AG v Bhojwani

• Jurisdiction: Jersey
• Court: Royal Court
• Judge: J. A. Clyde-Smith
• Judgment Date: 23 November 2009
• Neutral Citation: [2009] JRC 217
• Date: 23 November 2009

[2009] JRC 217

ROYAL COURT

(Samedi Division)

Before:

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

The Attorney General

and

Raj Arjandas Bhojwani

M. T. Jowitt, Esq., for the Attorney General.

Advocate J. D. Kelleher for the Defendant.

Authorities

Proceeds of Crime (Jersey) Law 1999.

Police Procedures in Criminal Evidence (Jersey) Law 2003.

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

Criminal Justice Act 1988.

R -v- Gordon Foxley [1995] 2 Cr. App. R.523.

Exclusion of evidence under Article 66 PPCE

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 24 ^th November, 2009.

2 The defence apply by way of pre-trial hearing for a direction that evidence that is admissible by virtue of Article 65 of the Police Procedures in Criminal Evidence (Jersey) Law 2003 (“PPCE”) ought not to be admitted.

3 By way of background, the prosecution has obtained evidence from Nigeria (and other jurisdictions) pursuant to letters of request issued under Article 4 of the Criminal Justice (International Co-operation)(Jersey) Law 2001 (“the Co-operation Law”). Evidence so obtained is admissible in evidence without being sworn to by a witness pursuant to the provisions of Article 4(6) which is in the following terms:-

“(6) Evidence obtained by virtue of a letter of request shall, without being sworn to by a witness, be admissible in evidence and in exercising any discretion to exclude evidence otherwise admissible in relation to a statement contained in evidence taken pursuant to a letter of request the court before which it is sought to introduce that evidence shall have regard –

(a) to whether it was possible to challenge the statement by questioning the person who made it; and

(b) if proceedings have been instituted, to whether local law allowed the parties to the proceedings to be legally represented when the evidence was taken.”

4 The inter-relationship between Article 4(6) of the Co-operation Law and the law in relation to the admission of evidence generally is illustrated by reference to the following extract from paragraph 9–3 of Archbold 2008 Edition:-

“Whether public documents or private documents are being considered, two issues arise. (a) How may the document be proved? This includes questions such as whether a copy will suffice, whether parol evidence of the contents may be given and how to prove the execution of a private document. (b) Once the document has been proved or secondary evidence of its contents given, what use may be made of the contents? It is only in relation to the second question that the issue of hearsay arises. If objection is successfully taken to the admissibility of a document on the ground of hearsay, then, of course it will not be put in evidence at all.”

5 Article 4(6) of the Co-operation Law is concerned with the first issue only, so that evidence obtained by letter of request need not be proved by a witness. However, it is not concerned with the second issue which is what use may be made of its contents. Every document must be relevant to an issue in the case in order to be put into evidence at all and if it is relevant, it is subject to the rule against hearsay; namely that any statement in a document will be hearsay and inadmissible if the purpose for which it is sought to tender it in evidence is to rely on the truth of the statement, unless the document can be brought within one of the exceptions to the rule.

6 In this case, the prosecution do seek to tender the documents obtained by letters of request in order to rely on the truth of the statements made within those documents and hence apply under Article 65 of PPCE for their admission. Article 65 is in the following terms:-

“65 Business etc. documents

(1) Subject to paragraphs (3) and (4) a statement in a document shall be admissible in criminal proceedings as evidence of any fact of which oral evidence would be admissible if the following conditions are satisfied-

(a) the document was created or received by a person in the course of a trade, business, profession or other occupation, or as the holder of a paid or unpaid office; and

(b) the information contained in the document was supplied by a person, whether or not the maker of the statement, who had, or may reasonably be supposed to have had, personal knowledge of the matters dealt with.

(2) Paragraph (1) applies whether the information contained in the document was supplied directly or indirectly but, if it was supplied indirectly, only if each person through whom it was supplied received it –

(a) in the course of a trade, business, profession or other occupation; or

(b) as the holder of a paid or unpaid office.”

7 It is for the prosecution to satisfy me that the conditions set out in Article 65 are met and I am so satisfied. The defence accept that these conditions are satisfied. However, the defence submit that certain of the Nigerian documents should not be admitted in the interests of justice pursuant to the principles set out in Article 66 of PPCE which is in the following terms:-

“66 Principles to be followed

(1) If, having regard to all the circumstances, a court, in any proceedings, is of the opinion that in the interests of justice a statement which is admissible by virtue of Article 64 or 65 nevertheless ought not to be admitted, it may direct that the statement shall not be admitted.

(2) Without prejudice to the generality of paragraph (1), the court shall have regard –

(a) to the nature and source of the document containing the statement and to whether or not, having regard to its nature and source and to any other circumstances that appear to the court to be relevant, it is likely that the document is authentic;

(b) to the extent to which the statement appears to supply evidence which would otherwise not be readily available;

(c) to the relevance of the evidence that it appears to supply to any issue which is likely to have to be determined in the proceedings; and

(d) to any risk, having regard in particular to whether it is likely to be possible to controvert the statement if the person making it does not attend to give oral evidence in the proceedings, that its admission or exclusion will result in unfairness to the accused.”

The defence have asked me to have particular regard to Article 66(2)(a) and (d) and to proceed to rule on the basis of the statements obtained by the prosecution in relation to the Nigerian letters of request.

8 There is no Jersey case law on the operation of Article 66 and there is limited case law under English law in relation to the equivalent provision, namely Section 25 of the Criminal Justice Act 1988 (now superseded by Section 117 of the Criminal Justice Act 2003). R -v- Gordon Foxley [1995] 2 Cr. App. R.523 however provides a useful illustrative analysis of the test under Section 25. In that case, it was held that the purpose of Sections 24 and 25 of the Criminal Justice Act 1988 was to enable a document to speak for itself and parliament's intention would be defeated if in every case the creator or keeper of a document or the suppler of the information had to be called. Parliament's intention had clearly been that the court could draw such inferences as it thought proper from the documents themselves and from the method or route by which the documents had been produced before the court.

9 In Foxley the defendant was employed by the Ministry of Defence and was alleged to have corruptly placed contracts with three foreign manufacturing companies and to have had money paid into numbered accounts in Swiss banks on his behalf through three other foreign companies acting as intermediaries. The prosecution case depended upon documentary evidence produced by two Ministry of Defence police investigators which evidence included documents created by the Ministry of Defence showing the part that the defendant played in the authorisation of the contracts, the documents found at the defendant's home and documents such as credit notes, invoices and credit invoices recovered from the manufacturing companies through commissions rogatoires or other formal foreign procedures.

10 One of the...