Tervonen v Finland (No. 2)

FEDERAL COURT OF AUSTRALIA

Tervonen v Finland (No. 2) [2009] FCAFC 4

EXTRADITION – whether appellant extraditable person under section 19 of Extradition Act 1988 (Cth) – Court bound by earlier decision – no error in analysis or conclusions of the trial judge – whether leave to further amend appeal should be granted – whether ‘dual criminality’ requirement satisfied in proceedings below – material before magistrate and trial judge sufficient to satisfy statutory test – leave to amend appeal denied – appeal dismissed

Extradition Act 1988 (Cth) s 6(a)(i), s 10(2), s 19(2), s 19(3)(c), s 21

Director of Public Prosecutions (Cth) v Kainhofer (1995) 185 CLR 528
Minister for Home Affairs v Tervonen (2008) 166 FCR 91

JAN TERVONEN v FINLAND and MAGISTRATE PAUL LYON

NSD 882 of 2008

NORTH, BUCHANAN AND JAGOT JJ
30 JANUARY 2009
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 882 of 2008

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN: JAN TERVONEN
Appellant

AND:

FINLAND
First Respondent

MAGISTRATE PAUL LYONS
Second Respondent

JUDGES:	NORTH, BUCHANAN AND JAGOT JJ
DATE OF ORDER:	30 JANUARY 2009
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal is dismissed.

2.The appellant is to pay the first respondent’s costs of the appeal.

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

The text of entered orders can be located using eSearch on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 882 of 2008

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

FINLAND
FIRST Respondent

MAGISTRATE PAUL LYONS
Second Respondent

AND: JAN TERVONEN
Appellant

JUDGES:	NORTH, BUCHANAN AND JAGOT JJ
DATE:	30 JANUARY 2009
PLACE:	SYDNEY

REASONS FOR JUDGMENT

THE COURT:

1. In the judgment under appeal Gyles J decided that he was bound by the judgment of the High Court in Director of Public Prosecutions (Cth) v Kainhofer (1995) 185 CLR 528 (‘Kainhofer’) to conclude that arguments upon which Mr Tervonen wished to rely in connection with a request by Finland for his extradition, were bound to fail (Tervonen v Finland [2008] FCA 781).

2. Grounds 1 and 2 of the appeal were in the following terms.  It is convenient to deal with them first.

   1.The Court erred in holding that it could not, when determining whether the Appellant was eligible for surrender under s19, and in particular s19(2)(a), determine for itself whether the warrants produced by the First Respondent ‘accused’ the Appellant of an offence as required by s19(3)(a).

   2.The Court erred in holding that it could not determine, for itself, whether the Notice issued by the Attorney-General under s16(2)(a) was a valid notice for the purposes [of] s19(1)(b).

3. Gyles J was conducting a review, under s 21 of the Extradition Act 1988 (Cth) (‘the Act’), of a determination by a magistrate under s 19 of the Act that Mr Tervonen was eligible for surrender to Finland. Mr…