R v Valabhji & Ors (CO 4 of 2022) [2024] SCSC 49 (13 February 2024)

Govinden CJ

1. I have carefully read the notice of motion and supporting affidavit of the prosecution and the replies of the defence and the submissions of the counsels and I have also read all the authorities submitted to the Court.
2. In its explanatory submissions in the notice of motion at the Republic avers as follows.  “The Republic is in possession of material and it considers ought not to be disclosed to the defence on the grounds that it neither assists the defence nor undermines the prosecution case and should further not be disclosed on grounds of privilege and or public policy”.  At paragraph 3 of the affidavit in support of Davis Simeon, the Investigating Officer in this case, avers as follows, that “he has prepared a seal envelope entitled DS1 which contains details of materials in possession of the Republic which is considered to neither assist the defence nor undermines the prosecution case and which further should not be disclosed on grounds of privilege and or public policy”. 
3. In his notice of motion Mr. Powels relied on the case of Bernard Georges vs. The Republic Constitutional Case No. 02 of 1998 in which the Court I quote aver held “if any trial the prosecution has in its possession documents or evidential material helpful to the defence case but wants to claim public interest immunity the defence should be informed of the fact etc.”. 
4. The Court is of the view that it is not the Court that decides whether material is supportive or helpful to the defence case or weakens the prosecution case.  This is an obligation, which in law, is casted upon the prosecution.  The Court decides whether the material having passed this test and being disclosable, nonetheless is subject to the privilege of public interest immunity and therefore, given the facts based on those documents, it is not to be disclosed. 
5. At this juncture, the prosecution should be aware of the defence case and in fact Mr. Lewis have just clearly stated out what are the two defences relied upon by the 1^st and 2^nd Accused and therefore it would be able to take a decision as to whether those materials which is purported to be subject to public interest immunity is supportive of the defence case or weakens the defence case.  If the prosecution does not know at this juncture whether these materials is disclosable as a result of it being supportive of the defence or weakening the prosecution case, the prosecution has time until the close of its case for it to decide whether it missed the test and therefore to make the necessary application.  The same applies to border line cases, that is something for the prosecution to decide. 
6. It appears in this notice of motion that the prosecution is abdicating its legal obligation of disclosure to the Court with the potential of the Court being prejudice by materials which might be not supportive of the defence case and I find this to be an abused of process of the Court as submitted by Mr. Hoareau. 
7. On the issue of the procedure, I am of the view that it should be the trial Court that should decide the application. It should not be before another Court, as Mr. Lewis has said, this is an ongoing procedure of review and the Court will have to adjust and review its decision depending on how the to and from of the trial process goes.  I am also of the view that it should be inter partes and not ex parte. 

Signed, dated and delivered at Ile du Port on 13 day of February 2024.

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R. Govinden

Chief Justice