Bhojwani v AG [2011] JCA 035 (10 February 2011)

COURT OF APPEAL th February 2011 Before : The Hon. Michael Beloff Q. C., President; Dame Heather Steel, and; Nigel Pleming, Q. C.. Raj Arjandas Bhojwani -v- The Attorney General Costs judgment. M. T. Jowitt, Esq., Crown Advocate. Advocate J. D. Kelleher for the Applicant.

JUDGMENT THE president: 1. There is an application for costs before us, made by the Prosecution and brought under Article 3(1) of the Costs in Criminal Cases (Jersey) Law 1961 . It is common ground that the appropriate test in determining the outcome of such an application was laid down by this Court in the case of Michel v AG [2007] JCA 009 , that is to say whether it is "just and reasonable" for costs to be awarded against an unsuccessful appellant in a criminal matter.

2. As Mr Kelleher for whose submissions we are grateful points out accurately, the provision in Article 3(1) is not that costs should follow the event.

3. There is further illumination of the approach that we should take to such an application in paragraph 4 of the Michel judgment where this Court adopted the learning of Lord Bingham in R v Northallerton Magistrates' Court, ex parte Dove [2000] 1 Cr. App. R. (S) 136, set out in a series of propositions articulated with his customary clarity , the third of which states that:- "The purpose of such an order is to compensate the prosecutor and not to punish the defendant. Where the defendant has by his conduct put the prosecutor to avoidable expense he may, subject to his means, be ordered to pay some or all of that sum to the prosecutor." We faithfully direct ourselves in accordance with that valuable dictum.

4. We should also draw attention to paragraph 5 in Michel where this Court said:- "Whatever the position in a case in which application for leave raises a novel or important point neither application did so in the instant case." It is clear to us that, correctly bearing in mind the amplitude of the discretion, the Court did not there conclude that the mere fact that an application for leave had succeeded was itself an obstacle to an award to the Prosecution of either all or part of its costs.

5. We accept, as Advocate Kelleher has said, that this was the first case brought under this particular section of this particular statute, Article 34 of the Proceeds of Crime (Jersey) Law 1999 , and we accept that the facts required investigation and were of some considerable complexity. Nonetheless, insofar as Advocate Kelleher relies, as he has sought to rely, upon the fact that we did ourselves grant leave to appeal, we must refer to the particular circumstances in which we did, articulated in our main determination, where we said at paragraph 18:- "In our view it was convenient and not unjust to give leave on all grounds for which leave was required in order to avoid elaborate argument on whether leave was or was not required for a particular ground, and whether, where it was, the threshold for leave was passed." In those circumstances the fact that we gave leave appears less relevant than it might be in a more conventional appeal.

6. In our view, although we accept that there was a measure of complexity in the arguments advanced before us, it was in reality Mr Bhojwani and his legal team who complicated matters. This is not a point of criticism; we recognise that every defendant in a criminal case, and every appellant, is entitled to take such points as he or she may be advised or choose. But those who take every point and in that context resist every finding that might otherwise be the matter of concession do, in our view, take the risk of those points not succeeding. Given the fact that after full argument we have decisively rejected each and every ground of appeal, both in terms of the conviction and in terms of sentence, subject only to the issue of means, which Lord Bingham and this Court in Michel also said was germane, we would be disposed to make an award of the full costs.

7. I turn then, briefly and lastly, to the question of means. Advocate Jowitt, as ever succinct and helpful, advised us at the outset that the estimate, and at the moment it is no more than an estimate, of the costs that he is seeking to recover on behalf of the Attorney General is measured at £65,000. One only has to contrast that with what might be a claim by a successful party in a civil appeal, certainly in the United Kingdom, raising the kind of points and developed at the kind of length that have been occurring during this appeal, to recognise that that appears to us to be a modest sum indeed. The quantum has relevance since the question is whether or not Mr Bhojwani has realisable assets available to meet a claim of that modest amount. We must bear in mind the warning by Advocate Jowitt that anything that comes from Mr Bhojwani has to be assessed, in particular in the light of the findings of the Royal Court and upheld by us, with a considerable measure of caution. Be that as it may, we are far from convinced of Mr Bhojwani's claim of penury. Indeed we are persuaded to contrary effect. In our view on the basis of what was revealed during the appeal, Mr Bhojwani is certainly, whatever may be his current financial situation, well able to meet a modest claim of the kind that I have indicated.

8. In those circumstances we see no basis for not awarding to the Prosecution the totality of their costs related to this appeal in a sum to be agreed, and if not agreed to be taxed. Authorities Costs in Criminal Cases (Jersey) Law 1961. Michel v AG [2007] JCA 009 . R v Northallerton Magistrates' Court, ex parte Dove [2000] 1 Cr. App. R. (S) 136. Proceeds of Crime (Jersey) Law 1999. Page Last Updated: 18 Aug 2016 BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII