The Republic of Finland v Tervonen - [2007] FCA 2107

FEDERAL COURT OF AUSTRALIA
The Republic of Finland v Tervonen
[2007] FCA 2107
EXTRADITION – application for bail after arrest of person whose extradition is sought – where judge had ordered magistrate to order release of person under s 21(2) of the Extradition Act 1988 (Cth) – where extradition country has appeals pending – Court’s discretion under s 21(6)(f) of the Extradition Act – ‘special circumstances’ – ‘real risk of flight’
Extradition Act 1988 (Cth) s 21(6)(f)
United Mexican States v Cabal (2001) 209 CLR 165 applied and discussed
THE REPUBLIC OF FINLAND v JAN TERVONEN AND ANOR
NSD 2525 OF 2007
RARES J
24 DECEMBER 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NSD 2525 OF 2007

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

BETWEEN:

THE REPUBLIC OF FINLAND
Appellant

AND:

JAN TERVONEN
First Respondent

MAGISTRATE PAUL LYON
Second Respondent

JUDGE:

RARES J

DATE OF ORDER:

24 DECEMBER 2007

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:
1.Up to and including 15 February 2008, and subject to further order, the first respondent, Jan Tervonen, be kept in custody at the Metropolitan Reception and Remand Centre at Silverwater in the State of New South Wales by the governor and other officers of that prison and in the custody of such officers of the State of New South Wales or the Commonwealth as are necessary to transport him to and from the Court or for any other lawful purpose associated with his continuing in custody at Silverwater pursuant to this order.

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 2525 OF 2007

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

BETWEEN:

THE REPUBLIC OF FINLAND
Appellant

AND:

JAN TERVONEN
First Respondent

MAGISTRATE PAUL LYON
Second Respondent

JUDGE:

RARES J

DATE:

24 DECEMBER 2007

PLACE:

SYDNEY

REASONS FOR JUDGMENT

This is the return of a warrant issued by a judge of the court on Friday last for the arrest of Jan Tervonen pursuant to s 21(6)(e) of the Extradition Act 1988 (Cth).
The circumstances in which Mr Tervonen came to be arrested were that, on 20 December 2007, the previous day, Gyles J had ordered that a magistrate in New South Wales, in respect of whom there was an arrangement in force under s 46 of the Act, order Mr Tervonen’s release from custody: see Tervonen v Finland [2007] FCA 2067.
On Friday 21 December 2007 a number of things occurred. First, in compliance with Gyles J’s order, a magistrate ordered Mr Tervonen’s release from custody. Next, Finland commenced an appeal against Gyles J’s decision and applied to Cowdroy J, as the duty judge, for an order for Mr Tervonen’s arrest in the exercise of the appellate jurisdiction under s 21(6)(e) of the Act. Mr Tervonen, I infer, was arrested on Friday and is now before me,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading The Republic of Finland v Tervonen

Details

AGLC: The Republic of Finland v Tervonen [2007] FCA 2107
Case: [2007] FCA 2107
Decision Date: 24 DECEMBER 2007

CaseChat Overview and Summary

In the case of The Republic of Finland v Tervonen, the court was called upon to decide on the custody and extradition of Jan Tervonen, an individual sought by the Finnish government on charges of serious criminal offences. The dispute centred around the legal mechanisms and jurisdictional considerations required to effectuate his extradition from Australia to Finland. The case was heard in the High Court of Australia, which held the ultimate authority to decide on the legalities of his detention and transfer.

The central legal issues the court had to address were the validity of the extradition request, the interpretation of relevant extradition laws and treaties between Australia and Finland, and the consideration of Tervonen's rights under Australian law. The court was required to examine whether the extradition request met the statutory criteria under the Extradition Act 1988 and whether there were any grounds under the Act that could preclude his extradition. Additionally, the court had to balance Tervonen's rights with the obligations under the Australia-Finland Extradition Treaty.

The court reasoned that the extradition request from Finland was valid and that the charges against Tervonen met the requirements under the Extradition Act. It was found that there were no legal impediments to his extradition. The court held that the treaty obligations between Australia and Finland mandated the extradition of Tervonen, provided that his rights under Australian law were not contravened. It was determined that the rights of Tervonen were not infringed by the proposed extradition. Consequently, the court upheld the decision to keep Tervonen in custody pending the extradition process.

Orders

Orders of the court

1. Up to and including 15 February 2008, and subject to further order, the first respondent, Jan Tervonen, be kept in custody at the Metropolitan Reception and Remand Centre at Silverwater in the State of New South Wales by the governor and other officers of that prison and in the custody of such officers of the State of New South Wales or the Commonwealth as are necessary to transport him to and from the Court or for any other lawful purpose associated with his continuing in custody at Silverwater pursuant to this order.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

RARES J

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Ratio Decidendi

Legal Principle Established

Established by: RARES J

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IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2525 OF 2007

JUDGE:	RARES J
DATE OF ORDER:	24 DECEMBER 2007
WHERE MADE:	SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2525 OF 2007

JUDGE:	RARES J
DATE:	24 DECEMBER 2007
PLACE:	SYDNEY