Deal et Al v the Superintendent of Prisons and the Attorney General

• Jurisdiction: Bahamas
• Judge: Allen, P.,Conteh, J.A.
• Judgment Date: 18 November 2015
• Neutral Citation: BS 2015 CA 137
• Docket Number: SCCrApp No. 251 of 2014; SCCrApp No. 252 of 2014; SCCrApp No. 254 of 2014
• Court: Court of Appeal (Bahamas)
• Date: 18 November 2015

Court of Appeal

Allen, P.; Conteh, J.A.; Adderley, J.A.

SCCrApp No. 251 of 2014; SCCrApp No. 252 of 2014; SCCrApp No. 254 of 2014

Deal et al

and

The Superintendent of Prisons and the Attorney General

Appearances:

Roger Gomez for the appellants.

Mr. Franklyn Williams, Deputy Director of Public Prosecutions with Ms. Anishka Hanchell, counsel for the respondent.

Apicella (1985) 82 Cr. App. R. 295 applied

Fox v. Gwent Chief Constable [1985] 1 W.L.R 1126 applied

Kuruma v. R [1955] A.C. 197 applied

Neil v. North Antrim Magistrates' Court and another [1992] 4 All E.R., 846 distinguished

Newbold v. Commissionerof Police and other cases (2014) 84 W.I.R. considered

R v. Bedwelty Justices, Ex parte Williams [1996] A.C. 225 distinguished

R v. Khan (Sultan) [1996] 3 All E.R. 289 applied

R v. Sang 69 Cr. App. R. 282 applied

Roberts & Others v. The Minister of Foreign Affairs & Others [2007] U.K.P.C. 56 considered

Extradition - Habeas corpus — Ad Subjuciendum — Committal to prisons — Request to extradite — Preliminary objection to constitution of the panel — Whether the justice could sit and hear the matter when he had reached the constitutionally mandated age of retirement where the substantive arguments of the appeal had not commenced before the justice had attained the age — Consideration of Peter Sokoo and another v. the Attorney General of Trinidad and Tobago [1985] 1 A.C. 63; Sheldon Moore v. The Attorney General et al SCCrApp No. 250 of 2014 and Whitfiled v. The Attorney General BS 1989. SC 20 — Definition of proceedings pursuant to Article 102 of the Constitution — Whether the trial judge erred in finding that the evidence adduced by the requesting state made out a prima facie case supporting the allegation that the appellant was part of a conspiracy to import dangerous drugs into the United States of America where there was unassailable evidence that referred to plans to import a considerable amount — Whether the trial judge erred in law in finding that the actions of the appellant were in any way connected to a conspiracy to import dangerous drugs into the jurisdiction of the United States of America — Committal proceedings — Whether the trial judge erred in law in finding that the correct procedures were followed in relation to the commencement of committal proceedings before the court of committal where the magistrate had no jurisdiction to reject dock evidence which was admissible — Admissibility of evidence at a preliminary inquiry — Consideration of R v. Horsham Justices ex p Bukhari 74 Crim. App R 291 and R v. Sang 69 Cr. App. R. 282 — Delays in extradition proceedings — Whether at the date of the judgement the evidence produced by the wire taps; and the evidence of cooperating defendants had already been considered prior to the judgement of the Privy Council — Consideration of Gordon Newbold et al v. The Attorney General of the Commonwealth of the Bahamas et al [2014] U.K.P.C. 12 and Sheldon Moore v. The Attorney General et al SCCrApp No. 250 of 2014 — Remittal to the magistrate — Constitutionality of Listening Devices Act — On the totality of evidence before the Court which the Court has deemed admissible — Whether there was an opportunity to investigate whether the limits of the authorisations were observed — Consideration of Neil v. North Antrim Magistrates' Court and another [1992] 4 All E.R. 846 and R v. Bedwelty Justices ex parte Williams [1996] A.C. 225 — Limits of the authorisations — Whether the circumstances of obtaining the telephone intercepts were going outside the limits of the authorisations make the evidence in intercepts necessarily inadmissible — Consideration of R v. Khan (Sultan) [1996] 3 All E.R. 289 — Appeal dismissed — Section 178(1) of the Evidence Act Appeals dismissed — Finding that the decisions of the magistrate and trial judge to commit the appellants to await their extraditions were affirmed — Finding that the panel was properly constituted. — Section 5(2) of Listening Devices Act.

Facts:

The appellants' extradition on drug trafficking charges was requested in August 2004 by the Government of the United States pursuant to its Extradition treaty with The Bahamas and the Extradition Act. Committal proceedings for these appellants began, however, before the Deputy Chief Magistrate, as she then was, in October 2004.

The appellants were committed on 7 May 2013 and following that committal, they sought Writs of Habeas Corpus in the Supreme Court. The judge denied the appellants' request. The appellants appealed that decision to this Court.

Held:

Held: appeal dismissed, decision of trial judge affirmed

The Constitution does not ascribe a meaning to the phrase “proceedings commenced before him” in article 102(2); but in the 7th edition of Blacks' Law Dictionary, the word “proceedings” was interpreted as meaning: “the regular and orderly progression of a law suit including all acts and events between the time of the commencement of the suit and the entry of judgment”. Further, the purpose of Article 102(2) in our view, is to ensure a smooth transition in the disposition of matters pending before the Court on the retirement of justices of appeal; and Mr. Justice Conteh's inclusion on the panel to hear this appeal and the other appeals arising from the extant extradition proceedings was in furtherance of that objective since he was an integral part of the panel having carriage of the appeals prior to his turning 70.

It was incumbent on the appellants, if they wished to take advantage of the Privy Council's decision, to seek a further investigation of any allegations they said amounted to a breach of the limits of the authorizations. This was not done. In the absence of their demonstrating that such circumstances exist, there is no utility in remitting this matter as the appellants ask. In any event, even if there was evidence of the non-observance of the limits of the authorizations, that does not make the evidence obtained pursuant to such authorizations inadmissible, as the Board observed in paragraph 16 of its judgment.

The object of committal proceedings is to determine whether the evidence in support of the request for extradition discloses a prima facie case against the persons whose extradition is requested. It is still open to the appellants, if surrendered for trial, to raise with the trial judge the issue of whether the limits of the authorizations under which the intercept evidence was obtained were observed; and if they were not, it would be a matter for the discretion of that judge to reject it because its probative value was outweighed by the prejudice caused to the appellants.

In our view, the magistrate and learned trial judge were correct to rule that a prima facie case against the appellants was made out. The appellants are therefore ordered to be committed to the custody of the Department of Correctional Services to await their extradition on those charges.

Gordon Newbold et. al. v. The Government of the United States et al [2014] U.K.P.C. 12 considered

Peter Sookoo and another v. The Attorney General of Trinidad & Tobago [1985] 1 A.C. 63 applied

R v. Horsham Justices , exp. Bukhari 74. Crim App R 291 applied

Whitfield v. The Attorney-General BS 1989 20 followed per Conteh, J.A.: In relation to the remittal by the Privy Council to the magistrate to allow the appellants an opportunity to investigate further whether the limits of the authorization were observed, even if the appellants had that opportunity, it could at best, perhaps, possibly have resulted in findings by the magistrate that the limits were not observed.

If it was determined that the limits had not been observed the salient question should be: would the result of such findings, in and of itself, necessarily have resulted in the exclusion of the evidence contained in the intercepts or wiretaps? Exclusion of the evidence would not have been the only and inevitable result or consequence of such findings. Indeed, if the limits of the authorizations were found to have not been observed the evidence obtained therefrom would fall to be determined under common law and statutory rules relative to illegally obtained evidence.

Neither the statutory nor the common law discretion could have warranted the exclusion of the evidence provided by the intercepts simply on account that the limits, if any, of their authorizations were not observed. The probative value of the evidence outweighed whatever prejudicial effect it might and would not impact on the fairness of the committal proceedings and any subsequent trial of the appellant.

Further, the magistrate would not have properly or judiciously exercised her discretion to exclude the evidence on the finding that it was obtained illegally as the judicial discretion to exclude such evidence is now used only in exceptional cases.

The appeals should be dismissed and the committal order made by the magistrate affirmed.

Allen, P.

1 This is an appeal against the 11 September 2014, decision of Senior Justice Jon Isaacs, denying the appellants' application for Habeas Corpus and upholding the decision of the learned magistrate to commit the appellants to Fox Hill prison to await extradition to the United States (“US”).

2 The crux of the case alleged against the appellants is that they were members of a drug trafficking organization involving other Bahamians, United States citizens, and persons of other nationalities; which conspired to import into the US, and conspired to possess with intent to distribute in the US, cocaine and marijuana via The Bahamas.

3 Allegedly, all the members of this organization had different talents and played different roles in furtherance of the organization's objective and joined the conspiracy at different times. The appellants were indicted on multiple charges.

4 Following the issue of the indictment in the US, a request...