Min for Justice v Dolny
| Jurisdiction | Ireland |
| Judge | Denham J. |
| Judgment Date | 18 June 2009 |
| Neutral Citation | [2009] IESC 48 |
| Court | Supreme Court |
| Date | 18 June 2009 |
and
[2009] IESC 48
Denham J.
Kearns J.
Macken J.
THE SUPREME COURT
EXTRADITION
European arrest warrant
Correspondence - Assault causing harm - Description of offence - Whether facts of offence adequately described - Whether ingredients of offence present - Whether particulars must correspond to assault - Ordinary meaning to be applied to particulars - Wilson v Sheehan [1979] IR 423 - Extradition Act 1965 (No 17) - Non Fatal Offences Against the Person Act 1997 (No 26), ss 2 and 3 - European Arrest Warrant Act 2003 (No 45), ss 5 and 16 - Surrender ordered (360/2008 - SC - 18/6/2008) [2009] IESC 48
Minister for Justice, Equality and Law Reform v Dolny
Facts: The appellant sought to appeal an order of the High Court ordering the surrender of him to Poland. Two points of objection were raised, as to the failure of the warrant to specify the offence as to which the warrant related and secondly, as to whether the offence in the warrant corresponded to any offence under Irish law. The Minister submitted that the offence for which the appellant was convicted corresponded to assault causing harm pursuant to s. 3(1) Non Fatal offences Against the Person Act 1997.
Held by the Supreme Court, per Denham J., ( Kearns & Macken JJ. concurring) that a court could look at all of the information provided, the facts and acts described and give to words their ordinary and popular meaning. The acts alleged, of beating the person by hitting him on the face and head with fists, were ordinary words and phrases which described acts which would have constituted an offence if committed in the jurisdiction. The appeal would be dismissed and the judgment of the High Court affirmed.
Reporter: E.F.
EUROPEAN ARREST WARRANT ACT 2003 S16
NON-FATAL OFFENCES AGAINST THE PERSON ACT 1997 S3(1)
NON-FATAL OFFENCES AGAINST THE PERSON ACT 1997 S2(1)
NON-FATAL OFFENCES AGAINST THE PERSON ACT 1997 S3
NON-FATAL OFFENCES AGAINST THE PERSON ACT 1997 S2
EUROPEAN ARREST WARRANT ACT 2003 S5
EXTRADITION ACT 1965
WILSON v SHEEHAN 1979 IR 423
Judgment delivered the 18th day of June, 2009 by Denham J.
Judgment delivered by Denham [nem diss]
1. This is an appeal by Damian Dolny, the respondent/appellant, hereinafter referred to as "the appellant", from an order of the High Court (Peart J.) made on the 23 rd October, 2008, pursuant to s.16 of the European Arrest Warrant Act, 2003, that he be surrendered to such persons duly authorised to receive him on behalf of the Republic of Poland.
2. In the High Court two points of objection were raised. First, that the warrant failed to specify adequately the offence to which the warrant relates, or the nature and classification of the offence under the law of the State. Secondly, that the offence for which the appellant was convicted on the 14 th March, 2004 does not correspond to any offence under Irish law.
3. In the European arrest warrant, at paragraph E, it is stated:-
"E. Crime (crimes):"
1. This warrant relates in total to: ONE CRIMINAL ACT
2. The circumstances in which the crime/crimes was/were perpetrated:
On 20 th June 2004 in Krzyz Wlkp., Wielkopolska district, acting together and in collaboration with Mr Rafal Berger and Mr Tomasz Wyrwa, he beat Mr Andrzej Lnka by hitting him on the face and head with his fists, thereby causing injury to his body in the form of a contused wound in the left suborbital area and a contused wound in the area of the right superciliary ridge - thus exposing him to the direct danger of sustaining grievous detriment to his health.
3. Category and legal classification of the crime (crimes): art.158 § 1 of the penal code (beating)
Polish legal provisions:
Art. 158 § 1 of the penal code "Any person who takes part in a beating or battery which exposes the wronged person to a direct danger of losing his/her life or which can result in consequences stated in art. 156 § 1 or in art. 157 § 1, is liable to a penalty of up to 3 years' deprivation of freedom." of the penal code.
Art. 156 § 1 of the penal code "Any person who causes grievous bodily harm resulting in:
(1) depriving another person of his/her eyesight, hearing, speech or renders him unable to produce offspring,
(2) another serious disability, serious incurable or long lasting illness, illness which constitutes a real threat to his/her health, lasting mental illness, total or considerable disability to work in his/her profession or lasting disfigurement or deformation of the body, is liable to be sentenced to between one and 10 years' deprivation of freedom."
Art. 157 § 1 of the penal code "Any person who causes impairment of the functioning of a bodily organ or a disturbance of health, other than that defined in art. 156 § 1, is liable to a penalty of deprivation of freedom between 3 months and 5 years."
4. In the European arrest warrant paragraph E.1. is referred to as being not applicable.
5. At paragraph E.2. the warrant states:-
"E.2. A detailed description of the act or acts not included in E.1:"
On 20 th June 2004 in Krzyz Wlkp,. Wielkopolska district, acting together and in collaboration with Mr Rafal Berger and Mr Tomasz Wyrwa, he beat Mr Andrzej Lnka by hitting him on the face and head with his fists, thereby causing injury to his body in the form of a contused wound in the left suborbital area and a contused wound in the area of the right superciliary ridge - thus exposing him to the direct danger of sustaining grievous detriment to his health.
6. At paragraph F of the warrant it is stated as follows:-
"F. Other relevant circumstances relating to the case:"
During the probationary period - that is on 6 th May 2006 the convict perpetrated further criminal acts (under art. 158 § 1 of the penal code - beating), for which the District Court in Trzcianka sentenced him to 10 months' deprivation of freedom on the strength of its enforceable judicial decision dated 11 th August 2006 - case No. VI K 279/06 - by his act Mr Damian Dolny flagrantly breached the established legal order.
Pursuant to art. 75 § 1 of the penal code "The Court orders the execution of the penalty if the convict has committed during the probationary period a similar intentional criminal act for which he was sentenced to a penalty of deprivation of freedom.§ 2. The Court can order the execution of a penalty if the convict, during the probationary period, flagrantly infringes upon the legal order, in particular if he has perpetrated a criminal act other than that defined in § 1 or if he evades paying fines or if he evades supervision or if he fails to perform the obligations or punitive measures imposed on him."
The High Court held that it was clear which offence was committed by the appellant, that the facts were clear, as was the classification of the code by reference to "beating". The learned High Court judge held that the words "beating or battery" were an adequate description of the offence. The learned trial judge pointed out that the appellant was present for his trial and can be taken to be aware of precisely what offence he was charged.
Counsel for the Minister for Justice, Equality and Law Reform, ("the Minister"), submitted to the High Court that the offence for which the appellant was convicted in Poland corresponds to an offence in this jurisdiction of "assault causing harm" contrary to s.3(1) of the Non-Fatal Offences Against the Person Act, 1997, ("the Act of 1997").
Counsel for the appellant referred to s.2(1) of the Act of 1997, said it applied, and submitted that the description of the offence did not include all the necessary ingredients.
The learned High Court judge held that the corresponding offence was that under s.3 of the Act of 1997.
The appellant has appealed against the determination of the High Court. While there are eight grounds in the notice of appeal, in essence there were two principle grounds alleged, and they are interrelated. First, it was submitted that there are insufficient particulars stated on the European arrest warrant, that the surrounding events are not described. Secondly, it was submitted that there is no corresponding offence; which it is alleged arises also because of the insufficiency of the particulars.
To continue reading
Request your trial
-
Attorney General v Damache
...out. 8 8 3.6.7. In relation to the matter of correspondence, the Supreme Court in Minister for Justice, Equality and Law Reform v. Dolny [2009] IESC 48 stated that for the purpose of correspondence, it is appropriate to read the warrant as a whole. Denham J., as she then was, stated that in......
-
DPP v Brown
...Justice v. Dolny [2008] IEHC 326 which was then the subject of an appeal to the Supreme Court in 2009, Minister for Justice v. Dolny [2009] IESC 48. 14 The jury was subsequently charged by the learned trial judge in accordance with his A Brief Outline of the Submissions 15 The submissio......
-
Minister for Justice and Equality v M.Z.
...out in the EAW, then that is sufficient for proof of correspondence. 48 As stated by the Supreme Court in Minister for Justice v. Dolny [2009] IESC 48, the court must consider the totality of the EAW when assessing correspondence. That includes the additional information as forwarded by th......
-
Minister for Justice and Equality v Marjasz
...B [2011] IESC 48 (Unrep, SC, 15/12/2011); Attorney General v Dyer [2004] 1 IR 40; Minister for Justice, Equality and Law Reform v Dolny [2009] IESC 48, (Unrep, SC, 18/6/2009); Minister for Justice, Equality and Law Reform v Sas [2010] IESC 16, (Unrep, SC, 18/3/2010); Minister for Justice v......