MJE v Horvath: State not allowed raise argument on appeal not raised at trial

Here, the Supreme Court (Denham CJ writing) dismissed the State’s appeal against the High Court’s refusal to order Horvaht’s surrender to Hungary under a European Arrest Warrant. The Court held that the High Court’s interpretation of s 45 of the European Arrest Warrant Act (pre-amendment) was correct. And that the State could not argue for a post-amendment interpretation as it had not raised that argument at trial.



In May 2011 the High Court endorsed a European Arrest Warrant from Hungary seeking the surrender of Ferenc Horvath. That was the third warrant issued for Horvath and contained additional information:

– the named person was convicted at first instance and that a sentence of 3 years and 6 months was imposed on him;

– the named person is now sought for the purposes of prosecution and not to serve the above sentence imposed on him at first instance;

– the named person is now sought for the purposes of an appeal hearing and this appeal is a full hearing of the case.


Section 45 of the European Arrest Warrant Act 2003

S 45 originally prohibited the surrender of a person convicted in their absence unless a retrial was available. In 2012 s 45 was amended to permit the surrender of such persons where an appeal (on merits, including fresh evidence) is available.

S 45 must be interpreted in light of Article 5(1) of the Framework Decision on the European Arrest Warrant 2002/584/JHA. Article 5(1) limits surrender to cases where the surrendered person “will have an opportunity to apply for a retrial of the case in the issuing Member State and to be present at the judgment”.


High Court

The trial judge (Edwards J) refused to order Horvath’s surrender. Edwards held that the amendment to s 45 only applied to cases commenced after the amendment was introduced. And as no guarantee of retrial was provided surrender was prohibited. But, on application from the State, he granted leave to appeal on a point of law of exceptional public importance:

Whether the High Court was correct in law in its decision that the surrender of the respondent to Hungary for the purposes of a second instance prosecution fell within the scope of an application of s. 45 of the European Arrest Warrant Act of 2003, as amended.


Supreme Court

Dismissing the appeal, Denham CJ stated:

50. As the High Court decided the case by reference to the un-amended s. 45, and counsel for the Minister now argue that the amended version of s. 45 applies, a situation has arisen where the Minister wishes to argue a ground which was not argued in the High Court. It is not in accordance with the jurisprudence of this Court to consider an appeal on issues not argued in the High Court, and further which were not part of the certificate providing for appeal to this Court, and nor were identified in the grounds of appeal.

51. On the issue of the application of s. 45 of the European Arrest Warrant Act, 2003, as amended, (prior to 2012) I would affirm the decision of the High Court that the surrender of the respondent was prohibited in the absence of an undertaking as required by section 45.

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