Re Hernandez

• Jurisdiction: Cayman Islands
• Judge: (Allen, Ag. Magistrate)
• Judgment Date: 18 February 1986
• Court: Summary Court (Cayman Islands)
• Date: 18 February 1986

Summary Court

(Allen, Ag. Magistrate)

IN THE MATTER OF HERNANDEZ and CHIROLDES

A. Smellie, Crown Counsel, and Miss S. Brooks, Crown Counsel, for the Crown;

N. W. Hill, Q. C. and A. S. McField for the applicants.

Cases cited:

(1) Harris, In re, Grand Court, January 27th, 1978, unreported.

(2) Hinchcliffe, In re, [1895] 1 Ch. 117, applied.

(3) R. v. BlakeUNK(1978), 68 Cr. App. R. 1.

(4) R. v. Brixton Prison Governor, ex p. Atkinson, [1969] 2 All E.R. 1146, applied.

Legislation construed:

Misuse of Drugs Law (Revised), s.3(1)(i)(m), as added by the Misuse of Drugs (Amendment) Law, 1985 (Law 19 of 1985), s.3(b):

Whoever without-

(i) lawful excuse . . .

. . . .

(m) has in his possession, whether lawfully or not, with intent that it be supplied, whether by himself or some other person, to another person in contravention of this subsection

any controlled drug . . . is guilty of an offence.

Extradition Act, 1870 (33 & 34 Vict., c.52), s.14:

Depositions or statements on oath, taken in a foreign state, and copies of such original depositions or statements, and foreign certificates of or judicial documents stating the fact of conviction, may, if duly authenticated, be received in evidence in proceedings under this Act.

s.15: Foreign warrants and depositions or statements on oath . . . and certificates of or judicial documents stating the fact of a convicton, shall be deemed duly authenticated for the purposes of the Act if . . . authenticated as follows:

(1) If the warrant purports to be signed by a judge, magistrate, or officer of the foreign state where the same was issued;

(2) If the depositions or statements . . . purport to be certified under the hand of a judge, magistrate, or officer of the foreign state . . . ; and

(3) If the certificate of or judicial document stating the fact of conviction purports to be certified by a judge, magistrate, or officer of the foreign state . . . ; and

if in every case the warrants, depositions, statements, copies, certificates, and judicial documents . . . are authenticated by the oath of some witness or by being sealed with the official seal of the minister of justice, or some other minister of state: And all courts shall take judicial notice of such official seal, and shall admit the documents so authenticated by it to be received in evidence without further proof.

Misuse of Drugs Act 1971 (England, c.38), s.33:

The Extradition Act 1870 shall have effect as if conspiring to commit any offence against any enactment for the time being in force relating to dangerous drugs were included in the list of crimes in Schedule 1 to that Act.

Evidence-exhibits-exhibits to affidavits-failure to certify exhibits to affidavits irregularity but court has discretion to admit uncertified exhibits

Evidence-proof of foreign law-summary of foreign statute-summary in affidavit of expert witness adequate proof and unnecessary to give entire text of statute

Extradition-extraditable offences-foreign law offences-whether foreign law offence extraditable determined as at date of extradition proceedings-offence extraditable if facts constituting offence would support charges in Cayman Islands

Extradition-extradition proceedings-validity and enforcement of treaty-court need not inquire whether extradition treaty ratified by requesting state or whether it would comply with terms of treaty concerning subsequent treatment of extradited offender

The applicants were arrested and brought before the court for the hearing of extradition proceedings which had been initiated by the United States of America.

Various documents were filed in support of the request for extradition, including a bundle of documents from which it appeared that two people bearing the same names as the applicants had been convicted of various offences in a United States court, viz. conspiracy to distribute cocaine and marijuana (Count I), possession of cocaine (Count II) and unlawful travelling in interstate commerce (Counts III and IV).

The applicants contended that they should be discharged and submitted, inter alia, that (i) the bundle of documents was not admissible as evidence in terms of the Extradition Act, 1870; (ii) there was no evidence that the applicants had been present at the trial in the United States; (iii) photographs allegedly taken of the applicants in the United States were inadmissible, for there was no evidence from the photographer, and the magistrate who had certified the affidavit to which the photographs were exhibited had not certified the photographs as well; (iv) there was no evidence that the United States had ratified the extradition treaty or that it had undertaken to adhere to its terms in the event of the applicants extradition; (v) the relevant provisions of the United States law had not been properly proved; and (vi) the offences in question were not in any case extraditable offences.

The Crown submitted that the bundle of documents was admissible and that the evidence contained therein was sufficient to warrant the applicants committal to prison pending extradition.

Held, ordering the committal of the applicants:

(1) The documents contained in the questioned bundle were duly authenticated by the certificate and beribboned seal of the Attorney General of the United States and by the certificate and beribboned seal of the Acting Secretary of State, and the indictment, finding of the jury and bench warrant were certified as correct by an officer of the state in which the conviction took place. Accordingly, the requirements of the Extradition Act, 1870, s.15 had been satisfied and the bundle of documents would be received in evidence in terms of s.14 of the Act (page 23, lines 227).

(2) Included in the bundle of documents was an affidavit in which the deponent stated that he had attended the trial of two men who bore the same names as the applicants and that he had observed their identification by a prosecution witness, and also a bench warrant which recorded that, subsequent to their conviction, the defendants had been allowed by the court to remain free on bond pending their appeal against conviction. That was sufficient to establish prima facie that two defendants who bore the same names as the applicants were present at a trial in the United States which culminated in convictions on various drugs-related charges (page 23, line 3 page 24, line 8).

(3) It was not necessary for the photographer who took the photographs of the applicants, which were included in the bundle of documents, to give evidence identifying the persons photographed as the photographs were tendered merely as evidence of a resemblance to the applicants and it was therefore unnecessary to prove by whom or when they were taken. Although the magistrate who certified the affidavits in the bundle should also have certified the photographs and his failure to do so was an irregularity, the court nevertheless had a discretion to receive uncertified exhibits in evidence. Since, in the present case, the magistrate had failed to certify the exhibits through an oversight, the court would receive them in evidence, and, once this had been done, it appeared that the applicants were the persons who had been tried and convicted in the United States (page 26, lines 916).

(4) It was not the concern of the court hearing extradition proceedings to inquire whether the state requesting the extradition of alleged offenders had ratified an extradition treaty or to consider whether or not that state was likely to comply with the terms of the treaty. Accordingly, it was unnecessary to place before the court evidence that the United...