Min for Justice v Sas

• Jurisdiction: Ireland
• Judge: Mr. Justice Geoghegan
• Judgment Date: 18 March 2010
• Neutral Citation: [2010] IESC 16
• Judgment citation (vLex): [2010] 3 JIC 1802
• Court: Supreme Court
• Date: 18 March 2010

[2010] IESC 16

THE SUPREME COURT

Murray C.J.

Geoghegan J.

Finnegan J.

Appeal Nos. 444 & 445/08

Min for Justice v Sas

IN THE MATTER OF THE EUROPEAN ARREST WARRANT ACT, 2003 AS AMENDED

BETWEEN/

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM

Applicant/Respondent on the appeal/

Appellant on the cross-appeal

and

DARIUSZ SAS

Respondent/Appellant on the appeal/

Respondent on the cross/appeal

NON-FATAL OFFENCES AGAINST THE PERSON ACT 1997 S5(1)

EUROPEAN ARREST WARRANT ACT 2003 S5

NON-FATAL OFFENCES AGAINST THE PERSON ACT 1997 S5

MIN FOR JUSTICE v DESJATNIKOVS 2009 1 IR 618 2008/40/8711 2008 IESC 53

MIN FOR JUSTICE v SLICZYNSKI UNREP SUPREME 19.12.2008 2008/42/9026 2008 IESC 73

MIN FOR JUSTICE v FERENCA 2008 4 IR 480 2009 1 ILRM 291 2008/40/8765 2008 IESC 52

EUROPEAN ARREST WARRANT ACT 2003 S38

PILECKI v CIRCUIT COURT OF LEGNICA, POLAND 2008 1 WLR 325 2008 4 AER 445 2008 UKHL 7

CRIMINAL JUSTICE (THEFT & FRAUD OFFENCES) ACT 2001 S4

CRIMINAL JUSTICE (THEFT & FRAUD OFFENCES) ACT 2001 S8

CRIMINAL JUSTICE (THEFT & FRAUD OFFENCES) ACT 2001 S8(1)

CRIMINAL JUSTICE (THEFT & FRAUD OFFENCES) ACT 2001 S8(2)

CRIMINAL JUSTICE (THEFT & FRAUD OFFENCES) ACT 2001 S4(1)

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

CRIMINAL DAMAGE ACT 1991 S2

EXTRADITION

European Arrest Warrant

Correspondence - Description - Whether acts described with sufficient particularity to permit finding of corresponding offence - Whether surrender could be ordered for two offences for which composite sentence had been imposed - Whether 'stole' in arrest warrant should be given normal popular meaning - Whether 'stole' in arrest warrant sufficient to permit finding of corresponding offence - Minister for Justice, Equality and Law Reform v Desjatnikovs [2008] IESC 53, [2009] 1 IR 618; Minister for Justice, Equality and Law Reform v Sliczynski [2008] IESC 73 (Unrep, SC, 19/12/2008) and Minister for Justice, Equality and Law Reform v Ferenca [2008] IESC 52, [2008] 4 IR 480 considered - Pilecki v Circuit Court of Legnica, Poland [2008] 1 WLR 325 followed - Criminal Damage Act 1991 (No 31), s 2 - Non-Fatal Offences Against the Person Act 1997 (No 26), s 5 - Criminal Justice (Theft and Fraud Offences) Act 2001 (No 5), ss 4 & 8 - European Arrest Warrant Act 2003 (No 45), ss 5 & 38 - Appeal dismissed, cross appeal allowed (444/2008 & 445/2008 - SC - 18/3/2010) [2010] IESC 16

Minister for Justice, Equality and Law Reform v Sas

Facts: An appeal and cross-appeal arose from a decision of the High Court relating to a single European arrest warrant emanating from a judicial authority in Poland and relating to four separate offences for which the appellant had been sentenced in Poland. The offences related to a "deliberate intention to steal". The principal issue arising in the High Court was the question of correspondence, pursuant to s. 5 European arrest warrant Act 2003. The appellant also raised an objection to the use of additional material and two separate offences with a composite sentence. The High Court had made of order for surrender as to two of four offences outlined. The question arose as to the meaning of the word "stole".

Held by the Supreme Court per Geoghegan J. (Murray CJ, Finnegan JJ. Concurring) that the appeal would be allowed and appropriate order for surrender would be made. The learned trial judge ought to have adopted the popular meaning of "stole" as expressed in the warrant and if he had, he would surely have come to the conclusion that the behaviour did in fact constitute an offence under section 4 if committed in Ireland. The popular meaning of the word "stole" included mens rea. It was too late to entertain an objection as to additional material.

Reporter: E.F.

1 JUDGMENT of Mr. Justice Geoghegan delivered the 18th day of March 2010

Judgment delivered by Geoghegan J. [nem diss]

2 As there is an appeal and cross-appeal to this court and to avoid confusion, I will refer throughout this judgment to the above-named Minister as simply "the Minister" and to the above-named Dariusz Sas as simply "the appellant".

3 The appeal and cross-appeal derive from the decision of the High Court (Peart J.) relating to a single European Arrest Warrant emanating from a judicial authority in Poland and relating to four separate offences for which the appellant had been sentenced in Poland. The learned High Court judge had refused to surrender the appellant in respect of the first two offences specified in the warrant but had ordered his surrender in respect of the remaining two offences. The appellant has appealed the said order for his surrender and the Minister has cross-appealed in respect of the refusal to surrender on foot of the first two named offences. To understand the approach adopted by the High Court, it is important that I summarise the contents of the warrant.

4 In the section of the warrant describing the offences, the first offence is described as follows:

5 i "I. from 17 ^th September 2002 to 10 ^th February 2003 in Koszalin, at BP Orion petrol station acting within short periods of time and realizing his deliberate intention he stole

6 · - on 17 ^th September 2002, 29.42 litres of Pb-95 petrol worth 100.32 PLN,

7 · - on 24 ^th September 2002, 18.98 litres of Pb-95 petrol worth 69.74 PLN,

…………………………………

…………………………………".

8 I do not find it necessary to give the entire quotation. The two examples I have cited are the first two in a list of eighteen later dates with, in each instance, a particular litre quantity of petrol and the value thereof specified. At the end of the list are the following words:

"which was a total amount of 3,064.07 PLN to the detriment of BP Orion Koszalin (II K417/03)."

9 The description of the second offence was as follows:

"II. On the night of 13/14 March 2003 in Koszalin he stole two fog headlights and other things worth together 1,000 PLN from VW Passat, registration number ZK17361 which was to the detriment of Dorota Zak (II K612/03)."

10 The third offence was described as follows:

"III. From February 2005 to September 2005 in Koszalin he abused his mother Teresa Sas psychically by opening up quarrels and threatening her life by mutilation and burning out. He also insulted her. (II K87/06)."

11 The fourth offence was then described as follows:

"IV. 2 ^nd December 2005 in Koszalin in Zwyciestwa Street while being drunk (O.32 mg/I) he was cycling on a public road (II K8706)."

12 The principal issue in the High Court was the question of correspondence. The proceedings did not involve any offence within the box E.1 which dispensed with the necessity of proving correspondence. On the ground of the lack of correspondence and only on that ground the High Court refused to surrender, as already mentioned, in relation to the first and second offences listed in the warrant but made an order for surrender in respect of the third and fourth offences. As the appellant has appealed that last order, I will deal with that ahead of the cross-appeal by the Minister in respect of the refusal order.

13 For this purpose I turn first to the judgment of Peart J. and his reasons for the granting of the order of surrender in respect of the third and fourth offences. He delivered an ex tempore judgment in which in relation to the last two offences he said the following:

"Those two offences, one being, certainly in this jurisdiction and I suspect in Poland is either a misdemeanour or certainly a minor offence of some kind, which is riding his bicycle while drunk, and the other offence of abusing his mother and making threats to her life. There is some supplemental information in relation to the threat to kill offence which has been supplied by the issuing judicial authority in a letter dated 27 ^th October 2008. That letter adds some information to the description of this offence as contained in the warrant itself. That information states that the respondent made a threat to kill to his mother, intending that they (sic) would believe that the threat would be carried out. That, added to what is contained in the warrant itself, namely, that he psychically abused his mother by opening up quarrels and threatening her life by mutilation and burning out is said to amount to an offence here under section 5 of the Non-Fatal Offences against the Person Act, 1997. Mr. Byrne has submitted in relation to the threat to kill offence that it is important to notice that the offence is not stated to have occurred on a particular date, but rather during a period from February 2005 to September 2005, and that there was a lack of detail as to exactly what the threat consisted of, and the date and place perhaps at which it is said to have occurred. And certainly the particular date on which it occurred is not contained other than by reference to a period from February '05 to September '05. But it is stated that it occurred in Koszalin which I presume is a town in Poland. But the section 5 offence itself does not actually require that the particular means by which the threat was carried out was made, be specified, in my view because the section itself says that it is a threat by any means. There is, nevertheless, some information as to what the threat consisted of, because in the warrant itself, it says that he threatened her life by mutilation and burning out. I think that is fairly clear as to what it is alleged he did and for which he has actually been convicted in Poland. And as I have said, the additional information just adds an extra ingredient that would be necessary for the section 5 offence, namely, that it is alleged that the respondent intended that she would believe that that threat would be carried out.

So, in my view, there is sufficient in this warrant for...