AG v Bhojwani

JurisdictionJersey
CourtRoyal Court
JudgeJ. A. Clyde-Smith
Judgment Date06 January 2010
Neutral Citation[2010] JRC 2
Date06 January 2010

[2010] JRC 2

ROYAL COURT

(Samedi Division)

Before:

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

The Attorney General
and
Raj Arjandas Bhojwani

M. T. Jowitt, Esq., Crown Advocate.

Advocate J. D. Kelleher for the Defendant.

Authorities

Proceeds of Crime (Jersey) Law 1999.

Police Procedures and Criminal Evidence (Jersey) Law 2003.

AG v Bhojwani [2009] JRC 217 .

R v Radak (1999) 1 Cr.App.R.187 .

Criminal Justice (International Co-operation) (Jersey) Law 2001.

European Convention on Human Rights 2000.

Al Khawaja and Tabery v United Kingdom (2009) 49 EHRR 1 .

R v Horncastle and others [2009] EWCA Crim 964 and [2009] UKSC 14.

Criminal Justice Act 2003.

Criminal Justice Act 1988.

R v Dragic (1996) 2 Cr.App.R.232 .

R v Scott (1989) 89 Cr.App.R.153 .

R v Robb (1991–93) Cr.App.R.161 .

AG v Bhojwani [2009] JRC 210A .

Application to read Witness statements

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 is due to commence on 11 th January, 2010.

2

The prosecution apply by way of a pre-trial hearing to read the statements of Peter Yisa Gana, a Deputy Commissioner of the Nigerian Police Force (“Commissioner Gana”), dated 21 st January, 2003, 24 th February, 2005, 25 th November, 2005, and 5 th November, 2008, and Colonel Yakubu Bako, a retired officer in the Nigerian Army (“Colonel Bako”), dated 25 th November, 2005.

3

The application is made under Article 64(2)(b) of the Police Procedures and Criminal Evidence (Jersey) Law 2003 (“PPCE”), namely that Commissioner Gana and Colonel Bako are outside Jersey and it is not reasonably practical to secure their attendance.

4

The criminal conduct alleged in this case took place in Nigeria and the prosecution of the defendant has proceeded hitherto with the co-operation of the Attorney General of Nigeria, who gave a written undertaking dated 18 th January, 2006, that the Federal Government of Nigeria would use its best endeavours to ensure that necessary witnesses, including but not limited to Commissioner Gana and Colonel Bako, would travel from Nigeria to Jersey to attend the trial.

5

The history of the attendance of the Nigerian witnesses was covered in the hearing of 13 th November, 2009, and there is no need to repeat that here. Suffice it to say that on 15 th October, 2009, the defendant obtained declarations from the Nigerian Court that the authority in Nigeria that had supplied the Nigerian evidence to the Attorney General pursuant to letters of request, namely the Special Investigation Panel, had done so unlawfully under Nigerian law, which declarations Commissioner Gana had interpreted as an injunction preventing the Nigerian witnesses from attending. At my invitation, the Jersey Attorney General wrote to the Nigerian Attorney General on 13th November, 2009, in the following terms:-

Dear Attorney General,

Jersey Prosecution of Raj Arjandas Bhojwani for Money Laundering

I refer to the above matter and to the undertaking given by your predecessor, a copy of which I attach.

The trial in this matter is listed to commence on Tuesday 24th November, 2009.

The Jersey Court has requested that I write to you expressing my desire and the desire of the Court and defence counsel that all the Nigerian witnesses, that is to say:-

Mr. Nda

Mr. Al Hassan

Mr. Bawa

Mr. Gana and

Colonel Bako

attend in Jersey to give their evidence.

The Nigerian officer who has been liaising with the Jersey Police and arranging for the witnesses to travel to Jersey has suggested that there is an injunction in Nigeria which prevents the witnesses travelling for the trial. I have been asked by the Royal Court to enquire of you:

(a) whether there is such an injunction;

(b) if there is, who applied for it;

(c) If there is such an injunction, is there to be an application to lift it, if so, when that application is to be heard and what your assessment of the prospects of it being lifted is;

(d) if there is no injunction, whether you will use your best endeavours to procure that the following witnesses come to Jersey on the following dates:

(i) Mr Bako and Mr Bawa for 24th November, 2009;

(ii) Mr Gana for 7th December, 2009;

(iii)Mr Nda and Mr Al Hassan either 24th November, 2009, or beginning January, 2010.

I look forward to receiving your reply as a matter of urgency.

Yours sincerely,

T J Le Cocq

Attorney General”

6

The Nigerian Attorney General responded on 19 th November, 2009, in the following terms:-

“Jersey Prosecution of Raj Arjandas Bhojwani for Money Laundering

I refer to your letter of request Ref: No.: WJB/SB CRPR007-025 dated 2nd September, 2008, and my response to same Ref: DPPA/MLAT/007/09, dated 28 th April, 2009, informing you that the request is receiving attention. I further refer to your letter Ref: TJlEc/sb CRPR007–25 dated the 13th day of November, 2009.

2. After a very careful scrutiny of the circumstances surrounding the case, serious controversies bordering on Functions, Powers and Duties of Public Office holders under the Constitution of the Federal republic of Nigeria, 1999 emanated from the case which led to a Judgment delivered by the Federal High Court of Nigeria.

3. In the same vein, I hereby convey to you that the Federal Republic of Nigeria is ready to co-operate with you with a view to reviewing the evidence to determine if there are sufficient grounds to enable us to commence prosecution of the accused person (RAJ ARJANDAS BHOJWANI) in Nigeria on the generality of issues and more specifically on ‘ money criminally obtained from the Nigerian public purse” as observed in your letter of request.

4. We confirm that there is an ENROLMENT OF JUDGMENT ORDERS (sic) issued under the seal of the Court and the hand of the Presiding Judge, Hon. Justice G. O. Kolawole on 15th day of October, 2009, SUIT NO; FHC/ABJ/CS/560/2008, in the FEDERAL HIGH COURT OF NIGERIA, HOLDEN AT ABUJA, between RAJ ARJANDAS BHOJWANI (Plaintiff) AND (I) ATTORNEY-GENERAL OF THE FEDERATION; and (ii) NATIONAL SECURITY COUNCIL (Defendants) at the instance of RAJ ARJANDAS BHOJWANI wherein the Federal High Court declared;

‘that all evidence (oral and/or documentary) obtained by Deputy Commissioner of Police Peter Gana in his capacity as the Chairman of the Special Investigation Panel, for use against the Plaintiff in criminal proceeding in the States of Jersey was unlawfully obtained.’

(The copies of the Enrolment of Judgment Orders and the Judgment are hereby attached and marked as ANNEXURES 1 AND 11).

5. Consequent of the above, I am unable to oblige your request for any Nigerian witnesses to testify at the trial in Jersey as the crux of the matter is centred on the national interest and I have a Constitutional duty to protect the judicial integrity of the Federal Republic of Nigeria given that the judgment has become of public knowledge.

6. This is a constitutional matter and the Federal Government of Nigeria intends to vigorously pursue this matter to the Supreme Court of Nigeria for a final decision.

7. I take this opportunity to inform you that the Federal Republic of Nigeria intends to lodge a request for mutual assistance to Jersey to assist in gathering evidence and transmitting same to Nigeria. Therefore, all evidence gathered in Nigeria and transmitted to you by the said Special Investigation Panel should be returned to me.

8. In the meantime, in line with the said judgment I intend to instruct the appropriate constitutionally recognised investigative authorities to investigate the activities of RAJ ARJANDAS BHOJWANI.

9. I hereby confirm that based on the evidence that would be gathered in Nigeria by the constitutionally recognised investigative authority and any other evidence available to you that would be thus transmitted by Jersey, I would review the entire evidence obtained in view of assessing whether there is a case to answer against such persons including RAJ ARJANDAS BHOJWANI, and deciding whether it is in the Nigerian Public Interest that such a case be brought.

10 Please accept, my highest consideration and esteemed regards.

CHIEF MICHAEL KAASE AONDOAKAA, SAN

Honourable Attorney-General of the Federation and Minister of Justice.”

7

Of the five Nigerian witnesses, Mr Nda, Mr Al Hassan and Mr Bawa adduced documentation which I have now ruled admissible pursuant to Articles 65 and 66 of PPCE (see my judgment of 23 rd November, 2009, AG v Bhojwani [2009] JRC 217) and it is therefore only the witness statements of Commissioner Gana and Colonel Bako that the prosecution seek to have read. The prosecution seek a ruling in principle, accepting that there will be an editing process to be undertaken between the prosecution and the defence in relation to these statements. That part of Commissioner Gana's statement that relates to the “caution statement” PG/1 taken by him from the defendant will be the subject of a voir dire.

8

It is accepted that where, as here, it is the prosecution who seek to have statements admitted under Article 64, the onus is on it to satisfy the requirements and the standard of proof in relation to those requirements is the criminal standard (see R v Radak (1999) 1 Cr. App. R. 187 at page 195).

9

The defence submit that further steps should be taken by the prosecution before I can be satisfied that it is not reasonably practicable to secure the attendance of Commissioner Gana and Colonel Bako. The prosecution should write directly to Colonel Bako, who being retired is not now a public officer, requesting his attendance and offering to pay his reasonable and proper expenses. Enquiries should be made of the Nigerian Attorney General as to the progress on...

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1 cases
  • Bhojwani v AG
    • Jersey
    • Court of Appeal
    • 10 February 2011
    ...1 Cr. App. R. (S) 75 . R v Innospec 26 March 2010 . MacKenzie v AG [1995] JLR 9 . R v Mangena [2009] EWCA Crim 2535 AG v Bhojwani [2010] JRC 002 R v Mehta and others [2008] EWCA Crim 1491 . R v Lyon (2005) The Times 19 May 2005 . AG v Bhojwani [2009] JRC 207A . M. T. Jowitt, Esq., Cr......

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