Ruling on bail petition next Thursday
Stabroek News
February 14, 2003
Justice Jainarayan Singh Jnr is to rule on the bail petition for treason accused Mark Benschop next Thursday.
Benschop along with Phillip Bynoe are accused of treason and a preliminary inquiry into the matter has been underway since August. Lawyers for Benschop have since approached the High Court seeking bail citing what they said were undue delays in the proceedings.
On Monday, prosecuting attorney Mohabir Anil Nandalall told the court that "treason being a capital offence regarded as the highest criminal act in the land and punishable by death" the onus of proving why the applicant should be admitted to bail rests solely with the defence.
In essence, Nandalall contended, bail for the offence of treason is only granted in highly exceptional circumstances because of the severity of the punishment it carries and the petitioner has not pleaded any such conditions.
And representative for the Director of Public Prosecutions (DDP), Sanjeev Datadin argued that only if the offence is bailable, does the responsibility of proving why bail should not be granted rest with the prosecution. Further, since it is stated in Section 87, Chapter 10:01 of the Criminal Law Procedure Act that bail can be granted "on the petition of an accused person" and the current bail petition is signed by Maria Benschop, not Mark Benschop (the prisoner), the application is in itself erroneous.
The lawyers argued that the only logical explanation that can be attached to Section 81 of the aforementioned Act as used in Benschop's bail petition, is that it gives the High Court judge the power to conduct a statutory review.
Reiterating the importance of interpreting the statute as a whole so that sections 81 and 87 should be read together, Nandalall contended that the court ought to consider a statute so that there is consistency of meaning...(in other words)...no power can be conferred to the court so as to interfere with the magistrate's conduct of the Preliminary Inquiry.
"I respectfully submit that there is no inherent jurisdiction that the court must grant bail. [The bail application] is bad in law and should be rejected," Datadin asserted.
Nandalall added that "...assuming that section 87 imposes the power of granting bail for murder and treason, [the bail application] is without merit and does not disclose sufficiently compelling information for favourable exercise of [the judge's] discretion."
However, lead defence lawyer Basil Williams replied that the prosecution's arguments should be regarded as irrelevant since they are substantive only in a situation where the petitioner has been committed to stand trial but the pending application is relative to his pre-trial liberty.
Williams yesterday reminded the court that Benschop had not been committed to stand trial and even so, the court was authorised under Section 87 to grant bail. Further the prosecution failed to address the contentions of the defence contained in the petition and which relate to the issues of "the likelihood of flight, presumption of innocence and tampering with witnesses and/or evidence." (Edlyn Benfield)
