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A.G. v. Gibson [2003] IEHC 80 (25 November 2003)

 
THE HIGH COURT

Record Number: 2003 No 13 Ext.

Between:

The Attorney General

Applicant

And
Peter Gibson

Respondent

Judgment of Mr Justice Michael Peart delivered the 25^th day of November 2003:

The Applicant in these proceedings is seeking an order from the Court for the rendition of the Respondent to the United Kingdom pursuant to the provisions of Part III of the Extradition Act, 1965, as amended.

The Respondent has issued a Notice of Motion dated 10^th November 2003 in which an Order for Discovery of certain documents is sought pursuant to Order 31, rule 12 of the Rules of the Superior Courts, or in the alternative an Order pursuant to the inherent jurisdiction of the court directing the Applicant to make disclosure of the said documents in question. The Notice of Motion is grounded upon the affidavit of Donough Molloy sworn on the 10^th November 2003, he being the solicitor acting on behalf of the Respondent.

The first thing to be said about this grounding affidavit is that it tells the court almost nothing about the background to this application. The Notice of Motion seeks discovery or disclosure of documents relating "to the refusal by the District Court on the 15^th February 2002 to order extradition of the Respondent herein and/or the making of the within application for the extradition of the Respondent herein", and then goes on to specify certain particular documents, namely:

(a) Any correspondence with or instructions to the West Yorkshire Police;

(b) Any correspondence with or instructions to any other responsible authority in England and Wales;

(c) Any correspondence between the Applicant and/or the Garda Siochana; and

(d) Any documents relating to efforts made by or on behalf of the Applicant and/or the Garda Siochana to locate the Respondent and/or to monitor the movements or activities of the Respondent.

Paragraph 4 of this affidavit simply states in a general way that Mr Molloy believes and has been advised by Counsel that such discovery and/or disclosure is relevant and necessary for fairly disposing of the proceedings and for the vindication of the Respondent's constitutional rights, and to assist the court in determining "whether the within application complies with the requirements of the Extradition Act, 1965, as amended, to reduce costs, to avoid further interlocutory procedures, including the delivery of interrogatories, and to shorten the hearing of the matter, which reasons have been brought to the attention of the Applicant's solicitors in the said letter".

That reference to "the said letter" is of course to the preliminary letter written by the Respondent's solicitor prior to the issue of the Notice of Motion in which the Respondent's solicitor sought voluntary discovery of the documents in question, but that letter contains no further information as to the reasons for seeking discovery/disclosure of the documents.

The single piece of information contained in these documents is the reference in the Notice of Motion to the fact that the District Court appears to have refused to extradite the Respondent on the 15^th February 2002.

It was left to Counsel to state during his submissions that on that occasion the District Judge had refused to make an Order for the extradition of the Respondent, but while he stated also that Counsel for the Applicant and Counsel for the Respondent had agreed a note of what had actually transpired at that hearing, this Court was not appraised of any details. The Court was informed that the discovery/disclosure of the documents was now being sought because it was being contended that the question of the extradition of the Respondent was res judicata, and that the present application for an order for extradition represented an attempt to re-run before this Court a matter that had already been dealt with on the 15^th February 2002.

However, the warrant of arrest which had formed the basis of the District Court application has not been exhibited for the purposes of this application, and neither has the Warrant or Warrants which form the basis of the present application. I would have thought that the Respondent would have done that, as well as having either averred as to what happened in the District Court or exhibited a copy of the agreed note of what took place in the District Court, so that this court would know the basis on which the extradition was refused in the District Court. As it is, this Court is left only with the information that it is going to be asserted that the matter is already res judicata, and that the documents are needed in relation to that assertion.

Counsel for the applicant has referred the Court to the judgment of the Supreme Court (Walsh J.) in Ellis v. O'Dea (1990) ILRM 87. In that case the Court held that the failure of the prosecuting authorities in the UK to furnish the applicant with a copy of the sworn informations on which the warrants for arrest were based did not amount to an infringement of constitutional rights, and that the statutory scheme provided for by the Extradition Act, 1965 with regard to the documentary evidence required to be presented to the District Court in the course of an extradition hearing did not include any requirement relating to the information cited in the Warrant. Having so found, Walsh J. at page 92 states as follows:

"There may well be cases, and it is unnecessary to endeavour to enumerate them in this judgment, where because of the particular circumstances or the run of a case such production would be necessary to ensure that the procedure before the Irish courts conformed to a fair procedure. However , in my opinion, this is not one of them. If the former situation should arise and the District Justice finds that he cannot enforce the production of the information he can either adjourn indefinitely or dismiss the proceedings."

Counsel for the Applicant has pointed to the fact that there is nothing in either the preliminary letter to which I have referred or in the affidavit sworn to ground the application which raises any issue that could justify the discovery or the disclosure of the documents sought. He submits that the onus is on the applicant to show that the documents are relevant to an issue to be determined and necessary for that determination. He also submits that in any event the documents could not be relevant to any issue arising on an application under Section 47 of the Extradition Act, 1965, as amended, which is very specific as to the matters about which the court must be satisfied in order to make an order for extradition.

The only issue being raised by the Respondent in opposing an order for the extradition back to the UK, of which this Court has been informed, is that the matter is res judicata on the basis of what happened in the District Court on the 15^th February 2002. Certainly that is the only ground put forward for the purpose of this application for discovery/disclosure of the documents sought. As I have said, the Court has been given no further information which might support that submission. Without any further information, it is impossible for this court to see why the documents sought could be necessary. They may well have some relevance to the order made on the 15^th February 2002, but the court has not been informed of why they are necessary. It is imperative that in applications of this kind something more than a bald assertion that documents are relevant and necessary, and may save court time and costs, must be contained in the grounding affidavit. In this particular case, it is clear that the Respondent's lawyers are aware of what happened in the District Court. There is apparently an agreed account of that. The only issue to which it is claimed these documents are relevant and necessary is the issue of res judicata. I fail to see, without further elaboration, how any of the documents sought are necessary to advance that argument. I therefore refuse the application.