The Tribune

By FARRAH JOHNSON

Tribune Staff Reporter

fjohnson@tribunemedia.net

THE PRIVY Council advised the dismissal of the appeal of alleged drug smugglers who sought to challenge their extradition to the United States to stand trial for a host of drug trafficking offences.

In December 2003, Austin Knowles with Sean Bruey, aka Shawn Saunders, Nathaniel Knowles, Ian Bethel and Eddison Watson were indicted on several drug related charges by a Florida court.

Over a decade later, the Court of Appeal dismissed the legal challenges of the five men who were fighting extradition. At the time, the men were committed to prison to await their extradition after then Court of Appeal President Dame Anita Allen, Justice Jon Isaacs and Justice Stella Crane-Scott affirmed then Supreme Court Senior Justice Stephen Isaacs’ refusal to grant them writs of habeas corpus in 2016.

In their application to the Privy Council, the men argued that the evidence cited in support of the extradition was not “duly authenticated” in accordance with the Extradition Act. They further argued that they had been deprived of their constitutional right to have their habeas corpus applications determined within a reasonable time, in violation of the Constitution.

According to court documents, the alleged conspiracy to traffic drugs concerned shipments of over 1,000kg of cocaine from The Bahamas to Florida between June and November 2002.

On December 12, 2002, the appellants were charged by a grand jury in the US District Court for the Southern District of Florida. Three days later, American officials sent a request for the appellants’ “provisional arrest with a view to their extradition”. A full extradition request was then sent in February 2003 and the acting Minister of Foreign Affairs, Dr Marcus Bethel, issued an Authority to Proceed to the magistrate.

“The committal proceedings began on 24 March 2003 before Stipendiary and Circuit Magistrate Carolita Bethell,” said the court documents. “The principal evidence relied on at committal consisted of a number of affidavits of the prosecution witnesses, namely Drug Enforcement Authority agents, scientists, and co-conspirators who had been arrested when the importing vessels were seized and who inculpated other conspirators. These affidavits were exhibited to an affidavit of Karen Atkinson, an assistant US Attorney. It is Karen Atkinson’s affidavit which is said not to have been ‘duly authenticated.’”

In its summation, the Court of Appeal noted that Mrs Atkinson’s affidavit “sets out her familiarity with the charges and her opinion as to the relevant law”. They also said it “exhibits the affidavits of witnesses containing evidence given on oath before the grand jury which resulted in the indictment, and on which the US relies for its request for extradition”.

The Privy Council judges noted that no challenge was made to the admission of Mrs Atkinson’s affidavit at the committal hearing. They said the only objection raised by leading counsel who represented the appellants at the time was the fact that he believed parts of the evidence exhibited by the woman were hearsay.

Nevertheless, the magistrate “expressly found that all the evidence had been duly authenticated” and in November 2003, the magistrate committed the appellants to Fox Hill Prison to await extradition.

Following several status hearings before the late Senior Justice Stephen Isaacs, the substantive hearing of the habeas corpus applications took place between February and May 2016. During the proceedings, the judge refused both the habeas corpus and judicial review applications.

In October 2017, the appellants’ appeals against the rejection of their habeas corpus applications were dismissed by the Court of Appeal. This prompted them to file a joint notice of motion for leave to appeal to the Judicial Committee; however, that application for leave was refused by the panel a month later.

“On December 12, 2017, all five of the appellants in the court below applied to the Judicial Committee for permission to appeal,” the court documents continued. “Two of the appellants, Austin Knowles and Sean Bruey, subsequently withdrew their applications. The Judicial Committee granted leave to appeal to the remaining three appellants on April 10, 2019.”

In addressing the authentication issue, the Privy Council noted that Mrs Atkinson’s affidavit was required to be “duly authenticated” in order to be admissible under section 14(1)(a) of the Act.

They stated that under Section 14(3)(a), the affidavit would be duly authenticated if it “purported to be certified by a judge, magistrate or officer of the court in or of the approved state in question or an officer of the diplomatic or consular service of that state” to be an original document or a true copy of that original document”. They said that Mrs Atkinson’s affidavit was authenticated by Lystra Blake, who was “stated to be” the associate director, Office of International Affairs, Criminal Division, US Department of Justice.

“Mr Edward Fitzgerald (QC for the appellants) next contended that Karen Atkinson’s affidavit was necessary for there to be admissible evidence that the offences were not statute-barred. It is correct that this is a matter addressed by Karen Atkinson and no doubt that it is good practice. The board does not, however, consider that it is a mandatory requirement of a valid extradition request. Section 7 of the Act sets out various restrictions on extradition, including if the offence is time-barred. In the board’s view these are matters to be raised by the requested person. It is not for the requesting state to rebut them in advance and to seek to disprove the applicability of the restrictions before any of them have been raised. It would make little sense, for example, to require the requesting state to establish at the initial requesting stage that there was no prospect that the requested person ‘might’ be denied a fair trial (section 7(1)(c)).

“Finally, Mr Fitzgerald contended that Karen Atkinson’s affidavit was necessary to comply with the ‘required documents’ provision in article 8 of the treaty. In particular, it was said that her affidavit was necessary to provide “a statement of the facts of the case’; ‘a statement of the provisions of the law describing the essential elements of the offence’; ‘a statement of the provisions of law describing the punishment for the offence’, and ‘a statement of the provisions of law describing any time limit on the prosecution’. As an unincorporated treaty these are not, however, requirements of Bahamian law. Those requirements are as set out in the act.”

The board said for all those reasons, they rejected the appellants’ case on the authentication issue. They said while their reasons differed from those given by the Court of Appeal, they had the “benefit of more wide-ranging arguments” which were presented by the counsel of the respondents.

As it relates to the appellant’s delay argument, the Privy Council said they did not consider that the men could complain about not obtaining a hearing in “a reasonable time” in circumstances where they did not seek a hearing and “were content for the matter to be delayed”.

Austin Knowles was extradited to the US in May 2018. A year later, he was sentenced to 12 years in prison to be served concurrently for each charge he faced with a US judge knocking off about five years due to time served on remand in both the US and at home. As a result, he was expected to spend six years behind bars.