Republic of Croatia v Snedden

[2010] HCATrans 81

[2010] HCATrans 081

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 MONDAY, 29 MARCH 2010, AT 2.17 PM

Copyright in the High Court of Australia

MS M.A. PERRY, QC:   If the Court pleases, I appear with my learned friend, MS H. YOUNAN, for the appellant.  (instructed by Commonwealth Director of Prosecutions)

MR B.W. WALKER, SC:   May it please the Court, I appear with my learned friend, MR C.D. JACKSON, for the respondent.  (instructed by Schreuder Partners Lawyers)

FRENCH CJ:   Yes, Ms Perry.

MS PERRY:   Your Honour, we have put in a detailed written submission that seeks to challenge the Full Court’s finding from a number of different perspectives and shows, in our submission, that the Full Court’s approach is flawed in a number of ways from each of those different perspectives.  What I would like to use the time today to do is to rise above that detail and to explain why, when section 7(c) of the Extradition Act is read in light of its historical context and purpose, the construction for which the appellant contends should be accepted.

I propose initially to give a very short outline to put the question of construction into context, then to explain and illustrate the precise area of disagreement between the parties, as we understand it, as to the construction of the extradition objection in section 7(c) of the Extradition Act, thirdly then to explain the historical context and purpose and how that assists, we say, in resolving the question of statutory construction, and then developing on from that to take the Court to the decisions in Hempel and in the context of refugee law to a couple of cases where similar issues to those that arise here have been addressed.

Then we propose to take the Court to the central part of the Full Court’s reasons that we attack and to conclude by dealing with the relevant parts briefly of the evidence on which our challenge to certain factual findings are made, even though our case does not necessarily stand or fall on those challenges if the Court should agree with our construction.  I should mention also that subject to the convenience of the Court, I propose to deal with the amended orders that we seek in the notice of appeal at the end of my address.

Taking then a short outline the context in which the issues arise, and I will be brief.  Section 7(c) is one of five independent extradition objections the establishment of which under other provisions of the Act to the satisfaction of the decision‑maker will preclude extradition.  It is a concept that is relevant at three stages.  First, the Attorney‑General is not to give notice to a magistrate of receipt of an extradition request if he is of the opinion that an extradition objection exists.  Secondly, and relevantly for our purposes, in determining whether a person is eligible for surrender on an application to a magistrate by the requesting state, section 19(2)(d) of the Extradition Act provides that the person is only eligible if, relevantly:

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.

The third circumstance in which the issue can arise is if eligible for surrender the Attorney‑General can only determine if the person is to be surrendered if relevantly satisfied that there is no extradition objection in relation to the offence.  That is under section 22(3).  That was, of course, the situation that confronted your Honour the Chief Justice in Hempel.  It is, of course, though, as I have indicated, consideration of section 7(c) in the context of a determination by a magistrate under section 19 that we are concerned with here. 

Those proceedings are, of course, administrative in character, as this Court held in Pasini v United Mexican States, although the reviewing court under section 21 undertakes a merit review confined to the material before the magistrate.  Of course, this Court heard, in an earlier matter raised by the respondent, Vasiljkovic v Commonwealth, this Court determined that that involved an exercise of judicial power by the reviewing court.  The Full Court, of course, allowed the respondent’s appeal on the ground that there were substantial grounds for believing that there was an extradition objection within section 7(c), namely, that on surrender to Croatia in respect of the extradition offences, the respondent may be punished, detained or restricted in his personal liberty by reason of his political opinions

That finding at paragraph 53 of the judgment was based on the fact that if convicted of the war crimes which are the subject of the request, the respondent would not be entitled to the potential application of a mitigating factor in his favour, namely, that he did not fight with the Croatian forces in the Homeland War.  The Homeland War, of course, is the armed conflict that took place in the territory of Croatia in the period 1991 to 1995 and included, relevantly, the attempt to establish an independent Serbian Krajina within the territory of Croatia.

In turn, of course, that conflict took place within the broader context of the dissolution of the former Yugoslavia which involved conflicts on a number of fronts, both on political questions and with respect to territory.  For example, of course, the attempt to establish the independent Serbian Krajina was part of President Milosevic’s drive for greater Serbia which was fought not only in Croatia but also, for example, in Bosnia.  We have referred in brief to that in our submissions in‑chief at paragraph 41 and also to the statement of Associate Professor Radan which is at attachment 5 to those submissions and was, of course, in evidence before the magistrate.  Turning then to the central question concerning the construction of section 7(c) ‑ ‑ ‑

FRENCH CJ:   Are we concerned with anything in this case other than punishment?

MS PERRY:   Your Honour, that is a difficult question.  At the moment it would appear that the manner in which the finding was expressed it was intended to embrace the other two limbs, or arguably it was intended to embrace the other two limbs of section 7(c), so punishment, detention or deprivation of personal liberty.  Punishment would appear to be the most obviously applicable concept.  The others, though, are not necessarily exclusive of the concept of punishment.  We accept there may be a degree of overlap.

However, we would understand the section to have been intended to operate so that a detention or deprivation of liberty were really directed more towards, for example, bail, or also the possibility of an arbitrary detention on return which, for example, was the argument raised in the House of Lords in the decision of Fernandez, albeit that it did not succeed in that case.  That is what we would have thought was the correct – that was the reason we would have thought as to why the additional two concepts were added to the concept of punishment.  Nonetheless, ultimately, in our submission, nothing would turn on that because any of the three concepts would involve the infliction of some act upon the respondent.  In effect, section 7(c) provides a safeguard against arbitrary or unfair discrimination on articulated grounds.

To start, before dealing with the points of disagreement, if I might deal with the points of agreement.  There is no disagreement between the parties, as we understand, and it was accepted by the court below that the burden lay upon the respondent to establish the conditions for the operation of the extradition objection, nor is there any issue taken that the question posed by section 7(c) requires the decision‑maker to make an assessment of future events, but that that does not require proof on the balance of probabilities, rather, a real and substantial risk of the circumstances described in section 7(c) would be sufficient.  Nor is there any issue that the Full Court rightly held that the words “by reason of” in section 7(c) require the respondent to establish a causal link between his political opinions on the one hand and his ineligibility for the mitigating factor on the other hand.  The issue between the parties focuses on what will suffice to establish that connection. 

If I can then turn to the precise nature of that difference, as we see it, before turning to explain why we say that properly construed in context section 7(c) should bear the construction for which we contend.  The respondent seeks to defend the Full Court’s decision by arguing that a sufficient connection exists because the respondent did not fight with the Croatian forces because of his political opinion.  Now, the respondent’s argument, it seems, could logically have stopped at that point as his failure to fight with the Croatian forces would suffice to preclude him from being entitled to the mitigating factor, but the submission is also put by the respondent that he did fight on the converse with the Serbian forces because of his political opinion and, further, that he could not have fought on both sides, although that would seem to be really moot.

So at the end of the day, the respondent says that the focus is upon the individual and if that person is deprived of a benefit or receives less favourable treatment because a political view has led them to behave in a particular way, well, that is the end of the matter.  So on that view, there is no need for a direct connection between the respondent’s failure to qualify for the mitigating factor and his political opinion, but the respondent seeks to bridge that gap by relying on the fact that his disentitling conduct was motivated by the political opinion.

If I can give an example of how that approach might work in another case in rather different circumstances.  A man might be charged with rape and did not use protection because of his religious beliefs, his failure to use protection would be treated as an aggravating factor in sentencing in the requesting state if he was surrendered.  Now, if the respondent’s approach were correct, the objection would be made out if the failure to use protection was motivated by his religious beliefs.  By contrast, the appellant says that the section requires a direct causal connection between the respondent’s political opinion on the one hand and the different treatment, be it punishment, detention or restriction in personal liberty.

FRENCH CJ:   Does that causal connection, on your submission, require that the authority inflicting the punishment do so adverting to the respondent’s political opinions?

MS PERRY:   Your Honour, we would say that it is satisfied where the differential treatment operates by singling out one of the relevant attributes, one of the proscribed attributes.  An example of that might be where the courts of a particular country considered that it was particularly serious for a Christian to commit an act of violence on a person of the Muslim faith, or vice versa, and that where that is established the courts will not grant bail or, alternatively, that is an aggravating factor taken into account in sentencing.

As a further example, it may be a case where a person were charged with criminal defamation and the fact that they have defamed a member of the incumbent government in relation to the discharge of his or her governmental duties is treated by the courts as an aggravating factor that will result in an increased penalty.  So it is this connection, this direct connection, through a singling out of the attribute that we say lies at the heart of the causal connection that is required by section 7(c).

FRENCH CJ:   Is another way of putting it simply to say that the causal connection must be direct?

MS PERRY:   It is.  We are using in this case the concept of direct discrimination.  I was going to deal in due course with the very different way in which indirect discrimination or persecution are dealt with in other contexts and how those contexts import standards that one does not find in section 7(c) and enables some kind of assessment to be made of the justification of the law, but if it is convenient to the Court, I will deal with that later in my submission.

HAYNE J:   The argument as thus far advanced presupposes the relevance and the utility of drawing a comparison with the punishment of another whose conduct may or may not have been motivated by political belief, is that right?

MS PERRY:    Drawing that comparison will assist, it is a tool, in effect, by which discrimination can be revealed.

HAYNE J:   Do you accept that the comparison that is drawn is a comparison with the punishment that would be imposed upon someone who had served in the armed forces of Croatia where that person may or may not have served on account of that person’s political belief?

MS PERRY:   We would not accept that that constituted discrimination within section 7(c) because ‑ ‑ ‑

GUMMOW J:   Where does section 7(c) talk about discrimination?

MS PERRY:   If I can turn back to the terms of section 7(c) ‑ ‑ ‑

GUMMOW J:   If you begin by putting a gloss it, you bring some baggage with it.

MS PERRY:   It does, and that is why I have tried to define with particularity what we are referring to when we speak of “direct discrimination”, and I was going to illustrate that by reference to a number of authorities where the same concepts have been employed ‑ ‑ ‑

GUMMOW J:   It talks about prejudice.

MS PERRY:   Returning to the question of discrimination to which your Honour has referred, the reason why I said that a comparison provides a tool by which one can determine the reason for the prejudice or the punishment or the detention is that by comparing the position that someone has with the position of others in like circumstances, one can see, in the ordinary case, whether that person is being singled out.

HAYNE J:   But the question for debate is whether the criterion at issue in this case is or is not relevant to determining likeness, and if you presuppose that the comparison is to be made you have assumed the answer to that question and it is that assumption to which I direct attention.

MS PERRY:   Your Honour, if I can perhaps develop the argument by reference to context and purpose and then I can explain the way in which we say that can make the question of comparison relevant.  The comparison, as I have endeavoured to explain, is the tool by which we can reveal the reason.  Ultimately, what one is looking for is whether the proscribed characteristic is directed to the – sorry, whether the act of punishment, detention or restriction is directed to the person by reason of, that is by singling out that attribute of that person, be it race, religion or political opinion.

KIEFEL J:   But the factor which may mitigate sentence in the courts in Croatia, and for which he would not qualify is the fact of national service or service with the Homeland Army.  Is it not the case that persons may not qualify for the application of that mitigating factor whether they have the political opinion that the respondent has or whether they have the opposite political opinion?

MS PERRY:   That is correct, your Honour.  The manner in which the mitigating factor is applied is such that it is applied simply by virtue of the fact of military service on one side of the conflict, and there may be many reasons why there may be people who participated, for example, on the Croatian side, but did so notwithstanding that they supported the establishment of an independent Krajina, or some or all other aspects of the Serbian cause.  On the other hand, people who did not serve with the forces on the side of Croatia would not be entitled to the mitigating factor irrespective of whether they supported the Croatian cause or not.

KIEFEL J:   So in a sense the argument that there is to be a comparison for the purpose of the section may assume, perhaps incorrectly, that the fact of service for the Homeland Army necessarily implies a particular political opinion.

MS PERRY:   We certainly would not be saying that the fact of service carries with it a particular political opinion but at that level of the argument one would make that assumption.

KIEFEL J:   You would have to, would you not, to make a proper comparison?

MS PERRY:   Yes.  That is right.  At that level if one were making a comparison – if one were making a comparison, even if – if I might take a step back - even if one were to make the assumption that a political opinion can be attributed to a person by reason of their service on one side or the other in a conflict, that would not avail the respondent because irrespective of what political opinion one held the mitigating factor is not applied by reference to political opinion.  It is simply applied by reference to the fact of service.

The construction for which the appellant contends is supported by a number of contextual considerations with the history of the provision assisting in illuminating the purpose of section 7(c).  It is to that that I wish now to turn.  Your Honours, in that regard – and we apologise for the lateness of the hour – we have put together a bundle of extrinsic materials.  We provided these to my learned friends yesterday afternoon but we felt it would be of assistance to the Court to have a proper collation of the secondary materials.  That includes, although it was not included in the bundle, just one missing link which we were not able to locate quite so readily which is the London Scheme which ultimately formed the basis for the 1966 Extradition Acts.

FRENCH CJ:   I think the London Scheme is contained in a standard text of this extradition procedure.

MS PERRY:   We have obtained a copy of that, yes.  It was a question of being able to do that within time.

FRENCH CJ:   Where is this referred to, incidentally, in your submissions?

MS PERRY:   This argument is not one that we have developed in terms in our written submissions.  It is really taking, as I explained at the start of my oral submission, a step back so that we can look at, from the perspective of the history and the purpose of the provision, why the construction that we say is correct.

HAYNE J:   What exactly is that construction – that these materials demonstrate, do you say?

MS PERRY:   The materials demonstrate that section 7(c) re‑enacts section 14(b) of the Extradition (Foreign States) – of an equivalent provision in the Extradition Foreign States Act and Extradition (Commonwealth Countries) Act of 1966 which in turn were based on the, or gave effect to the London Scheme.  That scheme was one that was negotiated in light of the independence of many of the states - members of the Commonwealth and the change in their constitutional structure to a republic together with Australia’s intention to enter into extradition treaties with countries outside of the Commonwealth.

It was by reason of that that it was felt that there was a need to provide for certain safeguards to protect the interests of the person whose extradition was requested.  Your Honours would be aware that prior to those acts and to the London Scheme and the equivalent English Act the situation had been governed by the Fugitive Offenders Act 1881.  That did not contain these sorts of safeguards and it did not make provision, in particular, for political offences governing a situation where all of the Commonwealth countries were British possessions owing allegiance to the Crown and having virtually the same system of law and justice.  So it was a cumulation of these different changes in circumstances that led to the change in the legislative scheme governing extradition and led to the need for these safeguards to be included.  Now, the safeguards contained particularly in section 7(b) and 7(c) replicated those which were found in the 1957 European Convention. 

FRENCH CJ:   Not quite replicated.  I think Article 3.2 spoke of prejudice without elaboration.

MS PERRY:   It did, your Honour.  The 1957 European Convention provisions, Article 3.2, of which was picked up in effectively identical terms in the 1966 Acts, so one traces these provisions back to the 1957 European Convention.  It was not limited.  In fact, Article 3.2 was not limited to the purpose of prosecuting.  It also included punishing a person on account of his race or other attribute.

When one then puts the 1957 European Convention, which lies at the heart of all of this, into its historical context, we can see, as the language in any event would lead us to assume, that it was, in effect, picking up and applying it in an extradition context to some degree certain fundamental human rights which were embodied at the time of the 1957 Convention in the Universal Declaration of Human Rights which had been adopted by the United Nations General Assembly in 1948 and, of course, finds reflection subsequently in international instruments like the International Covenant on Civil and Political Rights and the International Convention on the Elimination of All Forms of Racial Discrimination.

Although I have gone through that at far more of a whirlwind pace than I had intended, the fundamental point, we say, is that that historical origin, that intention to protect to some degree in this context these fundamental human rights reveals a fundamental difficulty, we say with respect, with our learned friend’s argument.

HEYDON J:   I think all that Justice Hayne wanted to know was, what is the construction of paragraph (c)?

MS PERRY:   Your Honour, we say the construction of paragraph (c) is such that it requires that the unfavourable treatment, the punishment, detention or restriction be one that is referable to the attribute in question, be it race, religion, nationality or political opinion.

BELL J:   Is there some reason for incorporating the language of “unfavourable treatment” in that answer concerning the construction of the provision?

MS PERRY:   The reason why I have incorporated the language of “unfavourable treatment” is that if somebody is treated ultimately in the same way as everyone else then the person is not, in our submission, being:

punished, detained or restricted in his or her personal liberty, by reason of –

an attribute.  Their treatment is the same as everyone else.  They are being treated equally before the law.  That may not be the case in a situation where someone might have a positive right to be treated differently but that is not the situation that we are dealing with here.

FRENCH CJ:   I am not sure that “by referable to” is of great assistance to you.  I think Justice Weinberg who was expressly approved by the Full Court in the Macedonian Teachers’ Case 91 FCR took “referable to” as being broader in concept than “by reason of” which he saw as linked to direct causal connection.

MS PERRY:   I am grateful to your Honour for that.  My language was too loose.  I prefer to stick with the language that I originally used of singling out an attribute.

FRENCH CJ:   So can we have your construction again?

MS PERRY:   Thank you, your Honour.  That the treatment in question, be it punishment, detention or restriction in personal liberty singles out the person by reason of a proscribed attribute, relevantly here, of course, political opinion.  What I wanted to do now is to illustrate the converse of that and to illustrate why we say that section 7(c) does not actually allow for a broader construction of that.  That derives from this point that I made a few moments ago as to the purpose of providing a safeguard that reflects certain fundamental human rights.

The difficulty, as we see it, is that ordinarily conscientious, religious or political objections are not a reason for being entitled to treat oneself as being absolved from the laws of the state.  It is not, in other words, necessarily unjust for the state to punish a conscientious objector in the same way as anyone else who breaks the law.  Lord Hoffmann makes this point in Sepet v Secretary of State for the Home Department which is a decision I will come to in due course.

In just the same way we say it is not necessarily unjust to hold that a person’s conduct in the commission of a crime constitutes an aggravating factor warranting a higher sentence, notwithstanding that that conduct was motivated by person’s religious or political beliefs.  I would refer back to the example that I gave earlier of the rape case.  Conversely, we say, it is not necessarily unjust to hold that a person is not entitled to the benefit of a mitigating factor due to their behaviour notwithstanding their personal motivations.

FRENCH CJ:   You are bringing this notion of what is just and unjust.  We are concerned with the scope of the causal connection and whether there is such a connection answered by the application of a mitigating factor by reference to service in the Homeland Army or the Croatian Armed Forces.

MS PERRY:   I am sorry, your Honour, if I have not made the link clear.  The reason why we say this is relevant is that when one deals with discrimination in the sense that I have articulated, where a person is treated unfavourably and they are singled out for that unfavourable treatment by reason of an arbitrary matter such as their race, then there is virtually no situation in which that is going to be justifiable.

HAYNE J:   But this it to debate the matter at a level of abstraction that – I speak only for myself – I do not find especially helpful, Ms Perry.  Injecting notions of just, unjust, injecting notions of rights seem to be distracting us from the key task of construing the statute and applying it to the facts.

MS PERRY:   Your Honour, the reason why we say that this is a relevant consideration is that it is clear that what is being prescribed, no matter how one reads the section, is treatment which is done by reason of an arbitrary matter and the reason why one, we say, limits that to the question of direct discrimination to singling out one of these attributes as the subject or the circumstance that attracts the treatment, is because the section does not actually provide any other measure by which one might be able to determine or differentiate between situations where the less favourable treatment is justified or otherwise not.  I accept your Honour Justice Hayne’s criticism that I have been dealing with this at a level of abstraction so that I will try to bring it back to something a little more concrete.

GUMMOW J:   We really need to know why you say the Full Court was wrong.  That is why you are here.

MS PERRY:   Your Honour, the Full Court, at least as my learned friend construes it, and I think that we are probably in agreement on this, in effect suggests that it was the behaviour of the respondent that – the motivations for the respondent’s decision to fight on one side of the conflict rather than the other that led to him being disentitled from the application of the mitigating factor.  What I am endeavouring to do is to say that when one looks at section 7(c) it can only be directed towards this kind of direct discrimination because if one were to go beyond that and to start talking about reasons or motivations for conduct, the section does not contain any means by which a measurement could be made as to whether a particular law was justified or not, in a foreign state, for choosing that characteristic for its application.  If I can take a different example.  If one talks about general discrimination laws, we see reference being made to concepts of proportionality and reasonableness, so that many ‑ ‑ ‑

GUMMOW J: If you are going to talk generally about “discrimination law” – which there is no such thing, if I may say – what does come out of it, whether it is in the Constitution or in some specific statute, crops up in all sorts of contexts, is the need to find a comparator. So what is it like is being treated wrongly is like and what is unlike is being treated in the wrong way. What is the comparator, do you see, the Full Court is having isolated here? Did they not have to find a comparator and then hook the comparator sufficiently into the notion of political opinion in 7(c)?

MS PERRY:   The only comparator that they appear to have used is the respondent on the one hand being a person who was motivated by his political opinions to fight on a different side of the conflict, to compare his position as against the position of a person who fought on the Croatian side, and to have looked no more broadly than that.  Simply to say, all we need to do is to look at what motivated him to act in the way that, in effect, precluded him from being entitled to the mitigating factor.

HAYNE J:   Well, I am not sure that does complete service to what appears in paragraph 53 of the reasons, and paragraph 53 of the reasons was, I thought, the hinge about which the reasoning turned.

MS PERRY:   It is.  It is the linchpin.

HAYNE J:   It seemed, at least at first sight, to be a paragraph that engaged two separate propositions, the first in the first sentence:

The mitigating factor . . . operates by reference to ‘political beliefs’ -

and the conclusion drawn in the last sentence:

It follows that the mitigating factor is applied by reason of a person’s political beliefs.

MS PERRY:   Your Honour, the first sentence is, in our submission, by way of introduction.  It explains the court’s finding that:

The mitigating factor, however, operates by reference to ‘political beliefs’.

Then the paragraph goes on to explain the basis on which that finding is made, and the conclusion reinforces that, so that there are three reasons which the Full Court puts up as being the basis for the mitigating factor – its finding that the mitigating factors apply by reason of a person’s political beliefs.  The first fact to which their Honours point is that:

The appellant’s political beliefs concern . . . ‘the self determination of Serbian people in the Balkans –

and they are in effect his political opinion.  We have no issue with that fact as a fact.  The second is the role that he played in that military conflict, and the third was the reference in the extradition request:

to the armed conflict in Knin ‘between the armed forces of the Republic of Croatia and the armed aggressor’s Serbian paramilitary troops of the anti‑constitutional entity the “Republic of Krajina” ‑

Now, those three facts we say do not logically lead to the conclusion that the mitigating factor is applied by reason of the person’s political beliefs.  There is nothing that is said there about the way in which the mitigating factor is applied at all, so ‑ ‑ ‑

FRENCH CJ:   The nub of that analysis requires any consideration of whether the respondent is treated less favourably than somebody else.  The question is whether or not you can identify a causal link – and you say it must be a direct causal link ‑ ‑ ‑

MS PERRY:   We do, your Honour.

FRENCH CJ:   ‑ ‑ ‑ between the punishment that is imposed, or some component of the punishment that is imposed, and the respondent’s political opinions.

MS PERRY:   Yes.

FRENCH CJ:   Now, if such a link would be established, for example, if the sentencing court says, we treat support for the Republic of Krajina as an aggravating factor, or if they treated it as an aggravating factor without expressly saying so, but one had satisfied it under cover of some other formula, that was what in fact happened, but in each case you would have a direct causal link, no question of comparators, no question of being treated more or less favourably than anyone else.

MS PERRY:   No.

FRENCH CJ:   That only seems to enter the picture through the facts of this particular case, does it not?  That is how that sort of, in a sense, distraction arises?

MS PERRY:   It may well be that your Honour is completely correct in that, that the reason why we have entered into the debate of a comparison is ultimately because we have been endeavouring to get behind the reasoning of the Full Court to discern precisely what their Honours did.  We were troubled by the fact that ‑ ‑ ‑

KIEFEL J:   In that regard is it correct necessarily to accept or to assume, as you appear to have done, that the first sentence of paragraph 53, is by way of introduction only:

The mitigating factor, however, operates by reference to ‘political beliefs’.

That seems to be rather more of a statement of conclusion.  It follows on from paragraph 52 from which it is said that the mitigating factor does not operate on the basis of nationality.  Paragraph 53 of the Full Court’s reasons may not be saying that the mitigating factor operates only with respect to this particular person’s political beliefs.  It must, I would have thought, be saying that it operates generally in relation to political beliefs.

MS PERRY:   Yes, your Honour.

KIEFEL J:   Is that not what you have to challenge?

MS PERRY:   We do challenge that, your Honour.  We have said in our written submissions that there is no evidence to suggest that the mitigating factor is applied.

KIEFEL J:   I was going to say is it not a question of evidence?

MS PERRY:   That is a question of evidence and on that there is no evidence to suggest it is applied by reference to a person’s political beliefs.  The way in which the respondent has sought to deal with that is to say that it is because in this case the person to whom the mitigating factor cannot apply is someone who was motivated to act in a way that meant they could never attract the benefit of a mitigating factor.  But that we say is too remote a link.

HAYNE J:   That seems to be an embrace of a chain of argument identified in paragraph 53, the first sentence:

The [applicant’s] political beliefs concern what he describes in his Statement as ‑

That proposition is then amplified - that is the appellant, here respondent, had political beliefs.  The last sentence:  “It follows that”.  Now, what do you say as to that reasoning?

MS PERRY:   We say, your Honour, that for the reasons I have been endeavouring to explain, that does not suffice; that what section 7(c) requires is a direct link in the sense that I have endeavoured to explain between the person’s political beliefs and the manner in which the mitigating factor is applied.  The facts establish no more than that the mitigating factor is applied on the basis of someone’s service.  As the court found earlier in its reasons, in fact at paragraph 52, the different forces were constituted by people of different ethnicities.  That reinforces the fact, we say, that one could not necessarily draw any assumption as to someone’s political beliefs by the side on which they fought.

KIEFEL J:   Perhaps a difficulty is created in that first sentence in paragraph 53.  Because it is so general, it is said the mitigating factor operates by reference – I put in parenthesis – generally to political beliefs; that there is some implication that political beliefs are somehow caught up in Homeland Service without identifying them whereas perhaps to be purely logical the reasoning of the Full Court would have to be that the mitigating factor operates by reference to particular political beliefs; the applicant has those political beliefs; therefore the mitigating factor operates with connection to him.  There is your causal connection.  But what has not been done is that the particular political beliefs to which the mitigating factor is directed have not been identified.

MS PERRY:   No, they have not been and it was for that reason that we then endeavoured – and this is part of the difficulty that we had, we may have erected a bit of a mound of straw for ourselves – but we then inferred that the Full Court had assumed that political opinion could be, in effect, assumed from the side on which someone fought.  In our submissions, and in fact I was going to take the Court through some of the decisions that make good, I hope, the propositions that I have been endeavouring to put, but they show – at least they are examples of cases where the courts have said in other jurisdictions one cannot infer a political opinion on the basis of the side on which one fights for many different reasons.  One may be motivated by one side or the other.

KIEFEL J:   That is generally, but how far did the evidence in this case go?  Did it say that the reason that this mitigating factor was introduced was purely court based or political and did it acknowledge simply the fact of national service or were there other purposes behind its application?

MS PERRY:   The evidence did not reveal that.  It might be of assistance, although I was going to deal with it later, to go to that evidence now.  If I could just ask the Court to have the appeal book to hand.  If your Honours would just give me a moment.  The first point at which one finds reference made to the mitigating factor is in the appeal book at page 162.  I should explain the document to your Honours.  This is in the context of a report which has been produced by the Organization for Security and Cooperation in Europe by its mission to Croatia. 

I am reminded that I should first go to the appeal book at page 156.  That is the first reference.  That document commences at page 135.  As your Honours will see, it was a background report dealing with domestic war crimes trials as at September 2006.  Your Honours will appreciate, as I mentioned earlier, that under the Extradition Act the only evidence to which the Court can have required on review is that that was before the magistrate, so that none of the material was updated.  That is section 19(5).

Now, at page 156 there is reference made to a decision of the Supreme Court of Croatia involving the sentencing of a Mr Nikola Ivankovic.  In that case your Honours will see that that sentence which had been imposed by the Osijek County Court was increased by the Supreme Court and the Supreme Court reasoned that that crime was committed in a particularly ruthless manner and that had not been properly assessed by the trial court when considering mitigating and aggravating circumstances and, in particular, the Supreme Court filed that the trial court had attributed too much significance to the mitigating factors, one of which they identified as being participation in the Homeland War, but they found that the brutality of killing 18 civilians was an aggravating circumstance that warranted a higher sentence. 

So that, in effect, one of the important aspects of that is first of all it showed mitigating circumstance being applied simply as such but in a weighing‑up process, but there is nothing said there about any significance that is attached to anything other than the Homeland Service.

GUMMOW J:   Do we know if this so-called mitigating factor is the product of anything in a Croatian positive law or is just a practice by the courts?

MS PERRY:   We do not know that, your Honour.  There was not evidence on that below.

HEYDON J:   Is there any evidence that it happened in any other case?  I mean, you have taken ‑ ‑ ‑

MS PERRY:   There is some evidence of the other case.  I was going to take your Honours to the other references.

FRENCH CJ:   Page 162, paragraph 2, I think, refers to trial courts continuing to apply the mitigating factor after the Supreme Court decision because the Supreme Court had not disapproved of that mitigating factor, but simply said in a particular case that aggravating factors had not been properly taken into account.

MS PERRY:   That is correct, your Honour, yes.  Of course, the OSCE was critical of that but the reason why it was critical of that was because the mitigating factor of Homeland Service was being applied in the context of war crimes.

FRENCH CJ:   This was the only material before the magistrate about what the Supreme Court had held and the conclusions offered from that holding were the conclusions offered by this organisation.

MS PERRY:   It was, your Honour.  There were really two reasons for that.  One was, as I have explained at the outset, the onus lies on the respondent to establish the ‑ ‑ ‑

FRENCH CJ:   I am not worried about that.  I am just concerned that this is the only material.

MS PERRY:   Yes, it is the only material, your Honour, just that which is contained in the OSCE report.  There is a third reference also at page 169 simply to mitigating circumstances and the balancing process, but there is nothing specific at that point about the mitigating circumstance that we are concerned with here.

FRENCH CJ:   Participation in the Homeland War, I think, at the top of page 170.  Footnote 132 takes us back to the Ivankovic Case.

MS PERRY:   Yes, indeed it does, your Honour.  In fact, I had it highlighted in red.

HEYDON J:   Ms Perry, on page 162 there is a reference to:

The continuing use of “participation in the homeland war” as a mitigating circumstance

Then there is a reference to Paulin Dvor, which is actually the case you describe by its other name, Nikola Ivankovic, back on page 156.  From 162 we are told to “See Section C.VII.1” expecting to find 20 or 30 instances of how this is constantly being used a mitigating circumstance.  When we get there, nothing more is done but what the Chief Justice drew attention to at the top of page 170, which gets us back to Nikola Ivankovic again.  So it is just one case, as far as we know.

MS PERRY:   Yes, your Honour, there is one case.

HEYDON J:   This is pretty flimsy, is it not?

MS PERRY:   It is very flimsy, your Honour, and it goes nowhere, we would say, near establishing even the ‑ ‑ ‑

GUMMOW J:   Which may help explain why the primary judge did not deal with it in any resolute fashion.

MS PERRY:   Yes, that may be part, although the way in which the issue arose was that it was initially hidden away in the submissions that were made to the magistrate as a sort of a paragraph, although there were – one or two paragraphs in a very lengthy submission.  It was not really developed as a submission at that point, but it was dealt with by the magistrate and then in the Full Court it was not a ground of appeal or raised until we were into the hearing at which point, subsequently, it was dealt with in writing.  So that that is in part the reason why there is a paucity of evidence on it, I would suspect.

HEYDON J:   As I understand it, the magistrate was never invited to look at this and it was raised in reply in front of Justice Cowdroy.

MS PERRY:   The point was raised in a set of extremely lengthy and complex submissions that had been put that raised every conceivable objection and ‑ ‑ ‑

KIEFEL J:   Before the magistrate?

MS PERRY:   ‑ ‑ ‑ apparently before the magistrate, yes, but buried in a myriad of points, and it is in fact dealt with by the magistrate.  I will just see if I can find the reference for your Honours.

FRENCH CJ:   You referred to the paucity of evidence and the courts beyond the – but Justice Cowdroy and the Full Court were confined to the materials that were before the magistrate by operation of the Act.

MS PERRY:   They certainly were, your Honour.  Yes, they were.  There is a reference to the mitigating factor in the appeal book at page 23, paragraph 82 and it was rejected there.

HAYNE J:   The argument in favour of establishment of a political objection appears to proceed by the following steps.  One, others may have lesser punishment imposed for similar conduct because those others can rely on an aspect of their past conduct which is not available to the respondent.  Two, the past conduct upon which those others would rely is service in the armed forces of the requesting state and that service was service during the conflict in which the extradition offences alleged to have occurred.  Is that right?  Is that the essence of the argument that a political objection is established?

MS PERRY:   I think yes – more or less, that is, I think, your Honour.

HAYNE J:   I am sorry?

MS PERRY:   I think that is correct, your Honour, yes.

HAYNE J:   What do you say about that?

MS PERRY:   That the motivations that a person may have for their conduct do not provide a sufficient link for the purposes of section 7(c) between their political opinions and the treatment in terms of their lack of entitlement to the mitigating factor.  Your Honours, what I would like to do – I was going to finish first of all by going through the evidence because there is one other reference that I ought to take the Court to on the mitigating factor, to complete the evidence that was before the court on this issue.

GUMMOW J:   Involved in the Full Court decision, it seems to me, is a finding of fact for the first time.

MS PERRY:   I am sorry, your Honour, a finding of?

GUMMOW J:   There is a finding of fact.

MS PERRY:   It is a finding of fact.

GUMMOW J:   They talk about evidence in some loose fashion in paragraph 34 on page 297.  They do not say what it is.  They do not say what they conclude from it in any coherent fashion.

MS PERRY:   Your Honour, we do say that is in the first instance a finding of fact and the material to which I have been taking the Court just now we hope demonstrates that there was not a foundation in the evidence for that finding.

GUMMOW J:   The last reference on mitigating material?

MS PERRY:   That is at pages 235 to 236.  This is another trial where reference was made to the mitigating factor being applied by the Split County Court, although reference on page 236 is made to the fact that the prosecution has indicated it may appeal against the sentence.  In particular at page ‑ ‑ ‑

GUMMOW J:   Is this the Blecic Case?  Is that being talked about?

MS PERRY:   It is the Lora trial, your Honour.  It is related to the Lora Military Prison in Split.

GUMMOW J:   What page?

MS PERRY:   It is at page 235 the discussion commences, your Honour.  At page 236 reference is made to the fact that:

The eight accused were sentenced to prison terms ‑ ‑ ‑

GUMMOW J:   Whereabouts?

MS PERRY:   I am sorry, your Honour, it is about line 16.  Reference is made to the fact that:

This type of mitigating factor is not applied by the ICTY . . . it introduces a discrepancy into war crime sentencing largely correlated to national origin.  Thus, the same crime committed by members of the Croatian armed forces is subject to lesser punishment than when committed by members of the former ‘Krajina’ or Yugoslav forces.  The prosecution has indicated that it may appeal against the sentencing.

HEYDON J:   It does not tell us that it is common or goes beyond this second case.

MS PERRY:   It does not, your Honour.

HEYDON J:   Indeed, it rather suggests that the prosecution did not think it was the right thing at all, because it is going to appeal.

MS PERRY:   That is correct, your Honour.  We do not know because of the restrictions on evidence what the end result was.

KIEFEL J:   The point of the reference to the Supreme Court’s view of it at, I think, page 162 at about line 28 is that at least in one case the Supreme Court has not directly said that it disapproves of this mitigating factor.

MS PERRY:   No.  It went no higher than that.  We see the description of what the Supreme Court held back at pages 156 to 157.

FRENCH CJ:   At 162, just going back to that passage for a moment, after referring to what the Supreme Court decided in the Ivankovic Case, the report says:

In 2006, trial courts continued to apply this mitigating factor.

Then there is a reference to a case of Duic in the footnote in the Split County Court.

MS PERRY:   Yes.  That is the Lora case.

FRENCH CJ:   That is the same one you were taking us to at page 236, is it?

MS PERRY:   It is, yes.  I am sorry, that may well have been my misunderstanding of his Honour Justice Gummow’s question.  Yes, that is the case.

FRENCH CJ:   So when you say “trial courts” we have one example of that.

MS PERRY:   We have one example of that, yes.  That was the totality of the evidence before the Court.  There is nothing in that evidence at all, we say with respect, that warrants a finding that the courts were having regard at all to a person’s political opinions in determining whether or not they were entitled to the mitigating circumstance or factor.  I suspect that were I bolder and braver, I could sit down at that point.

GUMMOW J:   Would any decision in the Croatian courts at trial and then on appeal of Mr Walker’s client be susceptible of consideration by the European Human Rights Court Strasbourg?

MS PERRY:   I am not sure of the answer to that question ‑ ‑ ‑

GUMMOW J:   There was talk in the judgments about the courts of Croatia.  The courts of Croatia are not entirely free agents insofar as that country is a member of the European Convention with the Strasbourg oversight.

MS PERRY:   No.  There is a process of assessment.  There is some reference to it in the evidence – although I do not remember the precise page off the top of my head – to the fact that Croatia is undergoing a process of being assessed at the time of this material for its entry.

GUMMOW J:   I do not know whether this is evidence or not but there is some consideration of it by the Queens Bench in England ‑ ‑ ‑

MS PERRY:   Yes.  There is in Travica.

GUMMOW J:   ‑ ‑ ‑ in Spanovic v Croatia [2009] EWHC 723 (Admin) in the Queens Bench Division.

MS PERRY:   Your Honour, that is not the Travica Case that your Honour had in mind.

GUMMOW J:   No.  The name of the person to be extradited was Spanovic.

MS PERRY:   There is also some discussion of it in a case which was before the magistrate also referred to subsequently, which is Travica.  It is in the bundle of authorities that we have provided to the Court of Damir Travica v The Government of Croatia [2004] EWHC 2747. There was reference made there to the European community giving an opinion in that there was some quite substantial evidence about improvement in the legal system.

GUMMOW J:   Anyhow, I took you off the course, I think.

MS PERRY:   There is a reference, I think it was only fleeting, certainly in the material included in the appeal book, to that assessment process and I think that might have been the only evidence on that process before the court below.  It might be convenient at that point, as I have now moved into the area of facts, and I did want to come back briefly to some of the questions of law, but it might be convenient at that point also just to deal with the terms of the extradition request which the Full Court also gave weight to in paragraph 53 of its decision, although it is not entirely clear in what way it was taking it into account.

In relation to the extradition request at paragraph 53, it was said that it referred in its terms to this conflict in language that one infers the Full Court considered to be somewhat colourful.  The first point that should be made about that is that the terms of the request reflect the historical fact, which is not in dispute, that no state or international organisation ever recognised the claims to an independent Serbian Krajina by the self‑proclaimed republic, and that was in the unchallenged evidence of Associate Professor Radan at annex D to our submissions.

Secondly, one might say that some allowance must be made that there will be differences in expression that are referable to cultural differences so that it cannot be expected that requests from foreign states will always be made in the same language that Australian bureaucrats might use.  Third and perhaps more fundamentally, of course, the request does not of itself address the mitigating factor at all and it is just generalised in relation to the Serbian forces.  Finally, it was a document that was prepared by the Minister of Justice for the Republic of Croatia, as the Full Court held in its reasons at pages 303 to 304, paragraph 62.

There their Honours said, we say quite correctly – and this is where it was addressing a different aspect of section 7(c), namely, whether there would be prejudice at trial – their Honours recognised the necessity in that context of establishing a link between the terms in which the extradition request is expressed to the judiciary.  We referred in this regard in our submissions to the decisions of the High Court of Justice in the United Kingdom in the Travica Case, to which I have given reference, referred to at [2004] EWHC 2747, and a copy of which, as I have said, is in our bundle. That reasoning, we say, applies equally in the present context where the question is what the sentencing court might do.

We should, however, say that it is true that the terms of the request reflect the language which was used in the decision by the Sibenik County Court that is contained in the appeal book at page 197, lines 38 to 40, and where the County Court determined that there was a well‑founded suspicion that the respondent committed the offences which are the subject of the request and ordered that an investigation be conducted against him and ordered that an arrest warrant be issued at page 202 of the appeal book.

But, in that regard, notwithstanding the similarity in the language used various assurances have been given that in the event of surrender a request would be made to the Supreme Court of Croatia for him to be tried before one of the four specialist war crimes courts established in Croatia, in Osijek, Split, Rijeka and Zagreb, none of which are located in the place where the offences allegedly occurred.  Your Honours will find reference to that in the findings by Justice Cowdroy in the appeal book at page 262 at paragraph 85.  Also reference is made to those courts in the OSCE report of 13 September in the appeal book at page 143 at footnote 11.

In addition there was evidence of the respondent’s witness, a Mr Strbac, who had been a magistrate in the former Yugoslavia and had headed up an organisation which monitored the trial of Serbians for war crimes and it was his evidence in the appeal book at pages 109 to 117 that those courts were constituted by panels of three professional judges and not – and in contrast, I should say, to the county courts which were made up of two judges and three civilians as jury members.  The relevant question, we say, notwithstanding the similarity in the language, is what one of those specialist courts would do and a request cannot be evidence of that, notwithstanding, as I have said, similarity in language.

Having regard to those matters we would say at the end of the day the matter could be dealt with shortly on the simple basis that the evidence does not establish that the mitigating factor is applied by reason of a person’s political beliefs.

GUMMOW J:   Or in the language of section 7(c) you would have to say the words “the person may be prejudiced” were not made out.  The evidentiary footing for the prejudice was not – the possible prejudice, that is the question, I suppose.  It says “may be prejudiced”.

MS PERRY:   Your Honour, with respect, we would say that the decision was not made on the basis of the “with prejudice” aspect of section 7(c).  The section, we say, was correctly construed by the Full Court as having, in effect, two separate limbs.

FRENCH CJ:   But it is still – that is the point, you are saying “may be punished”.

MS PERRY:   Yes, that is correct.  If I could just refer to that part of the Full Court’s judgment.  I will not hold the Court up.  I think it is apparent, in any event, from the face of the section that:

on surrender to the extradition country in respect of the extradition offence, the person may be prejudiced at his or her trial –

or as the second limb.

FRENCH CJ:   There is a debate about “at his or her trial”.  I think there was a debate about “at his or her trial” at some point.

MS PERRY:   That is correct, your Honour, yes.  That is just the separate limb which was not made out here.  Your Honours, what I wish to do at this point then, having perhaps failed to take the Court with me on my point about the relevance of the human rights aspects to construction of the provision, was to move to the decision which we would have said supported the construction for which we contended, move though nonetheless to the decision that your Honour the Chief Justice gave in Hempel v Attorney‑General (Cth) 77 ALR 641.

FRENCH CJ:   This was under the old Act, was it not?

MS PERRY:   It was, your Honour, and the terms in that regard were, relevantly, we say, the same and in the explanatory material which we have provided to the Court reference is made to the fact that it was intended to – section 7(b) and (c) were intended to re‑enact the provisions in the 1966 legislation.  That is referred to in the table as well that we have handed up to the Court.

FRENCH CJ:   The focus in this was on the meaning of “substantial”, was it not?  We are not really into that, are we?

MS PERRY:   Your Honour, we would say that, with respect, at page 663 your Honour was addressing a question which is analogous to that here.  This case involved a request by Israel to extradite the applicant who had sailed from Israel in a stolen boat and the question arose – ground 4, the consideration which commences at page 662 – concerned the question of whether of the language used in the courts of the requesting state could give rise to prejudice at trial by reason of race or nationality.

HAYNE J:   So what exactly is the proposition you want us to take from this case, that is of application to the present?

MS PERRY:   First of all, his Honour, we say, with respect, held that there needed to be more than a coincidence, even an overwhelming coincidence, of the relevant prejudice on the one hand and the attribute on the other hand, so that his Honour held first that the question of whether, accepting that there could be prejudice by reason of the fact that the trial was being conducted in another language, his Honour said at page 663, line 19:

The question remains whether that prejudice would be suffered “by reason of” race or nationality.

Then at line 31 his Honour said:

Whatever its proper definition the word [race] refers to congenital attributes.  Race is an accident of birth.

On the one hand one might say –

The language spoken by a person is ordinarily regarded as a function of environment and education.

So his Honour held that there was no causal link between the unfavourable treatment and the applicant’s race, notwithstanding, as his Honour went on to say, that they “may be overwhelmingly associated” with each other.  The second point that we seek to draw from that is that at page 663, line 48, his Honour went on to say:

In any event the prejudice contemplated by s 14(1)(b) –

the equivalent to section 7(c) –

appears to be of the direct variety flowing from active discrimination grounded on race, religion, nationality or political opinions.  This is reinforced by the words “punished, detained or restricted” in the balance of that paragraph.

We have said in our written submissions, without meaning to put words into his Honour’s mouth, that that accorded with our understanding of those terms in their ordinary meaning as involving the infliction of something on someone.  His Honour then went on over the page to say:

The “accidental” disadvantage to a person tried in proceedings in a language he does not speak, is not within that category of prejudice.

Then his Honour found that that construction was supported by a purposive perspective, the object of the Act being – as it is of the current Act – to facilitate extradition.  His Honour went on to say:

It would be fundamentally at odds with the purpose of the Act to ban extradition to another country solely because of the language spoken in court proceedings therein –

which would seriously undermine the effectiveness of extradition treaties.  So the construction that his Honour applied to section 14(1)(b) we say applies equally to its reincarnation in virtually identical terms in section 7(c), particularly in circumstances where the Parliament has made it plain in the secondary materials that that was exactly what it intended to do.

I then just wish to take the Court just briefly to two other decisions which we say support our approach, which are in the refugee context, where an analogous question of establishing a causal link has been addressed and we say addressed in circumstances which are very similar in many respects to the present case.  Your Honours will be very well familiar, of course, with the definition of a “refugee” in the Refugee Convention.  The words, of course, there requiring the connection are “for reason of”, but we say that is not a material difference with the words that are used here.

The first decision is that of Sepet v Secretary of State for the Home Department [2003] 1 WLR 856. I made reference earlier to the judgment of Lord Hoffmann on this question of conscientious objectors. I wanted to take the Court to the judgment of Lord Bingham of Cornhill, with whose reasons Lord Steyn, Lord Hutton and Lord Rodger of Earlsferry agreed. The issue which is identified at page 859 was:

whether the applicants, both of them Turkish nationals of Kurdish origin, should have been granted asylum on the ground that they were refugees -

Now, they had claimed asylum on the ground that if returned to Turkey they would be liable:

to perform compulsory military service on pain of imprisonment if they refused.

Their objection stemmed from their political opposition to the policies of the Turkish Government and their wish not to be required to participate in actions alleged to be perpetrated against their own people in Kurdish areas.

Now, that appeal was in fact dismissed on a ground that I just mentioned by way of background, which was that there was no discriminatory treatment, the House of Lords found, of a recognised human right.  They failed to establish a principle vouchsafing a rule of absolute conscientious objection or for a partial conscientious objection.  Nonetheless, in obiter they addressed another issue, and that occurs at page 871, starting at paragraph 21.  There their Honours looked at the question of how one approached an assessment of:

whether an asylum applicant had been or would be persecuted for Convention reasons.

At paragraph 22 Lord Bingham accepted the test postulated by Lord Justice Dyson that:

“It is necessary for the person who is considering the claim for asylum to assess carefully the real reason for the persecution.”  This seems to me to be a clear, simple and workmanlike test –

and I think that that test would equate to our commonsense test here.  He explains that:

The application of the test calls for the exercise of an objective judgment.  Decision‑makers are not concerned . . . to explore the motives or purposes . . .  Having made the best assessment possible . . . they must label or categorise the reason for the persecution.

What they then explained over the page at 872, following Applicant A in the centre of the page:

Treatment is not persecutory if it is treatment meted out to all and is not discriminatory -

Then in paragraph 23, which is the critical paragraph, his Lordship explained that:

The decision‑maker will begin by considering the reason in the mind of the persecutor . . . That reason would, in this case, be the applicants’ refusal to serve in the army.  But the decision‑maker does not stop there.  He asks if that is the real reason, or whether there is some other effective reason.  The victims’ belief that the treatment is inflicted because of their political opinions is beside the point unless the decision‑maker concludes that the holding of such opinions was the, or a, real reason for the persecutory treatment.  On the facts here, that would not be a tenable view, since it is clear that anyone refusing to serve would be treated in the same way, whatever his personal grounds for refusing.

Now, in a sense, that is another way of putting the point that we have put earlier.

FRENCH CJ:   The law reduces to ascertaining whether or not, on the premise of the correctness of your construction, there is a direct causal connection between the political opinions and a risk of greater punishment.  The short answer, in your submissions, as I understand it, is that favourable treatment of certain offenders by reference to their service in the Croatian armed forces does not support the inference of a direct causal link between the less favourable treatment of those who are not members of the Croatian armed forces linking it to their political beliefs.

MS PERRY:   Yes, your Honour, that is what we say is the short answer.

FRENCH CJ:   These are all particular cases you put up, whether it is language and race, or conscientious objection and political opinions and so forth.  They all are particular cases in which one looks to a causal analysis ultimately.

MS PERRY:   They are, and a causal analysis in very similar terms.  I would simply refer the Court in that regard to the further example in – we have also referred to in our written submissions – the case of the Immigration and Naturalization Service v Elias‑Zacarias, but I will not trouble the Court by taking you through it.  I would, however, just make the point that even the dissenting opinion is consistent with the need to establish a link in the manner in which we have described and that that case is one on which we place also particular reliance because of the similarity between that case in the circumstances or the question that confronts the Court here. 

Your Honours, against that I really have the matter then of dealing with our summons to amend the notice of appeal.  Would your Honours wish to hear me on that at this point or would your Honours wish me to return to deal with that at some other point?

FRENCH CJ:   Is the summons opposed – it is not opposed.

HEYDON J:   What is the justification for the new order 5(b)?

MS PERRY:   Your Honour, the justification for the new order 5 is an abundance of caution.  It is not our primary position.  We have sought to articulate precisely in paragraph 4 what we see is being the effect of confirmation of the orders made by the magistrate and if the Court agreed with us that that was the appropriate order, then we would not obviously be seeking an order in terms of paragraph 5.

GUMMOW J:   If you succeeded here, you would achieve a restoration of the result at the first instance in the Full Court, would you not?  In other words, the appeal to the Full Court would be dismissed.

MS PERRY:   Yes.  That appeal would be set aside and one could then say that the ‑ ‑ ‑

KIEFEL J:   I do not think Justice Cowdroy in terms confirmed the order of the magistrate.  It appears in his reasons but not in the orders, so there might be a need for confirmation to be expressed.

MS PERRY:   Thank you, your Honour.  Yes, in fact, your Honour is completely correct.  The orders which appear at page 271 of the appeal book simply dismiss the application.  It is obviously not a matter on which we wish there to be any doubt.  In fact, section 21(2) would seem to have required that Justice Cowdroy:

The Court may, by order:

(a)confirm the order of the magistrate –

which has not apparently occurred, notwithstanding the reasons.

FRENCH CJ:   There would be no requirement, would there, for this Court, if it allows your appeal, to state that the respondent is eligible for surrender, because that is simply done in the circumstance where the court to which application or appeal is made determines that the person is eligible for surrender, et cetera.  If you succeed on the appeal, does that involve this Court making such a determination necessarily?

MS PERRY:   We read section 21(6)(g) as requiring that the Court include a statement to that effect.

FRENCH CJ:   The magistrate’s determination of eligibility for surrender would have been confirmed ‑ ‑ ‑

MS PERRY:   It would have been, your Honour.

FRENCH CJ:   ‑ ‑ ‑ by Justice Cowdroy, albeit it did not appear in terms in his formal order.  What then is the purpose of this Court making a separate statement?

MS PERRY:   There would not seem to be a ready purpose other than that section 21(6)(g) would seem to require it.

FRENCH CJ:   On the condition that this Court has determined that the person is eligible for surrender.  It is a question of whether we would have done that if we allowed the appeal.

MS PERRY:   I understand your Honour’s point.

GUMMOW J:   It might be different if it had not been done at any stage below.

MS PERRY:   No.  That may well be what subsection (6)(g) is directed towards and if that were the case and it would seem to be a more sensible construction, I accept, then there would be no need for the Court to make that order.

FRENCH CJ:   We will allow the amendment and we will deal with the question of the merits of the particular orders you seek if that arises.

MS PERRY:   Thank you very much, your Honour.

FRENCH CJ:   Yes, Mr Walker.

MR WALKER:   May it please the Court, at the heart of the issue determined by the Full Court are the components of a decision called up by section 19(2)(d).  As your Honours are aware, the susceptibility to return by way of extradition is to – the mode taken in the statute is to posit the status of eligibility for surrender.  A negative quality in order to be eligible for surrender is that you have not satisfied the magistrate that there are substantial grounds for believing that there is an extradition objection in relation to the offence – notwithstanding that indicative mood, as your Honours appreciate, that is to be combined, of course, with the definition of an extradition objection to which attention has already been sufficiently paid in this argument.

That introduces the “may”, which is at the heart of the exercise, or at least we say so, in paragraph 7(c), namely, that the person may be “punished, detained or restricted” in his personal liberty, “by reason of” his “political opinions”.  Those are the words that I have selected for the issues as they have been ultimately presented in the Full Court of the Federal Court and now here.

There is, as my learned friend says, a degree of common ground.  I do not mean that these are issues that were never susceptible of contrary arguments or may not still one day arouse controversy, but between these parties it is, of course, common ground that we bore the onus in the sense it has been explained.  It is also common ground that that does not involve showing that there would be punishment, detention or restriction on any balance of probabilities looking into the future.  None of that, we hope, troubles the issues in this case.  They appear to be common ground at the Bar table.

We had thought it was also common ground that the OSCE material was the evidence before the magistrate relied upon by reason of the authoritative status, apparently agreed by the parties before the magistrate for those reports in relation to the way in which the sentencing laws of Croatia were administered. 

Justice Heydon and Justice Gummow have raised some questions about the evidence.  I do not have any further particulars to add to those which were supplied in the answers by my learned friend to a number of those questions.  In particular, I am in the position to confirm that in answer to Justice Heydon’s inquiry “Is there just one example given?”, I was, as my learned friend eventually did herself say, going to have to say no, there are two.  I cannot say it goes beyond that in terms of what I will call footnoted reference to cases in a report which does, as one reads it, proceed by reference to substantiation by report.  Rather, as your Honours have anticipated, we rely on the way in which a generalisation has been made at page 162 - I think the Chief Justice has drawn attention to it.  It reads:

In 2006, trial courts continued to apply this mitigating factor.

There is the footnote 92 which produces the second case.

HEYDON J:   A trial court did.

MR WALKER:   Quite so.  Even if there were multiple defendants, there is, as we understand it from the other references to the so‑called “Lora” or Duic Case, there is just the one court there.

GUMMOW J:   I am more interested in finding out where the Full Court made the relevant finding of fact.  Assuming they had evidence on which to do so, where did they make the finding?

MR WALKER:   Yes.  Can I do that in about a minute, your Honour?

GUMMOW J:   Yes.

MR WALKER:   It is all within very short compass.  Our point is that it is common ground, as we understand it, that that was appropriate material for the magistrate, Justice Cowdroy in the Full Court, to have proceeded upon.  In other words, it is appropriately recorded in paragraph 37 at the foot of page 297 of the appeal book, that it was appropriate for the magistrate acting administratively, and the courts thereafter, to proceed to treat the OSCE material as probative.  Now, of course, the shortcomings, if they be shortcomings, which have been observed this afternoon in relation to that material, are on the face of the document itself, and I do not with to make too much of it. 

Can I then proceed to answer Justice Gummow’s question?  The facts in this regard are introduced in that passage commencing at the foot of page 297, and then what are, for practical purposes in this Court, the highlights for my case are then contained in paragraph 38 on page 298.  Your Honours have seen, I think, other references, to which I will give some citation in a moment, but one sees first there is the reference to the Ivankovic Case.

We rely not only upon the fact that is thereby proved, but also we seek to draw assistance for the purposes of our argument concerning causation, to which we will come, that these observers who, according to the material, observed, as one sees from page 139, all such cases, that these observers regard this as politicising the verdict.

They then also use expression that it introduces a discrepancy into war crime sentencing.  They describe it as largely correlated to national origin.  I will come back to the idea of nationality or ethnic or race or political opinion later.  That idea of introducing a discrepancy, of course, picks up the notion of comparison, to which we will come back as part of the causation argument.  The role of comparison, whether always and at every case called for by paragraph 7(c), or whether it is simply called for by facts of a kind present in this case, is something that we will put a submission about.

The second report from the organisation is then the second quotation in paragraph 38 and that uses the expression “ethnic origin” to describe the same kind of identification, Serb and Croat, I suppose, will do for many purposes, and describing it as:

a factor in determining against whom and what crimes are prosecuted ‑

That is not the issue that the Full Court determined.  Then –

with discrepancies seen in the type of conduct charged and the severity of sentencing.

and it is that last one, again, there is the notion of ethnic origin being a factor in determining a discrepant treatment upon sentencing that we rely upon.  There is also then an important generalisation, namely:

Service in the Croatian army continued to be used as a factor to mitigate punishment.

We rely upon that as a general statement that the courts below were invited to treat as correct.

GUMMOW J:   Where are you reading from, Mr Walker?

MR WALKER:   That was the last sentence in the second quote set out in paragraph 38 by the Full Court on page 298.  Does your Honour see that?

Service in the Croatian army continued to be used as a factor to mitigate punishment.

Then comes the passage that your Honours have already seen in more than sufficient detail, namely, the references from page 162 of the appeal book.  Just to give you the cross‑references with which you are familiar, pages 156 to 157 had similar references to the same case.  Page 169 is where one will find the section C.I cross‑reference to which I think Justice Heydon drew attention.  That is where one sees then the narration of what I will call the evidence.  In paragraph 39 there is a reference just after line 40 – in talking about my learned junior’s argument – I stress argument – their Honours say that:

the appellant relies on the fact that, in sentencing, the County Courts apply the mitigating factor to those who served in the Croatian army or, as it is called, the ‘Homeland Army’.  The mitigating factor is not available to persons who served in the Serbian forces.

I stress that that is expressed as a paraphrase of argument but, as will be seen from what follows in the reasons, it appears to be an argument that was wholly accepted.  That is certainly couched in generalised terms.  Paragraph 40 records an argument that was had below and has been repeated to an extent, particularly in writing, in this Court concerning the Supreme Court of Croatia decision to which attention has been drawn.  There does not really seem at bottom to be much difference between the parties.  It is true that the mitigating factor was held in the Supreme Court to have been given excess weight.  We, of course, seize upon that to point out that to say that a factor has been given too much weight rather than is irrelevant is, of course, to say that it is a factor that needs to be taken into account by being given appropriate weight.  That is what the Full Court has as a finding, in answer to Justice Gummow’s question, at the top of page 299 at the end of paragraph 40 at about line 5 on the page:

However, it is also apparent, and has not been contradicted, that the County Courts of Croatia have taken the Supreme Court to have approved the practice and that, in any event, they continue to apply it as a factor to be taken into account in sentencing those who served in the Homeland Army.

GUMMOW J:   Well, it is the words “it is also apparent” that is the problem.

MR WALKER:   Your Honour, I have nothing further, however, from the record than that which has been fully canvassed already.  I accept that the material before the Court displays on its face what is the material upon the basis of which apparently substantiation was offered.

HAYNE J:   In particular, in regard to the Supreme Court decision, it is to be noted at page 157 of the appeal book, lines 10 and following, that the mitigating circumstances described as:

participation in the Homeland War, as a result of which Ivankovic suffered from post‑traumatic stress disorder –

are the mitigating circumstances as described in compound terms.

MR WALKER:   No prior criminal record, participation in the Homeland War and or with the consequence that it had.  According to the report, it is not just suffering from having participated, it is also the service, it would appear.

HEYDON J:   Which report?

MR WALKER:   His Honour was just referring then to the OSCE report at 157.

HEYDON J:   At 157, line 10.

MR WALKER:   Yes.

HEYDON J:   But is not his Honour’s point this.  Mitigating factor number one was no prior criminal record?

MR WALKER:   Yes.

HEYDON J:   Number two was participation in the war as a result of which he suffers post‑traumatic stress disorder?

MR WALKER:   There is no question that is how it reads.  This is not the only reference to the mitigating circumstance.  Elsewhere, as you have seen, the mitigating factor or circumstance of service in the Homeland Army simpliciter is referred to in a way which, we suggest, means that these reports as a whole do not confine the mitigating circumstance to servicemen who have suffered on account of service, accepting that it is realistic to divide people into those who have suffered and those who have not, or those who have suffered to the extent of being given a name of a syndrome.  That is the only point in the comment I made to Justice Hayne.  It is quite right, with great respect, that is exactly how it reads there.  That is not the only reference to the mitigating circumstance or factor.  The other references that your Honours have seen are references to service in the Homeland Army.

Certainly, I stress, there is no material other than that which has already been drawn to attention to which we can draw attention now.  The Full Court took it to the extent that I have quoted and drawn to attention at the foot of paragraph 40.  In paragraph 41, however, there is a further circumstance, not in itself evidentiary but of forensic significance, bearing in mind the capacity obviously of the Republic to have made correction, if correction was necessary, to this report that they were accepting as appropriate to go into evidence.

No one could have been better placed, surely, than those responsible for presenting the Republic of Croatia’s case if something needed to be offered in order to explain what service in the Homeland Army really meant as a mitigating circumstance, or that it was not really a mitigating circumstance according to law enacted or judicially tolerated or not.

It is for those reasons that we put together the material, which is certainly terse, which is contained in the reports, but it is terse, plain and generalised as the subject of a protest by the organisation, in other words, a phenomenon has been noted which the mission to Croatia thought worthwhile drawing to attention as being a feature of the judicial system in Croatia which had a shortcoming systemically.

HEYDON J:   The time for putting on this reply material, the material to contradict the inference, would have been before the magistrate and before the magistrate began to hear the case.  The magistrate on page 23, paragraph 82 says:

I do not agree with Mr. Slowgrove’s submission in reply.

Would it not have been too late then to be answering this submission in reply, which is a submission incidentally that does not seem to have found its way into the – I could be wrong about this – the agreed joint outline of issues that was proffered to Justice Cowdroy, which rather indicates its invisibility.

MR WALKER:   Your Honour, the answer is “yes” to all of those matters except the first one.  Your Honour says would it be too late?  Strictly speaking, of course, that is a matter which had it been raised – if it was being raised out of the blue, so to speak, in reply, would have led to procedural objections – could have led I should have said – could have led to procedural objections along the lines of it being too late for such a reply submission because an opportunity to answer it by evidence had come and gone, to which many a response, including by a magistrate acting administratively but acting also judicially, as to method of approach would plainly have been able to say, no doubt at the respondent’s expense, that there could be an adjournment in order to meet the matter.

I cannot say that it was too late.  In practical terms what Justice Heydon has said about the forensic course before the magistrate, which is the equivalent of first instance, without the equivalent of an appeal by way of rehearing to Justice Cowdroy, so one is confined to material before the magistrate in the sense that expression has been explained, what has been raised about that forensic course, with respect, does appear in that fashion from the record, but doing what I can with what there is, the material, nonetheless, is material that comes forward in a report.  Of its very nature, that is a report that your Honours could confidently expect the Republic of Croatia was well aware before it was tendered before the magistrate.  In our submission, the fact that it goes in without an attempt to put matters of substance or fact to detract from the generalisation about what those authors regarded as a shortcoming in their system is of some significance.

GUMMOW J:   But before Justice Cowdroy section 21(6)(d) applied, did it not?

MR WALKER:   Yes.

GUMMOW J:   In other words, it was not an appeal by way of a rehearing ‑ ‑ ‑

MR WALKER:   No, I am saying it is not.  That is what I was saying.  I am saying it was not.  There was not anything equivalent of an appeal by way of rehearing from first instance.

FRENCH CJ:   It is just confined to the materials before the magistrate.

MR WALKER:   The magistrate might be regarded as first instance but that is where any analogy with a series of court appeals disappears because there was no appeal by way of rehearing to Justice Cowdroy.  It was a review and it was a review confined to “material before the magistrate”, which is an expression that means more than simply admitted by the magistrate, it means other material as well, but it certainly did not involve the capacity for Justice Cowdroy to entertain new evidence, quite so, which, with respect, gives force to the observation made about the forensic course taken below.

Could I then come back to page 299 of the reasons.  In paragraph 41, the passage concerning what happened, or did not happen below, one sees that their Honours conclude by way of inference that such a factor “continues to be selectively applied in sentencing”.  We, of course, rely upon that as a conclusion by their Honours on the basis of the material before the magistrate.

GUMMOW J:   Are you at paragraph 41?

MR WALKER:   Page 299, paragraph 41, about line 15, your Honour.

GUMMOW J:   Yes.  So:

no evidence has been adduced by the Republic of Croatia ‑ ‑ ‑

MR WALKER:  

to contradict –

and then it is the following expression:

the inference that such a factor continues to be selectively applied in sentencing.

GUMMOW J:   Paragraph 41 seems to be written with an inadequate appreciate of the force of section 21 of the Extradition Act, is it not?

MR WALKER:   Maybe not, with great respect, your Honour, that is, I do not think their Honours could be ‑ ‑ ‑

GUMMOW J:   Namely, the limited nature of this particular matter in the judicial power.

MR WALKER:   Quite.  I do not think their Honours should be taken in paragraph 41 to be referring to opportunities for the adducing of evidence before Justice Cowdroy. 

GUMMOW J:   What is the past participle “has been adduced”?  What is that talking about?

MR WALKER:   Your Honour, I was about to say, however that is a submission that requires understanding evidence being adduced as being the expression of what happens in a court as opposed to the material before the magistrate.  Clearly, as a matter of ordinary usage, as you will see in the transcript, there is tender and admission before the magistrate.

A better reading, we would submit, is that there their Honours have in mind the course taken before the magistrate.  Of course, I acknowledge that has the consequence that one needs to understand how were issues then being framed, including at what stage did an issue that may have made contradiction – if any be possible – of that report, is something to be concerned with.  That is what Justice Heydon has raised with me.

I cannot add anything to what the record very plainly shows.  This issue was not front and centre at the beginning of the hearing before the magistrate, there is no question about that.  My learned friend has put matters figuratively in a way I would not contest concerning the way in which matters emerged or did not emerge.

FRENCH CJ:   Mr Walker, if it is convenient we might continue on until 4.30 pm.

MR WALKER:   May it please the Court.

FRENCH CJ:   Carry on.  We are giving you more time, not less.

MR WALKER:   Your Honours, I wanted to draw attention in that sentence to the word “selectively” for another purpose.  It starts to introduce this notion of comparison that their Honours are using.  Then I come to paragraphs 42 and 43 where ‑ ‑ ‑

HEYDON J:   I do not understand that.  It really should say “such a factor continues to be universally applied in sentencing in the cases in which it can be applied”.  That is the high point of your argument and perhaps ‑ ‑ ‑

MR WALKER:   Your Honour is absolutely correct, with respect.  I think “selectively applied” means that the factor is deployed so as to reduce what would otherwise be a sentence, possibly, only where the condition for its application is present.  The selection comes because the factor applies only to those who served with the Homeland Army.  Your Honour, with great respect, is right that the meaning of paragraph 41 is that across the board there applies a factor which by dint of its content redounds to the benefit only of some people.  There is the selectivity.

KIEFEL J:   The evidence, I take it Mr Walker, is limited to the application of the factor in war crimes hearings?

MR WALKER:   Yes.

KIEFEL J:   It does not go any further and suggest this is a practice applied to sentencing generally?

MR WALKER:   No.

KIEFEL J:   But I suppose, although, most of the accused would be persons who had served in the Croatian Army.

MR WALKER:   No, most accused by far are people who served against the Croatian Army.

KIEFEL J:   Yes, I know, but there would be potentially some people who have ‑ ‑ ‑

MR WALKER:   Yes, there have been.

KIEFEL J:   There have been persons of Croatian background who have served in the Homeland Army?

MR WALKER:   Yes.

KIEFEL J:   But theoretically not all persons of Croatian background who are charged with war crimes will have served in the Homeland Army.

MR WALKER:   I am not even sure that theoretically one can say that except insofar as one posits persons who identify as Croatian having served with the Serbian Krajina forces.  In theory, all sorts of things happen, no doubt ‑ ‑ ‑

KIEFEL J:   But that assumes you can only be guilty of a war crime if you serve in an army.

MR WALKER:   No, I entirely accept that, and the nature of the offences enacted in Croatia include, in particular, what I will call direction or order and it is not merely theoretical, obviously, that one can on the face of those statutes – in the absence of any explanation to the contrary which would be surprising – one can be guilty of a war crime under those provisions as, for example, a civilian politician ordering, in some way, things to be done which are atrocities.  There is certainly no suggestion in any of the material that somehow there would have been a Croatian such person directing Serbian action ‑ ‑ ‑

KIEFEL J:   No.

MR WALKER:   Any more than there was suggested to be vice versa.  Of course, in theory it is to say all these things are possible, but those theoretical possibilities in our submission, particularly in a statute which is concerned with the illegitimate reasons that paragraph 7(c) is concerned with – one would not expect those purely theoretical possibilities to determine an approach to a causation question in an individual case.  Paragraphs 42 and 43 talk about ‑ ‑ ‑

HEYDON J:   I am sorry, can I just go back to one thing.  This selective application in sentencing is based on what the county courts of Croatia did.

MR WALKER:   Yes.

HEYDON J:   According to footnote 43 of the appellant’s submissions:

The Attorney‑General of the Republic of Croatia has given a written assurance . . . that the trial of the respondent be held before one of the four ‘specialist’ war crimes courts -

Are they identical courts, or different courts?

MR WALKER:   I think the answer is no.  The answer is yes and no.  That is they are county courts, but they are special courts.

HEYDON J:   What is the best argument that can be put for the proposition that those special courts will apply the same selective sentencing principles as the other courts, on which the evidence is based?

MR WALKER:   Can I check, but I understand that one of the footnoted cases is a decision of such a court.

KIEFEL J:   It is linked, I think.

MR WALKER:   Yes.

KIEFEL J:   The four specialist courts are simply County Courts in areas geographically removed from the areas where there is likely to be some prejudice.

MR WALKER:   Yes.  There is also some reference to, I think, further training of the personnel, although of a kind that the organisation suggests should be available to all courts.  I am sorry, Justice Heydon, I cannot find the material immediately which would enable us to know that.

HEYDON J:   Yes.  Pages 109 to 117 may cast light on it but let us not waste time on it now.  I am sorry to interrupt.

MR WALKER:   Yes.  I think that is my answer to your best argument question.  It is probably the only argument too.  Paragraphs 42 and 43 refers to increase and, of course, it is true – we submit this is a straw man that has been set up by the argument against us – that the facts show beyond any doubt at all that similarly to how things would operate in this country one is not sentenced more than you would otherwise be sentenced because as an aggravating factor you have fought in the opposite war.  Rather, the increase or difference upon which the Full Court made its determination and upon which our argument depends calls for a comparison of the kind to which I am going to come, but we entirely accept what is said in 43 but in paragraph 43 the Full Court was not, as it were, destroying its own reasoning.  It was pointing out that it was the absence of what I will call a discount, if I may, rather than the addition of an aggravated term in order to reflect an aggravated offence.

BELL J:   Whilst you are on that point, can I take up an aspect of your submissions at paragraphs 17 and 18?

MR WALKER:   Yes.

BELL J:   This statute is concerned with the surrender of persons to undergo the process of criminal justice in a foreign jurisdiction.  A feature of our system of criminal justice that you acknowledge in your written submissions and, I think, just moments ago is that it is recognised that the absence of a mitigating feature is not a circumstance that can be characterised as the infliction of greater punishment on a given accused.

MR WALKER:   Yes.

BELL J:   You suggest a reason for that is that our criminal law is concerned with supporting the “presumption of innocence” and underscoring the “irrelevance of a plea of not guilty”.  But really those are reasons for the particular discount that is given in relation to a plea of guilty.  The principle is not based on either of those considerations, so it seems to me, but on broader considerations.  If that be accepted it is just not quite clear to me why you proceed in paragraph 18 to suggest that if it be accepted that a convicted war criminal in Croatia who has served in the Homeland Army is entitled to a sentence less than the appropriate sentence that would otherwise be imposed, why that would be an outcome that the Australian Parliament would consider reprehensible.

MR WALKER:   Yes.  Your Honour, I accept that that is at the heart of the case.  May I say about the first matter that your Honour raised the references to presumption of innocence, irrelevance of the plea of not guilty to sentencing, that was in the context of whether you plead guilty or not.  Of course, they are simple instances of how one works out the manifestation of much broader or deeper considerations which are reflected now in some international instruments concerning the nature of criminal process.  That is the first thing.

The second thing is, we entirely accept that what I will call war service, which may be either narrowly or broadly defined, I could not sensibly suggest to your Honours from the Bar table, that that would be, as it were, un-Australian as a factor to be taken into account in relation to the sentencing of a person for crime, even war crime.  Your Honours are all well aware that for decades war service has been very properly called in aid in pleas in mitigation on sentencing for all sorts of offences, both trivial and serious.  The fact that the weight given to it varies considerably really only makes the point of its relevance. 

We are not saying that there is anything to be seen in paragraph 7(c) of the Extradition Act which records, advances or reflects what I will call an Australian disapproval finding reprehensible any such reference to such matters in Croatian sentencing.  Rather, it is in the context of the conflict that produces the allegations against my client – a context to which I will come back a little later.  It is, in our submission, not possible to separate out the notion of service for Croatia from the politics of the conflict in which that service is so valued in Croatian courts.  It is therefore no part of our argument to perceive any deprecation by 7(c) in any other countries, formally or informally, officially or unofficially, taking into account service in its armed forces and rather than in any other country’s armed forces, in sentencing convicts.  It is only this question of difference, and that is where comparison comes in. 

In our submission, you do not need to posit that what I will call the ordinary case is a bad thing in order for there to be a 7(c) objection.  Being denied access to what I will call a good, a benefit, is obviously, in our submission, capable of visiting a form of detriment.  One of the tasks I have is to persuade your Honours that without using non‑statutory language like “some kind of detriment” that I can show that the Full Court was correct in treating what the organisation calls discrepant treatment, whether I can persuade your Honours that that amounts to punishment, detention or restriction in personal liberty.  That is why I have put it as the first of the three questions that we say are raised in this case.  It is a threshold question.

FRENCH CJ:   What do you say as to the first sentence in the judgment of the Full Court at paragraph 44 on page 299?

MR WALKER:   Standing on its own it would appear to sell the pass, your Honour.  As explained to me, I having asked a similar question, the submission, which as a whole is addressed by paragraph 44, did not involve the notion that discrepant treatment does not constitute within the meaning of section 7(c) punishment of the one who gets the less favourable treatment.

GUMMOW J:   It is the positive act that they were searching for.

MR WALKER:   Yes.  The whole notion that paragraph 44 – the argument recorded there – as I am told, was aimed at was not to concede that the discount for the Croatian servicemen was of no possible relevance and did not matter but, rather, that you needed more than that.  You needed to show that there was a connection to the political opinions of my client which by contrast with the so-called Croatian counterpart produces, if the other steps in the argument be correct, and there are other steps in the argument necessary, produces that which is called punishment, et cetera, by reason of political opinions.

FRENCH CJ:   That critically depends upon this characterisation – I am not absolutely sure what it means – in 45 in the fact‑finding of the sentencing approach as holistic.  It rather suggests that there is some notion that the application of the mitigating factor is something that kind of infects the whole sentencing process.

MR WALKER:   I think the expression “holistic”, with respect, adds little to the notion.  It was intended to convey the notion that the sentencing is done but once with everything relevant being considered, a conception familiar to this Court.  I do not think it was going into any more arcane ‑ ‑ ‑

FRENCH CJ:   Perhaps it does no more than to say that there is no quantitative allocation to particular mitigating factors.

MR WALKER:   Yes, which is no doubt a useful corrective when sentencing to notions of discounts, for example.

HAYNE J:   But let me just understand one thing that you have just been debating, Mr Walker.  Do I understand you to say that the political objection is made out by the following chain of argument:  (1) Others who served in the Croatian army will suffer lesser punishment for similar conduct than those who served in the Serbian forces?

MR WALKER:   That is one way that it can be put.  It is a variant that will not really depart much from that, your Honour.

HAYNE J:   And that because the particular person whose extradition is sought had political views about the conflict, that the different treatment constitutes punishment by reason of political opinion?

MR WALKER:   Your Honour, ultimately it will come down to that.  However, we would not adopt that mode of explaining the steps by which one comes to this “by reason of political opinion”.  It is not just that he had political opinions about the conflict, but ultimately, as his own evidence

shows, that really is a fair description of the situation.  But it is not a sufficient expression of the way in which it fits the statutory category to simply stop at the proposition that he had political opinions about the conflict.  But I am bound to say that it is at base having political opinions about the matters that led to, including the conflict itself.  Unquestionably I cannot run from that.  Yes.

FRENCH CJ:   Mr Walker, we will adjourn now.  The Court will adjourn until 9.30 tomorrow morning for pronouncement of orders and 10.15 for the continuation of this matter.

MR WALKER:   May it please the Court.

AT 4.24 PM THE MATTER WAS ADJOURNED
UNTIL TUESDAY, 30 MARCH 2010