Forbes (Trevor) v Director of Public Prosecution and Commissioner of Correctional Services

• Jurisdiction: Jamaica
• Judge: WOLFE, C.J. ,Harris J,, McCalla, J. , Wolfe, C. J.
• Judgment Date: 19 December 2003
• Judgment citation (vLex): [2003] 12 JJC 1908
• Court: Supreme Court (Jamaica)
• Date: 19 December 2003

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

IN THE FULL COURT

CORAM:

THE HONOURABLE CHIEF JUSTICE THE HONOURABLE MRS. JUSTICE HAZEL HARRIS THE HONOURABLE MRS. JUSTICE ZAILA McCALLA

SUIT NO. M92 OF 2002

Regina

vs

The Director of Public Prosecutions

The Commissioner of Correctional Services

Exparte Trevor Forbes

Frank Phipps, Q.C. and George Soutar for the Applicant

Herbert Mckenzie for the Director of Public Prosecutions

Patrick Foster and Miss Analeisa Lindsay for the Commissioner of Corrections

EXTRADITION - Writ of Habeas Corpus - Order that the applicant be extradited to the United States - Whether there is a nullity in the proceedings

WOLFE, C.J

1 The applicant moves the court for a writ of habeas corpus in respect of a committal order made by His Honour, Mr. Martin Gayle, Resident Magistrate for the Corporate Area Criminal Court, on the 24 ^th day of July 2002. The order requires the applicant to be extradited to the United States of America to stand his trial for extraditable offences committed while he resided in the United States of America.

2 The grounds of the application are:

• • 1. (a) The charges found by the Grand Jury Indictment were not for offences cognizable in the Courts of Jamaica

  • (b) There is a nullity in the proceedings in the United States of America where more than one conspiracy is charged in the respective counts of the Indictment.

  • (c) There is no evidence before the Learned Resident Magistrate to prove the existence of the superseding indictment for which extradition is sought by the United States Government.

• 2. The document purporting to be the affidavit of Julie Hackenberry Savell grounding the application for extradition is incomplete and of no legal effect.

• • 3(a)The alleged prohibited substance referred to in Julie Hackenberry Savell's affidavit as "marihuana" and in the respective Indictment as "marihuana" is not known to the laws of Jamaica as an offence.

  • (b)The certificate of the Forensic Chemist referring to "marijuana" has not been connected by evidence to the affidavit of Julie Hackenberry Savell and itself is not a substance prohibited in Jamaica and subject of a charge cognizable in Jamaica.

3 Mr. Phipps submitted that jurisdiction was wrongly assumed by the Learned Resident Magistrate. This is so because the Provisional Warrant of Arrest categorized the applicant both as a person accused of criminal offences and a convicted person. To compound this error the Authority to Proceed directs the Resident Magistrate to proceed on the Authority of the Provisional Warrant of Arrest which Mr. Phipps contends is defective.

4 This submission, with respect, is void of merit. The Provisional Warrant does not refer to the applicant as a convicted person. Having described the applicant as a person accused of committing criminal offences the Provisional Warrant in an effort to justify the arrest speaks of information having been presented to the Magistrate which would authorize him to issue a Warrant to arrest a person convicted of committing a corresponding offence in the Magistrate's Jurisdiction. It must be borne in mind that a committal order will not be made in respect of an offence which is not recognized by the laws of Jamaica.

5 In the event my approach is flawed there is clear authority that once the Authority to Proceed is received by the Magistrate the Provisional Warrant ceases to be of any effect. Jurisdiction is assumed on the basis of the Authority to Proceed not on the Provisional Warrant.

6 See Edwards v The Director of Public Prosecutions et al (1994) 31 JLR. 526 at p. 527 dictum of Downer J.A.

7 The Provisional Warrant of Arrest is no more than an instrument authorizing the arrest of the accused or convicted person, pending the decision of the Minister to authorize or refuse the request.

8 In any event the procedure used would leave no one in doubt as to what category the applicant fell in.

9 Section 8(2) of the Extradition Act states —

10 "There shall be furnished with any request made for the purposes of this section by or on behalf of any approve state —

• (a) in the case of a person accused of an offence, a warrant of arrest issued in that state or

• (b) in the case of a person unlawfully at large after conviction of an offence a certificate of the conviction and sentence in that state and a statement of the part, if any, of that sentence which has been served."

11 At the committal proceedings the warrant of arrest from the United States District Court was tendered in evidence and it clearly indicates the category of the applicant as a person accused of committing crimes which are extraditable.

12 Mr. Phipps, Q.C. next submitted that there was no evidence admitted in proper form before the Learned Resident Magistrate indicating the summary of the facts in the case within the jurisdiction of the requesting state.

13 In this regard the complaint is that the affidavit by Julie Savell in support of the request contains material alterations which have not been authenticated and was therefore in breach of Rule 30.3 (4) of the Civil Procedure Rules 2002 and ought not have been admitted in evidence.

14 Rule 30.3(4) states:-

"No affidavit containing any alterations may be used in evidence unless all such alterations have been initialed both by the deponent and the person before whom the affidavit was sworn."

15 Section 14(2)(a) and (b) of the Extradition Act is instructive.

• 14(2) A document shall be deemed to be authenticated for 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.

16 The affidavit of which counsel complains was duly certified by Lystra Blake, Associate Director, Office of International Affairs Criminal Division U.S. Department of Justice as is required by section 14 (2) (a) of the Extradition Act. The section makes such a document admissible.

17 In any event it is my considered opinion that the Civil Procedure Rules are not applicable to extradition proceedings. These proceedings are governed by the provisions of the Extradition Act. See Article VIII (5) of the Extradition Treaty Jamaica Gazette Extraordinary Thursday February 2, 1995

18 It was further urged on behalf of the applicant that the offences dealing with marijuana were not known to Jamaican Law. Suffice it to say that this submission was made in Byles v The Director of Public Prosecutions et al SCCA 44/96. Judgment delivered on October 13, 1997 and in Grant v The Director of Correctional Services et al S.C.C.A. 48/2001, Judgment delivered on November 7, 2002.

19 The amended affidavits of Peter T. Ansile, Forensic Chemist employed by the United States Department of Justice, Drug Enforcement Administration ("DEA") and Alexander Gangora, who is similarly...