Maharaj v State [2011] FJHC 497; HAA012.2011 (5 September 2011)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

Criminal Appeal No: HAA012 of 2011

Between:

ANEAL MAHARAJ
Appellant

And:

THE STATE
Respondent

Hearing: 18 August 2011
Judgment: 5 September 2011

Counsel: Mr. R. Singh for Appellant
Ms N. Tikoisuva for State

JUDGMENT

[1] The United States of America seeks extradition of Aneal Maharaj (the appellant) on fraud related offences. On 5 April 2011, after a hearing, the Magistrates' Court at Suva made an order that the appellant be held in custody until a surrender determination is made by a judge of the High Court pursuant to section 18 of the Extradition Act 2003.

[2] The appellant appeals against the custody order on the following grounds:

a) The Magistrate erroneously held that United States of America is a treaty country within meaning of the definition in section 2 of the Extradition Act 2003.

b) The Magistrate erred in failing to properly interpret section 2 of the Extradition Act 2003 which requires the listing of the treaty country in Schedule 3 of the Extradition Act 2003 and proceeded to hold USA as a treaty country notwithstanding that USA is not listed as a treaty country in Schedule 3 thereof of the Extradition Act 2003.

c) The Magistrate erred in failing to consider that the extradition request by the Minister in Fiji requires that the Minister must consider under section 10(b)(ii) of the Extradition Act 2003 and to be satisfied that the requesting country is an extradition country within the definition of an extradition country as defined in section 2 of the Extradition Act 2003 and that the Minister's request was ultra vires the Extradition Act 2003.

d) The Magistrates' Court acted unlawfully and ultra vires the Extradition Act 2003 in determining that the appellant be held in custody for a surrender determination by a Judge of the High Court.

e) The Magistrate erred in considering an Imperial legislation for the continuance of treaty arrangements between Fiji and USA; and failed to distinguish that Fiji had a bi-lateral agreement with the USA which required the endorsement/listing of the treaty country in Schedule 3 of the Extradition Act.

f) The Magistrate failed to properly consider the ingredients of the political nature of the prosecution of the charges.

g) The Magistrate erred further in holding that the prosecution witness was not cross-examined on the political issues when the aforesaid witness was not qualified to respond to the cross-examination as he did not have any personal knowledge of the matters pertaining to the appellant or the circumstances of the alleged charges in the USA.

h) The Magistrate erred in his conclusion to dismiss the objection on the ground of political offences.

i) That the Magistrate did not consider or consider at all the appellant's application for the dismissal or stay of the proceedings on the grounds of delay in the prosecution of the charges in USA; and the likelihood that the appellant will not get a fair trial if he was extradited to stand trial in the USA.

[3] The appellant seeks the following Orders from this Court:

a) An order to quash the decision of the Magistrates' Court to hold the appellant in custody until a surrender decision is made by a Judge of the High Court;

b) An order to quash the determination of the Magistrates' Court to refer the appellant to the High Court;

c) An order for the immediate release of the appellant from custody;

d) An order for a permanent stay of the extradition proceedings;

e) An order for the correction of and rectification of the date of the Ruling by the Magistrates' Court;

f) An order to rectify the time allowed in the Ruling for an appeal by the appellant.

[4] The parties agree that the learned Magistrate made the custody order on 5 April 2011 but due to a typographical error the ruling is dated 5 April 2010. However, it appears that when the court record was certified and filed, the error in date was corrected by the learned Magistrate to read 5 April 2011. In any event, I take the correct date of the order to be 5 April 2011. The appeal was filed on 15 April 2011, that is, within the stipulated 28 days appeal period provided by section 248(1) of the Criminal Procedure Decree.

[5] In his written submissions, counsel for the appellant condensed the grounds of appeal into one main issue, that is, the Magistrate erred in concluding that United States of America is a treaty country within the meaning of the definition of a treaty country in section 3 of the Extradition Act 2003; and further that Fiji has a valid extradition treaty with the USA.

[6] Whilst the grounds of appeal allege errors made by the learned Magistrate, I note that counsel for the appellant in his written submissions also deals with the Minister's decision to issue authority to proceed with the extradition.

[7] Before I consider the grounds of appeal, it is important to set out the scheme of the Extradition Act 2003. The Act is divided into 9 parts. The procedures for extradition from Fiji are set out in Part 2. The requesting countries are divided into four categories, namely, Commonwealth countries (Part 3), other Pacific Island countries (Part 4), treaty countries (Part 5) and comity countries (Part 6).

[8] For treaty countries, the procedures set out in Part 2 applies. The extradition proceedings are commenced in the Magistrates' Court by an application on behalf of the requesting country for a provisional arrest warrant against the person whose surrender is desired (s7(1)(a)-(b)). The application must be supported by the following documents:

(a) a copy of the warrant for the arrest of the person issued in the requesting country;

(b) a description of the person sought;

(c) a description of the acts and omissions that constitute the offence;

(d) the text of the law creating the offence or, if the offence is not created by statute, a statement of the offence; and

(e) the text of the law of the requesting country that prescribes the penalty or, if the penalty is not prescribed by statute, a statement of the penalty that can be imposed (s7(2)).

[9] If the Magistrate is satisfied that the offence is an extradition offence and the requesting country is an extradition country, the Magistrate must issue the provisional warrant for arrest (s7(c)-(e)).

[10] Upon execution of the provisional warrant, the arrested person must be brought before a Magistrate within 48 hours (s8(1)). The Magistrate has discretion to either remand the person or grant bail if satisfied that the person is unlikely to abscond, until the Minister issues an authority to proceed (s8(2)).

[11] The Minister then makes a decision as to whether or not to issue an authority to proceed. In making that decision, the Minister is obliged to consider the following:

(i) the offence for which extradition is sought is an extradition offence;

(ii) the requesting country is an extradition country;

(iii) there is nothing in section 19 or any other law that would preclude surrender of the person;

(iv) there is no other reason why the authority to proceed should not be issued (s10).

[12] If the Minister issues an authority to proceed, the Magistrate proceeds to determine whether the arrested person should be surrendered to the requesting country. The arrested person is at liberty to consent to surrender at any time while the matter is before the Magistrate (s12).

[13] Extradition proceedings are criminal in nature and the rules relating to criminal proceedings apply (s14(1), except that the arrested person is not entitled to call evidence to contradict the offences for which the extradition is sought (s14(2).

[14] Section 15 sets out the matters that the Magistrate must be satisfied to hold the person in custody:

(a) that the requesting country is an extradition country;

(b) that the offence for which surrender is sought is an extradition offence;

(c) as to the identity of the person;

(d) that the supporting documents have been produced to the Magistrate;

(e) that the supporting documents satisfy the requirements of section 16; and

(f) that surrender should not be refused because the person sought has established an extradition objection.

[15] If the Magistrate concludes that the person should be held in custody, the Magistrate must transfer the case to the High Court to make the final determination on surrender (s15(2)).

[16] The Act provides for two avenues to challenge the custody order. One avenue is by way of a review which must be applied within 15 days from the date of the order (s17). The other avenue for challenge is by way of an appeal against the order (s18(1)(b)).

[17] In this case, the person has elected to appeal the order. The right of appeal provided under the Act is limited. An appeal can only lie against the custody order made by the Magistrate. There is no right of appeal against the Minister's decision to issue authority to proceed because that decision is a ministerial decision and not a judicial decision. Any review of the Minister's decision can only lie with the Civil Division of the High Court and not with the Criminal Division of the High Court.

[18] Therefore, the ambit of this appeal is restricted. The only issue that can be taken on appeal is whether the learned Magistrate was correct in law to conclude that the United States of America is an extradition country under the Extradition Act 2003.

[19] The definition of extradition country includes a treaty country (s2). Treaty country is a country listed in Schedule 3 with which Fiji has an extradition treaty (s2). Extradition treaty means a treaty that relates to the surrender of persons accused or convicted of offences, to which the requesting country and Fiji are parties (s2). Further, treaty includes a convention, protocol, or agreement (s2).

[20] Counsel for the appellant points out that the names of treaty countries are not specified in Schedule 3. Counsel submits that since the United States of America is not listed in Schedule 3, the United States of America is not an extradition country under the Act.

[21] The learned Magistrate accepted the State's submissions that an extradition treaty existed between Fiji and the United States of America by virtue of the instrument, namely, the Treaty of Extradition made by the United States of America and the United Kingdom on 22 December 1931 and ratified by the United Kingdom by Order in Council on 24 June 1935. Article 2 of that treaty extended its provisions to all imperial dominions overseas, including Fiji. That status continued after Fiji's independence from the United Kingdom by the operation of the Fiji Independence Order. The continued operation of the treaty was formally recognized by the exchange of notes between the United States of America and Fiji and made effective as from 17 August, 1973. The extradition procedures were subsequently codified into the Extradition Act 1977 until that legislation was repealed and replaced with the current Extradition Act 2003.

[22] The 1977 Act used the phrase "treaty state" instead of the phrase "treaty country" as used in the 2003 Act. Like under the new law, the United States of America was not designated as a treaty state under the old law. A similar objection that is being taken in this case was taken under the old law in the case of Tota Ram Civil Action No.750 of 1986 (25 August 1986). In that case, Sheehan J in an application for a Writ of Habeas Corpus ruled that there existed an extradition treaty between the United States of America and Fiji by virtue of the imperial instrument. Tota Ram was later applied by Fatiaki J in Rutten Miscellaneous Case No. 6 of 1992 (24 August 1992).

[23] Counsel for the appellant submits that the case of Tota Ram has been superseded by the 2003 Act and since that the new Act has not designated the United States of America as a treaty country, there does not exist a treaty between the United States of America and Fiji.

[24] Counsel for the State submits that although the United States of America is not expressly designated under the new law as a treaty country, the extradition treaty that has existed between the two countries under the old law, and the existence of which has been recognized by the courts in Fiji, has been saved by the 2003 Act.

[25] Section 67 is the saving provision of the Extradition Act of 2003. That section states:

(1) The Extradition Act (Cap. 23) is repealed.

(2) The UK Fugitive Offenders Act 1881 no longer applies to the Fiji Islands.

(3) Notwithstanding subsection (2) –

(a) an Order in Council made under the Extradition Acts 1870 to 1935 that is expressed to extend to the Fiji Islands continues in force in the Fiji Islands; and

(b) the Fiji Islands is taken to have an extradition treaty with a country mentioned in an Order in Council or a successor to that country.

(4) An extradition treaty –

(a) to which the Fiji Islands was a party, or

(b) that binds the Fiji Islands,

immediately before the commencement of this Act remains in force and is taken to be an extradition treaty for the purpose of this Act.

[26] Clearly, the extradition treaties that existed before the commencement of the Extradition Act of 2003 remains in force and that they have not been revoked. In my judgment, the learned Magistrate was correct in law to rule that the United States of America is a treaty country and that there exists an extradition treaty between Fiji and the United States of America. I am also of the view that it is not necessary for the Act to provide an exhaustive list of countries, that have entered into extradition agreements with Fiji. Although it would be desirable to have such a list in the legislation, absence of it, however, does not relegate the treaties that exist. If Fiji had intended not to recognize the United States of America as an extradition country, the Extradition Act 2003 would have expressly provided for such exclusion. To read otherwise would defeat the purpose for having extradition laws and Fiji could become a potential haven for fugitives from the United States of America. The grounds of appeal on this issue fail.

[27] No submissions were advanced on grounds (f)-(i). I take the appellant does not wish to pursue the issue of political offences in this appeal. The issue of stay is being pursued in a separate application that is pending before this Court.

[28] For these reasons, the appeal against the custody order must fail, and the appeal is dismissed, accordingly.

[29] The appellant was granted bail pending appeal against the custody order. Now that his appeal has been dismissed, the custody order has to be restored for this Court to make a determination whether he should be surrendered to the United States of America.

[30] The Orders of this Court are:

(i) Appeal dismissed.

(ii) Bail revoked.

(iii) Custody order restored.

Daniel Goundar
JUDGE

At Suva
5 September 2011

Solicitors:
Messrs. Kohli & Singh for Appellant
Office of the Director of Public Prosecutions for State