State v Tabarez [2011] FJMC 133; Criminal Case 39.2011 (24 October 2011)

IN THE MAGISTRATE’S COURT
SIGATOKA
WESTERN DIVISION
REPUBLIC OF FIJI ISLANDS

Sigatoka Criminal Case No. 39 of 2011

STATE

V.

RONALD TABAREZ

For State: Filimoni Lacanivalu
Accused : Present - Represented by Mr. Robinson K. Prasad

RULING – Non- Disclosure

Introduction

The Accused is charged with One Count of Unlawful Supply of Illicit Drug, contrary to Section 5 (a) of the Illicit Drugs Control act 2004.

The hearing of this case commenced on 8th September 2011. While cross-examining the 1st Prosecution witness, the Counsel for the defence made a submission that the evidence of the witness be discarded as disclosures, the caution interview of the witness was not served on the defence. The prosecution confirmed that the witness was previously charged and the charge was later withdrawn. The Defence argued that the caution interview of PW-1 when he was initially charged should have been disclosed to the defence. The Counsel for the State was not aware that the caution interview of PW-1 was not disclosed because he took carriage of the matter just some time prior to its hearing.

The Defence Counsel made oral submissions and the Prosecution filed written submissions.

The Law
The prosecution's obligations of disclosure in criminal proceedings arise from an accused person's right to a fair trial (R v Brown [1995] Cr. App. R. 191, 198). The obligation to disclose is a continuing duty of the prosecution developed by common law. The common law rules of disclosure which were adopted in this country in the case of State v. Jamuna Prasad [1995] 41 FLR 223, owe their origin to the elementary right of every accused person to a fair trial. If an accused person is to have a fair trial he must have adequate notice of the case which is to be made against him.

The most notable recent commentary and decision on disclosures is by Justice Goundar in Dakuidreketi v Fiji Independent Commission Against Corruption [2011] FJHC 359; HAM038.2011 (24 June 2011), Where his Lordship stated:

"disclosure obligations in criminal proceedings can vary from jurisdiction to jurisdiction. As Lord Lowry said in Berry v The Queen (P.C) [1992] 2 AC 364.at p. 376: "... in a civilised community the most suitable ways of achieving such fairness (which should not be immutable and require to be reconsidered from time to time) are best left to, and devised by, the legislature, the executive and the judiciary which serve that community and are familiar with its problems."

Ultimately, how far the court will expand the scope of the prosecution's disclosure obligations will depend on the facts of each case.

In 1998, the then Director of Public Prosecutions issued guidelines on disclosure of prosecution evidence after the Constitution came into effect. The need for guidelines arose from the fact that in addition to creating certain disclosure obligation towards an accused person, the common law right to a fair trial was codified in the Bill of Rights provisions of the Constitution. However, unlike many common law jurisdictions, which enacted legislations codifying the prosecution's disclosure obligations, Fiji continued to rely on the common law for the prosecution's disclosure obligations in the absence of such legislation. The guidelines were intended to compel the prosecutors in Fiji to maintain a unified approach to their disclosure obligations to accused persons. I must state that the guidelines are now zealously followed by the prosecutors in Fiji, which effectively gives the guidelines the force of the law.

The guidelines are clearly in uniformity with the right to a fair trial under the common law and the international instrument, namely, ICCPR. I adopt those guidelines in my ruling as they recapitulate the law on disclosure in criminal proceedings in Fiji:

All prosecutors are to disclose witness statements to the accused person either by giving photocopies or carbon copies of witness statements or by arranging a time for the accused or his counsel to meet the prosecutor to read the statements in the docket.

The statements to be disclosed on request, are all witness statements of witnesses the prosecution intends to call, and all statements of witnesses who may be of relevance or assistance to the defence. The internal police minutes, investigation diary or D-folios need not be disclosed unless the prosecution intends to call evidence of these matters at the trial.

If access to statements is given by showing original statements in the docket, under no circumstances is the accused or his counsel permitted to take the original statements away from the custody of the prosecutor.

In cases where the prosecutor considers it necessary in the interests of the justice, he/she may make an application for witness statements to be disclosed with the name of the witness suppressed. The prosecutor should particularly consider this option in the case of witnesses who are vulnerable, such as children.

Where no request is made for witness statements, the prosecutor should in any event disclose either the evidence adduced by or, the summary of facts. However, accused persons who have requested witness statements may not also apply for evidence adduced by, or summary of facts.

Care should be taken that disclosure is complied with by disclosing legible statements or summaries. If statements are illegible, the investigating officer should be asked to provide legible copies for prosecution and disclosure.

These Guidelines on disclosure apply to all offences under all statutes.

These Guidelines exist in addition to the duties of prosecutors under the common law to disclose:

(i) Previous conviction of witness whenever relevant to the case;

(ii) Previous convictions of the accused;

(iii) Documents intended to be tendered by the prosecution at the trial;

(iv) Access to exhibits intended to be tendered by the prosecution at the trial;

(v) Any other exhibit document or statement that the prosecutor should disclose in the interests of fairness.

Where unrepresented accused persons request disclosure in the vernacular translation must be prepared by the investigating officer.

In Manjula Ali v. The State Crim. App. No. HAA023 of 2005S, Shameem J after considering local and New Zealand cases on the prosecution's disclosure obligation said at p.12: "These authorities reinforce existing principles on the prosecution's duty to disclose. The prosecution has a duty to disclose all relevant material but it cannot disclose what it does not have."

Analysis

The Court has noted the submission by the Prosecution and the Defence on the issue. The Court notes that the Defence is still continuing with the cross-examination and has not concluded the cross examination of the witness whose initial caution interview statement had not been disclosed.

This Court accepts that disclosures should be made available to the defence well before the commencement of a trial, so that the defence can prepare its case, Having noted the law and guidelines on disclosures, This Court notes that there is no hard and fast rule restricting disclosure of evidence at any stage before or during a trial. Lawton LJ in Reg v. Hennessey (Timothy) (1978) 68 Cr. App. R 419 at p.426 said the courts must: "keep in mind that those who prepare and conduct prosecutions owe a duty to the courts to ensure that all relevant evidence of help to an accused is either led by them or made available to the defence."

In this case the Court finds that the Prosecution did not knowingly withheld disclosures evidence from the Defence. The current Prosecutor did not know that the disclosures in question were not served on the defence. While the Court notes that it is in the interests of justice that all material documents are made available to an accused to ensure a fair trial is held. The primary principle is that the accused must have the disclosures to prepare a defence. The hearing is in progress, the witness whose disclosures are in question is still on the stand. The disclosures are available and can still be served on the Defence. The witness whose disclosures were not served is still on stand and can be cross examined by the defence. There has been no injustice to the Defence, however there may have been some inconvenience. This oversight can be remedied by the prosecution serving the defence the disclosures. The Defence can peruse the disclosures and then continue with the cross-examination of the witness.

The Prosecution is to immediately serve the necessary disclosures to the Defence. The Defence submission to disregard the witnesses (PW-1's) evidence is refused. The Hearing will continue with the cross-examination of PW-1 by the Defence Counsel.

Chaitanya Lakshman
Resident Magistrate

24th October 2011