The Tribune

By NICO SCAVELLA

Tribune Staff Reporter

nscavella@tribunemedia.net

THE COURT of Appeal yesterday dismissed the legal challenges of five men wanted for various drug trafficking charges in the United States of America against a Supreme Court judge’s refusal last year to issue court orders that would allow them to contest the validity of their imprisonment, and thus prevent their extradition.

Austin Knowles, Nathaniel Knowles, Edison Watson, Ian Bethel and Sean Bruey aka Shawn Saunders, were committed to prison to await their extradition after Court of Appeal President Dame Anita Allen, Justice Jon Isaacs and Justice Stella Crane-Scott affirmed Senior Justice Stephen Isaacs’ refusal to grant them writs of habeas corpus last year.

The Tribune understands that Damian Gomez, QC, one of the attorneys on record for the five men, intends to appeal the ruling before the London-based Privy Council, the Bahamas’ highest court of appeal.

Nonetheless, the ruling by Dame Allen – supported by the other two justices – noted amongst other things, the “laissez-faire” attitudes of the five men in seeking favourable court orders to prevent their own extradition was a major reason why their own grounds of appeal towards that end were ultimately unsuccessful.

Dame Allen further noted that contrary to the appellants’ submissions that their extradition would be oppressive after the passage of 16 years, that particular circumstance “does not surmount the high threshold requisite for establishing oppression.”

Conversely, the court noted that when the suggestions of potential oppression are “weighed against the gravity and seriousness of the crimes they are accused of,” it “would not be sufficient to tip the balance in favour of their (being) discharged”.

According to the ruling, the appellants were committed to what was then called Her Majesty’s Prison to await extradition to the US in November 13, 2003 by then Magistrate Carolita Bethel, now a Supreme Court judge.

At the time, then Magistrate Bethel committed all five men to be extradited on count one of the indictment, which charged that the men “knowingly and intentionally combined, conspired, confederated and agreed with each other and with other persons unknown” to import into the US “at least five kilograms of a mixture and substance containing a detectable amount of cocaine” from a time unknown to the grand jury but believed to be as early as June 2002, to on or about November 2002 in Palm Beach County, in the Southern District of Florida, and elsewhere.

She also committed Austin Knowles, Nathaniel Knowles, Bruey and Watson to be extradited on charges that they, on or about October 22, 2002, in Palm Beach Country, in the Southern District of Florida and elsewhere, knowingly and intentionally attempted to import at least five kilograms of a mixture and substance containing a detectable amount of cocaine.

Austin Knowles, Bruey and Watson were further committed for extradition on count four of the indictment, which charged that they and others on or about October 30, 2002, in Broward County, in Lighthouse Point, and elsewhere, knowingly and intentionally imported into the US a controlled substance of at least five kilograms of a mixture and substance containing a detectable amount of cocaine.

Bruey alone was further committed for extradition on count six of the indictment, which charged that he and others, from as early as June 2002, to on or about November 13, 2002, in Broward County and elsewhere, knowingly and intentionally combined, conspired, confederated and agreed with each other and with other persons unknown to the grand jury to possess with intent to distribute at least five kilograms of a mixture and substance containing a detectable amount of cocaine.

On November 25, 2003, an application on behalf of each appellant for a writ of habeas corpus was filed in the Supreme Court. The appellants relied on a number of grounds to justify their entitlement to be released from custody, which included but wasn’t limited to that the lapse of time since they were alleged to have committed the offences was such that it would be unjust and/or oppressive to extradite them; and that the respondents had not made out a prima facie case against them on the evidence.

Refusal

However, On May 3, 2016, Senior Justice Isaacs ruled that the five men had not made out a case for granting the writs of habeas corpus sought, and refused to issue them. He further affirmed then Magistrate Bethel’s decision to commit the five men to await extradition.

On May 17, 2016, Austin Knowles, Nathaniel Knowles, Bethel and Watson filed their appeals against Senior Justice Isaacs’ ruling. Bruey filed a separate appeal, according to the Court of Appeal ruling. However, on January 9, 2017, Bruey amended his original notice of appeal to conform to what was filed on behalf of the other men, the ruling said.

In their respective notices of appeal, the appellants “prayed” that Senior Justice Isaacs’ decision be “set aside wholly or in part as the court deems fit;” that an order of certiorari quashing the ruling and order of then Magistrate Bethel be issued; that a writ of habeas corpus ad subjiciendum directing the respondents to show cause why the appellants should not be released immediately be issued; that the discharge of the appellants be ordered; alternatively, such relief as the court deems just pursuant to Article 28 of the Bahamas’ Constitution.

Following the filing of the applications for habeas corpus, the appellants filed a summons in the Supreme Court on February 13, 2004 and were consequently granted an order by Justice Jeanne Thompson dated February 17, 2004. Their summons was preceded by letters from their attorneys to then Magistrate Bethel, and Supreme Court Registrar Donna Newton, dated November 18 and 20, 2003, requesting a certified copy of the transcripts of the committal proceedings.

According to the ruling, from then to March 3, 2016, there were a number of court hearings concerning but not limited to, an issue surrounding the production of the official transcripts of the initial committal proceedings, as well as over whether former Health Minister Dr Marcus Bethel had been appointed acting minister of foreign affairs by February 13, 2003 when he signed the authority to proceed in the extradition proceedings.

The latter, according to the ruling, created issues over whether or not the official gazette appointing Dr Bethel to act, and the actual orders signed by the governor general granting official leave to former Foreign Affairs Minister Fred Mitchell for the same period, which were seeking to be adduced into evidence by then-counsel for the respondents Francis Cumberbatch, was properly adduced.

The objection to whether those documents were adduced was made at the time by Keir Starmer, QC, then counsel for the appellants. And as a result, then Magistrate Bethel, who had previously acceded to Mr Starmer’s objection, ultimately made her committal orders “without those documents before her,” the ruling said.

The ruling noted that the appellants “somewhat disingenuously,” used the absence of those documents as “their first line of offence” in the habeas corpus proceedings, and obtained from a Supreme Court Justice Jeanne Thompson on May 19, 2004, the order for discovery of certain documents from the respondents “to assist them in proving that the Authority to Proceed issued by the acting Foreign Affairs Minister was invalid, and their continued detention not justified.” That judge also granted bail to the appellants.

Both the decision to grant bail and to grant the order of discovery were subsequently appealed to the Court of Appeal by the respondents, according to the ruling. The decision to grant bail was set aside by the Court of Appeal, and on June 10, 2004 the court set aside the order for discovery. Both of those decisions were in turn appealed by the appellants to the Privy Council, which, according to its March 23, 2005 judgment, set aside the COA’s decision to revoke the bail granted, but affirmed the COA’s decision to set aside the order for discovery.

In 2008, another application was made by the appellants for the production of the official transcripts. According to the ruling, the reason for the lapse of three years between the Privy Council’s ruling and the 2008 request “is suggested” to be that Justice Thompson left office in March 2007.

Nonetheless, that led to a serious of court proceedings leading straight up to May 3, 2016, when Senior Justice Isaacs gave his ruling.

Delays

Subsequent to that ruling, the appellants, in their appeal, charged that due to the “delay” caused by the “failure” of the registrar to “preserve” the transcript and record of the committal proceedings, Senior Justice Isaacs erred in finding that the appellants were content with the delay, and further erred in “rejecting their submission that it was unjust and/or oppressive to extradite them”, according to the ruling.

Further, the ruling noted that at the hearing of the appeal, counsel for the appellants “expanded” their grounds of appeal and charged that the five men “bore no responsibility” for the delay, which they contended was “wholly due to administrative and judicial inertia.”

However, Dame Anita noted that while there were “some administrative and judicial missteps” present throughout the entire ordeal, the “majority of the delay can reasonably be attributed to ‘litigant inertia.’

“Undoubtedly, it is ultimately the duty of the requesting state with the assistance of the requested state, to pursue the extradition, nevertheless, the appellants also have an obligation to assert their rights, particularly as they had already been committed to await extradition,” she noted. “In this regard, the appellants have singularly failed to demonstrate any interest during the three years which elapsed between the Privy Council’s decision (2005), and the order they sought for the production of the transcript in 2008, or in the seven-year period thereafter, to further pursue their applications for habeas corpus before the Supreme Court.”

Dame Anita, with the agreement of her fellow justices, also noted that “even if I am wrong about who is to blame for the delay in this case,” the COA “must in determining whether it would be unjust to extradite them, have regard to the safeguards which exist in the domestic law of the requesting state.

“In this vein, it cannot be gainsaid that the legal system of the US is very similar to that of the Bahamas, and has similar constitutional provisions and procedures to protect and safeguard the fundamental rights and freedoms of an accused person against an unfair trial,” she said. “This is certainly not a case in which the courts of the Bahamas can say that the appellants’ trial in the US is bound to be unjust due to the time which has passed.

“Consequently, I am satisfied that a fair trial of the appellants is possible even after the delay which has occurred in this case, and that it would not be unjust to extradite them due to the time that has passed.”

After considering the totality of the submissions proffered by the appellants, Dame Anita said: “In the premises, and for the reasons given, I am unable to accede to any of the submissions advanced on behalf of the appellants, and I would dismiss the appeal, and affirm the learned judge’s decision to dismiss the applications for habeas corpus and to affirm the decision of the magistrate to commit the appellants to await extradition on the charges indicated by her.

“The appellants are, therefore, ordered to be committed to the custody of the Department of Correctional Services to await their extradition for the charges for which they were committed by the magistrate.”