Jersey Unreported Judgments

[2008]JRC148A

ROYAL COURT

(Samedi Division)

9^th September 2008

The Attorney General

-v-

Raj Arjandas Bhojwani

Letter of Request.

Advocate M. T. Jowitt for the Attorney General.

Advocate J. D. Kelleher for the Defendant.

JUDGMENT

THE commissioner:

1.        On 20^th August 2008 I refused a prosecution application that I should give certain directions in relation to a forthcoming hearing of evidence on commission in India and I now set out my reasons.

2.        The defendant stands indicted of 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 proper is due to commence on 20^th October 2008.

3.        On the application of the defendant, the Court has issued a letter of request under Article 4 of the Criminal Justice (International Co-operation)(Jersey) Law 2001 ("the 2001 Law") to the Chief Metropolitan Magistrate Chennai in India to obtain the evidence of Mr G Narayanan ("Mr Narayanan") who was the manager of the Bank of India branch in Jersey at the material time.

4.        On 5^th March 2002, Mr Narayanan was interviewed by representatives of the Attorney General for Jersey under Article 2 of the Investigation of Fraud (Jersey) Law 1991.  An issue has arisen as to the use to which the transcript of that interview will be put by the defence at the commission hearing. 

5.        The prosecution understood the position of the defence to be that the transcript was freely admissible in evidence at the commission hearing and subsequently at the trial, contrary, it contends, to fundamental rules of evidence and practice. 

6.        Fearing an evidential free-for-all, the prosecution therefore sought rulings and directions from this court in the following terms:-

(i)        that the Article 2 Investigation of Fraud (Jersey) Law 1991 interview with Mr Narayanan and the transcript of it are, for the purposes of the Indian commission, inadmissible hearsay in so far as it is sought to adduce them as evidence of the facts stated therein;

(ii)       that any move to adduce either of them in evidence as evidence of the facts stated therein will only be made in the Royal Court in Jersey, and then on notice to the prosecution;

(iii)      for the avoidance of any doubt, that the defence shall not seek to prove the content of the Article 2 interview and transcript as evidence of the facts stated therein through Mr Narayanan or any other person at the Indian commission, whether by quoting passages to him, placing a copy in front of him, or otherwise howsoever;

(iv)      that the content of the Article 2 interview and transcript is inadmissible as a previous consistent statement and may not be adduced as such at the Indian commission;

(v)       that the defence provide Mr Narayanan with sufficient opportunity to read the Article 2 interview transcript, or any witness statement he may provide, before he gives evidence;

(vi)      that before Mr Narayanan may properly be entitled to refresh his memory from the transcript or any witness statement he may provide after he has begun his evidence, the defence shall first establish through the witness that the Da Silva criteria are satisfied;

(vii)     that in so far as Mr Narayanan is therefore permitted to read the transcript or any witness statement he may provide after he has begun giving evidence, he must break off from giving evidence whilst he reads it and, thereafter, the interview transcript should be removed from him before he continues giving evidence;

(viii)    that the prosecution are entitled by virtue of Article 80 PPCE to cross examine Mr Narayanan upon any previous inconsistent statement within the transcript.

7.        I do not intend to comment on the terms of the rulings and directions sought because in my view it would be wrong in principle for the Court to give any rulings and directions.

8.        The prosecution proceeds on a number of assumptions.  It assumes that Jersey counsel will be given a right of audience at the commission hearing and that the presiding judge will apply Jersey law to any issues that arise.  It makes assumptions as to the nature of the issues that will arise in relation to this transcript. It is unaware of what, if any, rules apply to the conduct of such hearings under Indian law, equivalent, for example to the schedule to the 2001 Law governing proceedings before the Jersey courts or the Viscount for evidence for use overseas. 

9.        The prosecution accepts that it would be wrong and contrary to the principles of comity for this Court to seek to give direct orders to the presiding judge as to how the commission hearing should proceed.  In my view, if it is wrong to seek directly to control the conduct of the commission hearing in that way, then it must be wrong to seek to do so indirectly through personal orders against officers of this Court, who might be attending that hearing.   Out of courtesy and respect, the presiding judge at the commission hearing must be in control of the process and should not have before him lawyers personally bound by orders from the requesting foreign court aimed at ensuring that the hearing proceeds in a pre-determined manner.

10.      There is a further objection to what the prosecution proposes.  Once the presiding judge becomes aware that the Court has issued rulings and directions (courtesy demands that the presiding judge should be made so aware), there is a danger that if any issue of interpretation of the Jersey order arises, the presiding judge may well be inclined to refer the matter back to the Jersey Court for clarification, which, in the nature of communications between countries, will lead potentially to very serious delays. 

11.      Furthermore, being aware that the Jersey courts have sought to give directions as to the conduct of the hearing, the presiding judge may be inclined to refer other unforeseen issues that arise back to the Jersey Court, with the same consequential delays.

12.      All in all, I have no doubt that , as the defence put it, when seeking assistance from a foreign court this Court must trust the presiding judge at the commission hearing to control the commission's proceedings in the interests of justice as the judge determines them to be and on the basis of events as they transpire. If the Indian commission requires and requests assistance as to Jersey law, then it is likely that Jersey advocates for both the defence and the prosecution will be in a position to give it at the time of the hearing, but I agree with the defence that it is not possible for any such assistance to be given in advance of events and in the abstract. 

13.      The defence made it clear in its submissions to me that it has no intention of conducting its examination in chief and/or re-examination of Mr Narayanan in any way which may prejudice the admissibility of the evidence of Mr Narayanan at the trial.  The defence is right to do so because whilst the transcript/video of the evidence taken from Mr Narayanan at the commission hearing is prima facie admissible (Article 4(6) of the 2001 Law), the trial judge has an overriding discretion to exclude the whole or any part of it from the trial.  Thus the defence run the real risk that if the commission hearing is conducted in a manner which is contrary to the fundamental rules of evidence and practice, the exercise may be rendered wholly or partly nugatory.

14.      I am supported in my view by the fact that the prosecution could produce no precedent for rulings and directions of this kind having been given before and we were informed by the Judicial Greffe that it is not aware of foreign courts purporting to give such orders in relation to hearings on commission conducted here.  We understand that in practice those presiding at such hearings here would deal with issues of this kind by the practical expedient of putting questions on documents to which objections are taken to the end of the evidence, in order to minimise any prejudice and to enable the foreign court to more easily excise that part which it finds objectionable.

Authorities

Proceeds of Crime (Jersey) Law 1999.

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

Investigation of Fraud (Jersey) Law 1991.

Police Procedures and Criminal Evidence (Jersey) Law 2003.