Timoll (Louis Washington) v Commissioner of Correctional Services and DPP

JurisdictionJamaica
CourtCourt of Appeal
Judge COOKE, J.A. , HARRISON, J.A: , HARRIS, J.A:
Judgment Date28 September 2007
Neutral CitationJM 2007 CA 48
Judgment citation (vLex)[2007] 9 JJC 2805
Date28 September 2007

JAMAICA

IN THE COURT OF APPEAL

BEFORE:
>THE HON. MR. JUSTICE COOKE, J.A THE HON. MR. JUSTICE HARRISON, J.A THE HON. MRS. JUSTICE HARRIS, J.A
SUPREME COURT CIVIL APPEAL NO: 116/2006
BETWEEN
LOUIS WASHINGTON TIMOLL
APPELLANT
AND
THE COMMISSIONER OF CORRECTIONAL SERVICES
1 ST RESPONDENT
AND
THE DIRECTOR OF PUBLIC PROSECUTIONS
2 ND RESPONDENT
Mr. Earl Witter, Q.C. and Barrington Frankson instructed by Gaynair and Fraser for the Appellant.
Patrick Foster, Q.C, Deputy Solicitor General and Kevin Powell instructed by Director of State Proceedings for 1 st Respondent
Mr. Donald Bryan, Deputy Director of Public Prosecutions for 2 nd Respondent

EXTRADITION - Habeas Corpus - Application for writ

ORDER:

The appeal is dismissed. The order made in the court below is affirmed. Costs are awarded to the respondents to be agreed or taxed.

COOKE, J.A.
1

1. On the 17 th June, 2004 the Resident Magistrate for the Corporate Area committed the appellant to custody to await his extradition to the United States of America (the requesting state). On the 1 st July, 2004, the appellant filed in the Supreme Court an application seeking a 'Writ of Habeas Corpus' for his discharge from custody. The grounds upon which that application was brought were:

"That (i) by reason of the passage of time since the Applicant is alleged to have committed the offence to which he pleaded guilty and/or alleged to have committed the offences with which he was charged and/or since he is alleged to have become unlawfully at large, as the case may be, and

(ii) because the Requisition herein is not made in good faith in the interest of justice"

2

In his affidavit supporting the application at para. 10 the appellant stated as follows:

"That I say humbly and respectfully that having regard to all the relevant circumstances, in particular the unexplained and indeed inexplicable delay on the part of the requisitioning State in seeking my extradition, as well as my own changed circumstances (domestic and medical) as testified to by me, or, on my behalf, it would be oppressive and/or unjust to extradite me as requested or at all."

3

The appellant sought to invoke Section 11 (3) (b) and (c) of the Extradition Act (the Act) which provides that:

"On any such application the Supreme Court may, without prejudice to any other power of the Court, order the person committed to be discharged from custody if it appears to the Court that "

  • (a) ...

  • (b) by reason of the passage of time since he is alleged to have committed the offence or to have become unlawfully at large, as the case may be; or

  • (c) because the accusation against him is not made in good faith in the interest of justice, it would, having regard to all the circumstances, be unjust or oppressive to extradite him."

4

The appellant's application was refused by the Full Court on the 15 th December, 2006. That Court, unhappily and with much regret did not provide either a written or oral judgment. This failure has put this Court at some disadvantage since it is denied the benefit of the thought process of that court. It is from the refusal of the appellant's application by the Full Court that this appeal now lies.

5

2. At the outset of this judgment let me say that I accept that the proper approach to the resolution of this appeal is that whether or not it would be unjust or oppressive to return a fugitive does not involve the exercise of a discretionary jurisdiction but is a decision of fact of what is the proper inference to be drawn from the primary facts established by the court. See Union of India v. Manorhar Lal Narang and another , a decision of the House of Lords [1977] 2 All E.R. 348.

6

3. The bald incontrovertible primary facts were:

  • (a) On the 22 nd April, 1986 the appellant pleaded guilty to count one of a three count indictment in the United States District Court Eastern District of New York. Apparently this plea was a part of a plea bargaining exercise. He pleaded guilty for conspiracy to import substantial quantities of marijuana into the United States.

  • (b) He was scheduled for sentencing on or about the 6 th June, 1986, but he did not appear. He willfully refused to honour a condition of his being on bail.

  • (c) He returned to Jamaica at some undisclosed time in 1986.

  • (d) The first documented effort by the requesting state to have the appellant extradited is evidenced by a Diplomatic Note dated the 25 th March, 2003. This was followed by another Diplomatic Note 292 with supporting documents. This was dated 26 th September, 2003.

  • (e) The authority to proceed was issued on the 13 th November, 2000, and the warrant of arrest on the 18 th November, 2003. The latter was executed on the 22 nd November, 2003.

  • (f) From the time the appellant absconded bail until the hearing in the Supreme Court, more than 20 years had elapsed.

7

4. In this Court attention was focused entirely on 11 (3) (b) of the Act. It is well to appreciate at once that the appellant fugitive is not in the category of those persons concerning whom there are allegations. He is unlawfully at large in circumstances where he had pleaded guilty to a serious offence and absconded bail prior to his sentencing. The seriousness of the offence to which he pleaded guilty is demonstrated by the fact that the maximum period for imprisonment is 15 years. The stark question is whether or not by reason of the passage of time, having regard to all the circumstances it would be unjust or oppressive that having pleaded guilty and fled, for him to be extradited to be sentenced.

8

5. Before I turn my attention to the contending positions as to the effect of the passage of time I will advert to two authorities. I begin with a passage from the speech of Lord Morris of Borth-Y-Gest in Narang (supra) at p 368 c - d.

"It seems to me that the court is enjoined to have 'regard' to all the circumstances which reasonably can have bearing on the question whether 'by reason of the passage of time' an order to return would be unjust. The circumstances must all relate to the passage of time and relate to the question whether there would be injustice because of the passage of time if an order to return was made. The circumstances will naturally have arisen during the period of the passage of time but not all such circumstances will be relevant. Those in contemplation are primarily the circumstances which have relation to the trial which, after a return, is to take place and to the defence to charges to be made and to the question whether 'by reason of the passage of time' it would be unjust to a person to return him to take his trial." (emphasis mine)

9

I consider that "trial" includes sentencing. Accordingly, much significance should be placed on the effect of the passage of time as regards how any consequences occasioned thereby, may reasonably be said to be a source of prejudice to him, at a future sentencing hearing.

10

6. In Kakis v. Government of the Republic of Cyprus a decision of the House of Lords [1978] 1 W.L.R. 779 Lord Diplock in his speech at p. 782 H - 783 A - B said:

" 'Unjust' I regard as directed primarily to the risk of prejudice to the accused in the conduct of the trial itself, 'oppressive' as directed to hardship to the accused resulting from changes in his circumstances that have occurred during the period to be taken into consideration; but there is room for overlapping, and between them they would cover all cases where to return him would not be fair. Delay in the commencement or conduct of extradition proceedings which is brought about by the accused himself by fleeing the country, concealing his whereabouts or evading arrest cannot, in my view, be relied upon as a ground for holding it to be either unjust or oppressive to return him. Any difficulties that he may encounter in the conduct of his defence in consequence of the delay due to such causes are of his own choice and making. Save in the most exceptional circumstances it would be neither unjust nor oppressive that he should be required to accept them."

11

Here again as in the passage excerpted from the speech of Lord Morris, the emphasis is on the prejudice which delay may occasion when a fugitive is brought to justice. In this case would it be prejudicial to the appellant if he should be subject to the sentencing procedure?

12

7. In Kakis (supra) Lord Edmud-Davies in his short speech had this to say at p. 785 A - E.

"My Lords, I have had the advantage of reading in draft the speech of my noble and learned friend, Lord Diplock, and I am in general agreement with the reasons he gives for holding that this appeal should be allowed.

I have, however, one qualification to make. I am unable to concur in the following passage in the speech of my Lord:

'As respects delay which is not brought about by the acts of the accused himself, ... the question of where responsibility lies for the delay is not generally relevant. What matters is not so much the cause of such delay as its effect; or, rather, the effects of those events which would not have happened before the trial of the accused if it had taken place with ordinary promptitude.'

In my respectful judgment, on the contrary, the answer to the question of where responsibility lies for the delay may well have a direct bearing on the issues of injustice and oppression. Thus, the fact that the requesting government is shown to have been inexcusably dilatory in taking steps to bring the fugitive to justice may serve to establish both the injustice and the oppressiveness of making an order for his return, whereas the issue might be left in some doubt if the only known fact related to the extent of the passage of time, and it has been customary in practice to advert to that factor: see, for example, Reg. v. Governor of Pentonville Prison, Ex...

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