Montique (Hartford) v Commissioner of Corrections and DPP

• Jurisdiction: Jamaica
• Judge: SMITH J.A: , K. HARRISON J.A. , MARSH, J.A. (Ag.): , SMITH. J.A.:
• Judgment Date: 22 November 2007
• Neutral Citation: JM 2007 CA 6
• Judgment citation (vLex): [2007] 3 JJC 0801
• Court: Court of Appeal (Jamaica)
• Date: 22 November 2007

IN THE COURT OF APPEAL

BEFORE:

THE HON. MR. JUSTICE SMITH, J.A THE HON. MR. JUSTICE K. HARRISON, J.A THE HON. MR. JUSTICE MARSH, J.A. (Ag.)

BETWEEN

HARTFORD MONTIQUE

APPELLANT

AND

THE COMMISSIONER OF CORRECTIONS

1 ^ST RESPONDENT

AND

THE DIRECTOR OF PUBLIC PROSECUTIONS

2 ^ND RESPONDENT

Patrick Atkinson and Mrs. Carolyn Reid-Cameron

Annaliesa Lindsay Kevin Powell Director of State Proceedings ^st

Donald A. Bryan, Deputy Director of Public Prosecutions ^nd

EXTRADITION - Application for writ - Evidence insufficient to ground prima facie case

SMITH J.A:

1 This is an appeal against an order of the Full Court of the Supreme Court (Reid, Harris and N. McIntosh JJ) dated 28 ^th October 2005, dismissing the appellant's application for a Writ of Habeas Corpus.

2 The appellant, a Jamaican, is accused of extraditable offences in the United States of America (U.S.A). On 17 ^th April 2004, a Grand Jury in the U.S.A. preferred an indictment against him and others containing 11 counts. Of these only 4 implicate the appellant. For the purposes of this appeal only two of the four (4) counts are relevant (two were not pursued at the Extradition hearing). The relevant two are counts 10 and 11.

3 Count 10 avers that Hartford Montique (the appellant) a/k/a "Brookie" and 5 others, on or about October 11, 2003 did knowingly and intentionally aid and abet the importation into the U.S.A. of 100 kilograms or more of substance containing marijuana.

4 Count 11 charges that the appellant and others on October 12, 2003 did knowingly and intentionally possess the said marijuana with intent to distribute same.

5 A Warrant of Arrest was issued on the same day the Indictment was preferred. Subsequently, a request was made by the U.S.A. of the Government of Jamaica for the extradition of the appellant. A Provisional Warrant of Arrest was issued under section 9 of the Extradition Act, 1991 (the Act) on June 21, 2004. On June 23, 2004 the Provisional Warrant was executed on the appellant.

6 On September 8, 2004 the Minister of Justice, by virtue of section 8 of the Act, issued his Authority to Proceed to the Resident Magistrate for the Corporate Area pursuant to the request for the appellant's extradition. Extradition proceedings in relation to counts 10 and 11 (supra) began before the Resident Magistrate, Mr. Martin Gayle, on September 22, 2004. On October 4, 2004 the Resident Magistrate issued his Warrant of Committal committing the appellant into the custody of the first respondent.

7 In the Supreme Court

8 The appellant, on October 19 2004, filed a Fixed Date Claim Form in the Supreme Court seeking the issuance of a Writ of Habeas Corpus. On December 8, 2004 an Amended Fixed Date Claim Form was filed. The grounds on which the Writ of Habeas Corpus was sought were:

• (1) That the Learned Resident Magistrate in committing the claimant to be extradited relied on evidence contained in affidavit of Michael Layne dated the 22 ^nd day of July, 2004 which said affidavit was not considered as evidence at the hearing before the Grand Jury.

• (2) That the allegations related to counts 11 and 12 contained in the indictment relates to the offence of aiding and abetting and Jamaican law does not recognize the offence of aiding and abetting committed outside of the jurisdiction.

• (3) That the learned Resident Magistrate erred in finding that on a prima facie case possession of ganja was made out against the claimant as there was no material before the court to establish at any of the material times, that the claimant was in the United States of America or that he had custody or control of the ganja the subject of the said counts on the indictment.

• (4) That the learned Resident Magistrate erred in putting any weight at all on the affidavit of Michael Layne as:

  • (i) His affidavit is that of an uncorroborated accomplice

  • (ii) The requesting State failed to produce the Plea Bargain Agreement or co-operating Defendant's Agreement that it had with the said Michael Layne.

  • (iii) At the date of the said affidavit the said Michael Layne although charged with various criminal offences, had not yet been sentenced by the court.

9 At a Case Management Conference on the 9 ^th December, 2004 the Judge ordered that the defendants (now the respondents) "use their best efforts to request through the proper channels, the transcripts from the Grand Jury Hearing" in respect of the appellant within 30 days from the date of the order. The Case Management Judge also granted the appellant leave to file additional grounds in support of his application for Writ of Habeas Corpus. Efforts by the respondents to have disclosure of the transcript of the Grand Jury Hearing were fruitless. A letter dated February 7, 2005 from Jerold McMillan, Assistant U.S. Attorney, advised that the U.S. law prohibits such disclosure with a view to maintaining the U.S. long standing legal tradition of grand jury secrecy.

10 On May 6, 2005, Notice of the following (amended) additional grounds was filed:

• (5) The Learned Resident Magistrate, in deciding the Application for an Order for Extradition, erred in relying on sworn statements rather than on testimony as required by the Extradition Act and that this amounts to a violation of the Claimant's constitutional rights as guaranteed by section 16 of the Constitution of Jamaica.

• (6) That the Learned Resident Magistrate, in committing the Claimant erred in relying on the affidavit of Michael Layne, which is not sufficient evidence under the Extradition Act.

• (7) That the Learned Resident Magistrate in deciding the application for an Order for Extradition against the Claimant failed to make any findings of fact as to whether the said Application fell within the Extradition Act and in the consequence, carried out a mere rubber stamping of the said Application.

• (8) That the case against the Claimant before the Learned Resident Magistrate relied on the unproved allegations that the claimant was in Florida on or about the 29 ^th of September, 2003.

11 The 3 ^rd and 8 ^th grounds were not pursued in the Full Court. Harris J, who wrote the judgment of the Full Court, in rejecting the submissions of Mr. Atkinson held that:

• (i) The word "testimony" as used in section 14(1) (a) of the Act embraces not only evidence given orally on oath but also statements under oath. An affidavit sets out testimony on oath and falls within the purview of section 14 (1) (a) of the Act.

• (ii) The Learned Resident Magistrate did not err in holding that Layne's affidavit evidence was sufficient to warrant the committal of the appellant.

• (iii) There was no duty on the Resident Magistrate to take into account the fact that Mr. Layne's affidavit was not before the Grand Jury.

• (iv) The appellant's constitutional rights guaranteed by section 16 of the Constitution were not violated.

• (v) The Jamaican law recognizes the offence of aiding and abetting committed outside the jurisdiction.

• (vi) There is no duty on the Resident Magistrate, in proceedings for committal, to make findings of fact or to assess the evidence in order to determine the weight to be attached to it or to give reasons for the committal.

12 In the Court of Appeal

13 Section 21 A( 1) of the Judicature (Appellate Jurisdiction) Act gives the appellant the right of appeal from the decision of the Full Court in Habeas Corpus proceedings. The following grounds of appeal were argued:

• (1) The Court failed to adequately address the violation of the Appellant's constitutional right guaranteed by Section 16 of the Constitution of Jamaica, when the Magistrate failed to follow the requirements and terms of the Extradition Act in ordering the extradition of the Appellant.

• (2) The Court erred in relying on the terms of the Extradition Treaty rather than the Extradition Act.

• (3) The Court erred in failing to find that the Learned Resident Magistrate ordered that the Appellant be extradited without any prima facie evidence that the Appellant either possessed marijuana in the United States of America with intent to distribute it therein or that he imported the said drug into that country.

• (4) The Court erred when it failed to correctly address the issue of the duty of the Magistrate to weigh up the evidence against the Appellant as follows:

  • (a) Whether there was any weight, at all, in the allegations of an unsentenced accomplice.

  • (b) Whether there was [any] weight, at all, in the allegations of a charged accomplice because the requesting state failed to say whether there was a plea bargain in existence and, if so, what its terms were.

  • (c) Whether there was any admissible evidence against the appellant according to the Laws of Jamaica.

• (5) The Court erred in failing to address discrepancies between the request for extradition; the Grand Jury's Indictment; and the Magistrate's Warrant of Committal.

• (6) The Court erred by misinterpreting the Extradition Act, which allows, in addition to the normal evidence allowed by Jamaican Laws, a document "duly authenticated" purporting to "set out Testimony given on oath in an approved state". In this regard, the Court erred in relying on a Dictionary to interpret the meaning of "Testimony", a legal term of art, instead of looking at the cleat-meaning of the statute itself.

• (7) The Court erred in accepting, as testimony, the affidavit of Jerold McMillan, which contained hearsay allegations, opinions and conclusions apparently gleaned from a police investigation, as a document duly authenticated, which contained testimony given in an approved state.

14 The submissions in respect of these grounds involved three main issues:

• (1) Whether or not the affidavits constitute "testimony given on oath" pursuant to section 14(1) (a) of the Act.

• (2) If they do, whether or not...