It’s a hopeless case

SENIOR COUNSEL Douglas Mendes said yesterday that the application for habeas corpus brought by wanted fugitive Lance Small is “hopeless” and is bound to fail. He said the case was being pursued for the sole purpose of delaying the extradition proceedings. Mendes, who is representing the Commissioner of Prisons, said, “This is wasting time. Let us get on with the extradition proceedings. This is an abuse of the process of the court,” he declared. But Pamela Elder SC, who represents Small, dismissed Mendes’ submission that this was an abuse of the process of the court. Elder said Small had been unlawfully detained according to the ruling of a High Court judge. “It would be an abuse for this applicant to be turned away. He already has one foot in the door,” Elder added.

Justice Prakash Moosai, presiding in the Port-of-Spain High Court, is hearing an application for habeas corpus brought by Small, 69, also called Olive Enyahooma El and “Fires.” Small is wanted in Fort Lauderdale, Florida, on charges of conspiracy to possess 60 AK-47 weapons and ten Mac-10 machine guns with silencers between 2000 and 2001. Before the hearing of the application, Mendes took a preliminary objection. He contended that the application for habeas corpus was an abuse of process and asked that the case be stayed so that the extradition proceedings be continued before Senior Magistrate Joanne Connor. Mendes, who is leading Dana Seetahal, David West, and Randy Primus, said when Magistrate Connor embarked on the extradition case, there was no objection from Elder.

“Up until the close of the case on April 14, attorneys for the applicant did not object on the ground that the magistrate had no jurisdiction to hear the matter. The applicant has not availed himself the opportunity to apply to the High Court for bail. “His attorneys allowed the extradition proceedings to go on, evidence was led, cross-examination was carried out without any objections whatsoever,” he added. Mendes said it was not until April 16 that Small made the application for a writ of habeas corpus. Mendes said the judge has to consider whether it is appropriate for the extradition case to be stopped pending the hearing of the habeas corpus application. “It is not right to interrupt the proceedings in the Magistrates’ Court with an application for habeas corpus. It will paralyse the administration of justice. This is what has happened in this case — it has paralysed the proceedings in the Magistrates’ Court.”

Mendes said according to the general rule, the evidence should be led in the extradition case before any prerogative of remedy is entertained. He told the judge that the habeas corpus case can only proceed if it can be shown that the extradition proceedings will fail. In her response, Elder said this “hopeless application” was made after a judge of the High Court ordered that a writ of habeas corpus be issued. “This matter cannot be described as frivolous, hopeless, and vexatious. On the issue of delay, we are forever conscious that our client is incarcerated and no step will be taken to cause unnecessary delay.”

Elder said it was an abuse of process to manipulate the process of the court. “It is also unlawful to institute fresh proceedings and at the same time unabashedly stand in this court and say that the former proceedings have not been completed because there is an appeal.” Elder pointed out that the former extradition proceedings, which were struck down by Justice Sebastien Ventour in a judicial review case on April 6, is now the subject of an appeal by the US Government. Elder, who leads Ken Wright, Owen Hinds Jr, and Richard Mason, said firearm offences were not covered by the Extradition Act 1985. The amendment to the Act, according to Elder, still does not apply to her client.

“My client is saying that since the amendment does not apply to him, the offences which he allegedly committed, are not extraditable. The applicant is saying that his alleged conduct would not be caught within the present law. What he is saying is that the present law does not have retrospective effect.” Elder contended that Small has been unlawfully detained and asked that Mendes’ preliminary objection be dismissed. Mendes said prior to 2004, there was an obstacle in extraditing Small to the United States. “That obstacle has been removed, and he can now be extradited. Parliament has expressed its intention. That is natural and ordinary language.” Justice Moosai will give his decision tomorrow.