Jersey Unreported Judgments

[2010]JRC027

ROYAL COURT

(Samedi Division)

11^th February 2010

Before     :

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

The Attorney General

-v-

Raj Arjandas Bhojwani

Further application to exclude Nigerian evidence and for a stay judgment.

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.

2.        On 22^nd January, 2010, the defence made a further application to exclude the evidence obtained by the prosecution from Nigeria pursuant to letters of request issued under the Criminal Justice (International Co-operation)(Jersey) Law 2002 ("the Co-operation Law") and/or for a stay of the prosecution and this in the light of developments since my judgment on its earlier application dated 9^th November, 2009 (AG-v-Bhojwani [2009] JRC210A).  The defence applied for the application to be heard by way of a preparatory hearing as opposed to pre- trial hearing.  I reserved my decision and, following a short hearing on the 26^th January 2010, I rejected the application and now give my reasons.

3.        The developments upon which the defence rely are these:-

(i)        In his letter of 19^th November, 2009, to the Jersey Attorney General, the Nigerian Attorney General made a request for the return of the Nigerian evidence.  To put that request in context, I set out the whole letter as follows -

"Jersey Prosecution of Raj Arjandas Bhojwani for Money Laundering

I refer to your letter of request Ref: No.: WJB/SB CRPR007-025 dated 2^nd September, 2008, and my response to same Ref: DPPA/MLAT/007/09, dated 28^th April, 2009, informing you that the request is receiving attention.  I further refer to your letter Ref: TJleC/SB CRPR007-25 dated the 13^th 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 15^th 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. II 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." (his emphasis)

(ii)       On 9^th December, 2009, the Jersey Attorney General wrote to the defence giving notice that subject to any representations it may wish to make he had provisionally decided to accede to this request and to arrange for certified true copies of the evidence to be forwarded to the Nigerian authorities.

(iii)      In a lengthy letter of 23^rd December, 2009, to the Jersey Attorney General, the defence contended that he had misconstrued the Nigerian Attorney General's letter and that he must, before proceeding, seek verification of the Nigerian Attorney General's position.  In particular the defence contended that by necessary implication the Nigerian Attorney General's position was that the Nigerian evidence should not be used in the Jersey proceedings.

(iv)      On 29^th December, 2009, Amb. Chike Alex Anigbo Ph.D, mni, the Permanent Secretary (Political Affairs) at the Office of the Secretary to the Government of the Federation of Nigeria wrote to the British High Commissioner in Abuja following a complaint it had received from one of the defendant's Nigerian companies.  The letter details the importance of the commercial activities of the defendant's companies to Nigeria which apparently employs some 300 people and the detrimental effect upon those businesses caused by the Jersey proceedings:-

"The business activities of Eko transport Services Limited and others have been suffering since Mr Bhojwani's incarceration in Jersey for almost 3 years and if his prosecution is allowed to succeed in this vindictive and unlawful manner then the Nigerian business entities will surely collapse and the livelihood and welfare of so many Nigerians would be destroyed.  This is a major concern to the Nigerian government." (his emphasis)

The letter goes on to state that it was the position of the Nigerian authorities including the Attorney General that the evidence provided to Jersey in clear breach of Nigerian law cannot be introduced or otherwise relied upon by the Courts in Jersey:-

"I am therefore writing to you to request that you take the necessary steps to bring to the attention of the prosecuting authorities of Jersey and the courts of Jersey the concerns of the Federal Republic of Nigeria, and to assist in ensuring that the courts of Jersey avoid taking any actions that might give rise to a violation of the United Kingdom's international obligations.  In the first instance, I would invite you to make representations to the courts of Jersey, in accordance with the required formalities, to refrain from authorizing the illegal evidence referred to above from being introduced into these proceedings or allowing any reliance to be placed on such evidence, pending the resolution of this matter." (his emphasis)

(v)       On 4^th January, 2010, the defence wrote to the Foreign Secretary, the Right Honourable David Milliband MP, drawing his attention to the letter from the office of the Nigerian President and making the following request:-

"We are, accordingly, writing to you to request that you take appropriate steps to bring to the attention of Jersey's Attorney General the significance of the issues raised by the Federal Republic of Nigeria and your concern to ensure that nothing is done which might give rise to a violation of the United Kingdom's international obligations.  In the first instance, we would invite you to make representation to Jersey's Attorney General, in accordance with the required formalities, seeking his confirmation that the relevant evidence will not be relied upon by him for the purpose of the Jersey proceedings, pending resolution of the underlying issues."

(vi)      On 5^th January, 2010, the Jersey Attorney General wrote to the defence declining to proceed in the manner suggested by the defence:-

"6. After due consideration I do not agree with the construction which you are seeking to place on the letter from the Nigerian Attorney General's letter (sic) is the correct one.  It seems to me that the Nigerian Attorney General is saying that the Nigerian Authorities wish to investigate your client and wish to consider all the available evidence with a view to deciding whether to prosecute him in Nigeria.

7. If the Nigerian Attorney General's letter were to have the meaning for which you argue I would expect it to set out that position in clear terms and give reasons for taking that position.  Such a stance by a Law Officer of another Commonwealth state would be surprising as one would expect him or her to leave decisions as to the use of evidence in the Jersey courts to me and to the Royal Court.

...

9. In any event, even were the Nigerian Attorney General's letter to bear the construction which you seek to place on it, my decision would be the same, for at least the following reasons:

(a) The Nigerian declaration of illegality has already been considered by the Royal Court and the evidence ruled to be admissible notwithstanding that declaration.  It follows that there is no Jersey legal bar to the use of that evidence.

(b) The indictment which your client faces alleges serious acts of money laundering which occurred in Jersey.  It is my view that it is in the Jersey public interest that the prosecution for that conduct proceed using the evidence that the Royal Court has declared to be admissible.

(c) International relations between Jersey's Attorney General and the Nigerian Attorney General is not, it seems to me, a matter for the defence in a criminal case or indeed the court seized of that case."

(vii)     On 5^th January, 2010, the defence wrote to the Nigerian Attorney General seeking clarification as to his position.  The Jersey Attorney General had earlier indicated that he had no objection to such a letter being written.

(viii)    On 8^th January, 2010, the Nigerian Attorney General responded to the defendant's Nigerian lawyers as follows:-

"RE - JERSEY PROSECUTION OF RAJ ARJANDAS BHOJWANI

           I refer to your letter of 7^th January, 2010 on the above subject and wish to state that I do not find it expedient or necessary to give further clarification in respect of either my letter of November 19, 2009 or the Judgement of the Federal High Court, Abuja on the issue.  Both documents, I believe, speak for themselves.

2.        However and for the purpose of emphasis, let me advise that should your client have any issue or issues with the said documents, same can be taken up or ventilated in court.

3.        Please accept the assurances of my high esteem.

Chief Michael Kaase Aondoakaa, SAN

Hon. Attorney-General of the Federation & Minister of Justice."

4.        The defence does not contend that the admission of the Nigerian evidence would adversely affect the fairness of the proceedings and the application to exclude was not therefore brought under Article 76 of the Police Procedures and Criminal Evidence (Jersey) Law 2003 ("PPCE").  It was brought instead under the Court's inherent jurisdiction to exclude evidence as a matter of comity.

5.        The defence submitted that it was clear from the Nigerian Attorney General's letter of 19^th November, 2009, that he sought the return of the Nigerian evidence and by extension an assurance that the evidence would not be used in the Jersey proceedings.  That had been put beyond doubt by the letter of 29^th December, 2009, from the Permanent Secretary, a letter which was copied to the Nigerian Attorney General and which he must therefore have had in mind when he wrote his short letter of 8^th January, 2010.  As we shall see the Nigerian Attorney General did subsequently make it clear that this was indeed his position.

6.        It was material in the defence's view that the requests which were made by Jersey to Nigeria were made as a matter of pure comity and not under the Harare scheme or the relevant bilateral treaty and Nigeria was under no obligation to accede to those requests.  It complied with them as a pure matter of comity and goodwill. 

7.        It was material it can thus be assumed, argued the defence, that Nigeria's assistance in this matter was conditional upon it providing the evidence in accordance with the constitutional law of Nigeria.  The ruling of the Nigerian Court had made it clear that it had not been so provided and thus the gathering of the evidence and its transmission by the Special Investigation Panel on the one hand and the receipt and use of that evidence by the Jersey authorities on the other hand was a de facto breach of Nigeria's sovereignty.  Nigeria has now made it clear that it wished to have that evidence returned.  The defence submitted that it would be a gross breach of comity for the Nigerian evidence to be admitted in a Jersey Court in the face of Nigeria's clear and unequivocal request for the return of the evidence supplied and consequent stated expectation that it will not be used.

8.        The only authority which the defence could produce in support of its application to exclude on this ground was the English Court of Appeal decision in R-v-CII, AP and TI (2008) EWCA Crim 3062.  The case concerned alleged money laundering in England and Wales of the proceeds of corruption and/or fraud committed by a sometime provisional governor of Nigeria.  Two letters of request were made under the relevant bilateral treaty between Great Britain and Northern Ireland and the government of the Federal Republic of Nigeria signed by the two States in September 1989 and which came into force on 30^th October, 1993.  Under that treaty the two states were obliged to comply with requests for assistance save in certain defined circumstances one of which was that such assistance could prejudice an investigation or proceedings in the territory of the requested party. 

9.        On receipt of the second letter of request the Nigerian Attorney General, who was the designated central authority for the purposes of the treaty, sent the letter to the Nigerian Economic and Financial Crimes Commission ("EFCC") with the request that the evidence be collated and furnished to his office for onward transmission to the Metropolitan Police.  In good faith, the EFCC provided the Metropolitan Police with the evidence direct without furnishing it first to the office of the Nigerian Attorney General.  The Nigerian Attorney General sought its return to Nigeria so that he could evaluate it, in particular to ensure that such assistance would not prejudice an ongoing investigation in Nigeria involving the same defendants to the English proceedings.

10.      The trial judge ruled that the product of the letter had not been provided, under the treaty, with the consent of the central authority of Nigeria, namely the Nigerian Attorney General and excluded the same from the proceedings.  The judgment is not clear as to the power the trial judge was exercising in so doing.  In his written submissions to the English Court of Appeal the Nigerian Attorney General said that the use of such evidence or material in judicial proceedings in a foreign jurisdiction would constitute an affront on Nigeria's sovereignty and do incalculable damage to the friendly and historical ties existing between the two countries. 

11.      The appeal centered on whether the material had been provided lawfully as contended by the Crown or not.  The Court of Appeal concluded that it had not been provided lawfully under the treaty and upheld the decision of the trial judge.  There was no discussion as to the jurisdiction the trial judge was exercising when excluding what was clearly otherwise admissible evidence.  Nor was there any reference to that exclusion being on the grounds of comity.  Comity was raised on the question whether or not the original documentation should be returned to Nigeria which the Court of Appeal did not have to resolve.  Whilst recognizing the right of the Nigerian Attorney General to insist on the return of the documentation, it said this:-

"It is, however, unnecessary for us finally to resolve the position upon the call for return of the original documents.  It seems to us that this is one of the cases in which the ordinary principles of comity of nations requires that an English court should exercise restraint and abstain from an enquiry into the question of whether a foreign sovereign State is, or is not, in breach of its treaty obligations.  Those are contractual obligations between States.  The enforcement of them or, more realistically, negotiation about them, is a matter for the two governments, and not for a domestic court, which is no part of the government.  Delicate questions of mutual relations going well beyond any single case may be raised.  Accordingly, it is enough to resolve the question before us that it is now plain that the consent of the Attorney General has not been given to the transmission to the UK of the product of LR2 and it has not, therefore, been brought here in compliance with the Treaty.  The Judge's ruling to that effect was plainly right."

12.      The Court of Appeal did however go on to say this:-

"We should record that the prosecution has given notice that may wish to submit in the court below that even though the product of LR2 [the second letter of request] has unwittingly been brought to the UK without the consent of the Attorney General, it is nevertheless admissible at the trial.  Mr Amlot says that the prosecution may wish to submit that under ordinary principles of English law evidence which has been unlawfully obtained is not thereby automatically inadmissible, as explained in the line of cases of which Sang (1980) AC 402 and Khan (Sultan) (1997) AC 558 are well-known examples.  There is no doubt that the evidence was gathered by the English police in good faith.  The Sang contention was never raised in the court below, nor was it any part of the prosecution's appeal to us.  Mr Amlot does not suggest that it arises for decision here.  We can therefore express no opinion on it at all, save to say that if it is raised it may call for consideration of s 78 Police and Criminal Evidence Act 1984 but also of s 9 Crime (International Co-operation) Act and the principles underlying that section."

13.      The defence placed great weight on this decision.  In both CII and this case the material had been transmitted in good faith but not in compliance with the relevant Nigerian legal framework.  The failures in each case were administrative failures internal to the Nigerian State rather than to any wrongdoing on the part of the United Kingdom or Jersey.

14.      However, I agree with the prosecution that this case does not bear the weight the defence seeks to place upon it and is no authority for the proposition that a trial judge can exclude evidence on the grounds of comity.  It is entirely concerned with the interpretation of a specific treaty between the United Kingdom and Nigeria which does not have application to the requests made by Jersey to Nigeria in this case.  Furthermore, where comity did come into play, the Court specifically rejected the notion that it should become involved.

15.      Mr Kelleher submitted that the Court had a duty to involve itself in matters of international law, relations and comity.  He referred me to the Court of Appeal decision in Buttes Gas & Oil Co-v-Hammer and another (No 3) (1981) QB 223, which concerned the disclosure of documents addressed to or emanating from the ruler of a sovereign state concerned with an international dispute, and the following extract from the judgment of Donaldson LJ:-

"The public interest in the maintenance of international comity - a standard of international behavior which can be epitomized as "do as you would be done by", is very great.  The courts are wholly independent of the executive, but they are an emanation of the Crown and they act in the name of the Crown.  Giving the fullest weight to the public interest in the achievement of justice between litigants, I have no doubt that this is more than counterbalanced in this case by the public interest in refraining, in the name of the Crown, from ordering the disclosure for inspection of the documents, the subject matter of this application."

16.      This principle should, Mr Kelleher argued, be applied to criminal cases in which the Court would counter-balance the public interest in ensuring that those charged with serious crime should be tried against the public interest in the maintenance of comity.

17.      Mr Kelleher cited the decision of the Supreme Court of Canada in Kindler-v-Canada (Minister of Justice) (1991) 2 SCR 779, concerned with extradition arrangements between Canada and the US and the following passage from the judgments of L'Heureux-Dubé, Gonthier and McLachlin JJ:-

"160.   While the extradition process is an important part of our system of criminal justice, it would be wrong to equate it to the criminal trial process.  It differs from the criminal process in purpose and procedure and, most importantly, in the factors which render it fair.  Extradition procedure, unlike the criminal procedure, is founded on the concepts of reciprocity, comity and respect for differences in other jurisdictions.

161.    This unique foundation means that the law of extradition must accommodate many factors foreign to our internal criminal law.  While our conceptions of what constitutes a fair criminal law are important to the process of extradition, they are necessarily tempered by other considerations.

162.    Most importantly, our extradition process, while premised on our conceptions of what is fundamentally just, must accommodate differences between our system of criminal justice and the systems in place in reciprocating terms. The simple fact is that if we were to insist on strict conformity with our own system, there would be virtually no state in the world with which we could reciprocate.  Canada, unable to obtain extradition of persons who commit crimes here and flee elsewhere, would be the loser.  For this reason, we require a limited but not absolute degree of similarity between our laws and those of the reciprocating state.  We will not extradite for acts which are not offences in this country.  We sign treaties only with states which can assure us that their systems of criminal justice are fair and offer sufficient procedural protections to accused persons.  We permit our minister to demand assurances relating to penalties where the minister considers such a demand appropriate.  But beyond these basic conditions precedent of reciprocity, much diversity is, of necessity, tolerated."

18.      Whilst I was concerned with the criminal trial process in Jersey, in relation to the Nigerian evidence Mr Kelleher argued that I was dealing with a foreign state, Nigeria, and should therefore temper my considerations with the concepts of comity and respect for Nigeria's sovereignty.

19.      Mr Kelleher drew my attention to the judgments of McLachlin CJ and LeBel, Deschamps, Fish and Charron JJ in the decision of the Supreme Court of Canada in the case of R-v-Hape (2007) 2 SCR 292 on the nature of sovereign equality:-

"45.    In order to preserve sovereignty and equality, the rights and powers of all states carry correlative duties, at the apex of which sits the principle of non-intervention.  Each state's exercise of sovereignty within its territory is dependent on the right to be free from intrusion by other states in its affairs and the duty of every other state to refrain from interference.  This principle of non-intervention is inseparable from the concept of sovereign equality and from the right of each state to operate in its territory with no restrictions other than those existing under international law. (for a discussion of these principles, see the comments of Arbitrator Huber in the Island of Palmas Case (Netherlands-v-United States) (1928), 2 R.I.A.A. 829, at pp. 838-39.

46.      Sovereign equality remains a cornerstone of the international legal system.  Its foundational principles - including non-intervention and respect for the territorial sovereignty of foreign states - cannot be regarded as anything less than firmly established rules of customary international law, as the International Court of Justice held when it recognized non-intervention as a customary principle in the Case concerning Military and Paramilitary Activities In and Against Nicaragua (Nicaragua-v-United States of America) [1986] I.C.J. Rep. 14, at pp 106....

"47.    Related to the principle of sovereign equality is the concept of comity of nations.  Comity refers to informal acts performed and rules observed by states in their mutual relations out of, politeness, convenience and goodwill, rather than strict legal obligation: Oppenheim's International Law, at pp. 50-51.  When cited by the courts, comity is more a principle of interpretation than a rule of law, because it does not arise from formal obligations.....

"48.    Where our laws - statutory and constitutional - could have an impact on the sovereignty of other states, the principle of comity will bear on their interpretation.  One example is in the area of extradition.  As this Court noted in Kindler-v-Canada .....

49.      In other contexts as well, this Court has noted the importance of comity as a tool in the interpretation of Canadian law in situations where it affects other sovereign states.  In Zingre-v-The Queen [1981] 2 S.C.R. 392, Dickson J. (as he then was) writing for the Court stated, at pp. 400-401:

'As that great jurist, U.S. Chief Justice Marshall, observed in The Schooner Exchange-v-McFaddon & Others [(1812), 7 Cranch's reports 116], at pp. 136-7, the jurisdiction of a nation within its own territory is necessarily exclusive and absolute, susceptible of no limitation not imposed by itself, but common interest impels sovereigns to mutual intercourse and an interchange of good offices with each other.'

It is upon this comity of nations that international legal assistance rests....

50.      The nature and limitations of comity need to be clearly understood.  International law is a positive legal order, whereas comity, which is of the nature of a principle of interpretation, is based on a desire for states to act courteously towards one another.  Nonetheless, many rules of international law promote mutual respect and, conversely, courtesy among states requires that certain legal rules be followed.  In this way, "courtesy and international law lend reciprocal support to one another".  M. Akehurst, "Jurisdiction in International Law" (1972-1973), 46 Brit. Y.B. Int'l. 145, at p. 215.  The principle of comity reinforces sovereign equality and contributes to the functioning of the international legal system.  Acts of comity are justified on the basis that they facilitate interstate relations and global cooperation; however, comity ceases to be appropriate where it would undermine peaceable interstate relations and the international order....

"52.    In an era characterized by transnational criminal activity and by the ease and speed with which people and goods now cross borders, the principle of comity encourages states to cooperate with one another in the investigation of transborder crimes even where no treaty legally compels them to do so.  At the same time, states seeking assistance must approach such requests with comity and respect for sovereignty. Mutuality of legal assistance stands on the two pillars.  Comity means that when one state looks to another for help in criminal matters, it must respect the way in which the other state chooses to provide the assistance within its borders.  That deference ends where clear violations of international law and fundamental human rights begin.  If no such violations are in issue, courts in Canada should interpret Canadian law, and approach assertions of foreign law, in a manner respectful of the spirit of international cooperation and the comity of nations..."

20.      Mr Kelleher concluded that State sovereignty was the cornerstone of International Law and was inviolate save where the State consented or international law provided.  Comity was linked to sovereignty and where domestic law impacted upon a foreign state, comity will aid its interpretation. 

21.      Mr Jowitt on the other hand submitted that the Court should not get involved in such matters which are by their nature non justice able by a domestic court.  He cited the House of Lords judgment in Buttes Gas Oil and another-v-Hammer and another (1982) AC 888 which concerned the striking out of a counterclaim in respect of matters said to be "acts of State".  At page 933 letter f, Lord Wilberforce referred to the well-known sentence of Lord Halsbury uttered in Cook-v-Sprigg (1899) AC 572, 57:-

"It is a well-established principle of law that the transactions of independent states between each other are governed by other laws than those which municipal courts administer."

Lord Wilberforce said this at page 928a:-

"It would not be difficult to elaborate on these considerations, or to perceive other important inter-state issues and/or issues of international law which would face the court. They have only to be stated to compel the conclusion that these are not issues upon which a municipal court can pass.  Leaving aside all possibility of embarrassment in our foreign relations (which it can be said not to have been drawn to the attention of the court by the executive) there are- to follow the Fifth Circuit Court of Appeals - no judicial or manageable standards by which to judge these issues, or to adopt another phrase (from a passage not quoted), the court would be in a judicial no-man's land: the court would be asked to review transactions in which four sovereign states were involved, which they had brought to a precarious settlement, after diplomacy and the use of force, and to say that at least part of these were "unlawful" under international law.     I would just add, in answer to one of the respondents' arguments, that it is not to be assumed that these matters have now passed into history, so that they now can be examined with safe detachment."

22.      In J H Raynor (Mincing Lane) Limited-v-Department of Trade and Industry (1992) AC 418 at 499, Lord Oliver referred to these principles as being "axiomatic" and "firmly established" by the House of Lords.  These principles were applied by the Court of Appeal in CII.  Mr Jowitt submitted that if a Court cannot adjudicate on a question where there is a treaty, it certainly cannot adjudicate on it where there is none and the matter is being dealt with by way of comity, defined in Oppenheim's International Law as "acts performed and rules observed by states in their mutual relations out of politeness, convenience and goodwill rather than strict obligation." Oppenheim's 9^th edition at pages 50-51.

23.      In my judgment of 9^th November, 2009 I found (paragraphs 58-60) that the Jersey Attorney General had complied with the provisions of the Co-operation Law in making the request to the Nigerian authorities.  They had processed the request and provided the Jersey Attorney General with the evidence which he sought which he now proposes to use for the purposes for which it was supplied.  The fact that it has recently transpired that as a matter of Nigerian law the authority concerned, namely the Special Investigation Panel, lacked the power to provide that evidence is a domestic issue for the Nigerian authorities.

24.      The only new factor following that judgment is the assertion of the Nigerian Attorney General that the evidence should not now be used in the Jersey proceedings.  I agree with Mr Jowitt that this cannot be an assertion of law, let alone Jersey law.  It is not an assertion founded on the provisions of a treaty or agreement between Jersey and Nigeria or alleged breaches of the same. It is a request to the Jersey Attorney General based upon comity.

25.      There are no judicial or manageable standards by which a domestic court can judge such a request. To accept the defence's invitation is to accept an invitation into a judicial no-man's land, one in which delicate questions of mutual relations going beyond this case may well be raised and which a domestic court is ill equipped to deal with.

26.      In the Court of Appeal decision in Buttes, the Court refrained from exercising a power clearly vested in it in the interests of international comity. In this case I am being asked to invoke the Court's inherent jurisdiction in a manner which is without precedent either in this or the English jurisdiction and upon grounds which a domestic court is not equipped to evaluate.

27.       Following the hearing on 22nd January, 2010, the Jersey Attorney General received a further letter from the Nigerian Attorney General as follows:-

 

 "RE; JERSEY PROSECUTION OF RAJ ARJANDAS BHOJWANI FOR MONEY LAUNDERING.

I refer to your letter of 17^th December, 2009, Reference No. TJLeC/SB CRPR 007-025.

2.        By my letter of 19^th November, 2009, I forwarded to you a copy of a Judgment of the Federal high Court, Abuja, Nigeria declaring null and void all evidence previously gathered in this case and forwarded to you by Special Investigation Panel (SIP) which the Court also declared an illegal body.  Unequivocally, the Nigerian Federal High Court has prohibited the use of the evidence so illegally and unconstitutionally obtained by the Jersey authorities from Nigeria.

3.        The judgment of the Federal High Court is clear and unambiguous and that all authorities in Nigeria are bound by it as provided by section 287(3) of the Constitution of the Federal Republic of Nigeria which states thus:-

'The decisions of the Federal High Court, a High Court and all other courts established by this Constitution shall be enforced in any part of the Federation by all authorities and persons, and by other courts of law with sunordinate (sic) jurisdiction to that of the Federal High Court, a High Court and those other courts, respectively' Underlining mine.

4.        Indeed, under our own municipal law, that is section 132(1) of the Evidence Act, Cap. E14 Laws of the Federation of Nigeria, 2004 which provides:-

'When any judgment of any court or any other judicial or official proceedings, or any contract, or any grant or other disposition of property has been  reduced to the form of a document or series of documents, no evidence may be given of such judgment or proceedings, or of the terms of such contract, grant or disposition of property except the document itself, or secondary evidence of its contents.  In cases in which secondary evidence is admissible under the provisions hereinbefore contained; nor may the contents of any such document be contradicted, altered, added to or varied (sic) by oral evidence..."  Underlining mine.

So that whenever a judgment of a court is delivered and embodied in an enrolled order, no one can modify, vary or add to it, either by documentary or oral evidence.

5.        As a result, I requested for the return to me of all the evidence forwarded to you by Special Investigation Panel (SIP) as I could not consent to the use of same in a foreign jurisdiction as that will be a violation of the Court order and consequently undermining Nigeria's territorial integrity which I stand to protect.

6.        We trust that you will respect the judgment of the Nigeria Court as to do otherwise will constitute an affront to Nigeria's sovereignty, complete disregard for vital institution of State and existing State practice and obligations agreed under the Harare Scheme.

7.        Consequent upon the said judgment nullifying all steps taken by Special Investigation Panel (SIP) and declaring the body unconstitutional, I immediately directed the appropriate Law Enforcement Agencies to investigate the matter afresh to enable me reach a determination whether to file charges against RAJ Arjandas Bhojwani in Nigeria.  I have reviewed the preliminary evidence so far gathered and have reached a decision to prosecute RAJ Arjandas Bhojwani in Nigeria for the principal offence of corruption.

8.        Respectfully, you will agree with me that Article 21 of the United Nations Convention against Transnational Organised Crime (The Palermo Convention) and Article 36 of the FATF 40 recommendations makes it certain and clear beyond argument that where criminality involves two nations, the nation most proximate to the offence should prosecute, while the other nation should transfer all persons, assets and evidence to the prosecuting State.  The Principal offence of corruption was committed in Nigeria and the funds in issue are public funds of Nigeria.

9.        It is in line with the above international practice that I would expect your assistance and co-operation in transferring RAJ Arjandas Bhojwani to Nigeria to face his trial.  We also expect that you will take steps to transfer all proceeds of his crime to Nigeria.

10.      Please, note that any trial in Jersey of RAJ Arjandas Bhojwani will frustrate the trial in Nigeria for the principal offence of corruption in view of our constitutional guarantee against double jeopardy.  The plea of autre fois acquit or autre fois convict will avail him.

11.      We would respect our obligation in respect of expenses incurred by the Government of Jersey.

12.      Please, accept the assurances of my highest regard and personal esteem.

CHIEF MICHAEL KAASE AONDOAKAA, SAN

Honourable Attorney-General of the Federation and Minister of Justice" (his emphasis)

28.      This letter shows a hardening of the position of the Nigerian Attorney General and a quickening of the pace in Nigeria but, as Mr Kelleher accepted, it does not alter the basis on which the defence application is made.  For the reasons set out above I rejected the defendant's application to exclude the Nigerian evidence on the grounds of comity.

29.      The defence applied in the alternative for a stay of the prosecution on the ground that it is an abuse of the Jersey Attorney General's power to seek to adduce the Nigerian evidence in the Jersey proceedings in the face of the Nigerian Attorney General's assertion that its use constitutes a violation of Nigeria's sovereignty. 

30.      Mr Kelleher referred me to the leading authority of R-v-Horseferry Road Magistrate's Court Ex parte Bennett (1994) 1 AC 42 and the following passage from the judgment of Lord Griffiths:-

"Your Lordships are now invited to extend the concept of abuse of process a stage further.  In the present case there is no suggestion that the appellant cannot have a fair trial, nor could it be suggested that it would have been unfair to try him if he had been returned to this country through extradition procedures.  If the court is to have the power to interfere with the prosecution in the present circumstances it must be because the judiciary accept a responsibility for the maintenance of the rule of law that embraces a willingness to oversee executive action and to refuse to countenance behaviour that threatens either basic human rights or the rule of law.

My Lords, I have no doubt that the judiciary should accept this responsibility in the field of criminal law.  The great growth of administrative law during the latter half of this century has occurred because of the recognition by the judiciary and Parliament alike that it is the function of the High Court to ensure that executive action is exercised responsibly and as parliament intended.  So also should it be in the field of criminal law and if it comes to the attention of the court that there has been a serious abuse of power it should, in my view, express its disapproval by refusing to act upon it."

31.      In Mr Kelleher's submission the rule of law includes international law and comity which is being threatened by the Jersey Attorney General's intended use of the Nigerian evidence. 

32.      The defence point to the apparent failure of the Jersey Attorney General to consult with the Nigerian Attorney General over the appropriate forum for criminal proceedings against the defendant.  The Nigerian Attorney General had made it clear by his letter of the 19^th November, 2009, that he intended to investigate the activities of the defendant in Nigeria, presumably with a view to a prosecution there.  We now know that he intends to prosecute the defendant for corruption.  He does so, Mr Kelleher argues, on the assumption that there will be no prosecution in Jersey without its assistance.  A conviction in Jersey might well prejudice a subsequent prosecution in Nigeria.

33.      Mr Kelleher referred me to the Jersey Attorney General's letter of 7^th February, 2008, explaining the decisions of both Jersey and Switzerland to agree to Mr Bagadu being tried in Nigeria, a decision made after consultation between the three countries involved.  He also referred me to Article 19 of the United Nations Convention against Trans-National Organized Crime dealing with joint investigations and to Article 47 of the United Nations Convention against Corruption which is in the following terms:-

"Article 47      Transfer of criminal proceedings

States Parties shall consider the possibility of transferring to one another proceedings for the prosecution of an offence established in accordance with this Convention in cases where such transfer is considered to be in the interests of the proper administration of justice, in particular in cases where several jurisdictions are involved, with a view to concentrating the prosecution."

34.      Although the defence accepts the defendant is charged with money laundering offences allegedly committed in Jersey (which is the only jurisdiction where such offences can be prosecuted), the Crown must prove the defendant's own predicate criminality arising from his conduct in Nigeria of which the Nigerian public purse is the alleged victim.  The defence submission is that the offence of money laundering is derivative or secondary to the predicate criminality.  Nigeria has a territorial jurisdiction over the alleged predicate conduct and in logic and in international law has a right to assert jurisdictional primacy. 

35.      Following a detailed analysis, the defence drew and relied upon the following propositions:-

(a)       It is proper and reasonable to assume that Nigeria contemplates that without its assistance Jersey's Attorney General cannot and will not prosecute the defendant in relation to matters arising within Nigeria's territorial jurisdiction;

(b)       In referring to the conduct of its own investigation, Nigeria is acting consistently with:-

(i)        A presumption that Jersey will accede to its request not to use materials and evidence it has asked should be returned and not used;

(ii)        A presumption that in consequence Jersey cannot and will not proceed with its own prosecution; and

(iii)        A presumption that, in any event, where Nigeria has asserted its intention to investigate, and now prosecute, Jersey will recognize that a Jersey prosecution may preclude a Nigerian prosecution on the basis of double jeopardy: and

(c)       Nigeria requires Jersey to regard its indication as a part of the process of consultation and agreement as to primacy of jurisdictional interest required by international treaties and conventions to which Nigeria and the United kingdom are parties and by which Jersey has asked the United Kingdom to confirm on its behalf that it should be bound.

36.      I am not going to set out the Crown's response to these submissions because I concluded that once again they seek to draw the Court into a judicial no man's land dealing with issues of mutual relations between Jersey and Nigeria with it is not as a domestic court equipped to deal.  Furthermore, the approach of the Jersey courts to the exercise of the jurisdiction to stay in any particular case is now settled by the Court of Appeal decision in Warren-v-The Attorney General (2008) JCA 135.  At paragraph 41 the Court of Appeal cites the following passage from the recent Privy Council case of Panday-v-Virgil Senior Superintendent of Police [2008] 3 WLR 296:-

"It will readily be seen that the factor common to all these cases, indeed the central consideration underlying the entire principle, is that the various situations in question all involved the defendant standing trial when, but for an abuse of executive power, he would never have been before the been within the jurisdiction; only a violation of the rule of law had brought him here.  Similarly, in the entrapment cases, the defendant only committed the offence because the enforcement officer wrongly incited him to do court at all.  In the wrongful extradition cases the defendant ought properly not to have so.  True, in both situations, a fair trial could take place.  But, given that there should have been no trial at all, the imperative consideration became the vindication of the rule of law."  (Paragraph 28, emphasis supplied)

The Court of Appeal then went on to say at paragraph 43:-

"In our judgment, what underlies the court's jurisdiction to stay proceedings as an abuse of process is the court's inescapable duty to secure fair treatment for those who come or are brought before it.  The court has jurisdiction to stay proceedings in circumstances in which a fair trial is not possible.  It has jurisdiction to stay, also, where proceedings have only been made possible by executive action done in breach of the rule of law and where, as a result of such action, it would be unfair to try the accused at all."

The approach to be taken is set out by the Court of Appeal at paragraph 44:-

"In determining whether to stay proceedings where there has been an abuse of executive power, the court has to perform a balancing exercise.  "Weighing countervailing considerations of policy and justice, it is for the judge in the exercise of his discretion to decide whether there has been an abuse of process."  In reaching that decision in a case such as the present, "the judge must weigh in the balance the public interest in ensuring that those who are charged with grave crimes should be tried and the competing public interest in not conveying the impression that the court will adopt the approach that the end justifies any means." (R-v-Latif ci. Sup., at pages 112 to 113)."

37.      The use of the Nigerian evidence in the face of the judgment of 9th November 2009 I concluded as follows:-

"38.    Fundamentally however, there is no abuse of executive power here and we do not even reach the point of the Latif balancing exercise.  Everything that was done by the Jersey Attorney General and by Commissioner Gana in Nigeria was done in good faith (Mr Kelleher did not seek to argue otherwise), but it now seems, following the Nigerian judgment, that Commissioner Gana may have acted or was acting under a mistake of law in Nigeria.  This is not a case in which the law has been deliberately breached as in the Curtis Warren case (where notwithstanding no stay was granted) ..There is no possibility therefore of this Court giving the impression that it adopts the approach that the end justifies the means because all of those involved acted in good faith. 

39.      I deal in more detail below with the issue of consent and the effect of the Nigerian judgment, but I do not accept that, having obtained the Nigerian and Indian evidence in good faith, it is an abuse of executive power for the Attorney General to seek to adduce that evidence in these proceedings.

40.      Applying Panday above, this is not a situation in which, but for an abuse of executive power, the defendant would not be before this Court at all and thus the vindication of the rule of law would become the imperative consideration.  Applying the Court of Appeal in Curtis Warren (paragraph 43) these are not proceedings that have only been made possible by executive action done in breach of the rule of law and where, as a result of such action, it would be unfair to try the defendant at all."

At paragraph 60, I went on to say:-

"Furthermore, having received that evidence in good faith, and in compliance with the Co-operation Law, the Attorney General is not now debarred by the judgment of the Nigerian Court from using that evidence.  On the contrary, he is under a duty as a matter of Jersey Law to seek to do so.  Nor is this Court debarred by the Nigerian judgment from admitting that evidence into the Jersey proceedings."

38.      I agree with Mr Jowitt that the only conduct which is now being impugned by the defence is the decision of the Attorney General to lead admissible evidence at the trial of the defendant.  The relevant limb of the jurisdiction to stay proceedings is exercised in cases where there has been conduct outside the trial proper which the Court finds abhorrent.  The only remedy available to a defendant whose complaint is based solely on the merits of the decision to lead admissible evidence is the exclusion of the evidence under Article 76 of PPCE.  

39.      In conclusion and for the reasons set out above, I dismissed the defence application to stay the prosecution.

Preparatory or pre-trial hearing

40.       At the outset of this application the defence applied for it to proceed by way of a preparatory as opposed to a pre-trial hearing.  A preparatory hearing brings with it a right of appeal to the Court of Appeal pursuant to Article 90 of PPCE.  Although the matter has not been the subject of argument before me the prosecution has previously taken the view in this case that a further appeal would lie to the Privy Council if leave were granted.  As long ago as 13^th November, 2008, I said this at a time when a Court of Appeal sitting had already been scheduled prior to the then start of the trial:-

"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 rights to trial within a reasonable time.  The Crown submits 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.  Exercising my judgement 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 a pre-trial hearing."

41.      Mr Kelleher submitted that I must balance the benefit of finality on the issues raised by the defence applications before trial against any delay that an appeal might give rise to.  The prosecution vigorously opposes the application maintaining that the applications have no merit as a matter of fact or law and that the only effect of ordering a preparatory hearing would be to delay the trial.  It was agreed that I would rule on this issue having heard the substantive application.

42.      Applying Article 84 of PPCE it did not appear to me that any substantial benefits were likely to accrue from this application being dealt with by way of preparatory hearing.  The balance lay firmly with the trial proceeding without delay and I therefore ruled that the application proceed by way of pre-trial hearing pursuant to Article 93 of PPCE. 

Authorities

Proceeds of Crime (Jersey) Law 1999.

Criminal Justice (International Co-operation)(Jersey) Law 2002.

Police Procedures and Criminal Evidence (Jersey) Law 2003.

Oppenheim's International Law 9th Edition.

United Nations Convention against Trans-National Organized Crime.

United Nations Convention against Corruption.

AG-v-Bhojwani [2009] JRC210A.

R-v-CII, AP and TI (2008) EWCA Crim 3062.

Buttes Gas & Oil Co-v-Hammer and another (No 3) (1981) QB 223.

Kindler-v-Canada (Minister of Justice) (1991) 2 SCR 779.

R-v-Hape (2007) 2 SCR 292.

Cook-v-Sprigg (1899) AC 572.

J H Raynor (Mincing Lane) Limited-v-Department of Trade and Industry (1992) AC 418.

R-v-Horseferry Road Magistrate's Court Ex parte Bennett (1994) 1 AC 42.

Warren-v-The Attorney General (2008) JCA 135.

Panday-v-Virgil Senior Superintendent of Police [2008] 3 WLR 296.

R-v-Latif ci. Sup., at pages 112 to 113.