Case: United Mexican States v Cabal [2001] HCA 61 ; (2001) 209 CLR 165
Outcome: followed
Mr Snedden relies upon the fact that the alleged offences for which the warrant was issued for his arrest in Croatia occurred in 1991. No action was taken by Croatia to investigate such offences until shortly after the publication of the article in The Australian . Further, the Statement of Reasons contained in the decision of the County Court in Sibenik which investigated the alleged offences contains the following statement: The suspect, Dragan Vasiljkovic known as "Captain Dragan", is a national of Serbia and Montenegro and Australia. His address is not known so that it is obvious that he is on the run. In this particular case, he has been charged with the criminal offences which, according to the law, carry a prison sentence of over 2 years since these are serious criminal offences against humanity. Mr Snedden submits that there is no evidence that he is 'on the run' and in fact he has resided in Australia since 2004. He submits that unlike the facts in United Mexican States v Cabal [2001] HCA 61 ; (2001) 209 CLR 165, there are no documents or other records which suggest that he would attempt to flee the jurisdiction. Mr Snedden refers to the observations of the High Court in Cabal 209 CLR at [57] which address the risk of flight and submits that there is, in the present circumstances, no evidence whatsoever to support the concern of risk of flight. Mr Snedden submits that he, unlike the applicant in Cabal [2001] HCA 61 ; 209 CLR 165 did not flee from any other country. He arrived back in Australia of his own accord in 2004 prior to any investigations being made into his activities. 20 Mr Snedden also submits that there are strong prospects of success in his review application and refers to the evidence contained in the statements of Mr Platter and Mr Schneider. Mr Snedden also refers to his continuing defamation proceedings in the New South Wales Supreme Court as an additional reason against flight. He submits that he wishes to 'clear his name' , and to proceed to a hearing, but his confinement is hindering his ability to pay his legal counsel. 21 Mr Snedden points to the lack of any substantial evidence in the extradition documents and the long delay on the part of Croatia to request that the Australian Government assist in the extradition proceedings. 23 In Cabal [2001] HCA 61 ; 209 CLR 165 at [62] the High Court said: Even when special circumstances are proved and there is no real risk of flight, it does not follow that bail must be granted. For example, the defendant may pose a risk to the community or a particular individual. In addition, bail must become harder to obtain as the case proceeds through the judicial system. Once the Magistrate has found that the defendant is eligible for surrender, public interest factors similar to those that require a convicted defendant to be imprisoned also require that a defendant in extradition proceedings be kept in custody. Before a Federal Court judge grants bail, the defendant ordinarily will need to show that the application for review has strong prospects of success as well as special circumstances and an absence of risk of flight. 24 If the existence of special circumstances are proved which might justify bail, other considerations then arise as referred to by the High Court in Cabal [2001] HCA 61 ; 209 CLR 165. At [74] the High Court said: It is no doubt true that the test is not whether the proven special circumstances are such that it is not probable that the applicant will abscond. But it is not a question of whether the personal and other public interests outweigh the objects and rationale of the Act. Once special circumstances are proved, the Court must consider all the circumstances of the case, the chief of which is the risk of flight. If a real risk of flight exists, the proper exercise of the discretion will ordinarily require the refusal of bail. Conversely, if special circumstances are proved and there is no real risk of flight, bail may be granted unless the defendant may be a danger to the community or some specific individual. 25 The reasons for the magistrate's decision made on 12 April 2007 have been tendered. No submissions have been made by Mr Snedden concerning any error of law or other defect in such reasons which could lead to the decision being set aside. On this motion therefore the Court has no basis to assume that they are incorrect. Accordingly the evidence of special circumstances within s 21(6)(f)(iv) of the Act is to be considered by a review of other evidence. 26 Insofar as Mr Snedden claims that he is not guilty of any of the offences referred to in the Croatian warrant, the Magistrate was bound by s 19(5) of the Act not to receive evidence which contradicts the allegations that the person has engaged in such conduct. On this application for bail the Court has received such evidence but limited only for the express purpose of the bail application. Accordingly, the evidence contained in Mr Snedden's affidavit and that of Mr Platter and Mr Schneider relating to Mr Snedden's lack of involvement in the alleged crimes cannot form any part of the challenge to the Magistrate's decision.