Coleman v O'Toole

• Jurisdiction: Ireland
• Judge: Mr. Justice Aindrias Ó Caoimh
• Judgment Date: 10 April 2002
• Neutral Citation: 2003 WJSC-HC 1817
• Court: High Court
• Date: 10 April 2002

2003 WJSC-HC 1817

THE HIGH COURT

[Record No. 433 SP.]/1999

COLEMAN v. O'TOOLE

IN THE MATTER OF THE EXTRADITION ACTS 1965 to 1994

Between:

OLIVER COLEMAN

Plaintiff

-and-

PATRICK O' TOOLE

Defendant

Citations:

EXTRADITION ACT 1965 S50(2)(B)(B)(B)

EXTRADITION ACT 1965 S47

KWOK MING WAN V CONROY 1998 3 IR 527

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

MARTIN V CONROY 2002 1 ILRM 461

LONG V O'TOOLE 2001 3 IR 548

DPP V BYRNE 1994 2 IR 236

C (P) V DPP 1999 2 IR 25

O'C (J) V DPP 2000 3 IR 478

P (P) V DPP 2000 1 IR 403

FUSCO V O'DEA (NO 2) 1998 3 IR 470

MCNALLY V O'TOOLE UNREP FINNEGAN 14.11.2000 2000/13/4866

Synopsis:

CRIMINAL LAW

Extradition

Detention - Delay - Lapse of time - Destruction of evidence - Whether extradition of plaintiff would be unjust - Whether unreasonable delay in seeking extradition - Whether plaintiff could obtain fair trial - Extradition Act, 1965 (1999/433SP - O Caoimh J - 10/4/2002)

Coleman v O'Toole

The plaintiff had been living in England and in 1989 was charged with having committed the offence of unlawfully causing grievous bodily harm. The plaintiff left the jurisdiction shortly afterwards and returned to Ireland. Some time later the victim of the alleged assault died of his injuries. The plaintiff was eventually arrested in Ireland in 1999 on foot of a warrant issued by the English authorities. The plaintiff brought an application pursuant to section 50(2) of the Extradition Act, 1965 claiming that by reason of the lapse of time and other exceptional circumstances it would be unjust to order his extradition. In addition a television programme had been broadcast about the death of the victim and plaintiff complained that this was prejudicial to his trial. In addition it was claimed that the plaintiff's file had since been destroyed by his solicitor and that he would not be able to reconstitute his file. There appeared to be some discrepancies in the evidence tendered by the English police and that of An Garda Síochána in relation to the efforts made in trying to locate the plaintiff.

Held by Ó Caoimh J in refusing the relief sought. Although there had been a significant lapse of time in seeking the extradition since the date of the alleged offence the plaintiff had contributed to this delay by absconding. There had been a breakdown in communications between members of the respective police forces although this did not amount to an exceptional circumstance within the meaning of section 50(2) of the Extradition Act, 1965. The plaintiff's solicitor had indicated that he would be able to re-construct the essential elements of the plaintiff's file. In the circumstances it could not be said that the plaintiff could not have a fair trial if the extradition were to proceed and the relief sought by the plaintiff would be refused.

1 Mr. Justice Aindrias Ó Caoimh delivered the 10th day of April, 2002 .

2 This is an application pursuant to s. 50 (2) (bbb) of the Extradition Act, 1965(“the Act of 1965”) for an order for the release of the plaintiff in circumstances where the plaintiff pleads that by reason of the lapse of time since the commission of the offence specified in the warrant and other exceptional circumstances, it would, having regard to all the circumstances be unjust, oppressive or invidious to deliver up the plaintiff under s. 47 of the Act of 1965.

THE FACTS:

3 The plaintiff is an Irish citizen from Shannonbridge in the county of Offaly and was born in 1967. He states that he went to England in approximately 1985 and claims to have initially lived with his uncle and thereafter he lived with his father Oliver Coleman (Senior) when he subsequently went to Leeds. In 1989 he was resident in Leeds in England when he was arrested and charged before the local Magistrates Court and released on bail and thereafter indicted at the Crown Court at Leeds charged with the offence of unlawfully causing grievous bodily harm to Hugh Redmond O'Gorman with intent to do him grievous bodily harm on the 9th June, 1989.

4 It appears that the plaintiff was released on bail and failed to failed to surrender to the custody of the Crown Court at Leeds when required on the 16th October, 1990. It appears that Mr. O'Gorman, the victim of the alleged assault was rendered unconscious by the assault in question and never regained consciousness and died some sixteen months later. The evidence before this Court shows that when arrested by the West Yorkshire Police the plaintiff claimed that he acted in self defence. It is stated that records of police interviews with the plaintiff are still available.

5 It appears that a warrant was issued for the arrest of the plaintiff at the time of his non attendance in court and thereafter contact was made between West Yorkshire Police and the Gardaí at Shannonbridge. The plaintiff claims to have returned to Shannonbridge in 1990 and admits to having failed to attend his trial. He claims to have lived in Shannonbridge since that time.

6 The plaintiff was ultimately arrested in May, 1999, when the warrant issued by a magistrate in Leeds was executed by the Gardaí.

7 The plaintiff's solicitor in Leeds has now destroyed his file. The plaintiff complains that he will not be able to completely reconstitute his files and that it is possible that potential witnesses who might be favourable to the plaintiff are no longer available. The plaintiff complains that there has been undue and unreasonable delay in proceeding with the application for extradition. He says that he was lead to believe by reason of the lapse of time that the authorities in England were not pursuing the matter. It appears that shortly before the plaintiff was arrested he was interviewed in Ireland for a crime programme broadcast in Yorkshire by Yorkshire Television and presented by a well known journalist Roger Cook. The plaintiff was questioned about the death of Mr. O'Gorman in circumstances where he was approached by a concealed television crew. The programme was broadcast at Easter 1999.

8 The plaintiff complains that the television broadcast could be said to be prejudicial to his trial and that it was inflammatory and also assumed his guilt. The plaintiff claims to have been signing on for unemployment assistance between July, 1993 and 2001. He claims that in the light of the lapse of time since the date of the offence alleged against him that it would, having regard to all the circumstances, be unjust, oppressive and invidious to deliver him up under s. 47 of the Act of 1965.

9 Evidence in the form of correspondence from the plaintiff's former solicitors in Leeds shows that while their file has been destroyed there should not be too much difficulty in being able to reconstitute the essential elements of the file because they will be able to get papers from both the Crown Prosecution Service and from the Court. Had there been defence witness statements on file or other defence evidence these would no longer be available and had there been contemporaneous notes made these would not be available.

10 Several affidavits have been sworn on behalf of the defendant to explain the lapse of time in this case. Most notable, however, is the fact that the evidence reveals a difference in recollection between members of the Garda Síochána and the West Yorkshire Police.

11 William Judge, a former member of the Gardaí, who was stationed at Ferbane, County Offaly until he retired in March, 1993, recalls being contacted by a member of the English police in relation to the plaintiff on two occasions in the early 1990's. He does not recall the name of the person who contacted him or the dates in question. He was asked whether the plaintiff was at home. He says that he knew that there was a Coleman family in Shannonbridge but he did not know if the plaintiff was there or not. He says that he explained to the police officer that he was stationed at Ferbane and that Shannonbridge was eleven miles away. He says that as far as he can recall he was told that the plaintiff was wanted for murder in England. He believes that he was contacted on the second occasion about two months later when he says the policeman made the same enquiries. He says that he repeated what he had said on the earlier occasion and suggested to the officer that he contact the Superintendent at Birr about the matter. Mr. Judge believes that he made some enquiries on foot of these contacts to establish whether the plaintiff was at home. He says that he does not recall the extent of his enquiries or the result thereof. He says that he did not receive any correspondence from England in relation to this matter.

12 He says that on or about the 14th of September, 2000, he was shown a copy of a letter dated 24 ^th October, 1990, with photograph attached, addressed for his attention from the Central Detective Unit, Harcourt Square and signed by Jim Delaney. He says that he never saw this letter before and that he never spoke on the telephone to Jim Delaney. However, this letter refers to a conversation on the phone between Jim Delaney and William Judge.

13 Peter Sullivan a retired Garda Sergeant has sworn an affidavit in which he states that he was sergeant in charge at Ferbane Garda Station for 22 years prior to his retirement on 24th June, 2000. He indicates that Shannonbridge is a substation of Ferbane. He says that he recalls seeing the letter from Jim Delaney in the month of October, 1990, and that this letter was shown to him by William Judge. He replied to it identifying the person in the photograph as the plaintiff. He retained the letter on file. He does not recall receiving any further communication enquiring about the plaintiff. From his recollection the Coleman family left the Shannonbridge area in the mid 1980's but that from time to time members of the family came to stay with an uncle there.

14 Garda Aiden P. Corcoran...