Charles Clarke v The Director of Correctional Services, DPP
| Jurisdiction | Jamaica |
| Judge | WALKER, J.A: |
| Judgment Date | 12 July 2004 |
| Neutral Citation | JM 2004 CA 19 |
| Judgment citation (vLex) | [2004] 7 JJC 1203 |
| Court | Court of Appeal (Jamaica) |
| Date | 12 July 2004 |
EXTRADITION - Writ of Habeas Corpus - Whether the accusation against the appellant made in good faith or in the interest of justice
On December 19, 2003 having heard the arguments of Counsel we dismissed this appeal and promised to put the reasons for our decision in writing at a later date. We now do so.
The appeal was prompted by an order of the Full Court of the Supreme Court (Wolfe CJ, Granville James and Harrison JJ) dismissing a motion brought by the appellant. By that motion the appellant had instituted habeas corpus proceedings challenging the issuance of a warrant of committal by the Resident Magistrate for the Corporate Area whereby the appellant was detained to await his extradition to the United States of America for trial on charges for drug related offences.
In support of this appeal the sole original ground that was filed read as follows:
"That the Full Court misdirected itself in failing to hold the following: That the accusation against he Applicant is not made in good faith and in the interest of justice."
By the time the appeal came on for hearing before us permission was sought to argue four supplemental grounds which read as follows:
"1. The evidence relied on by the requesting state does not support the charges for which the Appellant's extradition is sought and accordingly the Warrant of Committal is bad.
2. The Appellant's Committal to be extradited to face trial for the conspiracy as alleged in the Indictment is wrong in law as the evidence supplied does not show that he was involved in any conspiracy from May, 1998 to April 2000. Rather the evidence alleges his involvement in cocaine dealings only between September 19 and 20 of 1998.
3. The Magistrate erred in committing the Appellant to be extradited to face "one count of aiding and abetting in the possession with intent to distribute cocaine" as there are two such counts to the Indictment and it is indecipherable from the said Warrant of Committal which of the two it is intended that the Appeal (sic) should be extradited for and face trial.
4. The request for the Appellant's Extradition subsequent to his deportation amounts to an abuse of process and ought not to be allowed."
The application to argue these supplemental grounds of appeal was strenuously opposed by Counsel for the respondents who in their submissions relied on the decision of this court (Forte, Downer and Gordon JJA) in Vivian Blake v The Director of Public Prosecutions and Anor , Supreme Court Civil Appeal No. 107/1996 (unreported) judgment delivered July 27, 1998. In that case in considering a similar application to argue supplemental grounds of appeal, the majority of the court (Forte and Gordon JJA) concluded that on a true construction of section 63 (1) and (2) of the Criminal Justice (Administration) Act, 1991, those legal provisions did not permit such supplemental grounds to be argued on appeal. In his judgment Forte JA (as he then was) had this to say:
"By section 63 (1) of the Criminal Justice (Administration) Act 1991 an application for a writ of Habeas Corpus SHALL state ALL the grounds upon which it is based (emphasis mine). Section 63(2) provides that where an application for a writ has been made, no such application may again be made whether to the same Court or to any other Court, UNLESS fresh evidence is adduced in support of the application. The intention of the section must be to prevent continuous applications otherwise applicants could withhold separate grounds and come to the court, time and time again on different grounds. By the Judicature (Appellate Jurisdiction) (Amendment) Act 1991 an appeal lay for the first time to the Court of Appeal in matters of habeas corpus, Section 21 (A) (2) gave to the Court of Appeal the power to exercise any powers of the court below or to remit the case to that court. It is mandatory by Section 63(1) of the Criminal Justice (Administration) Act 1991, that an applicant for writ of habeas corpus must state ALL the grounds upon which his application is based; and Section 63 (2) deprives him of any opportunity to apply again UNLESS he produces fresh evidence...The object of Sections 63 (1) and (2) must be to provide for one opportunity only, to challenge through the habeas corpus procedure, the decision of the Resident Magistrate to commit the person to prison to await his extradition. The section however, recognizes that where fresh evidence becomes available it may affect the original decision and consequently an applicant is given a further opportunity for the application to be considered on the basis of that fresh evidence. In the instant case the evidence sought to be adduced was not 'fresh evidence' and consequently, the appellant would have had no basis for bringing a new application before the Court. The new grounds sought to be argued, each refer to nine separate reasons why habeas corpus should issue, and were all matters not raised before the Full Court. In any event, the purported fresh evidence would only be supportive of some of the new grounds by way of legal opinion and not per se evidence that go to the fundamentals of the matters therein raised. In those circumstances, to have permitted new grounds to have been advanced at this stage, would in my view allow the appellant to do through the process of appeal, that which he was shut out from doing by virtue of sections 63(1) and (2) of the relevant Act (supra). It was for those reasons that I came to the conclusion that the motion for leave to argue those...
To continue reading
Request your trial