Tervonen v Finland

[2008] FCA 99

FEDERAL COURT OF AUSTRALIA

Tervonen v Finland [2008] FCA 99

EXTRADITION – habeas corpus – Application not addressed to person with custody or control of Applicant – onus to establish lawfulness of detention

Extradition Act1988 (Cth)

Hicks v Ruddock (2007) 156 FCR 574 approved
R v Carter; Ex parte Kisch (1934) 52 CLR approved
R v Governor of Metropolitan Gaol; Ex parte Di Nardo (1962) 3 FLR 271 approved
Re Officer in Charge of Cells, ACT Supreme Court; Ex parte Eastman (1994) 123 ALR 478 approved
Republic of Finland v Tervonen [2007] FCA 2107 cited
Tervonen v Finland [2007] FCA 2067 cited
Tervonen v Minister for Justice and Customs (No 2) [2007] FCA 1684 cited

JAN TERVONEN v FINLAND, JILLIAN ORCHISTON AND ALLAN MOORE
NSD 2342 OF 2007

FLICK J
19 FEBRUARY 2008
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2342 OF 2007

BETWEEN:

JAN TERVONEN
Applicant

AND:

FINLAND
First Respondent

JILLIAN ORCHISTON
Second Respondent

ALLAN MOORE
Third Respondent

JUDGE:	FLICK J
DATE OF ORDER:	19 FEBRUARY 2008
WHERE MADE:	SYDNEY

THE ORDERS OF THE COURT ARE:

1.    The Application be dismissed.

2.    The Applicant to pay the costs of the First Respondent.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2342 OF 2007

BETWEEN:

JAN TERVONEN
Applicant

AND:

FINLAND
First Respondent

JILLIAN ORCHISTON
Second Respondent

ALLAN MOORE
Third Respondent

JUDGE:	FLICK J
DATE:	19 FEBRUARY 2008
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. In August 2006 the Republic of Finland applied to the Attorney-General of the Commonwealth to extradite the Applicant, Mr Jan Tervonen. Subsequent to that application being made, the steps contemplated by the Extradition Act1988 (Cth) were undertaken. A variety of challenges have been pursued in this Court by the Applicant seeking to impugn one or other of those steps.

2. It is unnecessary for present purposes to detail the sequence of those various challenges. It is sufficient to note that on 20 December 2007 Gyles J ordered that the Applicant be released from custody: Tervonen v Finland [2007] FCA 2067.

3. On 21 December 2007 an Application was then made by the Republic of Finland to the Duty Judge of this Court for the arrest of the Applicant. That order was made pursuant to s 21(6)(e) of the 1988 Act and an Order For Arrest has since been executed. An Application for bail was refused by Rares J on 24 December 2007. The order then made by his Honour was that the Applicant was to be kept in custody up to and including 15 February 2007: Republic of Finland v Tervonen [2007] FCA 2107.

4. On 15 February 2008 the Full Court of the Federal Court heard an appeal from the decision of Gyles J and an appeal from a further decision concluding that notices issued under s 16 of the 1988 Act were invalid (Tervonen v Minister for Justice and Customs (No 2) [2007] FCA 1684, 98 ALD 589). On that date the Full Court extended the orders as previously made by Rares J for a period “up to and including the determination of the appeal from Gyles J.” 

5. Now before the Court is an Application seeking a writ of habeas corpus. The Respondents to that Application are identified as “Finland” and two magistrates.

6. The Application, together with two further proceedings commenced by the Applicant, were first before the Court on 4 February 2008. On that occasion counsel for the Republic of Finland, Ms Morgan, sought an order that the Application be dismissed. That order was opposed by the Applicant and the proceedings were stood over to today. 

7. Bearing in mind that the Applicant has been in custody since July 2006 it is of obvious importance that any application made by him for his release should be heard and determined as expeditiously as possible.

8. The writ of habeas corpus is an important safeguard of liberty: Re Officer in Charge of Cells, ACT Supreme Court; Ex parte Eastman (1994) 123 ALR 478. And, when an application is made, it is the detaining party who bears the onus of showing the lawfulness of the detention: R v Carter; Ex parte Kisch (1934) 52 CLR 221 at 227. Every person is presumed entitled to his freedom unless some reason is made to appear to the satisfaction of a court why he is lawfully deprived of that freedom: R v Governor of Metropolitan Gaol; Ex parte Di Nardo [1963] VR 61 at 62 per Sholl J, (1962) 3 FLR 271. See also Clark and McCoy, Habeas Corpus: Australia, New Zealand, the South Pacific (2000) 227–8.

9. There are at least two reasons, however, why the present Application should be dismissed.

10. First, the writ is to be directed to those who have custody or control of the person detained: Hicks v Ruddock [2007] FCA 299 at [36]–[50], 156 FCR 574 at 588–91. Justice Tamberlin there held that “control or custody is an essential element to the issue of the writ”: at [36]. In the present proceedings, neither the Republic of Finland nor the magistrates are such persons.

11. This difficulty could be overcome by the Applicant seeking a writ or an order in the nature of a writ directed to the appropriate Respondent. And this may be the reason why counsel for the First Respondent did not today rely upon this difficulty as the basis upon which she sought an order for the dismissal of the Application.

12. The second reason why it is considered that the Application should be dismissed, and the basis now relied upon by the First Respondent, is the lawfulness of the Applicant’s detention. The Applicant has the benefit of a presumption in favour of liberty. Albeit not the person who has the custody or control of the Applicant, the Republic of Finland has tendered a copy of the Order For Arrest as made on 21 December 2007; a copy of the order made by Rares J on 24 December 2007; and a copy of the order made by the Full Court on 15 February 2008. The lawfulness of the detention of the Applicant is thereby established. In Re Officer in Charge of Cells, ACT Supreme Court; Ex parte Eastman (1994) 123 ALR 478 at 480, Deane J addressed the importance of the writ of habeas corpus and continued:

    It is not, however, available as a means of collaterally impeaching the correctness of a judgment or order made by a court of competent jurisdiction which is not shown to be a nullity. There is nothing at all in the material before me which provides an arguable basis for a finding that the order made by any of the learned magistrates was vitiated by absence or excess of jurisdiction or is otherwise void.

    Similarly, in the present proceedings, there is no reason to challenge the validity of the orders made on 21 and 24 December 2007 and the order made by the Full Court on 15 February 2008. 

13. The Application for the writ therefore fails.

    ORDERS

14. 1. The Application be dismissed.

    2. The Applicant to pay the costs of the First Respondent.

I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Flick.

Associate:

Dated:        20 February 2008

The Applicant:	Self-represented
Counsel for the First Respondent:	K C Morgan
Date of Hearing:	19 February 2008
Date of Judgment:	19 February 2008