FEDERAL COURT OF AUSTRALIA Ha v Commissioner of the Australian Federal Police [2002] FCA 890 KEN HA v COMMISSIONER OF THE AUSTRALIAN FEDERAL POLICE NO V 430 OF 2002 HEEREY J 11 JULY 2002 MELBOURNE IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY V 430 OF 2002 BETWEEN: KEN HA APPLICANT AND: COMMISSIONER OF THE AUSTRALIAN FEDERAL POLICE RESPONDENT JUDGE: HEEREY J DATE OF ORDER: 11 JULY 2002 WHERE MADE: MELBOURNE THE COURT ORDERS THAT: 1. 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 1914 (Cth) to carry out forensic procedures in respect of the applicant. 2. The directions hearing is adjourned to a date to be fixed in not less than four weeks time. 3. The costs are 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 V 430 OF 2002 BETWEEN: KEN HA APPLICANT AND: COMMISSIONER OF THE AUSTRALIAN FEDERAL POLICE RESPONDENT JUDGE: HEEREY J DATE: 11 JULY 2002 PLACE: MELBOURNE REASONS FOR JUDGMENT 1 The applicant, Mr Ken Ha, is a prisoner at the Port Phillip Prison. He is currently serving a sentence of fifteen years and three months, which was imposed by his Honour Judge Ross in the County Court on 16 October 2001 following a conviction on a charge of being knowingly involved in the importation of a prohibited import, contrary to s 233B(1)(d) of the Customs Act 1901 (Cth). The prohibited import in question was heroin. 2 The applicant has received a letter dated 13 May 2002 from Federal Agent J M M Sheshire headed: "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." Division 6A of the Crimes Act 1914 (Cth) (the Crimes Act) prescribes a procedure for certain forensic procedures after conviction of serious and prescribed offenders." 3 The procedure proposed, as appears from the letter of 13 May, is a buccal swab, which involves the taking of a sample of saliva with a sterile cotton bud. This is an "intimate forensic procedure": see s 23XWB(1)(b) of the Crimes Act . Accordingly, by virtue of s 23XWD, it can only be carried out on a person who is a serious offender with the "informed consent" of that person or by order of a magistrate under s 23XWO. 4 The applicant, who was not legally represented, argued that there should be a grant of an interlocutory injunction to restrain the taking of this intimate forensic procedure on two grounds. The first was that his conviction had been quashed and that therefore he was not a "serious offender" within the meaning of the s 23WA(1), namely, a person who is under sentence for a "serious offence", which in turn is relevantly defined as a person who is serving a sentence in prison for an offence under a law of the Commonwealth punishable by a maximum penalty of imprisonment for life or five or more years. 5 This ground can be put to one side because it appears that although indeed on 8 February 2001 the applicant did obtain an order from the Court of Appeal of Victoria quashing a conviction, that conviction was for a different offence, namely importing a prohibited import contrary to s 233B(1)(b) of the Customs Act. The Court of Appeal ordered a retrial on a charge under s 233B(1)(d) of being knowingly involved in importation of a prohibited import. It was that offence of which the applicant was convicted by a jury and sentenced by Judge Ross, as already mentioned. 6 The second ground is that the applicant is said to be protected by the doctrine of "speciality" in extradition law. It appears, although there is no documentary material before the Court, that the applicant was extradited from Hong Kong in respect of the knowing importation charge. The doctrine of speciality is described by Dr Aughterson in Extradition: Australian Law and Procedure (1995), p 83, in these terms: "The principle of speciality requires that a person surrendered to a requesting state not be detained, prosecuted or punished for any offence, committed prior to surrender, other than that for which extradition was granted, unless the requesting state has first allowed the person adequate opportunity to again leave that state." 7 In footnote 259 the learned author notes an American authority Ahmad v Wigen 726 F Supp 389 affd 910 F 2d 1063 (1990) in which it was suggested that, by an extension of the doctrine of speciality, 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". 8 It seems to me at its very initial stage, without the benefit of full legal argument, or, indeed, any legal argument on behalf of the applicant, that there is a triable issue as to whether the proposed procedure would breach that principle. It might be argued that extradition involved the compulsory bringing of the applicant from Hong Kong to this country only for the purpose of trial and consequent conviction and sentence on the specific offence the subject of the extradition, and not for some other procedures which are invasive of personal freedom and which are part of a general law enforcement or criminal detection regime in Australia. Needless to say, I am not expressing any view as to the merits of this argument; I merely think that there is an arguable case. 9 Counsel for the respondent, while disputing that legal argument, also said that in any event, the matter is premature. This argument depends on the construction of the letter of 13 May. Counsel said that, notwithstanding its self description, it is not in fact a request for consent but merely the provision of information pursuant to s 23XWJ, and that the request itself is yet to be made. 10 It is true that there is some support for that argument in the letter. In particular, in the second paragraph the writer says: "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." On the other hand, the concluding paragraph says: "You will now be given a period of time to seek legal advice should you so desire and to consider this request." The natural meaning of that, I think, is that "this request" means the letter itself, and the period of time in which to seek legal advice commences on the receipt of the letter. Moreover, the sequence of events provided in s 23XWG rather suggests that the request for consent is either contemporaneous with or prior to the information being given about the forensic procedure. In any event, I think there is an issue to be tried about this point. 11 Counsel also referred to the procedure provided in s 23XWO for provision under which, if informed consent is refused, an authorised applicant may apply to "any judge or magistrate" for an order. "Judge" is defined in s 23WA(1) as "a State or Territory judge". It is not clear why s 23XWD(b) refers to an order "of a magistrate under s 23XWO", and says nothing about an order of a judge. In any event, counsel did not submit that the jurisdiction of this Court was necessarily excluded. Counsel did refer to s 39B(1)(c) of the Judiciary Act 1903 (Cth), which states that the Federal Court does not have jurisdiction in relation to Constitutional writs in relation to a "related criminal justice process division". Counsel did not rely on this as a ground for excluding jurisdiction; he very properly brought it to my attention and also the decision of the Full Court in Chief Executive Officer of Customs v Jiang (2001) 111 FCR 395 at [77], although as counsel accepted, it was not a decision directly on point. 12 I think it is appropriate to grant the injunction. There is no element of urgency advanced on behalf of the respondent. The purpose of this procedure, I was told, is not so much to attain information which might assist in the investigation of a crime which has occurred, still less for the crime for which the person is serving a sentence, but rather to provide general information in a DNA data bank. Since the issue that I have identified is one which could conceivably involve a difficult question of extradition law, it is not inappropriate that it be considered in the Federal Court. I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Heerey. Associate: Dated: 18 July 2002 Counsel for the Applicant: The applicant appeared on his own behalf Counsel for the Respondent: T Murphy Solicitor for the Respondent: Director of Public Prosecutions Date of Hearing: 11 July 2002 Date of Judgment: 11 July 2002