R v DPP and Director of Correctional Services ex parte Dave Antonio Grant
| Jurisdiction | Jamaica |
| Judge | WOLFE, CJ |
| Judgment Date | 23 March 2001 |
| Judgment citation (vLex) | [2001] 3 JJC 2303 |
| Court | Supreme Court (Jamaica) |
| Date | 23 March 2001 |
| Docket Number | SUIT NO. M121 OF 2000 |
IN THE SUPREME COURT OF JUDICATURE OF JAMAICA
IN THE FULL COURT
CRIMINAL LAW - Extradition - Writ of Habeas Corpus - Committal Order - Possession with intent to distribute marijuana - Statutory interpretation of Extradition Act s. 8(2)(a)
The motion herein seeks an order for a writ of habeas corpus on behalf of the applicant arising out of a committal order made by His Honour Mr. Ralston Williams on the 9 th day of November, 2000.
The applicant is a Jamaican national who resided in the United States of America.
On January 11, 1998, he was arrested and charged for the offence of possession with intent to distribute marijuana and on April 14, 1998 pleaded guilty to the said offence before the United States District Court for the Southern District of Texas, Houston Division.
The applicant was remanded on bail to come up for sentence on July 14, 1998. He failed to appear and a warrant was issued for his arrest by order of Nancy F. Atlas, Senior United States District Judge.
The applicant returned to Jamaica and on August 18, 2000, he was arrested and taken into custody on a Provisional Warrant issued by His Honour Mr. Ralston Williams, Resident Magistrate for the Corporate Area Criminal Court
Set out below are the grounds of the application.
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(i) That the Extradition Act stipulates an exclusive, mandatory and strict statutory scheme, which must be strictly complied with before a proper committal may be made by a Magistrate and before extradition, can ultimately take place. In your applicant's case the strict statutory scheme was not adhered to.
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(ii) That the Extradition Act permits only two categories for extradition of persons that is either (a) as an accused person, or (b) as a person unlawfully at large after conviction.
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(iii) That in the present case your applicant is not a convicted person within the meaning of section 8 (2) (a) of the Act This is supported both by admission of the United States Attorney and by Rule 32 (d) of the Federal Rules of Criminal Procedure.
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(iv) That in any event no certificate of conviction and sentence, as is required by section 8 (2) (b) (in relation to requests for convicted persons), has been supplied.
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(v) Alternatively, if the extradition of your applicant is to be based on your applicant falling within the category of a "person accused" then a warrant for the applicant's arrest on the extradition offence must be supported as part of the request
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(vi) That no such warrant has been supplied, instead the only warrant supplied is a warrant of arrest for the violation of a condition of release; that is, not honouring a bond.
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(vii) That further and in any event if the request is made pursuant to section 8 (2) (a) of the Act, the Requesting State must prove a prima facie case before committal for extradition can be justified. In the present case a fundamental element of the case against your applicant for possession with intent is proof of the nature of the substance. In the present case it is the opinion of my advisers that the Requesting State failed to establish that 'marijuana' in the United States is the same as any prohibited substance under Jamaican Law. Accordingly, in the premises, the committal is bad in law.
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(viii) That the Warrant of Committal is wholly defective in that it fails to commit the applicant as an accused or convicted person as the act requires. Instead the warrant creates a novel, third and impermissible category for extradition on the basis of the accused's guilty plea.
Grounds 1–6 were argued together and the burden of the submission in respect of these grounds is that the regime of the Extradition Act 1991 is strict and must be faithfully complied with failing which the request of the requesting state must not be acceded to.
The statutory regime requires that the offence for which it is sought to extradite the applicant must be an extradition offence as defined by section 5 l(b)(i) and (ii) of the Act.
There is no issue joined between the parties in respect of the offence with which the applicant is charged being an extradition offence.
Section 6 requires that the person whose return is sought must be in Jamaica and must be a person who is accused of an extradition offence in any approved state or who is alleged to be unlawfully at large after conviction of such an offence in any such state.
The respondents have conceded that the applicant is not a convicted person within the meaning of section 8 (2) (b) which requires the requesting state to furnish in respect of a person unlawfully at large after conviction of an offence a certificate of conviction and sentence. The applicant although convicted by virtue of his plea of guilty had not yet been sentenced when he absconded. A fact which he admitted.
The issue then is, does the applicant come within the definition of an accused person?
It is my view that he is an accused person for purposes of the Act.
In a criminal case there are only three categories of persons, viz. those arrested and charged, that is, accused of a crime. Those accused persons who are either convicted or acquitted by a court of competent Jurisdiction. There is no middle category of persons. A man who pleads guilty to an offence and is admitted to bail and absconds prior to being sentenced remains an accused person until he is sentenced.
If he is an accused person, as I have stated, Section 8 (2) (a) requires as follows:
"There shall be furnished with any request made for the purposes of this section by or on behalf of any approved state -
(a) in the case of a person accused of an offence, a warrant for his arrest issued in that state
(b) ..........
together with, in each case, the particulars of the person whose extradition is requested, and of the facts upon which and the law under which he is accused or was convicted, and evidence sufficient to justify the issue of a warrant for his arrest under section 9."
Mrs. Samuels Brown, for the applicant submitted that the Warrant of Arrest discloses one offence while the charge on which the applicant is requested and the particulars supplied is in relation to another and accordingly, the request is not in compliance with the statute.
The argument of Learned Counsel is indeed attractive, but wanting in merit
All the documents must be read together. It is a fact that the Warrant of Arrest from the Requesting State refers to a -
"violation of condition of release"
but the Diplomatic Notes Exhibits 4 and 5 at pages 15 – 18 of the record are revealing. I cite some extracts from these documents.
Exhibit 4 - paragraph 3.
"Grant is wanted to be sentenced in the Southern District of Texas for Narcotic offenses..... -
On April 14, 1998, Grant pled guilty to the charge in the indictment and was released on bond. On July 10, 1998, Grant failed to appear as ordered for sentencing. Based on this failure to appear, a warrant for Grant's arrest was issued on July 14,1998 by order of Nancy F. Atlas, Senior United States District, Judge of the above Court."
Exhibit 5 page 24
"On April 14,1998, Dave Antonio Grant pled guilty to the charge of possession with intent to distribute marijuana as alleged in the indictment before United States District Judge Nancy F. Atlas. U.S. District Judge Atlas set the sentencing for Dave Antonio Grant to July 10, 1998. On July 10, 1998, Dave Antonio Grant did not appear in Court to be sentenced. U.S. District Judge...
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