Newell v O'Toole

JurisdictionIreland
CourtHigh Court
JudgeMr. Justice William M. McKechnie
Judgment Date22 Mar 2002
Neutral Citation[2002] IEHC 22

[2002] IEHC 22

THE HIGH COURT

William M. McKechnie

No. 480 Sp 1999
NEWELL v. O'TOOLE
NICHOLAS NEWELL
APPLICANT

AND

PATRICK O'TOOLE
RESPONDENT

Citations:

THEFT ACT (NORTHERN IRELAND) 1969 S19(2)

THEFT ACT (NORTHERN IRELAND) 1969 S17(1)(B)

LARCENY ACT 1916 S32(1)

FORGERY ACT 1913 S6

EXTRADITION ACT 1965 S47(1)

EXTRADITION (AMDT) ACT 1994 S12

EXTRADITION ACT 1965 S50

EXTRADITION ACT 1965 S50(1)

EXTRADITION ACT 1965 S50(2)

EXTRADITION ACT 1965 S50(2)(C)

EXTRADITION ACT 1965 S3

EXTRADITION (AMDT) ACT 1994 S3(A)

VEHICLE EXCISE & REGISTRATION ACT 1994 S1(1)

BUCHANAN LTD & ANOR V MCVEY 1954 IR 89

HULLY, STATE V HYNES 100 ILTR 145

BYRNE V CONROY 1998 3 IR 1 1997 2 ILRM 99

FORGERY ACT 1913 S1(1)

KENNY OUTLINES OF CRIMINAL LAW 19ED 1965 375

SMITH & HOGAN CRIMINAL LAW 6ED 188

LAW REFORM COMMISSION REPORT ON THE LAW RELATING TO DISHONESTY (LRC 43 - 1992) 273

MCDONALD V MCMAHON UNREP LARDNER 13.1.1989 1989/3/526

EXTRADITION ACT 1965 S(2)(A)(III)

MCFADDEN, STATE V GOVERNOR OF MOUNTJOY PRISON 1981 ILRM 113

EXTRADITION ACT 1965 S50(2)(A)(III)

EXTRADITION ACT 1965 S47

EXTRADITION ACT 1965 S47(1)

EXTRADITION ACT 1965 S47(2)

FURLONG, STATE V KELLY & ANOR 1971 IR 132

HANLON V FLEMING 1981 IR 489

WILSON V SHEEHAN 1979 IR 423

STANTON V O'TOOLE UNREP SUPREME 9.11.2000 2000/17/6386

FORGERY ACT 1913 S1(1)(2)

QUEEN V REILLY 1896 1 QB 309

R V POTTER & ANOR 1958 2 AER 51

ARCHIBOLD CRIMINAL PLEADINGS

CHARLETON CRIMINAL LAW

EXTRADITION ACT 1965 S50

Synopsis:

CRIMINAL LAW

Extradition

Arrest warrant - Obtaining by false pretences - Uttering a forged document -Whether the offences which correspond with the offences in this State of obtaining by false pretences and uttering a forged document are revenue offences - Theft Act (Northern Ireland) 1969 - Extradition Act, 1965 - Extradition (Amendment) Act, 1994 - (1999/480Sp - McKechnie J - 22/3/2002) - [2003] 1 ILRM 1

Newell v O'Toole

Facts: The applicant found a tax disc lying on the street in Monaghan in November 1995. This disc was valid until September 1996 and accordingly he brought it to the Vehicle Licensing Office in Coleraine, where he filled in a form seeking a rebate of monies due on early surrender. In January 1996 the applicant received a cheque for £2,325, which he duly cashed. The applicant was subsequently arrested on foot of two warrants issued by the Resident Magistrate and Justice of the Peace for Northern Ireland. Warrant A related to an offence contrary to Section 19(2) of Theft Act (Northern Ireland), 1969. Warrant B recited an offence contrary to Section 17(1)(b) of Theft Act (Northern Ireland) Act, 1969. By order dated 16 November 1999 the District Court ordered that the applicant, pursuant to Section 47(1) of the Extradition Act, 1965(the 1965 Act), as substituted by Section 12 of the Extradition (Amendment) Act, 1994, be delivered into the custody of a member of the Royal Ulster Constabulary for conveyance to the Authorities in Northern Ireland. The Court indicated that in relation to Warrant A the corresponding offence in this State was obtaining by false pretences contrary to section 32(1) of the Larceny Act, 1916 and as regards Warrant B the corresponding offence was uttering a forged document contrary to Section 6 of the Forgery Act, 1913. On the same day the applicant issued a Special Summons wherein he sought his release pursuant to the provisions of Section 50 of the 1965 Act.

The applicant relies on two arguments in this regard. Firstly the applicant contends that either the offence specified in Warrant A or in Warrant B is an offence in connection with taxes, duties, or exchange control, that is to say is a revenue offence. Secondly, in relation to Warrant B the applicant asserts that the indictable offence specified in the District Court Order is not in fact a corresponding offence in this jurisdiction to that alleged in Warrant B. The applicant claims that the offences are revenue offences because there was a loss to the Exchequer in the sum of £2,325.

Held by McKechnie J in refusing the applicant’s release under Section 50 of the 1965 Act: 1. That the applicant bears the onus of proving that the offence in respect of which his extradition is sought is a revenue offence. Whether such an offence is or is not a revenue offence is a matter of Irish Law. In this regard the provisions of the 1965 Act material to this case must be construed in a strict or literal manner. In so doing words must be given their ordinary and natural meaning, no gloss may be placed on such words and any reasonable doubt or ambiguity must be resolved in favour of the applicant. Furthermore the Court is entitled to look at the true nature of the offence and to scrutinise the substance of the claim made.

Byrne v. Conroy [1998] 3 I.R. 1 followed.

2. That a lay person would describe the offence with which the applicant was charged as the theft of money. The Northern Ireland Authorities have not accused him of any offence under the Revenue Legislation and if he was charged with one of the offences specified in the warrants he would not be facing any revenue offence known to Northern Ireland. The applicant quite simply found the property of another and attempted, successfully, by using what he found to obtain for himself a monetary gain.

3. That despite the fact that there is a connection between the Revenue Authority/Exchequer and the applicant the charges brought against him do not constitute revenue offences.

4. That in considering the issue of corresponding offences the basic enquiry is to discover whether the several ingredients which constitute the offence specified in the warrant, or one of more of such ingredients, constitute an offence under the law of the State and, if they do, whether that offence (the correspondence) is an indictable offence or, if not, whether it is punishsble on summary conviction by imprisonment for a maximum period of at least six months.

The State (Furlong) v Kelly and Anor. 1971 IR 132 followed.

5. That the facts underlying the offence specified in Warrant B are facts which are reasonably capable of corresponding in Irish law to an indictable offence or to an offence which is punishable on summary conviction for a maximum period of at least six months. This is so despite the fact that a more appropriate corresponding offence than the one designated by the learned District Judge exists.

Reporter: L O’S

1

Judgment of Mr. Justice William M. McKechnie dated the 22nd day of March 2002

2

1. On the 14th day of November 1997, under the hand of William Richard Wilson, Resident Magistrate and a Justice of the Peace for Northern Ireland, two Warrants of Arrest issued for and in respect of the applicant, who then had an address at Bella, Collooney, County Sligo. The first Warrant, identified as "Warrant A" recited as follows:-

"Whereas a complaint has been made on oath and in writing that the defendant, Nicholas Newell, formerly of 6 St. Cianan's Villas, Duleek, County Meath, Ireland, and now of Bella, Collooney, County Sligo, Ireland, on the 8th day of January 1996, in the County Court Division of Antrim, with a view to gain for himself dishonesty procured an employee of Driver and Vehicle Licensing Northern Ireland to execute a valuable security, namely a cheque for £2,325, by deception, namely by falsely representing that vehicle license serial number 90259265 was taken out by him or transferred to him with vehicle registration number TIB 1182 and that he was therefore entitled to a refund of £2,325.

Contrary to Section 19(2) of the Theft Act (Northern Ireland) 1969. "THIS IS TO COMMAND YOU, to whom this warrant is addressed, to arrest the said Nicholas Newell and bring him before a magistrates court for the said county court division."

3

2. The second Warrant, "Warrant B", was couched in the following terms:-

"Whereas a complaint has been made on oath and in writing that the defendant, Nicholas Newell, formerly of 6 St. Cianan's Villas, Duleek, County Meath, Ireland and now of Bella, Collooney, County Sligo, Ireland, on the 30th day of December, 1995, in the County Court Division of Antrim, dishonestly and with a view to gain for himself, in furnishing information to Driver and Vehicle Licensing Northern Ireland produced a document required for an accounting purpose, namely Form V 90(N.I.) for the refund of a vehicle licence, which to his knowledge was misleading, false or deceptive in a material particular in that it purported to show that the said licence was taken out by him or transferred to him with vehicle registration number TIB 1182.

Contrary to Section 17(1)(b) of the Theft Act, (Northern Ireland) 1969.

THIS IS TO COMMAND YOU to whom this warrant is addressed to, to arrest the said Nicholas Newell and bring him before the Magistrates Court for the said County Court Division".

4

3. On the 17th of August 1998, the Respondent, as Assistant Commissioner of An Garda Síochána, authorised the execution of both of these Warrants in this State by any member of the Garda Síochána. On either the 13th or 17th of September, 1998, the precise date being irrelevant, the said Warrants were executed and the applicant brought before the District Court. Ultimately by Order dated the 16th day of November, 1999, that Court, having indicated that in relation to Warrant A the corresponding offence in this State was "obtaining by false pretences contrary to the Section 32(1) of the Larceny Act, 1916" and in relation to Warrant B was "uttering a forged document contrary to Section 6 of the Forgery Act, 1913", ordered that the applicant, pursuant to Section 47(1) of the Extradition Act, 1965as substituted by Section 12 of the Extradition (Amendment) Act, 1994, be delivered into the custody of a member of The Royal Ulster Constabulary for conveyance onwards to the authorities in Northern Ireland. On the same day a Special...

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