AG v Bhojwani

JurisdictionJersey
CourtRoyal Court
JudgeBailiff
Judgment Date23 February 2010
Neutral Citation[2010] JRC 42
Date23 February 2010

[2010] JRC 42

ROYAL COURT

(Samedi Division)

Before:

M. C. St. J. Birt, Esq., Bailiff, sitting alone.

The Attorney General
and
Raj Arjandas Bhojwani

Advocate H. Sharp for the Attorney General.

Advocate N. L. M. Langlois for the Applicant.

Advocate N. M. Santos Costa for the Attorney General of Nigeria.

Authorities

Royal Court Rules 2004.

Proceeds of Crime (Jersey) Law 1999.

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

Criminal Justice (International Co-Operation) (Jersey) Law 1999.

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

Prevention of Terrorism (Temporary Provisions) Act 1989.

Supreme Court Act 1981.

States of Jersey Law 2005.

Investigation of Fraud (Jersey) Law 1991.

R v CII and others [2008] EWCA Crim 3062 .

R v Director of Public Prosecutions ex parte Kebilene & Others [2000] 2 AC 326 .

Sharma v Brown-Antoine [2007] 1 WLR 780 .

Trant v Attorney General [2007] JCA 073 .

Acturus Properties Limited v Attorney General [2001] JLR 43 .

Welsh v Deputy Judicial Greffier [2009] JCA 145C .

Application for judicial review.

Bailiff

THE

1

This is an application by Raj Arjandas Bhojwani (“the applicant”) under Rule 16/2 RCR 2004 for leave to apply for judicial review in respect of a decision of the Attorney General dated 5th January, 2010. In accordance with Rule 16/2(5), I have heard from counsel for the Attorney General as well as counsel for the applicant. I also agreed to hear from counsel for the Attorney General of Nigeria who wishes to seek leave to intervene in the proceedings if leave is granted to the applicant.

2

Although this is only an application for leave, it is necessary to set out the factual background in some detail in order fully to understand the arguments which have been made. However, the essential nature of the matter at issue can be shortly stated. The applicant is at present on trial in Jersey for various money laundering offences. Part of the Prosecution case includes evidence obtained from Nigeria pursuant to a letter of request. Following a decision by the Federal High Court of Nigeria that the evidence was obtained incorrectly and unlawfully under Nigerian law, the Attorney General of Nigeria has asked that the evidence be returned and not used in the Jersey proceedings.

3

The Attorney General has refused to return the original evidence or to desist from using the evidence in the current criminal proceedings in Jersey. The applicant has applied to Commissioner Clyde-Smith, who is presiding in the criminal trial, for a ruling that the evidence should not be admitted, alternatively that it would be an abuse of process for the evidence to be adduced. That application has been rejected by the Commissioner. The trial began on 26th January and in fact the evidence has now been adduced. I was informed that the Prosecution has closed its case, the Defence case is in the course of being heard and the trial is expected to be concluded during the course of next week.

4

The applicant now seeks to quash the decision of the Attorney General to adduce the evidence in the criminal trial and to refuse the request to the Attorney General of Nigeria for the immediate return of the evidence.

Factual background
5

At the material time, the applicant was resident in Nigeria. It is alleged by the Prosecution that he was party to two contracts in 1996 and 1997 negotiated with officials serving as part of the military dictatorship of General Abacha, who was at the time the de facto President of Nigeria. These contracts were for the supply of vehicles to Nigeria and it is alleged that the contracts were at significantly inflated prices such that an illegal surplus of about US$130 million came into the applicant's bank accounts in Jersey. It is alleged that the surplus was transferred by the applicant to bank accounts in other countries linked to the Abacha regime. The applicant has been charged with two counts of converting the proceeds of his criminal conduct and one count of removing the proceeds of his criminal conduct, contrary to the provisions of Article 34(1)(b) of the Proceeds of Crime (Jersey) Law 1999. Amongst other things therefore, the Prosecution must establish that the subject matter of the alleged money laundering was in fact the proceeds of the applicant's criminal conduct.

6

The applicant was indicted in February 2007 but the matter had been under investigation for many years. The first letter of request from the Attorney General to the Nigerian authorities was dated 17th June, 2002. The following description of the sequence of events is taken substantially from the judgment of the Commissioner dated 9th November, 2009, as these matters do not appear to be in dispute.

7

The first letter 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.”

8

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 applicant that was being examined. It listed the then indicated predicate offences, the money laundering offences (with which the applicant has been charged) and other substantive offences.

9

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 public funds. He was given the specific power to represent Nigeria before any jurisdiction, authority, administration, arbitration tribunal, insurance company, bank, Swiss or foreign institution, official or private assembly and towards all third parties, in particular the Swiss Federal Office for Police Matters and the competent cantonal judicial authorities.

10

The letter of request was also sent to the Nigerian Government's English lawyers, Kingsley Napley, with a similar request. Commissioner Clyde-Smith was shown a copy letter from the Nigerian National Security Adviser Lieutenant General A Mohammed Gcon to the President of Nigeria dated 27 th September, 2002, informing him of the Attorney General's request for evidence and that Commissioner Gana had been instructed to liaise with the affected ministries to get the necessary documents. He indicated that it might be necessary for the President to talk to these ministries in order to hasten action and that he may wish to refer the letter to the Nigerian Attorney General for further advice. The letter appears to be annotated in the hand of the President to the affected ministries asking them to please forward all relevant documents to the National Security Adviser.

11

A second letter of request similarly addressed was sent on 15 th November, 2002, but it constitutes in essence a chaser, in particular because the Attorney General had heard that the applicant had been interviewed in relation to these matters. Kingsley Napley confirmed by letter dated 20 th November, 2002, that it was being forwarded to the Nigerian Attorney General and Commissioner Gana inter alia.

12

Commissioner Gana took a statement from the applicant on 11 th October, 2002, and statements from a number of other persons and on 21 st January, 2003, he signed a States of Jersey police statement headed “Article 9 Criminal Justice (Evidence and Procedure) (Jersey) Law 1998 to which he attached those statements and the documents that had been gathered by him. He describes his role as follows:-

“I am the Deputy Commissioner of the Nigerian Police Force and I am also head of the Special Investigation Panel in the office of the National Security Adviser to the President of Nigeria. I have been a police officer for the past eighteen years.”

The statement ended as follows:-

“I produce these documents in response to a letter of request from the Attorney General for Jersey dated 17/06/02 issued under Article 4 of the Criminal Justice (International Co-operation) (Jersey) Law 2001.”

13

On 24 th February, 2005, Commissioner Gana executed a further States of Jersey police statement which, for reasons which are not clear, he said was in response to the chaser letter of request of 15 th November, 2002, and to which he attached the statements produced earlier, together with a number of other statements and documents.

14

On 18 th January, 2006, the then Attorney General of...

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