(1984)1984 October 27 [A. Loizou, J.] IN T H E MATTER OF ABDULLAH RASHID, and IN THE MATTER OF AN APPLICATION JrOR THE ISSUE OF A WRIT OF HABEAS CORPUS, (Civil Application No. 39/84). Fugitive offenders—Extradition—Extradition proceedings—Committal to custody pending extradition—Evidence—Standard of proof required—Statements of .accomplice—Admissibility— Corroboration—No .corroboration required because committing Judge must not .make an evaluation of the evidence—Actus reus— 5 Established by evidence of accomplices—Extradition of Fugitive offenders Law, 1970 {Law 97/1970)—Section 94 of the Criminal Procedure Law, Cap. 155. Habeas Corpus—Extradition proceedings. The applicant, a Syrian .national, was committed to custody 10 pending his extradition to the .Federal Republic of Germany in order to face charges connected with the unlawful import and-distribution of cannabis and cannabis resin in that State. Hence an application for an Order of Habeas Corpus under the Extradition of Fugitive Offenders Law, 1970 (Law No. 97 15 of 1970). The evidence before the trial Court conusted of the uncorroborated statements of the three accomplices of the applicant, namely, Freitag, Reuschler and Langlotz. The statement'ofFreitag wasgiven on oath before a local judge in Germany, whereas the statements of Reuschler and Langlotz, 20 though not originally given during judicial proceedings, were subsequently adop'ed by them and incorporated during a judicial interrogation. Before the trial Judge there was a statement of the relevant provisions of Narcotic Drugs Act of the Federal Republic of Germany on which the charges 25 were based; and these provisions.refer to cannabis and cannabis 536 1 C.L.R. In re Rashid resin which in the particulars of the offence were described as hashish, as they are commonly known. Counsel for the applicant mainly contended: 5
(1)That the Court failed to apply the facts before it properly to the proper test.
(2)That there was no admissible evidence before the Court, it all being entirely that of his accomplices, and 10 15 20 25 30 35
(3)That theactus reusoftheoffence hasnot been established in the absence of expert evidence as to classification of the alleged narcotic substance. Held, that the standard of proof required is of evidence that would justify the committal of the respondent to trial if the alleged offences were committed in Cyprus; that considering thecircumstances underwhichthestatementsof theaccomplices weregivenandlateraffirmed thetrialJudgewasrightinregarding this evidence as admissible; that no corroboration was required at the stage of the proceedings before the trial Court; that corroboration goes only to the weight of a statement and not to its admissibility and a committing Judge must not make an evaluation of the evidence before him; that, in any case, eveii if corroboration was needed, and such is required by law only for specific offences, provided the Judge warns himself (as he hasalsodoneinthepresentcase),hecansafely actontheaccomplices evidence and convict; that there was enough evidence, that of the accomplices which was sufficient to establish the actusreus;andthat, therefore,theapplication mustbedismissed. Held, further, that the aggregate effect of the.statutory enactments on which the charges were based and the offences inrespect of which the accomplices were charged, the confessions of the accomplices to having committed the offences described therein, and the incrimination made by them, ofthe respondent, complete the picture and justified the trial Judge in concluding that the evidence was sufficient to warrant the trial of the respondent for that offence, had it beencommitted within thejurisdiction of the Court, and hence the making of the order for his extradition. Application dismissed. Cases referred to: Schtraks v. Government ofIsrael[1962]3All E.R. 529at p.533; 537 In re Kashid (19K4) hi re Xtuikc
(1982)! C.L.R, 922 at p. 931; In η· Wehhe
(1983)I C.L.R. 978; hi re Hayek
(1983)I C.L.R. 266: Annan v. Government of Ghana [1966] 3 All E.R. 177: Dowse v. Government of Swedt-n [1983] 2 All E.R. 123 at p. I2«; 5 ΚτΛ/.',,,ι/ν v. Police (!969) 2 C.L.R. 137: Mantis v. Police
(1981)2 C.L.R. 166: R. v. Secretary oj Stale jar India [1941] 2 All E.R.
- Application. Application for an order of habeas corpus by Abdullah 10 Rashid following his committal to custody awaiting extradition by a Judge of the District Court of Larnaca. Ciir. Pourgourides. for the applicant. E. Loizidou (Mrs.), for the respondent. Cur. adv. vail. 15 A. Loi/υυ J. read the following judgment. The applicant. by the present application for an order of Habeas Corpus. filed under the Extradition of Fugitive Offenders Law, 1970 (Law No. 97 of 1970), hereinafter to be referred to as the Law. challenges a commital order made by the District Court of 20 Larnaca for the purpose of extraditing him to the Federal Republic of Germany to face charges connected with the un lawful import and distribution of cannabis and cannabis resin in that State. The applicant who is a Syrian national was arrested on the 25 23rd March, 1984, by virtue of a warrant of arrest issued by the President of the District Court of Larnaca, under section 8(l)(b) of Law 97 of
- The relevant written authority under section 7
(2)of the Law for the commencement of the extra dition proceedings was given by the Minister of Justice on the 30 17th April, 1984, as a result of a request to that effect by the Government of the Fedcial Republic of Germany. As a result of the evidence heard, the District Court Larnaca ordered on the 19th June, 1984, that the applicant be committed to custody pending his extradition to the aforesaid country. Against this order the applicant filed the present application for an order of Habeas Corpus under section 10 of the Law. 538 35 I C.L.R. In re Rashid A. Loi70u.1. The grounds upon which this application rests are that:
(1)The trial Court failed to apply the correct legal principles during the extradition proceedings that is it erred in Law, and 5
(2)The trial Court failed to evaluate properly the evidence adduced and in particular failed to examine whether there was before it legally admissible evidence establishing the actus reus of the alleged offence and/or it admitted inadmissible evidence. 10 Counsel for the applicant contended that the trial Judge erred in that he considered wrongly that the evidence before him was sufficient to warrant the applicant's committal for trial, the standard of which evidence ought to have been such as, on the authority of Schtraks v. Government of Israel [1962] 3 All 15 E.R. 529, at 533, if uncontradicted would have led to a verdict of guilty. The evidence before the District Court of Larnaca, he contended, was not legally admissible evidence, consisting only of the uncorroborated statements of the accomplices of the 20 applicant. In their statements they allege that he sold them "hashish" in Syria. They do not specify whether it was cannabis or cannabis resin and before the Court no expert evidence was produced by the requesting State specifying that the substance seized by the Police in Germany and which the applicant 25 was allegedly dealing with, fell within a specified, category of a prohibited drug. And since specific drugs relate to specific offences, unless the drug in question falls within a specified category there can be no offence since the actus reus of such offence cannot be established. Thus the Court misdirected 30 itself, applied the wrong test and exercised its discretion wrongly. So in effect the applicant is dealing with three points:
(1)That the Court failed to apply the facts before it properly to the proper test. 35
(2)That there is no admissible evidence before the Court it all being entirely that of his accomplices, and
(3)That the actus reus of the offence has not been establishec in the absence of expert evidence as to classification o: the alleged narcotic substance. 539 A. Loizou J. ID re Rashid
(1984)As regards the first point concerning the standard of proof required for extradition proceedings, it is governed by section 9
(5)(a) of the Law which provides: "
(5)Εφ* όσον η εξουσιοδότηση δια την έναρξιν της διαδι κασίας της εκδόσεως ήθελε παρασχεθή το δε επιληφθέν 5 της εκδόσεως Δικαστήριον ήθελεν ικανοποιηθή, δυνάμει των προσαχθέντωνπρος υττοστήριξιν της αιτήσεως εκδόσεως αποδεικτικών στοιχείων, ή των κατ* αυτής προσαχθέντων τοιούτων, ότι το αδίκημα εις ό αφορά η τοιαύτη εξουσιοδότησις είναι αδίκημαδι* ο δύναται κατά νόμον να χωρήση 10 έκδοσις, προς τούτοις δε ικανοποιηθή— (α) εν μεν τη περιπτώσει προσώπου διωκομένου δια την διάπραξιν του ενλόγω αδικήματος, ότι τα προσαχθέντα ενώπιον αυτού αποδεικτικά στοιχεία είναι επαρκή ώστε να δικαιολογώσι την παραπομπήν αυτού εις 15 δίκην δια το εν λόγω αδίκημα, εφ*όσον τούτοδιεπράττετο εντός της δικαιοδοσίας του Δικαστηρίου. το Δικαστήριον θέλει διατάξει την προφυλάκισιν αυτού μέχρις ου χωρήση η έκδοσις, εκτός εάν η έκδοσις απαγορεύ εται δυνάμει ετέραςτινός προνοίαςτου παρόντοςΝόμου.„ ". 20 In English: "
(5)Where an authority to proceed has been issued in respect of the person arrested and the Court of committal is satisfied, after hearing any evidence tendered in support of the request for the extradition of that person or on 25 behalf of that person, that the offence to which the author ity relates is an extradition offence and is further satisfied— (a) where that person is accused of the offence, that the evidence would be sufficient to warrant his trial for that offence if it had been committed within the juris- 30 diction of the Court; the Court shall, unless his committal is prohibited by any other provision of this Law, commit him to custody to await his extradition thereunder; " The trial Judge after going through the various authorities, 540 35 I C.L.R. In re Rashid A. Loizou J. Cypriot and English, concluded that the standard of proot required is of evidence that "would justify the committal of the respondent to trial if the alleged offences were committed in Cypius". 6 In Re Manfred Mutke
(1982)1C.L.R. 922 at p.-931, Triantafyllides, P., considers that evidence is required that is "sufficient to warrant the respondent's trial for the offences concerned". Also in the case of "In Re Wehbe
(1983)1C.L.R. 978 he refer; tto "legally admissible evidence justifying the making of a com· 10 mittal order for extradition purposes". Stylianidcs, J. in Re Hayek
(1983)1 C.L.R. 266 refers at p. 270 to evidence "sufficient under the law to commit the applicant to trial for that offence, if it had been committed within the jurisdiction ,ofthe Court". He then proceeds further to deaLwithhow much 15 .evidence is required to commit and, in the light .of section 94 of the .Criminal Procedure ,Law, Cap. 155, which provides«that: 20 "Where there is a conflict of evidence, the Judge shall consider the evidence to be sufficient to commit the.accused for trial if the evidence against him is such Las, if uncontradicted, .would raise a probable-presumption of his guilt". concludes at p. 294 that in order to justify the committal this evidence must be such that "if uncontradicted would raise a probable presumption of his guilt". Useful guidance of how strict the-test is under s. 94 can .be 25 found in A. N. Loizou's and G. M. Pikis' "Criminal Procedure in Cyprus" at pp. 166-7; 30 35 "The Judge is enjoined by this provision to.consider ,onl> those pieces of evidence which point towards the guili ,of the accused .and disregard any other evidence contradieting it. The presumption envisaged ;by section 9' is a factual one to be derived from incriminating evidence. assuming it to,be,correct,anduncontradicted, strong enough to raise a probability tof guilt. Probability .is a matter of fact and degree; an interplay.of logic and common sense should guide the Court in its .task. .'Bearing ;in mind that .the iprobability ..envisaged by the Jlaw must be ,a real and not a fanciful one,the guilt of the accused must beiprobablc as a matter of logical inference; the -probability must -be realistic in the light of ordinary experience of human affairs. 541 Λ. Loizou J. In re Rashid
(1984)The duty to be discharged by the Judge is an objective one and he must not allow his impression of the witnesses to affect his judgment. It is interesting to compare the provisions of section 94 and those of section 74
(1)(c) providing for the evidential 5 burden that must be discharged by the prosecution before the accused is called upon to make his defence at the trial. In the latter case, before the accused is called upon, there must be prima facie evidence tending to establish the guilt of the accused. In contradistinction to section 94, the 10 Court, in deciding whether there is a prima facie case at the trial, can only take into consideration evidence that is at least provisionally credited by the Court as reliable, whereas a committing Judge, acting under section 94, must in no way make an evaluation of the evidence before 15 him. The most fundamental distinction between the evidence that must subsist to justify committal under section 94 and that required to establish a prima facie case under section 74,is that in theformer case we are merely concerned 20 with probabilities of guilt, whereas in the latter, with presumptions of guilt arising from an evaluation of the evidence for the prosecution, sufficient to call for an answer from the accused". Useful guidance can also be derived from the English author- 25 ities, though 1 believe they must be read with some caution as regards the interpretation of the test of "probable presum ption of guilt" and its strictness vis a vis our Law. The case of Schtraks (supra) as well as all the English pre-1967 author ities have been decided in the light of the provisions of the 30 Fugitive Offenders Act, 1881, which, in section 5, in order to commit the fugitive to prison for extradition purposes, provides for evidence which "raises a strong or probable presumption that the fugitive committed the offence mentioned in the wajranf. The current law in England, the Fugitive Offenders Act 1967, section 7 provides (as well as the old Extradition Act 1870, section 10) for evidence "sufficient to warrant his trial". As a result, in England the two tests appear to be different. 542 35 i c.L.u. In re Rashid A. Loizou J . Lord Reid in the case of Armah v. Governmentof Ghana[1966] 3 All E.R. 177 deals extensively with the distinction between the strictei testwhich requires "a strong or probable presumption of guilt" as required by the 1881 Act and the lesser test of 5 evidence as would "justify the committal for trial" which was required by the old 1870 Act, and decides that the two tests are definitely not the same. Having said this about the standard of evidence required, 1 shall proceed to consider the evidence available before the 10 trial Court at Larnaca. This consists of the uncorroborated statements of the three accomplices of the applicant, namely, Freitag, Reuschler and Langlotz. The statement of Freitas was given on oath before a local judge in Germany, whereas the statements of Reuschler and Langlotz, though not originally 15 given during judicial proceedings were subsequently adopted by them and incorporated during a judicial interrogation. Considering the circumstances under which the statements were given and later affirmed and having in mind the decision of Dowse v. Government of Sweden [1983] 2 All E.R, 123, at 20 p. 128, I would consider that the trial Judge was right in regarding this evidence as admissible. As regards the question of corroboration none was required at the stage of the proceedings before the District Court. Corroboration goes only to the weight of a statement and not to 25 its admissibility and as already stated above, a committing Judge must not make an evaluation of the evidence before him. But in any case, even if corroboration was needed, and such is required by law only for specific offences, provided the Judge warns himself (as he has also done in the present case), he can 30 safely act on the accomplices evidence and convict. See Perl· stianis v. Police
(1969)2 C.L.R. 137; Mantis v. Police
(1981)2 C.L.R. 166; R, v. Secretary of State for India [1941] 2 All E.R. 546. Finally as regards the contention of the applicant that since 35 there is no expert evidence as to the alleged narcotic substance and consequently no actus reus, I must say that there is enough evidence, that of the accomplices which is sufficient to establish the actus reus. In the warrant of arrest, exhibit 3, which constitutes part 543 A. Loizou J. Ια re Rashid
(1984)of the material placed before the trial Judge the following is stated: "He is charged with having, since the autumn of 1979 until today, in Bonn and at other places, continuously, 5 for gain and as member of a gang that has been formed for the purpose of continuously committing such criminal offences, dealt in narcotic drugs of a not unconsiderable quantity 10 without having been in possession of the licence of the BUNDESGESUNDHEITSAMT (Federal Board of Public Health), and, in coincidence with that, imported narcotic drugs of a not unconsiderable quantity into the Federal Republic of Germany, 15 which he did by having, as member of a group of drug traffickers, contacted persons in the Federal Republic of Germany and, together with them, imported hashish in quantities from 20 to 380 kilos each time into the Federal Republic of Germany by means of passenger cars or lorries 20 with built-in concealments coming from Syria via Switzer land, Austria, or other countries to the Federal Republic where those quantities of hashish were sold to customers who are partly known, partly unknown. The person charged received certain amounts of the sale proceeds 25 each time on which he depended for his living. Such act is threatened with punishment according to §§ 1 Paragraph I, 3, 29, Paragraph 1, Number 1, Para graphs, Number 1 and Number4,30, Paragraph 1, Number 1 and Number 4 of the BETAUBUNGSMITTELGESETZ 30 (Narcotic Drugs Act). Heis strongly suspected ofhaving committedsuch offence on account of the statements of EWALD REUSCHLER and RUDIGER FREITAGwho arc prosecuted sepaiately. In his case, there exists the cause of arrest specified 35 in section 112, Paragraph 2,No.2 of the STRAFPROZESSORDNUNG (German Code of Criminal Procedure)— 544 1 C.L.R. Inr*Rashid A.Loin» J. i.e. the risk of escape—because the person charged is staying at an unknown address". There follows a statement of the relevant provisions of the Narcotic Drugs Act of the Federal Republic of Germany on 5 which the charges are based. It should be pointed out that "narcotic drugs" within the meaning of the said Act are such substances and preparations as are specified in Annexes I—III and in the list of narcotic drugs included in the Appendix, the one given for the purposes of the present case in the said 10 exhibit is "cannabis" and "cannabis resin". In the statement of offence contained in exhibit 5, all accomplices were charged as follows: "that in Bonn, Mannheim and other locations at the time between autumn 1979 until September 1983 continuously 15 andjointly together withother wanted personsand without the permit from the Federal Ministry of Health a) as members of an organization which has been created for the continuous commitment of such acts, have been professionally dealing with drugs, b) partly for singly offences 20 during which at each time, they have been carrying drugs in large quantities particularly at the aforementioned time as members of a group of persons which was put together with the purpose to continuously violate the Drugs Law, haveimported a total of 1600kgs of hashishinthe Federal 25 Republic of Germany, whereby accused 1-6 above, the partial assistance of accused 7-8 have imported at least 1085kgs of hashish infivesequential acts from Syria into Germanyandhaveattempted todo sointwofurther cases. Furthermore the accused Freitagand Reuschler havesmug30 gled hashish from Austria, Spain and Switzerland into the Federal Republic of Germany in 16cases each—from which 12 together, that each case a quantity of 18-40kgs, a total of 500 kgs and that they have distributed jointly the said hashish. The hashish was sold partly to known 35 and partly to unknown purchasers in Germany. The accused Freitag has inter alia offered to the prosecution witness Katzamann (policeman) on 12.9.1983 in Bonn 50 kgs of hashish at the price of DM275,000". In .page 4, of the statement of one of the accomplices before 40 the Judge on the 28th September, 1983, it is stated: 545 Λ. Loizou J. In re Rashid
(1984)"On Monday 3.10.1983 in theafternoon Ihad a detailed discussion. I was cautioned and have understood this. 1 was told (hat I am suspected of a contravention of the provisions of thedrugs law. It was madeclear to methat it is known that I have been involved in the smuggling 5 and trading with large quantities of hashish. Ihave been also told that I am a member of an organization which has been specially formed for the purpose of dealing with hashish in large quantities. I have been informed about all facts and dates of the investigation of the police. I 10 have understood clearly all the above accusations. It is now clear to me that in my present situation the best thing for me to do is to make a full statement. I am ready and willing to help the police with my statement so that they will eventually be able to arrest accomplices who 15 are still free and also to find hashish which may be still available. I hope that my behaviour from now on will be of use to me during eventual later Court proceedings. Finally, I declare that I make this statement at my own free will and without any coercion. I was allowed during 20 my interrogation to smoke cigarettes. Finally, I would like to say that during yesterday the 3.10.1983 I had the chance of a short conversation with the expert Mrs. Dassmann-Allef. She did not make any promises to me. From the above reasons I have realised 25 that it can only be to my benefit if I make a full state ment. I am at the disposal of the authorities for any additional interrogation, should this be necessary". It is clear therefoie, that theconfessions relate to thecharges preferred which were explained to the witnesses before making 30 their statements and who had in fact the services of advocates to advice them. These charges, the particulars of which were earlier set outinfull inthisjudgment,were inrespect of offences and misdemeanours punishable under " §§ 1, 3 29 Subsect. 1 Nr. 1, Subsect. 3 Nr. 1+4 30 Subsect. 1Nr 1+4 33 BtmG 35 (=Drugs Law) §§ 25 Subs 2 52, 73 Criminal Law". These articles of the German Drugs' Law and Criminal Law refer to cannabis and cannabis resin which obviously in the parti culars of offence, was described ashashish,astheyare commonly 546 1 C.L.R. In re Rashid A. Loizou J. known. The aggregate effect therefore of the statutory enactments on which the charges were based and the offences in respect of which the accomplices were charged, their confessions to having committed the offences described therein, and the 5 incrimination made by them of the respondent, complete the picture and justified the trial Judge in concluding that the evidence was sufficient to warrant the trial of the respondent for that offence, had it been committed within the jurisdiction of the Court, and hence the making of the order for his extra10 dition. In the light of all the above this application is dismissed, but in the circumstances there will be, however, no order as to costs. Application dismissed with no order as to costs. 547