Case: Cabal and Another v United Mexican States and Others (No 2) [2000] FCA 445 ; (2000) 172 ALR 743
Outcome: followed
determining whether 'substantial grounds' exist for believing that there is an 'extradition objection in relation to the offence' , French J (as he then was) in Cabal and Another v United Mexican States and Others (No 2) [2000] FCA 445 ; (2000) 172 ALR 743 (' Cabal (2000)') at 748-49 said: The requirement that the grounds for believing there to be an extradition objection should be substantial is evaluative in character. It must be applied having regard to the legislative purpose. In relation to the political objections in s 7(b) and (c) material which demonstrates a real or substantial risk that the circumstances described in those paragraphs exist or will exist may be sufficient to satisfy the condition in s 19(2)(d). His Honour's observations were cited with approval by the Full Court in Cabal and Another v United Mexican States and Others [2001] FCA 427 ; (2001) 108 FCR 311 (' Cabal (2001)') at [137]-[138]. The extent of the phrase 'material that was before the magistrate' was considered by French J in Cabal (2000) at 749 where his Honour said: Upon review by this court under s 21 the material proffered to the magistrate by the parties and received in evidence is plainly material that was before the magistrate for the purposes of s 21(6)(d). So too, in my opinion, is material that was proffered to the magistrate and was rejected by her. At 751 French J said: In summary, I have come to the following conclusions in relation to the materials before the magistrate which may be considered by the court upon review under s 21. It is not suggested that these are exhaustive propositions, but they are reached in the light of the particular debate in this case: (1) The materials before the magistrate comprise the testimony, documents and things which were received by the magistrate in evidence and those which were tendered to the magistrate but not accepted in evidence. (2) The court upon review is not limited to consideration of material received by the magistrate in evidence but may have regard to other material tendered to the magistrate but not received in evidence. On appeal to the Full Court in Cabal (2001) there was no issue between the parties that the material which could be considered by the reviewing court comprised material which had been rejected by the Magistrate. Accordingly, this question was not determined by the Full Court. However, their Honours expressed concern at some of the difficulties that may arise from French J's interpretation, stating at [73]: Both at first instance and on appeal the parties proceeded on the basis that the review required to be heard by the Court or the Supreme Court of a State or Territory was in the nature of a rehearing, but subject to the provisions of s 21(6)(d) of the Act which confine the Court hearing the review to the material which was before the magistrate. Likewise the parties agreed that when s 21(6)(d) referred to the material "that was before the magistrate" that included not only material which the magistrate had admitted into evidence, but also material tendered by either the extradition country or the person in respect of whom the extradition application was made, which, for whatever reasons, was rejected by the magistrate and accordingly not taken into account by her. At least the latter of these propositions is not self-evident, if only because it would permit the judge conducting the review to consider material not capable of being tested by cross-examination or which might, had it been admitted, have led to the calling of other evidence. Clearly s 21(6)(d) would not permit any cross-examination on that evidence to take place or further evidence to be considered. However, as the parties proceeded on that basis before us we are content to accept for the purposes of the appeal the correctness of this construction of s 21(6)(d). In Cabal (2000) at 751 French J was not constrained by the provisions of the Evidence Act 1995 (Cth) ('the Evidence Act ') in determining what material was admissible in a review under s 21 of the Extradition Act . His Honour said: In considering whether there are substantial grounds for believing that an extradition objection is made out for the purposes of s 19 , neither the court nor the magistrate is limited to evidence admissible, according to the rules of evidence, to demonstrate that the fact constituting the objection exists. The Court is mindful of the observations of French J in Cabal (2000) at 749 where his Honour said: The very nature of those objections [the objections are referred to in s 7(b) and (c) of the Extradition Act ] is such that the evidence relied upon to make them out or to show substantial grounds for believing that they exist may be indirect or circumstantial in character. French J's observations must be read in the context of his finding at [23], namely that this Court is not bound by the rules of evidence in conducting a s 21 review. As discussed above, the Full Court decisions in Cabal (2001) and Dutton v O'Shane have established that this Court is bound to apply the provisions of the Evidence Act when conducting the review. Although the evidence essentially relates to the applicant's apprehension rather than to any facts, the Court is mindful of the observations of French J in Cabal (2000) at 749. The Court considers that such evidence should be admitted given the nature of the application before the Court. The Court admits those portions of paragraphs 1, 3, 4, 5 and 18 which were before the Magistrate subject to the deletion from paragraph 4 of the section commencing 'Gotovina has been indicted...' and concluding '...in the Milosevic trial' which is not relied upon by the applicant. Statement of Savo Strbac Paragraphs 1 to 5 and 13 (except for the last sentence) of the statement of Savo Strbac are relied upon by the applicant. Mr Strbac is a former Magistrate in the Local Court in Benkovac and a former Judge of the District Court in Zadar. In 1993 Mr Strbac founded Veritas, a non-government organisation which monitors the treatment of Serbians by Croatian authorities in the territory of the Republic of Croatia and the former Republic of Serbian Krajina. The respondent objects to the admission of the above paragraphs on the grounds of opinion and relevance.