Muntslag v Commissioner of Prisons

• Jurisdiction: Trinidad & Tobago
• Judge: Pemberton, C.
• Judgment Date: 05 June 2015
• Neutral Citation: TT 2015 HC 183
• Docket Number: CV 2015-00168
• Court: High Court (Trinidad and Tobago)
• Date: 05 June 2015

High Court

Pemberton, J.

CV 2015-00168

Muntslag

and

Commissioner of Prisons

Appearances:

For the applicant: Mr. K Scotland and Ms A A Watkins-Montserin instructed by Ms A Trancoso and Mr. K Forbes

For the respondent: Mr. I B Khan S. C. leading Mr. J Singh, Mr. N Kowlessar and Mr. A S Pariagsingh instructed by Ms K Deosingh

Extradition - Application for a writ of Habeas Corpus — Whether the Requesting State fulfilled its duty of candour or whether there was a lack of disclosure — Whether the Chief Magistrate was presented with sufficient evidence to consider so as to result in a committal of the applicant for extradition to answer charges in the Requesting State — Whether the evidence against the applicant was obtained by trickery and entrapment — Whether it would have been unjust and/or oppressive to extradite the applicant.

1 Pemberton, C. Background Facts

The claimant Edmund Quincy Muntslag (EQM, is a national of Surinam, at present incarcerated at the Maximum Security Prison, Arouca, Trinidad. On or about 29th August, 2013, he was arrested and detained in Trinidad and Tobago pending extradition proceedings to the United States of America. The alleged activity which seemed to have excited the United States authorities into action was that he had conspired with other persons to traffic dangerous drugs, namely cocaine into the United States. His arrest in our jurisdiction was allegedly pursuant to an indictment which had been issued by the Grand Jury in the United States of America.

2 On October 29th 2014, the then Honourable Attorney General of Trinidad and Tobago issued an Authority to Proceed to Her Worship, The Chief Magistrate. On January 8th 2015, Chief Magistrate, Her Worship Mrs. Marcia Ayers-Casear acceded to the Requesting State's request and ordered that EQM be extradited to the United States of America on the charge of “Conspiracy to Traffic In A Dangerous Drug, Namely Cocaine”. [Authority to Proceed Oct. 29, 2013] Further to that finding, EQM has been in custody at the Maximum Security Prison awaiting his extradition. To avert this possibility, EQM approached this court through an application for a Writ of Habeas Corpus ad Subjuiciendum (“a Writ of Habeas Corpus”) not only to secure his release but also to avert the consequences of the Extradition Order.

3 EQM's application was filed on January 16, 2015, after hours. I gave directions to EQM's Attorneys-at-Law to serve the Commissioner of Prisons (COP) and to appear on the 21st January 2015 for directions for the further hearing of this matter. On that date, further directions were taken by Counsel for the parties. I must mention that during the pendency of this matter, EQM filed an amended application, containing grounds slightly different from the one for which the Directions pertained originally. The amendments to my mind did not affect the substance of EQM's application unduly and would not have posed any disadvantage to the COP. It is that amended Application that I have deliberated and decided upon in this judgment.

4 Extradition

Laws governing extradition seek to reconcile two objectives, both of concern to states recognizing the rule of law. One objective is to give effect to the principle that, in the ordinary way, persons in one state who are credibly accused of committing SERIOUS CRIMES triable in another should be surrendered to that other to answer for their alleged misdeeds. This is a principle which national authorities, INCLUDING COURTS, will seek to honour. The second objective is to protect those whose surrender is sought against such surrender in circumstances where they would, putting it very generally, suffer injustice or oppression. States ordinarily seek to provide some safeguards against the surrender of those within their borders in such circumstances. [See KNOWLES v GOVERNMENT OF THE UNITED STATES OF AMERICA [2006] UKPC 38 per Lord Bingham of Cornwall para. 12 (Emphasis mine]

5 Jurisdiction of the High Court

EQM's Submissions

Mr. Scotland's introduction to his Written Submissions correctly summarized the learning in connection with the Law on Extradition. The High Court's statutory powers were correctly identified at Section 13 of the EXTRADITION (COMMONWEALTH AND FOREIGN TERRITORIES) ACT [EXTRADITION (COMMONWEALTH AND FOREIGN TERRITORIES) ACT Chap.12:04 of THE LAWS OF THE REPUBLIC OF TRINIDAD AND TOBAGO] (the EXTRADITION ACT). Mr. Scotland sought to hang his hat on Section 13 (3) and (4) in particular. According to Counsel, the combined effect of those sections is to give the High Court the power to discharge an applicant from custody if “the accusation against him was not made in good faith, in the interest of justice, or any other sufficient cause, or if it would be unjust or oppressive to extradite the person”. Mr. Scotland concludes that there is no circumscribing or fettering of the High Court's powers.

EQM's Submissions

6 Analysis and Conclusion

This Court has alluded to the peculiar nature of extradition proceedings in Trinidad and Tobago. In the MICHAEL HARROO [ MICHAEL HARROO v. THE COMMISSIONER OF PRISONS CV 2006 - 03583 para. 15] case, this court opined that “the basic principle in dealing with extradition cases is that there must be strict compliance with the terms of the relevant Extradition Treaty and incorporated in the legislation of the Sending State. The need for this is obvious. States must act in accordance with their international obligations. This is the basic tenant in International law.”

7 My short decision on this issue is this. The Court's powers in extradition proceedings have been provided for by treaty and incorporated in this instance by way of the EXTRADITION ACT. Section 13 provides how and when these powers are to be exercised on an application for a writ of Habeas Corpus by a person who is seeking to avoid, being sent to a foreign territory. The application must be based on any of the following grounds:

The passage of time since he is alleged to have committed the extraditable offence. 2. That the accusation against him was not made in good faith, in the interest of justice; or 3. Any other sufficient cause

1 “it would having regard to all the circumstances, be unjust or oppressive” [See Section 13 of the EXTRADITION ACT op. cit] to return him. Those are the stated reasons upon which a High Court may be moved. The jurisdiction is not at large.

8 Relevant Facts and Procedural Background

In his recitation of the relevant facts, Mr. Scotland made reference to a “no case submission” which he, as Counsel made at the Extradition hearing, before the Learned Chief Magistrate. Sadly, there is no note of the submission made or no transcript which the Court could examine with respect to the same. There is therefore no evidence supplied by EQM for the court to make any assessment of the basis of his claim. May I say from the outset, that this may prove fatal to this entire matter for EQM.

9 Mr. Scotland in his submissions in reply, alluded to the fact that the COP did not file any affidavits in response. Whilst this is true, the question is, was that necessary for the determination of this case, which is essentially based on legal submissions on what was in effect, the Record of the Case? The Record of the Case is before this Court and can be examined in order for the Court to deliberate. The COP wisely did not file an affidavit in support, as there was no need to do so.

10 Nature of Habeas Corpus Proceedings

I addressed this issue extensively and reproduce my utterances in GALBARANSINGH [ ISHWAR GALBARANSINGH AND STEVE FERGUSON v. THE COMMISSIONER OF PRISONS. CV2008-02848/02849].

Habeas corpus proceedings are not appellate proceedings. The High Court decides whether the evidence was such that a reasonable magistrate would agree that a prima facie case was made out. In doing so, the Court must have regard to the Notes of Evidence, the Transcript of Proceedings and the Ruling of the Chief Magistrate. In coming to conclusion, however, the High Court must not make the error of substituting its own analysis and judgment for that of the magistrate. [id. at p. 31]

11 The Role of the Magistrate in Treating with Evidence in Extradition Proceedings

I shall first set out which I believe, now without fear of contradiction, to be the role of the Magistrate in extradition proceedings. It is as follows:

114

When a Magistrate is conducting extradition proceedings, the parties agreed that he is to be guided by the Galbraith test. This means that he must issue an order for committal once convinced that the evidence as presented would lead a reasonable jury, if properly directed, to return a guilty verdict. This test was restated in the Osman Case (which formulation I prefer in this case), where it was held that the Magistrate's duty “when considering whether to commit a person to custody to await return to a requesting country was to consider the evidence as a whole and reject any evidence he considered worthless; that the test was whether the evidence was such that a reasonable jury properly directed could convict upon it “. [115] The Magistrate's duty is not to test the evidence presented at the extradition hearing, since he is not conducting a trial. His role and function is to consider the value of the evidence in a holistic manner and reject any evidence which he considers worthless. Upon committal, the Magistrate must inform an applicant of his right to seek a writ of habeas corpus to impugn the legality of the detention. [116] Habeas corpus proceedings mandate that the High Court determine whether there was sufficient evidence as would allow any reasonable magistrate to commit. In so doing, it is stressed that the High Court is not exercising an appellate function nor is it charged with the responsibility of rehearing the case which was before the Magistrate. It is irrelevant whether or not the discretion of the...