Re Mahon
| Jurisdiction | Grenada |
| Judge | Bristol, C.J. |
| Judgment Date | 04 May 1991 |
| Neutral Citation | GD 1991 HC 12 |
| Docket Number | 2 of 1991 |
| Court | High Court (Grenada) |
| Date | 04 May 1991 |
High Court
Bristol, C.J.
2 of 1991
Mr. A Clouden for the applicant.
Miss V. Hylton, Q.C., for the Government of Trinidad & Tobago
Habeas Corpus - Application for writ of habeas corpus — Applicant ordered by magistrate to be detained in custody to await repatriation to face murder charge — Application to High Court for writ of habeas corpus — Sections. 9 & 10 (2)(a) and (b) of Fugitive Offenders Act, 1969 — Application dismissed — Guidelines for use of magistrates in future cases of this kind.
On the 17th December, 1990, the Magistrate of the Southern District made an Order under Section 9(4) of the Fugitive Offenders Act, 1969 (No.3 of 1969) committing the Applicant to custody to await his return to the Republic of Trinidad & Tobago on an alleged offence of MURDER specified in an authority to proceed dated the 25th June, 1990, given under Section 7(1) of the Fugitive Offenders Act, 1969.
On the 4th of January, 1991, the Applicant applied to the High Court pursuant to Section 9 of the Fugitive Offenders Act, 1969, for a Writ of Habeas Corpus on the basis that the Order of Committal made by the Magistrate of the Southern District on the 17th December, 1990, is unlawful in that:
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(i) The Magistrate issued the warrant of arrest under Section 8(1)(b) of the Fugitive Offenders Act without proper regard to his judicial function as stated in Section 8(1)(2) of the Fugitive Offenders Act, 1969.
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(ii) The Governor General's authority to proceed under the said warrant is therefore ultra vires and of no legal effect.
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(iii) The evidence supporting the application for the return of James Mahon did not comply with Section 13(1)(b)(c) of the said Act.
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(iv) The Government of Trinidad and Tobago did not satisfy Section 3 of the Fugitive Offenders Act in that there was no evidence that the “offence’ for which the return was sought a ‘relevant’ offence.
The objections to the Order of Committal were further amplified at the hearing of the Application for Habeas Corpus as follows:-
- The Magistrate failed to consider whether the evidence before him was sufficient to warrant the applicant's trial for the offence of MURDER as if the offence had been committed within the jurisdiction of this Court as provided by Section 9(4)(a) of the Fugitive Offenders Act, 1969. 2. The Magistrate failed to consider the Double Criminality Rule as required by Section 5(1)(c) of the Fugitive Offenders Act, 1969.
Miss Hylton who appears for the Government of the Republic of Trinidad & Tobago, submitted that the Application for a Writ of Habeas Corpus is to be made to the Court “within 15 days beginning with the day on which the order for committal is made” and in support thereof, refers to Section 10(2)(a) & (b) of the Fugitive Offenders Act, 1969.
Section 10(2)(a) & (b) reads as follows:-
“(2) A person committed to custody under the said section 9 shall not be returned under this Act —
(a) in any case, until the expiration of the period of fifteen days beginning with the day on which the order for his committal is made;
(b) if an application for habeas corpus is made in his case, so long as proceedings on that application are pending.”
The Order for Committal was made on the 17th December, 1990, and the Application for Habeas Corpus was made on the 4th January, 1991. Thus the fifteenth day beginning with the day on which the Order for Committal was made would have been the 31st December, 1990. Therefore, the Application is out of time and should now be dismissed.
Section 10(2) of the Act of 1969 states quite clearly the two (2) circumstances in which the Applicant cannot he returned to the requesting country and one of these circumstances is “if an Application for Habeas Corpus is made in this case, so long as proceedings on that Application are pending”.
I consider Section 10(2)(b) to mean that where there is an application for Habeas Corpus the Applicant cannot be returned. I construe Section 10(2)(a) to mean that a period of 15 days beginning with the day on which the Order of Committal is made, must elapse before the alleged Offender can be returned.
I am fortified in this view by a reading of Section 11(1) and Section 11(6) of the Act of 1969.
Under Section 11(1), it is the Governor General who has to order the return of the alleged Offender and this is accomplished by the issue of a warrant which has to be served on the person to be returned. The Magistrate does not order the return nor does the High Court. This is a matter for the Governor General and he cannot issue an order for the return of the alleged Offender ii Habeas Corpus proceedings are pending, nor can the Governor General make the order for the return before the time limit has expired as provided for by Section 10(2)(a) of the fugitive Offenders Act, 1969.
A Provisional Warrant was issued by the Magistrate for the arrest of the Applicant on the 15th June, 1990, which Warrant was Issued pursuant to Section 8(2)(b) of the 1969 Act, and the Governor General on the 25th June, 1990, issued an Authority to proceed under Section 8(3) of the said Act of 1969.
The Provisional Warrant and the Authority to proceed, both libel that the Applicant is accused or the crime of MURDER. The offence in the warrant from Trinidad also makes similar allegation.
Exception has been taken by the Applicant to the Provisional arrant and to the Authority to proceed.
I now will read Sections 8(2) & 8(3) of the 1969 Fugitive Offenders Act.
“8(2) A warrant of arrest under this section may be issued upon such evidence s would, in the opinion of the Magistrate, authorise the issue of a Warrant for the arrest of a person accused of committing a corresponding offence or, as the case may be, of a person alleged to be unlawfully at large after conviction of an offence, within the jurisdiction of the Magistrate.
8(3) Where a provisional warrant is issued under this section, the authority by whom it is issued shall forthwith five notice to the Governor, and transmit to him the information and evidence, or certified copies of the information and evidence, upon which it was issued; and the governor may in any case, and shall if he decides not to issue an authority to proceed in respect of the person to whom the warrant relates, by order cancel the warrant and if that person has been arrested thereunder, discharge him from custody.”
Counsel for the Applicant, in stating his objections to the provisional Warrant and the Authority to proceed, submitted that:
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(a) The Provisional Warrant was issued on 15th June, 1990, but Authority to proceed was issued on 25th June, 1990.
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(b) When the Magistrate issued the Provisional Warrant he did not have evidence before him.
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(c) The Magistrate issued the Provisional Warrant on hearsay evidence as there was no information on oath.
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(d) The Governor-General was not supplied with certified copies of the information and evidence upon which the Magistrate issued the Provisional Warrant and therefore, the Authority to Proceed is of no effect.
Before going further, it is necessary to look at the provisional Warrant and also the Authority to proceed.
The Provisional Warrant reads as follows:-
“Where as it has been shown to me the undersigned, one of the Magistrates for the Southern District of Grenada, that James Mohan also called Collins late of the Republic of Trinidad and Tobago is accused of the commission of the crime of Murder within the Jurisdiction of said Republic of Trinidad and Tobago. This is therefore to command you in Her Majesty's name forthwith to apprehend the said James Mahon also called Collins and to bring him before me or some other Magistrate sitting at this Court to he further dealt with according to law, for which this shall be your Warrant.”
The Authority to proceed reads as follows:-
“WHEREAS in pursuance of Section 7(1) of the Fugitive Offenders Act, 1969 (No. 3 of 1969) a request has been made to me, Paul Scoon, governor-General of Grenada, by the Honourable Sahadeo Basdeo, Minister of External Affairs and International Trade of the Republic of Trinidad and Tobago for the surrender of JAMES MOHAN, of Grenada also called James Mahon also called “Collins” accused of the commission of the crime of murder within the Republic of Trinidad and Tobago:
AND WHEREAS information has been communicated to me in accordance with Section 8(3) of the fugitive Offenders act, Act 3 of 1969 that the said JAMES MOHAN has been apprehended on a Provisional warrant issued by one of the Magistrates of the southern Magisterial district of Grenada:
NOW, I hereby, by this my AUTHORITY TO PROCEED issued under my hand and seal, signify to you that — such requisition has been made, and require you to proceed, provided that the provisions of the Fugitive Offenders Act, 1969, act 3 of 1969, relating to the requisition for the surrender of the said fugitive JAMES MOHAN, are in your judgment complied with.”
So it is abundantly clear that at the date when the Provisional Warrant was signed, the Governor General had not issued the Authority to Proceed.
The Fugitive Offenders Act of 1969 came into being as a result of a meeting of Commonwealth Law Ministers held at Marlborough House, London, from 26th April, 1966 to 3rd May, 1966, where arrangements at the Conference for the extradition of Fugitive fenders within the Commonwealth were reviewed in the light of constitutional changes which had taken place since the passing of the Fugitive Offenders Act, 1881. A fuller and more detailed comprehensive analysis of the discussions and the agreements arrived at that Conference are to be found in the case of The GOVERNMENT OF CANADA v. ARONSON [1989] 2 All E.R. p. 1 025 and at pp. 1039–1040.
So, therefore, the Fugitive Offenders Act, 1969, like the Fugitive Offenders Act, 1967 of the...
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