Case: Giorgianni v The Queen [1985] HCA 29 ; (1985) 156 CLR 473
Outcome: applied
The only act or omission expressly referred to by the CDPP as alleged against Mr Tervonen was contained in the single sentence that he 'was involved in a scheme with a number of other persons'. The CDPP's advice did not provide any detail as to how it could be found that Mr Tervonen was aware of all the material ingredients of the underlying conduct in relation to each of the balance of the offences in warrant 5 so as to attract the liability of a person who aids, abets, counsels or procures the commission of the principal offences: Giorgianni v The Queen [1985] HCA 29 ; (1985) 156 CLR 473. 161 However, the primary material provided by Finland and provided to Senator Johnston included a number of acts or omissions of Mr Tervonen which the Finnish authorities considered gave rise to him being suspected with probable cause of having committed the offences. That material is capable of showing that Mr Tervonen had an involvement in establishing Yellow Light Invest Oy so that it could seek information through a remote login from the National Land Survey of Finland. And, the material suggests, as I have found, that Mr Tervonen may have been involved in procuring Yellow Light Invest Oy's registration or continuing existence by falsely representing to Finnish authorities that Ms Lindholm had consented to act as and was the auditor of that company. 162 In addition, the document found on Mr Tervonen's computer with Yellow Light Invest Oy's articles of incorporation and Ms Lindholm's identity details included the names of some missing persons and the statement that some of those persons could be buyers provided that they had not been declared dead. However, in contrast to the suggestion in that suspicious document, the scheme of the fraud alleged against Mr Tervonen involved Mr S&ouml;derqvist, a real person, becoming registered as the purchaser and applying for a loan in his own name. This was a different scheme to one involving fictitious purchasers. The only further concrete link between Mr Tervonen and any of the frauds in warrant 5 was the material seized from Ms Fallenborg's apartment, being the 59,000 euros in the envelope and the SMS card with Mr Raappana's contact details. 166 I am of opinion that this material is inadequate to support a prima facie case of any contravention of a law in Australia that is equivalent to any of the Finnish offences in warrant 5 other than those in relation to Ms Lindholm to which I have referred. As the CDPP summarised, Mr Tervonen was alleged to be 'involved' in the commission of various offences as an accessory. Here, the material in support of the charges in warrant 5 contains no sufficient link to Mr Tervonen in respect of knowledge on his part of all of the essential facts which constituted each of the multiple offences: Giorgianni 156 CLR at 503, 506 per Wilson, Deane and Dawson JJ. 167 There is no explanation of how Mr Tervonen, when he was in jail between April and August 2004, aided, abetted, counselled or procured the activities of any of Messrs Siira, Raappana or S&ouml;derqvist. In order to establish Mr Tervonen's liability as a secondary offender in Australia, it was necessary for Senator Johnston to have before him identified conduct of Mr Tervonen which showed his intentional participation in each offence, with knowledge of the essential matters which went to make up that offence: Yorke v Lucas [1985] HCA 65 ; (1985) 158 CLR 661 at 667 per Mason ACJ, Wilson, Deane and Dawson JJ applying Giorgianni [1985] HCA 29 ; 156 CLR 473. It is here that the material provided by Finland fails to provide a substantive link between the conduct alleged and how Mr Tervonen could be found to have been a secondary offender under the law of New South Wales. This deficiency in the material relied on is accentuated in respect of those offences which occurred while he was in jail between April and August 2004.