Fusco v O'Dea (No. 2)

• Jurisdiction: Ireland
• Judge: Mrs. Justice Susan Denham
• Judgment Date: 18 February 1998
• Neutral Citation: 1998 WJSC-SC 1757
• Date: 18 February 1998
• Court: Supreme Court
• Docket Number: [1992 No. 14 Sp. and S.C. Nos. 283 and 372 of 1995]

1998 WJSC-SC 1757

THE SUPREME COURT

HAMILTON C.J.

O'FLAHERTY J.

DENHAM J.

BARRINGTON J.

BARRON J.

283 & 372/95

FUSCO v O'DEA

IN THE MATTER OF THE EXTRADITION ACTS, 1965TO 1987

BETWEEN:

ANGELO FUSCO

Plaintiff/Respondent

and

EDWARD O'DEA

Defendant/Appellant

EXTRADITION ACT 1965 PART III

EXTRADITION ACT 1965 S50

RSC O.31 r29

MCMAHON v LEAHY 1984 IR 525

MCGLINCHY v WREN 1982 IR 154

SLOAN & ORS v CULLIGAN 1992 1 IR 223

RSC O.98 r2

RSC O.15 r13

CRIMINAL LAW (JURISDICTION) ACT 1976

TRIMBOLE, STATE v GOVERNOR MOUNTJOY 1985 IR 550

EXTRADITION ACT 1965 PART II

PRACTICE: documents

Discovery - Necessity - Possession - Third party - Extradition -Release - Applicant - Adequate remedies available against

Fusco v O'Dea

1 Judgment of the Chief Justice delivered on the 18th day of February 1998 . [O'FLAHERTY, BARRINGTON, BARRONAGR.]

2 On the 12th day of June 1981, the above named Angelo Fusco (hereinafter called the respondent) was convicted by the Crown Court sitting at Belfast, Northern Ireland of the following offences:-

3 (a) that he, the said respondent, on the 2nd day of May, 1980 in the County Court Division of Belfast, murdered Herbert Richard Westmacott contrary to common law;

4 (b) that he, the said respondent, on the 2nd day of May 1980 in the County Court Division of Belfast, attempted to murder members of Her Majesty's Forces, contrary to common law;

5 (c) that he, the said respondent, on the 2nd day of May 1980 in the County Court Division of Belfast, had in his possession firearms and a quantity of ammunition, with intent by means thereof to endanger life or cause serious injury to property or to enable any other person by means thereof to endanger life or cause serious injury to property contrary to Section 14 of the Firearms Act (Northern Ireland) 1969;

6 (d) that he, the respondent herein, on the 22nd day of February, 1980 in the County Court Division of Belfast attempted to murder Peter Reynolds MacFadyen, contrary to common law;

7 (e) that he, the said respondent, on the 22nd day of February 1980 in the County Court Division of Belfast had in his possession an M60 machine gun and a quantity of ammunition, with intent by means thereof to endanger life or cause serious injury to property or to enable any other person by means thereof to endanger life or cause serious injury to property contrary to Section 14 of the Firearms Act (Northern Ireland) 1969.

8 In respect of the offence said forth at (a), the respondent was sentenced on the 12th day of June, 1981 to imprisonment for life with a recommendation that the minimum period which should elapse before the Secretary of State considers the release of the said respondent under licence under Section 23 of the Prison Act (Northern Ireland) 1953 should be 30 years.

9 With regard to the offence set forth at (b) above, the said respondent was sentenced to imprisonment for life.

10 With regard to the offence set forth at (c) above, the said respondent was sentenced, on the 12th day of June 1981 to twenty yearsimprisonment.

11 With regard to the offence set forth at (d) above, the respondent was sentenced to imprisonment for life.

12 With regard to the offence set forth at (e) above, the respondent was sentenced to twenty years imprisonment.

13 The aforesaid sentences were ordered to run concurrently.

14 Subsequent to his trial for the aforesaid offences but prior to his conviction and sentencing in respect thereof on the 12th day of June, 1981 the respondent, together with seven others, did on the 10th day of June, 1981 escape from lawful custody in Crumlin Road Prison, Belfast and remained atlarge until his arrest by members of the Garda Síochána in County Kerry on the 18th day of January, 1982.

15 At paragraph 12 of his affidavit, sworn in these proceedings on the 2nd day of November 1994, the respondent herein referred to the judgment of the Court of Criminal Appeal in his case in support of his account of the facts in this case.

16 Dealing with his arrest, the said judgment, stated:-

"The Applicant, Angelo Fusco, was also arrested by Sgt. Callaghan in Tralee. On the 18th January, 1982 Sgt. Callaghan was in possession of a search warrant under Section 29 of the Offences of the State Act, 1939.He entered the premises to which it related and there met Fusco. He arrested him. When doing so, he said:- "I am arresting you under Section 30 of the Offences Against the State Act, 1939on suspicion that you are a member of an unlawful organisation, to wit, the I.R.A.""

17 Though warrants had been issued for the arrest of the respondent and the other persons involved in the escape from Crumlin Road Prison and forwarded to the Garda Authorities by the Royal Ulster Constabulary on the 21st day of June 1981, no application was made in accordance with the provisions of theExtradition Act, 1965, as amended (hereinafter referred to as the Act) for the extradition of the respondent to Northern Ireland.

18 The respondent was, however, brought before the Special Criminal Court on the 19th day of January 1982 where he was charged with the followingoffences:-

19 i "(i) shooting with intent to prevent lawful apprehension, contrary to Section 2(1) of the Criminal Law (Jurisdiction) Act, 1976;

20 (ii) possession of a firearm with intent to endanger life, contrary to the same section;

21 (iii) production and use of a firearm in the course of escape, contrary to the same section;

22 (iv) escape from lawful custody in Northern Ireland, having been charged with murder (an offence listed in the schedule to the Criminal Law (Jurisdiction Act, 1976) contrary to Section 3 of the same Act."

23 None of the offences with which the respondent was charged was a scheduled offence within the meaning of the Offences Against the State Act, 1939.However, the appropriate certificate under Section 47(2) of thatActgiving the Special Criminal Court jurisdiction to try the charges was issued by the Director of Public Prosecutions on the 19th day of January1982.

24 The respondent, together with a number of accused, was arraigned before the Special Criminal Court on the 16th day of February, 1982 and charged with the above offences.

25 The respondent was informed by the President of the Special Criminal Court of his right under the provisions of Section 14(1) of the Criminal Law (Jurisdiction) Act, 1976to opt to go into custody in Northern Ireland for trial there instead of being tried in the State for the said offences but did not exercise thatoption.

26 The respondent was found guilty of each of the offences set forth in the indictment and was given sentences of 10, 8, 8 and 5 years respectively, to be served concurrently as and from the date of sentence, namely, the 25th day of February, 1982.

27 An application was made to the Special Criminal Court for leave to appeal against the respondent's conviction of the said offences but wasrefused.

28 The respondent's appeal to the Court of Criminal Appeal against such refusal and his application for leave to appeal were dismissed by the Court of Criminal Appeal on the 7th day of February 1983.

29 While in custody in Portlaoise Prison, the respondent attempted to escape from such custody and was convicted by the Special Criminal Court on the 29th day of May 1986 of the offence of attempted escape from custody and was ordered to undergo a consecutive period of imprisonment which was due to end on the 16th day of December 1991, he having been in custody since the date of his arrest on the 18th day of January,1982.

30 On the 6th day of December, 1991 five separate warrants were issued by Thomas Joseph Travers, Resident Magistrate, a Justice of the Peace for each and every county court jurisdiction in Northern Ireland, a judicial authority in Northern Ireland competent and having power under the law of Northern Ireland to issue such warrants.

31 These warrants related to the offences of which the respondent was convicted by the Crown Court sitting at Belfast, Northern Ireland on the 12th day of June 1981, which said offences are set forth at (a), (b), (c), (d) and (e) at the outset of this judgment.

32 These warrants were directed to the Chief Superintendent of the Royal Ulster Constabulary at Royal Ulster Constabulary Station, Musgrave Street, Belfast, Northern Ireland. They directed the arrest of the respondent, and that he be brought before a Magistrates Court for the County Court Division of Belfast, Northern Ireland so that an order might be sought that he be returned toprison to undergo detention under the sentences of imprisonment which had been imposed on him in respect of the aforesaid offences.

33 In accordance with the provisions of Section 43 of the Act each of the said warrants were endorsed for execution within the State by any member of the Garda Siochána, by the defendant/appellant on the 11th day of December 1991.

34 On the 11th day of December, 1991, the respondent, who was at that time in custody in Portlaoise Prison, was brought to Dublin by prison officers under orders from the Governor of the prison, he having received a direction from the Minister for Justice in the followingterms:-

"The Minister for Justice hereby orders and directs that Angelo Fusco, a prisoner at present confined in Portlaoise Prison, be produced at the Dublin Metropolitan District Court on the 11th December 1991 and from day to day as may be necessary, the Minister for Justice being satisfied that the presence of the said person at such place is required in the interests of justice."

35 At Green Street in the city of Dublin the aforesaid warrants were executed by a member of the Garda Siochána.

36 In accordance with the provisions of Section 45 of the Act, the respondent was, on arrest, brought before the President of the District Court sitting as the District Court in the...