Case: Tervonen v Minister for Justice and Customs (No 2) [2007] FCA 1684 , 98 ALD 589
Outcome: cited
The first two notices have been the subject of a proceeding before a judge of this Court at first instance: Tervonen v Minister for Justice and Customs (No 2) [2007] FCA 1684 , 98 ALD 589. And there was then an appeal from that decision: Minister for Home Affairs v Tervonen [2008] FCAFC 24 , 166 FCR 91. An application for special leave to appeal was filed with the Sydney Registry of the High Court of Australia on 19 March 2008. 11 This was an argument which, it would appear, held some favour with His Honour Justice Gyles in Tervonen v Finland [2008] FCA 781. His Honour there observed: Warrant for arrest? [8] Tervonen puts authentication of the warrants in issue but also takes a point of substance. He contends (and contended before the Magistrate) that five of the eight warrants are for his arrest for pre-trial investigation purposes rather than for trial for the offences. He submits that there is a clear distinction in Finnish law between the two purposes. He submits that only a public prosecutor can bring a prosecution, the police powers being limited to the investigation stage. These submissions are not evidence, but have clearly flagged an issue. ... [20] It appears that Tervonen put a similar argument to Rares J in the proceeding challenging the validity of the s 16 notice -- see Tervonen [2007] FCA 1684 ; 98 ALD 589 at [33] [44]. Rares J decided that it was open to the Minister to form the relevant opinion but did not consider the correctness or otherwise of that opinion, the proceeding before him being a challenge on administrative law grounds. [21] In my opinion, it is tolerably clear in the present case that only the first three warrants would normally be regarded as being "for the arrest of the person for the offence", the other warrants being connected with coercive investigation. To borrow from Art 1 of the Treaty, it was only those warrants by which Tervonen had been charged by a competent authority with the relevant offences against the law of Finland, bearing in mind that an extradition treaty must be a treaty relating to the surrender of persons accused or convicted of offences (s 5). 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 the case. 15 The Respondent Minister further contends, in the alternative, that the present argument has in any event been advanced by Mr Tervonen and also resolved against him by the decision at first instance in Tervonen v Minister for Justice and Customs (No 2) [2007] FCA 1684 , 98 ALD 589. In issue in that proceeding were the first two of the notices issued pursuant to s 16 of the 1988 Act. In the course of his reasoning His Honour there observed: Did the Finnish warrants satisfy the criteria in s 6(a)(i)? [33] Each of the Finnish warrants recited that Mr Tervonen was "suspected on probable cause" of one or more offences. Mr Tervonen argued that the language of the warrants did not meet the threshold set in s 6(a)(i) of being warrants which were in force for his arrest "in relation to an offence ... against the law of [Finland] that the person is accused of having committed". He argued that being suspected on probable cause was something less than being accused of having committed an offence. The argument so expressed is considered to be a different argument to that now sought to be advanced. His Honour thereafter continued: [37] Mr Tervonen argued that, on their face, none of the eight warrants amounted to an accusation that Mr Tervonen had actually committed an offence, or that he was "accused" of having done so within the meaning of s 6(a)(i). He said that a mere statement in the warrants that his arrest was claimed and that he was "suspected with probable cause of the following criminal acts" which were then set out was insufficient to satisfy s 6(a)(i). [38] In Director of Public Prosecutions (Cth) v Kainhofer [1995] HCA 35 ; (1995) 185 CLR 528 at 540; [1995] HCA 35 ; 132 ALR 483 at 490; [1995] HCA 35 Brennan CJ, Dawson and McHugh JJ left open the meaning to be attributed to the word "accused" in s 6(a)(i) of the Act, noting: 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. [39] The Attorney-General cannot be expected to be an expert in foreign law: Williams [v Minister for Justice and Customs [2007] FCAFC 33 , 157 FCR 286] at [49] . Minds may differ as to the proper construction of s 6(a)(i) and whether a particular warrant relied on by an extradition country falls within it (as the decision of the Full Court, which the High Court reversed in Kainhofer). For this reason s 16(2)(a)(i) is framed so that the Attorney-General must form the opinion that the person is an extraditable person. [40] Having regard to the terms of the warrants and other material before him, I am of opinion that it was open to Senator Ellison to form the opinion that they met the criterion in s 6(a)(i). Each warrant asserted that there was probable cause for suspecting that Mr Tervonen had committed an offence and that the court which issued the warrant considered he ought be arrested. [41] In the context of Australian law, a statement that a person has been arrested by the police and charged with an offence is capable of bearing a meaning that the police suspected him or her of having committed the offence and that the arresting officers had reasonable cause for doing so: Mirror Newspapers Ltd v Harrison [1982] HCA 50 ; (1982) 149 CLR 293 at 301; [1982] HCA 50 ; 42 ALR 487 at 493 per Mason J. That case dealt with defamatory meanings that might be conveyed to ordinary, reasonable Australians by a statement of a police arrest and charge. [42] Each warrant, on its face, was termed a "warrant". It was issued by a Finnish court for the arrest of Mr Tervonen who was stated to have been suspected on probable cause of having committed an offence. The minister could reasonably form the opinion that each document was a warrant, issued by a Finnish Court, in force, for the arrest of Mr Tervonen in relation to an offence against the law of Finland that he was accused of having committed within the meaning of s 6(a)(i). While other persons may not have formed the same view, having regard to the significant differences between the laws of other countries and Australia, to which Mason CJ, Dawson and McHugh JJ referred to in Kainhofer at CLR 540; ALR 490, I am of opinion that it was open to Senator Ellison to form the view that each of the warrants was one which met the description in s 6(a)(i). 20 To now permit Mr Tervonen to pursue his present arguments would certainly not promote finality in litigation and would now permit him to raise an argument which either has been raised and resolved or an argument which should have been raised before the trial judge in Tervonen v Minister for Justice and Customs (No 2) [2007] FCA 1684 , 98 ALD 589 and on appeal, if necessary, by way of a notice of contention. 24 It is considered that the argument now sought to be advanced by Mr Tervonen was, at the very least, " so relevant to the subject matter " of the proceeding being pursued before the trial judge in Tervonen v Minister for Justice and Customs (No 2) [2007] FCA 1684 , 98 ALD 589 that it was " unreasonable " for him not to have relied upon it in that proceeding. Not only were the terms of s 6(a)(i) the very subject matter of consideration by His Honour, the terms of the Treaty were also the subject matter of consideration. His Honour thus summarised one of the arguments being advanced before him for resolution as follows: [4] Mr Tervonen has challenged the validity of each s 16 notice. He argued that Senator Ellison's s 16 notice was invalid because: ... (3) Article 7(2) of the Treaty Between Australia and Finland Concerning Extradition done at Helsinki on 7 June 1984 as amended by Art 3 of the Protocol Between Australia and Finland Amending the Treaty Concerning Extradition done at Helsinki on 10 September 1985 contained in Sch 2 to the Extradition (Finland) Regulations 1988 (Cth) required Finland to accompany its request for his extradition with a statement of each offence for which extradition was sought together with a statement of the acts or omissions which were alleged against Mr Tervonen in respect of each offence. Mr Tervonen argued that because in August 2006 Senator Ellison personally did not have before him all of this material, as required by the treaty, he could not issue the notice. Whether or not the warrants were for " offences ", the meaning of s 6(a)(i) was an issue under consideration, as were the terms of the Treaty. A matter centrally relevant to the " opinion " of the Minister when giving a notice under s 16 is the " opinion " as to whether a person is an " extraditable person " within the meaning of s 6. Any argument that a person is not an " extraditable person ", because there is no warrant for his arrest for an " offence ", is an argument which should have been raised -- if it was to be raised at all -- when the Minister's decisions under s 16 were under scrutiny by this Court either at first instance or on appeal. It is an argument which should have been advanced as a reason why the Minister could not have lawfully reached the " opinion " required.