GOVINDEN CJ
Background
[1] Mukesh Valahji and Laura Valahji (“the Applicants”) filed an application seeking a direction requiring the disclosure of materials held by the Republic of Seychelles (“the Respondent”). The Respondent closed its case on 15th April 2024, which was followed by a ruling of no case to answer made in its favour. The Applicants, in their joint application supported by their joint affidavit, contend that despite previous requests for disclosure of certain materials. Following the no case to answer ruling, they have not received the necessary documentations, which they argue are essential for the preparation of their defence.
[2] The materials in question are the following:
1. Documentation related to the Federal Bureau of Investigation (FBI) alleged participation in the investigation that revealed a collaborative approach between Seychellois authorities and the FBI, as noted during the testimony of Sergeant Simeon, the Investigating Officer.
2. Documents in bulgarian which may or may not specifically relate to a person who has made a witness statement, Mr. Nikolaicho Gigov, which the Respondent claims are not relied upon by them in their case but are in their possession.
3. Materials seized from the residence of former President Rene during the investigation of a separate case, involving his surviving spouse, which are asserted by the Applicants to be useful for their defense. The Applicants indicated that Mrs. Rene is willing to provide copies of these seized materials.
[3] The Respondent has, through an affidavit in reply, filed by Sergeant Simeon, taken the following position:
[4] With respect to the information relating to involvement of the FBI, the Respondent asserts that the ’FBI’s involvement was limited to providing technical assistance and that they were not involved in any physical search and seizure activities at the Applicants’ premises. They further claim that no findings or reports from the FBI are relevant to the case as it stands.
[5] With regards to the Bulgarian documents, the Respondent’s position is that while they possess certain documents in Bulgarian, they are not relying on said documents for their case. The Respondent has, however, indicated that the Applicants may obtain copies of these documents, thereby fulfilling the spirit of disclosure without necessitating a formal directive.
[6] As to the materials seized from Barbaron, the Respondent contends that the documents seized from the former President’s residence were reviewed by the police and deemed irrelevant to the firearms case currently at hand. These documents were therefore returned to the Government President’s Office, their rightful owner.
Analysis
[7] In a Ruling in this case that I delivered January last year I said the following with regards to the applicable law relating to the prosecution’s duty of disclosure in this jurisdiction and I find it pertinent to again reiterate it here;
1. “This is summarised in the first and second Principles of Disclosure:
1. The Republic is obliged to disclose all material information for or against the accused (subject to any public interest immunity considerations). This relates to statements, but it also relates to all information of which the Republic is aware. ‘Information’ is defined as material of any kind given to or obtained by the prosecutor in connection with the proceedings;
2. “Material” means information which either materially weakens or undermines the evidence that is likely to be led by the prosecutor; materially strengthens the defence case; or is likely to form part of the evidence to be led by the prosecutor in the proceedings against the accused (disclosable information).
2. The Republic is not obliged to disclose all material information against the accused, only that information against the accused that forms part of the prosecution’s case. Neutral information or information damaging to the defence and not part of the prosecution case need not be disclosed and should not be brought to the attention of the court (R v H & C 2004 AC 1324); neutral information being information with no evidential significance to any party.
3. It is the Republic’s duty to disclose information that is material to the defence. This duty does not depend on the defence making an application or request to the Republic for disclosure (McDonald v HMA [AC] at para 55, Sinclair at para 53)
4. The Republic’s duty is a continuing one – it persists in perpetuity. It continues throughout and to the conclusion of any trial, and any subsequent appeal proceedings, and even after the final disposal of a case. The Attorney General must, from time to time, review the information held and disclosed and make further disclosure where appropriate. Any new information received by the Republic at any stage in the preparation of a case, during trial or any subsequent appeal proceedings, or even after the final disposal of a case must be considered for disclosure. This process may require previous decisions in relation to disclosure to be reviewed to assess whether further information requires to be disclosed to the defence. The Republic’s disclosure duty exists in perpetuity and extends to all information received and known to the prosecution in the course of investigation and criminal proceedings.”
[8] To this court this remain trite law and I have applied my mind to the above legal principles in my analysis and determination in this application, having thoroughly given due consideration to the facts and circumstances before the court and the submissions of parties.
Determination
[9] After weighing the arguments presented, I find myself compelled to deny the application for a formal direction requiring disclosure of all materials sought by the Applicants.
[10] Firstly, there are clear deficiencies in establishing the relevance of the FBI materials. Apart from the quoted brief statement made by Sgt Simeon in his testimony, which was not made the subject matter of further cross examination during the course of the trial, there is no evidence indicating any material involvement of the FBI in the investigation of this case. I accept as true the Respondent’s position in this regard. From the proceedings it appears that this case was initiated by the ACCS and then taken over by the Seychelles Police Force. Any involvement of the FBI appears to have been minimal and does not form part of the prosecution’s case.
[11] Secondly, it is clear that the Republic is not relying on the documents written in Bulgarian as part of its case. These documents were not requested from Bulgaria by the Republic of Seychelles during the course of the investigation of the case. As this Court has previously held, the Republic is not obliged to disclose all material information against the accused; its duty is to make available only the information against the accused that forms part of the prosecution’s case or is helpful to the defence case. Neutral information or information damaging to the defence and not part of the prosecution’s case need not be disclosed and should not be brought to the attention of the court (R v H & C 2004 AC 1324). Neutral information refers to information with no evidential significance to any party. It is apparent that the relevance of these Bulgarian materials is unknown to both sides and holds no evidential significance to either party. The Republic bears no duty to attempt to translate all materials in its possession in order to determine their relevancy to the defence case, especially since the defence has not shown its relevancy, beside the fact that they are in the Bulgarian language and this case appears to have certain Bulgarian links. Accordingly, I find that these materials are not disclosable.
[12] Thirdly, the materials seized from former President Rene’s residence had not been seized by the police in relation to the investigation of the case against the applicant, but rather in another criminal investigation, and they do not form part of the prosecution’s case in this matter. Therefore, these are materials that the prosecution rightly asserts are not material to the defence and the prosecution in this case. As such the onus is on the defence to show that the materials are relevant and material to their case. I find that the Defence has failed to do so. Aside from the averments that President Rene’s wife is willing to give the materials and that they come from the Premises of a former President, the Applicants have not specified to what extent any identifiable document or documents, apparently unrelated to the investigation of this case and not related to any accused in this case, is or are relevant to their defence. The Defence’s arguments appear to be an attempt to impose a blanket duty on the prosecution to provide all materials in their possession with the aim of finding any that may be relevant and material to their defence. The prosecution has no such duty to act. At any rate, the Court believes that since these documents belong to the state, Mrs Sarah Rene would have no proprietary rights over them and hence cannot compel their disclosure to the Applicants.
Final Determination
[13] The application for a direction requiring the disclosure of the materials held by the Respondent, including items allegedly related to the FBI participation in the investigation, the Bulgarian documentations, and documents seized from former President Rene’s residence, is accordingly, denied.
Signed, dated and delivered at Ile du Port on ______of March 2025.
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Govinden CJ