United States v Delisser

JurisdictionCayman Islands
Judge(Douglas, Snr. Magistrate)
Judgment Date30 January 1990
CourtSummary Court (Cayman Islands)
Date30 January 1990
Summary Court

(Douglas, Snr. Magistrate)


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

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

Cases cited:

(1) Huguet, Exp., [186173] All E.R. Rep. 770; (1873), 12 Cox, C.C. 551.

(2) R. v. GuerinUNK(1888), 58 L.J.M.C. 42; 16 Cox, C.C. 596.

(3) R. v. Lee Kun, [1916] 1 K.B. 337; [191415] All E.R. Rep. 603; (1915), 11 Cr. App. R. 293, observations of Lord Reading, C.J. applied.

Legislation construed:

Criminal Procedure Code (Law 13 of 1975), s.59: The relevant terms of this section are set out at page 13, lines 111.

Summary Jurisdiction Law (Law 10 of 1975), s.22: The relevant terms of this section are set out at page 13, lines 1625.

Magistrates Courts Act 1980 (England, c;43), s.4(4): The relevant terms of this sub-section are set out at page 13, lines 3137.

Extradition-committal proceedings-absence of accused-by Summary, Jurisdiction Law, s.22, English practice and procedure applicable-committal made in absence of accused valid if previously present when evidence given with opportunity to answer it

The respondent applied for his release from prison after he had been committed for the purpose of extradition to the United States.

Pursuant to a formal request for his extradition to the United States, the respondent was arrested and committed to prison awaiting his extradition. He unsuccessfully applied for his release (these proceedings are reported at 198889 CILR 534) but had been granted bail while the matter was being heard. In contravention of the terms and conditions of his bail, he absconded with the result that his attorneys withdrew from the case and the final order of the court for his committal could only be given in his absence.

It was submitted by the Crown that (a) under Cayman law the court had jurisdiction to complete the proceedings in the absence of the respondent; (b) alternatively, English practice and procedure applied and the court should continue the proceedings unless this would cause a substantial miscarriage of justice which would not be the case since the respondents presence at that stage could not affect the outcome of the proceedings; (c) concluding the proceedings would avoid the necessity of having to start de novo if the respondent were ever to be found in the Cayman Islands again; and (d) in the interests of comity a pronouncement by the Cayman court on the merits of the case would be of great persuasive force should a request be made in any other jurisdiction for the respondents extradition.

Held, ordering the committal of the respondent:

(1) Since there was no provision in Cayman law expressly allowing the court to complete extradition proceedings in the absence of an accused, English practice and procedure applied by virtue of the Summary Jurisdiction Law, s.22. On principle and following English authority there appeared to be no requirement at law or even necessity for an accused to be present at the making of a committal order, provided that he had been present during the giving of the evidence and had every opportunity to answer it. Consequently, the respondents subsequent absence could not invalidate his committal on the evidence given nor would any miscarriage of justice occur in consequence of the making of the order (page 13, lines 1225; page 14, lines 1125).

(2) In view of the respondents absconding, it was important for practical reasons that the court should conclude the proceedings as (a) a committal now would preclude the necessity of having to start the proceedings de novo if the accused were to be found in the Cayman Islands in the future, since the law required that all the evidence should be heard by the...

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