Emmanuel (Shervin) v Commissioner of Correctional Services and DPP

• Jurisdiction: Jamaica
• Judge: HARRISON, P. , SMITH, J.A. , HARRIS, J.A.
• Judgment Date: 08 March 2007
• Neutral Citation: JM 2007 CA 5
• Judgment citation (vLex): [2007] 3 JJC 0802
• Court: Court of Appeal (Jamaica)
• Date: 08 March 2007

BEFORE:

THE HON. MR. JUSTICE HARRISON, P THE HON. MR. JUSTICE SMITH, J.A THE HON. MRS. JUSTICE HARRIS, J.A. (AG.)

BETWEEN

SHERVIN EMMANUEL

APPELLANT

AND

THE COMMISSIONER OF CORRECTIONAL SERVICES

1 ^ST RESPONDENT

AND

DIRECTOR OF PUBLIC PROSECUTIONS

2 ^ND RESPONDENT

IN THE COURT OF APPEAL

Frank Phipps, Q.C., Wentworth Charles & Miss Kathryn Phipps instructed by Wentworth Charles & Co., for the Appellant

Annaliesa Lindsay, Assistant Attorney-General & Carlene Larmond instructed by Director of State Proceedings for the first Respondent

Lisa Palmer, Ag. Dep. Director of Public Prosecutions & Tara Reid, Crown Counsel instructed by the Director of Public Prosecutions for the Crown

EXTRADITION - Application refused

ORDER

The appeal is dismissed. The order of the Full Court is affirmed and the application for habeas corpus refused.

HARRISON, P.

1 This is an appeal from the decision of the full court of the Supreme Court on the 19 ^th of October 2004 refusing the issue of habeas corpus for the discharge of the appellant from custody. We heard the arguments herein and gave our oral judgment on 15 ^th December 2005 affirming the decision of the full court. We promised to give our expanded reasons subsequently. We regret the delay in doing so. These now are our reasons.

2 On the 10 ^th of April 2004 the Resident Magistrate for the Corporate Area Criminal Court issued a warrant of committal for the extradition of the appellant to stand trial in the United States of America.

3 The evidence reveals that the appellant was a member of a group of persons who unlawfully transported cocaine from South America to the United States of America through Jamaica and the Bahamas.

4 A grand jury indictment and warrant dated the 12 ^th December 2002 issued out of the United States District Court Southern District of Florida. The appellant and others were charged with several offences. The offences read:

• 1. Conspiracy to import at least five (5) kilograms of mixture and substance containing cocaine in violation of Title 21, US Code Sections 952(a,) 960(b) (1)(B) and Title 18 US Code section 2 (Count 1);

• 2. Attempting to import into the U.S. from a place outside thereof at least five (5) kilograms of a mixture and substance containing cocaine, in violation of Title 21, US Code, Section 952 (b) (1)(B) and Title 18 US Code section 2 (Count 2);

• 3. Possession on a U.S. vessel with the intent to distribute at least five (5) kilograms of a mixture and substance containing cocaine, in violation of Title 46, US Code 1903 (A) and (g), Title 21, US Code Sections 960(b) (1) (B) and Title US Code, section 2 (Count 3);

• 4. Importation into the U.S. from a place outside thereof of at least five (5) kilograms of a mixture and substance containing cocaine, in violation of Title 21, US Code, Sections 952(a) and 960 (B)(1)(B) and Title 18 US Code, Section 2 (Count 4);

• 5. Importation into the United States from a place outside thereof of at least five (5) kilograms of a mixture and substance containing cocaine, in violation of Title 21, US Code, Sections 952(a) and 960 (B)(1)(B) and Title 18 US Code, Section 2 (Count 5).

5 An Extradition Treaty signed on the 14 ^th of June 1983 relating to extraditable offences exists between Jamaica and the United States of America.

6 In a Diplomatic Note, addressed to the Ministry of Foreign Affairs and Trade, dated July 25, 2003, the United States Government requested the extradition of the appellant for trial in respect of the charges listed above.

7 The offences contained in the indictment dated the 12 ^th of December 2002 are extraditable offences pursuant to section 5(l)(b) of the Extradition Act ("the Act") being offences:

• (i) provided for by the treaty; and

• (ii) are acts which would constitute offences against the laws of Jamaica if it took place in Jamaica.

8 Section 5(1) of the Extradition Act regulates the designation of extradition offences in matters arising as between Jamaica and other Commonwealth States (section 5(l)(a)) and as between Jamaica and "a treaty State" (section 5(l)(b)). The United States is one such "treaty State" by virtue of the said Extradition Treaty.

9 With regard to section 5(l)(b)(i), Article 11(1) of the treaty correspondingly provides that an offence shall be extraditable if it is punishable under the laws of both contracting states to the treaty by imprisonment or some other form of detention for a period exceeding one year or, by any greater punishment. Article II(2)(a) further states that the offences of conspiring attempting to commit, aiding or abetting, counseling or procuring the commission of any of the offences falling under Article 11(1), shall also constitute extraditable offences under the Treaty.

10 On the 25 ^th of August 2003 the Resident Magistrate for the Corporate Area issued his provisional warrant for the arrest of the appellant based on the information presented. In his opinion the appellant was accused of offences which corresponded with offences in the United States of America as required by section 9 (1) of the Act. The provisional warrant was executed on November 21, 2003 and the appellant taken into custody by Detective Corporal Brown of the Jamaica Constabulary Force. Subsequently, on February 4, 2004, the Minister of Justice issued his authority to proceed pursuant to section 8(1) of the Act thereby authorizing the Resident Magistrate to proceed with the appellant's committal hearing. Having reviewed the evidence filed by the American authorities in support of their extradition request, the learned Resident Magistrate issued a warrant of committal dated the 10 ^th of April 2004, committing the appellant into custody to await his extradition to the United States.

11 On May 17, 2004, the appellant applied to the Supreme Court for a writ of habeas corpus. On October 19, 2004, the Full Court of the Supreme Court issued its decision rejecting the appellant's application.

12 Before us in the Court of Appeal the following grounds of appeal were argued:

• "1. Unfair hearing

  The structure of the case against the Applicant was the result of a grand jury indictment. Nowhere in the proceedings was it revealed to the appellant what evidence was presented to the grand jury. This non-disclosure resulted in unfairness to the appellant at every stage of the proceedings as he was deprived of the facilities for answering the charges against him.

  The affidavits with evidence exhibited through Atkinson in proof of the allegations against the applicant are all dated after the grand jury indictment This evidence could not have been the basis for the decision of the grand jury and in the circumstances the committal for extradition for trial on this indictment was illegal and unconstitutional.

• 2. Inadmissible evidence

  The Full Court was in error when it found that the evidence of tape recorded telephone conversations were admissible at the committal proceedings. That there was no evidence before the Resident Magistrate of the alleged telephone conversation since neither the tapes, the transcript of the tapes, or the telephone records were ever tendered in evidence [see affidavits of Turnquest and Woodside at pages 86 and 123 respectively]

• 3. Jurisdiction

  There was no evidence in the respective affidavits that was proof that the applicant was in any way involved in conduct referable to the jurisdiction of the courts of the United States of America. The evidence presented could only indicate that the applicant was a supplier of cocaine from Jamaica to the Bahamas without knowledge of any other ultimate destinations.

• 4. Offences cognizable in Jamaica

  (a) The charges in counts 2, 3, 4, and 5 are for aiding and abetting based on activity allegedly committed in Jamaica and therefore not extraditable. [See Para. 15 of Atkinson's affidavit at page 24.] A charge of aiding and abetting is only justifiable (sic) in the jurisdiction where the act took place. This must be distinguished from a charge of conspiracy where the overt acts committed abroad are justifiable (sic) in the jurisdiction where they were intended to result in a crime.

  (b) The offences as charged in the authority to proceed are not offences known to the laws of Jamaica. A charge of importing drugs into the USA is not cognizable in the Jamaican jurisdiction, as distinct from importing drugs into Jamaica.

• 5. Identification

  No proper identification of the applicant as the person referred to in the relevant affidavits as wanted in the USA to answer charges in a grand jury indictment. There is no nexus between applicant and the photographs exhibited to the affidavits.

• 6. Misdirection

  The Full Court misdirected itself on the facts in the case and drew conclusions not warranted by the evidence.

• 7. ORDER SOUGHT

  That a Writ of Habeas Corpus should issue, directed to the Commissioner of Correctional Services, to have the body of SHERVIN EMMANUEL before the said Court at King Street, Kingston to undergo and receive all such matters as the Court shall consider concerning him, and BE DISCHARGED from the Custody of the Commissioner of Corrections."

13 It was argued in ground 1 that the hearing was unfair because of nondisclosure of the evidence presented to the grand jury. We find that nondisclosure as a general rule may create unfairness in a criminal trial. However, section 8(2) of the Act, circumscribed the ambit of the material to be supplied at the hearing for committal. It reads inter alia:

"8. (2) There shall be furnished with any request made ... on behalf of any approved State -

(a) in the case of a person accused of an offence, ...

evidence sufficient to justify the issue of a warrant for his arrest under section 9."

14 and section 9 reads inter alia:

"(1) A warrant for the arrest of a person accused of an...