Roberts, Curry and Moss v The Superintendent of Prisons and the Attorney General

JurisdictionBahamas
JudgeAdderley, J.A.,Conteh, J.A.
Judgment Date18 November 2015
Neutral CitationBS 2015 CA 143
Docket NumberSCCrApp & CAIS No. 265 of 2014; SCCrApp & CAIS No. 266 of 2014; SCCrApp & CAIS No. 267 of 2014
CourtCourt of Appeal (Bahamas)
Date18 November 2015

Court of Appeal

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

SCCrApp & CAIS No. 265 of 2014; SCCrApp & CAIS No. 266 of 2014; SCCrApp & CAIS No. 267 of 2014

Roberts, Curry and Moss
and
The Superintendent of Prisons and the Attorney General
Appearances:

Appellants appeared pro se

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

Alain Charron v. Govt. of the USA [2000] L.R.C. 549

Alain Charron v. Government of the United States SCCrApp. No. 16 of 1998

Berkley Hepburn v. Director of Correctional Services HCV 2138/2003

Board of Trade v. Owen [1957] A.C. 602

Delroy Boyd v. Commissioner of Correction Services SCCiv App No 27/2003

In Rey v. Government of Switzerland [1999] A.C. 54

Knowles v. Government of the United States of America and another [2006] U.K.P.C. 38

R v. Governor of Pentonville Prison, ex p Osman [1989] L.R.C. (Crim) 22

R v. Governor of Pentonville Prison, ex p Naghdi [1990] 1 All E.R. 257

R v. Bedwellty Justices ex parte Williams [1997] A.C. 225 and Neil v. North Antrim Magistrates' Court and another [1992] 4 All E.R. 846.

R v. Laing [2013] U.K.P.C. 14

R v. Governor of Brixton Prison ex parte Armah [1968] A.C. 192

R v. Secretary of State for the Home Dept ex p Kirkwood 2. All E.R., 30 HL ; Kirkwood v. UK (1984) E.C.H.R. 19

Re Farinha [1991] E.W.J. No. 465

Gordon Newbold et al v. The Commissioner of Police , [2014] U.K.P.C. 12

Sookoo v. The Attorney General of Trinidad and Tobago [1986] A.C. 63

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] 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 — Defective Authority to proceed — Whether the Authority to proceed was defective where the Minister had not certified the offences but the Minister had performed the transposition required to comply with sections 5(1)(b) and 10(5) of the Extradition Act — Whether the Authority to Proceed was defective where the Schedule of Charges attached to the Authority to Proceed failed to identify an offence of which the appellants were accused of in the United States but the appellants were aware of the details of the offences in respect of which the extradition was sought — 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 — Formulation of the Authority to proceed — Consideration of Re Farinha [1991] E.W.J. No. 465 — Inadmissible evidence — Admissibility of evidence obtained by wire intercepts — Whether the magistrate wrongly considered evidence which was legally inadmissible where at the time of the proceedings before the magistrate, the Privy Council had not yet ruled on the constitutionality of the Listening Devices Acct and the appellants had never raised the existence of any evidence which demonstrated the limits of the authorisations were not observed — 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 — Insufficiency of evidence — Whether the evidence presented could make out a prima facie case against them for the offences for which their extradition was requested where the evidence comprised evidence of police officers which was supported by the evidence of cooperating Defendants and Drug Enforcement Administration agents demonstrated the connection of the appellants' conduct to the charges for which their extradition was sought — Consideration of ( Delroy Boyd v. The Commissioner of Correctional Services et al JM 2004 CA 1) and ( Hepburn v. The Directo of Correctional Services et al JM 2004 SC 43) — Authentication of documents — Failure to disclose relevant material — Facilitation of abuse by magistrate — Whether the magistrate facilitated the abuse of the Extradition Act in not complying with its duty to produce to the Court necessary material where there was no identification of the necessary material which the appellants say ought to have been disclosed — Criminal conduct by the requesting state — Due process — Lack of record — Failure to give reasons — Whether there was an obligation to provide reasons to explain and justify a decision to commit an accused person to trial upon investigations of the alleged offence — Consideration of R v. Governor of Brixton Prison ex parte Armah [1968] A.C. 192 and Rey v. Government of Switzerland [1999] A.C. 54 — Delays in extradition proceedings — Remittal to the magistrate — Admissibility of evidence at a preliminary inquiry — Appeal dismissed — Sections 108 and 137 of the Criminal Procedure Code.

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 before the Deputy Chief Magistrate, as she then was, when they were apprehended in 2008.

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

Consequent to that committal, the appellants sought Writs 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 appellants 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 appellants' request for habeas corpus. The appellants 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:

appeals dismissed, decision of trial judge affirmed per Allen, P.: Mr. Justice Conteh was extended pursuant to Article 102(2) of the Constitution to continue in office until 11 December 2015. Article 102(2) clearly allows the extension in office of a Justice of Appeal for such period after attaining the constitutionally prescribed age for vacating office, as may be necessary, to enable him to deliver judgments or to do anything in relation to proceedings commenced before him before attaining that age. Moreover, Article 102(3) provides that nothing done by such person shall be invalid by reason only that he has attained the age at which he is required to vacate office.

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 the 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.

It is clear from the ATP, that the Minister performed the transposition required to comply with sections 5(1)(b) and 10(5) of the Extradition Act. Moreover, the learned judge was satisfied, as we are, that the appellant was in possession of the documents outlining the US charges and their Bahamian equivalent and could be in no doubt as to what they face. The learned judge consequently found there was no prejudice to the appellants. With that finding we also agree and therefore do not accede to this ground of appeal.

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

The evidence against the appellants comprises evidence of police officers which is, in turn, supported by the evidence of cooperating defendants and of DEA agents which shows the connection of the appellants' conduct to the charges in the US Indictment. In the premises, we affirm the decision of the learned judge that there was ample evidence against these appellants to establish a prima facie case against them for the offences for which their extradition is requested.

Having considered all of the grounds of appeal, and having reviewed the learned judge's reasons for refusal of the appellants' application for Habeas Corpus; and in light of the evidence in...

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