Sobers v Director of Prisons

• Jurisdiction: Guyana
• Judge: Kennard, C.
• Judgment Date: 29 October 1999
• Neutral Citation: GY 1999 CA 15
• Docket Number: Civil Appeal No. 13 of 1998
• Court: Court of Appeal (Guyana)
• Date: 29 October 1999

Court of Appeal

Kennard, C.; Churaman, J.A.; Persaud, J.A.

Civil Appeal No. 13 of 1998

Sobers

and

Director of Prisons

Appearances:

B. de Santos, S.C. and B. Williams for the appellant

Y. Cummings, Deputy Director of Public Prosecutions, and R. George for the respondent

Extradition - Request by U.S. Government — Charges of conspiracy to import and knowingly aiding and abetting importation of cocaine into U.S.A. — Fugitive Offenders Act, 1988, s. 12 — Extradition Treaty, 1931 — Whether offences with which applicant is charged are extraditable offences under the Narcotic Drugs and Psychotropic Substances (Control) Act 1988 which replaced the Dangerous Drugs Ordinance No. 10 of 1937 to which the 1931 Treaty applied — Finding by court that cocaine fitted into the category “dangerous drugs” — Finding that the appellant could be properly extradited for the offences for which he was wanted in the U.S.A.

Kennard, C.

1 Extradition, for the purposes of the type of case with which we are concerned here may briefly be described as the surrender, by one Government, of an accused person, upon the request of another Government, to its justice. It is part of an interactive process that has developed principles, practices, understandings and arrangements that are shared and, in large measure, institutionalised within the comity of nations and quite often embodied in bilateral treaties. Yet, there is no duty to extradite. As was said in Brownlie's Principles of Public International Law (4th Edn.) (1985) p. 314:

“Apart from trial in absentia, an unsatisfactory procedure, States have to depend on the co-operation of other States, in order to obtain the surrender of suspected criminals or convicted criminals, who are, or have fled, abroad. Where this co-operation rests on a procedure of request and consent, regulated by certain general principles, the form of international judicial assistance is called extradition … Much of the material on extradition depends on questions of internal and particularly of constitutional law and the effect of treaties on municipal rules. However, some courts, in granting extradition in the absence of a treaty, have abstracted from existing treaties and municipal provisions certain general principles of international law. The two leading principles are that of double criminality, that the act charged must be criminal under the laws of both the State of refuge and the requesting State, and that of speciality, according to which the person surrendered shall be tried and punished exclusively for offences for which extradition had been requested and granted (see Re D'Emilia (1975) Int L.R. 24, Re Campora (1957) Int L.R. 24, United States v. Rausher, 119 U.S. 407 (1886), 1 More, Extradition, pp. 194 to 259 (1891), Johnson v. Browne, 205 U.S. 309 (1907), Guillera v. United States, 450 F2d 1189 (1971), cert denied 405 U.S. 989)” [emphasis supplied]

2 In this appeal, the appellant, a Guyanese citizen, is resisting his extradition to the USA where he is accused of having committed a number of offences relating to narcotics.

3 In the High Court, the appellant had sought the issue of a writ of habeas corpus which was refused by the trial judge. Those proceedings arose from the committal of the appellant by a magistrate of the Georgetown Magisterial District to custody to await extradition to the USA. The proceedings before the magistrate were as a result of a request made by the Government of the USA to the Government of Guyana, in consequence of which the Minister of Home Affairs (as he is statutorily required to do) issued and directed to the magistrate, senior magistrate Gregory Barnes, his “authority to proceed”, by which the magistrate was advised that the applicant was accused in the USA of (1) one count of conspiracy to import cocaine into the USA from a place outside thereof; (2) one count of conspiracy to distribute and possess cocaine with intent to distribute; (3) four counts of knowingly and intentionally aiding and abetting the importation of cocaine into the USA from a place outside thereof; and (4) four counts of knowingly and intentionally aiding and abetting in the possession of cocaine with intent to distribute against the federal laws of the USA.

4 Extradition in Guyana is now governed by the Fugitive Offenders Act 1988 which came into force on 1 January 1989 by virtue of Order 49 of 1988. Section 40 of that Act provides:

“On and from the commencement of this Act the applied Acts entitled the Extradition Acts 1870 to 1935 and the Fugitive Offenders Act 1881 shall cease to have effect.”

5 See also King v. Director of Public Prisons (1992) 47 W.I.R. 210 at 215, 225.

6 Section 15 of the Act sets out the procedure to be followed by a magistrate after the “authority to proceed” has been issued by the Minister of Home Affairs under s. 12(1) of the Act. For the purposes of the appeal I will now proceed to set out the relevant provisions of s. 15:

• “(2) For the purposes 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 or admit to bail, as a magistrate conducting a preliminary inquiry has.

• (3) Where an authority to proceed has been issued in respect of a person arrested as referred to in subsection (1) and the court of committal is satisfied, after hearing any evidence tendered in support of the request for the extradition of that person or on behalf of that person, that the offence to which the authority relates is an extraditable offence and is further satisfied, (a) where the person is accused of the offence that the evidence would be sufficient to warrant his trial for that offence if it had been committed within the jurisdiction of that court … the court shall, unless his committal is prohibited by any other provision of the Act, commit him to custody by warrant in Form 6 to await his extradition under this Act, but if the court is not so satisfied or if his committal is so prohibited, the court shall discharge him from custody.'

7 In R v. Government of Pentonville Prison, ex parte Osman (1988) 90 Cr. App. Rep. 281, the magistrate who heard extradition proceedings stated (see p. 300):

“It is, I would suggest, well established that the test that applied to the Fugitive Offenders Act is similar to that which applied to domestic proceedings, in other words, the same test that the magistrate has to make day in and day out in his working life. It is to weigh the evidence to see whether the evidence is such that upon it a reasonable jury properly directed could convict.” [emphasis supplied]

8 In that case Lloyd, L.J. said (also at p 300):

“The magistrate's task is the same as that of a judge on a submission of no case to answer. If there is any evidence at the conclusion of the prosecution case on which a jury, properly directed, could reasonably convict, in other words, if there is any evidence which is not inherently incredible, to establish all the elements of the offence charged then the judge should allow the case to go to the jury: see R v. Galbraith [1981] 1 W.L.R. 1039. It would be illogical if the approach of the examining magistrate in domestic committal were more favourable to the accused than the approach of the judge at the conclusion of the prosecution case; and there is no reason why the approach of the magistrate in an extradition case, or a case under the Fugitive Offenders Act 1967, should be more favourable to the accused than in a case of a domestic committal … As a working guide, we could do no better than adopt the language of the magistrate which we have already quoted, substituting “consider” for “weigh”. That test has the advantage of being the test which, as he observes, magistrates apply day in and day out in their working lives. See also Schtraks v. Government of Israel [1962] 3 W.L.R. 1013 and R v. Governor of Pentonville Prison, ex parte Elliot (1975) Crim. L.R. 516. The appellant has appealed to this court against the decision of the trial judge to refuse the issue of the writ of habeas corpus. Mr. de Santos, S.C. submitted before us that the decision of the trial judge to refuse the issue of the writ of habeas corpus was erroneous, in that there was not sufficient evidence before the magistrate which would justify the making of the extradition order. He based his arguments on two limbs, namely that there was no positive proof that the substance to which allegations relate is in fact cocaine as there was no scientific evidence relating to the substance referred to in the charges; and, secondly, that there is no evidence that the Garfield Sobers who appeared before the magistrate is the same Garfield Sobers who is wanted in the USA. As regards the first limb of Mr. de Santos's submission, I would say that even though there is no scientific evidence to prove that the substance referred to in the charges is in fact cocaine there are sufficient facts in the affidavits sworn by three of the witnesses in the USA from which the inference can be reasonably drawn that the substance is in fact cocaine. One must bear in mind that the proceeding before magistrate Barnes was not a trial. The inquiry before the magistrate was in the nature of a preliminary inquiry and all that she had to be satisfied about is whether there was sufficient evidence to justify the making of the order, that is to say whether the evidence is such that on it a reasonable jury properly directed could convict. Three deponents, referred to as “CW2”, “CW3” and “CW4”, all spoke of their activities in dealing with cocaine and of the involvement of the appellant in those activities. For instance, “CW2” stated:

“I have been involved with narcotics trafficking for several years. Based on my narcotics activities, I also know that Garfield Sobers cocaine distribution ring operated a store called Indian Head Variety Store which...