Jersey Unreported Judgments

[2009]JRC056

ROYAL COURT

(Samedi Division)

27^th March 2009

The Attorney General

-v-

Raj Arjandas Bhojwani

Regarding the Commissioner's attendance in India.

Advocate M. T. Jowitt for the Attorney General.

Advocate J. D. Kelleher for the Defendant.

JUDGMENT

THE commissioner:

1.        On 23rd February 2009, I declined an invitation from the prosecution to attend at the taking of the evidence of defence witnesses on commission in India in early March 2009 and now set out my reasons.

2.        On the application of the defence, the Bailiff has issued letters of request to the Chief Magistrate of Chennai in India for the obtaining of evidence of three witnesses.  The Chief Magistrate has ordered an Indian barrister to be the commissioner ("the Indian commissioner") with power to summon the witnesses and record the evidence given.

3.        The evidence of one witness was completed in November 2008 and the evidence of the remaining witnesses was due to be heard in early March 2009.  Jersey counsel for the prosecution and the defence appeared before the commission in India in November and were due to appear in early March. The defendant's bail conditions require him to remain in Jersey and therefore the possibility of his attending the commission hearings in India did not arise.

4.        It was not suggested by the prosecution that I should perform any function in relation to the process ordered by the Indian magistrate.  It was proposed that I sit in on the hearings and if any ruling on Jersey law was needed during the hearing, the parties would ask that the Commission be adjourned and, in a separate hearing, I would hear submissions and make the necessary ruling.  It was envisaged that the parties would then abide by that ruling when the commission resumes. It was conceded that the consent of the Indian government and the Indian commissioner would be needed for that to occur.

5.        There are two issues, firstly, can a judge of the Royal Court exercise his or her powers when he or she is not physically present in the Island, and secondly, should I do so in this case.

6.        In relation to the first issue, there is no Jersey authority which deals directly with the question and the prosecution had not been able to find any legislative provision which addressed the question either.  That being said, the prosecution asserted that commissioners of the Royal Court make rulings while physically absent from the Island on a reasonably regular basis.  Commissioners make rulings at directions hearings in both civil and criminal cases from their homes in England or from their chambers in London.

7.        In England, under CPR Rule R34.13, there are two means by which the evidence of a person outside that jurisdiction can be obtained. Either a letter of request can be issued to the judicial authorities of the country concerned to take the evidence of that person, or arrange for it to be taken, or the High Court can appoint a special examiner to examine the person in that country, if the government of the country allows.  An example of the latter is the case of Peer International Corp. v Termidor Music Publishers Limited (2005) EWHC 1048, where the High Court judge appointed himself a special examiner to take the evidence of witnesses in Cuba, essentially because of the benefits gained if he, as the judge in the main action, saw and heard the foreign witnesses giving their evidence.  He acknowledged that when sitting as a special examiner in Cuba he would be relatively powerless, with no ability to coerce witnesses to attend or even the right to ask for Cuba's assistance to procure the attendance of witnesses.  He would have no power to respond to what in England would or might have been a clear contempt of court and if any witness were to lie he would have no power to recommend proceedings for perjury.  In essence, he would not have at his disposal any of the coercive powers available to a judge sitting in his own jurisdiction. 

8.        There is no provision under Jersey law for the Court to appoint special examiners to take evidence of witnesses outside the Island. Here the evidence is being taken by the Indian commissioner pursuant to a letter of request.

9.        Should I attend in this case, assuming the consent of the Indian government and the Indian commissioner would be forthcoming?  The evidence being given in India is for the Royal Court trial.  The prosecution submits that fairness dictates that the taking of the evidence conforms to the law of Jersey.  They say it is sometimes a difficult and time consuming process to edit out parts of the evidence which have been obtained in a manner which is not in accordance with Jersey law, particularly where a breach of the law has led to a substantial body of evidence which would not, but for the breach, have been given at all.  The need for editing should, in any event, be avoided if it is practical to do so.  The prosecution also says that it is not an ideal state of affairs in adversarial proceedings for the parties themselves to be left to police the taking of evidence.  Accordingly, it submits that the balance of fairness comes down heavily in favour of my being available to give rulings during the evidence. The prosecution acknowledges that the defendant would not be present at any such hearing before me in India (because of his bail conditions which confine him to Jersey) but assert that he has no input into issues of law.

10.      The defence argued that to invite me to exercise any of my judicial powers and discretions while enjoying the courtesy of the Indian court would, at its lowest, give rise to possible confusion.  Worse still, the defence believes that there would exist the risk, even if inadvertent, of a potential for offending against proper protocol in the proper jurisdiction of the Indian commissioner in the Indian courts.  The defence pointed out that the prosecution had not, by reference to the evidence already taken, made out a good case for the necessity of my attendance.  It pointed out that there is no distinction to be drawn on the principal issue of substance between the suggestion that I attend the resumed commission and those matters which previously caused me to properly conclude that I cannot give directions to apply to the conduct of the Commission (See my judgment of 9^th September, 2008, [2008] JRC 148A).

11.      Whilst accepting that it may be possible for me to exercise my judicial powers and discretions outside the Island, the defence say that the circumstances in which those powers and discretions can be exercised outside the authority of a sitting of the Royal Court must be extremely narrow and confined to the most exceptional facts and circumstances.  Likewise, the extent to which a sitting of the Royal Court can properly be convened outside of the jurisdiction of the Island must be exceptional and the defence submit must be confined to those circumstances in which the relevant jurisdiction has expressly permitted such a sitting.  The extent to which the in personam jurisdiction of a commissioner and the Royal Court extends to those appearing before him must clearly be in question outside the territorial jurisdiction of the Island. In its view the editing exercise to which the prosecution had referred is the appropriate way in which to proceed in relation to the evidence of all the witnesses taken on commission.

12.      I agree with the defence that a foreign and local court purporting to interact in the manner suggested by the prosecution will give rise to confusion and the invitation to approach the Indian authorities for consent should be declined on that ground alone. 

13.      However, I have a more fundamental concern.  What is required are rulings (i.e. pronouncements which are authoritative) to be given on matters of Jersey law, not advice.  My powers as a commissioner to give such rulings can only be exercised when presiding over a duly constituted sitting of the Royal Court.  That is made clear by the provisions of Article 10(1) of the Royal Court (Jersey) Law 1948 which is in the following terms:-

"10       Appointment of Commissioners

(1)       The Bailiff may from time to time appoint qualified persons, to be known as Commissioners, to preside over the Royal Court".

Article 10 then goes on to provide:-

"12     Powers of Commissioners

(1)       Where a Commissioner presides over the Royal Court the powers of the Bailiff specified in Article 15 shall be exercised by that Commissioner."

14.      Accordingly, in order for rulings of law to be made by me in India, I would have to be presiding over a duly constituted sitting of the Royal Court in India.  Leaving aside the issue of whether the Indian authorities would agree to the Royal Court sitting in India, there is no precedent of which I am aware of the Royal Court ever having sat outside its own jurisdiction.  The examples given by the prosecution in paragraph 6 above all involve sittings of the Royal Court duly convened in Jersey, attended by the Judicial Greffier and counsel in Jersey, with the commissioner presiding via video link or telephone from England.  Whilst the commissioner may be physically outside the Island, he is presiding through such media at a duly constituted sitting of the Royal Court in Jersey.  There is no instance of which I am aware of the Judicial Greffier and Jersey counsel attending a commissioner in England at a sitting of the Royal Court duly convened in England.

15.      I have serious doubts as to whether the Royal Court can be convened outside the Island separated from the jurisdiction from which it derives its power and authority. If it purported to do so it would be as powerless as the High Court judge in Peer sitting as a special examiner in Cuba. It is not surprising in my view that there is no legislative provision in Jersey for addressing the question of whether it can do so, because the assumption must be that it will only ever sit within its own jurisdiction. I note there would appear to be no suggestion that the High Court can be convened outside England assuming the consent of the jurisdiction concerned.

16.      Even if it were possible for the Court to be convened in India, a further difficulty arises under Article 72 of the Loi (1864) Réglant la Procédure Criminelle which provides:-

"L'accusé sera présent aux débats et à tous les jugements qui le concernent, et le Verdict de l'enquête sera rendu en sa présence:

Néanmoins, si par une conduite violente ou désordonnée l'accusé trouble l'ordre et empêche la Justice d'avoir son cours, la Cour pourra le faire sortir de l'audience, et en ce cas les débats pourront être continués en son absence, et l'Acte de la Cour en fera mention."

17.      The defendant's presence at all sittings of the Court involving the prosecution against him is thus mandatory. If the Court were to sit in India the defendant would have to attend and for obvious reasons that would not be possible.

18.      Whatever the benefits of the proposal put forward by the prosecution, the complete absence of any authority for the proposition that the Royal Court can properly be convened outside its own jurisdiction, the absence of any precedent of it ever having done so, my own considerable doubts as to whether it could ever do so and the inability of the defendant to attend if it did so could only lead to one conclusion namely that the invitation should be refused. 

Authorities

Peer International Corp. v Termidor Music Publishers Limited (2005) EWHC 1048.

AG v Bhojwani [2008] JRC 148A.

Royal Court (Jersey) Law 1948.

Loi (1864) Réglant la Procédure Criminelle.