R v Valabhji and Ors (CO 4 of 2022) [2022] SCSC 848 (3 October 2022)

GOVINDEN CJ

The pleadings and arguments

1. In a motion dated the 18th of July this year, the Republic moved this court to permit investigators to commence review of the Respondent’s digital devices for the reason set out in an affidavit sworn by detective Inspector Simeon. The material part of his affidavit is as follows:

“3. That the Respondent was arrested on 18^th November 2021 by officers attached to the Anti-Corruption Commission Seychelles.  That a search was conducted at her home and at her place of work.  A number of documents and digital devices were seized from these premises. Digital devices belonging to her husband, Mukesh Valabhji, were also seized.

4. During the search of the Respondent’s home, a large cache of weapons was discovered.  The Respondent has been charged in relation to these weapons with her husband, Mukesh Valabhji and others with offences under the Prevention of Terrorism Act, 2004, the Penal Code, and the Firearms and Ammunition Act 1973.

5. That I am charged with investigating these offences.  As part of the investigation the digital devices of Mukesh Valabhji are being reviewed to determine whether they contain material of evidential value.  An initial screening of Mukesh Valabhji’s hard-drive has been revealed correspondence detailing his direct involvement of the purchase of weapons and material that demonstrates terrorist purpose for possession of the discovered weapons, this includes a document known as ‘That Anarchist’s Cookbook’.

6. To date, a similar review of the digital devices seized from the Respondent has not been undertaken.  I understand that this is on account of an ongoing dispute between the Respondent and the ACCS with regards the appointment of an independent reviewer to first review the material on the devices to determine whether or not to provide any materials to the ACCS.  I am told that the ACCS wrote to lawyers acting for the Respondent on 9 June 2022 suggesting a way forward.  The Respondent’s lawyers have not replied.

7. The Respondent’s trial date in this matter has been fixed for December 2022.  It is obviously important that officers investigating the terrorism/firearms offences are able to review the Respondent’s digital devices as a matter of urgency.  A review of a defendant’s digital devices is something that is normally carried out in any investigation as a matter of routine.

8. In order to progress this matter in the interests of justice and to avoid any further delay to the review of the Respondent’s devices, it is proposed that an officer unconnected with the case be appointed to review the material on the Respondent’s devices to determine whether they contain any items of evidential value.  This process will involve the creation of a mirror image of the digital material on an auditable system, the entering of a number of relevant key words associated with the facts of the case and then review of the material that is found to contain those keywords.  Plainly, any material covered by legal professional privilege will not be provided to those already engage to investigate this case, and will certainly not be relied upon as part of the Republic’s case.

9. This process will also allow the prosecution the opportunity to discharge its duty of revelation under the Code for Public Prosecutors of material that may undermine the case for the prosecution, or assist the accused, in a timely and appropriate manner.  The material covered by legal professional privilege will not be made available or disclosed to any other investigative or prosecuting agency (inclusive of the ACCS).”

2. The Respondent objected to the application in her affidavit in reply dated the 1^st of August 2022. First, she averred that the application was misconceived as disclosures should have been complete by now. Second, the Respondent avers that the list of documents and devices seized have not been sufficiently particularise. Third, it is averred that at any rate the procedure suggested by Officer Simeon would lead to a breach of legal professional privilege. After hearing the parties on certain procedural aspects the court did not make any formal order but instead held that the applicant’s affidavit was insufficiently particularised.
3. Following this the applicant filed a new affidavit dated the 11^th of August in which he makes the following averments:

“3. That further to my affidavit of 18^th July 2022 in support of the Motion to permit investigators to commence review of the Respondent’s digital devices, and in response to matters raised in the Respondent’s affidavit dated 1^st August 2022, I hereby state and make the following points.

4. That attached to this affidavit is a statement from Patrick Humphrey, an officer with the Anti-Corruption Commission Seychelles, dated 9^th August 2022.  Attached to his statement is an exhibits list which sets out exactly what digital devices and material was seized from the Respondent, with details of who seized each device, where and when.

5. As set out in the statement of Patrick Humphrey, the digital devices have been copied and securely contained in digital folders with access protection to limit and audit any access gained to the files contained therein.  I am told that the digital devices are physically in the control of the ACCS Principal Exhibits Officer.  The secure digital containers for the uploaded material are in the custody of the ACCS Digital Forensics Team.  Both elements held at ACCS officers at Victoria House.  I am told that no access will be granted to them without order of the Court.

6. It is further proposed that Assistant Superintendent Marcus Jean be appointed to review such devices and material for the reasons set out in my affidavit of 18^th July 2022.  I can confirm that Assistant Superintendent Marcus Jean is an officer currently attached to the Seychelles Police Force as the Regional Commander for the North Region and that he has had no prior involvement with the investigation carried out in CR 4 of 2022 or any investigation conducted by the ACCS.

7. That in response to the point made by the Respondent at para. 3(c) of her affidavit, I can confirm that the investigation in this case is continuing and that further evidence will be served on the defendants in the coming days.  That such disclosure will include those documents and materials that have been obtained from the digital devices of the other defendants and will include, inter alia, a copy of the Anarchist’s Cookbook, subject to an undertaking as to safeguarding against its further dissemination.

8. Furthermore, in response to the point made by the Respondent at para. 3(f) of her affidavit, I can confirm that the Code of Prosecutors was promulgated in March 2017, with an introduction from the then Attorney General, now Chief Justice.  It is publicly available on the Attorney General Office website.”

4. The above was countered by a new affidavit in reply by the respondent,where she took up similar objections on the procedure and requested directions from the court as to whether there is still a notice of motion before the court given this court’s previous ruling. In response to this, the court informed her that such will be decided after the court has appraised itself of the documents filed by the parties.
5. The respondent also informed the court that she would want the deponent of the applicant’s affidavit and the author of a statement to the affidavit, Mr Humphrey, an officer of the Anti- Corruption Commission, to be tendered for cross examination on the date of the hearing. Having scrutinized the pleadings  I was satisfied that there was no necessity to call the deponents as I felt that the affidavits were sufficiently particularized in order to make the court come to a just and proper determination of the issue. On the date of the hearing the respondent was informed of the court’s decision.
6. I have thoroughly read the application and its supporting documents and the affidavits in replies thereto. I have given close attention to the submissions of parties. I have also given careful consideration to the legal principles involved in matters of legal professional privilege and the facts and circumstances of this case.

Issues for determination

7. Based on the several objections of the Respondent, I find that the issues for determination are three. First that the devices having already been opened and viewed by agents of the Republic as shown by the Report attached to Mr Humphrey’s statement, whether the privilege is already breached. Second, the said Report is misleading as there are other electronic documents of the Respondent that have been seized and are not mentioned in it. Third, this court having already made an order with regards to the issue of legal Professional Privilege of the Respondent’s electronic documents in the possession of the Anti-Corruption Commission in another case, whether it can make any further orders regarding the same document in this case.

Analysis and determination

8. Legal Professional Privilege lies at the heart of the administration of justice in this country. It protectsbona fide communications between a lawyer and client from disclosure. It promotes the seeking of legal advice which is vital if people were to comply with the law, pursue their civil rights through the courts or attain effective representation in criminal proceedings.
9. There are two separate aspects of legal professional privilege, and that is‘litigation privilege’ and ‘lawyer-client privilege’. This Ruling is concerned only with the lawyer-client privilege given the nature of the application before the court. Therefore, any definitions given for the requirements necessary for privilege relate to lawyer-client privilege alone.
10. In English common law, privilege is granted statutory protection under the Police and Criminal Evidence Act 1984. However, for the purposes of this decision this court will limit the applicability of the English common law as of 1976 as per the settled law of the land with regards to the applicability of the english law of evidence. In Greenough v Guskell (1833) 1 My & K 98, 103,39 ER 618,620, Lord Brougham stated the principle as follows; ‘If touching matters that come within the ordinary scope of professional employment they [legal advisers] receive a communication in their professional capacity, either from a client or on his account, . . . or, which amounts to the same thing, if they commit to paper in the course of their employment on his behalf, matters which they know only through their professional relation to the client, they are not only justified in withholding such matters, but bound to withhold them, and will not be compelled to disclose the information or produce the papers in any court of law or equity, either as party or witness. . . . The foundation of this rule is not difficult to discover . . . It is out of regard to the interests of justice, which cannot be upholden, and the administration of justice which cannot go on without the aid of men skilled in jurisprudence, in the practice of thecourts, and in those matters affecting rights and obligations which form the subject of all judicial proceedings.’
11. In Anderson v Bunk of Brirish Columbia[1876] 2 ChD 644, 649, Sir George Jessel MR stated:‘as by reason of the complexity and difficulty of our law, litigation can only be properly conducted by professional men, it is absolutely necessary that a man . . . should have recourse to the assistance of professional lawyers, and . . . it is equally necessary . . . that he should be able to make a clean breast of it to the gentleman whom he consults.’
12. In Wheeler v Le Marchunt(1881) 17 ChD 675, Sir George Jessel MR stated: ‘the obtaining of legal advice and assistance, and all things reasonably necessary in the shape of communications to the lawyer, are protected from production or discovery in order that legal advice may be obtained safely and sufficiently.’
13. In Annesley v Earl ofAngleseu17 How St Tr 1129, 1241 (Ex 1743) Mounteney B. stated: ‘an increase of legal business, and the inabilities of parties to transact that business themselves, made it necessary for them to employ other persons who might transact that business for them; that this necessity introduced with it the necessity of what the law hath very justly established, an inviolable secrecy to be observed by attorneys, in order to render it safe for clients to communicate to their attorneys all proper instructions for the carrying on those causes which they found themselves under a necessity of intrusting to their care.’
14. In AM & S Europe Lrd v EC Commission [ 1982] 2 CMLR 264,320, the two Advocates General stated: ‘a right of confidential communication between lawyer and client is recognised as a fundamental constitutional or human right, accessory or complementary to other such rights which are expressly recognised, and that as such that right should be recognised and applied as part of Community law.’
15. According to Cross on Evidence (London: Butterworths 6^th ed., 1985, p 398,in order for legal professional privilege to apply to a communication in common law, it is essential that four requirements are fulfilled. First, the communication must be made confidentially. Second, it must be made by or to a client. Third, it must be made by or to a lawyer acting in his or her professional capacity. Fourth, it must be made for the purpose of legal advice. The absence of any one of these requirements will indicate that the communication in question is not legally privileged.
16. Moreover, there is also some communications that are made either by the client alone or by the lawyer and client together with the express intention of either or both of them that the communication should facilitate a crime or fraud. The leading case on whether such communications fall within the scope of the protection is R v Cox and Railton (1884) 14 QBD 153. Therein, a judgment in damages was obtained against the defendant Railton for a libellous article. Railton, together with his partner Cox, consulted their solicitor to ascertain whether Railton could effect a bill of sale to Cox thereby defeating the claim for damages. The solicitor in good faith told them that they could not effect such a bill because of the partnership between them. They thanked him for his advice and left his office. When the Sheriff arrived at Railton's premises to take possession of the household goods and stockin-trade he was presented with a duly executed bill of sale from Railton to Cox and a deed purporting to have dissolved the partnership between Railton and Cox dated prior to the date of the judgment against Railton. Cox and Railton were prosecuted for producing a fraudulent bill of sale of the partnership assets whilst they were still partners. Their conviction was due, in large part, to the evidence of their solicitor as to the conversation that had taken place. The question which arose for decision was whether at their trial the evidence of their solicitor was rightly admitted. The headnote to the case reads:

“All communications between a solicitor and his client are not privileged from disclosure, but only those passing between them in the legitimate course of professional employment of the solicitor. Communications made to a solicitor by his client before the commission of a crime for the purpose of being guided or helped in the commission of it, are not privileged from disclosure.Stephen J, who gave the judgment of the court, observed: In order that the rule [legal professional privilege] may apply there must be both professional confidence and professional employment, but ifthe client has a criminal object in view in his communications with his solicitor one of these elements must necessarily be absent.”

17. In Williams v Quebrada Railway, Land and Copper Company [1895] 2 Ch 751, 754, 755, Kekewich J stated: ‘However hardly the rule [legal professional privilege] may operate in some cases, long experience has shown that it is essential to the due administration ofjustice that the privilege should be upheld. . . . It is obvious that if this objection [that the communication were privileged] holds good justice may be defeated; but it may be right that justice in this case should be defeated in order to uphold the general administration of justice.’
18. In Pearse v Pearse 1 De G & Sm 12, 29, ER 950, 957 (Ch 1846), Knight-Bruce VC stated, whilst applying the exception that:‘And surely the meanness and the mischief of prying into a man’s confidential consultations with his legal adviser, the general evil of infusing reserve and dissimulation, uneasiness and suspicion and fear, into those communications which must take place, and which, unless in a condition of perfect security, must take place uselessly or worse, are too great a price to pay for truth itself.’
19. From the above cited cases, the common law position is clear. All the cases which dealt with the crime/fraud exception understood the following points:

1. it operated to destroy the protection of privilege where the client communicated with the lawyer for the specific purpose of obtaining advice as to how to carry out a crime or fraud; and
2.  the communication itself had to concern the crime or fraud.

20. In this case the Respondent, albeit an Attorney-at-law, has been charged with very serious offences and some aspects of it are still under investigation. During the course of their investigation, it is alleged that the Republic seized a number of devices containing a number of electronic documents from the Respondent. The fact that the Respondent was an Attorney-at-Law at the time of their seizures or at the time that the documents were made does not automatically make them inadmissible against the Respondent in this case as the they may or may not relate to her profession as an Attorney. It stands to reason to say therefore that they would be inadmissible only provided that they fall to be categorized as a privilege documents as analysed above.
21. Hence, they will not be able to be produced in evidence by the Republic if the documents were made confidentially by a client to the Respondent or to a client by the Respondent; by or to the Respondent acting in her professional capacity and made for the purpose of legal advice.  If however the documents failed to meet this test they will be admissible.
22. Moreover, even if they passed this test of non- admissibility based on privilege where a client communicated with the Respondent or the Respondent communicated with a client for the specific purpose of obtaining advice as to how to carry out a crime or fraud; and the communication itself concern the crime or fraud.