Jersey Unreported Judgments

[2009]JRC207A

ROYAL COURT

(Samedi Division)

4^th November 2009

Before     :

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

The Attorney General

-v-

Raj Arjandas Bhojwani

Expert Evidence-Test for dishonesty

Advocate M. T. Jowitt for the Attorney General.

Advocate J. D. Kelleher for the Defendant.

JUDGMENT

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 1^st October, 2000 and 30^th 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 embark on that course of conduct.

So we would reject the simple uncomplicated approach that the test is purely objective, however attractive from the practical point of view that solution may be.

There remains the objection that to adopt a subjective test is to abandon all standards but that of the accused himself, and to bring about a state of affairs in which "Robin Hood would be no robber": Reg-v-Greenstein (1975) 1 WLR 1353.  This objection misunderstands the nature of the subjective test.  It is no defence for a man to say "I knew that what I was doing is generally regarded as dishonest; but I do not regard it as dishonest myself.  Therefore I am not guilty."  What he is however entitled to say is "I did not know that anybody would regard what I was doing as dishonest."  He may not be believed; just as he may not be believed if he sets up "a claim of right" under section 2(1) of the Theft Act 1968, or asserts that he believed in the truth of a misrepresentation under section 15 of the Act of 1968.  But if he is believed, or raises a real doubt about the matter, the jury cannot be sure that he was dishonest.

In determining whether the prosecution has proved that the defendant was acting dishonestly, a jury must first of all decide whether according to the ordinary standards of reasonable and honest people what was done was dishonest.  If it was not dishonest by those standards, that is the end of the matter and the prosecution fails.

If it was dishonest by those standards, then the jury must consider whether the defendant himself must have realised that what he was doing was by those standards dishonest.  In most cases, where the actions are obviously dishonest by ordinary standards, there will be no doubt about it.  It will be obvious that the defendant himself knew that he was acting dishonestly.  It is dishonest for a defendant to act in a way which he knows ordinary people consider to be dishonest, even if he asserts or genuinely believes that he is morally justified in acting as he did.  For example, Robin Hood or those ardent anti-vivisectionists who remove animals from vivisection laboratories are acting dishonestly, even though they may consider themselves to be morally justified in doing what they do, because they know that ordinary people would consider these actions to be dishonest." (Emphasis added)

10.      Mr Kelleher agreed that the defence contentions are properly reflected if the Ghosh test is amended to read as follows:-

"In determining whether the prosecution has proved that the defendant was acting dishonestly, the Jurats must first of all decide whether according to the ordinary standards of reasonable and honest people in Nigeria what was done was dishonest.  If it was not dishonest by those Nigerian standards, that is the end of the matter and the prosecution fails.  If it was dishonest by those Nigerian standards, then the Jurats must consider whether the defendant himself must have realised that what he was doing was by those Nigerian standards dishonest."

11.      If the defence is correct in its contentions then it follows that the Jurats will need expert evidence as to the ordinary standards of reasonable and honest people in Nigeria in 1996 and 1997.

12.      The defence submitted that no fair finding as to the defendant's actual state of mind can be made without taking account of the prevailing standards of honesty which influenced it.  The defence does not contend that the defendant should be judged by his own standards of honesty, but simply that there is no basis for an assumption of universality as to dishonesty extending beyond the territorial jurisdiction of the Court.  In consequence the Jurats must have regard to evidence which is capable of showing the existence of a different value system and must consider the effect of that value system on the actual state of mind of the defendant.  To criminalise the conduct of the defendant by imputing or inferring that the knowledge of a value system different to that of the jurisdiction in which the alleged conduct took place is wrong and would produce an inherently unfair trial process in breach of the defendant's fundamental rights under Article 6 of the European Convention on Human Rights as applied by the Human Rights (Jersey) Law 2000. 

13.      Ghosh was decided in 1982 and the defence argue that the assumption underpinning the use of the first limb, the objective test, is the universality of ordinary standards among persons who as jurors would apply the value holding within the then territorial limits of the English Courts' jurisdiction.  The objective test simply cannot fairly address the proposition that the conduct from which the objective finding of dishonesty is to be drawn may have a different quality in the jurisdiction in which it actually occurs.  Ghosh is not an authority it says for the proposition that there exists a universal unchanging standard of dishonesty.  Implicit in the Court's observations is the recognition that standards (or collective understandings) of honesty vary, in particular as between different countries or cultures.  Recognition that objective standards of honesty may vary across cultures will be significant in two types of cases according to the defence:-

(i)        Cases in which the conduct to be judged occurred within the domestic jurisdiction, but where the defendant's understanding of honesty is born of a specific or different culture. 

(ii)       Cases in which the conduct to be judged occurred outside this jurisdiction, and within a different culture.  

14.      The first situation which was discussed in Ghosh will, as the Court of Appeal observed, occur rarely.  The second situation which was not discussed in Ghosh will occur even less frequently than the first, for the simple reason that jurisdiction to try criminal conduct is in general terms territorially restricted.  It is only in the very unusual circumstances in which a tribunal of fact is asked to assess the honesty of conduct which occurred in a different country that the second situation will arise.  In the first situation the objective standard to be applied is the ordinary standards for honesty in this jurisdiction and if the defendant's conduct took place within this jurisdiction it is reasonable and natural to expect to have those standards in mind at the relevant time.  In the second situation, however, application of the test is problematic.  A person acting in Nigeria may or may not appreciate what Jersey standards of honesty require.  There is no basis to believe that a person acting in Nigeria would or should have the standards of the ordinary Jersey person in mind at all when carrying out any course of conduct in that different cultural context.  It is neither reasonable nor natural to expect that he would. 

15.      I accept the prosecution's submission that Ghosh is the settled test for dishonesty in our criminal law (see Michel and Gallichan-v-AG [2006] JCA 152) and I reject the defence assertion that it should be modified for the purposes of these offences when dealing with conduct outside Jersey. 

16.      The 1999 Law provides a single criminality test i.e. the Criminal Law of Jersey.  Offences under the 1999 Law are to be treated no differently to other offences under our Criminal Law and that is because it applies the Criminal Law of Jersey, exclusively, to conduct which either occurs here or which by the process of transposition is deemed to have occurred here.  It will be for the Jurats to determine the ordinary standards of reasonable and honest people in the same way that they would any other offence under our Criminal Law.  I do not agree that they will do this by reference to "Jersey Standards" whatever they are.  It will be a matter for the individual judgement of the Jurats whose backgrounds and life experiences will be diverse and various.  

17.      In my view there is a universality in the concept of dishonesty.  A dishonest person is one who lies, cheats or steals or who practises deceit (see Shorter Oxford English Dictionary).  Even in communities where corruption is rife and widely tolerated, reasonable and honest people in those communities would, I suggest, still regard cheating, stealing or deceit as dishonest.  By definition honest people everywhere are bound to do so because they are honest.  

18.       Mr Kelleher postulated a community in which there is no concept of property and in respect of which it would not therefore be possible to be dishonest.  More likely would be a monarchy in which there was no separation between state property and the personal property of the monarch.  If General Abacha was such a monarch then I can see that he could hardly conspire with the defendant to steal his own property.  However Nigeria is a common law jurisdiction and it is not contended by the defence that there was no separation between the assets of the state and those of General Abacha personally.  Indeed Mrs Obe confirms this in her opinion.  

19.      I would add that if the defence were correct in their submissions as to the test for dishonesty in cases dealing with conduct outside Jersey, then such cases would in my view be rendered untriable and this because the prosecution would have to prove, through expert evidence, the ordinary standards of reasonable and honest people in the foreign jurisdiction concerned.  As I conclude below I do not regard this subject matter as being susceptible of expert evidence. 

20.      The second limb of the Ghosh test contains a subjective element and it is therefore open to the defendant to say that he did not realise that what he was doing was by the ordinary standards of reasonable honest people, dishonest.  The defendant might say that he did not know that his conduct was dishonest by those standards because he lived in a community in which such conduct would not have been regarded as dishonest by reasonable and honest people.  It follows from this, as conceded by the prosecution, that the defendant could lead evidence which gives credence to his own evidence on this point.  This leads on to the legal test for assessing the competence of an expert. 

Qualification of Expert

21.      Whether a witness is competent to give evidence as an expert is for the trial judge to determine (Archbold 2009 10-65).  The accepted formulation of the test under English law is that by King CJ in the South Australian case R-v-Bonython (1984) 38 SASR 45 (see Archbold 2009 at paragraph 1065) in which he sets out two questions for the judge to decide:-

"The general rule is that a witness may give evidence only as to matters observed by him.  His opinions are not admissible.  One of the recognised exceptions to this rule is that which relates to the opinions of an expert.  This exception is confined to subjects which are not, or are not wholly within the knowledge and experience of ordinary persons.  On such subjects a witness may be allowed to express opinions if the witness is shown to possess sufficient knowledge or experience in relation to the subject upon which the opinion is sought to render his opinion of assistance to the court.  Before admitting the opinion of a witness into evidence as expert testimony, the judge must consider and decide two questions.  The first is whether the subject matter of the opinion falls within the class of subjects upon which expert testimony is permissible.  This may be divided into two parts:- (a) whether the subject matter of the opinion is such that a person without instruction or experience in the area of knowledge or human experience would be able to form a sound judgment on the matter without the assistance of witnesses possessing special knowledge or experience in the area, and (b) whether the subject matter of the opinion forms part of a body of knowledge or experience which is sufficiently organized or recognized to be accepted as a reliable body of knowledge or experience, a special acquaintance with which by the witness would render his opinion of assistance to the court.  The second question is whether the witness has acquired by study or experience sufficient knowledge of the subject to render his opinion of value in resolving the issues before the court."

22.      I accept this formulation as the test to be applied under Jersey Law.  

23.      I will set out most of the individual questions put to the Nigerian experts below but centrally they are directed to the views of the "average Nigerian citizen" as to the alleged conduct of the defendant and whether he or she would regard the same as honest or dishonest.  There are a number of difficulties with this:-

(i)        The wrong question is asked.  We are not concerned with the views of the average Nigerian citizen, but the "ordinary standards of reasonable and honest people" in Nigeria. 

(ii)       The question of the defendant's alleged conduct has never been and logistically could never be put directly to the people in Nigeria, let alone to "reasonable and honest" people in Nigeria.  How is one to assess in a reliable way whether people, wherever they live, are "reasonable" and "honest"?

The question can therefore only be directed to an "expert".  By reference to the second part of the first question in Bonython, the subject matter is the "ordinary standards of reasonable and honest people in Nigeria".  Can this ever form part of a body of knowledge or experience which is sufficiently organised or recognised to be accepted as a reliable body of knowledge or experience, especial acquaintance with which by the witness would render his opinion of assistance to the Court? 

24.      The admissibility of evidence as to the views of the public on specific market related issues has been considered by the Courts in passing off actions.  In Customglass Boats Ltd and Another-v-Salthouse Brothers Ltd and Another (1976) RPC it was held that the result of a scientific market research survey was admissible either:-

"(a)     as proving a public state of mind on a specific question, which is an acknowledge exception to the hearsay rule.  R-v-Vincent (1840) 9 C & P 275; 173 ER 833 applied or

(b)       as proving an external fact, namely that a designated opinion is held by the public or a class of the public; this not being a matter of hearsay at all.

The weight of such evidence must be dependent upon whether:-

(a)       the questions were formulated in such a way as to preclude a weighted or conditioned response,

(b)       there is clear proof that the answers were faithfully and accurately recorded,

(c)       there is evidence that the answers were drawn from a true cross-section of that class of the public or trade whose impression or opinion is relevant to the matter in issue."

25.      With such market research, the Court is concerned with the views of a cross section of the public on a name - in the Customglass case, the name "Cavalier", used in connection with the production of yachts - views which are relevant irrespective of the honesty or reasonableness of the person expressing them.  None of the Nigerian experts identified research or surveys undertaken to ascertain the views of a cross section of the Nigerian public on the honesty of the kind of conduct at issue in this case, let alone the views of a cross section of "honest and reasonable" people in Nigeria.  Indeed they do not point to any research into this subject matter.  I have great difficulty in understanding how such research could be conducted bearing in mind the difficulty in assessing in people such qualities as reasonableness and honesty.  In reality the Nigerian experts, who are or may be experts in their chosen fields, are simply expressing their personal views as to how the average Nigerian citizen would consider the defendant's alleged conduct.  Their views are to be respected but they are not the views of an expert on the subject matter applying the Bonython test.  

26.      I conclude that the subject matter, namely "the ordinary standards of honest and reliable people in Nigeria" does not form part of a body of knowledge or experience which is sufficiently organised or recognised to be accepted as a reliable body of knowledge or experience.  Therefore the proposed opinions of the Nigerian experts on this subject matter does not get through the second part of the first question set out in Bonython which I have to address before admitting the same.

27.      I therefore find as follows:-

(i)        The test for dishonesty under Jersey law and to be applied in this case is the Ghosh test.

(ii)       If, under the subjective limb of the Ghosh test, the defendant contends that he did not realise that what he was doing was wrong by the ordinary standards of reasonable and honest people because in the community in which he lived, namely Nigeria, such people would not have regarded it as such, then none of the Nigerian experts are qualified to give expert evidence as to the ordinary standards of such people.  I will not therefore admit their evidence on this issue. 

This does not mean, however, that all of the questions and answers of the Nigerian experts are inadmissible.  I will take a number of the questions posed in turn and, subject to my above ruling, express provisional views on which I invite the further submissions of counsel. 

Mrs Obe

28.      Mrs Obe is a legal practitioner enrolled at the Supreme Court of Nigeria, who was called to the Bar in July 1978.  She practises law at Lagos and is a partner in the law firm Ogunsola Shonibare. 

29.      In her report she addresses the following questions:-

"20.     What were the circumstances attending the assumption of power by General Abacha?

(a)       Is it correct that the 1989 Constitution was intended to supersede both the 1979 Constitution and the decrees of the intervening military regimes?

(b)       Notwithstanding the finding of the Lagos State High Court as to the validity of the 1989 Constitution is it the case that the current 1999 Constitution precludes the Nigerian Courts from any further enquiry into the validity of any constitution, decree or law made on or after 15 January 1966?  If that is so, is it correct to assume that, as a matter of Nigerian law, there can be no judicial enquiry going behind the meaning and effect of the Constitution (Suspension and Modification) Decree number 107 of 1993 by which General Abacha abrogated Decree 61 and restored the 1979 Constitution?  If that is the correct position, is it also correct, in consequence, that the 1979 Constitution (as modified by Decree) remained the relevant constitutional framework until replaced by the 1999 Constitution?

(c)       What were the respective roles and ambit of authority of the "Provisional Ruling Council" and the "Federal Executive council"?

21.      What, in general terms, was the nature of General Abacha's regime and/or claim to power?

(a)       Given that the 1999 Constitution does not allow the Nigerian courts to look behind any Decree which precedes the coming into force of the 1999 Constitution, is it correct to assume that Decree 107 of 1993 would remain a valid part of the law of Nigeria until the coming into effect of the 1999 Constitution?  Assuming that proposition to be correct, is it also correct that section 5 of Decree 107 would, in practice, be both consistent with but supplanted by the provisions within the 1999 Constitution which itself precludes the Nigerian Courts from asserting jurisdiction in respect of any action or proceeding relating to any existing law made on or after 15 January 1966. 

(b)       Please confirm that the reference to "law" in this context includes a Decree or any other promulgation of the military regimes? 

22. (a) Assuming that the 1979 Constitution applied throughout the period of General Abacha's military dictatorship, but taking account of the manner in which it was, throughout that period "suspended" and/or "modified" by Decree, to what extent, if at all, did it both identify and prescribe the duties of public offices?  Did it, for example, identify and prescribe the duties of the offices of "Head of State"? 

(b)       Having regard to matters set out in this Opinion, is it correct to assume that General Abacha could, for all practical purposes, abrogate the application of any duties prescribed by the 1979 Constitution and/or assert immunity from the consequences of any breach of such duties? 

23.      If at the time of the assumption of power by General Abacha, there existed a Nigerian constitution, to what extent did it apply, or has it been applied since, to General Abacha and/or members of his governing regime? 

(a)       To what extent did Decree No. 1 of 1984 suspend or modify the 1979 Constitution? 

24.      Whether or not a constitution was in place in Nigeria prior to or during the regime of General Abacha, did General Abacha and/or members of his military regime hold "public office" (as that term might be understood as a matter of Nigerian law? 

(a)       Assuming the 1979 Constitution identified relevant public offices, did it prescribe the manner of appointment, for example, prescribing election to office by electoral mandate (in the case of Head of State and/or president) or by appointment, either by the legislature or President/Head of State?  Assuming the Constitution to envisage an electoral mandate and/or confirmation by the legislature for the role of Head of State and/or President, to what extent, if at all, can General Abacha be said to have held the relevant "office" in accordance with, or pursuant to the 1979 Constitution? 

25.      Did General Abacha have the benefit of any legal claim to immunity and/or any de facto immunity from accountability through the Courts and/or for compliance with the rule of law in Nigeria during the period he held power? 

(a)       Please further explain the manner in which the 1979 Constitution would have protected General Abacha (and other members of the military regime) from prosecution in Nigeria.  

26.      In terms of the impact on the lives of ordinary Nigerian citizens, what, if any, were the notable features of General Abacha's regime?  In particular:-

(a)       To what extent, if at all, was arbitrary imprisonment, the use of false charges, torture, physical assault and political execution, prevalent during the Abacha regime? 

(b)       To what extent, if at all, was it the practice of the Abacha regime to award state contracts and/or the negotiation of state contracts to either members of the regime or to third parties favoured by the regime? 

(c)       To what extent, if at all, did General Abacha recognise and/or respect a distinction between the property of the State and his own property?  To what extent, if at all, did the Nigerian public recognise a distinction between assets held by General Abacha for the benefit of the State and assets held by him for his own personal benefit? 

27.      Assuming, as is the defence case, that Mr Nwosisi was putting to the defendant a "take it or leave it" proposition when suggesting that the contract price should be doubled in order to pay to him a commission, failing which the contract would not be granted, to what extent, if at all, would the average Nigerian citizen regard it as reasonable for the defendant to believe that he would be putting himself, others and/or his business interests at risk if he refused to accommodate Mr Nwosisi's suggestion. 

28.      Assuming, as is the defence case, that the defendant did not retain for himself and at no point envisaged retaining for himself any part of the commission sought by Mr Nwosisi and having regard to the matters set out in paragraph 19 of the letter of instructions and your response to the questions posed above, would the average Nigerian citizen regard it as reasonable that the defendant did not regard his own conduct in relation to the negotiation, agreement and performance of the contract as "dishonest". 

29.      Would your answers to (d) and or (e) above differ if, as the prosecution allege, the defendant knew that some or all of the commission payment was being made for the benefit of general Abacha and/or Colonel Marwa? 

30.      Assuming that the defendant had refused to pay any commission to Mr Nwosisi, would there have been any consequences for him arising from this? 

30.      I accept that Mrs Obe is qualified to give expert evidence on Nigerian law but as far as I can ascertain there are no issues of Nigerian law before the Jurats in this case.  I would be prepared to accept that she could also give expert evidence on the Nigerian Constitution and General Abacha's immunity in law but again, these would not appear to be issues in this case.  She is not, I believe, qualified to give expert evidence on the history of Nigeria and of the history and nature of the Abacha regime, none of which would appear in any event to be issues in this case.  She is not qualified to give evidence on the features of the Abacha regime and their impact on "ordinary" Nigerian citizens but again, these would not appear to be issues in this case.  I have already ruled that her opinions on "how the average Nigerian citizen" would regard the defendant's alleged conduct are not admissible. 

Antony Goldman

31.      Mr Goldman describes himself as an independent consultant and business risk analyst.  He is a consultant in Nigeria to several leading international companies; has been senior Africa editor at the Economist Intelligence Unit and West Africa correspondent for the Financial Times based in Nigeria.  He is a frequent commentator on Nigeria and regional issues for the BBC, CNN and other media in the US, Europe and Africa.  He addressed the following questions:-

"20.     What was the status and legitimacy, if any, of the regime presided over by General Abacha?  How did the regime obtain and hold power? 

Where you refer to General Abacha dying amidst allegations of a "conspiracy", please elaborate.  Is it the case there exists conjecture and speculation as to the true circumstances of and/or causes of his death or is it that there has been established a reasonable basis on which to doubt the stated cause and/or circumstances of General Abacha's death? 

21.      In terms of the impact on the lives of ordinary Nigerians, what, if any, were the notable consequences of General Abacha's regime? 

22.      In 1996 and 1997 were there in place in Nigeria and/or were there followed and enforced any processes for the award of public procurement contracts comparable with those which might be expected and recognised as consistent with good public governance by the societies and states of Western Europe? 

23.      To what extent, if at all, was it the practice of the Abacha regime to award state contracts and/or the negotiation of state contracts to members of the regime or to third parties favoured by the regime? 

24.      If you are aware of it, what was the usual level of difference (mark-up or profit) between the cost or manufacturer's price of goods and the price paid by the Federal Government of Nigeria for goods supplies to it? 

26.      Assuming Mr Nwosisi's role in the negotiation and agreement of the 1996 and 1997 Contracts to be as stated in paragraph 19 above:-

(a)       Would the award and negotiation of state procurement contracts by the involvement of a person such as Mr Nwosisi be usual or unusual? 

(b)       Would it be usual or unusual for such a person to seek a commission or other benefit for himself from the negotiation and pricing of the contract? 

(c)       In such an arrangement would the supplier or the person in the role of Mr Nwosisi be responsible for agreeing with the Federal Republic of Nigeria the ultimate contract price? 

27.      Assuming, as is the defence case, that Mr Nwosisi was putting to the defendant a "take-it or leave-it" proposition when suggesting that the contract price should be doubled in order to pay to him a commission (and that such a price would be paid by the Federal Republic of Nigeria) would there have been any adverse consequences for the defendant if he had refused to accommodate Mr Nwosisi's requirements? 

28.      Assuming, as is the defence case, that the defendant did not retain for himself (and at no point envisaged retaining for himself) any part of the commission sought by Mr Nwosisi, and having regard to the matters set out in paragraph 19 and your responses to the question posed above, what, in 1996 and 1997 do you believe would be the reaction of the average Nigerian citizen to the defendant's conduct?  Would the average Nigerian citizen regard the defendant's belief that he had not himself acted dishonestly as reasonable or unreasonable? 

29.      Would your answer to question 28 above differ if, as the prosecution allege, the defendant knew that some or all of the commission payment sought by Mr Nwosisi was being obtained by him for the benefit of General Abacha and/or Colonel Marwa? 

32.      The prosecution have reservations as to the qualifications of Mr Goldman to give expert evidence on these matters; the Court should not act on the evidence of journalists, it submits, who have not witnessed events at first hand.  Leaving that aside for the moment, the status and legitimacy of the Abacha regime would not appear to be at issue in this case nor are we concerned with the circumstances of his death or the impact of his regime on ordinary citizens.  I will have to be addressed further on the potential relevance of questions 22 to 26.  As to question 27, it seems to me that this could be relevant to a defence of duress or necessity, if that is raised by the defence.  I have already ruled that his opinions on the views of the average Nigerian citizen as to the defendant's alleged conduct are not admissible. 

Professor Odekunle

33.      Professor Odekunle is a professor with specialisation in criminology, with a PhD in the field from the University of Pennsylvania Philadelphia USA.  He assumed duty in 1974 as a lecturer at Ahmadu Bello University, Zaria, Nigeria where he attained the rank of full professor in 1985.  The questions put to him were as follows:-

"Question 20

In your opinion, and in the context of the type of conduct put in issue by the Indictment and particularized at paragraph 9 above, is it possible to treat as materially similar the manner in which the average Nigerian citizen would view the reasonableness of an assertion of the absence of dishonesty with the manner in which the average citizen of a Western European State would view the same issue?  If it is your opinion that it is not possible to treat both citizens as having the same view of such reasonableness, please set out your reasons for so concluding. 

Question 21

Would your answer to the above question be different if the same question was posed in relation to the average Nigerian citizen in 1996 and 1997 and the average Western European Citizen today? 

Question 22

Assuming that Mr Nwosisi had been granted the right to negotiate the 1996 and 1997 contracts by general Abacha and/or other members of the military regime, to what extent, if at all, would it be judged reasonable by an average Nigerian citizen for the defendant to believe that the ultimate price at which the Federal Republic of Nigeria was prepared to purchase the vehicles was a matter to be agreed between Mr Nwosisi and those authorizing him to negotiate the contracts. 

Question 23

Assuming as is the defence case, that Mr Nwosisi was putting to the defendant a "take-it or leave-it" proposition when suggesting that the contract price should be doubled in order to pay to him a commission [and that such a price would be paid by the Federal Republic of Nigeria] failing which the contract would not be granted, to what extent, if at all, would the average Nigerian citizen regard it as reasonable for the defendant to believe that he would be putting himself, others and/or his business interest at risk if he refused to accommodate Mr Nwosisi's suggestion? 

Question 24

Assuming, as is the defence case, that the defendant did not retain for himself [and at no point envisaged retaining for himself] any part of the commission sought by Mr Nwosisi and having regard to the matters set out in paragraph 19 and your response to the questions posed above, would the average Nigerian citizen regard it as reasonable that the defendant did not regard his own conduct in relation to the negotiation, agreement and performance of the contract as "dishonest"? 

Question 25

Assuming, as is the prosecution's case, that General Abacha held a "public office" in 1996 and 1997, to what extent would you expect or understand General Abacha to regard himself as subject to any identifiable duties and by whom would those duties be prescribed? 

Question 26

Assuming General Abacha would regard himself as bound by identifiable duties, by whom would he regard himself as being capable of being held accountable for the discharge of his duties? 

Question 27

Assuming Colonel Marwa to be holding a "public office" in 1996 and 1997, would you expect Colonel Marwa to understand that he was accountable for the discharge of identifiable duties and, if so, how and by whom would those duties be prescribed and to whom and in what manner would Colonel Marwa be so accountable? 

Question 28

Would your answer to question 24 above differ if, as the prosecution allege, the defendant knew that some or all of the commission payment sought by Mr Nwosisi was being obtained by him for the benefit of General Abacha and/or Colonel Marwa?" 

34.      Questions 20, 21, 22, 23, 24 and 28 relate to "the average Nigerian citizen" and I have ruled that his opinions on them are not admissible.  I fail to see how Professor Odekunle is qualified to give expert evidence on the state of mind or understanding of General Abacha and Colonel Marwa as set out in questions 25, 26 and 27 and in any event their state of mind in relation to their duties would not appear to be issues in the case. 

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.