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Cite as: [2003] IEHC 5
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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> A.G. v. Dyer [2003] IEHC 5 (26 March 2003) URL: http://www.bailii.org/ie/cases/IEHC/2003/5.html Cite as: [2003] IEHC 5 |
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2002 NO. 2 EXT
BETWEEN
APPLICANT
RESPONDENT
Judgment of Finnegan P. delivered on the 26th day of March 2003
This is an application pursuant to the Extradition Act 1965 Part III as amended. A net issue arises on the application as to whether the Applicant has discharged the onus under the Extradition Act 1965 section 47(2) which provides –Definitions for the purposes of the Extradition Act 1965 Part III are contained in section 42 thereof as amended by the Extradition (European Union Conventions) Act 2001 section 26. Section 42 as amended provides as follows –"47(2) An order shall not be made under subsection (1) if it appears to the Court that the offence specified in the warrant does not correspond with any offence under the law of the State which is an indictable offence or is punishable on summary conviction by imprisonment for a maximum period of at least six months".
"42(2) For the purposes of this Part an offence under the law of a place to which this Part applies corresponds to an offence under the law of the State where the act constituting the offence under the law of that place would, if done in the State, constitute an offence under the law of the State punishable
(a) on indictment, or
(b) on summary conviction by imprisonment for a maximum term of not less than 6 months or by a more severe penalty.
(3) For the purposes of this Part, an offence specified in a warrant corresponds with an offence under the law of the State if –
The application is concerned with some 27 warrants issued by a judicial authority in Jersey. For the purposes of this application 24 of the warrants can be considered as being to the like effect so far as the offence specified in each case is concerned. The exceptions are warrants numbered 4, 26 and 27 and I propose dealing with these three warrants separately hereafter. In relation to the 24 warrants to the like effect I propose dealing with warrant number 1 and my determination in relation to that warrant will apply to the other 23 warrants with which I am now concerned. Warrant No. 1 sets out the offence alleged to have been committed by the Respondent in Jersey in the following terms-(a) the act constituting an offence so specified would, if done in the State on the day the warrant is produced under section 43(1)(b), constitute an offence under the law of the State".
The Applicant submits that in this jurisdiction there are two corresponding offences namely –"On or around December 1997, in the Island of Jersey obtained from Runamoke Limited payment for the total sum of £3,200, for the benefit of St. Bernard's Garage and Car Hire Limited trading as Holiday Autos, by falsely pretending that a Cagiva Moke motor vehicle registration no. J72522, the property of G de Z Investments Limited, was the property of the said St. Bernard's Garage and Hire Car Limited, trading as Holiday Autos. Contrary to common law".
1. An Offence under the Larceny Act 1916 section 32 as amended by the Larceny Act 1990 section 9 which provides as follows –
"32 Every person who by any false pretence –
(1) with intent to defraud, obtains from any other person any chattel, money, or valuable security, or causes or procures any money to be paid, or any chattel or valuable security to be delivered to himself or to any other person for the use or benefit or on account of himself or any other person; or
(2) with intent to defraud or injure any other person fraudulently causes or induces any other person
(a) to execute, make, accept, endorse or destroy the whole or any part of any valuable security; or
(b) to write, impress, or affix his name or the name of any other person, or the seal of any body corporate or society, upon any paper or parchment in order that the same may be afterwards made or converted into, or used or dealt with as, a valuable security;
shall be guilty of a misdemeanour and on conviction thereof liable to imprisonment for any term not exceeding ten years.
2. An offence under the Criminal Justice Act 1951 section 10 which provides as follows-
In each case the offence contains within its statutory definition the requirement of an intent to defraud whereas the offence alleged in the warrant does not in its terms contain such a requirement. The issue arises therefore as to whether the offence specified in the warrant corresponds with an offence under the law of the State. The Applicant, as to the law of Jersey, relies upon an Affidavit of Michael St. John O'Connell, a Jersey Advocate. The Respondent objects that the competency of the"10.-A person who by any false pretence, with intent to defraud, obtains anything capable of being stolen or causes it to be delivered to himself or to any other person for the use or benefit or on account of himself or any other person, shall be guilty of a misdemeanour and on conviction shall be liable to penal servitude for a term not exceeding five years or to imprisonment for a term not exceeding two years".
Deponent is not shown on the Affidavit. In the Affidavit Mr. St. O'Connell deposes that he is an advocate of the Royal Court of the Island of Jersey, that he has held this qualification since 1987 and that he was appointed Crown Advocate in 1999. The objection to competency was raised at the conclusion of the proceedings before me no application to cross examine the Deponent on his Affidavit having been made. A witness is accepted as competent to prove foreign law if in his profession he is acquainted with such law: O'Callaghan v O'Sullivan 1925 1 I.R. 90 at 110.
It is well settled that an expert giving evidence as to foreign law while he must give evidence of his opinion may refer inter alia to decisions of the court in the relevant jurisdiction: Thelwall v Yelverton 14 ICLR 188 at 235 - 6 and O'Callaghan v O'Sullivan 1925 1 I.R. 90. In relation to the alleged offence under the law of Jersey Mr. St. O'Callaghan deposes that it is necessary to show that the Defendant had deliberately made a false representation with the intention and consequence of causing thereby actual prejudice to someone and actual benefit to himself or another and that Jersey law requires an"Advocate" is a word in ordinary use in the English language. The Deponent here deposes that he holds the qualification of Advocate of the Royal Court of the Island of Jersey. I am satisfied that this is sufficient, in the absence of any contrary evidence being adduced, to qualify the Deponent as an expert in the law of Jersey.
intent to defraud. This proposition is borne out by the report of FOSTER V A.G. 1992 JLR 6 which is exhibited in the Affidavit. The issue between the parties however is whether having regard to reported decisions in this jurisdiction and on the identical provisions in United Kingdom legislation I am entitled to have regard to this Affidavit evidence in determining whether the alleged offence corresponds with an offence under the law of the State.
In the State (Furlong) v Kelly 1971 1 I.R. 132 the Supreme Court considered section 47(2) of the Act of 1965. O'Dalaigh C.J. dealt with the nature of the enquiry to be carried out by the court in the following terms –"The basic enquiry is to discover whether the several ingredients which constitute the offence specified in the warrant, or one or more of such ingredients, constitute an offence under the law of the State and, if they do, whether that offence ("corresponding offence ") is an indictable offence or if not whether it is punishable on summary conviction by imprisonment for a maximum period of at least six months. As to the first limb of the enquiry, the position may be illustrated algebraically as follows. If the English offence consists of, say, four essential elements (a) + (b) + (c) + (d), then a corresponding Irish offence exists only if it contains either precisely the same four essential elements or a lesser number thereof. If the only Irish offence that can be pointed to has an additional essential ingredient (that is to say, if the Irish offence may be defined as (a) + (b) + (c) + (d) + (e)) then there is no corresponding Irish offence to satisfy the requirements of section 47(2) of the Act of 1965 for the simple reason that, ex hypothesi, conduct (a) + (b) + (c) + (d) falls short of being an offence under Irish law or, in plainer words, it is not an offence. It is fundamental to
Walsh J. however adopted a different approach –extradition that no one shall be extradited for acts or omissions (the offence alleged in the warrant) which if repeated within the State, would not offend against our law ".
"The next point which calls for consideration is how the District Justice is to ascertain and determine what is the corresponding offence under the law of this State. I do not for a moment think that the Act ever contemplated that a District Justice or indeed the High Court would be called upon in such cases to construe foreign law and indeed it would be manifestly impracticable to expect every District Justice in the country to undertake such a task even if he were competent to do so. There is a way of proving foreign law and that is by the expert testimony of a person who is qualified as a legal practitioner in the country whose law is in question. In the present case the offence appearing in the English warrant is an offence which is alleged to be a contravention of an English Act, namely, the Theft Act of 1968. It is to be borne in mind that the warrant in question, like all other warrants of this kind, is issued primarily for execution within the jurisdiction of the country wherein it is issued and a simple statement of the offence referring to the local statutory provision, if it be a statutory offence, is probably sufficient in respect of execution in that country. However, different considerations arise where the warrant is sent to this country for execution. The function of the District Justice is to examine the documents set before him and to see whether there is a sufficient statement of the particulars of the ingredients of the offence alleged to enable him to bring to bear on them his
In Wyatt v McLoughlin 1974 I.R. 378 at 389 Finlay J. in the High Court dealt with the conflicting approaches of O'Dalaigh C.J. and Walsh J. in The State (Furlong) v Kelly in the following terms:knowledge of the law of this State so that he may determine whether the acts alleged against the prisoner would constitute an offence under the laws of this State. It appears to me to be necessary that before a District Justice can enter upon his determination of this matter, either the warrant itself must contain sufficient particulars of a factual nature setting out the ingredients of the offence alleged or it should be accompanied by an Affidavit by the prosecuting authority, or a duly authorised officer of the prosecuting authority, setting out the particulars of the facts complained of - somewhat as the particulars of offences appear in a count on an indictment under our law. A statement of the offence as such may be quite uninformative. Undoubtedly it is true that in respect of statutory provisions or common law offences which were common to this country and other countries under identical statutory provisions or identical common law at the time of the setting up of the State, there may be little difficulty because the District Justice will be versed in the law. But in respect of any offence created outside this jurisdiction subsequent to the setting up of this State the position is entirely different and it becomes immediately a question of foreign law. For this reason I do not find it necessary to enter into any examination of the Theft Act in England as, for the reasons I have given, I do not believe that it would be the concern of the District Justice in this case ".
The Judgments in that case on appeal explain the apparent differences between O'Dalaigh C.J. and Walsh J. At pages 397 - 398 Walsh J. said –"In this case, however, the warrant contains details of the facts and acts alleged, and it seems to me that the method of determining the issue propounded by Mr. Justice Walsh is the appropriate method for this case at least. I do not decide and it is not necessary for me to decide whether the approach contained in the Judgment of O'Dalaigh CJ may not be appropriate in some other case ".
"Under such (extradition) arrangements it is not the legal qualification of the offence according to the foreign law concerned or the name it has in that law which is of importance but it is the facts underlying the offence as ascertainable from the warrant or conviction, as the case may be, or as may be ascertained from such other documents as may accompany the warrant. Therefore, the courts of this State when dealing with warrants endorsed for execution in accordance with Part III of the Act of 1965, must be satisfied that the acts constituting the particular offence for which extradition is sought are acts which, if committed within this jurisdiction would constitute a criminal offence. For the reasons stated in Furlong's case it is necessary that either the warrant or some other document accompanying it should set out sufficient information as to these acts to enable the courts of the State to identify the corresponding offence, if any, in our law. It cannot be sufficient simply to use the name by which the crime is known, or alleged to be known, in the requesting country even though the same name may be used in this country as the name of a crime,
Walsh J. I am satisfied in both Furlong's case and Wyatt's case was consistent in holding that expert testimony as to foreign law is admissible on an application under the Act of 1965. Again if the statement of the alleged foreign offence in the warrant is deficient in failing to set out the factual content of the alleged offence which would show that that offence corresponds with an offence under the law of the State the deficiency can be made good by an Affidavit as to such facts. The Affidavit of Mr. St. John O'Callaghan is sufficient to satisfy me that under the law of Jersey a necessary ingredient in the alleged offence is the intention of obtaining the benefit in question. To defraud is to deprive by deceit: see Criminal Law, Charlton McDermott and Bolger Para 10.120. However neither the warrant nor the Affidavit of Mr. St. O' Callaghan state as a fact that the Respondent here had that necessary intention and having regard to this circumstance I must determine whether it is necessary that this is a requirement and, if it is, whether the Applicant has adduced evidence sufficient to satisfy me that the requirements of section 47(2) of the Act of 1965 are met. In Wilson v Sheehan 1979 I.R. 429 Henchy J. said –because the acts complained of, although having identical names, may constitute quite different criminal offences in different countries or, indeed, no offence at all in one of them ".
"When it comes to the words in the warrant by which the factual content of the specified offence is identified, the correct rule is that those words should prima
facie be given their ordinary or popular meaning unless they are used in a context which suggests that they have a special signification. The reason for that rule is that, when statutes or other public or formal documents directed to the public at large, or to any member of the public at large, are being interpreted, it is to be assumed, in the absence of a counter-indication, that the words used in such document have been used in their popular rather than in any specialised or technical sense.
In Hanlon v Fleming 1981 I.R. 495 Henchy J. dealt with the requirement of correspondence as follows –So also with the particulars of an offence in a formal written charge. The primary purpose of the particulars is to enable the member of the public who is being charged to identify the conduct that is being alleged against him as a criminal offence. Rule 4(3) of the rules in the first schedule to the Criminal Justice (Administration) Act, 1924, provides that the statement of offence in an indictment "shall describe the offence shortly in ordinary language, avoiding as far as possible the use of technical terms, and without necessarily stating all the essential elements of the offence."
"The relevant decisions of this Court, such as The State (Furlong) v. Kelly, Wyatt v. McLoughlin and Wilson v. Sheehan show that it is a question of looking at the factual components of the offence specified in the warrant, regardless of the name given to it, and seeing if those factual components, in their entirety or in
The effect of this statement of the law is that it makes clear that the court must have regard to the factual components of the offence under foreign law in order to determine if it corresponds with an offence under the law of the State. It is clear from the dicta of Walsh J. quoted above that the court is not confined to the factual components stated in the warrant but can have regard to facts including foreign law proved on affidavit. In Wyatt v McLoughlin Finlay J. correctly characterises the objective of the court in analysing facts disclosed where at page 389 of his judgment he says –their near-entirety, would constitute an offence which, if committed in this State, could be said to be a corresponding offence of the required gravity ".
This is consonant with the judgment of Henchy J. in Wilson v Sheehan. Foreign law is a fact to be proved in evidence. I have before me the factual components of the alleged offence in the warrant coupled with the Affidavit of foreign law as to the ingredients of that offence and taking all this evidence together I am satisfied that there is disclosed the requisite correspondence. The focus of the comparison is the constituents of the offences in the requesting jurisdiction and this State: a specific statement in the warrant or accompanying documents that, in this case, the Respondent had the necessary mens rea is not necessary to"The approach of Mr. Justice Walsh, (in the State (Furlong) v Kelly) on the other hand, was that there simply was not a sufficient allegation of fact or detailed allegation to permit of a comparison of the offence charged with any indictable offence in Ireland".
enable the court to determine correspondence once that mens rea is shown to be a requirement of the offence in each jurisdiction as a matter of law.
The Court of Appeal in England in R v Governor of Belmarsh Prison Ex Parte Gilligan 2001 1 AC 84 dealt with the identical provisions contained in the Backing of Warrants (Republic of Ireland) Act 1965. The statement of law by May L.J. in the Divisional Court in that case was expressly approved by the Court of Appeal. May L.J. said –See also Judgment of Lord Steyn at page 93 of the Report. This it seems to me differs from the approach of Walsh J. and Henchy J. which I mention above which envisaged expert evidence being available to the court including evidence of foreign law. In Wilson v Sheehan at page 430 Henchy J. envisages expert evidence as to the effect of a section in a foreign statute."But however the warrant is drawn, that is what the court has to look at. No other material is admissible to determine the offence specified in the warrant, except that exceptionally evidence might be admissible for the strictly limited purpose of explaining technical language in the warrant or words which the English court would not otherwise understand. But such evidence would not extend to explaining the legal components in Irish law of any label given to the offence in the warrant. A warrant with short particulars will to that extent specify conduct. It is to that extent a conduct based enquiry. But the conduct is to be derived from the warrant not from external material or evidence ".