Williams (Donovan) v Commissioner of Correctional Services and DPP and other

• Jurisdiction: Jamaica
• Judge: WOLFE, C.J. , DUKHARAN. J, , HIBBERT. J,
• Judgment Date: 06 October 2005
• Judgment citation (vLex): [2005] 10 JJC 0601
• Date: 06 October 2005
• Court: Supreme Court (Jamaica)

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

IN THE FULL COURT

CORAM:

THE HONOURABLE CHIEF JUSTICETHE HONOURABLE MR. JUSTICE DUKHARANTHE HONOURABLE MR. JUSTICE HIBBERT

IN THE MATTER of an Application by Donovan Williams in a writ of Habeas Corpus Ad Subjiciendum

AND

IN THE MATTER of the Extradition Act

BETWEEN

DONOVAN WILLIAMS

APPLICANT

AND

THE COMMISSIONER OF CORRECTIONAL SERVICES

1 ^ST RESPONDENT

AND

THE DIRECTOR OF PUBLIC PROSECUTIONS

2 ^ND RESPONDENT

AND

IN THE MATTER OF THE EXTRADITION ACT

AND

IN THE MATTER OF AN EXTRADITION ORDER IN RESPECT OF LEEBERT RAMCHARAN MADE BY THE RESIDENT MAGISTRATE FOR THE PARISH OF SAINT ANDREW

AND

IN THE MATTER OF AN APPLICATION FOR AN ORDER OF HABEAS CORPUS AD SUBJICIENDUM

AND

IN THE MATTER OF THE JAMAICA (CONSTITUTION) ORDER IN COUNCIL 1962

BETWEEN

LEEBERT RAMCHARAN

CLAIMANT

AND

THE COMMISSIONER OF CORRECTIONAL SERVICES

1 ^ST DEFENDANT

AND

DIRECTOR OF PUBLIC PROSECUTIONS

2 ^ND DEFENDANT

EXTRADITION -

WOLFE, C.J

1 I have had the benefit of reading the judgment of Hibbert J. and I agree entirely with his reasoning and the conclusion he has arrived at.

2 I would therefore order that the applications of Donovan Williams and Leebert Ramcharan be dismissed.

DUKHARAN. J

3 I have also read the judgment of Hibbert, J and I agree with his reasoning and conclusion. I will therefore order that the applications of Donovan Williams and Leebert Rancharan be dismissed.

HIBBERT. J

4 Consequent on the request for extradition made by the Government of the United States of America, Donovan Williams and Leebert Ramcharan were on the 7 ^th June, 2004 committed to custody by His Honour, Mr. Martin Gayle, Senior Resident Magistrate for the Corporate Area Criminal Court to await extradition for their trial in the United States of America for the offences of (1) Conspiracy to import a mixture and substance containing cocaine into the United States and (2) Conspiracy to possess with intent to distribute in the United States of America a mixture and substance containing cocaine.

5 Accompanying the request for the extradition of each Applicant was a bundle of documents under the seals of the Department of State and the Department of Justice. These were received in the Ministry of Foreign Affairs and Foreign Trade on the 28 ^th April, 2004. Each bundle contained an affidavit of Joseph A. Cooley, Special Assistant United States Attorney for the Southern District of Florida, swom to on the 19 ^th April, 2004, before Peter R. Palermo, United States Magistrate Judge for the Southern District of Florida. Exhibited to this affidavit are two other affidavits which are relied on to provide the evidence in support of the offences for which the Applicants were charged. The first. Exhibit D was that of Dennis Hocker, a Special Agent employed to the Drug Enforcement Administration outlining his investigations in the case against the Applicants. The other, Exhibit E, was a copy of an affidavit sworn to on the 2 ^nd April, 2004 before Theodore Klein, United States Magistrate Judge for the Southern District of Florida. This copy affidavit had the name and signature of the affiant obliterated.

6 In the affidavits of Joseph Cooley and Dennis Hocker, this affiant was described as a confidential informant. In his affidavit he gave an account of his meeting and having drug dealings with the Applicants.

7 On the 11 ^th May, 2004 two similar bundles were received by the Ministry of Foreign Affairs and Foreign Trade. Each contained an affidavit of William H. Bryan, III, Assistant United States Attorney for the Southern District of Florida, sworn to on the 5 ^th May, 2004, before William C. Turnoff, United States Magistrate Judge for the Southern District of Florida. Exhibited to this affidavit is the affidavit of Alexander Young which was also sworn to before William C. Turnoff on the 5 ^th May, 2004. To this affidavit he signed the name "Young .Duffis". He also gave an account of his drug dealings with the Applicants.

8 The Applicants now apply for the issue of writs of habeas corpus seeking their release from custody.

9 In relation to the Applicant Williams the following grounds were relied on:

• 1. That the Learned Resident Magistrate erred in law in admitting into evidence a document purporting to be the Affidavit of a person whose name and signature had been obliterated, and in not holding that such document was inadmissible because:-

  • (a) it was not certified by any person to be the original document containing the testimony or a true copy of that original, as is required by section 14 (2) (a) of the Extradition Act; and/or

  • (b) on its face it was not an original document or a true copy thereof, since the name and signature of the deponent had been obliterated on the document tendered to the court

• 2. That the learned Resident Magistrate erred in law in not holding that the evidence of the confidential informant was not admissible in evidence and/or should have been rejected by him in the judicial exercise of his discretion, no reason having been given to him as to why the said person's name was withheld.

• 3. The learned Resident Magistrate erred in law in admitting into evidence an affidavit purporting to have been made by Alexander Young, but bearing the signature 'Yong Duffiz', and in not holding that the said affidavit was inadmissible it was not certified by any person to be the original document containing the testimony or a true copy of that original, as is required by section 14 (2) (a) of the Extradition Act.

• 4. The learned Resident Magistrate erred in law in admitting into evidence a photograph of the Applicant, and in not holding that such photograph could not be admissible to prove that the Applicant was the person referred to by either (a) the person whose name and signature had been obliterated, or (b) Alexander Young, because:

  • (a) it was not certified by any person to be the original document containing the testimony or a true copy of that original, as is required by section 14 (2) (b) of the Extradition Act;

  • (b) the affidavits of the said deponents did not sufficiently or at all identify the document which was exhibited as being a document which they had been shown.

• 5. The learned Resident Magistrate erred in law in permitting the affidavit of Alexander Young to be admitted after Counsel for the Second Respondent had been specifically requested to disclose whether or not he was or was not the same individual as the confidential informant and after Counsel had said the he was unable to say one way or the other, and in not holding that in the premises it was procedurally unfair and/or unjust to the Applicant to admit the said Affidavit.

• 6. The Learned Resident Magistrate erred in law in not holding that the affidavit of AlexanderYoung was so worthless that it should not be relied on, because:

  • (a) if Alexander Young was not the person whose name and signature had been obliterated, he had copied into his affidavit such large portions of that person's evidence that the allegations in the affidavit would be incapable of belief;

  • (b) if Alexander Young was the person whose name and signature had been obliterated, he had added to his previous affidavit substantial new allegations against the Applicant, such as were designed to improve the case for the Requesting State, without giving any explanation and/or reasons as to why these allegations had been omitted from the previous allegations; and in the premises he was plainly a witness of convenience.

• 7. The learned Resident Magistrate erred in law in ordering the Extradition of the Applicant on Count 2 of the Indictment, which was described in the Authority to Proceed as conspiracy to possess with intent to distribute in the United States of America a mixture and substance containing cocaine, and in not holding that such offence was not an offence under Jamaican law.

• 8. The learned Resident Magistrate erred in law in ordering the Applicant to be extradited for offences which are not offences capable of being committed in Jamaica, they not being indictable offences within this jurisdiction. It is submitted that the Authority to Proceed failed to identify to the Resident Magistrate equivalent offences within this jurisdiction.

• 9. That the Evidence adduced before the learned Resident Magistrate taken at its highest, did not prove that the Applicant had been party to an agreement to possess cocaine or to import it into the United States of America.

10 Ramcharan, in his application, replicated grounds 1-7 relied on by Williams and added the following grounds:

• 8. On or about 1 ^st June 2004 the President of the Requesting State designated the Applicant as a 'kingpin' pursuant to the Foreign Narcotics Kingpin Designation Act of the Requesting State, being an Act which applies only to non-nationals of the Requesting State. By reason of the said designation, which is a matter of public record in the Requesting State the applicant would be denied a fair trial in the Requesting State by reason of;

  • (a) prejudice caused by such designation in the minds of potential jurors, and (b) the hindrance imposed by the said Act upon the Applicant's ability to choose and remunerate Counsel of his choice.

• 9. The said designation was made after the President had been advised by (inter alia) the Department of Justice which was responsible for overseeing the prosecution and request for extradition of the Applicant, and by the United States Drug Enforcement Administration whose agents were responsible for the investigation of the Applicant's case. By reason of the said designation and the participation of the said agencies in advising that it be made, this Honourable Court should conclude that the accusation against the Applicant has not been made in good faith in the interest of justice, but in a manner calculated to deny the Applicant...