Tervonen v Minister for Home Affairs; Tervonen v The Republic of Finland & Anor

[2008] HCATrans 385

[2008] HCATrans 385

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S91 of 2008

B e t w e e n -

JAN TERVONEN

Applicant

and

MINISTER FOR HOME AFFAIRS

Respondent

Office of the Registry
  Sydney  No S92 of 2008

B e t w e e n -

JAN TERVONEN

Applicant

and

THE REPUBLIC OF FINLAND

First Respondent

MAGISTRATE PAUL LYON

Second Respondent

Applications for special leave to appeal

GUMMOW J
KIRBY J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 14 NOVEMBER 2008, AT 11.37 AM

Copyright in the High Court of Australia

__________________

MR T.A. GAME, SC:   If the Court pleases, I appear for the applicant with MR D.P.M. ASH in both of these matters.  (instructed by DLA Phillips Fox)

MR N.J. WILLIAMS, SC:   May it please the Court, in the first of those matters I appear with MS K.C. MORGAN for the respondent and in the second I appear for the first respondent.  (instructed by Blake Dawson and Commonwealth Director of Public Prosecutions – Sydney)

GUMMOW J:   There is a submitting appearance for the second respondent, that is the magistrate in Matter 92 of 2008.

MR GAME:   If the Court pleases, in these matters the court requested pr bono assistance in the presentation of this case and this and the documentation is that assistance and I say that partly so your Honours might understand the fact that there are so many cases ‑ ‑ ‑

GUMMOW J:   That is what is worrying us a little bit.  What is the current state of play?  Let me say, is the current state of play that Justice Gyles fairly recently decided an eligibility to surrender review under section 21?

MR GAME:   Yes, your Honour.

GUMMOW J:   But that is on its way to the Full Court?

MR GAME:   That is on Monday week and your Honour ‑ ‑ ‑

GUMMOW J:   There is some proceeding before Justice Flick, what is that about?

MR GAME:   Yes.  First if your Honour goes to the ‑ ‑ ‑

GUMMOW J:   Just tell me.

MR GAME:   Sorry, I will tell you.  Justice Gyles said that warrants 4 to 8 were not warrants for arrest for commission of an offence but investigative, but he could not do anything about that because of the decision of this Court in Kainhofer, but he found that to be tolerably clear.  Mr Tervonen then commenced proceedings before Justice Flick to ventilate that issue.  The respondent to those proceedings ‑ ‑ ‑

GUMMOW J:   Why did he not appeal?  Why did he not appeal Justice Gyles’ decision?  Why did he go to Justice Flick?

MR GAME:   He did appeal Justice Gyles.  If your Honour looks at the chronology at the back of ‑ ‑ ‑

GUMMOW J:   What was the occasion for the application to Justice Flick?

MR GAME:   The application to Justice Flick was a fresh application in which he sought to review or challenge the original section 12 warrants that were produced by Finland and, in effect, to prohibit the Minister from acting on the basis that they were valid.  In those proceedings, the Minister raised what was described as an “Anshun estoppel” on the basis that in these proceedings Mr Tervonen, in response to the Minister’s appeal to the Full Court, did not raise by way of notice of contention an issue as to the validity of the warrants.

That is the first matter now that I wish to argue in his favour which is the point that was not taken on the notice of contention, but as I say, on Monday and Tuesday of the week after next, is firstly the appeal against Justice Gyles’ decision, which I would have to say is, in the light of Kainhofer, effectively doomed if - unless Kainhofer was reviewed or reconsidered by this Court at some later time, but those proceedings are effectively doomed because of Kainhofer.  In the second proceedings before the appeal from Justice Flick ‑ ‑ ‑

GUMMOW J:   When is that set down?

MR GAME:   The next day.

GUMMOW J:   Why should we not, at the least, wait until you bring them all here together in the one basket?

MR GAME:   I think that would be a very good idea.

GUMMOW J:   I appreciate the difficulties when there is pro bono counsel involved, but otherwise the whole thing may go off half‑cocked.

MR GAME:   I understand entirely, but what has happened is this, is that although Mr Tervonen has attempted to litigate this point from the commencement – and in fact he started these proceedings before on the basis of Minister Ellison’s section 16 notice which was substituted by another section 16 notice after these proceedings had been commenced and you can see that in the ‑ ‑ ‑

GUMMOW J:   Justice Gyles at some stage – there is a complete procedural morass but, at the end of the day, double criminality is obviously important.

KIRBY J:   And in fact, that is really the only thing of a special leave character, as it seemed to me.  I mean, you are not going to get up on a Jones v Dunkel evidentiary point in this Court.  So the real issue is, is the double criminality a matter of general importance which warrants the intervention of this Court and if so when, and, as to the second, it would seem to me, if so when, that would be when everything is before us.

MR GAME:   Yes, we would submit there are two live points in this case which is the – shall I say – whether or not the warrants were warrants for arrest.  The second is whether or not there was any sufficient statement of the acts and omissions.  Now, your Honour I would, if I had ‑ ‑ ‑

GUMMOW J:   I am going to ask your opponent in a minute whether there would be a resistance on the respondent’s part to standing over these applications until the disposition and any further steps taken consequent upon them pending Full Court appeals.

MR WILLIAMS:   We would oppose that, your Honours, simply on the basis that the applications before the Court today lack merit.  There is not a double criminality point in the case today.  There may be one in the case that comes from the appeal from Justice Gyles, although that may also be largely a question of fact.

KIRBY J:   Yes, well I understand, we have read your submission and you do not concede it, but just assume against that possibility that we might see a little hint of a point in that.  The question then becomes when is the best

time for us to look at that point and that would seem to be after the Full Court has dealt with the matter in the Monday after next and then we have everything before us instead of dribs and drabs which surely is not in the interests of the Minister to have all these cases hovering in the background.

MR WILLIAMS:   Well, your Honours, we would say only a couple of things.  First, having regard to the multiplicity of proceedings when the Court has before it two applications that manifestly – in our respectful submission – lack merit and having regard to the matters of international comity and expedition, there is something to be said for dealing with those while they are here.  The questions of double criminality will arise in the proceeding from Justice Gyles ‑ ‑ ‑

GUMMOW J:   I know.  That is what is agitating us.

KIRBY J:   That is the point.

MR WILLIAMS:   Yes, but that is a separate matter.  It is not the matter that is before the Court today.

KIRBY J:   No, but if we are going to deal with double criminality, we are not going to knock them out on this point now and affirm the decision below if there is another case hovering in the wings from Justice Gyles via the Full Court on the Monday after next where that issue is also raised, which can be consolidated with this proceeding so that we are dealing with the legal point and all the factual points.

MR WILLIAMS:   But the proceeding from Justice Gyles in two weeks will be the proceeding that properly raises the double criminality basis, that is ‑ ‑ ‑

KIRBY J:   They say it is raised in this case as well, and therefore why should we be discerning the difference, if any, between them and not dealing with them altogether?

MR WILLIAMS:   Well what they say in this case as to double criminality is one thing, and there is one proposition in respect of it and that is that the Minister could not properly determine a section 16 application unless he had before him a statement that separately described the conduct for each offence.  That is their special leave point ‑ ‑ ‑

GUMMOW J:   Well, we understand you are not taking a backward step, Mr Williams.  Mr Game, have you anything to say in opposition to the course the Court suggested, namely, that these applications, 91 and 92 of 2008, stand out of the list to be restored on the list on further application and arrangement with the Registry?  If there then be any pending proceedings in this Court in relation to the matters now listed in the Full Court of the Federal Court on Monday week, all applications then should be linked.

MR GAME:   Yes, thank you, your Honour.

KIRBY J:   Special leave list in December.

MR GAME:   December sounds right.

GUMMOW J:   Sounds a bit soon.  The Full Court has to take time to consider, I suppose, particularly if there is some challenge to Kainhofer.  The costs of today in 91 and 92 would be costs of the eventual outcome.

MR GAME:   If the Court pleases.

GUMMOW J:   We will take a short adjournment.

AT 11.46 AM THE MATTERS WERE CONCLUDED