R v Commissioner of Correctional Services, DPP, ex parte Mark Anthony David
| Jurisdiction | Jamaica |
| Judge | WOLFE, C.J. |
| Judgment Date | 19 December 2003 |
| Judgment citation (vLex) | [2003] 12 JJC 1903 |
| Court | Supreme Court (Jamaica) |
| Date | 19 December 2003 |
IN THE SUPREME COURT OF JUDICATURE OF JAMAICA
IN THE FULL COURT
EXTRADITION - Writ of Habeas Corpus - Whether the provisional warrant for arrest was defective - Whether evidence was insufficient to prove charges
On September 19, 2002 His Honour Mr. Martin Gayle, Resident Magistrate in the Corporate Area Criminal Court ordered a warrant of committal pursuant to the Extradition Act, against the Applicant Mark Anthony Davis, a citizen of Jamaica who had previously resided in the United States of America.
This application is for a Writ of Habeas Corpus on the following grounds —
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(i) That the Provisional Warrant of Arrest dated July 31, 1998 is wholly defective as the warrant incorrectly describes the applicant as a convicted person.
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(ii) That the Learned Resident Magistrate erred in granting the warrant of committal in respect of the offences charged as there is no independent witness.
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(iii) That the evidence contained in the Affidavits of the witnesses is insufficient to prove the charges contained in the indictment.
Grounds two and three were abandoned by Mr. Phipps Q.C.
The burden of Mr. Phipps submission is that the Provisional Warrant of Arrest issued on the 31 st day of July 1998 categorised the applicant as a convicted person. The authority to proceed dated 15 th June 2000, which refers to the applicant as being accused of the offences of (a) possession with intent to distribute a controlled substance (marijuana), (b) conspiracy to possess with intent to distribute a controlled substance (marijuana), required the Learned Resident Magistrate to proceed on the authority of the Provisional Warrant of Arrest.
In fact the applicant had not been convicted as was stated in the Provisional Warrant of Arrest.
The original request and subsequent requests made it clear, beyond the shadow of a doubt, that the applicant was wanted to stand trial in the United States of America for offences he had allegedly committed.
Mr. Phipps submitted that the authority to hold the committal proceedings is based on the authority to proceed as signed by the Minister. In the instant case, Mr. Phipps argued, the Minister authorized the Learned Resident Magistrate to proceed on the basis of the Provisional Warrant. The consequence was fatal, in that the Provisional Warrant wrongly categorized the applicant as a convicted person.
In this regard Mr. Phipps contended that the Magistrate lacked jurisdiction to hold the committal proceedings. In support of this submission he cited and relied on In Re Guisto (FC) H.L. 2003 in which Lord Hope of Craighead said:-
"The question which lies at the heart of the appeal is a question of jurisdiction. Was it within the jurisdiction of the Judge to make the committal order when the facts show that the appellant is a convicted person and not, as the Secretary of State wrongly asserted and the judge wrongly assumed when she made the order, a person accused who has yet to stand trial in the United States".
The instant case is readily distinguished from the case cited. In the instant case the Authority to proceed correctly categorized the applicant as a person accused. The Learned Magistrate in his warrant of committal referred to the applicant as a person accused of crimes. All the diplomatic notes make it abundantly clear that the applicant is a person accused of crimes. It is only in the Provisional Warrant of Arrest dated July 31, 1998 that the applicant is referred to as a convicted person.
In Edwards vs The Director of Public Prosecutions and Director of Correctional Services 31 JLR 526 Downer J.A. said :-
"Once the 'authority to proceed' was received by the Resident Magistrate the provisional warrant ceased to have effect, even if it was not spent".
The Learned Judge of Appeal further opined "There was jurisdiction once there was a valid `authority to proceed' and the fugitive was before the Resident Magistrate".
It is clear from the circumstances of the instant case that it cannot be properly contended that the Minister who signed the Authority to proceed wrongly asserted that the applicant was a convicted person or that the Learned Resident Magistrate wrongly assumed that the applicant was a convicted person when he issued the warrant of committal.
I cite with approval the dictum of Lord Bridge of Harwick in Regina v Govenor of Ashford, Exp. Rostlethwaite [1988} A.C. 924 at p. 946.
"In approaching the main issue two important principles are to be borne in mind. The first is expressed in the well known dictum of Lord Russell of Killowen C.J. in re Arton (No. 2) [1896] 1 Q.B. 509, 517 where he said:
In my judgment these treaties ought to receive a liberal interpretation which means no more than that they should receive their true construction according to their language, object and intent.
I also take the judgment in that case as good authority for the proposition that in the application of the principle the Court should not, unless constrained by the language used, interpret any extradition treaty in a way which would 'hinder the working and narrow the operation of most salutary international arrangements'.
The second principle is that an extradition treaty is 'a contract between two sovereign states and has to be construed as such a contract. It would be a mistake to think that it had to be construed as though it were a domestic statute. Regina v Governor of Ashford Remand Centre, Ex parte Beese [1973] W.I.R. 969, 973 per Lord Widgery C.J. in applying this second principle, closely related as it is to the first, it must be remembered that the reciprocal rights and obligations which the high contracting parties confer and accept are intended to serve the purpose of bringing justice to those who are guilty of grave crimes committed in either of the contracting states. To apply to extradition treaties the strict canons appropriate to the construction of domestic legislation would often tend to defeat rather than to serve this purpose'.
For these reasons I would order that the motion be dismissed.
Harris, J.
In these proceedings the Applicant seeks an order for a Writ of Habeas Corpus with respect to an Order for his committal by His Honour Mr. Martin Gayle, under the Extradition Act, 1991.
The Government of the United States of America through the Western District Court of New York sought the return of...
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