Knowles et Al v Culmer et Al
| Jurisdiction | Bahamas |
| Judge | Dame Anita Allen, P,Ms. Justice Crane-Scott, JA,The Honourable Dame Anita Allen, P,The Honourable Mr. Justice Isaacs, JA |
| Judgment Date | 23 October 2017 |
| Neutral Citation | BS 2017 CA 117 |
| Docket Number | SCCivApp. Nos. 118 and 119 of 2016 |
| Court | Court of Appeal (Bahamas) |
| Date | 23 October 2017 |
COMMONWEALTH OF THE BAHAMAS
IN THE COURT OF APPEAL
The Honourable Dame Anita Allen, P
The Honourable Mr. Justice Isaacs, JA
The Honourable Ms. Justice Crane-Scott, JA
SCCivApp. Nos. 118 and 119 of 2016
(Superintendant of her Majesty's Fox Hill Prison)
and
and
and
Mr. Edward Fitzgerald, QC withMr. Damian Gomez, QC, Mr. Osman Johnson, Ms. Raquel HallandMr. Crispin Hall, Counsel for the Appellants
Mr. Neil Brathwaite with Ms. Viola Barnett, Counsel for the Respondents
Barker v Wingo 407 US 514
Gibson, Cartwright and (Samuel) Knowles v USA of 5 February 2002
Gomes v Government of the Republic of Trinidad and Tobago / Goodyer v Same [2009] UKHL 21
Kakis v The Government of the Republic of Cypr 1 WLR 779 ,
Knowles v Government of the Unites States of America [2007] 1 WLR 47
McDonald v R . [2001] BHS J. No. 32 No 58 of 2000;
Ramcharan v Commissioner of Correctional Services
Rhett Allen Fuller (Appellant) v The Attorney General of Belize (Respondent) Privy Council Appeal No. 0048 of 2010 [2011] UKPC 23
R v Galbraith [1981] 1 WLR 1039
R v Governor of Brixton Prison Ex parte Armah [1968] A.C. 192, 229
R v Governor of Pentonville Prison Ex p. Alves [1993] A.C. 284
R v Governor of Pentonville Prison Ex p. Osman (No.1) [1990] 1 W.L.R. 277
R v Governor of Pentonville Prison Ex parte Sotiriadis [1975] A.C. 1,30
R v Robb , 93 Cr. App. R. 161, CA
R v Turner (B.J.) 61 Cr. App. R. 67
Viscount Dilhorne in Ex parte Tarling , 70 Cr. App. R. 77,114
Williams v Commissioner of Correctional Services and another 73 WIR 312 .
Woodcock v Government of New Zealand [2003] EWHC 2668 ;
Criminal Appeal — Extradition — Authentication-Inordinate Delay-Abuse of Process — Inadmissible Evidence — Telephone Intercepts — Extradition Act, Ch.
In November 2003 the appellants were committed to Her Majesty's Prison at Fox Hill to await extradition to the United States of America. After their committal each appellant applied for a writ of habeas corpus. On 3 May 2016 the Supreme Court ruled that the appellants had not made out a case for granting the writs of habeas corpus and affirmed the decision of the Magistrate to commit the appellants. The appellants appeal that decision.
Held:- appeal dismissed, decision to refuse writs of habeas corpus affirmed, decision to commit the appellants to Her Majesty's Prison to await extradition affirmed
Undoubtedly, it is ultimately the duty of the requesting state with the assistance of the requested state, to pursue the extradition, nevertheless, the appellants also have an obligation to assert their rights, particularly as they had already been committed to await extradition. In this regard, the appellants have singularly failed to demonstrate any interest during the three years which elapsed between the Privy Council's decision (2005), and the order they sought for the production of the transcripts in 2008, or in the seven year period thereafter, to further pursue their applications for habeas corpus before the Supreme Court.
Indeed, as previously noted, the only efforts made were those by Counsel for the respondents, who wrote to the court in an attempt to have the matter set down for hearing. In my view, what was required of the appellants at the least was the filing of a notice of intention to proceed, and some attempt to procure a date for continuation of their applications. In the premises, I agree with the learned judge's finding that the delay was not attributable to the failings of the Supreme Court Registry, but due to the appellants' contentment with the delay as evidenced by their failure to pursue timeously, their applications for habeas corpus.
On the question whether their extradition to the US would be oppressive after the passage of 16 years, while one understands the uncertainty, and the difficulty the period spent awaiting extradition would cause in maintaining family life, yet that circumstance does not surmount the high threshold requisite for establishing oppression. Indeed, when that circumstance is weighed against the gravity and seriousness of the crimes they are accused of, it would not be sufficient to tip the balance in favour of their discharge. In the absence of any real effort on the part of the appellants to assert their rights, their claim that the delay amounted to an abuse of process is not made out, and I would not accede to their application to be discharged on that ground either.
Lystra Blake describes herself in the certificate as Associate Director in the Office of International Affairs, Criminal Division, of the Department of Justice, and clearly professes to certify Karen Atkinson's affidavit as the original. It is clear to me that she purported to do so in accordance with section 14(3) of the Extradition Act; and the sense, tenor, and apparent meaning of that certification is that the affidavit purports to be so certified.
In addition to Lystra Blake describing herself in her certificate as Associate Director in the Office of International Affairs, Criminal Division of the Department of Justice, the US Attorney General, in his certificate, confirmed her position in the Department of Justice, and further asserted that she was ‘duly commissioned and qualified’. While the Attorney General did not specifically say what Lystra Blake's commission or qualifications were, he was in my view, there declaring, that Lystra Blake as the Associate Director, was assigned to the function of certification of such documents, and was qualified to do so in that she had complied with the specific requirements or conditions precedent to legally perform that function.
There can be no doubt that the certificate signed by Lystra Blake conveyed that in her official capacity as Associate Director in the Office of International Affairs, Criminal Division, of the Department of Justice, she was certifying Karen Atkinson's affidavit for the purpose of its admission in extradition proceedings.
As to the provisions of section 90: “Where a person is proved to have done any act in any official or judicial capacity, the court shall presume until the contrary is shown, that all circumstances had happened and all conditions were fulfilled which were necessary to give validity to such act.” This presumption operates on proof or admission of the basic or primary fact that a person has acted in a public or official capacity. It is presumed, in the absence of evidence to the contrary, that the person was regularly and properly appointed and that the act was regularly and properly performed, and unless there is evidence that she was not a person within any of the categories mentioned in section 14(3) of the Act, it is presumed that all circumstances happened, and all conditions were fulfilled which were necessary to give validity to Lystra Blake's certification.
The presumption cannot be rebutted merely by challenging the presumed fact. Evidence must be adduced; see Campbell v Wallsend Slipway and Engineering Company Ltd. [1978] ICR 1015. Merely to say that Lystra Blake's certificate is invalid because Lystra Blake did not say in her certification that she was such an official as mentioned in section 14(3), cannot therefore rebut the presumption.
The appellants must show that Lystra Blake was not a person authorized by section 14(3) to certify such an affidavit. Needless to say, the appellants have not shown that she was not a judge, magistrate, officer of the court in or of the approved state, or an officer of the diplomatic or consular service of that state, and it must be presumed that her certification of Karen Atkinson's affidavit was regularly done. Indeed, on a true construction of the provisions of section 14(1) and (3), the foreign documents described therein are authenticated either by the oath of a witness or by the seal of a minister of the approved state, but are not duly authenticated and admissible in proceedings under the Act, unless they are certified as the original documents or true copies thereof by one of the persons prescribed in section 14(3).
In my opinion, it cannot have been the intention of Parliament in enacting section 14(3), that a bare technical point such as not stating in the certificate in what capacity you are doing so, should be allowed to defeat the extradition process and subvert such important treaty obligations of The Bahamas, particularly when all of the other requirements of section 14(3) have been strictly met, and even surpassed with the certification of the US Attorney General; and in the absence of any evidence to suggest that the documents in support of the extradition request are ‘contrived or falsified’.
In addition, by virtue of section 14 (6), if any documents to which any of the other provisions of section 14 apply are admissible in evidence in accordance with any other law, the provisions of section 14(3) cannot prevent their admission. Consequently under our Act, the provisions of section 14(1) and (3) are not mandatory if the documents are admissible by virtue of any other law. It follows that in order to show that the documents are inadmissible, the appellants would have to show not only that they do not comply with section 14, but also, that there is no other law by which they may be admitted.
In the premises, I am satisfied that the affidavit of Karen Atkinson was duly authenticated by Lystra Blake, and properly admitted into evidence in these proceedings. These grounds of appeal therefore also fail; and accordingly, I would affirm the learned judge's decision that Karen...
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