Lynch -v- O'Toole, Lynch -v- Attorney General and anor, Attorney General -v- Lynch, [2003] IESC 44 (2003)

Docket Number:175/03, 176/03, 157/03
Party Name:Lynch, O'Toole, Lynch -v- Attorney General and anor, Attorney General -v- Lynch
Judge:Hardiman J. / Denham J.
 
FREE EXCERPT

JUDGMENT BY: Hardiman J.

THE SUPREME COURTDenham J. 157,175,176/03

Hardiman J.

McCracken J.

Between:

WAYNE PATRICK LYNCH Applicant and Appellantand

THE ATTORNEY GENERAL, THE CHIEF STATE SOLICITOR and PATRICK O'TOOLE Respondentsand

IN THE MATTER OF AN APPLICATION FOR RELIEF UNDER SECTION 50 OF THE EXTRADITION ACTS, 1965/2001 IN THE PROCEEDINGS ENTITLED

andBetween:WAYNE PATRICK LYNCH Plaintiff/Appellantand

PATRICK O'TOOLE Defendant/Respondent

JUDGMENT of Mr. Justice Hardiman delivered the 24th day of July, 2003.

Procedural background.

On the 1st October, 2002 the applicant was arrested on foot of two warrants issued under Part III of the Extradition Act. Having been brought before the Courts he was remanded in custody. He issued two sets of proceeding: pursuant to leave obtained on the 2nd December, 2002 he issued judicial review proceedings. On the 4th December, 2002 he issued a special summons claiming relief under s.50 of the Extradition Act, 1965 as amended. Meanwhile, the proceedings under the Extradition Act continued.

Section 50 empowers the High Court to direct the release of a person in respect of whom an Extradition Order is sought on a number of grounds including:-"Section 50(2)(bbb) 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 him up under s.47…"

The principal reason why Mr. Lynch issued judicial review proceedings as well as proceedings under s.50 is that he claims that, in the circumstances of the case, the delay involved should preclude his extradition even if the Court considered that it did not meet the criteria of s.50(2)(bbb).

Factual background.

The factual background of this case is most unusual and constitutes Mr. Lynch's principal basis for claiming relief.

It is set out in considerable detail in the judgment of the learned trial judge (McKechnie J.) and neither side has taken exception to his findings of fact. I gratefully adopt them and set out here only the barest summary necessary to make this judgment comprehensible.

The applicant had travelled to the United Kingdom in the course of 2000. There, in October, 2000 he was allegedly involved in the incident in respect of which his extradition sought. Prior to going to England however he had been charged with unlawful possession of drugs contrary to s.3 of the Misuse of Drugs Act, 1977 and possession of such drugs for the purpose of sale or supply, contrary to ss.15 & 27 of the same Act as amended. This related to an alleged incident in Kilkenny on the 21st May, 2000. The applicant failed to appear in the District Court in Kilkenny to answer these charges and a warrant was issued for his arrest.

In September, 2001 a Detective Garda Philip Rowe from Harcourt Terrace Garda Station was investigating an allegation that a stolen cheque had been used in an effort to obtain £18,700.00 at the Bank of Ireland, College Green. On the 1st October, 2002, the same day that the applicant was arrested on foot of the Extradition warrants, he was arrested in respect of the stolen cheque matter and detained pursuant to s.4 of the Criminal Justice Act, 1984. He was then charged with false pretences with intent to defraud the manager of the branch mentioned of £18,700.00 by pretending that the said cheque was a good and valid order and secondly with lodging the said cheque knowing or believing it to have been stolen. In respect of this matter, the applicant made his first court appearance in the Dublin District Court on the 4th October, 2001.

At some point between the 1st and 4th October, 2001 Detective Garda Rowe became aware that there was an outstanding bench warrant in respect of Mr. Lynch and he arranged for a Detective Sergeant Lyng of Kilkenny to execute that warrant on the 4th October. Mr. Lynch spent some days in custody before obtaining bail on an independent surety.

The subsequent history of these two sets of criminal proceedings is relevant to the point now made in relation to the Extradition Warrants. On the 13th November, 2001 the applicant pleaded guilty to the drugs charges in Kilkenny District Court and received a twelve months suspended sentence on each charge.

In relation to the cheque charges, the applicant was remanded from time to time in the Dublin District Court between October, 2001 and February, 2002. The learned District Judge declined to accept jurisdiction in respect of the said charges in the District Court and the case was remanded from time to time so that the prosecution could serve on Mr. Lynch the documents required to enable him to be sent forward for trial. On the 1st February, 2002 when these documents were not ready the learned District Judge then sitting in the relevant court struck out the charges. These charges were never reactivated. On the 22nd August, 2002 the DPP directed that the accused should not be recharged. This direction was communicated to Detective Garda Rowe on the 5th September, 2002.

On the 9th September, 2002 Assistant Commissioner Patrick O'Toole, the third-named respondent in the judicial review proceedings, endorsed the extradition warrants for execution the State. They were in fact executed by a Sergeant O'Neill on the 1st October, 2002.

Alleged conversations with Detective Garda Rowe. Mr. Lynch alleged that in or about September, 2001 Detective Garda Rowe told him that the guards had received the extradition warrants from the United Kingdom. Mr. Lynch alleged that the detective then said that if he (Lynch) furnished certain information to the guards about the other people involved in the stolen cheque matter, the English warrants would not be executed. He says the Detective Garda also mentioned the outstanding warrant from Kilkenny. Mr. Lynch says that he indicated to the Detective Garda that he would not be able to assist him. He says that the detective said, in reply to this, that he (Lynch) would have plenty of time to think about it but that if cooperation was not forthcoming the English warrant would be executed.

More specifically, Mr. Lynch says that about the 28th October, 2001 he was interviewed in relation to the stolen cheque. On that occasion he was told by Detective Garda Rowe of the extradition warrants and the Kilkenny warrant.

He says that on the 1st October, 2001 the Detective Garda called to his house and asked for a private word before he attended court. The Detective then drove Mr. Lynch to the District Court. There was another guard in the car who was identified as Sergeant Lyng from Kilkenny. He says the Detective Garda asked him whether he was going to help Sergeant Lyng or himself in relation to the respective sets of charges were against him. He said he could not do this and was then arrested on foot of the Kilkenny warrant and taken into custody.

Mr. Lynch further said that having got bail he attended in the District Court in Cloverhill. After the case had been remanded he asked the Detective Garda for the return of his mobile phone and a sum of cash which had been taken from him. He was told to contact the guard at Harcourt Terrace Garda Station. He did this by phone a few days later. He was first told that he could collect the items at the station but then Detective Garda Rowe enquired of him whether he was speaking from his home. He said he was and the Detective Garda then said that he would deliver the phone and cash to him at No. 4 St. Auden's Terrace. He did this about 10pm and he again asked Mr. Lynch to give him information about other peoples involvement in the stolen cheque case. Mr. Lynch says that he refused again and was told that he (Detective Garda Rowe) could have him back in custody. He says the Detective Garda knew that he had been very traumatised at his earlier remand in custody. He says the Detective Garda asked him would he help regarding people involved in the drugs trade. When he again refused the Detective Garda said that he could have time to think about it and he would see him in court.

Mr. Lynch also says that similar conversations took place on two other remand dates between November, 2001 and January, 2002.

Mr. Lynch further alleges that on the occasion when the cheque charges were struck out in the District Court, Detective Garda Rowe followed him out of court and asked him was he going to help him. He again mentioned the extradition warrants and the fact that he had found two ecstasy tablets in Mr. Lynch's possession on the 28th September, 2001.

The Detective Garda denied in an affidavit, and in cross-examination, that he promised the applicant that the extradition warrants would be cancelled or would not be executed in certain circumstances. He says that he never offered Mr. Lynch any inducement or made any threat against him. He also stated on oath that he did not become aware of the existence of the warrants until November or December of 2001 so that it wasn't physically or humanly possible for him to have referred to the warrants at any earlier time, and specifically in late September. He rejected Mr. Lynch,'s allegations in the strongest terms and said that they were entirely untruthful and unsupported by facts.

Proceedings in the High Court.

Because of this strong conflict of fact, both Mr. Lynch and Detective Garda Rowe were cross-examined on their affidavits before the learned High Court Judge. Mr. Lynch's account was, in certain respects, supported by his mother and by Mr. Terence Lynch, his uncle, who was also cross-examined.

Findings in the High Court.

At paragraph 24 of his judgment which was delivered on the 8th April, 2003, McKechnie J. found as follows:-"Having considered the entirety of the evidence, which, as I have previously stated, also included the cross-examination of Mr. Terence Lynch, I have come to the conclusion that the disputed allegations made by the applicant, in all their material and substantive respects, were, on...

To continue reading

REQUEST YOUR TRIAL