Min for Justice v Zukauskas

• Jurisdiction: Ireland
• Judge: Mr Justice Michael Peart
• Judgment Date: 02 July 2009
• Neutral Citation: [2009] IEHC 341
• Court: High Court
• Date: 02 July 2009

[2009] IEHC 341

THE HIGH COURT

Record Number: No. 16 Ext./2009

Min for Justice v Zukauskas

Between:

The Minister for Justice, Equality and Law Reform

Applicant

And

Arunas Zukauskas

Respondent

EUROPEAN ARREST WARRANT ACT 2003 S13

EUROPEAN ARREST WARRANT ACT 2003 S5

EUROPEAN ARREST WARRANT ACT 2003 S21A

EUROPEAN ARREST WARRANT ACT 2003 S22

EUROPEAN ARREST WARRANT ACT 2003 S23

EUROPEAN ARREST WARRANT ACT 2003 S24

EUROPEAN ARREST WARRANT ACT 2003 PART III

NON-FATAL OFFENCES AGAINST THE PERSON ACT 1997 S2

NON-FATAL OFFENCES AGAINST THE PERSON ACT 1997 S3

NON-FATAL OFFENCES AGAINST THE PERSON ACT 1997 S3(1)

NON-FATAL OFFENCES AGAINST THE PERSON ACT 1997 S4

NON-FATAL OFFENCES AGAINST THE PERSON ACT 1997 S2(1)

MASON v LEAVY 1952 IR 40

RENT RESTRICTIONS ACT 1946

LANDLORD & TENANT ACT 1931

FAGAN v METROPOLITAN POLICE CMSR 1969 1 QB 439 1968 3 WLR 1120 1968 3 AER 442

AG v DYER 2004 1 IR 40 2004 1 ILRM 542 2004/3/491

MIN FOR JUSTICE v WROBLEWSKI UNREP PEART 9.7.2008 2008/42/9135 2008 IEHC 263

MIN FOR JUSTICE v DUNKOVA UNREP PEART 30.5.2008 2008/40/8749 2008 IEHC 156

CRIMINAL JUSTICE (THEFT & FRAUD OFFENCES) ACT 2001 S4

MIN FOR JUSTICE v HAHUI UNREP PEART 18.7.2008 2008/41/8841 2008 IEHC 259

MYLES v SREENAN 1999 4 IR 294 1999/20/6149

EUROPEAN UNION COUNCIL FRAMEWORK DECISION 13.6.2002 (EUROPEAN ARREST WARRANT ACT 2003) PREAMBLE PARA 5

NON-FATAL OFFENCES AGAINST THE PERSON ACT 1997 S18

CHARLETON & MCDERMOTT & BOLGER CRIMINAL LAW 1ED 1999 PARAS 9.83-9.92

MIN FOR JUSTICE v DOLNY UNREP PEART 23.10.2008 2008/40/8743 2008 IEHC 326

WILSON v SHEEHAN 1979 IR 423

EXTRADITION

European arrest warrant

Correspondence - Facts - How correspondence should be examined - Whether facts contained in warrant sufficient to correspond to offence in State - Whether facts of alleged offence fall short of satisfying all ingredients necessary for offence of assault - Consent - Whether court entitled to adopt realistic approach to establishment of correspondence - Circumstances of offence as contained in warrant - Inference of lack of consent - Whether absence of consent could be implied from nature of injury - Whether words used to identify specified offence should be given ordinary or popular meaning - Mason v Leavy [1952] IR 40; Fagan v Metropolitan Police Commissioner [1969] 1 QB 439; Attorney General v Dyer [2004] 1 IR 40; Minister for Justice v Wroblewsky [2008] IEHC 263, (Unrep, HC, Peart J, 9/7/2008); Minister for Justice v Dunkova [2008] IEHC 156, (Unrep, HC, Peart J, 30/5/2008); Minister for Justice v Hahui [2008] IEHC 259, (Unrep, HC, Peart J, 18/7/2008); Myles v Sreenan [1999] 4 IR 294 and Wilson v Sheehan [1979] IR 423 considered - Minister for Justice v Dolny [2008] IEHC 326, (Unrep, HC, Peart J, 23/10/2008) applied - Non-Fatal Offences Against the Person Act 1997 (No 26), ss 2 and 3 - European Arrest Warrant Act 2003 (No 45), s 5 - Order for surrender granted (2009/16Ext - Peart J - 2/7/2009) [2009] IEHC 341

Minster for Justice, Equality and Law Reform v Zukauskas

Facts The surrender of the respondent was being sought by the judicial authorities in Lithuania on foot of a European arrest warrant. It was alleged that the respondent had committed an offence of assault in Lithuania. The main issue that arose in the course of proceedings was whether the facts contained in the warrant were sufficient to correspond to an offence in the Irish jurisdiction. On behalf of the respondent it was contended that there was a significant difference in wording of the corresponding offences. The phrase 'without the consent of the other' was absent in the Lithuanian offence (unlike the Irish provision) and it could not be assumed that the victim had not given consent. It was further contended that a penal statute should be strictly construed. It was submitted on behalf of the Minister for Justice that it was crystal clear on the facts contained in the warrant that what had occurred was other than by consent.

Held by Peart J in granting the order of surrender. It was clear that the warrant should not be parsed and analysed as if it was an indictment, and that a common-sense approach should be adopted in the search a reasonable interpretation. Such an approach disclosed a correspondence with an offence of assault and an offence causing harm in this State by reference to the ordinary meaning to be given to words contained in the warrant. Matters relating to consent regarding the infliction of the injuries, might well be matters for the prosecution to prove or might be put forward by the respondent at his trial. The mere fact that there was not a specific statement in a European arrest warrant regarding consent could not be a sufficient impediment to a finding of correspondence in the offences.

Reporter: R.F.

1 Mr Justice Michael Peartdelivered on the 2nd day of July 2009:

2 The surrender of the respondent is sought by a judicial authority in Lithuania under a European arrest warrant which issued there on the 20 ^th March 2008. That warrant was endorsed for execution by the High Court on the 28 ^th January 2009, and in due course on the 23 ^rd March 2009 the respondent was arrested on foot of same and brought before the High Court forthwith as required by s. 13 of the European Arrest Warrant Act, 2003, as amended ("the Act").

3 I am satisfied from the affidavit evidence of Sergeant Martin O'Neill filed on this application that the person who he arrested on that date and who is before the Court is the person in respect of whom this warrant has been issued.

4 Surrender is sought so that the respondent can face prosecution for a single offence which can be described as an assault. I will come to the details thereof in due course. An issue arises as to whether the facts contained in the warrant are sufficient to correspond to an offence in this State under the provisions of s. 5 of the Act. The offence for which his surrender is sought meets the minimum gravity requirement inthe issuing state since it carries a potential maximum punishment of three years imprisonment.

5 There is no reason appearing on this application why surrender should be refused under any of the provisions of sections 21A, 22, 23 or 24 of the Act. No issue has been raised to the contrary.

6 Subject to addressing the issue raised as to correspondence, surrender is not prohibited by any provision contained in Part III of the Act, or the Framework Decision.

Correspondence:

7 The facts alleged to constitute the offence for which surrender is sought are set out as follows in the warrant:

"[the respondent] on 12 August 2006 at approximately 21.00, being alcohol intoxicated, in Pagerve village, Birzu district, in the veranda of the house belonging to Tabita Ausma Timukiene and in the courtyard intentionally punched at least twice Stanislovas Karitonas at the face and once at the head causing him to suffer bruises of soft tissue of the face and broken left mandibular ramus i.e. he intentionally injured the victim causing him minor health impairment. [The respondent] is accused of committing a criminal act specified in part 1 art. 138 of the Criminal Code of the Republic of Lithuania." (my emphasis)

8 Ronán Kennedy BL for the applicant has submitted that if these alleged acts were done in this State an offence would be committed under either of s. 2 or s. 3 of the Non-Fatal Offences Against the Person Act, 1997. Section 2 thereof provides:

9 2 "2. (1) A person shall be guilty of the offence of assault who, without lawful excuse, intentionally or recklessly-

10 (a) directly or indirectly applies force to or causes an impact on the body of another, or

11 (b) causes another to believe on reasonable grounds that he or she is likely immediately to be subjected to any such force or impact,

12 without the consent of the other.

13 (2) ………

14 (3) No such offence is committed if the force or impact, not being intended or likely to cause injury, is in the circumstances such as is generally acceptable in the ordinary conduct of daily life and the defendant does not know or believe that it is unacceptable to the other person."

15 Section 3 (1) of the Act provides:

"3. - (1) A person who assaults another causing him or her harm shall be guilty of an offence."

16 "Harm" for the purpose of section 3 is defined in section 1 as "harm to body or mind and includes pain and unconsciousness".

17 Mr Kennedy has not submitted that the facts of this case could come within the offence under s. 4 of that Act of causing "intentionally or recklessly causing serious harm" (my emphasis). In that regard, "serious harm" is defined as "injury which creates a substantial risk of death or which causes serious disfigurement or substantial loss or impairment of the mobility of the body as a whole or of the function of any particular bodily member or organ."

18 John Byrne BL for the respondent submits that the facts of the alleged offence fall short of satisfying all the ingredients necessary for an offence of assault of an offence of assault causing harm. In particular he refers to the necessity to allege that what occurred in the incident occurred "without the consent of the other" as provided in s.

19 2(1) of the Act. He submits therefore that in order to convict a person in this State for such an offence it would have to be established that the assault or the assault causing harm in circumstances where the 'victim' did not consent. There is no such direct allegation contained in the recitation of the facts in the warrant, and he submits that this is fatal to the issue of correspondence, and that this Court must not simply infer from the facts in the warrant that the victim had not given consent.

20 Mr Byrne has referred to the judgment of Murnaghan J. in the Supreme Court in Mason v. Leavy [1952] IR. 40. This judgment arose out of a...