Relevance as a threshold for disclosure by the prosecution
The Practice Direction used the word relevant without defining it, as a result of which the trial High Court Judge held that the matter the Respondents herein are asking to be disclosed was not relevant when the trial process had not commenced. The power to determine what is relevant to disclose has been given to the prosecutor when the word "relevant" is a term of art, and its abuse is likely to occasion a miscarriage of justice for accused persons and to violate fair-trial principles. The Court only struck out the word ‘relevant’ and in its place substituted “materials and documents which are connected with the matter before the court” to ensure that the prosecutor does not use the word relevant which is a term of art, to assume the powers of the courts at the pre-trial stage to occasion miscarriage of justice.
Accordingly we hold that an accused person must be given and afforded opportunities and means so that the prosecution does not gain an unfair advantage so that the accused is not impeded in any manner and does not suffer disadvantage in preparing his defence, confronting his accusers and arming himself in defence, so that no miscarriage of justice is occasioned. Non-disclosure is a potent source of injustice as it is often difficult to say whether an undisclosed item of evidence might have shifted the balance or opened up a new line of defence.
Scope of the material the prosecution must disclose
Every material which is not excluded by privilege or law not to be disclosed, shall be disclosed where it has some bearing on any offence under investigation or any person being investigated, or on the surrounding circumstances of the case, unless it is incapable of having any impact on the case. The use of the word ‘relevant’ is a term of art that is used in both disclosures and admissibility as a threshold test to determine whether a material, piece of evidence, or a document is disclosurable or admissible.
Notwithstanding that the application for review has been refused, the Court has a duty to clarify its orders when they are seemingly ambiguous. In place of the phrase “that/which is relevant”, which has been struck down, the court shall clarify it by substituting it with any materials or documents which are connected to the case before the court, especially exculpatory materials in possession of the prosecution, shall be disclosed unless their disclosure is forbidden by law.
