Snedden v Minister for Justice for the Commonwealth of Australia & Anor

[2015] HCATrans 120

[2015] HCATrans 120

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M6 of 2015

B e t w e e n -

DANIEL SNEDDEN

Applicant

and

MINISTER FOR JUSTICE FOR THE COMMONWEALTH OF AUSTRALIA

First Respondent

COMMISSIONER OF CORRECTIVE SERVICES NEW SOUTH WALES

Second Respondent

Application for special leave to appeal

HAYNE J
NETTLE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 15 MAY 2015, AT 12.15 PM

Copyright in the High Court of Australia

MR R.C. KNOWLES:   If it please the Court, I appear for the applicant.  (instructed by Shine Lawyers)

MR N.J. WILLIAMS, SC:   May it please the Court, I appear with MR G.A. HILL for the respondent.  (instructed by Attorney‑General’s Department International Crime Cooperation Central Authority)

HAYNE J:   Yes, Mr Knowles.

MR KNOWLES:   Thank you, your Honours.  Your Honours, there are two issues, obviously, before the Court.  The first concerns the nature of the opportunity that my client ought to have been given to respond to material which was given to the Australian Government by the Croatian Government in support of extradition of him to Croatia, and the second issue concerns whether or not misconstruction of Article 129 of the Third Geneva Convention gives rise to jurisdictional error in the context of a surrender determination being made pursuant to section 22(2) of the Extradition Act. 

In terms of the relevant process, your Honours will have seen that the relevant extradition requests occurred in January 2006, and my client was accused of being a commander of a Serbian paramilitary unit and committing war crimes in 1991 and 1993 ‑ ‑ ‑

HAYNE J:   The matter has a long history, and we are generally familiar with the history, Mr Knowles.

MR KNOWLES:   Thank you, your Honour, yes.  That was the first of the four stages that arise in respect of extradition under the Extradition Act ‑ ‑ ‑

HAYNE J:   This is the last stage, is it not, the Minister’s decision to surrender?

MR KNOWLES:   That is right, your Honour, and the other two stages, obviously, are arrest, consequent on the extradition request having been made, and the eligibility determination under section 19 made by a magistrate.  In terms of this being the last stage, I will come back to that, because it does have some significance in terms of the relevant statutory construction, going to, in particular, the first issue that arises for the Court’s consideration.  As your Honours will be aware, what has occurred in the course of that last stage is that various submissions and representations were made to the Minister and also the Attorney‑General’s Department ‑ ‑ ‑

HAYNE J:   Well, sought by or made to, or both?

MR KNOWLES:   They were sought by the Attorney‑General’s Department, and that occurred pursuant to a letter dated 14 May 2010, your Honour.  That appears at pages 261 to 262 of the application book.  I do not propose to take your Honours to that document, but needless to say, there were various submissions and representations put forward after that request was put to my client to put on submissions in respect of the section 22 stage.

Those submissions included the letter dated 24 June 2010 from my client’s then representative, which appears at page 264 of the application book and following.  The letter in question was not the only submission that was made, but one can see from that particular submission that the sorts of issues that were raised by way of example were a fear of a lack of fair trial in Croatia from my client, a concern about safety for my client and any witnesses in Croatia, a concern about delay by the Croatian Government in bringing the matter on for investigation and extradition, and also concerns about the lack of reciprocity between Australia and Croatia with respect to extradition.

For the present purpose, if I could just take your Honours to the end of this particular submission, in particular at page 276 of the application book where, at the top of that page, your Honours will see that there was a request made by my client’s representative in terms of any further material being obtained that my client had a:

right to respond to material, facts, and assumptions which may lead to an adverse decision.

That was certainly known to the Attorney‑General’s Department ‑ ‑ ‑

NETTLE J:   Well, that was the basis of Justice Pagone’s dissent, was it not?

MR KNOWLES:   Yes, your Honour, yes.  It certainly was part of it.  There were other factors that went to that dissent, but that was an issue.  Then what followed, as your Honours will ‑ ‑ ‑

HAYNE J:   Surely, the making of the request to be heard does not enliven the obligation to afford a hearing, does it?

MR KNOWLES:   Not of itself, your Honour, but it is simply one of the particular circumstances in this case that goes to the content of procedural fairness obligations.  Certainly, I should say at the outset in respect of procedural fairness, there is no dispute between the parties that there was some natural justice owed to my client.  Obviously, the question is the nature and extent of the obligations and that comes back to considering the particular circumstances of the case.  That is one of them, but perhaps more fundamentally, one looks to the particular statutory context in which the decision‑making process appears, and the nature of the decision itself and the impact that it has.

HAYNE J:   Can I shell that out a bit?  The eligibility for surrender is to be determined according to determinate criteria, but we have gone past the point of eligibility for surrender.  We are at the point of the Minister determining whether to surrender or not.

MR KNOWLES:   That is right.

HAYNE J:   What are the criteria that bear upon that decision?

MR KNOWLES:   The criteria are those which appear in section 22(3) of the Extradition Act, and those criteria include the criterion in paragraph (f).  The criterion in paragraph (f) is a general provision that provides the decision‑maker with an ability to consider whether or not, irrespective of satisfaction of the other criteria, a person should or should not be surrendered in relation to the relevant offence.

That then allows for a whole range of matters to be considered, and a whole range of matters to be considered which might be supplied not only by the person resisting extradition, but also by the requesting country; in this case, Croatia.  Matters might be raised which go to the exercise of the discretion.  Then, even in respect of particular matters, there might be items of information which are put forward to support a particular position being taken by the decision‑maker, whether in favour of the requesting country or the person the subject of the extradition request.

In this case, what the Attorney‑General’s Department did was to request that Croatia provide information, and Croatia then went on to do that.  The request, as your Honours will have seen, which appears at pages 191 of the application book and following, not only distilled the various submissions and representations made by and on behalf of the applicant to eight issues.  It also, then, in respect of those eight issues, went further and set out a range of sub‑issues or questions, which the Australian Government sought a response from the Croatian Government on.

Obviously, my client did not know the way in which those questions or sub‑issues would be formulated, did not know that the submissions would be distilled into eight discrete points.  My client had no input to any of that, and it is notable, perhaps, that in the course of writing that letter, one of the things that the Attorney‑General’s Department referred to  – this appears in particular at pages 195 to 196 of the application book, and in particular at the bottom of page 196, that in respect of the “fair trial in Croatia” issue, the Attorney‑General’s Department observed that:

As part of its response, Croatia may wish to provide relevant statistics regarding prosecution of Serbs and Croats for alleged war crimes.  We note that the Croatian Ministry of Justice provided a document titled ‘War Crimes Prosecutions in Croatia from 2005 ‑ 2009’ to the Australian Attorney‑General’s Department in May 2010.  If you consider this document is relevant please provide a copy in support of your response to this letter.

As your Honours will be aware, it must have been considered relevant, because a copy was provided with the response to the Attorney‑General’s Department’s letter to the Croatian Ministry for Justice.

HAYNE J:   Now, I do need to understand this better.  We are at the point of considering the application of 22(3)(f) ‑ ‑ ‑

MR KNOWLES:   That is right.

HAYNE J:   ‑ ‑ ‑ so we have dealt with things like extradition, objection, torture, death penalty; those issues are presently on one side.  If the Attorney‑General in his or her discretion considers that the person shall be surrendered, what is the kind of hearing, what is the kind of opportunity to make representations that is being contemplated, that the person eligible for surrender should say “Croatia have told you that they prosecuted X Croats, Y Serbs; that is all wrong and we will have a little debate about that”, or is the person eligible for surrender to be given an opportunity to be heard about those matters known to that person which might bear upon why he should or should not be surrendered?

MR KNOWLES:   Your Honour, the person ought to be given an opportunity to know the case put against them.  They ought to be given an opportunity to respond to adverse information in respect of which they are otherwise unaware.  In this case, this information, in my submission – that is, the war crimes statistics report – was certainly adverse, was certainly unknown to my client, and on top of all of that, even looking at it superficially, it is clear that it has limitations in terms of it being a purely quantitative analysis, and one which at that seems to undertake a – perhaps it is not there ‑ ‑ ‑

HAYNE J:   But by Australia making a treaty with a foreign country providing for extradition, Australia has taken the decision that the judicial system of that foreign country is of a kind to which it is appropriate to yield persons for trial and, if needs be, punishment.

MR KNOWLES:   Well, perhaps in a general sense, your Honour, but in a specific sense one meets with different scenarios in each particular case.  In this case, there was a specific issue which was raised, that being that my client was someone who was accused of having fought for pro‑Serb militias during the conflict in the Balkans and was ‑ ‑ ‑

HAYNE J:   And that the law was being differentially applied in the state to which surrender was contemplated is the essence of the point.

MR KNOWLES:   That is right, your Honour.  There was an issue that was put up and then there was new adverse information in respect of that issue which was put forward, unbeknownst to my client, and my client should have had an opportunity to respond to that information.

HAYNE J:   Now, is that the nub of the procedural fairness point you want to agitate in this Court, or have I managed to distract you from putting forward the essence of it?

MR KNOWLES:   No, not at all, your Honour.  That is the nub, but I should say it comes within a particular context.  There is a statutory context at play, particularly, as your Honour has already observed, this is the final stage of the extradition process.  It is the last opportunity a person gets before they might be the subject of a decision to surrender them to the requesting country.  On top of that, in terms of the adversarial nature of the proceeding, it is not just one person applying to a decision‑maker, it is a case of two effectively competing interests, and in this case your Honours have information from a party that has a vested interest in an outcome which is adverse to my client’s interests and yet that information does not get put to my client at all.

HAYNE J:   And it follows, does it not, by parity of reasoning that if your client advances reasons personal to him why he should not be surrendered Croatia should have an opportunity to respond to his case?  Does that follow?

MR KNOWLES:   Well, obviously, there is a need to avoid the circulus inextricabilis that has been referred to in other cases, but the typical adversarial situation – I am not suggesting this is by all means typical, but it would be that there would be a party making particular claims and then there would be a party that responds to those claims, and then the first party would have an opportunity to have a right of final reply, and that is what is going to happen today. 

I am not suggesting that in terms of the extradition process it is in the nature of a curial proceeding but, nonetheless, it is closer to that than a situation where someone simply fills out a form and the information in the form is considered by an administrative decision‑maker.  Because it falls closer to that, that is where perhaps one finds the limits being drawn. 

Obviously, it is going to depend on each individual case, but in this case it is submitted that it was clearly the situation that my client, unbeknownst to him, was the subject of there being new information that was adverse about an existing issue, no doubt, but it was an existing issue that had been addressed by Croatia with new information of which he was unaware.

NETTLE J:   Mr Knowles, if it depends on the circumstances of each particular case what is the question of principle of general importance that warrants the grant of special leave?

MR KNOWLES:   Well, obviously there are – when I say that, I accept your Honour’s point about there being individual variations between one case and the next.

NETTLE J:   That is not intended to be a smart point, but judgment of the majority is riddled with references to principles about which there appears to be no dispute.  Your contention or complaint is they did not apply them in a way that you like.

MR KNOWLES:   That is so.  All I would say though, your Honours, is that the statutory context is relevant and it will have a bearing on other cases involving extradition and, in particular, will have a very, very significant effect for my client.  I admit that there is certainly a public importance issue, but the Court is also, with respect, able to intervene in cases where there has been some error that is apparent, clearly, in respect of application of established principle.

NETTLE J:   The difficulty is it is not apparent clearly that there is any error.  There is a view which is fairly completely expressed in the reasons of the majority and there is your contention that they should have given you something more.

MR KNOWLES:   Well, your Honour, it is certainly submitted that what the majority has done is that they have looked at whether or not an issue is new or not.  There is a distinction between new and existing issues and new information about existing issues.  So that seems to have been, with respect to the majority, overlooked firstly and, secondly, the issue of this particular report, the statistics report, has not been, it seems, addressed in any detail in the reasons for judgment of the majority. 

There has not been some consideration of the nature of this information.  It was adverse to my client.  It did not specifically refer to my

client, and that is another issue that is taken with the reasoning of the majority.  There seems to be a tendency to focus more on information which is specific to my client.

Now, I accept that that would be a situation where there is a much more obvious requirement that information be put to a person, but it does not exclude the obligation to put more general information to a person if it has a bearing on their particular claims and they are unaware of it.

HAYNE J:   As to your second point, Mr Knowles, what is the answer to the proposition that this is not a mandatory relevant consideration?

MR KNOWLES:   Well, in short, your Honour, the matters that are set out in subsection (3) are jurisdictional preconditions for the exercise of the power in subsection (2).  They require the decision‑maker to form a state of satisfaction or an opinion.  That includes an opinion that is set out in paragraph (f).  That is the residual discretion opinion.  If the discretion is formed in a way that involves an error of law, then the discretion has miscarried.  The jurisdictional precondition set out in paragraph (f) ‑ ‑ ‑ 

HAYNE J:   Well, it is an error about the obligations which Australia has undertaken by international agreement, is it not?

MR KNOWLES:   That is true.

HAYNE J:   Yes.

MR KNOWLES:   Your Honour, I understand that there is authority of this Court in the case of Lam, which would tend to go against what I am putting to your Honour.  I accept that in terms of paragraph 101 of that decision, but I do say that this case is different, very quickly.  In Lam what one was looking at was the actual decision.  This is a jurisdictional precondition before making the decision.

HAYNE J:   Yes.

MR KNOWLES:   If your Honours please.

HAYNE J:   Yes, Mr Williams.

MR WILLIAMS:   At application book 82, the majority in paragraph 174 noted, correctly, with respect, the principles were largely uncontroversial, and then in paragraph 175 stated the applicable principle in a way that is well settled from about line 40.  The applicant:

was entitled to be made aware of, and have the opportunity to address, the critical issues or factors on which the decision was likely to turn, as well as any adverse information that was credible, relevant and significant –

The difference between the majority and the dissentient here is largely, if not wholly, the application of that settled principle to particular facts.  The majority here have scrupulously applied the settled principle, which the applicant describes as rigidly applying the traditional rule.  But the applicant suggests that essentially in any case involving personal liberty a different rule applies, especially where the allegations are serious.

The majority in paragraph 181 on the following page make an important point in observing that – I interpolate – unlike a refugee case, for example, in this case there were two parties with an entitlement to be heard and the necessity for the Attorney‑General to adopt a procedure that was fair to both. 

The matters here may have been important for the applicant – undoubtedly they were, but the importance for the applicant is matched by the importance for the requesting state, here, the importance to the Croatian justice system as well as to friends and relatives of victims that allegations of serious war crimes be dealt with according to law.  The Attorney‑General’s procedure had to balance competing claims to fairness and competing claims to who should be entitled to have the last say.

In terms of the procedural fairness framework in this Act, Croatia made out its case for extradition in its request in the section 19 hearing, in the section 21 appeals, including to this Court.  The applicant knew by the section 22 stage the case that he had to meet.  That included consideration at those earlier stages of, for example, 7(c) of the Act, extradition objection, fair trial as a matter of going to extradition objection and so that ground had been well traversed.

HAYNE J:   I think we need not trouble you further, Mr Williams.  Is there anything you wish to say in answer, Mr Knowles?

MR KNOWLES:   I do not have anything further to add, your Honour.

HAYNE J:   Yes, thank you. 

No disputed question of general principle would fall for consideration if special leave to appeal were granted in this matter.  An appeal to this Court would not enjoy sufficient prospects of success to warrant a grant of special leave.  Special leave is refused.

The Court will adjourn to reconstitute.

AT 12.41 PM THE MATTER WAS CONCLUDED