Snedden v Republic of Croatia

[2009] FCA 30

Federal Court of Australia|1988-03-10|Before: Burchett J, Cowdroy J

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Source facts

Court

Federal Court of Australia

Decision date

1988-03-10

Before

Burchett J, Cowdroy J

Source

Original judgment source is linked above.

Judgment (43 paragraphs)

[1]

REASONS FOR JUDGMENT 1 The applicant, who is otherwise known as Dragan Vasiljkovic or Captain Dragan, applies under s 21 of the Extradition Act 1988 (Cth) ('the Extradition Act') for a review of the decision of Deputy Chief Magistrate Cloran ('the Magistrate') made on 12 April 2007 which determined that the applicant is eligible for surrender to the Republic of Croatia pursuant to s 19(1) of the Extradition Act. The application is also made by way of an appeal under s 39B of the Judiciary Act 1903 (Cth).

[2]

FACTS 2 On 28 November 2005 the Sibenik County Public Prosecutor's Office in the Republic of Croatia submitted a request to a magistrate of the County Court of Sibenik ('the Sibenik County Court') for investigation into criminal offences allegedly committed by the applicant contrary to Articles 120 and 122 of the Basic Criminal Code of the Republic of Croatia during the conflict between the armed forces of the Republic of Croatia and the armed Serbian paramilitary troops of the Republic of Krajina. The applicant was said to have been a commander of a special unit of Serbian forces. 3 On 12 December 2005 the Sibenik County Court accepted the prosecutor's claim that there was a 'well-founded suspicion' that the applicant had committed the alleged offences. 4 On 10 January 2006 the Sibenik County Court ordered that a warrant for the applicant's arrest be issued. 5 On 19 January 2006, in response to a request from the Republic of Croatia, the applicant was arrested in Sydney pursuant to a provisional arrest warrant issued under s 12(1) of the Extradition Act. 6 On 20 January 2006 the applicant was remanded in custody pursuant to s 15 of the Extradition Act. The applicant made three unsuccessful applications for bail on 27 January 2006, 3 March 2006 and 12 December 2007. The applicant remains in detention in a New South Wales correctional centre. 7 On 17 February 2006 Australia received an 'extradition request' to extradite the applicant to the Republic of Croatia. An 'extradition request' is defined in s 5 of the Extradition Act as 'a request in writing by an extradition country for the surrender of a person to the country'. 8 The Extradition (Croatia) Regulations 2004 (Cth) ('the Extradition Regulations') made pursuant to s 55 of the Extradition Act declares the Republic of Croatia to be an 'extradition country'. An 'extradition country' is defined in s 5 of the Extradition Act to include a country that is declared by the Extradition Regulations to be an extradition country. 9 On 18 March 2006 the extant Minister of Justice and Customs issued a notice of receipt of the extradition request pursuant to s 16 of the Extradition Act. 10 The extradition request was made in respect of two alleged war crimes against prisoners of war, contrary to Article 122 of the Basic Criminal Code of the Republic of Croatia, and one alleged war crime against the civilian population, contrary to Article 120 of that same Code ('the extradition offences'). The request contained particulars of the extradition offences which allegedly took place in Knin in June and July 1991; in the village of Bruska near Benkovac in February 1993; and in Glina in July 1991. The request enclosed a copy of the Sibenik County Court decision and order. 11 An 'extradition offence' is defined in s 5 of the Extradition Act to include, in relation to a country other than Australia, an offence against the law of the country for which the maximum penalty is death or imprisonment or other deprivation of liberty for a period of not less than 12 months, or if the offence does not carry a penalty under the law of that country, conduct which, under an extradition treaty in relation to that country, is required to be treated as an offence for which the surrender of a person is permitted by the country and Australia. 12 In December 2006 the Magistrate conducted the inquiry pursuant to s 19(1) of the Extradition Act to determine whether the applicant was eligible for surrender to the Republic of Croatia in relation to the extradition offences for which his surrender was sought. Section 19(2) of the Extradition Act provides that the person whose extradition is sought is only eligible for surrender to the country seeking extradition if, inter alia,: (d) the person does not satisfy the magistrate that there are substantial grounds for believing that there is an extradition objection in relation to the offence. 13 An 'extradition objection' is defined in s 7 of the Extradition Act which relevantly provides: For the purposes of this Act, there is an extradition objection in relation to an extradition offence for which the surrender of a person is sought by an extradition country if: (a) … (b) … (c) on surrender to the extradition country in respect of the extradition offence, the person may be prejudiced at his or her trial, or punished, detained or restricted in his or her personal liberty, by reason of his or her race, religion, nationality or political opinions; … 14 The Magistrate was not satisfied that there were substantial grounds for believing that there was an extradition objection in relation to the extradition offences. The Magistrate determined that the applicant was a person who was eligible for surrender to the Republic of Croatia pursuant to s 19(9) of the Extradition Act. 15 Section 21(1) of the Extradition Act provides, inter alia, that where an order has been made by a magistrate of a State or Territory under s 19(9) of the Extradition Act in relation to a person whose surrender is sought by an extradition country, that person may apply to the Federal Court for a review of such order. The applicant seeks a review of the Magistrate's decision in this Court pursuant to such subsection. The applicant submits that there are substantial grounds for believing that there is an 'extradition objection in relation to the offence', as provided by s 19(2)(d) of the Extradition Act, and accordingly claims that he is not eligible for surrender to the Republic of Croatia. 16 In determining whether 'substantial grounds' exist for believing that there is an 'extradition objection in relation to the offence', French J (as he then was) in Cabal and Another v United Mexican States and Others (No 2) (2000) 172 ALR 743 ('Cabal (2000)')at 748-49 said: The requirement that the grounds for believing there to be an extradition objection should be substantial is evaluative in character. It must be applied having regard to the legislative purpose. In relation to the political objections in s 7(b) and (c) material which demonstrates a real or substantial risk that the circumstances described in those paragraphs exist or will exist may be sufficient to satisfy the condition in s 19(2)(d). His Honour's observations were cited with approval by the Full Court in Cabal and Another v United Mexican States and Others (2001) 108 FCR 311 ('Cabal (2001)') at [137]-[138]. 17 The proponent of the extradition objection bears the onus of establishing the existence of such objection: see Cabal (2001) at [126].

[3]

ADMISSIBLE EVIDENCE 18 Section 21(6) of the Extradition Act provides that a court conducting a review pursuant to an application under s 21(1) of such Act 'shall have regard only to the material that was before the magistrate': see s 21(6)(d) of the Extradition Act. 19 As a threshold question, the Court must determine the evidence which the Court may take into consideration. The Court observes that both the Magistrate and this Court are not entitled to receive evidence which contradicts an allegation that the applicant has engaged in conduct constituting an extradition offence: see s 19(5) of the Extradition Act. 20 The applicant submits that under s 21(6)(d) of the Extradition Act the Court is not limited to consider only the evidence which was accepted as exhibits before the Magistrate. Rather, since the function of the hearing before the Magistrate under s 19(1) of the Extradition Act was administrative, not judicial, this Court is entitled to consider all material provided to the Magistrate. The applicant submits that such material comprises 'material that was before the magistrate' regardless of whether or not such material was admitted into evidence. 21 It would follow from the applicant's submission that any document contained in the Magistrate's file should be taken into consideration by the Court including material which was rejected by the Magistrate in the course of his inquiry conducted under s 19(1) of the Extradition Act. The applicant also seeks to tender all material which was accepted into evidence by the Magistrate but in respect of which the respondent takes objection in this Court. 22 The extent of the phrase 'material that was before the magistrate' was considered by French J in Cabal (2000) at 749 where his Honour said: Upon review by this court under s 21 the material proffered to the magistrate by the parties and received in evidence is plainly material that was before the magistrate for the purposes of s 21(6)(d). So too, in my opinion, is material that was proffered to the magistrate and was rejected by her.

[5]

(1) The materials before the magistrate comprise the testimony, documents and things which were received by the magistrate in evidence and those which were tendered to the magistrate but not accepted in evidence. (2) The court upon review is not limited to consideration of material received by the magistrate in evidence but may have regard to other material tendered to the magistrate but not received in evidence. 24 On appeal to the Full Court in Cabal (2001) there was no issue between the parties that the material which could be considered by the reviewing court comprised material which had been rejected by the Magistrate. Accordingly, this question was not determined by the Full Court. However, their Honours expressed concern at some of the difficulties that may arise from French J's interpretation, stating at [73]: Both at first instance and on appeal the parties proceeded on the basis that the review required to be heard by the Court or the Supreme Court of a State or Territory was in the nature of a rehearing, but subject to the provisions of s 21(6)(d) of the Act which confine the Court hearing the review to the material which was before the magistrate. Likewise the parties agreed that when s 21(6)(d) referred to the material "that was before the magistrate" that included not only material which the magistrate had admitted into evidence, but also material tendered by either the extradition country or the person in respect of whom the extradition application was made, which, for whatever reasons, was rejected by the magistrate and accordingly not taken into account by her. At least the latter of these propositions is not self-evident, if only because it would permit the judge conducting the review to consider material not capable of being tested by cross-examination or which might, had it been admitted, have led to the calling of other evidence. Clearly s 21(6)(d) would not permit any cross-examination on that evidence to take place or further evidence to be considered. However, as the parties proceeded on that basis before us we are content to accept for the purposes of the appeal the correctness of this construction of s 21(6)(d).

[13]

Reports 33 The respondent objects to the tender of a report published by Amnesty International ('the Amnesty Report') and a report of the Commission of the European Communities entitled 'Opinion on Croatia's Application for Membership of the European Union' ('the EC Report'). Such reports were contained in a bundle of material contained in a lever arch folder provided to the Magistrate. The folder was admitted by the Magistrate without objection as exhibit 17, the parties having requested that the folder which included the Amnesty Report and the EC Report be admitted without the necessity for the Magistrate to rule upon the admissibility of each document. The respondent submits that such material was not material that was 'before the magistrate'. 34 The applicant submits that since the Amnesty Report and the EC Report were contained within exhibit 17 such reports comprised 'material that was before the magistrate' even though the Magistrate was not directed to such reports nor was any submission made in respect thereof. 35 French J in Cabal (2000) held that material that was accepted by the magistrate constituted material that was before the magistrate. As the Magistrate did not reject the reports it is accordingly not necessary to consider whether he engaged in an 'active intellectual process' in relation to such reports: see Dutton v O'Shane at [162]. In these circumstances, the Court accepts the submission of the applicant that such reports constituted material which was 'before the magistrate'. 36 The respondent also objects to the tender of the Amnesty Report on the basis that such report contains remote hearsay. Such report is relied upon by the applicant as 'background' to the Serbian and Croatian dispute. 37 The Court finds that the Amnesty Report contains hearsay and anecdotal material and therefore does not comply with the requirements of the Evidence Act. Accordingly the Amnesty Report is not admitted. 38 The respondent also objects to the tender of the EC Report on the grounds of relevance. The EC Report contains statistics which refer to the decrease in the Serbian population in the Republic of Croatia. Although the applicant claims to only rely upon such statistics by way of factual background to the application, the respondent submits that such data is relied upon by the applicant to prove general prejudice in the Republic of Croatia against Serbians. 39 The Court considers that the applicant seeks to rely upon the statistics contained in the EC Report to prove prejudice against Serbians in the Republic of Croatia. The Court however considers that such data is irrelevant to whether the applicant would be prejudiced at his trial in the Republic of Croatia, and accordingly rejects the EC Report.

[23]

Applicant's involvement in Serbian/Croatian conflict 60 The portions of the applicant's statement which have been admitted establish that he was born Dragan Vasiljkovic in Belgrade in the former Yugoslavia and immigrated to Australia with his parents. He is a national of Serbia and, by naturalisation, an Australian citizen. He is a strong political supporter of an independent self-governing home for the Krajina Serbians, many of whom were expelled from the Krajina by Croatian military forces in Operation Storm in 1995. The applicant claims to have played a significant military role in preventing Croatian military domination of the Krajina. He claims that his extradition is sought in retaliation for such activity. 61 The applicant claims that 'Croatian hatred of me from the war has not abated and is on Croatian internet forums'. He asserts that '[t]here are hardly any Serbs left in the Krajina after 1995 and they have no influence or role in the Croatian justice system'. 62 The admitted evidence of Mr Strbac establishes that the applicant was a military commander who was responsible for capturing the Croatian military command centre at the police station in Glena in June-July 1991. Mr Strbac's evidence also establishes that the applicant formed a charity in Serbia that provides financial relief for war victims. 63 The relevant portions of the statement of Ms Karadjordjevic state that she believes that the applicant will not receive a fair trial and that it would be of 'political benefit to the Croatian state generally and in particular to their claims concerning the Krajina' if the applicant were convicted. 64 The Court has considered the above evidence. The Court finds that the applicant's alleged repute in Serbia resulting from his military and charitable activities does not lead to the conclusion that the judicial system in the Republic of Croatia would not provide him with a fair trial. Nor does the applicant's belief or the belief of the other witnesses that he is hated by Croatians and that his extradition is sought in retaliation for his military successes against the Croatians constitute sufficient grounds to establish that he would not receive a fair trial in that country.

[29]

77 The September 2006 OSCE Report also states: While diminishing in impact, ethnic origin continues to be a factor in determining against whom and what crimes are prosecuted, with discrepancies seen in the type of conduct charged and the severity of sentencing. One source of this ethnic disparity may be the extent to which evidence is available, including the availability or willingness of witnesses to testify. 78 In Rahardja v Republic of Indonesia [2000] FCA 1297the Full Court at [56] found that even if Indonesian authorities were more disposed to not prosecute a non-Chinese Indonesian rather than a Chinese Indonesian, such fact did not establish that 'there are substantial grounds for believing that Mr Rahardja may be prejudiced at his trial or punished by reason of his race' (emphasis in original). The Full Court held at [56] that the question whether persons of a different ethnic background would have a better chance of avoiding trial is not a relevant consideration, as '[t]he question is what will happen at trial or on sentence'. 79 The Court also notes the decision of the High Court of Justice in Damir Travica v The Government of Croatia [2004] EWHC 2747 (Admin) in which Lord Justice Laws considered an issue under s 6(1)(d) of the Extradition Act 1989 (UK), which is in substantially the same terms as s 7(c) of the Extradition Act. In such decision Laws LJ observed at [38] that the Extradition Act 1989 (UK) could not be construed as conferring such a wide power of judgment over the practices of a foreign state as to warrant refusal of an extradition where an applicant will face a fair trial but complains that members of other groups would not have to face trial at all. 80 Accordingly, any discrepancy between the number of Croatians and Serbians prosecuted in the Republic of Croatia is irrelevant in this Court's consideration of whether the applicant would suffer prejudice at his trial by virtue of his race, nationality or political opinion. The applicant's contention does not lead to the conclusion that he would not be afforded a fair trial in the Republic of Croatia. 81 As to the alleged disparity in convictions between Serbians and Croatians, the Court observes that such alleged disparity may be a consequence of the disproportionate number of prosecutions against Serbians compared to Croatians. It is not possible to infer prejudice by the Croatian judiciary based upon the conviction data provided by Mr Strbac since the judiciary has not been involved in the prosecution process which has resulted in the disproportionate number of Serbian convictions. As considered above, discrepancy in the number of prosecutions is irrelevant to the review before the Court. Similarly, any discrepancy in convictions which results from discrepancy in prosecutions is also irrelevant. The Court would need to have before it evidence that the disproportionate number of convictions arose independently of the number of prosecutions before it could be satisfied that there might be a basis for finding prejudice by the judiciary.

[32]

84 The OSCE report entitled 'Background Report: ECHR (European Court of Human Rights) Cases Involving Croatia as of August 2005' records that the ECHR has stated that at least prospectively 'the Constitutional Court can now be regarded as an effective remedy for an increased number of categories of fair trial issues'. The September 2006 OSCE Report also refers to co-operation in war crimes trials between the Republic of Croatia with regional States including Serbia, and with the ICTY. The report cites a matter in which the ICTY referred a war crimes matter to the Republic of Croatia, it having been satisfied that 'there are appropriate measures now in place to ensure a fair trial'. 85 Other reforms have been made in the Republic of Croatia. For example, as referred to in the September 2006 OSCE Report, the county courts of Osijek, Rijeka, Split and Zagreb have been granted extra-territorial jurisdiction to adjudicate upon war crimes, thereby removing proceedings from local courts in areas most directly affected by the conflict. The Chief State Attorney may initiate proceedings at these courts with the consent of the President of the Supreme Court of the Republic of Croatia. 86 The Court has before it evidence that the Attorney General of the Republic of Croatia has assured the Attorney General of Australia that he will make a request to the President of the Supreme Court of the Republic of Croatia that the trial of the applicant be held before one of the above four courts having extra-territorial jurisdiction. The assurances so given give rise to the presumption that the Republic of Croatia is acting in good faith: see Ahmad et al v The Government of the United States of America [2006] EWHC 2927 (Admin) per Laws LJ at [74], [76]. 87 In Travica Laws LJ observed at [34] that the conflict between Serbia and the Republic of Croatia and its after-effects have been 'especially acute In the Krajina region'. However, Laws LJ also observed at [35] that such circumstance did not by itself constitute a claim of prejudice 'not least when set against the signs of improvement in the conduct of prosecutions which I have surveyed, and which cannot have failed altogether to touch the Krajina region'. At [30] Laws LJ also made comment of the 'signal progress made in Croatia towards a justice system which meets international standards'. His Lordship's observations are consistent with the evidence contained in the reports referred to above.

[34]

Ground 2 - Abuse of process 90 The second ground of the applicant's application alleges that the delay in prosecuting the applicant for the extradition offences constitutes an abuse of this Court's process. 91 The applicant relies upon the facts that the alleged offences occurred in June and July 1991 and in February 1993 and that they were not made the subject of any investigation request until 28 November 2005. A warrant for his arrest was not issued until 10 January 2006 and the extradition request was not made until 20 January 2006. There was no evidence before the Magistrate that the applicant had been the subject of any investigation until 28 November 2005. 92 The applicant relies upon the judgment of Mason CJ in Jago v The District Court of New South Wales and Others (1989) 168 CLR 23. In those proceedings the question arose whether a permanent stay should be granted in view of a delay in the prosecution of six years after the defendant had been charged with certain offences. The High Court of Australia held that the Court's power to prevent abuse of process in criminal proceedings extends to a power to prevent unfairness to the accused. At 30-31 Mason CJ stated: The continuation of processes which will culminate in an unfair trial can be seen as a "misuse of the Court process" which will constitute an abuse of process because the public interest in holding a trial does not warrant the holding of an unfair trial. 93 In Rogers v The Queen (1994) 181 CLR 251 McHugh J at 286 observed that abuses of process 'usually' fall into three categories, namely where the Court's procedures are invoked for an illegitimate purpose; where the use of the Court's procedures is unjustifiably oppressive to one of the parties; and where the use of the Court's procedures would bring the administration of justice into disrepute. 94 The inherent jurisdiction of a superior court to stay its proceedings on the grounds of abuse of process was traditionally exercised to prevent its jurisdiction being used 'for a purpose other than that for which the proceedings are properly designed and exist': see Spautz v Williams [1983] 2 NSWLR 506 at 539 per Hunt J. In Wiest v Director of Public Prosecutions and Another (1988) 23 FCR 472, Burchett J at 486-487 quoted his decision in Deputy Commissioner of Taxation v Edelsten (unreported, Burchett J, 10 March 1988) where his Honour, having reviewed the authorities said: These authorities unite in seeing as crucial the purpose for which the process is used. It is the illegitimacy of the purpose that makes the abuse.

[36]

Ground 3 - Right to a jury trial 100 The applicant claims that he is entitled to have a jury determine the offences with which he is charged. Such claim is made on the basis of s 80 of the Constitution, which provides: The trial on indictment of any offence against any law of the Commonwealth shall be by jury, and every such trial shall be held in the State where the offence was committed, and if the offence was not committed within any State the trial shall be held at such place or places as the Parliament prescribes. 101 The applicant submits that s 10 of the Geneva Conventions Act 1957 (Cth) (now repealed) ('the Geneva Conventions Act') provided, at the relevant time, that offences of the type in respect of which the applicant's extradition is sought are to be tried on indictment; that s 80 of the Constitution requires that Commonwealth indictable offences are to be tried on indictment; that the applicant is sought to be extradited 'in connection with' Commonwealth indictable offences; and that there is no evidence that the Republic of Croatia has facilities to provide a jury trial. 102 At the time of the alleged offences, s 7 of the Geneva Conventions Act provided that a person (in Australia or elsewhere) who committed, or aided, abetted or procured the commission of a 'grave breach' of the 1949 Geneva Conventions was guilty of an indictable offence. Such breaches included wilful killing; torture or inhuman treatment of prisoners of war; and wilful causing of great suffering or serious injury to the body or health of prisoners of war and civilians. Section 10 of theGeneva Conventions Act invested federal jurisdiction in the relevant State and Territory Supreme Courts in respect of offences committed against s 7 of the Extradition Act. 103 The flaw in the applicant's submission is readily apparent. Had the Australian authorities sought to prosecute the applicant for offences arising from his alleged conduct in the Republic of Croatia in 1991 and 1993, the above statutory procedure would have been available to them by virtue of s 7 of the Geneva Conventions Act. However, the Australian authorities have not done so and the applicant has not been prosecuted under the laws of this country. Rather, he has been charged with offences under Articles 120 and 122 of the Basic Criminal Code of the Republic of Croatia. 104 In Kingswell v The Queen (1985) 159 CLR 264 at 292 Brennan J said in relation to s 80 of the Constitution: An "offence against any law of the Commonwealth" is, of course, an indictable criminal offence created by or under a law made by the Parliament.

[37]

See also Re Colina and Another; Ex parte Torney (1999) 200 CLR 386 at 397 per Gleeson CJ and Gummow J. 105 The extradition offences with which the applicant is charged cannot be characterised as offences against a Commonwealth law since the offences do not arise under a law made by the Commonwealth Parliament. In Sankey v Whitlam and Others (1978) 142 CLR 1, the High Court confirmed the need for an exercise of power by the Commonwealth Parliament in enacting legislation before a law can be said to be a Commonwealth law: see Gibbs ACJ at 30-1, Stephen J at 73, Aickin J at 104. 106 Any similarity between the offences with which the applicant is charged in the Republic of Croatia and the possibility of the existence of an equivalent criminal offence in Australia is irrelevant. Section 80 of the Constitution does not apply because the applicant has not been charged with a Commonwealth criminal offence. 107 It follows from the above finding, namely that s 80 of the Constitution does not apply, that there is no requirement under Australian law that the applicant be tried by jury. Accordingly the submission that the applicant has the right to be tried by jury, and that such right will be lost to him if he is tried in the Republic of Croatia, is rejected. It follows that the submission of the applicant that there is no evidence that the Republic of Croatia has the facilities to accommodate a jury trial is irrelevant. 108 As a second basis for the applicant's claim that the extradition offences should be tried by jury, the applicant alleges that the Geneva Conventions Act had extra-territorial application in accordance with Australia's Geneva Convention Treaty obligations. The submission proceeds on the basis that an Australian court is competent to try, and should try, the applicant for the alleged offences. However, the Republic of Croatia is the State which is seeking to try the applicant, not Australia. In view of the above finding such submission is rejected. 109 The applicant's application also claims that the Extradition Regulations are invalid. Insofar as their effect is to remove the applicant's right to a trial by jury, no submissions were made in favour of this ground. The Court observes that such Regulations merely declare the Republic of Croatia to be an extradition country. The right to a jury trial by a person for indictment of any offence against a Commonwealth law is not affected by the Extradition Regulations.