Cecil Boatswain Appellant v [1] The Suprintendent of Prisons [2] Attorney General Respondents [ECSC]

• Jurisdiction: St Vincent and the Grenadines
• Judge: GORDON, J.A.,Justice of Appeal,Chief Justice [Ag.],Michael Gordon, QC,Denys Barrow, SC
• Judgment Date: 13 November 2006
• Judgment citation (vLex): [2006] ECSC J1113-6
• Date: 13 November 2006
• Court: Court of Appeal (Saint Vincent)
• Docket Number: CIVIL APPEAL NO.6 OF 2006

[2006] ECSC J1113-6

IN THE COURT OF APPEAL

Before:

The Hon Brian Alleyne SC Chief Justice [Ag.]

The Hon. Mr. Michael Gordon, QC Justice of Appeal

The Hon. Mr. Denys Barrow, SC Justice of Appeal

CIVIL APPEAL NO.6 OF 2006

Between:

Cecil Boatswain

Appellant

and

[1] The Suprintendent of Prisons

[2] The Attorney General

Respondents

Appearances:

Mr. Arthur Williams with Mr. Richard Williams and Mr. Bertram Stapleton for the Appellant

Mr. Camillo Gonsalves Senior Crown Counsel with Mr. Colin Williams, Director of Public Prosecutions, for the Respondents

GORDON, J.A.

1 On May 11 ^th, 2006 the High Court heard an application for Habeas Corpus under the Fugitive Offenders Act, Cap 126 of the Laws of Saint Vincent and the Grenadines (hereafter 'the Act') filed on behalf of the appellant. The appellant had been committed to custody pursuant to an order made by the learned Chief Magistrate on May 4 ^th 2006 to await his return to the United States of America (USA) pursuant to a request from the Government of the USA made to the Government of Saint Vincent and the Grenadines in respect of certain alleged drug trafficking offences.

2 The learned trial Judge held that the learned Magistrate's committal was based on a sufficiency of evidence led before her and that the committal was valid and thus refused the application for Habeas Corpus. It is from that decision of the trial judge that the appellant has appealed.

3 There are eleven grounds of appeal set out in the appellant's notice of appeal which resolve themselves into the following issues:

Issues (a) and (b) will be dealt with together as 'the evidence issue', issue (c) will be referred to as 'the specialty issue' and issue (d) will be referred to as 'the chain of custody issue'.

• (a) that all of the evidence relied on by the magistrate save and except the direct evidence of Roger Burlingame was inadmissible under the provisions of the Act;

• (b) the evidence of the alleged crime in the Burlingame affidavit comprised only hearsay evidence and so should have not been admitted by the magistrate;

• (c) there was no evidence that the appellant would not be charged with any offence other than the offences in respect of which his return under the Act was requested;

• (d) that the evidence of the chain of custody of the drugs allegedly smuggled into the USA was deficient.

The evidence issue

4 Section 26 of the Act reads in part as follows:

"26. (1) In any proceedings under this Act, including proceedings on an application for habeas corpus, in respect of a person in custody thereunder-

(a) a document, duly authenticated, which purports to set out the evidence given on oath in another country, shall be admissible in evidence;…

(2) A document shall be deemed to be duly authenticated for the purposes of this section—

(a) in the case of a document purporting to set out evidence given as aforesaid, if the document purports to be certified by a judge or magistrate of the appropriate court and is the original document containing or recording that evidence, or a true copy of that document;…

And in any such case the document is authenticated either by the oath of a witness or the official seal of a Minister of the country or the Governor or other officer administering any dependency.

(3) In this section, "oath" includes affirmation or declaration; and nothing in this section shall prejudice the admission in evidence of any document which would be admissible in evidence apart from this section."

2 The evidence led before the learned magistrate comprised a single affidavit sworn to by a Roger Burlingame, an attorney at law employed as an Assistant United States Attorney in the Criminal Division of the United States Attorney's office for the Eastern District of New York, before a 'United States Magistrate Judge'. Attached to the Burlingame affidavit were a number of exhibits amongst which were 5 documents described on their faces as affidavits. Each of these documents were "signed and sworn to" before a Notary Public.

3 The foundation of the appellant's argument is that if, as he posited, the 5 exhibits referred to in the previous paragraphs were not, in and of themselves, admissible, then the Burlingame affidavit consisted almost solely of hearsay evidence and as such could not found the committal of the appellant by the learned magistrate. There are two propositions in that argument that need to be addressed, namely whether the 5 exhibits are admissible in their own right and whether, if they are not so admissible, reliance was properly placed on them by the learned magistrate.

4 As good a starting point as any is the learning to be derived from Noel Heath and another v The Government of the United States of America1, a case from the jurisdiction of Saint Christopher and Nevis, decided by this court, wherein Saunders JA, as he then was, said the following at paragraphs 15 et seq.

"As was pointed out by a majority of the Canadian Supreme Court in Canada vs. Schmidt2 an extradition hearing is not a trial. It is simply a

hearing to determine whether there is sufficient evidence of an alleged extradition crime to warrant the Government, under its treaty obligations, to surrender a fugitive to a foreign country for trial by the authorities there for an offence committed within its jurisdiction. An extradition hearing does not determine the guilt or innocence of the fugitive. The Magistrate is not required to weigh the evidence or to assess the credibility of witnesses.

"A careful reading of The Extradition Act itself would show that its drafters appreciated that the extradition proceedings could not completely mirror an ordinary preliminary inquiry into an indictable offence. How could it when the Act permits the admission of affidavit evidence? For this reason, section 9 of the Act requires the Magistrate to hear the extradition proceedings in the same manner, and have the same jurisdiction and powers, as near as may be, as if a preliminary inquiry were being conducted. The italicised words were carefully chosen and what they import is that there is a qualification to the procedure to be followed and the jurisdiction of the Magistrate to be assumed. The same must be as close as possible to that of a preliminary inquiry while nonetheless in compliance with the other sections of the Extradition Act and in particular with the provisions for the admission of duly authenticated affidavit evidence.

"The argument put forward here by counsel for the Appellants is not a novel one. It has been put forward in much the same manner in the Courts of Canada. It was argued there that similar provisions in the Canadian Extradition Act offended against Canadian Charter rights. That argument has been consistently rejected ³. In one of the cases, Re United States of America vs. Smith3, Houlden, J.A. supported the Court's reasoning with this quotation of a passage in Shearer, Extradition in International Law (1971), at pp. 154–5:

In Great Britain and other Commonwealth countries where the Imperial Extradition Act, or legislation modeled on that Act, is in force, the jurisdiction and powers of the magistrate at the hearing of a request for extradition are the same "as near as may be" as though the fugitive had been accused of an indictable offence within the ordinary jurisdiction of the magistrate. The phrase "as near as may be" clearly has reference to the sections of the Act which allow reception into evidence of authenticated depositions, warrants, certificates and other judicial documents from foreign authorities. These documents and depositions, which would not otherwise be admissible, may be produced and received into evidence even if they do not satisfy the peculiar rules of evidence by English law or the strict requirements of the English law relating to oaths."

5 Section 9 of the Extradition Act of Saint Christopher and Nevis is in pari materia with section 12 of the Act. Sub-section (1) and (2) of the Act read as follows:

"(1) A person arrested in pursuance of a warrant under section 11 shall, unless previously discharged, be brought as soon as practicable before a magistrate's court (hereinafter referred to as a "court of committal")

"(2) For the purpose of proceedings under this section a court of committal shall have the like jurisdiction and powers as nearly as may be, including the power to remand in custody or on bail, as a magistrate's court acting at a preliminary enquiry."

6 In re Espinosa4 the applicant was committed to await extradition on charges of conspiracy to possess and import marijuana into the United States of America. There was an affidavit of the Florida state attorney responsible for the prosecution of those involved in the offences. That affidavit deposed to other affidavits of admitted accomplices speaking of the applicant's role. Before the stipendiary magistrate it was contended that there was no proper certification or authentication of the affidavits of the accomplices and in addition that the affidavits of the accomplices had not been sworn before a competent authority in the United States, being sworn before a Notary Public who merely witnessed the signature of the maker of a statement. It was held by the Queen's Bench Divisional Court refusing the application for habeas corpus that the court accepted that in Florida in criminal matters a notary public accepts the oath of the maker of a statement that the contents of the statement are true. The court further held that section 15 (2) of the Extradition Act 1870 provides that to be duly authenticated the certification of the affidavit of the Florida state attorney must be by a judge, magistrate or officer of the foreign state. No formal incantation is necessary. It was clear from the affidavit of the Florida state attorney that he had seen the original affidavits of the accomplices. Copies of those affidavits had been properly certified and...