SUMANARATNE v. O.I.C. POLICE STATION, BORELLA AND ANOTHER

034-SLLR-SLLR-1991-V-1-SUMANARATNE-v.-O.I.C.-POLICE-STATION-BORELLA-AND-ANOTHER.pdf


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Sumanaratne v. 0.1.C. Police Station, Borella and Another
345
SUMANARATNE
V.
O.I.C. POLICE STATION, BORELLA AND ANOTHER
COURT OF APPEALA DE 2. GUNAWARDENA, JCA 485/83
MC COLOMBO 19865/220 and 29 May, 1991
(WRITTEN SUBMISSIONS TENDERED ON 27 JUNE 1991 AND 02 AUGUST 1991)
Motor Traffic Act, Sections 151 (1B), 214(1)(a) and 216 (B) – Driving motor vehicleafter consuming alcohol — Concentration of alcohol above which a person is deemedto have consumed alcohol – Penal Code, Section 298.
The accused was charged in the Magistrate's Court with having driven a motor vehicleon a highway, after he had consumed alcohol, and caused the death of a schoolpoy, an offence punishable under section 216(B) read with section 151(B) and section214(1)(a) of the Motor Traffic Act.
He was also charged with rash and negligent driving under section 298 of the PenalCode.
At the trial the only evidence led to prove the state of intoxication of the accusedwas the Medico-Legal Report, which stated that accused “smells of liquor", and theevidence of P S. Welikala who stated that, a smell of liquor emanated from the mouthof the accused.
Held:
That when a person is charged under section 151 of the Motor Traffic Act, forhaving committed an offence under that section, after consuming alcohol, theprosecution has to prove that such person had a minimum concentration of 08grams of alcohol per 100 mililitres of blood. The prosecution has failed to provethat ingredient of the offence and therefore the accused is entitled to an acquittalon that count.
It is clear that smelling of liquor and finding .08 or more grams of alcohol per100 mililitres of blood, are two different things.
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Per Gunawardana, J. "It is pertinent to note that it is the Amendment to theMotor Traffic Act, which introduced the norm of “consumed alcohol" for the firsttime. Till then the two known concepts in our law were "under the influence ofliquor" and smelling of liquor”, and that perhaps is the reason why that still,the Form of the Medico-Legal Report has a column (column 5) which containsthe two questions, "Patient smelling of liquor" and "under the influence of liquor'1,to< be answered by the doctor examining a person”.
APPEAL from the order of the Magistrate's Court of Colombo.
R.K.S. Sureshchandra for accused – appellant.
S.Rajarathnam S.C. for the Attorney -General
Cur. adv. vult.
07 October 1991
A. DE Z. GUNAWARDANA, J.
The Accused-Appellant (hereinafter referred to as Accused) wascharged in the Magistrate's Court of Colombo, on the followingcharges,
that on or about 6th day of November 1981, at Colombo, theaccused caused the death of Niraj Lakshman Jayasekera bydriving vehicle No. 3 SRI 5338 rashly and thereby committed anoffence punishable under section 298 of the Penal Code.
or, in the alternative, that at the time and place aforesaid, theaccused caused the death of the deceased above named bydriving the said vehicle negligently, and thereby committed anoffence punishable under section 298 of the Penal Code.
that at the time and place aforesaid, the accused drove the saidvehicle on a highway after consuming alcohol or any drug andcaused the death of the deceased above named and therebycommitted an offence punishable under section 216(A) read withsection 151(1 A) and section 214(1)(a) of the Motor Traffic Act.
After trial, learned Magistrate found the accused guilty on countsland 3 and sentenced him to 2 years rigorous imprisonment, inrespect of each count, and ordered the cancellation of the drivinglicence. This appeal is from the said conviction and sentence.
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Sumanaratne v. O.I.C. Police Station, Borella and Another(A. De Z. Gunawardana J.)
347
At the trial P. Amarasena, an eye witness gave evidence and statedthat he was in the boutique opposite the D.S. Senanayake Vidyalaya,and saw the deceased boy-crossing the road. When the deceasedcame about 3 feet from the edge of the opposite side of the road,a car came at a fast speed and knocked the deceased. Thedeceased got thrown away a short distance and fell on the road.The accused was the driver of the car. This happened at about 2p.m., about half an hour after the school closed. There was no rain.The road was not wet. There were no other vehicles on the road atthat time. The deceased was a student of the D.S. SenanayakeVidyalaya. P.S. 2038 Welikala who prepared the sketch gaveevidence and produced it marked P1. According to the said sketchthere is a brake mark which is 69 feet in length, starting from a placebefore the point of impact and ending close to the place where thedeceased lay fallen. The width of the road at the point of impactwas 36 feet and it was straight. This witness was recalled to giveevidence on 10.6.1983. He has stated that when he visited the scenesoon after the incident, the accused appeared to be scared and wassmelling of liquor. Therefore, he has produced the accused beforea medical officer, and the Medico-Legal Report was produced markedP2.
The Medico-Legal Report states that accused was examined by theDeputy J.M.O. the same day, at 3.30 p.m. i.e about one and a halfhours after the accident. In column (1)(C), of the said report, whichis titled "Injuries", it is stated as follows, "smells of liquor". In thesame report in column 5 where the comment "Patient smelling ofliquor" appears, the answer typed is "no". In the light of the evidenceof P.S. Welikala and the note in column 1(C) of the said report, theanswer "no" appears to be a typographical error. However thelearned Counsel for the accused submitted that this discrepancy inthe report contradicts the evidence of P.S. Welikala. As pointed outabove the note "smells of liquor", in column (1)(C) in factcorroborates the evidence of P.S. Welikala.
The accused has not given evidence or called any evidence on hisbehalf.
Upon a careful consideration of the evidence in this case, I am ofthe view that the conviction on count 1 is well founded, and shouldstand.
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The learned Counsel for the accused submitted that the charge undercount 3 is not maintainable because the prosecution has failed toestablish an ingredient of the offence under seGtion 151 (1B) of MotorTraffic Act, namely, that the accused had "consumed alcohol” ascontemplated under the said section. Under subsection (1C)(a) ofsection 151 a police officer is empowered to subject any driver of amotor vehicle on a highway, whom he suspects to have consumedalcohol, to a breath test, immediately. If a person refuses to sub-mit himself to a breath test, provision under section 151 (1C)(b)creates a presumption that such person is deemed to have"consumed alcohol". Provision is made under subsection (1D)(i) ofthat section to make regulations prescribing the mode and mannerin which the breath test for alcohol should be conducted. The section151 (1D)(ii) provides for framing regulations prescribing theconcentration of alcohol in a person's blood at which a person shallbe deemed to have consumed alcohol. The regulations made by theMinister under this section are published in the Gazette dated July13, 1979. The relevant regulation setting out as to when a personis deemed to have consumed alcohol reads as follows:-
"F. The concentration of alcohol in a person's blood at or abovewhich a person shall be deemed to have consumed alcoholshallbe a concentration of. 08 grams of alcohol per 100 mililitresof blood.”
Thus when a person is charged under section 151 of the MotorTraffic Act, for having committed an offence under that section, afterconsuming alcohol, the prosecution has to prove that such personhad a minimum concentration of .08 grams of alcohol per 100mililitres, in his blood.
Now the question to be considered in this case is, has theprosecution proved that the accused had .08 or more grams ofalcohol per 100 mililitres in his blood? The answer to this questionwill obviously be in the negative, because the prosecution in this casehas led no such evidence.
The evidence that is available in the instant case is that, it is statedin the Medico-Legal Report that the accused “smells of liquor". Inaddition P.S. Welikala speaks of a smell of liquor emanating fromthe mouth of the accused. It is clear that smelling of liquor and
CASumanaratne v. 0.1.C. Police Station, Borella and Another
(A. De Z. Gunawardana J.)349
finding. 08 or more grams of alcohol per 100 mililitres of blood, aretwo different things. It is also pertinent to note that it is theamendment to the Motor Traffice Act, which introduced the norm of"consumed alcohol" for the first time. Till then the two knownconcepts in our law were "under the influence of liquor" and "smellingof liquor" and that perhaps is the reason why that still, the form ofthe Medico-Legal Report has a column (column 5) which containsthe two questions, "patient smelling of liquor" and "under the influenceof liquor", to be answered by the doctor examining a person.However, the provisions in section 151 of the Motor Traffic Act doesnot take cognizance of both the above concepts. Hence what isrequired in a charge under section 151 of the Motor Traffic Act isto prove that the accused had consumed alcohol, by adducingevidence that the concentration of alcohol in his blood is .08 or moregrams per 100 mililitres of blood. This proof is not forthcoming inthe evidence in this case. Therefore the prosecution has failed toprove an ingredient of the offence. Hence the accused is entitled toan acquittal on count 3. Accordingly, I hereby set aside the convictionand sentence of the accused on count 3 and acquit him on thatcount. It is the provision in section 216(B) which requires that thedriving licence of a person convicted under that section be cancelled.Since the accused is acquitted on count 3 the order made by thelearned Magistrate to cancel the driving licence of the accused ishereby set aside.
As I have upheld the conviction of the accused on count 1, it is nowappropriate to consider the submissions made by the learnedCounsel for the accused in regard to the sentence. He rightlyconfined his submissions only in regard to sentence, in respect ofthat count. He has pointed out that the offence had been committedin 1981, nearly 10 years ago and that there is no evidence ofany previous convictions against the accused. Therefore he shouldbe considered as a first offender and his sentence should.besuspended under section 303(1) of the Code of Criminal Procedure.While I am inclined to agree with the learned Counsel for theaccused, that the accused should be treated as a first offender,nevertheless in my view facts and circumstances warrant that afine also should be imposed. Accordingly, I hereby make order thatthe accused should pay a fine of Rupees Two Thousano FiveHundred (Rs. 2,500/-), in default, serve a term of 6 months rigorousimprisonment. I also make order that the sentence of two years
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rigorous imprisonment imposed on the accused on count 1 besuspended for period of 5 years with effect from today.
The Registrar, Court of Appeal, is directed to send this case recordback to the Magistrate's Court, Colombo to enable the learnedMagistrate to comply with the provisions of section 303 sub-sections
and (6) of the Code of Criminal Procedure.
Conviction oncount 3 set aside.
Conviction on othercounts affirmed.
Sentence varied.
IN RE NARESH PARSARAM BUTANI
COURT OF APPEAL,
P.R.P. PERERA, J. (P/CA) & ISMAIL J„
C.A. HABEAS CORPUS APPLICATION NO. 22/90,
C. COLOMBO EXTRADITION CASE NO. 1865/85,
26 AND 27 MARCH 1991 AND
2 AND 3 APRIL 1991.
Habeas Corpus – Extradition – Extradition Law, and No. 8 of 1977, sections 6, 8, 10,and 11 – Extraditable offences – Passage of time.
On receipt of an "authority to proceed" dated 21 11.1985 issued by His Excellencythe President acting under the powers vested in him by section 8 of the ExtraditionLaw read with Article 44(2) of the Constitution, upon a request for extradition of thecorpus Naresh Parsaram Butani made on behalf of the Government of Australia, adesignated Commonwealth Country, the High Court of Colombo being the "courtof committal" as the corpus was accused of the commission of certain offences inAustralia against the law relating !o dangerous drugs and narcotics of Australia andwas wanted there to stand his trial, the High Court Judge issued a warrant for thearrest of the said corpus. The corpus surrendered to the High Court and was laterreleased on bail. At the conclusion of the proceedings in the "court of committal" theHigh Court of Colombo, the High Court Judge made order on 29 May 1990 holdingthat the evidence tendered in support of the request for extradition was sufficient towarrant the trial of the corpus and committed him to custody under s. 10 of theExtradition Law of 1977 to await h;s extradition to Australia. An application was madefor a mandate in the nature of a writ of habeas corpus under section 11 of theExtradition Law of 1977 read with Article 141 of the Constitution in respect of thebody of Naresh Parasaram Butani who was then detained at the Welikada Prison.
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The arguments urged were:
The offences are not extraditable offences as they are not punishable by amandatory term of imprisonment only of not less than 12 months as requiredby S. 6(1)(b) of the Extradition Law of 1977. Though the offence fell within item29 of the Schedule to the Extradition Law of 1977 and would, if committed inSri Lanka be punishable under the Poisons, Opium and Dangerous DrugsOrdinance a punishment of imprisonment was not mandatory but could beimprisonment or fine or both. Even in Australia the punishment was fine orimprisonment not exceeding 25 years or both.
(2.) The passage of time from the date of alleged commission of the offence (tenyears) will be a relevant consideration in assessing the evidence and it wouldbe unjust and oppressive to extradite the corpus.
Held:
The words punishable "with imprisonment for a term not less than twelve months”in S. 6(1 )(b) are not indicative only of a mandatory term of imprisonment Hencethe offences to which the "authority to proceed” relate are extraditable offenceswithin the meaning of S. 6 of the Extradition Law, No. 8 of 1977.
The standard of proof required for extradition is nothing less than a prima faciacase. The Judge had to decide whether on the entirety of the evidence beforehim the person to be extradited is so implicated in commission of the offencesalleged against him that he would be compelled by law to plead to the chargesand face trial thereon.
The Extradition Law provides for the review of the order of committal on anapplication to the Court of Appeal for a mandate in the nature of a writ of habeascorpus rather than by way of regular appeal. The review of the decision tocommit will not be in the sense of entertaining an appeal from it or retrying thecase, but determining whether there is evidence enough to give the jurisdictionto make the order of committal.
There is nothing in the material furnished to show that owing to the passage oftime it would be impossible for the corpus to obtain justice. The reason for thedelay could be taken into account. But what matters is not so much the causeof the delay but its effect, like the risk of prejudice to the corpus in the conductofthe trial itself or whether it is "oppressive” as directed to the hardships to thecorpus resulting from the changed circumstances since the date of the allegedcommission of the offences. The personal circumstances of the corpus areunrelated to the passage of time and are not appropriate to be taken intoconsideration. It would not be unjust or oppressiwe by reason of the passageof time and the personal circumstances of the corpus to extradite him.
Cases referred to:
R V. Governor of Holloway Prison re Siletti (1902) 71 LJKB 931
Benwell V. Republic of Sri Lanka (1978 – 79) 2 Sri LR 194, 205
Lady Benwell V. Attorney General and Another (1989) 1 Sri LR 283, 300
R V. Governor of Pentonville Prison, ex parte Sotiriadis (1975) AC, 30
352Sri Lanka Law Reports(1991) 1 Sri L.R.
R V. Governor of Brixton Prison, ex parte Schtraks (1964) AC 556, 579
In re Galwey (1896) 1 QB 230, 236
R V. Maurer (1883) 10 QBD 513, 515
In Re Henderson, Henderson V. Secretary of State for Home Affairs (1950)1 AllER 283, 287
Union of India V. Monohar Lai Narang (1977) 2 All ER 38, 380
APPLICATION for a mandate in the nature of a writ of habeas corpus under theExtradition Law.
Ranjit Abeysuriya, P.C. with Shiromi Seneviratne, Achala Wengappuii and KithsiriGunawardena for petitioner.
K.C. Kamalasabayson Acting D.S.G. with Kalinga Indatissa, S.C. for respondents.
Cur. adv. vult.
03 May 1991ISMAIL, J.
This is an applicatbn for a mandate in the nature of a writ of habeascorpus under section 11 of the Extradition Law No 8 of 1977 readwith Article 141 of the Constitution of the Democratic SocialistRepublic of Sri Lanka in respect of the body of Naresh Parsaram;Butarti presently detained at the Welikada prison.
On receipt of an "authority to proceed" dated 21.11.1985 issued byHis Excellency the President of Sri Lanka the High Court, Colombo,being the “court of committal" issued a warrant for the arrest of thecorpus.
Naresh Parsaram Butani surrendered to the High Court, Colombo,on 4.7.1986 and was thereafter released on bail. At the conclusionof the proceedings in the “court of committal", the learned HighCourt Judge by his order dated 29.5.90 held that the evidencetendered in support of the request for extradition was sufficient towarrant the trial of the corpus and an order was made undersection 10 of the Extradition Law No 8 of 1977 committing him tocustody to await his extradition to Australia.
The "authority to proceed" in respect of Naresh Parsaram Butani wasissued by an Order of His Excellency the President, acting underthe powers vested in him by section 8 of the Extradition Law readwith Article 44{2) of the Constitution, upon a request made on behalfof the Government of Australia, a designated Commonwealth
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Country, as he was accused of the commission of certain offencesagainst the law relating to dangerous drugs and narcotics in Australia.
The request for extradition was based on three warrants dated16.02.1982 and 15.09.1982, issue by a stipendiary Magistrate atMelbourne for the arrest of Naresh Parsaram Butani on informationfiled by the Police in the State of Victoria:
that on or about 10 February 1981, at Sydney he did import intoAustralia a prohibited import, to wit, cannabis resin contrary tosection 233B of the Customs Act.
that on or about 10 February 1981 at Sydney, he was knowinglyconcerned in the importation into Australia of a prohibited import,to wit, cannabis resin contrary to section 233B of the CustomsAct.
that between 28.2.81 and 27.5.81, at Melbourne he did withoutreasonable cause have in his possession a prohibited import, towit, cannabis resin, reasonably suspected of having beenimported into Australia in contravention of section 233B of theCustoms Act.
The Attorney General of Australia has furnished along with therequest for extradition, the particulars of the corpus, the evidencegiven by several witnesses relating to the charges, the exhibitstendered at the hearing and the text of the relevant laws duly certifiedand authenticated.
The Counsel for the petitioner submitted, firstly, that the offences towhich the "authority to proceed" relate are not extraditable offencesas they are not punishable by a mandatory term of imprisonmentonly of not less than twelve, months. He contended that a strictinterpretation should be placed on the words "punishable under thatlaw with imprisonment of not less than twelve months" in section6(1 )(b) of the Extradition Law No 8 of 1977. The relevant parts ofsection 6(1) of the Extradition Law No 8 of 1977 read:
"For the purpose of this Law, any offences of which a person isaccused . . .in any designated Commonwealth Country . . .shall bean extraditable offence, if-
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In the case of an offence against the law of a designatedCommonwealth Country, it is an offence which, howeverdescribed in that Law, falls within any description set out in theSchedule hereto and is punishable under that law withimprisonment for a term not less than twelve months; and
in any case, the act or omission constituting the offence or theequivalent act or omission, would constitute an offence againstthe law of Sri Lanka if it took place within Sri Lanka, or outsideSri Lanka."
The Counsel for the petitioner conceded that the said offences fallwithin item 26 in the Schedule to the Extradition Law No. 8 of 1977,being offences against the law relating to dangerous drugs ornarcotics and that if similar offences were committed within Sri Lankathey would be offences against the Poisons, Opium and DangerousDrugs Act and that thereby the requirements of section 6(1 )(c) wouldbe satisfied. He submitted, however, that the said offences do notattract a mandatory term of imprisonment only of not less than twelvemonths and that therefore they do not meet the requirements insection 6(1 )(b) so as to classify the said offences as beingextraditable offences. He contended that a strict interpretation shouldbe placed on the words in section 6(1 )(b) and argued that theseoffences are not extraditable offences as these offences which,though are punishable with imprisonment for a term not less thantwelve months, can also be punished with a fine in the alternativeor with both. It is also to be observed that the penalty applicable tothese offences under the provisions of the Customs Act, 1901 ofAustralia, is a fine not exceeding $100,000 or a term of imprisonmentnot exceeding 25 years or both. The words "punishable under thatlaw with imprisonment for a term not less than twelve months" arenot indicative only of a mandatory term of imprisonment. A rule ofstrict construction does not allow the imposition of a restrictivemeaning on the words so as to withdraw from the operation of the,law those offences which fall both within its scope and the fair senseof its language. Maxwell in Interpretation of Statutes (11th ed.) atpage 254 states, "A Court is not at liberty to put a limitation ongeneral words which is not called for by the sense or the objects,of the mischiefs or the enactment, and no construction is admissiblewhich would sanction a fraudulent evasion of an Act". Stanbrook andStanbrook on Extradition, Law and Practice (1980) at page 40 referto a judgement of Shaw, LJ. in which a restrictive and narrow
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interpretation was not favoured in construing the words, "A term of12 months or greater punishment" in section 3(1 )(a) and (b) of theFugitive Offenders Act, 1967, where it was held that it did not meana specified minimum of 12 months. I therefore reject the interpretationsought to be placed by the counsel for the petitioner that extraditableoffences for the purposes of section 6(1 )(b) of Extradition Law No 8of 1977 are those offences which are punishable by the law of thedesignated Commonwealth Country only with a mandatory term ofimprisonment for a period not less than 12 months. Thus theoffences to which the "authority to proceed" relate are extraditableoffences within the meaning of section 6 of the Extradition Law No8 of 1977.
The facts as disclosed by the evidence reveal that on 10 February1981 two cartons arrived at Sydney from Seoul on a Japan Airlinesflight addressed to Naresh Parsaram. The two cartons contained anumber of batik garments, wood ornaments as well as fourteen coirmats with rubber backing. Naresh Parsaram engaged a firm ofcustoms agents (Rudders) to clear the goods through customs. Thetwo cartons were cleared on 25th February 1981 after inspection bySusan Rae Mclintock, an examining officer of the CustomsDepartment at Mascot Airport, in the presence of an employee ofthe customs agency.
An employee of the customs agency removed the two packages tothe warehouse from the Qantas Cargo terminal, strengthened itspackaging and on the instructions of Parsaram forwarded them on27 February '81, after relabelling them, to a private address at No.42 Eildon Drive, Keysborough, Victoria. Parsaram had earlierarranged with Bernard Selwyn who lived at this address to acceptand keep the packages which he said contained handicrafts forexhibition at the Adelaide Trade Fair, until he collected them.Parsaram later collected the packages from the residence of Selwynand took them to a motel, the Eastern Town House, in EastMelbourne arranged for him by Selwyn where he stayed from 28February 1981 to 27 May 1981.
There is some circumstantial evidence to indicate that cannabis resinin pellet form was concealed in the coir mats and that Parsaram hadpresumably removed the rubber backing from the coir mats duringhis stay at the motel and that he had then placed the cannabis resin
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in a suit case which he packed into a large cardboard package. Afew days prior to 27 May 1981, Parsaram – took this packagecontaining the suit case to the residence of Selwyn. He collected itagain on 28 may 1981 and delivered the package containing the suitcase to a milk bar in Collingwood requesting the proprietress to keepit for him until he collected it on his return six weeks later.
Veronica Casey was the proprietress of a milk bar at Victoria Paradein Collingwood. Parsaram had got acqauinted with her as he was aregular customer who used to purchase tinned foods or foodprepared in the shop on a regular basis. He requested herpermission to leave the large cardboard parcel in her premises andhad said he had paid $1000 customs duty on it and that he wasunable to take it with him. He promised to come back in six weekstime to collect it. The cardboard parcel had been secured by a stickytape and after making enquiries and presumably becoming suspiciousof the contents of the parcel, Veronica Casey had informed the policeabout it and they took it away.
On 1 June 1981, Robert Freeman, Senior Detective of Policeattached to the Drug Squad took into his charge the large cardboardpackage from Veronica Casey. On an examination of the packageand the suit case inside it he had fourid a passport size photograph,exhibit W, which was identified by /Neville Peiris as being that ofNaresh Parsaram Butani. He also found a large quantity of pencilshaped pieces of a brown resinous substance which he had deliveredfor analysis to the Forensic Science Laboratory. The photographstaken of the cardboard packages, the suit case with its labels, andits contents have been tendered as exhibits.
On 27th May '81 before Parsaram left the motel, the Eastern TownHouse, he had sold fourteen coir mats for $100 to its owner KarlSchafheutle. These were also subsequently taken over by the police.
The contents of the suit case and the coir mats were analysed atthe Forensic Science Laboratory in Melbourne and the findings areset out in the certificates of analysis which have been tendered asexhibits.
The suit case contained 6800 cylindrical pieces of hashish of varyinglengths weighing 20.4 Kilograms. Some of the pieces were wrapped
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in waxpaper, and there were pieces of waxpaper and pieces of arubber substance in the suit case.
The coir mats had pieces of gauze and waxpaper attached to theunderside. All the mats had a latex type of coating around the foursides. One of the mats had pieces of a vegetable type matterwedged in a piece of the rubber on its underside.
Senior Constable Drake of the Forensic Science Laboratory statesthat it is possible that the pieces of cannabis resin were wrapped inwaxpaper and then had been laid down on a coating of a rubbersubstance on the underside of the mats.
Neville Peiris who was then serving a term of imprisonment at theBendigo prison has stated that he had known Naresh Parsaram since1979 and that his full name is Naresh Parsaram Butani, and he hasidentified the photograph tendered as exhibit 'W' as being thephotograph of Naresh Parsaram Butani. Neville Peiris had stayed withButani in the motel named Eastern Town House. Butani had told himthat he was using only the name Naresh Parsaram in Austrailia.
Neville Peiris had then returned to Sri Lanka and in October 1981Butani had contacted him and by prior arrangement they met on 23October '81, in the lounge of the Singapore Airport. Butani had toldhim of the package left at the milk bar belonging to Veronica Caseyand had told him to collect the package and keep it with him till hearrived in Melbourne. He had given him two letters addressed toVeronica Casey one of which authorised him to collect the packagefrom her. Peiris then took a plane to Australia, where he arrived atTullamarine Airport and then booked in at a hotel named SurreyLodge in Surrey Hills. The next day on 24th October ‘81 at 1 p.m.he met Veronica Casey at the milk bar when he went to collectthe package. He was asked to call over that evening at 6 p.m. tocollect the parcel.
Meanwhile Detective Sergeant Thorn who had been informed of thisarrangement by Veronica Casey collected the package immediatelyfrom the Joint Task Force office where it had been kept in safecustody, in order to replace it at Casey's premises. It appears thatafter the analysis of the contents of the suit case the pieces ofcannabis resin were replaced in the suit case which was then packed
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in the cardboard box in its original form. This officer had examinedthe package and checked its contents, and then had taken it to thepremises of Veronica Casey where it was placed in a room.
Detective Sergeant Thorn testified that he observed Peiris arrivingin a taxi that evening to the premises of Veronica Casey, collectingthe package with the suit case inside it and loading it into the rearof a vehicle. The officer followed Peiris to the hotel where he wasstaying. Then Peiris had taken the package into the room, SergeantThorn followed him inside and had taken him into custody with thepackage which contained the suit case in which the cannabis resinwas packed. He was then taken to the Victoria Police Drug Bureauwhere he was questioned and charged.
At the end of the committal proceedings the corpus made a dockstatement in which he said that he belonged to the Sindhi Communityand that his name was Naresh Parsaram Butani. He has severalfriends and relations who have the same name. He denied evenhaving visited Australia or any of its cities. The passport which hesurrendered to court, issued in 1983, was the only travel documentthat he possessed. He further stated that he had never met MissCasey or the other persons referred to in the proceedings and thathe has had no dealings with Neville Peiris.
The learned High Court Judge proceeded to examine whether on theentirety of the evidence furnished the corpus was so implicated thathe should be compelled to plead to the charges and face trial andhe has held that the available evidence is sufficient to warrant histrial for the stipulated offences.
The Counsel for the petitioner submitted that the admissible evidencewas too slight and was of doubtful value to warrant the committalof the corpus for trial. He submitted further:
that there was insufficient evidence to establish the identity ofthe corpus and that Neville Peiris who gave evidence relatingto the identity of the corpus was an accomplice who gaveevidence while yet in prison.
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that there was no evidence that the corpus participated or wasknowingly concerned in the importation of a prohibited drug on10.02.81, and
that there was a failure by the learned High Court Judge toexamine the glaring discrepancies, inconsistencies andcontradictions in the evidence of the witnesses and that a properevaluation of the evidence of the witnesses would have revealedthat there was insufficient material to connect the corpus withthe prohibited import.
The Deputy Solicitor General in reply submitted that the evidenceof the several witnesses was recorded in the requesting State beforethe stipendiary Magistrate on three occasions, on 28.12.82, 11.4.84and on 29.4.85 and he contended that there was sufficient evidenceto warrant the trial of the corpus. In regard to the identity of thecorpus he submitted that the witnesses Bernard Selwyn, CarlSchafheutle and his wife lisa Schafheutle who were the owners ofthe motel where Naresh Parsaram stayed from 12th February '81upto 27 May '81 and Veronica Casey, the proprietress of the milkbar to which Parsaram was a regular visitor have each given thedescriptions of Parsaram and have stated that they would be in aposition to identify him if seen again. Katherine Horvat who was thehousekeeper of the motel who cleaned the room occupied byParsaram during the period of his stay for over three months hasstated that she would be able to identify him. In her evidence shehas also stated that when Neville Peiris occupied the room withParsaram she had seen that the fibres from the coir mats had fallenout and that she had chided them for making a mess of the room.
The Deputy Solicitor General further submitted that the photographfound in the suit case which was packed in the cardboard cartonwas identified positively by Peiris. He referred to the case of theR v Governor of Holloway Prison re Siletti (1) and submitted that ithas been held that a photograph may be sufficient by itself as proofof identity if attested to by witnesses in the requesting State and isenclosed with their depositions.
He submitted that the evidence of Peiris though an accomplice isadmissible and can be acted upon and is worthy of credit as it hasbeen corroborated by the evidence of other witnesses.
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In regard to the submission that there was no evidence that thecorpus participated or was knowingly concerned in the importationof the prohibited drug he submitted that there was sufficient evidencein this regard and referred to the evidence of Susan Mclintock thecustoms examining officer, regarding the arrival of two packageswhich contained fourteen coir mats among other items, the evidenceof Alan Johns of Rudders Clearing Agency regarding the clearanceof the packages, the evidence of George Zannine, the owner driverfor TNT Transport Systems who delivered them to Selwyn's address,the evidence of Bernard Selwyn who arranged for Naresh Parsaram'saccommodation at the request of his friend Prakash Butani and whohad accepted the packages and kept them till Parsaram collectedthem later.
Counsel referred further to the evidence of Katherine Horvat, thehousekeeper of the motel, regarding the fibres from the coir matson the floor of the room occupied by Parsaram and Neville Peiris,the evidence of Carl Schafheutle the owner of the motel regardingthe sale to him of fourteen coir mats, and the evidence of Peiristhat the mats taken over by the police from Carl Schafheutle andshown to him in Court were thinner than the mats which he sawwith Parsaram, and submitted further, that there was sufficientevidence to establish that the cannabis resin in pellet form wasconcealed between the rubber backing of the coir mats and that hehad then placed them in the suit case.
The Deputy Solicitor General referred to the evidence of SeniorDetective Robert Freeman, Senior Detective David Ball, SeniorDetective Constable Lionel Drake, Scientific Officer Lyall Brown,Detective Sergeant Ronald Thorn, Trevor Wilson, the Chemist of theDepartment of Science and Technology and Sergeant of PoliceCharles Pont, to establish the identity of the productions, and asproof that it was a prohibited drug, its weight, its analysis and itssafe custody.
The Judge hearing the committal proceedings has to be satisfied interms of section 10(4)(a) of the Extradition Law that the evidence issufficient to warrant the trial of the person sought to be extradited ifthe offence had been committed within the jurisdiction of his Court.In Benwell v. Republic of Sri Lanka (2), Colin-Thome, J.observed that under section 10(4) of the Extradition Law No. 8 of1977, which is the same provision as section 7(5)(a) of the Fugitive
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Offenders Act, 1967, of England, the Judge hearing the committalproceedings had to decide whether the evidence was sufficient towarrant trial if the offence had been committed within his jurisdictionand that he was not required to have regard to whether the trialwould lead to a conviction in the Commonwealth country. Heproceeded to state,
“The interpretation of the expression "sufficient" with referenceto English authorities suggests that the standard of proof requiredis nothing less than a prima facie case."
In Lady Benwell v. The Attorney General and Another (3) Silva, J.observed as follows, “The Judge has only to decide whether or not,on the entirety of the evidence before him, the person to beextradited is so implicated in the commission of the offences thatare alleged against him, that he should be compelled by law to pleadto the charges and face trial thereon."
The Extradition Law provides for the review of the order of thecommittal on an application being to the Court of Appeal for amandate in the nature of a writ of habeas corpus rather than by wayof a regular appeal. Lord Diplock observed in R v. Governor ofPentonville Prison ex parte Sotiriadis (4) that an appellate courtexercised wide powers in habeas corpus applications brought inextradition cases not by any express provisions in the Act but bylong established practice. He stated, "under this practice, the Courtwill entertain the question whether there was any evidence beforethe Magistrate to justify the committal and, if it finds none, will orderthe prisoner to be discharged." He continued, "But if there is someevidence, you would not be entitled to substitute your ownappreciation of its weight or cogency for that of the Magisrate uponwhom jurisdiction to determine whether the evidence is sufficient tojustify committal is conferred by section 10 of the Act".
Similarly it was observed in R v. Governor of Brixton Prison ex parteSchtraks (5) "The Court, and on appeal this House, can and mustconsider whether on the material before the Magistrate a reasonableMagistrate would have been entitled to commit the accused butneither a Court nor this House can retry the case so as to substituteits discretion for that of the Magistrate". In the same case at page585 Viscout Radcliffe cited with approval the judgement of Lord
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Russel of Killowen C.J. in In re Galway (6) "We should, after theorder of committal, be entitled to review the Magistrate’s decision,not in the sense of entertaining an appeal from'it, but in the senseof determining whether there was evidence enough to give himjurisdiction to make the order of committal".
It has been observed that to commit a person for a trial for anoffence when there is no evidence that he committed it is not to actin excess of jurisdiction but to err in law since it must involve amisunderstanding of the legal nature of the offence. Nevertheless,in extradition cases, the Courts have assimilated such an error oflaw to acting in excess of jurisdiction (R v. Governor of Pentonvilleprison ex parte Sotiriadis (4) Thus, Field J. in R v. Maurer (7) said,’It is only when there is no jurisdiction, as when there is no evidencebefore the Magistrate that we can interfere". He went on to say, "Itwas not for this Court to weigh the evidence, if there was anyreasonable evidence of an extradition crime for the Magistrate to actupon".
On a careful review of the entirety of the depositions and thedocumentary evidence placed before the Court of Committal andwhich has been summarised above I am of the view that there wassufficient evidence to establish the identity of the corpus and toimplicate him in his commission of the offences alleged against him.The High Court Judge has therefore acted within his jurisdiction inordering the committal of the corpus so as to compel him to pleadto the charges and face trial thereon.
The Counsel for the petitioner submitted, lastly, that in terms ofsection 11 (3)(c) of the Extradition Law No. 8 of 1977 that it wouldbe unjust or oppressive to extradite the corpus due to the passageof time, as the offences relevant to these proceedings havebeen committed ten years ago. The length of time that has elapsedwill be a relevant consideration, for example, in assessing theevidence but there is nothing in the material furnished to show thatdue to the passage of time that it would be impossible for the corpusto obtain justice.
The Court could also take into account the reasons for the delayand consider whether the corpus was in any way responsible for thedelay or whether it was due to the dilatoriness on the part of therequesting State. The delay in the case has not been due to either
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of these reasons. What matters is not so much the cause of thedelay but its effect like the risk of prejudice to the corpus in theconduct of the trial itself or whether it is "oppressive" as directed tothe hardships to the corpus resulting from the changed circumstancessince the date of the alleged commission of the offences.
it was submitted on behalf of the corpus that he is a prominentbusinessman and a Director of several business establishments andthat should he be extradited to Australia, he would be gravelyprejudiced and hampered in defending himself as he would be a totalstranger there and would be completely disoriented and isolated.Considering the offences that are alleged to have been committedby the corpus it does not seem to me that they are complex orcomplicated to the extent that the passage of time has rendered itdifficult to defend himself adequately at the trial. The position takenby the defence at the committal proceedings was a complete denialof guilt and he further took up the position that he has never visitedAustralia or any of its cities. It would be relevant to refer some ofthe observations of Tucker LJ. in Re Henderson, Henderson v.Secretary of State for Home Affairs (8). He said, “We do not knownearly enough about the facts about the case to form any opinionas to the nature of the applicant's defence or the extent to whichhe will be prejudiced in the presentation of it by the delay whichhas taken place. These are all matters which can and, no doubt willbe considered by the tribunal of any civilised country which is dealingwith a criminal matter". The Court would no doubt in an appropriatecase be influenced by the personal circumstances of the applicant.Lord Keith has observed in Union of India v. Manohar Lai Narang(9) “I would also think it proper to be influenced, in an appropriatecase, by the personal circumstances of the applicant, for example,that he had been long settled in this country with his family and hadled there a respectable position". However, the personalcircumstances urged by the petitioner in this case are unrelated tothe passage of time and are not appropriate to be taken intoconsideration. Having given to the appraisal of the evidence and theavailable material the best consideration that I can, I have come tothe conclusion fhat it would not be unjust or oppressive by reasonof the passage of time and his personal circumstances to extraditehim to face trial in respect of the alleged offences.
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For these reasons I hold that no ground has been made out for theissue of a writ of habeas corpus and accordingly I dismiss theapplication. The petitioner is ordered to pay a sum of Rs. 1500/- ascosts to the 1st respondent.
Perera, J. (P/CA) – I agree
Writ of habeas corpus refused.
Application dismissed.