Attorney General v Rory P. Doyle aka David West

JurisdictionIreland
CourtHigh Court
JudgeMr Justice Michael Peart
Date21 January 2010
Docket NumberRecord Number: No. 62 Ext/2009
AG v Doyle (aka West)

Between:

Attorney General
Applicant

And

Rory P. Doyle aka David West
Respondent

[2010] IEHC 212

Record Number: No. 62 Ext/2009

THE HIGH COURT

EXTRADITION

Correspondence

Sexual assault -Offences not identical - Acts of respondent constituted offence in this state - Defence available to respondent - Whether availability of defence to respondent relevant - Whether necessary for offences to be identical in both states - Failure to appear - Failure to appear without reasonable excuse - Whether offence corresponded - Breach of Human or Constitutional right -Principles to be applied -Prison conditions in requesting state - Nature and duration of sentence likely to be imposed - Post imprisonment measures -Whether evidence of prison conditions cogent and convincing - Whether sentencing in requesting state likely to be disproportionate - Whether potential post imprisonment measures in breach of human rights -AG v POC [2005] IEHC 289 [2007] 2 IR 421 and Finucane v McMahon [1990] IR 165 distinguished; SOC v Governor of Curragh Prison [2002] IR 66, CC v Ireland [2005] IESC 4 & [2006] IESC 33 [2006] 4 IR 1 and Cahill v Sutton [1980] IR 269 considered; State (Furlong) v Kelly [1971] IR 132, AG v Scott Dyer [2004] IESC 1 [2004] IR 40, Minister for Justice v Brennan [2007] IESC 21 (Unrep, SC, 4/5/2007), AG v Skripakova [2006] IESC 68 (Unrep, SC, 24/4/2006), AG v Russell [2006] IEHC 164 (Unrep, Peart J, 25/5/2006) applied - Extradition Act 1965 (No 17) ss 10, 25 & 26 - Criminal Law (Rape) Amendment Act 1990 (No 32) s 2 - Criminal Justice Act 1984 (No 22) s 13 - Order made (2009/62EXT - Peart J - 21/1/2010) [2010] IEHC 212

Attorney General v Doyle orse West

Facts The extradition of the respondent was sought by the United States of America so that the respondent could face trial in the United States in respect of four charges, described as 'lewd or lascivious behaviour', two counts of 'handling and fondling of a girl under the age of 16 years' and failing to appear for trial. Three issues were raised on behalf of the respondent, namely that the offences did not correspond with known offences in this State, that if convicted the respondent would be liable to serious and violent treatment at the hands of both inmates and staff in prison and therefore to extradite him would be a breach of his constitutional right to bodily integrity and lastly that, the sentencing regime the respondent would face if convicted was harsh and arbitrary and did not permit mitigating factors to be taken into account and the principle of rehabilitation was not taken into account. It was submitted that the court should not expose the respondent to such a sentencing regime by ordering his extradition. It was submitted on behalf of the applicant that the alleged acts of the respondent would, if committed in this state, constitute offences of sexual assault contrary to s. 2 of the Criminal Law (Rape) Amendment Act, 1990. However, it was submitted on behalf of the respondent that in circumstances where the alleged complainants are eight and twelve/thirteen years old and the Florida statute creating the offences does not provide for a defence of mistake regarding age, such an offence would be unconstitutional under Irish law. In relation to the offence of failing to appear it was submitted that this did not correspond with the offence pursuant to s. 13(1) of the Criminal Justice Act, 1984 as the Florida statute did not provide for a defence of reasonable excuse for failing to appear.

Held by Peart J. in ordering the extradition of the respondent: That from a documentary point of view this application was in order. Furthermore, correspondence was established in relation to the all offences. The court was not required, for the purposes of correspondence to find not only that the offence corresponded but also that the same defences were available in both the requesting state and in this state. The evidence in relation to prison conditions and the treatment of certain types of prisoners, in the way of an unsigned copy of an opinion was insufficient to discharge the heavy onus on the respondent of proving a potential breach of constitutional rights. This was not a case where the court ought to concern itself with the sentencing regime in Florida in so far as it was described by the expert retained on behalf of the respondent as that opinion lacked specificity. From a cursory look at the Florida Criminal Punishment Code it was revealed that it was permissible for a judge to impose a sentence below the required sentence. The fact that the sentence does not take account of the principle of rehabilitation was not something which could form the basis of a finding that any sentence thus imposed was unlawful such that extradition should not be ordered.

Reporter: L.O'S.

EXTRADITION ACT 1965 PART II

EUROPEAN COMMUNITIES (MATERIALS & ARTICLES INTENDED TO COME IN TO CONTACT WITH FOODSTUFFS) AMDT REGS 2000 SI 475/2000

EXTRADITION ACT 1965 S26(1)(A)

EXTRADITION ACT 1965 S25

CRIMINAL LAW (RAPE) AMDT ACT 1990 S2

O'C (S) v GOVERNOR OF CURRAGH PRISON 2002 1 IR 66

EXTRADITION ACT 1965 S10

CRIMINAL LAW AMDT ACT 1935 S1(1)

C (C) & P (G) v IRELAND 2006 IR 1

EXTRADITION ACT 1965 S10

FURLONG,STATE v KELLY 1971 IR 132

AG v DYER 2004 1 IR 40

CAHILL v SUTTON 1980 IR 269

CRIMINAL JUSTICE ACT 1984 S13(1)

CRIMINAL JUSTICE ACT 1984 S13(2)

AG v SKRIPAKOVA UNREP SUPREME 24.4.2006 2007/3/440 2006 IESC 68

MIN FOR JUSTICE EQUALITY & LAW REFORM v BRENNAN UNREP SUPREME 04.05.2007 2007/40/8282 2007 IESC 21

AG v O'C (P) & C (P) v AG 2007 2 IR 421

FINUCANE v MCMAHON 1990 1 IR 165

AG v RUSSELL UNREP 23.5.2006 2006/3/547 2006 IEHC 164

MIN FOR JUSTICE EQUALITY & LAW REFORM v BRENNAN 2007 3 IR 732

Mr Justice Michael Peart
1

By diplomatic note dated 30th January 2009 a Request for the extradition of the respondent has been made by the United States of America to the Department of Foreign Affairs.

2

Part II of the Extradition Act,1965 as amended ("the Act") was applied in respect of the United States of America by S.I. 474 of 2000.

3

As provided for by s. 26(1 )(a) of the Act, the Minister for Justice, Equality and Law Reform issued a Certificate certifying that such a Request had been received, following which an application was made by the Applicant for a warrant of arrest in respect of the respondent.

4

That application was duly granted by the High Court on the 11th March 2009, and the respondent was duly arrested here on the 30th March 2009 by Sgt. Sgt. Sean Fallon who immediately thereafter on that date brought him before the High Court. The respondent has been remanded from time to time thereafter on bail pending the hearing of the application for his extradition to the United States of America.

5

No issue is raised on this application as to the formalities to be attended to by the applicant and/or any other government department prior to his arrest, or indeed in relation to the arrest itself. In any event I am satisfied that all the documentation required under s. 25 of the Act, and otherwise, to be produced to the High Court before a warrant of arrest may be issued were duly produced, and that same are properly before the Court now on the hearing of this application. As no issue to the contrary has been raised, I do not propose to set out that documentation in any detail.

6

The extradition of the respondent is sought so that he can face trial in the United States in respect of four charges.

7

The first charge is one described as "Lewd or Lascivious Behaviour in violation of Florida State Statute Section 800.04 (5).

8

The second and third charges are ones described as "Handling and Fondling a girl under the age of 16 years in violation of Florida Statute Section 800.04 (1).

9

The fourth charge is of failing to appear for his trial on the above charges on the date fixed for trial, namely the 6th November 2001.

10

A full statement setting out the factual basis for these charges is contained in the documentation which accompanied the Request for his extradition, as well as copies as to the relevant Florida Statute laws relating to these offences.

11

Following the failure of the respondent to appear at his trial on the 6th November 2001, a warrant, referred to as a Capias warrant was issued in relation to the first three above charges, and on the 30th November 2001 a further Capias warrant was issued for his arrest in respect of the charge of failing to appear. An issue has been raised by Conor Devally SC for the respondent in relation to whether these warrants are properly signed in accordance with Florida law as they have been signed not by a Court Clerk as such but by a Deputy Court Clerk. However, I am completely satisfied that a Deputy Court Clerk is duly authorized to sign such documents by virtue of the provisions of Florida Statute 34.032 a copy of which has been exhibited by James A. Hellickson in his affidavit sworn on the 9th November 2009.

12

From a documentary point of view, I am satisfied that this application is in order. But three issues have been raised by Mr Devally on the respondent's behalf, and it is necessary to reach conclusions in relation thereto before deciding if the order sought for the respondent's extradition may be granted.

(a) The sexual offences:
13

It is alleged that between September 1994 and February 1995, CP, a girl then aged between 12 and 13 years spent the night at the respondent's house, and that while she was asleep he entered her room and rubbed her leg and vaginal area with his hand, and rubbed her breasts.

14

It is further alleged that in August 1995 CP, then aged 13 years, again spent the night at the respondent's house, and that while she was asleep the respondent entered the room where she was sleeping and began rubbing his hand on her leg and...

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    ...issue, the respondent submits that the Court should adopt a similar approach as the one taken by Peart J. in Attorney General v. Doyle [2010] IEHC 212, (Unreported, High Court, Peart J., 21st January, 2010) concerning whether the court should speculate as to a likely scenario that might occ......
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    ...and degrading treatment contrary to Article 3 was a heavy one. He relied upon the case of Attorney General v. Rory P. Doyle aka West [2010] IEHC 212 where Peart J. held that the expert report provided was not sufficiently cogent or grounded in evidence to allow the Court make such a finding......

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