Republic of Croatia v Snedden

[2010] HCATrans 10

[2010] HCATrans 010

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

Application for special leave to appeal

GUMMOW J
HAYNE J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 12 FEBRUARY 2009, AT 9.37 AM

Copyright in the High Court of Australia

MS M.A. PERRY, QC:   If the Court pleases, I appear with MS H. YOUNAN for the applicant.  (instructed by Commonwealth Director of Public 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)

GUMMOW J:   We will hear first from you, Mr Walker.

MR WALKER:   Your Honours, the contexts in which the possibility of an extradition objection of the kind contemplated by the second limb of paragraph 7(c) of the Act might arise, that is in cases of which this would simply be an example, are so broad that it would not be appropriate for this Court to venture upon any judicial gloss of that connective phrase “by reason of” which might in future prevent its application to a very wide variety of circumstances.

GUMMOW J:   The particular words here being “by reason of his”?

MR WALKER:   Political opinions.

GUMMOW J:   Yes.

MR WALKER:   Now, that connective phrase “by reason of” notoriously has been the subject of judicial glosses in a number of different contexts, all of which, we submit, yield simply this in terms of the possibilities were this Court to grant special leave and decide a case involving that phrase, that it will be described as a phrase of wide connective function, the ambit of which remains to be ascertained case by case according to the facts and the discerned purpose of the instrument or statute in which the phrase is found.  That will not have advanced what might grandiosely be called jurisprudence on the meaning of that phrase one whit.

Now, in our submission, that does enable me to put, in a case which has obvious qualities in other regards for the grant of special leave, a conventional argument with particular force, and that is that this is but a decision on a phrase in a statute unlikely to receive what might be called judicial shifting of its semantic content by a decision applied to highly particular facts.

Now, we accept that the handling by this country in this country’s administrative and judicial bodies of an extradition request from a country such as Croatia in relation to events stemming from highly notorious events, that is, notorious as a matter of international public relations as well as the internal affairs of the country in question, in relation to what might be called crimes against humanity and war crimes, may be regarded as assisting rather than detracting from the prospects of the case obtaining special leave, but in our submission, none of those affects or could affect the way in which this Court would on an appeal address the question whether there has been error by the Full Court, that being the only question ultimately, in either the approach in principle or the outcome if the principle turns out not to be controversial.

Then coming to the particulars of the reasoning in this case, in our submission I have a further argument against special leave, namely, that there is insufficient prospect of there being error shown so as to alter the outcome.  Again, none of this deprecates from the importance of the administrative and judicial handling of an extradition request, and if it not be invidious an extradition request for such kinds of offences, but it is to say that the evidence according to the material which stemmed from uncontroversially reliable source was that a discrepancy appeared quite formally, that is, from the record of the county courts in question, in relation to dealing with what might be called similarly placed prisoners or convicts when it came down to which side they had fought on in the homeland war.

In our submission, the matter is not to be seen as appropriately as a matter of substance rather than form dealt with by at least one of the arguments that we apprehend that Croatia would want to raise.  That is the argument that distinguishes, as it were, between whether his sentence may be increased on account of not having fought with the home side, or whether it is that it will be increased, that is, greater by comparison with those similarly placed upon conviction of war crimes in the same war who had fought on the home side.

Now, in our submission, that is only a matter of form because the statutory question is whether he might be – and I stress “might”, the word is “may” in the statute – detained by reason of.  If there is an increment or a component arising from the holistic multifactorial consideration that leads to the single sentence being pronounced, which is attributable according to the reasons and according to the patterns found from those reasons by the international observers, which is attributable to fighting against the home side, then in our submission the statutory test has been satisfied.

If I could take your Honours please to page 78 of the application book in order to illustrate, in our submission, the merit of the actual conclusion in applying this test to the particular facts of the approach by the Full Court.  There is language quoted by their Honours in paragraph 53 starting at about line 32 or so which, in our submission, really powerfully supports a finding that there was here the “by reason of” nexus made out.  Your Honours will see that there is a contrast of language posed by their Honours.  On the one hand our client describes his beliefs as involving a belief in:

‘the self determination of Serbian people in the Balkans in those areas where they constitute a majority’, in particular in the Krajina.

Notoriously, of course, one man’s self‑determination is an opposed man’s secession.  So one drops down to see how the Republic of Croatia puts it after the event of the alleged offences, that is, after the war, and before, of course, the proposed trial which is in question upon extradition.  The Republic of Croatia puts it at about line 45 or so by reference to:

the armed conflict . . . ‘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”’ -

In our submission, there was no misstep or false step or step without evidence, or step unjustified by appropriate inference involved, in seeing participation by my client in this war as a commander as being related to his political opinions; the war was about politics at its most fundamental, the creation or destruction, depending upon one’s view, of a polity representing a population’s self‑determination.

Now, for all those reasons, in our submission, this is a case which obviously involves legislation that calls for the most punctilious application by this country’s administrators and courts.  That has been said, this case does not require it to be said again.  There is actually no complaint by the Republic of Croatia in this case that there has been what might be called a less than punctilious regard for the wording of the statute.  The complaint is simply that there has been a misstep taken in relation to what might be called a discrimination analysis, and that is the last point I wish to make against the grant of special leave.

We are, I submit, really in the country of an over‑abstracted approach to the simple interpretation and application of words in a statute which do not involve that level of abstraction.  We do not need, in our submission, to lay down rules judicially to construe a statute in terms of discrimination and appropriate comparators to employ some of the concepts, abstract concepts that dominate the applicant’s submissions here.

This is simply a case where in particular by reference to a workaday and necessarily flexible phrase “by reason of” on the basis of facts which were not themselves controversially found there has been a decision which recognises that there is a pattern of sentencing in the court to whose processes this man would be extradited if there were extradition, which shows that the political opinion that produced fighting for the Republic of

Krajina would see him detained longer than if he had not had that political opinion and thus had not so fought.  May it please your Honours.

GUMMOW J:   There will be a grant of special leave in this matter.  We do not need to hear from you, Dr Perry.  It is a matter of some urgency, I would have thought, as to the listing.  The Court is minded to enter this appeal in the list for the sitting to commence in Canberra in the last days of March this year.  Does that cause any difficulties for counsel?

MS PERRY:   No, your Honour.

GUMMOW J:   Very well.  Well, counsel should hold themselves ready then for a listing within that week to start at 2.15 pm on Monday, 29 March, but in any event, it certainly will be listed in the course of that sitting week.

AT 9.50 AM THE MATTER WAS CONCLUDED