Supreme Court dismisses appeal on surrender, holding ordinary meaning of beating constitutes offence under Irish law.

THE SUPREME COURT

[Appeal No: 360 of 2008]

Denham J.

Kearns J.

Macken J.

Between/

The Minister for Justice, Equality & Law Reform

Applicant/Respondent

and

Damian Dolny

Respondent/Appellant

Judgment delivered the 18th day of June, 2009 by Denham J.

1. This is an appeal by Damian Dolny, the respondent/appellant, hereinafter referred to as "the appellant", from an order of the High

Court (Peart J.) made on the 23rd October, 2008, pursuant to s.16 of the European Arrest Warrant Act, 2003, that he be surrendered

to such persons duly authorised to receive him on behalf of the Republic of Poland.

2. In the High Court two points of objection were raised. First, that the warrant failed to specify adequately the offence to which the

warrant relates, or the nature and classification of the offence under the law of the State. Secondly, that the offence for which the

appellant was convicted on the 14th March, 2004 does not correspond to any offence under Irish law.

3. In the European arrest warrant , at paragraph E, it is stated:-

"E. Crime (crimes):

1. This warrant relates in total to: ONE CRIMINAL ACT

2. The circumstances in which the crime/crimes was/were perpetrated:

On 20th June 2004 in Krzyz Wlkp., Wielkopolska district, acting together and in collaboration with Mr Rafal Berger and Mr

Tomasz Wyrwa, he beat Mr Andrzej Lnka by hitting him on the face and head with his fists, thereby causing injury to his

body in the form of a contused wound in the left suborbital area and a contused wound in the area of the right

superciliary ridge - thus exposing him to the direct danger of sustaining grievous detriment to his health.

3. Category and legal classification of the crime (crimes): art.158 § 1 of the penal code (beating)

Polish legal provisions:

Art. 158 § 1 of the penal code "Any person who takes part in a beating or battery which exposes the wronged person to

a direct danger of losing his/her life or which can result in consequences stated in art. 156 § 1 or in art. 157 § 1, is liable

to a penalty of up to 3 years' deprivation of freedom."

Art. 156 § 1 of the penal code "Any person who causes grievous bodily harm resulting in:

(1) depriving another person of his/her eyesight, hearing, speech or renders him unable to produce offspring,

(2) another serious disability, serious incurable or long lasting illness, illness which constitutes a real threat to his/her

health, lasting mental illness, total or considerable disability to work in his/her profession or lasting disfigurement or

deformation of the body, is liable to be sentenced to between one and 10 years' deprivation of freedom."

Art. 157 § 1 of the penal code "Any person who causes impairment of the functioning of a bodily organ or a disturbance

of health, other than that defined in art. 156 § 1, is liable to a penalty of deprivation of freedom between 3 months and 5

years."

4. In the European arrest warrant paragraph E.1. is referred to as being not applicable.

5. At paragraph E.2. the warrant states:-

"E.2. A detailed description of the act or acts not included in E.1:

On 20th June 2004 in Krzyz Wlkp,. Wielkopolska district, acting together and in collaboration with Mr Rafal Berger and Mr

Tomasz Wyrwa, he beat Mr Andrzej Lnka by hitting him on the face and head with his fists, thereby causing injury to his

body in the form of a contused wound in the left suborbital area and a contused wound in the area of the right

superciliary ridge - thus exposing him to the direct danger of sustaining grievous detriment to his health.

6. At paragraph F of the warrant it is stated as follows:-

"F. Other relevant circumstances relating to the case:

During the probationary period - that is on 6th May 2006 the convict perpetrated further criminal acts (under art. 158 § 1

of the penal code - beating), for which the District Court in Trzcianka sentenced him to 10 months' deprivation of freedom

on the strength of its enforceable judicial decision dated 11th August 2006 - case No. VI K 279/06 - by his act Mr Damian

Dolny flagrantly breached the established legal order.

Pursuant to art. 75 § 1 of the penal code "The Court orders the execution of the penalty if the convict has committed

during the probationary period a similar intentional criminal act for which he was sentenced to a penalty of deprivation of

freedom.

§ 2. The Court can order the execution of a penalty if the convict, during the probationary period, flagrantly

infringes upon the legal order, in particular if he has perpetrated a criminal act other than that defined in § 1 or if

he evades paying fines or if he evades supervision or if he fails to perform the obligations or punitive measures imposed on

him."

7. The High Court

The High Court held that it was clear which offence was committed by the appellant, that the facts were clear, as was the

classification of the code by reference to "beating". The learned High Court judge held that the words "beating or battery" were an

adequate description of the offence. The learned trial judge pointed out that the appellant was present for his trial and can be taken

to be aware of precisely what offence he was charged.

Counsel for the Minister for Justice, Equality and Law Reform, ("the Minister"), submitted to the High Court that the offence for which

the appellant was convicted in Poland corresponds to an offence in this jurisdiction of "assault causing harm" contrary to s.3(1) of the

Non-Fatal Offences Against the Person Act, 1997, ("the Act of 1997").

Counsel for the appellant referred to s.2(1) of the Act of 1997, said it applied, and submitted that the description of the offence did

not include all the necessary ingredients.

The learned High Court judge held that the corresponding offence was that under s.3 of the Act of 1997.

8. Appeal

The appellant has appealed against the determination of the High Court. While there are eight grounds in the notice of appeal, in

essence there were two principle grounds alleged, and they are interrelated. First, it was submitted that there are insufficient

particulars stated on the European arrest warrant, that the surrounding events are not described. Secondly, it was submitted that

there is no corresponding offence; which it is alleged arises also because of the insufficiency of the particulars.

9. Submissions

Micheál P. O'Higgins, S.C., on behalf of the appellant, submitted that the learned trial judge had erred and that the appeal should be

allowed. He submitted that there are insufficient particulars on the warrant. Further, that the offence does not correspond to an

offence in this State, and in particular does not correspond to an offence under s.3 of the Non Fatal Offences against the Person Act,

1997. He submitted that the learned High Court judge had erred in holding that the offences of assault in s.2 of the Act of 1997 and

of assault causing harm in s.3 of the Act are separate and distinct offences and that it is not the case that s.2 is intended to define

the concept of assault for all purposes of the Act. He submitted that the learned High Court judge erred in holding that there was no

requirement that whatever is done is done intentionally or recklessly, and is done without the consent of the other person, and that it

is done without lawful excuse. It was submitted that an appropriate test in deciding whether or not the requirement of

correspondence has been met is for the Court to consider whether or not there is sufficient detail in the warrant to draft a valid

indictment in this jurisdiction for the prosecution of the corresponding offence. Counsel submitted that neither the warrant nor any of

the additional documents contain sufficient details to enable the preparation of an indictment, alleging assault causing harm contrary

to s.3 of the Act of 1997. It was submitted that three ingredients are missing from the particulars.

10. On behalf of the Minister for Justice, Equality and Law Reform, ("the Minister"), Robert Barron, S.C. made submissions to the

Court. Counsel addressed the two matters in issue. As to the first, that the European arrest warrant had failed to specify adequately

the offence, counsel referred to the natural and ordinary meaning of the words in the warrant, and submitted that the learned High

Court judge had been correct. It was submitted that the particulars of the acts described in the warrant are such that the offence of

assault causing harm is disclosed. Further it was submitted that correspondence pursuant to s.5 of the European Arrest Warrant Act

2003 was made out.

11. Statutory offence

The corresponding offence arises under the Non-Fatal Offences Against the Person Act, 1997. Section 2 provides that:-

"(1) A person shall be guilty of the offence of assault who, without lawful excuse, intentionally or recklessly—

(a) directly or indirectly applies force to or causes an impact on the body of another, or

(b) causes another to believe on reasonable grounds that he or she is likely immediately to be subjected to any

such force or impact, without the consent of the other."

Section 3 provides:-

"(1) A person who assaults another causing him or her harm shall be guilty of an offence."

"Harm" is defined in the Act of 1997 as "harm to body or mind and includes pain and unconsciousness".

12. Particulars

The terms of the European arrest warrant are set out fully earlier in this judgment. It is necessary to consider them to analyse the

ground of appeal that there were inadequate particulars. As is clearly stated on the warrant the offence is that the appellant beat a

person by hitting him on the face and head with his fists thereby causing him injury to his body in the form of the described injuries.

There is a detailed description of the acts alleged, set out in paragraphs E and E2 of the European arrest warrant. I am satisfied that

the High Court did not err in its decision on this matter. There were sufficient particulars on the warrant upon which the learned trial

judge could reach his determination.

The issue of the particulars and correspondence are interrelated, and I shall consider both matters when analysing the question of a

corresponding offence.

13. Correspondence

The High Court held that the relevant offence in this state is that provided for in s.3 of the Non-Fatal Offences Against the Person

Act, 1997, and that s.2 is not intended to define the term "assault" for all purposes in the Act of 1997. The learned High Court judge

held:-

" In my view, this submission is wrong. The offences created respectively by s. 2 and s. 3 of the 1997 Act, are distinct

and different offences. An assault under s. 2 requires for its commission that the person assaulted did not consent to

being assaulted, as well as that the assault be inflicted without lawful excuse and intentionally or recklessly. The section

is clear in that regard. But the separate and distinct offence of ‘assault causing harm’ in s.3, contains no such

requirements. It is a separate offence, and it is not the case that s. 2 is intended to define the concept of “assault” for

all purposes of the Act. There is no definition of assault contained in s. 1 of the 1997 Act, or elsewhere therein.

Section 3 provides for a freestanding offence of ‘assault causing harm’, as opposed to a simple assault. In order to be

guilty of this offence a person must have carried out an assault and must have caused ‘harm’ as defined in s.1 of the

1997 Act. In such an offence it is not part of the offence that it occurs without the consent of the victim. That is clear

from the plain meaning of the words used in the section. In s.3, the word ‘assault’ is not used as a term of art by

reference to the provisions of s. 2, or by reference to any statutory definition of that word. The Concise Oxford

Dictionary definition of ‘assault’ is “a violent physical or verbal attack”. That is the meaning to be given to the word

‘assault’ for the purpose of the s.3 offence.

I note in passing that the offence 'assault causing serious harm' under s.4 of the 1997 Act, again includes a mental

element, namely, that the offence occurs where 'a person intentionally or recklessly causes serious harm to another'.

The requirement that the assault be without the consent of the victim, or that there be any mental element is distinctly

absent from the express provisions of the s.3 offence of assault causing harm. In my view the facts as outlined in the

warrant and which resulted in the conviction of the [appellant] in Poland, come within the words used in s.3 of the 1997

Act in order to create that offence, and in these circumstances, correspondence in accordance with s.5 of the Act, and I

am satisfied also that the minimum gravity requirement is satisfied also, since the offence is punishable by a fine, or by a

sentence of imprisonment of up to five years imprisonment, or both.

For these reasons, I am satisfied that this point of objection also fails."

I would affirm the approach taken by the High Court.

14. In addressing the issue of correspondence it is necessary to consider the particulars on the warrant, the acts, to decide if they

would constitute an offence in the State. In considering the issue it is appropriate to read the warrant as a whole. In so reading the

particulars it is a question of determining whether there is a corresponding offence. It is a question of determining if the acts alleged

were such that if committed in this jurisdiction they would constitute an offence. It is not a helpful analogy to consider whether the

words would equate with the terms of an indictment in this jurisdiction. Rather it is a matter of considering the acts described and

deciding whether they would constitute an offence if committed in this jurisdiction.

15. Section 5 of the European Arrest Warrant Act, 2003 as amended, provides for the process of correspondence, as follows:-

"For the purposes of this Act, an offence specified in a European arrest warrant corresponds to an offence under the law

of the State, where the act or omission that constitutes the offence so specified would, if committed in the State on the

date on which the European arrest warrant is issued, constitute an offence under the law of the State."

16. The Court is required to consider the information relating to the acts, set out in the warrant, to determine whether

correspondence exists. In this case Peart J. held that correspondence was made out. I agree with that decision.

17.The words on the warrant are plain: "beat … on the face and head with his fists causing injury to his body " The natural and

ordinary meaning of the words is clear. There is well established jurisprudence on the approach to be taken to the words in warrants

under the Extradition Act, 1965 as amended. Thus in Wilson v. Sheehan [1979] I.R. 423 at p. 429 Henchy J. stated:-

"When it comes to the words in the warrant by which the factual content of the specified offence is identified, the

correct rule is that those words should prima facie be given their ordinary or popular meaning unless they are used in a

context which suggests that they have a special signification."

In that case the warrant had alleged that the requested person "… did rob Michael Barker of £281 in cash and immediately before

doing so used force, to wit personal violence, on the said Michael Barker." Henchy J. held at p.430 that:-

"Since the word "rob" in ordinary usage means "deprive a person of property unjustifiably by force," all the District Justice

had to decide was whether the charge in the warrant that the plaintiff had robbed a person of money, using personal

violence to that person immediately before doing so, would constitute an offence if the same conduct were charged in an

indictment in this state."

I am satisfied that a similar approach may be taken to the words on a warrant issued under the European Arrest Warrant Act, 2003,

as amended. Thus a court may look at all the information provided, the facts and acts described, and give to words their ordinary and

popular meaning.

18. I have no doubt that the acts alleged, beating the named person by hitting him on the face and head with fists, thereby causing

injury to his body, are ordinary words which describe acts which would constitute an offence if committed in this jurisdiction. I would

affirm the finding of the learned High Court judge on this issue also.

19.Conclusion

For the reasons given I would dismiss the appeal and affirm the judgment and order of the High Court.