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A.G. v. Tothova [2004] IEHC 21 (24 February 2004)

 
THE HIGH COURT

Record Number: 2003 No. 11 Ext

BETWEEN:

THE ATTORNEY GENERAL

APPLICANT

AND
ILONA TOTHOVA

RESPONDENT

Judgment of Mr Justice Michael Peart delivered the 24^th day of February 2004:

This is an application by the Attorney General for an order pursuant to the provisions of Section 47 of the Extradition Act, 1965, as amended, for the return of the respondent to the Czech Republic, on foot of a Request dated 31^st July 2002 by the Minister of Justice of the Czech Republic to the Minister for Justice Equality and Law Reform ("the Request").

This is an application to which Part II of the 1965 Act, applies. Part II applies to extradition proceedings between this country and the Czech Republic by virtue of S.I. 474 of 2000.

The request was accompanied by certified copies of a Warrant of Arrest dated 31^st January 2002, a judgment of the District Court of Olomouc dated 28^th July 1998, a decision of the Regional Court in Ostrava, together with the fingerprints and photograph of the respondent.

The respondent was arrested in this jurisdiction by Sgt. Michael Heffernan of An Garda Siochana, on the 24^th March 2003. He identified himself to her in the usual way, and having enquired of her identity and satisfied himself that she was the person named in the warrant, he arrested her and informed her of the purpose of that arrest, and showed her the original arrest warrant. He served her with the documentation and brought her to Ennis Garda Station, and thence to the High Court on the 24^th March 2003. No issue is taken by the respondent with these procedures. The issue taken relates to correspondence of the offence with an offence in this jurisdiction.

The Warrant of Arrest sets out the background facts of this case. It appears that the respondent was convicted by the District Court of Olomouc on 28^th July 1998 and was sentenced to eight months imprisonment in respect of a larceny charge. She had pleaded guilty to the offence. That sentence was confirmed by the Regional Court on 23^rd October 1998. Thereafter she was to be placed in jail under supervision.

The facts of the case are set out in that warrant also. It appears that on 27^th May 1997 the respondent, with another person, entered a department store which sells leather and fur goods, and took two leather jackets from a stand in the shop and then hid them in some sort of a textile bag hidden under her clothing. The warrant also records the fact that the respondent had been convicted of a similar type of offence on 14^th September 1995 for which she had also received a sentence of eight months.

The warrant recites that the respondent was convicted on 28^th July 1998 in respect of the offence for which her extradition is sought, pursuant to the provisions of Section 247 (1)(e) of the Code of Criminal Procedure in the Czech Republic. It sets out that section in the following terms:

"Section 247

Larceny

(1) The person who misappropriates somebody else's thing by seizing possession of this thing, and thus

(a) causes a harm that is not negligible;

(b) commits the act of burglary;

(c) immediately after the act tries to keep the thing by force or under a threat of violence;

(d) commits the criminal act because of the thing that somebody else wears or holds; or

(e) was sentenced or penalized for such act during the period of the last three years.

shall be imprisoned for maximum term of two years or penalised with money penalty or with forfeiture of the seized thing."

I have highlighted the provision under which the respondent was convicted.

The respondent's previous offence was under Section 247(1)(a), i.e. misappropriation which "causes a harm that is not negligible". That concept of harm that is not negligible is defined in section 89 (11) of the Criminal Code, and it relates to the value of the goods. In the present case she has been convicted in respect of a misappropriation or larceny, but has been dealt with under section 247(1)(e) being on the basis that she has been convicted of a similar offence within the past three years.

Counsel for the applicant submits to this Court that the offence of larceny as outlined in section 247 of the Code of Criminal Procedure of the Czech Republic corresponds to an offence here under section 4 of the Criminal Justice (Theft and Fraud Offences) Act, 2001 ("the 2001 Act"), which came into force here on 1^st August 2001. That date precedes the date of receipt of the Request, and the Warrant and is therefore the applicable Act in respect of an offence of theft.

Section 4 of the 2001 Act provides:

"4. – (1) Subject to section 5, a person is guilty of theft if he or she dishonestly appropriates property without the consent of its owner and with the intention of depriving the owner of it."

Counsel submits that the act complained of against the respondent, namely taking two leather jackets in a department store and hiding them under her clothing, clearly comes within the terms of our section 4. The act of hiding the jackets under her clothing, he submits, clearly covers the requirement of dishonesty in section 4.

On the other hand, Mr Kieran Kelly BL, on behalf of the respondent submits that the requirements for the purpose of an offence under section 4 here are dishonesty, appropriation, absence of consent and an intention to deprive the owner of possession. He submits that these factors are absent from the offence in the Czech Republic in terms of section 247(1)(e) of their Criminal Code, which has been quoted above. He draws particular attention to the part of that provision under which the respondent was convicted and sentenced, namely the fact of a previous conviction within the previous three years. He submits that if there were to be such a provision here, it would be struck down as unconstitutional in accordance with the decision in King v. The Attorney General (1981) I.R. 233.

In addition he submits that there is no evidence that the respondent left the shop with the goods, and therefore he questions whether she can be said to have misappropriated the goods for the purpose of section 4.

It is clear that under Czech law, the offence of larceny is created by section 247(1) of the Code, and the different categories into which such an offender can fall are set out in the subparagraphs (a) to (e) as set forth earlier. The offence itself is committed where the person misappropriates someone else's goods by seizing possession of same. As it happens the respondent was dealt with under subparagraph (e), being a person who had previously been convicted of an offence under section 247(1)(a) of the Code. In relation to the point made by Mr Kelly in relation to the decision of the Supreme Court in King v. The Attorney General, I should say that it would appear to me that there is an essential distinction to be drawn between a person such as the respondent who is arrested and charged with an offence of larceny having taken goods, and who is dealt with as a person who has been previously convicted of such an offence, and a person such as the plaintiff in the King case, who was a person not arrested for having committed any offence as such, but charged with loitering with intent. In the case of that plaintiff, in those days, it was not necessary to show that the person had actually done anything wrong or that any offence had been committed, but rather to establish merely that the person was a "suspected person or reputed thief". It was his status as such, and his mere presence in a certain place, which constituted the offence, rather than any act on his part while there. That is what was found to be unconstitutional by the Supreme Court.

In the present case, the charge is one of actually having misappropriated some goods while in the shop in question, and the element of dishonesty is provided by the fact of having concealed those goods under her clothing. Equally, the requirement of lack of consent of the owner is clearly dealt with in the same way, as is the intention to deprive the owner of possession of the goods.

For correspondence to be established, it is not necessary to establish that if the act was committed in this country the respondent would be charged with the identical offence charged in the requesting State, but rather to establish that the act complained of in the requesting State would, if done here, enable the respondent to be convicted of an offence. In other words that it would constitute a crime in this jurisdiction – not necessarily the same crime as in the requesting State.

In order to decide that issue, this court must be told the ingredients of the offence in the requesting state – in other words be given a description of the facts of the case. In the present case the respondent is stated to have gone into a shop, taken two leather jackets and concealed them in some sort of a bag hidden beneath her clothing. That in my view clearly would be a sufficient basis, if proven, on which to find her guilty of the offence of theft in this country. The fact that she was dealt with on the basis that she had a previous conviction, in my view does not mean that the facts alleged against her in some way fail to correspond to the offence of theft in this country.

I am satisfied that the evidence of Sgt Heffernan is sufficient to satisfy the requirement of identification of the respondent, and the other requirements as to service of documents, and bringing the respondent properly before this Court for the purpose of the application under Section 47 of the 1965 Act.

I am also satisfied that the documentation which accompanied the Request made to the Minister for Justice, Equality and Law Reform is sufficient to establish that the offence with which the respondent was charged and convicted in the Czech Republic is of such a character as to satisfy the minimum gravity requirement under the Act.

I am also, for the reasons stated, satisfied that the offence with which the respondent was charged and convicted corresponds to an offence in this jurisdiction of theft contrary to Section 4 of the Criminal Justice (Theft and Fraud Offences) Act, 1997.

I therefore make an order under Section 47 of the 1965 Act, as amended, for the delivery of the respondent at some convenient point of departure from the State into the custody of a member of the police force of the Czech Republic having jurisdiction in the area of Olomouc in that country, for conveyance to that country, and I remand her in custody until so delivered.