Maycock Sr. v The Superintendent of Prisons and the Attorney General

JurisdictionBahamas
JudgeAllen, P.,Conteh, J.A.
Judgment Date18 November 2015
Neutral CitationBS 2015 CA 140
Docket NumberSCCrApp & CAIS No. 262 of 2014
CourtCourt of Appeal (Bahamas)
Date18 November 2015

Court of Appeal

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

SCCrApp & CAIS No. 262 of 2014

Maycock Sr.
and
The Superintendent of Prisons and the Attorney General
Appearances:

Appellant pro se.

Mr. Franklyn Williams for the respondents.

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

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. Commissioner of Police and other cases (2014) 84 W.I.R. considered

R v. Bedwelty Justices, Ex parte Williams (1996) AC 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 — 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 appellant should be permitted to adduce fresh evidence — Consideration of the principles in Ladd v. Marshall [1957] 3 All E.R. 745 — Whether the trial judge erred in upholding the order of committal, notwithstanding that in Gordon Newbold et al v. the Government of the United States et al [2014] U.K.P.C. 12 the Privy Council had advised her Majesty that the appellant's case should be remitted to the magistrate for the continuation of the extradition proceedings on the basis of the Privy Council's judgement — Legitimacy and constitutionality of the evidence obtained as a result of wire intercepts purportedly authorised by section 5(2) of the Listening Device Act — Consideration of Gordon Newbold et al v. The Attorney General of the Commonwealth of the Bahamas et al [2014] U.K.P.C. 12 — Legality in the authorisations pursuant to which most of the evidence against the appellant and others were obtained — Whether the non-observance of the limits of the authorisations made the evidence obtained pursuant to such authorisations inadmissible where the object of the committal proceedings was only to determine whether the evidence in support of the request for extradition disclosed a prima facie case against the person whose extradition was requested — Whether the magistrate's decision to allow the requesting state to re-open its case after it had been closed to call Assistant Commissioner of Police was a violation of the right to a fair hearing where the officer had been called for further cross examination — Consideration of Omar Persaud v. Jaitoon (1975) 23 W.I.R. 73 and Attorney General v. Malario Sarrette SCCrApp No. 17 of 2005 — Schedule of Charges attached to the Authority to Proceed — Whether the Schedule of Charges attached to the Authority to Proceed was defective and the proceedings fatally flawed — Importance of ascertaining that the Defendant had an opportunity to know and meet the case against him — Consideration of Alain Charron v. Govt of the USA [2000] L.R.C. 549; R v. Governor of Pentonville Prison ex p Osman [1989] L.R.C. (Crim.) 22 and R v. Governor of Pentonville Prison ex p Naghdi [1990] 1 All E.R. 257 — Whether the review of the evidence which the requesting state adduced in support of its request and which was before the learned magistrate during the committal proceedings and before the learned judge on the Habeas Corpus application showed a preponderance of evidence of evidence from which one may reasonably concluded a prima facie case of the appellant's involvement in the offences for which his extradition was requested and have been made out — Whether there was an order by a superior court to have the extradition proceedings before the magistrate stayed — Consideration of Roberts & Others v. The Minister of Foreign Affairs & Others [2007] U.K.P.C. 56 — Delays in extradition proceedings — Remittal to the magistrate — Admissibility of evidence at a preliminary inquiry — Consideration of R v. Sang 69 Cr. App. R. 282 and R v. Khan (Sultan) [1996] 3 All E.R. 289 — 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 — Appeal dismissed — Section 5 of the Evidence Act — Section 30 of the Dangerous Drugs Act.

Facts:

The appellant's 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 this appellant began before the Deputy Chief Magistrate, as she then was, in 2008 when he was apprehended.

Following disposal of the legal challenge to the Listening Devices Act (LDA), which was appealed to both the Court of Appeal and the Privy Council, the learned magistrate committed the appellant on 7 May 2013 to await extradition.

Consequent to that committal, the appellant sought a Writ of Habeas Corpus in the Supreme Court. After the hearing of the application for the writ, but before the decision, the Privy Council ruled on 16 April 2014 on the LDA appeal. The Privy Council dismissed the appeal against the constitutionality of Section 5(2)(a) of the LDA but granted the appellant the opportunity to open investigations during the extradition proceedings as to whether the limits of the authorizations were observed if no findings had been made.

The judge denied the appellant's request for habeas corpus. The appellant appealed that decision to this Court.

On appeal, the ability of Justice Conteh to sit and hear the appeal was raised as a preliminary point.

Held:

Held: appeal dismissed, decision of trial judge affirmed per Allen, P.: 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 appellant, in accordance with the Privy Council's decision, to seek a further investigation of any allegations he 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 the matter as the appellant asks. 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.

It is axiomatic that section 8 of the Act, which requires the issue of an ATP before extradition proceedings can continue, does not provide what particulars are required to be included in an ATP. Indeed, where the ATP is issued pursuant to a request for the extradition of a person accused of an offence, it is the request which must be accompanied by a warrant of arrest; the particulars of the person whose extradition is required, the facts upon which and the law under which he is accused, together with evidence sufficient to justify the issue of a warrant.

The efficacy of the ATP was not affected by the defective Schedule of Charges. The appellant was in possession of the documents outlining the US charges and their Bahamian equivalent and could, therefore, be in no doubt as to what he faces.

A review of the evidence which the requesting state adduced in support of its request, and which was before the learned magistrate during committal proceedings; and before the learned judge on the Habeas Corpus application shows a preponderance of evidence from which one may reasonably conclude a prima facie case of the appellant's involvement in the offences for which his extradition is requested has been made out.

Having considered all of the grounds of appeal, and having reviewed the learned judge's reasons for refusal of the appellant's application for Habeas Corpus; and in light of the evidence in support of the request for extradition before both Courts, we are satisfied that the learned judge correctly concluded that there was ample evidence before the magistrate sufficient to warrant the appellants' extradition for the offences charged.

We are further satisfied that the learned judge also correctly found that the magistrate had satisfied herself that section 10(5) of the Act was complied with, and that none of the prohibitions in section 7 applied. Indeed, there was nothing before us which demonstrated that any of the prohibitions in section 7 existed in relation to this appellant.

As we find no error by the learned judge in refusing the grant of Habeas Corpus, the appeal is dismissed and the committal of the appellant to await extradition is affirmed.

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