IN THE COURT OF APPEAL OF BELIZE AD 2020 CIVIL APPEAL NO 20 OF 2014 GARY GORDON SEAWELL Appellant v (1) SUPERINTENDENT OF PRISONS (2) ATTORNEY GENERAL Respondents ______ BEFORE The Hon Mr Justice Sir Manuel Sosa President The Hon Mr Justice Samuel Awich Justice of Appeal The Hon Mr Justice Murrio Ducille Justice of Appeal B Cooper (now QC), of the Bar of England and Wales, for the appellant. T Young, Senior Crown Counsel (on date of hearing) and A Finnegan, Crown Counsel, for the respondents. ______ 4 November 2016 and 14 July 2020 SIR MANUEL SOSA P I - Introduction [1] At the close of the abbreviated hearing on 4 November 2016, the Court, having been informed by Ms Young, for the respondents, that the appeal would not further be resisted, intimated that, for reasons to be given in writing at a later date, it was allowing the appeal, setting aside the orders of the judge below, Arana J (‘the Judge’), and ordering the issue of a writ of habeas corpus and the discharge of the appellant from prison. As 1 regards costs of the appeal, it was provisionally ordered that they follow the event, be fit for two counsel and be agreed or taxed. I set out below my own reasons for judgment, with sincere apologies for the delay in so doing. II – Background 1. Alleged facts (a) Indictment in the United States of America [2] The alleged facts constituting the extensive background to this appeal are found in large part in an affidavit of Robyn Jones Hahnert, Assistant United States Attorney for the Southern District of Ohio, sworn on 30 August, 2006 before a United States District Judge for the Southern District of Ohio (‘the Hahnert affidavit’). The Hahnert affidavit was prepared in support of a request by the United States of America (‘the USA’ or ‘the United States’) for the extradition from Belize of Gary Gordon Seawell (‘the appellant’), who was born in Belize on 4 March 1976. For present purposes, it suffices to extract from that background the following salient alleged facts. Upwards of 22 years ago, on 10 October 1997, a federal grand jury sitting in Columbus, Ohio (‘Columbus’), returned what is known there as a superseding indictment (‘the original indictment’) against two brothers and a number of alleged co-conspirators of theirs. The brothers in question were one Mark A Seawell, also born in Belize, and the appellant; and the original indictment, which was filed in the United States District Court for the Southern District of Ohio, charged them and their alleged co-conspirators with criminal offences in violation of the laws of the USA. There followed the issue of warrants for the arrest of Mark A Seawell and the appellant. [3] Four months after the return of the original indictment, on 10 February 1998, a federal grand jury sitting in Columbus returned another indictment (‘the second indictment’) against Mark A Seawell, the appellant and a third brother, Duane J Seawell, also born in Belize, together with a number of alleged co-conspirators. The second indictment, like the original indictment, charged the appellant, his two brothers in question and their alleged co-conspirators with criminal offences in violation of the laws of the USA. 2 The original indictment, having been superseded by the second indictment, was thereafter dismissed insofar as it related to Mark Seawell and the appellant. Warrants were thereupon issued for the arrest of the appellant and his two brothers in question. [4] The second indictment contained a total of 59 counts. Of these, 39 related to the appellant and charged him with the following criminal offences: (i) conspiracy to import into the United States over 500 grams of cocaine (1 count); (ii) conspiracy to distribute and possess marijuana and over 500 grams of cocaine (1 count); (iii) conspiracy to commit money laundering (1 count); (iv) laundering of monetary instruments to promote the unlawful activity of cocaine and marijuana distribution (8 counts); (v) laundering of monetary instruments to conceal or disguise the nature, location, source and ownership of the proceeds derived from the sale of cocaine and marijuana (6 counts); (vi) unlawful importation into the United States of over 500 grams of cocaine (16 counts); (vii) unlawful attempt to import into the United States over five kilograms of cocaine (1 count); (viii) unlawful attempt to import into the United States over 500 grams of cocaine (3 counts); (ix) unlawful attempt to possess with intent to distribute over 500 grams of cocaine (1 count); and (x) operating a continuing criminal enterprise (1 count). 3 Although both Mark A Seawell and the appellant were living in the USA at the time of their indictment, the arrest of either of them in the USA proved impossible; and both managed to reach Belize in due course, the allegation in the Hahnert affidavit being that they both fled from the USA in 1997. (b) Request for extradition [5] Having failed to arrest the appellant on USA soil, the government of the United States requested his extradition of the government of Belize. This request was made in September 2006 under the extradition treaty entered into between these two governments on 30 March 2000. [6] In response to such request, the minister of government with responsibility for foreign affairs in Belize (‘the Minister’), on 10 November 2006, directed the then Chief Magistrate to issue a warrant for the arrest of the appellant. Pursuant to the issue of such a warrant, the appellant was arrested in the jungle near to Esperanza, Cayo District more than three years later, in February 2010. (Who, in fact, held the office of Chief Magistrate at the time of the issue of the arrest warrant is unclear; for, while the ruling of the Inferior Court referred to below unequivocally states that it was Her Worship Margaret McKenzie – later to be known as Gabb McKenzie CM – a copy of the warrant itself, dated 29 December 2006 and exhibited to an affidavit of Mr Arthur R Saldivar – counsel appearing for the appellant in the Inferior Court – sworn to on 22 August 2016 (‘the Saldivar affidavit’), bears the purported signature of ‘Herbert Lord, Chief Magistrate’.) 2. Court Proceedings (a) Extradition application to the Inferior Court [7] Most unsatisfactorily, little has been made known to this Court of the proceedings for the extradition of the appellant which are said to have taken place before the Chief Magistrate, her Worship Ann-Marie Smith (‘Smith CM’), presumably the immediate successor of Gabb McKenzie CM. Nowhere in the record is there a clear statement as to the date of commencement and the duration of such proceedings. All that has been stated as a fact in this regard is that they ended on 22 October 2013, when Smith CM, delivered 4 a ruling in the case. It is also to be gathered from what appear to be magistrate’s notes exhibited to an affidavit of Mr Saldivar that (a) there was a resumption of some sort of hearing (of a mere in limine objection, according to Mr Saldivar) before that court on 11 September 2013 and (b) there was on the adjournment later that day a promise by Smith CM of a decision on 21 October 2013. [8] The two-page ruling dated 22 October 2013 of Smith CM is divided into four parts respectively sub-headed Background, Submissions, Reasoning and Conclusion. Under the first sub-heading, Smith CM refers briefly to (a) the request for extradition, (b) the Minister’s direction to the then Chief Magistrate and the arrest of the appellant and (c) the bundle of documents delivered to the Minister by the government of the USA and subsequently placed before her (Smith CM) by the then Solicitor-General of Belize. Under the second sub-heading, note is made of the submissions of the appellant’s then counsel, as understood by Smith CM, inviting the court to ‘disregard’ the affidavits put before it on behalf of the USA. Under the third sub-heading, Smith CM first sets out the essentials of her role, as she sees it, in the extradition hearing. Secondly, she holds that the statements, by which she clearly means the affidavits relied upon by the USA, were, despite some ‘minor discrepancies’, made in accordance with the laws of Belize. She completes this part of the ruling invoking a case of R v Evans, without providing a citation therefor, in support of a further holding to the effect that it is not for the magistrate in extradition proceedings to deal with issues as to alleged hearsay in the depositions of the requesting state, such issues being for determination by the trial court in the requesting state. Under the fourth sub-heading, Smith CM rules that, on a consideration of the evidence presented and the authorities cited to her, a sufficient basis has been made out for the extradition of the appellant. She goes on to ‘[grant] the application of the government of the [USA] for the extradition of [the appellant] to the [USA] to stand trial on the charges as aforesaid’. (Far from having previously identified any of the offences in question, she had said, under the sub-heading Background, that ‘[f]or brevity I have not regurgitated all of the offences as they are contained in the written submissions and can easily be referred to.’) 5 [9] The appellant was thereupon returned to the place of his confinement, viz the prison at Hattieville (‘the Prison’), also known as the Hattieville Prison, in circumstances which, given the main ground of the present appeal, shall be gone into in detail later in this judgment.