AG v Bhojwani
| Jurisdiction | Jersey |
| Court | Royal Court |
| Judge | J. A. Clyde-Smith |
| Judgment Date | 28 January 2009 |
| Neutral Citation | [2009] JRC 13 |
| Date | 28 January 2009 |
[2009] JRC 13
ROYAL COURT
(Samedi Division)
J. A. Clyde-Smith, Esq., sitting alone.
Advocate M. T. Jowitt for the Attorney General.
Advocate J. D. Kelleher for the Defendant.
Proceeds of Crime (Jersey) Law 1999.
Police Procedures and Criminal Evidence (Jersey) Law 2003.
AG v Bhojwani [2008] JCA 188.
Foster v Attorney General [1992] JLR 6.
Chief Officer v Minwalla [2007] JLR 409.
Larceny Act 1916.
Theft Act 1968.
Theft Act 1979.
R v Sullivan (1945) 30 Cr App R 132.
Barrette v Attorney General [2006] JLR 407.
R v PS, CS (2007) EWCA Crim 2058.
R v Hamilton [1991] 92 Cr App R 54.
R v Olden (2007) EWCA Crim 726.
R v Kiernan (2008) EWCA Crim 972.
Cox v Army Council (1963) AC 48.
Attorney General's Reference No. 3 of 2003, 2005 QB 73.
Norris v Government of the United States of America (2008) 2 WLR 673.
Jowitt's Dictionary of English Law.
Les Lois et Coutumes de L'ile de Jersey, Poingdestre.
Privileges loix et coutumes de l'ile de Jersey, Le Geyt.
Constitution, Les Loix, et les Usages, Le Geyt.
AG v Langtry (1945) PC 249.
AG v Thwaites (1978) JJ 179.
In the matter of the Yaheeb Trust, Havannah Trust and the Yaheeb No. 2 Trust [2003] JLR 92.
Corruption (Jersey) Law 2006.
Poursuites Criminelles.
Christian v The Queen (2007) 2 AC 400.
English Sexual Offences Act 1956.
Operative deception in relation to fraud, transposition and misconduct in public office and bribery as customary law offence applications.
THE COMMISSIONER:
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 (“the 1999 Law”). His trial is due to commence on 21st April 2009.
On 12th January 2009, I heard three applications by the defence which I had earlier ordered to be suitable for a preparatory hearing under Part 10 of the Police Procedures and Criminal Evidence (Jersey) Law 2003, following which my decision was reserved.
Count 1 of the amended indictment (the remaining counts being in similar terms) is as follows:-
“COUNT 1
Statement of Offence
Converting the proceeds of criminal conduct, contrary to Article 34(1)(b) of the Proceeds of Crime (Jersey) Law 1999
Particulars of Offence
Raj Arjandas BHOJWANI between the 1st October, 2000 and 30th October, 2000, in respect of criminal conduct, namely:
(a) the dishonest inflation of true prices for motor vehicles sold by him to Nigeria;
(b) the making of false representations that:
(i) the inflated prices were genuine prices;
(ii) it was necessary to pay US$ 148,940,000 plus freight and other charges or about that sum in order to obtain the vehicles sold under one contract; and
(iii) it was necessary to pay US$ 28,961,192 or about that sum in order to obtain the vehicles sold under the other contract.
(c) the obtaining of dishonestly inflated payments for the vehicles out of Nigerian public funds;
(d) the dishonest receipt for the benefit of himself and others of the inflated payments thereby obtained
(e) the dishonest payment of monies by or on the instructions of the said Raj Arjandas Bhojwani to bank accounts connected to Nigerian public officials involved in the award of vehicle-supply contracts to TaTa Overseas Sales and Services Ltd.
(conduct which, if it occurred in Jersey, would have constituted offences of misconduct in public office, fraud, conspiracy to commit fraud, fraudulent conversion, conspiracy to commit fraudulent conversion, and bribery),
converted his proceeds to such criminal conduct, held in the names of TaTa Overseas Sales and Services Ltd SA and Britannic Trade Corporation namely credit balances at the Bank of India in Jersey, into six bankers' drafts totalling approximately US$ 43.9 million, for the purpose of avoiding prosecution for an offence listed in Schedule 1 to the said Law or the making or enforcement of a confiscation order against him.”
As can be seen, the indictment as now amended includes misconduct in public office as one of the predicate offences, and this following the decision of the Court of Appeal on 6th November 2008 ( (2008) JCA 188) that misconduct in a public office is an offence known to Jersey customary law.
The criminal conduct alleged concerns two contracts negotiated between the defendant and officials of the military dictatorship of the President of the Republic of Nigeria, General Sani Abacha, in 1996 and 1997 for the supply of vehicles to the Republic of Nigeria at what the prosecution say were vastly inflated prices. The prosecution will seek to prove that the sums payable under these contracts, which it claims included an illegal surplus of some US$ 130M, came to the defendant's company accounts at Bank of India in Jersey. Many millions were then allegedly transferred by the defendant to bank accounts in other countries linked to the Abacha regime. The alleged conversion and removal, which are the subject of the indictment and which involve some six banker's drafts, are said to have taken place in October and November 2000.
I take each of the three applications in turn.
In Foster v Attorney General [1992] JLR 6, the Court of Appeal found that in order to establish criminal fraud under Jersey law it is necessary to show that:-
-
(i) The defendant deliberately made a false representation
-
(ii) with the intention of causing thereby
-
(iii) and with the resulting fact of causing thereby
-
(iv) actual prejudice to someone and actual benefit to himself or somebody else.
The defence application relates to the third element. The defence submits that the offence so defined requires the prosecution to prove that the alleged false representation acted on the mind of the victim of the alleged fraud so as to be the effective cause of prejudice to the alleged victim. They refer to this as a requirement for “ effective cause” and/or “ operative deception”.
Although Mr Kelleher submitted that under English law there is little distinction in practice between the expressions “effective cause” and “operative deception” as used in references to cases of false pretence under the Larceny Act 1916 and deception offences under the Theft Act 1968, for the purposes of this judgment I am going to refer to “operative deception” as the requirement, contended for by the defence, that the prosecution must prove that the alleged false representation acted on the mind of the victim of the alleged fraud. Whether there should be a causal link between the false representation and the actual prejudice to the victim is plain from the third element of the offence as set out in Foster and the prosecution accept that this is the case. The issue is whether that causal link has to be by acting through the mind of the victim.
The defence further submitted that, other than in exceptional circumstances, it is for the prosecution to prove operative deception by the direct evidence of the person or party alleged to have been induced to act as a consequence of the alleged false representation. In this case, that must be evidence of the person properly authorised to give evidence for and on behalf of the Federal Republic of Nigeria. The application is significant for the defence, as it submits that the prosecution case contains no evidence of operative deception and never has.
The requirement for the prosecution to prove operative deception is clear, the defence contend, from the plain language of the Court of Appeal formulation in Foster. It relies by way of authority for this proposition on the judgment in Chief Officer v Minwalla [2007] JLR 409. That case concerned an application by the Chief Officer for determination by the Court that the assets of a trust represented the proceeds of criminal conduct. The Court was concerned with the fourth element in Foster, namely actual prejudice to the victim (referred to as “PIA”). Quoting from the relevant part of paragraph 59 of the judgment of Birt, Deputy Bailiff:-
“ Mr Cadin submits that there is no evidence of actual prejudice to PIA in this case whether in relation to the lease agreements or the purchase of the aircraft. We agree for the following reasons:-
…
(vi) Inspector Faudemer conceded that the police had made no enquiries as to whether PIA had paid a fair price for the aircraft or could have obtained them for less elsewhere. He accepted the existence of the independent valuation from the American aviation consultants but said that he wished to visit them in order to see whether they had been bribed to provide such a valuation. Nevertheless the fact remains that there is no evidence before us to suggest that the purchase of the aircraft was in any way detrimental to PIA .
(vii) This is further supported by the fact that, in most cases of fraud, a victim comes forward to assert that, if only the false statement had not been made to him, he would not have acted as he did. That is a necessary element in order to prove the offence. Here, there is no evidence before us that PIA has complained to anyone that it regrets the lease or purchase of the aircraft. Despite the fact that the Jersey police have alerted the National Accountability Board in Pakistan (the anti corruption authority) which has in turn made enquiries of PIA, there is no evidence of any complaint by PIA or any civil action against Cathay by PIA. There is no evidence that PIA has stated that, if only it had known that the representation in the broker clause was false and that payments had been made to DM and in turn to Mr Casey, Mr Hasan or Mr Hussein, it would not have agreed to lease or purchase, as the case may be, or would not have agreed the rental or purchase price in...
To continue reading
Request your trial