Facey v Director of Correctional Services, Attorney General and Director of Public Prosecutions
| Jurisdiction | Jamaica |
| Judge | Simmons J,Stamp J,Shelly – Williams J |
| Judgment Date | 17 March 2017 |
| Neutral Citation | [2017] JMSC Full 01 |
| Date | 17 March 2017 |
| Court | Supreme Court (Jamaica) |
| Docket Number | CLAIM NO. 2016HCV01145 |
[2017] JMSC Full 01
IN THE SUPREME COURT OF JUDICATURE OF JAMAICA
IN THE FULL COURT
THE HON. Miss Justice Nicole Simmons
THE HON. Mr. Justice Chester Stamp
THE HON. Mrs. Justice Lorna Shelly – Williams
CLAIM NO. 2016HCV01145
In the Matter of the Judicature (Resident Magistrates) Act
and
In the Matter of the Constitution of Jamaica and
In the Matter of the Extradition Act
and
Writ of Habeas Corpus Subjiciendum
and
and
Abel Don Foote and Stacy Knight instructed by Knight, Junior and Samuelsfor the Claimant, Ms Althea Jarrettinstruted by Director of State Proceedings for the 1 st and 2 nd Defendant, Mr Leighton Morrisfor the 3 rd Defendant.
Extradition Act — Extradition Treaty — provisional warrant — non disclosure — standard of proof.
I have read the judgment of Shelly – Williams J and I agree with her reasoning and conclusion. There is nothing further that I wish to add.
I have read the judgment of Shelly – Williams J and I agree with her reasoning and conclusion. There is nothing further that I wish to add.
This is an application by the Claimant who is accused of having committed drug related offences in the United States of America for a Writ of Habeas Corpus.
On the 13 th of October 2015 a Diplomatic Note from the Unites States of America requesting the provisional arrest for extradition purposes of the Claimant was received by the Ministry of Foreign Affairs and forwarded to the Ministry of Justice the said afternoon.
On the 15 th of October 2015 a provisional warrant under section 9(1) (b) of the Extradition Act (the Act) was issued by her Honour Mrs. Simone Wolf Reece, Resident Magistrate for the Corporate Area. A request on information was made by Corporal Donald Thomas.
On the same day, the warrant was executed on the Claimant in the parish of St James by Detective Sergeant Ronald Walker. At the time the officer was also armed with a photograPh of the Claimant. The photograph was shown to the Claimant, who was asked if it was his picture, and he indicated that it was a younger version of himself.
On the 14 th of December 2015 a second Diplomatic Note and authenticated documents relevant to the request for the extradition of the Claimant were received by Ministry of Foreign Affairs and were forwarded to the Ministry of Justice. These documents were later disclosd to Counsel for the Claimant. The authenticated documents included affidavits from witnesses alleging that the Claimant participated in illicit drug transactions during the months of January 2013 and February 2013. It is alleged that the Claimant on different occasions contacted Mr. Marvin Dodd and instructed him either personally or through others in respect of the collection and distribution of drugs.
On the 4 th of March 2016 Her Honour Mrs. Grace Henry-McKenzie ruled that a prima facie case had been made out against the Claimant and ordered that he be committed to custody for the purpose of extradition.
On the 15 th of August 2016 the Claimant filed an Amended Fixed Date Claim Form seeking a writ of Habeas Corpus. The grounds as filed are reproduced below in full:
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(1) The learned Parish Judge erred in her assessment of a vital issue to wit; whether or not the provisional warrant which caused the Applicant to be arrested was in fact a nullity.
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(2) The learned Parish Judge erred in committing the Applicant without first ascertaining whether or not there was information upon oath to ground the warrant of the subject.
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(3) The learned Parish Judge erred in committing the Applicant in circumstances where the Requesting State's witness (the apprehending officer), itemized conditions which must be satisfied in order for the arrest warrant to be properly executed; notwithstanding these conditions not being fulfilled the Applicant stood committed.
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(4) The learned Parish Judge erred in finding that there was sufficient evidence upon which to identify the subject as the evidence taken as a whole cast doubt on the identity of the subject.
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(5) The learned Parish Judge erred in her assessment of the evidence in its totality thereby finding that there was sufficent evidence satisfying the test of beyond a reasonable doubt upon which to commit the Applicant.
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(6) The learned Parish Judge erred in committing the Applicant as it was unsafe so to do.
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(7) The Learned Parish Judge erred in her interpretation of the Extradition Treaty and Extradition Act whilst presiding over the committal hearing.
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(8) The Applicant did not receive a fair hearing in keeping with the constitutional and due process of law.
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(9) The Applicant was committed without his Attorney-at-law first receiving full disclosure before the hearing thereby abrogating his constitutional right of having sufficent facilties to prepare his defence.
Counsel for the Claimant submitted that a Resident Magistrate for the parish of Kingston does not have jurisdiction to issue a warrant that is executed in St James. Counsel for the Claimant argued that Section (3) of the Judicature (Resident Magistrates) Court Act sets out the scope of the jurisdiction of a Resident Magstate and argued that once the Magistrate exceeded her jurisdiction then the rest of the process that followed was a nullity. Counsel for the Claimant also argued that the Resident Magistrate in exercising her power to order the warrant was subject to Section 9 of the Justice of the Peace Jurisdiction Act (JPAct) and had also exceeded her jurisdiction. In support of his arguments counsel relied on the cases of Director of Public Prosecutions v. Paul Lewis [2010] JMCA Crim 83 and R v. Monica Stewart (1971) 12 J.L.R. 468.
In the case of Director of Public Prosecutions (supra) v Paul Lewis, Morrison J at pragraph 17 of the case stated that:
“What these provisions of the Act demonstrate, it appears to me, is that the jurisdiction of a Resident Magistrate is entirely parochial and is exercisable only in relation to such parish or parishes to which he may from time to time be assigned.”
In the case of R v Monica Stewart (supra) the Court of Appeal allowed the appeal where the Magistrate had failed to sign the order for indictment on the ground that it is the order for indictment which gives the Magistrate the jurisdiction to commence the trial of an indictable case.
Counsel for the First and Second Defendants Ms. Althea Jarrett submitted that the court should rely on the Act to ascertain the power of the Resident Magistrate to issue a provisional warrant. She argued that the procedure relating to extradition offences is governed by the provisions of the Extradition Treaty and the Act. She further submitted that Section 9(1)(b) of the Act is applicable to the issuance of provisional warrants.
Counsel for the Third Defendant Mr Leighton Morris agreed that Section 9 (1) (b) of the Act is the relevant enactment applicable to provisional warrants issued for the purpose of extradition. He submitted that Section 9 of the J P Act applies to warrants and orders relating to summary offences and that the Resident Magistrate exercises powers by virtue of Section 15 of the Judicature (Resident Magistrates) Act which provides that a Resident Magistrate is ex officio a Justice of the Peace.
The starting point in the analysis is the Extradition Treaty between Jamaica and the United States of America entered into on the 4 th of June 1983. Article one (1) of the treaty requires each state, in accordance with the terms and conditions of the treaty, to extradite to the other state any person charged with or convicted of an extraditable offence by a court of the Requesting State. The Act details the procedures that are to govern extradition cases from the time a warrant is requested to the time when the fugitive is extradited.
The Act lays down the procedure by which a requesting state may apply the return of a fugitive to their respective country. In brief, the procedure for the extradition of a fugitive starts with the formal request made by the requesting state following upon which a warrant for the arrest is issued by a Resident Magistrate (now Parish Judge). The requesting State forwards authenticated documents in support of their request to the Minister who may issue an Authority to Proceed. The matter is then heard by a Resident Magistrate who will determine if a prima facie case for committal has been made out. A fugitive who is committed to custody for extradition may make an application for habeas corpus before the Full Court.
Section 9 of the Act describes the warrants that can be issued by a Resident Magistrate. Section 9 states:
“(1) A warrant for the arrest of a person accused of an extradition offence, or alleged to be unlawfully at large after conviction of such an offence, may be issued——
(a) on receipt of an authority to proceed, by a magistrate within the jurisdiction of whom such person is or is believed to be; or
(b) Without such an authority, by a magistrate upon information that such person is in Jamaica or is believed to be on his way to Jamaica; so, however, that the warrant, if issued under this paragraph, shall be provisional only.
(2) A warrant of arrest under this section may be issued upon such information as would, in the opinion of the magistrate, authorized the issue of a warrant for the arrest of a person accused of committing a corresponding offence or, as the case may be, or a person alleged to be unlawfully at large after conviction of an offence, within the jurisdiction of the magistrate.
(3) A warrant of arrest issued under this section (whether or not it is a provisional...
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