NY murder accused loses challenge to extradition proceedings

Troy Anthony

Justice Jo-Ann Barlow yesterday dismissed a challenge filed on behalf of fugitive murder accused Troy Thomas to the jurisdiction of the magistracy to hear the proceedings initiated to extradite him to the United States.

Ruling on the application filed on Thomas’ behalf, Justice Barlow found that the hearings are neither illegal nor a breach of Thomas’ constitutional rights.

Thomas, of South Ozone Park, Queens, New York, USA, allegedly murdered Keith Frank on December 11th, 2011. He was apprehended in March this year by ranks of the Guyana Police Force.

Justice Barlow yesterday dismissed the application and refused the declarations sought by Thomas’ attorney, Nigel Hughes. She then ordered that the magistrate overseeing the matter proceed with the hearings and that the State be awarded costs in the sum of $150,000.

Upon hearing the ruling of the judge, Hughes requested a stay of three weeks for a preliminary review of the decision, but the application was objected to by Solicitor-General Kim Kyte-Thomas, who opined that there was no merit in the appeal. Furthermore, she stated that it is within the best interests of all involved that the matter continues, given the burden on State resources and the possible creation of a backlog, which is an issue often faced in the lower courts.

The judge, after enquiring and being told that the next scheduled date of the hearing is June 26th, denied the stay on the grounds that the reasons were insufficient, and there is adequate time between now and the date of the next hearing in order for an appeal to be filed.

Before proceeding with her ruling on the matter, Justice Barlow noted that it first had to be determined whether the person in question was Troy Thomas as his attorney had submitted that his name was Mervin Williams.

Barlow concluded that based on court documentation, the man had answered to the name “Troy Thomas” on several occasions when called before the court and at no time complained that that was not his name. Further, he was admitted to prison under that same name. The judge, therefore, concluded that since he answered to that name, it is reasonable to assume that he is or was sometime known as Troy Thomas.

Earlier this year, Minister of Public Security Khemraj Ramjattan had authorised proceedings for Thomas’ extradition, following which Minister of Foreign Affairs Carl Greenidge had issued a certificate that confirmed that there is an extradition agreement between the United States and the United Kingdom, which is enforced in Guyana.

In her ruling, Justice Barlow declared that Section 8(3) of the Fugitive Offenders Amendment Act of 2009 authorised the extradition of a person to a Commonwealth country or treaty territory regardless of what is stated in any other law or treaty, once the minister considered that it was in the interest of justice.

“Notwithstanding anything contained in subsection (3)(b) or any other law or treaty, a fugitive offender or any class or category of fugitive offenders may be committed to, or kept in, custody for the purpose of extradition or may be extradited to a Commonwealth country or a treaty territory in connection with any extraditable offence, if the Minster considers it necessary in the interest of justice,” the section states.

Furthermore, Justice Barlow contended that the minister would have taken all things into consideration when arriving at his decision, and that he would be at liberty to exercise his discretion once all things were taken into account.

She called “untenable” the applicant’s claim that the amendment to the local legislation (the Fugitive Offenders Act) was an attempt to amend the treaty, while stating that it instead amended part of domestic legislation.

As regards the claim that Thomas was being denied his constitutional rights by being denied his personal liberty, the judge stated that the same Article the applicant was relying upon to support his claim, limits him in that regard.

Article 139 (1) of the Constitution provides that no person shall be deprived of his personal liberty save as may be authorised by law “for the purpose of preventing the unlawful entry of that person into Guyana, or for the purpose of effecting expulsion, extradition or other lawful removal of that person from Guyana or for the purpose of restricting that person while he is being conveyed through Guyana in the course of his extradition or removal as a convicted prisoner from one country to another.”

While Justice Barlow cited the extradition case of Barry Dataram in 2008, she noted that the Court of Appeal had declined jurisdiction in that matter and the acting Chief Justice’s decision to bring an end to the proceedings went uncontested. However, she noted that the circumstances were peculiar in that it was a civil matter arising out of a criminal proceeding, and such matters were not usually handled by the Court of Appeal.

Barlow opined that the decision on the matter of Dataram would not have “withstood the test of time” and went on to state that the later amendments to the Act in 2009 put the legislation on an “even keel.”

In March, defence attorneys Nigel Hughes, Bernard Da Silva and Darren Wade, during an appearance before acting Chief Magistrate Sherdel Isaacs-Marcus, had argued that the court has no jurisdiction to hear the extradition proceedings.

Hughes said he did not believe that the court possessed 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.

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 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 States, 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.

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