Director of Public Prosecution v Maharaj [2010] FJMC 193; Misc 02.2009 (5 April 2010)

IN THE RESIDENT MAGISTRATE'S COURT OF SUVA

Misc Case No: - 2/09

DIRECTOR OF PUBLIC PROSECUTION

V

ANEAL MAHARAJ

For Prosecution: - Ms. Tikoisuva N.
For Respondent: - Mr.Singh A.

RULING

1. The Dir ctorubf p pricecutsecution instituted this proceeding under Section 13 of the Extradition Act 2003 against the Respondent, to determine whether the Respondent should be surrendered for the extradition offence for which the surrender of Respondent is sought by the government of the United States of America (herein after referred as USA).

2. ;&#16e Respondenondent (fug (fugitive) did not consent to surrender in pursuant to Section 12 of the Extradition Act, wherefore ttal edinge commenced by the Prosecution. The Prosecution is called Mr. Mathew Mcew McCormaCormack, Sck, Special Agent and law enforcement officer at the Embassy of the United States of America in the Fiji Islands. At the conclusion of the prosecution case, the learned counsel for the Respondent made an application that the prosecution has not made out a case against the accused person sufficiently that requires to make a defence and raised an objection that there is no valid extradition treaty existing to empower the court in Fiji Islands to order the extradition of the Respondent to the USA and invited the court to make a ruling based on the fact that there is no valid extradition treaty in existence between the USA and Fiji Islands.

3. &#1he learned counsel for tfor the Respondent contended on two grounds that there is no valid extradition treaty in existence en thubliciji Is and

i. ҈ &  <;&1600  ـʔ Diplomatic Notes exchangedanged between the then Prime Minister of Fiji and the Government of the USA for the continued applin of nitedes – Unitngdomty ofmber 22, 1931 1931 in rein respectspect of F of Fiji iiji islandslands and USA, was a temporary nature only pending any new treaty which might be concluded. Since there was no new treaty was concluded between Fiji Islands and the USA, the continuation of application of the 1931 treaty is lapsed as 1931 USA – UK treaty has been superseded by the 1977 USA – UK extradition treaty.

ii. ;d҈< < ـ &##60;&< The 1997tConsiotutoes not not preserve the continuation of the prerogative of the state, as it was done in Section 167 of the 1990 Constitution. Whre, tate pative powers, rights, obligations, and liabilities pf the pthe pre 19re 1997 Co97 Constitution period did not continue in the post 1997 Constitution period. The 1997 Constitution was abrogated in Fiji by Revocation decree No 1 of 2009. The existing laws were preserved by Decree No 3 of 2009, but the provision of the existing laws decree No 3, does not protect or give effect to the 1931 USA –UK treaty or 1972 Diplomatic Note, governing and regulating extradition of fugitives from Fiji to USA.

4. ;ɘ The Proiecution filn filed their written submission in reply. After considering both oral and written submissions of bot Proson an Respt, I ruled that the prosecution has made out a case against tnst the ache accusedcused pers person sufficiently to make a defence and that there is a valid extradition treaty existing between Fiji Islands and the USA that empowers the court in Fiji Islands to order the extradition of the fugitive to USA.

5.҈ < Consequent to ahe suling, ing, the Respondent tendered and adopted an affidavit of the Respondent dated 12th of April 2010 as his evidence and the prosecution crossined esponbased on the evidence adduced in the said afid affidavfidavit.

6. ـ At the uonclusion oion of the respondent's evidence, the learned counsel for the respondent raised an objection again on the issue of validity of the proceed In tnstanhe learned counsel for the Respondent cent contenontended oded on following grounds,

i. &##60;&<;Un60ed States ates of America is not a treaty country for the purpose of the Extradition Act 2003,

i60;&##160;;ټ&#Notwinding the provisions of Section 67 of thef the Extr Extraditiadition Acon Act 200t 2003, th3, the provisional arrest warrant issued against the respondent on 1st of April 2009 by the Court is unlawful null and void for want of listing of USA as a treaty country in Schedule 3 of the Act.

7. ټ Tae le Cned Counselunsel for the Respondent stated that the definition of a treaty country with which Fiji has a valid extradition treaty in pursuant to Section 2 of the Extradition Act 20equir be l in Schn Scheduleedule 3 of 3 of the Extradition Act. Section 2 of the Extradition Act, stipulates that "Treaty country means a country listed in Schedule 3 with which the Fiji Islands has an extradition treaty".

8. &&#160therrore, ore, the lehe learned counsel for the Respondent contended that there is no listing of United States of America areatytry iedule 3 of the Extradition Act 2003, wherefore; United States of Americmerica is a is not anot an extradition country within the meaning of Extradition Country as stipulated in the Extradition Act.

9. ټ&#Upon coon considersidering the objection raised by the learned counsel for the Respondent at the conclusion of the Respondent's case, I invited both the prtion he Respondent to file further written submissionssions on t on this objection. Accordingly, the Respondent filed his written submission, which was followed by the Prosecution's written submission. Finally the Respondent filed his submission in reply.

10. Having carefully peruse suhe submissions of both parties on the substantive committal proceedings and the objection of validity of the proceedings, I find I have to burn the candle at both ends of the objections and the substantive issue in this ruling. I first proceed to pronounce my ruling on the objection of validity of the proceeding raised by the Respondent before I deal with the substantive matter of whether the Respondent should be surrendered for the extradition offence for which the surrender of the Respondent sought.

11. Section 2 of the Extron Acon Act 2003, ( hereafter referred as the Act) provides the meaning for the "extradition Country" where it stipulates " extradition country means a) a commonwealth country, b) afic Is forum country, try, c) a c) a treaty country, d) a comity country that is prescribed or certified under section 45".

12. Section 2 of the Acther sper specifically interprets that a Commonwealth country means a country listed in Schedule 1 and a Pacific Islands Forum country means a country that is a member country of the Pacific Islands Forum listed in Schedule 2 and a treaty country means a country listed in Schedule 3 with which the Fiji Islands has an extradition treaty.

13.& In addition, SectiSection 2 of the Act precisely interprets that "extradition treaty in relation to a country means

a. ;&#16 which the the countrountry and the Fiji Islandslands are parties ( whether or not any other country is also a party and),

b. ;&#16at relates ates whollyholly or partly to the surrender of persons accused or convicted of offences".

14. MoreoSection 67 (4) of thef the Act, stipulates that <" an ditioaty a) y a) to whto which tich the Fiji Islands was a party; or b) bound the Fiji Islands immediately before the commencement of thisremai force and is taks taken toen to be an extradition treaty for the purpose of this Act."

15. Having considered on 2 and2 and Section 67 (4) of the Act, the Extradition Act has precisely identified four categories of countries as extran cous and further specify three of them by listing them in schedule 1, 2, and 3 resperespectivectively.

16. It is nothy tt mention than that, as the learned counsel for the Respondent contended not only USA, there is no country listed in schedulf thein contrast to schedule 1 and 2 by generating an ambiguity and inconsistency in r in respecespect of the treaty country with the rest of the Act.

17.&#At this point I dr I draw my attention to the submission of the learned counsel for the Respondent where he brought to my attention two leading judicial dicta on the literal approach and the purposive approach in the law of interpretation. In Amalgamated Society of Engineers v Adelaide Steamship Co Ltd [1920] HCA 54; (1920) 28 CLR 129 at 161-2) Higgins J succinctly defined and explained the literal approach, where Higgins J held ' the fundamental rule of interpretation to which all others are subordinate is that a statue is to be expounded according to the intent of the parliament that made it; and that intention has to be found by an examination of the language used in the statue as a whole. The question is what does the language mean; and when we find what the language means in its ordinary and natural sense, it is our duty to obey that meaning even if we think the result to be inconvenient or improbable".

18. Furthe Grey v Pearsoearson [1857] EngR 335; (1857) 6 HLC 61 Lord Wensleydale held that "in constructing wills, and indeed statues and all written instruments, the atica ordinary sense of the word is to be adhered to, to, unlesunless that would lead to some absurdity or some repugnant or inconsistency with the rest of the instrument, in which case the grammatical and ordinary sense of the word may be modified so as to avoid that absurdity and inconsistency, but no farther".

19. Bearing in mind thee mentimentioned judicial precedents on law of interpretation, it is apparent the existence of an inconsistency and absurdity in respect of "treaty countryan extion country with the rest of the Act. In these cese circumircumstances, it is allowed to adopt the purposive approach to determine the purpose of the act with the particular provision in question in order to interpret the words which are inconsistence or absurd with the rest of the Act.

20. The preamblehof tt specifiecifically states that the purpose of the Act is to "regulate the extradition of persons from the Fiji Islands, to facilitate the making of requests for extradition by the Islan other countries,ries, to e to enable the Fiji islands to carry out its obligations under Extradition treaties and for related matters".

21.&#1xtradition is a fs a formal surrender by one country to another based on reciprocal arrangements. (R.v Secretary of State for Home Affairs, (1966) 2 QB194,). Accordingly, an extradition treaty is an international arrangement between two countries. Article 2 of The Vienna Convention on Law of Treaties 1969, defines "treaty" means an international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation". Wherefore, the extradition treaty is governed by international law. Section 3 of the Vienna Convention governed the laws relating to termination and suspension of the operation of international treaty.

22.&#160view of the pure purpose that stipulates in the preamble of the Act, Section 2 of the Act, specifically interprets the extradition country, treaty country and the extradition treaty. The mere ion of listing treaty countcountries under Schedule 3 dose not negate the purpose of the act as stipulated in the preamble and carrying out Fiji islands' obligations under extradition treaties as Section 2 specifically and precisely interprets the extradition country, the extradition treaty.

23. By viof foregoing reasoreasons, I dismiss the objection of the respondent that USA does not have an enforceable extradition treaty with Fiji Islands for want of listing in Schedule 3 as an Extraditcount terms of the Exte Extraditradition Act 2003.

24.&#I now proceed to p to pronounce my ruling on the substantive committal proceedings as follows.
25. The scope of the proceedi g to determine whether the Respondent may be surrendered ipulate in section 15 of thef the Act, where it states

" A magistrate must not ordat that a person be he custody until a surrender nder determination is made or refused unless the magistrate is satisfied-

(a)&#1at thuesting country is an extradition country;

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(b) that the offeor which surresurrender is sought is an extradition offence;

(c) as toidentity of the personerson;

(d)&that the supporting documents have been produced to the mage magistrate;

(e) that the supporting documsatisfy the requirements ofts of section 16; and

(f) that surrender should e refe refused because the n sought has established an extradition objection."

260; Section tion 16 of16 of the Act stipulates the means oforting documents in relation to an extradition offence, whe, where it states,

"&# description as accura pura possible of the person soun sought, together with any other information that may help to establish the identity and nationality of trson;

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

(c) the te the law of the requerequesting country that prescribes thelty or, if the penalty is n is not prescribed by statute, a statement of the penalty that can be imposed;

(60;a statement of the acts acts and omissions that constitute the offence, and details of the time and place the offence was committed;

(e) if the person is accused o the offence a warrant issued by the requesting country for the arrest of the person for the offence, or a duly authenticated copy of the warrant; and

(f) if thson hen convicted of t of t of the offence documents, or duly authenticated copies of documents, that provide evidence of

(i) the conviction;

(ii) the sentence imposed or intendntended to be imposed;

(iii) whether the sentence imposed has been carried out; and

(iv) whether the sentence is immediately enforceable.

27. Section 4 ofAthe eals with with an extradition objection to a request for the surrender of a person for an extradition offence, where it states

"There is an extradition objection toquestthe sder of r of a pera person fson for an extradition offence if –

(a) the extradition offence is regarded as a political offence;

(b) thee substantial grounds fods for believing that surrender of erson is sought for the purpose of prosecuting or punishing the person because of his or heor her race, religion, nationality, politipinions, sex or status, or , or for a political offence in the requesting country;

(c) on surrender, trson may be y be prejudiced at his or her trial, or punished, detained or restricted in his or her personal liberty, because of r her race, religion, nationality, political opinions, sex or status;

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(d) the offence is an offender nder the Republic of Fiji Military Forces Act but also not an offence under the Penal Code or other written laws;

(e) final judgment han given agen against the person in the Fiji Islands, ods, or in the third country, for the offence;

(f) under the law of the requesting country or the Fiji Islands, the person has become immune from prosecution or punishment because of lapse of time, amnesty or any other reason;

(g) the person lreadn acquitteditted or paor pardoned in the requesting country or the Fiji Islands, or punished under the law of that country or thi Islands, for the offence or another offence constituted by the same conduct as the extradxtradition offence; or

(h) the judgment has given in t in the persons absence and there is no provision in the law of the requesting country entitling the person to appear before a court and raise any defence the person may have.

28. On 4th of M20ch the then then learned counsel for the Respondent Mr. Titoko informed that the Respondent is only objecting under Section 1 (f) e Act. Subsequently the Respondent objected the existence and the validity of thef the Extr Extradition treaty between USA and Fiji Islands. Having considered oral and written submissions of both the prosecution and the respondent I have already determined that there is a valid extradition treaty existing between USA and the Fiji islands in my ruling dated 7th of July 2010 and the first part of this ruling. Accordingly I satisfy that USA is an extradition country within the meaning of the Extradition Act 2003.

29. The learnunseo for the Rese Respondent Mr. Aquila Naco and the learned Counsel for the Prosecution tendered the agreed facts and agreed bundle of documents on 11th of March 2010, where both the prosecution and the respondent agreed that the following documents from the disclosures be tendered without calling them to witnesses to testify or be cross examined;

1. The provisional arrest warrant dated 1st of April 2009 in accordance

with Section 7 of the Extradition Act 2003,

2. The Red flag ICPO –Interpol notification and supporting documents received from the Department of State and the criminal division Department of Justice dated 25th of February 2009 in accordance with section 7 and 16 (1) of the Extradition Act 2003,
   
3. The Authority to proceed authorized by the Attorney General of Fiji in accordance with Section 10 of the Extradition Act 2003,
   
4. The memorandum from Ministry of Foreign Affairs, International Co –operation and Civil Aviation to the Office of the Director of Public Prosecutions dated 13th of March 2009,
   
5. The Diplomatic Note verbale ( Note No 29) dated 10th of March 2009 atached with the Memorandum in No 4,
   
6. Appendix 1 of the United States Constitution dated 1787 including Bill of Rights,
   
7. The search list dated 7th of April 2006,
   
8. The search list dated 7th of April 2009,
   
9. The letter from the US department of Justice Mrs. Catherine Dace of the United States Embassy – Fiji dated 18th of February 2010,
   

x. The letter to the High court of Fiji from Mrs. Catherine Dace of the United States Embassy, Suva dated 19th of February 2010.

30. I now briexam ne the evideevidences adduced by both the prosecution and the respondent.

31. Mr.MaMcCormack Special Agel Agent and law enforcement officer at the Embassy of the United States of America in the Fiji Islands gaveence for the prosecution. In his evidence Mr. McCormack stated that he is the authorized coed contacting person in respect of this extradition proceeding in the Embassy of United States of America and confirmed receiving of all relevant documents pertaining to Section 16 of the Act together with the arrest warrant. Further he established in his evidence that the arrest warrant is still in force. He tendered a document obtained from the DS Command Center as exhibit 1 to support it. He specifically stated that the Respondent has not been pardon or acquitted for these charges nor he has been punished for them.

32. Moreovrosecution witness tess testified the Respondent is still holding a legal permanent residence status in USA and will be treated US ci in the judicial process in USA.

33. The Reepondn t in his ehis ehis evidence mainly contended that he may not have a fair trial to answer and defend the charges against him in the Federal District Court in Nevada. He alleged the speciteres enthm shownshown by t by the FBhe FBI and AUSA in investigating and charging him for these offences and sees them as green eyed monsters.

34. He speclly stated that he t he believes his statues in the field of network marketing as one of leading figures has made a lot of the government employees such as those in the Judiciary and the FBI, who are struggling in the conventional system very angrily. He stated that he very strongly feel that he will be dealt with most unfairly due to his status and position in the field of Network marketing.

35. Furthe, the respondent empt emphasized in his evidence that he believes that charges and the present extradition proceedings have been motivated by political consideration due to his previous involv in ring the secret soet societyciety which he believed in the Federal Reserve.

36. In of the agreed facts ands and agreed documents, evidence of Mr. Mathew McCormack, and the evidence of the Respondent I am satisfied pursuant to Section 15 (1) ofAct, that the requesting country is an extradition coun country,ntry, that the offence for which surrender is sought is an extradition offence, the identity of the person, that the supporting documhats have been produced to the magistrate, that the suing documeatisfytisfy the requirements of Section 16 of thef the act.

37. Further, it was trred from from the evidof thpondent that he w he was aware of the charges against him and was fully aware of the matteratter being now in the Jurisdiction of theral District Court of Nevada.

38. HavinHaving consideridencedences adduced by the prosecution and the respondent, the only issue to be determined is that whether the respondent has successfully established a valid extradition objection underion 4f the Extraditionition Act. Act.

39. Having carefclly dered thed the respondent details evidence in chief in his affidavit, it appears to me that his objection to the request for surrender is mainly confined to Section 4 (a), (b) and (c) of ct. <160;
40. #160; Even Even thoue RespoRespondent stated that he believes that the charges against him and this extradition proceedings have been motivated by political consideration, he did not raise this issue when he cross examined the prosecution witness who is an agent of Government of USA. The respondent's objections have no consistency as he should have put these allegations to the prosecution witness for him to answer them in his cross examination. The respondent barely alleges with his beliefs but not with facts and details. He only believes based on his personal views and experiences that due to his status in the field of Network marketing he will be dealt unfairly in the judicial process in the Federal District Court in Nevada.

41. H considered the evidence ence of the respondent, I find that the respondent has failed to establish that the extradition offence regarded as a political offences and / or there are substantial grounds to believe that that the surrender of the respondent is sought for the purpose of prosecuting or punishing him because of his race, religion, nationality, political opinions, sex or status, or for a political offence in USA and / or the respondent may be prejudiced at his trial, or punished, detained or restricted in his personal liberty, because of his or her race, religion, nationality, political opinions, sex or status.
Accordingly, I determine and order that the Respondenondent be t be held in Custody until a surrender determination is made by the Judge in High court in pursuant to Section 18 of the Extradition Act.

43. esponmayt may seek a reviereview of this order within 15 days after the date on this order in pursuant to Section 17 of the Extron Ac>

44. The Registry is od to issu issue and serve a copy of this ords order toer to the Hon Director of Public Prosecution and to the Hon Minister.

45. I transfer this proceeding to High Court.

On this 5th day of April 2010.

R.D.R.Thushara Rajasinghe
Resident Magistrate,

Suva.