Coleman v O'Toole

• Jurisdiction: Ireland
• Judge: Mr. Justice Hardiman
• Judgment Date: 28 November 2003
• Neutral Citation: [2003] IESC 60
• Court: Supreme Court
• Date: 28 November 2003
• Docket Number: [S.C. No. 117 of 2002]

[2003] IESC 60

THE SUPREME COURT

Denham J.

McGuinness J.

Hardiman J.

117/02

COLEMAN v. O'TOOLE

IN THE MATTER OF THE EXTRADITION ACT, 1965

to 1994

Between:

OLIVER COLEMAN

Plaintiff/Appellant

and

PATRICK O'TOOLE

Respondent

Citations:

EXTRADITION ACT 1965 S50(2)(bbb)

EXTRADITION (AMDT) ACT 1987

EXTRADITION (AMDT) ACT 1994

OFFENCES AGAINST THE PERSON ACT 1861 S18

EXTRADITION ACT 1965 S50

EXTRADITION ACT 1965 S50(1)

EXTRADITION ACT 1965 S50(2)

B(M) V CONROY 2001 2 ILRM 311

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

KWOK MING WAN V CONROY 1998 3 IR 527

KAKIS V GOV OF CYPRUS 1978 1 WLR 779

MARTIN V CONROY 2002 1 ILRM 461

D V DPP 1994 2 IR 465

Z V DPP 1994 2 IR 476

QUINLIVAN V CONROY (NO 2) 2000 3 IR 154

LYNCH V AG & ORS UNREP SUPREME 24.7.2003

Synopsis:

CRIMINAL LAW

Extradition

Unjust, oppressive or invidious to extradite - Lapse of time - Other exceptional circumstances - Prejudicial publicity - Whether plaintiff prejudiced by delay - Whether publicity prejudicial to trial - Extradition Act 1965 section 50 (117/2002 - Supreme Court - 28/11/2003)

Coleman v O'Toole - [2003] 4 IR 222 - [2004] 1 ILRM 389

The plaintiff appealed from the order of the High Court (Ó Caoimh J.) refusing the plaintiff relief pursuant to s.50(2)(bbb) of the Extradition Act 1965 (as amended). The charges related to an incident in 1990. The plaintiff absconded before his trial. In March 1999 Yorkshire Television broadcast a programme containing an unqualified assertion by the interviewer that the applicant was guilty of the offence. The plaintiff contended that here had been undue and unreasonable delay in proceeding with the application for extradition and that the television publicity could be prejudicial to any trial.

Held by the Supreme Court (Denham, McGuinness and Hardiman JJ) in dismissing the appeal and affirming the order of the High Court that the first two concepts in paragraph (bbb) of s. 50(2), namely, the lapse of time and other exceptional circumstances were conjunctively and not disjunctively expressed. As a result, the lapse of time had to itself be exceptional and there had to be other circumstances, themselves exceptional. A fourteen year interval between the alleged offence and the trial could have very serious consequences but the plaintiff had made no showing at all of a real risk of an unfair trial. The television programme did not constitute an "other exceptional circumstance". There had been a single publication 4 ½ years ago and there was ample scope for the "fade factor" to have lessened the prejudice.

Per Curiam This decision could not properly be cited in any future cases as providing a licence for media comment such as occurred in the present case. The conclusion in this case was reached on the individual facts of the case.

Reporter: R.W.

1 Mr. Justice Hardimandelivered the 28th day of November,2003.

2 This is the plaintiff's appeal from the judgment and order of the High Court ( Ó Caoimh J.) of the 10 ^th April, 2002. The High Court refused the plaintiff relief pursuant to s.50(2)(bbb) of the Extradition Acts 1965to 1994, in circumstances which are set out below.

Factual background.

3 On the 9 ^th June, 1989 a man called Hugh Raymond O'Gorman was very seriously assaulted in Leeds, Yorkshire, England.

4 The plaintiff in the present proceedings was charged with the offence of causing grievous bodily harm to Mr. O'Gorman, with intent to do him grievous bodily harm, contrary to s.18 of the Offences against the Person Act, 1861. His trial was fixed for the 16 ^th October, 1990 and the plaintiff was released on bail. From the affidavit evidence in this case, it appears that Mr. O'Gorman died some sixteen months after the assault on him, without recovering consciousness. This occurred on the 12th October, 1990. The plaintiff broke the conditions of his bail and did not attend for his trial on the 16 ^thOctober.

5 According to the plaintiffs own affidavit:-

"... I did not attend my trial in the Crown Court in Leeds; instead, I returned to Shannonbridge, Co. Offaly in 1990.I have lived in Shannonbridge, Co. Offaly since 1990".

6 It appears that the plaintiff was born in Shannonbridge in 1967 and has lived there most of his life. He says that in about 1985 he went to Leeds where he lived with his uncle and subsequently with his father. He says that since his return to Shannonbridge in the year 1990 he has lived there. He said that he has been "signing on" for unemployment benefit from July 1993 to May 1999, and from June 1999 until the 13 ^th February, 2001.

The pursuit of the plaintiff.

7 It must be recorded that the evidence put before this Court as to steps taken to pursue the plaintiff following his absconding before his trial in Leeds is incomplete, confused, and at times self contradictory.

8 From the affidavit of Michael Grubb, formerly a Detective Chief Inspector in Leeds, it appears that, following the plaintiff's failure to attend court on the 16 ^th October, 1990, he was placed on the (British) Police National Computer as an absconder. Periodic checks were made with the Department of Social Security to see if claims were made by him in the United Kingdom, but these were consistently negative. Mr. Grubb says that as part of his inquiries he made contact with Garda Headquarters in Dublin and was put in touch with a Garda William Judge whom he believed to be stationed in Shannonbridge and who was acquaintedwiththe plaintiff's family. He was given the personal telephone number of Garda Judge, which he still retains. He says that he contacted him on a number of occasions "over the following years" and was informed on each occasion that the plaintiff had not been sighted in the County Offaly area.

9 Diana McKenna, formerly a supervisor in the Leeds Warrants Office of the West Yorkshire Police also swore an affidavit. She said that in or about October, 1998 she checked a file in relation to the plaintiff and noted that a warrant issued by the Crown Court in Leeds on the 16 ^thOctober, 1990 was still outstanding. She forwarded the papers to a detective constable to make further inquiries. This was Detective Constable Hadley. He says that having got the papers he recommenced inquires as to the whereabouts of the plaintiff and wrote to theGardaí on the 22 ^nd January, 1999. His inquiries led to him believe that the plaintiff was resident in Offaly. On the26 ^th March, 1999 he swore an affidavit authenticating an arrest warrant for the plaintiff issued in Leeds Crown Court on that date. It appears that the plaintiff was arrested on foot of that warrant on or about the 31 ^st May, 1999.

10 The account offered by the Leeds Police is complicated by certain affidavits sworn by members of An Garda Síochána. A retired guard, theabove mentioned William Judge, swore an affidavit. He said that he had been stationed in Ferbane, Co. Offaly for 25 years prior to his retirement in March 1993. He recalled being contacted by telephone by an English policeman in relation to the plaintiff on two occasions in the early 1990s. This man asked him if Oliver Coleman was at home. Mr. Judge said he knew there was a Coleman family in Shannonbridge but he did not know if Oliver Coleman was there or not. He says that he explained that he was stationed at Ferbane and Shannonbridge was eleven miles away. In a further call he suggested that the caller should contact the Superintendent in Birr.

11 Mr. Judge says that he made some inquiries on foot of these contacts to establish whether or not Mr. Coleman was at home. He said "I do not now remember the extent of such inquiries or the resultsthereof".

12 This position is further complicated by the fact that there was exhibited in these proceedings a letter from Jim Delaney of the Serious Crime Squad of the Garda Síochána dated the24 ^th October, 1990. This was to Mr. Judge and related to the plaintiff. It enclosed a photograph of the plaintiff and asked him to verify that "it is the same fellow we weretalking about". Mr. Judge, however, has sworn that he never saw this letter and that he had never spoken to Jim Delaney.

13 Aidan Corcoran is a guard stationed at Shannonbridge since October, 1988. He said he had never received any written or telephonic communication from the English police in relation to the plaintiff. However he says that about September, 1991 he "received information from an individual to the effect that Oliver Coleman might be wanted on a warrant in England". He telephoned Leeds Police Station and spoke to a Sergeant Verty whom he told that Mr. Coleman was resident in Shannonbridge. He says however that he was told that the Leeds police had no interest in him. He exhibited a station telephone log for the 26 ^th September, 1991 recording a call to Leeds police on that date. However, inquires by Detective Superintendent Hemsley of Leeds police says that none of the retired police officers who dealt with the case in Leeds could confirm that such a call was received and that no person with the surname "Verty" or any similar sounding name was ever engaged on the case or in the warrant department in Leeds.

The television programme.

14 The affidavit of Mr. Coleman introduces an alternative explanation for the revival of the pursuit of him. He says that in February, 1999 hewas approached by one Roger Cooke, a journalist with Yorkshire Television who questioned him about the death of Hugh Raymond O'Gorman. He approached him on a public road in Offaly. Yorkshire Television subsequently broadcast a programme including some 5 l/2 minutes dealing with the plaintiff on the 26 ^th March, 1999. The plaintiff says that " was only as a result of Roger Cooke's programme that these proceedings were commenced. I believe there is no bonafide intention to prosecute me and that this application is only a public relations exercise". Separately, he claims that the programme is prejudicial.

15 Detective Constable Hadley says that...