O'Donoghue v Ireland - [2009] FCAFC 184

FEDERAL COURT OF AUSTRALIA
O’Donoghue v Ireland [2009] FCAFC 184
EXTRADITION – appeal from decision of primary judge determining that the applicant is eligible for surrender within the meaning of s 19(2) of the Extradition Act 1988 – whether supporting documents constitute a duly authenticated statement in writing setting out the conduct constituting the offence – whether alleged conduct constitutes an extradition offence in Western Australia
EVIDENCE – inferences – the extent to which it is appropriate to draw inferences from the material relied upon in the supporting documents
CRIME – width of expression ‘any fraudulent means’ in Criminal Code (WA), s 409
Extradition Act 1988 (Cth) ss 6, 10(2), 10(3), 12(1), 12(1)(b), 12(2), 16, 19(2), 19(2)(a), 19(3)(c)(i), 19(3)(c)(ii), 21(2), 21(6)(d)
Larceny Act 1916 (Ireland) ss 20(1)(iv)(a), 32(1)
Criminal Code (WA) ss 1, 7, 370, 371, 371(1), 371(2), 378, 409, 409(1)
Cabal v United Mexican States (No 3) (2000) 186 ALR 188
Director of Public Prosecutions (Cth) v Kainhofer (1995) 185 CLR 528
Graham-Helwig v Western Australia (2005) 30 WAR 221
Griffiths v United States of America (2005) 143 FCR 182
Kainhofer v Director of Public Prosecutions (No 2) (1996) 70 FCR 184
Minister for Home Affairs v Tervonen (2008) 166 FCR 91
O'Donoghue v Ireland [2009] FCA 618
R v Olan, Hudson & Hartnett [1978] 2 SCR 1175
Timar v Republic of Hungary [1999] FCA 1518
Truong v The Queen (2004) 223 CLR 122
United States of America v Holt (1994) 49 FCR 501
Vasiljkovic v Commonwealth (2006) 227 CLR 614
Wiest v Director of Public Prosecutions (1988) 23 FCR 472
Zoeller v Federal Republic of Germany (1989) 23 FCR 282
VINCENT THOMAS O'DONOGHUE v IRELAND and GRAEME NEIL CALDER
WAD 99 of 2009
FINN, GILMOUR AND MCKERRACHER JJ
22 DECEMBER 2009
PERTH

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

GENERAL DIVISION

WAD 99 of 2009

ON APPEAL FROM THE FEDERAL COURT

BETWEEN:
VINCENT THOMAS O'DONOGHUE
Appellant

AND:
IRELAND
First Respondent

GRAEME NEIL CALDER
Second Respondent

JUDGES:

FINN, GILMOUR AND MCKERRACHER JJ

DATE OF ORDER:

22 DECEMBER 2009

WHERE MADE:

PERTH

THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellant is to pay the costs of the respondents to be taxed if not agreed.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

The text of entered orders can be located using eSearch on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

GENERAL DIVISION

WAD 99 of 2009

ON APPEAL FROM THE FEDERAL COURT

BETWEEN:
VINCENT THOMAS O'DONOGHUE
Appellant

AND:
IRELAND
First Respondent

GRAEME NEIL CALDER
Second Respondent

JUDGES:

FINN, GILMOUR AND MCKERRACHER JJ

DATE:

22 DECEMBER 2009

PLACE:

PERTH

REASONS FOR JUDGMENT
THE COURT:
INTRODUCTION

The first respondent (Ireland) wishes to extradite the appellant (Mr O’Donoghue) on charges relating to misuse of funds with which he was entrusted while operating a business.
On 9 June 2009 the primary judge determined that Mr O’Donoghue was eligible for surrender in…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2009] FCAFC 184
Decision Date: 22 DECEMBER 2009

CaseChat Overview and Summary

In the case of O’Donoghue v Ireland, the appellant, Mr O’Donoghue, was convicted of multiple criminal offences under the Criminal Code (WA). These included charges of stealing, fraudulent conversion of property, and intent to defraud by deceit. The respondent, Ireland, appealed against these convictions on various grounds, including the alleged ambiguity of the supporting documents used in the prosecution. The primary judge's decision was upheld by the higher court, which dismissed the appeal and affirmed the convictions.

The central legal issues before the court were whether the supporting documents were ambiguous in a way that undermined the conviction for stealing and fraudulent conversion of property, and whether the evidence was sufficient to establish intent to defraud. The court examined the statutory provisions of sections 378, 371, and 409 of the Criminal Code (WA) to determine if the elements of the offences had been proven beyond reasonable doubt. The court further considered whether the appellant was personally the owner and operator of the business called Property World, as alleged, and whether this was relevant to the charges.

The court found that the supporting documents, when read in their entirety, were not ambiguous and clearly disclosed that Mr O’Donoghue was the personal owner and operator of Property World. This was crucial for establishing his personal liability for the offences. The court held that the evidence, particularly the use of the phrase "pretending to be solvent," sufficiently supported the inference of intent to defraud. The court relied on the precedent set in Zoeller to support its interpretation of intent to defraud. Consequently, the appeal was dismissed, and the original convictions were upheld.

The final orders of the court were that the appeal be dismissed and that the appellant, Mr O’Donoghue, is to pay the costs of the respondents, to be taxed if not agreed. This decision reaffirmed the primary judge's findings and ensured that the appellant's convictions stood as determined.

Orders

Orders of the court

1. The appeal be dismissed.

2. The appellant is to pay the costs of the respondents to be taxed if not agreed.

Note:

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

FINN, GILMOUR AND MCKERRACHER JJ

Equally, in relation to the requisite element of the charge under consideration, namely, intent to defraud, the Court concluded that intent could be inferred from the use of the words in the accompanying documents ‘pretending to be solvent’. A similar approach was taken in Zoeller 23 FCR 282 (at 302). THE JUDGMENT BELOW The Western Australian statutory provisions which relate to the conduct described in the accompanying documents and warrants are s 378 and s 371, respectively, of the Criminal Code (WA) (the Code) which deal with stealing and s 409 of the Code which deals with intent to defraud by deceit or any fraudulent means (false pretences). Those provisions relevantly provide as follows:Section 378:Any person who steals anything capable of being stolen is guilty of a crime, and is liable, if no other punishment is provided, to imprisonment for 7 years.Section 371:(1)A person who fraudulently takes anything capable of being stolen, or fraudulently converts to his own use or to the use of any other person any property, is said to steal that thing or that property.(2)A person who takes anything capable of being stolen or converts any property is deemed to do so fraudulently if he does so with any of the following intents, that is to say — (a)An intent to permanently deprive the owner of the thing or property of it or any part of it;(b)An intent to permanently deprive any person who has any special property in the thing or property of such special property;…(f)In the case of money, an intent to use it at the will of the person who takes or converts it although he may intend to afterwards repay the amount to the owner.Section 409(1):Any person who, with intent to defraud, by deceit or any fraudulent means — (a)obtains property from any person;(b)induces any person to deliver property to another person;(c)gains a benefit, pecuniary or otherwise, for any person;(d)causes a detriment, pecuniary or otherwise, to any person;(e)induces any person to do any act that the person is lawfully entitled to abstain from doing; or(f)induces any person to abstain from doing any act that the person is lawfully entitled to do, is guilty of a crime and is liable — …(h)in any other case, to imprisonment for 7 years.Section 409(3):It is immaterial that the accused person intended to give value for the property obtained or delivered, or the benefit gained, or the detriment caused. The primary judge was of the view that when one fairly reads the whole of the supporting documents including the warrants, the detailed statement of facts and circumstances relating to the warrants and the conduct complained of in the ‘Allegations: Overview’ section, the material elements or ingredients of the offences stand out plainly without ambiguity. His Honour rejected the contention that the supporting documents were relevantly ambiguous as to whether Property World was Mr O’Donoghue’s business or that of a corporate entity. His Honour concluded (at [92]) that a fair reading of the supporting documents disclosed that Mr O’Donoghue was personally the owner and operator of the business called Property World and there was no question of some corporate entity owning or operating the business.

Ratio Decidendi

Legal Principle Established

Established by: FINN, GILMOUR AND MCKERRACHER JJ

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION	WAD 99 of 2009

JUDGES:	FINN, GILMOUR AND MCKERRACHER JJ
DATE OF ORDER:	22 DECEMBER 2009
WHERE MADE:	PERTH

JUDGES:	FINN, GILMOUR AND MCKERRACHER JJ
DATE:	22 DECEMBER 2009
PLACE:	PERTH