Jersey Unreported Judgments

[2008]JRC195A

Royal Court

(Samedi Division)

13^th November 2008

The Attorney General

-v-

Raj Arjandas Bhojwani

Advocate M. T. Jowitt for the Attorney General.

Advocate B. Grace for the Defendant.

JUDGMENT

commissioner:

1.        This order follows the plea and directions hearing that took place on the 11^th November, 2008. 

2.        Taking first the legal issues, the Defence have given notice of a number of legal arguments which it submits should be the subject of further preparatory hearings under Article 84 of the Police Procedures and Criminal Evidence (Jersey) Law 2003 ("PPCE").  It would be helpful to hear those arguments before the trail, which is due to start on the 26^th January, 2009, but the issue arises as to whether they should be heard at the preparatory hearing, which carries with it a right of appeal, or at a pre-trial hearing, which does not. 

3.        The points of law arise in the main from earlier decisions made under Article 84, as a result of which the predicate offences have now been expanded to include fraud, fraudulent conversion, conspiracy to commit the same and bribery.  At this juncture there is a real possibility that allowing proper time for the parties to prepare their submissions and for the Court to issue its judgments, but there will be no time for any Court of Appeal to properly dispose of any appeals that may be brought before it before the start of the trial, thus bringing about what would be a second adjournment. 

4.        It seems to me that whilst there are substantial benefits to having all issues heard in advance, and if appealed confirmed or otherwise by the Court of Appeal, those benefits have to be weighed against the need for the trial to proceed in reasonable time.  I am mindful of the general prejudice caused by delay, and in particular that the defendant has been remanded on bail in the Island since February 2007 and of his Convention right to a trial within a reasonable time. 

5.        The Crown submit that one of the points of law, whether there must be an operative deception for Foster Fraud, could usefully be the subject of a preparatory hearing because it was not a point considered by the Court of Appeal in Foster and I see merit in the transposition argument in relation to misconduct in public office being the subject of a preparatory hearing, as transposition is already the subject of an application for leave to appeal.  If leave is granted then it would be sensible for all transposition arguments to be before the Court of Appeal.

6.        Exercising my judgment I conclude that I should restrict any further preparatory hearings to the minimum so that they can be heard in early course and, if appealed, dealt with by the Court of Appeal without delaying the trial.  Other issues should be dealt with by way of pre-trial hearings.

7.        I therefore direct as follows:-

(i)        There will be a further preparatory hearing to be held, if possible, in the first week of December 2008 to deal with the following two issues:-

(a)       The Defence contentions set out in paragraphs 41.2 and 43 of its amended Defence case statement in relation to Foster Fraud; and

(b)       The Defence contention that misconduct in public office cannot be the subject of transposition.

8.        The parties will attend before the Bailiff's Judicial Secretary in order to fix a date for those hearings.  The Defence will file its skeleton arguments and authorities 10 days before the hearing and the Prosecution will file its response 5 days before the hearing.

9.        The remaining points of law, as set out in paragraphs 41 of the Defence case statement, save for paragraph 41.5 which relates to conspiracy not being subject to transposition, which is not apparently being pursued, will be dealt with by way of pre-trial hearings pursuant to Article 94 of PPCE, to be heard in late December 2008/early January 2009. 

10.      The parties will attend before the Bailiff's Judicial Secretary in order to fix the dates of those hearings.  The Defence will file its skeleton arguments and authorities 10 days before the hearings and the Prosecution will file its response 5 days before those hearings.

11.      I turn now to the issue of admissions and the notice to agree facts, the Prosecution's submissions on the inadequacy of the Defence response and the Defence's requirement to have sight of the Nigerian and other Letters of Request.  It is clear that there is work in progress on these issues, but I wish to impose a deadline to encourage the process so that the parties can move towards formal admissions pursuant to the Criminal Justice (Evidence and Procedures)(Jersey) Law 1998 which will have a very beneficial impact upon the duration of the trial. 

12.      I therefore direct that a hearing will be fixed now for me to consider formally the Prosecution's submissions as to the adequacy of the Defence response and any application the Defence may have for disclosure of Letters of Request, and indeed other issues relating to the issue of admissions.

13.      The parties will attend before the Bailiff's Judicial Secretary in order to fix a date for this hearing.  The Prosecution and the Defence will file their respective contentions 5 days in advance of that hearing.

14.      The Defence have required all Prosecution witnesses to attend the trial.  Three of the Nigerian witnesses would have to come to the Island simply to prove historical documents.  The Prosecution invite me to adopt the case management approach adopted in England and require the Defence to justify this request in broad terms.  Mr Kelleher wishes to address me on whether the Defence in Jersey can be required to justify the same. 

15.      We do not have the scheme which applies in England under the Criminal Procedure Investigation Act 1996 in respect of the calling of witnesses which, as I understand it, gives the Court the power to override a Defence objection to a witness not being called and his statement or disposition being read in evidence.  Mr Jowitt accepted that I had no power to override the Defence requirement in this case.  He suggested that I should, as any trial judge in England would apparently do, require Mr Kelleher to justify this requirement as an officer of the Court.

16.      I am concerned at the notion of requiring Mr Kelleher, as an officer of the Court, to justify a decision, taken by him as Defence counsel, when there may be no obligation upon the Defendant in Jersey Law to provide such justification, and when to answer it might require the Defence to disclose the detail of part of its case when under Article 86(6) of PPCE it is only required to do so in general terms. 

17.      Desirable as it is to avoid the cost of witnesses attending from Nigeria simply to provide what the Prosecution say is non-contentious evidence, I decline, at this juncture, without hearing further submissions, to require such justification.  However, I do require to revisit this issue at a further plea and directions hearing to take place at the same time as the admissions hearing.

18.      There will be liberty to apply, in particular where I have imposed time limits for the filing of arguments and authorities.  I invite counsel to review the same when the hearing dates are actually fixed, and I give leave for counsel to change those dates, or time requirements, by agreement between them duly notified to the Court. 

19.      As can be seen in general terms, my directions envisage firstly, preparatory hearings to take place as soon as practicable, and hopefully within the first week of December, so as to leave time for appeals to be heard, if any; secondly, an admissions hearing and a further plea and directions hearing to follow shortly thereafter; and thirdly, pre-trial hearings to take place in late December/early January. 

20.      Finally it has come to light in the recent application by the Crown to remove bail that lawyers acting on behalf of the Defendant have written to the Attorney General of Nigeria seeking to persuade him to direct Police Commissioner Ghana as to the terms of his evidence before this Court.  Mr Ghana is a witness as to fact.

21.      If there was any doubt in the minds of the Defendant's legal advisors as to their duties in relation to witnesses I am sure the bail hearing will have firmly dispelled them and that I have no need to remind them of their duties now, but I must make it clear that I will require to revisit this matter when the trial has been completed.

Authorities

Police Procedures and Criminal Evidence (Jersey) Law 2003.

Foster v The Attorney General [1992] JLR 6.

Criminal Justice (Evidence and Procedures)(Jersey) Law 1998.

Criminal Procedure Investigation Act 1996.