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In the Matter of Supreme Court of Judicature Act Chap. 4:01 Section 36(1) and In the Matter of an Application by the Director of Public Prosecutions Against an Order of the Magistrates' Court Sitting at Port-of-Spain Given on the 29th Day of January, 2003. The Director of Public Prosecutions and The Chief Magistrate, His Worship Sherman Mc Nicolls and B. Gomes, John J. Smith, I Galbaransingh, A. Maharaj, Northern Construction Co. Ltd., S. Ferguson, B. Kuei Tung, R. Pierre, R. Huggins, Maritime General Insurance Co. Ltd. and Fidelity Finance and Leasing Co. Ltd. (intervening by order of this court made on the 10th March, 2003) INTERVENERS. Civil Appeal - Nelson, J.A [2003] TTCA 16 (29 May 2003)

REPUBLIC OF TRINIDAD AND TOBAGO

IN THE COURT OF APPEAL

Cv.A No. 2 of 2003

IN THE MATTER OF THE SUPREME COURT

OF JUDICATURE ACT CHAP. 4:01 SECTION 36(1) AND

IN THE MATTER OF AN APPLICATION BY THE DIRECTOR OF PUBLIC PROSECUTIONS AGAINST AN ORDER OF THE MAGISTRATES' COURT SITTING AT

PORT OF SPAIN GIVEN ON THE 29 ^TH DAY OF JANUARY, 2003

BETWEEN

THE DIRECTOR OF PUBLIC PROSECUTIONS APPLICANT AND

THE CHIEF MAGISTRATE

HIS WORSHIP SHERMAN MC NICOLLS RESPONDENT AND

B. Gomes, John J. Smith, I Galbaransingh, A. Maharaj, Northern Construction Co. Ltd., S. Ferguson, B. Kuei Tung, R. Pierre, R. Huggins, Maritime General Insurance Co. Ltd. and Fidelity Finance and Leasing Co. Ltd. (intervening by order of this court made on the 10 ^th March, 2003)

INTERVENERS

CORAM :

M. Warner, J.A. R. Nelson, J.A. S. John, J.A.

APPEARANCES :

Mr. G. Peterson for the Applicant

The Chief Magistrate not appearing and being unrepresented

Mr. F. Solomon S.C. and Mr. F. Hosein for Barbara Gomes and John H. Smith

Mr. D. Allum S.C. and Mr. R. Persad for I. Galbaransingh, A. Maharaj and Northern Construction

Co. Ltd.

Ms. G. Lucky and Mr. R. Persad for S. Ferguson

Mr. A. Alexander S.C. and Mr. R. Armour for B. Kuei Tung and R. Pierre

Mr. R. Martineau S.C. for R. Huggins

Marit ime General Insurance Co. Ltd. and Fidelity Finance & Leasing Co. Ltd. not appearing and being unrepresented

Delivery date: 29 ^th May, 2003

I have read the judgment of Nelson J.A in draft. I agree with it and do not wish to add anything of my own.

M. Warner, Justice of Appeal.

I also agree.

S. John, Justice of Appeal.

JUDGMENT

Nelson, J.A

1. I have had the opportunity of reading in draft the judgment of Warner, J.A. I

agree with the reasons she has advanced and the order she proposes. However, I wish to add a few observations of my own.

2. The facts are adequately stated in the leading judgment of Warner, J.A.

3. I accept that a magistrate in conducting a preliminary examination is performing a ministerial and not a judicial function: see Ammann v Wegener [1972] HCA 58; (1972) 129 CLR 415, 435. However, I would hasten to add, as Gibbs J. said in that case at page 486, it does not necessarily follow that for that reason a magistrate cannot be said to sit as a court. For example coronial courts, although courts of investigation, are nonetheless courts.

4. The interveners placed much reliance on R v Stinchcombe

[1991] 3 SCR 326; [1992] LRC (Crim.) 68. In that case Sopinka J acknowledged that the obligation to disclose was not absolute. Stinchcombe did not apply to documents that were beyond the control of the prosecution, irrelevant or privileged. Further disclosure was subject to the discretion of counsel for the prosecution both as to the withholding of information and the timing of disclosure.

5. While the basic principles of disclosure are universal, the practice varies from jurisdiction to jurisdiction in the common law world: see Berry v R (1992) 41 WIR 244, 250

(P.C.) The principles and practice applicable to disclosure in Trinidad and Tobago with regard to committal proceedings are well set out in DPP v Mc Nicholls (unreported) Mag. App. No. 13 of 1999, December 13, 1999; Ferguson v A-G (1999) 57 WIR 403 (C.A) and (2001) 58 WIR 446

(P.C.).

6. The control which the prosecutor, as a minister of justice, exercises over disclosure between arrest and committal in this jurisdiction is not to be usurped by an examining magistrate. That control is subject to review by the trial judge: see R v DPP ex p. Lee [1999] 2

All E.R 737, 749J; [1999] EWHC Admin 242; [1999] 1 WLR 1950,1963D. In the instant case I am satisfied that the assumption by the magistrate in committal proceedings of the power to require the prosecution to provide a list of material in its possession to the defence and the court is a material error.

7. The Chief Magistra te in his reasons had emphasized that he has merely at this stage required the prosecution to furnish a list. However, that requirement is in advance of and preparatory to an order to disclose some or all of the items to be listed and is properly to be regarded as a step in the process of disclosure and therefore as an order for disclosure.

8. Finally, in my judgment the defence has a duty to assist the prosecution in discharging its continuing obligation of disclosure. To facilitate disclosure by the State it may be necessary for the defence to reveal at an appropriate stage fully and specifically the defence or issue they are likely to raise: see per Lord Taylor of Gosforth CJ in Keane (1994) 99 Cr. App. R.

1, 7.

Rolston F. Nelson. Justice of Appeal.

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