Murder accused’s lawyers say court doesn’t have jurisdiction to hear extradition case

Troy Anthony

Attorneys representing Troy Thomas, who is wanted in the United States for murder, yesterday argued that the magistracy has no jurisdiction to hear the extradition proceedings initiated against him.

Thomas, of South Ozone Park, Queens, New York, USA, who allegedly murdered Keith Frank on December 11th, 2011, was recently apprehended by ranks of the Guyana Police Force during an intelligence-led operation that began on January 31st, 2018.

He was arrested at a Liliendaal, East Coast Demerara location.

When the extradition case resumed yesterday before acting Chief Magistrate Sherdel Isaacs-Marcus in Georgetown, instead of evidence being taken from the two witnesses provided by state prosecutor Stacey Goodings, defence attorneys Nigel Hughes, Bernard Da Silva and Darren Wade argued that the court has no jurisdiction to hear the matter.

Hughes said he did not believe that the court possesses the power to determine if his client’s fundamental rights, as guaranteed by the constitution, have been infringed upon and then urged it to refer the matter to the High Court on the issue.

Hughes added that they would be proceeding to the High Court today to challenge the Public Security Minister authorising the proceedings as it is unconstitutional.

Da Silva, who also noted that the court has no jurisdiction to conduct, or to continue to conduct the present inquiry, then informed the court that the defence is also relying on the case of Barry Dataram.

Dataram, who was due to be extradited to the United States for cocaine smuggling offences, was freed after the Full Court exposed a lacuna in the local law.

As Da Silva continued, he noted that the 1931 treaty between the United Kingdom and the United Stated, upon which the proceedings rely, contains no provision that satisfies the requirement of Section 8 3(b) of the Fugitives Offenders Act of 1988, which prohibits the extradition of an individual from Guyana unless the receiving country ensures that they would not extradite the individual to a third country for trial without the consent of the minister.

The attorney noted that the treaty must contain a provision for ensuring that a fugitive offender, once extradited to the requesting state, will not be extradited to a third country without the consent of the minister. Da Silva argued that in the absence of this provision, the direction and consent given by the minister is powerless.

Section 12 of the Act states, “(1) On receipt of a request under section 9 the Minister may issue an order in Form 1 (hereinafter referred to as “authority to proceed”) signifying to a magistrate that the request for the extradition of the person mentioned in the order has been received and requiring the magistrate to proceed with the case in accordance with the provisions of this Act. (2) The Minister shall not issue an authority to proceed if it appears to him that an order for the extradition of the person concerned could not lawfully be made, or would not in fact be made, in accordance with this Act (3) Subject to this Act, no person shall be dealt with by a magistrate under this Act except in pursuance of an authority to proceed issued by the Minister.”

Da Silva said the minister therefore has no authority to give directions to proceed and in the absence of this the prosecutor would have no jurisdiction to extradite or detain any person for the purpose of extradition to the US. As a natural consequence, he noted the direction given by the magistrate would come to a nullity and the continued detention of the accused is also unlawful.

He added that there is a real and present danger of exposing citizens to oppression and abuse at the hands of a greater power. In continuing his argument, the attorney noted that in evidence presented last Friday, Eon Alonzo, Assistant Superin-tendent of Police, under cross-examination stated that he was in receipt of no arrest warrant for the accused. Da Silva noted that the authority to proceed, dated January 18th and purportedly signed by Public Security Khemraj Ramjattan, is unconstitutional, void, has no and legal effect.

In response to the attorneys, prosecutor Goodings asked for some time to adequately address the court on the way forward given the extent of the submissions and the authorities that were mentioned.

The matter was then adjourned until April 11th, when it will be heard at the Providence Magistrate’s Court.

In the wake of the Dataram case, the PPP/C government announced that it would modify the law and in October 2009  it passed an amendment to the Fugitive Offenders Act 1988 to address the conflict that arose within the law regarding individuals here being extradited. The amendment also controversially included a provision which empowers the Home Affairs (now Public Security) Minister (to decide whether to extradite or not.

Alonzo had testified last Friday to receiving instructions to arrest Thomas from crime Chief Paul Williams.

In his evidence, Alonzo stated that on March 14th, 2018, he received information about an arrest warrant, which caused himself and other ranks to proceed to Lot 34 Second Street, Liliendaal, East Coast Demerara.

On arrival at the location, he and the other ranks entered a northern gate, which was open, and proceeded the house, which was to the eastern side of the yard.

Alonzo noted that subsequent to knocking on the door to the upper flat, a woman, who he later identified to be Lolita Callender, answered. After identifying himself and the other ranks to her, the witness said he indicated that there may be a wanted person on the premises.

He then searched the home and found a man dressed in a t-shirt and underpants. Alonzo noted that he immediately recognised the man, who fit the description of a mugshot he received.

The individual was then arrested, according to Alonzo, who further stated that when he asked the man his name and for identification, he indicated that it was Marvin Williams and that he had no form of identification.

Alonzo later escorted the individual, who he pointed out in the court room to be Thomas, to the Criminal Investigation Department headquarters.

While at the headquarters, he noted that he asked the defendant for his name for a second time and any form of identification he might possess and the man once again gave the name Marvin Williams and denied having any identification.

Alonzo stated that he later placed the accused into custody.

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