R v Valabhji & Ors (CO 4 of 2022) [2024] SCSC 27 (8 March 2024)

SUPREME COURT OF SEYCHELLES Reportable [2024] CO 04/2022 Republic I" Accused 2nd Accused 3nl Accused 4th Accused 5th Accused In the matter between: THE REPUBLIC (rep. by S Powles) and MUKESH VALABHJI (rep. by J Lewis and ors) LAURA VALABHJI (re. by R Scott and ors) LESLIE BENOITON (rep. by B Hoareau) LEOPOLD PAYET (rep. by J Camille) FRANK MARIE (rep. by J Camille) Neutral Citation: Summary: Before: Heard: Delivered: The Republic v Valabhji & Ors (CO 04/2022) [2024] Disclosure of prosecution materials Govinden CJ 27 February 2024 8 March 2024 (f"'March 2024) RULING GOVINDENCJ Introduction [I] The Ist and 2nd accused have through this Motion applied to the Court for an order requiring the Republic to provide full response to the following matters; (i) Confirmation of the identities of the "VPH employees" (as expressed by Patrick Humphrey and recorded in the Prosecution's Note dated 07th February 2024). (ii) Details and records of whether, when and by what lawful authority each of the following individuals was appointed as an officer of the ACCS: Patrick Humphrey, Craig Gibson, Peter Bennett, Stephen Sadler, Kevin Stephenson, Vanessa Penfold ("the VPH investigator']: (iii) Details and records of any other basis on which the Republic understands any of the VPH investigators lawfully exercised the powers of an officer of the ACCS. (iv) Details and records of any service agreement, consultancy agreement or working arrangement entered into between the ACCS and the organisation known as "VPH' (as referred to in the Republic's Note dated 07th February) or between the ACCS and any of the VPH employees/VPH investigators, for the purpose of so-called Operation Black Iron. (v) Details of any financial interest in or control over VPH on the part of any individual who worked on Operation Black Iron. (vi) Details and records of any applications made for Gainful Occupation Permits ("GOPs") for the VPH employees/VPH investigators and the overseas "consultants" engaged by the ACCS for the purposes of Operation Black Iron (namely Jamie Gray, Reece Wallace, Rian lIett, Simon Foster, Timothy De Souza and Chris Bradley) and of any such GOPs issued. (vii) Disclosure of the complete unredacted briefing note related to Operation Black 1ron referred to in the Prosecution Note dated 7th February 2024. The Notice of Motion and Reply [2] The Application is supported by the affidavit of Mr Zaiwalla in which he avers that the Republic has been consistently defaulting on its disclosure obligation, including court orders to that effect. Learned counsel then proceeded to refer to the content of email attachments, including a disclosure note of the Leading Prosecution Counsel and a digital image of a page with partly redacted handwritten notebook of Peter Bennet, a witness who has already testified, to the Defence dated the 7th of February 2024 referring to the involvement of a private company named VPH in investigation of the case. It is his contention that the information disclosed have been known for years by the Prosecution and should have long been disclosed by now. [3] The Deponent avers that the Disclosure Note contains accounts of communication between organization he presumes to be the Republic or the ACCS and witnesses who the Defendants had previously been led to believe were (or had been) officers of the ACCS. The said witnesses are Craig Gibson, who has stated that he would not be testifying in this case unless a contractual issue is settled; Vanessa Penfold, who has stated that the head of the ACCS had put people in harm's way as she had known that there are guns in the house before the search, something disputed by the Prosecution. Patrick Humphrey, although not being a witness, had stated no employee of the VPH would be testifying for the same reasons put forth by Vanessa Penfold, something again denied by the Prosecution. [4] According to the Deponent, the Disclosure Note also disclosed that the ACCS briefing note entitled 'Project Black Iron TI', apparently prepared prior to the arrests on 18th November 2021, provides the following under the heading 'Method': "The intention is to carry out the search and arrests with the cooperation of the suspects and persons on the premises. The suspect ifpresent will be arrested and secured by ACCS/Seychelles Police Officers prior to the search being commenced. If arrested at the premises being search the suspects will be removed to the place of detention and the search conducted in their absence. The search process will be video recorded in order to provide a true and accurate record for any subsequent judicial proceedings. " [5] The Deponent avers that the withholding of that Briefing Note from the Defence (even now, it has only been selectively quoted by the Republic, rather than properly disclosed) is not only inexplicable, but grossly prejudicial to the fairness of the trial, particularly because: a. By definition, it is a document which has been in existence since the very start of the investigation; b. His clients have expressly alleged that items supposedly found at their home on 18th November 2021 were planted, that they were deliberately kept away and prevented from witnessing the search that day, and that the CCTV was deliberately disconnected and suppressed in order to prevent there being a "true and accurate record for any subsequent judicial proceedings". c. The Republic cannot therefore have been in any doubt that the propriety and transparency of the conduct of the search of his clients' home on 18th November 2021 - and particularly the absence of contemporaneous video records - were matters of crucial importance to the defence case; d. It now transpires that those who took part in the search were acting in direct breach of an order to video-record the process - a fact that would plainly be of central importance to the cross-examination of multiple witnesses, had the prosecution not acted in such serious violation of their disclosure duties. [6] Mr Zaiwalla points out that as per his unanswered letter to the Republic dated 16th February 2024, disclosure about VPH should have been made long before the start of the trial. If the investigation and prosecution of his clients (or any part thereot) have in truth been subcontracted by the appropriate state bodies to private interests, that would be an exceptionally concerning revelation at any stage in criminal proceedings, let alone after they have spent more than two years in custody and as the close of the Republic's case is fast approaching. To him this is undeniably relevant for the defence and the court to have been told that individuals who played crucial roles in the arrests of his clients and the search of their home (including, the defence now suspects, at least Kevin Stephenson, Steven Sadler and Peter Bennett, in addition to Craig Gibson and Vanessa Penfold) were apparently not employed as ACCS officers as the Defence had been led to believe, but were instead acting as employees of a private company, in which the ACCS Deputy Commissioner appears to have had a direct financial interest. [7] To him, what he avers to be the murky relationship raises serious questions as to whether they were (or could be) lawfully authorised as 'officers of the Commission' to exercise its functions on behalf of the CEO of the ACCS. That is such a fundamental issue as to call for urgent clarification, supported by disclosures of the relevant records. [8] He goes on to state that the disclosure of the GOPs issued to all foreign consultants involved in Operation Black Iron would likely to go some way towards answering those questions. As Captain Fonseka's confirmation that the Charlies were issued GOPs prior to entering Seychelles has now put the Republic on notice (ifit was not already the case before) about the existence of information and documents - no doubt readily accessible by the Attorney General's Office - which could assist the Defence case or damage the Prosecution case. Hence, urgent steps should be taken by the Republic to obtain that information and those documents. There can be no proper grounds for refusing disclosure of the same. [9] As for the pre-arrest briefing document it is his view that limited extracts disclosed cannot conceivably constitute the entirety of its relevant content; and that the Republic's woeful record of non-disclosure in this trial inspires no confidence that it has properly applied the test. Therefore, the full, unredacted Briefing Note should now be disclosed to the Defence. [10] For the reasons set out above, it is this Deponent's belief that the Republic has no proper grounds for refusing to provide the information and disclosure sought herein. Accordingly, he seeks the orders requiring the Republic to provide full responses to the following matters including providing disclosure of all documents relevant to those responses to the defendants by 4:00 p.rn. on 27th February 2024: a. Confirmation of the identities of the "VPH employees" (as expressed by Patrick Humphrey and recorded in the Prosecution's Note dated Th February 2024). b. Details and records of whether, when and by what lawful authority each of the following individuals was appointed as an officer of the ACCS: Patrick Humphrey, Craig Gibson, Peter Bennett, Stephen Sadler, Kevin Stephenson, Vanessa Penfold C'the VPH investigators"). c. Details and records of any other basis on which the Republic understands any of the VPH investigators lawfully exercised the powers of an officer of the ACCS. d. Details and records of any service agreement, consultancy agreement or working arrangements entered into between the ACCS and the organization known as "VPH" (as referred to in the Republic's Note dated 7th February 2024) or between the ACCS and any of the VPH employeeslVPH investigators, for the purpose of so-called Operation Black Iron. e. Details of any financial interest in or control over VPH on the part of any individual who worked on Operation Black Iron. f. Details and records of any applications made for Gainful Occupation Permits ('GOPs') for the VPH employees/investigators and the overseas 'consultants' engaged by the ACCS for the purposes of Operation Black Iron (namely Jamie Gray, Reece Wallace, Rian lIett, Simon Foster, Timothy De Souza and Chris Bradley) and of any such GOPs issued. g. Disclosure of the complete unredacted briefing note related to Operation Black Iron referred to in the Prosecution Note dated 7th February 2024. [11] The Learned Leading counsel for the Republic has filed a Reply to this Notice of Motion, which is to the following effect. [12] On 23rd February 2024 the (SI and 2nd Respondents filed a Notice of Motion seeking disclosure of various Items by the Republic. The Republic has continuously kept its disclosure obligations under careful review and sought to disclose materials as and when it has been thought capable of either undermining the Prosecution case or assisting the Defence. Previous decisions have been kept under review and revisited when necessary, particularly when the Defence has been articulated. In response to each of the matters upon which the Defence seek disclosure, the Respondent's position is as follows. [13] With regards to the identity of VPH employees as expressed by Patrick Humphrey, the Republic is not in possession of materials which indicates the full list of VPH employees. It is understood that Patrick Humphrey, Vanessa Penfold are/were directors of VPH Investigations and that Craig Gibson, Stephen Sadler and Peter Bennett were also in November 2021 connected to VPH. There are others. But the Republic is unable to provide a full list as it does not have this information. More to the point, it is submitted that such information can neither undermine the Prosecution case nor assist the Defence and is therefore not disclosable. [14] With respect to details and records of whether, when and by what lawful authority each of the following were appointed as an officer of the ACCS: Patrick Humphrey, Craig Gibson, Peter Bennett, Stephen Sadler, Kevin Stephenson, Vanessa Penfold, it is averred that it is understood the VPH provided investigators to the ACCS at the material time for "Operation Black Iron". The investigator's identities have been known to the defendants since their arrests and in affidavits and witness statements served since. The ACCS has indicated that each of the above were, at all material times, appointed as the ACCS officers and acting pursuant to section 9 of the Anti-Corruption Act 20 16. Kevin Stephenson is not understood to have been employed by or connected to the VPH, but was already in Seychelles as the Anti-Money Laundering/Counter Financing of Terrorism Advisor to the Ministry of Finance, and then seconded to assist in the ACCS investigation in 2021. He too was duly authorised by the Commissioner. [15] Learned counsel, with respect of their lawful authorities, avers that any officer acting pursuant to section 9 of the Anti-Corruption Act would have been acting pursuant to any other lawful authority arising as a result of such appointment. [16] As to the details of any record/service agreement between the ACCS and the VPH and the ACCS and any the VPH employee/investigator, it is Counsel's contention that the Republic is not in possession of any agreement between the ACCS and the VPH or any employee or investigator of the VPH. Again, and more to the point, even if the Republic were in possession of such information, it is submitted that such information can neither undermine the Prosecution case nor assist the Defence and is therefore not disclosable. [17] As to the details of any financial interest or control over the VPH on the part of any individual who worked on Operation Black [ron, the reply is that the Republic is not in possession of such information. The suggestion that Patrick Humphrey was ever "Deputy Commissioner of ACCS" is not accepted. [18] With respect to GOPs, the Learned Counsel stated that when it comes to applications for the GOPs of Jamie Gray, Reece Wallace, Rian lIett, Simon Foster, Timothy De Souza and Chris Bradley, the Republic is in possession of the details of the Exemption Permits for each of these individuals. However, this issue ofGOPs has been raised by the Applicants in a Notice of Motion dated OYe! September 2022. The Notice of Motion was dismissed ex mero motu on 17th October 2022 on the basis that it raised a collateral issue and had nothing to do with the criminal issues before the Court. Contracts between the Security Consultants have been disclosed. There is no basis for further information to be disclosed. [19] When it comes to the disclosure of the complete unredacted Briefing Note related to Project Black Iron, Mr Powles asserts that the full Briefing Note has been carefully reviewed. Those parts which could undermine the Prosecution case or assist the Defence have already been disclosed. [20] The Respondent assert that the Applicant has asserted at paragraph 2 and 3 ofthe Affidavit in support of the Notice of Motion that the Republic need to file a Notice of Motion explaining the nature and circumstances of the disclosure made in the document dated 7th February 2024 and set out as Exhibit V22 to the affidavit. It is respectfully submitted that the Applicants have misunderstood the direction given by this Court as this is only required if the Republic sought to rely upon any of the matters disclosed or raised in the Note as part of its case, which it did not. [21] As to the redacted copy of Peter Bennett's note of meeting with Minister Fonseka, Mr Powles avers that it will be recalled that this note first arose as Peter Bennett was giving evidence. He had a copy of it with him in Court and rather than providing a copy to the Defence the Court ruled that he could summarise the relevant parts of it in evidence, which he did. After the evidence the Republic carefully considered the Note and disclosed the relevant parts of it. [22] Learned Counsel further avers that Contracts between the ACCS and the ACCS Security Consultants were disclosed at the request of the Defence. Further, statements of Maureen Young and Luke Fonseka were disclosed when received by the Republic. It should be noted that they were disclosed not for the purpose of relying upon the contents but to assist the Defence by providing detail of what the witnesses might say on the issues covered. [23] Mr Powles goes on to state that the Briefing Note was received by Counsel for the Republic on 28th September 2023 and was formally provided to the Police by the ACCS on 08th February 2024. It was disclosed as material capable of assisting the Defence. He further states that details of reluctant witnesses were previously provided to the Defence during a meeting between Prosecution and Defence on 26th January 2024. Craig Gibson communicated his reluctance on 21Sl August 2023; Vanessa Penfold and Patrick Humphrey communicated their reluctance to assist on os- January 2024. Efforts were made by the Police to obtain a formal statement of reluctance with reasons from both Craig Gibson and Vanessa Penfold. Neither replied. Accordingly, the information was disclosed by way of Disclosure Note. [24] The Applicants claim, at paragraph 7 of the Affidavit in support that the information sought within the Notice of Motion could have been put to the ACCS witnesses. For the reasons set out above, none of the information sought is disclosable and ought not to be disclosed. To the extent that the Defence may wish to put any further matters to any prosecution witness who has already given evidence, if there is a proper basis to do so, the Applicants can apply to the Court for such witness to be recalled. Analysis and Determination [25] I have carefully read the Application and the Reply of the Respondent and have given close and careful consideration to the submissions of both parties. Having done so, I am of the view that the issue left for this Court's consideration is whether the materials in issue are helpful to the Defence and hence should be disclosable by the Republic as they are admittedly not being relied upon by the prosecution. [26] The materials being sought by the Applicants appears to fall under FOUR headings. First, information relating to the full identification of witnesses and potential witnesses of the Prosecution. Secondly, proof that they exercise lawful powers in Seychelles during the course of their investigation. Thirdly, information relating to financial interest in entities purportedly engaged in the investigation. Lastly, material intentionally being withheld by the prosecution as non-disclosable. [27] The disclosure note, albeit late in its production, may possibly contain potential evidence that might be helpful to the Applicants, though admittedly not furthering the Prosecution case. This is so when it comes to information relating to full the identification of persons involved in the investigation of the case and their exercise of lawful powers. Although it is evident that the Applicants had known about the operation "Black Iron" at the very early stage of this trial and some evidence has been led so far by the Prosecution or has come out under cross examination with regards to the issues raised in this application and the said operation. Accordingly, I find the following request to be fair and reasonable; (a) The confirmation of the identities of the "VPH employees" involved in the investigation of this case (as expressed by Patrick Humphrey and recorded in the Prosecution's Note dated 7th February 2024). (b) The basis on which the Republic understands THAT any of the VPH investigators lawfully exercised the powers of an officer of the ACCS, they being Patrick Humphrey, Craig Gibson, Peter Bennett, Stephen Sadler, Kevin Stephenson, Vanessa Penfold. ( c ) Records of any Gainful Occupation Permits ('GOPs') or exemptions ( if any) for the VPH employees/investigators and the overseas 'consultants' engaged by the ACCS for the purposes of Operation Black Iron (namely Jamie Gray, Reece Wallace, Rian lIett, Simon Foster, Timothy De Souza and Chris Bradley) and of any such GOPs issued. [28] The details as to the service agreements and/or contractual relationship between the ACCS and the VPH employees and the VPH investigators would, in the view of this Court, be purely collateral issues and irrelevant to these criminal proceedings as it is their exercise of lawful powers is in compliance with the laws of Seychelles that is important in these proceedings, rather than their contractual relationships with the ACCS . Hence, I would not make an order with respect to prayer (d) of the Notice of Motion. The same applies to prayer (e) with respect to details of any financial interest in or control over the VPH on the part of any individuals who worked on Operation Black Iron. The Court does not see how this would assist the Defence in this case. Both the contractual and financial interest of the ACCS or of its personnel would only serves to move this Court away from the facts in issue and would have no relevancy. [29] This leaves us with the issue of the disclosure of the complete un-redacted Briefing Note related to Operation Black Iron referred to in the Prosecution Note dated 7th February 2024. This note was not used by Mr Bennet to refresh his memory during the course of his testimony as Counsel for the Republic made reference to the fact that it contained "sensitive information". Learned counsel for the 2nd accused on the other hand, though she stated that she wanted this note disclosed, in the same breath, she agreed that if it contained sensitive information, if there is irrelevant material, the Defence had no issues for the note to be redacted if there is material, which meets the test of immunity that must be withheld from the defence. Upon assessing the case as facts and arguments presented before me I find that this is exactly what has happened. The redacted copy of Peter Bennett's note of meeting with Minister Fonseka has been provided to the Defence with the sensitive parts removed by the Learned Counsel representing the Republic. Therefore the court would not accede to this demand. [30] Accordingly, I order the Republic to make available to the Applicants any and all information as ordered at paragraph 27 (a), (b) and (c), of this Ruling within 5 days from today. Signed, dated and delivered at lie du Port on the t1 If of March 2024 Govinden CJ 11