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 1 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). 2 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. 3 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, represented by counsel. 4 Under s 21(6)(f) of the Act, if the person whose extradition is sought has been arrested under an order made under s 21(6)(e), the Court has a discretion either to order the person to be kept in such custody as the Court directs or, if there are special circumstances justifying such a course, order his or her release on bail on such terms and conditions as the Court thinks fit until, relevantly, the appeal has been heard. 5 Finland's appeal is set down for hearing on 15 February 2008, cognately with an appeal from a decision which I had given, namely that the two s 16 notices issued by the two previous Ministers were each invalid: Tervonen v Minister for Justice and Customs (No 2) [2007] FCA 1684. 6 Gyles J had proceeded on the basis that before him there was no dispute, following my decision, that in the s 19 proceedings before the magistrate the requirement in s 19(1)(b) of the Act that there be a notice under s 16 had not been satisfied: see Tervonen v Finland [2007] FCA 2067 at [10]. 7 In United Mexican States v Cabal (2001) 209 CLR 165, the High Court (Gleeson CJ, McHugh and Gummow JJ) considered the question of whether a person whose extradition is sought ought be admitted to bail under s 21(6)(f). Their Honours identified the tests which need to be applied in such an application as the present, notwithstanding that in that case it was the person whose extradition was sought who was seeking to challenge proceedings on appeal and had applied for bail under s 21(6)(f)(iv). Gleeson CJ, McHugh and Gummow JJ held (Cabal 209 CLR at 192 [62]) that, before a judge granted bail, the person whose extradition was sought ordinarily would need to show three things: (1) the application for review had strong prospects of success; (2) special circumstances; (3) an absence of risk of flight. 8 In this case, Mr Tervonen need not address the first matter on which he carried an onus because he had succeeded before Gyles J. In my opinion, it is for Finland to show that it has prospects of success on its appeal. It has not been argued that the appeals have no merit. Indeed, they raise important questions of the construction of both ss 19 and 16. So far as is relevant, the appeal under s 19 from Gyles J's decision, itself, raises questions of significance in the construction of s 19 and the review power. No submission has been made to me to suggest that the appeal is one which would not satisfy any relevant requirement that the extradition country would bear in an application of the present kind. It seems to me that, at least, there is a bona fide appeal with a reasonable basis. 9 The second and third matters upon which Mr Tervonen bears an onus are, as was explained in Cabal 209 CLR 165, somewhat interlinked. The special circumstances relied on must be of a different kind from the disadvantage that all extradition defendants have to endure. They need to be extraordinary and not factors applicable to all persons facing extradition. In addition, there must be no real risk of flight: see Cabal 209 CLR at 191 [61]. 10 As their Honours made clear, the Parliament had in mind that there was a very high risk of persons sought for extraditable offences absconding. They observed that the explanatory memorandum for the Extradition Bill 1987 (Cth) at p 18 noted that, in many cases, the person is in Australia to avoid arrest in the country where he or she is alleged to have committed the offence; that is, the person left the jurisdiction to avoid justice: Cabal 209 CLR at 191 [60]. Their Honours concluded (Cabal 209 CLR at 194 [70]; see also at 195 [72] and [74]): 'The purpose of the extradition proceedings is set at risk if an applicant is entitled to bail upon proof of special circumstances and a probability that the applicant will not abscond. If there is a real risk that the applicant will abscond, the objects of the Act and the rationale of ss 15 and 21 require the refusal of bail in all but exceptional cases. Unless the special circumstances are so cogent and the risk so very low that the proper exercise of discretion requires the grant of bail, any real risk of flight should be decisive against the grant of bail.' (Their Honours' emphasis.) 11 As I have noted, the present case is somewhat unusual to the general one which their Honours were considering, namely: Mr Tervonen has succeeded, in front of two single judges of the court, in his applications under ss 16 and 19. However, even if those factors amount to special circumstances, I am satisfied that there is a real risk that Mr Tervonen may abscond. 12 A passport was found in Mr Tervonen's possession when he was arrested. The evidence before me is that it was an Estonian passport in the name of Juri Moskov. Forensic examination suggests it had been altered by the substitution of a new photograph of the passport holder and a change to his date of birth without alteration of the machine readable data on the passport as issued, thereby demonstrating an alteration or unusual disparity between the details apparently recorded on the passport and those previously inserted by the country of issue. In addition, there was evidence in the material provided by Finland, in support of its request for extradition, that Mr Tervonen had made admissions that he had passports from several countries in another name, namely Urmas Murk, including one issued by Estonia. 13 I am positively satisfied that there is a real risk of Mr Tervonen's flight if he is granted bail. I am able safely to conclude that Mr Tervonen has not discharged the onus of showing an absence of risk of flight. 14 I am also mindful that, although he has spent a considerable period in custody since his original arrest in mid-2006, the two appeals will be heard in a reasonably short period of time. 15 In my opinion, I should order that Mr Tervonen be kept in custody until Finland's appeal against Gyles J's decision and the orders made by him on 20 December 2007 is heard. I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares. Associate: Dated: 15 January 2008 Counsel for the Appellant (respondent on the application for bail): KC Morgan Solicitor for the Appellant: Commonwealth Director of Public Prosecutions Counsel for the First Respondent (applicant on the application for bail): DPM Ash Date of Hearing: 24 December 2007 Date of Judgment: 24 December 2007