Tervonen v Finland

The argument 7 The foundation for the fresh proceedings instituted by Mr Tervonen was the proposition that some of the warrants relied upon by Finland were warrants for the arrest of Mr Tervonen for pre-trial investigation purposes rather than to stand trial 'accused' of relevant 'offences', which are essential ingredients in the statutory meaning given by s 6 of the Act to the term 'extraditable person'. 8 The question whether a person is an 'extraditable person' is one of the matters which lies at the heart of the determination of a magistrate under s 12 of the Act and the formation of the opinion of a Minister under s 16 of the Act. Flick J acknowledged that failure by an extradition request to identify an extraditable person would open the way to a challenge to the validity of a notice issued under s 16 of the Act even though, as his Honour pointed out in the judgment against which leave to appeal has been sought, there does not appear to be any basis upon which an extradition request might be directly challenged as 'invalid'. 9 Flick J dismissed the proceedings because he concluded that the arguments upon which Mr Tervonen wished to rely had already been decided against him, that Mr Tervonen was estopped from raising the arguments again and that the proceedings were an abuse of process.

The test for leave to appeal 10 The test to be applied in determining whether leave to appeal should be granted is set out in Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 ('Décor'), namely, 'whether the decision at first instance was attended with sufficient doubt to warrant it being reconsidered and whether substantial injustice would result if leave were refused, supposing the decision at first instance was wrong'.

The earlier attempts to put the argument 11 At this point it is necessary to distinguish between the proceedings before Rares J and the appeal from Rares J to the Full Court (on the one hand), which were each concerned with s 16 of the Act, and the proceedings before Gyles J (on the other hand) which were concerned with s 19 of the Act. As I pointed out earlier, an appeal has been filed against the latest judgment of Gyles J and the appeal is listed for hearing in November 2008. Before the magistrate who determined that Mr Tervonen was eligible for surrender, and before Gyles J, Mr Tervonen relied on the arguments he wished to advance in the proceedings before Flick J. Gyles J felt constrained by the judgment of the High Court in Kainhofer to conclude that the argument was unavailable in proceedings concerned with s 19 of the Act. Whether that was a correct view or not may be examined on the appeal. If it was correct then the arguments are not available to Mr Tervonen in connection with s 19 of the Act. If Gyles J was incorrect the arguments remain available in that context, although it does not appear that they relate to all the warrants outstanding against Mr Tervonen. 12 Gyles J, however, did not think that Mr Tervonen's contentions were unworthy of consideration or necessarily wrong so far as they concerned fundamental aspects of the extradition arrangements between Australia and Finland. His Honour said: '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. …' and: '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. 22. However, counsel for Finland submits that this argument is effectively foreclosed to Tervonen by the decision of the High Court in Director of Public Prosecutions (Cth) v Kainhofer (1995) 185 CLR 528. …' and: '24. … I can see no escape from the conclusion that the decision of the High Court in Director of Public Prosecutions (Cth) v Kainhofer 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 Prosecutions (Cth) v Kainhofer 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 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.' 13 In his judgment concerning s 16 of the Act Rares J also addressed the question whether it was open to the Minister to find that the Finnish warrants satisfied the criteria established by s 6(a)(i) of the Act, namely, whether they were warrants in force for the arrest of Mr Tervonen in relation to offences which he was accused of having committed. Mr Tervonen had argued before Rares J that the warrants referred to him 'being suspected on probable cause' of identified conduct and that such a formulation fell short of an accusation that he had committed a relevant offence. Rares J rejected the argument. He referred to the following passage in Kainhofer at 540: '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.' 14 Rares J said (at [37] and [42]): '37 Mr Tervonen argued that on their face none of the 8 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). … 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 185 CLR at 540, 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).' 15 As earlier noted Rares J, however, decided that each of the two notices under s 16 which were before him for examination was invalidly issued and he made orders quashing them. When those orders were appealed it would usually be, and was, the case that the appeal would be decided without disturbing the conclusion which Rares J had reached that it was open to Senator Ellison to conclude that Mr Tervonen was an extraditable person within the meaning of s 6(a)(i) of the Act unless Mr Tervonen put that conclusion in issue by filing a notice of contention in the appeal seeking to support the conclusion of invalidity of the notices upon this ground, if necessary. He did not do that. As Flick J pointed out in the judgment in respect of which leave to appeal is sought (at [16]): 'No argument as to the meaning of the words "accused" or "offence" occurred in the Full Court. No notice of contention was filed on behalf of Mr Tervonen seeking to raise any such argument before the Full Court.'

Another consideration 16 There is a further matter which is worth mentioning before I deal more directly with whether the tests in Décor have been made out. Flick J dismissed Mr Tervonen's application in response to a notice of motion filed by the Minister which sought dismissal of the proceeding under O 20 r 5 of the Federal Court Rules on the basis it was frivolous or vexatious or an abuse of process or, alternatively, under s 31A(2) of the Federal Court of Australia Act 1976 (Cth) on the basis it had no reasonable prospects of success. Flick J dismissed the application pursuant to O 20 r 5 although it was clear that his Honour also formed the view that it had no reasonable prospect of success. He could, as a result, have relied instead, or in addition, upon s 31A. 17 It is well established that an order for summary dismissal of an application under a rule such as O 20 r 5 is an interlocutory order (see the cases discussed in Jefferson Ford Pty Ltd v Ford Motor Company of Australia Limited (2008) 167 FCR 372 ('Jefferson Ford'). That is why leave to appeal is required. However, on the majority view in Jefferson Ford Mr Tervonen would have been entitled, as of right, to appeal against an order dismissing his application under s 31A had that procedural foundation been selected instead of O 20 r 5. I need say nothing about whether a challenge to an order under s 31A would have enjoyed reasonable prospects of success but I would be reluctant to unduly curtail Mr Tervonen's opportunity to challenge the decision, when in other circumstances he might have done so as of right, unless it is clear that there is a legal bar to any possibility of success.

The first limb in Décor 18 Flick J decided that Mr Tervonen's argument had no prospects of success for the reasons given by Gyles J, that it should have been raised in the appeal proceeding against the orders of Rares J and that it was an abuse of process to raise the matter now. Those matters require separate attention.

The decision of Gyles J 19 In Kainhofer (a case which concerned extradition sought by Austria, a civil law country like Finland) a Full Court of this Court upheld the same sort of argument that Mr Tervonen wishes to rely upon. The proceedings were concerned with the operation of s 19, rather than s 16 of the Act. The Full Court said (at 358-359): 'The Act clearly provides for the surrender of a person to a requesting State only if the person is accused, or has been convicted, of an extradition offence. We are of opinion that the Treaty is to the same effect.' … 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. That the warrant of arrest provides for the appellant to be taken into custody "on the strong suspicion" of having committed the specified offences clearly suggests that her presence in the Republic of Austria is required in furtherance of the investigations being conducted by the appropriate authorities in that country rather than to answer criminal charges of which she is presently "accused" in the sense to which we have referred.' (Emphasis added) 20 However, in the High Court that approach was not regarded as sufficiently focussed upon the particular requirements of s 19 of the Act. The majority judgment held (185 CLR at 540): 'In the present case, the only issue for determination under s 19(2)(a) was whether the document produced was a duly authenticated warrant or copy warrant issued by the Republic of Austria for the arrest of the respondent for an extradition offence for which the surrender of the respondent was sought by the Republic of Austria. That issue did not require a finding as to whether the respondent was a person "accused". It follows that the Federal Court was in error in considering whether the s 19 magistrate could properly have found that the respondent had been "accused" of any of the four offences in relation to which the magistrate held the respondent to be eligible for surrender. It is unnecessary to decide whether the Federal Court was itself in error in the meaning which it attributed to "accused" or in the effect which it attributed to the warrant for the arrest of the respondent issued by the Salzburg State Court in the Republic of Austria.' (Emphasis added) 21 The High Court's approach was based upon the fact that s 19 does not require a magistrate to enquire into whether a person against whom extradition is brought is an 'extraditable person' within the meaning of s 6 of the Act. Further, although whether a person is an extraditable person is a matter about which the Minister must form an opinion (s 16(2)(a)(i)), a magistrate is not entitled to review that opinion (Kainhofer at 538). It was for those reasons that Gyles J also concluded that Mr Tervonen's argument could not be sustained in relation to proceedings under s 19. As indicated, that decision is subject to appeal. Mr Tervonen's interests in relation to his present application are best served by assuming the correctness of Gyles J's decision for present purposes because it strengthens the proposition that he should have been allowed to argue the matter in connection with s 16 of the Act. 22 Having regard to the judgment of the High Court in Kainhofer, it is at least arguable that Flick J was incorrect to conclude that there was no possibility of a different result, in proceedings concerning s 16 of the Act, than that reached by Gyles J.

Anshun estoppel 23 Flick J's decision was also based upon the decision of the High Court in Port of Melbourne Authority v Anshun Proprietary Limited (1981) 147 CLR 589. His Honour said, in the judgment in respect of which leave is sought, (at [24]): '24. 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.' 24 Anshun estoppel, as the principle distilled by that decision is now known in Australia, is not an absolute bar as the following passages in the majority judgment (at 602-604) illustrate: '[W]e would prefer to say that there will be no estoppel unless it appears that the matter relied upon as a defence in the second action was so relevant to the subject matter of the first action that it would have been unreasonable not to rely on it. Generally speaking, it would be unreasonable not to plead a defence if, having regard to the nature of the plaintiff's claim, and its subject matter it would be expected that the defendant would raise the defence and thereby enable the relevant issues to be determined in the one proceeding. In this respect, we need to recall that there are a variety of circumstances, some referred to in the earlier case, why a party may justifiably refrain from litigating an issue in one proceeding yet wish to litigate the issue in other proceedings e.g. expense, importance of the particular issue, motives extraneous to the actual litigation, to mention but a few … It has generally been accepted that a party will be estopped from bringing an action which, if it succeeds, will result in a judgment which conflicts with an earlier judgment … The likelihood that the omission to plead a defence will contribute to the existence of conflicting judgments is obviously an important factor to be taken into account in deciding whether the omission to plead can found an estoppel against the assertion of the same matter as a foundation for a cause of action in a second proceeding. By "conflicting" judgments we include judgments which are contradictory, thought they may not be pronounced on the same cause of action. It is enough that they appear to declare rights which are inconsistent in respect of the same transaction.' 25 Invocation of the principle of Anshun estoppel calls for the exercise of a judgment. In the present case it required an assessment of whether it was 'unreasonable' for Mr Tervonen not to have raised his present contentions on the appeal against Rares J and whether there is a risk of 'conflicting judgments' if he is allowed to argue the matter now. 26 Because the application of the doctrine of Anshun estoppel calls for the exercise of a judgment I am prepared to accept that there is room for argument about Flick J's conclusion.

Abuse of process 27 Finally, Flick J decided that it would be an abuse of process, and vexatious and oppressive, to put the Minister to the task of meeting another challenge to Mr Tervonen's extradition. In part the conclusion was based upon the decision of Gyles J. Flick J said (at [28]): 'The decision of Gyles J correctly, with respect, concluded that the argument sought to be pursued was foreclosed by the decision in Kainhofer. To now permit the same argument to be advanced, albeit against a different respondent, would be an abuse of process as it would be the pursuit of litigation already resolved against a party and litigation having no prospects of success.' 28 I have already expressed my view that there is scope for debate about whether Gyles J's conclusion, that Mr Tervonen's argument was not available in relation to s 19 of the Act, foreclosed it also in relation to s 16. 29 The other basis upon which Flick J concluded that Mr Tervonen's application was an abuse of process appeared to be (at [32]-[33]) that the time had arrived to put a stop to Mr Tervonen's continuing attempts to challenge decisions which must be taken to have been 'fully reviewed', or an 'ample opportunity' extended for such review. His Honour also expressed the view (at [39]-[40]) that it was 'too late' to allow the application to proceed and to do so would be an abuse of process. 30 Those conclusions were expressed somewhat generally, although his Honour did refer to his judgment in Brock v Minister for Justice and Customs (2007) 243 ALR 315 ('Brock') at [72]-[74]. His Honour's judgment in Brock was affirmed on appeal on 17 September 2008 (Brock v Minister for Home Affairs [2008] FCAFC 165 ('Brock Appeal'). Importantly, for present purposes, Lindgren and Tracey JJ said (at [77]): '77 We would also uphold the second ground advanced by Ms Gleeson of counsel for the Minister, for resisting the granting of leave to appeal. This is that according to the scheme of the provisions to which we have referred, the work to be done by the issue of a Notice of Receipt of Extradition Request under s 16 is spent once the s 19 stage in the process is reached. The presence of para (c) in s 19(2) demonstrates an intention that any challenge to the satisfaction of the dual criminality provision is to take place within the framework of an application under s 21 for review of the Magistrate's order. The Magistrate was required to satisfy herself independently that the dual criminality requirement was met, and was not required to review the Minister's having been previously satisfied that it was met for s 16 purposes: see Directorof Public Prosecutions (Cth) v Kainhofer (1995) 185 CLR 528 at 538-539.' (Emphasis added) 31 On one view, the passage I have emphasised may apply to the present case. It marks an important point of departure from the views expressed in the Brock Appeal by Gray J (see at [8]). The conclusion is binding upon me so far as it applies. 32 However, their Honours were not addressing the question of whether Mr Brock was an extraditable person within the meaning of s 6 of the Act. They were dealing with the 'dual criminality' requirement about which the Minister must form an opinion (s 16(2)(a)(ii)) and the magistrate must be satisfied (s 19(2)(c)). The magistrate is required to form an independent view about that issue which is neither a review of the Minister's opinion nor dependent upon it. However, whether a person is 'an extraditable person' is not a matter about which a magistrate must be satisfied. For present purposes (although a Full Court may in due course take a different view) I do not read the passage from the Brock Appeal which I have extracted above as eliminating the possibility of a challenge to the formation of an opinion by a Minister that a person is an extraditable person simply because the s 19 stage has been reached.

The second limb in Décor 33 As I have concluded that there is room for legitimate argument to the effect that Flick J was incorrect in the view to which he came on each of the aspects which moved him to dismiss Mr Tervonen's latest application, it is necessary to deal with whether substantial injustice would be caused by refusing leave to appeal, supposing the decision at first instance to be wrong. 34 Although Mr Tervonen's argument, and Gyles J's tentative view about its attractions, did not extend to all the warrants upon which Finland relied when it sought his extradition, Mr Tervonen has a real and direct interest in limiting, so far as he can, the offences for which he may, in due course, be surrendered for extradition, even if he cannot avoid extradition altogether. That is because he must not, under the Act, be surrendered unless Finland has given a 'specialty assurance' to the effect that he will only be tried for offences for which he is surrendered (see s 22(3) and (4) of the Act). 35 In my view, therefore, there is a possibility of substantial injustice to Mr Tervonen unless it is clear that an appeal against the judgment of Flick J would have no prospect of success. I am satisfied that this favours a grant of leave to appeal. 36 I am reinforced in that approach by the fact that where a decision finally disposes of an application that is a circumstance which generally operates in favour of a grant of leave unless it may nevertheless be concluded that there are such insufficient prospects of success that the grant of leave to appeal would be of no real utility (see Ex parte Bucknell (1936) 56 CLR 221 at 225-6; see also Yap v Granich and Associates [2001] FCA 1735).

Conclusion 37 In all the circumstances, I think there remains open to Mr Tervonen the possibility that a Full Court might conclude that he should not be prevented from putting his argument that the Minister should not have formed the opinion that he was an extraditable person with respect to some, at least, of the eight warrants relied upon by Finland. In the context of s 16 of the Act, even if not under s 19, such an argument gains support from the observations of the Full Court in Kainhofer and from the remarks of Gyles J. I am also satisfied that the interests of justice require that the opportunity to argue an appeal should not be denied to Mr Tervonen. 38 Naturally, Mr Tervonen's failure to press the argument on the appeal from Rares J remains a formidable obstacle to his prospects on appeal but it is not my task to decide whether Flick J was correct or incorrect in his approach to that issue. If there is a sufficient case for the attention of a Full Court Mr Tervonen is entitled to a grant of leave to appeal. 39 I emphasise that my decision that Mr Tervonen should have leave to appeal against the summary dismissal of his application provides no forecast of the result of the appeal, much less of the outcome of the application if the appeal is upheld. As Flick J, with respect, correctly observed, the application is largely misconceived in its focus and with respect to the precise relief which was sought. Those problems remain, even if an appeal succeeds, but they are not at the centre of matters for present attention. 40 I will order that leave is granted to appeal against the judgment of Flick J in Tervonen v Finland [2008] FCA 1133. Costs will be reserved. 41 In my view this is a suitable matter for use of the arrangements set out in O 80 of the Federal Court Rules to provide Mr Tervonen with pro bono legal representation should he wish to avail himself of it. I will give the necessary directions to make that facility available to Mr Tervonen. I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Buchanan.

Associate: Dated: 16 October 2008 The Applicant appeared in person.