[2008]JRC148A
ROYAL COURT
(Samedi Division)
9th September 2008
Before :
|
J. A. Clyde-Smith, Esq., Commissioner,
sitting alone.
|
The Attorney General
-v-
Raj Arjandas Bhojwani
Letter of Request.
Advocate M. T. Jowitt for the Attorney
General.
Advocate J. D. Kelleher for the Defendant.
JUDGMENT
THE commissioner:
1.
On 20th August 2008
I refused a prosecution application that I should give certain directions in
relation to a forthcoming hearing of evidence on commission in India and I now
set out my reasons.
2.
The
defendant stands indicted of two counts of converting the proceeds of criminal
conduct and one count of removing the proceeds of criminal conduct, contrary to
the provisions of Article 34(1)(b) of the Proceeds of Crime (Jersey) Law 1999. His trial proper is due to commence on 20th October 2008.
3.
On the
application of the defendant, the Court has issued a letter of request under
Article 4 of the Criminal Justice (International Co-operation)(Jersey) Law
2001 (“the 2001 Law”) to the Chief Metropolitan Magistrate
Chennai in India to obtain the evidence of Mr G Narayanan (“Mr
Narayanan”) who was the manager of the Bank of India branch in Jersey at
the material time.
4.
On 5th March 2002,
Mr Narayanan was interviewed by representatives of the Attorney General for Jersey under Article 2 of the Investigation of Fraud (Jersey) Law 1991. An issue has arisen as to the use to
which the transcript of that interview will be put by the defence at the
commission hearing.
5.
The
prosecution understood the position of the defence to be that the transcript
was freely admissible in evidence at the commission hearing and subsequently at
the trial, contrary, it contends, to fundamental rules of evidence and
practice.
6.
Fearing an
evidential free-for-all, the prosecution therefore sought rulings and
directions from this court in the following terms:–
(i)
that the
Article 2 Investigation of Fraud (Jersey) Law 1991 interview with Mr
Narayanan and the transcript of it are, for the purposes of the Indian
commission, inadmissible hearsay in so far as it is sought to adduce them as
evidence of the facts stated therein;
(ii) that any move to adduce either of them in
evidence as evidence of the facts stated therein will only be made in the Royal
Court in Jersey, and then on notice to the prosecution;
(iii) for the avoidance of any doubt, that the
defence shall not seek to prove the content of the Article 2 interview and
transcript as evidence of the facts stated therein through Mr Narayanan or any
other person at the Indian commission, whether by quoting passages to him,
placing a copy in front of him, or otherwise howsoever;
(iv) that the content of the Article 2 interview and
transcript is inadmissible as a previous consistent statement and may not be
adduced as such at the Indian commission;
(v) that the defence provide Mr Narayanan with
sufficient opportunity to read the Article 2 interview transcript, or any
witness statement he may provide, before he gives evidence;
(vi) that before Mr Narayanan may properly be
entitled to refresh his memory from the transcript or any witness statement he
may provide after he has begun his evidence, the defence shall first establish
through the witness that the Da Silva criteria are satisfied;
(vii) that in so far as Mr Narayanan is therefore
permitted to read the transcript or any witness statement he may provide after
he has begun giving evidence, he must break off from giving evidence whilst he
reads it and, thereafter, the interview transcript should be removed from him
before he continues giving evidence;
(viii) that the prosecution are entitled by virtue of
Article 80 PPCE to cross examine Mr Narayanan upon any previous
inconsistent statement within the transcript.
7.
I do not
intend to comment on the terms of the rulings and directions sought because in
my view it would be wrong in principle for the Court to give any rulings and
directions.
8.
The
prosecution proceeds on a number of assumptions. It assumes that Jersey
counsel will be given a right of audience at the commission hearing and that
the presiding judge will apply Jersey law to
any issues that arise. It makes
assumptions as to the nature of the issues that will arise in relation to this
transcript. It is unaware of what, if any, rules apply to the conduct of such
hearings under Indian law, equivalent, for example to the schedule to the 2001
Law governing proceedings before the Jersey courts or the Viscount for evidence
for use overseas.
9.
The
prosecution accepts that it would be wrong and contrary to the principles of
comity for this Court to seek to give direct orders to the presiding judge as
to how the commission hearing should proceed. In my view, if it is wrong to seek
directly to control the conduct of the commission hearing in that way, then it
must be wrong to seek to do so indirectly through personal orders against
officers of this Court, who might be attending that hearing. Out of courtesy and respect, the
presiding judge at the commission hearing must be in control of the process and
should not have before him lawyers personally bound by orders from the
requesting foreign court aimed at ensuring that the hearing proceeds in a
pre-determined manner.
10. There is a further objection to what the
prosecution proposes. Once the
presiding judge becomes aware that the Court has issued rulings and directions
(courtesy demands that the presiding judge should be made so aware), there is a
danger that if any issue of interpretation of the Jersey order arises, the
presiding judge may well be inclined to refer the matter back to the Jersey
Court for clarification, which, in the nature of communications between
countries, will lead potentially to very serious delays.
11. Furthermore, being aware that the Jersey courts have sought to give directions as to the
conduct of the hearing, the presiding judge may be inclined to refer other
unforeseen issues that arise back to the Jersey Court, with the same consequential
delays.
12. All in all, I have no doubt that , as the
defence put it, when seeking assistance from a foreign court this Court must
trust the presiding judge at the commission hearing to control the
commission’s proceedings in the interests of justice as the judge
determines them to be and on the basis of events as they transpire. If the
Indian commission requires and requests assistance as to Jersey law, then it is
likely that Jersey advocates for both the defence and the prosecution will be
in a position to give it at the time of the hearing, but I agree with the
defence that it is not possible for any such assistance to be given in advance
of events and in the abstract.
13. The defence made it clear in its submissions to
me that it has no intention of conducting its examination in chief and/or
re-examination of Mr Narayanan in any way which may prejudice the admissibility
of the evidence of Mr Narayanan at the trial. The defence is right to do so because
whilst the transcript/video of the evidence taken from Mr Narayanan at the
commission hearing is prima facie
admissible (Article 4(6) of the 2001 Law), the trial judge has an overriding
discretion to exclude the whole or any part of it from the trial. Thus the defence run the real risk that
if the commission hearing is conducted in a manner which is contrary to the
fundamental rules of evidence and practice, the exercise may be rendered wholly
or partly nugatory.
14. I am supported in my view by the fact that the
prosecution could produce no precedent for rulings and directions of this kind
having been given before and we were informed by the Judicial Greffe that it is
not aware of foreign courts purporting to give such orders in relation to
hearings on commission conducted here.
We understand that in practice those presiding at such hearings here
would deal with issues of this kind by the practical expedient of putting questions
on documents to which objections are taken to the end of the evidence, in order
to minimise any prejudice and to enable the foreign court to more easily excise
that part which it finds objectionable.
Authorities
Proceeds of Crime (Jersey)
Law 1999.
Criminal Justice (International
Co-operation)(Jersey) Law 2001.
Investigation of Fraud (Jersey) Law 1991.
Police Procedures and Criminal
Evidence (Jersey) Law 2003.