State (Magee) v O'Rourke

• Jurisdiction: Ireland
• Judgment Date: 31 July 1971
• Date: 31 July 1971
• Docket Number: [1968. No. 44 SS.]
• Court: Supreme Court

The State (Magee) v. O'Rourke

THE STATE (at the Prosecution of GODFREY GEORGE MAGEE)

and

JOHN A. O'ROURKE

[1968. No. 44 SS.]

Supreme Court

Criminal law - Extradition - Political offence - Evidence by prisoner that he would be prosecuted for a political offence if extradited - No rebutting evidence - Evidence - Witness - Privilege against self-incrimination - Whether applicable to incrimination under foreign law - Extradition Act, 1965 (No. 17), s. 50, sub-s. 2 (b).

Section 50 of the Extradition Act, 1965, provides that a person arrested under Part III of that Act shall be released if the High Court so directs pursuant to the section, and it further provides that the High Court may so direct where it is of opinion that there are substantial reasons for believing that the person arrested will be prosecuted or detained for a political offence, or an offence connected with a political offence, if he is removed from the State. The prosecutor was arrested in Dublin under Part III on the authority of a warrant, issued in Northern Ireland and duly endorsed, that ordered his detention for the purpose of bringing him before the courts in Northern Ireland to answer charges that he had committed certain non-political offences there. The District Court made an order directing that the prosecutor be handed over to the police of Northern Ireland. At the hearing of habeas corpus proceedings brought by the prosecutor in the High Court, he filed affidavits and gave oral testimony to the effect that he would be charged with political offences, or with offences connected therewith, if he were returned to Northern Ireland; and he submitted that he should be released under s. 50 of the Act of 1965. No rebutting evidence was adduced on behalf of the respondent.

Held by O'Keeffe P. and confirmed by the Supreme Court ( Ó Dálaigh ó dálaigh C.J., Walsh and Budd JJ.; FitzGerald and Teevan JJ. dissenting) that the prosecutor had established prima facie evidence of facts which constituted"substantial reasons" within the meaning of s. 50, sub-s. 2 (b), of the Act of 1965, and that he should be released as that evidence had not been rebutted.

Quere: Whether a witness is entitled to privilege against self incrimination under foreign law.

Habeas Corpus.

The facts have been summarised in the head-note and appear in the judgments, post. On the 14th February, 1968, the prosecutor obtained a conditional order of habeus corpus ad subjiciendumfrom the High Court (O'Keeffe P.) and the order was directed to Garda Inspector John A. O'Rourke of the Bridewell Garda Station, the respondent. The prosecutor brought a motion for an order absolute notwithstanding the cause shown by the respondent, who filed affidavits.

The respondent appealed to the Supreme Court from the judgment and order of the High Court.

O'Keeffe P. :—

I do not need to hear you, Mr. Sorohan. Here I have a man who alleges that there are substantial grounds for believing that he will be prosecuted or detained for a political offence if he is returned to Northern Ireland. A part of the story which he puts up, twice on affidavit and once orally before me, is that he was in fact detained on a number of occasions in the past. No attempt was made in the affidavit filed by Inspector O'Driscoll to deny this, but although there was no denial of it Mr. Sheridan contended that he was entitled to cross-examine the prosecutor as to the truth of his averments. At first I was inclined to think that a party who wished to cross-examine ought to raise some ground which tended to show that the evidence about which he wished to cross-examine was not trustworthy, and I was disinclined to allow cross-examination; but this matter was resolved for me by Mr. Sorohan agreeing that the prosecutor would make himself available for cross-examination. He has attended and he has been cross-examined at some length. He has stuck to the story that he was in fact arrested no less than five times, detained no less than five times, under the Special Powers Act, and an opportunity has been afforded by me to counsel for the respondent, and those concerned, to give evidence in some form contradicting that statement of the prosecutor made so many times. Mr. Sheridan has expressly declined to avail of this invitation. Now, I am entitled to have my suspicions about the evidence of any witness and, indeed, one reacts unfavourably to a person who seeks to evade going back to any other jurisdiction where he is lawfully wanted to answer an apparently lawful charge brought against him; one's normal reaction would be to bear in mind the possibility that a person who seeks to escape from justice and to avoid being returned to justice might make up a story in order to avoid being returned to the jurisdiction in which he is wanted on a criminal charge. If I were to choose between a statement made by an accused person seeking to evade justice in another jurisdiction and a similar sworn statement made by a person with knowledge of the facts in that jurisdiction, I think I would naturally come down on the side of the authorities and, faced with such a choice, I would probably reject the evidence of the prosecutor and accept that of the other witness.

Here I have no such choice. I have only evidence on one side. It is made not once, twice, three times, but four times, admittedly with differences, and I am not prepared to reject this out of hand merely because the respondent says I should.

I think there are substantial grounds for believing what the prosecutor says. Accordingly, I think that this is a case which comes under s. 50 of the Extradition Act, 1965, and accordingly I direct that the prosecutor be released under sub-s. 1 of that section.

Cur. adv. vult.

Ó Dálaigh C.J. ó dálaigh :—

On the 25th September, 1964 the Commission of Oyer and Terminer in Belfast issued a warrant for the arrest of one George Magee of Thornhill, Upper Ballysillan, who stood indicted before the Commission on four charges, viz., (1) housebreaking with intent, contrary to s. 27 (2) of the Larceny Act, 1916; (2) using a motor vehicle on the public highway without insurance contrary to s. 41 of the Road Traffic Act (Northern Ireland), 1955; (3) malicious damage to property contrary to s. 51 of the Malicious Damage Act, 1861; and (4) assault on a peace officer contrary to s. 38 of the Offences Against the Person Act, 1861. The warrant recited that Magee had not appeared to abide his trial on this indictment. The court therefore issued its warrant, directed to the Commissioner of the Royal Ulster Constabulary, to apprehend Magee and bring him before the court or before one of Her Majesty's Justices of the Peace that he might be further dealt with in accordance with law.

By an endorsement dated the 4th February, 1966, Deputy Commissioner Carroll of the Garda Síochána authorised the execution of the warrant in the State by any member of the...