Minister for Justice, Equality and Law Reform v Nowakowski

• Jurisdiction: Ireland
• Judge: Mr Justice Michael Peart
• Judgment Date: 17 December 2008
• Neutral Citation: [2008] IEHC 439
• Docket Number: Record Number: No. 74 Ext./2008
• Court: High Court
• Date: 17 December 2008

[2008] IEHC 439

THE HIGH COURT

Record Number: No. 74 Ext./2008

Min for Justice v Nowakowski

Between:

The Minister for Justice, Equality and Law Reform

Applicant

And

Jaroslaw Nowakowski

Respondent

EUROPEAN ARREST WARRANT ACT 2003 S13

CRIMINAL JUSTICE (THEFT & FRAUD OFFENCES) ACT 2001 S4

CRIMINAL JUSTICE (THEFT & FRAUD OFFENCES) ACT 2001 S4(5)

CRIMINAL JUSTICE (THEFT & FRAUD OFFENCES) ACT 2001 S4(2)

CRIMINAL JUSTICE (THEFT & FRAUD OFFENCES) ACT 2001 S2

CRIMINAL JUSTICE (THEFT & FRAUD OFFENCES) ACT 2001 S25

CRIMINAL JUSTICE (THEFT & FRAUD OFFENCES) ACT 2001 S26

CRIMINAL JUSTICE (THEFT & FRAUD OFFENCES) ACT 2001 S17

CRIMINAL JUSTICE (THEFT & FRAUD OFFENCES) ACT 2001 S17(1)

CRIMINAL JUSTICE (THEFT & FRAUD OFFENCES) ACT 2001 S17(2)

CRIMINAL JUSTICE (THEFT & FRAUD OFFENCES) ACT 2001 S17(1)(A)

CRIMINAL JUSTICE (THEFT & FRAUD OFFENCES) ACT 2001 S17(1)(B)

EUROPEAN UNION COUNCIL FRAMEWORK DECISION 13.6.2002 (EUROPEAN ARREST WARRANT ACT 2003) ART 2.2

EUROPEAN ARREST WARRANT ACT 2003 S38

MISUSE OF DRUGS ACT 1977 S15

MISUSE OF DRUGS ACT 1977 S1

EXTRADITION

European arrest warrant

Correspondence - Theft offences - Whether necessary ingredients for offences present - Forgery offence - Handing stolen goods offence - Offence of hiding driving licence - Whether correspondence to offence in State - Drugs related offences - Surrender for serving of sentence - Sentence imposed in respect of offence that corresponded and offence that did not - Whether sentence could be divided - Misuse of Drugs Act 1977 (No 12), s 15 - Criminal Justice (Theft and Fraud Offences) Act 2001 (No 50), ss 4, 17 and 25 - European Arrest Warrant Act 2003 (No 45), s 13 - Surrender ordered (2008/74EXT - Peart J - 17/12/2008) [2008] IEHC 439

Minister for Justice, Equality and Law Reform v Nowakowski

Judgment of

Mr Justice Michael Peart

1 The surrender of the respondent is sought by a judicial authority in Poland under a European arrest warrant which issued there on the 24^th October 2007. It was endorsed for execution here by the High Court on the 16^th April 2008, and in due course on the 21^st May 2008 the respondent was arrested and brought before the High Court as required by s. 13 of the European Arrest Warrant Act, 2003, as amended ("the Act").

2 The respondent's surrender is sought so that he can serve sentences of imprisonment imposed upon him in respect of twelve offences which are set forth in the warrant. I will set out these offences in due course, as the issue pursued by the respondent by way of objection to surrender is essentially one of correspondence in relation to some of the offences.

3 Given the length of sentence imposed in respect of each offence, minimum gravity is satisfied.

4 No issue arises in relation to an undertaking under s. 45 of the Act since the information provided by the issuing judicial authority is sufficient to indicate that the respondent was properly notified of the date, time and place of his trial. No issue is pursued in this regard by the respondent although his Points of Objection, when filed, contained an objection in relation to the lack of such an undertaking.

5 No issue arises in relation to the identity of the respondent, and I am satisfied from the affidavit evidence of the arresting Garda officer, Sgt. Martin O'Neill, that the person who he arrested here on the 21^st May 2008 and who is now before the Court is the person in respect of whom this warrant has been issued.

6 No issue has been raised under sections 21A, 22, 23 or 24 of the Act, and I am satisfied that there is no reason under these sections to refuse to order surrender.

7 I am also satisfied, subject to addressing the issue of correspondence, that there is no reason why surrender is prohibited under any provision of Part III of the Act or the Framework Decision.

8 The twelve offences referred to in the warrant are comprised in four separate files.

9 File 548/04 refers to 7 offences for which the respondent was sentenced to a term of 2 years imprisonment. These offences can be loosely stated to be of theft, burglary, supply of drugs, forgery of a bus pass. I will describe these in more detail in due course.

10 File 262/05 refers to 2 offences, being one of stealing, and one of "possession of marijuana in his blood".

11 File 563/04 refers to 2 offences, being one of handling stolen goods, and one of "hiding driving licence …issued to [victim] acting thus to his detriment".

12 File 282/06 refers to 1 offence of theft.

13 Section 4 defines the offence of theft as follows:

"4.-(1) Subject to section 5, a person is guilty of theft if he or she dishonestly appropriates property without the consent of its owner and with the intention of depriving its owner of it." (my emphasis)

14 Section 4 (5) provides that a person "appropriates" property if he"usurps or adversely interferes with the proprietary rights of the owner of the property".

15 It is worth referring also to the provisions of s. 4(2) of the Act which excludes two situations from the definition of "appropriates" - firstly where"the person believes that he or she has the owner's consent …" and secondly where "… he or she appropriates the property in the belief that the owner cannot be discovered by taking reasonable steps".

16 Section 2 defines "dishonestly" as meaning"without a claim of right made in good faith".

17 It seems to me that, taking account of the definitions of "dishonestly" and "appropriates", s. 4 can be read as follows:

18 '4.-(1) A person is guilty of theft if he or she [without a claim of right made in good faith, usurps or adversely interferes with the proprietary rights of the owner of the property], without the consent of its owner and with the intention of depriving its owner of it.'

19 Six of the twelve offences for which the respondent was convicted are submitted by the applicant to be offences under s. 4 of the Criminal Justice (Theft and Fraud Offences) Act,2001 ("the 2001 Act"). Each of these offences must be looked individually for the purpose of examining correspondence with an offence under s. 4.

20 The first four such offences are the subject offile 548/04 referred to above.

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21 This offence as set out in the warrant states that the respondent"having previously opened the door with the original key, entered the locker room in the Gorzowski Sports Club … took in order to appropriate [the goods set forth] to the detriment of [the various owners thereof]."

22 This offence as set forth in the warrant states that the respondent"having broken up a padlock on the cellar door in the house at ……… entered the cellar and took a mountain bike worth 300 PLN to appropriate it to the detriment of [the owner]."

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23 This offence as set forth in the warrant states that the respondent"on the premises of the [sports centre] took in order to appropriate two backpacks with their contents … .. to the detriment of [named person]."

24 This offence as set forth in the warrant states that the respondent"at Kladowa, in the town watering place took a 3410 Nokia mobile phone from MichalMWilman's backpack thus acting to the detriment of Irena Wilma, telephone owner".

25 Underfile 262/05 the following offence of theft is stated in terms that the respondent "in EIE jeweller's shop stole a gold bracelet valued 2150 PLN acting to the detriment of Elzbieta Furmaniak".

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26 Underfile 282/06 the following offence of theft is stated in terms that the respondent on this date "from the premises of a jeweller's workshop took with a view to appropriate gold jewellery it being 12 bracelets, and 2 chains causing a loss of 2000 PLN to the detriment of Marian Mazmierczak".

27 John Fitzgerald BL for the respondent submits that the necessary ingredients of dishonesty as defined, appropriation as defined, absence of consent of the owner, and intention to deprive the owner of the property either temporarily or permanently are absent from the facts disclosed in respect of all these offences in the warrant. Mr Kennedy on the applicant's behalf contends to the contrary.

28 Taking the adapted version of the s. 4 offence as described above, I am satisfied that all the necessary ingredients for a s. 4 offence are present by reference to the ordinary meaning to be given to words appearing in the warrant and to the context in which they are used. In respect of each offence, the absence of claim made in good faith is obvious from the context in which the actions of the respondent took place. To find the contrary would be absurd in my view. The phrase"taking with a view to appropriate" is sufficient to meet the requirement that he usurped or adversely interfered with the proprietary rights of the owner, and that this occurred in the absence of the consent of the owner....