Attorney General v Smith

JurisdictionJersey
CourtRoyal Court
JudgeBirt, Deputy Bailiff
Judgment Date23 September 2004
Date23 September 2004
ROYAL COURT
Birt, Deputy Bailiff

C.E. Whelan, Crown Advocate, for the Crown;

N. Benest for the defendant;

W. Grace for the first intervenors;

L. Springate for the third intervenor;

The second intervenor did not appear and was not represented.

Cases cited:

(1) Att. Gen. v. Young, 1998 JLR 22, dicta of Le Quesne, Commr. applied.

(2) Batalla-Esquival, In re, 2001 JLR 160, observations of Bailhache, Bailiff followed.

(3) Carter v. Bradbeer, [1975] 1 W.L.R. 1204; [1975] 3 All E.R. 158, dicta of Lord Diplock applied.

(4) Le Monnier v. Att. Gen., 1989 JLR 170, dicta of Hamon, Commr. applied.

(5) New Guar. Trust Fin. Ltd. v. Birbeck, 1980 J.J. 117, referred to.

(6) Ostroumoff (née Martland), In re, 1999 JLR 238, dicta of Hamon, Deputy Bailiff applied.

(7) R. v. Sekhon, [2003] 1 W.L.R. 1655; [2003] 3 All E.R. 508, dicta of Lord Woolf, C.J. followed.

Additional cases cited by counsel:

Barretto, In re, [1994] Q.B. 392; [1994] 1 All E.R. 447.

Carson v. Carson, [1964] 1 W.L.R. 511; [1964] 1 All E.R. 681; (1963), 107 Sol. Jo. 984.

Denney v. Hodge, 1973 J.J. 2429.

Le Vannais v. Island Dev. Cttee., 1987-88 JLR 662.

Lesquende Ltd. v. Planning & Environment Cttee., 1996 JLR 254.

Macready v. Amy, 1950 J.J. 11.

Mauger, In re, 2000 JLR 112.

Overseas Ins. Brokers Ltd., Re, 1963 J.J. 325.

Phillips v. Eyre (1870), L.R. 6 Q.B. 1.

R. v. Chrastny (No. 2), [1991] 1 W.L.R. 1385; [1992] 1 All E.R. 193.

Social Security Secy. v. Tunnicliffe, [1991] 2 All E.R. 712; (1990), 4 Admin. L.R. 57.

Yew Bon Tew v. Kenderaan Bas Mara, [1983] 1 A.C. 553; [1982] 3 All E.R. 833.

Legislation construed:

Proceeds of Crime (Jersey) Law 1999, art. 3: The relevant terms of this article are set out at para. 4.

art. 6(11): The relevant terms of this paragraph are set out at para. 10.

Texts cited:

Bennion, Statutory Interpretation, 4th ed., sect. 312, at 831 (2002).

Maxwell on Interpretation of Statutes, 12th ed., at 201 (1969).

Criminal Procedure—proceeds of criminal conduct—confiscation order—"proceedings" in Proceeds of Crime (Jersey) Law 1999, art. 3(2) means separate proceedings for each offence charged in indictment—confiscation order possible in respect of post-Law offences despite inclusion in same indictment of pre-Law offences—no need to sever

The defendant was charged with several counts of fraudulent conversion.

The defendant pleaded guilty to several counts of fraudulent conversion committed between 1996 and 2003, with which he was charged in a single indictment. The Attorney General sought a confiscation order, pursuant to art. 3 of the Proceeds of Crime (Jersey) Law 1999, in respect of the proceeds of the offences committed after the Law came into effect in July 1999.

The intervenors claimed to be victims of the offences and sought to recover their losses from the defendant. They opposed the confiscation order and submitted that it was prohibited under art. 3(2) of the 1999 Law, which provided that the power to make confiscation orders "shall not apply in the case of any proceedings against any defendant where he is convicted in those proceedings of an offence which was committed before this Article comes into force."

They submitted that (a) as the word "proceedings" in art. 3(2) meant the proceedings against the defendant as a whole, a confiscation order was prohibited because some of the offences with which he was charged had been committed before the 1999 Law came into force; (b) there were examples elsewhere in the statute of "proceedings" bearing this meaning and it was presumed that the same meaning would apply throughout the Law; (c) had the Crown intended to request a confiscation order, it ought to have severed the indictment and laid separate indictments for the pre- and post-Law offences; (d) any other interpretation might cause prejudice to defendants, as the inclusion of pre-Law offences in an indictment might make it more likely that they would be convicted of the post-Law offences charged and consequently that a confiscation order in respect of those offences would be made; and (e) their interpretation was also supported by the explanatory note in the projet for the legislation.

The Attorney General submitted in reply that (a) the word "proceedings" in art. 3(2) of the 1999 Law in fact meant the proceedings for a single offence, so that a confiscation order could be made in respect of the defendant's post-Law offences despite the inclusion in the indictment of his pre-Law offences; (b) the presumption that the word "proceedings" should bear the same meaning throughout the Law was not strong; (c) his interpretation should be preferred because it was consistent with the legislature's intention to confiscate the proceeds of offences committed after the coming into force of the Law, whereas the intervenors' interpretation would lead to absurd consequences which would not have been intended; (d) defendants would not be prejudiced by this interpretation, as the inclusion of pre-Law offences in the indictment would not affect their conviction of post-Law offences, which would depend on the evidence; and (e) the fact that his interpretation of art. 3(2) was not consistent with the explanatory note in the projet was irrelevant.

Held, ruling that the confiscation order could be made:

(1) Whilst the competing interpretations of art. 3(2) of the Proceeds of Crime (Jersey) Law 1999 were both possible, that of the Attorney General would be preferred ( paras. 24-25; para. 32).

(2) Although it would mean that "proceedings" in art. 3(2) would have a different meaning from the expression in other parts of the Law, it was consistent with the legislature's intention to facilitate the confiscation of a defendant's benefit from offences committed after the 1999 Law came into force, whilst the intervenors' interpretation would have led to absurd consequences not intended by the legislature. For example, the legislature would not have intended that confiscation should not occur in cases where the defendant was also charged in the same indictment with offences committed before the Law came into force. Nor would it have intended that indictments in cases such as the present should be severed and separate trials brought for the pre- and post-Law offences, as that would result in the repetition of evidence and wasting of resources. The court therefore had the power to make the confiscation order requested by the Attorney General in respect of those offences committed after the coming into force of the 1999 Law despite the inclusion in the indictment of offences committed before the Law came into force ( para. 23; paras. 26-29; paras. 32-33).

(3) Moreover, the intervenors had failed to establish that defendants would be prejudiced by the Attorney General's interpretation of art. 3(2) of the 1999 Law. The power to make a confiscation order in respect of offences committed after the 1999 Law came into effect, in cases where pre-Law offences were also charged in the same indictment, would not prejudice defendants, as conviction of the post-Law offences (a prerequisite for a confiscation order) would depend on the evidence. Evidence of pre-Law offences could indeed be admitted in a trial of exclusively post-Law offences if the requirements for similar fact evidence were met ( para. 28).

(4) The Attorney General's interpretation would be adopted despite not being consistent with the interpretation of art. 3(2) in the explanatory note in the projet to the 1999 Law. The construction of the statute was the court's function and in doing so little weight would be placed on the explanatory note. In addition, it was permissible that "proceedings" would have a different meaning in art. 3(2) than in other parts of the Law, since the presumption of a consistent meaning throughout the statute was not strong ( paras. 30-31).

1 BIRT, DEPUTY BAILIFF: This application raises a short point of law concerning the proper interpretation of art. 3(2) of the Proceeds of Crime (Jersey) Law 1999, which relates to the power...

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