Bingham (Prestley) v Commissioner of Correctional Services and DPP
| Jurisdiction | Jamaica |
| Judge | PANTON, P. , COOKE, J.A. , HARRIS, J.A : |
| Judgment Date | 28 September 2007 |
| Neutral Citation | JM 2007 CA 45 |
| Judgment citation (vLex) | [2007] 9 JJC 2802 |
| Court | Court of Appeal (Jamaica) |
| Date | 28 September 2007 |
EXTRADITION - Custody - Expiration of time period - Discharge
On July 31, 2007, we made the following order in this matter:
"Appeal allowed. Decision of the Full Court set aside. Appellant to be discharged from custody forthwith. Costs in this Court and below to be the appellant's. Written reasons to follow."
We now fulfill our promise in respect of the reasons for our decision. Having ead the reasons that have been written by my learned colleagues, Cooke, J.A., nd Harris, J.A., I have concluded that there is nothing to be added thereto.
-
1. On the 28 th December, 2005, the appellant was committed to custody to await his extradition to the United States of America. He was to face drug related charges. On the 14 th March, 2006, he applied to the Supreme Court for his release from custody pursuant to section 13 of the Extradition Act (the Act). This application, erroneously sought a Writ of Habeas Corpus, but in substance was sufficient to invoke the aid of that section of the Act. The Full Court on October 27, 2006, dismissed his application in two sentences.
"Application dismissed. Sufficient cause shown."
It is from this dismissal that this appeal now lies.
-
2. I begin this judgment by setting out section 13 of the Act:
"13. —
-
(1) If any person committed to await his extradition is in custody in Jamaica under this Act after the expiration of the following period, that is to say —
-
(a) in any case, the period of two months commencing with the first day on which, having regard to subsection (2) of section 11, he could have been extradited; or
-
(b) where a warrant for his extradition has been issued under section 12, a period of one month commencing with the day on which that warrant was issued, he may apply to the Supreme Court for his discharge.
-
-
(2) If upon any such application the Supreme Court is satisfied that reasonable notice of the proposed application has been given to the Minister, the Supreme Court may, unless sufficient cause is shown to the contrary, by order direct the applicant to be discharged from custody and, if a warrant for his extradition has been issued under section 12, quash that warrant." (Emphasis mine)
-
-
3. For the purpose of computing time within the time frame postulated by section 13, it is 13 (1) (a) which is pertinent. Therein is reference to section 11 (2) which states:
"11.
-
(1) ...
-
(2) A person committed to custody under section 10 (5) shall not be extradited under this Act —
-
(a) in any case, until the expiration of the period of fifteen days commencing on the day on which the order for his committal is made; and
-
(b) if an application for habeas corpus is made in his case, so long as proceedings on the application are pending. [Emphasis supplied]"
-
section 11 (2) (b) is not relevant to this case as the appellant did not avail himself of his right to apply for habeas corpus. It is therefore clear that the fifteen day time period mentioned in section 11 (2) (a) expired on the 12 th January, 2006. Consequently the two month period designated in section 13 (1) (a) expired on the 12 th March, 2006. It will be recalled that the appellant filed his application for his discharge on the 14 th March, 2006.
-
-
4. It is not in dispute that the words "may, unless sufficient cause is shown to the contrary, by order direct the applicant to be discharged from custody" in section 13 (2) of the Act are to be construed in such a manner that "may" should be interpreted as mandatory, resulting in the discharge of the person awaiting extradition in the absence of sufficient cause being shown to the contrary. This has been so since Re Shuter (No. 2) [1959] 3 All E.R. 481. In that case the Court (Q.B.D) was considering section 7 of the English Fugitive Offenders Act 1881 in which the excerpted words appear. The construction put upon those words in Re Shuter has been accepted, without the slightest qualification. It follows that there is a burden on the respondents to show "sufficient cause to the contrary" otherwise the Court is obliged to accede to the application for discharge. Therefore once the time period mandated by section 13 (1) (a) has expired and there is an application for discharge pursuant to section 13 (2) it is for the respondents to demonstrate that although the period fixed by the legislature had expired, there were circumstances which showed that there was sufficient cause why there had not been obedience to the statute. It is my view that in dealing with section 13 (2) the approach should be that on an application for discharge the applicant at the beginning is in the 'driver's seat' as it were. It is for the respondents by relevant evidence to displace him therefrom.
-
5. In an effort to show that there was sufficient cause to the contrary, reliance was placed on the affidavit of Donald Bryan who described himself as an acting Deputy Director of Public Prosecutions in the Office of the Director of Public Prosecutions. He had responsibility for extradition matters in that office. The relevant paragraphs of this affidavit dated the 24 th May, 2006 are now reproduced.
-
"5. On January 25, 2006 I wrote to the Registrar of the Supreme Court enquiring of the status of Mr. Bingham's case, that is, whether he had filed a writ of habeas corpus or not. A copy of the letter is exhibited hereto and marked "DB-1" for identity.
-
6. On March 23, 2006 the Registrar of the Supreme Court, formally wrote to the Director of Public Prosecutions advising that their records did not reveal that an application for writ of habeas corpus was filed on behalf of Prestley Bingham. I exhibit hereto the letter from Registrar marked "DB-2" for identity.
-
7. Between writing to the Registrar of the Supreme Court on January 25, 2006 and receival [sic] of the response by letter dated March 23, 2006, I have instructed Mrs. Yvonne Young, Secretary in the Office of the Director of Public Prosecutions, to make follow-up telephone calls on numerous occasions to the Registrar's Office on the matter. To the best of my knowledge and belief such calls were made by Mrs. Young as on occasions I observe her making the calls. However, she was not successful in securing the letter in a timely manner.
-
8. In mid March, I also made a telephone call to Registrar and was advised that the letter was being prepared.
-
9. On March 23, 2006 I personally visited the Registrar's Office where I awaited the completion of the letter which was delivered to me.
-
10. Once the letter was in my possession I immediately forwarded a letter to the Permanent Secretary in the Minister of Justice [sic] with a draft of the Surrender Warrant for the attention and signature of the Honourable Minister, as also a copy of the Warrant of Committal, information that Mr. Bingham has no local charges in this jurisdiction, and a copy of the letter from the Registrar that no writ of habeas corpus has been filed by Mr. Bingham. I exhibit hereto letter marked "DB-3" for identity.
-
11. At the time when the draft Surrender Warrant was forwarded to the Honourable Minister for his signature, to the best of my knowledge and belief, Mr. Bingham had not filed a writ of habeas corpus.
-
12. During the period from Mr. Bingham's committal to the draft Surrender Warrant being forwarded for the attention and signature of the Honourable Minister, there was no indication by or on behalf of Mr. Bingham in writing or otherwise, that he would not be challenging his extradition."
-
-
6. Counsel for the appellant submitted that:
"... the matters set out in the affidavit of Donald Bryan (the requesting state's representative) cannot be said to amount to sufficient cause as they plainly indicate administrative inaction, incompetence, lack of...
To continue reading
Request your trial
-
Vincent Ashman v Commissioner of Correctional Services and Others
...of the fugitive. It depends on the reason for the delay. Mr James relied on Prestley Bingham v Commissioner of Corrections and another (2007) 74 WIR 345 for the proposition that delay beyond the statutory period in surrendering the fugitive is fatal unless “sufficient cause is shown” explai......