The High Court has dismissed an appeal against a decision of the New South Wales Court of Appeal on applicable jurisdiction in the context of a cross-State prison transfer escape. The appellant briefly escaped custody in the course of being transferred from Victoria to New South Wales at Tullamarine Airport, a ‘Commonwealth place’. His transfer took place under a federal law, the Service and Execution of Process Act 1992 (Cth), s 89(4) of which states that the law in force in the place of issue of a warrant relating to the liability of a person who escapes from lawful custody applies to a person being taken to the place where that warrant was issued, and consequently he was charged with the NSW offence of escaping from lawful custody contrary to s 310D of the Crimes Act 1900 (NSW). While the appellant could not be accurately described as an ‘inmate’ as required by s 310D, the NSWCA held that that section still applied, because of the operation of s 89(4) (see at [48]–[50]). Before the High Court, the appellant sought to argue that the NSWCA erred in assuming in its chain of reasoning that s 89(4) creates a new Commonwealth offence and in concluding that s 89(4) allowed the NSWCA to alter the language of the State law to have it apply in these circumstances, and contended instead that s 89(4) expressly requires the State law apply to the conduct.

The Court unanimously dismissed the appeal. French CJ and Bell J noted that there is no in principle reason that prevents the Commonwealth parliament from adopting the text of a State law and applying it analogically or modifying it, and whether that law is applied analogically or modified depends on the construction of the federal law (at [35]–[36]). Construing s 89(4) does not require a binary choice between the unaltered text of the State law or altering it to remove the ‘inmate’ requirement, but rather analogical application considers how s 89(4) uses the text of the State law: at [37]. Here, the text, context and purpose of s 89(4) indicated that it was not to apply to any possible offence of escaping lawful custody, but rather only to State laws that were analogical to the circumstances required by s 89(4): at [38]. While a law creating an offence of escaping from custody would not be analogous (see [39]–[40], liability under the State law for persons subject to a warrant or order to be committed to a correctional facility was ‘plainly applicable by analogy’ to persons to whom s 89(4) applies (at [42]). Consequently and for that purpose s 89(4) treats the applicable aspects of s 310D as a surrogate federal law: at [42]. Keane and Kiefel JJ generally agreed with the reasoning of French CJ and Bell J, but held that focusing on the words of s 89(4) ‘more directly answers’ the question of how the section applies: at [57]. The wording in s 89(4) describing the relevant State or Territory law as a ‘law relating to the liability of a person who escapes from lawful custody’ can refer to any law making it an offence to escape from lawful custody, and thus can apply that law to the circumstances in which s 89(4) operates (at [58]). Section 89(4) does not pick up the reference in the State law to inmates, but rather identifies the person to whom it is directed: a person who escapes during the process of being taken to the place of issue of a warrant under s 89(1): at [59]. Gordon J likewise held that the appellant could be guilty of the State charge but that it was not necessary to ‘put to one side’ the various definitions of ‘inmate’ to ensure s 89(4) achieved its purpose (at [115]), and also held that contrary to the Court of Appeal’s reasoning, all elements of s 310D(a) must be proved (at [116]).