Moore and Newbold v The Superintendent of Prisons; the Attorney General and the Government of the United States of America
| Jurisdiction | Bahamas |
| Judge | Allen, P.,Conteh, J.A. |
| Judgment Date | 18 November 2015 |
| Neutral Citation | BS 2015 CA 141 |
| Docket Number | SCCrApp & CAIS No. 250 of 2014 |
| Court | Court of Appeal (Bahamas) |
| Date | 18 November 2015 |
Court of Appeal
Allen, P.; Conteh, J.A.; Adderley, J.A.
SCCrApp & CAIS No. 250 of 2014
Mr. John H. Bostwick QC with Mrs. Janet L.Bostwick-Dean and Mr. Murrio Ducille for Sheldon Moore.
Mr. Murrio Ducille for Gordon Newbold.
Mr. Franklyn Williams for the respondent.
( Delroy Boyd v. The Commissioner of Correctional Services et al JM 2004. CA 1) mentioned
Emmanuel v. Commissioner of Correctional Services and another mentioned
( Hepburn v. The Director of Correctional Services et al JM 2004. SC 43)
In The Matter of the Extradition of Frederick Nigel Bowe Supreme Court of The Bahamas No. 1375/1990 (unreported) considered
Knowles v. United States of America [2000] BHS J No. 11 mentioned
Liangsiriprasert v. Government of The United States of America [1990] 2 All E.R. 866 applied
Peter Sookoo and another v. The Attorney General of Trinidad & Tobago [1985] 1 A.C. 63 applied
Ramcharan v. Commissioner of Correctional Services and another mentioned Sheldon Moore & Gordon Newbold et al v. The Commissioner of Police et el [2014] U.K.P.C. 12 considered
Whitfield v. The Attorney-General BS 1989 20 followed
Williams v. Commissioner Correctional Services and another 73 W.I.R. 312 mentioned 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.
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 , Exparte 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 — 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 & Gordon Newbold et al v. The Commissioner of Police [2014] U.K.P.C. 12 and Whitfiled v. The Attorney General BS 1989. SC 20 — Definition of proceedings pursuant to Article 102 of the Constitution — 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 — Whether the evidence in support of the request for extradition disclosed a prima facie case against the persons whose extradition was requested — Whether the trial judge erred in finding that the affidavits exhibited were admissible in as much as they were not properly authenticated for use in proceedings before the Court pursuant to Order 41, rule 11 of the Rules of the Supreme Court where — Authentication of requesting state's documents relied — Consideration of Ramcharan v. Commissioner of Correctional Services and another; and Williams v. Commissioner of Correctional Services and another 73 W.I.R. 312 and In the Matter of the Extradition of Frederick Nigel Bowe Supreme Court of the Bahamas No. 1375. 1990— Conspiracy forged in country A to commit an offence in country B justificiable in country B — Consideration of Liangsiriprasert v. Government of the United States of America [1990] 2 All E.R. 866 and Emmanuel v. Commissioner of Correctional Services and Another (2007) 73 W.I.R. 291 — Whether the trial judge erred in finding that there was evidence from which a prima facie case of conspiracy to import dangerous drugs into the United States of America and conspiracy to possess dangerous drugs with intent to distribute them in the United States of America was made out against the appellants — Consideration of Delroy Boyd v. The Commissioner of Correctional Services et al (JM 2004. CA 1) and Hepburn v. The Director of Correctional Services et al (JM 2004 SC 43) — Legality in the authorisations pursuant to which most of the evidence against the appellant and others were obtained — Evidence obtained from wiretaps — 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 — Delays in extradition proceedings — Remittal to the magistrate — Admissibility of evidence at a preliminary inquiry — Consideration of Neil v. North Antrim Magistrates Court and another [1992] 4 All E.R. 846; R v. Bedwelty Justices ex parte Williams [1996] A.C. 225; R v. Sang 69 Cr. App. R. 282 and R v. Khan (sultan) [1996] 3 All E.R. 289 — Delays in extradition proceedings — Appeal dismissed — Finding that the trial judge was correct in refusing the grant of Habeas corpus — Section 214 of the Criminal Procedure Code — Section 178 of the Evidence Act.
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 the appellants began before the Deputy Chief Magistrate, as she then was, when they were apprehended in 2004.
Following disposal of the legal challenges to the Listening Devices Act (LDA), which were appealed to the Court of Appeal and to the Privy Council, the learned magistrate committed the appellants to await extradition.
Consequent to that committal, the appellants sought Writs of Habeas Corpus in the Supreme Court. After the hearing of the applications for the writs, 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 allowed the appellants 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 appellants' 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.
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 as he was an integral part of the panel having carriage of the appeals prior to his turning
It was incumbent on the appellants, in accordance with 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 McMillen affidavit and the exhibited affidavits comprised one document; and in as much as the McMillen affidavit was authenticated in accordance with section 14(3) of the Act, its authentication was sufficient to also authenticate the exhibited affidavits. Moreover, there is no suggestion that the McMillen affidavit and its exhibits do not originate from official sources in the US. Indeed, it is authenticated by the then Secretary of State Colin Powell and certified by Lystra Blake, the Associate Director in the Office of International Affairs, Criminal Division, United States Department of Justice. The learned judge was correct in accepting the affidavit of Ricardo Hart and that of Beckett Turnquest notwithstanding that each affidavit exhibited may not have been individually authenticated pursuant to the provisions of the Act.
The charges for which extradition is sought are laid by way of indictment in the US. Section 10(1) of the Act dictates that the proceedings to determine whether a person shall be extradited shall be heard in the same manner, as nearly as may be, as a preliminary inquiry. By our law, a preliminary inquiry is held only in relation to indictable offences, to determine whether a prima facie case is made out to commit a person for trial on indictment in the Supreme Court; there is no time...
To continue reading
Request your trial