Acting Chief Magistrate Melissa Robertson has adjourned the Oliver Hinckson advocating a terrorist act preliminary inquiry (PI) to June 29 for decision on whether the state’s application for the case to be reopened will be granted.

At the last hearing on June 11th, lead Defence Counsel Nigel Hughes, following the absence of state prosecutor Sanjeev Datadin, had made an application for the case to be closed. Hughes’ application was granted and the matter had been adjourned to Tuesday for the magistrate to give her ruling. However, Datadin on Tuesday applied to the court for the case to be reopened and for the prosecution to be allowed to present their remaining witnesses.

Hinckson, an ex-army officer, was charged on March 11 last year with uttering seditious statements and advocating a terrorist act. The charges stemmed from a statement he made at City Hall on February 11, 2008. The PI into the advocating a terrorist act charge against Hinckson commenced on April 17, 2008 before former magistrate Gordon Gilhuys but was later recommenced in Magistrate Robertson’s court.

Datadin, before submitting his application to the court on Tuesday, explained that he was absent from the June 11 proceedings because he was engaged in a superior court matter before Acting Chief Justice Ian Chang. However, it was not until he was responding to later submissions made by Hughes on Tuesday afternoon that Datadin revealed he had been making a “statutory application” last Thursday to the High Court in relation to evidence which Magistrate Robertson had ruled inadmissible in the PI.

On June 8, Hughes explained, the matter was adjourned to June 11 at Datadin’s request to allow the prosecution the opportunity to present the final witnesses. Prior to this, Datadin had made an attempt to tender a High Court document, obtained through a High Court clerk, as evidence, but Magistrate Robertson had ruled such a document inadmissible. On June 11 the court extended a courtesy to Datadin and afforded him more than one hour to appear.

“If the virtual complainant in this matter [Suraj Singh] has filed proceedings against this court when the matter is before you then you are the defendant,” Hughes told Magistrate Robertson on Tuesday. “He should have informed this court of his intentions.”

The defence attorney described Datadin’s act of excusing himself from Magistrate Robertson’s court to file proceedings against her in the High Court last Thursday as being “highly improper”.

No witnesses
Hughes further pointed out that during his submission to the court Datadin failed to explain why the state’s final witnesses were not present on June 11 and Tuesday.
“That [June 11] was the first time the prosecution was absent,” Datadin contended on Tuesday afternoon. “…the discretion of an adjournment ought to be exercised taking into consideration the totality of the situation…it ought to be exercised … in a judicial manner meaning; reasonableness, fairness and an opportunity to be heard.”

The prosecutor continued that the court, “given the totality of the [case’s] circumstances” would be implementing too harsh a penalty by closing the case and thereby excluding evidence from the PI (to be submitted by the final witnesses). Such a penalty, Datadin said, should be reserved for “the most serious cases”. He offered no explanation to the court for the absence of the witnesses.

“There is and there will be no prejudice to the accused [Hinckson] if the application [to reopen the case] were granted,” Datadin stated.
However, Hughes stressed that last Thursday was not the first time Datadin had been absent from court proceedings. Datadin, according to the defence counsel, did not extend the courtesy to the court of notifying it in advance of the likely absence of him or his witnesses last Thursday.
“None, not a single witness was there on June 11,” Hughes said.

Further, the defence attorney described Datadin’s submissions about the court acting in a manner “that was not judicial, reasonable, fair and that did not afford him [the prosecutor] an opportunity to be heard” as being most provocative.

The fact that court waited more than an hour on Datadin last Thursday, Hughes said, gave him more than enough time to make his appearance and be heard.
While not addressing Hughes’ statement on the absence of the prosecutions’ final witnesses Datadin pointed out that he had produced witnesses before the court on May 19 and 25. According to him, A. Singh appeared in court on May 19 to give evidence but Hinckson’s defence counsel were absent. The same witness was present on May 25.

Magistrate Robertson after listening to both parties for more than an hour adjourned the matter to June 29. On that date she will say whether the Hinckson advocating a terrorist act PI will be closed; or whether Datadin’s application will granted for it to be reopened so that the prosecution’s last witnesses can finally be presented.