R v D.P.P. El Al

• Jurisdiction: Jamaica
• Judge: HARRISON J.
• Judgment Date: 12 March 1996
• Court: Supreme Court (Jamaica)
• Docket Number: M60 of 1995
• Date: 12 March 1996

Supreme Court

Orr, Harrison and James, JJ

M60 of 1995

R

and

D.P.P. el al

Ian Ramsay instructed by Enos Grant for applicant

Lloyd Hibbert, Q.C. and Hervin Smart for Director of Public Prosecutions.

Laxton Robinson, instructed by Director of State Proceedings for Director of Correctional Services

Extradition - Extraditable offence of conspiracy — Extradition Act 1991, sections 10, 11 — Application for writ of habeas corpus — Whether sufficient evidence to support extradition to the USA — Offences allegedly committed 17 years ago — Whether by reason of passage of time it was unjust or oppressive to extradite — Finding of court that it would be unjust or oppressive to return the applicant to the USA — Applicant discharged — Writ of habeas corpus to issue.

HARRISON J.

1 The applicant Newton Fitzgerald Barnes, a Jamaican national is applying for a writ of habeas corpus to issue for his release from a committal order that he be extradited to answer charges on indictment preferred against him in the District Court for the Middle District of Florida, in the United States ofAmerica. Her Hon. Miss M. Hughes, resident magistrate for the parish of St. Andrew, issued her provisional warrant of arrest on the 14th day of November, 1992 and on the 12th day of July 1995, at the conclusion of a hearing, ordered that he be held in custody in accordance with the provisions of the Extradition Act 1991.

2 The applicant was charged in the name of George Barnes on an indictment containing thirty nine counts as a result of a hearing by the Grand Jury when a warrant was issued on the 2nd day of May 1983 for his arrest. The evidence against the applicant is contained in the affidavits of James Joseph Erp, Robert Keith Purvis and AlvinRobert Walters, each sworn to on the 29th day of April 1991, and the affidavits of Leslie Albert Freitag and Donald E. Dowd, both sworn to on the 30th day of April 1991. The allegations are that the applicant was one of a group of persons who conspired to and smuggled the drug, marijuana, from Jamaica to United States of America during the period 1978 to 1983. In the spring of 1981 Purvis, met George Barnes and consequently by arrangement, Freitag flew an aircraft owned by Erp, Purvis and Freitag, to an airstrip on the north east coast of Jamaica, where Barnes loaded the aircraft with 700 lbs of marijuana. Freitag flew the marijuana to Florida where it was unloaded and sold. Freitag, in June 1981, flew to an airstrip in Black River, in Jamaica, Barnes loaded the aircraft with 850 lbs. of marijuana which Freitag flew to Florida where it was unloaded and sold. Walters, a Jamaican national living in Miami, Florida, U.S.A. and a cruise ship steward was concerned in smuggling marijuana, along with Erp and others, from Jamaica to the United States of America for the years 1979 and 1980.

3 Barnes who had not been paid by Erp for the marijuana supplied, contacted Walters to collect the said payment from Erp. - Walters said he spoke to Erp and collected in the spring of 1981, A$35,000 or $40,000” from Erp and paid over this amount to Newton Barnes. Months later, Newton Barnes again asked Walters to collect from Erp money for another marijuana shipment. Walters spoke to Erp who refused to pay. Walters so advised Barnes. In Juneof 1982, Barnes met Erp, Purvis and Freitag, in Miami, Florida and planned another marijuana shipment. As a result an aircraft was again flown to Jamaica by one Emery Arthur, who flew the marijuana from Jamaica to Ocala, Florida, on the instructions of Erp, instead of Lake County, Florida where Purvis and Freitag were awaiting his return. The marijuana, 980 lbs, was unloaded and sold by Erp. Walter, identified the applicant, Newton Barnes in 1987, from a Florida driver's licence photograph of the applicant, as the said Barnes to whom he had paid the said money received from Erp. Walters knew the applicant to operate the Barnes Construction Co. In April 1991 Erp, Freitag, Purvis and Walters had all been convicted of offences involving the said smuggling of marijuana from Jamaica to United States of America, served their sentencesand were then on parole.

4 In his affidavit filed in support of the application, the applicant, consistent with his deposition given at the hearing before the said resident magistrate, denied that he is or is known as George Barnes or that he was involved in any marijuana smuggling transaction, or that he knew Erp, Purvis or Freitag. He admitted knowing Walters, with whom he was involved in foreign currency transactions only and not marijuana smuggling. He denied that he had requested of Walters and that Walters had collected any money from Erp and paid to him. He concocted that he owned Barnes Construction Co. and held a Florida driver's licence. He said that he heard, in 1983, that Walters expressed animosity towards him, that he is innocent of the charges and consequently seeks the writ of habeas corpus.

5 The grounds argued in support of the issue of the said writ are, that at the time these proceedings were commenced against the applicant, thetreaty of 1991 between Jamaica and the United States of America had not been published in the Gazette and as a consequence had not been incorporated into municipal law; that the court should not accept as credible the affidavit evidence of Erp, Purvis, Freitag and Walters, all of who deponed years after the indictment was drawn up and did so in return for the “reward” of serving shorter sentences; that there wasno evidence of the definition of “marijuana” or that it was the same as “ganja”, as defined by the Dangerous Drugs Act; that proof of the substance “marijuana” cannot beaffected by the evidence of a person who used, smelled or handled it, but if equated to “ganja”, it must be proven by scientific means within the provisions of the latterAct, and therefore the rule of double criminality was notsatisfied; that there was no evidence of a conspiracy involving the applicant and the statement of Walters cannot in law supply it, and that there was no evidence of identification; that there was no evidence of the observance of the rule of speciality nor any certificate of arrangement as required by section 7 of the Extradition Act; and that in all the circumstances it would be unjust and/or oppressive to extradite the applicant.

6 Mr. Ramsay for the applicant argued that there was no evidence of identification of the applicant linking him with the George Barnes with whom the three witnesses Erp, Purvis and Freitag were involved in the trafficking of marijuana, nor did the witness Walters in identifying the photograph of the applicant sayhe was George Barnes, and that the evidence of the witness Dowd that Walters told him so was hearsay and, inadmissible. He submitted further that there (sic) no evidence nor record from the United States of America that “marijuana” is ganja, and one should not look at the dictionary meaning, and which even if it was, requiresscientific proof in Jamaica - vide section 7 of the Dangerous Drug Act; or if one pleads guilty no further proof is required - Bird v. Adams [1972] C.L.R. 174, R. v. Chatwood el al [1980]1 All E.R.467 and Coleman v. R., R.M.C.A. No.22/94 delivered on the 12th day of July 1994; that the assertions of the witnesses do notamount to evidence of a conspirator in proof of an offence of conspiracy involving the applicant, but merely that of accomplices which does not facilitate proof, R. v. D.P.P. Exparte David Morally [1975] 14 J.L.R, 9R. v. Governor of Pentoviile Prison, Exparte Osman [1990] 1 W.L.R. 277; that there is no proof of importing the substance marijuana nor of the offence of conspiracy and the case against one Roy McFarlane refers to a conspiracy with the said witnesses for the relevant periodand curiously did not name Barnes as involved; that seeing that the liberty of the subject is the concern in extraditioncases, the courts have required that proof be strict - R. v. Governor of Brixton Prison, Exparte Otchere [1963] C.L.R, 43. He continued, that the United States of America having made a request on the 14th day of August, 1991, the minister's authority to proceed issued on the 2nd day of December 1992 was null and void and therefore the said resident magistrate had no jurisdiction because the order under section 4 of the Extradition Act, which comes into operation on publication in the Jamaica Gazette to incorporate it into municipal law, was not published until the 2nd day of February 1995, after the affirmative resolutions of the 15th day of August and the 13th day of September, 1991; that no certificate of arrangement, independent of the treaty, was issued as required by section 7 (3) of the Act to satisfy the rule of specialty. He concluded that due to the long delay since the alleged offences were committed in 1981 to 1982, and the indictment preferred in 1983 to the date of the applicant's arrest in 1993, and the lack of good faith, namely, the inadequate preparation of the record, inter alia, the applicant will be handicapped, by the unavailability of witnesses. Accordingly, by section 11 of the Extradition Act, it would be unjust and oppressive to extradite the applicant.

7 Mr. Hibbert submitted that the affidavits of Erp, Purvis and Freitag and Walters disclosedthat they were concerned in a marijuana smuggling operation, between Jamaica and the United States of America involving one George Barnes, in the construction business; that Freitag visited Jamaica twice in 1981 and met George Barnes who loaded the marijuana onto the aircraft; that in 1982 Freitag and Erp met George Barnes, that Purvis met George twice, in 1981 and 1982; that Walters who identified the applicant from a Florida driver's licence was asked by a man he met as “Newton Barnes” to collect money for two shipments of marijuana and that he made to Erp in the spring of 1981and June 1981. He did so and handed it to Newton...