High Court of Ireland Decisions

A.G. v. Oldridge [1999] IEHC 40; [2000] 2 ILRM 233 (10th November, 1999)

IN THE MATTER OF S. 52 OF THE COURTS (SUPPLEMENTAL) PROVISIONS ACT, 1961

AND IN THE MATTER OF THE EXTRADITION ACTS, 1965-1995

BETWEEN

1. This matter comes before the Court by way of consultative Case Stated by Judge Gerard J. Haughton, a Judge of the District Court, on the 29th January, 1999.

2. The basic facts the subject matter of the proceedings are set out at paragraph 2 of the consultative Case Stated which is annexed to this judgment together with the judgment delivered by Judge Haughton on the 17th December, 1997. I have been advised by Counsel for the Attorney General that it is not open to the Court to look beyond the material referred to in the Case Stated, which essential material consists of the documents already referred to, the documents in Annexe (1) of the District Judge's Case Stated, including the Superseding Indictment in which the Respondent is a named Defendant dated the 1st July, 1997. This indictment in which the United States of America is Plaintiff and the Respondent and four others persons are named as Defendants emanates from the Southern Division of the Eastern District of Michigan, United States District Court.

3. It contains a recitation of the factual material giving rise to general and specific allegations that the various Defendants aided and abetted each other to carry out a scheme to defraud Michigan National Bank, Swiss Cantobank and Security Bank of Manistee and thereby obtain loans for one Ilene Moses and certain companies with which she was associated.

4. At the outset of the present hearing, it was confirmed by Counsel for the Attorney General that the only criminal offence in Irish law on the facts outlined would be conspiracy to defraud, contrary to common law.

5. It is conceded on behalf of the Respondent that such an offence is recognised in Irish law, as recently confirmed by Geoghegan J. in Myles -v- Assistant Commissioner of An Garda Siochana and Hugh Sreenan (Judgment delivered on 13th October 1999).

6. Accordingly, the first matter this Court has to determine is the issue of correspondence and whether or not it is satisfied that the facts as outlined are such as would constitute the said offence of conspiracy.

7. As appears from the Case Stated, the involvement of the Respondent in the fraudulent scheme, which began in September 1982, only commenced in March 1988 when, it is suggested, the Respondent falsely represented himself to various parties as the successor to another Defendant, Laurence Anderson, as the representative of a secret cartel, namely Romtex.

8. As pointed out by the District Justice (p.3 of Case Stated):-

"It is quite clear from the indictment that Oldridge joined the enterprise in the so called lulling phase in 1988 and 1989, after most of the loans had been received and the defrauded banks had begun to demand payment of the loans. At that stage the Defendants, including Oldridge, continued to give the banks false and fraudulent information and provided false assurances to the banks that Ilene Moses, S M S and Jolland Company would soon receive financing which Ilene Moses would then use to pay the amounts that were then due to the banks".

9. The Superseding Indictment itself (p.3) acknowledges:-

"At the time of Oldridge's involvement, Moses' companies had defaulted on their loans, and Oldridge provided assurances to Moses' lawyers and others that the secret cartel would pay monies owed to Moses in order to cure the default. In fact, as Defendant Oldridge well knew, he was an associate of Moses and had no contact to any secret cartel."

10. At p.15 of the Superseding Indictment it is further stated:-

"It was a part of the scheme that in 1988 and 1989 Albert John Oldridge, using his own name and the names "J Later" and "R Schulz" helped make it appear that Romtex A.G. was independent of IleneMoses. He did so by directing the activities of Romtex A.G. while falsely appearing to be independent of Ilene Moses and falsely purporting to be himself in direct contact with and working for the secret cartel."

11. None of the factual material addresses any alleged specific behaviour on the part of the Respondent prior to 1988, nor does it appear he had any hand act or part in the setting up of the various shell companies described in the indictment.

12. Turning to the specific, as distinct from general allegations, which are contained at Counts 20 through 47, there is no specific reference in any count to the Respondent at all and only a single reference to "R Schultz" dated 21st October, 1988.

13. Having regard to the elaborate nature of this world-wide fraudulent scheme, it is perfectly obvious that the meeting of minds which set up and implemented this scheme and drew down the monies involved all took place well before the suggested involvement of the Respondent.

14. It is against that background that the Court must ask if the essential requirements for a charge of conspiracy under Irish law insofar as the Respondent is concerned, could be said to exist.

15. Mr Charlton cited to the Court a passage from Regina -v- Cotroni/Papalia -v- The Queen (Canadian Criminal Cases) 45 CCC from the judgment of Dickson J. at p.17 as follows:-

"The word "conspire" derives from two latin words, "con" and "spirare", meaning "to breathe together". To conspire is to agree. The essence of criminal conspiracy is proof of agreement. On a charge of conspiracy the agreement itself is the gist of the offence: Paradis -v- The King (1933), 61 CCC 184 at p.186, (1934) 2DLR 88 at p.90, (1934) SCR 165 at p.168. The actus reus is the fact of agreement: Director of Public Prosecutions -v- Nock (1978) 3WLR 57 at p.66 (HL). The agreement reached by the co-conspirators may contemplate a number of acts or offences. Any number of persons may be privy to it. Additional persons may join the ongoing scheme while others may drop out. So long as there is a continuing overall, dominant plan there may be changes in methods of operation, personnel or victims without bringing theconspiracy to an end. The important inquiry is not as to the acts done in pursuance of the agreement, but whether there was, in fact, a common agreement to which the acts are referable and to which all of the alleged offenders were privy. InR. -v- Meyrick and Ribuffy (1929), 21CR APP. R. 94 at p.102 (CCA) the question asked was whether "the acts of the accused were done in pursuance of a criminal purpose held in common between them" and in 11 Halls., Fourth Edition., at p.44 it is said:-

'It is not enough that two or more persons pursued the same unlawful object at the same time or in same place; it is necessary to show a meeting of minds, a consensus to effect an unlawful purpose.'

There must be evidence beyond reasonable doubt that the alleged conspirators

acted in concert in pursuit of a common goal."

16. The Respondent submits that no charge of conspiracy under Irish law could lie on these facts because the fraud had already been committed and the monies drawn down or advanced or that process set in train and substantially completed prior to the suggested involvement of the Respondent. He was at most an accessory after the fact. The meeting of minds took place many years before and there were no new companies formed or new loans negotiated following the involvement of the Respondent. In fact, as the indictment itself states, the borrowers had defaulted on their obligations at the time of his involvement. At worst he made representations to hold the lending banks at bay. Accordingly, if there was a conspiracy, it was not one to defraud but to stall the banks only.

17. Although the written submission of the Applicant identifies three different possible criminal offences, only one, namely conspiracy, was relied upon by the Applicant at this hearing. Conspiracy seems to me an inappropriate offence on the facts of this case because all of the relevant facts and events in the context of any supposed conspiracy (insofar as they are disclosed on the indictment) took place prior to the involvement of the Respondent. For that reason I hold that the facts do not disclose the offence of conspiracy to defraud as understood in Irish law, at least insofar as this Defendant/Respondent is concerned.

18. If I am mistaken in this view, I believe there are further insuperable difficulties from the Applicant's point of view.

19. Extradition between Ireland and the United States is governed by the Washington Treaty of 1983 which is now part of Ireland's domestic law.

20. Article II provides as follows in relation to extraditable offences:-

"1. An offence shall be an extraditable offence only if it punishable under the law of both Contracting Parties by imprisonment for a period of more than one year, or by a more severe penalty. When the request for extradition relates to a person who is wanted for the enforcement of a sentence of imprisonment extradition shall be granted only if the duration of the sentence still to be served amounts to at least four months.

2. For the purposes of this article, it shall not matter ..

(a) Whether the laws of the Contracting Parties place the offence within the same category of offence or denominate the offence by the same terminology; or

(b) Whether the offence is one for which United States Federal Law requires proof of inter-state transportation, or use of the mails or of other facilities affecting inter-state or foreign ommerce, such matters being merely for the purpose of establishing jurisdiction in a United States Federal Court.

3. Subject to the conditions set forth in paragraph 1 of this Article, extradition shall also be granted for attempt and conspiracy to commit, aiding, abetting, counselling, procuring, inciting or otherwise being an accessory to the commission of, an offence referred to in paragraph 1.

4. If extradition is granted for an extraditable offence, it may also be granted for any other offence for which extradition is requested that meets all the requirements for extradition other than the periods of imprisonment specified in paragraph 1 of this Article."

21. It is not altogether clear to me if this Article was opened fully to Judge Haughton. If it had been so opened, it seems clear he would not have been so concerned with those aspects of the matter which relate to the use of "mail or of other facilities" because quite clearly such considerations arise merely for the purpose of establishing jurisdiction in a United States Federal Court. Alternatively, if it could be said there were proofs or requirements relating to the use of "mail or other facilities", this additional ingredient exists only on the US side and consequently, on the authority of Hanlon -v- Fleming [1981] IR p. 489 cannot signify in the context of extradition.

22. The Washington Treaty makes clear that, before an offence becomes extraditable, the offence in question must be shown to be punishable by a maximum of at least one year's imprisonment or some other more severe sentence.

23. It is acknowledged on behalf of the Applicant that there is no prescribed minimum or other penalty for the offence of conspiracy to defraud contrary to common law.

24. Furthermore, it seems to me that the Respondent is correct in submitting there is no substantive offence in the offence of conspiracy to defraud contrary to common law, because "fraud" or "defraud" are not capable of being described per se as substantive criminal offences in respect of which there is some prescribed punishment.

25. The penultimate paragraph of Article 2 of the Washington Treaty indicates that a person may also be subject to extradition for conspiracy to commit an offence of the type described in paragraph 1 of Article 2. The difficulty is that there is no such offence.

26. It seems to me therefore that this application must also fail for failing to meet the threshold requirements of Article 2 of the Washington Treaty.

27. Finally, it was also urged upon the Court on behalf of the Respondent that the District Justice had no jurisdiction to send forward a consultative Case Stated under the terms of Section 52 of the Courts (Supplemental Provisions) Act, 1961.

28. The section provides as follows:-

"(1) A Justice of the District Court shall, if requested by any person who has been heard in any proceedings whatsoever before him (other than proceedings relating to an indictable offence which is not been dealt with summarily by the Court) unless he considers the request frivolous, and may (without request) refer any question of law arising in such proceedings to the High Court for determination.

(2) An appeal shall lie by leave of the High Court to the Supreme Court from every determination of the High Court on a question of law referred to the High Court under subsection (1) of this section."

29. Doctor Forde contends that conspiracy is an indictable misdemeanour. It is not being dealt with summarily by the District Court. Therefore, he submits, no jurisdiction to make any reference to the High Court lies within the power of the District Justice.

30. I think that is a mistaken interpretation of Section 52, because the bracketed words clearly relate to the usual forms of indictable crime which are being sent forward for trial elsewhere from the District Court. It would be a perverse and distorted interpretation of this section to hold that extradition proceedingsare caught by the bracketed words.

31. As Mr Charlton points out, there may be many jurisdictions where procedure is not by means of indictment at all. Furthermore, there is no question in extradition proceedings of dealing "summarily" with any issue. On the contrary the District Court deals summarily with well known and well recognised categories of offences. The process of extradition, it seems to me, is altogether different as a process from the process to which the bracketed words relate.

Dated this 10th day of November 1999.

Signed : _________________

Nicholas J. Kearns