Is the evidence relied on by Mr Kalinovas admissible and/or of probative weight?
75 Mr Kalinovas filed two affidavits, one by himself and one by Rabbi Yoram Ulman, the President of the Rabbinical Council of NSW, Senior Judge of the Sydney Beth Din (Jewish Ecclesiastic Court) and Chaplain to the NSW Corrective Services. Rabbi Ulman is the head of the Friends of Refugees of Eastern Europe, the community organisation of Russian-speaking Jews of NSW. He states that he provides his statement on the basis of information provided by community leaders in Lithuania, on the basis that they cannot and will not be identified, for fear of reprisal by the authorities in that country. Rabbi Ulman explains his interest in, and expertise in, reports of racism and anti-Semitism in Lithuania as a country, and as a region of the former Soviet Union.
76 Lithuania first objected and then withdrew objection to those parts of Rabbi Ulman's affidavit that set out the history of anti-Semitism in that country during the Holocaust and since that time. In summary:
Religiously based prejudice has been endemic since the 8th century.
Since the 1930s, Jews were seen as agents of Russian expansionism and communism, despite mass Jewish emigration after the Russian takeover.
Virtually all Jews who were in Lithuania during the war were murdered, many by Lithuanians who displayed ferocity and brutality which was 'the worst in Europe'.
These deep and cultural attitudes persist today.
There is still discrimination and racism, reinforced by the fact that the few Jews to enter Lithuania after the war were Russian speakers.
Accordingly, the number of Jews in Lithuania today is only around 4,000 from a pre-war Jewish population of more than 200,000.
77 Rabbi Ulman also gave evidence, on information and belief on the basis stated, as to the treatment of Jews in the Lithuanian prison system. In summary:
A person who is Russian speaking and who is identified as Jewish will be treated in a far worse manner than an "ethnic" Lithuanian in the prison system by the authorities such as guards and especially by fellow prisoners.
The likelihood of violence and physical and mental neglect are higher if the person is Jewish and Russian speaking.
The families of those in prison report constant racist abuse, violent beatings by inmates and guards, untreated illness and arbitrary denial of visitor rights. This has led to cases of severe depression and mental illness to the point of catatonia.
There have not been reports of this treatment as the number of Jews imprisoned is statistically insignificant.
78 In oral evidence before the Magistrate, Rabbi Ulman explained the sources of his information, being a 'very prominent academic who is an activist for human rights' and a 'prominent lawyer who has firsthand experience'.
79 Lithuania objected to the evidence, in [77] and [78] above, as inadmissible under the Evidence Act.
80 Mr Kalinovas' evidence is that he has fears for his safety if he is returned to Lithuania and placed in police or other types of punitive custody in the prison system. He says that he holds fears for his life and his mental health from guards or other inmates by reason of his ethnicity. He says that as an ethnic Russian Jew, he experienced 'severe racism' in Lithuania which led to him leaving that country.
81 Lithuania also objected to this evidence.
82 The evidence sought to be adduced goes to whether there are substantial grounds for believing that there is an extradition objection.
83 As to Rabbi Ulman's evidence, I accept that he has studied the situation in Lithuania, including for the purposes of giving expert evidence in cases before the Migration Review Tribunal and to Minsters of Immigration, as set out in his affidavit. Lithuania submits that this does not extend to expertise as to the operation of the Lithuanian justice and corrections systems and that, as such, his opinion is not admissible to prove the existence of facts as to the operation of that system by reason of s 76 of the Evidence Act. However, I am satisfied that Rabbi Ulman's constant and consistent study into the nature and extent of anti-Semitism in Lithuania is sufficient for him to give the opinions as set out in his affidavit and oral evidence. The evidence does not go to the operation of the prison system but to the actions of ethnic Lithuanian prison officers and inmates. His study, training and experience enables him to give such opinions and the evidence is admitted pursuant to s 79(1) of the Evidence Act.
84 As to Mr Kalinovas' evidence, it is admissible to establish his fear. It does not prove the underlying facts that he asserts as the reason for his fear, other than as to his past experience. Lithuania says that he has not provided a basis for his fear. However, I accept that the totality of the evidence, including that of Rabbi Ulman, supports and provides a basis for his asserted fear. I do accept that the generality of Mr Kalinovas' evidence means that he has only a generalised fear as to what will happen to him in prison from guards and inmates (Evidence Act ss 55(1), 56(1)).
85 Lithuania submits that the makers of the statements that formed the basis of Rabbi Ulman's information should have been called. However, for the reasons given by Rabbi Ulman, which I accept, it is not reasonably practicable, indeed not possible, to require those persons to give evidence and thereby identify themselves and their families. As such, it is admissible as an exception to the hearsay rule, as it is first-hand hearsay where the maker is not available (Evidence Act ss 62(1), 63(1)).
86 In Snedden, Cowdroy J accepted that the Evidence Act applied but noted and 'was mindful' of what had been said by French J (as he then was) as the primary Judge in Cabal and Another v United Mexican States and Others (No. 2) (2000) 172 ALR 743 at 749, albeit where French J held that he was not bound by the rules of evidence, to the effect that the nature of an extradition objection is such that the evidence relied upon to make them out or show substantial grounds for believing that they may exist may be 'indirect or circumstantial in nature'. In Rahardja v Republic of Indonesia [2000] FCA 1297, the Full Court said (at [47]) that the inquiry concerns future and hypothetical events and that necessarily the Court is required to engage in a deal of speculation, so that it is sufficient if the person establishes a substantial or real chance of prejudice. It is not necessary to show a probability of prejudice or any particular degree of risk of prejudice.
87 There is a degree of inconsistency in the approach stated by Cowdroy J in Snedden, but it is relevant to a consideration of the application of s 135 of the Evidence Act, which is also relied upon by Lithuania. Lithuania submits that it is prejudiced by not being able to cross-examine the informants. However, it had the opportunity, and did, cross-examine Rabbi Ulman, although he was not given notice to attend for cross-examination. Rabbi Ulman explained the information and also the basis for his opinion as to the current situation for Russian-speaking Jews in Lithuania. He was not asked questions as to the information itself or about the availability of the informants.
88 Lithuania submits that the evidence must have some logical, probative value or some rational probative force and that this was lacking. The Magistrate admitted the evidence but gave it little weight. I do not agree that the evidence has little weight. For the reasons set out in Rabbi Ulman's affidavit, which were not challenged in cross-examination and included the history of and current attitudes of anti-Semitism and racism in Lithuania, I accept that the evidence has logical, rational and probative force.
89 The evidence is not, contrary to Lithuania's submissions, of a highly generalised nature. It consists of reports from the small number of Russian Jewish inmates and their families, as conveyed by a lawyer representing them and from an activist who, I infer from the evidence, is monitoring their treatment in prison. Bearing in mind how few Jews are left in Lithuania for the historic reasons set out by Rabbi Ulman, it is not unreasonable that the evidence is not more extensive. It is, as Rabbi Ulman explained and as to which he was not challenged, not possible to name or otherwise identify the activist and the academic or the inmates and their families. I appreciate that this means that Lithuania cannot investigate specific assertions or cross-examine those who are said to have suffered the harm, but the asserted and unchallenged prejudice and potential reprisals to those persons, if they were to be made available, outweighs that prejudice.
90 I decline to reject the evidence pursuant to s 135 of the Act.
91 The evidence is relied upon to show that there are substantial grounds for believing that Mr Kalinovas will be punished, detained or restricted in his personal liberty by reason of the fact that he is a Russian Jew. However, the evidence does not amount to proof that people of Russian and Jewish background are all treated, and will all be treated, worse than other Lithuanians in the Lithuanian justice system.