Phong v Attorney-General for the Commonwealth - [2001] FCA 843

FEDERAL COURT OF AUSTRALIA
Phong v Attorney-General for the Commonwealth [2001] FCA 843
EXTRADITION - Applicant extradited from Hong Kong in respect of an offence under the Customs Act 1901 (Cth)- Applicant defendant in proceedings in County Court - Applicant initially charged with and convicted of a more serious offence than alleged in extradition request – Retrial ordered – Challenge to applicant’s extradition – Challenge to proceedings against applicant – Challenge to applicant’s sentence and detention – Writ of habeas corpus – Injunction
PRACTICE AND PROCEDURE – Whether the Court has jurisdiction to deal with the application – Whether the Court has jurisdiction pursuant to s39B of the Judiciary Act 1903 (Cth) – Whether the Court has inherent jurisdiction – Whether the Court has jurisdiction under s23 of the Federal Court Act 1976 (Cth) – Whether the Court has accrued jurisdiction
Customs Act 1901 (Cth) s233B(1)(b)
Judiciary Act 1903 (Cth) s39B
Extradition Act 1988 (Cth)
Federal Court of Australia Act 1976 (Cth) s23
Clarke v Commonwealth Director of Public Prosecutions [2000] FCA 849, (2000) 99 FCR 294 followed
Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia [1998] HCA 30; (1998) 195 CLR 1 at [35] applied
Jackson v Stirling Industries Ltd (1987) 162 CLR 612 applied
Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 referred to
KEN HA KHANH PHONG -v- ATTORNEY-GENERAL FOR THE COMMONWEALTH, COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS, COMMONWEALTH OF AUSTRALIA and GROUP 4 CORRECTION SERVICES PTY LTD (ACN 050 069 255)
V 644 OF 2001
MARSHALL J
MELBOURNE
27 JUNE 2001

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

V 644 OF 2001

BETWEEN:

KEN HA KHANH PHONG
APPLICANT

AND:

ATTORNEY-GENERAL FOR THE COMMONWEALTH
FIRST RESPONDENT

COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS
SECOND RESPONDENT

COMMONWEALTH OF AUSTRALIA
THIRD RESPONDENT

GROUP 4 CORRECTION SERVICES PTY LTD (ACN 050 069 255)
FOURTH RESPONDENT

JUDGE:

MARSHALL J

DATE OF ORDER:

27 JUNE 2001

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:
1.The application be dismissed.
2.The applicant pay the respondents’ costs of the application, including reserved costs, to be taxed in default of agreement.

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

V 644 OF 2001

BETWEEN:

KEN HA KHANH PHONG
APPLICANT

AND:

ATTORNEY-GENERAL FOR THE COMMONWEALTH
FIRST RESPONDENT

COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS
SECOND RESPONDENT

COMMONWEALTH OF AUSTRALIA
THIRD RESPONDENT

GROUP 4 CORRECTION SERVICES PTY LTD
(ACN 050 069 255)
FOURTH RESPONDENT

JUDGE:

MARSHALL J

DATE:

27 JUNE 2001

PLACE:

MELBOURNE

REASONS FOR JUDGMENT

On 8 June 2001 the applicant applied to the Court for relief against the respondents, including the issuing of a writ of habeas corpus, an injunction and declarations.
Factual Background
The applicant is scheduled to be tried in the County Court of Victoria on 30 July 2001 pursuant to an indictment filed on 1 February 2001 (“the 2001 Indictment”). The charge is in the following terms:
“between 14th day of September 1995 and the 8th day of December 1995, at Melbourne in the State of Victoria, Ken Ha Khanh Phong contrary to paragraph 233B(1)(d) of the Customs Act 1901, was knowingly concerned in the importation into Australia of prohibited imports to which section 233B of the said Act applies, namely narcotic goods consisting of a quantity of heroin being not less than a commercial quantity.”
The applicant was previously charged upon an indictment dated 14 October 1998 (“the 1998 Indictment”) with an offence against s233B(1)(b) of the Customs Act 1901. The 1998 Indictment referred to the importation of prohibited imports being narcotic goods consisting of not less than a commercial quantity of heroin. The applicant was convicted of that offence in the County Court of Victoria.
On 29 January 2001, the Court of Appeal of the Supreme Court of Victoria made the following orders upon the applicant’s application for leave to appeal against the conviction and ensuing sentence arising from the 1998 Indictment:
“1. The application for leave to appeal against conviction is granted, the appeal treated as instituted, heard instanter and allowed.
2. The conviction sustained by the applicant in the Court below is quashed and the sentence thereon is set aside.
3. The Court directs a new trial of the applicant upon a charge of being knowingly concerned in the importation into Australia of a prohibited import to which s233B of the Customs Act 1901 of the Commonwealth applied be heard.”
At the hearing before the Court of Appeal, counsel for the Crown did not oppose the making of the orders. The reason for so doing is that the 1998 Indictment contained a more serious charge than the alleged offence for which the applicant had been extradited to Australia from Hong Kong in 1996.
The applicant was arrested in Hong Kong in February 1996 and taken into custody there in reliance upon a Provisional Warrant of Arrest dated 17 February 1996. The charge referred to in the Provisional Warrant was as follows:
“There being evidence that Ken HA Khanh Phong (also known as Ken HA) is accused of the offence of being knowingly concerned with the importation into Australia of a dangerous drug, namely heroin against the law of Australia and that the offence is a relevant offence as defined in section 3 of the Fugitive Offenders Act 1967”.
After the arrest of the applicant, the Commonwealth requested that the Government of Hong Kong surrender the applicant for extradition to Australia. The extradition request was granted after Australia undertook to only proceed against the applicant for the offence in respect of which his return was required or for any lesser offence.
The charge based on the 1998 Indictment alleged a more serious offence than the offence in respect of which the applicant’s return to Australia was requested.
At the hearing of the application for leave to appeal before the Court of Appeal, counsel for the applicant did not oppose the Court of Appeal’s making of the orders which it made on that day.
On 13 June 2001, the applicant’s solicitors wrote to the Registrar of the Court of Appeal seeking a re-listing of the appeal to consider submissions that the Court of Appeal revisit the orders it made on 29 January 2001. The letter was accompanied by an outline of submissions. In those submissions it was said that the Court of Appeal had no power to order that there be a new trial upon any offence other than the offence upon which the applicant had been convicted. It was submitted that the Court of Appeal should set aside that part of its 29 January 2001 order which ordered a new trial. Instead it was contended that there should be an order for an acquittal.
The Court of Appeal declined the applicant’s request for a further hearing of the appeal. It did so in a letter dated 18 June 2001 which provided as follows:
“Dear Sirs
R. v. Ken Ha Khanh Phong
The Court has received your letter in this matter seeking a rehearing or further hearing of the appeal upon which your client succeeded on 29 January, 2001 accompanied by an outline of counsel’s submissions. The only members of the Court presently within the jurisdiction, Brooking and Ormiston, JJ.A., have instructed me to answer your request as follows.
The principal matter raised, namely the making of an order for a new trial on the charge of being knowingly concerned in the importation of a prohibited import into Australia, was the subject of discussion between the Bench and counsel when the application came on for hearing, although the transcript covers only discussion after effective agreement had been reached by the parties as to the form of the order. As may be seen from that part of the discussion which does appear on the transcript, senior counsel then instructed by you acquiesced in the making of an order for a new trial. No reasons were formally given for the Court’s orders. The Crown conceded that the argument based on the operation of the Commonwealth Extradition Act 1988 meant that the conviction on the count of importing the drug into Australia had to be quashed, but at the same time your counsel agreed that the appropriate order was that a new trial be directed on the count for which he was in fact extradited to this country. No application was made for an order that a verdict of acquittal be entered on the Importation Count. The count on which the Court directed a new trial was a different count, although it was the count on which your client had been committed for trial originally. Your client’s counsel did not seek to persuade the Court that a verdict of acquittal be entered or that it refrain from directing a trial on the proper count, although the discussion revealed that both counsel and the Bench contemplated that an order should be made for a “new trial”, which both parties saw as being appropriate.
It was the fact that both parties saw it as appropriate, not merely to allow the appeal and quash the conviction, but also to make an order for a new trial, without there being any argument on either issue, that led the Court to state its conclusion without any additional reasons. If there had been any argument, the Court would have delivered reasons as to any matters in contention, but that was not the case.
It should be distinctly stated, that all three members of the Court had, before the hearing began, considered and discussed the question of power to order the appellant to be tried on a count of being knowingly concerned and formed the clear view that the Court had this power. Once the Court convened, there was never any suggestion by counsel for the appellant that the power did not exist or should not be exercised. Nothing in the submission now made raises any doubt in the minds of Brooking, J.A. and Ormiston, J.A. about the existence of the power or the appropriateness of its exercise.
Accordingly the Court does not propose to reconvene for the purpose of hearing any further application adumbrated by your letter or to deliver further reasons.
I am sending a copy of this letter to the Commonwealth Director of Public Prosecutions for his information.
Yours faithfully
PHILIP L. CAIN
REGISTRAR, COURT OF APPEAL”
The Relief Sought
The applicant sought the following relief before this Court:
“1.A declaration that upon the surrender of the applicant by the Government of Hong Kong to Australia on 5 December 1997 (“the surrender”) the first, second and third respondents, and each of them, by reason of the provisions of subsection 11(1) of the Extradition Act 1988 (“the Act”), section 42 of the Act and the Extradition (Hong Kong) Regulations 1997 (“the Regulations”), were not and are not lawfully entitled to cause or permit the applicant to be:
(a)       proceeded against;
(b)       sentenced;
(c)       detained with a view to the carrying out of any sentence;
for any offence alleged to have been committed prior to the surrender other than the following offences (“the specified offences”):
(i)That on 8th day of December 1995, the applicant was knowingly concerned in the importation into Australia of a prohibited import to which section 233B of the Customs Act 1901 applied, namely narcotic goods consisting of a quantity of heroin contrary to section 233B(1)(d) of the Customs Act 1901.
(ii)Any lesser offence, however described, disclosed by the facts in respect of which return was ordered.
2.A declaration that the first, second and third respondents or one or more of them, caused or permitted the applicant to be:
(a)       proceeded against;
(b)       sentenced;
(c)       detained with a view to the carrying out of a sentence;
for an offence other than one of the specified offences, in that:
(i)the applicant was upon Indictment dated 14 October 1998 (“the 1998 Indictment”) charged that between the 14th day of September 1995 and the 8th day of December 1995, at Melbourne in the State of Victoria he contrary to paragraph 233B(1)(b) of the Customs Act 1901, did import into Australia prohibited imports to which section 233B of the Customs Act applies, namely narcotic goods consisting of a quantity of heroin being not less than a commercial quantity;
(ii)arraigned before the County Court at Melbourne on 4 November 1998 and tried upon the 1998 indictment;
(iii)convicted upon the 1998 indictment and sentenced to a term of imprisonment;
(iv)detained with a view to the carrying out of the said sentence.
3.        A declaration that
(a)the request for extradition pursuant to which the applicant was surrendered by the Government of Hong Kong to Australia on 5 December 1997 (“the Request”);
(b)the surrender of the applicant by the Government of Hong Kong to Australia on 5 December 1997;
(c)       the purported extradition of the applicant to Australia;
is and was at all material times:
(i)        a nullity and of no lawful force of effect;
(ii)further or alternatively, an abuse of process under the Act.
4.Further or alternatively, a declaration that the first, second and third respondents and each of them were not lawfully entitled to detain or try the applicant upon the 1998 Indictment unless he had been accorded an opportunity to leave Australia, as provided by section 42 of the Act and the Regulations.
5.A declaration that the Indictment filed in the County Court at Melbourne 1 February 2001 (“the 2001 Indictment”) whereby the applicant is charged that between 14th day of September 1995 and the 8th December 1995 at Melbourne in the State of Victoria he, contrary to paragraph 233B(1)(d) of the Customs Act 1901, was knowingly concerned in the importation into Australia of prohibited imports to which section 233B of the Customs Act applies, namely narcotic goods consisting of a quantity of heroin being not less than a commercial quantity, is and was at all material times:
(a)       a nullity and of no lawful force or effect;
(b)       further or alternatively, an abuse of process under the Act.
6.        A declaration that the applicant is and has been at all times since:
(a)the date of his arrest in Hong Kong upon the Request on 17 February 1996;
(b)alternatively, the date of the surrender
unlawfully detained and imprisoned.
7.A declaration that by reason of the contravention by the first, second and third respondents, or one or more of them, of the provisions of section 42 of the Act as limited by the provisions of the Regulations:
(a)The first, second and third respondents and each of them do not have any lawful right or power to:
(i)        proceed against the applicant;
(ii)       sentence the applicant
(iii)detain the applicant with a view to the carrying out of any sentence;
for the offence which is the subject of the 2001 Indictment, or for any other offence alleged to have been committed by him before the surrender.
(b)by reason of the said contravention by the first, second and third respondents, or one or more them, the applicant is now unlawfully detained and imprisoned.
8.An order that the respondents do show cause as to why a Writ of Habeas Corpus directing the immediate release and discharge of the applicant from imprisonment should not issue forthwith.
9.A declaration that the applicant is entitled to have the opportunity of leaving Australia within a period of 40 days following the date upon which he is released and discharged from detention and imprisonment.
10.An injunction restraining the first, second and third respondents and each of them from proceeding against the applicant upon the 2001 Indictment or any charge for any other offence that is alleged to have been committed by the applicant before the date of the surrender.
11.      Damages for false imprisonment.
12.      Costs.”
Jurisdiction
With the agreement of the parties, the Court heard submissions on the question of whether it had jurisdiction to deal with the application before hearing submissions on the merits of the application. Mr Monotti of counsel appeared for the applicant in the proceeding (although Mr Monotti did not appear for the applicant in the previous County Court and Supreme Court proceedings). Mr Lorkin of counsel appeared with Ms Mortimer of counsel for the first and third respondent. Mr Bell QC of counsel appeared with Mr Barry of Counsel for the second respondent. Mr O’Meara of counsel appeared for the 4^th respondent.
Mr Monotti contended that the Court had jurisdiction to deal with the application pursuant to s39B(1) of the Judiciary Act 1903 (Cth) (“the Judiciary Act”) which gives the Court jurisdiction “with respect to any matter in which ... an injunction is sought against an officer or officers of the Commonwealth”. He contended that the Court had jurisdiction to consider the question of whether s42 of the Extradition Act 1988 (Cth) (“the Extradition Act”) had been complied with by the first, second and third respondents.
Mr Bell submitted that s39B(1C) of the Judiciary Act provides a relevant exception to the jurisdiction which may otherwise have been sourced in s39B(1) of the Judiciary Act. Section 39B(1C) of the Judiciary Act provides that:
“Subject to subsection (1D), at any time when:
(a)a prosecution for an offence against a law of the Commonwealth, a State or a Territory is before a court of a State or Territory; or
(b)an appeal arising out of such a prosecution is before a court of a State or Territory;
the following apply:
(c)the Federal Court of Australia does not have jurisdiction with respect to any matter in which the person who is or was the defendant in the prosecution seeks a writ of mandamus or prohibition or an injunction against an officer or officers of the Commonwealth in relation to a related criminal justice process decision;
(d)the Supreme Court of the State or Territory in which the prosecution or appeal is before a court is invested with, or has conferred on it, jurisdiction with respect to any such matter.”
Mr Bell contended that in this proceeding the applicant is a person who is a defendant in a prosecution for an offence against a law of the Commonwealth before a court of a State and who is seeking an injunction against an officer of the Commonwealth in relation to a related criminal justice process decision.
Section 39B(3) of the Judiciary Act 1903 (Cth) defines “related criminal justice process decision”, so far as is material, as follows:
“related criminal justice process decision, in relation to an offence, means a decision (other than a decision to prosecute) made in the criminal justice process in relation to the offence, including:
(a)a decision in connection with the investigation, committal for trial or prosecution of the defendant;”
Mr Bell submitted that an injunction is sought by the applicant in relation to the prosecution of the applicant as a defendant in the County Court of Victoria. Mr Lorkin supported Mr Bell’s submissions on this issue.
In Clarke v Director of Public Prosecutions [2000] FCA 849, (2000) 99 FCR 294 (“Clarke”) Moore J held that jurisdiction under s39B of the Judiciary Act was not properly invoked in circumstances where prohibition and an injunction were sought to restrain the Director of Public Prosecutions from maintaining a prosecution against the applicant in that proceeding.
At [17] his Honour said:
“...while the precise legal character of the act or conduct which is sought to be impugned is not entirely clear, it is nonetheless palpably clear from the application that the act or conduct concerns a decision in connection with the prosecution of the applicant which is a “related criminal justice process decision” as defined in s39B(3) of the Judiciary Act ...”

The relief sought in paragraph 10 of the application seeks to restrain the prosecution of the applicant in respect of the 2001 Indictment. I agree with the approach of Moore J in Clarke, and consider that s39B(1C) of the Judiciary Act when read together with s39(3) of that Act, deprives the Court of whatever jurisdiction it may otherwise have had to deal with the current application under s39B(1) of the Act.
Section 39B(1D) of the Judiciary Act does not alter this position as the relevant criminal justice process decision occurred before the filing of the application in this matter. Section 39B(1D) of the Act provides as follows:
“Subsection (1C) does not apply where a person has applied for a writ of mandamus or prohibition, or an injunction, against an officer or officers of the Commonwealth in relation to a related criminal justice process decision before the commencement of a prosecution for an offence against a law of the Commonwealth, or of a State or a Territory.”
Mr Monotti also submitted that the Court had jurisdiction to deal with the application under s39B(1A) of the Judiciary Act because the application was a matter arising under a law made by the Parliament, namely the Extradition Act. Mr Monotti submitted that accordingly the Court had power to grant declaratory relief and issue a writ of habeas corpus.
The difficulty with that submission is that s39B(1A)(c) of the Judiciary Act excludes from the Court’s jurisdiction “a matter in respect of which a criminal prosecution is instituted”. I consider that the application before the Court raises for consideration the validity of the prosecution of the applicant, which is soon to progress to the trial stage before the County Court. The words “in respect of which” suggest a connection between the “matter”, that is the justiciable controversy, and the criminal prosecution. That connection is undoubted in the instant circumstances. One only needs to consider the nature of the relief sought at paragraphs 5, 7, 8 and 9 of the application to establish that point.
Mr Monotti requested the Court to focus on the relevant matter being the Extradition Act and the alleged failure of some of the respondents to comply with s42 of that Act. He submitted that the essential challenge was one made to the extradition process rather than in respect of a criminal prosecution. I reject that submission. The criminal prosecution of the applicant in the County Court with respect to the 2001 Indictment is challenged by the application in this matter. It is unnecessary to consider whether the Court is deprived of what jurisdiction it might have otherwise possessed as a result of the presence of the words “or any other criminal matter” in s39B(1A) of the Judiciary Act.
Mr Monotti submitted that the Court had inherent jurisdiction to deal with the application to prevent an abuse of the Court’s processes. The Court does have power (as distinct from jurisdiction) pursuant to s23 of the Federal Court of Australia Act 1976 (Cth) (“the Federal Court Act”) to ensure the effective exercise of jurisdiction it otherwise possesses; see Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia [1998] HCA 30; (1998) 195 CLR 1 at [35] (“Patrick Stevedores”). The Court does not otherwise possess inherent jurisdiction per se; see Jackson v Stirling Industries (1987) 162 CLR 612 at 630. In any event, Mr Monotti did not identify the processes of the Court that he alleged were being abused.
Reliance to found jurisdiction was also placed by Mr Monotti on ss 21 and 23 of the Federal Court Act. However, those sections confer power on the Court as distinct from jurisdiction. See Patrick Stevedores at [27].
Mr Monotti also placed reliance on the accrued jurisdiction of the Court. However, as Mr Bell submitted, the accrued jurisdiction is not available where there is no arguable substantive jurisdiction to which the accrued jurisdiction can be attached. In other words there is no relevant federal sub-stratum to provide any operation for the Court’s accrued jurisdiction.
Accordingly, in my view this Court is devoid of jurisdiction to entertain the application before it. The application must be dismissed with costs. I note that I have not found it necessary to consider Mr Lorkin’s submission that the matters raised by the applicant are res judicata by reason of the orders of the Court of Appeal or whether the applicant is estopped from bringing the application by reference to the principle discussed in Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589.
The order of the Court is as follows:
1. The application be dismissed.
2. The applicant pay the respondents’ costs of the application, including reserved costs, to be taxed in default of agreement.

I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall.
Associate:
Dated: 3 July 2001

Counsel for the Applicant: Mr B Monotti

Solicitor for the Applicant: Cole &Magazis

Counsel for the 1^st and 3^rd Respondents: Mr E Lorkin with Ms D Mortimer

Solicitor for the 1^st and 3^rd Respondents: Australian Government Solicitor

Counsel for the 2^nd Respondent: Mr K Bell QC with Mr R Barry

Solicitor for the 2^nd Respondent: Director of Public Prosecutions

Counsel for the 4^th Respondent: Mr S O’Meara

Solicitor for the 4^th Respondent: Arthur Robinson Hedderwicks

Date of Hearing: 26 and 27 June 2001

Date of Judgment: 27 June 2001

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 644 OF 2001

BETWEEN:	KEN HA KHANH PHONG APPLICANT
AND:	ATTORNEY-GENERAL FOR THE COMMONWEALTH FIRST RESPONDENT COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS SECOND RESPONDENT COMMONWEALTH OF AUSTRALIA THIRD RESPONDENT GROUP 4 CORRECTION SERVICES PTY LTD (ACN 050 069 255) FOURTH RESPONDENT
JUDGE:	MARSHALL J
DATE OF ORDER:	27 JUNE 2001
WHERE MADE:	MELBOURNE

JUDGE:	MARSHALL J
DATE:	27 JUNE 2001
PLACE:	MELBOURNE

Counsel for the Applicant:	Mr B Monotti
Solicitor for the Applicant:	Cole &Magazis
Counsel for the 1^st and 3^rd Respondents:	Mr E Lorkin with Ms D Mortimer
Solicitor for the 1^st and 3^rd Respondents:	Australian Government Solicitor
Counsel for the 2^nd Respondent:	Mr K Bell QC with Mr R Barry
Solicitor for the 2^nd Respondent:	Director of Public Prosecutions
Counsel for the 4^th Respondent:	Mr S O’Meara
Solicitor for the 4^th Respondent:	Arthur Robinson Hedderwicks
Date of Hearing:	26 and 27 June 2001
Date of Judgment:	27 June 2001