Gibson et Al v Superintendent at HM Prison et Al

• Jurisdiction: Bahamas
• Judge: Isaacs, J,Isaacs, J.
• Judgment Date: 05 February 2002
• Court: Supreme Court (Bahamas)
• Docket Number: 1263, 1264 and 1265 of 2001
• Date: 05 February 2002

Supreme Court

Isaacs, J.

1263, 1264 and 1265 of 2001

Gibson et al

and

Superintendent at Her Majesty's Prison et al

Appearances:

Mr. Philip Davis - Lemuel Gibson - defendant.

Mr. Murio Ducille - Lemuel Gibson - defendant.

Mr. Anthony McKinney - Frank Cartwright - defendant.

Mr. Roger Minnis - Frank Cartwright - defendant.

Mr. Edward Fritzgerald - Samuel Knowles-defendant.

Mr. Francis Cumberbatch - Crown.

Ms. Euricka Wilkinson - Crown.

Practice and procedure - Extradition proceedings — Decision of magistrate to commit applicants to prison to await their surrender to the requesting state — Application for writs of Habeas Corpus and Certiorari — Habeas Corpus Act, 1679 — Whether the court had the power to venture beyond the face of the return to decide whether a lawful case for detention had been disclosed — Finding that the court could examine the evidence disclosed in the affidavits that were before the committing magistrate to determine the validity of the detention.

Evidence - Direct evidence — Affidavit deposed as to information supplied by the dependent to other authorities — Whether this was direct evidence within the provisions of section 14(i)(a) of the Extradition Act — Finding that the evidence was not direct evidence as it was a mere summary of information previously provided to the authorities and was inadmissible.

Isaacs, J

1 14th January, 2002 I adjourned the hearing of the applications by the applicants, Lemuel Gibson, Frank Cartwright and Samuel Knowles for writs of habeas corpus and certiorari to consider the arguments of counsel for the parties. I have done so; and now give my decision in writing.

2 These three actions were joined together on the application of Mr. Edward Fitzgerald, Q.C., counsel for Samuel Knowles. Also, the certiorari applications were consolidated with the habeas corpus applications made on the applicants' behalf. Other counsel in the case supported the applications. The Court acceded to the applications; and the conjoined hearing of the three applications proceeded.

3 The applications arise out of an extradition hearing presided over by stipendiary and circuit magistrate Carolita Bethell and from her decision to commit the applicants to H.M. Prison to await their surrender to the United-States of America (the U.S.) made on 3rd October, 2001. The applicants Knowles and Gibson were commuted on four of the eight charges with which they were originally charged before the magistrate. Cartwright was committed on the four charges listed his ATP.

4 The eight charges, which are found in the schedule of charges in the Authority to Proceed (ATP) signed by the Hon. Attorney General Carl W. Bethel on 30th March, 2001, are as follows:

“SCHEDULE OF CHARGES

• 1. Conspiracy to Possess, With Intent to Supply Dangerous Drugs, namely Cocaine, contrary to sections 22(1), 22(2)(a) and 30(1), of the Dangerous Drugs Act, 2000. Between the 27th November 1997 and the 8th December 2000, Lemuel Gibson, within the Commonwealth of The Bahamas, and abroad, and being concerned together with others, did conspire to possess a quantity of dangerous drugs, namely Cocaine, with intent to supply same to another.

• 2. Conspiracy to Possess, with the Intent to Supply Dangerous Drugs, namely Indian Hemp, contrary to sections 22(1), 22(2)(a) and 30(1), of the Dangerous Drugs Act, 2000. Between the 27th November 1997 and the 8th December: 2000, Lemuel Gibson, within the Commonwealth of The Bahamas, and abroad, and being concerned with others did-conspire for possess a quantity of dangerous drugs, namely Indian Hemp, with intent to supply same to another.

• 3. Conspiracy to Import Dangerous Drugs, namely Cocaine; contrary to sections 15(6), 29(1)(a), 29(2)(a) and 30(1), of the Dangerous Drugs Act, 2000. Between the 27th November 1997 and the 8th December, 2000, Lemuel Gibson, within The Bahamas, and abroad, and being concerned together with others, did conspire to import into the Commonwealth of The Bahamas, and abroad, a quantity of dangerous drugs namely Cocaine.

• 4. Conspiracy to Impart Dangerous Drugs, namely Indian Hemp, contrary to sections 15(6), 29(1)(a), 29(2)(a) and 30(1), of the Dangerous Drugs Act, 2000. Between the December 1997 and the 8th December, 2000, Lemuel Gibson, within the Commonwealth of The Bahamas, and abroad, and being concerned with others, did conspire to impart into the Commonwealth of The Bahamas, and abroad, a quantity of dangerous drugs namely Indian Hemp.

• 5. Possession with Intent to Supply Dangerous Drugs, namely Cocaine, contrary to sections 22(1) and 22(2) of the Dangerous Drugs Act, 2000. Between the 27th November 1997 and the 8th December 2000, Lemuel Gibson, within the Commonwealth of The Bahamas, and abroad, and being concerned with others, did possess a quantity of dangerous drugs, namely Cocaine; with intent to supply same to another.

• 6. Possession with Intent to Supply Dangerous Drugs, namely Indian Hemp, contrary to sections 22(1) and 22(2)(a) of the Dangerous Drugs Act, 2000. Between the 27th November 1997 and the 8th December 2000, Lemuel Gibson, within the. Commonwealth of The Bahamas, and abroad, and being concerned with others did possess a quantity of dangerous drugs, namely Cocaine, with intent to supply same to another.

• 7. Importation of Dangerous Drugs; namely Cocaine, contrary to sections 15(6), 29(1) and 29(2)(a) of the Dangerous Drugs Act, 2000. Between the 27th November 1997 and the 8th December 2000, Lemuel Gibson, within the Commonwealth of The Bahamas, and abroad, and being concerned with others, did import into the Commonwealth of The Bahamas and abroad, a quantity of dangerous drugs, namely Cocaine.

• 8. Importation of Dangerous Drugs, namely Indian Hemp contrary to sections 15(6), 29(1)(a) and 29(2)(a) of the Dangerous Drugs Act, 2000. Between the 27th November 1997 and the 8th December 2000, Lemuel Gibson, within the Commonwealth of The Bahamas, and abroad, and being concerned with others, did import into the Commonwealth of The Bahamas and abroad, a quantity of dangerous drugs, namely Indian Hemp.”

5 The charges levied against Samuel Knowles in the ATP in his case are identical to Gibson's. However, the ATP in relation to Frank Cartwright contained only the first four of the offences listed above.

6 The hearing - there had been a joinder of the three committal hearings – into the charges proceeded on divers days before the learned magistrate. The evidence against the applicants is contained in the affidavits found in the bundles presented by the US Government. The main evidence of their participation in the offences alleged is found in the affidavits of Herbert Hanna. Also, in respect to the applicant Knowles the evidence is, in the main, in the affidavits of Royal Canadian Mounted Police officers John Debellis and Ashley Lambert. Those officers' affidavits contain, inter alia, references to recorded telephone intercepts of conversations between Knowles and other persons, including Cartwright. There are also the affidavits of Special Agents Keith Weis, Ken Hale and Richard Johnson and Forensic Chemist Juan Bruna. However, it is Hanna, Debellis and Lambert and to a lesser extent the evidence of D.E.A. Special Agent Daniel C. Mahoney - that form the linchpin of the Requesting State's case. Not surprisingly, it is the evidence of Hanna, Debellis and Lambert that elicits the greatest attention by the applicants in their challenge to the committals both in this Court and in the court below.

7 At the close of the case the magistrate committed the applicants to the custody of the Superintendent of Prisons to await their extradition under the Act on the offences specified in the A.T.P. Those offences are:

• 1) Conspiracy to Possess With the Intent to Supply Dangerous Drugs, namely Cocaine, contrary to sections 22(1), 22(2)(a) and 30(1) of the Dangerous Drugs Act, 2000;

• 2) Conspiracy to Possess With the Intent to Supply Dangerous Drugs, namely Indian Hemp, contrary to sections 22(1), 22(2)(a) and 30(1) of the Dangerous Drugs Act, 2000;

• 3) Conspiracy to Import Dangerous Drugs, namely Cocaine, contrary to sections 15(6), 29(1)(a), 29(2)(a) and 30(1) of the Dangerous Drugs Act, 2000; and

• 4) Conspiracy to Import Dangerous Drugs, namely Indian Hemp, contrary to sections 15(6), 29(1)(a), 29(2)(a) and 30(1) of the Dangerous Drugs Act, 2000.

8 The facts of the case against each applicant may be summarised as follows:

RE CARTWR1GGHT:-

9 Herbert “Sharkhead” Hanna's affidavit, at paragraphs 4 to 8 disclose, inter alia, that his primary role in Knowles' cocaine and marijuana smuggling organisation was as a loader, security for and verifier of the amounts of cocaine and marijuana smuggled into the United States from The Bahamas. He was paid for services during these illegal smuggling operations. “I know that whenever I requested any money, which was usually while I was in the United States, I would contact Knowles. On some occasions, after requesting money from Knowles I would be contacted by an individual who I know only as “Frank “.” He met Cartwright in 1992 at Knowles Tracking Company in Nassau. Cartwright would contact him, and they would arrange a place to meet, for example, the parking lot of large shopping malls, where Cartwright would pay him. Hanna says he was paid by Cartwright on more than fifty occasions over a period of eight years. Hanna also deposes to being present when Cartwright would buy items for Knowles using money generated from cocaine and marijuana smuggling operations. Hanna purports to identify Cartwright from a photograph shown to him by agent Weis.

10 Other evidence against Cartwright comes from Corporal Ashley Lambert of the Royal Canadian Mounted Police. He monitored the intercepted telephone conversations between Cartwright and Knowles following the seizure of some US$25 million dollars. Officer Lambert states that the intercepts were...