AG v Bhojwani

• Jurisdiction: Jersey
• Court: Court of Appeal
• Judge: Beloff JA
• Judgment Date: 08 June 2009
• Neutral Citation: [2009] JCA 115A
• Date: 08 June 2009

[2009] JCA 115A

COURT OF APPEAL

Before:

The Hon Michael Beloff., Q.C., President; M. S. Jones., Esq., Q.C., and; J. Martin, Esq., Q.C..

Raj Arjandas Bhojwani

and

The Attorney General

Advocate J. D. Kelleher for Bhojwani.

Crown Advocate M. T. Jowitt for the Attorney General.

Authorities

Police Procedures and Criminal Evidence (Jersey) Law 2003.

Proceeds of Crime (Jersey) Law 1999.

Foster v Attorney General [1992] JLR 6 .

Steelux Holdings Limited v. Edmonstone (née Hall) [2005] JLR 152 .

R v Rimmington [2006] 1 AC 459 .

Cox v Army Council [1963] AC 48 .

Norris v Government of the United States 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 Geyt.

Constitution, Les Loix, et les Usages, Le Geyt.

Attorney-General v Langtry (1945) Poursuites Criminelles 249 .

[2003] JLR 92 .

Sykes v DPP [1962] AC 528 .

Christian v. The Queen [2007] 2 AC 400 .

R v Whittaker (1913) 2 KB 1283 .

Corruption and Misuse of Public Office, Nicholls Q.C and Others.

Beloff JA

INTRODUCTION

1 This is the judgment of the Court giving the reasons for conclusions announced on April 2nd after a hearing on March 31st and April 1st 2009. On that occasion we dismissed the Defendant's application to appeal in relation to what is described below as the transposition issue, but allowed his applications for leave to appeal, and the appeals themselves, in relation to two other issues known as the operative deception and bribery issues.

2 The applications arose out of the decisions of Mr Commissioner Clyde-Smith (“the Commissioner”) of 1st October 2008 and 29th January 2009 in the context of a preparatory hearing under Part 10 of the Police Procedures and Criminal Evidence (Jersey) Law 2003 which provides:-

“ 83. Application and interpretation of Part 10

(1) This Part applies in relation to an offence if on or after the commencement of this Article the accused is committed for trial or proceedings are instituted before the Royal Court for the offence concerned.

(2) References in this Part to the prosecutor are to the Attorney General or any advocate acting on the Attorney General's behalf.

84 Power to order preparatory hearing

(1) Where it appears to the Bailiff –

…

b) that a case is so complex or is a case the trial of which is likely to be so long that substantial benefits are likely to accrue from a hearing before the trial and for any of the purposes mentioned in paragraph (2) ,

(2) The purposes are those of –

(a) identifying issues which are likely to be material to the verdict of the Royal Court or jury;

(b) assisting comprehension of those issues;

(c) expediting the proceedings before the Royal Court or jury;

(d) assisting the management of the trial.”

3 Those decisions raised three issues of law which had been conveniently categorised as in the manner already described (“the preliminary issues”). Resolution of those issues will have an effect on the forthcoming – much postponed – trial of the applicant.

THE INDICTMENT

4 The applicant stands indicted on 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”)

5 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 US148,940,000 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 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.” ( Court underlining).

SUMMARY OF ALLEGATIONS

6 The prosecution alleges that the applicant negotiated two contracts in 1996 and 1997 with the sons and henchmen of the military dictator, titled the President of the Republic of Nigeria, General Sani Abacha, for the supply of vehicles to the Republic of Nigeria at vastly inflated prices (“the dishonest transactions”). The sums payable under the dishonest transactions, the excess of which was divided between the applicant and those sons and henchmen, came into the applicant's company accounts at Bank of India in Jersey. In October and November 2000 many millions of those sums were transferred by the applicant by six banker's drafts to bank accounts in other countries linked to the Abacharegime.

THE APPLICANT'S CASE ON THE PRELIMINARY ISSUES

OPERATIVE DECEPTION

7 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:-

(Court's underlining) We refer to these as “the Foster criteria”.

• (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.

8 The applicant 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 i.e. that there was “ operative deception”.

Transposition

9 The conduct whose proceeds the applicant is accused of converting or removing occurred in Nigeria. Article 34(1) of the 1999 Law requires the prosecution to establish that that conduct would have been criminal conduct if it had occurred in Jersey.

10 The applicant submits that the exercise of transposition so required offends against the requirement of legal certainty. Alternatively he argues that, if the conduct is susceptible of transposition, the “ circumstances and conditions that prevailed at the place where and at the time when the thing is complained of was done or omitted” [i.e. Nigeria] must be taken into account.

Bribery

11 The applicant submits that there is no offence of bribery known to the customary law of Jersey.

THE COMMISSIONER'S JUDGMENT

12 As to these three issues the Commissioner found as follows:-

• (i) For the purposes of the Jersey offence of fraud the prosecution does not have to prove that the false representation acted on the mind of the victim.

• (ii) The principle of legal certainty was not infringed, and the circumstances prevailing in Nigeria at the time of the dishonest transactions were irrelevant to transposition.

• (iii) Bribery is an offence under the customary law of Jersey.

13 As we have already noticed, the Particulars of Offence in respect of Count 1 on the Indictment allege, amongst other things, fraud. In the addendum to the Prosecution Case Statement, the crown sets out the essential elements of its case on that matter. There is reference to an “overarching false representation” and to “deception”, but it is not asserted that anyone was actually deceived or that it was intended that anyone should be deceived.

14 In challenging the Commissioner's determination that, whilst in many cases, 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 him, it is not a requirement that it should do so, the applicant raises two issues. The first is whether the representation must operate on the mind of someone and the second is, if so, on whose mind must it operate.

The first issue

15 In resisting the application before us, the crown contended that it may meet the Foster criteria in any particular case without having to prove that anyone was deceived by the false representation or was induced by reliance on it either to do anything or to refrain from doing anything. An example given was that of the execution of a scheme involving two joint conspirators whereby one produces a false invoice to the other who, on its receipt, orders payment of the invoice sum to be made from public funds to a third party. In the example, no reliance is placed on the truth of the invoice by the person ordering payment or by the bank in...