistrate's warrant orders that Mr Mok "be returned to Sydney Police Centre in the State of New South Wales", for which purpose he is to be delivered into the custody of the New South Wales Police Officer named in the warrant and for him and any other police officer to "convey [Mr Mok] to Sydney Police Centre in the State of New South Wales and take him before magistrate...to answer the said judge".
51The foregoing recited definitions from the Crimes (Administration of Sentences) Act includes a definition for Correctional Centre that is defined in terms to include "any police station or court cell or complex in which an offender is held in custody in accordance with this or any other Act". Sydney Police Centre is a correctional centre within the meaning of the Crimes (Administration of Sentences) Act. As a consequence, the terms of s 4(1)(d) apply to Mr Mok if the Melbourne Magistrates' Court is a court for relevant purposes. Similarly, s 4(1)(e) of the Crimes (Administration of Sentences) Act applies in like circumstances if the effect of the warrant issued by the Melbourne Magistrates' Court was not to commit the person "on remand".
52The learned magistrate below came to the view that the Melbourne Magistrates' Court was not a court exercising criminal jurisdiction, because the term "court" in the Crimes (Administration of Sentence) Act referred to a court in New South Wales and, in so holding, determined that neither s 4(1)(d) nor s 4(1)(e) of the Crimes (Administration of Sentences) Act rendered Mr Mok an inmate.
53The learned magistrate utilised the provisions of s 12 of the Interpretation Act 1987 to confirm that the reference to court in the Crimes (Administration of Sentences) Act is a reference to that statutory body in and for New South Wales.
54The analysis by the learned magistrate is, as earlier stated, well-reasoned and correct, if the statutory expression to which reference is to be made were the terms of s 310D of the Act and the terms of the Crimes (Administration Sentences) Act, without regard to the effect of the Service and Execution of Process Act. The difficulty with the analysis, in these circumstances, is that the effect of the Service and Execution of Process Act is to supplement the legislative fiat and reach of s 310D of the Act.
55The application of the Act, and the legislative provision to be construed, is the intention and purpose of s 89(4) of the Service and Execution of Process Act in so far as it applies the Act and, by reference, the Crimes (Administration of Sentences) Act. In so doing, the Interpretation Act, except as is necessary to determine the effect of s 310D the Act when applied other than by the Service of Execution of Process Act, has no work to do in so far as it limits the court or body to whom the statute refers to one in and of the State of New South Wales.
56On its face, the definition in the Crimes (Administration of Sentences) Act refers to any court exercising criminal jurisdiction and it is broad enough to refer to the Melbourne Magistrates' Court. Even the term "Supreme Court" would be broad enough, in the context of Federal legislation, to include the Supreme Court of other States and Territories.
57In my opinion, the learned magistrate has been led into error because the charge is misstated. The charge on the Court Attendance Notice is a charge under s 310D of the Act, without reference to its application under s 89(4) of the Service and Execution of Process Act. As a consequence, the magistrate, and the parties below to a lesser extent, dealt with the proper construction of s 310D, without regard to the intention (from its statutory context and the words of the statute) of the Federal legislature.
58The offence under s 310D is a Commonwealth offence applied, by reference, under s 89(4) of the Service and Execution of Process Act. The jurisdiction conferred on the magistrate is the jurisdiction under s 68 of the Judiciary Act 1903. In particular, the jurisdiction of the Local Court is "the like" jurisdiction in relation to this offence as the jurisdiction under s 310D as if the offence were committed in New South Wales.
59Similarly, the jurisdiction of this Court is the like jurisdiction to appeal: Peel v R (1971) 125 CLR 447; R v Carngham (1978) 140 CLR 487; Rohde v Director of Public Prosecutions (1986) 161 CLR 119. A nice question arises as to whether the appeal should have been lodged by the Commonwealth DPP. No one has raised that issue.
60There is an added complication in that Tullamarine, where the events occurred, is a Commonwealth place, but that aspect does not alter the foregoing analysis or relevantly impact on the application of the laws.
61The DPP submits, in the alternative, that if the term "court" were confined to a court within New South Wales and did not include the Melbourne Magistrates' Court, the Melbourne Magistrates' Court would be a competent authority. There is some merit in that submission.
62Ordinarily, if the Interpretation Act applied to the provisions, the term "competent authority" would be a competent authority in and of New South Wales and it could not include the Melbourne Magistrates' Court. On the other hand, if the effect of the Service and Execution of Process Act is not as stated above, and does not enlarge the definition of "court" when applying, pursuant to the Service and Execution of Service Act, the definition of inmate under s310D of the Act, by reference to the Crimes (Administration of Sentences) Act, then there may be work for the term "competent authority".
63The analysis would then proceed in the following manner. The Service and Execution of Process Act, by s 89(4), renders the Melbourne Magistrates' Court a competent authority for remanding or ordering Mr Mok into custody and therefore, on the expanded definition and the alternate submission of the DPP, the Melbourne Magistrates' Court would be, if not a court, a "competent authority" for the purpose of the definition of inmate as it applies under s 310D of the Act as applicable by virtue of the provisions of the Service and Execution of Process Act.
64Lastly, Mr Mok submits that the terms of ss 4(1)(d) and 4(1)(e) of the Crimes (Administration of Sentences) Act utilise the term "committed", which, it is submitted, is, if properly construed, too narrow to include Mr Mok. First, ss 4(1)(d) and 4(1)(e) may be distinguished from each other because s 4(1)(d) refers to a person being committed to a correctional centre "on remand", whereas s 4(1)(e) has no such limitation. Thus, the term "committed" includes persons on remand and otherwise.
65Secondly, the submission seeks to construe the term "committed" too narrowly. Its ordinary meaning includes "to entrust or consign" (Australian Concise Oxford Dictionary, 4th Edition).
66The term committed must be construed, like all provisions, in its context. It has been given broader and narrower meanings: see Mullins v Surrey County Treasurer (1881) 7 App Cas 1 at [11] per Lord Watson and R v Brixton Prison; Ex parte Mehamed Ben Romdan [1912] 3 KB 190 at [194], 195, per Darling J. "Committed", in the context here in question, is not so narrow as to mean only committed to prison after conviction and plainly is not confined to committal on remand. In my view, as in the statement of Lord Watson in Mullins, where used in s 4 of the Crimes (Administration of Sentences) Act, "committed" is wide enough to include any order or warrant for the delivery of a person into the custody of a prison, "whether pending further enquiry, for trial, or for punishment".
67I am comforted in that approach by the terms of s 89(1) of the Service and Execution of Process Act, which refers to the procedure implemented here as being one in which "the custody of the apprehended person has been committed". In that situation the detectives from New South Wales Police who were ordered to convey Mr Mok to Sydney Police Station were the persons to whom Mr Mok was committed, but not the only persons or body.
68The foregoing is further supported by the process, to which the Service and Execution of Process Act refers, when a person is first apprehended in another State. Under ss 83(3) and 84(4) of the Service and Execution of Process Act and other provisions, a person is "remanded" or "on remand" when the magistrate first deals with a matter, assuming bail is not granted.
69For the foregoing reasons, I consider that the learned magistrate, while correctly construing the provisions of s 310D of the Crimes Act, in circumstances where that provision is unaffected by federal legislation, has not appropriately taken into account the effect of the Service and Execution of Process Act in construing that section as it is applied by operation of s 89(4) of the Service and Execution of Process Act.
70The foregoing conclusion does not necessarily conclude the charge against Mr Mok. There may be issues associated with the irregularity or necessity to amend the charge so as to refer to the operation of the Service and Execution of Process Act. As a consequence, it is appropriate that orders be made under s 59(2) remitting the matter to the learned magistrate to hear and determine the purported charge.
71The Court makes the following orders:
(i)Pursuant to the terms of s 59(2) of the Crimes (Appeal and Review Act) 2001, the order of his Honour, M Buscombe, Local Court Magistrate, made on 1 July 2013 at Central Local Court dismissing proceedings against the respondent, Yau Ming Mathew Mok, for the offence under s 310D Crimes Act 1900 (NSW) of being an inmate attempting to escape from lawful custody, be set aside;
(ii)The hearing of the aforesaid charge be remitted to the Local Court to be dealt with according to law;
(iii)No order as to costs;
(iv)The respondent Yau Ming Mathew Mok, be granted a certificate under s 6 of the Suitors' Funds Act 1951;
(v)The parties have liberty within 7 days to apply for any special or different orders for costs. Such application will be made with attached submissions of no more than three (3) pages by email to the Associate to Rothman J. Any party affected by any application under this order may respond, by submission of no more than three (3) pages, in a further 2 days from the receipt of such application.