Jersey Unreported Judgments

[2010]JRC138A

royal court

(Samedi Division)

22^nd July 2010

IN THE MATTER OF THE APPEALS OF PHILIP ERIC DE FIGUEIREDO UNDER THE EXTRADITION (JERSEY) LAW, 2004, AGAINST THE DECISION OF THE ASSISTANT MAGISTRATE OF 3^RD NOVEMBER, 2009, AND THE ORDER MADE BY HER MAJESTY'S ATTORNEY GENERAL ON 23^RD DECEMBER, 2009 ("THE APPEALS").

M. T. Jowitt, Esq., Crown Advocate, for the Respondent.

Advocate M. St. J. O'Connell for the Appellant.

judgment

the commissioner:

1.        At a hearing held on 29^th March of this year, it was submitted by Advocate O'Connell on behalf of the Appellant that I should sit with Jurats on the hearing of the appeal against the ruling of the Magistrate.  It was said that there were questions of fact arising from the appeal which could only properly be decided by Jurats and were not matters which I should decide on my own as it was a situation where the Court would not be properly constituted for that purpose.  It was conceded that there was only one question of fact for the Jurats to decide and that all other questions were matters of law for me alone.  The sole issue of fact was the question whether it would be unjust or oppressive to extradite the Appellant by reason of the passage of time.  (See Article 19 of the Extradition (Jersey) Law 2004). 

2.        It was upon that basis and to that limited extent that I agreed to sit with Jurats.  However, Advocate O'Connell has further reflected upon the matter and has now come to the view that there is an additional matter for the Jurats to decide as the tribunal of fact and that the Court would only be properly constituted if the Jurats did so.  Therefore following a subsequent direction to the Appellant to identify the questions of fact which the Jurats would have to consider on the limited issue to which I have referred, I was surprised to receive an eleven page document dated 28^th June, not simply identifying the questions of fact but also suggesting directions to be given to the Jurats on a much wider issue.  This relates to the question of whether the offences specified in the request of the Commonwealth of Australia are extradition offences.  (See Article 3(2) and Article 15(3)(b) of the Law).  At first blush it might appear that this is a pure question of law for a Judge to decide.  However, Advocate O'Connell has submitted that it is a matter of mixed law and fact because he says there is a factual dispute between the parties as to what exactly is the conduct which it is alleged or complained about in the extradition request.  I have been referred to a skeleton argument which preceded the original hearing before the Learned Magistrate and it is urged upon me that it is a strict requirement of law and procedure as to what the Commonwealth of Australia would have to prove by reference to draft alleged offences and to do so with particularity.  Moreover, it was urged in the Court below that it was for the prosecution, that is to say Australia, to establish that the offences constituted extradition offences.  There are three matters which have to be established under Article 3(2) of the Law. 

3.        First, did the conduct occur in the designated territory?  Is that a question of fact or of law?  The Appellant himself has never set foot in Australia; it is nevertheless alleged that offences occurred there.  There is much on this subject from the Supreme Court of England or from the Judicial Committee of the House of Lords which preceded it.  In deciding that question the Royal Court would have to examine the opinions delivered in those cases in order to determine where the conduct occurred.  That is not a question of fact.  It is clearly a question of law which I shall have to decide having read the cases to which I shall no doubt be referred. 

4.        The second and important matter in this context is this.  Would the conduct constitute an offence under the law of Jersey if it occurred in Jersey?  Advocate O'Connell has sought from the Crown, a list of draft charges which would have constituted the offences if they were committed in Jersey.  Complaint is made that one particular expression or ingredient does not appear in the original request coming from the Commonwealth of Australia.  The Appellant may or may not have a good argument on that point, but it is an argument of pure law in my opinion.  It is not a question of fact for Jurats to decide, it is a matter for a Judge to decide and I shall reserve it to myself. 

5.        The third matter, about which no point appears to be taken, is whether the conduct is similarly punishable in Australia.  If that is raised then it is a pure matter of law again.  If any issue of fact has to be determined, I agree with Crown Advocate Jowitt, that it would merely be an ancillary matter which would be for me to decide when looking at the question of law. 

6.        In my view, these matters are substantive points of law.  I do not agree with Advocate O'Connell as to whether questions of fact arise.  He was right in the earlier concession which he made that there was only one matter of fact and that was the question of oppression or injustice to which I have referred.  That is the only question that I shall leave to the Jurats on the hearing of the substantive appeals. 

7.        I take the view that Article 32(6) does not exclude the possibility that further evidence may be admissible if justice requires. 

8.        I am asked once again, to consider an affidavit from Paul Gully-Hart who is a Swiss lawyer practicing in Geneva.  I found it necessary to make adverse comments on this on an earlier application in connection with an affidavit which had been placed before the Learned Magistrate.  In effect, what Mr Gully-Hart does is to refer to some evidence which it is said could be given by two witnesses, Mr Egglishaw and Ms Dupanloup.  Unfortunately the statements which these witnesses could give are matters which they are not prepared to support by sworn evidence given in Court.  Nor do I have any evidence from them by way of affidavit so the matter starts off at a disadvantage in that it is hearsay evidence, sworn to by Mr Gully-Hart of something which two other witnesses might say.  The Magistrate regarded the evidence contained in the Gully-Hart affidavit as speculative.  Without using that epithet in my opinion his evidence is inadmissible and irrelevant.  .These persons are alive and well and living in Switzerland.  In that sense they are available to give evidence but the reason they do not wish to do so, and I quote from the affidavit is that "to do so would have the potential to incriminate them".  I do not find that at all attractive.  It is submitted that it is the fault of the Commonwealth of Australia that Mr Egglishaw is, in the words Advocate O'Connell, unavailable to give evidence because they could have arrested him, tried him, for all I know convicted him, and put him behind bars.  I do not know what the outcome of any proceedings would have been.  The submission is that Australia let him slip through their fingers, he is no longer available to give evidence in Australia and he will not give evidence anywhere else by the sounds of it.  I regret to say that I regard it as a convoluted and ingenious argument, that by virtue of the passage of time he is no longer available to give evidence.  I reject that submission.  He is available to give evidence in the broad sense that I have described and the same applies to the lady.  The fact that they will not give evidence or cannot, as is asserted, give evidence, is not due to the passage of time, but to their reluctance to incriminate themselves.  I am not even told in what way that would occur.  Perhaps that is not surprising, because they themselves have said that they fear incriminating themselves.  Therefore I do not regard this evidence of Mr Gully-Hart as being admissible, it is inadmissible.  It does not go to the point of the passage of time.  Even if I were to admit it, I would treat it with great reserve and would direct the Jurats as to what, if any, weight they could place upon it.  For these reasons I do not propose to admit this affidavit. 

Authorities

Extradition (Jersey) Law 2004.