AG v Bhojwani

JurisdictionJersey
CourtRoyal Court
JudgeJ. A. Clyde-Smith
Judgment Date09 November 2009
Neutral Citation[2009] JRC 216
Date09 November 2009

[2009] JRC 216

ROYAL COURT

(Samedi Division)

Before:

J. A. Clyde-Smith, Esq., Commissioner, sitting alone.

The Attorney General
and
Raj Arjandas Bhojwani

M. T. Jowitt, Esq., for the Attorney General.

Advocate J. D. Kelleher for the Defendant.

Authorities

Proceeds of Crime (Jersey) Law 1999.

Criminal Justice (International Co-operation)(Jersey) Law 2002.

Police Procedures and Criminal Evidence (Jersey) Law 2003.

R v Beckford (1996) 1 Cr. App. R.94.

Warren and Others -v- AG [2008] JCA 135.

Panday -v- Virgil (Senior Superintendent of Police) (2008) 3 WLR 296.

Criminal Justice (Evidence and Procedure)(Jersey) Law 1998.

Criminal Matters within the Commonwealth (Enactment and Enforcement) Act 2004.

Durant International Corp -v- Attorney General [2006] JLR 112.

The Attorney General, of the Federal Republic of Nigeria -v- Mrs Maryam Abacha and others (2001) WL 542308.

R -v- Malcolm Gooch (1991) 1 Cr. App. R.(S) 283.

Criminal Justice (International Co-operation) Act 1990.

Extradition and Mutual Assistance 2001.

R -v- Ibori (2008) All ER (D)36.

R -v- Gordon Foxley [1995] 2 C.r.App. R. 523.

R -v- Khan (1997) AC 558.

R -v- CII [2008] EWCA Crim 3062.

Stay for Abuse and Subsidiary Applications to exclude Evidence

THE COMMISSIONER:

1

The defendant stands indicted for two counts of converting the proceeds of criminal conduct and one count of removing the proceeds of criminal conduct, contrary to the provisions of Article 34(1)(b) of the Proceeds of Crime (Jersey) Law 1999. His trial was due to commence on 9 th November, 2009, but as a consequence of this application is now due to commence on 16 th November, 2009.

2

The defence have applied for a stay of the prosecution. It does so on the ground that it would be an abuse of process for the prosecution to proceed relying on evidence obtained in Nigeria and/or transferred to Jersey and/or adduced by Nigerian public officers as a consequence directly or indirectly of the request made by the Attorney General in two letters of request dated 17 th June, 2002, and 15 th November, 2002, issued under Article 4 of the Criminal Justice (International Co-operation)(Jersey) Law 2002 (“the Co-operation Law”). It described this as the “over-arching application”.

3

Within the over-arching application are two subsidiary applications as follows:-

  • (i) It applies (in addition or in the alternative) for the exclusion of the Nigerian evidence on the ground that it was obtained pursuant to letters of request which disclosed only that evidence was sought for use in connection with an “investigation”, such that its use as evidence at trial would be for a purpose other than that disclosed in the letters of request without the consent of the Federal Republic of Nigeria and this in breach of Article 4 of the Co-operation Law. As to the absence of “consent” the declarations of the Honourable Justice G. O. Kolawole in a decision of the Federal High Court of Nigeria dated 15 th October, operate, on their face, to preclude the giving of effective “consent” or negate the existence of any prior actual or implied “consent” by the “…. Court, tribunal or authority that supplied the evidence ….”. At the hearing the defence also sought the exclusion of the Indian evidence obtained by virtue of a letter of request dated 19 th April, 2005, addressed to the Indian authorities on the basis that the Indian authorities had not given their consent for its use.

  • (ii) It applies (in addition or in the alternative) for the exclusion of an exhibit to the witness statement of Nigerian Commissioner of Police, Peter Gana (“Commissioner Gana”) in the form of a statement purportedly given by the defendant under caution on 11 th October, 2002, and exhibited as PG/1. It does so applying Article 76 of the Police Procedures and Criminal Evidence (Jersey) Law 2003 (“PPCE”) and on the ground that the admission of the evidence would, because it was obtained by deceit or trick and/or because if the relevant conduct was transposed to Jersey it would breach PPCE and the relevant codes of practice and so adversely affect the fairness of the proceedings that the Court ought not to admit it.

4

For the purpose of the over-arching and first subsidiary applications the defence accept that there is no adverse impact on the quality of the evidence arising from the circumstances in which it was obtained and the defence is not complaining that the admission of this evidence would prejudice the fairness of the defendant's trial.

5

In my judgment of 11 th April, 2008, I accepted that the Court had the power to stay a prosecution in cases, applying R -v- Beckford (1996) 1 Cr. App. R. 94,:-(a) where the Court concludes that the defendant cannot have a fair trial; or (b) where the Court concludes that it would be unfair for the defendant to be tried.

The defendant's over-arching application is put on the basis of limb (b).

Applicable Law
6

Since my judgments of 11 th April and 15 th August, 2008, the nature and extent of the Court's jurisdiction to stay proceedings as an abuse of process has been examined by the Court of Appeal in Warren and Others -v- AG [2008] JCA 135 at paragraphs 2–44. The Court of Appeal referred (at paragraph 41) to the recent Privy Council case of Panday -v- Virgil (Senior Superintendent of Police) (2008) 3 WLR 296 and the following passage from the judgment of Lord Brown:-

“It will readily be seen that the factor common to all these cases, indeed the central consideration underlying the entire principle, is that the various situations in question all involve the defendant standing trial when, but for an abuse of executive power, he would never have been before the court at all. In the wrongful extradition cases the defendant ought properly not to have been within the jurisdiction; only a violation of the rule of law had brought him here. Similarly, in the entrapment cases, the defendant only committed the offence because the enforcement officer wrongly incited him to do so. True, in both situations, a fair trial could take place, but given that there should have been no trial at all, the imperative consideration became the vindication of the rule of law.”

7

The Court of Appeal described the Court's jurisdiction to stay proceedings as follows (paragraph 43):-

“In our judgement, what underlies the court's jurisdiction to stay proceedings as an abuse of process is the court's inescapable duty to secure fair treatment for those who come or are brought before it. The court has jurisdiction to stay proceedings in circumstances in which a fair trial is not possible. It has jurisdiction to stay, also, where proceedings have only been made possible by executive action done in breach of the rule of law and where, as a result of such action, it would be unfair to try the accused at all.”

8

At paragraph 44, the Court of Appeal set out the approach to be taken to the exercise of the jurisdictions to stay in any particular case as follows:-

“In determining whether to stay proceedings where there has been an abuse of executive power, the court has to perform a balancing exercise. “Weighing countervailing considerations of policy and justice, it is the judge in the exercise of his discretion to decide whether there has been an abuse of process.” In reaching that decision in a case such as the present “the judge must weigh in the balance the public interest in ensuring that those who are charged with grave crimes should be tried and the competing public interest in not conveying the impression that the court will adopt the approach that the end justifies any means.” ( R v Latif (1996) 1 WLR 104 at pages 112 – 113).”

Relevant History
9

The first letter of request was dated 17 th June, 2002, and opened as follows:-

“The Competent Judicial Authority, the Federal Republic of Nigeria

Commission Rogatoire

Her Majesty's Attorney General for the Bailiwick of Jersey respectfully presents his compliments to the Competent Judicial Authority of the Federal Republic of Nigeria and requests that consideration be given to providing assistance as requested in this letter.

Her Majesty's Attorney General for Jersey has commenced an investigation into the circumstances surrounding the payments into Jersey of large sums of money suspected to be connected to the late Head of State of the Federal Republic of Nigeria: General Sani Abacha.

Her Majesty's Attorney General therefore issues this letter of request under Article 4 Criminal Justice (International Co-operation)(Jersey) Law 2001.”

10

The letter went on to set out the facts in some detail and then to list the material that would provide relevant evidence to assist in the resolution of the investigation which included a request if appropriate for witness statements or evidence on oath. The letter then set out the offences under investigation and made it clear that it was the conduct of the defendant that was being examined. It listed the then indicated predicate offences, the money laundering offences (with which the defendant has been charged) and other substantive offences.

11

The letter of request was sent to Mr E Monfrini of the Swiss law firm of Monfrini Bottge & Associés with the request that it be transmitted to the competent authorities in Nigeria. There was also a request for a meeting with Commissioner Gana to discuss the future progress of the Jersey investigation. Mr Monfrini held a power of attorney given to him by the Attorney General of Nigeria dated 27 th September, 1999, to assist and represent Nigeria for the purpose of international mutual assistance proceedings to be initiated in Switzerland and elsewhere in the world in relation to the recovery of looted monies by the late Head of State, General Sani Abacha and his family members and other public servants and other third parties who had used their position or participated as accomplices to misappropriate...

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1 cases
  • Bhojwani v AG
    • Jersey
    • Court of Appeal
    • 10 February 2011
    ...EWCA Crim 3062 . Buttes Gas and Oil Co [1982] AC 888 . Buttes Gas and Oil Co [1981] 1 QB 223 . R v. Khan [1997] AC 558 . AG v Bhojwani [2009] JRC 216 . AG v Bhojwani [2010] JRC 042 . R v. Galbraith [1981] 1 WLR 1039 . Archbold, Criminal Pleading, Evidence & Practice (2010). R v P [2......

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