Case: Director of Public Prosections (Cth) v Kainhofer [1995] HCA 35 ; (1995) 185 CLR 528 
Outcome: followed
However, counsel for Finland submits that this argument is effectively foreclosed to Tervonen by the decision of the High Court in Director of Public Prosections (Cth) v Kainhofer [1995] HCA 35 ; (1995) 185 CLR 528. There are certainly similarities between that case and this, as extradition was sought by the Republic of Austria, a civil law country as is Finland. The Full Court of this Court had held that, on the material placed before the Magistrate on behalf of the Republic of Austria, he could not properly be satisfied in terms of s 19(2)(a) and s 19(3)(a) of the Act that the duly authenticated warrant that he had before him provided for the arrest of the appellant as a person "accused" of the offences to which the warrant referred ( Kainhofer v Director of Public Prosecutions (1994) 52 FCR 341 at 359G). The Court had held that the Act and the Treaty with Austria (which appears to be similar to that in the present case) provided for the surrender of a person only if the person was "accused" or convicted of an extradition offence. Their Honours said ( Kainhofer 52 FCR at 358 359): "Neither the Act nor the Treaty, however, defines the circumstances in which a person is to be regarded as being "accused" of the offence or offences in respect of which surrender is sought. In the jurisprudence of this country, one would not normally speak of a person as a person who is "accused" of a criminal offence in the sense in which that expression is used in the Act unless legal proceedings for the imposition of a penalty in respect of the offence have been commenced by the laying before a magistrate or other appropriate official of an information or complaint alleging the commission of the offence or by the presentation to a court of an indictment alleging such commission or unless the person has been formally charged with the offence before an appropriate official following upon his arrest. That statement may not be exhaustive but, in any event, it would not be sufficient to establish that a person was "accused" of an offence to show only that a complaint had been made to the police alleging the commission of the offence or that the police, or other investigating body, were conducting inquiries to determine whether there was evidence of the commission of the offence sufficient to warrant the person being "accused" of the offence in the sense mentioned." 24 It is not at all clear to me what meaning is to be given to the words "for the offence" in s 19(3)(a) in the light of the decision of the High Court. The submission for Finland reduces the content of s 19(3)(a) (and so s 19(2)(a)) to mere authentication of the warrant. So far as the substance of the warrant is concerned, all that is necessary is to tick off the offences against those in relation to which extradition is sought. It is difficult to discern any reason in principle why the opinion of the Attorney-General in relation to s 16(2)(a)(i) should not be examinable by the Magistrate where appropriate and yet the opinion in relation to s 16(2)(a)(ii) and s 16(2)(b) can be dealt with on the merits by the Magistrate notwithstanding the earlier opinion of the Attorney-General. It is even more difficult to understand why a magistrate's satisfaction in relation to a provisional arrest warrant pursuant to s 12 should decide the relevant issue to the exclusion of a magistrate pursuant to s 19 where appropriate. Neither the Attorney-General nor the first Magistrate has any better means of deciding the point than would be available to a properly instructed magistrate acting pursuant to s 19. However, I can see no escape from the conclusion that the decision of the High Court in Director of Public Prosections (Cth) v Kainhofer [1995] HCA 35 ; 185 CLR 528 does have the effect as submitted on behalf of Finland. 25 On the merits of the issue, if it were open to be considered, in Director of Public Prosections (Cth) v Kainhofer [1995] HCA 35 ; 185 CLR 528 , Gummow J said (at 564): "The fundamental question is whether the person whose extradition is sought under Pt II is one in respect of whom there has been taken by the competent authorities in the extradition country a decision to invoke the operation of the criminal law by the taking of whatever steps are necessary to initiate what might fairly be described as a prosecution." The fact that his Honour did not agree with the conclusion of the Full Court in that case on that issue would not be of any significance here, as the facts here are considerably stronger than the facts in Director of Public Prosections (Cth) v Kainhofer [1995] HCA 35 ; 185 CLR 528. There is nothing in the majority judgment in the High Court to indicate that they would have taken a different view in principle from Gummow J if the question had fallen for determination. 26 In my opinion, there is no substance to the issues raised by Tervonen concerning authentication of the warrants, bearing in mind the provisions of s 19(7) and s 19(8) of the Act and Art 8(2) of the Treaty. The original documents are in evidence. 27 It was also submitted that warrants 1, 2 and 3 were vitiated by a conflict of interest on the part of the prosecutor making the claim for those warrants as he was a victim of one of the other alleged offences, and so the warrants could not be authenticated. Even if a conflict were established, it would not affect authentication and there is no other relevant ground to oppose surrender available under s 19(2) on that basis. 36 The validity of the amended s 16 notice, excluding offences 55, 57 and 58, has been established by the decision of the Full Court in Minister for Home Affairs v Tervonen [2008] FCAFC 24 with supplementary reasons Minister for Home Affairs v Tervonen (No 2) [2008] FCAFC 32. In any event, in Director of Public Prosections (Cth) v Kainhofer [1995] HCA 35 ; 185 CLR 528 , Brennan CJ, Dawson and McHugh JJ said (at 539): "Lacking any power to review those decisions [including the giving of a s 16 notice], a s 19 magistrate must proceed on the footing that the order and the notice, if not invalid ex facie, were validly made."