(i) The intentional infliction by act or omission of severe pain or suffering, whether physical or mental.
(ii) The act or omission must have occurred in order to obtain information or a confession, or to punish, intimidate or coerce the victim or a third person or to discriminate, on any ground, against a victim or a third person (the prohibited purpose).
100 This definition appears in the Statute of the International Tribunal for the Former Yugoslavia and is based upon the 1984 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. That Convention was adopted by the Schedule to the Crimes (Torture) Act 1988 (Cth) wherein :-
the term "torture" means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.
101 It is apparent that torture within the meaning of the Crimes (Torture) Act goes beyond the infliction of severe pain or suffering by a person acting in an official capacity. It extends to the infliction of severe pain or suffering at the instigation of, or with the consent or acquiescence of such a person. It is appropriate, in my view, that this construction of the term "torture" is applied for the purposes of these proceedings, in preference to that relied upon by a foreign tribunal in an unrelated matter. It does not include an omission, but the relevant inclusive prohibited purposes are substantially the same.
102 The plaintiff's submissions distinguish torture from acts of cruelty, assaults and beatings. That much is accepted. However, the distinction is fundamental to the plaintiff's contention that, even if certain witnesses who gave evidence of receiving beatings at the hands of, or in the presence of, the plaintiff are accepted, that treatment fell short of torture. The assumption underlying this proposition is that the acts of violence and the mistreatment (if any) meted out by the plaintiff and/or the men under his command are to be considered in isolation, that is, without regard to the physical and mental condition of the victims of these assaults when they arrived at Knin (Bracic, Vikic, Kauric, Spoljaric and Hrnjica) and at the Sremska Mitrovika prison (Perry, Ackar).
103 The defendant's witnesses on this topic were permitted, over objection, to give evidence of what had happened to them before they arrived at Knin and at the prison, on the basis that their resulting poor state of mental and physical health would have been obvious to anyone who had dealings with them. More importantly, the defendant's allegation was that the further infliction of pain and suffering on prisoners in this weakened condition constituted torture, not that the assaults alone necessarily did so in every case. That is the basis upon which the evidence of these witnesses falls to be assessed.
104 Mr Perry, who had joined the French Foreign Legion at the age of 18, went with some of those colleagues to Croatia in late 1991 and volunteered for military service. In about May 1992 he was captured by Bosnian Serb forces. He was beaten and flown by helicopter to Belgrade where he was detained for two months. Whilst there, he was physically beaten on a daily basis on the bottoms of his feet, legs, calves, groin, stomach, chest, shoulders and face. He was beaten around the head and face whilst a pillowcase was placed over his head. He was subjected to water torture, sleep deprivation and mock executions, which consisted of being bound, handcuffed, thrown into the trunk of a car, repeatedly removed from the trunk, having a gun placed to the back of his head and the trigger pulled whilst there were no rounds in the chamber.
105 After several months of this treatment, he was transferred to the Sremska Mitrovika prison. He described the conditions at the prison as poor. They consisted of a bucket for toileting purposes and a blanket on the ground in a bare room. Mr Perry was not permitted to wash. Later Mr Perry was moved to a dormitory style room with approximately 150 Croat prisoners. There were thin mattresses and blankets on the floor and conditions were crowded. The toileting facilities consisted of a sink in the back of the room. Very little food was provided. Mr Perry sustained further beatings, both at the hands of the guards and other civilian criminals who were given access to the prisoners in the cells so that they could abuse and assault them.
106 On one occasion that Mr Perry was removed from his cell by the guards at the prison, he was taken to a room or office where he saw the plaintiff. Mr Perry had a fresh wound over his eye, bruising all over his body and parts of his face, and was quite emaciated. The plaintiff appeared to Mr Perry to be the authority figure in the room. The two or three soldiers who were also present were clearly deferring to the plaintiff. The plaintiff asked Mr Perry "Do you know who I am?" Mr Perry replied "No, I don't know who you are." At this, one of the men, who was wearing a maroon beret, struck Mr Perry in the head a number of times.
107 The plaintiff identified himself as "Captain Dragan" and called Mr Perry a mercenary. The plaintiff said "if he had gotten his hands on me, I would already be dead." The plaintiff informed Mr Perry that he was to be shot.
108 The plaintiff's account of his meeting with Mr Perry diverged considerably from Mr Perry's evidence. The plaintiff's account was that they had a chat and a cup of coffee and that the plaintiff gave Mr Perry some "fatherly advice" in the presence of some journalists. None of this was ever put to Mr Perry in cross-examination. This was despite the fact that the plaintiff's counsel was granted a 10 minute adjournment in order to obtain instructions before he cross-examined Mr Perry. The cross-examination of Mr Perry simply disputed that any meeting had occurred (T 192.1). In these circumstances, I do not accept the plaintiff's evidence of his encounter with Mr Perry.
109 Mr Ackar joined the Croatian National Guard in 1991. The Guard became the Croatian Army in November 1991. On 20 November 1991, Mr Ackar was captured and taken to a detention camp in Serbia. He was detained in several detention camps before being taken to the Sremska Mitrovika prison in early 1992. At the detention camps and at the prison he was beaten frequently, up to six times a day, by guards using their hands, feet, shoes, and implements such as rubber sticks and bats. On occasions he had to be carried back to his cell in a blanket. At the prison, his teeth were pulled out with pincers without any anaesthetic. He sustained severe injuries including broken ribs, a broken vertebrae and lower jaw. He was not provided with medical assistance for any of his wounds or injuries. He was also subject to mock executions and to solitary confinement. He was given no or inadequate food and drink. There were no toilet facilities. He lost about 40kgs in weight. In July 1992, he was taken to Belgrade where he was placed before a military court, tried, convicted and sentenced to death. He was taken back to the prison where the beatings continued.
110 About three months after his arrival at the prison, the guards brought the plaintiff to Mr Ackar's cell, where he was in solitary confinement. The guards, who stood at attention, introduced the plaintiff as a commander, whereupon Mr Ackar turned to face the wall with his hands above his head. Mr Ackar had been told that this was the posture to adopt when guards came into the room, or the prisoner would be beaten. The plaintiff asked Mr Ackar a number of questions and then struck him. The guards who were with the plaintiff also struck him. At one stage, Mr Ackar was being kicked whilst he lay on the floor, semi conscious. The plaintiff said "You'll sing, man". It was on this occasion that Mr Ackar's rib was broken and separated from his spine.
111 Mr Bracic joined the police force at Sibenik in October 1990. On 14 June 1991 he was arrested, handcuffed and taken to Golubic where he was placed in a garage. There, he was beaten with rifles and batons and kicked by soldiers wearing military boots. He was beaten on his head and body and threatened with a knife on a daily basis. After three days he was taken to Knin Fortress where he saw two people in camouflage military uniform wearing berets. The berets bore the insignia of the inverted four Cyrillic letters.