Mr President, I rise because I've now had an opportunity of looking at the decision handed down this morning, and for matters of trial efficiency, we seek clarification on one particular matter, and it's this: One consequence of the decision we've received today adverted to in our response and which we feel requires urgent consideration, is this: The effect of the decision is to divide the material sought to be admitted by the Prosecution into two categories; that being fresh evidence so-called, which goes to the impeachment of the defendant; and secondly, fresh evidence that is probative of the guilt of the accused.
Now, the question is this: Who decides into which particular category such evidence should fall? It seems to us that that is a judicial decision, not one to be made by the party who seeks to take advantage of the admission of the document. Consequently, a practical concern arises, which is this: If matters are left as they are at present and the Prosecution seek tomorrow to rely upon material which they feel in their own assessment falls into category 1 and then lo and behold an issue arises as to whether or not it does in fact fall into category 2, it raises an issue which your Honours will have to decide, and it seems to us that such a decision should be made a priori not after the event so that we know precisely where we stand in relation to the evidence.
So it seems to us, before we can go any further, the Prosecution need to provide a schedule of all the documents they intend to introduce attaching to that their categorisation of which category the evidence falls into, along with written reasons as to why they say a particular document falls into that category, and thereafter your Honours can then take judicial decision whether or not a particular document falls into one category or the other.
In our submission, this is not a matter which should be left to chance or, indeed, to a decision made by a party which has an interest in the matter. It should be an independently arrived at decision, because it seems to us, in order to give dutiful effect to your Honours' decision, there is a two-stage process which needs to be embarked upon: Firstly, the appropriateness of the categorisation; secondly, the use to which the document can be put. That would also ensure, in our submission, judicial supervision of what materials must be disclosed, and it seems to us imperative that there should be such judicial supervision of what could be a very sensitive and tendentious procedure.