United States v Delisser

• Jurisdiction: Cayman Islands
• Judge: (Douglas, Snr. Magistrate)
• Judgment Date: 15 December 1989
• Court: Summary Court (Cayman Islands)
• Date: 15 December 1989

Summary Court

(Douglas, Snr. Magistrate)

UNITED STATES

and

DELISSER

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

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

Cases cited:

(1) D.P.P. v. BootUNK(1973), 57 Cr. App. R. 600.

(2) R. v. Lavaudier(1881), 15 Cox, C.C. 329, distinguished.

(3) R. v. Pentonville Prison Governor, ex p. Herbage (No. 3)UNK(1986), 84 Cr. App. R. 149, followed.

(4) U.S. v. McCaffery, [1984] 1 W.L.R. 867, followed.

Legislation construed:

Extradition Act 1870 (33 & 34 Vict., c.52), s.10: The relevant terms of this section are set out at page 537, lines 10–18.

Extradition Act 1873 (34 & 35 Vict., c.60), s.3: The relevant terms of this section are set out at page 538, lines 7–14.

Penal Code (Law 12 of 1975), s.18(1):

‘When an offence is committed, each of the following persons is deemed to have taken part in committing the offence and to be guilty of the offence, and may be charged with actually committing it, that is to say-

. . . .

(b) every person who does or omits to do any act for the purpose of enabling or aiding any other person to commit the offence;

. . . .

(d) any person who counsels or procures any person to commit the offence.’

s.292: ‘Whoever conspires with another or others to commit any offence or to do any act in any part of the world which if done in the Islands would be an offence punishable with imprisonment and which is an offence in the place where it is proposed to be done is guilty of an offence. . . . ’

Extradition-committal proceedings-order of committal-conspiring to commit offence abroad under Penal Code, s.292 and prima facie evidence of participation sufficient for committal under Extradition Act 1870, s.10-evidence of presence in Cayman Islands or foreign jurisdiction irrelevant

Extradition-fugitive criminal-meaning-‘fugitive criminal’ to be interpreted under Cayman law and not law of foreign jurisdiction-not necessary that fugitive criminal should have been in jurisdiction seeking extradition

Extradition-request for extradition-form of request-formal request in general terms for extradition not limited by specifying dates for arrest

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

The respondent was charged as a principal offender with the commission of drug-related crimes in the United States or, alternatively, with conspiracy to commit those crimes. He had been arrested in the Cayman Islands on the authority of a warrant issued pursuant to a formal request for extradition made by the United States Government, which had been made some months before the respondent had arrived in the Cayman Islands and had specified a period during which it was expected that he would be in the Islands, when it should be implemented. The respondent did not arrive in the Islands until some time after this period had ended, but the warrant for his arrest was nevertheless issued on the authority of the original formal request as confirmed by a verbal request from the American authorities. On his arrest the present proceedings were initiated for his extradition to the United States, whereupon he applied for his release.

Evidence was led by the Crown to show that there had been an ongoing conspiracy between the respondent, a witness and other persons to commit the alleged offences. The Crown submitted that (a) its evidence established a prima facie case against the respondent as an accomplice, an accessory before the fact or a party to a conspiracy to commit the alleged crimes; (b) under s.18 of the Penal Code, the respondent was deemed a principal offender and the extradition proceedings were being properly conducted on that basis; and (c) the extradition request had been properly made in general terms and even though it referred to specific dates for the respondent”s arrest it was

valid and had to be honoured by the Cayman Islands outside those dates in keeping with its treaty obligations.

The respondent submitted in reply that there was no justification for his committal because (a) the evidence and surrounding circumstances fell short of the requirements of s.10 of the Extradition Act 1870 in that (i) as he had been in neither the United States nor the Cayman Islands during the period covered by the indictment, he could not be charged as a principal offender in relation to drug crimes in the United States nor could he be deemed a fugitive criminal from that country, and (ii) for the purposes of extradition, the court could only exercise jurisdiction over offences which were indictable in the Cayman Islands and conspiracy to commit a crime in the United States was not such an offence; and (b) the warrant for his arrest had been illegal and the procedure improper as they were based either on a formal extradition request which had expired or on an informal request which had not complied with the statutory requirements.

Held, refusing the application for release:

(1) The evidence had established that there would have been a prima facie case against the respondent had he been charged as an accomplice or an accessory under Cayman law and there was therefore a sufficient basis on which to found the jurisdiction under the Extradition Act 1870, s.10 to commit him to await extradition. It was no obstacle to the exercise of that jurisdiction that the respondent had been charged as a principal offender in the United States since he would also have been deemed to be so for the purposes of Cayman law by s.18 of the Penal Code and also for the purposes of...