Legal Services and Laws of Sri Lanka


SLR-1986 Vol.1-P30

SLR - 1986 Vol.1, Page No - 30

PHILIP GORDON JAMES BENWELL

V.

THE ATTORNEY-GENERAL
SUPREME COURT.

SHARVANANDA, C.J., ATUKORALE, J. AND TAMBIAH, J.

S.C. APPEAL No. 56/84.

C.A. APPEAL No. 63/83 AND C.A. (REV.) APPLICATION No. 978/82.

H.C. COLOMBO CASE No. EXTRADITION 1/1981.

NOVEMBER 13, 14 AND 15, 1985.

Extradition - Extradition Law No. 8 of 1977 - Authentication of documents - Revisionary jurisdiction of the Court of Appeal.
In extradition proceedings under our Extradition Law No. 8 of 1977 the High Court Judge as a Judge of the Court ofcommittal
exercises a jurisdiction conferred by the statute itself. Such proceedings are judicial proceedings andcannotberegarded
as wholly administrative process and they areamenabletotherevisionaryjurisdictionoftheCourtofAppeal.The
certificate appended to the proceedings by the Stipendiary Magistrate oftheStateofNewSouthWalesconstitutesdue
authentication although he did not certify separately each page of the proceedings or the evidence of each witness.
The requisition for the appellants extradition to Australia wherehewaswantedonchargesofembezzlementandfalse
pretence was correctly made to the Minister of Foreign Affairs.

Per Atukorale, J.
Our extradition law provides for the extradition of fugitives to andfromdesignatedCommonwealthcountriesandforeign
States (called treaty States). Proceedings in extradition are founded on internationalobligationsarisingoutofmutual
agreement between different countries. These obligations involve a very high sense of responsibility andcommitmentonthe
part of such countries. Extradition law is designed to prevent a fugitive who has committedacrimeinonecountryfrom
seeking asylum in another to which he has fled to avoid trial and punishment.Itrestsupontheplainestprinciplesof
justice. It is a law which is of vital importance to the publicadministrationofcriminaljusticeaswellastothe
security of different countries.

Per Atukorale, J.
It is indeed in the rarest instance that a fugitive from justice can be heard to complain of unjust opression andharassment
from proceedings lawfully commenced, though for asecondtime,forthepurposeofdeterminingwhetherheshouldbe
extradited or not to his country which he has fled and which is so anxious to secure his return inordertobringhimto
justice for the offences he is accused of having committed therein.

Cases referred to
(1) Alles v. Palaniappa Chetty (1917) 19 NLR 334.
(2) Re. Ganapathipillai 21 NLR 48 1.
(3) Thompson v. Gould [19 10] AC 420.
(4)Rex v. Oakas (1959] 2 QB 350.
Dr. Colvin R. de Silva with C. P. llangakoon (Jr.) and Miss Saumya de Silva for the appellant.
Priyantha Perera, Deputy Solicitor-General with K. C. Kamalasabeyson, S. S. C., Mervyr, Samarakoon, S. C. and T. G.
Gooneratne, S. A. for the respondent.

December 20, 1985.

ATUKORALE, J.
The appellant is an Australian national residing in Sri Lanka. By a requisition dated 14.4.1981 addressed to the Ministerof
Foreign Affairs, the Attorney-General of Australia onbehalfof,theGovernmentofAustralia,whit'isadesignated
Commonwealth country for the purposes of the Extradition Law, No. 8 of 1977, requested that the appellant, apersonaccused
in the State of New South Wales, of 18 offences of fraudulent misappropriation contrary to s. 178 AoftheCrimesActof
1900 (N.S.W.) and one offence of false pretence contrarytos.179ofthesaidAct,bereturnedtoAustralia.The
appellant's extradition was sought under the provisions of the aforesaid Extradition Law of Sri Lanka,hereinafterreferred
to as the Law. In pursuance of this request His Excellency the' President, who is the Minister in charge ofthesubjectof
extradition, issued in terms of s. 8 (3) thereof an authority to proceed to the High Court of Colombowhichthenissueda
warrant for the arrest of the appellant. After he was arrested and produced the High Court commenced proceedings under s.10
of the Law with a view to committing him to custody to await extradition.

At the hearing evidence was led in support of the request for extradition. It contained, inter alia, of exhibits E 1 toE352
and the depositions of witnesses contained in pages 1 to 260 of part A of the proceedings before theStipendiaryMagistrate
of the State of New South Wales. At the conclusion of the hearing the learned High Court Judge discharged the appellantfrom
custody upholding the main objection advanced on behalf of the appellant, namely, that there wasnodueauthenticationas
required by s. 14 of the Law of the documents setting out the depositionsandexhibitsproducedinevidencebeforethe
Stipendiary Magistrate for the reason that the latter had failed tocomplywiththeprovisionsofs.33A(2)ofthe
Extradition (Commonwealth Countries) Act, 1966, which required him, inter alia, to take the evidence on oathoraffirmation
of each witness appearing before him and to cause the evidence to be reduced to writing and to certify attheendofthat
writing that the evidence was taken by him. The learned Judge held that as the Stipendiary Magistrate had failed to makethe
requisite certificate either at the end of the writing of the evidence of each witness or even at the endoftherecording
of all the evidence, there had been no due authentication of the said documents within the meaning of s. 14 oftheLaw.He
therefore held that the documents were inadmissible in evidence and discharged the appellant.

The Attorney-General of Sri Lanka, who is the present respondent and on whose behalf evidence was led before the HighCourt,
invoked the appellate as well as the revisionary jurisdiction of the Court of Appeal to have this order set aside. TheCourt
of Appeal whilst upholding the objection of the appellant that there was no right of appeal from an order of theHighCourt
in extradition proceedings overruled his further objection to the maintainability of the revision application andheldthat
the jurisdiction of the Court of Appeal extended to the revision of such an order. On the meritstheCourtheldthatthe
High Court erred in determining the question of due authentication of the relevant documents by reference totheprovisions
of s. 33A (3) of the said Act of 1966 and ruled that that question should have been determined having regardsolelytothe
provisions of s. 14 (2) (a) of our Law. Acting in revision the Court set aside the order of the High Court andremittedthe
case to the High Court for an appropriate order on the basis that the documents in question had beendulyauthenticatedas
required by our Law. The present appeal is from this judgment of the Court of Appeal.

At the hearing before us learned counsel for the appellant submitted that the Court of Appeal erred in holdingthatithad
jurisdiction in revision in mattersappertainingtoextradition.Itwashiscontentionthatextraditionproceedings
envisaged under our law, though conducted partly in the High Court and also, in the sole instance ofanapplicationfora
writ of habeas corpus, in the Court of Appeal, are when regarded intheirtotalityinthenatureofanadministrative
process to which the High Court is drawn as an instrument of that process. Being an administrative process theonlyremedy,
he submitted, in respect of any matter arising out of such proceedings in the High Court is by way of writ proceduretothe
Court of Appeal and that the revisionary jurisdiction of the Court of Appeal did not lie. In support of hissubmissionthat
extradition proceedings are in the nature of an administrative process learned counsel pointed out that nopersoncouldbe
dealt with under the law ?except in pursuance of an Order of the Minister... issued in pursuance of a request toaMinister
by or on behalf of a Government' of the country or State in which the person to be extradited is accused or wasconvicted
that on receipt of such a request 'the Minister may issue an authority to proceed unless it appears to him that an orderfor
extradition of the person concerned could not lawfully be made in accordance with the provisions of thelaw':thatifa
High Court judge issues a provisional warrant for the arrest of a fugitive person he must forthwith give notice of itsissue
to a Minister and transmit to him the information and evidence uponwhichitwasissued,uponwhichcommunicationthe
Minister ?may in any case and shall if he decides not to issue an authority to proceed' by order cancel thewarrantandif
the person concerned has been arrested thereunder discharge him from custody thattheHighCourtisonlyacourtof
committal and that in certain circumstances the Minister may not order extradition despite the decision of the High Courtto
commit. Learned counsel stressed that except in the case of a decision in favour of the fugitive person by the High Courtor
by the Court of Appeal upon an application to it for a writ of habeas corpus, it is the Minister whoeventuallydecideson
the actual extradition, a decision which is dependent on matters of policy and expediency. He submitted that ourExtradition
Law is a self contained enactment subject to its own procedure and that it would offend the very scheme of thelawtohold
that the revisionary jurisdiction of the Court of Appeal was available in theparticularcircumstanceofthisparticular
type of proceeding.

The order of the High Court Judge which was sought to be revised in the Court. of Appeal is one that wasmadeinpursuance
of the provisions of s. 10 (4) of the Law. s. 10 (2) provides that for the purposes of proceedings under s. 10,acourtof
committal (which is the High Court) shall have the like jurisdiction and powers as though the proceedings were in respectof
an offence triable by that court. S. 10 (4) stipulates, inter alia, that where an authority to proceedhasbeenissuedin
respect of a person arrested and produced before the court of committal and the court is satisfied, afterhearingevidence,
that the offence to which the authority relates is an extraditable offence and it is further satisfied,inthecaseofa
person accused of the offence, that the evidence would be sufficient to warrant his trial for that offenceifithadbeen
committed within the jurisdiction of the court, then the court shall,unlesshiscommittalisprohibitedbyanyother
provisions of that law, commit him to custody to await his extradition thereunder, But if the court is notsosatisfiedor
if the committal of the person is so prohibited, the court shall discharge him from custody. Whilst subsection (2) ofs.10
in effect confers in so far as proceedings under that section are concerned, the same jurisdiction and powers on acourtof
committal as if it were a court of trial, subsection (4) mandates the makingofanorderafterhearingevidenceeither
committing or discharging him. A High Court judge as a judge of the courtofcommittalisthusrequiredtoexercisea
jurisdiction conferred on him by the statute itself. The proceedings that take place before him are judicial proceedingsand
the order he makes is a judicial order. The submission of learned counsel fortheappellantthatextraditionproceedings
under the Law are in their nature a wholly administrative process cannot thus be sustained. The question that arises nextis
whether such an order made in such proceedings is amenable to the revisionaryjurisdictionoftheCourtofAppeal.The
jurisdiction of the Court of Appeal to act, in revision is set out in Article 138 of the Constitution.Itenactsthatthe
Court of Appeal shall have and exercise, subject to the provisions of the Constitution or ofanylaw,soleandexclusive
cognizance, by way of appeal, revision and restitutio in intergram of all causes, suits, actions, prosecutions,mattersand
things of which a court of first instance,tribunalorotherinstitutionmayhavetakencognizance.Therevisionary
jurisdiction conferred on the Court of Appeal by this article is indeed very wide and general and clearly ithastheright
to revise any order made by a court of first instance including the High Court. There is nothing either intheConstitution
or in the Extradition Law or any other enactment which in any way limits or restricts the width and generality of thepowers
of the Court of Appeal to revise an order made by the High Court unders.10(4)oftheLaw.TheCourtofAppealwas
therefore correct in holding that it had jurisdiction to revise the order of the learned HighCourtJudgeintheinstant
case. The view I have formed gains support from two decisions of the Supreme Court - Alles v. Palaniappa Chetty(1)andin
Re. Ganapathipillai (2) - in both of which proceedings were taken under the English Fugitive Offenders Act, 1881,whichwas
then applicable to Sri Lanka. In the former case the order of theMagistrateissuingawarrantforthearrestofthe
fugitive was challenged by way of revision to the Supreme Court whilst inthelattercasetheorderoftheMagistrate
refusing to order the fugitive to be returned to Kedah was sought to be revised. In both cases objection was takenthatthe
powers of revision which were then vested in the SupremeCourtwereinapplicabletoextraditionproceedingsunderthe
Fugitive Offenders Act which, as in our Law, contained no legal provision for appeals or applications for revision oforders
made there under. In both cases the Supreme Court overruled the objection and held that the provisions of s.21(2),later
s. 19 of the Courts Ordinance then in force were sufficiently wide to confer on the Supreme Court thepowertoreviseand
correct proceedings held by the Magistrate under the fugitive Offenders Act. It is significant to notethattheprovisions
of s. 21 (2) of the Courts Ordinance were substantially the same as contained in Article 138 (1) of theConstitutioninso
far as the jurisdiction in revision is concerned.

This brings me to the substantive question that was raised and argued in the High Court and the Court of Appealaswellas
before us, namely, whether the exhibits E 1 to E 352 and the depositions contained in pages1to260ofpartAofthe
proceedings held before the Stipendiary Magistrate of New South Wales have or have not been dulyauthenticatedasrequired
by s. 14 (2) of our Extradition Law, No. 8 of 1977. The High Court held that they were not, as maintained bytheappellant.
The Court of Appeal reversed this finding and held that they were duly authenticated, as maintained by theAttorney-General.
The relevant portion of s. 14 is as follows :
".(2) A document shall be deemed to be duly authenticated for the purposes of this section -
(a) in the case of a document purporting to set out evidence given as aforesaid, if the document purports to be certifiedby
a judge or other officer in or of the country or State in question to be the original document containing orrecordingthat
evidence or a true copy of such document
(b) in the case of a document which purports to have been received in evidence as aforesaid or to be a copy of a documentso
received, if the document purports to be certified as aforesaid to have been, or to be a true copy of adocumentwhichhas
been so received
(c) ... and in any such case the document is authenticated either by the oath of a witness, or bytheofficialsealofa
Minister, of the designated Commonwealth country or treaty State in question."
In construing the true meaning of this subsection I do not think it is permissible tohaverecoursetothecorresponding
provisions of the Australian law of extradition as was done by the learned High Court Judge. There isnojustificationfor
doing so. It is imperative that the court should have regard solely to the provisions of ourlawbecausewhatconstitutes
due authentication of a document is set out in the abovesubsection.Thematerialportionsofthecertificateofthe
Stipendiary Magistrate read as follows
"I. Kevin Robert Webb, the undersigned, one of Her Majesty's Stipendiary Magistrates ... hereby certify thatonthethird,
fourth, fifth and sixth days of February, in the year of Our Lord one thousand nine hundred and eightyone,thereappeared
before me .... the persons hereinafter named who, being duly severally sworn, gave evidence on oath consistingoftestimony
given orally for transmission to the country of Sri Lanka ....."

And I further certify that I caused the said testimony of each of them to bereducedtowriting.whichsaidwritingis
constituted in the documents annexed hereto and numbered '1' to'260'inclusive.AndIfurthercertifythatthesaid
documents annexed hereto and numbered '1' to '260' are the original documents truly recording the evidence so givenonoath
in the Commonwealth of Australia by the said persons and are a true record of the said testimony so taken by me.
And I further certify that the documents annexed hereto and numbered as exhibits ?1' to '352' inclusive aretruecopiesof
the documents received in evidence by me in the proceedings conducted before me in the Commonwealth of Australia on thesaid
days for taking the said evidence and testimony.''
It is dated 12 .2. 1981 and signed by the Stipendiary Magistrate. There is also another document signed byandbearingthe
official seal of the Attorney-General of Australia, who is a Minister of the Government of Australia. It reads as follows
GIVEN UNDER MY HAND and OFFICIAL SEAL affixed to the tape binding all the annexed documents."

This is dated 14.4.1981. Hence there is only one certificate of the Stipendiary Magistrate and asingleaffixationofthe
official seal of the Minister. The certificate is to the effect that the depositions aretheoriginaldocumentsrecording
the evidence of witnesses given on oath before him and that the exhibitsaretruecopiesofthedocumentsreceivedin
evidence by him at the proceedings conducted byhimfortakingevidence.S.14(2)(a)oftheLaw whichrelatesto
depositions, stipulates that a document puporting to set out evidence given on oath shall be deemed to be dulyauthenticated
if it purports to be certified by the Judge to be the original document containing or recording that evidence andifitis
authenticated by the official seal of a Minister. Similarly s. 14 (2) (b)which relates to exhibits, stipulates that atrue
copy of a document purporting to have been received in evidence shall be deemed to be duly authenticated ifitpurportsto
be certified by a Judge as a true copy of the document whichhasbeensoreceivedinevidencebyhimandifitis
authenticated by the official seal of a Minister. In myviewtherehasbeenfullcompliancebyboththeStipendiary
Magistrate and the Attorney-General with the two-fold requirements of each of the above two stipulations. The factthatthe
certificate of the Stipendiary Magistrate and the authentication of theAttorney-Generalrelatetotheentiretyofthe
depositions and the exhibits does not in my view detract from the validity of thecertificateortheauthentication.The
certificate of the Stipendiary Magistrate and the authentication of theAttorney-Generaloftheentiresetsufficiently
vouch for the genuineness of each of the documents comprising the bundle. There is nomandatoryrequirement,asurgedon
behalf of the appellent, that each deposition and each exhibit (or a true copy thereof) should ex facie beindividuallyand
separately certified by the Judge and seated by the official seal of the Attorney-General. To uphold thecontentionofthe
appellant would do violence to the ordinary and natural meaning of the clear andunequivocalwordsofthesubsection.A
plain reading of the subsection shows that there is nothing therein which bars one compositeandall-embracingcertificate
of the Judge given at the end of the proceeding before him oranauthenticationinasimilarwaybeinggivenbythe
Minister. "it is a strong thing to read into an Act of Parliament words which are not there, and, intheabsenceofclear
necessity, it is a wrong thing to do"" -per Lord Mersey in Thompson v. Gould (3). "Where the literalreadingofastatute
... produces an intelligible result....there is no ground for readinginwordsaccordingtowhatmaybethesupposed
intention of Parliament"- per Lord Parker, C.J. in Rex v: Oaken (4). Where the language of an Act is clear and explicit,the
courts must give effect to it whatever may be the consequences for in that case the words of the Statute speak theintention
of the legislature-vide Craies on Statute Law, 11th Edition, p.64. Under the circumstances I rejectthenarrowandstrict
interpretation that was sought to be placed on s.-14(2) by learned counsel for the appellant andupholdtheconclusionof
the Court of Appeal that there has been due authentication of the documents as required by that subsection.

It was also submitted on behalf of the appellant that the Court of Appeal erred in exercising its revisionary powersinthe
special facts and circumstances of this case. It was specifically stressed that the appellant had alreadybeenputtothe
expense and harassment of contesting three extradition proceedings, namely, the first application inwhichtheHighCourt
committed him to custody in respect of 12 out ofthepresent19charges,thehabeascorpusapplicationmadebyhim
consequent thereon to the Court of Appeal which made order discharging him on the groundofinsufficiencyofevidenceto
warrant his trial on those charges and the proceedings inthiscase.Hiscounselurgedthatitwouldbeunjustand
oppressive to put the appellant in jeopardy of another proceeding for his extradition. Our extradition law providesforthe
extradition of fugitivestoandfromdesignatedCommonwealthcountriesandforeignStates(calledtreatyStates).
Proceedings in extradition are founded on internationalobligationsarisingoutofmutualagreementbetweendifferent
countries. These obligations involve a very high sense of responsibility andcommitmentonthepartofsuchcountries.
Extradition law is designed to prevent a fugitive who has committed a crime in one country from seeking asylum in anotherto
which he has fled to avoid trial and punishment. It rests upon the plainest principles of justice. It is a lawwhichisof
vital importance to the public administration of criminal justice as well as to thesecurityofdifferentcountries.The
instant proceedings commenced in consequence of a second request made of the SriLankanGovernmentbytheGovernmentof
Australia within whose territory the appellant is accused of having committed grave crimes involving embezzlementandfalse
pretence. His discharge stemmed purely and solely out of amisconstructionofthelawbytheJudgeofthecourtof
committal. It is indeed in the rarest instance that a fugitive from justice can be heard tocomplainofunjustoppression
and harassment from proceedings lawfully commenced, though for a second time,ofthepurposeofdeterminingwhetherhe
should be extradited or not to his country which he has fled and which is so anxious to secure his return in ordertobring
him to justice for the offences he is accused of havingcommittedtherein.Consideringthetotalityofalltheabove
circumstances including those urged on behalf of the appellant I am of the view that the interests of justice called forthe
intervention of the Court of Appeal by way of revision.

Learned counsel for the appellant also submitted that the requisition for the appellant's extradition wasnotmadetothe
appropriate Minister in charge of the subject of extradition but to the Minister of Foreign Affairs and that therequisition
was therefore bad in law. I cannot agree with this submission either.AspointedoutbythelearnedDeputySolicitor-
General, the Minister of Foreign Affairs, according to international practice, is the intermediary betweenonecountryand
another and communications between countries are chanelled through him. Moreover it is not therequisitionoftheForeign
Minister but the authority to proceed issued by the appropriateMinisterofthiscountrywhichempowerstheCourtof
committal to commence proceedings for the committal of the fugitive.
For the above reasons the order of the Court of Appeal is affirmed and the appeal is dismissed. I also direct the HighCourt
to which this case must now be remitted to hear and dispose of the matter as early as possible.
SHARVANANDA, C. J. - I agree.

TAMBIAH, J. - I agree.
Appeal dismissed.


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