AG v Bhojwani

JurisdictionJersey
CourtRoyal Court
JudgeJ. A. Clyde-Smith
Judgment Date01 October 2008
Neutral Citation[2008] JRC 172A
Date01 October 2008

[2008] JRC 172A

ROYAL COURT

(Samedi Division)

Before:

J. A. Clyde-Smith, Esq., 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.

Police Procedures and Criminal Evidence (Jersey) Law 2003.

Cox v Army Council Respondents (1962) 2 WLR 950 .

Norris v Government of the United States of America (2008) 2 WLR 673 .

Army Act 1955.

Road Traffic Act 1960.

Extradition Act 2003.

4Cast Limited v Mitchell (Inspector of Taxes) (2005) S.T.C. (S.C.D.) 287 .

Regina v Southwark Crown Court ex parte Bowles (1998) AC 641 .

Inland Revenue Commissioners v Hashmi and another (2002) EWCA Civ 981 .

( R v Causey unreported 18th October 1999).

Confiscation and the Proceeds of Crime, Mitchell, Taylor & Talbot.

R v Montila [2004] 1 WLR 624 .

DPP v P (1991) 2 AC 447 .

DPP v Boardman (1975) AC 421 .

Phipson on Evidence, 15th edition.

Transposition, purpose element and admissibility applications.

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 26th January 2009.

2

On 11th July 2008, I ordered that a number of matters were suitable for a preparatory hearing under Part 10 of the Police Procedures and Criminal Evidence (Jersey) Law 2003 (“PPCE”) which hearing took place on 16th September 2008. One issue, namely the admissibility of the defendant's statement of 11th October 2002 (Exhibit PG/1), has been adjourned to a later date. I deal with the issues that were argued before me in the order set out below.

Transposition
3

Article 34(1) of the 1999 Law is in the following terms:-

(1) a person is guilty of an offence if the person –

(a) conceals or disguises any property that is or 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” .

4

Criminal conduct” is defined in Article 1 as follows:-

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” .

5

Schedule 1, after setting out the articles to which it applies, is in the following terms:-

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” .

6

. The indictment has been further particularised and count 1 is now in the following 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 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.”

The remaining two counts are for the purposes of these contentions in the same terms.

7

There are three elements to the offences with which the defendant is charged, namely:-

  • (i) conversion or removal of

  • (ii) property that represents the defendant's proceeds of criminal conduct

  • (iii) for the purpose of avoiding prosecution or the making or enforcement of a confiscation order or both.

8

The criminal conduct alleged 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$ 130M, 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 banker's drafts, are said to have taken place in October and November 2000.

9

We are concerned here with the second element of the offence, specifically the process of transposition and the extent of the conduct that has to be transposed.

10

Before turning to the contentions of the parties, it is helpful to refer first to the two House of Lords cases in which transposition has been considered, namely Cox v Army Council Respondents (1962) 2 WLR 950 and Norris v Government of the United States of America (2008) 2 WLR 673.

11

In Cox, the House of Lords was concerned with Section 70 of the Army Act 1955 by which any person subject to military law who commits a civil offence, whether in the United Kingdom or elsewhere, is guilty of an offence against the section. “Civil offence” is defined as meaning any act or omission punishable by the law of England which, if committed in England, would be punishable by that law. The appellant, while serving with the British Army in Germany, was charged before the District Court Martial held there with committing a civil offence contrary to section 70 of the Army Act 1955, that is to say driving without due care and attention contrary to section 3(1) of the Road Traffic Act 1960, in that at Sundern on 15th September 1960, he drove a motor vehicle on the road without due care and attention. Lord Reid said at page 70:–

So the statute requires us to imagine another act committed in England. It cannot require that that other act should be precisely the same in every detail because that would be impossible. So it must require that we can imagine another act committed in England which is similar in all relevant respects. With many types of offence that is easy. For example, murder and theft are the same all the world over. At the other end of the scale there are acts or omissions so closely connected with conditions which are peculiar to England, or at least which are absent in the place where the act was committed, that it would be impossible to find the necessary degree of similarity between the act or omission committed abroad and any act or omission which could be committed in England.

The requisite degree of similarity must depend on the nature of the offence. In this case the appellant was found guilty of driving a motor-vehicle on a road without due care and attention contrary to section 3(1) of the Road Traffic Act, 1960. But the question is not whether that Act applies to Germany, or whether the road on which he was driving was a road within the meaning of that Act. The question is whether there is the requisite degree of similarity between what the appellant did and an act done in England which would be contrary to that section. I can see no relevant difference between the two. No doubt traffic regulations are different in Germany from those in England. But conditions vary greatly in England and the essence of the offence is failure to drive with due care and attention having regard to all the circumstances at the particular place and time. I therefore find no difficulty in equating failure to drive with due care and attention in particular circumstances in Germany with a similar failure in England, and that is sufficient to dispose of this case” .

Lord Radcliffe said (at page 71):–

Secondly, the occurrence that is said to constitute the offence is always the actual occurrence itself as it took place outside England and that means importing into the hypothetical English occurrence the circumstances and conditions that prevailed at the place where and the time when the thing that is complained of was done or omitted. The...

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6 cases
  • Bhojwani v AG
    • Jersey
    • Court of Appeal
    • 10 February 2011
    ...1183 . R v Thomas and others [2009] EWCA Crim 1682 . Snooks v. AG [1997] JLR 253 . R v Stoddart 2 Cr. App. R. 217 . AG v Bhojwani [2008] JRC 172A . R v. Turner [1975] 1 QB 834 . AG v. Edmond-O'Brien [2006] JLR 133 . Hall v AG [1995] JLR 102 . Baylis v A-G [2004] JLR 409 . Barette v......
  • Bhojwani v Attorney General
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    • Court of Appeal
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    ...and the other prevailing circumstances in Nigeria at the time are adventitious and irrelevant to the transposition process" ([2008] JRC 172A, at para. 25). 37.The extent of the transposition exercise has been considered in two English House of Lords cases, to both of which the Commissi......
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    ...A. Kistler for the second respondent. Cases cited: (1) Achour v. France (2007), 45 E.H.R.R. 2, considered. (2) Att. Gen. v. Bhojwani, [2008]JRC172A, Royal Ct., October 1st, 2008, unreported; further proceedings, 2010 JLR 24; further proceedings, 2010 JLR 78, considered. (3) Cantoni v. Franc......
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    ...(Enforcement of Confiscation Orders)(Jersey) Regulations 2008. Income Tax (Jersey) Law 1961. Bhojwani v AG [2010] JLR 78. AG v Bhojwani [2008] JRC 172A. Bennion on Statutory Interpretation 6th edition. Interpretation (Jersey) Law 1954. Human Rights (Jersey) Law 2000. Anchour v France [2007]......
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