FEDERAL COURT OF AUSTRALIA

Tervonen v Minister for Justice and Customs

[2007] FCA 464

JAN TERVONEN v MINISTER FOR JUSTICE AND CUSTOMS AND ORS

NSD 168 OF 2007

RARES J

12 MARCH 2007

SYDNEY

THE COURT ORDERS THAT:

1.                  The application for interlocutory relief is refused.

2.                  The applicant pay the costs of the first and third respondents of today.

3.                  Unless the applicant files a notice of motion on or before 27 March 2007 returnable for 28 March 2007 seeking to continue the proceedings as against the State of Finland on 28 March 2007, the State of Finland will cease to be a party to the proceedings.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

(REVISED FROM THE TRANSCRIPT)

1                     Mr Tervonen has been served with a notice under s 16(1) of the Extradition Act 1988 (Cth) given by the Minister for Justice and Customs on 18 August 2006 in respect of 56 groups of offences alleged to have been extradition offences against the law of the State of Finland.

2                     He brought an application in this Court seeking judicial review of the s 16 notice.  Following a directions hearing Mr Tervonen has amended the application.  Today is the return of his amended application for an interim injunction restraining the Minister and Finland from proceeding on 14 March 2007 with proceedings under s 19 of the Act before a magistrate of the Local Court of New South Wales.  So far as the evidence shows, no magistrate has yet been assigned to hear the request.

3                     The s 16 notice was accompanied by, among other things, eight warrants issued by the District Court at Helsinki in Finland seeking the arrest of Mr Tervonen.  Three of the warrants, he accepts, sought his arrest in respect of matters which amounted to a charge within the common law meaning of that expression so that he would be considered to be a person who was accused of having committed the offences the subject of those warrants within the meaning of s 6(a)(i) of the Act.

4                     However, he says that the Minister was incapable of forming the opinion required by s 16(2) of the Act in respect of the other five warrants.  Relevantly, s 16 provides as follows:

‘16  Notice by Attorney-General

(1)       Where the Attorney-General receives an extradition request from an extradition country in relation to a person, the Attorney-General may, in his or her discretion, by notice in writing in the statutory form expressed to be directed to any magistrate, state that the request has been received.

(2)       The Attorney-General shall not give the notice:

(a)        unless the Attorney-General is of the opinion:

(i)         that the person is an extraditable person in relation to the extradition country;  and

(ii)        that, if the conduct of the person constituting the extradition offence, or any of the extradition offences, for which surrender of the person is sought, or equivalent conduct, had taken place in Australia at the time at which the extradition request was received, the conduct or the equivalent conduct would have constituted an extradition offence in relation to Australia;  or

(b)        if the Attorney-General is of the opinion that there is an extradition objection in relation to the extradition offence, or all of the extradition offences, for which surrender of the person is sought.

(3)       As soon as practicable after the person is remanded under section 15 or the notice is issued, whichever is the later:

(a)        a copy of the notice;  and

(b)       copies of the documents referred to in paragraph 19(2)(a) and, if applicable, paragraph 19(2)(b);

shall be given to the person.’

5                     Mr Tervonen’s argument is that the Attorney-General or, relevantly here, the Minister exercising the functions of the Attorney-General, could not have been of the opinion that he was an extraditable person in relation to Finland because he was not a person who was accused of having committed the offences the subject of the five impugned warrants. 

6                     The basis of this argument is that the five impugned warrants recite that the claim for Mr Tervonen’s arrest was appended to ‘this decision’, being the two or more pages which each warrant occupies.  Each warrant sets out a number of matters, presumably required by the law of Finland to form part of the document which is a warrant for the arrest of a person.  At one point, each of the impugned warrants states under the heading ‘Grounds’ that ‘the grounds are detailed in the claim for arrest’.

7                     However, there is nothing in the evidence before me which is appended to any of the warrants or otherwise corresponds to such a claim for arrest.  The Minister has put on evidence of the material that was before him when he made the decision.  None of that material includes what is described as the claim for arrest appended to the decision for each of the five impugned warrants.  Nor was I taken to any material in Mr Tervonen’s extensive affidavit which is said to amount to a claim for his arrest.

GROUNDS ARGUED

8                     Mr Tervonen said that the absence of any claims for his arrest in the case of each of the five warrants showed that the Minister could not have formed the opinion required by s 16(2) on the material he had before him when giving the s 16 notice.  The other basis is, as I have said, that the material did not reveal that Mr Tervonen had been formally charged with the offences. Rather, it only revealed that his arrest was sought for the purposes of pre-trial investigation under Finnish law.

9                     In the material Mr Tervonen annexed to his affidavit as material supplied to him with the s 16 notice, there are clear suggestions that the offences for which warrants (Nos 4 to 8) were issued were seeking pre-trial investigation.  Mr Tervonen relied on a statement from a Finnish lawyer that he had made inquiries of the District Court in Finland to ascertain whether Mr Tervonen had been charged and that the District Court had told the lawyer that in respect of the five impugned warrants no charges had been laid.

LEGISLATIVE FRAMEWORK

10                  The Extradition (Finland) Regulations 1988 (Cth) provide that the Act applies in relation to Finland subject to the Treaty Between Australia and Finland Concerning Extradition that came into force on 23 June 1985 as amended by the Protocol that came into force on 14 February 1986.  The English text of the Treaty and Protocol are set out in the schedule to the Regulations.  In the Treaty there is no definition of the words ‘charged’ or ‘accused’.  Article 1.1 of the Treaty provides that:

‘Each Contracting Party undertakes to extradite to the other Contracting Party subject to the provisions of this Treaty:

Any person found in its territory who is charged by a competent authority with … an offence against the law of the other Contracting Party …’

11                  The Protocol amended Art 7 r 2.  The Treaty now provides in Art 7 r 2 that a request for extradition should be accompanied:

‘(a)      if the person is accused of an offence – by a warrant for the arrest or a copy of the warrant for the arrest of the person, a statement of each offence for which extradition is sought, and a statement of the acts or omissions which are alleged against the fugitive in respect of each offence.’

CONSIDERATION

12                  The following reasons are given on a prima facie basis because at the end of the day this is an interlocutory hearing on which neither side has had the opportunity of putting on full evidence.  These preliminary views may well be seen to be wrong once the parties have been able to adduce all their evidence and arguments.

13                  Looking at the five impugned warrants, I am of opinion on the material now before me that each relevantly satisfies the requirements of Art 7 r 2.  The warrants accuse Mr Tervonen of an offence in the words:

‘The person whose arrest is claimed is suspected with probable cause of the following criminal acts.’

14                  They then set out a number of short form accusations including the dates on, or between, which the alleged offences occurred.  The expression ‘person whose arrest is claimed is suspected with probable cause of the following criminal acts’ is one which is also to be found in the three warrants the validity of which is not disputed.  Thus, each of the five impugned warrants appears to satisfy the requirements of Art 7 r 2. 

15                  The question is whether the Minister could form the opinion that Mr Tervonen was an extraditable person in relation to Finland on the basis of that material so as to issue the notice.

16                  In Director of Public Prosecutions (Commonwealth) v Kainhofer (1995) 185 CLR 528 at 540 Brennan CJ, Dawson and McHugh JJ said that it was unnecessary to decide whether the Full Court of this Court, upon whose decision Mr Tervonen relied, was in error in the meaning which it attributed to ‘accused’ in s 6(a)(i) of the Act.  They said:

‘It is sufficient to say that in considering whether a person is an extraditable person under s 6(a)(i) of the Act, it is necessary to bear in mind the statutory object of enabling Australia to carry out its obligations under extradition treaties with countries that adopt a variety of criminal procedures different from our own.’

17                  This is one of the reasons why Art 7 r 2(a) of the treaty prescribes the material that the extraditing state must supply to the relevant Minister in order for him or her to make a decision on the question of whether or not the person is an extraditable person. 

18                  In his very capable submissions Mr Tervonen has said that the word ‘accused’ in the English version of Art 7 r 2(a) of the amended Treaty is only able to be translated from the Finnish version as ‘charged’.  Mr Tervonen, however, is not a lawyer and I cannot at this point of the proceedings do other than to notice that there may well be an argument which he is able to advance at a later stage that the Treaty should be interpreted as he suggests.  However, on the material currently before me I am not able to come to a different view than that the warrants that have been issued and upon which the Minister relied satisfy the description in Art 7 r 2(a) of the amended Treaty.

19                  The basis upon which an interlocutory injunction may be granted is that the Court is satisfied of two relevant matters:  first, whether the applicant for relief has made a prima facie case that relief should be granted; and secondly, if so, where the balance of convenience lies (Australian Broadcasting Corporation v O’Neill (2006) 229 ALR 457 at 466 [19] per Gleeson CJ and Crennan J, 478-480 [65]-[72] per Gummow and Hayne JJ).  It is important to recognise that the purposes of the process mandated under the Act are to have a speedy and efficient means of testing, through the mechanisms of a s 19 hearing and the process of review provided by s 21, whether or not the claim for extradition has been established.  Once such a claim has been established s 22 also provides a means of reviewing any exercise of the power of the Attorney-General.

20                  One of the evils to which the Act was directed was the delay that could occur in the process of extradition leaving the accused person, among other things, in custody for protracted periods if legal challenges were mounted at every stage.  The Act seeks to ensure that there will be reasonably prompt resolution of the proceedings.  Thus, if the person were to be returned to the country which sought his or her extradition they would be entitled to the benefit of a relatively speedy hearing by the courts of the country seeking extradition.  In Harris v Attorney-General of the Commonwealth (1994) 52 FCR 386 Beaumont, Einfeld and Foster JJ held that the Court had jurisdiction under s 39B of the Judiciary Act 1903 (Cth) to review the issue of a certificate by the Attorney-General under s 16 of the Act, but they held that, as a matter of discretion, it was undesirable to have premature judicial intervention in such a matter. 

21                  As I have explained above, the arguments which Mr Tervonen wishes to agitate have many facets which may require further evidence to establish them.  For example, there is currently the omission of the claim for arrest in each of the five impugned warrants.  If at a later time he were to produce evidence about that issue on a final hearing, it may or may not be a matter that is able to be used to establish the matters on which he relies.  Likewise, there are issues as to the law of Finland and the like which at some point may or may not be relevant to what he wishes to assert.  In addition, there may be issues as to the proper interpretation of the Treaty based on the meaning of words used in it.

22                  I am not in a position to make any judgment about those matters and do not express any views as to whether they are arguable or, if established, could produce the result which Mr Tervonen desires.  I only point out that at this stage of the proceedings the evidence before me is such that it would not be appropriate to interrupt the s 19 hearing that is to take place on Wednesday this week by granting interlocutory relief and forestalling the remainder of the criminal process.  In Harris 52 FCR at 412-413 the Court referred to the decision in Yates v Wilson (1989) 168 CLR 338 at 339 where Mason CJ, Toohey and Gaudron JJ said that it would require an exceptional case to warrant the grant of special leave to appeal in relation to a review by the Federal Court of a magistrate’s decision to commit a person for trial.  They said:

‘The undesirability of fragmenting the criminal process is so powerful a consideration that it requires no elaboration by us.  It is a factor which should inhibit the Federal Court from exercising jurisdiction under the Administrative Decisions (Judicial Review) Act 1977 (Cth) and as well, this Court from granting special leave to appeal.’

23                  In Harris 52 FCR at 413E-F their Honours said that in the absence of an exceptional situation of the kind required to justify a civil court to intervene in the criminal process, they were of the view that as a matter of discretion, the Court should not embark upon the consideration of a claim for judicial review at the point of time in the extradition process after a s 16 notice has been given.  They remarked that such an investigation could be embarked on at a later point of time, under s 22 of the Act, for instance.  If the proceedings against Mr Tervonen were to get to that stage, that will be a more appropriate time to make the challenge which he now wishes to raise.

24                  I note that Mr Tervonen raised an issue that he wishes to agitate at another time, namely that the person who issued the five impugned warrants in Finland was not a competent authority in that state.  But he said that he was not arguing that matter before me and so I have not taken that into account.  The existence of the possibility of such an argument reinforces the undesirability of permitting the process of consideration of the extradition request being further fragmented.

25                  Mr Tervonen also argued that at the time the Minister issued the notice under s 16 he did not have before him every document that was required to be produced before the magistrate under s 19(2)(a) and (b) as referred to in s 16(3)(b) of the Act.  Mr Tervonen will be able to advance such an argument to the magistrate if it transpires that it is of substance.  That is because, if the requirements of s 16(3) of the Act were not satisfied, then it will be obvious that the documents referred to in s 19(2)(a) and (b) had not been supplied to him.  The magistrate will be able to decide that question when he or she is hearing the s 19 application.  The present state of the evidence does not enable me to make such a decision.  That is because I am not in a position where I can decide whether or not anything is before any magistrate at the moment.  The magistrate who conducts the s 19 proceedings on 14 March 2007 will be able to determine this question.  Again, for me to decide this issue at this time and on the material before me would involve a fragmentation of the process under s 19, which I am of opinion is not desirable.

26                  The Minister argued a further reason why I should decline relief was that the question for him under s 16(2)(a) was the formation of the requisite opinion.  He argued that an inquiry into a Minister’s state of mind for this purpose could be put only on the basis that his decision was so unreasonable that no reasonable person could have made it. 

27                  The Minister referred to the well-known line of authority exemplified in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 275-276 where Brennan CJ, Toohey, McHugh and Gummow JJ discussed the applicable principles.  As they pointed out, relying on what Dixon J had said in Avon Downs Pty Ltd v Federal Commissioner of Taxation (1949) 78 CLR 353 at 360, the Minister’s decision in such a case is not unexaminable.  He or she must address the question which the legislation formulates.  But, if the conclusion is affected by some mistake of law or if he or she takes some extraneous reason into consideration or excludes from consideration some factor which would affect the determination on any of these grounds, the conclusion is liable to review.  Dixon J made that point in the context of a decision where no reasons were given by the decision-maker. 

28                  Brennan CJ, Toohey, McHugh and Gummow JJ went on to refer to the judgment of Gibbs J in Buck v Bavone (1976) 135 CLR 110 at 118-119.  There he had said that where the matter of which, relevantly, a Minister was required to be satisfied is a matter of opinion or policy or taste it may be very difficult to show that he or she had erred in one of those ways or that the decision could not reasonably have been reached.  Gibbs J continued that in such cases the Minister or authority would be left with a very wide discretion which could not be effectively reviewed by the Courts.

29                  Here, of course, the Minister will be required under section 16 to form an opinion on identified material.  If it transpired that the material was incapable of supporting the formation of the requisite opinion under s 16(2), the Court could exercise its powers of judicial review.  I am of opinion that it is not desirable for me to embark on that exercise at this point of time.

30                  As I have been at pains to emphasise, nothing that I have said is intended to decide finally whether or not Mr Tervonen’s contentions are right or wrong.  I do not have the material before me to do that and I am not making such a decision.  I am merely acting on the evidence before me and the arguments that have been advanced today.

31                  In all the circumstances I am of opinion that it is not desirable to grant interlocutory relief in this matter because it would fragment the process which Mr Tervonen has been made the subject of under the Act.  For these reasons I refuse the application for interlocutory relief.

32                  In light of the issues Mr Tervonen has raised, I am of opinion that it is in the interests of the administration of justice to refer Mr Tervonen to the Registrar for referral to a legal practitioner on the pro bono panel for legal assistance in relation to the rest of these proceedings or any application for leave to appeal that Mr Tervonen may wish to consider in relation to what I have decided today.

Associate:

Dated:         28 March 2007