Forbes (Trevor) v Director of Public Prosecution and Commissioner of Correctional Services
| Jurisdiction | Jamaica |
| Judge | FORTE, P: , SMITH, J.A: , K. HARRISON, J.A.: |
| Judgment Date | 03 November 2005 |
| Neutral Citation | JM 2005 CA 60 |
| Judgment citation (vLex) | [2005] 11 JJC 0303 |
| Court | Court of Appeal (Jamaica) |
| Date | 03 November 2005 |
EXTRADITION -
Having read in draft the judgment of Smith, J.A, I agree with the reasons and conclusions therein and have nothing further to add.
This is an appeal against an order of the Full Court of the Supreme Court (Wolfe, CJ, Harris and McCalla JJ) dated the 19 th December, 2003 dismissing the appellant's motion for a Writ of Habeas Corpus. On the 24 th June, 2005, this Court dismissed the appeal and promised to put our reasons in writing at a later date. The following are my reasons for concurring with the decision to dismiss the appeal.
On the 8 th May, 2001, the Embassy of the United States of America requested the provisional arrest of the appellant for the purpose of extradition.
On the 5 th June 2001, the appellant, a Jamaican accused of extraditable offences in the United States of America, was arrested in Kingston, Jamaica on a provisional warrant, issued under section 9 of the Extradition Act, 1991 (the Act).
On the 23 rd August, 2001 the Minister of National Security and Justice (the Minister) under section 8 of the Act issued his Authority to the Resident Magistrate for the Corporate Area to Proceed in pursuance of the request for the extradition of the appellant.
On the 24 th April, 2002 extradition proceedings began before Resident Magistrate, Mr. Martin Gayle.
On the 23 rd July, 2002 the learned Resident Magistrate issued his Warrant of Committal committing the appellant into the custody of the second respondent pursuant to the Act.
The appellant on the 5 th August, 2002, filed a Notice of Motion in the Supreme Court for the issuance of a Writ of Habeas Corpus on the following grounds:
"1
(a) The charges found by the Grand Jury Indictment were not for offences cognisable 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 Indictments.
(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 counts of the Indictment as "marihuana" is not known to the laws of Jamaica as an offence.
(b) The certificate of the Forensic Chemist referring to "marihuana" 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 cognisable in Jamaica."
Leave was sought and presumably obtained to argue the following supplemental ground:
"The Applicant is being unlawfully detained at the Tower Street Adult Correctional Centre resulting from a Committal Order made on the 23 rd day of July, 2002 by a Resident Magistrate who had no jurisdiction to make the Order for Committal."
The Full Court, on the 19 th December, 2003, dismissed the appellant's application for a Writ of Habeas Corpus.
Grounds of Appeal
In his Notice of Appeal filed on the 27 th January 2004, the appellant specified the following grounds:
"(a) The Full Court was in error when it found in a unanimous decision that the Authority to Proceed was valid Authority to give the Resident Magistrate jurisdiction to enter on the Proceedings for extradition.
(b) The Authority to Proceed was based on a Provisional Warrant that contained allegations that the applicant was both an accused person and a convicted person.
(c) The affidavit in proof of evidence to support the Indictment against the applicant was altered at material areas which alterations were not authenticated and therefore defective, illegal and of no effect.
(d) There was no proof that the prohibited substance alleged in the Indictment against the applicant was prohibited by Jamaican law."
On the 20 th May, 2005 counsel for the appellant filed skeleton arguments. In these arguments the appellant introduced new grounds pursuant to an order of the case management judge. One of which alleges a breach of his constitutional right to protection from expulsion from Jamaica.
When the matter came before the Court counsel for the respondents objected to the introduction of these new grounds. Miss Larmond intimated that she would not strenuously oppose the appellant making submissions on the constitutional ground.
Both Mrs. Fraser and Miss Larmond relied on section 63(1) and (2) of the Criminal Justice (Administration) Act and the decisions of this Court in Vivian Blake v The Director of Public Prosecutions and The Superintendent of Prisons SCCA No. 107 of 1996 delivered 27 th July, 1998 and Desmond Brown v The Director Public Prosecutions and The Director of Correctional Services SCCA No. 91 of 2000 delivered 2 nd of April, 2004.
I think it is fair to say that Mr. Phipps Q.C. did not resist the objection of the respondents as, by virtue of section 63(1) of the Criminal Justice (Administration) Act, an application for Writ of Habeas Corpus must state all the grounds, upon which it is based. And by virtue of section 63(2) ibidem no further application, whether on the same grounds or any other ground, can be made in the absence of fresh evidence.
In the Vivian Blake case (supra) Forte, JA, (as he then was) was of the view that to permit new grounds to be advanced at the appeal stage would be to allow the appellant to do through the process of appeal that which he was shut out from doing by virtue of section 63(1) and (2) of the Criminal Justice (Administration) Act.
In the Desmond Brown case (supra) Panton JA, emphasized that "... there can be no hide-and-seek... they are to set out all their grounds at that stage. They are not permitted to withhold a ground, and then spring a surprise at a later stage."
Although the constitutional ground was not stated in the Application for the Writ, the Court was of the view, that counsel should be permitted to argue such a ground as ex facie it seeks to question the validity of the Act under which the Proceedings were brought. Consequently, such a ground would constitute a challenge to the jurisdiction of the Resident Magistrate to make the Committal Order. Accordingly, the Court permitted the inclusion of the constitutional ground, but of course, refused the other new ground.
The supplemental constitutional ground which was subsequently filed, reads:
"The Appellant was deprived of his constitutional right to the protection of freedom of movement and immunity from expulsion from Jamaica guaranteed by section 16 of the Jamaica Constitution. Extradition Act 1991 under which the removal of the appellant from Jamaica is requested for trial outside of Jamaica for a criminal offence is inconsistent with and in contravention of section 16 of the Constitution and is void by virtue of section 2 of the Constitution.
Section 6 of the Jamaica Independence Act restricts Parliament from repealing, amending or modifying 'constitutional provisions' otherwise than in the manner provided in the Constitution."
After obtaining leave to add the above ground, Mr. Phipps Q.C. informed the Court that the appellant had filed in the Supreme Court a challenge to the constitutionality of the Act. He told the Court that one of the compelling reasons for challenging the Act by a separate motion in the Supreme Court was that if the matter was heard on appeal as Habeas Corpus Proceedings the decision of the Court of Appeal would be final. He cited Dove Grant v. The Director of Correctional Services et al P.C. Appeal No. 27 of 2004 delivered 14 th June, 2004. He therefore applied that the Proceedings before this Court be adjourned pending the outcome of the Proceedings in the Supreme Court "where the appellant would have full rights in pursuing his appeal to the Privy Council." He asked this Court to remit the constitutional point to the Supreme Court for its consideration.
Both Mrs. Fraser and Miss Larmond strenuously opposed this application. They referred to the history of the application for the Writ of Habeas Corpus and the failure of the appellant to raise the constitutional point before the Full Court, and contended that to adjourn the Proceedings before this Court for reasons advanced by the appellant would be a waste of judicial time. The application was an abuse of the process of the court, they urged, and should be rejected.
The Court was of the view that the reasons advanced by the appellant in support of his application to remit the constitutional point to the Supreme Court were inadequate and ordered that the appeal should Proceed.
Mr. Phipps, Q.C. informed the Court that he would not be pursuing ground (4) in the Notice of Appeal. The appeal, he said, involved three issues namely:
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1. The jurisdiction issue
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2. The admissibility of evidence issue and
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3. The constitutional issue.
The Jurisdiction Issue
The appellant contends that the Resident Magistrate had no jurisdiction to conduct the committal Proceedings because the Authority to Proceed, which gives the Resident Magistrate jurisdiction, incorrectly referred to the appellant as a...
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