Fusco v O'Dea

• Jurisdiction: Ireland
• Judge: EGAN J.
• Judgment Date: 07 July 1994
• Neutral Citation: 1994 WJSC-SC 2895
• Court: Supreme Court
• Docket Number: [S.C. No. 175 of 1993]
• Date: 07 July 1994

1994 WJSC-SC 2895

THE SUPREME COURT

Finlay C.J.

Egan J.

Blayney J.

175/93

FUSCO v. O'DEA

BETWEEN/

ANGELO FUSCO

Plaintiff/Appellant

and

EDWARD O'DEA

Defendant/Respondent

Citations:

FUSCO V O'DEA UNREP LYNCH 21.4.93 1993/7/1987

EXTRADITION ACT 1965 PART III

CRIMINAL LAW (JURISDICTION) ACT 1976

RSC O.31 r29

AIB V ERNST & WHINNEY 1993 1 IR 375

O'CONNOR V STAR NEWSPAPERS LTD 30 LRI 1

SHIPSEY V BRITISH & AMERICAN STEAM NAVIGATION CO 1936 IR 65

MATTHEWS & MALEK ON DISCOVERY (1992) PARA 3.53

CHRISTINA, THE 1938 AC 485

KUBACZ V SHAW 1984 WAR 156

R V GOVERNOR OF BRIXTON PRISON, EX PARTE OSMAN 1991 1 WLR 281

EXTRADITION ACT 1965 S50

RSC O.11

Synopsis:

PRACTICE

Parties

Addition - Necessity - Absence - Foreign government - Purpose - Documents - Discovery - Extradition proceedings - Foreign government not a necessary party - (175/93 - Supreme Court - 7/7/94) 1994 2 IR 101, 1994 2 ILRM 389

|Fusco v. O'Dea|

PRACTICE

Documents

Discovery - Possession - Third party - Government - Foreign State - Relief - Refusal - (175/93 - Supreme Court - 7/7/94)

|Fusco v. O'Dea|

SOVEREIGN IMMUNITY

Claim

Foreign State - Government - Documents - Possession - Extradition proceedings - Detainee seeking third-party discovery - Relief - Refusal - (175/93 - Supreme Court - 7/7/94) 1994 2 IR 101

|Fusco v. O'Dea|

1 JUDGMENT delivered on the 7th day of July 1994by EGAN J. [NEM DISS]

2 This is an appeal from an order of Lynch J. made by him in the course of proceedings under Part III of the Extradition Act, 1965. Applications had been made to him firstly, that the Government of Great Britain and Northern Ireland be joined as a defendant in the proceedings under the Rules of the Superior Courts and secondly, that her Majesty's Secretary of State for Northern Ireland do make discovery of certain documents and answer certaininterrogatories. These applications were refused by the learnedjudge.

3 The facts of the case are set out in the judgment and disclose that the appellant was arrested in Northern Ireland on the 2nd May 1980 and charged along with other persons with various offences including murder. He was convicted on the 12th June, 1981 by the Northern Ireland Court of a number of the offences including murder for which he was sentenced to imprisonment for life. Prior to the imposition of the said sentence, however, he escaped from prison in Belfast and came to this State.

4 On the 18th January 1982 the plaintiff was arrested in this State. He was charged under the Criminal Law (Jurisdiction) Act, 1976 with escaping from lawful custody in Belfast and was convicted in this State on that charge on the 25th February 1982 and sentenced to ten years imprisonment. He was due for release from Portlaoise on the 16th December 1991 but on the 11th day of December 1991he was brought before the District Court pursuant to Part III of the Extradition Act, 1965on foot of warrants issued by the Northern Ireland authorities and backed by the defendant in this case. On the 8th January 1992 an order for his rendition to Northern Ireland was made by the District Court. He then brought proceedings for his release pursuant to sect. 50 of the 1965 Act.

5 When these applications were sought counsel for the plaintiff indicated that his only reason for wanting to join the Government of the United Kingdom as a defendant was in order to get discovery from them and that he would be content instead to get an order for third party discovery pursuant to 0. 31, r. 29 of the Rules of the Superior Courts. The application for interrogatories was abandoned.

6 An order for discovery was actually made in the High Court on the 4th December 1992 but it applied to the defendant herein and the Director of Public Prosecutions.It was responded to and this Court even went a distance in involving itself with the adequacy of the responses. Strictly, however, the Court is not concerned with this aspect of the case and will not concern itself further with it as the appeal is in relation to the availability of third party discovery.

7 The question of whether or not third party discovery lies against a foreign sovereign government should be addressed in two stages; (1) whether discovery can be obtained against any third party outside the jurisdiction, and (2) whether special considerations apply with respect to a sovereign government.

THIRD PARTY DISCOVERY GENERALLY

8 The wording of 0. 31, r. 29 is silent as to the issue of its possible application to third...