Supporting Documents:
 78-19 Resp Notice.pdf 78-19 AFL.web.pdf
THE SUPREME COURT
DETERMINATION
IN THE MATTER OF THE EXTRADITION ACT 1965 (AS AMENDED) BY THE EXTRADITION (AMENDMENT) ACT 1994
BETWEENATTORNEY GENERAL APPLICANT AND
DANIEL MULLAN RESPONDENT
APPLICATION FOR LEAVE TO APPEAL TO WHICH ARTICLE 34.5.3° OF THE CONSTITUTION APPLIES
RESULT: The Court does not grant leave to the Respondent to appeal to this Court from the Court of Appeal
REASONS GIVEN:
ORDER SOUGHT TO BE APPEALED
| COURT: Court of Appeal |
DATE OF JUDGMENT OR RULING: 12th April, 2019 |
DATE OF ORDER: 12th April, 2019 |
DATE OF PERFECTION OF ORDER: 15th April, 2019 |
THE APPLICATION FOR LEAVE TO APPEAL WAS MADE ON 18th April, 2019 AND WAS IN TIME. |
1. This determination relates to an application for leave to appeal from a decision of the Court of Appeal.
2. The general principles applied by this Court in determining whether to grant or refuse leave to appeal having regard to the criteria incorporated into the Constitution as a result of the 33rd Amendment have now been considered in a large number of determinations and are fully addressed in both a determination issued by a panel consisting of all of the members of this Court in B.S. v Director of Public Prosecutions [2017] IESCDET 134 and in a unanimous judgment of a full Court delivered by O’Donnell J. in Price Waterhouse Coopers (A Firm) v Quinn Insurance Ltd. (Under Administration) [2017] IESC 73. The additional criteria required to be met in order that a so-called ‘leapfrog appeal’ direct from the High Court to this Court can be permitted were addressed by a full panel of the Court in Wansboro v Director of Public Prosecutions [2017] IESCDET 115. It follows that it is unnecessary to revisit the new constitutional architecture for the purposes of this determination.
3. Furthermore, the application for leave filed and the Respondent’s notice are published along with this determination (subject only to any redaction required by law) and it is therefore unnecessary to set out the position of the parties.
4. In that context it should be noted that the Respondent does oppose the grant of leave.
Decision
5. This is an application for leave to appeal to this Court from a decision of the Court of Appeal dismissing an appeal from the decision of the High Court (Donnelly J.) committing the Applicant to prison to await the order of the Minister for Justice and Equality for his extradition to the United States of America. The Applicant is sought in the United States for his prosecution in relation to four alleged offences, namely sexual exploitation of a child, transportation of a minor with intent to engage in sexual activity and two counts of possession of child pornography.
6. The Applicant is a seventy-nine year old Irish citizen and is in ill health and in custody solely in relation to this matter. The Applicant has raised a number of matters which he contends are matters of general public importance. The first point relates to a contention that given that there is a degree of public interest in facilitating putting an individual on trial, it is of general public importance that this Court should entertain an appeal from an elderly person who has health complications to "definitively, conclusively and finally" determine the proportionality and lawfulness of his proposed extradition. It was also stated to be of general public importance that citizens who are involuntarily compelled to become parties to litigation by reason of their arrest for extradition are not obliged to pay the costs of the proceedings to which they have been subjected either by virtue of rules of court or otherwise. It is contended that the extradition Treaty in this particular case is of relevance to this contention. Reference is made to the terms of the Treaty on extradition between the United States of America and Ireland and in particular Article 17 thereof which makes provision for expenses that arise in the context of an extradition and it is submitted on behalf of the Applicant that the Court of Appeal failed to consider this aspect of the matter in making an order for costs against the Applicant.
7. Finally the Applicant raised a number of matters which were said to give rise to the necessity to have an appeal on the basis of the interests of justice. They related to the proportionality of a decision to extradite having regard to the fact that the Applicant is an elderly man with medical complications and health difficulties. Secondly, reference was made also to the issue of costs.
8. The Respondent in its reply contends that the decision of the Court of Appeal was no more than the application of well established case law. It was stated that reliance on the age and ill health of the Applicant and his Irish citizenship were no more than factual aspects of the case and did not elevate the significance of the decision to being one of general public importance. It was pointed out that the Supreme Court had recently dealt with issues in relation to the correct approach to be taken on extradition applications in A.G. v. Davis [2018] IESC 27. The principles outlined in that case were applied by the High Court and the Court of Appeal and it is not suggested by the Applicant that those principles were incorrectly applied and it is not stated why a further appeal is necessary in this case.
9. Finally the Respondent states that the point made by the Applicant in relation to costs and Article 17 of the Treaty is "tendentious and absurd". It is pointed out that that provision relates to costs incurred by the contracting states in their discharge of Treaty obligations and has nothing to do with the manner in which costs of extradition proceedings are determined as between the parties. Thus it is contended that this is not an issue of general public importance.
10. Insofar as the interests of justice are concerned reference is made again to the decision of this Court in A.G. v. Davis. It was noted that the Court of Appeal in its judgment had reservations as to whether the appeal before the Court of Appeal came within the scope of s. 29(5) of the Extradition Act 1965 which limits the right of appeal to an appeal on a point of law and queried whether or not there was in fact a point of law identified in the appeal before it. Nevertheless, as is apparent from the judgment of the Court of Appeal, it carefully considered all of the matters raised by the Applicant and in doing so had regard to and applied well established case law.
11. This Court is satisfied that the matters referred to by the Applicant is his application for leave to appeal to this Court do not give rise to any point of general public importance. The issues raised by the Applicant are for the most part fact specific and relate to his particular circumstances. This Court has considered such issues in cases such as A.G. v. Davis and it is not possible to discern a point of general public importance in this case. The issue raised in relation to the question of costs and Article 17 of the relevant extradition Treaty clearly relates to the responsibilities for expenses as between the contracting parties and has no relevance to the issue of costs in any proceedings in relation to an extradition application. Finally, this Court is not satisfied that there is any basis for the contention that an appeal is necessary in the interests of justice.
12. In the circumstances the Court refuses this application for leave.
And it is hereby so ordered accordingly.
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