Attorney General v Dyer

JurisdictionIreland
CourtSupreme Court
JudgeFENNELLY J.
Judgment Date16 January 2004
Neutral Citation[2004] IESC 1
Docket Number[S.C. No. 150 of 2003]

[2004] IESC 1

THE SUPREME COURT

Keane C.J.

Fennelly J.

McCracken J.

Record No. 150/03
AG v. DYER

BETWEEN

THE ATTORNEY GENERAL
Applicant/Respondent

and

SCOTT DYER
Respondent/Appellant

Citations:

EXTRADITION ACT 1965 PART III

EXTRADITION ACT 1965 S47(2)

EXTRADITION (EUROPEAN UNION CONVENTIONS) ACT 2001 S26

EXTRADITION ACT 1965 S42(2)

EXTRADITION ACT 1965 S42(3)

LARCENY ACT 1916 S32

LARCENY ACT 1990 S9

CRIMINAL JUSTICE ACT 1951 S10

CRIMINAL JUSTICE (ADMINISTRATION) ACT 1924

EXTRADITION ACT 1965 S47(5)

FURLONG, STATE V KELLY 1970 IR 132

THEFT ACT 1968 S8 (UK)

EXTRADITION ACT 1965 S47

EXTRADITION ACT 1965 PART II

EXTRADITION ACT 1965 S10(3)

WYATT V MCLOUGHLIN 1974 IR 378

WILSON V SHEEHAN 1979 IR 423

R V METROPOLITAN POLICE COMMISSIONER, EX-PARTE ARKINS 1966 1 WLR 1593

HANLON V FLEMING 1981 IR 489

Synopsis:

CRIMINAL LAW

Extradition

Double criminality - Criminal fraud - Part III of the Extradition Act, 1965 - Corresponding offences- Whether it is necessary to consider the alleged acts of the prisoner or the legal elements of the offence in determing corresponding offences - Extradition (European Union Conventions) Act, 2001 (150/2003 - Supreme Court - 16/1/2004)

Attorney General v Dyer - [2004] 1 IR 40 - [2004] 1 ILRM 542

Facts: The appellant was brought before the High Court, pursuant to the provisions of Part III of the Extradition Act, 1965 for an order that he be delivered by way of extradition to the police of the Island of Jersey on foot of a number of warrants issued in that jurisdiction, relating to offences which have been described as criminal fraud. The appellant argued that the offence specified in the warrants did not correspond with an offence pursuant to the law in this State. Two statutory offences were offered by the Attorney General as candidates for the role of corresponding offence. Those offences were contained in Section 32 of the Larceny Act, 1916 and also Section 10 of the Criminal Justice Act, 1951. The alleged corresponding offences required that they be committed with intent to defraud and the Attorney General conceded that an indictment grounding a prosecution for such an offence must allege intent to defraud. An affidavit was sworn by Michael St. John O'Connell, who described himself as an Advocate of the Royal Court of the Island of Jersey, which stated that in order to establish criminal fraud in Jersey the prosecution was required to demonstrate 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. Mr St John O'Connell said that Jersey law was clear that the intent to defraud was defined in this manner. He also stated that there was no requirement in Jersey law to set out the requisite mens rea in the indictment. The appellant argued that the affidavit of Mr St. John O'Connell should not have been considered, as he had not established that he was a competent expert in the law of Jersey. The appellant also alleged that the President of the High Court was not entitled to have regard to the evidence of Mr St John O'Connell for the purpose of explaining the need to prove intent to defraud in the law of jersey and thus determining the issue of correspondence. Furthermore the appellant submitted that the evidence of Mr St John O'Connell in that regard did not demonstrate that the appellant was charged, as an element of the offences, with having an intent to defraud. The President of the High Court, Finnegan P., made an order delivering the appellant by way of extradition to the police of the Island of Jersey. The appellant has appealed against this order on the same grounds he relied upon in the High Court.

Held by the Supreme Court (Keane C.J., Fennelly, McCracken JJ) in allowing the appeal and substituting an order dismissing the application of the Attorney General:

1. That there was no merit to the argument regarding the competency of Mr St. John O'Connell. He deposed that he had been an Advocate of the Royal Court of the Island of Jersey since 1987 and a Crown Advocate since 1999. The learned President was correct in holding that "advocate" is a word in ordinary use in the English language and accordingly in the absence of contrary evidence that was sufficient to qualify Mr St John O'Connell as an expert in the law of Jersey.

2. That the substantive point in this case was whether the warrants, coupled with the evidence of Mr St John O'Connell, constituted sufficient proof that the offences with which the appellant was charged corresponded with offences under Irish law. In that regard it was necessary to determine whether the inquiry as to correspondence was concerned with the juristic character of the offence or the facts alleged, and also what material the courts were entitled to consider when deciding that issue.

3. That the basic proposition in relation to establishing a corresponding offence is that the Irish court should look at the acts alleged against the prisoner as opposed to inquiring into the legal elements of the offences created under the laws of the respective jurisdictions. It is the essential factual ingredients that determine whether two offences have the necessary correspondence. It is necessary for the specification of the offence in the warrant to go further than simply stating the name of the offence and identify the offence by reference to the factual components relied on. It is only by looking at those components that a court in this State can decide whether the offence so specified would constitute, if committed in this state, a corresponding criminal offence of the required gravity.

4. That normally ,words used in an extradition warrant will be given their ordinary meaning. In some cases, however, the word used in the requesting jurisdiction may be unfamiliar to Irish law and in such a situation it would clearly be necessary to have evidence of the law of the requesting state to explain that word. In the present case the evidence of Mr St John O'Connell was receivable to explain that the common law of Jersey, when used in a warrant for criminal fraud, encompassed the notion of intent to defraud.

That the evidence of Mr St John O'Connell illustrated that in Jersey it was not necessary to allege intent to defraud in a warrant or in an indictment because a charge of committing the offence of criminal fraud carries with it the necessary implication that the accused person was alleged to have had the intent to defraud or to cause actual prejudice. In the present case, however, none of the warrants contained the expression, "criminal fraud" and Mr St John O'Connell did not anywhere in his affidavit refer to the actual warrants at issue in this case. Accordingly none of the documents, either singly or collectively, demonstrated that the appellant was charged with an offence of which intent to defraud was an element. Accordingly in the absence of any allegation either expressly or by implication of intent to defraud the warrants in the present case did not satisfy the requirements of Part III of the 1965 Act in respect of correspondence of offences.

Reporter: L. O'S.

1

JUDGMENT delivered on the 16th day of January 2004 by FENNELLY J.

2

This appeal concerns the issue of double criminality in an extradition case. The Appellant was brought before the High Court, pursuant to the provisions of Part III of the Extradition Act, 1965for an order that he be delivered by way of extradition to the police of the Island of Jersey on foot of a number of warrants issued in that jurisdiction. The President of the High Court, Finnegan P, in a judgment dated 26 th March 2003, made the orders sought.

3

The judicial authorities of Jersey issued twenty seven warrants for offences which have been described as criminal fraud, though that description does not appear on the face of thewarrants. Twenty four of these were in similar form and identical legal issues were raised. One was for an attempt to commit a similar offence. It was not contested that an attempt to commit a corresponding offence would correspond to an offence contrary to Irish law; no issue concerning this arises on the appeal. The Attorney General did not pursue the application in respect of the remaining two warrants. Thus orders were made on foot of twenty five warrants.

4

The following statement taken from one of the warrants is sufficiently representative of the twenty five for the purposes of the legal issues which are raised. It is alleged that the appellant:

"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."

5

The principle of double criminality is stated by section 47(2) of the Extradition Act, 1965as follows:

"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 sixmonths."

6

The Act of 1965 contained no further definition of the notion ofcorrespondence.However, section 26 of the Extradition (European Union Conventions) Act, 2001inserted the following subsection into section 42 of the Act of1965:

7

2 "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,...

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