Attorney General v P.O.C

• Jurisdiction: Ireland
• Judge: O'Sullivan J.
• Judgment Date: 27 July 2005
• Neutral Citation: [2005] IEHC 289
• Court: High Court
• Docket Number: [2003 No.22 EXT & 2004 No. 257 JR]
• Date: 27 July 2005

AG v O'C (P) & C (P) v AG

BETWEEN

THE ATTORNEY GENERAL

APPLICANT

AND

P.O.C.

RESPONDENT

AND

JUDICIAL REVIEW

BETWEEN

P.C.

APPLICANT

AND

THE ATTORNEY GENERAL

RESPONDENT

[2005] IEHC 289

[Record No. 22 EXT/2003]

[Record No. 257 JR/2004]

THE HIGH COURT

AG v PARKE UNREP SUPREME 6.12.2004 2004/3/577

EXTRADITION ACT 1965 S18

MCMAHON v LEAHY 1984 IR 525

PEOPLE v FARRELL 1978 IR 13

EXTRADITION ACT 1965 S37(3)

COLEMAN v O'TOOLE 2003 4 IR 222 2004 1 ILRM 389

C (P) v DPP 1999 2 IR 25L (P) v BUTTIMER & DPP UNREP SUPREME 20.12.2004 2004/27/6186

C, STATE v FRAWLEY 1976 IR 365

ELLIS v O'DEA 1990 ILRM 87 1989 IR 530

B (M) v CONROY (ASSISTANT COMMISSIONER) 2001 2 ILRM 311

EXTRADITION ACT 1965 S50(1)(bbb)

BOURKE v AG 1972 IR 36

R v GOVERNOR OF BRIXTON PRISON EX PARTE ARMAH 1968 AC 192 1966 3 WLR 828

TRIMBOLE v GOVERNOR OF MOUNTJOY PRISON 1985 ILRM 465 1985 IR 550

BENNETT v HORSEFERRY ROAD MAGISTRATES' COURT 1993 ALL ER 138

ZOE DEVELOPMENTS v DPP & NATIONAL AUTHORITY FOR OCCUPATIONAL SAFETY & HEALTH UNREP SUPREME 3.3.1999 1999/25/8085

MCMAHON v LEAHY 1984 IR 525

1 O'Sullivan J. delivered the 27th day of July, 2005

Introduction

2 In this judgment, I am dealing with two cases namely an application by the Attorney General in the first case for an order extraditing P.O.C. to the State of Arizona in the United States and an application by the latter in the second case for a perpetual injunction restraining such extradition.

3 For convenience I will refer to the applicant throughout this judgment as "the Attorney General" and to P.O.C. as "the applicant".

4 Following an initial hearing in April 2005 I was requested to postpone judgment pending a further hearing into further information which came to light on the morning I intended delivering judgment. Having held that further hearing, I have decided to deliver my judgment in the form originally intended, but with an added postscript covering the additional information.

Background

5 The applicant is a Roman Catholic Priest accused of three incidents of sexual abuse with a minor, then ten years old, which allegedly occurred in the last three months of 1978 at a time when the minor was an altar boy, and comprising allegations of oral sexual contact, attempted oral sexual contact and anal intercourse.

6 The first time the complainant made known these allegations to any law enforcement authority in Arizona was on 12 ^th December, 2002 when he was thirty-four years old and following a television programme from which he learnt that similar allegations against the applicant made by another complainant were dismissed because of the statute of limitations. The present complainant says that he then decided to contact the Maricopa County Attorney about "what happened to me".

The extradition case

7 In A.G. v. Parke (Unreported, 6 ^th December, 2004) Murray C.J. made the following observations (p.8) in relation to the extradition process in this country:-

"The role of the trial judge in an application for an order of extradition is unique. The hearing is not a criminal trial, in the adversarial sense where the State must prove the guilt of the accused beyond all reasonable doubt. Nor is it a civil case between two parties. It is a unique procedure where the court holds an inquiry as to whether the criteria set out in the Extradition Act, 1965, as amended, have been met. Further, this law has been established against the backdrop that the State has entered into an agreement with the requesting State that there be extradition arrangements between the two States. Thus, the cases are founded on the Comity of Nations and the Comity of Courts.

I am satisfied that there is a duty on a trial judge in an extradition case to make such inquiries of counsel as are relevant..."

8 The Attorney General's application for extradition was presented in court with punctilious attention to detail by Shane Murphy S.C. As the matter progressed and as the specific proofs were identified one by one and in sequence, I was enabled to be satisfied, subject to the three points of challenge raised by the applicant, that the extradition application was in order. No challenge was raised in relation to identity and no challenge was raised in relation to correspondence of offences. There is a full professional transcript of both hearings before me.

9 Three challenges were raised by Mr. O'Connell S.C. on behalf of the applicant as follows:-

10 (a) The warrant is defective in two respects, namely (i) it has not been shown to have been issued by a lawful person and (ii) it is not satisfactorily authenticated;

11 (b) The sentencing provisions in Arizona have not been established with sufficient clarity to satisfy the court; specifically the deponent Catherine Leisch, the Deputy County Attorney for Maricopa County, Arizona, has sworn a number of affidavits attempting to deal with this matter with clarity but has had to correct herself on so many occasions that her final affidavit is thereby rendered unreliable; and

12 (c) Due to elapse of time extradition should not be granted in this case pursuant to s. 18 of the Extradition Act, 1965as amended.

13 A further challenge relating to conditions in Maricopa County jail has arisen in the second hearing.

The challenges

14 (a)(i) The judge signing the arrest warrant is described by Ms. Leisch in one affidavit as a judge and in a later affidavit as a commissioner. Further explanation is given to show that he was appointed a temporary judge and appropriate documentation adduced. Under the relevant provisions, a temporary judge is appointed initially but that appointment must be approved by the Maricopa County Board of Supervisors. The challenge relates to this specific point. It is submitted that it is not sufficient for Ms. Leisch merely to aver that Judge Benjamin Vatz's appointment was approved by the County Board, as she does. In reliance on the well-known observations of McCarthy J. in McMahon v. Leahy [1984] I.R. 525 at p. 544 and on the judgment of O'Higgins C.J. in The People v. Farrell [1978] I.R. 13 at p. 26 it is submitted that the court should have been given sight of the relevant document proving the County Board's approval. In the latter case O'Higgins C.J. condemned as inadequate a recital on a form (to the effect that the Garda Commissioner had authorised a Superintendent to extend Mr. Farrell's period of detention) as being of no evidential value whatsoever and he said that evidence could have been supplied either by the production of the written authorisation or possibly by evidence of the fact that such authorisation had been given. He rejected the suggestion that everything should be presumed to be in order as where liberties are involved no presumptions can be made. Furthermore, it is submitted that there is no indication of when the County Board approved of Judge Vatz's appointment.

15 In response Mr. Murphy points to s. 37(3) of the 1965 Act which where relevant provides that:-

"... a document that purports to be certified by -"

(a) the judicial authority in a Convention country that issued the original, ...to be a true copy... and issued in accordance with the procedure laid down in the law of that country, shall be received in evidence without further proof...."

16 (a)(ii) It is also submitted that the appointment of Judge Vatz is not satisfactorily authenticated. This point, described by Mr. O'Connell as "not my best point", insofar as I understand it, queries the power of the deputy clerk (as distinct from the clerk) of the Superior Court to sign the warrant. Ms. Leisch deposes to such power.

17 In my view, these points of challenge are not well founded. In the first place s. 37(3) provides the answer; secondly there is evidence from Ms. Leisch of the confirmation of Judge Vatz's appointment by the County Board and of the appropriate power of the Deputy Clerk, and thirdly there is nothing exceptional about those links in the chain of evidence and in this respect they are distinguished, in my view, from the Garda Commissioner's authorisation under scrutiny in The People v. Farrell and dramatically so from the patent untruth of the averment which so justly attracted the ire of McCarthy J. in McMahon v. Leahy.

18 (b) The second point of challenge asserts the unreliability of Ms. Leisch in relation to the sentencing regime which will apply to the applicant in Arizona.

19 It is true that Ms. Leisch has corrected herself on a number of occasions. Furthermore, an affidavit has been sworn by Bruce Feder, a lawyer practising in Arizona since 1977 and a specialist in criminal law which states that if the applicant were convicted "it is unknown what sentence he would receive assuming the applicable laws at the time of the allegations (1978) were applied."

20 Notwithstanding this averment, a tolerably clear picture emerges from the affidavits sworn by Ms. Leisch (and I note her point that it is surprising that a specialist criminal lawyer can aver that it is simply unknown what sentence the applicant would receive). In relation to the two non-attempt allegations the applicant could be sentenced to a term of imprisonment from 5.25 years to 14 years on each of the counts with a presumptive sentence (that is a sentence which the judge must impose unless mitigating or aggravating factors apply) of seven years for each offence. Mitigating factors are determined on the preponderance of evidence whereas aggravating factors are found to exist by a jury beyond reasonable doubt. In relation to the attempt allegation the minimum period is 3.75 years and the maximum is 10 the presumptive sentence being 4 years.

21 In light of the fact that the errors in her earlier affidavits are corrected by Ms. Leisch of her own motion (it is unlikely that the authorities in...