Tervonen v Finland (No. 2) [2009] FCAFC 4 (30 January 2009)

Last Updated: 30 January 2009

FEDERAL COURT OF AUSTRALIA

Tervonen v Finland (No. 2) [2009] FCAFC 4

EXTRADITION – whether appellant extraditable person under section 19 of Extradition Act 1988 (Cth) – Court bound by earlier decision – no error in analysis or conclusions of the trial judge – whether leave to further amend appeal should be granted – whether ‘dual criminality’ requirement satisfied in proceedings below – material before magistrate and trial judge sufficient to satisfy statutory test – leave to amend appeal denied – appeal dismissed





Extradition Act 1988 (Cth) s 6(a)(i), s 10(2), s 19(2), s 19(3)(c), s 21

Director of Public Prosecutions (Cth) v Kainhofer (1995) 185 CLR 528
Minister for Home Affairs v Tervonen [2008] FCAFC 24; (2008) 166 FCR 91






















JAN TERVONEN v FINLAND and MAGISTRATE PAUL LYON
NSD 882 of 2008

NORTH, BUCHANAN AND JAGOT JJ
30 JANUARY 2009
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 882 of 2008

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

JAN TERVONEN Appellant

AND:	FINLAND First Respondent MAGISTRATE PAUL LYONS Second Respondent

JUDGES:	NORTH, BUCHANAN AND JAGOT JJ
DATE OF ORDER:	30 JANUARY 2009
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The appeal is dismissed.

2. The appellant is to pay the first respondent’s costs of the appeal.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 882 of 2008

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

FINLAND FIRST Respondent MAGISTRATE PAUL LYONS Second Respondent

AND:	JAN TERVONEN Appellant

JUDGES:	NORTH, BUCHANAN AND JAGOT JJ
DATE:	30 JANUARY 2009
PLACE:	SYDNEY

REASONS FOR JUDGMENT

THE COURT:

1 In the judgment under appeal Gyles J decided that he was bound by the judgment of the High Court in Director of Public Prosecutions (Cth) v Kainhofer (1995) 185 CLR 528 (‘Kainhofer’) to conclude that arguments upon which Mr Tervonen wished to rely in connection with a request by Finland for his extradition, were bound to fail (Tervonen v Finland [2008] FCA 781).

2 Grounds 1 and 2 of the appeal were in the following terms. It is convenient to deal with them first.

1. The Court erred in holding that it could not, when determining whether the Appellant was eligible for surrender under s19, and in particular s19(2)(a), determine for itself whether the warrants produced by the First Respondent ‘accused’ the Appellant of an offence as required by s19(3)(a).

2. The Court erred in holding that it could not determine, for itself, whether the Notice issued by the Attorney-General under s16(2)(a) was a valid notice for the purposes [of] s19(1)(b).

3 Gyles J was conducting a review, under s 21 of the Extradition Act 1988 (Cth) (‘the Act’), of a determination by a magistrate under s 19 of the Act that Mr Tervonen was eligible for surrender to Finland. Mr Tervonen contended that he was not an extraditable person within the meaning of s 6(a)(i) of the Act with respect to five of eight warrants issued in Finland for his arrest. Gyles J thought that Mr Tervonen’s contentions raised issues of substance but that those issues were not justiciable in proceedings concerned with s 19 of the Act. That was because the High Court held in Kainhofer that a magistrate required, under s 19 of the Act, to determine whether a person whose extradition is sought is eligible for surrender is not required to decide whether the person is an extraditable person within the meaning of s 6(a)(i) of the Act and has no power to do so. Neither does the question arise when a magistrate’s determination under s 19 is reviewed under s 21 of the Act.

4 Gyles J was clearly correct to conclude that he was bound by the judgment of the High Court in Kainhofer.

5 The appellant has now accepted that Gyles J was bound by the decision in Kainhofer to reach the conclusion which he did. It has, therefore, been accepted that the present appeal cannot succeed on either of Grounds 1 or 2. A formal submission was made by counsel for the appellant that Kainhofer was wrongly decided to preserve the possibility of persuading the High Court to a modified view.

6 The respondent filed a notice of contention to the effect that Gyles J wrongly characterised the five warrants in question as ones for "coercive investigation" rather than ones which "accused" Mr Tervonen of offences for the purpose of bringing him to trial. In light of the appellant’s concession that neither Ground 1 nor Ground 2 can be upheld in this Court it is not necessary to deal with the notice of contention. Moreover, it was accepted that final resolution of the factual issues raised by the notice of contention, should that ever be necessary, may require further hearing and evidence. In the circumstances, it would not be appropriate to express any view about the matter at this stage.

7 At the hearing of the appeal, counsel for Mr Tervonen sought leave to add a further Ground 3 to the notice of appeal to raise the question whether adequate attention had been given, in the s 19 proceedings before the magistrate or in the s 21 review before Gyles J, to the "dual criminality" requirement. After the general nature of the additional ground was indicated, we permitted the appellant to formulate a specific further ground of appeal, file an application for leave to further amend the amended notice of appeal and file written submissions in support of the proposed Ground 3. The respondent provided written submissions in answer. Proposed Ground 3 of the further amended notice of appeal was as follows:

3. The Court erred in determining that the material adduced by Finland before the magistrate was sufficient to establish the level of conduct required by section 19(2)(c).

8 Having regard to the submissions made in connection with it, this ground appears to relate only to warrants 1 – 3 but whether or not that is so does not ultimately matter. We shall return to the question whether leave should be given to further amend the appeal to add and rely upon Ground 3 when we have given attention to the issues which it raises in the light of the history of the matter.

9 Section 19(2)(c) of the Act requires that a dual criminality test be satisfied in s 19 proceedings. It provides:

19(2) For the purposes of subsection (1), the person is only eligible for surrender in relation to an extradition offence for which surrender of the person is sought by the extradition country if:

...

(c) the magistrate is satisfied that, if the conduct of the person constituting the offence in relation to the extradition country, or equivalent conduct, had taken place in the part of Australia where the proceedings are being conducted and at the time at which the extradition request in relation to the person was received, that conduct or that equivalent conduct would have constituted an extradition offence in relation to that part of Australia;

10 In the proceedings before the magistrate, and before Gyles J, Mr Tervonen, who represented himself, advanced an argument about the dual criminality test in a way which differed from the way the point is now pursued.

11 The magistrate who conducted the s 19 proceedings recorded his view about the dual criminality requirement in his ex tempore judgment as follows:

In a schedule attached, which is not attacked by the defendant, as it affects each of the charges the equivalent offences as they offend against Australian law are set out on an attached table. The court is satisfied that such offences are offences against Australian law should they be proved.

and:

... as the court has indicated, there’s the table, there’s the analogous offence, there are statements going to each of those offences, certified within the warrants and statements supplied by the foreign country.

12 Before Gyles J, Mr Tervonen’s written submission about dual criminality was as follows:

[57] The Magistrate did not even try to identify the statements from the supporting documents, but simply relied upon the 1st respondent’s submissions. This is not authorized by the Act. The Magistrate must form his opinion about the dual criminality based on the statements (see par 55 above), and not on someone’s submissions... [58] The Magistrate clearly failed to do what he was by s 19(2)(c) required to do; satisfy himself of the dual criminality based on the statements describing the conduct for each offence.

13 Gyles J dealt with those submissions, firstly as to warrants 1 – 3 and then as to warrants 4 – 8, as follows (at [29] and [30] respectively):

29 It is then submitted that the conduct in relation to offences numbered 1, 2, 3, 8, 9, 10, 11, 12, 14, 15, and 16 is insufficient to establish dual criminality. No particulars are given about that contention. Counsel for Finland has provided a cross-reference for each of those counts and the conduct alleged to constitute the relevant offence to a provision of the Crimes Act 1900 (NSW), the Corporations Act 2000 (Cth) or the Criminal Code 1995 (Cth) that it is submitted would be contravened if the conduct which is alleged by Finland took place in New South Wales at the time of the alleged conduct. I accept the contentions on behalf of Finland in that respect. 30 In relation to the offences reflected in warrants 4–8 inclusive, Tervonen has relied upon his general attack upon those warrants rather than taking issue with individual offences. The table which was provided to the Magistrate identifying the equivalent offences in Australia is in the Review Book and, in the absence of argument to the contrary, I accept the submission that it is correct.

14 In the written submissions in support of Ground 3, counsel put the matter, on the appeal, differently as follows:

15. The crucial question is not exactly that posed by Mr Tervonen in his paragraph 57 above. It is not simply the magistrate’s reliance on insufficient material. Rather, it is the anterior question, jurisdictional in nature, namely whether the material was sufficient for the magistrate to engage in the process at all.

15 In support of that contention, counsel argued that the conclusions reached by a Full Court in an earlier appeal by Mr Tervonen (Minister for Home Affairs v Tervonen [2008] FCAFC 24; (2008) 166 FCR 91), that the Minister had adequate material to satisfy the dual criminality provisions for the purpose of s 16, was no answer to the argument which counsel wished to advance in support of the proposed Ground 3 in the appeal. It was contended that "the material before the two decision makers was fundamentally different" (i.e. the magistrate and the Minister) and that the only material before the magistrate was the primary material provided by Finland. Although the term "primary material" was used, it is clear that the magistrate had before him both material initially provided by Finland and material which was referred to in the earlier appeal as "supplementary". We understand counsel’s submission to be to the effect the magistrate did not have available to him the departmental brief to the Minister including the Commonwealth Director of Public Prosecutions briefing memo.

16 A distinction should now be made between the dual criminality test itself in s 19(2) of the Act and the incorporation into that test of a requirement that "conduct constituting the offence" be identified in a particular way. Section 10(2) of the Act imports into s 19(2) (and other provisions) the following requirement:

10(2) A reference in this Act to conduct constituting an offence is a reference to the acts or omissions, or both, by virtue of which the offence has, or is alleged to have, been committed.

17 In addition, s 19(3)(c) requires that a magistrate conducting proceedings under s 19 be provided with "supporting documents" including:

(i) a duly authenticated statement in writing setting out a description of, and the penalty applicable in respect of, the offence; and

(ii) a duly authenticated statement in writing setting out the conduct constituting the offence.

18 Section 19(3)(c) accordingly requires that the magistrate’s satisfaction about dual criminality be based on a statement of the offence and penalty relevant to the country requesting extradition and a proper and sufficient statement of the conduct constituting the offence (in accordance with s 10(2)) to allow the appropriate comparison with Australian law.

19 The magistrate had all the Finnish warrants. The warrants stated the offences and penalties available. There was also a statement from the Finland Minister of Justice stating the penalties available. Applicable provisions of the Penal Code of Finland were provided in extract form. There was, therefore, an adequate statement of the matters required by s 19(3)(c)(i).

20 It is also clear from the earlier appeal judgment that the material supplied by Finland was regarded as sufficient to meet the requirements of s 10(2) of the Act (and therefore s 19(3)(c)(ii)). For example the Full Court said (at [80]-[81]):

80 The primary judge approached the question of whether there was a sufficient statement of the alleged conduct of Mr Tervonen by focusing upon the statement of the CDPP that Mr Tervonen was involved in a scheme with a number of other persons. This was a reference to the opening sentence of [90] of the CDPP’s advice which we have reproduced at [42] above.

81 However, it seems to us that the proper approach to the question of whether there is a sufficient statement of conduct, requires a consideration of that statement in its full context. There was other material before Senator Johnston relevant to the question of the sufficiency of the statement of conduct. This material was not limited to the statements in the CDPP’s advice.

21 It also said at [89]-[90]:

89 Moreover, the supplementary account of the offences provided by the Finnish authorities, contained a more detailed description of Mr Tervonen’s involvement with Siira in the commission of the offences. In particular, the description of Mr Tervonen’s conduct disclosed that the Finnish authorities alleged, and indeed could obtain evidence, that Mr Tervonen was "involved" with Siira in the following respects:

• Mr Tervonen had knowledge of how the frauds were committed.

• Mr Tervonen conceived the idea of recruiting two men from Sweden (such as Raappana and Söderqvist) to carry out the overt acts.

• Mr Tervonen received some of the proceeds of the fraudulently obtained funds.

90 This was a statement of what is alleged to have been actually done by Mr Tervonen, not a mere restatement of the charges in respect of which extradition is brought: Williams at [45] citing Zoeller v Federal Republic of Germany (1989) 23 FCR 282 and De Bruyn v Republic of South Africa [1999] FCA 1344; (1999) 96 FCR 290.

22 The magistrate thus had adequate material, in the form of the documents provided by Finland to meet the requirements of s 10(2) of the Act and to make the assessment required by s 19(3) of whether the dual criminality test was met. That is so even if he did not have the further documents suggested by counsel for Mr Tervonen to have been available to the earlier Full Court.

23 In any event, it appears that counsel may have misunderstood what was, in fact, before the magistrate. Mr Tervonen himself supplied to the magistrate the "Dual Criminality Advice" from the Commonwealth Director of Public Prosecutions (as Annexure C to written submissions by him dated 8 May 2007 which were intended, and received, for use in the proceedings before the magistrate on 6 June 2007). The same material was before Gyles J in the s 21 review.

24 However the matter is viewed, there was adequate material before the magistrate and before Gyles J upon which they could be satisfied about dual criminality having regard to the arguments put to them. The attempt, represented by the proposed Ground 3, to reformulate or refocus the argument can not succeed, even if Mr Tervonen was allowed to now depart from the way he argued the case before the magistrate and before Gyles J. The conclusions stated in the earlier appeal, based upon substantially the same material as was before the magistrate and Gyles J, leave no room for the argument which is now advanced. In the circumstances, no injustice would be caused by denying leave to rely upon the proposed Ground 3. We will not grant leave to further amend the grounds of appeal to include the proposed Ground 3. Had leave been granted we would have concluded that Ground 3 did not provide a basis to uphold the appeal.

25 The appeal will be dismissed. It is appropriate to dismiss it with costs.

I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices North, Buchanan and Jagot.

Associate:

Dated: 30 January 2009

Counsel for the Appellant:	Mr T A Game SC Mr D Ash
Solicitor for the Appellant:	Ron Kessels
Counsel for the First Respondent:	Mr R Beech-Jones SC Ms K Morgan
Solicitor for the First Respondent:	Commonwealth Director of Public Prosecutions

Date of Hearing:	24 November 2008
Date of Judgment:	30 January 2009