Treason accused, Mark Benschop, who in a Constitutional Motion, has asked the Court to quash his indictment on the grounds that he had been unlawfully imprisoned by deliberate delays by a judge, will know his fate on June 18, 2004, when Justice B.S. Roy is expected to deliver his ruling.
Counsel for the applicant Benschop, Mr. Benjamin Gibson, had submitted among other things, that the issue for determination is trial within a reasonable time as set out in Article 144 of the Constitution.
In this regard, Gibson asserted that the order of his Honour Mr. Justice Jainarayan Singh dated September 26, 2003 prohibiting the Director of Public Prosecutions from presenting the indictments of inter alia, Martin Rodrigues, Leslie Tappin and Mark Benschop was an unlawful and illegal act.
But the Attorney General, Mr. Doodnauth Singh, S.C. for the respondents, (AG and DPP) said in his reply Friday that the applicant is abusing the process of the Court.
The AG pointed out, "The applicant as he himself avers in paragraph 16 of his affidavit - on the 12th December 2003, appeared before Her Honour Madam Justice Gregory-Barnes to condemn the delay of Mr. Justice Jainarayan Singh but the learned judge dismissed the application.
"The applicant now appears before His Honour with a similar application to have the delay of Mr. Justice Jainarayan Singh condemned.
"This is a blatant attempt by the applicant to circumvent the process of the Court by again enticing an Order in his favour, when one has already been given on the same matter against him.
"It is respectfully submitted that the applicant by raising this issue again before this honourable Court is indeed abusing the process of this Court and the matter is res judicata.
"It is worthy to note that the doctrine of 'res judicata' is not a technical doctrine applicable to records but it is a fundamental doctrine of all Courts that there must be an end to litigation. A plea of res judicata must show that the same point has been actually decided between the same parties.
"From a perusal of Motion (175-M/2003) which came up before Her Honour Justice Gregory-Barnes it would become apparent that the issues were the same as those in this case and the judge dismissed that application. Hence, it is the respondents' humble submission that this matter is res judicata.
"It is therefore, the respondents' submission that by way of analogy the applicant by appearing before this Court is abusing the process of the Court. This he has done with the prior knowledge that a similar action was filed before another judge of concurrent jurisdiction and was dismissed by that said judge.
This application is premature, misconceived and frivolous and should be dismissed with costs to the respondents.
Replying, Mr. Gibson said, "The procedure is unknown. The result of the Order made by Justice Singh is that Benschop's case will never be heard and he will be incarcerated forever.
"Following the words of Diplock J.A. in Maharaj -vs-A.G. of Trinidad and Tobago (1978) 2 AER P. 670 at P. 675J.
"Distasteful though the task may well appear to a fellow judge of equal rank, the Constitution places the responsibility for undertaking the enquiry fairly and squarely on the High Court."
"The learned judge has no jurisdiction either at Common Law or under the Constitution to condemn a citizen to unreasonable imprisonment. Article 144 (1) of the Constitution is Mandatory and binds the High Court to obedience. The High Court is not invested with the power to prevent a fair trial within a reasonable time and that is the very jurisdiction invoked by the trial judge," Mr. Gibson said.
The judge declared that would deliver his ruling on June 18, 2004.