Ha v Commissioner of the Australian Federal Police
[2002] FCA 1382
•8 NOVEMBER 2002
FEDERAL COURT OF AUSTRALIA
Ha v Commissioner of the Australian Federal Police [2002] FCA 1382
EXTRADITION – Doctrine of specialty – agreement between Australia and Hong Kong –applicant surrendered to Australia - whether applicant entitled to invoke doctrine of specialty in response to request by respondent for DNA sample – possible breach of specialty undertaking – requirements of Crimes Act 1914 (Cth) regarding provision of information to person whose DNA is sought – whether requirements met
Crimes Act 1914 (Cth) Div 6A Pt 1D, ss 23WA, 23XWJ(1) & (3)
Customs Act 1901 (Cth) s 233B(1)(d)
Extradition Act 1988 (Cth) s 42
Extradition (Hong Kong) Regulations 1997 (Cth) art 18
Federal Court of Australia Act 1976 (Cth) ss 19 and 21R v Ken Ha Khanh Phong (unreported, Supreme Court of Victoria – Court of Appeal, 29 January 2001) referred to
R v Hong Phuc Truong [2002] VSCA 27 at par [2] cited
Barton v The Commonwealth (1974) 131 CLR 477 at 500 referred to
Foster v Minister for Customs and Justice (1999) 164 ALR 357 at 367 referred to
Zoeller v Federal Republic of Germany (1988) 19 FCR 64 referred toUnited States v Rauscher 119 US 407 (1886) referred to
Ahmad v Wigen 726 F Supp 389 (EDNY) referred to
Re Arton (No 1) [1896] 1 QB 108 referred to
Re Arton (No 2) [1896] 1 QB 509 referred to
Fiocconi v Attorney-General of the United States 462 F.2d 475 (1972) referred to
Winkler v DPP (1990) 25 FCR 79 at 90 referred to
Papazoglou v Republic of the Philippines (1997) 74 FCR 108 referred to
Federal Republic of Germany v Parker (1998) 101 A Crim R 234 at 238 referred to
United States v Saccoccia 58 F.3d 754 (1995) discussedProject Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 referred to
E P Aughterson, Extradition Australian Law and Procedure (LBC, 1995) at 83–84
A Jones, Jones On Extradition and Mutual Assistance (London, Sweet & Maxwell, 2001) at pars [2-048], [2-058]–[2-078]KEN HA v COMMISSIONER OF THE AUSTRALIAN FEDERAL POLICE
V430 OF 2002WEINBERG J
8 NOVEMBER 2002
MELBOURNE
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
V430 OF 2002
BETWEEN:
KEN HA
APPLICANTAND:
COMMISSIONER OF THE AUSTRALIAN FEDERAL POLICE
RESPONDENTJUDGE:
WEINBERG J
DATE OF ORDER:
8 NOVEMBER 2002
WHERE MADE:
MELBOURNE
THE COURT DECLARES THAT:
The letter sent by Federal Agent J M M Cheshire to the applicant, dated 13 May 2002, which is exhibit “JMMC 2” to his affidavit sworn on 16 September 2002, does not comply with the requirements of s 23XWJ(1) of the Crimes Act 1914 (Cth).
AND THE COURT ORDERS THAT:
1.The application for injunctive and declaratory relief be otherwise dismissed.
2.There be no order as to costs.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
V430 OF 2002
BETWEEN:
KEN HA
APPLICANTAND:
COMMISSIONER OF THE AUSTRALIAN FEDERAL POLICE
RESPONDENT
JUDGE:
WEINBERG J
DATE:
8 NOVEMBER 2002
PLACE:
MELBOURNE
REASONS FOR JUDGMENT
This is an application for declaratory and injunctive relief by Mr Ken Ha (also known as Ken Ha Khanh Phong ), a prisoner currently serving a lengthy sentence of imprisonment for an offence involving the importation of a commercial quantity of heroin into Australia. The application is brought against the Commissioner of the Australian Federal Police (“the Commissioner”).
The applicant was not initially represented when he filed his application with the Court. As a result, that application is seriously defective in form. Nonetheless, the issues which the applicant seeks to raise have emerged clearly during the course of the hearing, and the respondent, very properly, has not raised any objections to the form of the initiating document.
In substance, the applicant claims that the Commissioner should be restrained from proceeding to collect a DNA sample from him. The power to collect that sample exists by virtue of recent amendments to the Crimes Act 1914 (Cth) (“the Crimes Act”), and in particular, the introduction of Div 6A Pt 1D. Those amendments enable officers of the Australian Federal Police to collect samples of DNA from persons who are serving sentences following conviction of specific Commonwealth offences. The applicant contends that, to permit a DNA sample to be taken from him, would contravene the agreement between Australia and Hong Kong pursuant to which he was surrendered to this country.
BACKGROUND
The applicant was surrendered to Australia by Hong Kong in December 1997. The basis upon which his extradition was sought was that he would be tried for an offence arising out of the importation into Australia of a commercial quantity of heroin. The offence was said to have been committed between 1 August 1995 and 8 December 1995.
The order for surrender specified that he would be charged with being knowingly concerned in the importation of a prohibited import, or counselling or procuring the importation of a prohibited import. Both the offence of being knowingly concerned, and the offence of counselling or procuring, are contained in s 233B(1)(d) of the Customs Act 1901 (Cth).
When the applicant’s surrender was ordered, Australia gave what is commonly described as a “specialty undertaking” that if he were extradited to this country he would:
“… only be proceeded against for the offence [sic] in respect of which his return is requested or for any lesser offence proved by the facts proved before the court of committal.”
The applicant arrived in Australia on 12 December 1997, and has been in custody since that date. On 30 July 1998 he was committed to stand trial on one charge of being knowingly concerned in the importation into Australia of a prohibited import, namely heroin, contrary to s 233B(1)(d). He pleaded not guilty. For reasons which were never explained before this Court, he was presented for trial in the County Court, at Melbourne, on an indictment alleging that between 14 September 1995 and 8 December 1995 he imported into Australia a quantity of heroin, being not less than a commercial quantity. He was not charged with being knowingly concerned, or with having counselled or procured that importation.
On 11 June 1999 the applicant was convicted, and subsequently sentenced to a term of 16 years with a non-parole period of 12 years. On 29 January 2001 the Victorian Court of Appeal quashed his conviction and ordered that there be a new trial: R v Ken Ha Khanh Phong (unreported, Supreme Court of Victoria – Court of Appeal, Phillips CJ, Brooking and Ormiston JJA, 29 January 2001).
On 5 April 2001 the Commonwealth Director of Public Prosecutions filed over a fresh indictment, this time alleging that the applicant had been knowingly concerned in the relevant importation. On 5 November 2001 the applicant was convicted of that offence. He was subsequently sentenced to a term of 15 years and 3 months imprisonment with a non-parole period of 11 years and 3 months.
On 30 November 2001 the applicant filed an application for leave to appeal against both his conviction and sentence. That application has not yet been heard, and I was informed that it was unlikely to be heard before March 2003.
The request for a DNA sample
By letter dated 13 May 2002, received by the applicant on or about 8 July 2002, Federal Agent J M M Cheshire wrote to the applicant, relevantly, in the following terms:
“Request for a person who is a convicted serious offender to consent to the carrying out of a forensic procedure in accordance with Division 6A Part 1D of the Commonwealth Crimes Act 1914
Dear Mr Ha,
I am Federal Agent James CHESHIRE, a member of the Australian Federal Police.
Having given due consideration to the matters contained within Division 6A of Part 1D of the Commonwealth Crimes Act 1914, I am now required by the provisions of section 23XWJ of the Act to provide you with certain information. After I provide you with that information, you will be requested to consent to the carrying out of what is described as a forensic procedure.
Accordingly I offer the following information in compliance with those provisions:
a)The forensic procedure for which this consent is requested is for the purpose of obtaining a sample for analysis in order to provide your DNA profile to CrimTrac.
b)This matter is in relation to an offence contrary to Section 233B(1)(B) [sic] of the Customs Act 1901.
c)The forensic procedure required is a buccal swab which involves the taking a sample of your saliva, with a sterile cotton bud.
d)The sample taken from you may provide evidence against you which may be used in a court of law.
e)The proposed forensic procedure will be carried out by an appropriately qualified person as required by the Act.
f)You may refuse to consent to the carrying out of the forensic procedure.
g)If you do not give consent, or withdraw that consent:
a.where the procedure involved the taking of fingerprints or a hair sample, another police officer may authorise the taking of the fingerprints or the hair sample; and/or
b.where the procedure involves the taking of a sample of blood or a buccal swab, an application may be made to a Magistrate to authorise such a procedure.
h)…
i)If you refuse or fail to consent, or withdraw your consent after initially having given it, evidence of that refusal, failure or withdrawal cannot be used against you in court proceedings, unless an allegation is made that police investigating this matter acted contrary to the law in conducting their investigations.
j)…
k)…
l)Information obtained from any analysis of forensic material obtained from this forensic procedure may be placed on the DNA database and used for the purposes of a criminal investigation or any other purpose that the system is established for.
m)You may give informed consent to a forensic procedure after a constable:
a.requests you to consent to the forensic procedure under section 23XWH; and
b.informs you about the forensic procedure in accordance with section 23XWJ; and
c.gives you the opportunity to communicate, or attempt to communicate, with a legal practitioner of your choice.
Signature of this form does not indicate your consent or otherwise to the forensic procedure, it is to acknowledge that I have given you this information to assist in your considerations on the matter. You will know be given a period of time to seek legal advice should you so desire and to consider this request. A copy of this form will be made available to you as soon as practicable.”
Enclosed with the letter was a document entitled “DNA Samples and the Law – A Guide for Commonwealth Prisoners”. That document stated, inter alia:
“Information obtained from a sample will be retained on a national DNA database. This information may assist police to resolve serious crime and may also aid in the detection of future offenders. Likewise, a recorded DNA sample can be utilised to eliminate a suspect for a particular offence.”
The document also set out a short précis of the rights of prisoners to decline consent to the carrying out of the forensic procedure. It referred, in particular, to s 23XWP(4) of the Crimes Act which states:
“An offender ordered to permit the carrying out of a forensic procedure is guilty of an offence if the offender, without reasonable excuse, refuses or fails to permit the forensic procedure to be carried out.”
The document did not refer to the maximum penalty for a contravention of that section which is imprisonment for 12 months.
The application to this Court
On 11 July 2002 the applicant appeared in person before Heerey J, as duty judge, seeking an interlocutory injunction restraining the Australian Federal Police from taking the DNA sample from him. His Honour ordered that, until the hearing and determination of this application, or further order, the respondent be restrained from taking any steps pursuant to Div 6A of Pt 1D of the Crimes Act to carry out forensic procedures in respect of the applicant.
The competing submissions before this Court
The applicant was represented at the hearing of this matter by pro bono counsel, Mr WB Zichy-Woinarski QC with Mr G Connellan. Mr Woinarski advanced two submissions on behalf of his client. The first and primary submission, put simply, was that the proposed taking of a DNA sample from the applicant would violate what is commonly known as “the doctrine of specialty”.
The word “specialty” is sometimes spelt as “speciality”. According to Garner’s Dictionary of Modern Legal Usage, “specialty” is American usage, to be contrasted with English usage. However, in A Jones, Jones On Extradition and Mutual Assistance (London, Sweet & Maxwell, 2001) at par [2-048] it is accepted that English usage also adopts the spelling “specialty”: see generally R v Hong Phuc Truong [2002] VSCA 27 at par [2] per Ormiston JA.
The doctrine requires that a person surrendered to a requesting state not be detained, prosecuted, or punished for any offence committed prior to surrender, other than for which extradition was granted, unless the requesting state has first allowed the person adequate opportunity to again leave that state. It is one of long standing. Its rationale is that where extradition is granted for specific offences – in accordance with the requested state’s laws governing extraditable offences, double criminality and non-extradition for political or other proscribed offences – it would amount to an abuse of process if the person surrendered were prosecuted for other, unrelated, offences: see E P Aughterson, Extradition Australian Law and Procedure (LBC, 1995) at 83–84.
Historically, there has been considerable disagreement regarding the underlying purpose of the doctrine. On one view, it serves only to protect the interests of the surrendering state, and cannot be invoked by an accused in answer to a charge. That debate may fairly be regarded as somewhat sterile. In recent years, United States courts have accepted that an accused has standing to raise any objection to prosecution, or the extradition process, that the surrendering state might have raised. In that sense, the rights of the accused in relation to specialty are derivative in nature. Australian courts too have held that the accused is entitled to have the provisions of the Extradition Act requiring the requesting state to give a specialty assurance observed: see Barton v The Commonwealth (1974) 131 CLR 477 at 500 per Mason J; Foster v Minister for Customs and Justice (1999) 164 ALR 357 at 367 per Drummond J; R v Ken Ha Khanh Phong supra and Hong Phuc Truong (supra). Moreover, in Zoeller v Federal Republic of Germany (1988) 19 FCR 64 it was held that a specialty assurance needs to be clear and unambiguous.
The doctrine finds statutory expression in modern extradition legislation. For example, in the United Kingdom par 1(3) of Schedule 1 to the Extradition Act 1989 re-enacts s 3(2) of the Extradition Act 1870:
“A fugitive criminal shall not be surrendered to a foreign state unless provision is made by the law of that state, or by arrangement, that the fugitive criminal shall not, until he has had an opportunity of returning to Her Majesty’s dominions, be detained or tried in that foreign state for any offence committed prior to his surrender other than the extradition crime for which the surrender is grounded.”
Paragraph [17] of the Schedule provides similar protection for a person surrendered to the United Kingdom.
Article XII of the treaty of 1972 between the United Kingdom and the United States declares that a person extradited “shall not be detained or proceeded against” in the territory of the requesting party for any offence other than an extraditable offence established by the facts in respect of which his extradition has been granted, or on account of any other matters.
In Jones On Extradition and Mutual Assistance (supra) at pars [2-058]–[2-078] there is a detailed analysis of some of the difficulties which have arisen in relation to the application and enforcement of specialty law – note in particular United States v Rauscher 119 US 407 (1886); Re Arton (No 1) [1896] 1 QB 108 and Re Arton (No 2) [1896] 1 QB 509.
In Fiocconi v Attorney-General of the United States 402 F.2d 475 (1972) the Court of Appeals of the Second Circuit considered the case of two French citizens, extradited from Italy to the United States to be tried in Massachusetts for conspiracy to import heroin. Although, there was an extradition treaty between Italy and the United States, it did not apply to narcotics offences. However, an agreement existed between the two governments pursuant to which the two defendants were surrendered as an act of comity. After their release on bail in Massachusetts, the defendants were taken to New York and charged with a series of drug offences, none of which had been laid before the Italian authorities prior to surrender. The Court of Appeals accepted that the protection of specialty applied, but refused habeas corpus in the particular circumstances. This case is said to reflect the modern approach to specialty in the United States.
In Australia, the doctrine is given statutory expression in s 42 of the Extradition Act 1988 (Cth) (“the Extradition Act”) which is in the following terms:
“42. Where an extraditable person in relation to Australia is surrendered to Australia by a country (other than New Zealand), the person shall not, unless he or she has left, or has had the opportunity of leaving, Australia or, in a case where the person was surrendered to Australia for a limited period, has been returned to the country:
(a) be detained or tried in Australia for any offence that is alleged to have been committed, or was committed, before the surrender of the person, other than:
(i)any offence in respect of which the person was surrendered or any other offence (being an offence for which the penalty is the same or is a shorter maximum period of imprisonment or other deprivation of liberty) of which the person could be convicted on proof of the conduct constituting any such offence; or
(ii)any other offence in respect of which the country consents to the person being so detained or tried, as the case may be; or
(b)be detained in Australia for the purposes of being surrendered to another country for trial or punishment for any offence that is alleged to have been committed, or was committed, before the surrender of the person to Australia, other than any other offence in respect of which the country that surrendered the person to Australia consents to the person being so detained and surrendered.”
Section 42 must be read subject to s 11(1) of that Act which provides:
“(1) The regulations may:
(a)state that this Act applies in relation to a specified extradition country subject to such limitations, conditions, exceptions or qualifications as are necessary to give effect to a bilateral extradition treaty in relation to the country, being a treaty a copy of which is set out in the regulations; or
(b)make provision instead to the effect that this Act applies in relation to a specified extradition country subject to other limitations, conditions, exceptions or qualifications, other than such limitations, exceptions or qualifications as are necessary to give effect to a multilateral extradition treaty in relation to the country.”
The effect of s 11(1) is to enable the Executive to modify the operation of the Act in relation to certain countries by agreement between Australia and those countries: Winkler v DPP (1990) 25 FCR 79 at 90; Papazoglou v Republic of the Philippines (1997) 74 FCR 108; and Federal Republic of Germany v Parker (1998) 101 A Crim R 234 at 238. Hong Kong is one such country. The Extradition (Hong Kong) Regulations 1997 (Cth) provide for the surrender of accused and convicted persons between the Government of Australia and the Government of Hong Kong in accordance with an agreement which is contained in a schedule to the regulations.
Article 18 of that agreement sets out what is described as a “Rule of Specialty”. It is in the following terms:
“ARTICLE 18
RULE OF SPECIALTY(1) A person who has been surrendered shall not be proceeded against, sentenced or detained with a view to carrying out of any sentence for any offence committed prior to surrender other than:
(a) the offence in respect of which return is ordered;
(b)any lesser offence, however described, disclosed by the facts in respect of which return was ordered provided such an offence is an offence for which the person sought can be returned under this Agreement;
(c)any other offence being an offence for which surrender may be granted under this Agreement in respect of which the requested Party consents to the person being dealt with;
unless that person has first had an opportunity to leave Australia or Hong Kong, as the case may be, and has not done so within forty days of having been free to leave or has returned after having left.
(2) A Party whose consent is requested under paragraph (1)(c) may require the submission of any document or statement mentioned in Article 9.”
Mr Woinarski submitted that the undertaking contained in art 18 prohibited the taking by the Commissioner of a DNA sample from the applicant. That was because the taking of such a sample, in circumstances where it may have related to an offence committed prior to his surrender, would be tantamount to proceeding against the applicant for such an offence. He submitted that there was nothing to suggest that the applicant had committed any offence since his surrender to this country in December 1997, and that it was inherently unlikely that he had done so. In those circumstances, any DNA sample taken from the applicant which led to the laying of charges against him would, it was submitted, contravene art 18. That is because the laying of such charges would relate to offences committed prior to the applicant’s surrender.
Mr Woinarski’s argument was developed by a careful and detailed analysis of the statutory regime established by Div 6A of Pt 1D. I trust that I do no disservice to his argument by not setting out, in all its elaborate detail, the structure of this new regime. For reasons which will shortly become apparent, it is unnecessary to do so.
The doctrine of specialty, at common law, has been codified by the enactment of s 42 of the Extradition Act and, in relation to Australia and Hong Kong, art 18. That article prohibits both countries party to the agreement from:
·proceeding against a person who has been surrendered for any offence committed prior to surrender;
·sentencing such a person for such an offence; or
·detaining such a person with a view to carrying out such a sentence.
Mr Woinarski’s submission requires that art 18 be construed as though it prohibited not merely proceeding against, sentencing and detaining a person surrendered, but also carrying out investigative procedures which might lead to one or more of those consequences. A major difficulty with that argument is that it requires words to be read into art 18 which are conspicuously absent. The concept of “proceeding against” plainly suggests an application of a curial nature and in context, connotes the institution of criminal proceedings. Although the word “proceeding” is not generally regarded as being confined to applications to the court, that word, read in conjunction with the surrounding language used in this case, has that connotation. It does not suggest the use of investigative procedures which are logically anterior to the institution of such a proceeding.
In that sense, Mr Murphy, counsel for the respondent, was clearly correct when he submitted that the application before this Court had been brought prematurely. The specialty undertaking would only be contravened, if at all, were the DNA sample to be used to prosecute the applicant for an offence committed prior to his surrender.
Mr Woinarski submitted that to construe art 18 in this way would diminish significantly the protection afforded by Parliament to a prisoner convicted of a serious offence, from whom a DNA sample was sought. He contended that, unless the Court enjoined the Commissioner from pursuing the sample, the applicant would be placed in the invidious position of having to choose between complying with the request made by Mr Cheshire, or facing the possibility of an additional 12 months’ imprisonment. Indeed, Mr Woinarski submitted, there could be further requests, each of which could lead to a further 12 months’ imprisonment.
The difficulty with that submission is, as I have indicated, that art 18 is not expressed in sufficiently broad terms to allow the proscriptions which it contains to override the wide powers conferred by the Crimes Act.
Had s 42 of the Extradition Act not been modified by the operation of art 18, pursuant to s 11(1), there would have been greater force in Mr Woinarski’s submission. It might then have been possible to argue that the prohibition in s 42 upon detaining a person for any offence alleged to have been committed before the surrender of that person, which was separate from the prohibition upon trying such a person, carried with it a prohibition upon the exercise of coercive powers of investigation. It might have been argued that these coercive powers included the taking of a DNA sample under threat of prosecution. However, the narrower language of art 18 stands in stark contrast with the much broader language of s 42.
I am fortified in my conclusion that the doctrine of specialty does not preclude the use of coercive investigatory powers by a decision of the First Circuit Court of Appeals to which Mr Woinarski very fairly drew my attention. In United States v Saccoccia 58 F.3d 754 (1995), the issue was whether the principle of specialty prevented an application from being made for the forfeiture of the assets of a person convicted of racketeering and money laundering. The Court held that the principle does not impose any limitation on the particulars of the charges laid by the requesting state, nor does it demand any departure from that state’s existing rules of practice and procedure. It rejected the contention that forfeiture was tantamount to prosecution and conviction for an offence on which extradition was neither sought nor granted. Consequently, an accused could be subjected to a forfeiture order even if extradition had not been granted in respect to the forfeiture allegations.
It should be noted that Aughterson at 83 draws attention to Ahmad v Wigen 726 F Supp 389 in which it was suggested that, by an extension of the doctrine of specialty, the requested state is entitled to seek assurances from the requesting state that, following return, the person “would not be tortured or otherwise coerced into confessing and that he would receive a fair trial by a civilian tribunal”. It is clear, however, that in the present case, no assurance of any kind was sought by Hong Kong from Australia regarding the use of coercive investigative procedures, including the obtaining of a DNA sample. The only undertaking given was in accordance with the terms of art 18.
It follows that Mr Woinarski’s primary submission regarding the effect of the doctrine of specialty must be rejected. There is no basis upon which the Commissioner should be enjoined from proceeding to request a DNA sample from the applicant, assuming that the requirements of the Crimes Act are otherwise met.
That takes me to Mr Woinarski’s alternative submission. He contended that, in formulating his letter of request, Mr Cheshire had failed to comply with certain requirements of s 23XWJ of the Crimes Act. He further contended that a breach of those requirements rendered the request invalid: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355.
Section 23XWJ relevantly provides:
23XWJ Matters that offender must be informed of before giving consent
(1) The constable must inform the offender of the following:
(a) the purpose for which the forensic procedure is required;
(b)if the constable wants the forensic procedure carried out in relation to an offence—the offence concerned;
(c) the way in which the forensic procedure is to be carried out;
(d) that the forensic procedure may produce evidence against the offender that might be used in a court of law;
…
(g)that the offender may refuse consent to the carrying out of the forensic procedure;
(h)the consequences of not consenting, as specified in subsection (2) or (3) (whichever is applicable);
…
(j) that information obtained from analysis of forensic material obtained may be placed on the DNA database system and used for the purposes of a criminal investigation or for any other purpose for which the DNA database system may be used under Division 8A.
…
(3)The constable must inform a serious offender requested to undergo an intimate forensic procedure to which this Division applies that, if the serious offender does not consent, an application may be made to a magistrate for an order authorising the carrying out of the forensic procedure.”
Mr Woinarski submitted that Mr Cheshire’s letter of 13 May 2002 failed to inform the applicant of the matter referred to in s 23XWJ(1)(b) above, namely whether “the constable wants the forensic procedure carried out in relation to an offence – the offence concerned”.
Plainly, Mr Cheshire was of the view that the word “offence” in s 23WXJ(1)(b) referred to the offence which gave rise to the applicant being what is defined in s 23WA as a “serious offender”. Because the applicant is under sentence for what is defined as a “serious offence” (meaning an offence under the law of the Commonwealth punishable by a maximum penalty of imprisonment for life or 5 or more years) he is a “serious offender”. Mr Cheshire assumed that he was required to inform the applicant of the basis upon which he was regarded as having that status. Indeed, Mr Cheshire confirmed that this was his understanding in an affidavit which he swore in this proceeding. In that affidavit he said:
“5.On 8 July 2002 the AFP were served with an Application for Judicial Review in Federal Court proceeding number V430 of 2002. It was only after receipt of those papers that I became aware that the offence identified in the letter forwarded to the Applicant on 27 May 2002 made reference to a conviction that had been quashed. The Forensic Procedures letter should have referred to the Applicant’s conviction for the offence of being knowingly concerned in the importation of heroin contrary to section 233B(1)(d) for which the Applicant was convicted on 16 November 2002 and not to the previous conviction for importation of heroin contrary to section 233B(1)(b) of the Customs Act 1901.”
Mr Woinarski submitted that Mr Cheshire had plainly misunderstood the nature of the obligation imposed upon him under s 23XWJ(1)(b). The “offence” referred to in that paragraph had to be an offence other than the offence for which he had been convicted. The structure of the section, and in particular, the use of the word “wants”, in juxtaposition with the expression “in relation to an offence” made it clear that the constable was obliged to inform the applicant not of the offence of which he had been convicted, but of any other offence in relation to which he wanted the forensic procedure carried out. There was no other sensible reason for using the word “want” in that context.
After initially resisting this construction of the relevant paragraph, Mr Murphy conceded that Mr Cheshire had, indeed, misunderstood the relevant provision. He also conceded that it must follow that Mr Cheshire’s letter failed to comply with the requirements of the Act. It was a precondition to the taking of a sample of the applicant’s DNA, by order from a judge or magistrate, that the information specified in s 23XWJ(1) be provided. Mr Murphy was asked whether, in those circumstances, the respondent would resist the making of a declaration to that effect. He said that there would be no objection to such a declaration provided that it did not preclude a further letter from being sent to the applicant which complied with the requirements of the section.
Although the application to this Court filed by the applicant did not seek a declaration in these terms, it plainly sought both injunctive and declaratory relief. The Court has power to grant a declaration regarding the rights of the parties, pursuant to ss 19 and 21 of the Federal Court of Australia Act 1976 (Cth), provided there is utility in doing so. I propose to exercise my discretion in favour of granting a declaration regarding the invalidity of the letter sent by Mr Cheshire because of its failure to provide the information required by s 23XWJ. However, I should emphasise that there is no impediment to the preparation of a further letter which complies with the requirements of that section.
The applicant has had a limited measure of success in this proceeding. However, he has failed in his primary aim, which was to prevent the respondent from proceeding to obtain a DNA sample from him. His argument based upon the doctrine of specialty was wholly unsuccessful. In the circumstances, I consider that there should be no order as to costs.
I certify that the preceding forty-six (46) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Weinberg . Associate:
Dated: 8 November 2002
Counsel for the Applicant: Mr B. Zichy-Woinarski QC and Mr G.T. Connellan appeared pro bono Counsel for the Respondent: Mr T.P. Murphy Solicitor for the Respondent: Commonwealth Director of Public Prosecutions Date of Hearing: 1 November 2002 Date of Judgment: 8 November 2002
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