Magistrate to rule on self-incrimination point
Shouting, outbursts from Benschop mar proceedings
By Andre Haynes
Stabroek News
December 13, 2002
Magistrate Chandra Sohan will rule on Monday whether the second witness for the defence in the preliminary inquiry into the treason charge against Mark Benschop has waived the right not to incriminate himself, and whether any incriminating evidence he may have given, while not having been cautioned, can be kept on the record.
The second witness for the defence, Charles Smith, took the stand yesterday when the Preliminary Inquiry into the charges of treason against Phillip Bynoe and Mark Benschop resumed.
Upon the completion of his testimony, arguments arose during cross-examination as to whether evidence which was given by Smith could be kept on record if it incriminated him.
Smith had answered a question posed by Special DPP Prosecutor Sanjeev Datadin and lead counsel for the defence, attorney Basil Williams, argued that the answer must be expunged since the witness has a right not to incriminate himself.
Datadin advanced that the witness can be warned and if he chose not to answer the question it would be recorded that he did not answer the question because he would not want to incriminate himself. And whilst in agreement with Williams on the point that the witness has a right not to incriminate himself, Datadin maintained that the answer had already been given, was admissible in the proceedings and should remain as part of the record.
Williams again however observed that the right of a citizen not to incriminate himself is sacrosanct in all common law jurisdictions and argued that the court has a duty to expunge any incriminating answer which, if left on record, could be used in other proceedings against him.
Considering the arguments, the magistrate resolved that he would rule on this point at the next hearing.
Meanwhile, as cross-examination continued, Datadin, in reference to a statement made by Smith during his evidence-in-chief, asserted that the witness had already waived his right to privilege against self-incrimination.
He contended that this was an issue which was put into question during evidence-in-chief and could therefore be explored during cross-examination. Associate prosecutor Anil Nandalall also submitted likewise, noting that Smith could not raise the shield of privilege when he had been unobstructed during evidence-in-chief.
Again Williams said that the rights of the witness were sacrosanct and he questioned whether the right of the prosecutors to cross-examine was superior to the right of the witness not to incriminate himself.
Considering the arguments, the magistrate said he would deliver a ruling on those points at the next hearing on Monday.
A series of exchanges, which found their climax when the defence threatened to leave the hearing, marred proceedings yesterday.
As Smith was at the beginning of his testimony, Datadin objected to questions by Williams, which he said had been leading in nature. For what he termed “Williams’ education,” the prosecutor said that it was not permissible for questions to be asked which bear a description or part of the answer and the witness should not be permitted to answer.
This incensed Williams who objected as Datadin continued with his point, arguing that Datadin had been in breach of the magistrate’s ground rules prohibiting derision from either side.
As the magistrate pronounced that he was weary and disgusted at cross-talking from both sides, Williams interjected and demanded of the magistrate that he answer his objection before anything else.
In spite of a warning by the magistrate, who cautioned Williams that his actions were unbecoming, Williams continued in this vein forcing a recess as shouting ensued. Following the recess, Williams said the attacks on him were a deliberate strategy by the prosecution to distract the defence and sought redress from the court.
The magistrate noting that he had been in the midst of doing so when Williams had interjected, said that on numerous occasions the were many insulting remarks coming from both sides. With regards to Datadin’s statement he said the remarks were highly unprofessional.
While Datadin subsequently apologised to the court for his remarks, defence attorney Mortimor Coddett requested that the attorney apologise to Williams, who demanded that this be done. Coddett said it was not sufficient for Datadin to apologise to the court and told the court he would not participate any further in the proceedings if this was not done. As exchanges continued the impasse was resolved when Datadin apologised to Williams.
Meanwhile, there was a series of outbursts from Benschop, who levelled various allegations against the magistrate and said he (the magistrate) was being investigated for his activities. Having heard the outburst, Williams inquired of the magistrate whether he was still capable of continuing the case to which the magistrate responded in the affirmative, unless, he said, the defence wanted otherwise.
A former television talk-show host, Benschop stands jointly indicted for treason with Bynoe who is still at large and for whom two arrest warrants have been issued.
