Supreme Court dismisses appeal where trial judge accepted conflicting oral evidence over un-cross-examined affidavit.

THE SUPREME COURT

NO. 100/04

IN THE MATTER OF THE EXTRADITION ACTS

Denham J.

Geoghegan J.

McCracken J.

BETWEEN/

AKPOJO TOR KOULIBALY

APPLICANT/APPELLANT

AND

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM

RESPONDENT

Judgment delivered on the 29th day of July, 2004 by Denham J.

1. This is an appeal by Akpojo Tor Koulibaly, the applicant/appellant, hereinafter referred to as the applicant, from the judgment and

order of the High Court (Ó Caoimh J.) given on 26th February, 2004. This application arises in circumstances where the Federal

Republic of Germany has requested the extradition of the applicant from Ireland in relation to offences of fraud and forgery.

2. In the High Court on the 26th February, 2004, Ó Caoimh J. made findings of fact as follows. The applicant, who uses the alias

Samuel Onojighovie, has been sentenced to three years imprisonment by the Regional Court of Schleswig Holstein. The learned High

Court judge referred to the documentation in relation to the request for extradition, and stated that this is a case where in addition

to the request for extradition from Germany, there was also a request for mutual assistance from the United Kingdom. A search

warrant for the search of the applicant’s premises had been obtained from the District Court in the context of a request for mutual

assistance, and was dealt with by Superintendent O’Mahony pursuant to s. 55 of the Criminal Justice Act, 1994. Both the request for

extradition and the request for mutual assistance were made at approximately the same time.

3. There was a conflict of fact on the affidavits filed on behalf of the respondent and those filed on behalf of the applicant as to the

arrest of the applicant pursuant to the Extradition Acts and as to the events which took place relating to the search warrant for the

benefit of mutual assistance.

The report of the ex tempore judgment of Ó Caoimh J. provides as follows:

“Oral evidence was given by Sergeant Martin O’Neill. He gave evidence of a provisional warrant for the arrest of the respondent

having issued from this Court (White J. on the 1st July, 2003) pursuant to a request from the German Authorities for the

extradition of the respondent.

He indicated that he was not at the house in question at the time when the same was being searched but that he arrived there

at 3.45 p.m. and was admitted to the house by the respondent who answered the door after he showed his identification to the

respondent and identified himself. He showed the respondent the arrest warrants and the respondent identified himself as

Samuel Onojighovie. Sgt. O’Neill indicated that the gardaí who had previously been in the house had left it before he knocked on

the front door. He had the original warrant in his possession and showed same to the respondent and he served the respondent

with a copy of same and the provisional request. He confirmed in evidence that he read over the warrant to the respondent at

the time. He conveyed the respondent to Tallaght Garda Station where he was served by Superintendent Coburn with the

documents required by s. 27 of the Extradition Act.

Evidence was given by Supt. O’Mahony to the effect that he did not make a memorandum of the interview of the respondent

but that the respondent had consented to being questioned. A statement was taken down from the respondent who signed

same and consented to speak to British police officers. He indicated that at no time was the respondent arrested or

handcuffed. He confirmed that officers had guns. He indicated that he went into the respondent’s house first, accompanied by

other members of An Garda Síochána. He indicated that a half an hour later he brought British police officers into the house.

Counsel for the respondent made a number of submission[s] pertaining to the commencement of the proceedings and referred to

Order 1 r. 1 of the Rules of the Superior Courts and indicated that the Supreme Court in a case of [A.G. v. Ashleigh-Nicholson]

had, in an unrecorded judgment given ex tempore, indicated that proceedings of this nature were valid notwithstanding the

fact that they were not commenced by originating summons.

Secondly counsel submitted that the arrest of the respondent was not lawful if the arrest under the provisional warrant was

unlawful. He submitted that the request had to be from either a diplomatic agent accredited to the State or any other means

provided for in the relevant extradition provisions.

With regard to the arrest of the applicant it was submitted that the sworn affidavit of the respondent had not been challenged

to the effect that he had been handcuffed in the house. He submitted that there was no evidence showing how the gardaí

were admitted to the house and submitted that the respondent was in unlawful custody of the Gardaí prior to his arrest. It was

submitted that he remained handcuffed so that the ‘extradition people’ could detain him.

…

In giving my ruling in this matter I indicated that I had considered the submissions of counsel and was satisfied that there was

correspondence in the context of the offences for which the extradition was sought and that the documentation furnished to

the court supporting the request for the extradition of the applicant fell within the provisions of s. 37 of the Act of 1965 as not

requiring further proof.

I indicated that the provisional warrant was proven and that I accepted the testimony of the two garda officers who gave

evidence before me. I indicated that I found as a fact that prior to his arrest the respondent had not been arrested or

handcuffed.

I further indicated that I considered that s. 25 of the Act of 1965 had been complied with and that there had been no breach of

the rule of speciality.

In conclusion I indicated that the Attorney General was entitled to the request for the rendition of the respondent and that the

extradition of the respondent had been duly requested.

In regard to the form of the notice of appeal furnished in this case I confirm that no application pursuant to Article 40 of the

Constitution was moved before me and the matter was addressed solely in the context of the Extradition Acts.”

4. The applicant filed a notice of appeal on the grounds that the learned High Court judge had erred in fact or in law in that:

(i) He was in unlawful custody since the purported invalid remand in custody of 23rd January, 2004;

(ii) He was in unlawful custody since 2nd July, 2003 because inter alia his sworn testimony that, at the time he was arrested,

he was unlawfully held in handcuffs and, further, that he was not given any opportunity to examine the arrest warrant, nor was

he given a copy of it, was never challenged in cross-examination, notwithstanding his presence at the hearing and availability

to being cross-examined.

(iii) The extradition proceedings were commenced and prosecuted without any originating process contemplated by the rules of

the Superior Courts.

(iv) Such other grounds as may be contended for.

5. On this matter coming before the court Dr. Forde S.C., counsel for the applicant, moved the appeal on two net points, (i) the

absence of an originating process, and (ii) the status of the affidavit of the applicant.

5(i) The absence of an originating process

While acknowledging that the Supreme Court in Attorney General v. Ashleigh Nicholson, Keane C.J., July, 2003, in an ex tempore

judgment, had rejected a submission in relation to the absence of an originating process in a Part III rendition, he submitted that

there was no such decision on a Part II extradition. It was submitted that there is no provision made for the procedure before the

High Court in the new extradition arrangements. He submitted that the matter should proceed by way of originating summons, that

the absence of a pleading may cause difficulty. Reference was made to the Rules of the Superior Courts, Order 1 r. 1, and to Order

98. He stressed that the absence of an originating process can be a handicap to the parties. Further, he submitted that the matter

was not properly before the court as it was not on a summons.

I am satisfied that this ground must fail. Proceedings in relation to extradition are unique, they are sui generis. They arise because

the State has agreed with another State to extradite persons between their nations.

The Extradition Acts set out a clear scheme. It includes a mandatory requirement that on arrest the relevant person be brought to

court. Sections 26 and 27 of the Extradition Act, 1965, as amended, set out a scheme as follows:

“26.-(1)(a) If the Minister receives a request made in accordance with this Part for the extradition of any person, he shall,

subject to the provisions of this section, certify that the request has been made.

(b) On production to a judge of the High Court of a certificate of the Minister under paragraph (a) stating that a request

referred to in that paragraph has been made, the judge shall issue a warrant for the arrest of the person concerned unless a

warrant for his arrest has been issued under section 27.

(2) A warrant issued under this section may be executed by any member of the Garda Síochána in any part of the State and

may be so executed notwithstanding that it is not in the possession of the member at the time; and the warrant shall be shown

to, and a copy of same given to, the person arrested at the time of such arrest or, if the warrant is not then in the possession

of the member, within 24 hours thereafter.

(3) If the Minister is of opinion that the information communicated to him in pursuance of section 25 is insufficient, he may

request the requesting country to furnish such further information as he thinks proper and may fix a time-limit for the receipt

thereof.

(4) The Minister may refuse extradition if he is of opinion that the case is one in which extradition is prohibited under any

provisions of this Part or under the relevant extradition provisions.

(5) A person arrested under a warrant issued under this section shall be brought as soon as may be before a judge of the High

Court.

(6) Where a person has been arrested under a warrant issued under this section, then, in any proceedings it shall be presumed,

unless the contrary is proved, that a request for the extradition of the person has been duly made and has been duly received

by the Minister.

27.-(1) A judge of the High Court may, without a certificate of the Minister under section 26 (1) (a), issue a warrant for the

arrest of any person on the sworn information of a member of the Garda Síochána not below the rank of inspector that a

request for the provisional arrest of that person has been made, on the ground of urgency, on behalf of a country in relation to

which this part applies and on being satisfied that the request complies with the requirements of this section.

(2) A request for the provisional arrest of any person shall-

(a) state that one of the documents mentioned in paragraph (a) of section 25 exists in respect of that person and that it

is intended to send a request for his extradition,

(b) specify the nature of the offence and the time at which and the place where the offence is alleged to have been

committed, and

(c) give a description of the person whose arrest is sought.

(2A) A request for the provisional arrest of a person made on behalf of a requesting country that is a Convention country shall

(a) state that one of the documents mentioned in paragraph (a) of section 25(1) exists in respect of that person,

(b) be accompanied by a statement of the offences to which the request relates specifying the nature and description

under the law of the requesting country of the offence concerned,

(c) specify the circumstances in which the offences were committed or alleged to have been committed including the time

and place of their commission or alleged commission, and the degree of involvement or alleged degree of involvement of

the person to whom the request relates in their commission or alleged commission, and

(d) specify the penalties to which that person would be liable if convicted of the offences concerned or, where he has

been convicted of those offences, the penalties that have been imposed or, where he has been convicted of those

offences but not yet sentenced, the penalties to which he is liable,

hereafter in this section referred to as ‘information furnished under subsection (2A).’

(2B) A member of the Garda Síochána not below the rank of inspector shall provide a person, who is provisionally arrested

pursuant to a warrant issued on foot of a request to which subsection (2A) applies, with the information furnished under

subsection (2A) and shall inform him of his right to consent to his surrender under section 29A(1) and inquire of him whether he

wishes to so consent.

(3) A request for provisional arrest may be transmitted by post or telegraph or by any other means affording evidence in writing.

(4) A warrant issued under this section may be executed by any member of the Garda Síochána in any part of the State and

may be so executed notwithstanding that it is not in the possession of the member at the time; and the warrant shall be shown

to, and a copy of same give to, the person arrested at the time of such arrest or, if the warrant is not then in the possession

of the member, within 24 hours thereafter.

(5) Where a justice issues a warrant under subsection (1) he shall forthwith inform the Minster of the issue of the warrant and

the Minister may, if he thinks fit, order the warrant to be cancelled and the person arrested thereunder released.

(6) A person arrested under a warrant issued under this section shall, unless the warrant is cancelled under subsection (5), be

brought as soon as may be before a judge of the High Court and the judge shall remand the said person in custody or on bail

pending-

(a) the receipt by him of a certificate of the Minister under section 26(1)(a) stating that the request for extradition has

been duly made,

(b) (in circumstances where the person is remanded in custody) the release of that person under section 35,

and for those purposes the judge shall have the same powers of remand as if that person were brought before him charged with

an indictable offence.

(7) If, within the period of 18 days after such person’s arrest, no such certificate is produced, he shall be released.

(8) The release of any person under subsection (5) or (7) shall not prejudice his re-arrest and extradition if a request for his

extradition is afterwards made.

(9) A warrant for the arrest of a person may be issued under subsection (1) notwithstanding that, previously-

(a) a warrant for the arrest of that person has been issued, or

(b) the issue of such a warrant has been refused.

(10) Where an information is sworn by a member of the Garda Síochána not below the rank of inspector before a judge of the

High Court stating that a request for the provisional arrest of a person has been made, on the ground of urgency, on behalf of a

country in relation to which this Part applies, then, in any proceedings it shall be presumed, unless the contrary is proved, that

a request for the provisional arrest of the person has been made on the ground of urgency on behalf of a country in relation to

which this Part applies.

(11) Where a person has been arrested under a warrant issued under this section and a certificate of the Minister under section

26(1)(a) stating that a request for the extradition of the person has been duly made, has been produced to a judge of the High

Court, then, in any proceedings it shall be presumed, unless the contrary is proved, that a request in accordance with this Part

for the extradition of the person has been duly made and has been duly received by the Minister.”

Thus there is a clear statutory scheme provided by the Oireachtas setting out the applicable procedures required in obtaining a

warrant of arrest and provisional arrest.

In this case there was an urgency and a provisional warrant was obtained under s. 27. It was a situation where it was mandatory on

the Minister to act on receipt of the request, there being no issue for the Minister such as insufficient information or it being a case

where extradition is prohibited. That being so the statutory provisions provided the procedure.

In A.G. v. Ashleigh Nicholson, (unreported Supreme Court, Keane C.J., ex tempore, 28th July, 2003), an issue raised before the court

was that the Rules of the Superior Courts require that there be a summons pursuant to Order 1 r. 1 in proceedings brought under Part

III of the Extradition Act, 1965 as amended. Part III applies to Northern Ireland, England and Wales, Scotland, the Isle of Man and the

Channel Islands. In dismissing the appeal Keane C.J. held that the Extradition Acts as amended provided in Part III a sui generis

scheme for rendition between certain States, that they are not civil proceedings. Further, he held that it would be difficult to see

what useful purpose would be served by a plenary summons.

This case relates to an application pursuant to Part II of the Extradition Acts, as amended. The procedures are different to Part II.

The process is provided for in the statutes. It is not a criminal proceeding in this jurisdiction. It relates to a criminal process in

another jurisdiction. It is not a civil proceeding in this jurisdiction. It is a quasi criminal matter of a unique nature. The process is that

provided for by statute. The applicant has access to the courts and may raise all relevant issues.

While the process is somewhat different to that applicable under Part III of the Extradition Acts, as amended, the principle is the

same, that the procedure is unique, is sui generis, and is provided for by statute. I am satisfied that the matter is properly before the

courts pursuant to the relevant legislation. Further, the applicant has not indicated any handicap such as would prejudice the

applicant so as to render the process unfair. The applicant has full access to the courts. Consequently, I would dismiss the appeal on

this ground.

5(ii) The status of the affidavit of the applicant

The second point submitted by counsel for the applicant was as to the status of the affidavit of the applicant. It was argued that as

the applicant was not cross-examined on his affidavit his affidavit must be accepted by the court. Counsel submitted that the court

was not entitled to reject the sworn evidence of the applicant in his affidavit as he was not cross examined. Assuming that he was

correct on this submission, counsel then made two further points; that on the applicant’s deposed evidence a copy of the warrant

was not given to him and counsel argued that this invalidated the process, and that on the applicant’s deposed evidence he was

detained unlawfully for the purpose of the search and that tainted and rendered unlawful his arrest under the Extradition Acts.

In this case there were conflicting affidavits before the High Court. Counsel for the respondent asked for leave to call oral evidence,

this was permitted and oral evidence was given. Further, the facts in the affidavit of the applicant were put to the witnesses. Both

Sergeant Martin O’Neill and Superintendent O’Mahony gave oral evidence. They gave evidence contrary to that in the affidavit of the

applicant. No objection was made to the giving of the oral evidence. The applicant was in court. Counsel for the applicant did not call

upon the applicant to give evidence. It was in these circumstances that counsel for the applicant submitted that in the absence of

cross-examination of the applicant, the affidavit of the applicant must be accepted by the court. I am satisfied that this ground must

fail.

The learned trial judge had before him conflicting affidavits. Even on these conflicting affidavits there was evidence, documents

signed by the applicant, which raised issues of concern as to the content of the applicant’s affidavit. However, that need not be

analysed because the trial judge heard oral evidence from Sergeant O’Neill and Superintendent O’Mahony. This evidence was not

cross-examination only on their affidavits, but was evidence which addressed also the evidence in the affidavit of the applicant. The

learned High Court judge accepted this evidence of Sergeant O’Neill and Superintendent O’Mahony, which he was entitled to do.

There is no issue as to unfairness to the applicant. He was in court and obviously an application could have been made for him to give

evidence. This was not done. Indeed, even in this Court counsel persisted with the argument that as the applicant had not been

cross-examined the court must accept his evidence. This is manifestly incorrect. The court had before it the conflicting affidavits and

oral evidence and accepted the testimony of the two Garda officers who gave evidence before it. The learned trial judge found facts

as a consequence of accepting this testimony. This he was entitled to do. The weighing of evidence was a matter for the trial judge

and in accepting the oral evidence of the Gardaí he acted within jurisdiction. As I am satisfied that the trial judge was entitled to

resolve the conflicting evidence as he did the two further points raised by counsel do not arise.

6. While there was initially some reference to this application as an Article 40 application it is clearly not. While there was an earlier

hearing before the High Court (O’Neill J.) on an Article 40 matter neither that case nor any other Article 40 appeal is before the court.

7. Conclusion

I would dismiss the appeal of the applicant on both the net points raised on his behalf.