1-PHILIP GORDON JAMES BENWELL v. THE ATTONEY-GENERAL

006-SLLR-SLLR-1986-V-1-PHILIP-GORDON-JAMES-BENWELL-v.-THE-ATTONEY-GENERAL.pdf


30
Sri Lanka Law Reports
(1986) l Sri L. 8.
PHILIP GORDON JAMES BENWELLv.
THE ATTORNEY-GENERAL
SUPREME COURT.
SHARVANANDA, C.J., ATUKORALE, J. AND TAMBIAH, J.
S.C. APPEAL No. 56/84.
C.A. APPEAL No. 63/83 AND C.A. (REV.) APPLICATION No. 978/82.
H.C. COLOMBO CASE No. EXTRADITION 1/1981.
NOVEMBER 13. 14 AND 15. 1985.
Extradition – Extradition Law No. 8 of ! 977 – Authentication ofdocuments – Revisionary jurisdiction of the Court of Appeal.
In extradition proceedings under our Extradition Law No. 8 of 1977 the High CourtJudge as a Judge of the Court of committal exercises a jurisdiction conferred by thesfatute itself. Such proceedings are judicial proceedings and cannot be regarded aswholly administrative process and they are amenable to the revisionary jurisdiction ofthe Court of Appeal. The certificate appended to the proceedings by the StipendiaryMagistrate of the State of New South Wales constitutes due authentication although hedid not certify separately each page of the proceedings or the evidence of each witness.
The requisition for the appellants extradition to Australia where he was wanted oncharges of embezzlement and false pretence was correctly made to the Minister ofForeign Affairs.
Per Atukorale, J. :
Our extradition law provides for the extradition of fugitives to and from designatedCommonwealth countries and foreign States (called treaty States). Proceedings inextradition are founded on international obligations arising out of mutual agreementbetween different countries. These obligations involve a very high sense of responsibilityand commitment on the part of such countries. Extradition law is designed to prevent afugitive who has committed a crime in one country from seeking asylum in another to
sc
Benweii v. The Attorney-General
31
which tie has fled to avoid trial and punishment. It rests upon the plainest principles ofjustice. It is a law which is of vital importance to the public administration of criminaljustice as well as to the security of different countries.
Per Atukorale, J. :
It is indeed in the rarest instance that a fugitive from justice can be heard to complain ofunjust opression and harassment from proceedings lawfully commenced, though for asecond time, for the purpose of determining whether he should be extradited or not tohis country which he has fled and which is so anxious to secure his return in order tobring him to justice for the offences he is accused of having committed therein.
Cases referred to :
Alias v. Palaniappa Chetty (1917) 19 NLP 334.
Re. Ganapathipillai 21 NLR 481.
Thompson v. Gould [1910] AC 420.
Rex v. Oakas [ 1959] 2 QB 350.
Dr. Colvin R. de Silva with C. P. Ilangakoon (Jr.) and Miss Saumya de Silva for theappellant.
Priyantha Perera, Deputy Solicitor-General with K. C. Kamalasabeyson, S. S. C., Mervyr,Samarakoon. S. C. and T. G. Gooneratne. S. A. for the respondent.
Cur. adv. vult.
December 20, 1 985.
ATUKORALE, J.
The appellant is an Australian national residing in Sri Lanka. By arequisition dated 14.4.1981 addressed to the Minister of ForeignAffairs, the Attorney-General of Australia on behalf of the Governmentof Australia, whic‘‘ is a designated Commonwealth country for thepurposes ol the Extradition Law, No. 8 of 1977, requested that theappellant, a person accused in the State of New South Wales, of 18offences of fraudulent misappropriation contrary to s. 178 A of theCrimes Act of 1900 (N.S.W.) and one offence of false pretencecontrary to s. 179 of the said Act, be returned to Australia. Theappellant's extradition was sought under the provisions of theaforesaid Extradition Law of Sri Lanka, hereinafter referred to as theLaw. In pursuance of this request His Excellency the President, who isthe Minister in charge of the subject of extradition, issued in terms ofs. 8 (3) thereof an "authority to proceed to the High Court of Colombowhich then issued a warrant for the arrest of the appellant. After hewas arrested and produced the High Court commenced proceedingsunder s. 10 of the Law with a view to committing him to custody toawait extradition.
32
Sri Lanka Law Reports
(1986) 1 SriL. R.
At the hearing evidence was led in support of the request forextradition, li contained, inter alia, of exhibits El to E352 and thedepositions of witnesses contained in pages 1 to 260 of part A of theproceedings before the Stipendiary Magistrate of the State of NewSouth Wales. At the conclusion of the hearing the learned High CourtJudge discharged the appellant from custody upholding the mainobjection advanced on behalf of the appellant, namely, that there wasno due authentication as required by s. 14 of the Law of thedocuments setting out the depositions and exhibits produced inevidence before the Stipendiary Magistrate for the reason that thelatter had failed to comply with the provisions of s. 33A (2) of theExtradition (Commonwealth Countries) Act, 1966, which requiredhim, inter alia, to take the evidence on oath or affirmation of eachwitness appearing before him and to cause the evidence to bereduced to writing and to certify at the end of that writing that theevidence was taken by him. The learned Judge held that as theStipendiary Magistrate had failed to make the requisite certificateeither at the end of the writing of the evidence of each witness or evenat the end of the recording of all the evidence, there had been no dueauthentication of the said documents within the meaning of s. 14 ofthe Law. He therefore held that the documents were inadmissible inevidence and discharged the appellant.
The Attorney-General of Sri Lanka, who is the present respondentand on whose behalf evidence was led before the High Court, invokedthe appellate as well as the revisionary jurisdiction of the Court ofAppeal to have this order set aside. The Court of Appeal whilstupholding the objection of the appellant that there was no right ofappeal from an order of the High Court in extradition proceedingsoverruled his further objection to the maintainability of the revisionapplication and held that the jurisdiction of the Court of Appealextended to the revision of such an order. On the merits the Court heldthat the High Court erred in determining the question of dueauthentication of the relevant documents by reference to theprovisions of s. 33A (3) of the said Act of 1966 and ruled that thatquestion should have been determined having regard solely to theprovisions of s. 14 (2) (a) of our Law. Acting in revision the Court setaside the order of the High Court and remitted the case to the HighCourt for an appropriate order on the basis that the documents inquestion had been duly authenticated as required by our Law. Thepresent appeal is from this judgment of the Court of Appeal.
sc
Benwellv. The Attorney-General (Atukorale. J.)
33
At the hearing before us learned counsel for the appellant submittedthat the Court of Appeal erred in holding that it had jurisdiction inrevision in matters appertaining to extradition. It was his contentionthat extradition proceedings envisaged under our law, thoughconducted partly in the High Court and also, in the sole instance of anapplication for a writ of habeas corpus, in the Court of Appeal, arewhen regarded in their totality in the nature of an administrativeprocess to which the High Court is drawn as an instrument of thatprocess. Being an administrative process the only remedy, hesubmitted, in respect of any matter arising out of such proceedings inthe High Court is by way of writ procedure to the Court of Appeal andthat the revisionary jurisdiction of the Court of Appeal did not lie. Insupport of his submission that extradition proceedings are in thenature of an administrative process learned counsel pointed out thatno person could be dealt with under the law 'except in pursuance of anOrder of the Minister. . . issued in pursuance of a request to a Ministerby or on behalf of a Government" of the country or State in which theperson to be extradited is accused or was convicted ; that on receiptof such a request 'the Minister may issue an authority to proceedunless it appears to him that an order for extradition of the personconcerned could not lawfully be made in accordance with theprovisions of the law' ; that if a High Court judge issues a provisionalwarrant for the arrest of a fugitive person he must forthwith give noticeof its issue to a Minister and transmit to him the information andevidence upon which it was issued, upon which communication theMinister 'may in any case and shall if he decides not to issue anauthority to proceed' by order cancel the warrant and if the personconcerned has been arrested thereunder discharge him fromcustody ; that the High Court is only a court of committal and that incertain circumstances the Minister may not order extradition despitethe decision of the High Court to commit. Learned counsel stressedthat except in the case of a decision in favour of the fugitive person bythe High Court or by the Court of Appeal upon an application to it for awrit of habeas corpus, it is the Minister who eventually decides on theactual extradition, a decision which is dependent on matters of policyand expediency. He submitted that our Extradition Law is a selfcontained enactment subject to its own procedure and that it wouldoffend the very scheme of the law to hold that the revisionaryjurisdiction of the Court of Appeal was available in the particularcircumstance of this particular type of proceeding.
34
Sri Lanka Law Reports
[1986} I SriL. R.
The order of the High Court Judge which was sought to be revisedin the Court of Appeal is one that was made in pursuance of theprovisions of s.10(4) of the Law. s. 10(2) provides that for thepurposes of proceedings under s. 10, a court of committal (which isthe High Court) shall have the like jurisdiction and powers as thoughthe proceedings were in respect of an offence triable by that court. S.10 (4) stipulates, inter alia, that where an authority to proceed hasbeen issued in respect of a person arrested and produced before thecourt of committal and the court is satisfied, after hearing evidence,that the offence to which the- authority relates is an extraditableoffence and it is further satisfied, in the case of a person accused ofthe offence, that the evidence would be sufficient to warrant his trialfor that offence if it had been committed within the jurisdiction of thecourt, then the court shall, unless his committal is prohibited by anyother provisions of that law, commit him to custody to await hisextradition thereunder. But if the court is not so satisfied or if thecommittal of the person is so prohibited, the court shall discharge himfrom custody. Whilst subsection (2) of s. 10 in effect confers, in so faras proceedings under that section are concerned, the samejurisdiction and powers on a court of committal as if it were a court oftrial, subsection (4) mandates the making of an order after hearingevidence either committing or discharging him. A High Court judge asa judge of the court of committal is thus required to exercise ajurisdiction conferred on him by the statute itself. The proceedingsthat take place before him are judicial proceedings and the order hemakes is a judicial order. The submission of learned counsel for theappellant that extradition proceedings unde'r the Law are in theirnature a wholly administrative process cannot thus be sustained. Thequestion that arises next is whether such an order made in suchproceedings is amenable to the revisionary jurisdiction of the Court ofAppeal. The jurisdiction of the Court of Appeal to act in revision is setout in Article 138 of the Constitution. It enacts that the. Court ofAppeal shall have and exercise, subject to the provisions of theConstitution -or of any law, sole and exclusive cognizance, by way ofappeal, revision and restitutio in intergram of all causes, suits, actions,prosecutions, matters and things of which a court of first instance,tribunal or other institution may have taken cognizance. Therevisionary jurisdiction conferred on the Court of Appeal by this articleis indeed very wide and general and clearly it has the right to revise anyorder made by a court of first instance including the High Court. Thereis nothing either in the Constitution or in the Extradition Law or any
sc
Benwell v. The Attorney-General (Atukorale. J.)
35
other enactment which in any way limits or restricts the width andgenerality of the powers of the Court of Appeal to revise an ordermade by the High Court under s. 10(4) of the Law. The Court ofAppeal was therefore correct in holding that it had jurisdiction to revisethe order of the learned High Court Judge in the instant case. The viewI have formed gains support frdm two decisions of the SupremeCourt – Alles v. Palaniappa Chetty (1) and in Re. Ganapathipillai
– in both of which proceedings were taken under the EnglishFugitive Offenders Act, 1881, which was then applicable to Sri Lanka,in the former case the order of the Magistrate issuing'a warrant for thearrest of the fugitive was challenged by way of revision to the SupremeCourt whilst in the latter case the order of the Magistrate refusing toorder the fugitive to be returned to Kedah was sought to be revised. Inboth cases objection was taken that the powers of revision whichwere then vested in the Supreme Court were inapplicable toextradition proceedings under the Fugitive Offenders Act which, as inour Law, contained no legal provision for appeals or applications forrevision of orders made thereunder. In both cases the Supreme Courtoverruled the objection and held that the provisions of s. 21 (2), laters. 19 of the Courts Ordinance then in force were sufficiently wide toconfer on the Supreme Court the power to revise and correctproceedings held by the Magistrate under the Fugitive Offenders Act.It is significant to note that the provisions of s. 21 (2) of the CourtsOrdinance were substantially the same as contained in Article 138 (1)of the Constitution in so far as the jurisdiction in revision is concerned.
This brings me to the substantive question that was raised andargued in the High Court and the Court of Appeal as well as before us,namely, whether the exhibits E 1 to E 35,2 and the depositionscontained in pages 1 to 260 of part A of the proceedings held beforethe Stipendiary Magistrate of New South Wales have or have not beenduly authenticated as required by s. -14 (2) of our Extradition Law, No.
8 of 1977. The High Court held that they were not, as maintained bythe appellant. The Court of Appeal reversed this finding and held thatthey were duly authenticated, as maintained by the Attorney-General.The relevant portion of s. 14 is as follows
"(2) A document shall be deemed to be duly authenticated for the
purposes of this section –
36
Sri Lanka Law Reports
(19861 1 SriL. R.
in the case of a document purporting to set out evidence givenas aforesaid, if the document purports to be certified by a judgeor other officer in or of the country or State in question to be theoriginal document containing or recording that evidence or atrue copy of such document ;
in the case of a document which purports to have been receivedin evidence as aforesaid or to be a copy of a document soreceived, if the document purports to be certified as aforesaidto have been, or to be a true copy of a document which hasbeen so received ;
■■■ and in any such case the document is authenticated either by
the oath of a witness, or by the official seal of a Minister, of thedesignated Commonwealth country or treaty State in question."
In construing the true meaning of this subsection I do not think it ispermissible to have recourse to the corresponding provisions of theAustralian law of extradition as was done by the learned High CourtJudge. There is no justification for doing so. It is imperative that thecourt should have regard solely to the provisions of our law becausewhat constitutes due authentication of a document is set out in theabove subsection. The material portions of the certificate of theStipendiary Magistrate read as follows :
"I. Kevin Robert Webb, the undersigned, one of Her Majesty'sStipendiary Magistrates . . . hereby certify that on the third, fourth,fifth and sixth days of February, in the year of Our Lord onethousand nine hundred and eighty one. there appeared before me…. the persons hereinafter named who. being duly severallysworn, gave evidence on oath consisting of testimony given orally
for transmission to the country of Sri Lanka
And I further certify that I caused the said testimony of each of themto be reduced to writing which said writing is constituted in thedocuments annexed hereto and numbered "T to '260' inclusive.And I further certify that the said documents annexed, hereto andnumbered 'V to '260' are the original documents truly recordingthe evidence so given on oath in the Commonwealth of Australia bythe said persons and are a true record of the said testimony so takenby me.
.. And T further certify that the documents annexed hereto andnumbered as exhibits '1.' to '352' inclusive are true copies of thedocuments received in evidence by me in the proceedings
sc
Benwellv. The Attorney-General (Atukorale, J.)
37
conducted before me in the Commonwealth of Australia on the saiddays for taking the said evidence and testimony."
It is dated 12 .2. 1981 and signed by the Stipendiary Magistrate.There is also another document signed by and bearing the official sealof the Attorney-General of Australia, who is a Minister of theGovernment of Australia. It reads as follows :
' GIVEN UNDER MY HAND and OFFICIAL SEAL affixed to thetape binding all the annexed documents."
This is dated 14.4.1981. Hence there is only one certificate of theStipendiary Magistrate and a single affixation of the official seal of theMinister. The certificate is to the effect that the depositions are theoriginal documents recording the evidence of witnesses given on oathbefore him and that the exhibits are true copies of the documentsreceived in evidence by him at the proceedings conducted by him fortaking evidence. S.14(2)(a) of the Law, which relates-to depositions,stipulates that a document puporting to set out evidence given onoath shall be deemed to be duly authenticated if it purports to becertified by the Judge to be the original document containing orrecording that evidence and if it is authenticated by the official seal of aMinister. Similarly s. 14 (2) (b), which relates to exhibits, stipulates thata true copy of a document purporting to have been received inevidence shall be deemed to be duly authenticated if it purports to becertified by a Judge as a true copy of the document which has been soreceived in evidence by him and if it is authenticated by the official sealof a Minister. In my view there has been full compliance by both theStipendiary Magistrate and the Attorney-General with the two-foldrequirements of each of the above two stipulations. The fact that thecertificate of the Stipendiary Magistrate and the authentication of theAttorney-General relate to the entirety of the depositions and theexhibits does not in my view detract from the validity of the certificateor the authentication. The certificate of the Stipendiary Magistrateand the authentication of the Attorney-General of the entire setsufficiently vouch for the genuineness of each of the documentscomprising the bundle. There is no mandatory requirement, as urgedon behalf of the appellent, that each deposition and each exhibit (or atrue copy thereof) should ex facie be individually and separatelycertified by the Judge and sealed by the. official seal of theAttorney-General. To uphold the contention of the appellant would do
38
Sri Lanka Law Reports
11986] 1 SriL. P.
violence to the ordinary and natural meaning of the clear andunequivocal words of the subsection. A plain reading of thesubsection shows that there is nothing therein which bars onecomposite and all-embracing cerificate of the Judge given at the endof the proceeding before him or an authentication in a similar waybeing given by the Minister. "It is a strong thing to read into an Act ofParliament words which are not there, and. in the absence of clearnecessity, it is a wrong thing to do" -per Lord Mersey in Thompson v.
Could (3). "Where the literal reading of a statute…produces anintelligible result….there is no ground .for reading in words accordingto what may be the supposed intention of Parliament"-per LordParker, C.J. in Rex v. Oakes (4). Where the language of an Act is clearand explicit, the courts must give effect to it .whatever may be theconsequences for in that case the words of the Statute speak theintention of the legislature-vide Craies on Statute Law, 1 1th Edition,p.64. Under the circumstances I reject the narrow and strictinterpretation that was sought to be placed on s. 14(2) by learnedcounsel for the appellant and uphold the conclusion of the Court ofAppeal that there has been due authentication of the documents asrequired by that subsection.
It was also submitted on behalf of the appellant that the Court ofAppeal erred in exercising its revisionary powers in the special factsand circumstances of this case. It was specifically stressed that theappellant had already been put to the expense and harassment ofcontesting three extradition proceedings, namely, the first applicationin which the High Court committed him to custody in respect of 1 2 outof the present 1 9 charges, the habeas corpus application made byhim consequent thereon to the Court of Appeal which made orderdischarging him on the ground of insufficiency of evidence to warranthis trial on those charges and the proceedings in this case. His counselurged that it would be unjust and oppressive to put the appellant injeopardy of another proceeding for his extradition. Our extradition lawprovides for the extradition of fugitives to and from designatedCommonwealth countries and foreign States (called treaty States).Proceedings in extradition are founded on international obligationsarising out of mutual agreement between different countries. Theseobligations involve a very high sense of responsibility and commitmenton the part of such countries. Extradition law is designed to prevent afugitive who has committed a crime in one country from seekingasylum in another to which he has fled to avoid trial and punishment. Itrests upon the plainest principles of justice. It is a law which is of vital
SCBenwell v. The Attorney-General (Atukorale. J.)39
importance to the public administration of criminal justice as well as tothe security of different countries. The instant proceedingscommenced in consequence of a second request made of the SriLankan Government by the Government of Australia within whoseterritory the appellant is accused of having committed grave crimesinvolving embezzlement and false pretence. His discharge stemmedpurely and solely out of a misconstruction of the law by the Judge ofthe court of committal. It is indeed in the rarest instance that a fugitivefrom justice can be heard to complain of unjust oppression andharassment from proceedings lawfully commenced, though for asecond time, for the purpose of determining whether he should beextradited or not to his country which he has fled and which, is soanxious to secure his return in order to bring him to justice for theoffences he is accused of having committed therein. Considering thetotality of all the above circumstances including those urged on behalfof the appellant I am of the view that the interests of justice called forthe intervention of the Court of ADDeal bv wav of revision.
Learned counsel for the appellant also submitted that the requisitionfor the appellant's extradition was not made to the appropriateMinister in charge of the subject of extradition but to the Minister ofForeign Affairs and that the requisition was therefore bad in law. Icannot agree with this submission either. As pointed out by thelearned Deputy Solicitor-General, the Minister of Foreign Affairs,according to international practice, is the intermediary between onecountry and another and' communications between countries arechanelled through him. Moreover it is not the requisition of the ForeignMinister but the authority to proceed issued by the appropriateMinister of this country which empowers the Court of committal tocommence proceedings for the committal of the fugitive.
For the above reasons the order of the Court of Appeal is affirmedand the appeal is dismissed. I also direct the High Court to which thiscase must now be remitted to hear and dispose of the matter as earlyas possible.
SHARVANANDA. C. J. – I agree.TAMBIAH, J.-1 agree.
Appeal dismissed.