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Jersey Unreported Judgments |
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You are here: BAILII >> Databases >> Jersey Unreported Judgments >> AG -v- Bhojwani [2010] JRC 002 (06 January 2010) URL: http://www.bailii.org/je/cases/UR/2010/2010_002.html Cite as: [2010] JRC 002, [2010] JRC 2 |
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[2010]JRC002
ROYAL COURT
(Samedi Division)
6th January 2010
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Before : |
J. A. Clyde-Smith, Esq., Commissioner, sitting alone. |
The Attorney General
-v-
Raj Arjandas Bhojwani
Application to read Witness statements
M. T. Jowitt, Esq., Crown Advocate.
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. His trial is due to commence on 11th January, 2010.
2. The prosecution apply by way of a pre-trial hearing to read the statements of Peter Yisa Gana, a Deputy Commissioner of the Nigerian Police Force ("Commissioner Gana"),dated 21st January, 2003, 24th February, 2005, 25th November, 2005, and 5th November, 2008, and Colonel Yakubu Bako, a retired officer in the Nigerian Army ("Colonel Bako"),dated 25th November, 2005.
3. The application is made under Article 64(2)(b) of the Police Procedures and Criminal Evidence (Jersey) Law 2003 ("PPCE"), namely that Commissioner Gana and Colonel Bako are outside Jersey and it is not reasonably practical to secure their attendance.
4. The criminal conduct alleged in this case took place in Nigeria and the prosecution of the defendant has proceeded hitherto with the co-operation of the Attorney General of Nigeria, who gave a written undertaking dated 18th January, 2006, that the Federal Government of Nigeria would use its best endeavours to ensure that necessary witnesses, including but not limited to Commissioner Gana and Colonel Bako, would travel from Nigeria to Jersey to attend the trial.
5. The history of the attendance of the Nigerian witnesses was covered in the hearing of 13th November, 2009, and there is no need to repeat that here. Suffice it to say that on 15th October, 2009, the defendant obtained declarations from the Nigerian Court that the authority in Nigeria that had supplied the Nigerian evidence to the Attorney General pursuant to letters of request, namely the Special Investigation Panel, had done so unlawfully under Nigerian law, which declarations Commissioner Gana had interpreted as an injunction preventing the Nigerian witnesses from attending. At my invitation, the Jersey Attorney General wrote to the Nigerian Attorney General on 13th November, 2009, in the following terms:-
Dear Attorney General,
Jersey Prosecution of Raj Arjandas Bhojwani for Money Laundering
I refer to the above matter and to the undertaking given by your predecessor, a copy of which I attach.
The trial in this matter is listed to commence on Tuesday 24th November, 2009.
The Jersey Court has requested that I write to you expressing my desire and the desire of the Court and defence counsel that all the Nigerian witnesses, that is to say:-
Mr. Nda
Mr. Al Hassan
Mr. Bawa
Mr. Gana and
Colonel Bako
attend in Jersey to give their evidence.
The Nigerian officer who has been liaising with the Jersey Police and arranging for the witnesses to travel to Jersey has suggested that there is an injunction in Nigeria which prevents the witnesses travelling for the trial. I have been asked by the Royal Court to enquire of you:
(a) whether there is such an injunction;
(b) if there is, who applied for it;
(c) If there is such an injunction, is there to be an application to lift it, if so, when that application is to be heard and what your assessment of the prospects of it being lifted is;
(d) if there is no injunction, whether you will use your best endeavours to procure that the following witnesses come to Jersey on the following dates:
(i) Mr Bako and Mr Bawa for 24th November, 2009;
(ii) Mr Gana for 7th December, 2009;
(iii) Mr Nda and Mr Al Hassan either 24th November, 2009, or beginning January, 2010.
I look forward to receiving your reply as a matter of urgency.
Yours sincerely,
T J Le Cocq
Attorney General"
6. The Nigerian Attorney General responded on 19th November, 2009, in the following terms:-
"Jersey Prosecution of Raj Arjandas Bhojwani for Money Laundering
I refer to your letter of request Ref: No.: WJB/SB CRPR007-025 dated 2nd September, 2008, and my response to same Ref: DPPA/MLAT/007/09, dated 28th April, 2009, informing you that the request is receiving attention. I further refer to your letter Ref: TJlEc/sb CRPR007-25 dated the 13th day of November, 2009.
2. After a very careful scrutiny of the circumstances surrounding the case, serious controversies bordering on Functions, Powers and Duties of Public Office holders under the Constitution of the Federal republic of Nigeria, 1999 emanated from the case which led to a Judgment delivered by the Federal High Court of Nigeria.
3. In the same vein, I hereby convey to you that the Federal Republic of Nigeria is ready to co-operate with you with a view to reviewing the evidence to determine if there are sufficient grounds to enable us to commence prosecution of the accused person (RAJ ARJANDAS BHOJWANI) in Nigeria on the generality of issues and more specifically on 'money criminally obtained from the Nigerian public purse" as observed in your letter of request.
4. We confirm that there is an ENROLMENT OF JUDGMENT ORDERS (sic) issued under the seal of the Court and the hand of the Presiding Judge, Hon. Justice G. O. Kolawole on 15th day of October, 2009, SUIT NO; FHC/ABJ/CS/560/2008, in the FEDERAL HIGH COURT OF NIGERIA, HOLDEN AT ABUJA, between RAJ ARJANDAS BHOJWANI (Plaintiff) AND (I) ATTORNEY-GENERAL OF THE FEDERATION; and (ii) NATIONAL SECURITY COUNCIL (Defendants) at the instance of RAJ ARJANDAS BHOJWANI wherein the Federal High Court declared;
'that all evidence (oral and/or documentary) obtained by Deputy Commissioner of Police Peter Gana in his capacity as the Chairman of the Special Investigation Panel, for use against the Plaintiff in criminal proceeding in the States of Jersey was unlawfully obtained.'
(The copies of the Enrolment of Judgment Orders and the Judgment are hereby attached and marked as ANNEXURES 1 AND 11).
5. Consequent of the above, I am unable to oblige your request for any Nigerian witnesses to testify at the trial in Jersey as the crux of the matter is centred on the national interest and I have a Constitutional duty to protect the judicial integrity of the Federal Republic of Nigeria given that the judgment has become of public knowledge.
6. This is a constitutional matter and the Federal Government of Nigeria intends to vigorously pursue this matter to the Supreme Court of Nigeria for a final decision.
7. I take this opportunity to inform you that the Federal Republic of Nigeria intends to lodge a request for mutual assistance to Jersey to assist in gathering evidence and transmitting same to Nigeria. Therefore, all evidence gathered in Nigeria and transmitted to you by the said Special Investigation Panel should be returned to me.
8. In the meantime, in line with the said judgment I intend to instruct the appropriate constitutionally recognised investigative authorities to investigate the activities of RAJ ARJANDAS BHOJWANI.
9. I hereby confirm that based on the evidence that would be gathered in Nigeria by the constitutionally recognised investigative authority and any other evidence available to you that would be thus transmitted by Jersey, I would review the entire evidence obtained in view of assessing whether there is a case to answer against such persons including RAJ ARJANDAS BHOJWANI, and deciding whether it is in the Nigerian Public Interest that such a case be brought.
10 Please accept, my highest consideration and esteemed regards.
CHIEF MICHAEL KAASE AONDOAKAA, SAN
Honourable Attorney-General of the Federation and Minister of Justice."
7. Of the five Nigerian witnesses, Mr Nda, Mr Al Hassan and Mr Bawa adduced documentation which I have now ruled admissible pursuant to Articles 65 and 66 of PPCE (see my judgment of 23rd November, 2009, AG-v-Bhojwani [2009] JRC 217) and it is therefore only the witness statements of Commissioner Gana and Colonel Bako that the prosecution seek to have read. The prosecution seek a ruling in principle, accepting that there will be an editing process to be undertaken between the prosecution and the defence in relation to these statements. That part of Commissioner Gana's statement that relates to the "caution statement" PG/1 taken by him from the defendant will be the subject of a voir dire.
8. It is accepted that where, as here, it is the prosecution who seek to have statements admitted under Article 64, the onus is on it to satisfy the requirements and the standard of proof in relation to those requirements is the criminal standard (see R-v-Radak (1999) 1 Cr. App. R. 187 at page 195).
9. The defence submit that further steps should be taken by the prosecution before I can be satisfied that it is not reasonably practicable to secure the attendance of Commissioner Gana and Colonel Bako. The prosecution should write directly to Colonel Bako, who being retired is not now a public officer, requesting his attendance and offering to pay his reasonable and proper expenses. Enquiries should be made of the Nigerian Attorney General as to the progress on the appeal which he intimated would be made against the decision of the Nigerian Court. Redacted parts of emails between the prosecution and Nigeria should now be disclosed so that the Court and the defence can have a full picture of the action taken by the prosecution to procure the attendance of these witnesses.
10. Furthermore, the prosecution should issue a further letter of request to the Nigerian Attorney General pursuant to the provisions of the Criminal Justice (International Co-operation)(Jersey) Law 2001 for the evidence of these witnesses to be heard in Nigeria on commission. The prosecution point out that one of the findings of the Nigerian Court in its judgment of 15th October, 2009, is that any such request could only be made to a "" or "" designated by the President of Nigeria. There is no evidence that any such authority had ever been designated. This finding might explain why the letter of request, issued by the Bailiff in November 2008 for the evidence of General Marwa to be heard on commission, has not until very recently been acknowledged by the Nigerian authorities, despite reminders.
11. The hearing of the evidence of these witnesses on commission would not constitute their "attendance" at the trial for the purpose of Article 64(2)(b) of PPCE (see R-v-Radak at page 196 and 197), but in any event, the Nigerian Attorney General has by his letter of 19th November, 2009, made the position absolutely clear:-
"Consequent on the above [the declaration of the Nigerian court] I am unable to oblige your request for any Nigerian witnesses to testify at the trial in Jersey."
I do not accept that in the face of such a categorical statement, the prosecution should take any further steps as suggested by the defence to secure the attendance of these witnesses or make further disclosure.
12. I am satisfied to the criminal standard that it is not reasonably practical to secure the attendance of Commissioner Gana and Colonel Bako for the trial of the defendant due to commence on 11th January, 2010.
13. Their statements were prepared for the purposes of these criminal proceedings and therefore the provisions of Article 67 of PPCE, which is in the following terms, apply:-
14. The parties agreed that the statements fall under the umbrella of Article 67 without separate consideration of Article 66. Unlike Article 66, however, the emphasis of the words in Article 67 is against their admission (see R-v-Radak at page 195). Again it is for the prosecution to prove positively to the criminal standard that the statements ought to be admitted in the interests of justice pursuant to Article 67 (see R-v-Radak at page 199).
15. The defence submitted that the submission of the statements would be in breach of the defendant's rights under Article 6(1) and 6(3)(b) of the European Convention on Human Rights 2000 which are in the following terms:-
16. The defence argue that the statements of Commissioner Gana and Colonel Bako are central to the prosecution case in that they relate to the role of General Abacha and General Marwa, without whose involvement it says there would be no predicate offences. The prosecution do not accept that proposition saying that the evidence of these two witnesses adds meat to well fleshed bones but is not core, sole or decisive. In any event European case law holds that where a statement admitted was the sole or at least the decisive basis for the defendant's conviction, the rights of the defendant under Article 6(1) and 6(3)(d) had not been respected (Al Khawaja and Tabery-v-United Kingdom (2009) 49 EHRR 1). This jurisprudence is at odds with English law as made clear in the recent Court of Appeal and Supreme Court decisions in R-v-Horncastle and others [2009] EWCA Crim 964 and [2009] UKSC 14. Lord Phillips summarised the Supreme Court's conclusions (which were consistent with those of the Court of Appeal) this way at paragraph 14:-
17. At paragraph 108 of the Supreme Court Judgment Lord Phillips distils the Court's reasoning into a single paragraph as follows:-
18. The defence accept that Horncastle is persuasive authority for this Court and that the English provisions contained in Section 116 of the Criminal Justice Act 2003 are for these purposes similar to Sections 23 and 26 of the Criminal Justice Act 1988 which it replaced and upon which Articles 64 and 67 of PPCE are modelled.
19. I conclude that the sole or decisive test has no application in this jurisdiction and that the proper application of Articles 64 and 67 of PPCE would not constitute a breach of the defendant's Convention rights.
20. As made clear by the English Court of Appeal in R-v-Dragic (1996) 2 Cr. App. R. 232 (quoting from Lord Griffiths in R-v-Scott (1989) 89 Cr. App. R. 153):-
In the words of Lord Taylor CJ:-
The English Court of Appeal emphasised the need for a judge in cases where a statement is admitted to give a warning to the jury about the absence of the scope of cross-examination and the importance of his making sure that there is nothing inadmissible in the statements which are admitted.
21. The defence object to the statements of Commissioner Gana and Colonel Bako being read for two reasons:-
(i) The intrinsic quality of the contents of those statements. There is a real risk it says that they cannot be controverted and will therefore be taken at face value by the Jurats.
(ii) The non-attendance of these witnesses at the trial is not something which the defendant intended or for which in fairness he should be held responsible.
22. I turn at this stage to the contents of the statements. The material parts of Commissioner Gana's statements relate to the Nigerian documentation. He confirms the offices occupied and signatures of inter alia the Finance Minister, Chief Anthony Ani, General Marwa and General Abacha. Some of the documents are annotated in hand-writing which he identifies as that of Chief Ani and General Abacha. He confirms the photo and signature of General Abacha's son in account opening documentation in a Swiss bank. He also confirms that he had discovered through his investigations that in the period in which General Abacha was Head of State all contracts with the Federal Government which were for an amount greater than 500,000 naira had to be approved by the Head of State personally.
23. Commissioner Gana gives this evidence not as an expert but on the basis of his familiarity with the persons concerned and this in his role as Chairman of the Special Investigation Panel, a position he had held since 1998. This panel was a task force set up in 1998 following the death of General Abacha to investigate past use of government monies and to attempt to recover misappropriated funds (see paragraph 37 of my judgment of 9th November, 2009, (AG-v-Bhojwani [2009] JRC 210A) in relation to the stay for abuse and subsidiary applications to exclude evidence). The defence accept that the admission of such evidence of fact is not contrary to law and good practice (see R-v-Robb (1991-93) Cr. App. R. 161) but the defence says it will be deprived of the ability to test and probe through cross examination the reliability of his evidence. He does not refer to any examples of signatures/hand-writing which are indisputable and against which the signatures on these documents can be compared. The defence would wish to thoroughly probe the extent to which he really is familiar with the signatures and hand-writings of these individuals and the basis upon which he refers to the policy in relation to contracts over 500,000 nairas. The defence says it has no ability to controvert this evidence as it has no access to documents which indisputably contain the signatures/hand-writing of these individuals.
24. Whilst the defendant may not be in a position to controvert the evidence of Commissioner Gana, the latter's position as Chairman of the Special Investigation Panel investigating the activities of the Abacha regime over many years and his familiarity therefore with the central figures of that regime, lead me to conclude that the risk of unfairness to the defendant if his statements are read is minimal.
25. Colonel Bako worked in the presidency at the material time. He describes himself as one of General Abacha's close confidants, who he would see every day. His evidence relates to the second contract dated 12th August, 1997, and apparently executed by the defendant's company Tata Overseas and Services Limited SA and by Colonel Bako in his position as the Chief of Logistics and Planning at the National Electoral Commission of Nigeria. Paragraphs 7-13 headed "The Contract Being Signed" deal with the signing of the contract and cover the instructions that he received form General Abacha and General Marwa and his dealing with the defendant and his office. Paragraphs 14-16 headed "The Negotiation of the Contract" make it clear that he was not involved in the negotiations and he recites what he says he was told by the defendant and by General Abacha and General Marwa. Paragraphs 17-25 headed "What happened to the contract after it was signed" give his account of the subsequent history by reference to both correspondence and meeting notes. Paragraphs 26-33 headed "The inflation of the contract price" deal with his inquiries into the prices charged for the vehicles under this contract. Finally, in paragraphs 37-47, he gives his explanation of the receipt of US$ 100,000 into his bank account out of what he alleges were the inflated proceeds of the sale of the vehicles.
26. It is clear that whilst there are aspects of Colonel Bako's evidence such as his private dealings with General Abacha and Colonel Marwa and certain explanations that he purports to give, much of his evidence relates to his dealings with the defendant and the defendant's company, which the defendant is able to controvert. The defendant is certainly able to say with whom he negotiated the contact. At the centre of the case against the defendant is the alleged dishonest inflation of the prices at which his company sold the vehicles to the Nigerian government. Colonel Bako's evidence in this respect is again certainly something which the defendant is in a position to controvert.
27. Mr Kelleher took me through a number of documents which he would wish to put to Colonel Bako if he were present and which he said showed material inconsistencies in his evidence going to his probity and motivation. Whilst it is not for me to speculate on the outcome of any such cross-examination (see R-v-Radak at page 200), I accept that there is documentary material to found a testing cross-examination of Colonel Bako. However in his absence the defence will still be able to put that documentation to the Jurats pursuant to the provisions of Schedule 4 of PPCE and invite them to draw what it says are the necessary inferences.
28. I conclude that the defendant is in a position to controvert much of the evidence of Colonel Bako and to the extent that he is unable to do so, the risk of unfairness can be counter-balanced by the defence leading relevant documentary evidence under Schedule 4 of PPCE and by appropriate directions to the Jurats.
29. Article 67(2)(c) requires me to have regard to any other circumstances that appear to me to be relevant. The prosecution have referred me to paragraph 104 of Horncastle:-
30. Whilst we are not dealing here with an allegation that the defendant has induced fear in these witnesses, the prosecution say the same policy should apply, in that the defendant is responsible for their refusal to attend and cannot therefore complain.
31. The defence argue that in seeking to secure a declaratory judgment in Nigeria the defendant was exercising his legitimate rights under Nigerian law, a proposition to which no opprobrium should apply. He is not the author of the proper law of Nigeria.
32. I accept that in bringing the Nigerian proceedings the defendant was exercising his legitimate rights under Nigerian law. However, I must consider the position under Jersey law and, whether or not the defendant or his advisers could have foreseen this outcome, it is as a direct result of his bringing the Nigerian proceedings that Commissioner Gana and Colonel Bako will not now attend this trial. I determine that in the context of the Jersey proceedings this is an outcome for which the defendant is responsible and in balancing fairness between prosecution and defence, this is a circumstance which I should and do take into account.
33. Underlying the defence's objections to the reading of these statements is its general concern as to the perceived level of corruption in Nigeria and the reliability therefore of the evidence of witnesses from that jurisdiction, particularly a witness such as Colonel Bako who was closely associated with the Abacha regime. However in my view there is nothing inherently unreliable on the face of these statements and such concerns therefore go to the weight to be attached to them. I would intend to draw such concerns to the attention of the Jurats in the directions that I give.
34. Thus, having regard to the matters set out in Article 67(2) of PPCE namely the contents of the statements, the risk that their admission will result in unfairness to the defendant and the circumstances that I have found relevant, I am of the opinion that the statements of Commissioner Gana and Colonel Bako ought to be admitted in the interests of justice. I therefore give leave for these statements to be given in evidence subject to editing.
35. Two further matters arise.
The defendant's "caution statement" PG/1
36. The admissibility of the defendant's "caution statement" taken by Commissioner Gana will be the subject of a voir dire that will now be conducted in the absence of Commissioner Gana. The defence submit that in ruling upon the admissibility of PG/1 I will be required to decide among other matters on the truthfulness of Commissioner Gana, which might properly have a bearing on the decision to admit his witness statements. Commissioner Gana describes the circumstances in which that caution statement was taken in one paragraph of his statement of 15th February, 2008. Subsequently in the Nigerian proceedings the defendant swore a detailed affidavit comprising some 19 paragraphs setting out his recollection of the circumstances in which that statement was taken and to which Commissioner Gana has not responded. In the absence of any evidence at the voir dire from Commissioner Gana, I conclude that if the defendant's evidence as set out in his affidavit is accepted in full, that will not necessarily lead to any finding that Commissioner Gana was untruthful and will not have any bearing on the admissibility of the statements which are the subject of this application.
Investigation
37. The defence sought a direction that the prosecution investigate whether it was the case that Mr Monfrini, the Swiss lawyer representing the Federal Republic of Nigeria (and through whom the evidence upon which the prosecution relies has been sought by letters of request) receives a percentage of all amounts repatriated to Nigeria or received by Nigeria pursuant to his brief and, if so, whether Commissioner Gana has in the past received from Mr Monfrini or from any other source any payment for his role and/would or might receive such a payment for his participation in the prosecution of the defendant. The defence sought a similar direction in relation to Colonel Bako.
38. The prosecution point out that Mr Monfrini is not a witness and his credibility is not an issue. The terms of his retainer are therefore irrelevant. In any event, the Crown is not aware of any improper motive or reward or inducement in relation to either Commissioner Gana or Colonel Bako.
39. Under Section 124 of the Criminal Justice Act 2003 a defendant can ask the court to call upon the prosecution to investigate the credibility of any absent witness and disclose anything capable of challenging it. As made clear in Horncastle at paragraph 36(i) that exercise will ordinarily require the prosecution to go considerably beyond what would otherwise be the duty simply to disclose what is already in its possession and capable of undermining its case; it would require active investigation of the bona fides, associates and credibility of the witness, so as to provide the defendant with, in addition to what he already knows, everything capable of being found which can be used to test the reliability of the absentee.
40. There is no such provision under our law and I doubt whether the Court has the inherent power to direct the Attorney General to carry out such an investigation. Even if it does have the power, I would decline to exercise it on the facts of the present case. There is no suggestion that Commissioner Gana may be motivated by financial reward, but in any event, such an investigation would require the assistance of the Nigerian authorities which given the response of the Nigerian Attorney General is unlikely to be forthcoming, certainly within the timescale necessary for this much delayed trial.
