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REPUBLIC OF TRINIDAD AND TOBAGO

IN THE COURT OF APPEAL

Civil Appeal No. 108 of 2009

BETWEEN

STEVE FERGUSON

AND

ISHWAR GALBARANSINGH

Appellants

AND

THE COMMISSIONER OF PRISONS

Respondent

PANEL: H. STOLLMEYER, JA

R. NARINE, JA

G. SMITH, JA

APPEARANCES: Mr. G. Robertson Q.C. and Ms. H. Singh for 1st Appellant.

Mr. E. Fitzgerald Q.C. and Ms. H. Singh for 2nd

Appellant.

Mr. J. Lewis Q.C., Mr. D. Mendes, S.C., Mr. D. West, Mr. T.

Alphonso, Mr. M. Quanima and Ms. R. Tang Pack for the

Respondent.

DATE DELIVERED: 3rd

May, 2010

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INTRODUCTION:

1. The Government of the United States of America (the U.S.A.) has requested the

extradition of the appellants from Trinidad and Tobago (T&T) to the U.S.A.. Following upon

this request, extradition proceedings were heard and determined by the Chief Magistrate who

committed the appellants to custody to await their return to the U.S.A.

The appellants then exercised their statutory right to apply to the High Court for writs of habeas

corpus to challenge their extradition.1 Pemberton J. heard and dismissed the appellants’

application for habeas corpus.

The appellants now exercise their statutory right of appeal from the dismissal of the habeas

corpus application.2

Their appeal is dismissed for the reasons which follow.

The Issues on Appeal

2. I will deal with the issues raised on this appeal in two categories namely:

(A) Preliminary Issues

(B) Substantive Issues

(A) There are two Preliminary Issues, they are:

3. (i) Whether the Court will allow the appellants to introduce fresh evidence

on the appeal

1 See section 13 of the Extradition Act Ch 12:04 2 See section 15 of the Extradition Act

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(ii) Whether the appellants will be allowed to raise any issue of forum

conveniens, they having abandoned the same before Pemberton J.

(B) Substantive Issues:

4. As for the substantive issues I note that the appellants suggested 10 issues in their Notice

of Appeal. In their final written skeleton arguments they indicated that they were only pursuing

7 of these.3 For convenience, I will merge these into four issues as follows:

(i) Whether the dual criminality test is satisfied.4

(ii) Whether there was sufficient prima facie evidence of the crimes of which

the appellants are accused to allow their extradition.5

(iii) Whether it is unjust or oppressive to extradite the appellants.6

(iv) Whether habeas corpus proceedings are available to persons like the

appellants, who had been granted bail before the application for habeas

corpus.7

FINDINGS:

5. I find that:

(A) On the preliminary issues:

3 See their Amended Skeleton Arguments filed 17th December 2009 at page 27 4 See their Amended Skeleton Arguments filed 17th December 2009 Ground 3 at page 28 5 See their Amended Skeleton Arguments filed 17th December 2009 Ground 5, 5a and 5b at pages 28&29 6 See their Amended Skeleton Arguments filed 17th December 2009 Grounds 6A, 6B, 7,9 at pages 29&30 7 See their Amended Skeleton Arguments filed 17th December 2009 Ground 10 at pages 30 and 31

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(i) I will not admit the fresh evidence (However, I note and will discuss later

at paragraphs 77 and 95 below that in any event, the fresh evidence would

have made no difference to my findings on any of the issues raised).

(ii) I will allow the issue of forum to be raised, but only for a limited purpose.

(B) On the substantive issues:

(i) The dual criminality test is satisfied.

(ii) There is sufficient prima facie evidence of the crimes alleged to allow the

extradition of the appellants.

(iii) It is not unjust or oppressive to extradite the appellants.

(iv) Habeas corpus proceedings are available to persons like the appellants

who had been granted bail before the application for habeas corpus.

THE RELEVANT FACTS:

6. The appellants are high profile businessmen in T & T. As a result this case has attracted

a lot of publicity.

In the early 1990’s, the Government of T & T proceeded with the construction of a new airport

terminal. This construction is popularly referred to as the Piarco Airport Development Project

(the Project). Two local companies were given overall responsibility to oversee the project.

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These companies were the National Insurance Property Development Company Ltd. (NIPDEC)

and the Airports Authority of Trinidad and Tobago (AATT). The Government, NIPDEC and the

AATT enlisted the assistance of the appellants in the Project.

The Project itself was broken down into 13 construction packages numbered C.P.1 to C.P. 13.

7. In March 2002 the appellants and other high profile individuals were charged in T&T

with corrupt practices in and about the Project. (Piarco No. 1 case). In May 2004 the appellants

and others were charged with further corrupt practices in and about the Project (Piarco No. 2

case). Committal proceedings have begun in respect of both the Piarco No.1 and Piarco No.2

cases. On the 7th January, 2008 the appellants and others were committed to stand trial in the

High Court in the Piarco No.1 case. The committal proceedings in the Piarco No.2 case are

continuing.

8. On the 4th May 2006 a Grand Jury in Florida, U.S.A., returned an indictment in its final

form against the appellants and others. This indictment related to corrupt practices in and about

two of the construction packages for the Project namely, C.P.9 and C.P.13. C.P.9 was for the

building enclosure and interior construction of the Airport. C.P.13 was for miscellaneous

specialty equipment such as jetways, elevators, escalators, security systems, x-ray machines,

loading bridges and a public address system. The D.P.P. withdrew the T&T charges against the

appellants in respect of allegations concerning C.P.9 and C.P.13 well before the commencement

of the instant habeas corpus proceedings.8 However, other charges are still pending against the

appellants in the local courts in relation to other aspects of the Project.

8 See the Notice of Discontinuance dated 13th November 2006 Re C.P.13 and see the Notice of Discontinuance dated 9th January 2007 Re C.P.9.

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9. In late 2006, several of the other persons charged in the U.S.A. pleaded guilty to the

charges brought against them and were sentenced to varying terms of imprisonment in the

U.S.A.

10. Pursuant to a request for the extradition of the appellants from the government of the

U.S.A., the Attorney General of T&T issued the Authority to Proceed (A.T.P.) on 20th July 2006.

The A.T.P. signifies to a Magistrate that he may proceed with an extradition hearing.9 This

A.T.P. was supported by a Record of Case (R.O.C.) dated 10th July 2006 and a Supplementary

Record of Case (S.R.O.C.) dated 6th December 2006.10 (I will refer extensively to the R.O.C.

and S.R.O.C. later in this judgment). On the 20th July 2006 the Chief Magistrate issued a

warrant for the arrest11 of the appellants and granted them bail before proceeding with the

hearing of the extradition proceedings.

11. Before the commencement of the extradition proceedings the appellants sought to

challenge the A.T.P. by way of judicial review proceedings. Bereaux J. dismissed these pro-

ceedings.12 The Court of Appeal upheld the dismissal of the proceedings.13 The appellants

appealed the decision of the Court of Appeal to the Privy Council but subsequently abandoned

this.

9 See section 9(3) of the Extradition Act Ch 12:04 10 See section 9 of the Extradition Act Ch 12:04 11 See section 10 of the Extradition Act Ch 12:04 12 See Cv 2006-2959 13 See Civil Appeal 60 of 2007

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12. The extradition proceedings finally commenced before the Chief Magistrate on the 25th

February 2008. After many hearings and the consideration of voluminous documents, the Chief

Magistrate on 14th July 2008 committed the appellants into custody to await the decision of the

Attorney General as to their surrender to the U.S.A..14 On the very same day the appellants

obtained bail from a judge of the High Court. They are still on bail.

13. The appellants applied for Habeas Corpus against the Commissioner of Prisons (the

Respondent) on the 24th July 2008. On the 6th May 2009, Pemberton J., in a judgment of some

82 pages dismissed the application for Habeas Corpus.

14. On the 8th May 2009, the appellants filed a Notice of Appeal from the decision of

Pemberton J.

14 See section 12 of the Extradition Act Ch 12:04

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ANALYSIS:

A: THE PRELIMINARY ISSUES:

(i) I will not admit fresh evidence on this appeal

15. There are three reasons why I will not admit fresh evidence on this appeal, they are:

Firstly, the appellants have not shown that the fresh evidence subverts the decision of

Pemberton J.

Secondly, the appellants have failed to advance any reason why they did not lead this

evidence at the hearing before Pemberton J.

Thirdly, the fresh evidence will raise issues of fact which ought to have been ventilated at

the hearing before Pemberton J., and not in the Court of Appeal.

16. The appellants filed an application to admit fresh evidence on this appeal. The

application was argued on the hearing of the appeal. The appellants sought to admit the fresh

evidence by way of affidavit on the issue of whether it would be unjust or oppressive to order

their extradition. The fresh evidence expanded upon the hardships to which the appellants have

been exposed as a result of the T & T criminal proceedings. The fresh evidence also contained

the views of alleged “experts” on the justice system of the USA and purported to identify

hardships that the appellants would encounter if they were extradited to the USA for trial. As I

stated above, I will not admit this fresh evidence on this appeal for the following three reasons:

17. Firstly, Part 64.17(2) of the Civil Proceedings Rules (C.P.R.) prohibits the Court of

Appeal from admitting fresh evidence “except on special grounds.”

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The concept of “special grounds” has been judicially defined since the decision in Ladd v

Marshall [1954] 1 WLR 1489 (and see the 2007 Civil Procedure (White Book) Vol.1 52.11.2).

The special grounds are (1) the evidence could not be obtained with reasonable diligence for use

at the trial (2) the evidence must be such that, if given, it would probably have an important

influence on the result of the case (3) the evidence is such as is apparently credible though not

incontrovertible.

However, extradition proceedings are sui generis; they are the creature of statute.15 The usual

rules of practice and procedure do not always apply to extradition proceedings.16 It may be

arguable that the tests in Ladd v Marshall (above) as to the grounds for admitting fresh evidence

do not apply to habeas corpus proceedings in extradition matters.

18. This issue was recently addressed in the case Ignaoua v Milan [2008] (All ER 324) where

Greene L.J. opined at paragraph 24 “one does not need to regard the principles set out in Ladd v

Marshall…. as being directly applicable in order to recognize that whether one is using the CPR

… procedure or applying the Divisional Court’s approach to habeas corpus applications, the

Court should be reluctant to receive fresh evidence which could with reasonable diligence have

been put before the Divisional Court … the threshold for habeas corpus will only be passed

where there is some development which subverts the basis for the decision, which seems to

emphasize the need normally not merely for fresh evidence, in the Ladd v Marshall sense, but for

some event to have occurred since the appeal decision.”

15 See U.S.A v Kwok 2001 SCC 18 (can L11) especially paragraph 47 16 See e.g. the admissibility of evidence in section 9(2) and 19A of the Extradition Act discussed below at paragraph 49

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19. I agree with this statement. The habeas corpus hearing in an extradition matter is a test to

the legality of a detention and not a full scale trial.17 A fortiori, an appeal from a habeas corpus

decision is a further test of the legality of that same decision. To prevent abuse and to encourage

the necessary expedition18 of the proceedings, an applicant ought to put his full case forward at

the High Court and should not be allowed to lead fresh evidence on Appeal unless there is some

development which subverts the basis of the High Court decision.

20. In the present case the fresh evidence which the appellants want to lead falls far short of

new matter which subverts the basis of the High Court decision. It consists of “facts” which

have been in existence all along but which it is only now felt to be relevant, even after the High

Court hearing. I will not allow this evidence to be led on appeal.

21. The second reason why I will not allow fresh evidence to be led on this appeal is because

the appellants have failed to advance any reason why they did not lead this evidence at the

hearing before Pemberton J.

Even assuming that the Ignaoua test is not applicable to this case (viz. whether there is new

matter which subverts the basis of the High Court decision), the appellants have failed to satisfy

the test of admissibility in the Ladd v Marshall sense (see paragraph 17 above). They have not

shown any special ground why this evidence should be admitted on Appeal. They have not even

given any explanation in either the application or in the affidavits as to if, or whether this

evidence could not have been obtained with reasonable diligence for use at the High Court

hearing. The appellants failed to meet the first requirement in Ladd v Marshall above.

17 See Generally Ex Parte Schtraks (1964) A.C. 556 at page 585 18 As to the expedition expected in extradition proceedings see U.S.A. v Yang 2001 Can L11 20937 at paragraph 47 and U.S.A. v Anderson 2007 ONCA 84 paragraph 42

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22. The third reason why I will not admit fresh evidence on this Appeal is because it will

raise issues of fact which ought properly to have been ventilated at the hearing before Pemberton

J..

The appellants are trying to lead fresh evidence on the issue as to whether it is unjust or

oppressive to extradite them. The issue of whether it would be unjust or oppressive to extradite

the Appellants is a question of fact. On an appeal, the question of whether or not there was

material before the High Court on which it could come to its conclusion is a question of law.19

Pemberton J. has already dealt with this issue in the High Court and concluded on the facts

before her that it was not unjust or oppressive to extradite the appellants. I am now being asked

to review that decision.20 If I were to allow fresh evidence it would re-open her decision of fact.

The case would have to be remitted to the High Court for hearing. Alternatively, this Court of

Appeal would have to embark on an in appropriate fact finding exercise when in reality we ought

only to be reviewing the findings of Pemberton J. as a matter of law. In any event there would

be an inordinate delay and a costly exercise with an uncertain result. The situation is

exacerbated by the fact that the Appellants have not advanced any reason as to why this evidence

was not put before Pemberton J.. They have advanced no valid reason for me to exercise my

discretion to take the highly unusual course of action which would ensue from admitting fresh

evidence.

This is not a theoretical argument since the respondents have settled affidavits in response to the

fresh evidence and the appellants have also settled affidavits in reply to the respondent’s

affidavits. If this application were to succeed there would be a new round of litigation for no

justifiable reason.

19 See Ex Parte Narang [1978] A.C. 247 at pg 272G – 273A 20 See note 17 above

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23. The appellants sought to argue that the fresh evidence should be admitted on the basis of

the much lower threshold of “the interests of justice”. They base this upon a statement of

Sharma C. J. in The Commissioner of Prisons v Warris Civ. App. 119 of 2004 where at

paragraph 95 he made a general observation that the Court of Appeal “has a residual discretion to

admit fresh evidence if it is necessary or expedient in the interests of justice, as noted in the case

of Winston Solomon v The State 57 WIR 432.”

I disagree with the appellants’ argument for the following two reasons.

Firstly, the expression “in the interests of justice” is vague and does not negate nor contradict the

tests in Ignaoua and Ladd v Marshall (see paragraphs 17-19 above). The interests of justice in

extradition proceedings, which are sui generis, necessitates a more stringent test as set out in

Ignaoua.

Secondly, in so far as the applicability of the interests of justice test is based on the case Winston

Solomon v The State, it is not applicable to a habeas corpus application in extradition

proceedings.

The Winston Solomon case was a criminal appeal where section 47 of the Supreme Court of

Judicature Act Ch 4:01 was being considered. Section 47 gives the Court of Appeal the power,

in the case of an appeal in a criminal cause or matter, to receive fresh evidence if it is necessary

or expedient in the interests of justice. However, section 47 is to be read in the light of section

42 which defines an ‘appeal’ as an appeal by a person convicted on indictment. The power to

receive fresh evidence in the interests of justice under section 47 is only in relation to an appeal

of a person convicted on indictment. It does not apply to an appeal in a habeas corpus

application in extradition proceedings. In so far as the interests of justice test was thought to be

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applicable to habeas corpus applications in extradition proceedings, it was based on a

misapplication of the principle in the Winston Solomon case.

24. In so far as the Appellants seek to admit the fresh evidence simply on the basis of “the

interests of justice”; their application is misconceived.

25. The application to admit fresh evidence on appeal does not pass either of the tests in

Ignaoua or Ladd v Marshall as stated above. Further, it will raise issues which ought to have

been ventilated in the hearing before Pemberton J. and not upon the hearing of this Appeal. For

these reasons I do not allow the fresh evidence to be admitted on this Appeal.

(ii) I will allow the appellants to raise the issue of forum:

26. Before embarking on this issue I point out that it is important to note how the issue of

forum is being raised on this Appeal. The issue of forum is not being raised as an independent or

open ended argument. The issue of forum is only being argued as part of the argument that it is

unjust or oppressive to extradite the appellants.21 I will show the significance of this point in

paragraph 30 below.

27. The respondents argue forcefully that the issue of forum should not be entertained by the

Court of Appeal because it was expressly abandoned in the High Court proceedings before

Pemberton J.

21 See the Amended Skeleton Arguments of the appellants filed 17th December 2009 at page 30 paragraph 8

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The Respondents refer to a letter from the current attorneys of the appellants dated 10th

September, 200922 in which the Attorneys state unequivocally that “During the habeas corpus

proceedings before Madame Justice Pemberton, the appellants decided not to pursue the forum

issue which was one of the grounds in their application,…”

The Respondents refer to the decision in Ex Parte Al-Mehdawi [1990] 1AC 876 (H.L.) where the

House of Lords in an extradition matter decided that a litigant who had been deprived of the

opportunity of having his case heard because of the default of his advisers had no ground of

complaint that he had been the victim of procedural impropriety or that natural justice had been

denied to him.

The Respondents argue that this rationale would apply more forcefully in this case since a

conscious decision was made to abandon (or not pursue) an argument of forum.

28. The Respondents also argue that to raise this argument on Appeal would be an abuse of

process for the following two reasons.

Firstly, it is an abuse of process to raise matters which could and should have been raised before

another forum. A fortiori, where there was a conscious decision to abandon a point and then

later raise it. This principle is equally applicable in habeas corpus proceedings. (See Ex Parte

Tarling [1979] 1 W.L.R. 1417 (D.C.)

Secondly, there may be some factual disputes about the issue of forum which ought to have been

resolved at the High Court level. To attempt to ventilate these disputes on appeal would be an

abuse of process. Further, to raise these new issues could only result, at best, in the Court of

Appeal referring them back to the High Court for determination, this would result in an indefinite

delay in the hearing of this Appeal and is further proof of the abuse of process.

22 See Document 13 of Vol. 2 of the Appellants’ core bundles

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29. As forceful as these arguments may be, I will allow the issue of forum to be raised for the

following two reasons.

30. Firstly, as I mentioned at paragraph 26 above, the issue of forum is only being pursued in

support of the argument that it is unjust or oppressive to extradite the Appellants. The argument

of “unjust or oppressive” had been vigorously pursued before Pemberton J., and is now properly

before the Court of Appeal. Even though this specific argument was “not pursued” before

Pemberton J., the general argument is still alive and this is one aspect of it. Further, having

decided to exclude the fresh evidence on this issue, there is no real argument that new factual

issues will arise. This issue will be decided on the very same evidence that was before

Pemberton J., so there is no real argument of abuse of process.

31. Secondly, the Appellant Steve Ferguson was not represented by attorneys at the habeas

corpus hearing before Pemberton J.. His decision to abandon the argument of forum in support

of the ground of “unjust or oppressive” was based on his “understanding” of the law. To hold a

lay person to this abandonment based upon his understanding of a legal point which is fairly

technical would, on these facts, be harsh, especially since the argument can proceed on the same

material that was before Pemberton J.. This situation can be distinguished from the Al Mehdawi

case (op cit paragraph 27) where the House of Lords sought to fix a litigant who was represented

by Attorneys with the course of conduct adopted by those Attorneys.

Since the arguments for both appellants are the same, to allow Steve Ferguson to raise the

argument would necessarily allow the other appellant to raise it as well.

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B. THE SUBSTANTIVE ISSUES

(i) The dual criminality test is satisfied:

32. The dual criminality test is a requirement that an offence for which extradition is sought

is both an offence in the requesting state (the U.S.A. in the present case) and the state from

which extradition is sought (T & T in the present case). This dual criminality test is required by

section 6(1) (b) of the Extradition Act.

The dual criminality test is satisfied in this case because the conduct of the appellants as seen in

the R.O.C. and S.R.O.C. supports the allegations of the offences of which the appellants are

accused.

Before going on to discuss this issue I must make three observations about the dual-criminality

test.

Firstly, there must be an accusation of or a conviction for an offence in the requesting state. In

the present case the Appellants have not been convicted of any offences in the U.S.A.. This is an

“accusation” case. In an accusation case the Magistrate or judge hearing the extradition matter

only needs to be satisfied that the person/s brought before him is/are accused of an extradition

crime in the requesting state; “he is not required to satisfy himself that the accusation is well

founded. Accordingly he will ordinarily need to look no further than the allegations in the

indictment and the supporting documentation.” (See Al Fawwaz v Governor of Brixton Prison

[2002] A.C. 556 (H.L.) at paragraphs 99 and 100.)

Secondly, what matters most in respect of dual criminality is that the conduct that the requesting

state (the U.S.A.) alleges, is also an offence against the laws of the state from which extradition

is sought (T&T). This is known as the conduct test. The similarity or dual parity of the actual

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offences (the offence test) is no longer accepted as applicable, especially in states which contain

provisions similar to section 6(1)(b) of the Extradition Act of T & T.23

Thirdly, the conduct that is relevant is the conduct as described in the documents constituting the

request for extradition, which in this case includes the A.T.P., the R.O.C. and the S.R.O.C.24

33. In the present matter, the appellants take issue with the criminality of the offences in

T & T as opposed to the criminality in the U.S.A..25 I will now set out in some detail the T & T

charges (see paragraphs 34 and 35 below) and the conduct in the R.O.C. and S.R.O.C. which it is

alleged amounts to offences in T & T (see paragraphs 36 to 39 below).

34. The charges against the Appellants are in three categories.

(a) Conspiracy to defraud

(b) Conspiracy to engage in money laundering contrary to the proceeds of Crime Act 2000

(c) Money laundering contrary to the proceeds of Crime Act 2000.

Conspiracy to defraud

35. With respect to (a), Conspiracy to defraud, the charges allege that the appellants and

others conspired to defraud the AATT by

(i) Dishonestly manipulating the bid process for the construction packages C.P.9 and

C.P.13

23 See Norris v Government of the U.S.A. and other [2008] 2 W.L.R. 673 (H.L.) at paragraphs 65 et seq especially paragraphs 72, 73 and 91 24 See Al Fawwaz v Governor of Brixton Prisons (op cit) and Norris op cit at paragraph 91 25 See ground 5 of the appellants’ Amended Skeleton Arguments and see paragraphs 42 to 61 of the same.

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(ii) Falsifying documents and stamps

(iii) Dishonestly obtaining, transferring, concealing and converting monies paid by the

AATT

36. The conduct of the appellants and others which supports the allegations of conspiracy to

defraud is contained in the R.O.C. and the S.R.O.C.. The more material aspects of this conduct

are as follows:

With respect to (i) dishonestly manipulating the bid process for C.P.9 and C.P.13, the R.O.C. and

S.R.O.C. allege the following conduct.

(1) The appellants and their nominees conspired to provide fraudulent and overpriced

bids for C.P.9 and C.P.13 purportedly from a Portuguese firm known as Soares

Da Costa S.A. (SDC).26

(2) In a purportedly open and competitive bidding process, the appellants used their

position of power and influence to corruptly have Messrs Birk-Hillman, appointed

as Consultants/Managers of the Project.27

(3) In return for this appointment Birk-Hillman paid sizeable kickbacks to the

appellants and their nominees.28

(4) In further return for this appointment, Birk-Hillman ensured that the appellants

and their nominees got contracts for the Project at over inflated prices.

Specifically, construction packages C.P.9 and C.P.13.29

26 See the R.O.C. paragraphs 69-90, the S.R.O.C. paragraphs 20-23, 25-30 27 See the R.O.C. paragraphs 57, 58, 61-67 the S.R.O.C. paragraph 11 28 See the R.O.C. paragraphs 67, 98-100 the S.R.O.C. paragraphs 10, 12 29 See the R.O.C. paragraphs 77, 87, 89 the S.R.O.C. paragraphs 15, 16, 23, 27, 29

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(5) Birk-Hillman wrongly supplied the appellants and their nominees with

confidential information from the AATT and NIPDEC. This gave the appellants

and their nominees a substantial advantage in the tendering process.30

(6) Documents seized by the U.S.A. authorities allege that the conspirators knew and

conspired for Birk-Hillman to be appointed as consultant/managers for the

Project; this was so even while a competitor, Scott Associates Architects, were

still encouraged to bid for the same appointment.31

(7) In pursuit of the agreement to dishonestly manipulate the bid process, the

appellant Steve Ferguson on behalf of Maritime Financial Group submitted a

tender bond to be included in SDC’s frandulent bid for C.P.13 and Calmaquip (a

firm competing in the bid process).

(a Bought two self-inking rubber stamps bearing the name and

insignia of SDC.

(b Fraudulently placed these stamps on bid documents which

purported to emanate from SDC (a competitor in the bid

process).32

With respect to (ii), falsifying documents and stamps, the R.O.C. and S.R.O.C. allege that in an

attempt to cover up the wrongdoing, and to further defraud the AATT the appellant Steve

Ferguson was responsible for the creation of false documentation concerning the Project after an

investigation into the Project had been initiated in T & T.33

30 See the R.OC. paragraphs 69-90, 91-117 the S.R.O.C. paragraphs 16, 21,22 31 See the R.O.C. paragraphs 62-66 32 See the R.O.C. paragraphs 80-85, the S.R.O.C. paragraphs 20 and 25 33 See the SROC paragraph 14

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With respect to (iii) Dishonestly obtaining, transferring, concealing and converting monies paid

by the AATT, the R.O.C. and S.R.O.C. set out a series of complex money transfers, to accounts

in foreign Banks for the benefit of the appellants, their nominees and other co-conspirators.

Some of these transfers were made into secret offshore accounts and in the name of shell

companies or other nominees of the Appellants and their co-conspirators. The purpose of these

transfers was to conceal, disguise or launder the excessive profiteering and kickbacks from the

Project and/or to put these monies out of the reach of the AATT.34

Conspiracy to engage in money laundering:

37. With respect to (b) Conspiracy to engage in money laundering contrary to the Proceeds of

Crime Act 2000, there are three charges that the appellants and others conspired to convert,

transfer or dispose of property which represents the proceeds of crime for the purpose of

avoiding a prosecution for those crimes.

The conduct in support of these allegations is similar to that mentioned in paragraph 36 above.

Money laundering:

38. With respect to (c) Money Laundering Charges, there are 78 charges against the appellant

Steve Ferguson and 9 charges against the Appellant Ishwar Galbaransingh. They relate to the

specific transfers of money in furtherance of the conspiratorial acts alleged in paragraph 36

above. The conduct in support of these allegations is similar to that mentioned in paragraph 36.

34 See the R.O.C. paragraph 121-181, the S.R.O.C. paragraphs 13 and 30

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39. There is ample prima facie evidence in the R.O.C. and S.R.O.C. to satisfy the

dual-criminality test.

Bid-rigging:

40. The appellants argue that the offences alleged in the ATP are not offences contrary to the

laws of T & T. This is because they claim that the offences only amount to simple bid-rigging or

price fixing which are not offences against the laws of T & T. In support of this contention they

rely heavily on the Norris Case (op cit at note 23) and Jones v North (1875) LR 19 Eq 426.

This argument is misconceived for the following two reasons.

41. Firstly, even though simple bid-rigging/price fixing is not an offence at common law, if

there are aggravating features like fraud, misrepresentation, deception and bribery, then the

conspiracy containing these aggravating features is an offence at common law.35

In the present matter the conspiracy to defraud the AATT, which is the main charge against the

appellants, contains allegations of conduct with these aggravating features.

There is conduct indicating fraud in the appointment of Birk-Hillman; in the falsification of

stamps and other documents; in the assuring of contracts for the appellants; in the disclosure of

confidential information to the appellants, and in the agreement to submit fraudulent bids by

SDC with the connivance of the appellants. All of these were acts in furtherance of the

conspiracy of which the appellants are a part.

35 See the Norris case at paragraphs 17,19,21

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There is conduct indicating misrepresentation by the appellants in having the AATT assume that

this was a competitive bidding process when the appellants had corrupted the same; by the

agreement of the appellants to submit fraudulent bids to the AATT; and by the falsification of

stamps and other documents.

There is conduct indicating deception in the agreement to submit the false bids of SDC and other

false documents; in the concealing of payments for kickbacks and excessive profits and in the

efforts of the conspirators to give the appearance of an open, competitive bid process to the

AATT and third parties such as Scott Associates (architects) when this was not the case since the

Appellants and others had already conspired to and did actually corrupt the bid process.36

There is conduct indicating bribery in the kickbacks paid to the appellants, and the “concealed”

payments to Birk-Hillman, their nominees and other co-conspirators as rewards for getting work

on the Project.

42. There are ample aggravating features in the charges of conspiracy against the appellants.

43. The second reason why the argument of the appellants that the offences alleged in the

A.T.P. are not offences contrary to the laws of T & T is misconceived is because the conduct of

the appellants as alleged in the R.O.C. and S.R.O.C. also implicates them in offences

independent of the bid-rigging/price fixing allegations that are also offences against the laws of T

& T.

These offences are:

(1) Common Law Conspiracy to defraud the AATT by:

36 See Generally R v Lewis (1869) 11 Cox CC 404 as approved in the Norris Case at paragraph 19 thereof

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(a) The receipt of financial kickbacks from Birk-Hillman, their nominees and other

co-conspirators as a reward for the award of contracts37 at over inflated prices.38

(b) The securing of financial kickbacks to Birk-Hillman, their nominees and other co-

conspirators as a reward for the award of contracts at over inflated prices.39

(c) Submission of false documentation purportedly from SDC to secure their bids at

over inflated prices.

(2) Offences against the Prevention of Corruption Act Ch.11:11 by:

(a) Receiving bribes from Birk-Hillman contrary to section 3 of that Act.

(b) Corruptly agreeing to and paying gifts and/other consideration to Birk-Hillman

and their nominees contrary to section 4 of that Act.

44. The conduct of the appellants in and about the Project reveals the alleged perpetration of

offences in T & T which satisfy the dual criminality test.

(ii) There is sufficient prima facie evidence of the crimes of which the appellants are

accused to allow their extradition.

45. The prima facie evidence of the crimes of which the appellants are accused is found in (i)

The R.O.C. and S.R.O.C. and (ii) the evidence of the co-conspirators. This is ample prima facie

evidence to allow the extradition of the appellants.

37 See paragraph 36 above and notes 28 and 29 above 38 See the R.O.C. paragraphs 75,77,87-89, the S.R.O.C. 23,27,29 39 See the R.O.C. 139 et seq

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46. The starting point for the discussion of this issue is the decision of the Chief Magistrate to

commit the appellants into custody to await the decision of the Attorney General as to their

surrender. This decision of the Chief Magistrate is the subject of the habeas corpus application

in the High Court.

In his reasons for committal,40 the Chief Magistrate concluded that the evidence in the R.O.C.

and the S.R.O.C., along with the evidence of some of the co-conspirators “is sufficient to

establish a prima facie case against each accused.”

In her decision in the application for habeas corpus, Pemberton J. upholds the conclusions of the

Chief Magistrate.41 I am now called upon to decide whether Pemberton J’s. conclusion was

correct. That conclusion necessarily involves a determination of the issue as to “whether there

was evidence enough to give him (the Chief Magistrate) jurisdiction to make the order of

committal…” (see Viscount Radcliffe in Ex Parte Schtraks (1964) A.C. (H.L.) 556 at 585). This

formulation of the issue is also well expressed by Lloyd L.J. in Ex Parte Osman No.1 (1990) 1

WLR 277 at page 301H.

“The question we have to ask ourselves is … whether the Chief Magistrate

erred in law, not whether he reached the right conclusion on the facts or a

conclusion with which we would have necessarily agreed ourselves. The

question for us is not whether there was sufficient evidence to send Mr.

Blair for trial of these offences had been committed in England. That was

a question for the Chief Magistrate, not for us. The question for us is

40 See The Chief Magistrate’s Ruling of 14th July 2008 in Vol.1 of the Appellant’s core bundle, document 2 at page 5 41 See the Judgment of Pemberton J. at paragraphs 157, 177 and 178

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whether there was any evidence on which the Chief Magistrate could so

find. The discretion in the matter was his not ours.”

47. I find that there was evidence enough before the Chief Magistrate to give him jurisdiction

to make the order of committal. This evidence was:

(1) The prima facie evidence of the crimes alleged as contained in the

R.O.C. and S.R.O.C.

(2) The evidence of some of the co-conspirators.

48. Before going on to discuss this evidential issue I need to make two observations.

49. Firstly, by virtue of sections 9(2) and 19A of the Extradition Act, the contents of a

properly certified R.O.C. and S.R.O.C. become admissible evidence for the purposes of an

extradition hearing.42

It was proper for the Chief Magistrate to consider the contents of the R.O.C. and the S.R.O.C. in

coming to his conclusion that there was sufficient evidence to establish a prima facie case against

each accused.

50. Secondly, as both parties accept, the Magistrate conducting an extradition hearing is to be

guided by the Galbraith test in deciding on this issue of the sufficiency of evidence to commit for

extradition. Basically, the Galbraith test requires a Magistrate to order committal once he is

42 And see Leon Nurse et al v Commissioner of Prisons et al CA49,50,52,53 of 2007 at paragraphs 15-19 and 24 approving U.S.A. v Yang 203 D.L.R. 4th 337 at paragraphs 6-12 where similar Canadian legislation was construed to like effect.

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satisfied that the evidence presented is such as would lead a jury that is properly directed to

convict upon it. A quotation from the case that is very apt here reads:-

“Where, however, the prosecution evidence is such that its strength or

weakness depends on the view taken of a witness’s reliability, or matters

which are generally speaking within the province of a jury and where on

one possible view of the facts there is evidence upon which a jury could

properly come to the conclusion that the defendant is guilty, then the judge

should allow the matter to be tried by the jury…”43

In the present matter I find that the Galbraith test was satisfied since the Chief Magistrate had

before him ample evidence which could lead a jury, properly directed, to convict the appellants

of the crimes alleged. As I stated above, at paragraph 47, this evidence is contained in:

(1) the R.O.C. and the S.R.O.C.

(2) the evidence of some of the co-conspirators.

(1) The R.O.C. and the S.R.O.C. contain sufficient prima facie evidence of the crimes:

51. I have already detailed the conduct of the appellants in the R.O.C. and S.R.O.C. that

would amount to crimes in T & T.44 This evidence of their conduct is also admissible evidence

of the crimes the appellants are alleged to have committed. This is sufficient prima facie

evidence upon which the Chief Magistrate could and did properly act in coming to the

conclusion that there was sufficient prima facie evidence to commit to appellants to await their

extradition.

43 See R v Galbraith [1981] 1 WLR 1039 (C.A.) at page 1042 c-d 44 See paragraphs 36 to 39 and 43 above

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This is sufficient to dispose of this issue, but for the sake of completeness, I will consider the

other evidence before the Chief Magistrate.

(2) The evidence of some of the Co-conspirators:

52. The law of conspiracy is original, in that the evidence of one conspirator is admissible

against another. Messrs. Archbold summarise the law as follows:-

“Ordinarily, acts done or words uttered by an offender will not be

evidence against a co-accused absent at the time of the acts or

declarations. However, it now well established that the acts and

declarations of any conspirator made in furtherance of the common design

may be admitted as part of the evidence against any other conspirator.

Such acts and declarations may provide evidence not only of the existence,

nature and extent of the conspiracy, but also of the participation in it of

persons absent when those acts or declarations were made.”45

53. In this case the evidence of the co-conspirators is contained in the S.R.O.C.. It is

evidence obtained from some of the co-conspirators who have pleaded guilty to the U.S.A.

charges and have already been sentenced.

Firstly, there is evidence from co-conspirator Eduardo Hillman-Waller. According to the

S.R.O.C., he will testify that:

45 See Archbold Criminal Pleading Evidence and Practice 2010 at paragraph 33-65 and See R v Jones [1997] 2 Cv. App. R. 119 (C.A.) at pages 131-133

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(a) He agreed with the appellants and others to corrupt the competitive bid

process and to solicit and receive payoffs from contractors and sub-

contractors in relation to the project.46

(b) Appellant Steve Ferguson used his influence to have Birk-Hillman

appointed as consultant for the Project47 and in return, Steve Ferguson

solicited a $1 Million kickback from Birk-Hillman.48

(c) Steve Ferguson instructed Birk-Hillman to conceal the kickback by certain

complex money transfers.49

(d) Birk-Hillman agreed that the second appellant, Ishwar Galbaransingh

would, through his nominee Northern Construction, receive contracts for

the project if they were appointed as Consultant/Project Manager.50

(e) He fraudulently provided confidential information from the

AATT/NIPDEC to Ishwar Galbaransingh and/or his nominees to give

them a substantial advantage in the tendering process.51

(f) Steve Ferguson was responsible for the creation of false and fraudulent

documents pertaining to the project and Eduardo Hillman-Waller actually

received these documents.52

Secondly, there is evidence from co-conspirator Raul Gutierrez. According to the S.R.O.C., he

will testify that:

46 See the S.R.O.C. paragraph 10 47 See the S.R.O.C. paragraph 11 and 12 48 See the S.R.O.C. paragraph 12 49 See the S.R.O.C. paragraph 13 50 See the S.R.O.C. paragraph 15 51 See the S.R.O.C. paragraph 16 52 See the S.R.O.C. paragraph 14

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(a) As part of their agreement/conspiracy, he and Ishwar Galbaransingh discussed the

utilization of SDC to submit a fraudulent bid for contract package C.P.9.53

(b) As part of their agreement/conspiracy, he and Steve Ferguson discussed the utilization of

SDC to submit a fraudulent bid for contract package CP 13.54

(c) Ishwar Galbaransingh’s nominee, Northern Construction Ltd. was to provide the figures

for SDC to submit in their fraudulent bid.55

(d) The bid submitted for CP13 was deliberately overpriced.56

Thirdly, there is evidence from co-conspirator Rene Diaz de Villegas that:

(a) SDC’s bid was fraudulent.57

(b) Raul Gutierez transferred millions of dollars to Steve Ferguson and his assignees

in return for Steve Ferguson’s influence and participation in the C.P.13 bid.58

54. The evidence of the co-conspirators contains both direct and indirect evidence of the

making of the conspiracy to defraud and of its implementation. This is also acceptable in proof

of a conspiracy. Again Messrs Archbold well summarise the position under the rubric “Proving

the Agreement”.

“The agreement may be proved in the usual way or by proving

circumstances from which the jury may presume it … Proof of the

existence of a conspiracy is generally ‘a matter of inference, deduced from

53 See the S.R.O.C. paragraph 20 54 See the S.R.O.C. paragraph 20 55 See the S.R.O.C. paragraph 22 56 See the S.R.O.C. paragraph 23 57 See the S.R.O.C. paragraph 30 58 See the S.R.O.C. paragraph 30

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certain criminal acts of the parties accused, done in pursuance of an

apparent criminal purpose in common between them.’”59

55. The Appellants attempted to negate this evidence of the co-conspirators by two

arguments which, I find, are without merit.

56. Firstly, they allege that the formulation used is the S.R.O.C. whereby a prosecuting

authority states that a co-conspirator “will” or “would” testify to certain matters is unacceptable,

and such evidence should be rejected.

This argument is without merit. As I stated above at paragraph 49, the contents of the R.O.C.

and S.R.O.C. are admissible in an extradition case in T & T by virtue of sections 9(2) and 19A of

the Extradition Act. The words used in those documents are not to be interpreted with the same

strictness as applies to the construction of domestic documents and statutes.60

This view was recently approved by the Privy Council in Re Gibson [2007] UK PC 52 where

their Lordships approved the following words as allowing evidence to be considered:

“I am a source of information for the U.S. Drug Enforcement Administration… I provided the

following information.” This information was an account of events that was provided to an

agent. Lord Mance regarded a failure to accept this evidence as “extraordinary pedantry”.

Similarly, in the present matter it would be wrong to reject the evidence of the co-conspirators in

the S.R.O.C. on the ground of the form of the words used as suggested by the appellants.

59 See Archbold (op cit) at paragraph 33-14 60 See Re Ismail [1999] A.C. 320 and see page 6 of the Lexis Nesis print and see Re Postlethwaite [1988] A.C. 924

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57. Secondly, the appellants allege that Raul Gutierrez retracted his testimony by a sworn

affidavit which they have produced.61 This does not take their case any further for the following

three reasons.

(1) Even if Raul Gutierrez retracted his testimony there is still the evidence in the

R.O.C. and S.R.O.C. and of the other co-conspirators which is sufficient to form a

prima facie case of the conspiracy to defraud.

(2) The affidavit is arguably not a retraction of Mr. Gutierrez’s testimony. The

affidavit is contradictory. While Mr. Gutierrez alleges that he has not agreed to

testify for the government of the U.S.A. in the terms of the prosecuting authority’s

statement,62 he did agree to provide “truthful and complete information or

testimony.”63 This may or may not be in the same terms as that set out in

paragraph 53 above.

(3) Even if he has retracted his statement, it is open to a jury, properly directed, to

accept or reject his alleged testimony (see paragraph 50 above). This is sufficient

to permit a Magistrate to commit for extradition. The point has already been

decided in the case Ex Parte Alves 1993 A.C. 284 (H.L.). In that case, an alleged

accomplice had made a statement to a Swedish court implicating the Applicant.

At the first hearing of the extradition proceedings before a Magistrate the

accomplice repudiated his statement. The House of Lords held that the retraction

by a witness in extradition proceedings of evidence previously given in the

requesting state did not in itself discredit that evidence and the Magistrate was

61 See pages 8229 and 8220 of the Record of Appeal and see Core Bundle 4 of the appellants’ documents, Document no. 27 62 See paragraph 5 of the Statement of Mr. Gutierrez 63 See paragraph 6 of the Statement of Mr. Gutierrez

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entitled to act upon it in deciding whether there was sufficient evidence to justify

an order for committal.

In the present case, the Chief Magistrate correctly considered the evidence of Mr.

Gutierez in the S.R.O.C. and in the affidavit in “retraction” and concluded that

there was a case for the Appellants to answer.64 This was a discretion which he

could and did correctly exercise.

58. Raul Gutierrez’s alleged retraction of his evidence does not affect the prima facie case

against the appellants.

59. The appellants also attempted to argue that there were flaws in the reasoning of

Pemberton J. as to the existence of a prima facie case. They argue that as a result of these flaws

her decision to dismiss the habeas corpus application is also flawed and should be overturned.

This argument is without merit because:

(a) Even assuming there are flaws in her reasoning, the actual conclusion of Pemberton J.

that there was sufficient evidence before the Chief Magistrate to commit the appellants is

correct. Bearing in mind what I stated at paragraphs 46 and 47 above, once there was

sufficient prima facie evidence before the Chief Magistrate upon which he could commit

the appellants, that is an end of this argument of the appellants. As I have demonstrated

in paragraphs 51 to 54 above, there is ample evidence in the R.O.C., the S.R.O.C. and in

the evidence of the co-conspirators upon which the Chief Magistrate could commit the

appellants for extradition. This same evidence was before Pemberton J.. Any flaws in

her reasoning do not affect the fact that there was sufficient evidence before the Chief

64 See pages 3 and 4 of his decision at paragraph 3 (referred to in note … above)

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Magistrate to commit the appellants. Any alleged flaws in her reasoning do not affect the

correctness of the conclusion of Pemberton J.

(b) In any event, upon a correct analysis of the evidence as I have set out above,65 I still reach

the same conclusion; namely, that there was sufficient prima face evidence of the crimes

of which the appellants are accused before the Chief Magistrate to allow their extradition.

For the sake of completeness, I will mention the main flaws of which the appellants complain.

They are:

(i) The judge failed to give a detailed analysis of her reasoning.

(ii) The judge wrongly took account of the conviction of the co-conspirators in assessing the

prima facie case.

(iii) The Judge wrongly took account of the failure of the appellants to make a no-case

submission at the hearings before the Chief Magistrate in assessing whether there was a

prima facie case.

(iv) The Judge wrongly considered that the appellants must “annihilate” the testimony

presented by the U.S.A. before she could find that there was no prima facie case.

I repeat that on a correct analysis of the evidence I still conclude that there was sufficient

evidence of a prima facie case upon which the Chief Magistrate could properly commit the

appellants for extradition.

65 See paragraphs 51 to 54 above

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60. There is no valid reason to overturn the conclusion of Pemberton J. as to the sufficiency

of the evidence before the Chief Magistrate upon which he could properly commit the appellants

for extradition.

Re prima facie evidence against Ishwar Galbaransingh

61. Another argument against the sufficiency of the evidence was put forward by the

appellant Ishwar Galbaransingh. He suggested that there was no sufficient evidence of a prima

facie case against him. He suggested that even if there was sufficient evidence against the other

appellant, Steve Ferguson, this did not affect the case as against him.

This argument is misconceived.

62. “The essence of conspiracy is the agreement. When two or

more agree to carry their criminal scheme into effect, the

very plot is the criminal act itself … Nothing need be

done in pursuit of the agreement…” 66

I have already detailed the abundance of evidence against both appellants which supports the

agreement/conspiracy to defraud.67 The allegation that most or (even assuming this to be the

case) all the acts in furtherance of the conspiracy were performed by the other appellant, Steve

Ferguson does not absolve Ishwar Galbaransingh from liability in the conspiracy/agreement.68

The evidence in the R.O.C. and S.R.O.C. shows that Ishwar Galbaransingh was a party to the

66 See Archbold (op cit) at paragraph 33-5 67 See paragraphs 51 to 54 above 68 And see generally Archbold (op cit) at paragraph 33-17

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agreement to defraud the AATT and NIPDEC and he is therefore, prima facie, liable in the

conspiracy.

63. This is enough to deal with this argument, but, for the sake of completeness, I will show

that in any event, there is sufficient prima facie evidence of Ishwar Galbaransingh’s involvement

and participation in the crimes alleged.

With respect to the conspiracy to defraud by:

(i) Dishonestly manipulating the bid process for the award of package C.P.9 to Northern

Construction.

(1) Ishwar Galbaransingh and his nominees agreed to provide a fraudulent and

overpriced bid for C.P.9 from SDC.69

(2) In a purportedly open and competitive bidding process Ishwar Galbaransingh used

his position of power and influence to have Birk-Hillman appointed as

consultant/managers of the project.70

(3) In return for this appointment Ishwar Galbaransingh or his nominee, Northern

Construction, received kickbacks/commissions.71

(4) In return for their appointment Birk-Hillman ensured that Ishwar Galbaransingh

or his nominee Northern Construction, got a contract in the Project. This was

package C.P.9.72

(5) Birk-Hillman supplied Ishwar Galbaransingh’s nominee, Northern Construction,

with confidential information. This gave Ishwar Galbaransingh and his nominee a

69 See the R.O.C. paragraphs 69-77 and the S.R.O.C. paragraph 20 70 See the R.O.C. paragraphs 58 and 62 71 See the R.O.C. paragraphs 98-100 and the S.R.O.C. paragraph 10 72 See the S.R.O.C. paragraph 15

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substantial advantage against other contractors in the supposedly competitive bid

process.73

(6) Ishwar Galbaransingh knew that Birk-Hillman was going to be appointed as

consultant/managers for his project even while a competitor, Scott Associates

were still bidding for the same appointment.74

(ii) Dishonestly obtaining, transferring, concealing and converting monies paid by the AATT

for the purpose of concealing, disguising and laundering excess profiteering and kickbacks from

the project and/or to put these moneys out of the reach of the AATT. Ishwar Galbaransingh’s

involvement in this is detailed at paragraphs 121 et seq of the R.O.C.

64. The evidence of his involvement in offence of conspiring to engage in money laundering

and in the offence of money laundering is the same as in paragraph 63(ii) above.

65. There is sufficient prima facie evidence of the crimes of which Ishwar Galbaransingh is

accused to allow his extradition.

iii It is not unjust or oppressive to extradite the appellants.

66. The High Court has a statutory discretion to refuse extradition on the grounds that it is

unjust or oppressive in all the circumstances.75 There are three grounds upon which this

statutory discretion may be exercised:

73 See the R.O.C. paragraphs 105-106 and the S.R.O.C. paragraph 16 74 See the R.O.C. paragraphs 62-66 75 See section 13 (3) (b) of the Extradition Act

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(i) The passage of time since the extraditable offence has been committed.76

(ii) Any other sufficient cause.77

(iii) The accusations not being made in good faith in the interests of justice.78

In this matter the appellants only rely on two of these grounds, namely (i) and (ii) above. They

have abandoned any argument based on ground (iii).79

67. I will show that it is not unjust or oppressive to extradite the appellants based on any of

the two statutory grounds just mentioned. Before going on to deal with this issue, I wish to make

three general observations.

68. Firstly, the overriding consideration for whether it is unjust or oppressive to extradite a

person is that a fair trial is impossible (see Gomes v Government of T & T (2009) UKHL 21 at

paras 32-34).80 “Hardship, a comparatively commonplace consequence of the order for

extradition is not enough.”81 Prior to Gomes’ case there was some doubt about this overriding

consideration. The House of Lord had decided in 1978 in Kakis v Republic of Cyprus82 that one

had to have regard for “the risk of prejudice to the accused in the conduct of the trial itself” ” (the

Kakis test). In the earlier case of Ex Parte Narang,83 the impossibility of obtaining justice was

propounded as the vital consideration. In the more recent decision in Gomes case (2009) the

House of Lords recognized the dichotomy and preferred the impossibility of a fair trial as the

overriding consideration (the Gomes test).

76 See section 13(3) (b) (i) 77 See section 13(3) (b) (iii) 78 See section 13 (3) (b) (ii) 79 See the Amended Skeleton Arguments of the Appellants at page 27 80 And see Ex Parte Narang [1978] A.C. 247 at 276 81 See Gomes case op cit at paragraph 31 82 [1978] 1 WLR 779 83 [1978] A.C. 247

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The appellants sought to distinguish the Gomes case on the basis that it related only to one aspect

of injustice and oppression, namely, the passage of time. They argued that the Kakis test ought

to apply. But Kakis was also a case based on the passage of time. So that if Kakis applied

generally to injustice and oppression, there was no reason why Gomes should not. In any event

the reasoning in Gomes on the issue of injustice and oppression was of a general nature; it was

not limited the passage of time.

69. The second general observation I make is that one must always remember that “The

extradition process … is only available for returning suspects to friendly foreign states with

whom this country has entered into multi-lateral or bi-lateral treaty obligations involving

mutually agreed and reciprocal commitments. The arrangements are founded on trust and

respect. There is a strong public interest in respecting such treaty obligations.”84 In Canada

where there is also similar legislation to T & T, similar sentiments are often echoed. They re-

iterate three principles “reciprocity, comity and respect for differences in other jurisdictions.”85

70. The third general observation I make is that the applicant for habeas corpus has the onus

of establishing that it is unjust or oppressive to extradite him.86 “It is not sufficient for the

applicant to offer mere assertions or speculations.”87

(i) The passage of time since the extraditable offence was committal.

84 See Gomes case at paragraph 36 85 See U.S.A. v Yang 2001 CAN 41 20937 (ON C.A.) at paragraph 42 86 See Gomes case at paragraph 36 87 Ex Parte Odoli (U.K.) 10/1998/93 unreported transcript 26th January, 1994 at page 7

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71. The passage of time since the extraditable offences does not make it unjust or oppressive

to extradite the appellants in this case.

The appellants advance three reasons why the passage of time makes it unjust or oppressive to

extradite them.88 These three reasons are:

(a) The delay of about ten years since the commission of the alleged offences.

(b) The death or unavailability of witnesses over the period of time.

(c) The simultaneous prosecution in T & T and in the U.S.A. This is a rolled up

argument based on the allegation that the appellants have been subjected to

extended prosecution in T & T and now have to face the possibility of defending

themselves afresh in the U.S.A.

72. These three reasons do not make it unjust or oppressive to extradite the appellants

because of the passage of time. At best they attest to hardship on their part. As I stated at

paragraph 68 above, hardship is a commonplace consequence of extradition, but not enough to

satisfy the conditions of injustice or oppression. The appellants have failed to lead evidence to

show that it is impossible for them to get a fair trial in the U.S.A. (the Gomes’ test). A fortiori,

the U.S.A. is a friendly state with whom T & T has bi-lateral treaty obligations with respect to

extradition and whose systems we must treat with respect and comity.89

This is enough to dispose of this argument, but in deference to the extensive arguments of

Counsel on this issue, I will expand on this discussion.

88 See the Amended Skeleton Arguments of the Appellants pages 110-113 89 See notes 84 and 85 above

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(ia) The delay of about ten years since the offences were committed.

73. “There is no cut-off point beyond which extradition must inevitably be regarded as unjust

or oppressive.”90 So, for instance in Woodcock’s case there was a delay of about twenty-four

years between the offences and the request for extradition. In Narang’s case91 the delay was

about nine years.

In the present matter the delay of about ten years between the commission of the alleged offences

and the request for extradition is not in itself unjust or oppressive. In any event, the appellants

have led no evidence to show that the mere passage of time itself makes it unjust or oppressive to

extradite them to the U.S.A..92

74. Further, the delay that matters is the delay by the requesting state. Once the requesting

state acted with promptitude, delay would generally not be a relevant factor. (See Gomes’ case

paragraphs 19 and 20). In the present matter search warrants for investigations into the U.S.A.

offences were being requested in the U.S.A. in September 2005.93 The Grand Jury investigations

in the U.S.A. also took place in September 2005.94 The Grand Jury indictments were in

November 2005 and March and May 2006.95 The request for extradition was in July 2006. It

could hardly be contended that the U.S.A. did not act with promptitude.

75. The mere passage of time does not make it unjust or oppressive to extradite the

appellants.

90 See Woodcock v Government of New Zealand [2004] 1 All ER 678 at para 29 91 See Note 80 above 92 And see paragraph 70 above re the onus on the appellants to prove injustice and oppression. 93 See the affidavit of Steve Ferguson filed 23rd July 2008 at paragraph 6 (see volume 1 of the Record of Appeal page 587) 94 See the affidavit of Steve Ferguson filed 23rd July 2008 at paragraph 7 (see volume 1 of the Record of Appeal page 588 95 See the R.O.C. paragraphs 25-27

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(i b) The death and unavailability of witnesses:

76. The appellants have failed to make out a case of injustice or oppression based on the

death and unavailability of witnesses.

In their affidavits in support of the habeas corpus application at the High Court the appellants

made general allegations that some of their witnesses were dead or otherwise unavailable to be

called in their defence to the U.S.A. charges.96 They also listed seven key witnesses and

mentioned that several employees of the AATT and NIPDEC were going to be key witnesses.

They also mentioned the existence of uncontradicted documentation in support of their case.97

They did not state what evidence these dead or otherwise unavailable witnesses were going to

give; whether this evidence could not be obtained from other live and available witnesses;

whether the documentary evidence could not compensate for these witnesses.

Their case on the evidence before Pemberton J. as it relates to the death or unavailability of

witnesses was speculative and based on assertions. Bearing in mind that the onus was on them to

establish injustice or oppression, they failed to make out the case that it was unjust or oppressive

to extradite them because of the death or unavailability of witnesses.

Further, the defence of the appellants as stated on affidavit was that they were unaware of, or not

involved in, any illegal conspiracy or other criminality in relation to the Project and that the

uncontradicted documentary evidence would support this.98 They could still maintain this

defence in the U.S.A. and call on the uncontradicted documentary evidence. They have shown

96 See the affidavits of Steve Ferguson filed 23rd July 2008 in volume 1 of the Record of Appeal at pages 625 and 626, the affidavit of Ishwar Galbaransingh filed 24th July 2008 in volume 16 of the Record of Appeal at pages 10169 and 10170 97 See the affidavit of Steve Ferguson op cit at pages 631 and 632 and the affidavit of Ishwar Galbaransingh op cit at pages 10174-10177 98 See the affidavit of Steve Ferguson op cit at pages 623-624 and the affidavit of Ishwar Galbaransingh op cit at pages 10140-10169.

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no prejudice to their defence (the Kakis test) and/or that it is impossible to have a fair trial in the

U.S.A. (the Gomes test).

77. This is enough to deal with this argument. However, I mention the fresh evidence which

the appellants tried to introduce to expand on their argument99 and I say that even if I considered

it, that fresh evidence would make no difference to the conclusion that the appellants failed to

establish that it would be unjust or oppressive to extradite them.

This fresh evidence named three witnesses who had died, and three witnesses who were

unwilling to go to the U.S.A. for the trial of the appellants.

With respect to the deceased witnesses, Counsel informed me from the bar table that these

witnesses died between the years 2000 to 2005. These three witnesses were senior executives at

NIPDEC who “would have been able to verify discussions and communications as recorded in

the minutes of meetings and other documentation.”100 This statement affirms what Pemberton J.

found in her decision, namely, that this was a “documents” case and this evidence could still be

obtained for the U.S.A. trial. The argument of injustice or oppression because of deceased

witnesses was speculative and based on assertions.

In any event the appellants would face the same problem in the T & T cases; they would be

equally prejudiced by the death of witnesses in a T & T trial. The appellants have failed to show

any real prejudice by the death of witnesses (the Kakis test) or that it would be impossible on this

ground to have a fair trial in the U.S.A. (the Gomes test).

With respect to the unwilling witnesses, once again, they were only three of the several witnesses

named. The appellants do not state whether there was no one else who could give the same or

99 See paragraphs 15 to 25 above. 100 See paragraph 5 of the affidavit of Ishwar Galbaransingh filed 17th December 2009 (appellants’ Core Bundle v document 5)

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similar evidence as these witnesses, or whether the documents could not fill any voids caused by

their unavailability. The argument of injustice or oppression because of unwilling witnesses was

speculative and based on assertions. Further, they did not assert that it would affect their basic

defence of ignorance of the charges or a preponderance of documentary evidence to dispel the

charges. The appellants have failed to show any real prejudice because of the unavailability of

witnesses for a trial in the U.S.A. (the Kakis) test) or that it would be impossible on this ground

to have a fair trial in the U.S.A. (the Gomes test).

Even on the fresh evidence the appellants have not shown such prejudice that would make it

unjust or oppressive to extradite them (the Kakis test) and/or that it was impossible for them to

have a fair trial in the U.S.A. (the Gomes test).

(i c) the simultaneous prosecution in T & T and in the U.S.A.

78. The appellants have been facing prosecution in T & T in relation to the Project since

March 2002. The extradition proceedings against them commenced in July 2006. They have

been defending themselves in T & T over this time and now have to face the possibility of

defending themselves afresh in the U.S.A.. This does not make their extradition unjust or

oppressive for the following three reasons:

79. Firstly, the appellants make mention of the financial and social disruption, bother and

hassles that this extended T & T prosecution has caused. They also predict further disruption,

bother and hassles by a prosecution in the U.S.A.. These are really allegations of hardship.

Hardship itself is not enough to make their extradition unjust or oppressive.101

101 See Gomes case at paragraph 31

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80. Secondly, any disadvantages, disruptions, bothers or hassles the appellants may

encounter in a trial in the U.S.A. are hardships that are “a comparatively commonplace

consequence of the order for extradition.”102 This is hardship that any T & T litigant could face

in respect of a trial in a foreign friendly country with whom T & T has entered into bi-lateral

treaty obligations that are to be respected.103 This hardship does not make their extradition

unusual, or unjust or oppressive.

81. Thirdly, these hardships which they refer to do not amount to a contention that it is

impossible to get a fair trial in the U.S.A. (the Gomes test). The appellants have failed to satisfy

the criteria of injustice or oppression.

82. The appellants sought to argue that they had a legitimate expectation that the T & T

prosecution would take priority to the extradition request because of the passage of time in the

T & T prosecution.104

This argument is without merit for the following three reasons. Firstly, the appellants have not

shown any promise, practice or representation by the State that they would not be extradited once

there were prosecutions in T & T.105 There is nothing upon which a legitimate expectation can

be founded. Secondly, any expectations the appellants may have harbored are contrary to the

express terms of section 16(2) of the Extradition Act. That section permits extradition while

charges are pending in T & T. Their expectations must yield to the legislation.106 Thirdly, the

High Court and the Court of Appeal have already decided in the prior judicial review application

102 See Gomes case at paragraph 31 103 See Gomes case at paragraph 36 104 See the Appellants Amended Skeleton Arguments page 112 paragraph 6.6 105 See Judicial Review Handbook, 5th ed, by Michael Fordham at paragraph 41.2 pages 422 et seq 106 See Judicial Review Handbook, 5th ed, by Michael Fordham at paragraph 41.1.12 page 419

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that the extradition request could proceed even if domestic charges are pending and that there is

no oppression in such a situation.107 Even if there could be an expectation for a T &

T prosecution to take precedence to any other foreign prosecution the court has already decided

that the frustration of such an expectation is not unjust or oppressive.

83. The simultaneous and “allegedly” extended prosecution of the appellants in T & T does

not make it unjust or oppressive to extradite them to the U.S.A..

(ii) Any other sufficient cause.

84. The appellants argue four points why under the provisions of section 13 (3) (b) (iii) “any

other sufficient cause”, it would be unjust or oppressive to extradite them.

The four points are:

(a) The simultaneous prosecution in T & T and in the U.S.A.

(b) The appellants will be denied ten points of constitutional safeguards in a trial in

the U.S.A.

(c) T & T is the proper forum for a prosecution and not the U.S.A.

(d) The alleged misconduct of the judge (Judge Huck) who is supposed to be

presiding in the U.S. A. prosecutions.

A consideration of these four points shows that the appellants cannot make out a case that it

would be unjust or oppressive to extradite them for “any other sufficient cause”

107 Per Bereaux J. in Cv 2006-2959 at paragraph 59-63 Per Warner J.A. Civ Appeal 6 of 2007 at paragraph 79-93

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(ii a) The simultaneous prosecution in T & T and in the U.S.A.

85. A part of this argument has already been dealt with and rejected at paragraphs 78 to 83

above. The simultaneous prosecution of the appellants in T & T and in the U.S.A. does not make

it unjust or oppressive to extradite them.

86. The appellants now seek to raise a similar issue in the following way.

While the D.P.P. has discontinued the T & T charges which relate to contracts C.P.9 and

C.P.13,108 there are still other charges pending in the T & T courts against the appellants in

relation to other aspects of the Project.109 The appellants argue that it is unjust or oppressive to

extradite them to the U.S.A. while the other T & T charges remain pending against them. This

argument is without merit for the following three reasons.

87. Firstly, this very argument has already been raised and rejected in the prior judicial

review proceedings that the appellants had brought to challenge the A.T.P.. In those proceedings

it was decided that it was not unjust or oppressive to extradite the appellants while other charges

were pending against them in T & T.110 The basic rationale behind this finding is that section 16

(2) of the Extradition Act expressly allows for the extradition of persons while charges against

them are pending in T & T, and until a verdict of guilt or innocence is reached in the T & T

charges there is no injustice or oppression in the extradition proceedings. This is different to the

Canadian situation where the statute forbids extradition while an applicant “is being proceeded

108 See footnote 8 above. 109 See paragraph 8 above. 110 Per Bereaux J. in Cv 2006-2959 at paragraphs 54 to 63. Per warner J.A. in Civ Appeal 60 of 2007 at paragraphs 79-93

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against.”111 It is also different to the English situation where the statute requires extradition

proceedings to be adjourned while charges are pending.112

88. Secondly, one must remember that extradition statutes exist (inter alia) for the purpose of

bringing those accused of serious transnational crime to justice. “There is a transnational interest

in the achievement of this aim. Extradition treaties, and extradition statutes, ought, therefore, to

be accorded a broad and generous construction so far as the law permits in order to facilitate

extradition.”113

The appellants are accused of serious crimes which carry serious penalties in the U.S.A..

Further, there is no allegation of bad faith in respect of the U.S.A. charges; this argument was

specifically withdrawn.114 There is no evidence that the request by the U.S.A. for extradition is

other than bona fide. In that case the appellants have not shown any cause why they should not

be extradited.115 In keeping with a construction favourable to extradition, it would not be unjust

or oppressive to extradite the appellants while other local charges are pending in respect of the

Project. If anything it may be that the T & T prosecutions have to be stayed after the appellants

have been extradited to the U.S.A..

89. Thirdly, as was stated in the Gomes case, international co-operation in the field of

extradition “is ever more important to bring to justice those accused of serious cross-border

crimes and to ensure that fugitives cannot find safe havens abroad”.116 It would be contrary to

111 See Bereaux J. in Cv 2006-2959 at paragraphs 57-63 where he sets out the Canadian law and cases and distinguishes them from the T & T situation 112 See section 88 of the U.K. Extradition Act 2003 113 See Re Ismail [1999] A.C. 320 (H.L.) and see the Lexis Nexis print at page 6 114 See paragraph 66 and note 79 above 115 And see generally paragraph 70 above re the onus of proof of injustice and oppression 116 See Gomes case op cit at paragraph 36

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this important facet of extradition if the appellants could chose where they are to be prosecuted

and when. This would be the case if they could resist extradition solely on the ground that they

are liable to be prosecuted in T & T and the U.S.A.. The choice of prosecution is for the

prosecuting authorities.

90. It is not unjust or oppressive to extradite the appellants to face charges in the U.S.A. in

respect of C.P. 9 and C.P.13 while charges are pending in T & T in respect of other aspects of the

Project.

(ii b) Ten points of constitutional safeguards:

91. The appellants cannot resist their extradition upon an argument that a trial in the U.S.A.

will deprive them of some of the constitutional safeguards they would enjoy in a trial in T & T.

It was only in oral submissions that Counsel for the appellant Ishwar Galbaransingh raised this

issue. He tried to demonstrate ten points of constitutional safeguards of a trial in T & T which

the appellants would be denied in a trial in the U.S.A.. For this reason, he argued, it would be

unjust or oppressive to extradite the appellants. This argument is without merit for the following

four reasons.

92. Firstly, the appellants have abandoned any argument pertaining to the constitutionality of

the Extradition Act.117 That being the case they cannot now argue about the constitutionality of

their extradition. In the face of a statute that is presumed to be in accordance with the

Constitution, it is quite proper to extradite the appellants even if they will not enjoy the same

117 See the Appellants’ Amended Skeleton Arguments page 27.

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constitutional safeguards in a trial in the U.S.A.. (I will refer to this point later on as “the

presumption of constitutionality”).

93. Secondly, if this argument had any merit it would mean that no T & T national could be

extradited to another country for prosecution. A national of T & T would not have all or many

the same constitutional safeguards elsewhere (e.g. the right to a trial by a jury of his peers).

Further, any other system or procedures will not have the T & T constitution as its underpinning

and so would not give the same safeguards. To state the argument is sufficient to reject it.

Alternatively, if this argument were valid, no foreigner who committed a crime in T & T should

be tried here since he would not have the same constitutional safeguards and underpinnings here

as in his homeland. This argument of the appellants was already considered and rejected by the

Court of Appeal in T & T in an extradition matter.118 (I will refer to this point later on as “the

extradition presumption”).

94. Thirdly, implicit in the act of extradition is a submission to a foreign system of justice. A

system of justice of a friendly foreign state with whom this country has entered mutually binding

treaty obligations that are to be respected. Further, Parliament has ratified such treaty obligation

by the passing of a statute which allows the submission of its nationals to certain foreign systems

of justice.119 It is disingenuous to argue that because a foreign system of justice does not have

the same or identical constitutional safeguards, extradition is unjust or oppressive. I will refer to

this point later on as “the comity presumption”).

118 See Leon Nurse & Ors. v The Commissioner of Prisons Civil Appeal 49, 50, 52 and 53 of 2009 119 Specifically by virtue of the Extradition (U.S.A.) Order Ch. 12:04 page 43, the U.S.A. is declared to be a foreign territory to which the provisions of the Extradition Act are applicable.

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This point is well set out in the quote from Gomes case at paragraph 69 above which I repeat for

emphasis.

“The extradition process … is only available for returning suspects to

friendly foreign states with whom this country has entered into multi-

lateral or bi-lateral treaty obligations involving mutually agreed and

reciprocal commitments. The arrangements are founded on trust and

respect. There is a strong public interest in respecting such treaty

obligations.”120

I also would like to adopt the dictum of Rosenberg J.A. in U.S.A. v Yang “It is not for this

country to assume that it along knows how to arrive at a true verdict.”121

The fact that the appellants may not have the same or many of the constitutional safeguards of a

trial in T & T in a trial in the U.S.A. does not make it unjust or oppressive to extradite them.

95. Fourthly, the allegations of the denial of some of the constitutional safeguards are merely

allegations based on fears and anxieties the appellants harbour about the justice system of the

U.S.A.. They only amount to assertions and speculations and are not proof in a habeas corpus

application. They cannot meet the standard of establishing injustice or oppression (see paragraph

70 above). (I will refer to this point later on as “the evidential presumption.”)

A further point to note about the evidential presumption is that bearing in mind the constitutional

guarantee of a fair trial in the U.S.A. by virtue of the Sixth Amendment, the appellants cannot

120 See The Gomes case at paragraph 36 121 2001 CAN L1 20937 (ONC.A.) at paragraph 51

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assert these allegations in proof of the impossibility of a fair trial in the U.S.A. (the Gomes test).

The appellants cannot establish injustice or oppression based on the Gomes test.

Another point to note about the evidential presumption is that the allegations based on the fears

and anxieties the appellants harbour about the justice system of the U.S.A. are hotly contested.

Many of the appellants’ allegations on these ten constitutional points came with the fresh

evidence they tried to lead on this appeal. This fresh evidence was challenged on affidavit by the

respondent. Having rejected the fresh evidence, this argument cannot proceed. In any event,

even if I were to entertain this fresh evidence, to embark on an examination of these allegations

would involve an unwarranted, collateral attack on the justice system of a friendly foreign state

with whom T & T has treaty obligations that are to be respected and which obligations have been

reinforced by the Extradition Act. It would be wrong in principle to purport to condemn the

alleged absence of the same constitutional safeguards as exist in T & T a U.S.A. trial.

96. For the sake of completeness, I would now list the ten constitutional points and show

which of the four reasons that I have just detailed negate their applicability to this case.

(1) The right not to be deprived of liberty and security except by due

process, which, it is argued, means a trial by a Trinidad jury. This

is answered by (i) the presumption of constitutionality (ii) the

extradition presumption and (iii) the comity presumption.

(2) The right to equality and the protection of the law. This is

answered by the first three presumptions as in (a) above.

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(3) The right to respect for reputation, private and family life. This is

also answered by the first three presumptions as in (a) above.

(4) Extradition is a form of exile and so it is cruel and unusual

punishment. This is also answered by the first three presumption

as in (a) above.

(5) The right to a trial by a jury of peers, meaning a Trinidadian jury.

This is also answered by the first three presumptions as in (a)

above.

(6) A prosecutor in the U.S.A. is not a minister of justice unlike in T &

T. This is answered by the first three presumptions as in (a) above

and (iv) by the evidential presumption.

(7) The right to a fair hearing before an independent judge. This is

answered by the first three presumptions as in (a) above and by the

evidential presumption. Also this is dealt with later at paragraphs

101 to 106 below.

(8) The appellants would be exposed to a hostile system of plea

bargaining. This is answered by the first three presumptions as in

(a) above and by the evidential presumption.

(9) The appellants may have no right to subpoena evidence. This is

specifically addressed by the evidential presumption and the other

three presumptions.

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(10) The appellants will not be likely candidates for bail. This is

specifically addressed by the evidential presumption and the other

three presumptions.

97. The ten constitutional points taken collectively or individually do not make it unjust or

oppressive to extradite the appellants “for any other sufficient cause”.

(ii c) Forum.

98. The appellants cannot resist their extradition by arguing that T & T is the proper forum

for their trial. They try to argue that the proper forum for the prosecution for these offences is T

& T, therefore it is unjust or oppressive to extradite them to the U.S.A. to face these, charges.

This argument cannot succeed for the following two reasons.

99. Firstly, the Court of Appeal has already decided that the issue of forum conveniens in an

extradition matter is an executive decision that rests in the Attorney General. It is not a decision

for the courts. In fact that decision was made in the prior judicial review proceedings that the

appellants had maintained to challenge the A.T.P..122 That decision has also been reaffirmed by

the Court of Appeal in another extradition case based on the same Extradition Act.123

122 See Civil Appeal 60 of 2007 at paragraphs 74-76 and 94 123 See The Leon Nurse Case at note 118 above

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In accordance with the principles of stare decisis, these decisions bind me unless they are plainly

wrong.124 I find that these prior decisions are not plainly wrong; in fact, I find that they are

correct decisions. I say this for two reasons.

(a) Extradition is a creature of statute. “All functions that are not expressly assigned by

statute remain within the executive domain.”125 Both sides agree that the Attorney

General has a discretion on forum under the Act at the return stage (after a habeas corpus

application, if any). If this is so, and in the absence of an express stipulation to the

contrary, the Supreme Court has no residual discretion on the issue of forum.

(b) Again, the parties agree that the Attorney General does have a discretion on forum at the

return stage. If the Supreme Court also has such a discretion at the Habeas Corpus stage

(which precedes the return stage) and does exercise the discretion, this would effectively

take away the Attorney General’s discretion on forum at the return stage. This is clearly

contrary to the intention of the statute.

100. Secondly, the argument on forum proceeds on the basis that T & T is the more

convenient forum to try the appellants rather than the U.S.A.. This is a far cry from alleging that

it is impossible to have a fair trial in the U.S.A. (the Gomes test), which is necessary to raise a

case based on injustice or oppression.

The appellants cannot establish injustice or oppression based on an argument of the more

convenient forum.

(ii d) The conduct of Judge Huck.

124 See Young v Bristol Aeroplane Co. [1944] K.B. 718 C.A. 125 See U.S.A. v Chang 205 CCC (3d) 258 and U.S.A. v Kwok 2001 S.C.C. 18 at paragraph 31

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101. The appellants have not made out a case that the conduct of Judge Huck is such as would

cause their extradition to be unjust or oppressive. I say so for the following four reasons.

102. Firstly, there is no evidence that it is impossible for the appellants to have a fair trial in

the U.S.A. due to the alleged misconduct of Judge Huck (the Gomes test). The appellants’

“evidence” on this issue is based on assertions and speculations. This is not enough to discharge

the onus on the appellants to prove injustice or oppression.126

103. Secondly, one must remember that there must be trust and respect for the U.S.A.’s system

of justice.127 We are not to assume that only T & T can arrive at a true verdict.128 There must be

a presumption that the U.S.A.’s justice system can correct any biases or hostility shown to the

appellants. For example, an application for the judge to recuse himself. The appellants have led

no evidence as to whether the justice system of the U.S.A. can or cannot compensate for any

actual or perceived bias of the judge hearing their case. They have failed to prove injustice or

oppression in a trial in the U.S.A.

104. Thirdly, the conduct of Judge Huck to which the appellants object relates to statements he

made at a pre-hearing conference.129 The appellants allege that he has made improper threats to

them to force them to submit to extradition. This is an inaccurate allegation based on statements

read out of context. When read in context, the statements were an attempt by Judge Huck to

show the prosecutor and the defence that it would be in the best interests of all parties to have

126 See notes paragraph 70 above 127 See Gomes case at paragraph 36 128 See U.S.A. v Yang at note 121 above 129 See Vol. 4 of the appellants’ Core Bundle at pages 4861 - 4869

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one joint trial of all the accused rather than two trials. (There would probably be two trials if the

appellants’ extradition proceedings were protracted). So, for instance, Judge Huck opined that

the appellants would benefit from having all the defences heard by one jury at the same time;

from having joint and extensive discovery; and from having a speedy trial (rather than a

protracted one). This, he opined, may not happen in separate trials. Also, there would be

savings of time and expense by one trial rather than two. This is what Judge Huck referred to as

giving and receiving co-operation. I find that the appellants’ allegations of threats by Judge

Huck based on a statement about giving and getting co-operation at a trial are without merit.

In so far as the appellants take issue with Judge Huck’s single request to the prosecutor to inform

the appellants of his opinion, his intention was to show them the all round benefits of one trial.

In so far as the appellants take issue with a statement by Judge Huck that the appellants would

eventually be extradited, this was loose English. The sentence immediately after stated “if that

occurs” (viz, if they are extradited).

I find that the statements of Judge Huck to which the appellants object were taken out of context.

A fortiori, they were three statements in a transcript of about seventeen pages. They do not

constitute threats against the appellants to force them to submit to extradition.

105. Fourthly, even if the statements could be read (out of context) as threatening and intended

to force the appellants to submit to extradition, they were not such as to make it unjust or

oppressive to extradite the appellants. In Mc Kinnon v U.S.A., the House of Lords recently

stated that “it would only be in a wholly extreme case like Cobb itself” that a court should regard

such statements as an abuse of the extradition process.130

130 [2008] 1WLR 1739 H.L. at paragraph 41

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In Cobb’s131 case the judge actually threatened the applicants that if they resisted extradition and

were found guilty they would receive the “absolute maximum jail sentence that the law permits.”

The prosecutor also threatened that the applicants may well be subjected to homosexual rape in

prison if they kept on resisting extradition.

The present case is a far cry from Cobb’s case. There is no direct threat of an extended jail

sentence or of mistreatment in the U.S.A.. Even in the worst case scenario, this is not a wholly

extreme case to make it unjust or oppressive to extradite the appellants.

106. The appellants have failed to make out a case that it would be unjust or oppressive to

extradite them for any other sufficient cause.

(iv) Habeas Corpus proceedings are available to persons like the appellants, who had

been granted bail before the application for habeas corpus.

107. Pemberton J. reasoned that habeas corpus proceedings are primarily concerned with the

release of a person who is wrongly detained. Therefore, persons already on bail (like the

appellants) are no longer detained, so that habeas corpus proceedings in such cases are

inappropriate.

131 U.S.A. v Cobb [2001] 1 SCR 587 at paragraphs 7 and 8.

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Both the appellants and the respondent agree that Pemberton J. was not correct on this issue. I

too agree with them.

Both parties cite the decision of Mance J. in Launder v Govenor of Brixton Prison132 as express

authority for the proposition that habeas corpus proceedings are available to persons already on

bail in extradition proceedings. I agree with that decision and the reasoning in that case.

Further, Counsel for the Respondent also refers to the opinion expressed in the text, The Law of

Habeas Corpus 2nd ed. By R. J. Sharpe at pages 163-169. In that text the authors set out the

theoretical bases for the general proposition that habeas corpus proceedings are available to

persons on bail. I find no fault in the logic of those theories.

I find that habeas corpus proceedings are available to persons like the appellants, who had been

granted bail before the application was actually made for habeas corpus in extradition

proceedings.

DISPOSITION:

I dismiss this Appeal.

Gregory Smith

Justice of Appeal

132 (1998) EWHC 214

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I have read the judgment of Smith J.A. and I agree with it.

C.V.H. Stollmeyer

Justice of Appeal