‘The privilege here is that of the clients and the clients alone,’ Supreme court rules   |04 October 2022

CJ gives go ahead for review of attorney Laura Valabhji’s electronic devices in terrorism case

The Supreme Court of Seychelles yesterday ruled in favour of the prosecution in the case involving accused Laura Valabhji, granting the application to permit an independent investigator to commence review of her seized digital devices.

Chief Justice Rony Govinden, in delivering the ruling pertaining primarily to legal professional privilege of lawyers, asserted that the “the privilege here is that of the clients and the clients alone”.

It was on July 18 that the prosecution filed an application seeking that investigators be permitted to commence review of Mrs Valabhji’s digital devices, to determine whether they contain material of evidential value in relation to the large cache of weapons and ammunition discovered at their Morne Blanc property.

As such, court ordered that the prosecution appoint another person, preferable an attorney as opposed to the police officer which they had initially proposed, on account that the law enforcement officer falls under the direct command of the Commissioner of Police. Moreover, the officer “does not possess sufficient expert knowledge to carry out these duties in the opinion of the court”, he added.

Mrs Valabhji is facing charges under the Prevention of Terrorism Act 2004, the Penal Code, and the Firearms and Ammunition Act 1973, along with her husband Mukesh Valabhji, former senior Defence Forces official Leslie Benoiton and others.

As part of the investigation, the digital devices of Mr Valabhji have been reviewed, with an initial screening of his hard-drive revealing correspondence detailing his direct involvement of the purchase of weapons. With the trial date set for December 2022, prosecution in its initial application highlighted the importance of urgently reviewing the digital devices.

On August 1, Counsel representing Mrs Valabhji strongly objected, arguing that the procedure would lead to a breach of legal professional privilege, since Mrs Valabhji is by profession an attorney-at-law, and that the list of documents and devices seized have not been sufficiently particularised.

As such, the prosecution filed a new motion on August 11, also proposing the appointment of the officer.

CJ Govinden in making his determination considered a number of cases, as well as the English common law applicable in Seychelles prior to 1976, with regard to the issue of legal professional privilege, which protects bona fide communications between a lawyer and clients from disclosure.

Considering the serious nature of the offences, some aspects of which are still under investigation, court noted that the fact that Mrs Valabhji was still practicing at the time of their seizures  “does not automatically make them inadmissible” against her, as they may or may not relate to her profession.

CJ Govinden further set out the type of evidence that is admissible in the case, as well as evidence that would be inadmissible and covered by the lawyer-client privilege. Whether the documents are relevant to the investigation are decisions of the investigator at this stage and not for the court, he further added.

“At the early stages in their seizures the electronic items may or may not even be relevant to the case. The investigators would only know that the content of an electronic device is relevant to their investigation by having a cursory look at their content in the first place.  It is obvious therefore that investigators have to open devices and see cursorily whether they are relevant to their investigation,” he stated.

Both Mr and Mrs Valabhji were arrested in November 2021, in connection with the Anti-Corruption Commission of Seychelles (ACCS) investigation relating to the missing USD 50 million. An extensive cache of military grade weapons and ammunition were found and seized from various searches of their home, with the initial search at their home producing 72 firearms of the Dracuno, Makarov and AK type, 122 magazines, and 43,416 bullets. Subsequent searches bring the total number of firearms to 122, with the quantity of bullets seized from the Valabhji’s and Benoiton totalling in at 45,000, in addition to 238 magazines.

Laura Pillay