Emmanuel, Shervin v The Commissioner of Corrections &DPP

• Jurisdiction: Jamaica
• Judge: WOLFE, C.J. , MARSH J. , DUKHARAN J.
• Judgment Date: 19 October 2004
• Judgment citation (vLex): [2004] 10 JJC 1902
• Court: Supreme Court (Jamaica)
• Date: 19 October 2004

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

MISCELLANEOUS

CORAM:

THE HONOURABLE CHIEF JUSTICE THE HONOURABLE MR. JUSTICE MARSH THE HONOURABLE MR. JUSTICE DUKHARAN

SUIT NO. 2004 HCV 1055

BETWEEN

SHERVIN EMMANUEL

APPLICANT

AND

THE COMMISSIONER OF CORRECTIONS

1 ^ST RESPONDENT

THE DIRECTOR OF PUBLIC PROSECUTIONS

2 ^nd DEFENDANT

^st

^nd

EXTRADITION - Warrant of Committal - Writ of Habeas Corpus Ad Subjiciendum - Inadmissible evidence - Miscarriage of justice

WOLFE, C.J

1 On the 10 ^th day of April 2004 the learned Resident Magistrate of the Corporate Area Criminal Court issued a warrant of committal for the applicant to be extradited to the United States of America to stand trial on an indictment in respect of extraditable offences committed by the applicant whilst he resided in the United States.

2 The applicant now moves this court for a Writ of Habeas Corpus to set aside the order of the Resident Magistrate.

3 The grounds supporting the application are -

• (i) That the learned Resident Magistrate in committing the applicant to be extradited relied on evidence contained in Affidavit of Ivan Musgrove dated the 23 ^rd day of January 2004 which said affidavit was not considered as evidence at the hearing of the grand jury.

• (ii) That the learned Resident Magistrate considered inadmissible evidence when he relied on the statement by Thyrone Turnquest that "the voice of the tape recording was that of EMMANUEL'', when neither evidence of the tape recording itself nor a transcript thereof was provided in evidence at the hearing. Alternatively, it is submitted that the failure of the learned Trial Judge to exclude the evidence of the content of the telephone and the tape recording impeded the court's general jurisdiction to achieve fairness, particularly, as to how the said Tape Recordings had come into the possession of the Crown and that the said tape recorded evidence was not probative and its inadmissibility resulted in a miscarriage of justice.

• (iii) That the Acts complained of by the requesting state did not constitute an extradition offence as the "Overt Acts" related to the Jurisdiction of Jamaica and the Bahamas, and all other evidence to the contrary was inadmissible.

• (iv) That the allegation related to five (5) counts contained in the indictment relates to the offence of aiding and abetting and there is no extra territorial Jurisdiction for this offence.

• (v) That there was no proof of the identification of the person alleged to have committed the offences in the application before the Court

• (vi) That the learned Resident Magistrate hr>d no jurisdiction in law to consider charges which did not allege offence against the laws of Jamaica.

4 In the presentation of the arguments for the applicant, Phipps Q.C. categorized the abovementioned grounds into three categories viz.

• (a) Incompetent evidence

• (b) Improper procedure

• (c) Lack of jurisdiction

5 A brief summary of the allegations giving rise to the charges preferred is in my view helpful in considering the arguments of the applicant.

6 Austin Knowles was the head of an organization of smugglers in the Bahamas that smuggled cocaine through the Bahamas into the United States. Shervin Emmanuel was a member of this organization and his role was to procure cocaine from the open seas and transport it into the Bahamas where he stored it until it was time to smuggle the cocaine into the United States. He was also responsible for transporting cocaine from the southern region of the Bahamas to the northern region where it would be loaded into vessels and taken into the United States of America.

7 A. INCOMPETENT EVIDENCE -

8 In this regard the applicant contends that -

• (a) there were no overt acts of aiding and abetting within the United States and therefore there was no evidence that the applicant had committed any offence within the jurisdiction of the United States;

• (b)that the learned Resident Magistrate in making the committal order acted upon hearsay evidence;

• (c)that there was no evidence before the committal court upon which it could properly be held that the applicant had knowledge of the cocaine being transported into the United States.

9 Phipps Q.C. submitted that there was no evidence in any of the affidavits which was capable of proving that the applicant was in anyway involved in conduct referable to the jurisdiction of the courts of the United States of America. He said that 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 destination.

10 It was further urged that the charges in Counts 2,3, 4 and 5 of the indictment were based on activities allegedly committed in Jamaica and therefore not extraditable. A charge of aiding and abetting, Phipps Q.C. contends, is only justiciable in the jurisdiction where the act took place and must be distinguished from a charge of conspiracy where the overt acts committed abroad are justiciable in the jurisdiction where they were intended to result in a crime.

11 There can be no doubt that the principle enunciated by counsel for the applicant was sound law, however the position has changed and the courts are following a much more liberal approach.

12 In Re Al-Fawwaz [2001] UK HL 69, a decision of the...