Nembhard (Norris) v Commissioner of Correctional Services and DPP

• Jurisdiction: Jamaica
• Judge: WOLFE C.J. , M. MCINTOSH, J. , Hibbert, J.
• Judgment Date: 15 June 2007
• Judgment citation (vLex): [2007] 6 JJC 1507
• Court: Supreme Court (Jamaica)
• Date: 15 June 2007

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

IN THE FULL COURT

CORAM:

THE HONOURABLE CHIEF JUSTICE THE HONOURABLE MRS. JUSTICE MARVA MCINTOSH THE HONOURABLE MR. JUSTICE HIBBERT

IN THE MATTER of an application by NORRIS NEMBHARD for a Writ of Habeas Corpus Ad Subjiciendum

AND

IN THE MATTER of the Extradition Act

BETWEEN

NORRIS NEMBHARD

CLAIMANT

AND

THE COMMISSIONER OF CORRECTIONAL SERVICES

1 ^ST RESPONDENT

AND

THE DIRECTOR OF PUBLIC PROSECUTIONS

2 ^ND RESPONDENT

AND

IN THE MATTER of an application by VIVIAN DALLY for a Writ of Habeas Corpus Ad Subjiciendum

AND

IN THE MATTER of the Extradition Act

BETWEEN

VIVIAN DALLY

CLAIMANT

AND

THE COMMISSIONER OF CORRECTIONS

1 ^ST RESPONDENT

AND

THE DIRECTOR OF PUBLIC PROSECUTIONS

2 ^ND DEFENDANT

AND

IN THE MATTER of an application by HERBERT HENRY for a Writ of Habeas Corpus Ad Subjiciendum

AND

IN THE MATTER of the Extradition Act

BETWEEN

HERBERT HENRY

CLAIMANT

AND

THE COMMISSIONER OF CORRECTIONS

1 ^ST RESPONDENT

AND

THE DIRECTOR OF PUBLIC PROSECUTIONS

2 ^ND DEFENDANT

IN THE MATTER of an application by ROBROY WILLIAMS FOR A Writ of Habeas Corpus Ad Subjiciendum

AND

IN THE MATTER of the Extradition Act

BETWEEN

ROBROY WILLIAMS

CLAIMANT

AND

THE COMMISSIONER OF CORRECTIONAL SERVICES

1 ^ST RESPONDENT

AND

THE DIRECTOR OF PUBLIC PROSECUTIONS

2 ^ND DEFENDANT

AND

IN THE MATER of an application by GLENFORD WILLIAMS for a Writ of Habeas Corpus Ad Subjiciendum

AND

IN THE MATTER of the Extradition Act

BETWEEN

GLENFORD WILLIAMS

CLAIMANT

AND

THE COMMISSIONER OF CORRECTIONAL SERVICES

1 ^ST RESPONDENT

AND

THE DIRECTOR OF PUBLIC PROSECUTIONS

2 ^ND RESPONDENT

AND

IN THE MATTER an application by LUIS MIGUEL AVILA ARIAS for a Writ of Habeas Corpus Ad Subjiciendum

AND

IN THE MATTER of the Extradition Act

BETWEEN

LUIS MIGUEL A VILA ARIAS

CLAIMANT

AND

THE COMMISSIONER OF CORRECTIONS

1 ^ST RESPONDENT

AND

THE DIRECTOR OF PUBLIC PROSECUTIONS

2 ^ND RESPONDENT

^st

^nd

EXTRADITION - Application for writs

WOLFE C.J

1 On the 30 ^th June, 2005 His Honour Mr. Martin Gayle, presiding in the Corporate Area Resident Magistrates Court, ordered that all the claimants, herein be committed to custody to await their extradition to the United States of America.

2 The Learned Resident Magistrate in so doing was exercising his jurisdiction pursuant to the Extradition Act of 1991, a request having been made by the Government of the United States of America to the Minister of Foreign Affairs. Authority to Proceed was duly issued by the Honourable Minister of Justice pursuant to section 8 (1) of the Extradition Act.

3 The claimants having been committed to await extradition have exercised the right given to each of them by section 11 (1) of the Extradition Act. viz: to seek an Order of habeas corpus to be discharged from custody.

4 RE NORRIS NEMBHARD

5 BACKGROUND

6 In April 2004 the Embassy of the United States of America, Kingston, Jamaica by a Diplomatic Note to the Ministry of Foreign Affairs requested the provisional arrest of Nembhard who was wanted for trial on narcotic offences the subject of a Grand Jury indictment of March 2004 in the United States District Court for the Middle District of Florida for conspiring and agreeing with eight (8) other persons to distribute cocaine and marijuana knowing and intended that such substance would be unlawfully imported into the United States or into waters within a distance of twelve miles of the coast of the United States.

7 Phipps Q.C. on behalf of Nembhard advanced the following Grounds:

8 1. Irregular Procedure

9 Relying upon section 7 (1) and (5) of the Extradition Act he observed that the Minister was not seized of designation in that the indictment was unsigned and undated and therefore amounted to a piece of paper without any legal significance and therefore there was no basis for the Authority to Proceed which was issued by the Minister.

10 He further urged that the Warrant of Arrest issued in the United States was defective and incompetent for committal proceedings in that it was not signed by the Clerk of Courts as required.

11 With reference to the submissions made re the indictment, suffice it to say, there is no requirement in the Extradition Treaty or Act for the indictment to be produced along with the request.

12 So defects in the indictment, if defects there be, are of absolutely no consequence and do not affect the validity of the proceedings.

13 In respect of the submission re the warrant not being signed by the Clerk of Courts, it is to be observed that the warrant was signed by the Deputy Clerk of Courts and that paragraph 12 of the affidavit of Pamela Cothran Marsh, an Assistant United States Attorney in the organized Crime and Drug Enforcement Task Force section states that the Deputy Clerk of Courts is empowered to execute attestation to arrest warrants.

14 For the reasons stated above I hold that this ground alleging Irregular Procedure is entirely without merit and must fail.

15 GROUND 2

16 Insufficient evidence

17 The charge is one of conspiracy. Conspiracy to distribute cocaine and marijuana in the United States.

"The crime of conspiracy requires an agreement between two or more persons to commit an unlawful act with the intention of carrying it out. It is the intention to carry out the crime that constitutes the necessary mens rea for the offence."

18 See Yip Chin-Cheung v R 99 Cr. App. 406 P.C. It must also be stated that it is not always necessary to show that all conspirators must intend to play an active part in the agreed course of conduct. A person who organizes a crime and employs others to carry it out is equally guilty of conspiracy whether or not the organizer intends to play some active part in it thereafter. See R v Siracusa 90 Cr. App R. 340 at p. 349 per O'Connor LJ.

19 It is conceded that all the persons whose testimony implicated Nembhard are accomplices.

20 The affidavit of John Pablo Garcia Washington states that on two occasions between March and June 2000 he was engaged in smuggling bales of cocaine from Columbia to Jamaica and that the cocaine was delivered to Nembhard.

21 Alexander Young Duffis in his affidavit states that Nembhard told him that he had a good connection to get cocaine into the United States and that if he Young Duffis ever needed to get a shipment of cocaine into the United States he (Nembhard) could make it happen.

22 He further stated that in 2002 Nembhard released 500 kilograms of cocaine to Williams and he was present and heard when Williams and Nembhard spoke about the successful arrival of the 500 kilograms of cocaine into the United States.

23 Yes they are accomplices, but a Court after giving itself the proper warning may act upon the uncorroborated testimony of an accomplice witness. See Prince Anthony Edwards vs The Director of Public Prosecutions and Director of Correctional Services [1994] 3 JLR 526.

24 The Magistrate was not engaged in a trial. His role was merely to decide if there was a prima facie case made out. He could not possibly have come to any other decision in the circumstances.

25 I reject the contention that there was a lack of sufficient evidence to properly commit the claimant Nembhard to custody for the purpose of extradition.

26 Re King Pin Designation

27 Nembhard was declared a Kingpin under the Foreign Narcotics Kingpin Designation Act (" the Kingpin Act") of 1999 issued by the President of the United States.

28 It is contended that the designation deprives him of his right to a fair trial.

29 The decision in Noel Heath and Glenroy Matthew vs The Government of the United States Privy Council Appeal No. 58 of 2004 has made it clear that the mere designation is not evidence upon which one can without more say that the claimant cannot have a fair trial in the United States.

30 In any event the fair trial issue is essentially a matter for the trial Court. Nankisoon Dooram v Attorney General and Another [1996] 47 W.I.R. 459 at 495.

31 The argument as to the improper authentication of the documents submitted along with the request was not pursued, the Court of Appeal having ruled in a recently decided case of Leebert Ramcharan and Donovan Williams v Commissioner of Corrections et al. S.C.C.A. Nos. 106 and 107/2005 (unreported) dated 16 th March 2007 that the argument lacked merit.

32 Re Vivian Dally

33 The claimant Dally having filed eight grounds as the basis for the application for Habeas Corpus relied upon only two (2) of those grounds viz.

• (i) Insufficiency of evidence;

• (ii) Improper authentication of documents relied upon by the requesting state.

34 The contention that there was not sufficient evidence before the Learned Resident Magistrate upon which he could properly commit Vivian Dally is wholly misconceived.

35 In the affidavit of Delroy Anthony Williams he says:

"I know that in spy's organization, Jungo (who I now know to be Vivian Dally) served as a 'trustee' who carried and wired money. I know this because Jungo was the person who wired $500.00 in US currency at Spy's direction on two separate occasions in April and May 2002 while I was in Columbia waiting to transport cocaine to Jamaica for Spy. This load of cocaine was the load on which I was ultimately arrested.

I also know that Jungo has carried large sums of money (to include US currency) generated from drug sales in the United States from Jamaica to Panama for Spy on at least two occasions."

36 Young Duffis in his affidavit of the 13 ^th July 2004 stated that Vivian Dally was present at a meeting between himself, Robroy Williams and a Colombian. He...