Attorney General v Pocevicius

 
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[2015] IESC 59

THE SUPREME COURT

Murray J.

O'Donnell J.

McKechnie J.

MacMenamin J.

Dunne J.

APPEAL NO. 148/13

Between
Attorney General
Applicant
and
Renaldas Pocevicius
Respondent/Appellant

Crime & sentencing – Extradition – Error in law alleged – Appeal – Extradition Act 1965

JUDGMENT of Mr. Justice William M. McKechnie delivered on the 24th day of June, 2015
Mr. Justice William M. McKechnie
Introduction:
1

In this case the Kingdom of Norway (‘Norway’) has sought the extradition of Mr. Pocevicius in respect of certain offences alleged to have occurred on 25th September, 2008. The application for such order was moved in the High Court by the Attorney General on behalf of the requesting country: it was strongly opposed on several grounds including those now forming the subject matter of this appeal. In a judgment delivered on 9th April, 2013, Edwards J. rejected each of the objections as raised, and made an order directing the detention of Mr. Pocevicius until such time as a formal order for his extradition should be made or until further order of the High Court or of this Court, as the case may be. On application made on his behalf, a stay was placed on the execution of the said order provided that a valid appeal was lodged within the prescribed period, as in fact it was. In such circumstances the stay was to remain in place until the determination of this appeal. Accordingly, Mr. Pocevicius continues to be on bail on the same terms and conditions as were originally granted.

2

In the notice of appeal dated 10th April, 2013, the following three grounds are relied upon: these read as follows:—

‘(1)The learned trial Judge erred in law and/or in fact in determining that the Appellant/Respondent was sought for the purpose of‘proceedings’ within the meaning of s. 9 of the Extradition Act, 1965. [Issue No. 1]

(2) The learned trial Judge erred in law and/or in fact in concluding that the surrender of the Appellant/Respondent would not be disproportionate in the circumstances of this case. [Issue No. 2]

(3) The learned trial Judge erred in law and/or in fact in determining that the surrender of the Appellant/Respondent did not contravene the provisions of s. 15 of the Extradition Act, 1965.’ [Issue No. 3]

This is my judgment in respect of this said appeal.

3

In considering the first objection made, it is important to note that an understanding of the Norwegian criminal process is essential, as much of the debate centres on when and at what point in that process it can be said that for the purposes of s. 9 of the Extradition Act 1965, as amended (‘the 1965 Act’), a person ‘is being proceeded’ against (para. 30infra). In essence, Mr. Pocevicius (‘the respondent’ or ‘the appellant’) alleges that until a formal prosecution has been instituted, in respect of the extraditable offence, the provisions of this section are not engaged. The Attorney General's position on the other hand is that this is not so: she says that once extradition is not being sought to further gather evidence upon which a future prosecution depends, and once a decision to charge has in fact been made, there is a sufficient compliance with the section. The evidence therefore tendered by the requesting country is critical to this issue.

4

Ground No. 2 is in effect self-explanatory, but in any event it was not proceeded with as part of this appeal. Ground No. 3, which is referable to s. 15 of the 1965 Act, involves,inter alia, a consideration of what precise charge is being levelled against Mr. Pocevicius and what are its essential elements: in addition, the question arises as to whether the establishment of the respondent's presence in Norway on the date of the alleged offence is critical in this regard.

The Domestic Regime:
5

The request for extradition falls to be determined under Part II of the 1965 Act: that part was applied to Norway which, like Ireland, is a signatory to the European Convention on Extradition 1957 (‘the Convention’), by order of the Minister for Foreign Affairs made pursuant to s. 8 of the 1965 Act (Extradition Act 1965 (Application of Part II) Order 2000 [S.I. No. 474/2000]). Therefore, the provisions of that Act, as well as certain Articles of the Convention, are relevant in the determination of this appeal.

Background —to the Offence:
6

On 25th September, 2008, a Lithuanian national, Michail Oleinik, was stopped by the police in the City of Stavanger and when a search was carried out of his motor vehicle, 4.9 kilos of a banned substance was found hidden in a ‘made up’ room in the petrol tank.Evidence showed that Mr. Oleinik had driven from Lithuania via Sweden, arriving in Norway on the evening previous to the date mentioned. It also showed that within Norway he had received two SMS messages sent from Lithuania by a fellow national, a Maksim Popov, containing a phone number which he was to make contact with once he had arrived in Stavanger. That was the number linked to the person who the police believe was responsible for meeting the courier and receiving the drugs. As planned, Michail Oleinik made several attempts to call the number in question: these attempts failed however as he entered the prefix +47 before the mobile number (being the Norwegian country code from abroad) which quite unintentionally and obviously unknown to him, had the affect of directly ringing a Children's Day Nursery in Trondelag. He was apprehended before any communication was made with the contact number as given, and thus the intended recipient of the drugs was not identified at that time.

7

As part of their investigation, the police discovered that the phone number in question had been ‘established’ by Mr. Pocevicius at a petrol station in Klepp, Norway, on 22nd August, 2008, where as part of this purchase he produced his own driving license as documentary proof of identity. On the previous day he had arrived in Stavanger and stayed in Norway until 27th August, 2008, when he returned to Ireland. By way of telephone interception it was revealed that all traffic on this phone number during the period of his stay related to or involved the respondent. It was further alleged in the Rogatory Commission that the respondent also arrived in Norway immediately prior to the importation of the drugs, and left immediately after the arrest of Mr. Oleinik.

8

As documentation was being exchanged as part of these proceedings, controversy emerged as to the whereabouts of Mr. Pocevicius on the actual date of the alleged offence. He admitted to being in Norway in September, 2008 but said that he left on 21st September, on a flight from Stavanger to Dublin via Copenhagen: he then travelled by train to Cork where he lives. He also alleged that on 24th September he signed on at the local social welfare office in Clonakilty. Some verifying documentation has been produced in respect of these matters. The Norwegian authorities however reject the claim that he was not in Norway on 25th September, 2008.

9

In a further review of the information available, the Norwegian authorities point to the fact that whilst a gap in the phone traffic, as recorded on the Norwegian network in respect of the aforesaid number, started on 21st September, 2008 at 2.00, it ended on 25th September, 2008 at 00.47, the night before Mr. Oleinik was arrested. They also refer to a tapped conversation from this phone which was timed as taking place on 27th September at 20.23, involving a male person who said that he had travelled 1,000 kilometres, part of which was through England, and that at the time of the call ‘…it is raining here in Norway…’. Therefore, Mr. Pocevicius's denial of being in Norway on 25th September, 2008, is strongly disputed.

10

It will be apparent from the preceding paragraphs, that the information supplied regarding the dates of the respondent's alleged entry into, and departure from, Norway is not entirely consistent. This is not in any way critical save perhaps for his whereabouts on 25th of September, 2008. In any event a resolution of this factual conflict is not a matter for thisCourt, and moreover such is not required so as to determine this appeal. It must be noted that it has never been seriously suggested that there is insufficient evidence upon which an extradition request could be made, if the same was otherwise lawful. In addition, apart possibly from ground No. 3, the actual state of the evidence underlying the alleged offence(s) is likewise not material. The conflict therefore, such as it is, must await resolution by the Norwegian trial court, if the proceedings get that far.

Background —To the Basis of the Extradition Request:
11

On 11th November, 2008, the Rogaland Chief of Police, in a document headed ‘Charge Sheet’, is thereby recorded as charging Renaldas Pocevicius:

‘…with offences contrary to:—

Section 162(1) cf. subsection (3), first sentence, of the Norwegian General Civil Penal Code

in that he has unlawfully manufactured, imported, acquired, stored, or conveyed drugs, and the offence concerns a very significant quantity

Grounds for the charge are the following offences or for being an accessory thereto

On Thursday, 25 September 2008, he imported approximately 5kg of methamphetamine to Norway from Lithuania.’

As this and later documentation show, the offence as alleged is in substance one of importation, which it is claimed is likely to have been committed by way of a joint or complicit enterprise involving the respondent and others, which facilitated the importation of...

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