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You are here: BAILII >> Databases >> Supreme Court of Ireland Decisions >> Minister for Justice Equality and Law Reform -v- Dolny [2009] IESC 48 (18 June 2009)
URL: http://www.bailii.org/ie/cases/IESC/2009/S48.html
Cite as: [2009] IESC 48
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Judgment Title: Minister for Justice Equality and Law Reform -v- Dolny Composition of Court: Denham J., Kearns J., Macken J. Judgment by: Denham J. Status of Judgment: Approved
Outcome: Dismiss | ||||||||||||||
THE SUPREME COURT [Appeal No: 360 of 2008]
Kearns J. Macken J. Between/ The Minister for Justice, Equality & Law Reform Applicant/Respondent and Damian Dolny Respondent/Appellant
1. This is an appeal by Damian Dolny, the respondent/appellant, hereinafter referred to as "the appellant", from an order of the High Court (Peart J.) made on the 23rd October, 2008, pursuant to s.16 of the European Arrest Warrant Act, 2003, that he be surrendered to such persons duly authorised to receive him on behalf of the Republic of Poland. 2. In the High Court two points of objection were raised. First, that the warrant failed to specify adequately the offence to which the warrant relates, or the nature and classification of the offence under the law of the State. Secondly, that the offence for which the appellant was convicted on the 14th March, 2004 does not correspond to any offence under Irish law. 3. In the European arrest warrant , at paragraph E, it is stated:- "E. Crime (crimes): of the penal code. Art. 156 § 1 of the penal code "Any person who causes grievous bodily harm resulting in: (1) depriving another person of his/her eyesight, hearing, speech or renders him unable to produce offspring, (2) another serious disability, serious incurable or long lasting illness, illness which constitutes a real threat to his/her health, lasting mental illness, total or considerable disability to work in his/her profession or lasting disfigurement or deformation of the body, is liable to be sentenced to between one and 10 years' deprivation of freedom." Art. 157 § 1 of the penal code "Any person who causes impairment of the functioning of a bodily organ or a disturbance of health, other than that defined in art. 156 § 1, is liable to a penalty of deprivation of freedom between 3 months and 5 years." 5. At paragraph E.2. the warrant states:- "E.2. A detailed description of the act or acts not included in E.1: On 20th June 2004 in Krzyz Wlkp,. Wielkopolska district, acting together and in collaboration with Mr Rafal Berger and Mr Tomasz Wyrwa, he beat Mr Andrzej Lnka by hitting him on the face and head with his fists, thereby causing injury to his body in the form of a contused wound in the left suborbital area and a contused wound in the area of the right superciliary ridge - thus exposing him to the direct danger of sustaining grievous detriment to his health. 6. At paragraph F of the warrant it is stated as follows:-
During the probationary period - that is on 6th May 2006 the convict perpetrated further criminal acts (under art. 158 § 1 of the penal code - beating), for which the District Court in Trzcianka sentenced him to 10 months' deprivation of freedom on the strength of its enforceable judicial decision dated 11th August 2006 - case No. VI K 279/06 - by his act Mr Damian Dolny flagrantly breached the established legal order. Pursuant to art. 75 § 1 of the penal code "The Court orders the execution of the penalty if the convict has committed during the probationary period a similar intentional criminal act for which he was sentenced to a penalty of deprivation of freedom. § 2. The Court can order the execution of a penalty if the convict, during the probationary period, flagrantly infringes upon the legal order, in particular if he has perpetrated a criminal act other than that defined in § 1 or if he evades paying fines or if he evades supervision or if he fails to perform the obligations or punitive measures imposed on him." The High Court held that it was clear which offence was committed by the appellant, that the facts were clear, as was the classification of the code by reference to "beating". The learned High Court judge held that the words "beating or battery" were an adequate description of the offence. The learned trial judge pointed out that the appellant was present for his trial and can be taken to be aware of precisely what offence he was charged. Counsel for the Minister for Justice, Equality and Law Reform, ("the Minister"), submitted to the High Court that the offence for which the appellant was convicted in Poland corresponds to an offence in this jurisdiction of "assault causing harm" contrary to s.3(1) of the Non-Fatal Offences Against the Person Act, 1997, ("the Act of 1997"). Counsel for the appellant referred to s.2(1) of the Act of 1997, said it applied, and submitted that the description of the offence did not include all the necessary ingredients. The learned High Court judge held that the corresponding offence was that under s.3 of the Act of 1997. 8. Appeal The appellant has appealed against the determination of the High Court. While there are eight grounds in the notice of appeal, in essence there were two principle grounds alleged, and they are interrelated. First, it was submitted that there are insufficient particulars stated on the European arrest warrant, that the surrounding events are not described. Secondly, it was submitted that there is no corresponding offence; which it is alleged arises also because of the insufficiency of the particulars. 9. Submissions Micheál P. O'Higgins, S.C., on behalf of the appellant, submitted that the learned trial judge had erred and that the appeal should be allowed. He submitted that there are insufficient particulars on the warrant. Further, that the offence does not correspond to an offence in this State, and in particular does not correspond to an offence under s.3 of the Non Fatal Offences against the Person Act, 1997. He submitted that the learned High Court judge had erred in holding that the offences of assault in s.2 of the Act of 1997 and of assault causing harm in s.3 of the Act are separate and distinct offences and that it is not the case that s.2 is intended to define the concept of assault for all purposes of the Act. He submitted that the learned High Court judge erred in holding that there was no requirement that whatever is done is done intentionally or recklessly, and is done without the consent of the other person, and that it is done without lawful excuse. It was submitted that an appropriate test in deciding whether or not the requirement of correspondence has been met is for the Court to consider whether or not there is sufficient detail in the warrant to draft a valid indictment in this jurisdiction for the prosecution of the corresponding offence. Counsel submitted that neither the warrant nor any of the additional documents contain sufficient details to enable the preparation of an indictment, alleging assault causing harm contrary to s.3 of the Act of 1997. It was submitted that three ingredients are missing from the particulars. 10. On behalf of the Minister for Justice, Equality and Law Reform, ("the Minister"), Robert Barron, S.C. made submissions to the Court. Counsel addressed the two matters in issue. As to the first, that the European arrest warrant had failed to specify adequately the offence, counsel referred to the natural and ordinary meaning of the words in the warrant, and submitted that the learned High Court judge had been correct. It was submitted that the particulars of the acts described in the warrant are such that the offence of assault causing harm is disclosed. Further it was submitted that correspondence pursuant to s.5 of the European Arrest Warrant Act 2003 was made out. 11. Statutory offence The corresponding offence arises under the Non-Fatal Offences Against the Person Act, 1997. Section 2 provides that:- "(1) A person shall be guilty of the offence of assault who, without lawful excuse, intentionally or recklessly— (a) directly or indirectly applies force to or causes an impact on the body of another, or (b) causes another to believe on reasonable grounds that he or she is likely immediately to be subjected to any such force or impact, without the consent of the other." "(1) A person who assaults another causing him or her harm shall be guilty of an offence." "Harm" is defined in the Act of 1997 as "harm to body or mind and includes pain and unconsciousness". 12. Particulars The terms of the European arrest warrant are set out fully earlier in this judgment. It is necessary to consider them to analyse the ground of appeal that there were inadequate particulars. As is clearly stated on the warrant the offence is that the appellant beat a person by hitting him on the face and head with his fists thereby causing him injury to his body in the form of the described injuries. There is a detailed description of the acts alleged, set out in paragraphs E and E2 of the European arrest warrant. I am satisfied that the High Court did not err in its decision on this matter. There were sufficient particulars on the warrant upon which the learned trial judge could reach his determination. The issue of the particulars and correspondence are interrelated, and I shall consider both matters when analysing the question of a corresponding offence. 13. Correspondence The High Court held that the relevant offence in this state is that provided for in s.3 of the Non-Fatal Offences Against the Person Act, 1997, and that s.2 is not intended to define the term "assault" for all purposes in the Act of 1997. The learned High Court judge held:-
Section 3 provides for a freestanding offence of ‘assault causing harm’, as opposed to a simple assault. In order to be guilty of this offence a person must have carried out an assault and must have caused ‘harm’ as defined in s.1 of the 1997 Act. In such an offence it is not part of the offence that it occurs without the consent of the victim. That is clear from the plain meaning of the words used in the section. In s.3, the word ‘assault’ is not used as a term of art by reference to the provisions of s. 2, or by reference to any statutory definition of that word. The Concise Oxford Dictionary definition of ‘assault’ is “a violent physical or verbal attack”. That is the meaning to be given to the word ‘assault’ for the purpose of the s.3 offence. I note in passing that the offence 'assault causing serious harm' under s.4 of the 1997 Act, again includes a mental element, namely, that the offence occurs where 'a person intentionally or recklessly causes serious harm to another'. The requirement that the assault be without the consent of the victim, or that there be any mental element is distinctly absent from the express provisions of the s.3 offence of assault causing harm. In my view the facts as outlined in the warrant and which resulted in the conviction of the [appellant] in Poland, come within the words used in s.3 of the 1997 Act in order to create that offence, and in these circumstances, correspondence in accordance with s.5 of the Act, and I am satisfied also that the minimum gravity requirement is satisfied also, since the offence is punishable by a fine, or by a sentence of imprisonment of up to five years imprisonment, or both. For these reasons, I am satisfied that this point of objection also fails." 14. In addressing the issue of correspondence it is necessary to consider the particulars on the warrant, the acts, to decide if they would constitute an offence in the State. In considering the issue it is appropriate to read the warrant as a whole. In so reading the particulars it is a question of determining whether there is a corresponding offence. It is a question of determining if the acts alleged were such that if committed in this jurisdiction they would constitute an offence. It is not a helpful analogy to consider whether the words would equate with the terms of an indictment in this jurisdiction. Rather it is a matter of considering the acts described and deciding whether they would constitute an offence if committed in this jurisdiction. 15. Section 5 of the European Arrest Warrant Act, 2003 as amended, provides for the process of correspondence, as follows:- "For the purposes of this Act, an offence specified in a European arrest warrant corresponds to an offence under the law of the State, where the act or omission that constitutes the offence so specified would, if committed in the State on the date on which the European arrest warrant is issued, constitute an offence under the law of the State." 16. The Court is required to consider the information relating to the acts, set out in the warrant, to determine whether correspondence exists. In this case Peart J. held that correspondence was made out. I agree with that decision. 17. The words on the warrant are plain: "beat … on the face and head with his fists … causing injury to his body …" The natural and ordinary meaning of the words is clear. There is well established jurisprudence on the approach to be taken to the words in warrants under the Extradition Act, 1965 as amended. Thus in Wilson v. Sheehan [1979] I.R. 423 at p. 429 Henchy J. stated:- "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." In that case the warrant had alleged that the requested person "… did rob Michael Barker of £281 in cash and immediately before doing so used force, to wit personal violence, on the said Michael Barker." Henchy J. held at p.430 that:- "Since the word "rob" in ordinary usage means "deprive a person of property unjustifiably by force," all the District Justice had to decide was whether the charge in the warrant that the plaintiff had robbed a person of money, using personal violence to that person immediately before doing so, would constitute an offence if the same conduct were charged in an indictment in this state." I am satisfied that a similar approach may be taken to the words on a warrant issued under the European Arrest Warrant Act, 2003, as amended. Thus a court may look at all the information provided, the facts and acts described, and give to words their ordinary and popular meaning. 18. I have no doubt that the acts alleged, beating the named person by hitting him on the face and head with fists, thereby causing injury to his body, are ordinary words which describe acts which would constitute an offence if committed in this jurisdiction. I would affirm the finding of the learned High Court judge on this issue also. 19. Conclusion For the reasons given I would dismiss the appeal and affirm the judgment and order of the High Court. | ||||||||||||||