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REPORTABLE
JUDGMENT
Case no: CA 104/2014
and
Neutral citation: Furic v The State (CA 104/2014) [2014] NAHCMD 370 (27
November 2014)
______________________________________________________________
ORDER
JUDGMENT
[1] Appellant is a French national who was arrested upon his entry into
Namibia at Walvis Bay on 20 June 2014 on suspicion of having committed
offences outside the borders of Namibia, similar to offences punishable within
Namibia and for which he could be extradited (section 40 (i)(k) of the Criminal
Procedure Act, 51 of 1977). The appellant, at the end of an enquiry conducted
by a magistrate in terms of the Extradition Act, 11 of 1996 (hereinafter ‘the
Act’), was committed to prison pending the Minister of Justice’s decision in
terms of the Act.
[3] In his statement Superintendent Sahoo states that a criminal case has
been registered at Sea Beach Police Station, Puri, Odisha, against Mr.
Mathieu Nicolas Furic, involving three charges under the Indian Penal Code,
and a further two charges under the Protection of Children from Sexual
Offences Act, 2012. In a summary of facts it is alleged that a Mr. James
Frederick Gorman, a USA national, reported an incident in which appellant
was seen committing sexual acts with four minor children. When the
complainant approached with the intention of photographing the appellant, he
was attacked and during an ensuing tussle between them, appellant managed
to flee the scene with a bag the appellant had with him and from which Mr.
Gorman obtained a boarding pass of an airline, found among other items in
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the bag he had snatched from the appellant. The statement further reads that
by means of the boarding pass the complainant managed to trace the hotel
where the appellant had been staying. A photograph on the passport of the
appellant was also obtained from the hotel. Further information obtained
during the investigation revealed that the appellant checked out the same day
and left the country two days later.
[4] Documents relied upon in support of the charges preferred against the
appellant accompanied the statement, to wit: (i) First Information Report; (ii)
Charge Sheet; (iii) Statements of four child witnesses; (iv) Documents of the
hotel; (v) the Enquiry Report of District Child Protection Officer; (vi)
Photograph of the accused (appellant) available in the passport and a recent
photograph by the NCB – Paris; (vii) Deposition of the complainant in the
Judicial Court; and (viii) Photocopy of travel document i.e. boarding pass.
[7] At the outset the State intimated to the court that no viva voce evidence
would be tendered and thereafter handed in the documentary evidence relied
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upon for purposes of the extradition request. The defence equally did not lead
any evidence and neither did it produce any documentary evidence in its
opposition of the application. During oral submissions State counsel pointed
out that the requesting country, in this instance, India, is a country
contemplated in section 4 of the Act, being a country which has entered into
an extradition agreement with Namibia (Proclamation No. 5 of 1997). It was
also submitted that the identity of the person, the subject of the request, was
not in doubt. Counsel further pointed out that the offences preferred against
the appellant in India satisfy the requirement of being ‘extraditable offences’ in
that they are punishable with imprisonment for a period of 12 months or more
and which, had it been committed in Namibia, would have attracted the same
punishment (section 3).
[10] Mr Elago during his submissions took issue with the production of
documents contained in the extradition request in that it does not satisfy the
requirements set out in section 8 (3), read together with section 18 of the Act.
Counsel pointed out that, statements obtained from the child witnesses were
recorded in a language other than the English language and that the
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accompanying documents are not sworn translations, but nothing more than
translations of their statements. Furthermore, the stamps or seals affixed to
some of the statements are illegible, making it impossible to determine the
capacity of the person who affixed these stamps on the documents. In view of
the foregoing, counsel argued, these documents were not properly before the
court and fall to be rejected as inadmissible evidence.
[11] Counsel for the State on the contrary argued, albeit half-heartedly, that
the translated versions of the child witnesses’ statements were indeed sworn
statements made to the Superintendent of Police of Puri. He further argued
that, if these statements do not pass muster then reliance may still be placed
on the complainant’s statement which was done in the English language.
Regarding the authentication of these documents, the State, argued that both
Namibia and India are signatory countries to The Hague Convention
Abolishing the Requirement for Legalisation for Foreign Public Documents, by
which member countries are exempted from strict adherence to the
requirement of authentication.
[14] In respect of the identity of the person brought before the court a quo for
extradition, it was submitted that on the evidence presented, the court could
not have been satisfied that the appellant is indeed the person in the
extradition request.
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[15] Section 8 provides for the particulars and documents in support of the
request for return of the person and in respect of the identity of such person,
subsection (1)(a) provides:
[16] The magistrate at the end of the enquiry must be satisfied that the
person brought before him or her is indeed the person sought in the
extradition request and section 12 (5)(c) provides as follows:
‘(5) If at any enquiry the magistrate concerned is satisfied, after hearing the
evidence tendered at such enquiry, that-
….
(c) the person brought before him or her at the enquiry is the person who
is alleged to have committed such extraditable offence in such country or to be
unlawfully at large after conviction for an extraditable offence in such country;
the magistrate shall issue an order ….’
[17] The gravamen of the appellant’s complaint is that the identity of the
person brought before the court for purposes of the enquiry had not been
properly established. Also, that the State did not lead any evidence
specifically on the identity of the person before the court that could show that
it is the same person sought in India; or the same person depicted in the
photograph of the passport on which he travelled to Namibia. It was submitted
that most importantly there was no evidence made on oath about the identity
of the person and reliance was placed by the requesting country on
uncertified documents purportedly obtained from a hotel in Puri i.e. copies of
the Guest Registration Card and passport bearing the names Furic (Nicolas)
Mathieu.
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[18] With regard to the identity of the person before court, it was submitted
on the appellant’s behalf that the magistrate, on the documentary evidence
submitted – provided same satisfies the requisites set out in the Act – could
not have been satisfied that the requirements of section 12 (5) of the Act have
been met.
[19] The identity of the person that was before the court a quo at the enquiry
is reflected as that of Mathieu Nicolas Furic, Male, 46 years of age and of
French Nationality. No evidence otherwise pertaining to the identity of the
person was led, the reason therefor seemingly being that the identification of
the person was not challenged or placed in dispute. It is common ground that
the appellant was arrested upon entry into Namibia and detained. This came
about when the appellant was ‘red flagged’ through Interpol when his passport
was scanned at Walvis Bay upon his entry into Namibia. He was immediately
arrested without a warrant of arrest as provided for in terms of s 40 (1)(k) of
the Criminal Procedure Act, 51 of 1977 and, subsequently thereto, detained
by order of court.
[20] Counsel for the respondent submitted that besides the statements in
support of the request received, the magistrate was also entitled to have
regard to the Arrival Form which the appellant was required to complete upon
his entry into Namibia. I am in agreement with counsel’s contention. The form
bears the name Mathieu Furic, a French National travelling on passport no.
12CZ24660 and is stamped by an immigration official at Walvis Bay, being the
port of entry. The production of this document into evidence, in my view,
constitutes sufficient proof of the identity of the person who filled out the form
reflecting the passport bearer’s identity and other particulars relevant thereto.
Appellant has not disputed having filled out the said form or that the
particulars contained therein were incorrectly stated. There was thus no
reason to doubt the identity of the person in court to be Mathieu Furic, the
appellant.
[21] Although there is merit in counsel’s contention that the magistrate ought
to have verified the identity of the person brought before the court to be the
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[23] Though the magistrate in the endorsement states that he was satisfied
that the external warrant of arrest was duly authenticated, it would seem that
on the warrant itself, there is no proof of authentication on which the
magistrate could rely when he was so satisfied. The warrant is a copy of the
original and bears a stamp which is illegible. Whether the stamp relates to any
form of authentication or the certification of the copy as a true copy of the
original, is not clear from the document. In any way, as far as it concerns the
external warrant of arrest, there is no proof of authentication on the warrant,
or otherwise, in support thereof as provided for in either subsections (a) or (b)
of section 18 (1) of the Act.
[25] This section makes plain that the magistrate, when acting in terms of
section 10 of the Act, had to be satisfied that the external warrant of arrest
was duly authenticated and in the present instance, this was clearly not the
case. In these circumstances the magistrate should not have relied on it when
endorsing the external warrant of arrest. The magistrate should have
communicated to the Minister that the warrant was not authenticated as
required by the Act whereafter the Minister could have acted in terms of
section 9, requesting further particulars (regarding authentication of the
warrant of arrest) from the requesting country. No such request or information
was made to the Minister as the magistrate endorsed the external warrant of
arrest without properly considering the authenticity of the said warrant. Prima
facie the external warrant of arrest, the magistrate was not permitted to
authorise the warrant of arrest as he did, hence the endorsement was
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irregular. Be that as it may, by the time the magistrate endorsed the warrant of
arrest, appellant had already appeared in court and was ordered to remain in
custody pending the enquiry.
[26] I turn next to consider the second leg under (a) which concerns
extraditable offences.
[28] The first offence for which the appellant was charged is a contravention
of section 341 of the Indian Penal Code for the alleged wrongful restraint of
the complainant. This particular offence, however, does not satisfy the
requirement of being an offence punishable with imprisonment for a period of
12 months or more in the requesting country, as the sentence provided for in
the Code is: ‘Simple imprisonment for one month or [a] fine of Rs.500/-
(Rupees five hundred)’. Accordingly, it is not an extraditable offence as
defined in the Act. The remainder of the charges meet the statutory requisites
and, for purposes of the present proceedings, are considered extraditable
offences.
has been made out before the person can be committed on that particular
charge. This does not only relate to the evidence presented, but also to the
charge itself. The magistrate clearly committed a misdirection when he
committed the appellant on all the charges and should have declined the
request in respect of the charge relating to section 341 of the Indian Penal
Code.
[31] The particulars and the nature of the documents required in support of
the extradition request are set out in section 8, the relevant part thereof
providing as follows:
(2) All particulars and copies of all documents contemplated in subsection (1)
shall be made available to the person whose return is requested.
(3) Any document referred to in subsection (1) which is not drawn up in the
English language shall be accompanied by a sworn translation thereof in that
language.’
(Emphasis added)
[32] It is settled law that the judicial officer tasked to consider whether or not
a prima facie case has been made out in an extradition enquiry against the
person whose extradition is sought, must apply the evidentiary rules
applicable in Namibia (S v Bigione 2000 NR 127 (HC)). In the present matter
what the magistrate was thus required to do, with the view of determining
whether a prima facie case has been made out, was to examine the evidence
presented in the light of its admissibility and the applicable laws of Namibia.
Appellant contends that the magistrate failed to comply with a number of
evidential rules applicable.
[33] The supporting statements include two statements of Mr. Gorman, the
complainant, the first being an unsworn statement he had prepared on his
own and which was handed to the police of Puri ‘for future strategy to curb the
issue which is very serious’. The second is a deposition apparently made in
court before a judge on 4 December 2013 in Puri.
[34] With regard to the first statement of Mr. Gorman not made on oath, this
statement does not satisfy the requirements provided for in section 18 (1) in
that it is not a sworn statement and neither has it been authenticated; hence it
should not have been tendered in support of the application at the enquiry as
it was inadmissible evidence. To have admitted same and rely upon the facts
contained therein, as the magistrate did, clearly constituted a misdirection.
[35] As for the complainant’s deposition, the statement reflects that this was
made on oath during criminal proceedings before the ‘Court of the Sessions
Judge’ of Puri and as such would be admissible as evidence in a court of law
in this country. It also bears the seal of the court of the district judge. I pause
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to observe that in his testimony Mr. Gorman narrated to the court an incident
he witnessed involving an unknown man committing a sexual act with a young
boy. During a scuffle between him and this person he (complainant) managed
to grab a bag from the man and part of its content was a boarding pass which
he had kept. He however failed to mention what he did with it or how it ended
up with the police. From his testimony it is further clear that he later returned
to the scene and established contact with some boys from that area whom he
then questioned. He made video recordings of their statements and on the 2 nd
of December 2013 he lodged his written statement with the police of Puri. I
have summarised the complainant’s version to show that even if the
deposition were found to be admissible during the enquiry, the appellant was
not incriminated by the complainant in any manner.
[36] Anup Kumar Sahoo is the Superintendent of Police, Puri, and states in
his affidavit that he is acquainted with the facts of this case and that he
scrutinized the records forming part of the investigation. Part of his statement
is a summary of the facts which includes an explanation as to how the
complainant traced the name that appears on the boarding pass to a guest
with the same name at the Hotel Sea Queen Inn, and how a copy of that
person’s passport was obtained from the hotel. In the absence of evidence by
the complainant in the form of sworn statements confirming the incriminating
allegations contained in the statement of Superintendent Sahoo, his evidence
in that respect, constitutes inadmissible hearsay evidence. Also contained
therein are full particulars of the offences the person is being accused of and
the statutory provisions said to have been breached. The affidavit bears the
stamp of the Court of the Sub-Divisional Judicial Magistrate.
[37] The Final Report of the investigating officer forms part of a set of
documents issued by the ‘Court of Special Judge Puri’, none of which being
sworn statements, though each document bears the seal of the Puri district
court.
[38] Also filed are statements purportedly made by the children with whom
Mr. Gorman had met during a follow-up visit to the scene and nearby village.
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‘[77] It was pointed out by Mr Botes, who argued this part of the appeal that
this issue is dealt with by High Court Rule 63 and that that Rule and the Magistrates'
Courts Rules concerning authentication are essentially the same. The authentication,
which is a process of verification of signatures appearing on foreign documents, is
fully dealt with in the said Rules. In certain instances the Court is relieved from
requiring strict compliance with the Rule. That would be in instances where the Judge
or magistrate is satisfied by other evidence that the signature appended is the
signature of the person purported to have signed the document. This relaxation of the
Rule does, however, not mean that the Judge or magistrate can do away with
authentication altogether.’
[43] Whereas the enquiry was conducted in the magistrate’s court, the
Magistrate’s Court Rules on the authentication of documents would find
application. However, despite close scrutiny of the Magistrate’s Court Rules I
have been unable to find any Rule providing for authentication of documents;
neither has counsel been able to direct me to such Rule. It would thus appear
that the court in Koch accepted as correct the submission made by Mr Botes
that the Magistrate’s Court Rules provide for the authentication of documents
which does not appear to be the case. Be that as it may, what is required in
section 18 (1)(a) is that authentication of documents must be done in the
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[44] Rule 128 of the Rules of the High Court provides for the authentication
of documents executed outside Namibia for use within Namibia and states as
follows:
[45] The way I understood the submissions made by Mr Nduna is that the
seals or stamps of the district court, Puri, appended to the documents, is proof
of authentication of those documents and therefor satisfy the requirements set
out in the Act. Besides the seal or stamp there is no further information
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[46] The magistrate in his judgment referred to the requirements that have to
be met when dealing with documents from a foreign country and that these
documents must be authenticated in the manner prescribed by the rules of
court. Clearly realising that the documents presented to him did not meet the
statutory requirements of the Act, the magistrate, relying on principles
contained in The Hague Convention, to which Namibia acceded, found that
the court was relieved from strict compliance with the requirements pertaining
to the authentication of documents.
[48] From the above it follows that none of the witness statements describing
criminal conduct, allegedly by the appellant, satisfy the requirements of
evidence admissible at an enquiry conducted in terms of section 12 of the
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[49] I deem it necessary to echo the sentiments of the court in the Koch
matter regarding the high standard of proof and the onus on the State to show
that there is prima facie evidence that the person, whose extradition is sought,
committed the alleged crimes in a foreign country. The present instance
illustrates the difficulties the requesting country may encounter when
preparing documents and statements supporting the request for extradition,
while such country might not always be familiar with our law and the standard
of proof that is required before the person could be extradited to a foreign
country. Despite calls made by the Supreme Court of this country on the
Legislature, already as far back as 2006, to address this unfortunate situation,
no progress has been made to date in that regard. The impression might be
created that Namibia is a safe haven to criminals who have committed serious
offences outside its borders and the chances of having them successfully
extradited, being remote.
[50] For the above stated reasons I have come to the conclusion that the
magistrate on the evidence adduced could not have been satisfied that the
requirements set out in section 12 (5) of the Act had been met and instead,
should have discharged the appellant.
________________
JC LIEBENBERG
JUDGE
________________
NN SHIVUTE
JUDGE
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APPEARANCES
RESPONDENT S Nduna
Of the Office of the Prosecutor-General,
Windhoek.