IN THE MAGISTRATES' COURT OF FIJI
AT SUVA

Criminal Case No: 2107/2010

STATE

V

MELVIN ATISH RAM
GANGA PATI PRATAP

Counsel: Ms. J. Prasad for the State 
:Mr. M. Raza for the Accused 
Date of Ruling: 19th of November 2015

RULING

1.	The 1st accused is charged with one of Corrupt Practice contrary to section 376(a) of the Penal Code, 1 count of Corrupt Practice contrary to section 149(a) of the Crimes Decree. In addition he with the 2nd accused is jointly charged with one count of Money Laundering contrary to section 69(3) of the Proceeds of Crime Act. 

2.	On 21st of April 2015 the defence through an email sought from the State the following documents: 

a)	Claims, LPO's, MH Invoices and Acknowledgments for overtime pay issued to staff;

b)	Commissions paid by Carpenters, Copies of all LPO's, claims prepared by Financial Controller, Invoices issued by MH Outlet and the acknowledgment by recipients;

c)	Commission received by Carpenters. Details and copies of all payments made by the Suppliers to Carpenters Hardware Suppliers Ltd;

d)	Audit Report. Copies of internal and external audit reports from January 2008 to February 2010 for Carpenters Groups of Companies.

3.	The State objected to this request for further disclosures and therefore I directed both parties to file written submissions regarding that. 

4.	Both parties have filed their written submissions and also on 23rd of September 2015 made oral submissions before this Court. 

5.	The learned counsel for the State whilst admitting the duty of the State to furnish disclosures submitted that the MH vouchers do not exist and therefore the State is not in a position to submit them. As for other documents the counsel argued that they are not relevant or material for this charge and therefore the State has no obligation to furnish them. 

6.	The learned counsel for the accused submitted that the even though the accused are charged with corrupt practice the complainant was following the same procedure with other companies and the documents sought by the defence would reveal that and therefore would be relevant for their defence. Also even though the State denied his instruction was that MH vouchers were given to his client and therefore these should be also disclosed to them for a fair trial. 

7.	Having considered the respective submissions of both parties I would pronounce my ruling in the following manner. 

8.	The defence is seeking additional disclosures from the State and their position is that these are relevant for their defence and failure to disclose would prejudiced them. Further these would open a new line of defence and also would allow them to test the credibility of the witnesses. 

9.	The State is opposing this application on two grounds. The first ground is that the MH vouchers do not exist and therefore the State is not in a position to disclose them. As for the other documents they are not relevant for this charge and no obligation to disclose. 

10.	When I questioned the counsel for the accused clarified that the audit reports would be only about the Carpenters hardware and not of the whole Carpenters Groups. 

11.	In R v H & R v C [2004] 2 AC 134 wherein the House of Lords stated as follows:

"Fairness ordinarily requires that any material held by the prosecution which weakens its case or strengthens that of the defendant, if not relied on as part of its formal case against the defendant, should be disclosed to the defence. Bitter experience has shown that miscarriages of justice may occur where such material is withheld from disclosure. The golden rule is that full disclosure of such material should be made"

12.	In Dakuidreketi v Fiji Independent Commission Against Corruption [2011] FJHC 359; HAM038.2011 (24 June 2011), his lordship Justice Gounder recapitulated a guideline issued by the Director of Public Prosecution in 1998 and stated as follows:-

". . . . . . . . . These Guidelines exit in addition to the duties of prosecutors under the common law to disclose:

Previous conviction of witness whenever relevant to the case;

Previous convictions of the accused;

Documents intended to be tendered by the prosecution at the trial;

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

Any other exhibit document or statement that the prosecutor should disclose in the interest of fairness"

13.	In Chand v The State [2012] FJSC Petition No. CAV 0014 of 2010, 8 May 2012, the Supreme Court considered the English and the Australian position in relation to the rules of disclosure by the prosecution. The English position was stated to be:

"An incident of a defendant's right to a fair trial is a right to timely disclosure by the prosecution of all material matters which affect the scientific case relied on by the prosecution, that is, whether such matters strengthen or weaken the prosecution case or assist the defence case. This duty exists whether or not a specific request for disclosure of details of scientific evidence is made by the defence. Moreover, this duty is continuous: it applies not only I the pre-trial period but also throughout the trial".

14.	R. v Stinchcombe [1991] 3 S.C.R. 326. As Sopinka J observed in the course of his judgment:

".....this 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. For example, counsel for the Crown has a duty to respect the rules of privilege. In the case of informers, the Crown has a duty to protect their identity. In some cases, serious prejudice or even harm may result to a person who has supplied evidence or information to the investigation. While it is a harsh reality of justice that ultimately any person with relevant evidence must appear to testify, the discretion extends to the timing and manner of disclosure in such circumstances. 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…."

15.	Therefore it would appear that the State has an obligation to disclose all the materials which would strengthen or weaken the prosecution case. This is a continuous duty and applies not only in the pre-trail stage but even throughout the hearing. 

16.	But as noted in R. v Stinchcombe(supra) this obligation on the State is not absolute and subject to some limitations . The State can withhold the documents based on privilege or if the documents are not relevant. 

17.	In this case the state has submitted that they are not in a position to provide the MH vouchers as these were not given to the accused and therefore do not exist as alleged by the defence. In Ali v The State [2005] FJHC Crim App. No. 23 of 2005. 7 October 2005 it was stated: 

"[t]he prosecution has a duty to disclose all relevant material but it cannot disclose what it does not have". 

18.	Therefore I do not think I would give an order which would be futile. But I believe to clear the doubt about these vouchers it would be appropriate to file an affidavit from a suitable person from the complainant.

19.	As for the other disclosures the State insisting they are not relevant for this charge. Even though at this stage it is not clear how these would be relevant I believe for the fairness these documents need to be disclosed to the defence and it may help the defence to test the credibility of the witnesses. 

20.	Therefore the State has to obtain the disclosures mentioned in b,c and d of the paragraph 2 and disclosed to the defence. For the MH vouchers and other documents that do not exist the affidavit from a suitable officer of the complainant has to be filed in this Court.

Shageeth Somaratne
Resident Magistrate