IN THE HIGH COURT OF FIJI
AT SUVA
MISCELLANEOUS JURISDICTION
Criminal Miscellaneous Case No. 178 of 2013

BETWEEN:

MAHENDRA PAL CHAUDHRY
Applicant

AND:

STATE
Respondent

BEFORE : HON. MR. JUSTICE PAUL MADIGAN

Counsel : Mr. M. Korovou for the State
Mr. A. Singh for the Applicant

Dates of hearing : 18 September, 16 October, 2013
Date of Ruling : 1 November, 2013

RULING
(DISCLOSURE)

1.	The applicant by way of Notice of Motion and accompanying affidavit seeks an order that letters in the custody of the Director of Public Prosecutions ("DPP") be disclosed to him, and furthermore that proceedings against him for breach of Exchange Control provisions be stayed until such time as the Prosecution might disclose the letters.

2.	The letters that the applicant wishes to be disclosed are;

(i)	Letter from Siwatibau Sloan (Solicitors for the Reserve Bank of Fiji) to DPP dated 19th January 2010.

(ii)	Letter DPP to Siwatibau Sloan – 16 February 2010.

(iii)	Letter DPP to Siwatibau Sloan – 19 April 2010.

(iv)	Letter DPP to Siwatibau Sloan – 10 May 2010.

(v)	Letter DPP to Sada Reddy (the then Governor of the Reserve Bank of Fiji) – 17 May 2010.

3.	In an affidavit sworn on the 26th July 2013, the applicant deposes that along with all other disclosures made to him, he was provided with a copy letter dated 25 May 2010 from Siwatibau Sloan Lawyers to the Prosecution. His counsel submits that having been given one letter in a series, it is unfair and "seriously prejudicial" that he not be given the other five requested.

4.	Counsel claims to rely on the provisions of s.103 of the Criminal Procedure Decree 2009 which governs procedures in dealing with documents claimed to be privileged. He claims that those provisions are no longer available to the DPP and as a result he can no longer claim privilege for withholding the documents.

5.	The applicant provides no reason why he needs these documents for his trial, nor does he state what prejudice he would suffer if he not be given access to them.

6.	The DPP submits that the letters sought are internal communication between the State and the Reserve Bank and the Bank's solicitors and the letters do not provide material evidence which would assist either the prosecution or the defence in the trial on charges that the applicant kept and dealt with foreign funds.

7.	Furthermore, counsel for the State adds that the DPP has made disclosures in accordance with the law and despite the provisions of ss.133 and 134 of the Criminal Procedure Decree, the State will not be using the letters requested in the trial of the applicant and as a result the disclosure sought is not relevant. In that respect, he submits, section 14 of the Constitution 2013 has been satisfied.

8.	In the case of R v. H and C[ 2004] 2 Cr.App R.10, the Committee of the House of Lords when dealing with disclosures and privilege (or public interest immunity) said (at para 35) "the trial process is not well served if the defence are permitted to make general and unspecified allegations and then seek far-reaching disclosure in the hope that material may turn up to make them good. Neutral material or material damaging to the defendant need not be disclosed and should not be brought to the attention of the Court."

9.	The Supreme Court dealt in some detail with the principles relating to disclosure in Dip Chand CAV0014/2010. The Court looked with approval at the dicta in the Australian case of Cannon & Rochford v. Tahche [2002] VSC 84 where the Court (per Chernov J.) said:

"the prosecutor's duty of disclosure" has been the subject of much debate in appellate courts over the years. But, as it seems to us, authority suggests that, whatever the nature and extent of the "duty", it is a duty owed to the Court and not a duty, enforced at law at the instance of the accused".

10.	The Supreme Court also looked with approval at the dicta of the Canadian Supreme Court in the case of R v. Stinchcombe [1991] 3 S.C.R 326 where Sopinka J. said:

"……the obligation to disclose is not absolute it is subject to the discretion of counsel for the Crown. This discretion extends both to the withholding of information and to the timing of disclosure ….Discretion must also be exercised with respect to the relevance of information. While the Crown must err on the side of inclusion, it need not produce what is clearly irrelevant".

11.	It is clear from the material provided to the Court that the correspondence between Siwatibau Sloan, the solicitors for the Reserve Bank and the DPP concerned the mechanics of prosecution rather than material which would go to the proof of or otherwise of the charges. As such they have no relevance to the proceedings, nor does the applicant suggest what relevance they might have to his defence.

The Section 103 submission

12.	Section 103 of the Criminal Procedure Code reads:-

"Procedures for dealing with documents claimed to be privileged

103(1) No claim as to privilege or confidentiality of any documents seized or to be seized under the authority of a search warrant shall be grounds for preventing such seizure or challenging the right of any person acting on the authority of the search warrant to seize the documents.

(2)	Where any documents are seized under the authority of a search warrant and any person claims that the documents are subject to a lawful claim of privilege or confidentiality the person having custody of the documents in accordance with this Part shall, immediately upon becoming aware of such a claim, place the documents in a sealed bag or other receptacle and cause the documents to be delivered to the registrar of the High Court.

(3)	Any person claiming that any seized documents are subject to a lawful right of privilege or confidentiality may make an application to a Judge within 7 days of their seizure, and the Judge may inquire into the matter and -

(a)	if satisfied that there exists a valid claim under law for the documents to be considered to be privileged or confidential – order the documents to be returned unread and in their original form to the person having such a right; or

(b)	if satisfied that no lawful claim can be made that the documents are privileged or confidential - order that the documents be handed to the police or the Director of Public Prosecutions to be dealt with for the purposes of the investigation of the alleged offence to which they relate; or

(c)	make any other order which the judge considers appropriate.

(4)	Notice of any application made under sub-section (3) must be given to the Director of Public Prosecutions immediately after it has been filed with the High Court.

(5)	If no application is made to a Judge under sub-section (3) the Registrar shall return the document to –

(a)	the police officer who delivered under sub-section (2); or

(b)	the Director of Public Prosecutions, if so required by the Director".

13.	The applicant submits that these provisions now preclude the DPP from claiming the letters are privileged because he didn't within 7 days claim privilege. He adds that "these documents are not theirs to claim privilege".

14.	These submissions (re s.103) are totally misconceived and in any event if 4 letters written by the D.P.P. are not "theirs", it is difficult to see who they would belong to. Section 103 deals with documents that are seized by search warrant (in fact the whole section is in the part of the Decree pertaining to search warrants). If in reliance on a search warrant, documents are seized from a party, that party can then claim that some of the documents seized are privileged and then go to a Judge to have them preserved. It is not applicable to correspondence in the possession of the DPP; correspondence which has seemingly set the parameters for the proper conduct of the prosecution.

15.	Letters written to the DPP and by the DPP are certainly "theirs" and it is not for the applicant to demand (as he does in para 6 of his submissions) that "the documents must be provided to the defence.

16.	This Court determines the application on the law and does not accede to impertinent demands of the Defence.

17.	These letters are the personal correspondence between the DPP and Solicitors for the Reserve Bank of Fiji, an entity which is the regulatory body for compliance with the provisions of the Exchange Control Act. The Court must defer to the integrity of the DPP when he claims privilege, and there are no grounds raised by the defence to even suggest that their case is prejudiced by no disclosure.

18.	The application is dismissed.

19.	Finally, the application that "these proceedings and all matters incidental to be stayed till (sic) such time as Prosecution provides the requested documents" is also dismissed as being abusive and frivolous. An application for stay is an application of great moment, based on delay or abuse of process and it will be determined on its merits after full argument be heard. It is not an application for the defence to make blithely as an appendage to a more serious application, seemingly by way of threat or punishment.

P.K. Madigan
Judge

At Suva
1st November, 2013