Benschop treason verdict Wednesday
By Andre Haynes
Stabroek News
February 20, 2003
Magistrate Chandra Sohan is expected to deliver his ruling on whether Mark Benschop should be committed to stand trial in the High Court for treason on Wednesday.
He heard closing arguments from defence and prosecution lawyers yesterday when the Preliminary Inquiry into the charges of treason against Benschop and co-accused Phillip Bynoe, continued.
At the previous hearing on Monday, the defence had concluded their case and submitted their closing arguments to the Magistrate, who granted the prosecution one day’s leave to reply.
When the hearing resumed yesterday however, defence attorney Mortimor Coddett, with the court’s consent, made further submissions for the magistrate’s consideration.
He advanced that the prosecution had failed to establish evidence upon which the court could be persuaded to find that a sufficient case has been made out. And with the testimony of the defence witnesses, the evidence was so compelling that the court could do nothing but discharge Benschop, he said.
Coddett further considered that by advising Assistant Commissioner of Police Leon Trim, a defence witness, to assert privilege, the prosecution was attempting to conceal information which could result in Benschop’s exoneration.
“The prosecution have something to hide... and I am saying to you sir that that must make you uneasy...”
Special Prosecutor for the DPP Sanjeev Datadin however refuted this contention, submitting that it was preposterous for anyone to argue, whether expressly or implicitly, that the charges were not wholly and substantially instituted by the DPP. And whether Trim asserted privilege or not, he noted, was irrelevant to the court.
In his address, Datadin directed the court’s attention to Section 71 of the Criminal Law Procedure Act Chapter 10:01, which states, “If, upon the whole of the evidence, the Magistrate is of the opinion that a sufficient case is made out to put the accused person upon his trial for any indictable offence he shall...”
He noted that the operative words are sufficient case, and considered that the evidence put forward by the defence had not disputed or discredited the prosecution’s case in any material way. And moreover, that the evidence of the defence witnesses, Surujpaul Singh, Charles Smith and Trim, had not advanced the defence’s case.
Of Smith, Datadin cautioned the Magistrate to use his discretion when attaching weight to the evidence that was offered. Though he also added that Smith’s testimony corroborated the prosecution’s case.
Observing that much had been made by the defence of the facts that Benschop had not shot or robbed anyone, nor had been found in possession of any gun, Datadin noted that the accused has been charged with treason, under S 318 (a) of the Criminal Law Offences Act.
The section states that “Any person owing allegiance to the state who, whether in Guyana or elsewhere, (a) forms an intention to levy war against the state or to overthrow the government or the constitution of Guyana by force and manifests such intent by any overt act;
(b) Adheres to enemies of the state by giving them aid or comfort shall be guilty of treason and liable to suffer death by hanging.”
Datadin noted that the two most important elements which the prosecution needed to establish were intent and the existence of an overt act, which he said they had fulfilled.
“What from the evidence led since December 2nd to today could lead your worship to say your earlier findings of a prima facie case is in doubt?” he asked while submitting that there was nothing by the way of exhibits or evidence which put in doubt any aspect of the prosecution’s case.
“... The offence of treason against the accused has been made out and it is the application of the prosecution that you commit the accused to stand trial before a judge and jury,” Datadin concluded.
In his reply Coddett noted that while Datadin listed intent and committing an overt act as the two most important elements, what he didn’t draw to the court’s attention was where evidence existed to show that Benschop had intended to overthrow the government. “An act does not make a man guilty unless his mind is guilty,” he recited as he argued that Datadin had sought to infer intent rather than prove intent separate from an overt act.
“Where is the intention?... the prosecution have led no evidence that Benschop and Bynoe made a plot to overthrow the government...” he said while noting that the prosecution failed to show any intention between June 1st and July 3rd as stated in the charge.
Coddett further directed the magistrate that while at the stage of no-case submissions he had found that a prima facie case had been made out, it was now his duty after the defence’s case to consider all the evidence in its entirety before rendering a decision.
In closing, Coddett reminded the court that the onus was not on Benschop to prove his innocence, but rather on the state, who instituted the charges.
At the end of the hearing the Magistrate noted that he would need to go through all of the evidence and fixed next Wednesday for continuance.
According to the particulars of the charge, contrary to Section 318 (a) of the Criminal Law Offences Act (CLOA), Bynoe and Benschop between Saturday June 1st and Wednesday July 3 of this year, being citizens of Guyana and owing allegiance to the state of Guyana, formed an intention to overthrow the lawfully elected Government of Guyana by force, during the said period, in furtherance of the aforesaid intention.
It is alleged that they (A) conspired together with persons to forcibly and unlawfully enter into the compound and premises of the Office of the President (OP);
(B) Were present at and encouraging others by words and conduct, to unlawfully overtake and storm the OP compound and premises.
To date Bynoe is yet to be taken into police custody, though two warrants have been issued for his arrest.
