Under The Extradition Act 2003 Commonwealth Of Australia V. John Thomas O'neill
| Jurisdiction | Scotland |
| Judge | Sheriff F.R. Crowe |
| Court | Sheriff Court |
| Date | 11 June 2010 |
| Published date | 11 June 2010 |
Court reference 2B1004/09
IN THE SHERIFF COURT OF LOTHIAN AND BORDERS AT EDINBURGH
UNDER THE EXTRADITION ACT 2003 Part 2
COMMONWEALTH OF AUSTRALIA v JOHN THOMAS O'NEILL (date of birth 13/10/59) whose domicile of citation has been specified as 22C Esplanade Greenock PA16 7RU
Act Ms. R Lunny for the Lord Advocate on behalf of the Commonwealth of Australia
Alt I G Mitchell QC instructed by Mr. Fisken, Solicitor of Messrs Hamilton Burns, Solicitors, Glasgow
Edinburgh 11th June 2010
The Sheriff having resumed consideration, DETERMINES that the extradition of the accused to the Commonwealth of Australia is barred by the passage of time; ANSWERS in the AFFIRMATIVE the question in section 79(1)(c) of the Extradition Act 2003 and accordingly in terms of section 79(3) of the said Act orders the discharge of the said John Thomas O'Neill.
NOTE
Introduction
[1] This case involves a request under Part 2 of the Extradition Act 2003 from the Commonwealth of Australia for the extradition of John Thomas O'Neill to face trial on charges of armed robbery and harbouring an escaped prisoner and to serve the remainder of a sentence of imprisonment in respect of a charge of robbery. The robbery was committed in1979 and the accused was sentenced to four and a half years' imprisonment in February 1980. Following release on parole the accused failed to appear at court for breach proceedings and parole was cancelled on 24 April 1986 with 875 days of the original sentence still to be served.
[2] The alleged offences involve a robbery with a firearm said to have occurred on 5 February 1986 when Aus. $ 7,595 was stolen and the harbouring of an escaped prisoner between December 1985 and 6 February 1986.
[3] An extradition request signed by the Australian Minister of Home Affairs on 10 November 2008 and was certified by Scottish Ministers on 24 August 2009. A warrant of arrest was issued by my colleague on 14 September 2009 and the accused appeared at Edinburgh Sheriff Court on 23 October 2009. The accused did not consent to extradition on the basis that it would be unjust and oppressive to extradite him by reason of the passage of time in terms of sections 79(1)(c) and 82 of the 2003 Act.
Procedural History
[4] The case first called at Edinburgh Sheriff Court on 23 October 2009. The accused accepted that he was the person referred to in the warrant but did not consent to extradition. He was granted bail and sundry procedure took place thereafter until the Full Hearing commenced on 1 June 2010. In the interim parties had made further inquiries and produced helpful chronologies. After hearing parties on the history of this case and the relevant law I made avizandum until today's date as I wished to read in full the agreed documentation and give a decision in writing bearing in mind the serious nature of the charges and the length of time the case had taken from April 1986 until October 2009 to come to court.
Procedure at the Extradition Hearing
[5] The accused's position had been clear from the outset. A large folder of documentation had been lodged on his behalf at the Preliminary Hearing on 28 May 2010. Furthermore Counsel for the accused had produced a detailed timeline to bring together and comment on the chronologies lodged by parties. Accordingly, I asked Ms Lunny on behalf of the Lord Advocate clarify the position of the requesting state.
[6] I had in terms of section 78(2) of the 2003 Act noted that I had received the relevant documents from the Secretary of State namely:-
(a) in terms of section 70(9) the request and certificate mentioned at para [3] above and the relevant Order in Council, The Extradition Act 2003 (Designation of Part 2 Territories) Order 2003 SI 3334.
(b) the accused's particulars were annexed to the request including a photograph and fingerprint. The accused had accepted he was the person named in the request at the outset of these proceedings.
(c) in relation to the offences of armed robbery and harbouring an escaped prisoner which the accused was sought for trial there was annexed to the request a certified copy of the indictment.
(d) as regards the offences mentioned in (c) above there was a certified copy of an arrest warrant signed by an Australian magistrate on 23 November 2005.
(e) in relation to the robbery offence there was annexed to the request a transcript of proceedings in the Supreme Court of Western Australia at Perth dated 14 January 1980 when the accused pleaded guilty to the charge of robbery with two accomplices, being a younger brother and a cousin. Details of the offence are contained in the transcript. The robbery was committed on 8 August 1979. There is a further transcript recording the sentence of four and a half years' imprisonment imposed on the accused on 11 February 1980. The accused had to serve at least two years of this sentence before being eligible for parole. An affidavit accompanying the request records that the accused was released from this sentence on 18 December 1981 but parole was cancelled on 23 July 1982. The accused was re-arrested on 9 September 1985 but released on parole again on 11 November 1985. Following his failure to appear at court parole was cancelled on 24 April 1986 and a certified copy of the parole board's warrant for that date was produced. The request indicated the accused had 875 days of this sentence still to serve.
Accordingly I was able to answer the questions posed at section 78(4) and (7) of the 2003 Act in the affirmative and moved on to consider section 79.
Submissions on behalf of the Lord Advocate
[7] In relation to the challenge to extradition that this was barred due to passage of time under sections 79(1)(c) and 82 of the 2003 Act, Ms Lunny referred to a chronology which had been supplied by the Australian Attorney-General's Department by letter dated 26 May 2010. On behalf of the Lord Advocate it was conceded there had been an inexcusable delay on the part of the requesting state. Matters had been further delayed due to certain administrative issues but it was clear the accused was a fugitive from justice and ought not to benefit from his actions having flown from the jurisdiction when facing trial on serious charges and being required to serve the balance of a sentence for breaching parole.
[8] When the accused failed to appear at court in respect of the armed robbery and harbouring charges in April 1986 a warrant was issued and his whereabouts remained unknown for some time. However in 1988 it was discovered that the accused had returned to the United Kingdom; the accused had emigrated to Australia with his family in 1967 when he was a child.
[9] It was a matter of agreement that the accused had been interviewed by Australian Police in Manchester in February 1988 and preparations for an extradition request were put in hand by the Australian authorities. However in July 1988 the accused was convicted on two counts of robbery in Manchester and sentenced to ten years' imprisonment. As a result the Australian authorities understandably did not proceed with an extradition request and the papers were filed away in July 1988 with a view to making application for extradition at the completion of the accused's sentence..
[10] On 27 March 1990 at the Royal Courts of Justice in London the accused's convictions for robbery were quashed due to a miscarriage of justice and the accused was released from prison and returned to Scotland initially to live in the Paisley area and latterly in Greenock.
[11] The only information Ms Lunny had for the period between 1988 and receipt of the present request in 2009 was that in mid October 2004 Western Australian Police received information about the accused's whereabouts in Scotland and had his identity and location in Scotland confirmed by Strathclyde Police in early November 2004. The requesting state's position was that from November 2004 to August 2005 the Western Australian Police communicated with the Office of the Director for Public Prosecutions (Western Australia) regarding the prosecution of the accused "for one or more of the outstanding offences alleged against him."
[12] Thereafter between August 2005 and November 2008 the Western Australian Police and DPP "worked with the Australian Attorney General's Department in gathering the necessary information for the extradition request." On 12 December 2008 a formal request for the accused's extradition was made to the UK authorities.
[13] Ms Lunny referred me to the leading cases in this context namely Kakis v Government of the Republic of Cyprus [1978] 1 W.L.R. 779; [1978] 2 All ER 634 (HL) and Gomes v Government of the Republic of Trinidad and Tobago [2009] UKHL 21. By reference to Gomes at paragraph 38 Ms Lunny suggested the relevant period for calculating the period of time for consideration under section 82 of the 2003 Act was from 23 April 1986 when the accused failed to appear for a court hearing in respect of the armed robbery and harbouring offences and the date of the extradition full hearing namely 1 June 2010, a period of twenty three and a half years. In respect of the breach of parole charge the accused had been unlawfully at large since 24 April 1986, the date of the parole board warrant.
[14] I was referred to the classic definition of the phrase "unjust and oppressive" as it now appears in section 82 of the 2003 Act, in the speech of Lord Diplock in Kakis at [1978] 1 W.L.R. pp782 and 783:-
[1] "Unjust" I regard as directed primarily to the risk of prejudice to the accused in the conduct of the trial itself, "oppressive" as directed to hardship to the accused resulting from changes in his circumstances that have occurred during the period to be taken into consideration; but there is room for overlapping, and between them they would cover all cases where to return him would not be fair. Delay in the commencement or conduct of extradition proceedings which is brought about by the accused himself by fleeing the...
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