Magistrate upholds defence arguments on self-incrimination
By Andre Haynes
Stabroek News
December 17, 2002
Submissions by the defence on the fundamental right of a witness not to incriminate himself when giving evidence were yesterday upheld by Magistrate Chandra Sohan when the Preliminary Inquiry into the charges of treason against Phillip Bynoe and Mark Benschop continued.
The hearing however came to an abrupt end shortly after noon yesterday when Benschop, according to the magistrate, mouthed an expletive directed towards him which caused him to call an adjournment to the proceedings.
Yesterday had been fixed for the magistrate's ruling on whether the second witness for the defence, Charles Smith, had 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.
When the hearing resumed, regarding a question answered by the witness prior to asserting privilege, the magistrate held that the witness' answer would stay on record, whilst for any further questions, he would have the right to invoke privilege.
However, the Special Prosecutor for the DPP, Sanjeev Datadin,
following the ruling by the magistrate, contended that privilege did not extend to the witness since he had voluntarily given evidence, and on the premise that it did, it had been waived by him during the evidence-in-chief,
Datadin submitted that the witness had freely and voluntarily given evidence and by all the rights the prosecution was entitled to test during cross-examination, any issue raised by the witness in his primary testimony. Further, he stated that in relation to privilege, nowhere was it stated in written law here that protection from self-incrimination is extended to anyone beyond the accused person in any proceedings and further that there is nothing in our law which is akin to the Fifth Amendment of the United States Constitution.
Lead counsel for the defence, Basil Williams however observed that the contentions of the prosecutor were fallacious, noting that Section 59 of the Evidence Act Chapter 5:03 Laws of Guyana, provided otherwise.
Section 59 states: "No one called as a witness shall be compellable to answer any question if the answer thereto would, in the opinion of the judge, have a tendency to expose the witness, or, subject to Section 49, his wife or her husband, to any criminal charges or to any penalty or forfeiture which the judge regards as reasonably likely to be preferred or sued for."
Williams also cited Archbold's Criminal Pleading: Evidence and Practice, 40th Edition, which he said stated on the matter of privilege that a witness other than the defendant is privileged to refuse to answer any question which would lead to incriminate him.
After a brief recess the magistrate ruled in favour of the defence that the witness should not have to answer any question that could incriminate him. When the hearing resumes today, Smith is expected to be cross-examined by the prosecution.
The defence yesterday meanwhile made a renewed application for bail, citing humanitarian grounds.
The application was based on the recent death of Benschop's 7-year-old son, Rajiv and the 35-year-old mother of the child, Deomattie Subrian. They were both killed early last week Sunday morning when fire swept through their two-story house in Queens, New York.
Williams said that it was imperative for Benschop to tend to the affairs surrounding the deceased child and his mother and gain closure by attending their funerals, He further noted that during the prosecution's case, there was no evidence that Benschop had killed anyone, stolen from anyone, had been in possession of any weapon or ammunition, or even trespassed or entered the Office of the President Compound.
Datadin, in regards to the application, noted however that the jurisdiction to grant bail does not extend to the offence of treason.
Though noting that he appreciated the grounds, the magistrate denied the application, asserting that it was his belief that the court was without the jurisdiction to grant bail.
Television appearances by lawyers from the defence and prosecution also attracted the court's attention again yesterday. Defence attorney Emily Dodson complained that during his appearance on a Television Show last week Thursday, associate prosecutor Anil Nandalall had alleged that Benschop used four-letter words. She noted that he could not divest himself of his responsibilities as prosecutor and going on national television and making such allegations was beyond his scope.
Nandalall however said that he had been invited by a panel on the Guyana Broadcasting Corporation (GTV) to discuss whether TV talk show hosts contribute to the crime wave in the country. He said his remarks referred to expletives being used on a programme which was hosted by Benschop and this was done in the exercise of his constitutional right to free speech. He said his remarks had nothing to do with the case and pointed to an appearance by Williams on the At Home With Roger programme. Nandalall contended that Williams during his appearance had dealt with the case and he said he would raise this issue at the appropriate level.
Attorneys involved in the Preliminary Inquiry into the charges of treason against Bynoe and Benschop had been asked by Chief Justice Carl Singh to desist from speaking about the case on television, following their appearances on `At Home with Roger,' `Wake Up Guyana' and `Close up'.
The Chief Justice reminded the attorneys from both sides to act responsibly and asked them not to discuss the case on television while the matter is sub judice.
Williams in response to Nandalall said that the Chief Justice had only addressed the television appearance by members of the prosecution and said that he had undertaken to take the matter up with the Chancellor, who was at the time ill. He said that under Section 63 of the Criminal Law Procedure Act the defence was allowed to publish its case and would do so.
Yesterday's hearing ended abruptly after the magistrate said he had witnessed Benschop, who was standing in the prisoner's dock, mouth an obscenity in his direction. While lawyers for the defence said they knew nothing about it, the magistrate was adamant in maintaining that Benschop had used a filthy word, and coupled with his numerous outbursts during the proceedings, he said he would not tolerate it any longer and adjourned the hearing to today.
