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 Act 1995 (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: "Order for delivery to examiner of passport of witness (1) Where, upon application by an examiner, a Judge of the Federal Court sitting in Chambers is satisfied by evidence on oath that: (a) in connection with a special ACC operation/investigation, a summons has been issued under this Act requiring a person to appear before an examiner at an examination (whether or not the summons has been served), or a person has appeared before an examiner at an examination, to give evidence or to produce documents or other things; (b) there are reasonable grounds for believing that the person may be able to give to the examiner evidence or further evidence that is, or to produce to the examiner documents or other things or further documents or other things that are, relevant to the special ACC operation/investigation and could be of particular significance to the special ACC operation/investigation; and (c) there are reasonable grounds for suspecting that the person intends to leave Australia and has in his or her possession, custody or control a passport issued to him or her; the Judge may make an order requiring the person to appear before the Federal Court on a date, and at a time and place, specified in the order to show cause why he or she should not be ordered to deliver the passport to the examiner. (2) Where: (a) an order under subsection (1) or a corresponding provision of a law of a State has been made in respect of a person; and (b) a copy of that order has been served upon the person; the person shall not leave Australia unless: (c) he or she has appeared before the Federal Court as required by the order referred to in paragraph (a); and (d) if the Court makes an order in respect of him or her under paragraph (3)(a) - he or she has complied with the terms of that order and any passport delivered by him or her to the examiner in accordance with that order has been returned to him or her. Penalty: 50 penalty units or imprisonment for 2 years. (3) Where a person appears before the Federal Court in pursuance of an order made under subsection (1), the Court may, if it thinks fit, make an order: (a) requiring the person to deliver to the examiner any passport issued to him or her that is in his or her possession, custody or control; and (b) authorizing the examiner to retain the passport until the expiration of such period (not exceeding one month) as is specified in the order. (4) The Federal Court may, upon application by the examiner, extend for a further period (not exceeding one month) or further periods (not exceeding one month in each case) the period for which the examiner is authorized to retain a passport in pursuance of an order made under subsection (3), but so that the total period for which the examiner is authorized to retain the passport does not exceed 3 months. (5) The Federal Court may, at any time while the examiner is authorized in pursuance of an order made under this section to retain a passport issued to a person, upon application made by the person, revoke the order and, if the order is revoked, the examiner shall forthwith return the passport to the person. (6) The Federal Court has jurisdiction with respect to matters arising under this section. (7) In this section, Australia includes the external Territories." 4 The respondent is a national of the Democratic Peoples Republic of North Korea, who is currently being held in immigration detention in readiness for his removal from Australia. The respondent was placed in immigration detention after certain charges laid against him were discharged in the Melbourne Magistrates' Court on 5 March 2004, after a committal hearing. The respondent, as a crew member of the North Korean vessel "Pong Su", had been charged with aiding and abetting the importation of not less than a commercial quantity of narcotic goods into Australia contrary to s11.2(1) of the Criminal Code Act 1995 (Cth) and s233(1)(b) of the Customs Act 1901 (Cth). 5 The applicant is an examiner appointed pursuant to s46B of the ACC Act. The ACC is a statutory authority established by s7 of the ACC Act. Under s7(2) the ACC consists of its Chief Executive Officer, examiners and members of its staff. One of the functions of the ACC is to investigate matters relating to federally relevant criminal activity, when authorised by its Board; See s7A(c) of the ACC Act. 6 On 15 May 2003, the Board of the ACC authorised the special investigation ("the special investigation"), pursuant to which authority the ACC has investigated allegations concerning the import of very large quantities of illegal narcotics into Australia from South-East Asia. 7 On 5 March 2004, pursuant to s28 of the ACC Act, the applicant issued a summons to the respondent requiring him to appear before the applicant today to be questioned in relation to the special investigation. Mr Bassett said that he believed that the respondent could provide evidence of particular significance to the investigation. Mr Bassett also gave evidence that he believed the respondent would return to North Korea prior to today unless the show cause order was made. 8 On the first return of the show cause order, Mr Faris QC appeared for the respondent. Mr McBurney appeared for the applicant. The parties consented to an adjournment of the show cause proceeding to enable the respondent to properly prepare for the hearing. Mr Faris complained that his instructing solicitors had not been served with a copy of the affidavit of Mr Bassett sworn on 10 March 2004. Mr McBurney objected to Mr Faris seeing a copy of that affidavit on public interest immunity grounds. The parties undertook to attempt to resolve that issue before the adjourned hearing of the show cause proceeding. 9 The show cause proceeding was heard on 12 March 2004. Mr Southall QC announced his appearance with Mr McBurney for the applicant. At the outset of the hearing, counsel resolved the controversy between the parties concerning the 10 March affidavit. That controversy evaporated after a new affidavit sworn by Mr Bassett dated 12 March 2004 was filed in Court, and a copy provided to Mr Faris. The 12 March affidavit was materially in the same form as the 10 March affidavit, save that parts of the earlier affidavit, in respect of which public interest immunity was claimed, were not contained in the later affidavit. The 12 March affidavit explained what had been deleted from the earlier affidavit and why, without disclosing the precise content of the omitted material. 10 On receiving the 12 March affidavit, the Court observed that it had noted the differences between the two affidavits and stated that none of the material contained in the earlier affidavit and not included in the later one, had influenced it in its decision to make the show cause order. 11 At the hearing on 12 March 2004, Mr Faris submitted that the show cause order should be discharged, with costs. He contended that the show cause order should not have been made by the Court. 12 Mr Faris submitted that there was no basis upon which the Court could have been satisfied on 10 March 2004 that there were reasonable grounds for suspecting that the respondent "(had) in his…possession, custody or control a passport issued to him…". See s24(1)(c) of the ACC Act. 13 Mr Faris contended that the respondent does not have a passport, but only "seaman's papers" which is a travel and identification document designed for a limited purpose being to facilitate the return of a seaman to his own country. 14 That submission was only faintly pressed and is rejected. 15 Section 4 of the ACC Act defines "passport" to mean: "an Australian passport or a passport issued by the Government of a country other than Australia." 16 There is in evidence before the Court, a document bearing the respondent's name on the right hand side of the first page. A six digit number is recorded on each side of the first page. The document records the respondent's date of birth (26/02/44), his sex (male) and his citizenship (listed as "Korean"). An address is given in the Korean language. The document is date stamped as being issued on 20 January 2000 and bears the imprimatur of "Maritime Administration Bureau of DPR of Korea". This appears to be a reference to a government agency in North Korea. 17 The details concerning the respondent's name, date of birth, sex, citizenship and address, together with the date of issuing and the name of the issuing authority are contained on the right hand side of the front page of the document. The left hand side of the front page of the document, apart from having a six digit number at its top, contains a photograph of a Korean national, with a signature underneath the words "Seaman's signature". On the bottom of the left hand side of the first page of the document are the following words: "This passport is valid for five years from its date of issue" (emphasis added). 18 The second page of the document records the "name of the ship" which is given as "Pong Su". It also records the "port of registry" and the "ship owner". It says that the respondent is engaged as a "political secretary" and was so engaged on 25 January 2000. 19 The remaining pages of the document contain stamped entries which are not translated except for immigration stamped entries recording entry into Indonesia on 17 August 2002 and 29 March 2003. 20 The document on its face is said to be a passport. It bears the features of what is ordinarily contained in a passport, recording entry into countries other than the country of residence of the holder of the document. There was no dispute by Mr Faris with the proposition that the document is issued by a government agency of a country other than Australia. 21 The Court considers the document meets the definition of a "passport" in s4 of the ACC Act, having regard to the foregoing. The Court was therefore entitled to make the show cause order on the basis that the respondent had a passport. The next questions for consideration are whether the passport was in the respondent's possession, custody or control when the show cause order was made and whether that remains the position. 22 The passport is currently in the possession of officers of the Department of Immigration and Multicultural and Indigenous Affairs ("DIMIA"). It was in DIMIA's possession when the show cause order was made. Mr Southall submitted that the passport was in the respondent's control when the show cause order was made and remains in the respondent's control. 23 Mr Faris submitted to the contrary. In the course of so doing, Mr Faris acknowledged that the document was supplied to DIMIA at the request of his instructing solicitors by the AFP. The AFP had prior custody of the document until it acceded to the request of the solicitors for the respondent to give the document to DIMIA. 24 Ms Shepherd appeared for the Minister for Immigration and Multicultural and Indigenous Affairs ("the Minister") who was grantedamicus curiae status in the proceeding without any opposition from the parties. Ms Shepherd informed the Court that DIMIA held the passport for the respondent and that, subject to presently immaterial exceptions provided for in the Migration Act 1958 (Cth), DIMIA would provide the passport to the respondent at his request in order to facilitate his removal from Australia. That removal is currently prohibited by the existence of the show cause order. See s24(2) of the ACC Act. 25 The respondent is in "control" of his passport for the purposes of s24(3)(a) of the ACC Act. That is because he is in effective control of the document. It is his for the asking when DIMIA is not impeded by an order of the Court from supplying him with it. DIMIA's stated intention, as explained by Ms Shepherd, is to provide it to him as soon as it is able to do so, in order to facilitate his removal from Australia as soon as is reasonably practicable. 26 As Mason J said in Federal Commissioner of Taxation v ANZ Banking Group (1979) 23 ALR 480 at 496, the use of a composite expression such as "in his custody or under his control", "evidence(s) a legislative intention to employ the words in their widest sense." 27 The use of the word "control" in its widest sense comprehends the concept of "effective control". In that regard it is plain, having regard to the uncontested material put before the Court on behalf of the Minister, that the respondent is in effective control of the respondent's passport. The only reason he does not have actual possession of it is because of this very proceeding stemming from a show cause order. 28 Prior to the completion of the hearing on 12 March 2004, the Court canvassed with the parties the appropriate orders which may be made to give effect to its decision. It was conceded by Mr Southall that if the Court decided in favour of the respondent it would be appropriate to order that the show cause order be discharged with costs. 29 Counsel agreed that if the Court decided in the applicant's favour the proceeding should be adjourned to a directions hearing with costs reserved, and otherwise the Court would be entitled to make orders about the delivery of the passport to the applicant and the period of time in which the applicant could retain the document. 30 Having regard to the foregoing, it is appropriate to order as follows: 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. 31 I make those orders. I now treat as formally called on the other 26 related matters and make the same order in each one. I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall. Associate: Dated: 23 March 2004 Counsel for the Applicant: Mr A Southall QC with Mr S McBurney Solicitor for the Applicant: Australian Crime Commission Counsel for the Respondent: Mr P Faris QC Solicitor for the Respondent: Ellinghaus & Lindner Counsel for Amicus Curiae: Ms S Shepherd Solicitor for Amicus Curiae: Clayton Utz Date of Judgment: 15 March 2004