The motion resulted from a stand taken by the Magistrate to have the Prosecution amend the charge against Benschop so that the State could proceed with the PI.

On Friday last, the Full Court comprising Justice B.S. Roy, presiding, and Justices Mr. William Ramlall and Mrs. Yonette Cummings-Edwards, had granted a Nisi Order to the applicant DPP, directing Magistrate Sohan to show cause why an order should not be issued directing him to proceed in accordance with his statutory powers which compel him to commence the PI in the joint charge of treason as proffered against Benschop and Bynoe.

On Friday also, the Full Court further ordered that the PI in the case of Leon Trim against Benschop and Bynoe be adjourned until Wednesday.

On the resumption of the hearing of the motion yesterday, leading counsel for Benschop, Mr. Mortimer Coddett, applied for the right to intervene in the matter on the grounds that the defence is an interested party, and could be affected by the results.

Senior Counsel Mr. Bernard De Santos for the DPP and Mr. Doodnauth Singh for the Magistrate indicated that they had no objections to the application.

Consequently, the application for intervention as well as another application for leave to file an affidavit in answer within 24 hours was granted. Further hearing was adjourned to tomorrow at 09:00 hrs.

In his affidavit in support of notice of motion, Mr. Hanomansingh said that between the period of June 2002 and July 3 2002, certain statements were made by Benschop and Bynoe "which directly led to a number of persons attacking and entering the premises of the Office of the President, on July 3, 2002."

He that during the incursion "the attackers brutally assaulted employees and other persons in the Office of the President. Several offices were ransacked and a number of persons robbed."

He said that during the incident two of the attackers were killed.

The affidavit added that on July 15, 2002 as a result of the assault on the Office of the President and investigations conducted by the Guyana Police Force, Deputy Commissioner of Police Mr. Leon Trim swore to an information upon oath charging Benschop and Bynoe jointly with the offence of treason.

It noted that on July 15, 2002, only Mark Benschop who had been arrested by the Police, appeared before Chief Magistrate (ag) Juliet Holder-Allen, and was remanded to prison upon a refusal of an application for bail.

It added: "That on the said 15th July 2002 Wanted Bulletins for Phillip Bynoe were posted at all Police Stations throughout the State of Guyana and on several television stations as well as in the print media.

"That on the 29th August 2002 the matter was called before the learned Magistrate Chandra Sohan who heard arguments by Attorneys-at-law for the Defence of Mark Benschop and arguments from the Prosecutor, and as a result, ruled that the Prosecutor must either sever or substitute the charge against Mark Benschop.

"That in accordance with Section 56 of the Criminal law (Procedure) Act Chap. 10:01, 'When any person is apprehended upon a warrant he shall be brought before a Magistrate...and the Magistrate shall either proceed with the Preliminary Inquiry or postpone it to a future time'.

"That accordingly and in conformity with precedent the learned Magistrate Chandra Sohan is obliged to conduct the Preliminary Inquiry in accordance with the information upon oath and has no authority whatsoever to make the ruling that he did.

"That consistent with this practice, the case of Police against Dereck Callender, Gary Moses and Vibert Callender C.J. No. 9081 -83 of 1993, in which Gary Moses had not been apprehended, but the Preliminary Inquiry was proceeded with against Dereck and Vibert Callender who were committed to stand trial by learned Magistrate Fung-a-Fatt and who were subsequently indicted and who were convicted by Judge and Jury on the 7th May, 1996 and whose conviction and sentence were upheld.

"Further on the 29th October 1998 in the matter of the Police against Hazrat Ally, Deonarine Khan, Imtiaz Ally, Ferose Khan, Ashraf Ally and Asif Ally were all jointly charged for murder C.J. No. 4251-4256 of 1998. The Preliminary Inquiry proceeded against Hazrat, Ashraf and Asif Ally who were represented by now present Attorney General Mr. Doodnauth Singh, S.C., M.P and present Justice of Appeal Mr. Ian Chang, S.C. Hazrat Ally was subsequently committed to stand trial.

"That an examining Magistrate is not a trial Magistrate. All he is required to do is to determine whether there is prima facie evidence whereby an accused person can be put on his trial.

"That the duty and obligation of a Magistrate conducting a Preliminary Inquiry is to determine on the hearing of the evidence which has been adduced by the Prosecution and if any evidence on the part of the Defence to determine upon the whole evidence whether the accused person ought to be committed to stand trial. It is no part of his duty or province to try the case. He is only to say whether there is a fit case on which to put the accused person on his trial.

"That in the present situation the charges against the two accused are based on a conspiracy which resulted in the actions taken on the 3rd of July and I have advised that the evidence which is available and which will be led against the accused Mark Benschop is legally admissible and in the interests of justice and the proper conduct of the case the joint charge ought to be proceeded with and that no undue prejudice will result to the accused Mark Benschop."