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Fugitive Offenders Act 1969

COOK ISLAND

FUGITIVE OFFENDERS ACT 1969

ANALYSIS

Title
1. Short Title
2. Interpretation
3. Return of offenders
4. Persons liable to be returned
5. Designated country
6. Relevant offence
7. Restrictions on return
8. Methods of procedure
9. Committal proceedings
10. Application for habeas corpus
11. Order for return to requesting country
12. Discharge in case of delay in returning
13. Evidence
14. Custody
15. Form of warrants and orders
16. Restriction upon proceedings for other offences
17. Restoration of persons not tried or acquitted
18. Orders in Council
19. Repeal, transitional provisions

Schedule

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1969, No. 1

An Act to provide for the return of persons accused or convicted in other Commonwealth countries and dependencies and for the treatment of person accused and convicted in the Cook Islands and returned thereto from such countries and dependencies

(9 October 1969

BE IT ENACTED by the Legislative Assembly of the Cook Islands in Session assembled, and by the authority of the same, as follows:

1. Short Title - This Act may be cited as the Fugitive Offenders Act 1969.

2. Interpretation - (1) In this Act, the following expressions have the meanings hereby assigned to them that is to say:-

"application for habeas corpus" means an application for a writ of habeas corpus ad subjiciendum;

"dealt with" means tried or returned or surrendered to any country or detained with a view to trial, or with a view to such return or surrender;

"designated Commonwealth country" includes any designated Commonwealth dependency, designated country or designated territory the subject of an Order in Council pursuant to section 5 of this Act;

"Governor", in relation to any country, means the person or persons administering the government of that country;

"imprisonment" includes detention of any description;

"Minister" means the Minister of Justice of the Cook Islands unless the context indicates some other minister is referred to;

"Order in Council" means an Order of the Executive Council established by Article 12 of the Constitution of the Cook Islands;

"race" includes tribe.

(2) For the purposes of this Act a person convicted of an offence in his absence shall be treated as a person accused of that offence.

PART I - RETURN OF OFFENDERS TO COMMONWEALTH COUNTRIES AND DEPENDENCIES

3. Return of offenders - The High Commissioner may from time to time by Order in Council direct that this Act shall have effect in relation to the return of persons to, or in relation to persons returned from any designated Commonwealth country subject to such adaptations, modifications or exceptions as may be appropriate.

4. Persons liable to be returned - A person liable to be returned, for the purposes of this Act, is a person who is accused of a relevant offence in a designated country or who is alleged to be unlawfully at large after conviction of a relevant offence in such country.

5. Designated country - (1) The High Commissioner may from time to time by Order in Council designate for the purposes of this Act, as designated Commonwealth countries such countries as are members of the Commonwealth or are dependencies of such countries whether described as colonies, protectorates, protected states, mandated or trust territories or otherwise.

(2) Ireland maybe designated a Commonwealth country.

(3) For the purposes of any Order in Council under subsection (1), any territory for the external relations of which a Commonwealth country is responsible may be treated as part of that country or, if the Government of that country so requests, as a separate country.

6. Relevant offence - (1) For the purposes of this Act, a "relevant offence" is an offence which -

(a) would, as an act or omission, constitute an offence against the law of the Cook Islands if it took place within the Cook Islands, or, in the case of an extra-territorial offence, outside the Cook Islands; and

(b) is within one of the descriptions set out in the Schedule to this Act, notwithstanding the manner in which it is describe in the designated country; and

(i) being an offence against the law of a Commonwealth country, is punishable under that law with imprisonment for a term of twelve months or any greater punishment; or

(ii) being an offence against the law of a Commonwealth dependency, is punishable under that law, on conviction by or before a superior Court, with imprisonment for a term of twelve months or any greater punishment.

(2) (a) In determining for the purposes of this section whether an offence falls within a description set out the Schedule to this Act any special intent or state of mind or special circumstances of aggravation which may be necessary to constitute that offence under the law of the designated country shall be disregarded;

(b) The categories set out in the Schedule to this Act include in each case the offences of attempting or conspiring to commit, of assisting, counselling or procuring the commission of or being accessory before or after the fact to the offences therein described, and of impeding the apprehension or prosecution of persons guilty of those offences.

(3) References in this section to the law of any country (including the Cook Islands) include references to the law of any part of that country.

7. Restrictions on return - (1) The High Court may intervene to prevent the return or arrest or terminate the committal for return of any person where it appears to it on an application for habeas corpus or for review of the Order of Committal -

(a) that the offence in question is an offence of a political character being other than an offence against the life or person of the Head of State or any related offence as described in subsection (2)(b) of section 6;

(b) that the request for his return (though on the face of it for a relevant offence) is in fact made for the purpose of prosecuting or punishing him on account of his race, religion, nationality or political opinion; or

(c) that he might, if returned, be prejudiced at his trial or punished, detained or restricted in his personal liberty by reason of his race, religion, nationality or political opinions.

(2) No person accused of an offence shall be returned or committed or kept in custody for the purposes of such return, if it appears that, if charged with that offence in the Cook Islands, he would be entitled to be discharged under any rule of law relating to previous acquittal or conviction.

(3) No person shall be returned or committed or kept in custody for return to any country unless that country has provision, either by reason of its laws or by an agreement with the Cook Islands, (such agreement be in either of a general nature or specific to the particular person), to the effect that he will not be dealt with in that country without first being returned or being given the opportunity to return to the Cook Islands, for any other offence than the relevant offence, committed before his return and not being -

(a) a lesser offence proved by the facts proved before the Court of Committal; or

(b) any other offence being also a relevant offence in respect of which the Minister has consented to his being so dealt with.

PART II - PROCEEDINGS FOR RETURN

8. Methods of Procedure - A person being dealt with under this Act shall be dealt with by either of two procedures, namely by the issue of a warrant by a High Court Judge either:

(a) in pursuance of an Order of the Minister to be referred to as "an authority to proceed" and such authority may be issued pursuant to a request made to the Minister by or on behalf of the Government of the designated country or the Governor of the designated dependency, in which the said person is accused or was convicted and this request shall be accompanied by:

(i) in the case of a person accused of an offence, a warrant for his arrest issued in that country, or in the case of a person unlawfully at large after conviction of an offence, a certificate of the said conviction and the relevant sentence, and a statement as to how much, if any, of that sentence has been served; and

(ii) particulars of the said person and of the facts upon which and the law under which he is accused or was convicted and evidence sufficient to justify the issue of a provisional warrant under subsection (2) of this section; or

(b) upon information that the said person is or is believed to be in or on his way to the Cook Islands a warrant (referred to as a "provisional warrant");

(i) may be issued upon such evidence as would, in the opinion of a High Court Judge, authorise the issue of a warrant for the arrest of a person accused of committing a corresponding offence in the Cook Islands or, as the case may be, of a person alleged to be unlawfully at large after conviction of a corresponding offence within the jurisdiction of the High Court; and

(ii) after issue, shall be notified by the High Court Judge to the Minister together with certified copies of the information and evidence upon which it was issued; and

(iii) a warrant of arrest so issued may be executed in any part of the Cook Islands by any person to whom it is directed or by any police officer, subject to the condition that where the Minister after consideration of the particulars required by subparagraph (b) herein, refuses to issue an authority to proceed in respect of that person, the High Court Judge shall, by order cancel the warrant and if the person has been arrested thereunder, release him from custody.

9. Committal Proceedings - Where a person has been arrested under a provisional warrant -

(a) he shall be brought as soon as practicable before the High Court if he has not been discharged meantime by the Minister acting under section 5 subsection (2)(c) of this Act;

(b) where an authority to proceed has not been received in respect of him, the High Court may fix a reasonable period and give due notice thereof to the Minister after which he will be discharged from custody unless such authority has been received;

(c) where an authority to proceed has been received in respect of him, the High Court shall upon hearing any evidence tendered in support of the request for return of that person or tendered on behalf of that person, and being satisfied;

(i) that the offence to which the authority relates is a relevant offence and that the country concerned is a designated country; and

(ii) where the person is accused of that offence, that the evidence would be sufficient to warrant his trial for that offence if it had been committed within the jurisdiction of the High Court; and

(iii) were that person is alleged to be unlawfully at large after conviction of the offence, that he has been so convicted and appears to be so at large

the Court shall, unless his committal is prohibited by any other provision of this Act, commit him to custody to await his return thereunder; but if the Court is not so satisfied or if the committal of that person is so prohibited the Court shall discharge him from custody.

10. Application for habeas corpus - (1) A person committed to custody under section 9 of this Act shall be told in ordinary language of his right to make an application for habeas corpus or to apply for review of the order of committal and notice of his committal shall be given forthwith to the Minister.

(2) No person committed to custody under section 9 of this Act shall be returned unless -

(a) fifteen days have expired from the date of the Order for his committal; and

(b) no application is made or proceeding pending regarding habeas corpus or appeal, therefrom or review of committal proceedings.

(3) On any such application the High Court may, without prejudice to other jurisdictions of the Court, order the person committed to be discharged from custody if it appears to the Court it that it would, having regard to all the circumstances, be unjust or oppressive to return him by reason of:

(a) the trivial nature of the relevant offence;

(b) the passage of time since he is alleged to have committed it or to have become unlawfully at large, as the case may be; or

(c) the fact that the accusation is not made in good faith in the interests of justice.

11. Order for return to requesting country - (1) Where a person is committed to await his return and is not otherwise discharged, the Minister may order him to be returned to the country by which the request for his return was made subject to the restrictions set out in section 7 of this Act and to subsection (2) of this section.

(2) No order of return shall be made where:

(a) a person is serving a sentence, until the expiration of the sentence;

(b) a person is charged with an offence until the charge is disposed of or withdrawn and if it results in a sentence of imprisonment (not being a suspended sentence) until the sentence has been served;

(c) it appears to the Minister that on the grounds mentioned in section 7 of this Act that it would be unjust or oppressive to return that person.

(3) The Minister may decide to make no Order where-

(a) a person accused or convicted of the relevant offence in the designated country could be or has been convicted to death in that country and the offence is not one punishable by death in the Cook Islands;

(b) the person requested is the subject of a request or requisition for return under this or any other Act made on behalf of another country and it appears that having regard to all the circumstances of the case and in particular -

(i) the relative seriousness of the offence in question;

(ii) by the date on which each request or requisition was made; and

(iii) the nationality or citizenship of the person concerned and his ordinary residence,

that preference should be given to the other request or requisition.

12. Discharge in case of delay in returning - (1) Any person committed in custody to await return may apply to the High Court for his discharge where:

(a) two months have elapsed since the first day on which under section 9 of this Act he could have been returned;

(b) one month has elapsed since the issue of an Order under section 11 of this Act.

(2) Subject to the Court being satisfied that reasonable notice of the proposed application has been given to the Minister the Court may, unless sufficient cause is shown to the contrary, by Order direct the applicant to be discharged, from custody and, if an Order for his return has been issued under section 11 of this Act quash that Order.

13. Evidence - (1) In any proceedings under this Act, including proceedings on an application for habeas corpus in respect of a person in custody thereunder -

(a) a document, duly authenticated, which purports to set out evidence given on oath in a designated country shall be admissible as evidence of the matters stated therein;

(b) a document, duly authenticated, which purports to have been received in evidence, or to be a copy of a document so received, in any proceeding in any such country shall be admissible in evidence;

(c) a document, duly authenticated, which certifies that a person was convicted on a date specified in the document of an offence against the law of, or of a part of, any such country shall be admissible as evidence of the fact and date of the conviction.

(2) A document shall be deemed to be duly authenticated for the purpose of this section -

(a) in the case of a document purporting to set out evidence given as aforesaid, if the document purports to be certified by a Judge, or magistrate or officer of a Court of Justice in or of the country or dependency in question to be the original document containing or recording that evidence or a true copy of such a document;

(b) in the case of a document which purports to have been received in evidence as aforesaid or to be a copy of a document so received if the document purports to be certified as aforesaid to have been, or to be a true copy of a document which has been so received;

(c) in the case of a document which certifies that a person was convicted as aforesaid, if the document purports to be certified as aforesaid,

and in any such case the document is authenticated either by the oath of a witness or by the official seal of a Minister of the designated Commonwealth country or of the Governor or a Minister, secretary or other officer administering a department of the Government of the dependency, as the case may be.

(3) In this section "oath" includes affirmation or declaration; and nothing in this section shall prejudice the admission in evidence of any document which is admissible in evidence apart from this section.

14. Custody - (1) Any person remanded or committed to custody under section 9 of this Act shall be committed to the like institution as a person charged with an offence before the Court of committal.

(2) If any person who is in custody by virtue of a warrant or Order under this Act escapes out of custody, he may be retaken in any part of the Cook Islands in like manner as a person escaping from custody under a warrant for his arrest issued in that part in respect of an offence committed therein.

(3) Where a person, being in custody in any part of the Cook Islands whether under this Act or otherwise, is required to be removed in custody under this Act to another part of the Cook Islands and is so removed by sea or by air, he shall be deemed to continue in legal custody until he reaches the place to which he is required to be removed.

(4) An Order under section 11 of this Act for the return of any person to any country shall be sufficient authority for all persons to whom it is directed and all constables to receive that person, keep him in custody and convey him into the jurisdiction of that country.

15. Form of warrants and orders - (1) Any warrant or order to be issued or made by the Minister under any of the foregoing provisions of this Act shall be given under the hand of the Minister.

(2) The High Commissioner may by Order in Council make regulations to prescribe the form of any warrant or order to be issued or made under the foregoing provisions of this Act.

16. Restriction upon proceedings for other offences - (1) This section applies to any person accused of conviction of an offence under the law of or of any part of the Cook Islands who is returned to the Cook Islands.

(2) Subject to the aforesaid provisions of any Order in Council made pursuant to section 3 of this Act a person to whom this section applies shall not, during the period prescribed in subsection (3) of this section, be dealt with in the Cook Islands for or in respect of any offence committed before he was returned to the Cook Islands other than -

(a) the offence in respect of which he was returned;

(b) any lesser offence proved by the facts proved for the purposes of securing his return; or

(c) any other offence in respect of which the Government of the country or Governor of the dependency from which he was returned may consent to his being dealt with.

(3) The period referred to in subsection (2) of this section in relation to a person to whom this section applies is the period beginning with the day of his arrival in the Cook Islands on his return as mentioned in subsection (1) of this section and ending forty-five days after the first subsequent day on which he has the opportunity to leave the Cook Islands.

17. Restoration of persons not tried or acquitted - (1) This section applies to any person accused of an offence under the law of or of any part of the Cook Islands as mentioned in subsection (1) of section 16 of this Act.

(2) If in the case of a person to whom this section applies, either -

(a) proceedings against him for the offence for which he was returned are not begun within the period of six months beginning with the day of his arrival in the Cook Islands on being returned; or

(b) on his trial for that offence, he is acquitted or discharged, the Secretary of State may, if he thinks fit, on the request of that person, arrange for him to be sent back free of charge and with as little delay as possible to the country from which he was returned.

18. Orders in Council - Any Order in Council under this Act may contain such transitional or other incidental and supplementary provisions as may appear to the High Commissioner acting on the advice of the Executive Council to be necessary or expedient.

(2) Any power to make an order in Council or under this Act includes power to revoke or vary such an Order in Council or Order by a subsequent order in Council or Order.

19. Repeals, transitional provisions - (1) Subject to the provisions of this section, the Fugitive Offenders Act 1881 of the United Kingdom Parliament is hereby wholly repealed so far as it extends to the Cook Islands.

(2) The repeal effected by subsection (1) of this section shall not affect the operation of the Fugitive Offenders Act 1881 of the United Kingdom Parliament in any case where, before the date on which that subsection comes into force, a warrant endorsed under section 3 of that Act, or a provisional warrant issued under section 4 of that Act, has been executed in the Cook Islands:

Provided that for the purposes of proceedings under that Act in respect of a fugitive from a designated Commonwealth country, subsection (1) of section 7 of this Act shall apply as if -

(a) for the reference to this Act there were substituted a reference to that Act; and

(b) for references to the Court of committal and the Order of Committal there were substituted references to the Magistrate before whom that person is brought under section 5 of that Act and the Order of that Magistrate.

(3) Notwithstanding subsection (2) of this section, this Act applies to offences committed before as well as after the passing of this Act.

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SCHEDULE

Section (1)(b)

1. Murder of any degree
2. Manslaughter or culpable homicide
3. An offence against the law relating to abortion
4. Maliciously or wilfully wounding or inflicting grievous bodily harm
5. Assault occasioning actual bodily harm
6. Rape
7. Unlawful sexual intercourse with a female
8. Indecent assault
9. Procuring, or trafficking in, women or young persons for immoral purposes
10. Bigamy
11. Kidnapping, abduction or false imprisonment, or dealing in slaves
12. Stealing, abandoning, exposing or unlawfully detaining a child
13. Bribery
14. Perjury or subornation of perjury or conspiring to defeat the course of justice
15. Arson or fire-raising
16. An offence concerning counterfeit currency
17. An offence against the law relating to forgery
18. Stealing, embezzlement, fraudulent conversion, fraudulent false accounting, obtaining property or credit by false pretences, receiving stolen property or any other offence in respect of property involving fraud
19. Burglary, housebreaking or any similar offence
20. Robbery
21. Blackmail or extortion by means of threats or by abuse of authority
22. An offence against bankruptcy or company law
23. Malicious or wilful damage to property
24. Acts done with the intention of endangering vehicles, vessels or aircraft
25. An offence against the law relating to dangerous drugs or narcotics
26. Piracy
27. Revolt against the authority of the master of a ship or the commander of an aircraft
28. Contravention of import or export prohibitions relating to precious stones, gold and other precious metals.
29. Hijacking
30. An offence against section 5 of the Aviation Offences Act 1973 of the Legislative Assembly of the Cook Islands.

[Amended Act 1973/15]

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