Re Bodden

• Jurisdiction: Cayman Islands
• Judge: (Collett, C.J.)
• Judgment Date: 19 January 1989
• Court: Grand Court (Cayman Islands)
• Date: 19 January 1989

Grand Court

(Collett, C.J.)

IN THE MATTER OF BODDEN

R.D. Alberga, Q.C. and C. Quin for the applicant;

A.S. Smellie, Principal Crown Counsel, for the Crown.

Cases cited:

(1) Att.-Gen. (Hong Kong) v. Kwok-a-SingELR(1873), L.R. 5 P.C. 179; 12 Cox, C.C. 565, followed.

(2) Duvernay, Exp.(1875), 19 L.C. Jur. 248, considered.

(3) R. v. Brixton Prison Governor, ex p. Stallmann, [1912] 3 K.B. 424; [1911–13] All E.R. Rep. 385, dicta of Lord Alverstone, C.J. and Phillimore J. applied.

(4) R. v. Home Secy., ex p. Budd, [1942] 2 K.B. 14, dicta of Lord Greene, M.R. applied.

(5) Rees, In reELR, [1986] A.C. 937, sub nom. Rees v. Home Secy., [1986] 2 All E.R. 321; (1986), 83 Cr. App. R. 128, dicta of Lord Mackay applied.

(6) Searche”s caseENR(1588), 1 Leon 70; 74 E.R. 65.

(7) Wall v. R.UNK(1927), 39 C.L.R. 245, considered.

Legislation construed:

Extradition Act 1870 (33 & 34 Vict., c.52), s.7: The relevant terms of this section are set out at page 262, lines 32–39.

Habeas Corpus Act 1679 (31 Car. II, c.2), s.5: The relevant terms of this section are set out at page 265, lines 3–20.

Extradition-requisition for extradition-Governor”s order to proceed-Governor may make second order under Extradition Act 1870, s.7 based on same requisition although proceedings following first order already terminated by procedural irregularity

Extradition-extradition proceedings-bar to further proceedings-Habeas Corpus Act 1679, s.5 bar to further proceedings on same charges if defence in further proceedings identical with defence in original proceedings

The applicant applied for certiorari to bring up and quash a decision authorizing the continuance of extradition proceedings against him.

A request for the applicant”s extradition had been made by the United States Government pursuant to which the Governor issued an order to proceed and a warrant was taken out for his arrest. The applicant was arrested and brought before the Summary Court (Douglas, Senior Magistrate) for the hearing of these proceedings.

After hearing the evidence in support of the request, the court made an order committing the applicant to prison to await his extradition to the United States. The applicant then moved for a writ of habeas corpus to question the legality of that order in the Grand Court (Collett, C.J.), the return to which was quashed and the applicant freed unconditionally. These proceedings are reported at 1988–89 CILR 135. On the basis of

the same US requisition, he was re-arrested upon a fresh warrant after the issue of a new order to proceed by the Governor, both of which specified the identical charges as those specified in the first order and warrant.

A new set of proceedings began before another magistrate (White, Q.C., Ag. Magistrate) and submissions were made on the applicant”s behalf that he had no jurisdiction to hear them. After full argument the magistrate decided that he did have the jurisdiction to do so. The applicant then applied in the present proceedings for certiorari to bring up and quash that decision.

The applicant submitted that (a) under the Extradition Act 1870, s.7 the Governor could not lawfully issue a second order to proceed once proceedings started by the earlier order had been terminated unless or until a further formal requisition for his extradition had been received from the US Government; and (b) by virtue of s.5 of the Habeas Corpus Act 1679, the court”s decision to quash the return to the writ of habeas corpus and ordering his unconditional release constituted an absolute bar to any further proceedings by the US Government to secure his extradition on identical charges.

Held, dismissing the application:

(1) There was nothing in s.7 of the Extradition Act 1870 or in principle which precluded the Governor from making a second order based on the same extradition requisition merely because he had already made one such order and the proceedings pursuant to it had been terminated. Accordingly, the Governor”s second order and the warrant pursuant to it authorizing the applicant”s second arrest had been lawfully issued (page 264, lines 7–33).

(2) The acting magistrate had properly concluded that he had jurisdiction to entertain the further extradition proceedings and that s.5 of the Habeas Corpus Act 1679 constituted no bar to their continuance. Although the Act did not originally concern extradition proceedings, it was clear from the later interpretation of the section that it did not merely address itself to the question whether the applicant had been discharged from illegal custody by habeas corpus and had subsequently been re-arrested for the same offence, but required that the court also consider whether the return to the second writ of habeas corpus (or, as here, the defence to an application for certiorari) raised the same issue as had the return to the first writ. The section had in effect come to be interpreted as presenting a test for determining when res judicata should bar a second committal. In the present case, the court could reasonably assume that the identical errors of procedure that had occurred in the original proceedings would not re-occur and so it was unlikely that the return to any future writ of habeas corpus would raise the same questions as had the first. There was therefore no bar to the continuation of the proceedings and the application for certiorari to bring up and quash the decision authorizing their continuation would therefore be dismissed (page. 265, lines 26–41; page 267, lines 2–7; page 270, lines 8–13; page 270, line 29 – page 271, line 12).

COLLETT, C.J.: This was an application pursuant to leave for
an order of certiorari directed to the Summary Court before the
Hon. Ag. Magistrate Mr. White, Q.C., to bring up and quash a
decision made by him on December 9th, 1988 in the course of
25	certain extradition proceedings commenced against the applicant
at the instance of the Government of the United States. The
factual background and chronology of the case are fully set out in
the opening paragraphs of the magistrate”s decision and need not
be repeated here. Suffice it to say that this extradition request was
30	presented through diplomatic channels on August 18th, 1987 and
an order to proceed notifying the receipt of that request was
made to the Summary Court on September 14th, 1987 by the
Governor.
Thereafter the senior magistrate heard evidence in support of
35	the request on various dates in 1987 and 1988, and on April 6th,
1988 he made an order committing the applicant to prison to
await extradition to the United States. The applicant then moved
for a writ of habeas corpus to question the legality of that order in
the Grand Court and, on July 22nd, 1988, the return to the writ
40	was quashed and the applicant was set at liberty unconditionally.
The judgment which I delivered on that occasion in Cause No.

344 of 1988 clearly shows that this outcome was based upon a
procedural irregularity in the conduct of the proceedings before
the senior magistrate which had created the appearance of
unfairness in these proceedings. At no stage during the hearing of
5	that habeas corpus application was any question raised as to the
validity of the request for extradition of the applicant or as to the
adequacy of the evidence placed before the senior magistrate in
its support.
The same day that the applicant was released by order of this
10	court he was re-arrested and bailed upon a fresh warrant issued
by a magistrate after receipt of a fresh order to proceed issued
that day by the Acting Governor. No further formal request had
been received from the United States Government for the
applicant”s extradition to America. The fresh order and the fresh
15	warrant each specified the identical charges against the applicant
as those specified in the first order to proceed and the US
Government was intending to place before the Summary Court
the same depositions and other testimony as it had used in the
first set of proceedings. The Hon. Mr. White, Q.C. sat as an
20	acting magistrate of the Cayman Islands to hear this evidence.
Submissions were made to him on behalf of the applicant that he
had no jurisdiction to do so. After full argument he ruled on
December 9th, 1988 that he did have such jurisdiction and
overruled those submissions. It is to that decision that the present
25	certiorari proceedings were directed.
The exercise of jurisdiction in extradition cases pursuant to the
1972 treaty between the United States and the United Kingdom is
governed here by the provisions of the Extradition Act 1870 of
the United Kingdom which have been extended with modifications
30	to the Cayman Islands by Order-in-Council under the Act. As so
modified, s.7 of that Act reads as follows:
‘7. A requisition for the surrender of a fugitive criminal of
any foreign state, who is in or suspected of being in the
Cayman Islands, shall be made to the Governor by some
35	person recognised by the Governor as a diplomatic repre-
sentative of that

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