High Court of Ireland Decisions

 


THE HIGH COURT

Record Number: 2003 No. 1EXT

Between:

The Attorney General

Applicant

And

John O'Rourke

Respondent

JUDGMENT of Mr Justice Michael Peart delivered the 29th day of July 2003:

In this case the applicant seeks an order for the^-delivery of the respondent into the custody of the English Police Authorities pursuant to the provisions of section 47(1) of the Extradition Act, 1965, as amended. This order is sought in respect of 2 charges only, namely those set forth in warrants E and F which are before this Court. Those alleged offences relate to dishonestly obtaining on two different dates as set forth therein, a money transfer, one in the sum of £10,000, the other in the-sum of £15,000, by deception and contrary to Section 15A of the Theft Act 1968. In view of the particular case made by the respondent, I need not particularise the offences charged in any more detail at this stage.

The respondent was arrested on the 9th January 2003 at an address at Fleming Court, Dublin 4, by Sgt Michael Heffernan of An Garda Siochana on foot of 6 extradition

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warrants, but this application is made on foot of only two thereof, namely Warrants E and - F as already stated.

Following this arrest, the respondent was brought before this Court on that date and was remanded to another date, and thereafter from time to time until the date of this application. He was granted bail, and has appeared on each subsequent date on which this matter has been listed.

An affidavit by the said Sgt Heffernan was sworn by him on 4th June 2003 in which he avers as to the details of the said arrest on 9th January 2003. He avers that on the said date, he gained entry into a business premises at Fleming Court called DEKA International Ltd where he met a man, and he introduced himself to this man by producing and showing him his official Garda identification card and telling him his name, rank and station. He avers that he asked this man "are you John O'Rourke?" to which the man replied "yes", that he then asked him "did you formerly live at 4, Keppel Road, Manchester, M21 OAT, England, to which the man replied "yes I did", that he had in his possession 6 warrants for his arrest, that he informed him of the purpose of the said warrants and explained to him the nature of the charges, that he showed him the original Warrants, Affidavits and Certificates and pointed out to him where the Warrants had been endorsed by an Assistant Commissioner of An Garda Siochana for execution within the State, that he informed him that he was arresting him on foot of the 6 warrants which he had in his possession and did so at 10.45 am on the 9th January 2003 at DEKA International by placing his right hand on his left shoulder, that he cautioned the said John O'Rourke by saying to him "You are not obliged to say anything unless you wish to do so, but whatever you say will be taken down in writing and may be given in evidence", that he then pointed out to him the reference to Bank of Ireland contained in the warrants and asked him "did you work at that Bank? To which he replied "yes, I worked there for two years", that he then read over to him the warrants and accompanying documentation and served him with a true copy of the warrants, affidavits and certificates which he had in his possession, and that he then conveyed him to Donnybrook Garda Station where he was processed as an arrested person, and that he

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then brought the said John O'Rourke to the High Court where he gave evidence of having executed the warrants by arresting him, and that he endorsed the rear of the warrants as having been executed by him and that he handed the original warrants, certificates and affidavits into court where they were retained on the court file.

Those documents are now before me, and include the said documentation relating to Warrants E and F upon which the order is now sought.

I am satisfied that the minimum gravity requirement set forth in section 42(2) of the Extradition Act, 1965, as inserted by section 26 of the Extradition (European Union Conventions) Act, 2001 is satisfied in respect the charges referred to in warrants E and F, by the Certificates E and F produced to the Court and which are signed by a Senior Principal Court Clerk of Manchester City Magistrates' Court and each of which is dated 20th December 2000. No argument has been addressed to the contrary on this application by Counsel for the respondent.

Counsel for the applicant, John Finlay SC has referred the court to the decision of Henchy J. in Hanlon v. Fleming [1981] IR 489 wherein it is stated at page 495 that when considering the question of whether the offence with which the respondent has been charged corresponds with an offence in this jurisdiction, 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 near entirety, would constitute an offence, which, if committed in this State, could be said to be a corresponding offence of the required gravity.

Counsel for the applicant has submitted that the offences with which the respondent is charged in England, namely obtaining money transfers for himself or another by deception, namely by falsely representing that Bank Giro Transfers were good and valid orders, correspond to the offence of obtaining money by false pretences contrary to section 32 (1) of the Larceny Act, 1916 (as amended), those amendments being only as to penalty. The Court has been referred to Charlton on Criminal Law at paragraphs

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10.111, 10.114, and 10.125 where the ingredients of the said offence in this jurisdiction are set forth and examined, and it is therefore submitted that in all material respects the offences charged on the warrants correspond with the offence under section 32 (1) of the Larceny Act 1916. It has also been pointed out to the court that the warrants in this case were not received in this jurisdiction not later than January 2001, and that therefore the Criminal Justice (Theft and Fraud Offences) Act, 2001 is not applicable.

Counsel for the respondent, Remy Farrell BL indicated at the commencement of his submissions that he did not propose to deal with arguments regarding the correspondence of the offences charged at this point in time, preferring to do so on any subsequent application that might be made under section 50 of the Extradition Act, 1965. Counsel for the applicant indicated that he did not accept that it was open to the respondent to do that. It is not necessary for me to express a view on that matter and I do not do so at this stage.

Mr Farrell's submission is that on the hearing of this application before me the applicant has failed to properly identify the respondent as the person named in the Warrants, and that accordingly, the respondent is not properly before the court for the purposes of this application. He points out that the applicant has chosen to proceed by way of affidavit, and not by oral evidence, and that this presents certain difficulties. It is submitted that the court must take the documents at face value, only if it is established that these warrants are in fact the warrants which were in the possession of the Gardai at the time of execution. He submits that these documents have not been put before the court in the manner in which they should have been, and that they have not been exhibited in the affidavit of Sgt. Heffernan to which I have referred, but have only been referred to.

Counsel also has submitted that there has been no identification of the respondent by any person in court, when this application was moved, to show that he is the person who was arrested on 9th January 2003, and that this court cannot simply rely on any identification that may have been given when the respondent was first brought before the court at any earlier stage of these proceedings.

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Mr Finlay in response pointed out that Sgt. Heffernan, the arresting officer was not available on the date of hearing of this application, and that when the date for hearing was fixed by the court this fact was known and made known to the respondent's legal team, and that no indication was given to the applicant that any point was going to be taken in this regard. He points to the fact that the affidavit evidence of Sgt. Heffernan has not been challenged, and that in the absence of any challenge, the court is entitled to accept that affidavit as sufficient evidence that the respondent has been identified as the person named in the warrants and the person before the court. He submits that there is no requirement that somebody come to court on every occasion that the matter is listed in order to again identify the respondent, that already having been done by oral evidence when the respondent was brought before the court following his arrest. It is also pointed out that the respondent was subsequently admitted to bail, and has appeared in court on each occasion since that date in accordance with the terms of his bail.

I am satisfied- that the respondent's point must fail, in spite of the very able submission made by Mr Farrell. The fact is that following his arrest by Sgt. Heffernan the respondent was brought before the court as soon as may be after his arrest, as is required by the provisions of section 26 (5) of the Extradition Act, 1965, as inserted by section 7(b) of the Extradition (Amendment) Act, 1994. It is only when the court on that occasion is satisfied that the respondent is properly before the court that he can be remanded to a subsequent date, and thereafter from time to time as may be necessary, pending the hearing of the application for an order under section 47 of the Extradition Act, 1965. The court having been so satisfied on the first occasion when the arrested person is brought before the court, it is not necessary for the arrested person to be again formally identified in the absence of any evidence being adduced, or even submission made, that he is not in reality the person the subject of the warrants on foot of which the extradition is being sought. In this case the affidavit of Sgt. Heffernan is completely sufficient, in the absence said to the contrary, to satisfy me that the respondent in this case is the person named in warrants E and F, and who was brought before the court following his arrest on the 9th January 2003.

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I should also refer to the Practice Direction by the President of the High Court dated 20th March 2002 which was made following the passing of the Extradition (European Union Conventions) Act, 2001. The final paragraph of this Practice Direction states that "Proceedings under the Extradition Acts 1965 to 2001 shall be heard on affidavit so however that in urgent cases or if the interests of justice so require oral evidence may be received". If I were satisfied that some case was being put forward by the respondent that he is not the person named in the warrant, or if the question of his identification was an issue which the interests of justice required that I hear oral evidence, or if it was felt necessary or desirable that Sgt. Heffernan be available for cross-examination on his affidavit, I of course would have a discretion to have that witness made available for examination, but I am not satisfied that in the present case, the interests of justice so require.

Accordingly, I am satisfied that the statutory procedures have been complied with regarding the respondent being properly before the court, and also that in respect of the charges with which his extradition is sought, the minimum gravity requirement has been satisfied, and that the offences set forth in the warrants correspond to similar offences in this jurisdiction as submitted by Counsel for the applicant.

I therefore grant an order under section 47 of the Extradition Act, 1965 for the delivery of the respondent into the custody of a member of the Police Force of the place in which the warrants were issued, namely the Greater Manchester Police, for conveyance to that place, and I remand him in custody until so delivered.