Dunkley (Carlton) v Commissioner of Corrections and DPP

• Jurisdiction: Jamaica
• Judge: Dukharan, J
• Judgment Date: 30 May 2006
• Judgment citation (vLex): [2006] 5 JJC 3001
• Court: Supreme Court (Jamaica)
• Date: 30 May 2006
• Docket Number: CLAIM NO. H.C.V. 1700/2005

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

IN MISCELLANEOUS

IN THE FULL COURT

CORAM:

THE HONOURABLE CHIEF JUSTICETHE HONOURABLE MRS. JUSTICE MARVA McINTOSHTHE HONOURABLE MR. JUSTICE DUKHARAN

CLAIM NO. H.C.V. 1700/2005

IN THE MATTER OF AN APPLICATION BY

CARLTON DUNKLEY

FOR A WRIT OF HABEAS CORPUS AD SUBJICIENDUM

AND

IN THE MATTER OF THE

BETWEEN

CARLTON DUNKLEY

CLAIMANT

AND

THE COMMISSIONER OF CORRECTIONS

1 ^ST DEFENDANT

AND

THE DIRECTOR OF PUBLIC PROSECUTIONS

2 ^ND DEFENDANT

^st

^nd

CIVIL PROCEDURE - Habeas Corpus - Application for writ

Dukharan, J

1 On the 29 ^th and 30 ^th May 2006 we heard an application for a writ of Habeas Corpus. We dismissed the application and we promised to put our reasons in writing and this we now do.

2 This application was preceded by committal proceedings held before His Honour Mr. Martin Gayle the learned Resident Magistrate of the Corporate Area Criminal Court. The Claimant is wanted to stand trial in the United States of America for conspiracy to import more than 100 kilograms of marijuana and conspiracy to possess with intent to distribute more than 1000 kilograms of marijuana. These proceedings were held pursuant to the Authority to Proceed dated the 1 ^st March 2005 and issued by the Minister of Justice. On the 31 ^st May 2005 the Claimant was ordered committed to custody pending his extradition to the United Stated of America.

3 The Claimant has moved this court for a Writ of Habeas Corpus to set aside the order of the Resident Magistrate.

4 The grounds supporting his application are as follows:

• (1) The Learned Magistrate in deciding the application for an Order for Extradition erred by relying on sworn statements rather than on testimony as required by the Extradition Act and that this amounts to a violation of the constitutional rights of the Claimant as guaranteed by Section 16 of the Constitution of Jamaica.

• (2) That the Learned Resident Magistrate erred in relying on the Affidavits or sworn statements which are not sufficient evidence under this Extradition Act.

• (3) The Learned Resident Magistrate relied on statements, which were made after the Indictment against the Claimant was returned, and which has no established nexus to the allegations in the said indictment. There was no evidence before the Learned Resident Magistrate as to the evidence on which the said Indictment was based.

• (4) That the Learned Resident Magistrate failed to weigh the statements supplied by the requesting state and did not rule whether there was any evidential value to be placed on any of the said statements.

• (5) The Learned Resident Magistrate failed to require the requesting state to provide evidence concerning any plea bargain or plea agreement made with the alleged charged and convicted co-conspirator, Jack Protzman to give his Affidavit, nor was there any evidence that said co-conspirator was sentenced before he gave his affidavit. In the circumstances the Learned Resident Magistrate was not in a position to weigh whether his statement had any evidential value at all.

• (6) The documents provided to the court were not properly authenticated and as such the Learned Resident Magistrate erred in relying on any of them.

• (7) There was no sufficient evidence before the Learned Resident Magistrate of any conspiracy to import or distribute drugs into the United States involving the Claimant.

5 Grounds 1 and 2 are similar with ground two being without the constitutional aspect. It was argued by Mr. Atkinson that the evidence on which the warrant of commitment against the Claimant is based consists of Affidavits and not testimony as required by the Extradition Act and therefore the Claimant is being removed from Jamaica outside of the Provisions of the law and is therefore unconstitutional.

6 The Extradition Act allows for the admissibility of documents in proceedings that fall under that legislation and is governed by Section 14 of the Act which states;

"14

• (1) In any proceedings under this act, including proceedings in an application for habeas corpus in respect of a person in custody under this Act.

  • (a) a document, duly authenticated, which purports to set out testimony given on oath in an approved state shall be admissible as evidence of the matters stated therein;

  • (b) a document, duly authenticated, which purports to have been received in evidence, or to be a copy of a document so received in any proceedings in an approved state shall be admissible in evidence; and

  • (c) — shall be admissible as evidence of the conviction or evidence of the issuance of a warrant for arrest of the accused, as the case may be, and of the other matters stated therein.

• (2) A document shall be deemed to be duly authenticated for the purposes of this section.

  • (a) In the case of a document which purports to set out testimony given as referred to in subsection (1) (a), if the document purports to be certified by a judge, magistrate or officer of the court in or of the approved state in question or an officer of the diplomatic or consular service of that state to be the original document containing or recording that testimony or a true copy of that original document.

  • (b) In the case of a document which purports to have been received in evidence as referred to in subsection (1) (b) or to be a copy of a document so received, if the document purports to be certified as aforesaid to have been, or to be a true copy of, a document which has been so received; or

    ---- and in any such case the document is authenticated either by the oath of a witness or by the official seal of a minister of the approved state in question.

• (3) In this section "oath" includes affirmation or declaration.

• (4) Nothing in this section shall prevent the proof of any matter, or the admission in evidence of any document, in accordance with any other law of Jamaica".

7 The main thrust of Mr. Atkinson's argument is that the documents submitted before the Resident Magistrate are not testimony as referred to in section 14 of the Extradition Act but were affidavits. He has sought to make a distinction between "testimony" and "affidavit evidence".

8 What then is the definition of "testimony"? In Camden (Marquis) vs. IRC 1914 1KB at pages 647 – 648 Cozen Hardy M. R., stated.

"It is for the court to interpret the statute as best it may. In so doing the court may no doubt assist themselves in the discharge of their duty by any literal help they can find, including of course the consultation of standard authors and reference to well known and authoritative dictionaries."

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