Snedden v Minister for Justice for the Commonwealth of Australia

Court	Federal Court, Australia
Case number	[2014] FCAFC 156
Decision title	Judgment
Decision date	12 December 2014
Parties	Daniel Snedden (aka Dragan Vasiljkovic) Minister for Justice Commissioner of Corrective Services NSW
Other names	Vasiljkovic v Minister for Justice
Categories	War crimes
Keywords	War crimes; extradition; procedural fairness; disclosure
Links	Judgment
Other countries involved	Croatia (Hrvatska)

Summary

Dual Australian-Serbian citizen “Captain Dragan” (Dragan Vasiljkovic, known in Australia as Daniel Snedden) was the first Australian citizen to be extradited from Australia. Croatia alleges that Snedden committed war crimes against prisoners of war and civilians in 1991 and 1993 whilst in command of Serbian paramilitary troops.

In this case, the Court held that there was no reviewable error in the Minister’s determination under Section 22 of the Extradition Act 1988 (Cth) that Snedden should be extradited. While the determination process had taken a considerable time, delay did not lead to the expiration of the Minister’s power, nor had procedural unfairness been demonstrated.

The Court also held that because the Minister was not bound to consider Article 129 of the Third Geneva Convention in making his determination, any errors in the interpretation of that Article would not vitiate the decision. The Court did not rule on the correctness of the interpretation.

This case highlights the desirability of domestic legislation implementing international agreements in jurisdictions such as Australia where international agreements entered into by the country are not automatically binding in the domestic legal system.

Procedural history

In 2006, Croatia successfully applied for the provisional arrest of Snedden pursuant to the Extradition Act 1988 (Cth) for charges of war crimes against prisoners of war and civilians pursuant to Articles 120 and 122 of the Basic Criminal Code of the Republic of Croatia.

Snedden brought an unsuccessful challenge to his arrest in the High Court of Australia, alleging that provisions of the Extradition Act 1988 (Cth) were invalid (Vasiljkovic v Commonwealth (2006) 227 CLR 614).

Snedden made two subsequent unsuccessful applications to the Federal Court for release (Vasiljkovic v Minister for Justice [2006] FCA 1346 and Snedden v Croatia [2007] FCA 1902).

In 2007, a determination was made under s 19 of Extradition Act 1988 (Cth) that Snedden was eligible for extradition. Snedden commenced proceedings in the Federal Court seeking review of that determination (Snedden v Croatia [2009] FCA 30).

While unsuccessful at first instance, Snedden brought a successful appeal in the Full Court of the Federal Court (Snedden v Croatia [2009] FCAFC 111). However, that decision was subsequently overturned by the High Court (Croatia v Snedden (2010) 241 CLR 461).

Snedden filed a second application for release in the Federal Court which was summarily dismissed (Vasiljkovic v O’Connor [2010] FCA 1246 and Vasiljkovic v O’Conner (No 2) [2011] FCAFC 125).

In 2012, the Minister determined that Snedden should be extradited. Snedden brought proceedings challenging that decision (Snedden v Minister for Justice [2013] FCA 1202). The judge upheld Snedden’s challenge on the ground of denial of procedural fairness with respect to failure to permit Snedden to respond to Croatia’s submissions dated September 2010.

Related developments

Special leave to appeal to the High Court was refused in 2015 (case reference M6/2015)

Legally relevant facts

Croatia sought extradition on the basis of allegations that Snedden committed war crimes in 1991 and 1993 while in command of Serbian paramilitary troops (para. 1).

Under s 22 of the Extradition Act 1988 (Cth), a person cannot be extradited unless certain criteria are met, including that the extradition country has given a speciality assurance and that the Attorney-General considers that the person should be surrendered.

Croatia provided a speciality assurance in September 2011 (para. 39). There were further communications between the Attorney-General’s Department and Croatia that were not disclosed to Snedden. Croatia formally advised in May 2012 that there were no other proceedings against Snedden aside from those in the extradition request (para. 41).

In September 2010, the Department received a response from Croatia in relation to a list of questions (paras. 35-37). Snedden was not granted access to the response.

In June 2011, the Department sought legal advice from the Office of International Law (OIL) with respect to whether Article 129 of the Third Geneva Convention requires an extradition request to be supported by prima facie evidence of the offences (para. 43). Article 129 states that parties may either prosecute grave breaches of the Convention or “hand over” persons, provided that the other party “has made out a prima facie case”. OIL advised that “handing over” is distinct from extradition and referred to Article 88 of Protocol I (para. 79).

Core legal questions

Whether the power under Section 22 of the Australian Extradition Act 1988 (Cth) expires in the event of delay, and if so, whether there had been unexplained delay by the Minister.
Whether the Minister’s determination was vitiated by jurisdictional error on the ground that he (1) misdirected himself as to the proper construction of the Third Geneva Convention and/or (2) relied on incorrect legal advice provided by OIL.
Whether there was procedural unfairness constituted by the Department’s failure to disclose (1) Croatia’s response dated September 2010, (2) the OIL advice, and/or (3) Australia’s concerns about whether additional charges might be brought against Snedden.

Specific legal rules and provisions

Article 129 of the Geneva Convention (III) relative to the Treatment of Prisoners of War
Article 88 of the Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I)
Section 22 of the Australian Extradition Act 1988 (Cth)

Court's holding and analysis

The Court held that the Minister’s power to extradite under s 22 did not expire upon delay in its exercise. The “tightly structured” and “binary” nature of the Act indicated that if the Legislature had intended that the Minister’s power expire, provision would have been expressly made for expiration. (paras. 100-106).

The Court further held that Australia’s obligations under the “unenacted” Third Geneva Convention were not a mandatory consideration that the Minister was bound to take into account, so reliance on the allegedly erroneous OIL advice could not constitute jurisdictional error (citing Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 214 CLR 1) (paras. 145, 147-149). While the Court declined to give an opinion on the correctness of the advice, Middleton and Wigney JJ stated that it was “at the very least doubtful that the OIL advice is ‘undoubtedly’ wrong” (paras. 168-171).

In Middleton and Wigney JJ’s view, there was no procedural unfairness in the failure to disclose Croatia’s response as it did not contain any new adverse information (para. 201). However, Pagone J would have upheld the primary judge’s finding that this constituted procedural unfairness (paras. 244-246).

The Court held that the lack of disclosure of the communications between the Department and Croatia with respect to the possibility of further charges did not constitute procedural unfairness as those communications did not affect whether s 22(3)(d) – the requirement of a speciality assurance – was satisfied (para. 232). The Court further held that the failure to disclose the OIL advice did not constitute procedural unfairness as it attracted legal professional privilege, and in any event, Snedden knew the Commonwealth position and had made detailed submissions on this matter (paras. 237-238).

Further analysis

Emily Crawford, ‘International Humanitarian Law in the Courts of Australia’, in Derek Jinks, Jackson Maogoto and Solon Solomon (eds.), Applying International Humanitarian Law in Judicial and Quasi-Judicial Bodies, 2014, pp. 335-353.

Gideon Boas, ‘War Crimes Prosecutions in Australia and Other Common Law Countries: Some Observations’, Criminal Law Forum, 2010, vol. 21(2), pp.313-330.

Peter Johnston, ‘The incorporation of human rights fair trial standards into Australian extradition law’, 2014, vol. 76, Australian Institute of Administrative Law Forum, pp. 20-42.