Phong v Attorney-General for the Commonwealth [2001] FCA 1241

FEDERAL COURT OF AUSTRALIA

Phong v Attorney-General for the Commonwealth [2001] FCA 1241

EXTRADITION - appellant extradited from Hong Kong in respect of an offence under the Customs Act 1901 (Cth) – appellant defendant in proceedings in County Court – appellant initially charged with and convicted of a more serious offence than alleged in extradition request – conviction quashed and retrial granted – challenge to appellant's extradition – challenge to proceedings against appellant – challenge to appellant'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 s 39B of the Judiciary Act 1903 (Cth) – whether the Court has inherent jurisdiction – whether the Court has jurisdiction under s 23 of the Federal Court Act 1976 (Cth) - whether the Court has accrued jurisdiction. PRACTICE AND PROCEDURE - whether the Court should refuse the application on discretionary grounds.

Customs Act 1901 (Cth) s 233B(1)(b) Judiciary Act 1903 (Cth) ss 39B(1), (1A)(c), (1B), (1C) and (3) Extradition Act 1988 (Cth) ss 11, 41, 42 Jurisdiction of Courts Legislation Amendment Act 2000 (Cth) Federal Court of Australia Act 1976 (Cth) ss 21, 23 Acts Interpretation Act 1901 (Cth) s 15AA Crimes Act 1958 (Vic), s 568(2) Law and Justice Legislation Amendment Act 1997 (Vic) Extradition (Hong Kong) Regulations 1997, Art 18 Anthony Hordern & Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1 followed Barton v The Queen (1980) 147 CLR 75 referred to Chief Executive Officer of Customs v Jiang [2001] FCA 145 distinguished Clarke v Commonwealth Director of Public Prosecutions (2000) 99 FCR 294 distinguished Connelly v Director of Public Prosecutions [1964] AC 1254 referred to Day v The Queen (1984) 153 CLR 475 referred to Dietrich v The Queen (1992) 177 CLR 292 applied Director of Public Prosecutions for Nauru v Fowler (1984) 154 CLR 627 applied Frugniet v Victoria (1997) 71 ALJR referred Jago v District Court (NSW) (1989) 168 CLR 23 applied Neeta (Epping) Pty Ltd v Phillips (1974) 131 CLR 286 applied Officer in Charge of Cells, ACT Supreme Court; Re Ex parte Eastman (1994) 68 ALJR 668 applied Saraswati v The Queen (1991) 172 CLR 1 followed Smith v Corrective Services Commission of NSW (1980) 147 CLR 134 referred to Vella v Commissioner of Australian Federal Police (1985) 9 FCR 81 referred to Walton v Gardiner (1992) 177 CLR 378 applied