Disclosure has been on the minds of Dominicans over the last few days since the attorneys representing PM Skerrit and his co-defendants have unjustifiably attempted to ambush the Complainants in the treating matter to disclose information in their possession by a set date. In an exclusive interview with a local media house, the acting DPP also made the news by stating,
“the office of the Director of Public Prosecutions has always acted independently and in the interest of justice. Everything that is done by the DPP is for the furtherance of justice and this was the sole reason for the request of disclosure in the Treating matter….I am simply operating within the confines of the law by making such a request [for disclosure]. I must also add, that in criminal matters, litigation is not done via ambush, you have to disclose, so the parties in any matter have a right to request disclosure.”
The story has been widely circulated on social media but the comments are mainly along partisan political lines. DLP supporters led by SC Astaphan are euphoric in support of the DPP’s treat of call for disclosure, while some supporters of UWP condemn the statement of the DPP and are critical of it, even suggesting that the acting DPP must not be trusted as her independence has been severely compromised.
However, the acting DPP is right, albeit there is much more to the comment of litigation not being done in ambush and the right to request disclosure. The larger story must be told, lest the DPP were to join the attorneys representing the defendants in ambushing Dominicans with half-truths in the appearance of rendering justice.
Disclosure is the practice where the prosecution reveals/discloses to the defendant material on which the case against him or her is based. This is a critical element of natural justice, constitutional and human rights, and fairness within any criminal trial.
This fundamental requirement of justice has not been codified in our jurisdiction and therefore there are still debates in some quarters, which allows some ‘clever’ attorneys to cut corners and pull wool over the eyes of unsuspecting Complainants and the general public. Some social media critics have classified the call as “nonsense because the Constitution only empowers the DPP to take over the case and not to request disclosure.” Of course, this is a very myopic view, as once the DPP takes over a matter, the only way the DPP may be able to make an assessment whether or not to exercise her discretion under Section 72 (6) of the Constitution is to request all evidence, witness statements, and other documents in the possession of the prosecution.
The fact that the full protocol for disclosure is not detailed in the Constitution or codified in Statute does not mean that such protocol does not exist in law. The Constitution contains broad, high-level ideals, parliament passes laws in line with the Constitution and may further delegate authority for the establishment of secondary legislation by way Statutory Rules & Orders (SR&Os). Where the Constitution and legislation are unclear or need to be further interpreted, the responsibility is that of the judicial arm of government to clarify and put the missing piece together. Hence, in terms of the jurisprudence within a jurisdiction, the body of rules goes beyond the Constitution and legislation–primary and secondary and includes, treaties, conventions, and of course case/judge-made law. Everything is not nor can be expressed in a written Constitution, and therefore as the society evolves, it is also necessary to refer to the interpretation of the constitutional provisions by the courts.
In Dominica, the right and procedure for disclosure at our courts have not been codified. The Constitution is largely silent on the subject beyond the stated broad principle for fairness and justice in prosecution. The Magistrate Code of Procedure Act, Chap 4. 20- sections 47 to 53 is also silent of the procedure, which is not uncommon in the Caribbean. The relevant provisions of the Magistrate Code of Procedure outline the procedure for reading of charges, the recording of pleas, the taking of evidence of witness, and taking of notes by the Magistrate, etc.
The procedure in dealing with a matter before the magistrate court dictates that when a person appears before the court, charges are read–unless judicial review is sought. For summary matters, the defendant is required to plead. Where a plea is a guilty one, there is no need for further disclosure. Where a not guilty plea is entered, the court makes preparations and sets a date for the trial and at that stage, an order for disclosure by the magistrate may be made.
The requisite guidance on the matter is obtained through decided cases, of which there are many, which suggest that the request for disclosure by the Attorneys of Skerrit et al ought to be ignored by the Complainants in the treating matter. The request for evidence/disclosure by the defense from the complainants in that matter is highly irregular. Of course, it stands to reason logically, that in order for the DPP to come to a conclusion as to whether she should allow the matter to proceed or to have it nolle pros, she must assess the appropriateness, relevance, and sufficiency of the evidence. Indeed, based on case law it is reasonable to expect that statement of witnesses, evidence, etc. in the possession of the prosecution should be shared with the defense in order to ensure natural justice and to observe the defendant’s constitutional right of a fair trial.
In recent cases, the courts have noted that the historic common law doctrines restricting the liability of the state or its amenability to suit cannot stand in the way of effective protection of fundamental rights guaranteed by the Constitution. It was, however, argued for the Attorney General in Jaundoo v. AG of Guyana-1971that the constitution conferred no greater rights on the subject against the executive than had previously been enjoyed. This reflected the approach to a number of constitutions at the time. It was assumed that the rights specified in the constitutions were already secured to the people and that the object of embodying them in the constitution was to restrain future enactments which might derogate from them.
Based on several articles reviewed, one notes that the recognition that the prosecution’s duty of disclosure is a dimension of the rights guaranteed by Constitution affords greater protection than the common law because the right cannot be derogated from ordinary legislation. As a fundamental constitutional right, it has also become amenable to the extensive enforcement and remedial armoury available pursuant to the provision of the Constitution. Human rights guaranteed in the constitution of the Commonwealth Caribbean is intended to be a major influence on the practical administration of the law. Hence, prosecuting authorities at all levels must be ever mindful of this principle when exercising the important public duty with which they are entrusted by the law. The law and practice relating to prosecution disclosure in a Caribbean jurisdiction was reviewed by the Privy Council in Berry v R (1992) 41 WIR 244, where it was remarked,
“In relation to the disclosure to the defence of material in the possession of the prosecution, the key is fairness to the accused; but the practice varies between different jurisdictions in the common law world.”
The court observed that common law has evolved towards placing an increasing duty of disclosure on the prosecution- see Mills v R  3 All E R 780, H.L.) In State v Scholtz (1997)-1 LRC 67, Dumbutshena Ag. JA in the Supreme Court of Namibia stated,
“…recent trends in England and Wales on non-disclosure has been influenced to a great extent by a number of what I would call indiscretions on the part of some police investigating crimes and some experts who elected to leave out relevant materials or statements they believed favoured the defence in cases they regarded as highly sensitive. As a result, courts were forced to make judgments ignorant of evidence, witness statements, or relevant materials favourable to the accused.”
In support of this view, detailed reference was then made by Dumbutshena Ag. JA to decisions of the English Courts in R v Maguire (1991) LRC (Crim) 227, (1992) QB 936 and R v Ward (1993) 2 All ER 577 among others.
The learned Namibean Justice of Appeal expressed the further view, that:
“… the English approach with regard to disclosure of evidence in the possession of the state has undergone dramatic changes which are primarily attributable to the Attorney General=s Practice Note  1 All ER 734. In my view the courts have gone beyond the Attorney General’s guidelines. These developments were expedited by the nature of the cases the courts were hearing and the ominous consequences brought about by acts of violence and terrorism and the subsequent reaction of the police to those acts and the serious nature of the crimes arising from them. There were attempts by the police and others to hide away pieces of evidence that could be of help to the defence in the preparation of the accused’s case. This resulted in a failure of justice. But what is significant for our purposes is that these developments have taken place in England and Wales without a Bill of Rights and without the benefit of a written Constitution. England has in a very significant way moved away from the law in force on 31 May 1961,”
In 1992, the Privy Council, delivering judgment in Berry references a judgment of the Supreme Court of Canada delivered in 1991 in R v Stinchcombe from which it appears that a much wider view is taken of the prosecution’s duty of disclosure of documents to the defence, namely that (subject to certain discretions as to whether and when disclosure should be made) the prosecution has a legal duty to disclose all relevant information to the defence.
Later in the Berry judgment the Privy Council said: “Having examined the practice in different common law jurisdictions, their Lordships consider that the principles endorsed by the Jamaican Court of Appeal in the cases of Purvis (1968) 13 WIR 507 and in Barrett (1970) 16 WIR 267, particularly with regard to inconsistent previous statements, represent what will normally be an acceptable way of achieving fairness to the accused and they take the opportunity of saying that in a civilized 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.
An appeal on the disclosure issue was allowed by the Supreme Court of Canada in R v Stinchcombe, where there was a new trial because the statements should be produced, was directed. The Supreme Court pronounced that: “In indictable offences [not necessarily summary matters] the Crown had a legal duty to disclose all relevant information to the defence ….” The material to be disclosed included not only that which the Crown had intended to introduce but also that which it had not. All statements obtained by the prosecution from persons who had provided relevant information were to be disclosed to the defence regardless of whether or not they were going to be called as Crown witnesses.
While the obligation to disclose was not an absolute one and was subject to the discretion of crown counsel /the prosecutor to exclude what was clearly irrelevant, to withhold the identity of persons to protect them from harassment or injury and to enforce the privilege relating to informers. The prosecution also retained a discretion in respect of the timing of the disclosure where an early disclosure would impede the completion of an investigation and delayed disclosure would be preferable.
The discretion of Crown counsel was, however, reviewable by the trial judge, such review to be initiated upon application by counsel for the defence. Disclosure of all relevant information was to be the general rule unless the prosecution could bring itself within an exception to the rule. While the prosecution must err on the side of inclusion, it need not produce what is clearly irrelevant. The system will also profit from early disclosure as it will foster the resolution of many charges without trial, through increased numbers of withdrawals and pleas of guilty.
The Court has observed that the obligation to disclose will be triggered by a request by or on behalf of the accused. Such a request may be made at any time after the charge. Provided the request for disclosure has been timely, it should be complied with so as to enable the accused sufficient time before election or plea to consider the information. No distinction should be made between inculpatory and exculpatory evidence. However, in the 1991 Stinchcombe case, the Supreme Court of Canada stated,
“… the law with respect to the duty of the Crown to disclose is not settled ….Production and discovery were foreign to the adversary process of adjudication in its earlier history when the element of surprise was one of the accepted weapons in the arsenal of the adversaries. This applied to both criminal and civil proceedings. Significantly, in civil proceedings, this aspect of the adversary process has long since disappeared, and full discovery of documents and oral examination of parties and even witnesses are familiar features of the practice. This change resulted from the acceptance of the principle that justice was better served when the element of surprise was eliminated from trial and the parties were prepared to address issues on the basis of complete information of the case to be met. Surprisingly, in criminal cases in which the liberty of the subject is usually at stake, this aspect of the adversary system has lingered on.”
However, in the 1993 Privy Council case of Franklyn and Vincent v. R. (1993) 42 WIR 262 PC, approving R. v. Bidwell (1991) 28 J.L.R. 293, the Privy Council, speaking of section 20 of the Jamaican Constitution which is in virtually identical terms in other Caribbean Constitution. In section 20, are the requirements of the Constitution which are designed to ensure that when a person is charged with a criminal offence he is provided with proper protection by the law.” This case confirmed that the requirement that the defence be provided with “adequate time and facilities extends to materials in the possession of the prosecution that are relevant to the issues in the case
The Privy Council observed that while the language of the sub-section does not require a defendant always to be provided with copies of the statements made by the prosecution witnesses, where the provision of a statement of a witness is reasonably necessary for such purposes, it should be provided as being a facility required for the preparation of his defence. The Court noted that the practice at the time of refusing to provide the defence statements of proposed witnesses to the prosecution, as a matter of course is appropriate. Where a request is made for the disclosure of statements in a case that is to be tried summarily, if it is not a case only involving petty offences, the request should be carefully considered. If there are no circumstances making this course undesirable such as where the need to protect the witness, then the preferable course in the best interest of justice is to disclose all statements. The fact that a case is opened by the prosecution does not assist the accused in knowing the case he has to meet, hence the need for disclosure.
The DPP can take over a prosecution at any time after a matter is filed and summons are issued and before a judgment/ decision is made. It is therefore established that once the DPP takes over a matter, all the evidence, statements of witnesses, etc. must be reviewed in order to make a determination. It is via therefore via disclosure of all documents available to the prosecution that the DPP is able to make a proper assessment of whether or not to exercise her discretion under Section 72 (6) of the Constitution. The DPP can take a decision on whether the matter should proceed or be Nolle pros at any stage of the process. This is squarely and properly within the constitutional ambit of the DPP. Of course, as long as the matter is before a magistrate, a request can also be made for disclosure or the court will make such an order for disclosure at this juncture.
Therefore, the Complainants are advised against responding to the letter of Attorney Lawrence on behalf of the defendants to disclose. They should ignore the request/demands of Mr. Lawrence and his team. The case is expected to start on 13th May 2010, let the defendants show up in court to enter their pleas and defend their case. Not only it appears irregular for the attorney for the defence to demand disclosure directly from the Complainants at this early stage, but the manner in which the request is drafted is rude, demanding, out of place, I poor taste, and disrespectful with a view to ambushing the Complainants and our judicial system.