England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT

		CO/1139/2003 Royal Courts of Justice Strand London WC2
		2 July 2003

1. MR JUSTICE HENRIQUES: This is an application by way of habeas corpus under section 11 of the Extradition Act 1989 following the applicant's committal under section 9 of the Act by District Judge Pratt sitting at Bow Street Magistrates' Court on 17th January of this year.
2. The applicant is requested by the Republic of South Africa to face ten charges of indecent assault, all of which are alleged to have taken place whilst he was employed at a nursery school in Randburg, South Africa, as a freelance computer teacher. A warrant of arrest was issued on 21st August 2002 by a magistrate in the district of Randburg. The applicant is a British national with permanent South African residence status. He travelled to the United Kingdom and was arrested on 23rd August 2002. He was remanded in custody where he remains.
3. The offences alleged are extradition crimes under the Act. South Africa is a designated commonwealth country under section 5(1) of the Act and, accordingly, authority to proceed was issued by the Secretary of State on 4th November 2002.
4. A committal hearing took place at Bow Street Magistrates' Court on 17th January 2003 before District Judge Pratt. Five of the ten counts were not contested. In relation to those that were, it was contended on behalf of the applicant that the statements did not contain sufficient evidence for the court to commit, in particular in relation to charges 6, 8, 9 and 10. Complaint was made that the word "vagina" was placed in brackets within the statements of young girls in such a way as to alter the potential meaning of those statements. It was submitted that absent any explanation the statements were rendered inadmissible. Mr Hargreaves does not pursue that particular argument, he prefers to reply upon the alternative submission that there was an insufficiency of evidence.
5. The test to be applied by the district judge is set out in section 9(8) of the Extradition Act 1989:

(8) Where an authority to proceed has been issued in respect of the person arrested and the court of committal is satisfied, after hearing any representations made in support of the extradition request or on behalf of that person, that the offence to which the authority relates is an extradition crime, and is further satisfied ... "

that the evidence would be sufficient to make a case requiring an answer by that person if the proceedings were the summary trial of an information against him; in other words, does the evidence relied upon raise a prima facie case? Accordingly, it is necessary to look at each of the charges.

6. In charge 6 the statement of the alleged victim, aged 6, states:

"He put his hand into my pants and panty and touched my noenoe (vagina), he did not put his hand in my noenoe (vagina)."

As Mr Hines submitted in his helpful skeleton argument, once there is evidence that the applicant had his hand inside or on the victim's underpants, the issue of indecency is satisfied. No more need be said.

7. In relation to charge 8 the statement of the alleged victim, aged 4, reads:

"He (Uncle Ray) is naughty. He touches my flower (vagina).

I went to the doctor so they can see if there were spiders but there was no spiders in my flower (vagina). Only Uncle Ray's finger was in my flower (vagina)."

It is submitted that this passage makes no sense with the word "vagina" deleted. I do not agree. Any reasonable tribunal of fact would deduce that the word "flower" had been used as a childish euphemism for vagina. The visit to the doctor and the assertion that "Uncle Ray was naughty" permit no other interpretation.

8. In charge 9 the alleged victim, aged 6, states:

"Uncle Ray touched me on my piepietjie part (points to her vagina) and my tieties (breasts) ...

[He] put his hand inside my panty and played with my piepietjie (vagina). He also put his hand inside my top and played with my tieties (breasts)."

Once a hand has been placed both inside pants and a top there is the clearest evidence of an indecent assault.

9. In count 10 the alleged victim states:

"Uncle Ray touched me on my fanny (vagina)...

Uncle Ray would call me to sit on his knee and would touch (pat) my fanny. He did not put his hand inside but on top of my panties."

It is submitted that there are various meanings attributable to the word "fanny". The Concise Oxford Dictionary (10th Edition) gives two meanings to the noun, the first:

"British vulgar slang a woman's genitals;"

The second:

"Informal, chiefly North American, a person's buttocks."

Whichever interpretation a tribunal of fact chose to put on the noun would, in my judgment, result in a finding of indecency.

10. I have no doubt that there is a sufficiency of evidence in the statements of each alleged victim to warrant the district judge's decision. There is however supporting evidence both in the statement of Police Captain Ryan, who describes each child demonstrating what she alleged the applicant did, and each mother also describes what each daughter demonstrated during the taking of their statements. The district judge reached the only possible conclusion and, in my judgment, this application must fail.
11. LORD JUSTICE ROSE: I agree. Accordingly, this application is refused.