Jada Loutoo
A TRINIDADIAN man who fled the US after he was convicted and sentenced in New York some 18 years ago for assaulting a store owner, has again lost his challenge against his extradition.
This comes as an Appeal Court judge dismissed an appeal filed by Kim Maharaj who asked for additional time to appeal a ruling of the High Court in 2020 which initially paved the way for his return to New York to serve his sentence.
Maharaj had applied for relief from sanctions on September 8, 2021, claiming that the delay in filing his appeal was due to the covid19 pandemic.
He wanted to appeal the habeas corpus ruling of Justice Robin Mohammed delivered in February 2020.
The State had argued for the dismissal of Maharaj’s application and appeal. Attorneys Ravi Rajcoomar. SC, Graeme McClean, head of the Central Authority of the Attorney General’s office and Tiffany Ali had argued the State had international obligations under both a treaty and a statute.
Rajcoomar argued that the fact Maharaj would be extradited and may have to serve a sentence was a consequence of criminal conduct.
Maharaj was charged, tried and convicted at the Supreme Court in Queens for assaulting a store owner by punching him in the face while two other people held the victim down. The incident took place on September 7, 1998, and Maharaj was sentenced to 12 years with five years of mandatory post-release supervision for second-degree assault and seven years for second-degree gang assault. The sentences were to run concurrently.
He did not appear in court during the jury’s deliberations when they convicted him on September 28, 2000, or when he was sentenced on January 12, 2001, but said he returned to Trinidad one month later in February.
In his writ of habeas corpus, he said he was not in hiding but just “pretended like it (his conviction and sentence) never happened.”
Maharaj moved to Aranjuez where he lived with his extended family and opened his own automotive suspension business – Suspension Kings. He got married in 2007 and has a son.
He was arrested and charged with driving under the influence on February 15, 2016, and it was then that TT’s Interpol unit contacted their counterparts in Washington for a foreign criminal record trace for Maharaj.
Interpol in Washington confirmed using fingerprints that Maharaj was wanted in the US and extradition was to be pursued for him.
On June 27, 2018, the Attorney General issued an authority to proceed with the US request for extradition and on October 31, 2018, Chief Magistrate Maria Busby Earle-Caddle committed him for extradition.
In seeking to avoid extradition, Maharaj, who was represented by attorneys Mario Merritt and Karunaa Bisramsingh, argued it would be oppressive to send him back to the US because of the passage of time. He also said it was his belief if the TT police didn’t request Interpol, the US were not going to make any attempt to find him.
Maharaj complained that his wife was ill and he was diagnosed with transverse myelitis, an auto-immune disease which affects his spinal cord.
Mohammed disagreed. He said Maharaj could not involve the passage of time, though it was lengthy, because he was guilty of deliberately fleeing from the US.
“The fugitive cannot pray in aid what would not have happened but for the additional passage of time for which he is culpable,” he said, as he also dismissed a complaint that the length of time it took for the extradition request to be heard was inordinate.
“This is not a case where the fugitive is being sought to face a trial, where the longer the delay the more likely it will affect the fairness of the trial,” Mohammed said.
In seeking an extension to appeal Mohammed’s decision, Maharaj claimed his attorneys’ offices were closed during the pandemic owing to curfew restrictions.
In his ruling, Holdip said the application to extend time failed because there was no sufficient explanation for the breach of the civil proceedings rules for the timely filing of an appeal within three months of the High Court’s decision.
Holdip said even before the pandemic, technology was used for an efficient litigation practice and judicial system and it was no different during covid19.
“The covid19 pandemic does not relax the legal standard or test to determine an application for an extension of time…
“The culture of compliance and trial date certainty developed under the CPR has not been suspended by the pandemic. The court will expect parties to continue to make appropriate use of technology in the delivery of legal services and meeting deadlines.”
He said parties could not rely on “bald or vague statements of hardship” because of the pandemic but must give a good explanation for any breach of the rules.
“There is no doubt that thecovid19 pandemic has affected everyone globally.
“The great health risk posed by the spread of the virus through physical contact has brought many services to a halt. “What we as humans have been doing since March 2020 is making the necessary adjustments for our lives to continue.”
Holdip said there were consecutive covid19 practice directions which suspended filings and later introduced the filing of documents electronically.
“The legal practice and the Judiciary have had to shift to safer ground by going virtual and making more appropriate use of technology if only for this passage of time. This is nothing novel nor new for the delivery of justice under the CPR.
“…. In the throes of this pandemic with the restriction of face-to-face meetings, while our health must be a paramount concern, the wheels of justice must continue to turn. The overriding objective continues to apply and parties are to co-operate with each other and the court to give effect to the overriding objective. “
He said while the courts will be sympathetic to a litigant’s plight, bald statements of the impact of the pandemic “cannot be a cure-all for failures to comply with orders, rules and directions.
“While it may not be ‘business as usual,’ the court will expect parties to adapt to the changing times mindful of course of the principle of proportionality and ensuring that parties are on equal footing and afforded all elements
of procedural justice.”
Holdip said the pandemic did not relax the rules.
“There is nothing on the evidence to demonstrate any services impacted by the pandemic on the operations of either the attorney or client or their ability to communicate with one another to take or give instructions.
“A functioning internet service would have been the usual course of business for any attorney and corporate client having regard to the use of technology under the CPR.”
Maharaj has been in custody since his arrest in 2016.
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