Mendes: An abuse of process

SENIOR COUNSEL Douglas Mendes said yesterday that he will argue that the application for a writ of habeas corpus for a wanted fugitive is an abuse of the process of the court. Last Friday, attorneys filed an application for habeas corpus on behalf of Small, who is wanted in Fort Lauderdale, Florida, on charges of conspiracy to possess 60 AK-47 weapons and ten Mac-10 machine guns with silencers. Justice David Myers, presiding in the Port-of-Spain High Court, ordered the Commissioner of Prisons to bring Small to court today so the State can justify his continued detention.

But when the extradition hearing resumed in the Magistrates’ Court yesterday, Mendes, who represents the United States Government, said it is his intention to argue that this habeas corpus application is an abuse of the process of the court. Both sides agreed that the extradition hearing be put off pending today’s hearing in the High Court. The extradition hearing before Senior Magistrate Joanne Connor was put off to April 26. On the last occasion, Pamela Elder SC, attorney for Small, had submitted that the Magistrate could not tender documents into evidence because there was no evidence to show that the amendment to the Extradition (Commonwealth and Foreign Territories) Act was passed and gazetted.

But yesterday, Magistrate Connor said the legislation having been passed in Parliament and gazetted, the court can take judicial notice. She ruled that the documents can be tendered into evidence. Following the ruling, Elder said, “With respect to your ruling, my arguments were based on the manner of proof of the Extradition Order. I asked that this be proved before we can deal with any issue with respect to the admissibility of the documents which went in as identification. “You ruled the contents of the documents were admissible because you looked at the Order. I accept that it was gazetted which the court can now take judicial notice.”

But Elder said the issue will now evolve around the admissibility of the documents under the amendment to the Extradition Act. She said she is prepared to deal with further arguments when hearing resumes on April 26. Small, 69, also called Olive Enyahooma-El, of Gonzales, was indicted by the United States Grand Jury on May 23, 2002, on charges of conspiracy to possess firearms, contrary to the laws of the United States. The charges relate to an alleged attempt in May 2001, to import 60 AK-47 rifles and ten Mac-10 machine guns with silencers into Trinidad.

Small, a member of the Jamaat Al Muslimeen, is being represented by Pamela Elder SC, Ken Wright, Owen Hinds Jr, and Richard Mason, while Mendes, Dana Seetahal, and David West appear for the US Government. On April 6, Justice Ventour quashed the provisional warrant issued by Chief Magistrate Sherman McNicolls for Small’s arrest, on the ground that firearm offences were not included on the list of extraditable offences. Attorney General John Jeremie, in an attempt to rectify the defects of the Extradition Order 2001, rushed the amended legislation through both the Senate and the House of Representatives.

After the amendments were passed, Jeremie withdrew the previous extradition request and ordered the re-arrest of Lance Small on the same charges. Small walked out of prison on April 7, but within five seconds he was re-arrested by Sgt Williams of the local Interpol office and taken to the Port-of-Spain CID, where the new warrant was served on him. Small was taken before the Chief Magistrate the following day where Elder made an application for McNicolls to recuse himself from hearing the matter. McNicolls disagreed, but when the case was recalled on April 14, the Chief Magistrate stepped down following a similar request from Douglas Mendes SC, representing the United States government.