AG v Bhojwani

JurisdictionJersey
CourtCourt of Appeal
JudgeSteel JA,McNeill JA,Martin JA
Judgment Date06 November 2008
Neutral Citation[2008] JCA 188
Date06 November 2008

[2008] JCA 188

COURT OF APPEAL

Before:

Dame Heather Steel, DBE, President;

J. W. McNeill, Esq., Q.C., and;

J. Martin, Esq., Q.C..

The Attorney General
and
Raj Arjandas Bhojwani

Advocate M. T. Jowitt for the Attorney General.

Advocate J. D. Kelleher and Advocate N. M. Langlois for the Defendant.

Authorities

Proceeds of Crime (Jersey) Law 1999.

R v Montila [2004] UKHL 50 .

Criminal Justice Act 1988.

Drug Trafficking Act 1994.

R v Boulanger [2006] 2 SCR 49 ; 2006 SCC 32.

R v Bembridge (1783) 3 Dougl. 327 ; 99 ER 679 (K.B.).

R v Llewellyn-Jones (1967) 51 Cr App R 204 .

R v Dytham (1979) 69 Cr App R 387 CA .

Shum Kwok Sher v HKSAR [2002] 5 HKCFAR 381 .

Question of Law Reserved (Number No2 of 1996) (1996) 67 SASR 63 .

Official Misconduct (1978) 2 Crim L.J. 307.

Corruption (Jersey) Law 2006.

La Cloche v La Cloche (1870) 4 Moo. P.C.C.N.S. 383 ; 16 ER.

Foster v The Attorney General [1992] JLR 6 .

Booth v Arnold [1895] 1 QB 571 .

Alexander v Jenkins [1892] 1 QB 797 .

A G v Le Quesne (1849) PC 276 .

AG v De St Croix (1858) PC 261 .

AG v Gosset (1886) PC 122 .

AG v Nicolle (1896) PC 276 .

Farley (1817) 6 PC 182 .

Le Petevin (1817) 6 PC 152 .

Le Maistre (1816) 6 PC 20 .

(unnamed) (1819) 6 PC 284.

Chevalier (1820) 6 PC 382 .

Nicolle (1823) PC 256 .

Arthur (1824).

AG v Urgate (1920) PC 154 .

AG v Langtry (1945) PC 249 .

AG v Dumond and Others (1945) PC 191 .

In re Yaheeb Trust [2003] JLR 92 .

R v Saik [2007] 1 AC 18 .

R v Brown (Vincent John) [2004] EWCA Crim 744 .

R v Montila [2004] 1 WLR 3141 .

Buttes Gas & Oil Co. v. Hammer [1982] AC 888 .

Kuwait Airways Corporation v. Iraq Airways Corporation (Nos. 4 and 5) [2002] 2 AC 883 .

Durant Intl Corp v AG [2006] JLR 31 .

Kirkpatrick & Co. Inc. v. Environment Tectonics Corporation International 110 SCT 701 (1990) .

R. v. Bow Street Magistrates Court ex parte Pinochet (No. 1) [1998] 3 WLR 1456 .

Privy Council in Civil Air Transport Incorporated v Central Air Transport Corporation [1953] AC 70 .

Fayed v Al-Tajir [1988] QB 712 .

Williams & Humbert Ltd v Rumasa SA [1986] AC 368 .

R v Debruiel (1861) 11 Cox CC 207 .

Renouf v Attorney General [1936] AC 445 .

Manning v Attorney General [2000] JLR 32 .

Police Procedures and Criminal Evidence (Jersey) Law 2003.

R v H [2007] 2 WLR 364 .

Criminal Justice Act 1987.

Indictment Rules 1972.

English Proceeds of Crime Act 2002.

Michel v Attorney General [2007] JCA 239 .

Michel and Gallichan v Attorney General [2006] JLR 287 .

Steel JA
1

On 6th and 7th October, 2008, we heard applications for leave to appeal and appeals arising out of two judgments, both dated 15th August, 2008, by Commissioner J.A. Clyde-Smith. One, to which we shall refer as 'the First Judgment', was given after a preparatory hearing in response to applications made to the Commissioner in respect of alleged abuse of process and non-justiciability. The other, to which we shall refer as 'the Second Judgment', was given after a preparatory hearing during which the Royal Court had heard applications on certain issues of law described under the headings "the predicate conduct application"; "the purpose application" and "the particularisation application". On 8th October, we announced our decisions and gave a short summary of our reasoning. This is the full Judgment of the Court.

The Circumstances alleged
2

The defendant faces an indictment, comprising two counts of converting the proceeds of criminal conduct contrary to Article 34(1)(b) of the Proceeds of Crime (Jersey) Law 1999 and one count of removing the proceeds of criminal conduct from the jurisdiction of Jersey contrary to the same statutory provision. In this judgment that statute will be referred to as "the 1999 Law". The defendant's trial is due to commence on 26th January, 2009.

3

The salient allegations relate to two contracts said to have been negotiated in 1996 and 1997 between the defendant and officials of the military dictatorship of General Sani Abacha, who was at that time the President of the Federal Republic of Nigeria ("the Federal Republic"). These contracts were for the supply of vehicles to the Federal Republic and the Attorney General alleges that the contracts were at significantly inflated prices. It is contended that an illegal surplus of some US$130M came into the defendant's accounts at Bank of India in Jersey. It is said that they were transferred by the defendant to bank accounts in other countries linked to the Abacha regime. It is said that the conversion involved some six banker's drafts and took place in October and November 2000. The Prosecution Case Statement runs to some 30 pages in which the case is set out in great detail together with various propositions of law and consequences.

The Indictment
4

The three counts in the indictment are in similar terms and may be illustrated by reference to the terms of count 1 which are as follows:-

" 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 converted the proceeds of criminal conduct, namely ... 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"

Or, as set out in the amended indictment:-

"... criminal conduct, namely:

(a) the dishonest inflation of true prices for motor vehicles sold by him to Nigeria;

... (conduct which, if it occurred in Jersey, would have constituted offences of fraud, conspiracy to commit fraud, fraudulent conversion, conspiracy to commit fraudulent conversion, and bribery), ..."

The Law
5

Article 34(1) of the 1999 Law provides:-

"(1) A person is guilty of an offence if the person -

(a) conceals or disguises any property that in whole or in part represents the person's proceeds of criminal conduct; or

(b) converts or transfers that property or removes it from the jurisdiction ,

for the purpose of avoiding prosecution for an offence specified in Schedule 1 or the making or enforcement in the person's case of a confiscation order." .

6

Article 1 of the 1999 Law defines "criminal conduct" as:-

"... conduct, whether occurring before or after Article 3 comes into force, that -

(a) Constitutes an offence specified in Schedule 1; or

(b) If it occurs or has occurred outside Jersey, would have constituted such an offence if occurring in Jersey" .

7

Schedule 1 provides, among other matters, as follows:-

"OFFENCES FOR WHICH CONFISCATION ORDERS MAY BE MADE

Any offence in Jersey to which a person is liable on conviction to imprisonment for a term of one or more years (whether or not the person is also liable to any other penalty), but not being -

(a) any drug trafficking offence; or

(b) an offence under any of Articles 15 to 18 of the Terrorism (Jersey) Law 2002" .

The contentions
8

The contention in the Prosecution Case Statement before the Learned Commissioner was that the alleged criminal conduct which gave rise to the proceeds (referred to variously as the "predicate offence" or the "predicate conduct") was constituted through an alleged offence of misconduct in public office. On 15th August, 2008, the learned Commissioner found, among other matters, (a) that the offence of misconduct in public office was not known to Jersey customary law and (b) that the indictment was deficient in that it contained no particulars of the predicate conduct and did not identify the Jersey offence or offences which the prosecution asserted the conduct constituted. Following that decision, the Attorney General served an amended indictment and served an addendum to the Case Statement showing a basis of the predicate conduct as:-

  • (i) Fraud, in accordance with the elements of the offence as set out in this jurisdiction in Foster v. Attorney General [1992] JLR 6, 26 (commonly referred to in this jurisdiction as "Foster fraud");

  • (ii) Conspiracy to commit fraud;

  • (iii) Fraudulent conversion;

  • (iv) Conspiracy to commit fraudulent conversion; and

  • (v) Bribery.

9

Given that the Attorney General challenges the Commissioner's finding in respect of misconduct in public office, the defendant also faces a case where misconduct in public office is the Predicate Offence contended for. In this judgment we deal with the various applications and appeals before us in the following order:-

  • (i) the Attorney General's Appeal against the Commissioner's finding that Misconduct in a Public Office was not an offence known to Jersey Law;

  • (ii) the Defendant's Appeal against the Commissioner's ruling that there is no burden on the prosecution under the 1999 Law to prove that the Defendant had committed an offence for which he was seeking to avoid prosecution;

  • (iii) the Defendant's appeal against the Commissioner's ruling that the issues raised in the indictment were non-justiciable;

  • (iv) the Defendant's application for leave to appeal against the Commissioner's ruling in respect of the Larceny Act;

  • (v) the Defendant's application for leave to appeal against the Commissioner's ruling that the Appellant was not entitled to orders in respect of failure of disclosure on the part of the Crown; and

  • (vi) the Defendant's application for leave to appeal against the Commissioner's ruling that the Prosecution must particularise in the Indictment the equivalent conduct offences.

DISCUSSION OF ISSUES
I Whether Misconduct in a Public Office is an offence known to Jersey Law
10

The Attorney General appealed, with leave, the ruling made in the Second Judgment that Misconduct in a Public Office is not an offence known to Jersey customary law.

11

...

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3 cases
  • Bhojwani v AG
    • Jersey
    • Court of Appeal
    • 10 February 2011
    ...contrary to Article 34(1)(b) of the Proceeds of Crime (Jersey) Law 1999. Authorities Proceeds of Crime (Jersey) Law 1999. AG v. Bhojwani [2008] JCA 188 . Bhojwani v. AG [2009] JCA 115A . Cox v Army Council Respondents [1963] AC 48 . Court of Appeal (Jersey) Law 1961. R v Ghosh [1982] ......
  • AG v Bhojwani
    • Jersey
    • Royal Court
    • 28 January 2009
    ...the Defendant. Authorities 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 Sul......
  • AG v Bhojwani
    • Jersey
    • Court of Appeal
    • 8 June 2009
    ...of America [2008] 1 AC 920 . Road Traffic Act 1960. In re Collins (No 3) (1905) 10 CCC 80 . AG v Thwaites [1978] JJ 179 . AG v Bhojwani [2008] JCA 188 . Renouf v AG (1936) AC 455 . Les Lois et Coutumes de L'ile de Jersey, Poingdestre. Privileges loix et coustumes de l'isle de Jersey, Le Gey......

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