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[2018] ZAWCHC 88
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Tucker v S (A437/17) [2018] ZAWCHC 88; [2018] 2 All SA 566 (WCC) (7 March 2018)
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
Case
No: A437/17
In
the matter between
LEE
NIGEL
TUCKER APPELLANT
And
THE
STATE RESPONDENT
CORAM:
DOLAMO J; THULARE AJ
DATE:
07 MARCH 2018
JUDGMENT
THULARE
AJ
[1]
This is an appeal against the decision of the lower court of Cape
Town to refuse to grant applicant bail pending his appeal
against its
decision in an enquiry in terms of section 10 of the Extradition Act
67 of 1962 (the Act).
[2]
The Republic of South Africa (RSA) received a request for extradition
of applicant to the United Kingdom, to which a certificate
in terms
of section 10(2) of the Act was attached. Accompanying the request is
also an affidavit by Detective Constable Alison
Elizabeth Mildren
stationed at Avon and Somerset Police Force in the United Kingdom who
is familiar with the case of applicant.
Her affidavit shows that the
applicant was arrested, interviewed and charged on 24 November 1999
with sexual offences involving
minor boy children. Applicant was put
on trial together with two others on 19 November 2000. One of his
co-accused pleaded guilty
at the commencement of the trial. Applicant
and his co-accused were convicted of a total of nine offences against
two minor boy
children following the trial.
[3]
Applicant had been present at his trial until the final day when he
absconded. He had been unlawfully at large ever since then.
The trial
judge issued a warrant for his arrest on 2 October 2000. Applicant
was sentenced in his absence to a total of 8 years
imprisonment.
Whilst unlawfully at large, he appealed his conviction, focusing on
the inadequacy of the trial judge’s summing
up. His co-accused
also appealed. On 29 May 2002 the Court of Appeal ordered that the 18
convictions be quashed and ordered a retrial.
[4]
The prosecution preferred an indictment on 30 may 2002 in preparation
for the second trial of both appellant and his co-accused.
The
offences contained in the indictment were the same as those at the
first trial, except for one offence which was no longer
pursued.
Applicant remained at large and a warrant for his arrest was issued
on 19 July 2002. The warrant for his arrest was renewed
and re-issued
on 19 March 2003. In the meantime his co-accused stood trial alone
and was convicted in the retrial. He was sentenced
to a 6 year
custodial sentence, and subsequently died in prison.
[5]
Information emerged recently of applicant’s whereabouts and the
police and prosecutors prepared for his retrial. In the
fresh
investigations alleged further abuse and new victims have also come
forward and provided evidence to the police. Applicant
is now wanted
for the original offences, new offences alleged against the same
victims and new offences in respect of new victims
that have now come
forward. He was arrested on a warrant which led to his appearance in
the lower court of Cape Town. He was released
on bail pending the
enquiry, and following the enquiry, the magistrate ordered his
committal to prison to await the decision of
the Minister of Justice
(the Minister) in terms of section 10 (1) of the Act.
[6]
In his bail application, applicant testified that he was 53 years of
age, born on 12 December 1963 in Sponge in Wales in the
UK where he
grew up and matriculated. He does not dispute the circumstances under
which he came to RSA at the end of 2000 as set
out in the request for
his extradition. He did not plan it. It was a spur of the moment,
panic decision to abscond, after it became
clear that he was going to
be convicted of something that according to him did not happen. Apart
from occasional trips to other
countries for a few weeks at a time he
has been in RSA ever since.
[7]Since
he arrived in RSA he had an IT business, did a bit of photography and
runs a property management and letting company on
a small scale with
few clients that he knew personally. During the period in RSA he
worked as a helicopter pilot including for
the government of RSA. He
did the voyage of the old SA Agulhas to Marion Island near
Antarctica, managed by the Department of Environmental
Affairs on a
five week trip. His bail conditions pending the enquiry prohibited
him from working as a pilot.
[8]
He does not have children but is involved in a life partnership with
another gentleman. His only other family is his 82-year
old father
who is in the UK and visits him twice a year. He resided at 1A
Cheviot Place, Green Point, Cape Town which property
he purchased
around 2002. He owns the property together with his father and the
outstanding amount to the bank on the property
is about R530 000-00.
The value of the property is R5.8 million. He has a chronic illness
for the past 23 years and there had been
problems with receiving
medication whilst in prison. He saw RSA as his home and will use the
laws of this country to fight his
extradition to the highest level.
[9]
Although he would love for the allegations to be over and done with,
he is under no illusion that that can be done quickly.
He had direct
experience of the UK criminal justice system and in his view it is
grossly unfair and allowed miscarriages of justice.
He faced the
prospect of extradition back to the UK, and although he recognizes it
as a distinct possibility, he would maximize
his chances of not only
using the protections afforded by the Constitution of this country,
but would also point out the injustices
done in the UK. His view is
that the law in the UK has been undermined by many factors, resulting
in unfair trials and many people
being convicted on accusations,
which are in the UK as good as a conviction with no corroboration
necessary. He was convicted but
in his view did not have a fair
trial. He believed he will be found guilty because of the grossly
unfair system, even if he is
innocent. The presumption of innocence
is still in theory applicable in the UK, but is almost non - existent
in sexual matters.
Moreover, according to him, the criminal injuries
compensation scheme in the UK entices people to be attracted by large
sums of
money it pays out to lay false charges.
[10]
He had instructed a very experienced attorney in matters of this
nature in the UK who is reasonably optimistic, given the
circumstances and after examination of his case. However, his view is
that the attorney is a little bit naïve, because even
if he were
to walk out of a court in the UK, his name would never be cleared
once you are smeared like that in the press. Even
if you are cleared
by a court, nobody accepts that you are not guilty. The public
perception is that you got away with it. His
desire is to clear his
name in court as that would remove a huge weight off his shoulders.
It will remove a legal threat to him,
but would clear his name.
[11]
He elected to come to RSA because it affords protection against
discrimination on the grounds of sexual orientation. Although
recently the European Council ruled that European Law should apply
against discrimination on the basis of sexual orientation
and that it
should be read into their laws, it was never explicitly mentioned,
it was not the ruling then, and the UK does
not have a written
Constitution. Although the UK has a rule of law from which RSA law
descended, it is not infallible. Had it not
been for the application
of European law, he would not have had an appeal against his earlier
conviction, in which he was successful.
[12]
There is a difference in how boy and girl children who are alleged
victims of sexual abuse are treated in the UK, and the defences
available to accused persons, which includes time bars. These are
matters that are easier to raise in a Constitutional Court in
RSA,
than it is in a UK court prior to trial. In his view, he is
effectively being charged for being homosexual in the UK.
[13]
He knew towards October 2015 that his co-pilots were visiting sites
with web pages referring to charges he had faced 15 years
earlier and
that the Civil Aviation Authority, the South African Police Service
and Interpol had been asking his employers questions
about him. He
could since then not fly without the permission of his employer. It
was clear that him flying for them was an embarrassment.
He however
did not flee until his arrest in March 2016, as he decided to sit
round and wait, for RSA is his home. Fleeing to other
countries may
also have meant him not seeing his father again. He had no desire to
ever see the UK again. The British can keep
their place, and at the
earliest possibility he will renounce his citizenship.
[14]
He had used a different residential address, 25 Avenue, Alexandra
when renewing his British passport because that is where
he lived
temporarily at the time. Whilst on bail pending the enquiry, he had
an electronic tracking device on him which was monitored
by the
Department of Correctional Services (DCS). He admits that the device
was tampered with during that period, but disputed
the report of DCS
that the tampering was deliberate and not accidental.
[15] The only issue
raised by the applicant was that he was not a person liable to be
surrendered to the UK. The reasons behind
this view according to
applicant are that:
(a) He is being sought by
the UK for a retrial and he cannot be tried on new charges in terms
of section 7(2) of the UK Criminal
Appeal Act, and the charges he is
sought to be extradited are new charges. He submits that he cannot be
extradited for offences
that are not offences punishable under the
laws of the requesting party.
(b) He cannot be
extradited to face punishment which is inconsistent with the
Constitution of the Republic of South Africa, 1996
(the
Constitution). He submits that equality is a founding value of our
Constitution, and that the right to equality includes the
right not
to be discriminated against on the basis of sexual orientation. In
the UK, so the argument goes, conduct between two
males compared to
the same conduct between male and female, carries different (more
severe) penalties, comes from different statues,
are called different
names and the ages for which a person is criminally liable are
different. He alleges that there are defences
not available to him as
he is not accused of sexual intercourse with a girl under the age of
16 but over the age of 13, but with
boy children. He submits that to
extradite him to a country where the laws clearly discriminate on the
basis of sexual orientation
would be inconsistent with the
Constitution and case law.
(c) He
cannot face a fair trial in the UK due to the widespread and unfair
treatment he has received at the hands of the UK media.
He emphasised
that the UK justice system is based upon juries and accordingly,
where the pool of laypersons from which a jury will
be drawn is
exposed to persistent, one-sided and negative information about a
case, the jury cannot be expected to be impartial.
He alleges that
even the UK Court of Appeal expressed concern and made an order but
that that order had been ignored.
[16] The applicable
provisions of section 10 of the Act reads as follows:
“
10
Enquiry where offence committed in foreign state
(1)
If upon consideration of the
evidence adduced at the enquiry referred to in section 9(4)(a) and
(b)(i) the magistrate finds that
the person brought before him or her
is liable to be surrendered to the foreign State concerned and, in
the case where such person
is accused of an offence, that there is
sufficient evidence to warrant a prosecution for the offence in the
foreign State concerned,
the magistrate shall issue an order
committing such person to prison to await the Minister’s
decision with regard to his
or her surrender, at the same time
informing such person that he or she may within 15 days appeal
against such order to the Supreme
Court.”
[17] The purpose of the
enquiry is for the magistrate to determine, upon a consideration of
the evidence, whether:
(a) the person is liable
to be surrendered to the foreign State concerned; and
(b) in
the case where such person is accused of an offence, there is
sufficient evidence to warrant a prosecution for the offence
in the
foreign State [
Geuking v President of
the Republic of South Africa and Others
2003(3)
SA 34 (CC) at para 15).
[18]
The applicant conceded, at the extradition enquiry and throughout the
extradition process, that the purpose of the enquiry
before the
magistrate as set out in (b) above had been fulfilled. In this
respect he conceded that the magistrate was correct by
accepting as
conclusive proof a certificate which appeared to the magistrate to be
issued by an appropriate authority in charge
of the prosecution in
the United Kingdom (UK), in which the letter stated that it had
sufficient evidence at its disposal to warrant
appellant’s
prosecution.
[19]
In an earlier ruling in this matter, this court has already found
that bail proceedings arising out of extradition proceedings
are
criminal in nature and that the provisions of the Criminal Procedure
Act 51 of 1977 (the CPA) are applicable. It follows that
the
applicant should enjoy the equal protection afforded by the law
regulating appeals against decisions to refuse bail pending
an appeal
in criminal matters, which laws embody a strong element of individual
protection.
[20] Section 65(4) of the
CPA provides as follows on appeal to superior court with regard to
bail:
“
(4)
The court or judge hearing the appeal shall not set aside the
decision against which the appeal is brought, unless such court
or
judge is satisfied that the decision was wrong, in which event the
court or judge shall give the decision which in its or his
opinion
the lower court should have given.”
[21] In
Masoanganye
and Another v S
2012 (1) SACR 292
(SCA) at para 15 the Supreme
Court of Appeal set out the principles in an application for bail
pending appeal after conviction
in criminal matters as follows:
“
[15]
It is important to bear in mind that the decision whether or not to
grant bail is one entrusted to the trial judge because
that is the
person best equipped to deal with the issue having been steeped in
the atmosphere of the case. … But there is
a limit to what
this court may do. It has to defer to the exercise of the trial
court’s decision unless that court failed
to bring an unbiased
judgment to bear on the issue, did not act for substantial reasons,
exercised its discretion capriciously
or upon a wrong principle.”
The same principle was
set out in the following terms by the same court in
Beetge v S
(925/12)
[2013] ZASCA 1
(11 February 2013) at paragraph 4:
“
[4]
A court sitting on appeal does not readily interfere with the
decision of the trial court because the latter court is best equipped
to consider the question of bail by reason of its intimate
involvement with the matter. Thus, a trial court’s refusal of
bail will be reversed only where the court failed to bring an
unbiased judgment to bear on the issue, did not act for substantial
reasons or exercised its discretion capriciously or upon a wrong
principle.”
In
Masoanganye, supra,
at para 14, the court said:
“
[14]
… What is of more importance is the seriousness of the crime,
the risk of flight, real prospects of success on conviction,
and real
prospects that a non-custodial sentence might be imposed.”
[22]
Sufficient detail of the offence alleged against applicant was placed
before the magistrate to decide whether the evidence
was sufficient
to warrant prosecution in the UK. The section 10(2) certificate by
Barry Hughes, Chief Crown Prosecutor, South West
Area of the Crown
Prosecution Service constituted sufficient proof thereof -[
Patel
v NDPP
(838/2015)
[2016] ZASCA 191
(01
December 2016) para 16;
Geuking, supra
para 46].
[23] The question as to
whether the further charges discovered after the order of retrial
against the applicant warrants prosecution
in the UK, is a question
which would not normally be within the knowledge or expertise of
South African magistrates –
Patel, supra
at para 44. It
is a question between the applicant and the UK prosecution
authorities, and would be well placed within the courts
of the UK. In
Geuking, supra
, at para 44 it is said:
“
[44]
In dealing with this argument it is important to have regard to the
nature of extradition proceedings and the limited function
of the
hearing before the magistrate. Extradition proceedings do not
determine the innocence or guilt of the person concerned.
They are
aimed at determining whether or not there is reason to remove a
person to a foreign State in order to be put on trial
there. The
hearing before the magistrate is but a step in those proceedings and
is focused on determining whether the person concerned
is or is not
extraditable. Thereafter it is for the Minister to decide whether
there is indeed to be extradition. What is fair
in the hearing of the
magistrate must be determined by these considerations.”
At para 45 the court
continued:
“…
If
the alleged conduct in the foreign State does constitute criminal
conduct in this country, the magistrate is then required to
rely on
the certificate with regard to the narrow issue as to whether the
conduct also warrants prosecution in the foreign country.
It is not
inappropriate or unfair for the Legislature to relieve the magistrate
of the invidious task of deciding this narrow issue
unrelated to
South Africa law. As already mentioned, it is a question in respect
of which South African lawyers and judicial officers
will usually
have no knowledge or expertise.”
[24] The order to
surrender is not within the power of the magistrate holding the
enquiry. It is not a judicial function. Section
11(b)(iv) provides as
follows:
“
11
Minister may order or refuse surrender to foreign State
The Minister may -
(b) order that a
person shall not be surrendered –
(iv)
if he or she is satisfied that the person concerned will be
prosecuted or punished or prejudiced at his or her trial
in the
foreign State by reason of his or gender, race, religion, nationality
or political opinion.”
[25]
There are important issues of legality and policy involved which the
Minister considers, which do not resort under the judicial
power of a
magistrate. I accept that there is no exception to the enjoyment of
the benefits derived from the founding values of
human dignity, the
achievement of equality and the advancement of human rights and
freedoms as provided for in section 1(a) of
the Constitution of the
Republic of South Africa, 1996.
[26] In
Mohamed and
Another v President of the RSA and Others
[2001] ZACC 18
;
2001 (3) SA 893
(CC) at
para 68, the Constitutional Court said the following:
“ …
South
Africa is a young democracy still finding its way to full compliance
with the values and ideals enshrined in the Constitution.
It is
therefore important that the State lead by example. This principle
cannot be put better than in the celebrated words of Justice
Brandeis
in Olmstead et al v United States:
‘
In
a government of laws, existence of the government will be imperiled
if it fails to observe the law scrupulously … Government
is
the potent, omnipotent teacher. For good or for ill, it teaches the
whole people by its example … If the government becomes
a
lawbreaker, it breeds contempt for the law; it invites every man to
become a law unto himself; it invites anarchy.’
The
warning was given in a distant era but remains as cogent as ever …
The legitimacy of the constitutional order is undermined
rather than
reinforced when the State acts unlawfully. Here South African
government agents acted inconsistently with the Constitution
in
handing over Mohamed
without
an assurance that he would not be executed …
”
(the bold and underlining is my own emphasis).
[27] The Constitutional
Court in
Minister of Home Affairs v Tsebe
2012 (5) SA 467
(CC)
at para 25 further said:
“
[25]
The approach taken by this court in Mohamed was that, when South
African authorities hand someone over to another country to
stand
trial on a charge which, to the knowledge of the South African
authorities, could lead to the imposition and execution of
the death
penalty on such person if he is found guilty, they facilitate the
imposition of the death penalty and that is a breach
of their
obligations contained in s 7(2) of the Constitution. In Mohamed this
court held that the conduct of the South African
authorities in
handing over Mr Mohamed over to the authorities of the United States
of America (US) to stand trial in that country
in the full knowledge
that, if convicted, he could be sentenced to death,
without
obtaining the requisite assurance from the US government, violated Mr
Mohamed’s constitutional right to life, right
to human dignity
and right not to be treated or punished in a cruel, inhuman or
degrading way.”
(the
bold and underlining are my own emphasis).
[28] At para 42 and 43 of
Tsebe, supra,
the court said:
“
[42]
In Mohamed this court stated that under the our Constitution there
are no exceptions to the protection of the right to life,
the right
to human dignity and the right not to be treated or punished in a
cruel, inhuman or degrading way. However, the court
said that it must
be remembered that, like all the other rights in the Bill of Rights,
these rights are subject to limitation as
provided for in section 36
of the Constitution. This court also said:
‘
Where
the removal of a person to another country is effected by the State
in circumstances that threaten the life or human dignity
of such
person, ss 10 and 11 of the Bill of Rights are implicated.’
The
court went on to say in the next sentence that there was no doubt
that ‘the removal of Mohamed to the United States of
America
posed such a threat’. It found that ‘(t)he fact that
Mohamed is now facing the possibility of a death sentence
is the
direct result of the failure by the South African authorities to
secure’ an undertaking from the US that the death
penalty would
not be imposed or, if imposed, would not e executed.
[43]
The question that arises is: what is the principle that Mohamed
established. The principle is that the government has no power
to
extradite or deport or in any way remove from South Africa to a
retentionist state any person who, to its knowledge, if deported
or
extradited to such a state, will face the real risk of the imposition
and execution of the death penalty.
This
court’s decision in Mohamed means that if any official in the
employ of the State, without the requisite assurance, hands
over
anyone from within South Africa, or under the control of South
African officials, to another country to stand trial, knowing
that
such person runs the real risk of a violation of his right to life,
right to human dignity and right not to be treated or
punished in a
cruel, inhuman or degrading way in that country, he or she acts in
breach of the duty provided for in s 7(2) of the
Constitution.”
(bold and underlining is my own emphasis).
[29]
Even if it was found that the applicant faced infringement of his
right to equality, more specifically his right not to be
discriminated against on the basis of his sexual orientation, and
there was a real risk that he could face punishment which is
inconsistent with the provisions of the Constitution if he was to be
extradited, this right is not absolute. The Minister might
still
request the UK to provide the necessary assurances. The real risk of
infringement, even if it was found to exist, was no
bar for the
magistrate to order his committal to prison to await the Minister’s
decision with regard to his surrender.
[30]
The applicant is not entitled to some higher protection that would
elevate his position to jurisdictional limitations in the
sense of
him enjoying what would amount to an extension of humanitarian asylum
which protects him as a fugitive from seizure by
his own state in
order to have his day in court and if needs be to pay his dues simply
because RSA where he fled to is founded
on the values of achievement
of equality. Our values and the Bill of Rights were never intended
for RSA to be a safe haven for
those alleged to be the worst in their
countries to evade justice to.
[31]
The evidence before the magistrate showed that the applicant was
sought for extraditable offences. The applicant is charged
for
offences relating to sexual involvement with children, and not his
homosexuality. He absconded towards the conclusion of his
trial when
it was clear that he faced imprisonment. He knew what the outcome of
his appeal was, as according to his own testimony
his lawyers
communicated the outcome in writing, and as such was aware that a
retrial was ordered. His version that he did not
read that part of
the order and that his parents, who were at court when the
pronouncement was made, did not understand that part
of the order is
simply opportunistic.
[32]
He avoided the UK since he fled. He did not attend at the funeral of
his mother and was not visiting his old father who had
to travel to
RSA in order to see him. He consulted with his attorneys by e-mail
and telephone but they failed to disclose his whereabouts.
When he
applied for renewal of his British passport, he did not use his
residential address, but another address. When granted
bail and was
tagged with an electronic monitoring device, he interfered with it.
He does not intend to stand trial in the UK. He
expects the
impossible from the courts in the UK, which is to be cleared of the
institutional memory of the British in the court
of public opinion,
as if that memory is on some memory stick which can simply be removed
from the nation. In my view, the magistrate
was correct, for all
intents and purposes, to find that the offences for which the
applicant was sought were extraditable offences
and that the
applicant was liable for extradition. The applicant does not intend
to stand his trial and will not voluntarily return
to the UK.
[33]
Having considered the evidence of the applicant, it is very clear
that this is going to be a protracted matter, as he had already
indicated that his plan was to use all the avenues available to him
to ward off his extradition. The State has already raised alarm
about
the fast pace with which he pursues actions calculated to secure his
freedom, in contrast to the pace with which he pursues
actions in
furtherance of a final decision on this matter. It is a concern which
is reasonable and should receive the attention
of this court.
For
these reasons, I am not satisfied that the magistrate was wrong in
his decision, and I would make the following order:
1.
The appeal against the decision of the
magistrate to refuse to grant the applicant to bail pending appeal is
dismissed.
…………………………………………
DM
THULARE
ACTING
JUDGE OF THE HIGH COURT
I
agree and it is so ordered.
………………………………………
..
MJ
DOLAMO
JUDGE
OF THE HIGH COURT
Counsel
Appellant: Advocate J van
der Berg
Respondent: Advocate C
Burke
Instructing Attorneys
Appellant: Mathewson Gess
Inc. Attorneys
Respondent: Director of
Public Prosecutions
JUDGMENT
READ AND DAY(S) IN COURT: 07 March 2018