AG v Bhojwani

JurisdictionJersey
CourtRoyal Court
JudgeJ. A. Clyde-Smith
Judgment Date04 November 2009
Neutral Citation[2009] JRC 207A
Date04 November 2009

[2009] JRC 207A

ROYAL COURT

(Samedi Division)

Before:

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

The Attorney General
and
Raj Arjandas Bhojwani

Advocate M. T. Jowitt for the Attorney General.

Advocate J. D. Kelleher for the Defendant.

Authorities

Proceeds of Crime (Jersey) Law 1999.

Criminal Procedure (Notice of Expert Evidence) Rules 2000.

R -v- Ghosh (1982) QB 1053.

Human Rights (Jersey) Law 2000.

Michel and Gallichan -v- AG [2006] JCA 152.

Archbold 2009 10–65.

R -v- Bonython (1984) 38 SASR 45.

Customglass Boats Ltd and Another -v- Salthouse Brothers Ltd and Another (1976) RPC.

Expert Evidence-Test for dishonesty

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 (“the 1999 Law”). His trial is due to commence on 9 th November, 2009.

2

The defence have given the prosecution notice under Article 3 of the Criminal Procedure (Notice of Expert Evidence) Rules 2000 of its intention to adduce the evidence at trial of three expert witnesses, namely Professor Femi Odekunle (“Prof Odekunle”), Mr Antony Goldman (“Mr Goldman”) and Mrs Ayo Obe (“Mrs Obe”) (together “the Nigerian Experts”) and have supplied the prosecution with copies of their reports. The expert evidence is directed in the main at the issue of dishonesty (although potentially to other issues). At a pre—trial hearing on 15 th September the prosecution contended that to the extent that the expert evidence was directed to the issue of dishonesty, it was inadmissible as a matter of law because dishonesty is the ultimate issue for the Jurats alone to decide. It became clear that the parties were not agreed on the test for dishonesty to be applied in this case and that issue was therefore adjourned for the filing of skeleton arguments and submissions which were made before the Court on 8 th October, when judgment was reserved.

3

To put the argument in context, I set out below count 1 of the indictment (the remaining counts are in similar terms):-

“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),

Converted his proceeds of such criminal conduct, namely credit balances held in the names of TaTa Overseas Sales and Services Ltd SA and Britannic Trade Corporation 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.”

4

The criminal conduct alleged took place in Nigeria and 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$ 130 million, 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 bankers' drafts, are said to have taken place in October and November 2000.

5

Pursuant to the definition of “criminal conduct” in Article 1 of the 1999 Law, it is necessary for that conduct to be transposed to Jersey:-

“criminal conduct” means 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”.

6

The Court of Appeal has approved the following four stage approach to the process of transposition as follows (quoting from my judgment of 1 st October 2008):-

“(i) The first stage, which is evidential, is for the Jurats to determine whether they are sure that the conduct set out in each of the sub-paragraphs of the particulars in the count took place. If they are not sure that any of the conduct particularised took place, then they will acquit. If they are sure that some, if not all, of the conduct set out in the particulars took place, then they will move on to the second stage.

(ii) The second stage, also evidential, is for the Jurats to determine whether they are sure that “the property” referred to in the count represents the defendant's proceeds of such conduct, to the extent proved. If they are sure, then they will move on to the third stage. If not sure they will acquit.

(iii) The third stage is the process of transposition of the conduct, to the extent proved, to Jersey, which in this case can be achieved with very little substitution of the circumstances (as referred to in the extract of Lord Millet's judgment cited in paragraph 95 of Norris). Assuming, for the sake of argument, all of the particulars of the alleged conduct in count one are proved, that conduct can be transposed to Jersey by making the following limited amendments to the particulars (the amendments are underlined):-

“(a) the dishonest inflation of true prices for motor vehicles sold by a person (through a company) to Jersey.

(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 Jersey 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 person to bank accounts connected to Jersey public officials involved in the award of vehicle-supply contracts to the company”

I will refer to this as “the transposed conduct”.

(iv) The fourth stage is the process by which the elements of the Jersey offences are applied to the transposed conduct. It is only if all the elements in respect of at least one of the Jersey offences are found by the Jurats to be present in the transposed conduct, that the conduct is constituted “criminal conduct”. They will be directed as to the elements of the Jersey offences. If they find that all the elements of at least one Jersey offence are present in the transposed conduct then the second element of the offence charged in the count is proved. If not they will acquit.”

7

The prosecution and the defence agree that the conduct transposed must include both the actus reus and mens rea so that the prosecution must prove dishonesty within the first evidential stage.

8

The defence contend that the Jurats must judge the issue of dishonesty, i.e. the defendant's actual state of mind, by reference to the ordinary standards prevailing in Nigeria in 1996 and 1997 and not by what it describes as “Jersey standards”.

9

The prosecution say the test for dishonesty under Jersey law is that applied in R -v- Ghosh (1982) QB 1053 as follows:-

“Take for example a man who comes from a country where public transport is free. On his first day here he travels on a bus. He gets off without paying. He never had any intention of paying. His mind is clearly honest; but his conduct, judged objectively by what he has done, is dishonest. It seems to us that in using the word “dishonestly” in the Theft Act 1968, Parliament cannot have intended to catch dishonest conduct in that sense, that is to say conduct to which no moral obloquy could possibly attach … A man's belief and his willingness to pay are things which can only be established subjectively. It is difficult to see how a partially subjective definition can be made to work in harness with the test which in all other respects is wholly objective.

If we are right that dishonesty is something in the mind of the accused (what Professor Glanville Williams calls “a special mental state”), then if the mind of the accused is honest, it cannot be deemed dishonest merely because members of the jury would have regarded it as dishonest...

To continue reading

Request your trial
8 cases
  • Bhojwani v AG
    • Jersey
    • Court of Appeal
    • 10 February 2011
    ...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., Crown Advocate J. D. Kelleher for the Applicant. The President: Introduction 1 This is the judgment of the Court. It ......
  • Doraville Properties Corporation v HM Attorney General
    • Jersey
    • Royal Court
    • 11 March 2016
    ...Asset Recovery (International Cooperation)(Jersey) Law 2007. Royal Court Rules 2004. R -v- Bonython (1984) 38 SASR 45. AG -v- Bhojwani [2009] JRC 207A. Phipson on Evidence 18 th Edition. Dixon and Jefferson Seal Ltd [1998] JLR N11a. Barings Plc & Anor -v- Coopers & Lybrand (A Firm) ......
  • The Attorney General v L
    • Jersey
    • Royal Court
    • 4 December 2018
    ...Procedures and Criminal Evidence (Jersey) Law 2003. AG -v- Rzeszowski [2012] (2) JLR 135 AG -v- Da Silva [2007] JRC 217 AG -v- Bhojwani [2009] JRC 207A Lekkerkerker -v- AG [2014] (1) JLR 272 R -v- Turner [1975] QB at 841 Hearing (Criminal) — rape — decision of the court. Bailiff THE DEPUTY ......
  • Eric Nott v John Edward Strzelecki
    • Jersey
    • Royal Court
    • 11 August 2014
    ...for the Plaintiff. Advocate N. A. K. Williams for the Defendant. Authorities Blackmore v Amplus Limited [2014] JRC 086 . AG v Bhojwani [2009] JRC 207A . Smith v Fordyce [2013] EWCA Civ 320 . Accident claim — reasons for the adducing of evidence by the plaintiff. THE MASTER: Introduction 1 ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT