Jersey Unreported Judgments

[2009]JRC217

ROYAL COURT

(Samedi Division)

23^rd November 2009

Before     :

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

The Attorney General

-v-

Raj Arjandas Bhojwani

Exclusion of evidence under Article 66 PPCE

M. T. Jowitt, Esq., 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.  His trial is due to commence 24^th November, 2009. 

2.        The defence apply by way of pre-trial hearing for a direction that evidence that is admissible by virtue of Article 65 of the Police Procedures in Criminal Evidence (Jersey) Law 2003 ("PPCE") ought not to be admitted.

3.        By way of background, the prosecution has obtained evidence from Nigeria (and other jurisdictions) pursuant to letters of request issued under Article 4 of the Criminal Justice (International Co-operation)(Jersey) Law 2001 ("the Co-operation Law").  Evidence so obtained is admissible in evidence without being sworn to by a witness pursuant to the provisions of Article 4(6) which is in the following terms:-

"(6)     Evidence obtained by virtue of a letter of request shall, without being sworn to by a witness, be admissible in evidence and in exercising any discretion to exclude evidence otherwise admissible in relation to a statement contained in evidence taken pursuant to a letter of request the court before which it is sought to introduce that evidence shall have regard -

(a)       to whether it was possible to challenge the statement by questioning the person who made it; and

(b)       if proceedings have been instituted, to whether local law allowed the parties to the proceedings to be legally represented when the evidence was taken."

4.        The inter-relationship between Article 4(6) of the Co-operation Law and the law in relation to the admission of evidence generally is illustrated by reference to the following extract from paragraph 9-3 of Archbold 2008 Edition:-

"Whether public documents or private documents are being considered, two issues arise. (a) How may the document be proved?  This includes questions such as whether a copy will suffice, whether parol evidence of the contents may be given and how to prove the execution of a private document.  (b) Once the document has been proved or secondary evidence of its contents given, what use may be made of the contents?  It is only in relation to the second question that the issue of hearsay arises.  If objection is successfully taken to the admissibility of a document on the ground of hearsay, then, of course it will not be put in evidence at all."

5.        Article 4(6) of the Co-operation Law is concerned with the first issue only, so that evidence obtained by letter of request need not be proved by a witness.  However, it is not concerned with the second issue which is what use may be made of its contents.  Every document must be relevant to an issue in the case in order to be put into evidence at all and if it is relevant, it is subject to the rule against hearsay; namely that any statement in a document will be hearsay and inadmissible if the purpose for which it is sought to tender it in evidence is to rely on the truth of the statement, unless the document can be brought within one of the exceptions to the rule.

6.        In this case, the prosecution do seek to tender the documents obtained by letters of request in order to rely on the truth of the statements made within those documents and hence apply under Article 65 of PPCE for their admission.  Article 65 is in the following terms:-

"65     Business etc. documents

(1)       Subject to paragraphs (3) and (4) a statement in a document shall be admissible in criminal proceedings as evidence of any fact of which oral evidence would be admissible if the following conditions are satisfied -

(a)       the document was created or received by a person in the course of a trade, business, profession or other occupation, or as the holder of a paid or unpaid office; and

(b)       the information contained in the document was supplied by a person, whether or not the maker of the statement, who had, or may reasonably be supposed to have had, personal knowledge of the matters dealt with.

(2)       Paragraph (1) applies whether the information contained in the document was supplied directly or indirectly but, if it was supplied indirectly, only if each person through whom it was supplied received it -

(a)       in the course of a trade, business, profession or other occupation; or

(b)       as the holder of a paid or unpaid office."

7.        It is for the prosecution to satisfy me that the conditions set out in Article 65 are met and I am so satisfied.  The defence accept that these conditions are satisfied.  However, the defence submit that certain of the Nigerian documents should not be admitted in the interests of justice pursuant to the principles set out in Article 66 of PPCE which is in the following terms:-

"66     Principles to be followed

(1)       If, having regard to all the circumstances, a court, in any proceedings, is of the opinion that in the interests of justice a statement which is admissible by virtue of Article 64 or 65 nevertheless ought not to be admitted, it may direct that the statement shall not be admitted.

(2)       Without prejudice to the generality of paragraph (1), the court shall have regard -

(a)       to the nature and source of the document containing the statement and to whether or not, having regard to its nature and source and to any other circumstances that appear to the court to be relevant, it is likely that the document is authentic;

(b)       to the extent to which the statement appears to supply evidence which would otherwise not be readily available;

(c)       to the relevance of the evidence that it appears to supply to any issue which is likely to have to be determined in the proceedings; and

(d)       to any risk, having regard in particular to whether it is likely to be possible to controvert the statement if the person making it does not attend to give oral evidence in the proceedings, that its admission or exclusion will result in unfairness to the accused."

The defence have asked me to have particular regard to Article 66(2)(a) and (d) and to proceed to rule on the basis of the statements obtained by the prosecution in relation to the Nigerian letters of request.

8.        There is no Jersey case law on the operation of Article 66 and there is limited case law under English law in relation to the equivalent provision, namely Section 25 of the Criminal Justice Act 1988 (now superseded by Section 117 of the Criminal Justice Act 2003). R-v-Gordon Foxley [1995] 2 Cr. App. R.523 however provides a useful illustrative analysis of the test under Section 25.  In that case, it was held that the purpose of Sections 24 and 25 of the Criminal Justice Act 1988 was to enable a document to speak for itself and parliament's intention would be defeated if in every case the creator or keeper of a document or the suppler of the information had to be called.  Parliament's intention had clearly been that the court could draw such inferences as it thought proper from the documents themselves and from the method or route by which the documents had been produced before the court.

9.        In Foxley the defendant was employed by the Ministry of Defence and was alleged to have corruptly placed contracts with three foreign manufacturing companies and to have had money paid into numbered accounts in Swiss banks on his behalf through three other foreign companies acting as intermediaries.  The prosecution case depended upon documentary evidence produced by two Ministry of Defence police investigators which evidence included documents created by the Ministry of Defence showing the part that the defendant played in the authorisation of the contracts, the documents found at the defendant's home and documents such as credit notes, invoices and credit invoices recovered from the manufacturing companies through commissions rogatoires or other formal foreign procedures. 

10.      One of the grounds of the appeal of Foxley was that the judge was wrong not to exclude the documents from the three manufacturing companies under section 25(2)(a) to (d) (the equivalent of our Article 66(2)(a)-(d)).  In relation to the authenticity and reliability of the documents Roch LJ said this:-

"The judge, in ruling on the defence submission made under section 25, decided, first, that the documents were authentic and reliable.  That is a conclusion which, in our judgment, he was entitled to come to on the evidence of Detective Sergeant Rogers.  The documents had been obtained by the appropriate authority in the particular country from the documents kept by the manufacturing company concerned.  The documents were extracted from larger files of documents kept by those companies.  The originals were in the case of Germany retained by the Public Prosecutor and in the case of Italy by the Investigating Magistrate.  There was, and is, no reason to doubt that the copies were accurate copies of those originals.  We have considered this aspect of the case and have come to the same conclusion as the judge, namely:

'Having regard to the age, nature and source of those documents I am satisfied that it is most unlikely that the makers fabricated the contents of those documents, or rather the information given in those documents.  Those documents were created some ten years ago in the normal course of business.  They make no assertion ... of the honesty or dishonesty of the defendant.  They merely show a possible payment of money into one of the Swiss accounts.'"

11.      In relation to section 25(2)(d), quoting from the judgment of Roch LJ:-

"The third finding by the judge in his ruling was on the submission that the defence had no opportunity to controvert the statements in these documents.  The judge did not accept that submission.  At p. 5C of the transcript of the ruling he said:

'It is of course my clear duty to be fair and even-handed to both sides and to ensure that there is a fair trial.  There is some evidence to support the contention that the defendant had control of the bank accounts in Switzerland into which the monies were in fact paid.  Accordingly he will be in a position to controvert the contents of those documents.'

We agree with the judge's conclusions on these matters also.  The purpose of section 24 is that the documents should prove the facts stated in the document.  To require a witness with personal knowledge of those facts to be called to give evidence and to be cross-examined would defeat the purpose of section 24.  To require the Crown to call a witness who does not have personal knowledge of those facts is simply to introduce inadmissible evidence unless the witness is a witness of the authenticity of the document.  Such a witness, unless an expert on the documents, would have to be the creator or possible the keeper of the document, for the evidence of any other person about the authenticity would be either hearsay or opinion evidence and inadmissible.  Thus, we return to what we consider to be the crucial issue: is it necessary to call the creator or keeper of the document or can a court infer that the document is authentic from its provenance?  The opinion that we have already expressed is that the law says that a court can infer the authenticity of a document from the nature of the document itself, its source and the method by which it has been brought before the court."

12.      There were other documents upon which the defendant in Foxley was not in a position to controvert but quoting from the judgment:-

"However, it is a question of balancing the competing interests, as Ralph Gibson LJ observed in Cole at p. 486.  We do not consider the judge can be said to have been wrong in being of the opinion that it had not been established that in the interests of justice he should direct that the documents should not be admitted.

We would add that we ourselves have had regard to all the circumstances and, in particular, to the four matters which it is the Court's duty to have regard to and our opinion is that it was not in the interests of justice to direct that these documents be excluded.  As Ralph Gibson LJ said in Cole (ibid) p. 487:

'In short the court must be made to hold the opinion that the statement ought not to be admitted.'  The circumstances in the present appear do not make us hold that opinion."

13.      The criminal conduct (from which it is alleged that the defendant derived his proceeds which are the subject of the money-laundering offences) concerns two contracts allegedly negotiated between the defendant and officials of the military dictatorship of the President of the Republic of Nigeria, namely General Sani Abacha and Colonel Marwa, a defence adviser.  The prosecution will be relying on the Nigerian documents to seek to prove that the defendant purchased the vehicles through a first front company and then sold them to Nigeria through a second front company, in both of which transactions the lie is asserted that the stipulated purchase price was the price to be paid to secure the vehicles.  The prosecution say that General Abacha and Colonel Marwa were complicit in this.  That lie was bolstered by two further lies, namely that the second front company was part of the Indian manufacturing company and secondly that the prices indicated were genuine manufacturers' prices.  Nigeria was, say the prosecution, deceived into thinking that it was dealing directly with the manufacturer.  The entire amount was allegedly paid to accounts controlled by the defendant in Jersey from which Colonel Marwa and others closely linked to General Abacha benefited.  In effect it alleges a conspiracy or joint enterprise between the defendant and General Abacha and Colonel Marwa.  The prosecution intend to rely upon some of the intergovernmental documentation so as to implicate General Abacha and Colonel Marwa in these transactions. 

14.      The defence have highlighted some 44 documents which it says I ought not to admit in the interests of justice.  I will refer to them as the "intergovernmental documents".

15.      The starting point for the defence is that this case is focused upon alleged corruption at the highest levels of government in Nigeria.  Corruption involves misrepresentations and deceit and the Court should not assume that any documents obtained from Nigeria are reliable.  It is possible that the documents may have been forged either at the time or subsequently either to assist in obtaining evidence in support of the prosecution against the defendant or to extricate those who were involved in the contracts.  Nigeria is a quite different territory to say Germany.

16.      Mr Kelleher illustrated this submission by reference to Colonel Bako (retired), who was one of the people from whom a witness statement and documents were obtained under the letters of request.  At the time of the contracts he was an officer in the Nigerian army, and, according to his own statement, he worked very closely with General Abacha, describing himself as one of his closest confidants, who he saw every day.  He would appear to have been imprisoned later for his involvement in a coup attempt against General Abacha, but within days of his release, wrote to the defendant's Nigerian company in relation to these contracts in language which the defence say can only be interpreted as an attempt to extract a bribe.  In his witness statement he admitted that he had received $100,000 out of the sums paid over to Jersey although he gave an innocent explanation for this receipt.

17.      In a letter dated 10^th February, 2008, exhibited to the recent statement of PC Patterson filed in relation to the prosecution application for an adjournment, Colonel Bako claims certain out of pocket expenses from Commissioner Gana (who was in charge of the evidence gathering process under the letters of request) in relation to his involvement in this case.  From that letter, it would appear that he was involved in 2004 in accessing documentation from the Independent National Electoral Commission (INEC) at the behest of Commissioner Gana and in order to do this had to give certain "welfare packages" to those who assisted him.  It would appear therefore, says Mr Kelleher, that we are dealing with documents obtained by way of bribe.  Are they genuine or have they been tampered with?  If Colonel Bako could get access to public documents at a time when he was not a public officer by the payment of bribes, who also may have had such access?  He accepted that documents were also obtained directly from INEC through its chief legal officer Mr Bawa against whom there were no allegations. 

18.      The defence take no objection to letters sent to or received by the defendant or his companies or to minutes of meetings at which he was said to be present because he is in a position to controvert that evidence.  Where the defence take issue is in relation to correspondence and documentation passing between the various ministries involved in the payments made under these contracts, namely the Central Bank of Nigeria, the Nigerian Ministry of Defence and INEC-the intergovernmental documentation.  The defendant was not involved in that documentation in any way and he is not in a position to controvert it. 

19.      A further factor was that in Foxley the Court was able to draw an inference of reliability in part because the process undertaken in Switzerland and other countries was lawful but in this case the Nigerian courts have recently declared that the evidence gathering undertaken by Commissioner Gana was unlawful.  A yet further concern for the defence is that a number of these documents have manuscript comments upon which the prosecution seek to rely (as implicating General Abacha and Colonel Marwa) and which again the defendant is in no position to controvert. 

20.      At the hearing the prosecution were able to confirm that in fact there are only 6 documents produced by Colonel Bako upon which the prosecution seek to rely which are not within the intergovernmental documents and which the defence do not object to.  They are documents involving the defendant or his companies which he is in a position to controvert.

21.      We went through a large number of the intergovernmental documents at the hearing but they all have the same character, namely documents created by and communications between the various ministries involved in the process by which the payments for the contracts were authorised and made.  They comprise letters, official forms and minutes involving a number of different officials with their respective stamps.  Some, but not all, of the intergovernmental documents, would appear to have been signed by General Abacha or Colonel Marwa.  If those which have been signed by General Abacha and Colonel Marwa are forgeries then the operation would have been immensely sophisticated.  Unknown persons would have had to have replaced individual documents within a run of documents involving signatures of a number of different parties in order, it is suggested, to implicate General Abacha or Colonel Marwa or to extricate themselves. 

22.      There is nothing on the face of the documents which counsel or I have seen which gives any indication that they are not authentic and there is no extraneous evidence to support an allegation that they are forgeries.  The sums mentioned in the intergovernmental documents tally with the sums other documents show the accounts controlled by the defendant received in Jersey.

23.      As to the process by which the documents were obtained, it is true that the Nigerian court has recently declared that the evidence gathering process undertaken by Commissioner Gana pursuant to the letters of request was unlawful but this was not known by the parties involved at the time.  As I said in my judgment of 9^th November, 2009, the evidence gathering process was undertaken by those involved in good faith.

24.      The intergovernmental documents have been obtained through Commissioner Gana, a Deputy Commissioner in the Nigerian Police Force and chairman of the Special Investigation Panel, the authority appointed by the Nigerian Government at the time to deal with the letters of request, from public officials at the ministries involved, namely Mr Nada, director of Central Bank of Nigeria, Mr Al Hassan, the Permanent Secretary to the Nigerian Ministry of Defence and Mr Bawa, the Chief Legal Officer of INEC.  None of the documents which concern the defence come from Colonal Bako but even if the defence concerns about Colonel Bako, are justified, they cannot reasonably be allowed to colour the whole of the evidence gathering process undertaken by Commissioner Gana with these ministries; nor can general speculation about the level of corruption in Nigeria.

25.      Having regard to the nature and source of these documents, created some 12 years ago, I think it most unlikely that any of them have been fabricated in order to implicate General Abacha and Colonel Marwa or to extricate others or for any other purpose.  They make no assertions as to the honesty or dishonesty of the defendant but deal with the processes by which the sums due under the contracts were paid by the Nigerian government.

26.      It is true that the defendant cannot controvert the intergovernmental documents, but as made clear in Foxley it is a question of balancing the competing interests.  There are a substantial number of Nigerian documents which the defendant is in a position to controvert and he can of course give evidence as to the true nature of his involvement with General Abacha and Colonel Marwa.

27.      In conclusion, I am satisfied that the conditions for the admission of the documents obtained under the letters of request are satisfied, that they are therefore admissible in the proceedings and that it is in the interests of justice that they be admitted.

Authorities

Proceeds of Crime (Jersey) Law 1999.

Police Procedures in Criminal Evidence (Jersey) Law 2003.

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

Criminal Justice Act 1988.

R-v-Gordon Foxley [1995] 2 Cr. App. R.523.