CA' Lady Benwell v. The Attorney-General and Another'283
■• ; h/t y.
THE ATTORNEY-GENERAL AND ANOTHER
COURT OF APPEAL
DHEERARATNE. J. (PRESIDENT)'AND'S. N. SILVA. J.
C. A. APPLICATIONjNO: 20/87.
• OCTOBER 31.-19887NOVEMBER 01.02. 04 and 07. .1988..
Habeas Corpus — Extraditionu— Extradition-Law No. 8 of t§77 SS. 'Si''10. 1 f. -14. e1-6 — Revision — Authority to proceed — Who should grant it — Requisitesfor the'-grahvof- Extradition — Sho'Old order of committal ‘tie made by the sameJudge who heard the evidence? — Admissibi/iiyLdf record of Evidence given ’inthe requesting State — Standard of proof required for committal — When isextradition unjust arid oppressive because of'passage of time? '■ ■
■ Benwell w'a's'the Chief Securities Officer of-the U’rfite'd Dominion Corporation'(U.D.C.) ah Australia n^f 1 n'a n c i a I – i "n s't i t ut i o n ? H'e V^as'ch'arged undertime relevantAustralian1‘-statutes 'for 'dffencVsFbornmTttad'-dufihg‘-T2.0T/.77' to 09.06'.78.’Corresponding' to‘the‘'extraditable offences of "’criminal breach of trust1 andcheating under our law. Benwell left Australia’ escaping arrest. Upon a requestfor his extradition to the President who was also the Minister, of Defence hisSecretary sighed the-authority to proceed on,:Wh1ch was''ihitiate.d! committalproceedings'fdf-'extraditi'on'ih the High Court* DTaVe’vibence of a supefio'rdfficerof the'U.D:C.'vv'as led'before Court*and evidence recorded in?Australia was'aiso
. ,.,'>»‘ f r
produced. The Judge made order discharging Benwell. -This order was set asideby the Court of Appeal, acting in revision and thecase.was remitted to the HighCourt. The.order was affirmed by the Supreme Court. Committal proceedingswere resumed' before' a new judge. .No further evidence was led. .only writtensubmissions1-were tendered. -Benwell was'committed'"to' custody’ to‘awaitextradition by order dated. 12:0.1.8,7.
In terms of Section 8 the Minister^of Defence.is the, appropriate functionary
to consider and to make a decision as.to whether an authority to proceed shouldissue upon a req.uest for extradition. The .authority.to-proceed ..issued, signed bythe Secretary to the President instead of the Secretary to the Ministry asrequired.by section 16. is; a-'Pefect-which pertains > only) to-‘the form ofcommunicating it and does not.effect the validity of the order itseif.■■
Proceedings for extradition do-not take the character of’a trial andproceedings-before, the.'new Judge need-not be'taken de novo: The gist of thematters to be considered in the first instance regarding a person not-Convicted
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of an offence under sec. 10(4) are fa) Is the offence extraditable? (b) Has therequired standard of proof been established (c) Is committal prohibited byfaw? These matters could be decided, and an order made upon the evidencetaken in the requesting State. It'is not ess.entialthat the same judge whoheard thf?evidence should make the order.
The standard of proof required in committal proceedings for extraditionin terms of section 10(4) (a) is not higher than what is required for. committal.for trial in non-summary proceedings under sec. 1 54 of the Code of CriminalProcedure Act No. 1 5 of 1 979.
The words "Shall be admissible in evidence" appearing in the provisionsof sections 14(1) (a) and 14 (1) (b) have the legal effect of eliminating theprocedural steps that would otherwise have to be complied with in order toadduce evidence before the judge.
The facts in issue are whether the cheques were received at the U.D.C.and if so whether they were misappropriated in the manner stated in thecharges, and NOT the making of each cheque. Therefore it is unnecessary tocall the persons who signed the cheques in terms of sec. 67 of the EvidenceOrdinance. The evidence can sustain charges of criminal breach of trust andcheating, under our law and these are offences for which extradition is.permissible.,,.. ….
The test. whether passage of time' renders extradition unjust andoppressive is 'will delay.cause prejudice to the corpus at the trial to be had inthe requesting State and will it result in an injustice to him in terms of section.1,1 (3) (b)._of|the Extradition Law'.
Cases referred to:
Benwell v. Republic of Sri Lanka [,1 978.- 7,9] V Sri LR 1 94. 205
Union of India v. Manohar La! Marang [1 977] 2 All ER 348, 353
Government of Australia v. Harrod [ 1 975] 2 All ER 1, 10. 114'. Sclitraks v. Government of Israel [ 1 962] 3 All ER 529 .
5/ Henderson v. Secretary for Home Affairs [ 1 950] All ER-283, 2876. r.Kakis v. Government of Cyprus , Weekly LR 7 79• APPLICATION for writ of Habeas. Corpus
/?.. K. W. Goonasekera with P.. Illangakoon and Sanatha Senadira for thepetitioner. ■ ,#•••
Lady Benwe't v. The Attorney-General and Another (S. N. Silva, J.)
Upawansa Yapa. D:S.G. with K. Kamalasabaysan. D.S.G. for the respondents.
Cur. adv. vult.
December 16. 1988
S.NT SILVA. J.
Applications,, for- a writ of Habeas Corpus and for theexercise of the revisionary jurisdiction of this Court, have beenfiled, in respect of the Order dated 1 2-01-1.987 made by theHigh Court Judge, Colombo, in terms of section 10(4) of theExtradition Law No. 8 of 1977, committing Phjlip Gordendames Benwell1 to custody to await his extradition to theCommonwealth of Australia. This Order was made in■proceedings initiated upon an authority to proceed dated08-07-1981 issued by the President being the Minister incharge of the subject of Extradition, in terms of section 8.(3) ofthe said Law.''
.The request for extradition is based on 19 warrants issuedfor the arrest of Benwell in the Commonwealth of AustraliaThesfe• warrants relate; to' eighteen offences of fraudulentmisappropriation (punishable under section L78 A of theCrimes Act No. 40 of 1900 of New South Wales) and oneoffence of obtaining money under a false pretence (punishableunder sectipn 179 of the said Act), alleged to have bdencommitted by Benwell during the period 12-01-1977 to 09-06-1978: The requesting state has also sent the evidencerecorded by the Stipendiary Magistrate of'New South Wales,against Benwell. This consists of the evidence oi 43 witnessesand of 352 docUrrients. The total loss alleged to have beencaused to the United Dominions Corporation of Pitt Street.Sydney (U.D.C.) consequent to the said offences, is stated as$ 108.431.25.
The initial request for the extradition of Benwell was made in1978. In these proceedings the'High Court Judge made orderdated 02-02-1979 committing Benwell to custody to awaitextradition, in terms of section 10(4). The order was set aside
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by this Court in an application for a .Writ of' Habeas Corpus(Benwell vs. Republic of Sri Lanka Thereafter, evidence•referred to above was recorded in the requesting State and afresh authority to proceed dated 08-07-1981 was issued tothe High Court. In addition to producing the record of theevidence, an employee of the U.D.C., Berg Oliver, under whomBenwell worked at one stage, was called as a witness and wascross-examined by the Counsel appearing for Benwell. At the .conclusion of the proceedings, the High Court judge upheldone of the objections urged by Counsel that the record of theevidence had not been duly authenticated in the requestingState'and discharged Benwell. The. Attorney-General moved inrevision ..against the order. A bench of three. Judges of thisCourt allowed the application .and set aside-the order of theHigh Court Judge discharging Benwell. It was held that thedepositions and documents led in evidence were duly■ authenticated within the meaning of section 14(2) of the'Extradition Law. The case was remitted to the High Court "foran appropriate order in terms of section 10 of the Extradition:Lay/ upon a consideration of the. deposition and documentsand other evidence already. recorded against the Respondent,after hearing the parties”. This order was affirmed by theSupreme Court.after hearing an appeal filed-by Benwell.
When. proceedings- resumed before the High Court, nofurther evidence was led and'both Counsel tendered writtensubmissions. Thereupon the learned High Court Judge madethe-order that is now challenged. In the said order the learnedHigh Court Judge dealt with the evidence relevant to each ofthe charges-.separateJy .He found that the offence of fraudulentmisappropriation being the subject of eighteen chargesconstitute the .offence of criminal breach of trust under our- lawand. as such is an extraditable offence. The offence of•obtaining money under false pretence was found to constitutethe offence of cheating under .our law. which is alsoextraditable. He also held that the evidence led by the Statewas sufficient to warrant the trial of .Benwell if the offenceswere committed in Sri Lanka..
CA Lady Benwell v. The Attorney-General and Another (S. N: Silva. J.)287
The learned High Court Judge observed that Benwell adopteda certain modus operandi in respect of the transactions coveredby the eighteen charges of fraudulent misappropriation. Counselfor the Petitioner did not address this Court specifically with.regard to the said charges but urged grounds that are generallyapplicable to them. Therefore, I will now set down the facts asdisclosed by the evidence, relating to these charges.
The U.D.C. is a financial institution that took’deposits placed bythe public and lent money inter alia on the security of real estate.Benwell was an employee of that institution' from' 20— 1T-1972up . to 09-06-1 978" and at- the. material. time served1 as aSecurities Officer. His functions ineluded-the custody£>f securitydocuments (original-'mortgage bonds, title deeds ete.^and thesettlement and discharge's of real estate transactions entered intowith the U.D.C. Ordinarily the amount due is amortized by. .periodic' payments. However, in certain instances, mortgagorsseek to discharge their liabilities prematurely because they intend •■ to sell the properties. The money for such settlement is advancedby the intending purchasers. The procedure followed in the caseof such premature settlement is as follows: .
The mortgagoro'r his solicitoror agent requests the-U.D.C. to .notify the pay. out figure for the purpose-of the settlement of themortgage. This request is attended to by a Securities Officer whogets the pay out figure calculated by .at least two officers, onewhom may be the Securities. Officer, himself. The Securities.Officer notifies the pay out figure to -the. mortgagor or hissolicitor or agent by letter. ..He also gets',ready to effect thedischarge of the mortgage by preparing the form titled"Discharge of Mortgage", and the Attorneys who'are authorisedto sign on behalf of the U,D.C. place their signatures, at this stagewithout writing the date. The Securities Officer .retains the formuntil payment is made. On receipt of the cheque for the pay outfigure that had been notified, the Securities’Officer signs' as awitness on the discharge form and also writes in the date.According to the evidence the practice of the Attorneys signing 1prior to receiving payment had to be evolved because severalmortgages were discharged every day and it was not possible forthe Attorneys, to be pres'ent at the time each payment was
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effected. Further, the mortgagors wanted the form of dischargeto be given at the time of payment in view of the impending saleof the property. Thus it vyas the sole responsibility of theSecurities Officer to ensure that payment is received before theform of discharge duly signed and dated is issued.
The Securities Officer then, sends the cheque and/or the cashreceived in settlement of the mortgage to the cashier. For this• purpose he writes, out a coupon specifying the name andaccount number of the mortgagor and the amount received andsends the cheque and/or the cash with the coupon to. thecashier. The cashier issues a receipt in duplicate. The original isdespatched to the mortgagor and the copy called the postingvoucher i§ sent to the ledger keeping clerk who credits theamount received in the mortgagor's ledger card.
Members of the public invested money with the U.D.C. andwere paid interest at a floating rate. The memt irs of the staff ofthe U.D.C. were also permitted to avail of this facility and theywere paid interest at 1% higher than the public rate. Benwell hadan investment account which at the relevant time bore thenumber B.E N.' 9000. The amounts credited to this account aredescribed as unsecured deposits and could be withdrawn ontwenty-four hour's notice. Fie also had two real estate accountswith the U.D.C.. where money had been borrowed on the securityof property owned by him and two hire purchase accountsrelating to motor cars used by him at different stages.
In the transactions that relate’to charges 1,2,5,126.96.36.199,11,and 1 4 it’ is in evidence that the cheques (made out in favour ofthe U.D.C.) received for the settlement of the mortgages wereused by Benwell to purcha.se unsecured deposits to the credit ofhis investment account B: E, N. 9000. For the purpose of makingeach deposit a document titled "Application form for unsecureddeposit" has to be submitted. The relevant forms signed anddated by Benwell were produced marked ,'E 181'toE 191'. It isalso in'evidence that in respect of the transactions relating tocharges 188.8.131.52.10.11 and 14. at the time of making eachdeposit in addition to cheque received from the mortgagorsBenwell had added a relatively small sum out of his funds tomake a. deposit of a round figure. For instance in respect of
CA Lady Benwell v. The Attorney-GeneralandAnother (S A' c.'.Va. 7 ;289
charge No.1 the application for the deposit (E 181) submitted vbyBenwell was for $ 18.400/- which comprised of the Cheque for$ 18,355.96 sent by the mortgagor and a cheque for $ 44.04made out by Benwell. The statement of the •‘account B.E.N. 9000was produced marked-'E 22 T’.'This opens'with a deposit Of $.2500 made on 04-05-1 976. By 03-1 1-1976-the account hada nil balance. Thereafter the 'amounts that relate to the severalcharges referred to ?abdve were credited and-a total, of $
1 10,884/30" was deposited to his account. From'time to . timeamounts had beeen withdrawn from this account with interest-.'The filial withdrawal of $23,563/74r; was" made 6n
' 07-06-1978, two days before Benwell left'the U.'D.C. andAustralia,. Thereupon the account had a nil Balance, once again.'It is' in'eviddnce that in connection with the nine charges referredto above. 'Benwell1 functioned' as The' Securities Officer who '"attended to the's'ettlement and‘discharge of the mortgages?!Hehad" signed’ as a withess and placed the' date-in the forms-ofdischarge. Theformsdf discharge thus perfected by Benwell hadbeen received, by the respective mortgagor's or their agentswhoattended to the settlement. •'■' ‘. '.
In respect of the transactions that relate to charges3.4,184.108.40.206.16 and 19. the cheques.,received from . therepective mortgagors at different times, were utilized by.Benwellto . settle the amounts due. from , the, mortgagors -whosetransactions constitute the s,object of the charges dealt wittijnthe preceding paragraph. For instance, the sum-of $ 18.355/9.6paid by Winter (charge. No… f) g,n. 1 2-01-rl 977 was. used, byBenwell to make an unsecured deposit to. the credit of hisaccount B.E:N. 9000. The sum of $; 1 S.'ABO paid.by'JayervPty.Ltd..(charge No. 3) on . 1 2-02-1977 was paid .by Benwell to theaccount of Winter. The sum in excess of what was required tosettle Winter's account, i.e. a sum .of $ 124/04 had beencredited by.Benwell to>the Sundry Debtors Account! into which.Registration Fees; valuation fees and the like are credited. In "all.these instances couponsto. credit the cheques to the particularaccounts were written by Benwell. In-certain instances-thenumber of the account had^been written on the reverse of thecheque by, Benwell. In respect of the transactions dealt with inthis paragraph as in the case of the transactions dealt with in the
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previous paragraph, the forms of discharge had been perfectedand handeckover to the mortgagors or their agents. In respect ofthe transactions covered by charges 4,220.127.116.11.10.11 and 13.Benwell made-periodic payments of interests to the credit of therespective accounts although the mortgages had been previously.settled..The coupons to effect these, payments were vyritten byBenwell and-the tfunds were provided by him. For instance, on23-2-1977 Pavletic paid- $ 1 7.875/-to settle his mortgage: Thischeque (E 227) was used by Benwell to settle a previoustransaction which is the ^subject matter of charge No. 3.Thereafter, Benwell.made six periodic payments $. 286.64 eachto .the credit of Pavletic's account. The.six coupons (E 294) toeffect these payments were written by Benwell and the .relevantcheques,.(E-.155v 156. 1 57.-1 57-, 1 58. 7.0: 71,and 72) weresecured,by him. Thus the accounts, were kept in order (withoutgoing-into default) by BenwelJ. until they were paid up fully from-the,-proceeds of, a subsequent settlement or up to the timeBenwell'-,-left.,the' UD-.C., and. Australia. The sum referred to incharges 6„ 1 3; ,T5, 1.6.^1 7., 18 ari.d. 1 9. remained unpaid althoughBenwell had discharged the mortgages and received payment.The' total loss suffered by the U.D.C. as stated above, is$….108,431/25, ……
"/ in respect' of tfie'transaction relevant to Charge No. 9. on 1 2-0T.-i’9'70 Benwell received two c'heques to the value of $973.1^23'from-Wils.oni being the; pay out figure on the latter'smortgage. The receipt issued to Wilson (E 231) has been'writtenadd’signed by'Benwell! .At‘the''bottom of the receipt (E 231),Benwell made the following endorsement:'
flOdiO !' ri. xx-* '..j ix-m ; t .'''' ,
■ '"Being’ f u 11. & :f in a I payhn e nt for-loan-Ac R*. L.-T ^2478'A4". This isthe ndmber ofWilson's' account: Thereafter Benweli used one of.the'ser cheques (E 2-30) to‘-settle. the. -amount.. due from Zilma(mortgager -in Charge- No. 7). and the other cheque (E ‘ 1 96) tomake1 an'uhsecuned;.deposit in-his personal'account B. E.-wN.9000.;Benwell has. written -out the account number -of-Zilma' ohthe.1 .reverse:iof' the'cheque-■(£.- 230).uBenwell- paid- the periodic
instalments ton Wilson's raccount until theeum due was paid fromthe p'roceeds'ofa later settlement-which is’the-subject-.of charge■ No.:h.h3.:-Th-us'the.'evidence with regard to'this, charge .disclosesthe different aspects ofthe modus'operandi adopted by'Benwell.'
CA ■ Lady Benwell v. The Attorney-General and Another (S. N. Silva, J.)291
It was noted: above that Benwell had two real estate accountswhere-he had.borrowed money.from the U.D.C. It is in evidencethat .caveats had not been lodged'in favour-of the UlD.C. in,respect of the mortgaged properties, as required1..The mortgageswere also, not registered, as required. Thus Benwell was able tosell the properties and appropriate the -proceeds withoutdisclosing the sale's to'the'U.'D C- However.'he eontihijed. tomake the periodic instalment payments up to.May 1 97-8 to avoidthe loan-accounts from going into default. In Ji5ne T978i shortlyprior to his departure. Benwell1 useci two ^cheques given by.BeChara (charges lo an'd 18) to* pay out th§ l'at't'ers:mortgage. tosettle his two'real estate accounts with the U.D.C.
Charge No. 12 relates to a.'hire purchase agreement that’ genwell enteredrinto..with the U.D.C..in respect of .a Toyota^Motpi;.car bearing registered Ng.'"C.O.P^ .3,0 ^“VVh,jls!t:fthq.'a.greemenfwas in force Benwell' sold the' car' to S. Wa'rmeant for fullconsideration. Warmeant .purchased the car on the,-basis thatBenwell was the, owner,. .It is in,evidence .that under the applicablelaw in (slew South Wales, there.is no provision .as ip.Sri, Lanka, toregister the name of the absolute owner.''Even after the safe toWarmeant.; Benwell continued to-rgake the periodic Jnstalment.payments on the hire purchase agreement yp/itphhetigri.e of his: departure, to prevent the account from going into default. Afterhis departure.: Warmeant who was' unaware-of the hire purchaseagreement did. not tnake payments to .the U.D.C. and the. vehiclewas repossessed by the U.D'/Cu being 'the owner.cThe charge.-isthat Benwell obtained money.on false pretences from Warmeant-.
: Counsel for-.the Petitioner urged Jhedollowingispecific groundagainst the order of committal made by the learned High .Court-Judge:
. (i)-.. thatfhe.authority to proceed issued, in terms of .section -8 of' – the Extradition Law''.by the President as the Minister.; ini charge of .the .subject of-.Extradition.has been signed-by theSecretary to the-President and hot by the Secretary .to the..appropriate- Ministry as required by .section 8 read with'-. section-16 of the said law; ,
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that the learned High Court Judge should have taken. proceedings de novo after the case went back to the HighCourt upon, the- order of this Court, which was affirmed bythe Supreme Court;
(ii.i) that in -. respect of the 18 charges of fraudulent■ misappropriation, the cheques given by the mortgagors hadin fact gone into the account of the U.D.C. Even assumingthe evidence is accepted. Benwell had only failed to complywith instructions of the U.D.C. with regard to the manner invyhich cheques should be dealt with after they are receivedat the U.D.C. Such non-compliance of instructions byBenwell do not amount to fraudulent misappropriation of.
. the cheques;
that certain documents relied upon by the learned High, Cqurt Judge'are .inadmissible under our Law of Evidence;
' that' the evidence with regard to charge No. 12 does not
"' warrant a trial of Benwell for-the offence of cheating as held
-'-by the learned High Court Judg'e;
(yi)' that in any event, it would1be unjust or oppressive toy extradite Benwell. -■
.' -;ln ter.ms-of'section'8(;1) of the Extradition Law no person shallbe dealt with under .the provisions of the Law except in'pursuance-of'an order:of.the Minister. This order is referred to asthe/’authbrity to proceed". Section' 16 provides that any orderrequired to be made by the Minister "shall be in the prescribedform and shall- be given under the hand of the Secretary to theMinistry";
Article 44(1) of the Constitution requires the President todetermine.–ithe. number, of Ministers and the subjects andfunctions'oC. such Ministers. This . division ' of subjects andfunctions constitute, the – constitutional, process of creatingMinistries. In terms of Article 44(2):the;President may determinethe number of. ministries-to'.be.m his charge. Further, the-residuary subjects and functions, being the subjects and
CA Lady Benwell v. The Attorney-General and Another fS. N. Silva. J.) '293
functions not assigned to any Minister, remain with thePresident. The sub-article also provides that where any subject orfunction is with the President, the. reference in the Constitution or .any written law to the Minister in relation to such subject orfunction shall be read and construed as a reference . to thePresident… '■.
According to- the determination of subjects and1'functionscontained in Government Gazette 86/8: dated 3Q-04-1 980. thefunction of extradition has been assigned to -the Minister ofDefence. The President is in charge of. this Ministry. Therefore,the reference in section. 8(2) of-the Extradition Law1 to theMinister has to be;: read and -construed as a reference;'to thePresident.
Article 52(1) of the Constitution provides that there shall be foreach Ministry, a -Secretary appointed by/the President: It-iscommon ground that at the relevant' time there was. a personappointed as Secretary tothe'-Ministry of- Defence as1 distinctfrom the Secretary to the President/Therefore, the reference insection 1 6 of the Extradition Law to the Secretary has to be taken■ as a reference to the-Secretary to the Ministry Of'Defence. :
A further aspect ‘comes up for consideration in view of theRegulation that has been made in terms of section 1 6 of theExtradition Law. In terms pf this section! the^authority.to proc.eedhas to be-in the. prescribed form-and given under the hand of theSecretary to the Ministry. The regulation made for this purpose is,contained in..Government.Gazette. 5/3 dated 09-1 0-1 9.78/ .
The relevant prescribed "Form A” contained in the schedule to 'Regulation cannot provide, for'the authority to proceed, to be^signed by any other than, the Secretary to . the appropriateMinistry. Therefore the1 provision in "Form A" of the Regulationfor,the signature of the.'Secretafy to the President, is in.conflictwith' the Specific provision in section 16 ancHs to. that extent'ofno force or avail in lavy..
‘ Now. it has to be considered whether the authority-to proceed
. is itself ijlegal-because it. was-vSigned by.the Secretary to:'the-.
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President and not by the Secretary to the Ministry of Defence. Interms of section 8 the Minister is the appropriate functionary toconsider and to make a decision as to whether ah authority toproceed should issue upon a request' for extradition. TheSecretary is vested with no statutory power in this regard. It is hisfunction merely to put down in writing the order of the Minister,for the purpose of communicating it. In this case, the appropriateMinister empowered to make the order in terms of section 8 isthe President. The.document dated 08-07-1 981 contained in therecord shows on its face, that the President considered therequest for extradition and decided to issue the authority toproceed… Further, when.' proceedings commenced in the HighCourt on the basis of;this order, Benwell appeared in Court andcontested the extradition without raising this objection. It was noturged as a ground of.objection in the previous proceedings hadin this Court-and-the Supreme Court. For the reasons statedabove, I hold.-thatdhe authority to proceed being given under thehand of the SeCretary.to the President, instead of the Secretary tothe Ministry of-Defence, is a defect that only pertains to the formof communicating the order and-that this defect does not affectthe validity, of the order.itself which was made by the President as‘ the ap'proRfiate_Minister>
.I will now consider the second ground of objection urged by'Counsellor the Petitioner, that proceedings should have beentaken'ote novo before thej High Court. In the earlier proceedingsbefore the High Court the State.led the evidence of witness Oliverwho vyas cross-examined, by Counsel-appearing for’Benwell andalso produced the record of the evidence taken before theStipendiary'Magistrate in New South Wales. Thereafter Counselfor the State submitted that,he was not leading any further"*eVidqnc,e' and „Sepior-jCounsel for Ben.well.-submitted that he wasnot caNing any evidence oh behalf of "the a.ccused". Submissionswere' made" by both. Counsel and the learned High Court Judgeupheld the Objection, with regard to the authentication of theevidence taken in New South Wales. In. revision, this Court heldagainst, that ground .of objection arid B.E. de S,ilva, J. with theother Judges agreeing, made order as follows: •'
" ? "I remit the case to the High Court for an appropriate-orderin terms of -section'10 of the-Extradition Law No. 8 of V977
CA Lady Benwelt v. The.Atiorney-General and Another (S. N. Silva. J.)
Upon a consideration of the depositions and documentsand other evidence already recorded' against therespondent, after hearing the parties."
This order was affirmed by the Supreme Court.r
Counsel contended that since the earlier proceedings werehad before a different High Court .Judge, the High Court . Judgewho finally made the order should have commenced de novoproceedings…..
Proceedings for extradition =do not take the character of. a trialagainst the person whose extradition is sought. In respect of aperson:who hasnot been convicte.diof an offence, the matters .tobe considered by the Judge, as contained'in section 10(4) of theExtradition Law are as follows:
(i) whether -the offence to which the authority to proceedrelates is-an extraditabld'Offence under-the-Law;‘ :
(iij whether the evidence tendered in support of the requestrfor• extradition of the-person isvsufficiept to warrant hisitrial forthat.offence if it had been committed within the jurisdictionof the Court. This requirement stems (from the rule of."double criminality" in the Law of extradition;
whether the committal of the person is-prohibited by anyprovision ofthe law. This relates to the general restrictionson extradition contained irfsection- 7 of the Law. r ' r ■'
Section 10(4) read .with'’section 14(1) (a) -land (b) of theExtradition Law provides for. the evidence recorded in therequesting' State and the documents received in such evidence,to be tendered in supporrof the request for extradition.
. In the light of the-matters to be considered by the Judge andthe nature of the evidence that may.be tendered in support of therequest , for extradition, it is not essential that the order forcommittal .should be .made by the same Judge who heard’theevidence. It is apparent from the. contents of the respective
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judgments that, neither this Court nor the Supreme Court,contemplated a rehearing of the evidence to take place beforethe High Court. The order remitting the case to the High Courtwas clearly intended for the purpose of affording the parties anopportunity to make submissions on the matters referred toabove, since these matters had to be considered in the firstinstance by that Court. Further, the requirement for the Judge toobserve .the demeanour of witnesses, being an importantconsideration at an ordinary criminal trial, does .not apply toextradition proceedings where an order could be made on thebasis of evidence taken in the requesting State. The learned HighCourt Judge provided an.adequate opportunity to the parties tomake submissions. The Petitioner did not move to lead evidenceon his behalf. In the circumstances. I see no merit in this groundof objection urged by Counsel for the Petitioner.
The next two-grounds urged by Counsel relate to the evidence. that, was led as to the charges of fraudulent misappropriationand. may conveniently be dealt with t'ogether. Counselsubmitted' that the several cheques given by the mortgagors were made o.ut..in favour .of the U.D.C. and .'that the U.D:C. in fact received theproceeds of these cheques… He therefore submitted that Benwell■ did not misappropriate the cheques. Further, that the impugnedacts constituted, if at all. afailur-e to comply with'the instructionsof the U.D.C as-to the, manner in which the cheques should bedealt .with. As to the other ground of objection Counselsubmitted that’the cheques received in settlement of the severalmortgages, were not. proved,, in that the persons who signedthese cheques vyere not called as witnesses-. Since’.these■objections relate to the sufficiency and admissibility of evidence,
. it is necessary to consider the law on these aspects.
•*pr! \■‘ , •
' .Section h.4( l)(a); and (b) of the Extradition Law provides that,the evidenpe given on path and the documents received in" evidence in the requesting-State, upon the authentication, shallbe admissible, as-evidence.- in proceedings for extradition. Theidentical provisions, ard' coritaihed in'isection 11.(1.) (a) and (b) ofthe Fugitive Offenders Act. .1967 of Engl'and. In Halsbury's Laws; of England (4th Edition) Vol. 18, p.144 and 1'46, it is stated thatthis section "is an ^enabling provision which allows'-docurhentS• with due authentication to'.be considered,ht does not prevent the
CA Lady Benwell v. The Attorney-Genera! and Another (S. N. Silva. J:)
rejection of evidence taken abroad which infringes the EnglishLaw of Evidence". In the book titled. Extradition.: Law andPractice, by Stanbrook and Stanbrook (.1980) at, pages 55, it.isstated asdollows:
"Depositions, affidavits and statements or declarationsmade on oath or by affirmation are admissible as evidenceurider these provisions but their contents will be'rejected if'they infringethe rule’s of evidence. Section 11 covers thbprocedure and method of presentation'Of evidence, not itscontent."
In the ease.of Union-of India vs. Manohar La! Marang (2) theQueen's Bench Division following'what was said by ViscountDilhorne in Government of Australia vs. < Harrod (^hruled -that-in .proceedings for committal the law Of the requesting State is not.relevant to-the question of the .-admissibility of evidence'but that .the matter should be dealt with under English Law:. The decision .of the Queen's Bench Division in this case was overruled by the .Housetof.Lords but on’anothenissue.'1
In Ben,well vsiRepublic of Sri Lapka .HI it. appears' .that,fgis .Court followed the..authgrihes .Stated ‘ above .on this aspect.rAtgage 205.,'.Cblin-Thpme. J.-stated as follows:, ■
"Section 14(1 )('a) 'of tbe said Law'is-only'an enabling'.provision and is not intended to prevent the rejection ofevidence taken abroad contrary to .the rules of evidence in' 'Sri Lanka or inadmissible thereunder..'' '•• •4
1 Our Law of Evidence, is contained in the Evidence Ordinancewhich in section 5 provideswthat evidence, may ;be .given, in'any 'proceeding, only-of . the existence or non-existence of facts inissue >. and of other facts” declared; by the provisions of theOrdinance to be:relevant: Even within this area, of relevanfcy laid'down by the Ordinance.,prohibitions, are contained im specific,provisions that provide fOr-certain facts not-to be proved (section25) or-.that;certain facts are irrelevant (section 24).-Racts -ofwhich.evidence is thus-permitted to. be given may be proved byoral or .dopumentary evidence (section 59);. Specific limitations^,are contained in the. Ordinance with'regard., to both types .ofevidence.'
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The following legal position will emerge when the provisions ofsection 14(1) (a) and (b) are related to the framework of theEvidence Ordinance, as outlined above. The record of the oralevidence given on oath in the requesting Sta'te and.'anydocument received jn evidence in that State or a copy of suchdocument, whejr.e such record and documents are dulyauthenticated will be considered as evidence given and tenderedbefore the.Judge in.the committal'proceedings. The words "shallbe admissible in-evidence" appearing in both sub-paragraphsreferred above, has the legal effect of eliminating the proceduralsteps ‘that would be otherwise necessary to comply with in orderto. adduce-such evidence before the Judge. But. in consideringthe sufficiency of evidence in terms of section 10 (4) (a) of the •Extradition Law, the Judge will .take into account only the facts ofvyhi.ch evidence may be given under the Evidence Ordinance andare proved by oral or documentary evidence as provided for inthat Ordinance.t
Counsel for the Petitioner submitted that the cheques receivedat the U.D.C. for the settlement of-the mortgages relating to theseveral charges were not'proved in that the persons who signedthose cheques were not called-as witnesses. In most instancesthe original cheques were produced and if they are missing,
copies have, been produced. Therefore, these cheques have been
proved.-by primary o; .secondary evidence as provided for in the
Evidence ^Ordinance.'The cheques are drawn, in favour of the
U.D.C. by the.paying Bankjtsel.f, so,that funds, are assured. Themaking of each cheque is not. a fact in issue in-this case.
The1 factsrin issue are whether the cheques were-received atthe. U..D.G:-.' and rif .soj whether they-were misappropriated, in themanner stated in theLcharges-.. The-mortgagors or their agentswind-attended: at. the settlement, >hav.e:,in'their'evidence sought toidentify'each .cheque .(with reference to. the amount and otherparticulars), as-the one-tendered in-settlement of the respectivemortgages, thereafter each cheque is linked" up ‘with ’ ah.applieationrform-for.an unsecured deposit signed byBenwell or acoupon written by'himcln theseicircumstances I am of-the viewthat it: is. unnecessary /.to lead-the'evidenee-of the official.of .theparticular Bank, who initially signed the cheque. Since the
CA ' Lady Benwell v. The Attorney-General and Another. (S. N. Silva: J.)299
making of each cheque,is no.t;in issue jn this.case. ft will not benecessary to call its. maker .in terms! of .section 6.7 of rthe.Evidence.Ordinance:The'evidence recorded in respect-of each transactiorileads cleanly to the- inference .that the particular cheques- werereceived, at the UD..G fon'the settlement of.- the imortgagesand. that-B.enwell as the Securities Officer dealt.with; these,cheques.:!- •
In dealing with the sufficiency of evidence to establish thecharge. I have to-consider the- law-relating to .the 'Standard ofproof, in extradition proceedings:! Ini terms oLsection 10.(4) (a).-ofthe. Extradition.. Law .the- Judge hearing^-committal ■.proceedingshas to be satisfied that the(evidence is. sufficient to.warrant thetrial ofi the -persoiT.-sought- to– be extradited; iif the offence, hadbeen . committed .;within $heo jurisdiction’- o'futhe:..Court-'- The'provision isjthe same, as-,section 7(5): (a) of ithe.€ugitive:OffendersAct. 1 967,.j of En.gla.nd.sA-provision to similar .effect wa.srTouirodeven in Wthe.-earlier';lawi-opera,five -in England-.r. In'.the case-of.Schtraks vs. ■ Government, of Israel W the House, of. iLords, held"that the proper, test-for the Magistrate-to apply, was'Whether-.;ifthis .evidence stood ;alone.'at,.the.trial. a; reasonable jury properlydirected; co.uld..accept it findva- verdicL.of:guilty."-,(Judgment',ofLord ; Reid -at pg'. 533). ; In Benwell vs.-Republic- of Sri Lanka(Supra at.pg. 205) -ColinVThorae, J. observedasdollows:.
. '-The interpretation – ofr. the expression "."sufficient"' withV reference! to .the English -authorities suggests .that-, the.standard-of .propf required-isnothing less than a prime facievTcase'V'
/SiWhen the.provisionsof-section 1-0(4.) (a)of- the Extradition.Laware considered in relation-to our Law of;.Criminal Procedure.- Iobservers similarity between.the.provisionsof.that.section and ofsection 1 54 of the Code of Criminal Procedure Act' No. 1 5 of1 9.7.9rdealing Vyitb-non-summary proceedings. -.Therefore,,it isreasonable ytodnfer that the standard – of proof: in committalproceedings is not higher thanwhat -obtains, in -a, nomsummaryproceeding-*andepth.e -Code, of Criminal Procedure. The. Judge.hearing the committal-proeeedi.ngsi under the Extradition Law.does not -have to' decide .whether^ or. not. the ■-person- to -beextradited ,is-,.guilty'.of the:offences with which, he ;.is–acc-u.sed of.
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The Judge has to only decide whether or not. on the entirety ofthe evidence before him,, the person to be extradited is soimplicated in the commission of the offences that are allegedagainst him. that he should be compelled by law to plead to theCharges and face trial'thereon.-lt is for this reason that the lawprovides for a review of the order of committal by way of a Writof Habeas Corpus as'disti.nct from a regular appeal.
^According to the evidence,, it is clear that the U.D.C. employedBenwell in such capacity, where he had control over chequesand cash received in settlement of mortgages. Upon receipt of• such cheques and cash he had to- comply with a specificprocedure. The evidence discloses that instead of following thatprocedure he used these cheques to make a wrongful gain tohimself. In-the result he caused a wrongful loss to the U.D.C. Hissubsequent conduct in certain transactions, of paying theperiodic instalments' that fell due. amount to concealing the' commission of • the offences ’ to avoid discovery. Counsel'ssubmission that, the cheques went into.the account of the U.D.C.and as such there was no misappropriation, is clearly withoutbasis; The cheques should ordinarily go into the account of theU.D.C. as credit' (a. payment to the U.D.C. by- the particularmortgagor) instead the cheques went as debts owing to Benwell.Thereby Benwell. was able to draw large sums of money and■ interest from time to time on his account B.E.N. 9000. On theevidence stated in the preceding paragraphs, it is clear thatBenwell is implicated in the commission of the eighteen offencesof .fraudulent misappropriation being the offence of CriminalBreach of Trust under our law. so that he should be compelledby law to plead to the charge and face trialthereon. I hold thatthe: learned High.. Court Judge acted within jurisdiction inordering' the committalof Benwell in respect of these charges.
As regards'charge No: 12, Counsel submitted’that Warmeanthad'not inquired from Benwell whether or not . the car wassubject to a’hire purchase agreement. He submitted that therew.as no-deception'by Benwell in respect of this transaction. Inthis connection it is'important to-consider the . explanation tosection 398 of the Penal Code which provides that a dishonestconcealment-of facts’is a deception' within-the meaning of that
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section. .Benwell was. not the. owner of the motor car andaccording to the evidence he concealed this fact fromWarmearit. To avoid a discovery of ithis fact Benwell paid theinstalments due on the hire purchase account, after the sale to.Warmeant. up to the time of his leaving Australia. Therefore !hold that .on the evidence, Benwell is implicated in thecommission of the offence of cheating underou'r law, sp that he.should be compelled by law to plead to-that charge and face trialthereon. I also hold that the learned High'. Court Judge actedwithin the jurisdiction in ordering the committal of Bienwell inrespect of this charge.
I have to now consider the submission of Counsel that it isunjust and oppressive to extradite Benwell and that his dischargeshould be ordered" by Court oh that ground. This submission isbased ..on section 1 1 (3) of the -Extradition Law, which enacts as
On any such application the Court of Appeal may.'without•. prejudice to.any other, jurisdiction of the Court, order theperson committed to be discharged, from custody if itappears to the Co.urt that
by reason of the trivial nature, of the offence of whi.chhe is accused or was convicted; or .
by reason of the passage of time since he is alleged tohave committed it, or to have become, unlawfully at
'•'/large, as the ca.se may be; or .
because the accusation against him is not made ingood" faith-in the interests of justice, it would, havingregard to all the circumstances, be. unjust oroppressive to extradite him.
Counsel based his submission on sub-paragraph (b) and urgedthat-due to-the passage of time since the alleged commission ofthe offences it’is^unjust and oppressive to extradite Benwell. Thisis a ground that may be urged in' the first instance before tfiisCourt in an application for a Writ of'Habeas Corpus. The same
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provision is found in section 8(3) of the.Fugitive Offenders Act.
1 967 of England which in turn was inherited from section 10 ofthe Fugitive Offenders Act of 1881.
The matters to*be considered on a plea based on the passageof time, have been dealt with in several cases decided inEngland. In the case of Henderson vs. Secretary for Home Affairs
Tucker. C.J. made an observation which sets out the basis onwhich such plea is considered. That is. whether due to thepassage of time, it would be "impossible for the applicant toobtain justice" in the requesting State. This was followed in thecase of Union of India vs. Manchar Lai Marang (Supra) wherethe .House.of Lords reversed the decision of the Queen's BenchDivision given in favour of the fugitive based on the lapse oftime. In .the.case of Kakis.vs. Government of Cyprus (6) theHouse of Lords observed that the test as to what is unjust oroppressive with regard to the passage of time is not so much its"quantity" as its "quality"-. "Unjust" relates to the prejudicecaused to the corpus in the conduct of the projected trial;"oppressive" relates' to resulting hardship, that stems fromchanged circumstances..Applying the said observations. I holdthat the mere fact that a period of ten years has elapsed sincethe commission of." the alleged offences does not by itselfconstitute a. sufficient basis to discharge the corpus in terms ofsection T1(3) (b) of the Extradition Law. ft is incumbent on thePetitioner to satisfy this Court, that whatever be the period, suchdelay will cause prejudice to the corpus at the trial to be had inthe requesting -State and that it would result in an injustice tohim. The Petitioner has not urged any grounds to support suchan inference. On the contrary I observe that the case againstBenwell.. is based mainly on documentary evidence. Thewitnesses have already given evidence on .oath. Copies of theevidence and documents have been furnished to Benwell. Inthese circumstances the delay, which has resulted from the■legal proceedings in Sri Lanka, will not cause any prejudice to-Benwell in the trial that will take place in the requesting State.There is al.so no. material to support the inference that theextradition will be.-"oppressive" as construed above.
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For the reasons stated above. I'hold that no .ground has beenmade out for the issue of a Writ of Habeas Corpus or for theexercise of the revisionary jurisdiction of this Court. Accordingly.
I dismiss both applications. The Petitioner in Application No.20/87 is ordered to pay-a sum of Rs. 2500/- as costs to the 1stRespondent.
DHEERARATtyE, J. — I agree. ;