[1] Dexter Chance [2] Gareth Mc Dowall [3] Carlos Sutherland Appellants v [1] The Superintendant of Prisons [2] Attorney General of Saint Vincent and the Grenadines Respondents [ECSC]

• Jurisdiction: St Vincent and the Grenadines
• Judge: BAPTISTE, J.A.,EDWARDS, J.A.,Justice of Appeal,Davidson Kelvin Baptiste,Janice George-Creque,Ola Mae Edwards
• Judgment Date: 31 May 2010
• Judgment citation (vLex): [2010] ECSC J0531-4
• Court: Court of Appeal (Saint Vincent)
• Docket Number: HCVAP 2009/018
• Date: 31 May 2010

[2010] ECSC J0531-4

IN THE COURT OF APPEAL

Before:

The Hon. Mde. Ola Mae Edwards Justice of Appeal

The Hon. Mde. Janice George-Creque Justice of Appeal

The Hon. Mr. Davidson Kelvin Baptiste Justice of Appeal

HCVAP 2009/018

Between:

[1] Dexter Chance

[2] Gareth Mc Dowall

[3] Carlos Sutherland

Appellants

and

[1] The Superintendant of Prisons

[2] The Attorney General of Saint Vincent and the Grenadines

Respondents

Appearances:

Mr. Alberton Richelieu and Kay Bacchus-Browne for the appellants

Mr. Colin Williams, Director of Public Prosecutions for the respondents

Civil Appeal — Extradition — Fugitive Offenders Act — Habeas Corpus Writ — whether the appellants were legally detained pursuant to the committal order made by the Chief Magistrate — whether the judge failed to appreciate the wide powers given to the High Court and the Committal Court — the role of the magistrate and judge — sections 12(4), 7 and 9 of the Fugitive Offenders Act — whether the provisions of the Act confine the powers of the magistrate to determine whether there is sufficient evidence to justify committal — whether it is unjust or oppressive to extradite the appellants — domestic law safeguards of requesting state — whether the appellants have discharged the burden that the accusation against them was not made in good faith or in the interest of justice — accomplice evidence — legitimate expectation — application of Clause 6(3) of the London Scheme —

The appellants, nationals of Saint Vincent and the Grenadines, ("Saint Vincent") are resisting extradition to the British Virgin Islands ("the BVI") where they are wanted to stand trial on a charge of importing cocaine into the Territory. On 26^th March 2009 extradition requests were made by the Governor of the BVI in respect of the appellants. Pursuant to those requests the Governor General of Saint Vincent directed the Chief Magistrate to proceed and an extradition hearing was held. The committal court heard seven witnesses and the critical evidence against the appellants was that of an alleged accomplice who was serving a prison sentence in the BVI. Subsequently the appellants were committed to prison to await return to the BVI to stand trial. The appellants applied to the High Court for Habeas Corpus but the application was refused on the grounds that the committal of the learned magistrate was based on a sufficiency of evidence and that the committal was valid. The appellants appealed this decision on the following grounds: (1) the learned trial judge misdirected herself in law when she found that the evidence was sufficient in law to justify that a prima facie case had been made out against the three appellants; (2) the learned trial judge failed to appreciate in law that in conducting its case the prosecution employed the provisions of the London Scheme and effectuated their reliance on the Scheme, it was therefore unfair for the prosecution to have recanted and submit that the London Scheme did not apply; (3) that the judge erred in law when she found that section 7(3) and (4) of the Fugitive Offenders Act had been satisfied even without the certificate from the Governor General and that the provisions of section 6 of the British (Overseas Territories) Order 2002 of the BVI was sufficient to protect the restriction on the return of the appellants.

Held: dismissing the appeal:

• 1. That there is no merit in the ground that the learned judge misdirected herself when she found that a prima facie case had been made out against all three accused. It cannot be seriously advanced that there was no evidence to justify the conclusion of the learned judge or that her conclusion was plainly wrong. It is not therefore open to this court to contradict her conclusion or to depart from it.

• 2. That the London Scheme is not a treaty and does not have the force of law in Saint Vincent. It is a non-treaty informal arrangement among member states of the Commonwealth setting out a procedure for extradition between them.

• 3. That a legitimate expectation under clause 6(3) of the London Scheme cannot be sustained as there is no reasonable basis to found a legitimate expectation; no detriment would have been or could have been suffered by the appellants and no issue of unfairness falls to be considered. Further clause 6(3) does not exist in a vaccum, rather clause 5(4) is the operating clause and 6(3) only comes into play if the requesting state and Saint Vincent make arrangements pursuant to clause 6(1) under which clause 5(4) will be replaced by 6(3) or by other provisions agreed by the countries involved.

  Attorney General of Hong Kong v Ng Yuen Shin [1983] 2 AC 629 [1983] 2 AC 629, 636 and R (Bibi) v Newham London Borough Council [2002] 1 WLR 237 at para 21 applied.

• 4. That a certificate by the Governor General under the London Scheme is not a legal requirement and even if one were required its absence would not in the circumstances lead to a conclusion that it would be unjust or oppressive to return the appellants.

• 5. Section 7(3) of the Act clearly speaks to a situation in which the person sought to be extradited has committed an offence in the requesting state before his return under the Act other than the offences referred to in paragraphs (a), (b), (c). If the person sought to be extradited has not committed any such offence, section 7(3) is not engaged. There is no evidence nor is it contended by either party that the appellants committed an offence in the BVI to bring them within the contemplation of section 7(3). In the circumstances there is no basis for the appellants to complain that there is no provision made by the law of the BVI or by arrangement within that Territory within the contemplation of section 7(3) of the Act.

• 6. That where there is a law, the law speaks and legal provision has been made by sections 19 and 20 of the Extradition Act 1989 (UK) to satisfy the requirement of section 7(3) of the Fugitive Offenders Act, therefore the argument that section 7(3) was not complied with as there was no certificate from the Governor General giving assurances required under that subsection with regards to any offence committed before the appellants' return to the BVI fails. (Per Edwards JA)

• 7. That the provisions of the Act do not confine the powers of the magistrate solely to determining whether there is sufficient evidence to justify committal. The power of a committal magistrate to commit a person to custody pursuant to section 12(4)(a) of the Act to await their return is dependent upon the magistrate being satisfied of three distinct factors: (1) the offence to which the authority to proceed relates is a relevant offence; (2) the evidence against the accused person would be sufficient to warrant his trial for the offence if it had been committed within the court's jurisdiction and (3) the person's committal is not prohibited by other provisions of the Act.

  Knowles Jr v United States of America & Anor [2006] UK PC 38 (The Bahamas) and Gibson v United States of America [2007] UK PC 52 applied.

• 8. The fact that the main evidence against the appellants is that of an alleged accomplice does not mean that the accusation against them was not made in good faith. There is no reason to believe that their extradition is either unjust or oppressive as the appellants have not provided the Committal Court or High Court with an evidential basis or factual foundation on the application for habeas corpus that it would be unjust or oppressive to return them.

  Woodcock v Government of New Zealand [2003] EWHC 2668 (Admin) [2003] EWHC 2668 (Admin) cited .

BAPTISTE, J.A.

1 Dexter Chance, Gareth Mc Dowall and Carlos Sutherland ("the appellants") appeal against an order of Monica Joseph J. [Ag.] refusing their application for habeas corpus.

Background

2 The appellants are nationals of Saint Vincent and the Grenadines ("Saint Vincent"). They resist extradition to the British Virgin Islands where they are wanted to stand trial on a charge of importing 61.21 kilograms of cocaine into that Territory. On 26^th March 2009 the Governor General of Saint Vincent issued an "authority to proceed" directed to the Chief Magistrate pursuant to three extradition requests made by the Governor of the British Virgin Islands in respect of the appellants. The warrants were executed and an extradition hearing held.

3 The committal hearing lasted for two days during which seven witnesses were heard and affidavit evidence with exhibits received. The critical evidence against the appellants was that of Chesley Balkaran an accomplice who was serving a prison sentence in Tortola, British Virgin Islands. No case submissions were made on behalf of each accused but they were overruled. A defence by way of duly authenticated affidavit evidence from each accused was then presented. The Chief Magistrate found that the three appellants were properly identified; the offence with which they were charged was a relevant offence under theFugitive Offenders Act of Saint Vincent1 ("the Fugitive Offenders Act"); the extradition was not precluded or prohibited by law; and a prima facie case was made out against all the appellants. They were accordingly committed to prison to await return to the British Virgin Islands to stand trial. The appellants applied to the High Court for habeas corpus. In refusing to grant the application the learned judge held that the committal of the learned magistrate was based on a sufficiency of evidence and that the committal was valid.

Arguments of Mr. Richelieu

4 Mr. Richelieu, learned counsel for the appellants, argued that the learned judge erred in failing to appreciate the wide powers given to both the High Court and the Committal Court and could not find that the appellants were legally detained. Mr. Richelieu contended that the learned trial judge never considered the following:

• (1) the speculative nature of the...