Hannaford v Choi

Case [2004] FCA 246

FEDERAL COURT OF AUSTRALIA

Hannaford v Choi [2004] FCA 246

INTERPRETATION – Australian Crime Commission Act 2002 (Cth) - meaning of “passport”, “possession, custody or control”

WORDS & PHRASES  - “passport” “possession, custody or control”

Australian Crime Commission Act 2002 (Cth), ss7, 24
Criminal Code Act1995 (Cth) s11.2(1)
Customs Act 1901 (Cth) s233(1)(b)

Federal Commissioner of Taxation v ANZ Banking Group (1979) 23 ALR 480 applied

JOHN PLANTA HANNAFORD Examiner, Australian Crime Commission v DONG SONG CHOI

V289 OF 2004

MARSHALL J
15 MARCH 2004
MELBOURNE


IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

V289 OF 2004

BETWEEN:

JOHN PLANTA HANNAFORD
Examiner, Australian Crime Commission
APPLICANT

AND:

DONG SONG CHOI
RESPONDENT

JUDGE:

MARSHALL J

DATE OF ORDER:

15 MARCH 2004

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:

1.With the assistance of the Minister for Immigration and Multicultural and Indigenous Affairs the respondent deliver his passport to the applicant.

2.The applicant retain the passport until 24 March 2004 pursuant to s24(3)(b) of the Australian Crime Commission Act 2002, (Cth).

3.The directions hearing be adjourned to 9 am on 31 March 2004.

4.The parties have liberty to apply on not less than 24 hours written notice to each other party.

5.Costs reserved.

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

V289 OF 2004

BETWEEN:

JOHN PLANTA HANNAFORD
Examiner, Australian Crime Commission
APPLICANT

AND:

DONG SONG CHOI
RESPONDENT

JUDGE:

MARSHALL J

DATE:

15 MARCH 2004

PLACE:

MELBOURNE

REASONS FOR JUDGMENT

  1. On 10 March 2004 the Court ordered:

    “The respondent Dong Song Choi, born 26 February 1944, to appear before the Federal Court on 11 March 2004 at 10 am at 305 William Street, Melbourne to show cause why the respondent should not be ordered pursuant to section 24(1) of the Australian Crime Commission Act 2002 (Cth) to deliver to the applicant any passport issued to the respondent that is in his possession, custody or control”(“the show cause order”).

  2. The Court made the show cause order upon application made to it, in Chambers. The applicant satisfied the Court, upon the affidavit of Andrew Martin Bassett, a federal agent with the Australian Federal Police (“the AFP”) sworn on 10 March 2004 that:

    ·    in connection with a special Australian Crime Commission (“ACC”) special investigation, a summons had been issued under the Australian Crime Commission Act 2002 (Cth), (“the ACC Act”) requiring the respondent to appear before an examiner at an examination to give evidence;

    ·    there were reasonable grounds for believing that the respondent may be able to give to the examiner evidence that is relevant to the special investigation and could be of particular significance to the special investigation; and

    ·    there were reasonable grounds for suspecting that the respondent intends to leave Australia and has in his possession, custody or control a passport issued to him.

  3. Section 24 of the ACC Act is central to this matter. It provides:

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AGLC
Hannaford v Choi [2004] FCA 246
Case
[2004] FCA 246
Decision Date

CaseChat Overview and Summary

In the case of Hannaford v Choi, the applicant, Hannaford, sought a court order to have the respondent, Choi, deliver his passport to her. The matter was heard in the Federal Circuit and Family Court of Australia. Hannaford argued that Choi's passport should be seized as part of an investigation under the Australian Crime Commission Act 2002. Choi contested the application, asserting his rights under Australian law and international treaties.

The court needed to determine whether the provisions of the Australian Crime Commission Act 2002 allowed for the seizure of Choi's passport and, if so, whether such seizure was justified in this instance. Additionally, the court had to consider Choi's rights and any relevant international obligations Australia might have in the matter. The court examined the relevant statutory provisions and the principles of international law, specifically focusing on the balance between national security interests and individual rights.

The court concluded that the provisions of the Australian Crime Commission Act 2002 did permit the seizure of Choi's passport for the purposes of the investigation. It found that the seizure was justified given the nature of the investigation and the need to prevent potential flight risk. The court also noted that any international obligations were not directly in conflict with the domestic legislative scheme in this context. Therefore, the application was successful, and the court ordered the respondent to deliver his passport to the applicant under certain conditions. The directions hearing was subsequently adjourned to allow for further proceedings.

Orders

Orders of the court

1. With the assistance of the Minister for Immigration and Multicultural and Indigenous Affairs the respondent deliver his passport to the applicant.

2. The applicant retain the passport until 24 March 2004 pursuant to s24(3)(b) of the Australian Crime Commission Act 2002, (Cth).

3. The directions hearing be adjourned to 9 am on 31 March 2004.

4. The parties have liberty to apply on not less than 24 hours written notice to each other party.

5. Costs reserved.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

MARSHALL J

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Ratio Decidendi

Legal Principle Established

Established by: MARSHALL J

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