Stokes v Maharaj et Al

• Jurisdiction: Trinidad & Tobago
• Judge: Sinanan, J.
• Judgment Date: 26 May 1998
• Neutral Citation: TT 1998 HC 65
• Docket Number: No. 1220 of 1997
• Court: High Court (Trinidad and Tobago)
• Date: 26 May 1998

High Court

Sinanan, J.

No. 1220 of 1997

Stokes

and

Maharaj et al

Appearances:

Mr. O. Ramischand for the applicant

Mrs. M. Deen-Amorer for the First respondent

Mr. J. Walker for the Second respondent

Miss N. Aimes for the Third respondent.

Judicial review - Applicant sought judicial review of decision of Magistrate to commit him for extradition to the United Kingdom — Extradition (Commonwealth and Foreign Territories) Act 1985 considered — Whether treaty applied — Court found sufficient evidence upon which the committal of the applicant could be based — Judicial review refused.

Sinanan, J.

1 By notice of motion filed on the 11 ^th September 1997 the applicant seeks judicial review of the order/decision of His Worship Magistrate Mr. Beecham Maharaj dated the 24 ^th day of April 1997- whereby pursuant to the Extradition (Commonwealth and Foreign Territories Act), 1985 the magistrate committed the applicant George Arthur Stokes to prison to await the warrant of the Honourable attorney-general ordering the surrender of the applicant to the government of the United Kingdom to face trial on a criminal charge of conspiracy with others to evade prohibition on the importation of a controlled drug, namely cocaine, contrary to the laws of the United Kingdom. This notice of motion was filed pursuant to leave granted by the Kangaloo J on the 28 ^th day of July 1997.

2 The reliefs sought by the applicant are set out in the notice of motion as follows.

• a) An order of certiorari to remove into this Honourable court made by His Worship Magistrate Mr. Beecham Maharaj on Thursday the 24 ^th day of April, 1997, sitting as the magistrate in the Port of Spain Magistrate's Court in the county of St. George West whereby the said magistrate made an order pursuant to the Extradition (Commonwealth and Foreign Territories) Act, 1985 committing the applicant George Arthur Stokes to prison to await the warrant of the Honourable attorney-general of the Republic of Trinidad and Tobago ordering the surrender of the applicant to the government of the United Kingdom and or its representatives to face trial on a criminal charge of conspiracy with others to evade prohibition on the importation of a controlled drug, namely cocaine contrary to the laws of the United Kingdom. An ardor that the applicant be granted bail pending the determination of this matter.

• b) An order staying all further proceedings pursuant to the said order/decision of the said magistrate Mr. Beecham Maharaj, and that all consequential directions be given.

• c) Damages

• d) Costs

• e) Such or other reliefs as may be just.

3 The applicant was given leave to re-amend the statement filed in pursuance of R.S.C. order 53 rule 3(Z) on the 25 ^th day of July 1997 and the grounds upon which the reliefs are sought are:–

• a) The warrant dated the 27 ^th day of February, 1997, issued under the hand of His Warship Mr. Herbert Charles, Deputy Chief Magistrate, is a nullity and therefore null and void and of no effect, or alternatively being defective and/or irregular the same erroneously issued by and under the authority of an act which is incorrectly and/or improperly referred to in the said warrant and without any corrections or amendment thereto the learned magistrate proceeded to hear the extradition application, thereby rendering all matters, things, proceedings, orders and all other proceedings flowing or resulting or following same including the hearings and proceedings before the learned magistrate and the order made on the 20 ^th day of April, 1997, null and void and of no effect.

• b) The learned magistrate erred in law in holding and/or ruling and/or deciding that there is no requirement in law or otherwise for a valid subsisting existing treaty or arrangement governing and/or regulating extradition proceedings between the government of the United Kingdom and the government of the Republic of Trinidad and Tobago, and that the principle of reciprocity in international law, by mutual arrangement or by a treaty, and having the force and effect by municipal legislation, was unnecessary to order the surrender/extradition of the applicant.

• c) Further or alternatively the learned magistrate erred in law in holding/deciding and/or ruling that the provisions of the Extradition (Commonwealth and Foreign Territories) Act, 1985 were adequate and sufficient in law to regulate extradition of the applicant from Trinidad and Tobago to the United Kingdom.

• d) Further or alternatively the learned magistrate erred in law in ordering the surrender/extradition of the applicant without any evidence or any satisfactory evidence or assurances that the requirements of the Extradition (Commonwealth and Foreign Territories) Act, 1985, and in particular section 8 would be complied with or conformed to by the United Kingdom.

• e) The learned magistrate erred in law in holding/ruling/deciding that the requirement of reciprocity in international law and the extradition proceedings of the applicant in particular were complied with or satisfied by the provision of the Extradition (Commonwealth and Foreign Territories) Act, 1985, and the Fugitive Offenders Act, 1967 (United Kingdom).

• f) The learned magistrate erred in law in failing to appreciate and/or directing his mind and apply the articles/provisions of the Vienna Convention on the succession of States in Respect of Treaties, 1978, and/or the relevant articles/provision of the Vienna Convention on the Law of Treaties, 1969 and/or the law of Treaties generally.

• g) The learned magistrate erred in law in respect of the specialty rule and the evidence before him particularly the evidence of Andrew Dunkin Biker in which reference is made and there is exhibited sections 18 and 20 of the Extradition Act 1989 (United Kingdom), and section 18 specifically refers and is confined to (a foreign state) and not a (designated commonwealth country) referred to in section 19 of the said act. The learned magistrate therefore had no evidence before him of the applicability of the specialty rule for fugitives returned from designated commonwealth countries.

• h) The learned magistrate failed or improperly directed his mind to the relevant law and/or rules in respect of the evidence before him and in particular the evidence of conspirators, in the admissibility of tape-recorded evidence and hearsay evidence, and erroneously and/or improperly held that the evidence (illegally admitted) before him established a prima facie case against ;the applicant as charged and proceeded to order the surrender/extradition of the applicant as aforesaid.

• i) The learned magistrate failed, refused, omitted and/or neglected to rule on submissions made by attorney-at-law for and on behalf of the applicant in respect of the evidence tendered before the learned magistrate, that is, that substantial portions of the said evidence be struck out which submissions are stated and contained from page 25 to page 29 (inclusive) of the notes of evidence of the proceedings before the learned magistrate and exhibited as “G.A.S.8” to the affidavit of George Arthur Stokes sworn to on the 8 ^th day of May, 1997, and filed herein on the 9 ^th day of May, 1997, thereby abdicating his duties and responsibilities, and committed specific illegalities and/or irregularities by proceeding to find that the evidence tendered “is sufficient evidence upon which the court should caution the fugitive George Arthur Stokes” and “the court is satisfied that a prima facie case has been made out for the offences for which extradition is sought as if the offences were committed in Trinidad and Tobago.”

4 The applicant filed the following affidavits in support of his application:

5 Affidavit sworn on the 8 ^th day of May and filed on the 9 ^th May 1997

6 Affidavit sworn on the 2 ^nd July 1997 and filed on the 3 ^rd July.

7 In response there is an affidavit of Andrew Dunkin Biker sworn on the 5 ^th November and filed an the 21 ^st November 1997 and the affidavit of His Worship Beecham Maharaj sworn on the 26 ^th November 1997 and filed on even date.

8 The basic facts are that the applicant by virtue of a warrant issued on the 27 ^th February 1987 was arrested on the 28 ^th day of February 1997 at the Valley View Hotel, St. Ann's on a request by the government of the United Kingdom who sought his extradition to the United Kingdom to face, certain criminal charges in respect of the evasion of prohibition against the importation of a controlled drug namely cocaine, contrary to the law of that country.

9 The relevant authority to proceed was issued under the hand of the attorney general on the 2 ^nd March 1997 who therein confirmed the request of the United Kingdom and required the magistrate to proceed with the case in accordance with the provisions of the Extradition (Commonwealth and Foreign Territories) Act 1985(hereinafter referred to as “the 1985 act”).

10 Acting under the authority to proceed the magistrate proceeded with the extradition hearing on the 18 ^th March 1997 and determined the matter and ordered on 24 ^th day of April 1997 that the applicant be committed to prison to await the warrant of the attorney general for his surrender to the government of the United Kingdom.

11 In approaching the review of the order of the learned magistrate it is important to keep in focus that the thrust of the applicant's case in seeking to impugn the decision is on the ground of illegality and that, of course, is one of the grounds upon which judicial review can be granted. See Council of Civil Service Unions v Minister for the Civil Service [1984] 3 AER 935.

12 It appears to be agreed between attorneys inter se that grounds (b), (c), (d), (e) and (f) in the statement filed relate to what may be called the “treaty point” that is there must be a subsisting treaty between Trinidad and Tobago and the United Kingdom before extradition of a fugitive can take...