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    CASE NO.: SA 6/94

    IN THE SUPREME COURT OF NAMIBIA

    WINDHOEK, TUESDAY, 6 DECEMBER 1995'

    BEFORE THE HONOURABLE MR. JUSTICE MAHOMED, C.J.THE HONOURABLE MR. JUSTICE DUMBUTSHENA, A.J.A.THE HONOURABLE MR. JUSTICE LEON, A.J.A.

    In the matter between:

    THE STATE APPELLANT

    and

    GERT JOHANNES SCHOLTZ RESPONDENT

    Coram: Mahomed, C.J.; Dumbutshena, A.J.A., et Leon, A.J.A.Heard on: 1994/12/06Delivered on: 1996/02/06

    APPEAL JUDGMENT

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    DUMBUTSHENA. A.J.A.: .This appeal comes to this Court by leaveof the court a quo. That leave was granted on theunderstanding 'that only one ground of appeal was to be argued.That ground is:

    "That the Honourable Judge erred in law to order thatcertain witness statements are not privileged and shouldbe made available to the defence".

    In this appeal the State is the Appellant and the Respondentwas the accused at the criminal trial. During the trial anapplication was made on his behalf for the disclosure, by the?rcsecutor-General to the accused of the witness statements ofthes e witnesses who had not yet testified. Hannah, J, grantedthe order directing the Prosecutor-General to produce thespecified witness statements.

    In passing it is proper to mention that the Respondent has nointerest in the appeal. He was acquitted on one count ofmurder and one count of attempted murder and convicted forassault with intent to do grievous bodily harm. He wassentenced to 18 months imprisonment which was wholly suspendeden apprcpriate conditions. The court a, Q U O ordered him to payto the complainant, Patricia Waters , the sum of one thousandRands (R1000,00).

    This appeal and the judgment thereof have wide implicationsand effects on the administration of justice and more so on

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    the work of the Prosecutor-General's Department. It was forthis reason that after hearing argument this Court made andhanded in a declaratory order. We did not want to delay theconsequences flowing from our judgment.

    This is the order we made:

    "ORDER:A formal order upholding or dismissing the appeal would inthe circumstances of this case be inappropriate and willnot serve or fulfil the object of this litigation which isto provide helpful guidance in future prosecutions inwhich the accused seeks to obtain the contents of policedockets relevant to the prosecution on a particularmatter. The most useful course would be to make an orderin the form of a declarator.It is accordingly declared that:1. In prosecutions before the High Court, an accusedperson (or his legal representative) shall ordinarily

    be entitled to the information contained in thepolice docket relating to the case prepared by theprosecution against him, including copies of thestatements of witnesses, whom the police haveinterviewed in the matter, whether or not theprosecution intends to call any such witness at thetrial.2. The State shall be entitled to withhold from theaccused (or his legal representative), anyinformation contained in any such docket, if itsatisfies the Court on a balance of probabilities,that it has reasonable grounds for believing that thedisclosure of any such information might reasonablyimpede the ends of justice or otherwise be againstthe public interest. (Examples of such claims arewhere the information sought to be withheld woulddisclose the identity of an informer which it isnecessary to protect, or where it would disclosepolice techniques of investigation which it issimilarly necessary to protect, or where suchdisclosure might imperil the safety of a witness orwould otherwise not be in the public or stateinterest.)3. The duty of the State to afford to an accused person(or his legal representative) the right referred toin paragraph 1 shall ordinarily be discharged uponservice of the indictment and before the accused is

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    - 4 -required to plead in the High Court. Provided,however, that the Court shall be entitled to allowthe State to defer the discharge of that duty to alater stage in the trial, if the prosecutionestablishes on a balance of probabilities that theinterests of justice require such deferment in anyparticular case.

    4. Nothing contained in this declaration shall beinterpreted so as to preclude an accused personappearing before a court other than the High Courtfrom contending that the provisions of Paragraphs l,2 and 3 hereof should mutatis mutandis also be ofapplication to the proceedings before such otherCourt."

    We indicated at the end of reading the Order that our reasonswoul d follow later. These are our reasons:

    The trial in this case coitunenced in February 1994 to 30 August1994. On 23 August the Defence counsel in S v Nassar,1995(1) SA 212 (Nm), applied for an order seeking disclosureby the Prosecutor-General of witness statements in hispossession. The relief sought was as follows:

    "1. That the State be ordered to provide the Accused withthe following:1.1 Copies of all witnesses' statements in thepossession of the State relating to thecharges against the Accused;1.2 Copies of all relevant documents in thepossession of the State relating to thecharges against the Accused;1.3 Copies of all video recordings or taperecordings which are in the possession ofthe State and/or the Police and relating tothe charges against the Accused;

    2. Granting the Applicant further and/or alternative orrelated relief."

    I make reference to the prayer and the order of the Court aquo in S v Nassar, supra, because the case covered wider

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    ground than the instant case and Hannah, J, was part of thetwo judge bench in that case. In Nassar, supra, the followingorder was made:

    "1. The State provides the accused or his legalrepresentatives within 14 days of this order with acopy of all witness statements in its possessionrelating to the charges contained in the indictment;2. The State provides the accused and his legal

    representatives with the opportunity to view thescreening of all video tape recordings and to listento all audio tape recordings in its possession or inthe possession of the police relating to the chargescontained in the indictment;3. The State provides the accused with a copy of thetranscript of such video and audio tape recordingswithin 14 days of compliance with paragraph 2;4. The opportunity to view and listen to such video andaudio tape recordings shall be at a time convenientto both the State and the accused's legalrepresentative and shall be provided within 7 days ofthis order unless otherwise agreed."

    Whe n the trial in the instant case resumed on 3 0 August theRespondent's counsel similarly applied for an order for thedisclosure by the Prosecutor-General of statements ofprosecution witnesses. The application was vigorously opposedby the State, as was that in the Nassar case. However, theCourt a quo granted an order restricted to disclosure ofstatements of state witnesses who had not yet testified. Theappeal against the decision in the Nassar case, supra, has notyet been heard for reasons which have nothing to do with thepresent appeal. Judgment in the Nassar case, suora, was onlyhanded down on 21 September 1994. By that time the judgmentin the instant case had already been delivered. What standsto be decided in this appeal is whether disclosure or

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    - 6 -non-disclosure of prosecution witness statements to thedefence falls 'within the ambit of Article 12(1)(a) of theNamibian Constitution which provides:

    "12.(1}(a) In the determination of their civil rights andobligations or any criminal charges against them, all persons shallbe entitled to a fair and public hearing by an independent,impartial and competent Court or Tribunal established by law..."

    If disclosure of statements of prosecution witnesses fallswithin the ambit of Article 12 of the Constitution, then suchdisclosure constitutes one of the important elements of a fairtrial. Non-disclosure of relevant material might thereforebe vulnerable to attack on this ground.

    It is therefore of no consequence that the Criminal ProcedureAct does not have a provision for a general right ofdisclosure of materials in a police docket as submitted by MsWinson, for the Appellant. The right resides in Articles 7and 12 of the Constitution.

    The provisions in the Criminal Procedure Act were common lawprinciples meant to introduce some measure of fairness in theconduct of criminal cases. A summary of some of thoseprinciples or rules will suffice. Section 39(2) of the Actrequires that the arresting officer should inform the accusedof the reason for arrest. If a warrant was used to effectarrest, a copy of the warrant must be handed to him upondemand. In terms of section 80 the accused may examine thecharge at any time of the relevant proceedings. In section

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    - 7 -8 4 ( 1 ) p a r t i c u l a r s of the of fence mus t be s e t for th in thecha rg e i nc l ud i r t g whe re t he o f f ence was commi tt ed and a g a i n s twhom i t was com m it ted , i f any , and th e p ro p er ty , i f a ny , inr e s p e c t o f wh i ch t h e o f f ence i s a l l e ge d t o have beenc o m m i t te d . B ut a l l t h a t i s r e q u i r e d i n t h i s s e c t i o n i s t h a tt he i n fo rma t i on i s r ea sonab l y su f f i c i en t t o i n fo rm t he accusedof t h e na t u r e o f t he cha rge . I f t he accused be l i eve s t h a t t hei n f o r m a t i o n d o es n o t c o n t a i n s u f f i c i e n t p a r t i c u l a r s o f a nym a t t e r a l l e g e d i n t h e c h a r g e , h e c an o b j e c t a n d , i n p r o p e rc i r c um s t a nc es , move t o quash t he cha r ge ( s . 106 ) . The r e a r eo t h e r s e c t i o n s mean t t o make i t po s s i b l e f o r an accuse d t oknow what ca se he i s be ing asked to meet in ord er t o p re p ar eh i s d e f e n c e .

    U n d er t h e t h e n p r e v a i l i n g c o n d i t i o n s s e c t i o n 144 o f t h e A c tcould be cons idered an improvement on the o ther methods ofi n f o r m i n g a n a c c u s e d p e r s o n o f h i s r i g h t s . S u b - s e c t i o n (4 )r e q u i r e s t h a t an i nd i c t m en t be s e rved on an accused t en d aysbe fo re he s t a nd s t r i a l i n t he High Cour t un l e s s he ag r ee s t os h o r t e r n o t i c e .

    I f th e accu sed i s a r r a i g n ed in the High Cour t in a summaryt r i a l , s u b - s e c t i o n (3) p r o v i d e s :

    " ( a ) . . . t h e i n d i c t m e n t s h a l l be a c c om p a n i ed b y a su mm ary o f t h es u b s t a n t i a l f a c t s of t h e c a s e t h a t , i n t h e o p i n i o n o f t h eP r o s e c u t o r - G e n e r a l , a r e n e c e s s a r y t o i nf or m t h e a c c u s e d oft h e a l l e g a t i o n s a g a i n s t h im a nd t h a t w i l l no t b e p r e j u d i c i a lt o t h e a d m i n i s t r a t i o n o f j u s t i c e a n d t h e s e c u r i t y o f t h eS t a t e , a s w e l l a s a l i s t o f t h e n am e s a nd a d d r e s s e s o f t h ew i t n e s s e s t h e P r o s e c u t o r - G e n e r a l i n t e n d s c a l l i n g a t t h esu mm ary t r i a l o n b e h a l f o f th e S t a t e :

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    - 8 -Prov ided tha t -( i ) ' t h i s p r o v i s i o n s h a l l n o t b e s o c o n s t r u e d t h a t th e S t a t es h a l l be bound by the co nt en ts o f th e summary;( i i ) th e Prose cuto r -G ene ra l may wi th ho ld th e name andaddres s o f a w i tn es s i f he i s o f th e op in io n tha t suchwi t nes s may be tampered wi th or be in t im id ate d or th a ti t w ou ld b e i n t h e i n t e r e s t o f t h e s e c u r i t y o f t h eSt a t e th a t the name and add res s o f such w i tn es s bew i t h h e l d ;( i i i ) the om is s ion o f the name or add res s o f an w i tn es s froms u ch l i s t s h a l l i n n o way e f f e c t t h e v a l i d i t y o f t h et r i a l .

    (b) Where the ev i de nc e for the S t a t e a t the t r i a l o f the accu sedd i f f e r s in a m ater ia l r e spe c t from the summary re f e rr ed to inparagraph (a ) , the t r i a l co ur t may , a t the requ es t o f theaccused and i f i t appears to the co ur t th at th e acc use d migh tb e p r e j u d i c e d i n h i s d e f e n c e b y r e a s o n o f s u ch d i f f e r e n c e ,adjo urn the t r i a l f or such pe r iod as to the cour t may deema d e q u a t e . "

    On be ha l f o f the A pp el la nt , Ms Vfinson conte nde d both in herw r i t t e n a rg um e nt and i n o r a l s u b m i s s i o n s b e f o r e u s t h a ts e c t i o n 144 b e a r s a l l th e e l e m e n t s o f a f a i r t r i a l . M s.W i n so n may b e r i g h t b u t a l l t h a t t h e a c c u s e d r e c e i v e s i s asummary o f s u b s ta n t i a l f a c t s meant to in form h im of th ea l l e g a t i o n s made a g a i n s t h im . He i s g i v e n a l i s t o f w i t n e s s e st h e P r o s e c u t o r - G e n e r a l i n t e n d s t o c a l l a t h i s t r i a l w i t h o u ta summary o f t h e i r e v i d e n c e . The c o n t e n t s o f t h e s u b s t a n t i a lf a c t s d o n o t b i n d t h e S t a t e d u r i n g t h e t r i a l . Names a ndad dr ess es o f w i tn es se s may be wi th he ld for f ea r th at the y mayb e ta mp er ed w i t h o r i n t i m i d a t e d o r f o r r e a s o n s of t h e s e c u r i t yo f t h e S t a t e . And more i m p o r t a n t l y w h at i s r e v e a l e d t o h imi s s u b j e c t t o t h e s u b j e c t i v e ju dg m en t o f t h e P r o s e c u t o r -G e n e r a l . I t d o e s n o t g u a r a n t e e t h e a c c u s e d a f a i r t r i a l .F a i r n e s s d e p e n ds on t h e p e r s o n a l whim o f t h e P r o s e c u t o r -G e n er a l o r h i s / h e r r e p r e s e n t a t i v e .

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    - 9 -It is generally agreed that a preparatory examination, in asfar as a fair* trial is concerned, is nearer to what isdesirable. Ms . Winson argued with conviction that Chapter 20which provides for preparatory examinations to be held at thediscretion of the Prosecutor-General guaranteed a fair trial.There is some substance in this submission. The accused isprovided with the full case of the prosecution because at theend of the preparatory examination he gets a record of theproc eedings . He, if he so wishes, can cross-examineprosecution witnesses during the preparatory examinationproceedings. But not all cases require preparatoryexaminations. And what is more, the systems has fallen intodisuse. Ms Vfinson submitted further that the preparatoryexamination was useful only to the accused as he was informedin detail of the State's case without disclosing his, and thisgave him or her an unfair advantage. This may be so, but itis the State that accuses and seeks to prove the guilt of theaccused. However, preparatory examinations brought opennessto trials and, to a significant extent, did away with trialby ambush.

    SOUTH AFRICA

    In South Africa the question of non-disclosure of witnessstatements was dealt with in R v Stevn, 1954 (1) SA 324 (AD)which was based on English law, as it was on 31st May 1961.That case decided that a witness statement was a privilegeddocument and there was no entitlement to its disclosure to an

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    - 10 -a c c u s e d . I w i l l r e f e r b r i e f l y t o t h e l o n g r e i g n R v S t e y n fsup ra P had on the Courts in South Afr ica and Namibia and thel o n g l i s t of c a s e s t h a t f o ll o w e d i t . B u t S t e y n . s u p r a , an dth os e o t he r cas es have of re ce n t t im es been ov er ta ke n by newd e v e l o p m e n t s .

    I t was con t ended on beh a l f o f t he A pp e l l a n t t h a t t h e r e cou l dn o t b e d i s c l o s u r e of s t a t e w i t n e s s s t a t e m e n t s t o t h e d e f e n c eb e c a u s e of t h e common law p r i v i l e g e a t t a c h i n g t o w i t n e s ss ta tem en ts s in ce 1954 and th a t th e Co ur t s of our co un t ry haver e c o g n i s e d t h a t :

    "When s t a t e m e n t s a r e p r o c u r e d f ro m w i t n e s s e s f o r t h e p u r p o s e t h a tw h a t t h e y s a y s h a l l b e g i v e n i n e v i d e n c e i n a l a w s u i t t h a t i sc o n t e m p l a t e d , t h e s e s t a t e m e n t s a r e p r o t e c t e d a g a i n s t d i s c l o s u r eu n t i l a t l e a s t t h e c o n c l u s i o n o f t h e p r o c e e d i n g s w hic h w o uld i n c l u d ea ny a p p e a l o r s i m i l a r s t e p a f t e r t h e d e c i s i o n i n t h e c o u r t o f f i r s ti n s t a n c e " .Per Greenberg, J.A., in R v Stevn. (supra). at 335 A.

    In ray view the old rule cannot still survive in the face ofArticle 12(1)(a). Its survival in my view would militateagainst the purpose for which the Article was enacted, thatis, to enable the Courts to determine the civil rights of thecitizens and criminal cases fairly and under conditions ofequality. The right to a fair trial can no longer mean thatit is "an intelligible principle that as you have no right tosee your adversary's brief, you have no right to see thatwhich comes into existence merely as the materials for theb ri e f see Anderson v Bank of British Columbia, L.R. 2 Ch.D644 at 656 and R v Steyn. (sjipxa) , at 332A - B, S V Yengeni& Ot he rs . (1) 1990 (1) Sa 639 at 664A - F, S v Mavela.

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    - 11 -1 9 9 0 ( 1 ) SACR ( A ) .

    A l t h o u g h S t e v n . s u p r a , w as c o n s i s t e n t l y f o ll o w e d i n manyd ec i s i o n s such a s , among o t he r s , a s Ex p a r t e : Re: M i n i s t e r vanJ u s t i s i e : In Re: S v Wanner , 1965 (4) Sa 504 a t 514C, 515A;S v A lex an de r and O th e rs . (1 ) , 1965(2) SA 796 (A) a t 8 1 1 ; v B and A n ot he r. 1980(2) SA 946(A) a t 95 2; S v Ye naen i andO th e rs . (1) 1990(1) Sa 639 a t 643 A - F; S v Mav ela. 1990 (1)SACR 582 (A) , th e se d e c is io n s and many o th e rs have beenover taken by the enac tment , in bo th Namibia and South Afr ica ,of C o n s t i t u t i o n s e n t r e n c h in g j u s t i c i a b l e B i l l s of R i g h t s . Thep r i n c i p l e s of p rocedure f e r ve n t l y fo ll owed be f o r e now need t obe b rough t i n t o l i n e wi t h p ro v i s i o ns of B i l l s of R i gh t s l ay i ngdown te n e t s of p roce dure as en t renche d r i g h t s . These a r e nowt h e f o u n d a t i o n s u pon w h ic h f a i r t r i a l s a r e b u i l t .

    U n d er t h e s e e n t r e n c h e d r i g h t s w ha t G r e e n b e r g , J . A . , s a i d i nS t e v n . s u p r a , a t 335A t h a t :

    " . . . w h e n s t a t e m e n t s a r e p r o c u r e d fro m w i t n e s s e s f o r t h e p u r p o s e t h a tw h a t t h e y s a y s h a l l b e g i v e n i n e v i d e n c e i n a l a w s u i t t h a t i sc o n t e m p l a t e d , t h e s e s t a t e m e n t s a r e p r o t e c t e d a g a i n s t d i s c l o s u r eu n t i l a t l e a s t t h e c o n c l u s i o n o f t h e p r o c e e d i n g s / w h i ch w o u ldi n c l u d e a ny a p p e a l o r s i m i l a r s t e p a f t e r t h e d e c i s i o n i n a c o u r t o ff i r s t i n s t a n c e " ,

    no l o n g e r f i t s i n w i th n o t i o n s of open j u s t i c e w hic h r e q u i r e st r a n s p a r e n c y a n d a c c o u n t a b i l i t y .

    The r u l e s of p ro c e d u r e r e l a t i n g t o f a i r t r i a l s i n S o uth A f r i c aand Namibia were the same, that i s before the new

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    - 12 -C o n s t i t u t i o n s w e re e n a c t e d . The sam e a u t h o r i t i e s on o n o -d i s c l o s u r e w e re f o l lo w e d i n th e tw o c o u n t r i e s .

    S o u th A f r i c a h a s a new C o n s t i t u t i o n w i t h a j u s t i c i a b l e B i l lo f R i g h t s . C omp ar is on b e tw e e n t h e r e l e v a n t p r o v i s i o n s o f t h eS . A . C o n s t i t u t i o n and t h e N a m ib ia n C o n s t i t u t i o n l e a v e s o n ew i t h i m p r e s s i o n . S e c t i o n 23 o f t h e S o u th A f r i c a n C o n s t i t u t i o np r o v i d e s t h a t : -

    " Ev er y p e r s o n s h a l l h a v e t h e r i g h t o f a c c e s s t o a l l i n f o r m a t i o n h e l db y t h e S t a t e o r an y o f i t s o r g a n s a t a n y l e v e l of G o v e rn m e n t i n s of a r a s s u ch i n f o r m a t i o n i s r e q u i r e d f o r t h e e x e r c i s e o r p r o t e c t i o no f an y o f h i s o r h e r r i g h t s "

    N a m ib ia d o e s n o t h a ve a s i m i l a r s e c t i o n .

    I n S h a b a l a l a a nd F i v e O t h er s v T he A t t o r n e y - G e n e r a l o f t h eTra nsvaa l and The Comm issioner o f Sou th Af r ica n P o l i c e : Casen o . : C C T / 2 3/ 94 , th e C o n s t i t u t i o n a l C o ur t c o n s i d e r e d w h e th e rs e c t i o n 23 o f th e C o n s t i t u t i o n o f S o u t h A f r i c a i s o fa p p l i c a t i o n when an a c c u s e d s e e k s t h e d i s c l o s u r e o f c o n t e n t so f a p o l i c e d o c k e t f o r u s e i n h i s d e f e n c e . A t p a g e 2 2 ,pa ra gr ap h 34 of the judgm ent , Mahomed, D. P . , who w ro te th ejudgment fo r the Court remarked as f o l l o w s :

    "T he a p p l i c a t i o n s f o r t h e p r o d u c t i o n o f d o c u m e n ts i n t h e p r e s e n tc a s e w as m ade d u r i n g t h e c o u r s e of a c r i m i n a l p r o s e c u t i o n o f t h ea c c u s e d . I n t h a t c o n t e x t , n o t o n l y i s s e c t i o n 2 5 ( 3 ) o f t h eC o n s t i t u t i o n of d i r e c t a p p l i c a t i o n i n c o n s i d e r i n g t h e m e r i t s o f t h a ta p p l i c a t i o n , b u t i t i s d i f f i c u l t t o s e e how s e c t i o n 23 c a n t a k e t h em a t t e r a ny f u r t h e r . I f th e a c c u s e d a r e e n t i t l e d t o t h e d o c u m en t ss o u g h t i n te r m s o f s e c t i o n 2 5 ( 3 ) , n o t h i n g i n s e c t i o n 23 c a n o p e r a t et o d e n y t h a t r i g h t a nd c o n v e r s e l y , i f t h e a c c u s e d c a n n o tl e g i t i m a t e l y c o n te n d t h a t t he y a r e e n t i t l e d t o s uc h d o c u m e n t a ti o ni n t e r r a s o f s e c t i o n 2 5 ( 3 ) i t i s d i f f i c u l t t o u n d e r s t a n d how t h e yc o u l d , i n s u c h c i r c u m s t a n c e s , s u c c e e d i n a n a p p l i c a t i o n b a s e d o n

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    - 13 -section 23. The real enquiry therefore is whether or not theaccused were entitled to succeed in their application on the basisof a right to a fair trial asserted in terms of section 25(3)."

    But section 25(3) of the South African Constitution whichreads:

    "Every accused person shall have the right to a fair trial whichshall include..."

    is similar to Article 12 of the Namibian Constitution. Beforethe matter was finally settled in South Africa by the judgmentof the Constitutional Court in Shabalala's case, a number ofjudges of Provincial Divisions of the Supreme Court deliveredjudgments relative to both section 23 and section 25(3). Someof these judgments had varying degrees of conflict but theywere the first steps towards the interpretation of section 23and 25(3).

    In S v Fani and Others, 1994(1) SACR 6356(E) at 641 I - jJones, J. Held that the common law of privilege could existside by side with rights entrenched in section 23 and 25 ofthe South African interim Constitution. In the same breathat 639e - 640c he went on to state that those sections gavethe accused greater rights of information than hithertoenjoyed and expressed the view on the information which shouldbe disclosed to an accused before he or she was called on toplead.

    Zietsman, J.P., in S v James. 1994(2) SACR 141 (E) refused toorder the State to hand over either copies or summaries of

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    - 14 -witness statements. He expressed doubts about theapplicability df section 23 to criminal trials.

    I agree with Mr. Navsa, for the Respondent, that theConstitution of Namibia and in particular Chapter 3 reflectsNamibia's commitment to preserving and protecting fundamentalrights and freedoms. Article 12, on fair trial, entrenchesthe right to a fair trial and public hearing when civil rightsand obligations or any criminal charges against the people arebeing determined. The words in which Article 12 is couchedshow more that anything else Namibia's commitment to justice.That commitment is not less than that of other constitutionaldemocracies. Mr. Navsa urged the Court to adopt theprinciples on fair trials expressed in R v Stinchcombe (1992)LRC (Crim) 68. I shall refer to this case below.

    Ms. Winson, argued in support of keeping witness privilegebecause since 1977 it has been preserved by section 206 of theCriminal Procedure Act, 1977 (Act 51 of 1977) which provides:

    "206. The law in rases not provided for. The law as to thecompetency, compellability or privilege of witnesses which was inforce in respect of criminal proceedings on the thirteenth day ofMay, 1961, shall apply in any case not expressly provided for bythis Act or any other law."

    That may be s o . What we are co n si d er in g i s the e f fe c t of A rt .12 o f t h e C o n s t i t u t i o n on t h o s e p r i n c i p l e s .

    " Th i s means th a t i t wou ld no t be ne ce s sa ry fo r t he co u r t s t o c on ce rnt h e m s e l v e s w i t h t h e i s s u e o f w h e t h e r a n a c c u s e d h a s b e e n p r e j u d i c e d

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    - 15 -in the s en se th a t he would probab ly no t have been co nv ic t e d bu t fo rt h e i r r e g u l a r i t y . " ( S ee t h e E n g l i s h c a s e c i t e d a b o v e .)" T h i s i s e s p e c i a l l y s o i n t h e l i g h t of t h e f a c t t h a t t h e B i l l o fR i g h t s e x p r e s s l y e n a b l e s i n d i v i d u a l s t o a p p l y t o t h e c o u r t s f o ra p p r o p r i a t e r e l i e f i n t h e c a s e o f a ny i n f r i n g e m e n t of any o f t h ee n t r e n c h e d r i g h t s c o n t a i n e d i n t h e b i l l . " S ee R i g h t s an dC o n s t i t u t i o n a l i s m : Th e New S o u th A f r i c a n L e o a l O r d e r , s u o r a . a t4 1 3 , s e e a l s o A r t . 2 5 ( 2 ) o f N a m ib ia n C o n s t i t u t i o n .

    T he b u r d en o f A p p e l l a n t ' s s u b m i s s i o n s i s t h a t t h e n o t i o n o fa f a i r t r i a l i s n o t a new o n e c r e a t e d by A r t . 1 2 o f t h eC o n s t i t u t i o n . I t i s an e x t e n s i o n o f t h e la w a s i t e x i s t e db e fo r e ind ep en de nc e . That may be s o . What, however , hashappened i s th at t h at law has undergone some me tamorp hosis ort r a n s f o r m a t i o n a nd som e o f t h e p r i n c i p l e s o f c r i m i n a lp r o c e d u r e i n t h e C r i mi n a l Pr o c ed u r e A c t a r e now r i g h t se n t r e n c h e d i n a j u s t i f i a b l e B i l l o f R i g h t s . T hat i s , i n myv i e w , t h e e s s e n c e o f t h e i r i n c l u s i o n i n A r t . 12 o f t h eC o n s t i t u t i o n . Any p e r s o n w ho se r i g h t s h a v e b e en i n f r i n g e d o rth re at en ed can now approach a competent Court and ask f o r th ee n f o r c e me n t o f h i s r i g h t t o a f a i r t r i a l . S e A r t . 2 5 ( 2 ) w h i c hr e a d s :

    " A g g r i e v e d p e r s o n s who c l a i m t h a t a f u n d a m e n t a l r i g h t o r f r e e d o mg u a r a n t e e d by t h i s C o n s t i t u t i o n h a s b ee n i n f r i n g e d o r t h r e a t e n e ds h a l l b e e n t i t l e d t o a p p r o a c h a c o m p e t e n t C o u r t t o e n f o r c e o rp ro t e c t such a r i g h t o r f r eedom , and may app roa ch the Ombudsman top r o v i d e th em w i t h su c h l e g a l a s s i s t a n c e o r a d v i c e a s t h e y r e q u i r e ,a nd t h e O mbudsm an s h a l l h a v e t h e d i s c r e t i o n i n r e s p o n s e t h e r e t o t op r o v i d e s u c h l e g a l o r o t h e r a s s i s t a n c e a s h e o r s h e may c o n s i d e re x p e d i e n t . "

    T h e s e e n t r e n c h e d t e n e t s of a f a i r t r i a l s t r e n g t h e n i n as i g n i f i c a n t way t h e d ue p r o c e s s p r o c e e d i n g s . The f u n d a me n t a lr i g h t s o r f re e do ms g u a r a n t e e d by t h e C o n s t i t u t i o n e n s u r e t h a tr ig h t s and f reedoms are not ign ore d . The Court s are the re to

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    - 16 -

    enforce them.

    Generally Art. 7 of the Constitution lays down broadly the dueproc ess requirement. It provides:

    "No person shall be deprived of personal liberty exceptaccording to procedures established by law".

    That requirement is followed by provisions of Art 12 which laydown specifics albeit not all of them, which in the mainguarantee a fair trial and the protection of personal liberty.Art. 12 reads as follows:

    "Fair Trial(1) (a) In the determination of their civil rightsand obligations or any criminal chargesagainst them, all persons shall be entitledto a fair and public hearing by anindependent, impartial and competent Courtor Tribunal established by law: providedthat such Court or Tribunal may exclude thepress and/or the public from all or anypart of the trial for reasons of morals,the public order or national security, asis necessary in a democratic society.

    (b) A trial referred to in Sub-Article (a)hereof shall take place within a reasonabletime, failing which the accused shall bereleased.

    (c) Judgments in criminal cases shall be givenin public, except where the interest ofjuvenile persons or morals otherwiserequire.(d) All persons charged with an offence shallbe presumed innocent until proven guiltyaccording to law, after having had theopportunity of calling witnesses andcross-examining those called against them.(e) All persons shall be afforded adequate timeand facilities for the preparation andpresentation of their defence, before thecommencement of and during their trial, andshall be entitled to be defended by a legal

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    - 17 -p r a c t i t i o n e r or t h e i r c h o i c e .

    ( f ) No p e r s o n s s h a l l b e c o m p e l l e d t o g i v e t e s t i m o n y a g a i n s tthemse lves or th e i r spo use s , who sh a l l inc lude pa r tn ers ina ma rriage by customary la w , and no Court s h a l l adm it i ne v i d e n c e a g a i n s t s u c h p e r s o n s t e s ti m o n y w hi ch h a s b e e no b t a i n e d from s uc h p e r s o n s i n v i o l a t i o n of A r t i c l e 8 ( 2 ) ( b )hereof.

    ( 2 ) No p e r s o n s s h a l l b e l i a b l e t o b e t r i e d , c o n v i c t e d o r p u n i s h e daga in for any cr im ina l o f f en ce for which they have a l r ea dy beenc o n v i c t e d o r a c q u i t t e d a c c o r d i n g t o l a w : p r o v id e d t h a t n o t h i n gi n t h i s S u b - A r t i c l e s h a l l b e c o n s t r u e d a s c h a n g i n g t h ep r o v i s i o n s o f t h e common l aw d e f e n c e s o f " p r e v io u s a c q u i t t a l 'and " p r ev io u s c o n v i c t i o n ' .( 3 ) No p e r s o n s s h a l l b e t r i e d o r c o n v i c t e d fo r an y c r i m i n a l o f f e n c eor en account o f any ac t or om is s io n which d id no t co n s t i t u t e acr im ina l of f en ce a t the t ime when i t was committed; nor s h a l l ap e n a l t y b e im p o s ed e x c e e d i n g t h a t w h ic h w as a p p l i c a b l e a t t h et ime when the of fence was committed."

    T he r i g h t s a n d f re ed o m s e n s h r i n e d i n t h e C o n s t i t u t i o n a r efundamen ta l t o t he w e l l be i ng and ex i s t en ce o f Nami b ia . A r t i c l e5 c a l l s f o r t h e i r p r o t e c t i o n . T hey a r e t o "be r e s p e c t e d by t h eE x e c u t i v e , L e g i s l a t u r e an d J u d i c i a r y an d a l l o r g an s o f t h eGove rnmen t and i t s agenc i e s and , whe re app l i cab l e t o t hem, bya l l n a t u r a l an d l e g a l p e r s o n s i n N a m i bi a, a nd s h a l l b een fo r cea b l e by t he Cour t s i n t he manner he r e i n a f t e r p r e s c r i b ed " .A r t i c l e 10 (1 ) i s f undamen ta l and ce n t r a l t o t he new p e r ce p t i o n s .

    C o u r t s of la w h a ve t o i n t e r p r e t a nd e n f o r c e t h e p r o t e c t i o n o ff u n d a m e n t a l r i g h t s an d f r ee d o m s . A r t . 1 0(1 ) p r o v i d e s : " A l lp e r s o n s s h a l l b e e q u a l b e f o r e l a w . " A p a r t from t h i s e q u a l i t ype rva des t he p o l i t i c a l , so c i a l and economic l i f e of t he Repub l i co f Nami b i a . A r ea d i n g o f t he C o n s t i t u t i o n l eav es one i n nodou b t a s t o what i s i n t e nd ed t o be ach i ev ed in o rd e r f o r t h ep e o p l e of N am ib ia t o l i v e a f u l l l i f e b a s e d on e q u a l i t y andl i b e r t y .

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    - 18 -

    It is in this light that Art. 12 should be looked at andinterpreted in a broad and purposeful way. And the Courtsmust ask whether the retention of privileges of witnessstatements accords with the exercise of the rights in theConstitution. If the Constitutional purpose or intention isequality for all, one must ask whether non-disclosure accordswith that purpose or intention? I think not. To achieveequality between the prosecution and the defence is what the |

    i

    Constitution demands when it says "All persons shall be equalbefore the law". That is why in my view Art. 12 and the 'tenets of a fair trial therein cannot be given aninterpretation that supports R v Stevn, supra, and theauthorities that followed it. But those authorities cannot beignored because they form the historical foundation upon whichthe procedural rights now enshrined in Art. 12 were built. Itis however the Constitution which is the Supreme Law ofNamibia.

    It would be a sad waste of time were I to venture into theinterpretation of the fundamental rights and freedoms in theNamibian Constitution, sufficient has been said in reportedcases both in this jurisdiction and other jurisdictions. Irefer to S v Acheson, 1991(2) SA 805 (NmHC) ; Ex ParteAttorney-General Namibia: In re Corporal Punishment bv Organsof State, 1991(3) SA 76 (NmSC); Minister of Defence. Namibiav Mwandinghi. 1992(2) SA 355 (NmSC); Minister of Home Affairs(Bermuda) and Another v Fischer and Another, 1979(3) All ER 21(PC) ; Zuma & Two Others v S, 1995(1) SACR 568 (CO . 1995(2)SA 642 (CO . I would like to extract from that judgment what

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    was said by Kentridge, A.J., at 651F - 652A because it refersto section 25(3) of the South African Constitution which dealswith a fair trial and because that section is in many wayssimilar to Art. 12 of the Namibian Constitution. The learnedActing Judg e remarked:

    "[15] In R v Big M Drug Mart Ltd (1985) 18 DLR (4th) 321at 395-6 (18 CCC (3d) 38 5) , Dickson J (later Chief Justiceof Canada) said, with reference to the Canadian Charter ofRights -The meaning of a right of freedom guaranteed by theCharter was to be ascertained by an analysis of thepurpose of such a guarantee; it was to beunderstood, in other words, in the light of theinterests it was meant to protect. In my view thisanalysis is to be undertaken, and the purpose of theright of freedom in question is to be sought byreference to the character and larger objects of theCharter itself, to the language chosen to articulatethe specific right or freedom, to the historicalorigins of the concept enshrined, and whereapplicable, to the meaning and purpose of the otherspecific rights and freedoms with which it isassociated within the text of the Charter. Theinterpretation should be ... a generous rather thanlegalistic one, aimed at fulfilling the purpose of aguarantee and the securing for individuals the fullbenefit of the Charter's protection.'

    Both Lord Wilberforce and Dickson J emphasised that regardmust be paid to the legal history, traditions and usagesof the country concerned, if the purposes of itsconstitution are to be fully understood. This must beright. I may nonetheless be permitted to refer to what Isaid in another court of another constitution albeit in adissenting judgment -

    'Constitutional rights conferred without expresslimitation should not be cut down by reading implicitrestrictions into them, so as to bring them into linewith the common law.'Attorney-General v Moagi. 1982(2) Botswana LR 124, 184.That caveat is of particular importance in interpretingsection 25(3) of the constitution. The right to a fairtrial conferred by that provision is broader than the listof specific rights set out in paragraphs (a) to (j) of thesub-section. It embraces a concept of substantivefairness which is not' to be equated with what mig ht havepassed muster in our criminal courts before theConstitution came into force."

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    - 20 -I agree with what the learned Acting Judge said because it isrelevant to the interpretation of Art. 12 and other provisionsin the Namibian Bill of Rights.

    ENGLAND

    It is important to consider the changes in procedural rules inEngland, a country without the benefit of a writtenconstitution and a justiciable Bill of Rights.

    In England the law of disclosure of witness statements andother relevant materials has in recent years appreciablydeveloped. To cut a long story short in R v Bryant andDickson, 1946 31 Cr v App R.146 a statement taken from aperson known to the prosecution to contain material evidencefavourable to the accused and which the prosecution was notgoing to use because it had no intention to call him as awitness could be handed to the defence. But as Lord GoddardL.C.J, said at p. 15, there was no duty to supply a copy ofthe statements to the defence. He asked: "Is there a duty insuch circumstances on the prosecution to supply a copy of thestatement which they have taken to the defence? In theopinion of the Court there is no such duty, nor has there everbeen."

    However, that attitude was not maintained for long. Thecourts changed their stance. It was decided in later casesthat where the prosecution intended to call a witness who hadgiven them material evidence and they have in their possession

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    a statement made by him which was materially inconsistent withhis evidence the prosecution should inform the defence of thatfact and hand a copy of the statement to the defence. inDallison v Caffery. (1964) 2 ALL ER 610 at 618 Lord DenningM.R. went a little further and stated:

    "The duty of a prosecution counsel or solicitor, as I havealways understood it, is this: if he knows of a crediblewitness who can speak to material facts which tend to showthe prisoner to be innocent, he must either call thatwitness himself or make his statement available to thedefence".

    It should be remembered the courts were at no time consideringthe existence of a general duty to disclose. They wereconcerned with what they perceived to be fair to the defenceand to justice. It must also be noted that it was not until1989 that the Court of Appeal in R v Lessen (1989) 90 Cr App R107 at 114 expressed a clear preference for the aboveapproach. Subject to the requirements of any public interestimmunity, it was held that the prosecution should haveprovided the Appellant with all statements or other documentsrecording relevant interviews with the Appellant. The courtwas of the view that it made no difference whether thedocument took the form of a witness statement, or notes of aninterview, or a police officer's report.

    In this regard recent trends in England and Wales onnon-disclosure or disclosure have been influenced to a greatextent by a number of what I would call indiscretions on thepart of some police investigating crimes and some experts who

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    elected to leave out' relevant materials or statements theybelieved favoured the defence in cases they regarded ashighly sensitive. As a result courts were forced to makejudgments ignorant of evidence, witness statements orrelevant materials favourable to the accused. The accusedwere convicted. After convictions and in some cases longafterwards, upon information received the Home Secretaryreferred these cases to the Court of Appeal.

    I refer below to some of those cases because they helped inthe development of a new and vigorous judicial policy on theduty to disclose statements, results of interviews and otherrelevant materials to the defence.

    The first case I would like to refer to is R v Maouirf. &Others, 1992 (2) ALL ER 433 (C.A.). In that case all maleappellants were found to have positive traces ofnitroglycerine under their nails. Mrs. Maguire did nothave them but a number of pairs of thin plastic gloves foundto have been used by her were examined and the tests werepositive for nitroglycerine. They all were convicted.

    The case was referred to the Court of Appeal (CriminalDivision) : Among other things it was found that there wasfailure to reveal facts which were relevant and ought tohave been revealed. The prosecution witnesses had beenselective about experimental data which supported their caseand discarded that which did not. They therefore misled the

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    court. They failed to reveal to the defence mattersfavourable to the defence. Experts from RARDE were notbrought to the attention of the defence during trial.Incorrect evidence was given to the trial court on thesignificance of nitroglycerine found under finger nails ofmale defendants. There was the possibility of innocentcontamination of fingernails and gloves. Besides it wasimpossible to distinguish nitroglycerine and pentaerythritoltetranitrate. It was said that the duty to disclose was acontinuing one. The effect of all this is summarised in thehead note as follows:

    "A failure on the part of the prosecution to disclose tothe defence material documents or information whichought to have been disclosed may be a materialprocedural' irregularity in the course of the trialproviding grounds for an appeal against conviction to beallowed under s.2(l)(c)b of the 1968 Act. Furthermore,the duty of disclosure is not confined to prosecutioncounsel but includes forensic scientist retained by theprosecution and accordingly failure by a forensicscientist retained by the prosecution to disclosematerial which he knew might have some bearing on theoffence charged and the surrounding circumstances of thecase may be a material irregularity in the course of thetrial providing grounds for an appeal against convictionto be allowed."

    In R v Ward, 1993(2) ALL ER 577 (C.A.) nearly the samehappened. Ward was convicted for the murder of 12 peoplewho died after a bomb exploded on board a coach in whichsoldiers and members of their families were travelling. Shewas also convicted of causing explosions elsewhere inEngland. The evidence against her consisted of confession 1statements made to the police and scientific evidence to the

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    effect that after the coach explosion traces ofnitroglycerine were found in a caravan in which she hadstayed. After other explosions traces of nitroglycerinewere found on her person.

    One of the forensic scientists in the case was Dr. FrankSkuse, whose evidence on the use of Griess test to establishthe presence of nitroglycerine had been discredited ininvestigations which led to the appeal in R v Mcllkennvr1992(2) ALL ER 4517 (the case popularly known as theBirmingham si x) . The Home Secretary referred the Ward caseto the Court of Appeal because Dr. Skuse's evidence in theWard case was based on similar use of the Griess test.There was also concern that the scientific evidence carriedout in connection with an inquiry by Sir John May into thecase of the Macruire family whose convictions were quashed onappeal had shown that other substances could give a resultin some of the tests similar to that given by nitroglycerinewith the result that Ward might not have been handlingexplosives at all.

    But the point of substance argued on appeal was that therehad been material irregularity in the original trial becausethe prosecution had failed to disclose material relevant toboth the confessions and scientific evidence.

    To cut a long story short it was found that the police andthe DPP had failed to disclose to the defence information

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    about witnesses from whom statements had been taken,including the statements of certain R.U.C. officers who hadinterviewed Ward indicating a belief in her innocence.

    There was failure to disclose a number of statements made bythe appellant to the police which contained inaccuracies,inconsistencies and retractions.

    Psychologists who had made a report before her trial hadfailed to record in their report a second suicide attemptmade by her whilst in prison awaiting trial.

    Three senior government forensic scientists had deliberatelywithheld scientific tests from the defence which threw doubton the scientific evidence. One of these tests showed thatdyestuffs present in boot polish could be confused withnitroglycerine in the tests that were used to identifynitroglycerine.

    As a result the Court found that prosecution's failures todisclose were of such order that individually andcollectively they constituted material irregularities in thecourse of the trial. The court held:

    "(1) The prosecution's duty at common law to discloseto the defence all relevant material, i.e. evidencewhich tended either to weaken the prosecution case or tostrengthen the defence case, required the police todisclose to the prosecution all witness statements andthe prosecution to supply copies of such witnessstatements to the defence or to allow them to inspectthe statements and make copies unless there were good

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    - 26 -reasons for not doing so. Furthermore, the prosecutionwere under a duty, which continued during the pre-trialperiod and throughout the trial, to disclose to thedefence all relevant scientific material, whether itstrengthened or weakened the prosecution case orassisted the defence case and whether or not the defencemade a specific request for disclosure. Pursuant tothat duty the prosecution were required to makeavailable the records of all relevant experiments andtests carried out by expert witnesses. Furthermore, anexpert witness who had carried out or knew ofexperiments or tests which tended to cast doubt on theopinion he was expressing was under a clear obligationto bring the records of such experiments and tests tothe attention of the solicitor who was instructing himso that they might be disclosed to the other party. Onthe facts, the non-disclosure of notes of someinterviews by the police to the Director of PublicProsecutions, the non-disclosure of certain material bythe Director of Public Prosecutions, the non-disclosureof certain material by the Director of PublicProsecutions and prosecuting counsel to the defence andthe non-disclosure by forensic scientists employed bythe Crown of the results of certain tests carried out bythem which threw doubt on the scientific evidence putforward by the Crown at the trial cumulatively amountedto a material irregularity which, on its own,undoubtedly required the appellant's conviction to bequashed".

    In the instant appeal it was argued on behalf of theAppellant that disclosure of the contents of a police docketwould among other things retard police investigations.Although this point does not arise in the present appeal itis dealt with in general in the body of this judgment. Butone has to bear in mind what was said by Gildwell, L.J. , inR v Ward, 1993(2) ALL ER 577 at 601J:

    ". . . 'all relevant evidence of help to an accused1 isnot limited to evidence which will obviously advance theaccused's case. It is of help to the accused to havethe opportunity of considering all material evidencewhich the prosecution have gathered, and from which theprosecution have made their own selection of evidence tobe led."

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    There may be in the police docket a piece of paper referringto some event, incident, time or other thing that willassist the accused in selecting material for his defence orin reminding him of the time and place where he was.

    It used to be the practice that all instruments or documentsrecording relevant interviews, witness statements or notesof interviews or a police officer's report should bedisclosed. See R v Wardf (supra) at 602d.

    I agree with Ms Winson's conclusion that the Englishapproach with regard to disclosure of evidence in thepossession of the State has undergone dramatic changes whichare primarily attributable to the Attorney-General'sPractice Note, 198 2(1) ALL ER 734. In my view the courtshave gone beyond the Attorney-General's guidelines. Thesedevelopments were expedited by the nature of the cases thecourts were hearing and the ominous consequences broughtabout by acts of violence and terrorism and the subsequentreaction of the police to those acts and the serious natureof the crimes arising from them. There were attempts by thepolice and others to hide away pieces of evidence of help tothe defence in the preparation of the accused's case. Thisresulted in a failure of justice.

    But what is significant for our purposes is that thesedevelopments have taken place in England and Wales without aBill of Rights and without the benefit of a written

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    constitution. England has in a very significant way movedaway from the law in force on 31st May 1961 which in termsof our Crimina-l Procedure Act we still follow and enforce.

    Before I consider the position in Canada I would like todeal with public interest immunity. I share the view ofAppellant's counsel that public interest immunity isprotected by privilege, but is that still the position? Itis necessary under certain circumstances to protect publicinterest immunity in order to safeguard the interests ofpublic administration and the protection of the state. I donot however share the view that public interest immunityshould be preferred in order to deny an accused a fair trialand justice. Open justice requires fairness to be evenlyapplied between the prosecution and the defence.

    Rather than make public interest immunity an exception tothe general duty to disclose, it should be weighed in thescales of justice. That weighing in should be done by theCourts. If before any trial the prosecution has in itspossession documents or other evidential materials helpfulto the defence case but wants to claim public interestimmunity the defence should be informed of that fact and theCourt should be asked to give directions or some ruling onthe prosecution's claim to public interest immunity. Thedecision must be made by a judge. It would not be proper toallow the prosecution to decide which of the relevantmaterials should be denied to the accused on the grounds of

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    public interest immunity. The prosecution should not bejudge in their own cause on the claim to immunity. As tohow to proceed before a judge in chambers it would, in myview, be proper for the Chief Justice to draw up a practicedirection. The compelling reason for allowing the Court todecide on documents or other material claimed by theprosecution to be covered by public interest immunity is notunduly to compromise accused's right to a fair trial.

    See R v Davis & Others, (suora) , at 646 - 647e, and R vWard. (supra), at 601 - 602b.

    "The effect of R v Ward is to give the court the role ofmonitoring the views of the prosecution as to whatmaterial should or should not be disclosed and it is forthe court to decide. Thus, the procedure described asunsatisfactory in R v Ward, of the prosecution beingjudge in their own cause, has been superseded byrequiring the application in the court. This clearlygives greater protection to the defence than existedhitherto - indeed as much protection as can be givenwithout preempting the issue. Although ideally onewould wish the defence to have notice of all suchapplications, and to have sufficient information to makeat least some representations, we recognise that, in asmall minority of cases, the public interest preventsthat being possible." per Lord Taylor, L C J, in R yDavis & Others, (supra), at 648c - d.

    CANADA

    Now let me turn to Canada.

    The Canadian Charter of Rights and Freedoms in section 7provides that:

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    "everyone has the" right to life, liberty and security ofthe person and the right not to be deprived thereofexcept in accordance with, the principles of fundamentaljustice"

    Art. 7 of Chapter 3 of the Naraibian Constitution merelyconfirms the rule of law by requiring that no one shall bedeprived of personal liberty except according to proceduresestablished by law. Section 11 of the Canadian Charterreads:

    "11. Any person charged with an offence has a right(a)(b) to be tried within a reasonable time;(c) not to be compelled to be a witness in proceedingsagainst that person in respect of the offence;(d) to be presumed innocent until proven guiltyaccording to law in a fair and public hearing by an

    independent and impartial tribunal."Before the proper interpretation of sections 7 and 11 of theCanadian Charter of Riahts and Freedoms by the Supreme Courtthere were conflicting signals from the provincial courtsand the Court of Appeal. The law on fair trial was notsettled.However, section 603 of the Criminal Code (Canada) provided:

    "603 An accused is entitled, after he has been orderedto stand trial or at his trial,(a) to inspect without charge the indictment, his ownstatement, the evidence and the exhibits, if any;and(b) to receive, on payment of a reasonable feedetermined in accordance with a tariff of feesfixed or approved by the Attorney-General of theprovince, a copy

    (i) of the evidence;(ii) of his own statement, if any, and(iii) of the indictment;

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    - 31 -but the trial shall not be postponed to enable theaccused to secure copies unless the court is satisfiedthat the failure of the accused to secure them beforethe trial is not attributable to lack of diligence onthe part of the accused [am. R.S.G. 1985, c.27 (1stSupp.), sl01(2)(d)].

    The case of R v Heikel. (Ruling No. 8) 5 C.R.R. (2d) at p.3 62 enumerates classes of documents required to be producedfor discovery by those who may be adversely affected by itspossible use as evidence at a trial. These included amongothers business records, certificates of analyses of bodilysubstances for alcohol content and transcripts ofintercepted private communications respectively.

    No law required full disclosure to be made. It was left tothe courts to develop the law. This, as I pointed up above,resulted in conflicting decisions.

    In a very helpful written submission Ms. Winson contendedthat those courts that ruled in favour of disclosure ofinformation not provided for by legislation argued thefailure to disclose other information held by theprosecution effectively denied the accused the opportunityto make full answer and defence as he was entitled to do interms of section 7 of the Charter and that it impinged onhis right to a fair trial in terms of section 11(d) of theCharter. It was those Judges that argued in favour of fulldisclosure that won the day as can be seen from cases citedbelow.

    The Court said in R v Heikel, (supra), at 363:

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    - 32 -"I am in complete agreement with Tallis, J.A., in R v Bouroet.supra r that .with the advent of the Charter, full and timelydiscovery of "documents' that are material or relevant to theoffences with which the accused are charged, ought properly to beconsidered a guaranteed right of an accused person within ss. 7 and11(d) of the Charter. To deny the accused such timely discovery,to my mind, is contrary to the principles of fundamental justice andwill deprive an accused of his or her right to make full answer anddefence and thereby infringe or deny the accused's ss. 7 and 11(d)Charter rights to liberty and security of the person. Such right,of course, must be subjected to certain exceptions such as"documents' which fall within a category of privilege, those whichmay require protective orders, the possible timing of the disclosureof Crown witness statements and editing of same by the court andother exceptions which may arise."

    Contrast this with what McBain, R. said in Re: Kristman andthe Queen, 12 DLR (4th) 283 (Alberta Court of Queens Bench).The learned Judge said there was no right either at common lawor under the Charter to require disclosure in favour of anaccused or require the State to disclose all evidence relatingto the police investigation. The learned Judge said:

    "Parliament in the provisions of the Criminal Code, and in theCharter, have not provided for the sort of pre-trial discovery andexamination of witnesses demanded by the applicant's counsel, andthus it is not a "right' enshrined in legislation, fundamental orotherwise. The Charter does not, in the submission of the Crown,require the courts to question the validity of legislation or thereasons for its being formulated as it is. In Duke v The Queen.(1972), 7 CCC (2d) 474 at p. 479, 28 DLR (3d) 129 at p. 134, [1972]SCR 917, Fauteux, C.J.C. said (Lasking, J. dissenting on this,however):

    "In my opinion the failure of the Crown to provide evidenceto the accused person does not deprive the accused of a fairtrial unless, by law, it is required to do so.'"

    The proper approach to full discovery was dealt with bySopinka, J. In R v Stinchcombe, supra. The appellant in thatcase was charged with a criminal breach of trust, theft andfraud. He was a lawyer who was alleged to have appropriated

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    - 33 -money from his client. A witness who had given evidencefavourable to the accused at the preliminary hearing wassubsequently interviewed by agents of the Crown. Crowncounsel decided not to call the witness at the trial and wouldnot produce the statements recorded at the interview. Defencecounsel applied for the disclosure of those statements. Thetrial Judge refused to permit their disclosure to the defenceon the ground that there was no obligation on the Crown todisclose the statements and in any event the witness was notworth of credit.

    He appealed. The Court of Appeal dismissed the appeal. Withleave of the Court of Appeal appellant appealed to the SupremeCourt.

    The Supreme Court sent back the case for retrial holding,among many other reasons, that in indictable offences theCrown had a legal duty to disclose all relevant informationto the defence.

    The learned Judge proceeded to reply to the fears of theCrown, fears that were amply expressed by Ms. Winson in hersubmissions in the instant case and which I have mentionedabove.

    Sopinka, J. dealt first with the argument that the duty todisclose must be reciprocal, that is the defence must alsodisclose. The learned Judge* remarked at 73 a-e:

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    - 33 -money from his client. A witness who had given evidencefavourable to the accused at the preliminary hearing wassubsequently interviewed by agents of the Crown. Crowncounsel decided not to call the witness at the trial and wouldnot produce the statements recorded at the interview. Defencecounsel applied for the disclosure of those statements. Thetrial Judge refused to permit their disclosure to the defenceon the ground that there was no obligation on the Crown todisclose the statements and in any event the witness was notworth of credit.

    He appealed. The Court of Appeal dismissed the appeal. Withleave of the Court of Appeal appellant appealed to the SupremeCourt.

    The Supreme Court sent back the case for retrial holding,among many other reasons, that in indictable offences theCrown had a legal duty to disclose all relevant informationto the defence.

    The learned Judge proceeded to reply to the fears of theCrown, fears that were amply expressed by Ms. Winson in hersubmissions in the instant case and which I have mentionedabove.

    Sopinka, J. dealt first with the argument that the duty todisclose must be reciprocal, that is the defence must alsodisclose. The learned Judge remarked at 73 a-e:

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    It is difficult to justify the position which clings tothe notion that the Crown has no legal duty to discloseall relevant information. The arguments against theexistencemof such a duty are"groundless while those infavour, are, in my view, overwhelming. The suggestionthat the duty should be reciprocal may deserveconsideration by this court in the future but is not avalid reason for absolving the Crown of its duty. Thecontrary contention fails to take account of thefundamental difference in the respective roles of theprosecution and the defence. In Boucher v R, [1955]SCR 16 Rand, J. stated (at 23-24):

    It cannot be over-emphasised that the purpose ofa criminal prosecution is not to obtain aconviction, it is to lay before a jury what theCrown considers to be credible evidence relevantto what is alleged to be a crime. Counsel have aduty to see that all available legal proof of thefacts is presented: it should be done firmly andpressed to its legitimate strength but it mustalso be done fairly. The role of prosecutorexcludes any notion of winning or losing; hisfunction is a matter of public duty than which incivil life there can be none charged with greaterpersonal responsibility. It is to be efficientlyperformed with an ingrained sense of the dignity,the seriousness and the justness of judicialproceedings.'

    I would add that the fruits of the investigation whichare in the possession of counsel for the Crown are notthe property of the Crown for use in securing aconviction but the property of the public to be used toensure that justice is done. In contrast, the defencehas no obligation to assist the prosecution and isentitled to assume a purely adversarial role toward theprosecution. The absence of a duty to disclose can,therefore, be justified as being consistent with thisrole."

    He dismissed the argument that the duty to disclose allrelevant material could impose an onerous new obligation onthe prosecution which would result in increased delays inbringing accused persons to trial. The learned Judgebelieved, and I agree with his reasoning, that "Theadoption of uniform, comprehensive rules for disclosure bythe Crown would add to the work-load of some Crown counsel

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    but this would be offset by the time saved which is nowspent resolving disputes such as this one surrounding theextent of the' Crown's obligation and dealing with mattersthat take the defence by surprise" at 73e-d. In fact moretime was spend on adjournments in jurisdictions that do nothave a general duty to disclose than those that have it Iinterpause.

    Experience elsewhere has shown that the prosecutionabandons cases more readily where it knows that it has noleg to stand on. On the other hand the defence readilyenters pleas of guilty once the strength of the prosecutioncase cannot be met against a defence that is likely tosucceed. I agree that much time would be saved and delaysreduced by reason of the increased guilty pleas, withdrawalof charges and shortening of proceedings because of thereduction of issues to be contested.

    It was submitted on behalf of the Appellant that disclosureof witness statements would enable the accused to tailorhis evidence in order to conform with information inprosecution witness statements. Sopinka, J's answer tothis problem removes the fear that the accused will be ableto tailor his defence in accordance with the informationprovided in prosecution witness statements. The learnedjudge said at 74 a-c:

    "Refusal to disclose is also justified on the groundthat the material will be used to enable the defence to

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    - 36 -tailor its evidence to conform with information in theCrown's possession. For example, a witness may changehis or her testimony to conform with a previousstatement given to the police or counsel for the Crown.I am not impressed with this submission. All forms ofdiscoveryt are subject to this criticism. There issurely nothing wrong in a witness refreshing his or hermemory from a previous statement or document. Thewitness may even change his or her evidence as aresult. This may rob the cross-examiner of asubstantial advantage but fairness to the witness mayrequire that a trap not be laid by allowing the witnessto testify without the benefit of seeing contradictorywriting which the prosecutor holds close to the vest.The principle has been accepted that the search fortruth is advanced rather than retarded by disclosure ofall relevant material."

    I agree. But a trial cannot be just and balanced when theprosecution hides from the defence relevant materials ofevidential importance in order to spring a surprise on thedefence during the cross-examination. The rules and thestandards of a fair trial must be known to both sides inorder for the contest to be fair. The English cases citedin some detail above prove the folly of refusing todisclose witness statements, information and otherdocuments to the defence.

    The other fear which the Appellant feels militates againstfull disclosure is that it will put to risk the securityand safety of persons who provide the prosecution withinformation. I find the answer given by Sopinka, J. inStinchcombe, supra. at 74d-f an adequate reply to thatfear. It is true that disclosure might put to risk thelives of informers and witnesses. These are matters thatthe Prosecutor-General should put before a Judge in orderto seek his directions. This, however, should be doneafter informing the defence of the intention of the

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    prosecution. I repeat the Prosecutor-General must not bethe judge in > his own cause. All relevant concerns andfears for the safety of witnesses and informers must be putbefor e a Judge in the manner described above. The proofrequired is a balance of probabilities.

    See: Shabalala & Five Others v The Attorney-General ofthe Transvaal and the Commissioner of South African Police,suora.

    At 74 h-i Sopinka, J. says:

    "there is an overriding concern that failure todisclose impedes the ability of the accused to makefull answer and defence. This common law right hasacquired new vigour by virtue of its inclusion in s. 7of the Canadian Charter of Rights and Freedoms as oneof the principles of fundamental justice (see Derscherv Canada (Attorney General) [1990] 2 SCR 1505 at 1514).The right to make full answer and defence is one of thepillars of criminal justice on which we heavily dependto ensure that the innocent are not convicted. Recentevents have demonstrated that the erosion of this rightdue to non-disclosure was an important factor in theconviction and incarceration of an innocent person."

    Any system of justice that tolerates procedures and rulesthat put accused persons appearing before the courts at adisadvantage by allowing the prosecution to keep relevantmaterials close to its chest in order to spring a trap inthe process of cross-examining the accused and therebysecure a conviction cannot be said to be fair and just.Full disclosure is in accord with Arts. 7 and 12 of theConstitution. It would be wrong to maintain a system of

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    - 38 -justice known to be, in some respects, unfair to the accused.The right to disclose has acquired a new vigour and protectionunder the provisions of Articles 7 and 12 of the Constitution.English cases cited above are proof beyond doubt that nondisclosure leads to the denial of justice.

    For disclosure to be effective it must be done at the earliestpossible time. In some instances soon after arrest and in otherslong before the accused is asked to plead and in some cases onlyafter the witness has given his evidence in chief. This dependson the circumstances of each case. However, the overridingfactor should be the sufficiency of time in which the accusedshould prepare his or her case. In my view it won't besufficient time to hand witness statements and other materialsto the accused a few minutes before plea. There should bereasonable time to allow the accused to prepare thoroughly hisreply to the charge and his defence. It is for these reasonsthat we made the order mentioned above.

    Costs will follow the event including costs of two counsel.

    DUMBUTSHENA, A. J. A.I agree:

    MAHOMED, CJ

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    I a g r e e .

    LEON,A.J.A.

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    - 40 -COUNSEL FOR THE APPELLANT: ADV. K. VAN NIEKERKADV. S. WINSON(Prosecutor-General)COUNSEL FOR THE RESPONDENT: On request of the Court:

    ADV. M.S. NAVSA, S.C.ADV. L. MPATI(Legal Assistance Centre)