Tervonen v Minister for Home Affairs; Tervonen v Republic of Finland & Anor [2009] HCATrans 139 (19 June 2009)

Last Updated: 24 June 2009

[2009] HCATrans 139

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S91 of 2008

B e t w e e n -

JAN TERVONEN

Applicant

and

MINISTER FOR HOME AFFAIRS

Respondent

Office of the Registry
Sydney No S92 of 2008

B e t w e e n -

JAN TERVONEN

Applicant

and

REPUBLIC OF FINLAND

First Respondent

MAGISTRATE PAUL LYON

Second Respondent

Office of the Registry
Sydney No S26 of 2009

B e t w e e n -

JAN TERVONEN

Applicant

and

FINLAND

First Respondent

MAGISTRATE PAUL LYON

Second Respondent

Applications for special leave to appeal

GUMMOW J
HEYDON J
BELL J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 19 JUNE 2009, AT 10.10 AM

Copyright in the High Court of Australia

__________________

MR T.A. GAME, SC: If the Court please, I appear for the applicant with MR D.P.M. ASH in all of these matters, your Honours. (instructed by DLA Phillips Fox and Ron Kessels)

MR R.T. BEECH-JONES, SC: If the Court please, I appear with my learned friend, MS K.C. MORGAN, for the respondent in S91, the first respondent in S92 and the first respondent in S26. (instructed by Blake Dawson Lawyers and Commonwealth Director of Public Prosecutions)

GUMMOW J: There are submitting appearances for the second respondent in S92 and S26. Yes, Mr Game, we will hear you in all three.

MR GAME: Yes, your Honour. You may recall that we were here in November. The Court requested pro bono assistance in respect of the applications for special leave from the Justice Rares’ decision. The other two cases have been resolved and it may seem confusing but I think we can put fairly succinctly what is left in issue in this case.

GUMMOW J: Wait a minute. Are you pressing the three applications or not pressing the three applications?

MR GAME: S92 is not pressed, but that is - - -

GUMMOW J: Well, should we dismiss it? You cannot sort of blow hot and cold.

MR GAME: Yes, your Honour, you should dismiss S92.

GUMMOW J: That leaves the Minister’s one, which is S91?

MR GAME: Yes, your Honour.

GUMMOW J: It is back at the section 16 stage, is it not?

MR GAME: That is correct, your Honour.

GUMMOW J: S26 which is the latest Full Court decision under the section 21 jurisdiction?

MR GAME: That is correct, your Honour.

GUMMOW J: The S91 is based on section 39B of the Judiciary Act, is it not?

MR GAME: Yes, your Honour.

GUMMOW J: S26 under the Extradition Act jurisdiction in the Federal Court?

MR GAME: That is correct. I am going to take your Honours to the latest case, that is the section 21 application for special leave which is S26 of 2009. If your Honours look at pages 38 and 39 you will see what it is that we are seeking to argue. Grounds 1 and 2 concern that which arises from Justice Gyles’ finding that warrants 4 to 8 were not for arrest of the accused for an offence but for investigation. The third ground is a ground that concerns the statement of the conduct in dual criminality. That is a ground that we sought to raise in the Full Court but were refused, in effect, on the basis that the other Full Court in the appeal from Justice Rares had resolved that question. That ground we wish to keep alive but we wish to argue that in the other application and I will explain why shortly. May I then come back to page 8 of this application book?

GUMMOW J: Yes.

MR GAME: Mr Tervonen, who for most of the time before Justice Gyles was self-represented, put that warrants 4 to 8 were for pre-trial investigation and not for arrest for the offence. Now, in paragraph 20 on page 13 his Honour pointed out that although Justice Rares had had a similar question before him, his was a judicial review question which was whether it was open to the Minister to form such an opinion. In fact, Justice Rares misconceived the question because he thought it was about warrants 1 to 3.

In any event, paragraph 21, his Honour makes it clear that although warrants 1 to 3 were for arrest for the offence, only those warrants were for the arrest for the offence. None of the others were on the basis that he was accused of an offence. His Honour pointed out in the last sentence:

That conclusion is assisted by the failure of Finland to produce material to the Magistrate explaining the system as it applied to the issues in this case.

So we have then in terms of section 19 – and I will come back to the sections in a minute – an issue as to whether or not his Honour can determine on a section 21 review that there should not be surrender because the notice is not valid as a - - -

GUMMOW J: What is your point about the interrelation between section 19 and section 21 which at the moment mystifies me?

MR GAME: What is my point? My point about the interrelation is that a court exercising judicial power is required to determine, in effect, jurisdictional facts before it.

GUMMOW J: The jurisdictional fact is the presence of the decision under 19.

MR GAME: Yes, but, your Honour, one of the - - -

GUMMOW J: The validity of this whole system was upheld in Vasiljkovic, was it not[2006] HCA 40; , 227 CLR 614?

MR GAME: Yes, your Honour, but the actual nature and extent of the rights and the liabilities that have to be determined is not something that has been finally determined. In this case, with respect to section 19, if I take your Honour to section 19, one sees in section 19 – in my submission, the point actually is quite an acute one and I will explain why by reference to - - -

GUMMOW J: Where do we see the text of 19?

MR GAME: Yes, your Honour, 19(1)(a) and (b) – 19(1)(b), “the Attorney-General has given - - -

GUMMOW J: Where do we see the text?

MR GAME: The text is in the joint book of authorities. It is in this application book at page 18, but it is in the joint book of authorities behind tab 8. These are preconditions, in effect, for the magistrate’s exercise of the review function under section 19. Section 19(1)(b) says:

the Attorney-General has given a notice under subsection 16(1) –

Now, the point about that here is – may I say this also and I will come to these in a minute by reference to Justice Gyles’ decision in the other case. There are two Federal Court cases, Knauder v Moore and Brock, where it appears to have been accepted, if you look at 19(1)(d), that the existence of reasonable time is a jurisdictional precondition, that the court could refuse to surrender on the basis that it was not satisfied of that jurisdictional fact.

In this very case, after Justice Rares quashed the section 16 orders, in the section 21 proceedings – and this is S92 which you have just dismissed – Justice Gyles held the person was not eligible for surrender because the precondition of the validity of the notice, the Attorney-General’s notice, had been – its invalidity had been established. So in this very case we have a conflict as to approaches to jurisdictional preconditions. Now, in the section 19(3)(a) question – this is the point that Justice Gyles makes at page 15 where he says:

It is not at all clear to me what meaning is to be given to the words “for the offence” –

Section (3)(a) says:

if the offence is an offence of which the person is accused – a duly authenticated warrant issued by the extradition country for the arrest of the person for the offence –

That is exactly the same language as one finds in the extraditable person provision. So his Honour was in a position in which it was clear to him, and he in fact held on the merits at the top of page 16, that this was a stronger case on the facts than Kainhofer. His Honour was of the view that there was no warrant - - -

GUMMOW J: Do you want to reopen Kainhofer?

MR GAME: I am asking your Honours to reopen Kainhofer if necessary, but I am also submitting that it may not be necessary to do so because Kainhofer is directed to the exercise of the section 19 function and what we are concerned with here is the nature of the exercise of judicial power.

GUMMOW J: You keep saying “the nature of the exercise of judicial power”. What are you talking about?

MR GAME: Well, what I am talking about - - -

GUMMOW J: You are construing section 21?

MR GAME: Yes, I understand that, your Honour, but what I am talking about is this, is that if in determining the rights and liabilities of the parties, the court is of the view on the evidence before it and restricted to the evidence before it that the offence is not an offence for which the person is accused for an offence under section 19(3)(a), then the court must decline to surrender, and that is not a question of feeding back into anything about some previous stage in the process. That is integral to the exercise of the determination of whether or not the person is in fact eligible for surrender.

In relation to the first part – and I will take your Honours in a moment to the other judgment to show you how it arises – in relation to the first part, 19(1)(a), (b), (c) and (d), the court manifestly does not sit in the same position as the - - -

GUMMOW J: You will have to take me through the language of section 21, Mr Game. Just explain what the point is that comes out of section 21 in terms of section 21.

MR GAME: Well, section 21 is a provision which merely provides that the court may review the section 21(1) “for a review of the order”. Then we have what the court may do. We have no further elucidation of what in fact is meant, but we do know what orders can be made and we do know under subsection (6)(d) that:

the court . . . shall have regard only to the material that was before the magistrate –

But, in reviewing the order before the magistrate manifestly the court sits in a different position than the magistrate because the magistrate was required to do a series of things which, in our submission, manifestly come within the context of review. Section 21 is oblique, to say the very least, as to what it means. Now, may I point out how, in my submission, acute this issue is by taking your Honours to the other case, and you will Justice Gyles’ judgment in that case. In my submission, you will see from that precisely what the problem is.

Now, if your Honours go to the other application book at page 120, what happened in that case was that after Justice Rares had quashed the section 16 notice and after Justice Gyles had determined this case they came back, in effect, by consent and asked the court to order that he was not eligible for release. One sees at page 121, your Honours, at paragraph 4 just how acutely the problem arises because there, the notice having been found invalid - - -

GUMMOW J: What is the current state of authority in this litigation in the Full Court on paragraph 4 at 121 of this decision of Justice Gyles in December 2007, Mr Game?

MR GAME: Sorry, the current authority in this Court in respect of - - -

GUMMOW J: No, in the Full Court from which you are seeking leave to appeal.

MR GAME: The one that we are seeking leave to appeal is the appeal - - -

GUMMOW J: There are so many proceedings you are starting to strangle yourself in your own procedures. Just tell me, what is the current state in the Full Court from which you seek leave to appeal as to the accuracy or otherwise at paragraph 4 of Justice Gyles on page 121?

MR GAME: That judgment was set aside but it was only set aside because Justice Rares’ judgment was set aside and then the section 21 came back – can I just explain something, your Honour? We are not responsible for all these cases. We have been brought in as pro bono counsel. We have tried to make some sense of them.

GUMMOW J: I realise that. I am not blaming you.

MR GAME: I am trying to make sense of them, and I think I can if - - -

GUMMOW J: All right.

MR GAME: Page 131 is the current status of that judgment, but that judgment - - -

GUMMOW J: If anything ever cried out for case management, it was this litigation. Anyhow, what page?

MR GAME: Page 131. That judgment has been set aside, but it has only been set aside because Justice Rares’ judgment was set aside. It has never been dealt with on the merits. That judgment has never been considered by any court on the merits. Now, we have, your Honours – one would see at page 121 in a consideration by Justice Gyles of the Federal Court doing the very thing that is said against us cannot be done in a section 21 review and it arises by reference to section 19(1)(d), but it must, as a matter of principle, be the same in respect of any jurisdictional facts in section 19.

Now, your Honours, Justice Gyles said that the whole discourse was unsatisfactory. He says that at page 122. But since the parties were asking him to do it and since Knauder v Moore and Brock v United States authorised it, therefore he would do it. So, in effect, paragraph 10, because the notices have been found invalid, his Honour orders under section 21 that the extraditee will be released under section 21. So there we have a classic example of how a section 21 review is held by the Federal Court to go well beyond just simply reviewing those decisions that the magistrate made in respect of section 19.

So our case is that the review – and one gets little or no assistance from the language of section 21 – the review extends to satisfaction about the jurisdictional facts in section 19(1), and the review extends in respect of section 19(3)(a) to satisfaction that there is in fact a warrant for the arrest of the person who is accused for the offence, which means for charging, and that that is a straight matter of construction in respect of the court’s function in reviewing the magistrate’s decision. So that is the issue that arises in respect of the Justice Gyles decision.

Now, in respect of the Justice Rares decision, there is in substance alive – and if your Honours look at the draft notice of appeal, there are three grounds – grounds 2 and 3 - - -

BELL J: What pages do we find that notice?

MR GAME: I am actually looking at the amended draft, but the amended draft notice was filed later but the original draft notice is at 137. We added a ground, but the grounds there that are listed at 2 and 3, they are all about the question whether or not the statement of conduct of the acts and omissions – but there was in fact a statement of the conduct of the acts and omissions for the offences in warrant 5.

Now, there is an amended additional ground which concerns the issue which Justice Gyles considered, and again we only would seek to keep that point alive if we get special leave in the Justice Gyles case. Now, your Honours, may I explain to your Honours what the question is in this case by reference first to Justice Gyles’ decision. If I may take your Honours to page 51 of the Justice Rares appeal book, that is to say, S91. Now, this attack on the warrants was actually ultimately only about 24 to 52 and 57 and 58 in the Minister’s notice.

It is unnecessary to go through all that his Honour considered there, but ultimately he came to the conclusion, at page 60, paragraph 165, that the material failed to identify the conduct, being the acts and omissions, and the other matters concluded there. So at page 63 he then determined that Senator Johnston could not have reasonably formed the opinion in respect of paragraphs 24 to 50. Now, your Honours, if one goes to the Full Court’s reasons one sees – and the question is posed at page 104, although there is some consideration of it earlier. We see at page 104 – now, this is all about warrant 5, it is not about anything else, but we see in paragraph 77:

In our view the evidence to which we have referred above demonstrates that there was such a statement of conduct, at least insofar as it was sufficient . . . in relation to a substantial number of –

offences. Then the court goes on to say:

the Minister on the appeal was to concede that the offences identified in [24] – [50] and [55] –

and ultimately 57 and 58. We see the court saying the same thing at page 96. Well, in fact, those were the only offences which were the subject of this argument which rather makes our point, which is that it is quite impossible to identify anywhere what the conduct is with respect to the offences and manifestly the court could not do it because the things that they thought were excluded and had been conceded were the only things in contention between the parties.

Then we see the actual reasoning at the top of page – and all of the things that the court said that Justice Rares had not dealt with, only the additional statement of the conduct, Justice Rares had gone through all of it in detail and had examined it. The one bit of his judgment that was, shall I say, picked on, namely, back at paragraph 73, “The only act or omission expressly referred to by the CDPP,” that is criticised but that is in the context of the very consideration of the additional material.

So the court pulls together some things at page 107 of things said to be done. That is at the top of page 107. We deal with that at page 143 in our submissions, that is to say, it said, “Mr Tervonen had knowledge of how the frauds were committed”. We say many were attempts. We set out this question about recruiting two men. There is one tiny line about two blokes and there is, thirdly, said to receive some proceeds. Now, if one looks at the warrant in the supplementary material, and I am not going to take your Honours to it directly, there is manifestly nowhere any statement of the conduct that can be tied to any particular offence. All you have are lists and lists of offences and then generalised statements about things that Mr Tervonen did that might or might not be referrable to any offences.

Now, this becomes quite critical when you turn to the second step, which is the question of dual criminality, because how do you get to dual criminality unless in respect of any of the offences you have a statement of the acts and omissions? The acts and omissions are required by the treaty. The acts and omissions are required by section 10(3), they are required by section 16(a)(ii) and they are required by section 19. Nowhere will be find them. So what, in effect, this case on this leg is is a demonstration of how it is manifestly essential to identify with precision the conduct, to have a statement of the conduct. So those are the two questions arising out of the two cases that we wish to ventilate should there be a grant of special leave.

GUMMOW J: Yes, Mr Beech-Jones.

MR BEECH-JONES: I will start with S26, which is the appeal from the Full Court that had dismissed the appeal from Justice Gyles, where Justice Gyles - - -

GUMMOW J: This is the Full Court of 30 January 2009?

MR BEECH-JONES: Yes, your Honours. In Justice Gyles’ decision Justice Gyles had expressed views about whether the warrant material from Finland had accused the applicant so as to bring him within the view of extraditable offence. I think Mr Game took your Honours to a passage where it said that the Commonwealth Director before the magistrate had not brought any evidence about the position in Finland. That, of course, is because, as a result of Kainhofer, that was an entirely irrelevant question for the magistrate, that is, the Director does not bring evidence before the magistrate about the foreign criminal law processes to revisit the argument of extraditable person.

When that came to the Full Court, the applicant in this Court conceded that Kainhofer meant that the argument that they wanted to run could not be sustained, so there was a formal submission that Kainhofer was wrong. In this Court now they say, no, it is not that we concede Kainhofer was wrong, instead we want to re-argue the question, or want to argue a different question, namely, that Kainhofer does not cover what is meant by “review” in section 21, and the starting point is your Honours are being confronted for the first time on a special leave application a proposition that was not put below and your Honours do not have the benefit of what the Full Court might say about that.

The second thing we would say is when one looks at section 21 and looks at the word “review”, when one sees the restriction that says you are limited to the evidence before the magistrate and then one notes that even when one looks at the powers of the court to order the release or the binding over or detention of the applicant for review, which is directed the court directs the magistrate to release, we respectfully submit it is simply self-evident that it is a review, a de novo review, but of the task undertaken by the magistrate. So that if Kainhofer is correct, which I will come to, in finding that it is not the task of a magistrate on a section 19 review to ask the question whether the person is an extraditable person, that must, we would respectfully submit - - -

GUMMOW J: Kainhofer itself came to this Court from the Federal Court, the Federal Court having been exercising section 21.

MR BEECH-JONES: Indeed, from a section 21 review. No one was saying, well, even if the magistrate was wrong, the Federal Court could have done it itself. That then leads to this proposition, they ask Kainhofer to be revisited, and we respectfully submit why? There is no reason put forward for what is wrong with it, what inconvenience it has caused, or anything of that kind, and we are in a position where at least the government actors have been acting on the faith of Kainhofer for a long time in the manner - - -

GUMMOW J: Fourteen years.

MR BEECH-JONES: - - - in which they conduct reviews before magistrates. Could I deal with what my friend said was some wrinkles that had arisen in the Act by reference to section 19(1)? Could I just briefly take your Honours there, and in doing so but without taking your Honours, could I just remind your Honours that in Kainhofer that Chief Justice Brennan and Justices Dawson and McHugh had noted that the section 19 magistrate must proceed on the footing that the order and the notice, that is the section 16 notice, if not invalid ex facie, were validly made.

If one then goes to section 19(1), the authorities in the Federal Court have considered the position under 19(1)(d) but that is because that is an opinion that the magistrate themselves must form. So one can see why on a section 21 review the court can look at the formation of that opinion by a magistrate, but the other three are not opinions, and particularly (a) and (b), for the magistrate and consistent with Kainhofer, the function for the magistrate is is there an ex facie invalidity and nothing more?

When Justice Gyles in the first case after Justice Rares had knocked over the section 19 notice at that time that notice was ex facie invalid because a month previously, or a couple of weeks previously, Justice Rares had quashed it with certiorari. So there was no wrinkle in the system. That, in fact, was 100 per cent consistent with Kainhofer and, we respectfully submit, illustrates why special leave to re-look at Kainhofer is not warranted.

Could I just then briefly deal with the other point in S91. Could I take your Honours to the appeal book in that case. Could I just start at page 104 at paragraph 78. I think there is a reference to a concession:

that the offences identified in [24] – [50] and [55] of the Amended Notice could not be supported.

Now, the Full Court’s attribution of that concession was revisited and that is clear if one goes to page 114 in the supplementary judgment. Your Honours will see at paragraph 3:

We have now been informed by the Minister’s solicitors that [24] to [50] of the Amended Notice were not conceded and that Mr Ash, counsel for the respondent, concurs –

So in that respect there was no false issue in the Full Court. Turning back to page 104, the analysis that continues over the next few pages involves the Full Court analysing what was necessary and the statement of principle they identified is at the bottom of page 107, paragraph 94, where it says:

What is required is a clear and coherent statement of the acts and omissions which are said to constitute the offence.

Your Honours, we ask rhetorically, what is wrong with that statement as a matter of principle? We submit, the answer must be nothing and so what your Honours are left with is an assertion and we submit no higher than that, that the material before the Minister that the Full Court considered was not good enough. Now, I will not take your Honours through it, but we counter with the assertion that it was, but what your Honours are left with is not a fight over principle but a fight over bits and pieces of paper and whether the Full Court erroneously applied the statement that what was there was a clear and coherent statement of the acts and omissions. Those are the submissions I wish to put.

GUMMOW J: Mr Game.

MR GAME: In relation to the second case, if your Honours could look at page 107 which our opponents rely on. It is easily said that one needs a “statement of the acts and omissions which are said to constitute the offence” and there is only one offence. In 95 it said it is not “necessary to have a separate description of the conduct in respect of each offence”. That may be so if it is just repetition, but a true question does arise, if you do not have a statement of the conduct for the offence, if there are a series of different offences and an amorphous description of conduct, then you do not have a statement of the conduct said to constitute the offence. The point about the going back to court and getting the judgment fixed up really makes our point, which is the court never could look at the actual substance of the issue.

Now, in respect of the other case, we did concede that Kainhofer knocked us out in the Full Court, but we have attempted (a) to develop an argument that a section 21 review involves different questions and we have also sought to develop an argument based on the fact that if the court is correct in saying that jurisdictional preconditions must be determined in the Knauder v Moore case and Brock v The Minister, then the question arises as to what jurisdictional preconditions?

Lastly, a reference to Kainhofer and the reference to ex facie invalidity, in our submission, a judge is in precisely the same position if a warrant on its face or a notice on its face appears but the very same documentation shows that the warrant or the notice is invalid, and that is this case. In our submission, the situation is precisely analogous. If the Court pleases.

GUMMOW J: We will take a short adjournment.

AT 10.44 AM SHORT ADJOURNMENT

UPON RESUMING AT 10.46 AM:

GUMMOW J: With respect to application S91 of 2008, we say the following. The Full Court of the Federal Court on 6 March 2008 allowed an appeal from a decision of Justice Rares exercising jurisdiction under section 39B of the Judiciary Act 1903 (Cth). The substance of the decision of the Full Court was that the instrument signed by the Minister on 30 April 2007 was a valid notice in accordance with section 16(1) of the Extradition Act 1988 (Cth). The decision of the Full Court was correct. The applicant has no chance in this Court to obtain an outcome which restores the orders of the primary judge. In S91 of 2008 special leave is refused with costs.

We turn to application No S92 of 2008. The Full Court of the Federal Court on 6 March 2008 set aside orders made by Justice Gyles on 20 December 2007 upon an application for review pursuant to section 21 of the Extradition Act 1988 (Cth). The Full Court remitted the matter for determination according to law. This has since occurred and to a large degree the orders of the Full Court of 6 March 2008 are spent. There would be no utility in a grant of special leave and this morning counsel for the applicant accepted that this application must be dismissed. Accordingly, special leave is refused with costs.

There remains the third application, No S26 of 2009. The applicant seeks special leave here to appeal from orders of the Full Court of the Federal Court made on 30 January 2009. The Full Court dismissed an appeal from orders made by Justice Gyles on 29 May 2008. On the review under section 21 of the Extradition Act 1988 (Cth), his Honour confirmed an order of the second respondent, Magistrate Lyon, under section 19 of the Act, save with respect to paragraphs 55, 57 and 58 of the instrument under section 16 of that Act signed by the Minister.

The primary judge and the Full Court applied the reasoning of this Court in Director of Public Prosecutions (Cth) v Kainhofer (1995) 185 CLR 528 with respect to the scope of proceedings before a magistrate under section 19. The applicant has insufficient prospects of establishing, on an appeal to this Court, that the subject matter for determination upon a review under section 21 is relevantly any wider than that for decision under section 19, to warrant a grant of special leave.

With respect to the construction of section 19, Kainhofer is a unanimous decision which has stood for 14 years and is not shown to be open to any substantial doubt. We would add that the constitutional adequacy of the avenues for judicial review of the various stages of the extradition process was upheld in Vasilijkovic v The Commonwealth [2006] HCA 40; (2006) 227 CLR 614 at 632, 646 – 647 and 676. In this matter, special leave also is refused with costs.

We will adjourn to reconstitute.

AT 10.50 AM THE MATTERS WERE CONCLUDED