Lynch v Attorney-General

 
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[2003] IESC 44

THE SUPREME COURT

Denham J.

Hardiman J.

McCracken J.

Appeal No. 175/2003
Appeal No. 176/2003
Appeal No. 157/2003
LYNCH v. AG & CHIEF STATE SOLICITOR & O'TOOLE
IN THE MATTER OF AN APPLICATION UNDER
SECTION 50 OF THE EXTRADITION ACTS 1965– 2001

BETWEEN

WAYNE PATRICK LYNCH
APPLICANT/APPELLANT

AND

PATRICK O'TOOLE
RESPONDENT
JUDICIAL REVIEW
BETWEEN/
WAYNE PATRICK LYNCH
APPLICANT/APPELLANT

AND

THE ATTORNEY GENERAL AND PATRICK O'TOOLE
RESPONDENTS
IN THE MATTER OF AN APPLICATION UNDER
SECTION 47 OF THE EXTRADITION ACTS 1965– 2001
BETWEEN/
THE ATTORNEY GENERAL
APPLICANT/RESPONDENT

AND

WAYNE PATRICK LYNCH
RESPONDENT/APPELLANT

Citations:

EXTRADITION ACT 1965 S50

EXTRADITION ACT 1965 S47

OFFENCES AGAINST THE PERSON ACT 1861 S18

OFFENCES AGAINST THE PERSON ACT 1861 S20

MISUSE OF DRUGS ACT 1977 S3

MISUSE OF DRUGS ACT 1977 S15

MISUSE OF DRUGS ACT 1977 S27

CRIMINAL JUSTICE ACT 1984 S4

LARCENY ACT 1916 S33

LARCENY ACT 1990 S3

PEOPLE V SHAW 1982 IR 1

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

TRIMBOLE, STATE V GOVERNOR MOUNTJOY PRISON 1985 IR 550

KWOK MING WANT V CONROY 1998 3 IR 527

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

OFFENCES AGAINST THE STATE ACT 1939 S30

EXTRADITION ACT 1965 PART III

EXTRADITION ACT 1965 S41

EXTRADITION ACT 1965 S42

EXTRADITION ACT 1965 S43

EXTRADITION ACT 1965 S44

EXTRADITION ACT 1965 S45

EXTRADITION ACT 1965 S46

EXTRADITION ACT 1965 S48

EXTRADITION ACT 1965 S49

EXTRADITION ACT 1965 S51

EXTRADITION ACT 1965 S52

EXTRADITION ACT 1965 S53

EXTRADITION ACT 1965 S54

EXTRADITION ACT 1965 S55

ELLIS V O'DEA 1990 ILRM 87

CONSTITUTION ART 40

QUINN, STATE V RYAN 1965 IR 70

MELLING V MATHGHAMHNA 1962 IR 1

Synopsis:

CRIMINAL LAW

Extradition

Appeal - Delay - Whether delay such that extradition warrants should not be executed - Whether aggravating factors present such that execution of warrants should be refused - Extradition Act, 1965 sections 47 and 50 (157,175 &176/2003 - Supreme Court - 24/07/2003)

Lynch v AG - [2003] 3 IR 416 - [2004] 1 ILRM 129

The applicant brought three appeals, all relating to an extradition application. The first appeal was from an order of the High Court under s. 50 of the Extradition Act 1965, as amended; the second was a judicial review application; and the third arose from s.47 of the Extradition At 1965, as amended. The applicant submitted that because of the activities of a Garda the extradition process should be stopped because it was tainted. The applicant also relied on delay and raised issues on his arrest.

Held by the Supreme Court (Denham, Hardiman and McCracken JJ) in dismissing all of the appeals and affirming the order of the High Court that the behaviour of the Garda in this case in itself did not have the effect of invalidating or rendering inoperative the request for rendition which was otherwise regular.’ The delay was explained and reasonable and there was no evidence whatever of actual or presumptive prejudice to applicant as a result of any delay. The arrest was valid..

1

Judgment delivered on 24th day of July, 2003 by Denham J.

1. Appeals
2

Wayne Patrick Lynch, hereinafter referred to as the applicant, has brought three appeals to this Court, all relate to an extradition application. The first is an appeal from an order of the High Court under s. 50 of the Extradition Act, 1965, as amended; the second is a judicial review; and the third arises from s. 47 of the Extradition Act, 1965, as amended.

2. Undisputed Facts
3

The learned High Court judge found that there were undisputed facts. Thus, the applicant, who was born in Dublin on the 14 thMarch, 1975, was at all times an Irish citizen and domiciled in this country. On the 15th October, 2000 having been in England for a short period of time it is alleged against him that at Stevenage, Hertfordshire, he unlawfully and maliciously wounded one Sayed Nader Seifi with intent to do him grievous bodily harm contrary to s. 18 of the Offences Against the Persons Act, 1861, and secondly on the same occasion that he unlawfully and maliciously wounded the said Mr. Seifi contrary to s. 20 of the Act of 1861. Shortly after the alleged commission of these alleged offences he was arrested and questioned by the police and some hours later he was given station bail, a condition of which compelled him to appear at a later date at the local magistrates court. This he failed to do and a bench warrant was issued for his arrest at some unspecified date. Apparently because of alleged threats to his person the applicant returned to Ireland within a day or two of the 15th October and accordingly he failed to honour his bail conditions. On his return to this jurisdiction he resided with his mother at 4, St. Auden's Terrace, High Street, Dublin 8 which was and is the family home. He stayed at this address until June, 2002 when, for approximately four weeks, he moved with his girlfriend to Ballycullen. Thereafter he resided at 127, Cooley Road, Drimnagh where he was arrested pursuant to the warrants in this case. At all stages he lived openly and whilst at High Street he signed on for certain periods at Bishops Street Labour Exchange and also was in receipt of a rent allowance from the Health Board at Drimnagh. At no time did he return to the United Kingdom or otherwise leave this jurisdiction.

4

On the 20 th September, 2001 a Justice for the Hertfordshire commission area, being a judicial authority in England and Wales, issued a warrant, identified as "Warrant A", for the applicant. This alleged that on the 15th October, 2000 at Stevenage he committed the s.18 offence against the said Mr. Seifi and in respect thereof it directed that constables of the Hertfordshire constabulary arrest the applicant and bring him immediately before the magistrates court. A similar warrant, identified as "Warrant B", was issued on the same day in respect of the alleged offence contrary to s. 20 of the 1861 Act.

5

On the 3rd October, 2001 these warrants were received in this jurisdiction. On the 8th November the advice of the Attorney General was obtained and on the 15 th November these warrants were approved by the Department of Justice. On the 9th September, 2002 the third named respondent in the judicial review proceedings, Assistant Commissioner Patrick O'Toole, endorsed these warrants and they were executed by Sergeant O'Neill on the 1st October, 2002. The applicant's arrest on that occasion was at 127,Cooley Road, Drimnagh, Dublin 12.

6

The applicant was involved in two incidents which gave rise to the preferment of criminal charges against him in this jurisdiction. On the 21 st May, 2000 in Kilkenny it was alleged that the applicant was in unlawful possession of drugs contrary to s. 3 of the Misuse of Drugs Act, 1977, as amended, and also that he had possession of such drugs for the purpose of sale or supply contrary to s. 15 and s. 27 of that Act. Having failed to attend at the District Court, the resulting bench warrant was executed, in the context of the second set of criminal charges against him, by Sergeant Lyng from Kilkenny Garda station on the 4 th October, 2001. Ultimately on the 13 th November of 2001 he was sentenced, on a plea, to twelve months on each charge with the entire period thereof being suspended.

7

In September, 2001 Detective Garda Philip Rowe, from Harcourt Terrace Garda station, Dublin 2, received a complaint in relation to a stolen cheque where an endeavour to obtain IR£18,700.00 by false pretences had been made at the Bank of Ireland, College Green. Apparently the cheque had been stolen on the 10 th September from offices in Merrion Square and had been lodged by the applicant to his own account at College Green some days later. On the 1 stOctober, 2001 Garda Rowe arrested the applicant at 4, St. Auden's Terrace, High Street in respect of the stolen cheque and detained him pursuant to s. 4 of the Criminal Justice Act, 1984. On Harcourt Terrace charge sheet numbers 1531/2001 and 1532/2001 the applicant was charged with intent to defraud the manager of the Bank of Ireland, College Green of IR£18,700.00 by falsely pretending that the subject cheque was good and valid order contrary to common law and, secondly, that he had lodged the stolen cheque knowingly or believing the same to have been stolen contrary to s. 33 of the Larceny Act, 1916, as amended by s. 3 of the Larceny Act, 1990. He was released on station bail and remanded to appear at Court 45 of the Dublin Metropolitan District Court on the 4 th October, 2001.

8

Between the date of his arrest and the remand date Garda Rowe confirmed what he suspected on the 1 st October, namely, that a bench warrant from Kilkenny District Court existed for the accused and accordingly he arranged for Detective Sergeant Jim Lyng to execute the warrant on the 4 th October. On that date the applicant was arrested and taken into custody. Consent was forthcoming to independent bail which the applicant took up but only after spending some days in prison.

9

Between October, 2001 and February, 2002 the applicant appeared on remand before the District Court on several occasions while the book of evidence was being prepared. Apparently the District judge had refused jurisdiction to deal with the aforesaid charges in the District Court. Ultimately on the 1 st February, when the book was still not ready, the District Court struck out the said charges against the applicant. The same were never reactivated, with the Director of Public Prosecutions finally indicating on the 22 nd August, 2002 that the applicant should not be recharged for these offences. That information was communicated to Garda Rowe on the 5 thSeptember, 2002. On the 1 st October, 2002 the warrants from England were executed by Sergeant O'Neill.

3. Disputed Facts
10

In the High Court there were disputed facts. The applicant alleged that in September, 2001 Garda Rowe informed him that the Garda...

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