Case: Truong v The Queen [2004] HCA 10 ; (2004) 223 CLR 122
Outcome: applied
The CDPP's advice in relation to offence 2 in warrant 1, which became the subject of par (2) in the notice, was similar in its failure to identify any act or omission of Mr Tervonen. Thus, the concrete exercise described by Gleeson CJ, McHugh and Heydon JJ in Truong v The Queen [2004] HCA 10 ; (2004) 223 CLR 122 at 142 [29] , 143 [33] (and see too per Hayne J at 185 [189], 187 [196]-[197]) could not be performed because the description of the factual elements failed to identify acts or omissions of Mr Tervonen. 63 Similarly the CDPP's advice in relation to offence 4 in warrant 1, which became the subject of par (3) in the notice, asserted that Mr Tervonen acted in concert with one Seppala and 'ordered, hired or otherwise intentionally persuaded three persons to order goods from various suppliers' (emphasis added). Once again, this description is too general. If the case were based on circumstantial evidence, the acts or omissions of Mr Tervonen from which the inference of his complicity could be drawn needed to be stated. Did Mr Tervonen order one of the three people to do something? Did he hire one of them to do it? Did he 'otherwise intentionally persuade' someone? Or, did he direct Seppala to do one or more of those things? As Gleeson CJ, McHugh and Heydon JJ observed in Truong 223 CLR at 143 [33] (in relation to whether a person extradited to Australia on charges of conspiracy to kidnap and murder a man could be convicted of the substantive offences of the kidnap and murder by procuring them to occur): 'Agreement (here, agreement to commit a crime) is the essence of conspiracy, but the nature and scope of the alleged agreement is important when performing the exercise, required by the statute, of identifying the acts or omissions by virtue of which the particular offence of conspiracy in question has, or is alleged to have, been committed.' 64 The generality and abstraction of the CDPP's description of offence 4 in warrant 1 was such that Senator Ellison could not have formed the opinion required by s 16(2)(a)(ii) in respect of par (3) of his s 16 notice. There was a similar absence of acts or omissions of Mr Tervonen in the material before Senator Ellison in respect of the following: Warrant Offence number in warrant Paragraph number in Senator Ellison's s 16 notice 1 5 4 1 8 6 1 9 7 1 10 8 1 11 9 2 1 and 2 10 2 5 12 (see below) 4 1 17 (see below) 4 2 18 4 4 19 4 5 20 4 6 21 4 7 22 4 10 23 5 1-8, 10-14, 16-19, 21, 22, 24-28, 30-33, 35-39, 41-43, 45-56 24-52 (see below) 7 1 55 8 1 56 (see below) 65 Offence 5 in warrant 2 was described as a registration offence under Chapter 16, section 7(1) of the Finnish Penal Code. This became the subject of par (12) in Senator Ellison's s 16 notice. The CDPP described it in these terms: 'The allegation is that [Mr] Tervonen, together with others, provided false information to the National Board of Patents and Registration of Finland by providing information to be entered in the register ...' that three named persons had taken up particular positions in respect of a company when none of them had consented to do so. The CDPP continued: 'Whilst it is not directly stated in the acts and omissions, there is a reference under the heading Evidence to the fact that the signatures of [two of the persons] have not been made by the persons themselves. If the magistrate accepts that this information forms part of the statement of acts and omissions, the conduct may amount to an offence of using a false instrument contrary to s 300(2) of the Crimes Act 1900 (NSW).' 92 In Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme [2003] HCA 56 ; (2003) 216 CLR 212 at 223-224 [39] , Gleeson CJ, Gummow and Heydon JJ referred to this principle. They distinguished it from a situation where a decision-maker did not give any reason for his or her decision, when the Court may be able to infer that he had no good reason (cf: per Gibbs CJ in Public Service Board (NSW) v Osmond [1986] HCA 7 ; (1986) 159 CLR 656 at 663-664). 101 There is no basis to sever portions of Senator Ellison's s 16 notice. He never formed the opinion under s 16(2)(a)(ii) based on considering Mr Tervonen's alleged conduct. That step was a precondition of the exercise of the power to give the notice, as s 16(2) provided. As Gleeson CJ, McHugh and Heydon JJ said in Truong 223 CLR at 142 [29] the exercise required by s 16 is a concrete one, not an abstract one. They said it was to proceed by reference to the actual conduct alleged against the person in question. 170 The concrete exercise required by s 16 ( Truong 223 CLR at 142 [29]) required Senator Johnston to consider the actual conduct alleged against Mr Tervonen before he could form any opinion about the matters in warrant 5. Apart from the above offences in relation to Ms Lindholm, the actual conduct alleged against Mr Tervonen in the material before Senator Johnston was at too great a level of generality, or even abstraction, to enable him to form an opinion which satisfied the requirements of s 16(2)(a) of the Act and Art 7(2)(a) of the treaty. As the Full Court pointed out in Williams 157 FCR at 297 [45], what was required was 'a statement of what is alleged to have been actually done or omitted'. The material before Senator Johnston failed to identify what Mr Tervonen was alleged actually to have done or omitted to do in a manner which would enable the identification of any part of his conduct as amounting to an equivalent offence in New South Wales had he done or omitted to do those or some of those things in that State.