Republic of Croatia v Snedden

[2010] HCATrans 83

[2010] HCATrans 083

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney     No S24 of 2010

B e t w e e n -

REPUBLIC OF CROATIA

Appellant

and

DANIEL SNEDDEN

Respondent

FRENCH CJ
GUMMOW J
HAYNE J
HEYDON J
CRENNAN J
KIEFEL J
BELL J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 30 MARCH 2010, AT 10.19 AM

(Continued from 29/3/10)

Copyright in the High Court of Australia

FRENCH CJ:   Yes, Mr Walker.

MR WALKER:   May it please the Court.  May I return to two matters I was not able to respond to yesterday.  Justice Heydon asked me about the four specialist courts for war crimes.  In a passage of evidence, which is not entirely straightforward or easy to understand probably for reasons including the use of an interpreter from 109 to 117, two, I think, I hope, relevant propositions do emerge, first, that the principal difference is the location and, second, that the principal adjustment to perceived problems included making the personnel – I think that means the judicial personnel – entirely professional rather than any lay assessors.

When one goes to the explanation in the OSCE report that your Honours have seen, you will see a footnote at 143 of the appeal book which describes those County Courts by their locations.  One sees a reference to Zagreb, Osijek, Rijeka and Split having so‑called extraterritorial jurisdiction.  When one turns to page 156 one finds that the so‑called Paulin Dvor Case, the one which included an accused called Ivankovic, that it was the Osijek County Court which was in question.  In other words, and I hope this is in answer to Justice Heydon’s question, it was one of those specialist courts we would invite the Court to infer that was corrected by the Supreme Court in relation to the weight given to mitigating circumstances and that your Honours are familiar with the way that was expressed on page 157:

such as no prior criminal record and participation in the Homeland War, as a result of which Ivankovic suffered from post‑traumatic stress disorder –

The second matter arises from Justice Gummow drawing to attention Spanovic – I am sorry, may I just go back to that other matter – at 162, item 2 on the page, one sees another reference to one of those specialist courts being reviewed in the Supreme Court.

Can I come to the matter of Spanovic [2009] EWHC 723 (Admin) Queen’s Bench Division? Of course, each of these cases is ultimately, on its own facts, on the facts of this case, a battery of concerns about what I will call “fairness” including particularly the true availability of a true retrial after conviction in absentia unfairly turned upon the particular evidence which had been received at the various levels being reviewed by this Court. One thing that we would draw to attention is what is noted in paragraph 60 of the reasons of the Court:

Croatia is a signatory of the ECHR –

and to quote their Lordships -

the appellant would therefore be protected by the rights given by the Convention, including the rights of a fair trial enshrined in article 6.

Then there is reference to provisions of Croatian law which were not proved, we think, in this case.  I should draw to attention paragraph 68 of their Lordships’ reasons which, as a matter of fact, proved in that case, not in this case, showed that in relation to the Supreme Court of Croatia itself there had been 263 cases of war crimes, yet none have yet been challenged before the European Court.  There is a mixture of material there, some available and some not available to this Court in this case.  We would accept that as a matter of judicial notice, Croatia’s signature of the ECHR can be considered by this Court.  What one does with that, however, is problematic and depends on matters which are not shown as a matter of fact in this case.  The statutory issue would also arise. 

This case, we respectfully submit, would not be an appropriate case in which to examine them to finality as to whether the role of the European Court supplies information about first, prejudice at trial, and second whether a person, on surrender to the extradition country, would be “punished, detained, or restricted” in personal liberty by reason of, et cetera.  One can see arguments on both sides, first that it may be very difficult depending upon, in this case, unknown matters of Croatian constitutional law and structure, as to whether the European Court is part of the Croatian judicial system.

On the other side of that point, of course, one can instantly see that if there is a right of access to the European court from Croatian decisions, then it is functionally part of that which is available to a person upon trial in Croatia.  Certainly we would accept that the appellate hierarchy and whatever discipline is imposed by higher courts on lower courts in a country to which extradition is sought will be relevant to an understanding of the elements of 7(c), but we do not know, with respect, how the relation of the Croatian system to the European Court operates in that regard.  We simply do not have the material in the appeal book and it would be, in our submission, well beyond the reach of judicial notice.

GUMMOW J:   Is the Croatian Penal Code in evidence before the magistrate?

MR WALKER:   There are selections.

GUMMOW J:   I realise that.  We sit here complaining continually about selections.

MR WALKER:   Yes, your Honour, and, with great respect, the complaint is well founded.  Devoid of a setting, for example, of anything procedural or jurisdictional or, indeed, interpretive, we only have the particular provisions which create the substantive offences for which extradition is sought.  Those are the only ones and your Honours have seen that.  Your Honours, may I then come back to the course of the argument.  In paragraph 44 of the reasons in the Full Court your Honours will have noticed the paraphrase of the argument before the Full Court which characterised the failure to apply the mitigating factor as constituting a positive act.  That is the end of paragraph 44.

It may be that one way of understanding this notion of positive act is that it accords with the notion of direct or active discrimination, such as was referred to by Justice French in Hempel.  In any event, at paragraph 45 the Full Court describes its own conclusion on the matter, using the word “holistic” to which reference was made yesterday, which should be understood as meaning there is but one act – and we would say there is the active step, there is the direct or positive step – there is but one act, namely, the imposition of a sentencing.

BELL J:   It is a bit like talking about a synthesis, I suppose, the same idea.

MR WALKER:   It was very like talking about that, yes.  That is, that it does not matter how many strands or countervailing matters go into the balance, there is but one act, which is the imposition of the sentencing; that was the argument.  In paragraph 46 one sees that that led to a conclusion by way of comparison, to which I will be coming back.  In paragraph 47 that then led, in their Honours view of the matter, to the question whether or not there had been the nexus of causation required by the phrase “by reason of”.

Before moving to that part of their Honours reasons, could we say this about the positive act notion.  One way of understanding a positive act for both my client and the so‑called Croatian counterpart is to say that each is sentenced by what is institutionally exactly the same kind of conduct, namely, the imposition of a sentence by pronouncement of a term of years if imprisonment is their common fate, but that they have that conduct committed in relation to them on different sets of factors comparing one to the other, different by the inclusion of the mitigating factor for the Croatian counterpart and it being absent from my client’s putative sentencing.

In our submission, the context of sections 19 and 7 of the Extradition Act shows that the desire of Parliament to protect human rights of the kind referred to in section 7(c), rights to be free of so‑called arbitrary discrimination on the basis of, amongst other things, political opinions, is expressed by those provisions to be paramount over what is otherwise the high public interest on an international order of bringing so‑called fugitives to justice and giving assistance in that regard.  It is that paramountcy, in our submission, which is an important element in setting the appropriate context in which to answer questions both about what punishment, detention, or restriction in liberty means, and how it is to be approached as a matter of substance, as well as the closely related question of causation involved in the phrase “by reason of”.

In our submission, the Full Court, however tersely, took that route in the sequence of reasoning that one sees between paragraphs 45 and 46.  In other words, it is not a question of simply understanding that from a sentencing point of view there is the world of difference between punishing somebody for not being Croat and giving a discount to someone for having been a Croat fighter.  That is a world of difference in sentencing theory and practice.  It would make a difference, for example, as between whether a person with or without the factor may be imprisoned for longer or shorter time, depending upon whether one started with a position and went up or started the position and possibly went down.

In our submission, the quite different context which involves, in cases like the present, the kind of comparison called up the notion of a Croatian counterpart to my client, in that quite different context what matters is the substance of whether or not there is a difference and if imprisonment be punishment, which it certainly is, and if every additional period of sentence is extra punishment, which it must be, in our submission, varies punishment by discrepancy if the cases are otherwise to be treated as equal.  I have been trying to persuade your Honours that one should not import into this paramount human rights protection provision context the approach taken to sentencing where one has truly mitigating or truly aggravating circumstances.

Before leaving the topic, it is appropriate to point out that in sentencing appeals on the basis of so‑called parity there are cases where the sentencing discretion for a person can be seen to have miscarried so as to have produced an excessive sentence by reference to unchallenged or accepted to be correct sentencing of, for example, co‑offenders in similar position.  They are very difficult cases, of course, to find where they are truly all other things being equal, but the principle of the parity argument on a sentencing appeal does embrace the notion that there can be an excess of sentence by reference to a comparison with a person who provides a fair comparison.

BELL J:   The positive sentencing law and, for that matter, sentencing in the United Kingdom and the United States is that the notion of punishment does not – one is not punished more by the circumstance that one does not have available a matter of mitigation.  In this context, you say a different notion of what is embraced by the word “punishment” applies.

MR WALKER:   Yes, I do ‑ ‑ ‑

BELL J:   But I am having difficulty understanding why that is so in the context of the surrender of another to a foreign state with respect to the application of the criminal law to that person in that foreign state.

MR WALKER:   Because it is concerned with the protection by giving paramountcy to certain values, albeit in the context of considering whether to send somebody back to be dealt with by the justice system of another country, and the criminal justice system – because it is dealing with those kinds of values, in our submission the concern must be with matters of substance rather than form, because otherwise the evident purpose of 7(c) would be defeated by what I will call institutional appearance or ostensible claims by another system about how it operates.

An argument in this area is at obvious risk of using examples that are too extreme but, in our submission, it is not beyond historical experience and certainly not beyond imagination based upon some knowledge of the world that under the guise of mitigating – or for that matter, aggravating circumstances – attributes may be institutionally declared as proper to be considered which cloak, disguise or surveys proxies for forms of, for example, persecution of particular minorities.  In our submission it is of the first importance that, under our Extradition Act, that kind of argument can be had and will not, as it were, be trumped or concluded by simply pointing to the unexceptionable terms in which a sentencing statute, for example, is found expressed in another country.

BELL J:   Accepting the validity of that, that does not appear to be the reasoning of the Full Court.

MR WALKER:   I am bound to concede that one does not find what I have just said in these reasons expressly.  In our submission, however, the sequence from 42, which after all starts with saying – and 43, which says it will not be increased because of and then referring to the absence of a mitigating factor being positive as part of this “‘holistic’ approach”, and then saying that in 46 – I confess I have some difficulty with the word “Moreover”, but assuming it is just a connective – and then moving to the conclusion that:

the appellant will be ‘detained’ and deprived of his liberty for a period longer than –

Then the conclusion in 47, that one now moves on to the next question raised by the statute.  Doing the best I can, in our submission, that is a form of reasoning which must have or must be seen to be based upon this preference for substance rather than form.  So in form, yes, there is no increase, but in substance there is an excess upon comparison; see paragraph 46.

KIEFEL J:   But when you say it is substance, are you really saying that it is punishment because it is political in nature, that is to say, the second limb informs the first?

MR WALKER:   No, I do not think I can say that the statutory text means that is what makes it punishment.  With respect, the matter your Honour raises ‑ ‑ ‑

KIEFEL J:   I was not saying the statutory text – whether, in fact, the lack of application of the mitigating factor is for a political reason, therefore, it is a form of punishment.

MR WALKER:   As to the first proposition, taken as a whole, the evidence supports the notion of what I might call ethnic antipathy as at least a subjective understanding by people, including my client, of why there is this difference, but it does not go further than that and there is no finding that there has been, as it were, something founded in what the statute calls a political opinion that makes this service in the Homeland Army available only to those who served in the Homeland Army.  One has to recall, of course, I am sure Croatia would not be the only country that has taken such things into account as a mitigating circumstance.

KIEFEL J:   Yet in the Full Court’s reasons in the first sentence in paragraph 53 it says that, “The mitigating factor, however, operates by reference to ‘political beliefs’”.

MR WALKER:   It does.

KIEFEL J:   Maybe that is something which has informed its whole approach.

MR WALKER:   The first proposition, yes, that has certainly informed the whole approach and, in fact, produces the conclusion.  However, we, with respect, do not read that first sentence as referring to the rule, if I can call it that, that the mitigating factor is available only to people who served with the Croatian Homeland Army as itself stemming from or having been produced by political beliefs.  The expression “political beliefs” of course does not come from the statute.  It comes from my client’s evidence that you will see, for example, at appeal book 55.

HAYNE J:   But assume for the purposes of argument that you are right to say that what is relevant is the fact of difference.  Assume that it is not relevant to observe whether the fact of difference comes from mitigation or aggravation.  The relevant inquiry, if all that be accepted, becomes whether the difference is by reason of political belief.

MR WALKER:   Yes.  I hope we have made it clear in our written submission that we accept that is obviously a crucial question.  It is a separate question that has to be addressed.

HAYNE J:   But it is the hinge about which the Full Court’s decision turns, is it not?

MR WALKER:   I accept that.

HAYNE J:   And unless you make the proposition good, the Full Court’s decision is not to be supported, is that right?

MR WALKER:   That is right.

HAYNE J:   And there is no notice of contention.

MR WALKER:   That is right, and there is no argument to advance under a notice of contention either, your Honour.

HAYNE J:   So it comes to whether the difference occasioned by service in the forces of Croatia, if the evidence supported the conclusion that such a difference obtains, is a difference by reason of political belief.

MR WALKER:   Yes.

HAYNE J:   Do you embrace the argument in paragraph 53 of the reasoning of the Full Court?

MR WALKER:   Yes.

HAYNE J:   What do you say that reasoning is?

MR WALKER:   In the second, third, fourth, fifth and sixth sentence my client is described first by reference to his political opinions and, second, by his conduct, and I would ask the Court to read those as being connected factors.  We start with a finding that this is a man with political beliefs that led him to play the leading role he did in the fighting to advance the – I hope he would not be offended by this expression – the secession.  I am sure he would never use it.  The sentence that next follows is the one that my learned friend has referred to, that is the extradition request refers to in express terms. 

My learned friend has criticised the Full Court’s resort to that language.  What we get from that language, which we submit is a fair reading of paragraph 53, is that this was a conflict which is still currently seen in terms as vehemently political, as is conveyed by the anti‑secessionist language of the anti‑constitutional entity the “Republic of Krajina”.  In our submission, that shows that involvement as a fighter, and not idiosyncratically for my client but as something which is to be expected in the course of things, it does not have to be universal, is certainly to the forefront of an explanation of who took what side in this fighting. 

That then brings us back to the first and last sentences of paragraph 53.  I have the advantage, for what it is worth, in the last sentence that the statutory connective phrase is used “by reason of political beliefs”.  It should be read as the same as political opinions.  The first sentence has what several of your Honours have drawn to attention, most recently Justice Kiefel, this notion of operating “by reference to political beliefs”.  The reading we offer of that sentence is that it is a preliminary way of referring to what I will call the relevance in their Honours’ view of a person’s political opinions to whether or not you fought on one side or the other.  That requires some spelling out but it comes, because what immediately follows that sentence, from the fact that their Honours immediately refer to the holding of opinions by my client, what that impelled him to do and a description of the conflict in terms, as is often the case, with attempted cessions by ethnic minorities in terms which are vehemently political. 

That is my attempt to answer Justice Hayne’s question, what is the reasoning in paragraph 53.  It is reasoning that says the holding of a political opinion which leads to fighting in that kind of conflict, civil war, in effect, is inherently or notoriously in many cases, probably most cases, political as to the choice of the person, as to what side to fight on and it followed for their Honours that that meant that not being a member of the Croatian Homeland Army because you were fighting against it came about because of, is explained by and stems from synonyms I am advancing for the purposes of my causal nexus argument, the political opinion held by my client.

HAYNE J:   Can I just understand that then?  Are there three steps?  One, the respondent held and holds political beliefs which impelled his support for the Serb side?  Step two, the conflict was political?  Step three, the difference in punishment is therefore by reason of political belief?

MR WALKER:   Step three includes what I think your Honour put to me yesterday which I accepted, namely, that the mitigating factor is only available to persons who fought on the other side.

HAYNE J:   I understand that, but that is why I used the expression, difference in punishment, to incorporate what you had earlier said.  The difference in punishment is, therefore, applied by reason of political belief.

MR WALKER:   Yes, your Honour, that is the argument.  We say that is what is advanced by paragraph 53, and we say that it answers the call of the statute for an approach in substance with the purpose of ensuring that, as I say, institutional appearance or ostensible claims about how things proceed are not decisive of the matter are always relevant; indeed, sometimes they will be the material by which one makes out a 7(c) objection, but in cases where they do not, in our submission, they cannot be conclusive.

FRENCH CJ:   All that can fall within the framework of a direct causal connection on the basis that direct causal connection can be either express or could be inferred, albeit it is covered by some other formula?

MR WALKER:   Yes.  When I say “covered” I do not mean necessarily some sinister cloak ‑ ‑ ‑

FRENCH CJ:   No, I understand.

MR WALKER:   I simply mean that functionally what the authorities have suggested - for emphasis, no doubt - be called the real reason can be discerned without needing its express description in the events at the time.  Now, when I say “real reason” can I ask your Honours to correct a perhaps Freudian typographical error in paragraph 31 of our written submissions?  In the fifth line you will see towards the end the word “reasonable”.  It is not “reasonable”, it should read “real”.  I apologise for that.

Now, what I have been saying about the context supplied by the protections intended by sections 19 and 7 in their combination, also, as I said earlier, affects in the manner that I have described in answering the Chief Justice just now how one approaches the causal connective phrase, “by reason of”.  Without repeating what I have already said and what we have written, in our submission, the proper approach, bearing in mind the importance of the values sought to be protected, is to look for real reasons to not to search for so‑called sole reasons – that is, there may be more than one – and in particular to be open to the possibility that there may be more than one way of putting the real reason or identifying a cause, and the more than one way of putting it, of course, in the somewhat related refugee context is the way in which this Court described one approach to argument in Chen Shi Hai 201 CLR at 305.

Now, that then leads to what emerges, I hope, as to the forefront of our argument, in particular having assented to the way in which Justice Hayne has tried to understand my point, with respect.  There is in this kind of case, certainly in this case, a necessity to undertake comparison.  Hence, in Justice Hayne’s paraphrase, the essential point of difference, the difference that one sees found by the Full Court at paragraph 46, “‘detained’ . . . for a period longer”.

We do not say that there will always need to be comparisons in order to identify that a person has been punished.  There is no serious or practical need in argument to talk about a comparison if one has a crime or a sentencing provision of another country actually promulgated in terms that show that punishment would be administered simply for being of a particular race, nationality, political belief, et cetera, and that would, of course, handsomely answer the description of the former insistence on no extradition for political offences serving a similar kind of policy as 19 and 7(c) tries to advance now.

But there will be cases where in order to find out whether there has been punishment, detention, or restriction in personal liberty, one is looking not for its existence where in no other case would it exist, the simple case that I have just posited, but where one looks to disparate treatment so that one can say, for example, that gypsies always get higher sentences for the same offence than, for example, ethnic Russians and in our submission ‑ ‑ ‑

FRENCH CJ:   On that basis the discriminatory treatment is simply a factual aid, if you like, to analysis or discernment of a causal connection between attribute and punishment.

MR WALKER:   Yes, is the answer to that question, but it is not only that.  As I have just put, it also will operate in order to discern whether there is, in this case, punishment, detention or restriction of liberty.  Is the disparate outcome something that falls within those statutory descriptions and if it is a material difference, then for the reasons we have put, both in writing and earlier this morning, it will be.  The comparison ‑ ‑ ‑

GUMMOW J:   Just stopping there for a minute, Mr Walker.  You take this word “punished” as used in the notion of deprivation of liberty?

MR WALKER:   No.  I confess my researches have not thrown up exactly what these three categories are intended to separately deal with, but in some of the material there are suggestions – never very clear – that as my friend says, obviously the second and third category will include what in our system we call “remand” or “bail” and similar kinds of restrictions, sometimes internal exile, that kind of thing.

FRENCH CJ:   Or house arrest.

MR WALKER:   House arrest and the like, reporting conditions.  Clearly, in our system, for example, one is not being punished by being denied bail, so you do need to have words other than punishment in order to deal with the possibility, for example, there will be an imposition of compulsory remand, no possibility of bail because you a member of a particular party, for example.

GUMMOW J:   Or forfeiture of property.

MR WALKER:   Or forfeiture of property.  That would fall within “punishment”.  “Punishment” encompasses all forms of punishment of course, not merely imprisonment.  Detention and restriction in personal liberty we think is only physical liberty, that is the opposite of custody.  It may be this is not the case that it needs to be decided.  It may be that restriction in liberty will include, for example, a prohibition of owning property.  It does say “personal liberty”.  I am not quite sure whether that will include all attributes of proprietorship.

GUMMOW J:   Are detention and restriction species of a genus punished?

MR WALKER:   No.  They overlap, as my friend put it yesterday.  A person who is being punished by imprisonment is, as a matter of English, being detained and being restricted in his personal liberty.  However, a person who is being held on remand pending trial is not being punished, at least on our understanding of the exercise, so that one can be in custody, as this Court’s jurisprudence demonstrates, other than by way of punishment.

GUMMOW J:   So punishment is linked to some determination of guilt?

MR WALKER:   It usually follows guilt, outside Lewis Carroll.

FRENCH CJ:   It is expressive, an expression of condemnation associated with whatever is done to the person.

MR WALKER:   It is that which is meted out to mark the disapproval, et cetera, to deter generally or specifically, et cetera.  So punishment is the consequence of being found guilty.

GUMMOW J:   It has to have some adverse character about it.

MR WALKER:   It must be something that is – it must involve pain, physical pain.

KIEFEL J:   Or forfeiture of some kind.

MR WALKER:   It is a pains question, rather than – I am sorry, your Honour.

KIEFEL J:   I was thinking it might involve forfeiture of some kind, liberty, property.

MR WALKER:   Yes.  So a pain in person or property, yes.

GUMMOW J:   Road offenders are habitually punished by having their licence taken away, is that punishment in this sense?

MR WALKER:   Yes.

GUMMOW J:   Loss of a privilege?

MR WALKER:   In many cases, yes.  In the context of 19 and 7 of the Extradition Act, yes, anything which to this Court’s eyes, in another system, represents something involving the meting out of something in the nature of a pain upon a person in order to measure disapproval and to deter, et cetera, to mark the crossing, the transgression in question which led to the finding of guilt will be punishment.

GUMMOW J:   In the United States you might lose your right for life to vote.

MR WALKER:   Yes.

GUMMOW J:   So it could go to civil status, loss of an aspect of civil status.

MR WALKER:   Yes.  Just as there are many people, alas, in some systems to whom fines of a certain amount are nothing to be worried about, but it does not mean a fine is not punishment of them.  So there will be many people who would not care less about losing their right to vote.  On the other hand, the value that a legal system sees, for obvious reasons, in having a right to vote, if not a duty to do so, would mean that its deprivation could be seen in a particular context as a form of punishment.  So that if people of a certain, say, political past, that is, something that denotes, according to the punishing power, a political opinion, upon conviction of certain offences loses forever their right to be a candidate at or to be a voter at an election, questions will arise, such as this Court has had to look at, as to whether that will be punishment for the purpose of 7(c).

It is easy to see that that is not a straightforward question.  Sometimes it will be punishment, sometimes it will not.  That awaits a case in which deprivation of some civil right of a voting or political participation kind, perhaps of an ownership of property kind, perhaps of an educational access kind, falls to be determined.  For example, if the good of tertiary education at public expense is a limited resource that is rationed and it is rationed by leaving out people who have, for example, failed to pay their tax in some criminal way, the question is is that a punishment or is it simply an order of priorities?  Those are issues which may arise but certainly do not arise in this case.

But the word “punishment”, in our submission, is one which will have to be considered in relation to each particular national system that falls to be scrutinised under a claimed extradition objection.  But our point is that it will be approached by reference to matters of substance, bearing in mind that the essence of a punishment is that it involves something in the nature of the administration of a pain on a person, causing a detriment to what would otherwise be a state of affairs that they would wish to aspire to, whether it be physical freedom, freedom to own property, freedom to participate in the social or political organs of a society.

GUMMOW J:   But then how do you connect what you have just been saying as to the scope of the term “punished” to what you were saying in response to Justice Bell earlier this morning?

MR WALKER:   In this case ‑ ‑ ‑

GUMMOW J:   Namely, the significance of the mitigation, non‑mitigation factor.

MR WALKER:   The connection, if it exists, is to be found and found only in the fact that sentencing for the same offence in the same circumstances produces a disparate outcome for somebody who did something which my client’s political opinions disabled him from doing.  Could I elaborate on that last point in particular, because I fear I may not have made it part of my answer to Justice Hayne?

One of the reasons why my client’s political opinions are to be linked to his inability to have the mitigating circumstance applied in his case is precisely because fighting for a cause is part of, perhaps a very extreme part of, the expression of political opinion.  That is not the only reason why people fight, but as soon as you talk about fighting for a cause it normally is.  Certainly in my client’s case it was.

Bearing in mind the evident paramount value, or weight, I should say, accorded by the combination of sections 19 and 7(c) to the expression of political opinion, and for that matter of nationality or race, and that it may involve a history of choosing for whom to fight in civil strife, in our submission it would be unreasonable to the point of impossibility within the statute to expect a person with political opinions so much against Croatian authority to serve in the forces which are seeking to extend or restore Croatian authority in contested territory.  To do so would be to devalue the very matter – namely, political opinion – which 7(c) has said this country values over and above the evident important good of sending accused persons back for trial.

Now, in a case such as the present another way of explaining why a comparison is necessary is that it assists by a kind of logic familiar in science and law to identify whether something is a reason or cause along the elementary lines of removing by hypothetical consideration, removing the putative causal factor from a narrative or description and seeing whether the result varies upon that removal.  If it does – though this is not logically inexorable – then one is either sufficiently persuaded or well on the way to treating that factor as causal.  Now, as I say, that is not inexorably logical but it is a way in which science and law routinely proceeds and a moment’s consideration of “but for” in both areas of endeavour shows that that must be so.

Of course, in this case we do not have to show things beyond reasonable doubt or even on the balance of probabilities the word is “may”, and that assists in maintaining the Full Court’s conclusion, in our submission, on that point.  Now, if one is going to remove a putative causal factor, see whether there is a different outcome, and then consider what that says about the causal character of that factor, it is obviously crucial in that approach that you select the appropriate comparator.  So, as in using scientific or epidemiological language, that you do not allow so‑called confounders to drive a result, that is, matters which obscure rather than clarify the causal relation of the factor of interest to the outcome of interest.

In our submission, arguments about all the reasons why somebody may not have been a member of the Croatian Homeland Army fall into the error of selecting a wrong comparator.  It is not to the point that a person who is crippled or not fit or too old or too young, too timid, a pacifist, too many young children at home, et cetera, it is not to the point that those are some easily imagined plausible reasons why a person may not have served in the Croatian Homeland Army and thereby not enjoy the mitigating circumstance, even though with those characteristics they nonetheless committed the war crime by, for example, ordering a massacre.

GUMMOW J:   The trouble is, Mr Walker, this expression “political opinion”.

MR WALKER:   Yes, political opinions.

GUMMOW J:   In our culture political opinions get fought out at the ballot box.

MR WALKER:   Yes, quite.

GUMMOW J:   That is not what this gentleman, it would seem, was concerned with and this particular dispute was not going to be sorted out at any ballot box anywhere.  It is only going to be sorted out, it seems, by force of arms.

MR WALKER:   That is a problem, but not a problem at a legal level, for vindicating the Full Court’s decision for this reason.  The Extradition Act really does not permit an approach by this Court which says of people whose political opinions have been manifested by taking up arms that that, without a great deal more, disqualifies them from the protection.

GUMMOW J:   That is a question.

MR WALKER:   It is a question, but what I am saying is there is nothing in the text of the Extradition Act that suggests that political opinions do not remain and do not cause disparate outcomes amounting to punishment, for example, in cases where they have been expressed by violence.  Now, when we say by violence and force of arms, of course, it is not possible for the Court, with respect, to approach this on the basis a priori that violence or taking up arms is a bad thing.  In other words, taking up arms in protection of a value, which is itself approved ‑ ‑ ‑

FRENCH CJ:   Well, it boils down to this, does it not?  We will send a person back to be punished for war crimes, but we will not send a person back to be punished for his political opinions?

MR WALKER:   That is right, yes.  However, being accused of committing a war crime does not exclude you from the class of persons who may be able to show the possibility, to the requisite level, that the punishment would be on account of political opinions.

GUMMOW J:   Well, that is the question, it seems to me.

MR WALKER:   It is a question, but, in our submission ‑ ‑ ‑

GUMMOW J:   It is certainly not a question faced in the Full Court.

MR WALKER:   I was about to say that it is a question that has not been raised in the argument ‑ ‑ ‑

GUMMOW J:   It is not raised against you by your opponent.

MR WALKER:   It has not been raised against us, no.  I accept that that is a matter that the extradition of alleged war criminals requires to be determined.  For what it is worth, although the argument is not put against us, we do submit that the Extradition Act cannot be read as disapplying section 7(c)’s reference to, probably race, nationality and political opinions would be the ones in question, whenever somebody who has taken up arms is thereafter accused of war crimes it being, of course, fundamental that being accused of war crimes does not mean that one has committed it and also fundamental that the persecution by victors of enemies may well include unfair or illegitimate processes declaring themselves to be the prosecution of war crimes, but in fact being nothing other than a form of vengeance.  That is an obvious possibility which, in our submission, the Extradition Act leaves open to be examined as a matter of substance in a particular case, which raises it.

HAYNE J:   May I return to this question of difference, Mr Walker?  I know that we have moved on but may I return to it and do so by reference to religion, which is one of the forbidden categories in 7(c).

MR WALKER:   Yes.

HAYNE J:   Assume an offender standing for sentence in the courts of the requesting country can pray in aid the offender’s religiously motivated charitable works effected by his tithing income.  Assume further that the person whose extradition is sought is a vehement non‑believer, does the vehement non‑believer have a religious objection on account of difference in treatment that will be accorded to him?

MR WALKER:   No, for this reason.  I may be revealing personal prejudices but I have not understood that a lack of belief, even to a vehement extent, in order to display sincerity must be accompanied by having a cobra in your pocket, being generous to charity has, with respect.  It is not a monopoly of the religiously minded and it would be staggering to hear a person say, “But I am not a Christian or Muslim” or whatever the religion that urges charity may be, “I am not one, therefore, I don’t give to charity, therefore the magistrate won’t know of what I’ve done for poor children”.

HAYNE J:   Analogies perhaps always mislead and ‑ ‑ ‑

MR WALKER:   Your Honour, it is, with great respect, useful for my argument to display the difference between that case where one cannot see the causal relation tracing through the profession of faith and the generosity which is in fact the mitigating circumstance or the favourable antecedent upon sentencing.  That is different in our case because it is the political opinions of my client which make it impossible, in the sense I have earlier explained, for him to have been in the Croatian Homeland Army.  So there is a solid nexus, that is, it is integral to his political opinions that he will not fight against Serbian Krajina forces and, in fact, it is integral that he will fight with them.  It is not integral to the giving to charity that you be of a religious faith, any particular one or any one.

HAYNE J:   I have diverted you from your course.

MR WALKER:   Not at all, your Honour.  Your Honours, the comparator, in our submission, in this case therefore must be seen as a person who is ready, willing and able to have fought in this conflict.  That is the one that removes only the putative causal factor and that is the one, in our submission, upon reflection, shows that the Full Court’s shorthand but, with respect, adequate description of a Croatian counterpart leads to a correct outcome in this case.  Could I conclude by simply then going to the matters, apart from paragraph 53 about which I have said enough, that, in our submission, show the correctness of the Full Court’s conclusion.

There are a couple of matters that need to be noted.  In paragraph 52 there is a reference to it not being nationality.  There is another expression there, “not based on nationality”.  The evidence shows in the extradition request and in the District Court’s finding of charges my client is described as having Serbian and Australian national status and also being of Serb nationality.  We simply draw to attention that it is not nationality.  The reasons given by the Full Court is that that nationality, whatever that may mean, we refer, with respect, to the possibilities noted in passing by Justice French in Hempel about nationality.  For the reasons put in paragraph 52, that does not lead to what their Honours called earlier “the selective application” of the benefit of the so‑called mitigating factor. 

On page 302 the conclusion reached by their Honours said to follow from paragraph 53, uses the word “prejudice”.  That needs to be understood in light of paragraph 55, “The second ground of appeal is thus made out”, and then their Honours do quote from the second, rather than first limb of 7(c), namely, “punished”.  Their Honours say “thereby detained or restricted” and that it “arises by reason of”, and then they say “nationality”.  However, I note that paragraph 52 means that that needs to be ignored, “or political opinions”.  It is the “or political opinions” which is the conclusion.

FRENCH CJ:   Mr Walker, there are some observations in the judgment under the heading “AT TRIAL” and they are taken up in the second ground of appeal.  They do not seem to lead anywhere and it is common ground, is it, the second ground of appeal really, we do not have to concern ourselves with that?

MR WALKER:   That is right.

FRENCH CJ:   Yes, thank you.  Yes, Ms Perry.

MS PERRY:   Thank you, your Honour.  Your Honours, there are five points that I wish to make in reply.  The first is raised by the question of the decision in Spanovic.  In relation to that decision, we seek to make no more of the fact that reference is made to Croatia being a signatory of the European Convention on Human Rights than that it provides an additional safeguard that the trial will be conducted in accordance with the rights that are enshrined in the European Convention on Human Rights. 

We accept that there was no evidence before the magistrate as to the manner in which the rights of appeal to the European Court of Human Rights fitted with the constitutional structure of Croatia.  However, we would draw the Court’s attention to the fact that in the letters of assurance contained in the appeal book at page 215 from the Ministry of Justice – and this is attached to the extradition request – mention is made of the guarantees contained in Article 14 of the Croatian Constitution and the guarantee is given by the Ministry of Justice as to a trial in accordance with those constitutional guarantees. 

In addition, I should mention that the transfer provisions, that is the provisions which provide for the transfer of matters from the County Court in which the offences took place, are contained or set out also in the same letter at page 216.  Article 12 there refers to the power to request a transfer and, in addition, Articles 19 and 23 are included on pages 218, 219 from the Criminal Procedure Act which show that as a rule the trial for an offence will take place within the territory where the offence was committed.  It is that court which has prima facie jurisdiction subject then to a successful application for transfer to one of the specialist war crimes courts.

The second point I wanted to make is a very short one.  My learned friend mentioned that the evidence of Mr Strbac, to which I referred earlier in‑chief, was to the effect that the war crimes courts would be constituted by professionals – one should perhaps say professional judges – and that is the effect of the evidence by Mr Strbac at page 117 of the appeal book. 

The third point I wanted to make concerns the OSCE reports.  It was said by my learned friend – and I hope I do not verbal him; if so, it is unintentional – that the OSCE reports were accepted by the parties as authoritative evidence as to the Croatian sentencing practices.  With respect, we would say that puts the matter far too high.  If I might refer the Court first to the statement by the Full Court in the appeal book at page 297, paragraph 37, where the Full Court directly stated:

The independence of the OSCE was accepted by both the appellant and the respondent and both parties sought to rely upon statements found in the two reports, albeit for different reasons.

Similarly, at the appeal book at page 16, in his reasons the magistrate observed:

Both parties in this matter agree that the OSCE is a reliable and respected monitoring body.

So, that as those observations correctly observe, the point that was made or that was agreed between the parties was that the OSCE provided reliable reporting in terms of the factual matters which it addressed.  However, it does not, of course, mean that its interpretation of data and opinions expressed by it in the course of its reports should be given any special weight.

GUMMOW J:   Is there any evidence of the date on which Australia recognised the Republic of Croatia?

MS PERRY:   There was no evidence led.  It is a matter on which one would have thought judicial notice could be taken.  I do not know off the top of my head the precise date, your Honour, but we would be happy to check that. 

HAYNE J:   It may be judicial notice only after inquiry of the relevant arm of the Executive, I suspect.  Rather than a matter of general public knowledge, these are matters, I think, the subject of judicial notice in that special and restricted sense, are they not?

MS PERRY:   In terms of when it became recognised as a state, when Australia extended formal recognition to Croatia, that I think would be correct, your Honour, yes.  That would be a matter that one would normally require ‑ ‑ ‑

GUMMOW J:   The extradition regulation came into force on 8 December 2004, we know that much.  That appears at Vasiljkovic 227 CLR 614 at 635. There is an anterior question.

MS PERRY:   Yes, I would have been extremely surprised if that were the date on which recognition took place.  The next point I wanted to address was the more substantive issue and in answer to the question by your Honour Justice Hayne, my learned friend agreed, subject to a slight qualification subsequently, that his argument was constructed on three principal planks.  The first of those was that the respondent holds political beliefs impelling service in the Serbian Army rather than the Croatian Army.  The second was that the conflict was a highly political one in its nature, and the third one was that the difference in punishment is therefore applied by reason of political beliefs. 

There are a number of matters with which we take issue with respect to those propositions.  The first is, it is said that the connection that is required is still a direct one but that it can include an inferred direct connection and that may well be correct.  However, there must nonetheless be a proper basis, in fact, for the drawing of the inference and in this case, for the reasons that we have already given, we say the evidence is manifestly insufficient to establish that link. 

Secondly, none of the matters that are pointed to have the kind of connection that section 7(c) requires as articulated, we say, correctly by Justice French, as he then was, in Hempel.  It is too remote to depend ultimately, as this argument would appear to do, on the respondent’s motivations and, further, given that all conflicts are political, it would seem that this would effectively exclude in its practical operation the return of offenders for war crimes to countries where those offences took place.  Further, notwithstanding the proposition that all conflicts are political, it was accepted, very difficult, in fact, to conceive of a conflict which was not political.

GUMMOW J:   What does “political” mean in this provision?

MS PERRY:   One would have though a challenge in one sense or another to the authority of a government or a state or a body that in some way is set up in opposition to the government or a state.  At least that would seem to be the sense in which it is being used in these circumstances.  Perhaps that is necessarily, in that sense, in these circumstances, but it does not necessarily mean that a political opinion of some other kind in an entirely different circumstance would not constitute a political opinion for the purposes of the extradition objection.  But in a conflict context that would seem to be appropriate.  Yet my learned friend has accepted, notwithstanding that all conflicts must necessarily be, we say, political in character, that is it not necessarily reprehensible for military service to be taken into account which creates a difficulty with the argument that is put. 

In that regard, if I might just pick up the points that were made in discussion yesterday between your Honour Justice Bell and my learned friend regarding paragraphs 17 to 18 of their submissions and to which my learned friend also returned this morning.  In those submissions, the respondent accepted, as your Honours will recall, that the absence of a mitigating circumstance should not itself attract punishment as a general principle of sentencing law and we understand it to be accepted that if this were the correct fear in the current context, then the ineligibility of the respondent for the mitigating circumstances would not amount to punishment.  However, the respondent then retorts that this approach would be misplaced in the present context, because the purpose of section 7(c) is to:

prevent the specified adverse outcomes occurring . . . because they would result from discrimination on grounds regarded as unjustifiable or reprehensible by the Parliament.

In effect, we understand the point to be that punishment occurs by reason of the discrepancies in sentencing and it is said that this underlies the Full Court’s reasoning sub silentio.  In turn, it is then said that this is the basis on which one has to engage in comparing one person’s position with another in order to determine whether there is greater punishment in the first instance and therefore they say punishment for the purposes of section 7(c) contrary to the normal rule.

We do not accept that that provides a reason for reading a concept of punishment in this broader sense and, in fact, it is a very loose connection between the two ideas.  But even if that were so, it would, in our respectful submission, render section 7(c) a very blunt instrument by which to protect a person whose extradition is sought against the unjustifiable discrimination to which the respondent accepts the section must be directed.  In this regard, section 7(c) itself contains no measure by which the Court could determine whether the different treatment revealed in this indirect and negative way was unjustifiable with the result that the section could go well beyond the purpose of protecting against unjustifiable or reprehensible treatment on the basis of race, political opinion and so forth, and therefore in accordance with fundamental human rights.

When one looks, in fact, at fundamental human rights, they are inevitably qualified by some measure such as the concept of proportionality or reasonableness.  It is highly unlikely, we say, that the Parliament would have intended that outcome given particularly the purposes of the Extradition Act being to facilitate the extradition of persons to or from Australia and other countries, as is apparent from section 3 of the Act, and to give effect to Australia’s international obligations in that regard.  To extend the protection more generally to conscientious objectors purely on the ground of their motivations would go, in essence, well beyond protecting any legitimate concern.

It was also said that the human rights that were relevant were those protecting freedom of political expression but ultimately here the concern, we would say, is with ensuring equal protection before the law, also a fundamental human right which is reflected in the Universal Declaration of Human Rights which preceded, as I mentioned yesterday, the London Scheme and the consequential legislation in Australia and England and has, of course, found reflection subsequently in instruments such as the International Covenant on Civil and Political Rights.

The final point that I wish to make just concerned the decision of this Court in Chen Shi Hai v Minister for Immigration and Multicultural Affairs. My learned friend put the submission that this showed that there was more than one way of defining a cause. If I might just take the Court very briefly to it. It is on the respondent’s list of authorities It is reported in (2000) 201 CLR 293. If I could take your Honours to the heart of the decision at pages 300 to 301. I will not read from it, but the point that we take from that is that their Honours Chief Justice Gleeson, Gaudron, Gummow and Hayne, considered that the one‑child policy may be a law of general application when it applies to everyone to limit the number of children that they may have.

However, their Honours held that that was not the way that the law applies to children born in breach of the policy; rather, it applies to them by singling them out, by persecuting them for what they are and not for what they have done.  In other words, it is not the general law that says you can only have one child that is applying adversely to the children, it is the law or the policy that applies adversely to them because they are children born in breach of the policy.  That point is also made clear by their Honours at page 304, paragraph 32. 

So understood, we say, the decision in Chen Shi Hai with respect to persecution on an impermissible ground is entirely consistent with the approach that we have adopted, namely, that it must be shown that the adverse treatment or unfavourable treatment operates by singling out the proscribed characteristic, whether that appears expressly or by implication.  Unless there are any other matters on which the Court would wish to hear us, those are our submissions.

FRENCH CJ:   The Court will adjourn briefly to consider what course it should take in this matter.

AT 11.33 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.44 AM:

FRENCH CJ:   The Court is of the opinion that the appeal should be allowed and orders made for the confirmation of the magistrate’s orders.  Having regard to the subject matter of the appeal, the Court is of the opinion that orders should be made now.  The Court will publish its reasons for decision at a later date.

The orders of the Court are:

1.Appeal allowed with costs.

2.Set aside the orders of the Full Court of the Federal Court of Australia made on 2 September 2009 and the further orders of that court made on 4 September 2009 and, in place of those orders, order that:

(a)In addition to the order made by Justice Cowdroy on 3 February 2009, it be ordered that the orders made by Deputy Chief Magistrate Cloran on 12 April 2007 are confirmed;

(b)Subject to paragraph (a), the appeal be dismissed with costs.

MR WALKER:   May it please the Court.

FRENCH CJ:   The Court will now adjourn.

AT 11.46 AM THE MATTER WAS ADJOURNED