Ramcharran v Commissioner of Correctional Services and DPP and another

• Jurisdiction: Jamaica
• Judge: HARRISON, P. , COOKE, J.A. , HARRIS, J.A : , HARRISON, P .
• Judgment Date: 29 September 2007
• Neutral Citation: JM 2007 CA 7
• Judgment citation (vLex): [2007] 3 JJC 1601
• Court: Court of Appeal (Jamaica)
• Date: 29 September 2007

IN THE COURT OF APPEAL

BEFORE:

THE HON. MR. JUSTICE HARRISON, P THE HON. MR. JUSTICE COOKE, J.A THE HON. MRS. JUSTICE HARRIS, J.A

BETWEEN

LEEBERT RAMCHARAN

APPELLANT

AND

THE COMMISSIONER OF CORRECTIONAL SERVICES

1 ^ST RESPONDENT

AND

DIRECTOR OF PUBLIC PROSECUTIONS

2 ^ND RESPONDENT

BETWEEN

DONOVAN WILLIAMS

APPELLANT

AND

THE COMMISSIONER OF CORRECTIONAL SERVICES

1 ^ST RESPONDENT

AND

DIRECTOR OF PUBLIC PROSECUTIONS

2 ^ND RESPONDENT

Lord Gifford, Q.C., & Hugh Thompson Gifford, Thompson & Bright

Frank Phipps, Q.C., Miss Kathryn Phipps & Wentworth Charles Wentworth Charles & Co.,

Patrick Foster, Dep. Solicitor General & Miss Annaliesa Lindsay Director of State Proceedings ^st

Kent Pantry, Q.C., Director of Public Prosecutions & Miss Winsome Pennicook, Crown Counsel ^nd

EXTRADITION - Application for writ - Appeals dismissed

HARRISON, P.

1 These are appeals by Leebert Ramcharan and Donovan Williams from a decision of the full court of the Supreme Court (Wolfe, C.J., Dukharan, Hibbert, JJ) on 6 ^th October 2005 dismissing the application of each appellant for a writ of habeas corpus.

2 An extradition treaty signed on 14 ^th June 1983 by the United States of America and Jamaica, came into force by ratification on 31 ^st May 1991 and as a consequence the current Extradition Act came into force in 1991.

3 On 2 ^nd March 2004 by diplomatic notes to the Ministry of Foreign Affairs and Foreign Trade of the Government of Jamaica, the United States of America ("the Requesting State") sought the extradition of the appellants. The Senior Resident Magistrate for the Corporate Area Criminal on 2 ^nd March 2004 issued provisional warrants pursuant to section 9(1)(b) of the Extradition Act ("the Act") for both appellants. They were arrested on 3 ^rd March 2004 on the said warrants by Sgt. Glenford Buckle of the Jamaica Constabulary Force at the New Horizon Remand Centre where they were in custody. At the time of such arrest each was shown a photograph of himself and asked if it was his. Ramcharan said "Yes officer". Williams said "It look like mi."

4 On 28 ^th April 2004 the Requesting State forwarded to the Foreign Affairs Ministry in Jamaica ("the Requested State"), in respect of each appellant, a bundle of documents containing an affidavit of Joseph A. Cooley, Special Assistant United States Attorney for the Southern District of Florida, sworn to on 19 ^th April 2004 before Peter R. Palermo, United States Magistrate Judge of the Southern District of Florida.

5 In his affidavit, he stated the charges filed against each appellant and the relevant United States legislation, explained the Federal Grand Jury process giving rise to the issue of the indictments and warrants, and summarized the facts of the case. Exhibited to each of these affidavits were:

• 1. copies of the Federal Grand Jury indictment and US warrant of arrest dated 30 ^th January 2005,

• 2. copies of extracts of the US legislation which the appellants allegedly breached,

• 3. penalty sheets listing the sentences on conviction of the several offences charged,

• 4. an affidavit of Dennis Hocker, a Special Agent employed to the Drug Enforcement Administration ("the DEA") sworn to before the said Peter R. Palermo on 10 ^th April 2004, detailing his investigations in respect of the charges against the appellants,

• 5. an affidavit sworn to on 2 ^nd April 2004 before Theodore Klein, United States Magistrate Judge for the Southern District of Florida by an affiant described as a "Confidential Informant," and whose name and signature were obliterated from the affidavit.

This latter affidavit was "certified to be a true and correct copy of the document on file" by one Clarence Maddox, Clerk, U.S. District Court Southern District of Florida on 4 ^th February 2004.

6 On the 11 ^th May 2004 two further bundles of documents were received by the said Ministry of Foreign Affairs, each containing an affidavit of William H. Bryan, III, Assistant United States Attorney for the Southern District of Florida, sworn to on 5 ^th May 2004 before William C. Turnoff, United States Magistrate Judge for the Southern District of Florida. Exhibited to each of these affidavits was the affidavit of Alexander Young also sworn to before William C. Turnoff, on 5 ^th May 2004.

7 The affidavits of the confidential informant and Alexander Young both give accounts of their meetings and drug dealings with the appellants, thereby providing the evidence to substantiate the charges contained in the indictments, dated 30th January 2004, as required by section 8(2) of the Act.

8 On 30 ^th April 2004 the Minister issued his authority to proceed under section 8(1) of the Act authorizing the Resident Magistrate to commence committal proceedings. Committal hearings were held on the 19 ^th and 28 ^th May 2004 and on 7 ^th June 2004 the Resident Magistrate granted the United States' extradition requests by issuing a warrant of committal for each of the appellants Ramcharan and Williams, ordering that they be remanded in custody to await their extradition to the United States of America. They were committed to be tried on two counts, namely:

• (1) Conspiracy to import a mixture and substance containing cocaine into the Unites States, and

• (2) conspiracy to possess with intent to distribute in the United States of America, a mixture and substance containing cocaine.

9 Previously, on 1 ^st June 2004 George W. Bush, the President of the United States of America, designated the appellant Leebert Ramcharan a "narcotics Kingpin" under the powers granted by the Foreign Narcotics Kingpin Designation Act ("the Kingpin Act") of 1999.

10 Section 3 of the said Act describes its purpose. It reads:

" 3 . The purpose of this Act is to provide authority for the identification of and application of sanctions on a worldwide basis to, significant foreign narcotics traffickers, their organizations and the foreign persons who provide support to those significant foreign narcotics traffickers and their organizations whose activities threaten the national security foreign policy, and economy of the Unites States."

11 Consequent on the committal orders made on 7 ^th June 2004 the appellants applied for writs of habeas corpus to issue for their release from custody. On 6 ^th October 2005 the full court of the Supreme Court refused each application. That resulted in this appeal.

12 The appellant Ramcharan filed eight grounds of appeal and the appellant Williams filed nine grounds of appeal. Common to the appeal of each appellant were grounds (a) to (e). They read:

• "(a) The Full Court erred in law in holding that the affidavits relied on by the Requesting State were duly authenticated in accordance with section 14(l)(a) of the Extradition Act; since the said affidavits were not certified to be either originals or true copies as is required by section 14(2)(a) of that Act.

• (b) The Full Court erred in law in holding that the document purporting to be testimony given by a person whose name had been obliterated was admissible as a true copy of an original affidavit, since it was plain on the face of the document that it had been altered since it was originally created.

• (c) The Full Court erred in law in holding that it could properly determine by an examination of the affidavit of Alexander Young that it was an original affidavit, when it was not certified so to be by any appropriate officer.

• (d) The Full Court erred in law in holding that the photograph relied on by the Requesting State as identifying the Appellant was duly authenticated in accordance with section 14(l)(b) of the said Act, since it was not certified to be either a photograph received in evidence or a true copy thereof as required by section 14(2)(b) of that Act.

• (e) The Full Court erred in law in holding that the Resident Magistrate could consider testimony coming from a person described as a confidential informant whose name was not supplied, in the absence of any evidence that the said person had any good reason for withholding his name."

13 The grounds of appeal argued, exclusive to the appellant Ramcharan, were grounds (f) to (h). They read:

• "(f) The Full Court erred in law in construing section 7(1)(c) of the Extradition Act is (sic) meaning that the Appellant was required to establish that he might be denied a fair trial as a result of his race, religion, nationality or political opinions; and in not holding that the denial of a fair trial for any reason would require the refusal of extradition under that section.

• (g) The Full Court erred in law in not holding that the designation of the Appellant by the President of the Requesting State under the Foreign Narcotics Kingpin Designation Act, being an Act applicable only to non-nationals of the United States, discriminated against the Appellant on the grounds of his nationality, so that if such designation prejudiced his right to a fair trial in the United States, the prejudice arose by reason of his nationality.

• (h) The Full Court erred in law in (sic) holding that the evidence adduced on behalf of the Appellant, including the expert evidence of Professor Bruce Winick as to the likelihood of jurors knowing of the said designation and its likely effect on their minds, had demonstrated that he might, if extradited, be denied a fair trial."

14 These grounds of appeal argued exclusive to the appellant Williams were grounds (f) and (h). They read:

• "(f) The Full Court erred in law in holding that the Appellant could be extradited on count 2 of the indictment, which was described in the authority to proceed as conspiracy to posses (sic) with intent to distribute in the United States of America a mixture and substance containing cocaine, and in not holding that such offences...