Prosecution begins final submissions
Stabroek News
October 31, 2002
The prosecution yesterday began making its final submissions, while maintaining arguments that the Act under which the treason charges were instituted against Phillip Bynoe and Mark Benschop has been amended.
While both men are charged with contravening section 318 (a) of the Criminal Law Offences Act [CLOA] Chapter 8:01, during their submissions on Monday, lead counsel for Benschop's defence Basil Williams had argued that there was no such section in Guyanese Law.
On Tuesday, during his submissions for the defence, attorney Mortimer Coddette, had also expounded on this issue at which time associate prosecutor Anil Nandalall, challenged this argument, asserting that the law had been amended. He produced a copy from the amended act printed from the electronic version of the Laws of Guyana, which was submitted to the court.
Special prosecutor for the DPP Sanjeev Datadin submitted to Magistrate Chandra Sohan yesterday that the CLOA had been amended in 1991, under Act No. 19, the Crime Amendment Act and that three sections were inserted into Chapter 8:01. These were, he said, Sections 63 (a), 69 (a) and 77 (a). He said subsequently the Law Revision Committee passed an order that all Section 77 (a) would be Section 78 and all the following sections would each fall one place. And in conclusion he maintained this was in fact effective law.
However attorney for the defence, Emily Dodson, disputed Datadin's contentions, submitting that there had been no amendment to the numbering of the sections in the Act.
She noted that the procedure to amend any Act of Parliament requires a further Act of Parliament, which, after being passed in Parliament, must be assented to by the President.
She said on September 27, 1991, the then President Hugh Desmond Hoyte had assented to the amendment, Section 4 of which says the CLOA is hereby amended by the insertion after Section 77 by the following section as S 77 (a). She observed that in the conversion to electronic form there is no Section 77 (a), but rather Section 78, while all other sections of Chapter 8:01 go down by a number.
She argued that there is no act of parliament assented to by the President of Guyana renumbering 77 (a) 78 or any of the other sections and thereby there is no section 318 (a) in the laws of Guyana. She further argued that the electronic presentation of the laws cannot be submitted in the court as the Laws of Guyana, while also noting that the electronic presentation does not have subsidiary legislation. She also observed that the Law Revision Committee could not amend the Act, but only recommend.
The magistrate pronounced his intention to consider both submissions and verify the law for himself.
The prosecution will continue their submissions when the hearing resumes today.
Yesterday Nandalall led the Prosecution's final submissions, during which he highlighted the duty of both the prosecution and the magistrate. He represented that the prosecution had made out a prima facie case against Benschop and noted that it was the duty of the magistrate to make his determination on the evidence, which, he said, he would be obliged to consider in totality. He supported that the standard of proof the prosecution is required to satisfy is very low, citing that it was lower than that of a plaintiff in civil proceedings. He further outlined that the magistrate was not entitled to attach weight to any of the evidence, inconsistencies, or the credibility of the witnesses, which would be for a jury to decide.
And once the possibility exists that a jury could convict, he said, the magistrate would be obliged to commit Benschop to trial.
Yesterday's hearing was marred by a row between lawyers for the prosecution and the defence. The incident was sparked by cross-talking between both sides, which became personal in nature and incensed the attorneys, who sought the court's protection. The spectacle prompted defence attorney Coddette to note his disgust with the behaviour in the court. The magistrate observed that the code of conduct had been flouted despite his early admonishment that he would expect the utmost professionalism from the attorneys of both sides. He also noted that he had been very tolerant, especially of behaviour which he considered contemptuous in spite of constant insinuations and allegations.
The incident found its culmination in the magistrate's chambers after which attorneys for both sides issued their apologies to the court.
The hearing is to resume today when the Prosecution will continue their submissions. (Andre Haynes)