State v Leitao [2013] FJMC 29; Criminal Case 1075.2009 (21 January 2013)

IN THE MAGISTRATES COURT
AT SUVA

Criminal Case No. 1075/2009

STATE

V

JOHN LEITAO

Dated: 21st January 2013
For Prosecutor: Ms. Tikoisuva (DPP)
For Accused: Mr. Valenitabua

RULING

1. On behalf of DPP, Ms. Sherlyn Kiran, a State Prosecutor had filed a Notice of Motion along with an Affidavit of Ms. Seini Korosaya Puamau, a Senior Legal Officer employed by the Office of DPP, seeking an Order that the Accused be ordered to allow the DPP/State to have access to the disclosures that were served upon John Leitao, the accused in this case and to get photocopies of the said disclosures at its own cost.
   
2. Upon perusal of the Affidavit of Ms. Seini Korosaya Puamau, it is understood that the docket or the file of the DPP's Office pertaining to this case along with the Police Docket which contained the State's minutes and the evidence intended to be lead in respect of this matter had gone missing and several attempts of the DPP's Office with audit queries to locate the file were futile. It seems that Ms. Puamau had communicated with Mr. Valenitabua of Namlakah Lawyers who represents the accused in view of having access to the disclosures served on the accused by the State. But Mr. Valenitabua had turned down that request saying that his client will not authorize him to release his disclosures to the DPP.
   
3. According to Ms. Puamau, she had wrote to Mr. Valenitabua on 31st of January 2012 reminding the opposing counsel that "the finer traditions of the Bar and to consider his obligations to the court and to the greater interests of Justice". Ms. Puamau does intent to review the criminal proceedings of this case and with the absence of the file and the relevant material of the DPP she is held up to go any further and take a decision though she feels "...... the state of the evidence and of the fact that the chain of custody was not properly kept in respect of this case as evidenced by the fact that the items exhibited did not match the numbers said to have been ceased by the Fiji Police Force in respect to this case". Therefore, Ms. Puamau's request is to have access to and the ability to photocopy the disclosures served to the accused of her own cost as the documents are State owned and those were delivered to the accused in the interests of fairness and justice. Ms. Puamau had placed her reliance on Section 292(2) and Section 289(c) of the Criminal Procedure Decree.
   
4. In response to the Notice of Motion and Affidavit on behalf of the DPP, John Leitao, the accused had filed an Affidavit in answer. He had been advised that the prosecution's admission as to missing file means that there is no evidence against him for the existing charges. He claims that the documents went missing due to the negligence of the prosecution and he has no duty to provide disclosures to the prosecution. Mr. John Leitao, says that those documents are "privileged documents", as he had "made notes in", and "doctored" his disclosures to suit his defence. He is scared that the prosecution will become aware of his case theories, strategies and defence if the documents are being provided back to the prosecution. He further averred that he's suffering a greater prejudice because of the missing file under the DPP's watch as it was negligently handled by case officers and demands the officers responsible should be investigated for their negligence. The accused urges the Notice of Motion filed by the prosecution to be struck out together with the affidavit with costs as he is waiting for over 3 years for Justice.
   
5. Having considered the request of the prosecution and the objection of the accused to the same, I would proceed to see the legal background of which the request of the prosecution is being made. DPP refers to Section 292(2) and 289(c) of the Criminal Procedure Decree to substantiate his position that when there is no specific provision or regulation the court has the power to facilitate the attainment of the objectives of Section 289 of the Decree. Section 289, 290, 291 and 292 are contained in part XVIII of the Criminal Procedure Decree under the title of "PR-ETRIAL ORDERS, HEARING AND CONFERENCES". On a careful look at the 4 Sections in part XVIII, it is obvious that these Sections are meant to deal with the pre-trial stage of a case.
   
6. Upon perusal of the case record, I note that the Hearing of this matter had already been commenced on 28th of June 2010. PW No. 1 PC/4014 Severo of Raiwaqa Police Station, and Special Constable 2658/Panapasa of Raiwaqa Police Station had already given evidence. It is only after those 2 witnesses gave evidence, the prosecution had encountered this problem of misplacing their file. In this context it is obvious that these specific proceedings had already gone through the threshold of pre-trial stage. Now it remains as a part-heard trial. Thus, I am not in a position to be in agreement with the DPP that this court can order the accused to surrender his disclosures back to prosecution to be photocopied by them by placing reliance on Sections 289 or 292 of Criminal Procedure Decree.
   
7. There is no doubt that the prosecution has a over whelming and continuing duty cast upon them to disclose the accused person any prosecution material which has not disclosed to the accused and which might reasonably be considered capable of undermining the case for the prosecution against the accused or of assisting the accused as stipulated in Section 3 of England's Criminal Procedure and Investigation Act. 1996.
   
8. But, all my efforts to identify somewhat similar instance to this request of the prosecution within the local jurisdiction or Common Law or elsewhere was not fruitful. This is a totally different scenario when compared to "disclosure by accused" as stipulated in Sections such as (5) and (6) of the said Criminal Procedure & Investigation Act 1996. Therefore, this court is unable to rely on a specific authority or provision to entertain the request of the prosecution. This is an instance where the issue has to be sorted out within the camps of the prosecution and the defence. Though it is true that both the prosecution and the defence counsel are officers of court and have a great obligation towards the court in assisting the court functions to achieve the goal of justice, I do not think that the defence has any burden or duty or obligation towards the prosecution to assist in fulfilling the requirements of the prosecution. If the defence is willing to contribute in some way to the prosecution's case, that has to be done through the mutual respect and mutual understanding to each other without depriving or damaging the interests of each other.
   
9. It is perhaps in this context this court views the issue of 'privileged documents' as highlighted by the accused. His contention is that he has already made notes in the disclosures reflecting his defence and the said disclosures would have been used during the discussions with his counsel as well. As decided in R –v- Derby Magistrates Court, exp. B [1995] UKHL 18; [1996] A.C. 487, HL, the Common Law right to consult legal advises without fear of the communication being revealed is a fundamental condition on which the administration of justice rests. Though this court did not proceed to peruse the disclosures in issue to ascertain the correctness of the accused's version, in view of the above authority, I do not think that this court should step into the privileged areas and confront the rights of any party.
   
10. In the light of the above narrated background, I conclude that there is no specific legal basis for the prosecution to move this court to make an order to have access to the Disclosures they had already given to the accused. In a situation where the accused refuses to allow access to the prosecution for his disclosures, this court is not inclined to interfere in between both parties, as there is no legal provision for this court to rely on and order the accused to comply with the request of the prosecution. Accordingly, the Notice of Motion of the Prosecution is struck-out.
    

Janaka Bandara [Mr]
Resident Magistrate, Suva

Dated: 21st January 2013