Paul Douglas Martin v Government of the United States of America

• Jurisdiction: Bermuda
• Judge: S. Subair Williams J
• Judgment Date: 27 February 2020
• Neutral Citation: [2020] SC Bda 13 App
• Docket Number: APPELLATE JURISDICTION 2019: 27,APPELLATE JURISDICTION
• Court: Supreme Court (Bermuda)
• Date: 27 February 2020

[2020] SC (Bda) 13 App

In The Supreme Court of Bermuda

APPELLATE JURISDICTION

2019: 27

Paul Douglas Martin

Appellant

and

Government of the United States of America

Respondent

Appellant Ms. Susan Mulligan, Christopher's

Respondent Mr. Alan Richardson, for the Director of Public Prosecutions

Appeal against Order of Extradition in the Magistrates' Court — The Extradition Act 1877 and the Extradition Act 2003 (Overseas Territories) Order 2016 — Relevance and applicability of culpable delay under s.82 Passage of Time provision — (whether extradition would be unjust or oppressive) — Non-Compliance with Court Directions

JUDGMENT delivered by S. Subair Williams J

S. Subair Williams J

Introduction and Procedural Background

1 The Appellant is a Bermudian national having been born in Bermuda on 10 July 1955. On 7 December 2005 he was residing and employed in the United States of America (“the United States” / “the US”) where and at which time he caused a serious-injury road traffic collision. The victim, Mr. Christian Dobson, was 18 years of age at the time of the accident.

2 Moments prior to the accident, Mr. Dobson was seated in a stationed and disabled motorcar parked on Sprain Brook Parkway in the State of the New York. There he awaited assistance with his vehicle warning flashers alighted when the Appellant struck the rear of his car with such force that the Appellant's car ended up at an approximate 100 foot distance from the victim's car. Mr. Dobson sustained severe brain damage and was temporarily rendered comatose. He was fitted with a tracheotomy and suffered permanent damage to his vocal cords resulting in slurred speech. He is also said to have permanent limp. The Appellant, on the other hand, did not sustain any known or notable physical injury.

3 On 22 September 2006 the Appellant was indicted and convicted upon his guilty plea to the offence of vehicular assault in the second degree, contrary to Penal Law S120.03 (1).

4 The Appellant having absconded to Bermuda and failed to reappear in the Westchester County Court for his subsequent sentence hearing, was made the subject of a bench arrest warrant issued on 9 November 2006. On 15 December 2006 he was sentenced in absentia to a custodial term of 1–3 years in a state prison.

5 On 25 May 2018 the US Government issued a request for extradition from Bermuda (“the Request”) under the authority of the Extradition Act 2003 (Overseas Territories) Order 2016 (“the 2016 Order”).

6 On 7 June 2018 the Senior Magistrate issued a provisional warrant pursuant to section 73 of the United Kingdom Extradition Act 2003 a modified under the 2016 Order (“the 2003 Act”) and some two weeks thereafter on 22 June His Excellency the Governor of Bermuda, Mr. John J. Rankin CMG (“the Governor”) certified the Request to the Magistrates' Court.

7 On 20 June 2018 the Appellant first appeared in the Magistrates' Court opposing his extradition. In a thoroughly outlined chronology, Magistrate Craig Attridge provides a helpful narrative in his 15 August 2019 written judgment of the reasons for the one year delay leading up to the final hearing before him on 3 May 2019.

8 Magistrate Attridge in his judgment upheld the Request for extradition and ordered that the matter to be sent to the Governor pursuant to section 87(3) of the 2003 Act and remanded the Appellant into custody until such time.

9 By Notice of Appeal dated and filed in this Court on 4 September 2019, the Appellant pleaded seven substantive grounds of complaint with which I am presently concerned.

10 By letter to the Appellant, dated 1 October 2019, the Governor confirmed his decision to order the extradition of the Appellant to the US.

11 On 24 October 2019 Crown Counsel, Mr. Loxely Ricketts, and Ms. Susan Mulligan on behalf of the Appellant appeared before me for case management directions. Counsel urged for a near hearing date prior to the start of the Christmas holiday. Accordingly, I directed for the Appellant to file a written skeleton argument within seven (7) days i.e. no later than Friday 1 November and for the Respondent to file a written reply skeleton argument within seven (7) days thereafter. The hearing of this appeal was then fixed to be heard before me on 8 November 2019.

12 However, on 8 November 2019, due to an administrative oversight on the part of the Supreme Court Registry, the prison authorities were not made aware of their obligation to produce the Appellant from Westgate Correctional Facility under the authority of a production order. Additionally, Ms. Mulligan was non-compliant in filing her skeleton argument by 1 November.

13 At the 8 November hearing I addressed Ms. Mulligan on the late filing of her skeleton arguments and she explained that due to her Court of Appeal commitments she was unable to meet the ordered timeframe, despite her best efforts. When pressed further about the details of her Court of Appeal commitments, Ms. Mulligan stated that she had conduct of two matters one of which had adjourned and the other which was set to proceed for the following week. (The appeals to which she was referring were Alex Wolffe Criminal Appeal No. 3 of 2019 and William Franklyn Smith No. 5 of 2019.) These two appeals were the subject of the Court of Appeal's Ruling in Dill; Wolffe; Franklyn Smith; Tucker v The Queen [2019] CA (Bda) 14 Crim. (Passages from this Ruling on Counsel's non-compliance with Court directions are cited further below.)

14 Consequently, it was resolved that the matter would be adjourned. However, prior to adjourning Ms. Mulligan produced some new case authorities, explaining that she had only recently discovered them. Crown Counsel, Mr. Loxely Ricketts, informed the Court that he had not previously been made aware or served with these previous cases which imported new arguments as to the applicability of the ECHR. Accordingly, I urged Ms. Mulligan to ensure that the Crown was promptly served with all of the case law and materials which she proposed to rely on prior to the return hearing date.

15 I further directed the Appellant to file hardcopies of the legislation she proposed to rely on and specified that such materials should contain the relevant exerts from the 2003 Act, the 2016 Order, the Bermuda Constitution, Human Rights Act 1981 and the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 (“the ECHR”). The return date was the fixed for 10 January 2020.

16 Astonishingly, on the 10 January 2020 return date the Court was informed that Ms. Mulligan failed to comply with my 8 November 2019 directions. Ms. Mulligan never filed the ordered legislation bundle and she failed to ensure that the Crown was served with a copy of her written submissions and authorities. I am inevitably reminded of the remarks of the learned President of the Court of Appeal, Sir Christopher Clarke, in Dill; Wolffe; Franklyn Smith; Tucker v The Queen where Ms. Mulligan was the offending Counsel for two of the four appeals made subject of the Court's Ruling. At paragraph 3 of the Ruling Clarke P states:

“ We would not normally publish a ruling of this nature setting out the sequence of events in respect of each of the four appeals where an application to adjourn was made. We do so in order to draw attention to the lamentable failures which compelled us to take the course that we did; to explain to a wider audience why we have been unable to sit for three days of the current session; and to indicate that this state of affairs must not be allowed to be repeated. We set out at the end of this ruling at paragraphs 45–58 some of the lessons which we think are to be learned for the future.”

17 At paragraphs 47–51 Clarke P not only identifies some of the various delinquencies of Counsel which plague the general efficiency of the upper and lower Courts but goes on to explain the conduct expected. I wish to make it widely known that the points stated in the below passages equally apply to appeals from the Magistrates' Court to the Supreme Court:

“ The Future

• 47. The history of the events in the four cases display some disturbing features. These include (a) either an apparent preparedness simply to ignore the mandatory intent of the Court's orders, or a failure so to plan matters as to be able to comply with them, or both; (b) a failure of communication with either the Court or the Crown as to any difficulties in producing submissions until a very late stage; (c) a failure timeously to address the question of what transcripts other than those specified by Order 3 Rule 10 may be needed for the appeal so as to ensure that they are transcribed in time; and (d) a failure of adequate communication between counsel when more than one counsel had been involved.

• 48. For the future a number of things are required.

• 49. First, Counsel must appreciate the obvious, namely that the Court's orders are there to be obeyed. If difficulties are foreseen, they should be raised with the Court before the order is made; and, if they arise later, the Court and the Crown should be appropriately informed.

• 50. We are conscious of the burden that rests on Counsel in the preparation of submissions. But it is not an acceptable excuse for noncompliance for the Court to be told that Counsel has a myriad of things to do and has been working day and night (unsuccessfully) to comply with the order. If the work cannot be done in accordance with the order of the court it should not be taken on.

• 51. Second, it is important for appeals to be planned for. When a notice of appeal is filed counsel will need to consider what transcripts other than those automatically provided pursuant to Order 3 Rule 10 are likely to be needed and make a timeous application for them. Asking for them a fortnight before the hearing is not acceptable.He or she will also need to arrange space in his or her timetable to accommodate the drafting of...