Ag v Burns

JurisdictionIreland
JudgeDenham J.
Judgment Date06 December 2004
Neutral Citation[2004] IESC 99
CourtSupreme Court
Date06 December 2004
Docket NumberNO. 06/2004

[2004] IESC 99

THE SUPREME COURT

DENHAM J.

HARDIMAN J.

McCRACKEN J.

NO. 06/2004
AG v. BURNS
IN THE MATTER OF SECTION 2 OF THE SUMMARY JURISDICTION ACT 1857
IN THE MATTER OF THE COURTS (SUPPLEMENTAL PROVISIONS) ACT1961 to 1991
IN THE MATTER OF THE EXTRADITION ACTS1965 to 2001
BETWEEN/
ATTORNEY GENERAL

AND

ROBERT BURNS
APPELLANT

Citations:

EXTRADITION ACT 1965 S29(1)

WYATT V MCLOUGHLIN 1974 IR 378

EXTRADITION ACT 1965 S25

EXTRADITION ACT 1965 (APPLICATION OF PART II) ORDER 2000 SI 474/2000

R V GOVERNOR OF PENTONVILLE PRISON EX-PARTE LEE 1993 1 WLR 1294

NIELSEN 1984 70 CAR 1

EXTRADITION ACT 1965 S29

SUMMARY JURISDICTION ACT 1961

COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961 S51

FEDERAL SENTENCING GUIDELINES (US)

FEDERAL SENTENCING GUIDELINES IA (US)

US V ANDONIAN 29 F 3D 1432

US V LABARON UNREP 16.10.1998 5TH CIRCUIT COURT APPEALS

US V LAZAREVICH 147 F 3D 1061

EXTRADITION ACT 1965 S20

SUMMARY JURISDICTION ACT 1857 S2

COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961 S51(1)

EMERSON V HEARTY & MORGAN 1946 NI 35

MITCHELSTOWN CO-OPERATIVE SOCIETY V COMMISSIONER FOR VALUATION 1989 IR 210

EXTRADITION TREATY BETWEEN IRELAND & UNITED STATES 1983 ART XI

Denham J.
1

1. This is an appeal by Robert Burns, the appellant, hereinafter referred to as the appellant, from the order and judgment of the High Court (O'Caoimh J.) delivered on 10thday of December, 2003.

2

2. The appellant is sought by the authorities of the United States of America so that he may be prosecuted for health care fraud, money-laundering and conspiracy to commit health care fraud. The District Court made an order under s. 29(1) of the Extradition Act,1965, which was confirmed by the High Court

3.Case Stated
3

3.1 The matter came before the High Court by way of case stated from a decision of the District Court (Judge Conal Gibbons) made on the 25th June 2002, on the application in writing of the appellant, he being dissatisfied with the determination of the District Court Judge as being erroneous on point of law.

4

3.2 The case stated recited the facts, as follows. The matter came before Dublin Metropolitan District Court on the 10th June 2002 and on the following days on an application by the Attorney General for the extradition of the appellant to the United States of America pursuant to the provisions of the Extraditions Act 1965, as amended. The application was on foot of a request from the Government of the United States of America dated 18th January 2002, together with supporting documentation furnished to the District Court, and a further letter from the United States Government dated the 29th January 2002. The extradition of the appellant was sought in respect of counts number 1 to 14 and counts number 26, 28 and29 of the indictment, which indictment formed part of the supporting documentation.

5

3.3 The case stated set out that the appellant was arrested by Detective Sergeant Heffernan of the Extradition Section, Garda Headquarters, on the 14th January 2002 at Howth Summit, Howth, in the County of Dublin, on foot of a provisional warrant of arrest issued by the District Court on the 12th January 2002, pursuant to the provisions of the Extradition Act,1965. The appellant was taken initially to Howth Garda Station where he gave his name and address and ultimately was taken to the Bridewell Garda Station and later to the District Court which remanded him in custody from time to time.

6

3.4 The case stated set out the evidence adduced at the hearing. This included the evidence of Mr. Robert Adams, a trial lawyer in the United States Department of Justice Criminal Division, Fraud Section. He gave evidence to the District Court that all of the offences on which the appellant's extradition was sought had occurred in the United States of America, that they had no political connotations, that they were not revenue offences, and that they did not attract the death penalty. He said that no charges were pending against the appellant in any other country in respect of these offences. He indicated that the appellant had a United States passport and appeared to have been born in the United States of America. He conceded that he had never seen the appellant before. He confirmed that Mr. Ashcroft and Mr. Powell, who were named in the supporting documents, were cabinet level officers appointed by the President of the United States of America and as such were equivalent to a Minister in the Irish Government. Mr. Adams gave evidence on cross examination to which I shall return. Mr Mark Finkelbinder also gave evidence of identification of the appellant. Identification is not an issue in this appeal.

7

3.5 Submissions were made, by counsel for the appellant and the Attorney General, to the District Court and these were set out in detail in the case stated.

8

3.6 The District Court Judge stated that he being of the opinion that:

9

(a) The offences upon which the appellant's extradition was being sought met the test of dual criminality as set out in the case ofWyatt v. McLoughlin [1974] IR 378 and that they were offences on the day on which the extradition request was made,

10

(b) all the documents required by Section 25 of the Extradition Act1965had been furnished,

11

(c) Statutory Instrument 474 of 2000 applied Part II of the Extradition Act1965to the United States of America,

(d) I was satisfied of the documents of authenticity,
12

(e) the appellant had been clearly identified as the person to whom the indictment referred,

13

(f) I was satisfied on the evidence of Mr. Adams that the offences were not revenue offences,

14

(g) I was entitled to proceed on the basis of the assumption that the requesting state was acting in good faith and the fugitive would receive a fair trial in the courts of the requesting State, seeR v. Governor of Pentonville Prison, ex-parte Lee [1993] 1 WLR 1294 at p.1300,

15

(h) that it is appropriate for the Court to state that under Section 26 of the Act, the Minister has a function in the process in that he might draw the attention of the requesting State to the issue of the defendant being exposed to greater penalty in the requested State than that applicable in this jurisdiction or indeed other matters as referred to herein as mentioned in the decision ofGoff L.J. in the case of Nielsen [1984] 79 CR. APP R. 1,

16

(i) the questions raised by the appellant concerning the application of the rule of specialty by the Courts of the United State of America did not go far enough and I was satisfied that the rule of specialty applies in the instant case and that the appellant's rights in that regard are enshrined in the laws of the United State of America and he could apply to Court to remedy any breach of his rights in this regard,

17

(j) the extradition of the appellant was properly requested in accordance with Section 29 of the Extradition Act1965, Part II of the said Act applies in relation to the requesting country (United State of America), the extradition of the appellant was not prohibited and the relevant documents required to support a request for extradition under Section 25 of the Extradition Act1965had been produced.

18

(k) on this basis the District Court made an order as sought under Section 29 of the Act 1965.

19

The District Court then stated:

"The opinion of the High Court is respectfully sought as to whether upon the foregoing facts, I was correct in holding against the appellant on each of the eleven submissions made by him and whether my determination was correct in point of law".

4.The High Court
20

The case stated was heard by the High Court and judgment delivered on 10th December, 2003. The High Court ordered that the judge of the District Court was correct in point of law in holding against the appellant on each of the eleven submissions made on his behalf.

5.Grounds of Appeal
21

The appellant has appealed against the findings and determination of the High Court. The grounds of appeal were as follows:-

22

1. The learned High Court Judge erred in law and/or in his discretion in proceeding to hear the appeal by way of case stated when the appellant was not legally represented.

23

2. The learned Judge erred in law in the holding that the District Court was entitled to hold that there was evidence upon which it could be satisfied that the offences for which extradition was sought were offences within the United State of America on the 18thJanuary 2002.

24

3. The learned Judge erred in law in holding that the District Court was entitled to hold that such offences were not revenue offences.

25

4. The learned Judge erred in law in holding that the District Court was entitled to hold that the limitation period for the conspiracy charges ran from the date of the last alleged act, and in holding that the District Court was entitled to hold that the appellant had not become immune from prosecution.

26

5. The learned Judge erred in law in holding that the District Court was entitled to hold that the United States Courts comply with the rule of specialty.

27

6. The learned Judge erred in law in holding that the District Court was entitled to hold that the offences the subject of the extradition application were corresponding offences with any offences in this state.

28

7. The learned Judge erred in law in holding that the District Court was correct to hold that the Statutory Instrument474/2000 applied Part II of the Extradition Act to the United States.

29

8. Such further on other grounds as may by leave of this Court be argued.

6.New Grounds of Appeal
30

At the commencement of the appeal Mr. Michael Forde, S.C., counsel for the appellant, sought to adduce new grounds of appeal. I am satisfied that new grounds of appeal should not be considered by this Court for two reasons. First, this is an appeal on a case stated from the District Court. The facts were found by the District Court. On these facts, at...

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2 cases
  • Attorney General v Damache
    • Ireland
    • High Court
    • 21 May 2015
    ...[not applicable]." 3 3 7.4.2. The written submissions for Mr. Damache relied upon the Supreme Court decision in Attorney General v. Burns [2004] IESC 99 and the doctrine of stare decisis and asked the Court to distinguish the decision of the High Court (Peart J.) in Attorney General v. Russ......
  • Attorney General v Davis
    • Ireland
    • High Court
    • 12 August 2016
    ...on Extradition between Ireland and the U.S. 55 The respondent relies upon the decision of the Supreme Court in Attorney General v. Burns [2004] IESC 99 which arose from a case stated to the High Court in which the Federal Sentencing Guidelines were considered. It is an important feature of......

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