Jersey Unreported Judgments

[2006]JCA016

ROYAL COURT

(Samedi Division)

26^th January 2006

Before     :		P. D. Smith, Esq., Q.C., sitting as a Single Judge.
Between	(1)   Durant International Corporation (2)   Sun Diamond Limited (3)   Kildare Finance Limited (4)   Macdoel Investments Limited		Applicants
And	(1)   Her Majesty's Attorney General (2)   The Federal Republic of Brazil		Respondents

Appeal by the Applicants from the judgment given in the Samedi Division of the Royal Court on 19^th January, 2005, where the Deputy Bailiff refused the application for judicial review of the Attorney General's refusal to disclose letters of request.

Advocate G. S. Robinson for the Applicants.

Crown Advocate S. M. Baker for the Attorney General.

Advocate N. M. Santos Costa for the Federal Republic of Brazil.

JUDGMENT

Smith JA:

1.        This is an application by the Appellants for an order preserving the status quo until the Court of Appeal gives its decision on their appeal.  A number of objections have been raised on behalf of the Attorney General and the Government of Brazil, which was a notice party to the proceedings in the Royal Court.  These are:

(i)        That the Court of Appeal has no jurisdiction to entertain an appeal as the matter in question is criminal or quasi criminal in its nature.

(ii)       Even if it has jurisdiction to entertain the appeal this Court has no power to restrain the Attorney General from disclosing the information he has obtained to the Brazilian authorities.

(iii)      The appeal is but a delaying tactic for the benefit of the person under investigation in Brazil.

(iv)      Delay is likely to be highly prejudicial to the effective prosecution of the person under investigation in Brazil as offences may become prescribed. 

(v)       The balance of convenience is against making the order sought.

2.        Miss Robinson for the Appellants has drawn my attention to the factors adumbrated in the decision of this Court in Veka A.G. -v- Picot (CI) Ltd [1999] JLR 306.  These are that a stay of execution should be granted, for failure to do so would render the appeal nugatory, unless the Court is satisfied that the appeal is not bona fide or has no realistic chance of success or there are other exceptional circumstances.    

3.        Dealing with those factors first, I accept that if the Attorney General is left free to disclose the information he has obtained to the Brazilian authorities the appellants appeal will be rendered nugatory.  Secondly, although I have my suspicions that the Appellants objective is to play for time there is insufficient material to satisfy me that the appeal is not bone fide.  Thirdly, but leaving aside the jurisdiction point for a moment, although I do not consider the chances of the appeal succeeding to be high I cannot in the light of the dicta in Hilsenrath v Attorney General  [2005] JRC 096 say there is no realistic chance of success. 

4.        Turning to the objections which have been raised, but which are not already covered by what I have just said, I make the following observations: 

(i)        I do not think that there is no realistic chance of the Appellants persuading the full Court that it has jurisdiction to hear this appeal.  The doctrine of stare decisis does not apply to decisions of the Court of Appeal in this jurisdiction.  In the light of the Guernsey Court of Appeal decision in Bassington and the interlocutory decision of the Royal Court in Acturus Properties Limited and 47 Others -v- Attorney General [2000] JRC 138, delivered on 17^th July, 2000, I think that it is possible that the Appellant may be able to establish that McMahon and Probets -v- Attorney General [1993] JLR 108 is no longer good law in so far as it characterised challenges of this sort as criminal or quasi criminal and not civil and that therefore the matters in issue in this case do not fall into the Bassington black hole. 

(ii)       Nor have I been persuaded that if this Court has jurisdiction to hear the appeal it does not also have inherent jurisdiction to ensure that the status quo is preserved pending the hearing of the appeal.

5.        It is not consistent with modern notions of justice that one party should be able to deprive another of a right to appeal affectively, and I note that in this case the Deputy Bailiff made an order restraining the Attorney General from exercising the same power that I have been asked to restrain him from exercising, and he did so.  If the Deputy Bailiff could do it in the Royal Court I can do it in this Court. 

6.        I am concerned about further delaying the Attorney General's compliance with the letters of request, but the next sitting of the Court of Appeal is only weeks away and it was not alleged that during that short interval anything is likely to happen which will be fatal to the taking of any particular step in the prosecution of Mr. Maluf in Brazil.  Accordingly, what I propose to do is to restrain the Attorney General in terms similar to paragraph 5 of the Deputy Bailiff's order of 12^th July 2005 until Friday 17^th March 2006, that is to say the last day of the next sitting of this Court, or further order of this Court.  I fix peremptorily the appellants' appeal for hearing during that week and I will hear the parties as to a time table which will enable the appeal to be dealt with then. 

(There followed a discussion on timetable for appeal and costs)

Authorities

Veka A.G. -v- Picot (CI) Ltd [1999] JLR 306.

Hilsenrath v Attorney General [2005] JRC 096.

Bassington -v- HM Procureur (2nd December 1998) Unreported Judgment of the Guernsey Court of Appeal.

Acturus Properties Limited and 47 Others -v- Attorney General [2000] JRC 138.

McMahon and Probets -v- Attorney General [1993] JLR 108.