Kruger v Northward Prison (Director), Government of Switzerland and A-G

• Jurisdiction: Cayman Islands
• Judge: (Harre, C.J.)
• Judgment Date: 01 January 1996
• Court: Grand Court (Cayman Islands)
• Date: 01 January 1996

Grand Court

(Harre, C.J.)

P. KRUGER and B. KRUGER

and

NORTHWARD PRISON (DIRECTOR), GOVERNMENT OF SWITZERLAND and ATTORNEY GENERAL

A. Jones, Q.C. and S.T. McCann for the first applicant;

A. Jones, Q.C. and C.G. Quin for the second applicant;

J. Turner and Ms. L. Agard, Crown Counsel, for the first, second and third respondents.

Cases cited:

(1) -Belgium (Government) v. PostlethwaiteELRUNK, [1988] A.C. 924; [1987] 2 All E.R. 985; sub nom. R. v. Ashford Remand Centre (Governor), ex p. Postlethwaite(1987), 131 Sol. Jo. 1038, dicta of Lord Bridge of Harwich applied.

(2) -Bellencontre, Re, [1891] 2 Q.B. 122.

(3) -Chatenay v. Brazilian Submarine Tel. Co. Ltd., [1891] 1 Q.B. 79.

(4) -H v. Schering Chemicals Ltd., [1983] 1 W.L.R. 143; [1983] 1 All E.R. 849, dicta of Bingham J. applied.

(5) -Naghdi, In reWLR, [1990] 1 W.L.R. 317; sub nom. R. v. Pentonville Prison (Governor), ex p. Naghdi, [1990] 1 All E.R. 257, considered.

(6) -Nielsen, In reELR, [1984] A.C. 606; sub nom. Denmark (Govt.) v. Nielsen, [1984] 2 All E.R. 81; (1984), 79 Cr. App. R. 1.

(7) -Oskar v. Australia (Govt.), [1988] A.C. 366; [1988] 1 All E.R. 183; (1987), 87 Cr. App. R. 299, considered.

(8) -R. v. AttardUNK(1958), 43 Cr. App. R. 90.

(9) -R. v. Gloucester Prison (Governor), ex p. Miller, [1979] 1 W.L.R. 537; [1979] 2 All E.R. 1103.

(10) -R. v. Oldham JJ., ex p. Cawley, [1996] 1 All E.R. 464, observations of Simon Brown, L.J. applied.

(11) -R. v. Pentonville Prison (Governor), ex p. Herbage (No. 3)UNK(1987), 84 Cr. App. R. 149.

(12) -R. v. Pentonville Prison (Governor), ex p. Kirby, [1979] 1 W.L.R. 541n.; [1979] 2 All E.R. 1094, dicta of Croom-Johnson J. applied.

(13) -R. v. Pentonville Prison (Governor), ex p. Osman, [1990] 1 W.L.R. 277; [1989] 3 All E.R. 701; (1990), 90 Cr. App. R. 281.

(14) -Rees, In reELR, [1986] A.C. 937; (1986), 130 Sol. Jo. 408; sub nom. Rees v. Home Secy., [1986] 1 All E.R. 321; (1986), 83 Cr. App. R. 128.

(15) -Rodriguez, Re, Queen”s Bench Division, November 15th, 1994, unreported, considered.

(16) -Rouyer Guillet & Cie. v. Rouyer Guillet & Co. Ltd., [1949] 1 All E.R. 244n.; (1948), 92 Sol. Jo. 731, considered.

(17) -Tarling v. Singapore (Govt.)UNK(1978), 70 Cr. App. R. 77; [1978] Crim. L.R. 490, considered.

Legislation construed:

Evidence Law (1995 Revision) (Law 13 of 1978, revised 1995), s.23(1): The relevant terms of this sub-section are set out at page 175, lines 24–40.

s.26(1): The relevant terms of this sub-section are set out at page 176, lines 20–42.

Summary Jurisdiction Law (1995 Revision) (Law 10 of 1975, revised 1995), s.25: The relevant terms of this section are set out at page 174, lines 21–25.

Extradition Act 1989, s.1(3): The relevant terms of this sub-section are set out at page 172, lines 38–42.

s.26: The relevant terms of this section are set out at page 167, lines 27–39.

Schedule 1, para. 2: The relevant terms of this paragraph are set out at page 167, lines 14–17.

para. 6(1): ‘When a fugitive criminal is brought before the metro-politan magistrate, the metropolitan magistrate shall hear the case in the manner, and have the same jurisdiction and powers, as near as may be, as if the prisoner were brought before him charged with an indictable offence committed in England or Wales.’

para. 7(1): ‘In the case of a fugitive criminal accused of an extradition crime, if the foreign warrant authorising the arrest of such criminal is duly authenticated, and such evidence as (subject to the provisions of this Schedule) would, according to the Law of England and Wales, justify the committal for trial of the prisoner if the crime of which he is accused had been committed in England and Wales, the metropolitan magistrate shall commit him to prison, but otherwise shall order him to be discharged.’

para. 8(1): ‘If the metropolitan magistrate commits a fugitive criminal to prison, he shall inform such criminal that he will not be surrendered until after the expiration of 15 days, and that he has a right to apply for a writ of habeas corpus.’

para. 12: The relevant terms of this paragraph are set out at page 167, lines 18–22.

para. 16: ‘This Schedule, when applied by Order in Council, shall, unless it is otherwise provided by such Order, be extended to every colony in the same manner as if throughout this Schedule a reference to the colony were substituted for the United Kingdom or England and Wales, as the case may require, but with the following modifications, namely-

(b) -no warrant of the Secretary of State shall be required, and all powers vested in or acts authorised or required to be done under this Schedule by the metropolitan magistrate and the Secretary of State or either of them, in relation to the surrender of a fugitive criminal may be done by the governor of the colony alone . . .’

Extradition Order in Council (Switzerland) 1881, art. VII: The relevant terms of this article are set out at page 165, lines 23–35.

Extradition and Fugitive Offenders-committal proceedings-challenge to committal-habeas corpus proper means of challenging magistrate”s finding of prima facie case to answer-committal quashed and applicant released-judicial review inappropriate

Extradition and Fugitive Offenders-committal proceedings-oral evidence from requesting country-admissibility of oral evidence not limited to confirmation of accused”s identity

Extradition and Fugitive Offenders-committal proceedings-documents from requesting country-all written evidence supporting extradition request to be duly authenticated in accordance with extradition legislation and admissible under Cayman rules of evidence-foreign language depositions to be accompanied by translations bearing maker”s oath of accuracy

Extradition and Fugitive Offenders-committal proceedings-documents from requesting country-warrant of arrest not ‘evidence’ supporting extradition request-admissible without translation in proper form if duly authenticated in original language in accordance with extradition legislation

The applicants applied for a writ of habeas corpus to secure their release from detention pending extradition to Switzerland.

The applicants were arrested for offences allegedly committed in Switzerland arising from their business activities there. The Swiss Government, in support of its request for their extradition, adduced (a) oral evidence which was admissible under Cayman rules of evidence; (b) written statements and depositions sworn by their makers in Switzerland which could only be admitted if it were found that they were duly authenticated by the Swiss authorities in accordance with the Extradition Act 1989 and the 1881 Order in Council setting out the extradition arrangements between Switzerland and Crown territories; and (c) translations of the arrest warrant and supporting documents, which they sought to have admitted under Cayman rules of evidence.

The warrant for the applicants” arrest had been signed by judicial officers investigating the case in Berne and stamped with the Berne

Chancellery stamp. Attached to it was an apostil in English similarly signed and stamped, and sealed by the Swiss Federal Chancellery, and an unsworn translation bearing the judicial officers” stamp and the name of the firm of translators but not the actual translator. The other documents and their unsworn translations were joined in the same bundle by a cord attached to a Federal seal.

The magistrate, purporting to rely on art. VII of the Order in Council, refused to admit oral evidence for any other purpose than to identify the applicants as the persons named in the warrant of arrest, but on the basis of the sworn depositions, which he deemed to be duly authenticated and thus admissible without further proof, found that there was a case to answer. He rejected the proposition that the translations of evidence were admissible as business records but accepted their contents as reflecting the substance of the foreign language statements, committed the first applicant to prison and remanded the second applicant on bail.

The applicants submitted that (a) an applicant for a writ of habeas corpus was the established and proper means to quash their committals and secure the first applicant”s release on the basis of the magistrate”s erroneous finding of a prima facie case against them, as recognized by the 1989 Extradition Act; (b) the oral evidence which the second respondent sought to adduce was, on the proper interpretation of art. VII of the 1881 Order in Council, inadmissible, since oral evidence could only be admitted to establish the identity of the applicants; (c) due authentication was, on the natural construction of art. VII, a precondition to the admissibility not only of the warrant of arrest but also of other evidence contemplated by s.26 of and Schedule 1 to the Extradition Act 1989, including depositions and witness statements sworn in Switzerland and, since the magistrate was obliged under Schedule 1 to consider the evidence as if he were conducting domestic committal proceedings, all documents had also to comply with the rules for admissibility of evidence in the Cayman Islands; (d) the warrant of arrest, although stamped and signed by the issuing judges and sealed by the Swiss Federal Chancellery, was not duly authenticated since the accompanying translation bore only a stamp and, as there was no evidence of the identity or competence of the translator, or that it was in fact a translation, it was inadmissible; and (f) the witness statements and translations were not individually sealed as required by s.26(1)(b) of the Extradition Act 1989, and although the statements were sworn, their translations bore no sworn evidence of the translators” identity or their accuracy as translations of the original German text and so were inadmissible either under (i) the Evidence Law (1995 Revision), s.26; or (ii) the Evidence Law (1995 Revision), s.23, as ‘business records’ prepared by the...