The Government of the United States of America v Heath; Government of the U.S.A. v Matthew et Al
| Jurisdiction | Saint Kitts and Nevis |
| Judge | Blackman, S.M. |
| Judgment Date | 28 October 1996 |
| Neutral Citation | KN 1996 HC 10 |
| Court | High Court (Saint Kitts and Nevis) |
| Date | 28 October 1996 |
| Docket Number | 431 of 1996, 429 of 1996; 430 of 1996 |
High Court
Blackman, S.M.
431 of 1996, 429 of 1996; 430 of 1996
Sir Frederick Smith, QC and Mrs. J. Joynerfor, Director of Public Prosecutions for the Government of the United States of America, (the Requesting Party).
Dr. Fenton Ramsahoye, QC, Dr. Henry Browne, Mr. Karlweis Liburd and Miss Karen Hughes for Messrs Noel Heath, Charles Miller and Glenroy Matthew, (the Requested Persons).
Extradition - Request by U.S.A. for extradition of persons to face charges for drug offences — Whether fundamental rights provisions of the Constitution were applicable — Whether illegally obtained evidence obtained by wire-tapping in the U.S. was admissible in the courts of St. Kitts and Nevis — Most evidence was affidavit evidence — Finding that the transcripts were incomprehensible and meaningless — No proper foundation was laid for the purpose of admitting the tape — In total the evidence did not justify committal of the accused in the Federation of St. Kitts and Nevis and they would be discharged.
These are two requests for extradition orders against Messrs Heath, Miller and Matthew, three nationals of the Federation, pursuant to the United States of America (Extradition) Order, 1976. The charges on which the court is asked to commit Mr. Heath are:
1. Conspiracy to supply a controlled drug, contrary to Section 2(d) and 6(3)(a) of the Drugs (Prevention of Misuse) Act, 1986.
Noel Heath, between 15th June and 5th July 1992, conspired with Bernagie Webbe and others to supply a controlled drug, namely cocaine, in the United States of America.
Conspiracy to import a controlled drug, contrary to section 2(d) and 5(3) of The Drugs (Prevention of Misuse) Act, 1986.
Noel Heath, between 15th June and 5th July 1992, conspired with Bernagie Webbe and others to import a controlled drug, namely, cocaine, into the United States of America.
Being concerned in the supply of a controlled drug, contrary to section 6(3) of The Drugs (Prevention of Misuse) Act, 1986.
Noel Heath, between 15th June and 5th July 1992, was concerned in the supply of a controlled drug, namely, cocaine, to another in Rochester, New York, United States of America.
Importing a controlled drug, contrary to section 5(3) of The Drugs (Prevention of Misuse) Act, 1986.
Noel Heath, between 15th June and 5th July 1992, imported a controlled drug, namely cocaine, into the United States of America, within the jurisdiction of the United States of America.
The charges on which the court is asked to commit Messrs Miller and Matthew are:
1. Conspiracy to supply a controlled drug, contrary to section 2(e) and 6(3)(a) of The Drugs (Prevention of Misuse) Act, 1986.
Charles Miller and Glenroy Matthew, between 1st August and 13th October 1994, conspired with Clifford Henry, Tyrone John, Vincent Morris and others to supply a controlled drug, namely, cocaine, in the United States of America.
Conspiracy to import a controlled drug, contrary to section 2(e) and 5(3) of The Drugs (Prevention of Misuse) Act, 1986.
Charles Miller and Glenroy Matthew, between 1st August and 13th October 1994, conspired with Clifford Henry, Tyrone John, Vincent Morris and others to import a controlled drug, namely cocaine, into the United States of America, within the jurisdiction of the United States of America.
It should be pointed out that these charges are those set out in the orders to proceed by the Minister of Foreign Affairs with respect to the requested persons, and may not necessarily be identical in every respect to the Grand Jury charges in the certified true and correct copy of the Superseding Indictment No. 95-CR-6064T dated February 28, 1996 in respect of Mr. Heath; and the certified true and correct copy of the Indictment No. 95–896-CR- Moore dated November 15, 1995 in respect of Messrs Miller and Matthew. Of course, the court is concerned only to inquire into those charges as set out in the order to proceed by the Minister which are more particularly set out in a document submitted to the court by Counsel for the requesting Party. The requests were heard separately. Mr. Heath's request was heard on August 19, 20 and 21, 1996; and Messrs Miller and Matthew's on August 22 and 23, 1996. The court then reserved its judgment and adjourned to a date to be notified.
At the commencement of the Heath's request, his counsel, Dr. Ramsahoye invited the court to consider whether there should not be a reference to the High Court pursuant to section 18(3) of the Constitution on the following grounds:
(1) whether the order for extradition which is being sought in these proceedings pursuant to The United States of America (Extradition) Order, 1976 will contravene section 14(1) of the Constitution; and
(2) whether the deprivation of liberty suffered by the alleged fugitives following the issue of the warrants or warrant and the deprivation of liberty which will be suffered following the making of the order sought, has contravened or will contravene section 5(1) of the Constitution and whether the arrangements in support of the request will be contravened in any way.
Counsel reminded the court that it had already ruled that by conduct the Treaty of 1972 had been accepted by the governments of the United States of America and Saint Christopher and Nevis, but that the court had not ruled as to whether the law in force in relation to the extradition proceedings, that is, the 1976 Order in Council required a modification after independence either by the Governor-General under section 2(5) of Schedule 2 to the Order (Transitional Provisions) or by Parliament itself subsequent to September 19, 1984. Counsel also submitted that the Constitution contemplated that when Saint Christopher and Nevis were no longer a territory in association with the United Kingdom, that there would have been a modification of that provision and that alteration had never been done. Counsel referred to section 14(1) of the Constitution and questioned whether an alteration of the 1976 Order in Council was necessary or not, and also section 5(1) of the Constitution in which the issue raised relates to the orders to proceed having been signed by the Minister of Foreign Affairs and not by the Governor-General. Counsel also contended that a statutory amendment was necessary and that the court should keep in mind two situations with respect to these extradition proceedings:
(1) what has already happened: and
(2) what will happen should a committal be made.
Counsel also referred the court to US Government v. Bowe (1988) 37 W.I.R. 9, a decision of the Privy Council.
Sir Frederick Smith, QC, Counsel for the requesting Party, in reply reminded the court that it had already ruled on the submissions now being made by Counsel on the other side, and that there was no need for any modification of the extradition laws by the Governor-General or by Parliament following the attainment of independence of Saint Christopher and Nevis. Counsel also referred the court to US Government v. Bowe (1988) 37 W.I.R. 9, which he said, has answered the points raised by counsel on the other side.
The court, after some consideration, ruled that thus far, no proper questions had arisen in which the fundamental rights and freedoms of the requested persons, as provided for in sections 3 to 17 of the Constitution, have been contravened or threatened. And so, the court found that the enforcement of those protective provisions as provided for in section 18 of the Constitution were not applicable in the present circumstances; and that there were no questions, at this time, which the court would wish to refer to the High Court for a ruling, pursuant to section 18(3) of the Constitution. The court also drew attention to section 3 of the Extradition Act, 1870 which imposes certain restrictions on the surrender of the requested persons, and section 11 of the said Act which mandates the magistrate to give them certain information about their surrender, should the court find that there is sufficient evidence to justify committal for trial. The court then ask that the matters be proceeded with.
Sir Frederick Smith, QC, Counsel for the requesting Party called his first witness, Mr. Gary Tuggle, a Special Agent with the United States of America Drug Enforcement Administration, assigned to the United States of America Embassy, Bridgetown, Barbados. Mr:Tuggle produced three bundles (of documents) No. 9612737–1; No. 9612832–1; No. 9618759–1, which he had collected from the United States of America State Department on June 9, 1996 and which were authenticated respectively on June 5, 1996, June 6, 1996 and August 14, 1996 by Mr. Warren Christopher, Secretary of State of the United States of America; and respectively on June 5, 1996; June 6, 1996; and August 13, 1996 by Ms. Janet Reno, United States Attorney General. These documents were all prepared in support of the request for the extradition of Mr. Noel Heath and were admitted in evidence as GT 1.
The bundle bearing the No. 9612737–1, was certified by Mr. John E. Harris, Deputy Director for Operations, Office of the International Affairs, Criminal Division, United States Department of Justice who certified that the attached documents were prepared in support of the request for the extradition of Mr. Noel Heath from St. Kitts and that the original affidavit of Mr. Bradley E. Tyler. Assistant United States Attorney for the Western District of New York was attached, and that attached to and included as part of Mr. Tyler's affidavit were the following exhibits —Exhibit A: A certified true and correct copy of the Indictment issued October...
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