Republic of Croatia v Snedden

[2010] HCATrans 32

[2010] HCATrans 032

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S253 of 2009

B e t w e e n -

REPUBLIC OF CROATIA

Applicant

and

DANIEL SNEDDEN

Respondent

Ex parte summons

FRENCH CJ

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 19 FEBRUARY 2010, AT 4.07 PM

Copyright in the High Court of Australia

MR R.P.L. LANCASTER, SC:   May it please the Court, I appear with MS H. YOUNAN for the applicant on a summons filed yesterday.  (instructed by Commonwealth Director of Public Prosecutions)

HIS HONOUR:   Yes, I have read the papers.  Can I ask why this application was not made at the time of the special leave hearing?  There does not seem to be any change in circumstance that would explain it.

MR LANCASTER:   No, there is no change in circumstance immediately after special leave was granted.  I accept that, your Honour, but I do not know the explanation, why it was not made on that day.

HIS HONOUR:   Is there anything that you want to add to the written submissions that you have made?

MR LANCASTER:   If your Honour does not wish to hear me on why it is appropriate to proceed ex parte, I would not propose to address that.  There is nothing I would wish to add to what I have put in writing, no.

HIS HONOUR:   He does not have an Australian passport?

MR LANCASTER:   No.

HIS HONOUR:   He would have to apply for one.

MR LANCASTER:   Yes.

HIS HONOUR:   Is the position that it is not known whether he still has the Yugoslavian passport?

MR LANCASTER:   My submission would be that your Honour would infer that he still does have it, although the officer who swore the affidavit said it was not within his personal knowledge.

HIS HONOUR:   He says in his affidavit that he provided a current Yugoslavian passport – this is Mr Bowring’s affidavit which I will read along with the affidavit of Karen Louise Leavy.  Mr Bowring’s affidavit says that the passport was provided to staff of the Department of Immigration.  Am I to read that simply as shown to?

MR LANCASTER:   Yes.

HIS HONOUR:   Now, I think the orders that you are seeking involve service upon the defendant by delivery to his solicitors.  Is it known that they are still acting for him?

MR LANCASTER:   On the appeal, yes, it is known.

HIS HONOUR:   Is it known where he resides?

MR LANCASTER:   No, and, in fact, your Honour, we do not know whether he is presently in Australia or not.  We have no information that he has left Australia.  We do not know where he presently resides, but that is as far as we can take his present location.

HIS HONOUR:   That is rather surprising.  Is there any watch in place in relation to Australian airports?

MR LANCASTER:   Yes, I am instructed that there is a general DIMIA alert out, that if he attempts to leave Australia by regular means, if I can put it that way, an alert would be notified to the Department and no such alert, I am instructed, has been made.

HIS HONOUR:   He was released from custody by an order of the – when was he actually released from custody, because the custody order was stayed until Friday, 4 September by the order of the Full Court.

MR LANCASTER:   Yes.  What occurred is that the Full Court revisited that initial order on the 4th and in exhibit 3 to Ms Leavy’s affidavit the final orders were made by which their Honours quashed the magistrate’s order and directed his release.  That occurred on the same day.  Exhibit 4 is a record of Magistrate Henson’s release order and it occurred on that day.  So, since 4 September 2009 he has been at liberty in Australia.

HIS HONOUR:   And having been released from custody, nobody thought to inquire as to where he would be residing?

MR LANCASTER:   I do not know if inquiries were made.  The state of the evidence now is that it is known where he is at present.

HIS HONOUR:   Yes, all right.  Thank you. 

MR LANCASTER:   Your Honour, I do have a form of short minutes of order if your Honour is minded ‑ ‑ ‑

HIS HONOUR:   Yes, that would help.  Thank you.

MR LANCASTER:   Can I make one or two observations about the short minutes?

HIS HONOUR:   Yes.

MR LANCASTER:   Your Honour, the order sought in 5 is leave to my client to amend the summons in the form annexed to what turned out to be exhibit 13 to Ms Leavy’s affidavit.  They repeat the orders sought today and

add, at least in the draft form of the summons, some orders in relation to residing in a nominated address and reporting obligations.

On my instructions it has not been finally determined not also to apply for his arrest and in the hearing and determination of the appeal, so if your Honour is minded to make an order in the form of order 5 proposed, my observation on that would be that your Honour would take it substantially to mean such orders as appear in the draft together with the possibility that an order for his arrest pending hearing and determination of the appeal be included in such amended summons.  I did not want it to be thought that order 5 limits it only to that manner of relief set out in the draft in exhibit 13.

HIS HONOUR:   Just before we get to that, on the matter of his current residence, is that actually mentioned in the evidence?

MR LANCASTER:   It is.  It is paragraph 17 of Ms Leavy’s affidavit where she deposes that she does not know – being the relevant instructing officer with familiarity with the file – where he presently resides.  That is why we are asking for service on the solicitors who are acting in the appeal.

HIS HONOUR:   Now, what I propose to do is to make the order, I think, in terms of 1, 2, 3 and 4 and bring the matter back.  I do not think I will make the order in 5, but rather simply relist the matter before a Judge of this Court at 9.30 on Tuesday.

MR LANCASTER:   If it please the Court.

HIS HONOUR:   Any questions of amendment and consequential directions could be dealt with then.  The date on Tuesday is ‑ ‑ ‑

MR LANCASTER:   The 23rd.

HIS HONOUR:   Now, the surrender order depends upon a demand first made?

MR LANCASTER:   Yes.  We would propose to make that demand through his present solicitors.  I can put it more precisely.  We propose to request the Australian Federal Police to make such demand through his current solicitors.

HIS HONOUR:   I am going to add a practicability requirement because there is going to be a question of communication between his solicitors and him.  Yes, all right, I will give some reasons for the orders I am about to make. 

On Friday, 12 February 2010, this Court, comprised by Justices Gummow, Hayne and Heydon, granted special leave to the Republic of Croatia to appeal against a decision of the Full Court of the Federal Court allowing an appeal by the respondent against a decision of a judge of the Federal Court which had dismissed his application for review of a magistrate’s decision that he was eligible for surrender to the Republic of Croatia pursuant to the Extradition Act 1988.

The Full Court had ordered that the respondent be released from custody, which order was stayed until 4 September 2009 and thereafter made by the relevant magistrate.  The respondent is currently at liberty.  It appears from affidavit material before me that his address is not known.

The Republic of Croatia yesterday filed a summons in the Sydney Registry of the Court seeking orders for the surrender by the respondent of his passports and any other international travel documents and order that he not apply or otherwise seek to obtain any passport or other international travel document and not attend at any point of international departure and not leave Australia.  Consequential orders are also sought for service and relisting of the summons.

It appears from affidavits filed in support of the summons that the respondent does not hold a current Australian passport and has not made application for one.  His last Australian passport was cancelled on 17 February 2006.  He was, however, the holder of a Yugoslavian passport issued in the name of Dragan Vasiljkovic.  However, the passport which was issued on 17 May 2001 is said to remain valid until 17 May 2011.  It is not known whether the respondent still has that passport under his control.

The Republic of Croatia has disclosed, as it should on an ex parte application, that it is not aware of any information indicating an intention of the respondent imminently to depart Australia.  Further, it has brought to the attention of the Court the following matters which, if the respondent were heard on this application, he might have advanced as factors indicating his continuing connection to Australia and which he might have contended would lead to the inference that he is not likely to seek to leave Australia.  They are (a) that he had been released from custody since 4 September 2009 without apparent adverse incident; (b) that he has family in Australia, namely his mother, brother and sister who are thought to be in Perth and that he has a son and two grandchildren thought to be in Queensland, these being matters raised on his behalf at a bail hearing in 2007; (c) he appears to be pursuing defamation proceedings in New South Wales by filing a notice of intention to appeal a decision of Justice Latham given on 18 December 2009 and instituting other proceedings in the District Court of New South Wales for damages for defamation against Nationwide News Ltd in respect of the publication of two articles in The Australian.

Nevertheless, the plaintiff contends in its submissions that there is a heightened risk of flight by the respondent from Australia in the circumstance in which special leave has recently been granted on the Republic’s application.  The grant of special leave, it is submitted, suggests that the appeal has at least reasonable prospects of success.  If successful, it would exhaust the respondent’s opportunity to challenge under section 21 the magistrate’s orders that he is eligible for surrender.  If the appeal were to be allowed, it would be likely to result in his arrest for the purpose of his surrender to the Republic, subject to the Attorney‑General’s consideration of a surrender determination under section 22.

The Republic submits that if the respondent were to leave Australia and not return the appeal and the extradition proceedings generally would be rendered futile, a consequence to be avoided. The Republic does not, at this time, seek the respondent’s arrest, but points to section 21(6) of the Extradition Act pursuant to which an order could be made for his arrest pending the hearing and determination of the appeal in this Court.

The Court, in my opinion, has power to make the orders now sought, at least under the provisions of rule 8.07.1 of the High Court Rules.  Whilst the Republic does not point to any particular circumstance or event that suggests that the respondent is likely to, or about to leave Australia, the circumstance of the grant of special leave does, as a matter of commonsense, give rise to a possible risk that it would be perceived as leading to the chance of an adverse result on appeal with the consequences referred to by the Republic in its submissions.

The order is sought ex parte, but at this stage seeks only to prevent the respondent from applying for a passport or leaving Australia and also requires the surrender of passports.  In the circumstances and on the basis that the matter will be relisted for hearing at short notice next Tuesday at 9.30 before a Justice of this Court I am prepared to make the orders sought. 

The orders I will make are in the following terms based upon what appears in the short minutes of order handed up in Court, namely:

1.Until further order the respondent surrender all passports and other international travel documents, whether in his own name or in any other name and whether genuine or otherwise, in his possession or control on demand to an officer of the Australian Federal Police, which demand may be made to his solicitors, Schreuder Partners Lawyers, Sydney and that the documents be surrendered as soon as practicable thereafter.

2.Until further order the respondent:

(a)not apply for, or otherwise seek to obtain any passport or other international travel document, whether in his own name or any name, and whether genuine or otherwise;

(b)not attend at any point of international departure, including any airport, airfield, port or other place from which aircraft or vessels depart Australia; and

(c)not leave Australia.

3.The parties have liberty to apply.

4.The applicant is to serve on the respondent the affidavits of Robert John Bowring sworn on 17 February 2010 and of Karen Louise Leavy sworn on 18 February 2010 and such other orders and this order as soon as practicable and, in any event, by facsimile to his solicitor, Schreuder Partners Lawyers, Sydney by 6.00 pm, Friday, 19 February 2010 and by delivery to his solicitors by 4.00 pm, Monday, 22 February 2010.

5.The Republic is to make all reasonable efforts to ascertain the whereabouts of the respondent and to serve the above documents on him in person as soon as practicable.

6.The summons is to be relisted before a Justice of this Court at 9.30 on Tuesday, 23 February 2010.

Do you have those changes, Mr Lancaster, that I have made?

MR LANCASTER:   I have the substance of them, yes.

HIS HONOUR:   Perhaps we could just go through them so you get them absolutely correct.

MR LANCASTER:   Yes.

HIS HONOUR:   So the first one, I have added the words at the beginning “Until further order”.

MR LANCASTER:   Yes.

HIS HONOUR:   I have added after the words “on demand to an officer of the Australian Federal Police” which “may be made to his solicitors, Schreuder Partners Lawyers, Sydney and that the documents be surrendered as soon as practicable thereafter”.

MR LANCASTER:   Thank you, your Honour.

HIS HONOUR:   Order 2 stands as you have it; 3 simply, “The parties have liberty to apply.”

MR LANCASTER:   Yes.

HIS HONOUR:   Order 4 reads “The applicant serve on the respondent the affidavits”, et cetera and then you get to the third line which reads “and these orders as soon as practicable”.  So delete the words “such orders as are made by the Court”, just “these orders”.  Then you delete 5 as it presently stands and you insert a new 5 to read:  “The Republic is to make all reasonable efforts to ascertain the whereabouts of the respondent and to serve this order and the associated documents on him in person as soon as practicable”.  Then 6, “The summons is to be relisted before a Justice of this Court at 9.30 on Tuesday, 23 February 2010”.

MR LANCASTER:   May it please the Court.

HIS HONOUR:   Thank you.  The Court will now adjourn.

AT 4.30 PM THE MATTER WAS ADJOURNED