Lawyers clash over disclosure of police, DPP correspondence
Magistrate rules that prosecutors properly appointed
By Andre Haynes
Stabroek News
February 7, 2003
The Special Prosecutors in the Benschop/Bynoe treason trial yesterday objected to the disclosure of legal correspondence between the Guyana Police Force and the Chambers of the DPP, contending that the precept of attorney client privilege is inherent in the relationship.
But defence lawyers for Mark Benschop rejected this argument stating that such a relationship only existed between citizens and does not extend to Public Offices.
Prosecuting attorneys made this objection during the testimony of Assistant Commissioner of Police Leon Trim, when the Preliminary Inquiry into the charges of treason against Mark Benschop and Phillip Bynoe resumed before Magistrate Chandra Sohan.
Prosecuting attorney Anil Nandalall raised the objection when Trim was asked by defence attorney Mortimor Coddett what was the advice he had sought from the Offices of the DPP when he had forwarded the treason file to their Offices and whether he could produce the file. Nandalall however objected, on the grounds that this was privileged information.
He argued that one of the functions of the DPP was to disseminate legal advice in criminal matters to organs of the state including the police force. He contended that as such a “lawyer client” relationship existed between both entities and any legal advice was privileged information and the confidentiality of that information was protected by law. He concluded that the question which Trim was asked would seek to elicit such information and recourse could be sought in the High Court.
Magistrate Sohan however questioned whether such a relationship could exist between the DPP and the Police Force in matters of criminal litigation.
He considered whether confidentiality would exist where information was being sought to ascertain why public litigation was instituted by the Director of Public Prosecu-tions.
Defence attorneys meanwhile challenged Nandalall to cite the law which offered this protection. Citing the cases of Queen v. Crown Prosecution Service ex parte Warby [1993], 158 Dominion of Canada, JP 190; Makanjoua v. Commissioner of Police of the Metropolis [1992] 3 All ER 617, CA 623; and Air Canada v. Secretary of Trade [1983] AC 394, 446, Coddett noted that his question was misunderstood. “The witness is speaking from out of his [own] knowledge.” He noted that even if such a relationship existed, Trim was a defence witness in a treason case where if convicted the accused could be hanged. He noted that Benschop was leading a defence and was asking for evidence, which if made available to the court could help to determine his innocence or guilt and thereby privilege cannot be used to impede the defence.
Lead counsel for the defence, Basil Williams added that the onus was on the prosecution to find a case where the relationship of the constitutional offices of the DPP and the Commissioner of Police, both public officials, was within the realm of “lawyer client.”
He also noted that the state could not charge a citizen and withhold evidence or information which could result in the accused person’s acquittal.
The Magistrate then ordered an adjournment until Monday when he will rule upon the submissions.
Trim, who is the second witness for the defence took the witness-stand yesterday following an adjournment on Tuesday when defence lawyers had challenged the tenure of the Special Prosecutors, Nandalall and Sanjeev Datadin.
Coddett had submitted that the appointment and the continued participation of Datadin and Nandalall, was in contravention of the provisions of Article 187 (Paragraph 2) of Guyana’s 1980 Constitution, which he said did not provide for the delegation of the DPP’s duties to anyone outside of the Chambers of the DPP.
Coddett argued that with Hanomansingh’s resignation the appointment of a new DPP now rested with the Judicial Service Commission, which is currently inactive and he reasoned that since neither Datadin nor Nandalall were members of the DPP’s chambers they had no locus standi in the matter.
He also asserted that even based on the assumption that Hanomansingh did have the power to appoint Datadin and Nandalall, their appointment would no longer be legal with Hanomansingh’s resignation.
Meanwhile Nandalall posited that the Office of the DPP is what was created and exists in spite of Hanomansingh’s vacating the post and he contended that members of the prosecution were issued with the necessary fiats which allowed them to assume full conduct of the prosecution.
Yesterday Magistrate Sohan ruled that the prosecution attorneys did have the legal authority from the Office of the DPP, Datadin having been appointed by Hanomansingh and Nandalall by Deputy DPP Roxanne George. With regards to Article 187, the Magistrate held that paragraph Two, which states that the powers of the DPP may be exercised by him in person or through other persons acting in accordance with general or special instructions, means that if the DPP had given special instructions, no one else could have issued like instructions while he was in Office, including his deputy. He however noted that at the time when a fiat was issued to Datadin the DPP was still in office, and thus the fiat was properly issued. He meanwhile noted that while the DPP tendered his resignation, his deputy Roxanne George had the authority to issue the fiat for Nandalall and associate prosecutor Darshan Ramdhani, since it was his understanding that the resignation was not effective until January 1st of this year.
In spite of this ruling Coddett maintained that any fiat issued by George, who has not been appointed DPP in accordance with Article 203 of the Constitution would be in contravention of the Constitution.
The Magistrate informed him that the correct forum to address such a matter would be the High Court.
