Ex-army officer Oliver Hinckson was yesterday finally given his pre-trial liberty and walked out of the Georgetown Magistrate’s Court after he was granted bail on the charge of advocating a terrorist act.
Lead defence attorney, Nigel Hughes shortly after 12.30 pm yesterday told Acting Chief Magistrate Melissa Robertson that he wished to inform her of certain “developments” in the High Court matter concerning his client’s bail.
“…at 9.45 this morning the Honourable Justice (William) Ramlal…made the order absolute,” Hughes said, referring to the order for a rule of nisi of certiorari which had been issued to Magistrate Robertson in July.
“…that is out of the way,” he continued. “Now there is no High Court matter…there is nothing, absolutely nothing stopping you from granting bail,” Hughes told the court after he renewed his bail application.
Roger Yearwood, another of Hinckson’s attorneys who was present before Justice Ramlal in the High Court yesterday morning, said: “The judge has ruled. There is no impediment to you deliberating on our application for bail.”
State Prosecutor Sanjeev Datadin after listening to the defence submission questioned whether the court would take advice from his colleagues. “I am stunned,” he stated before objecting to Hughes’ application for bail.
In his objection Datadin reiterated his previous grounds and told the court that during his court matters in the 1990s Hinckson had assaulted a witness in one of his cases and was also charged with escape from lawful custody.
After listening to both parties the magistrate announced that Hinckson was granted bail in the sum of $1 million. A previous decision for the granting of bail had been thwarted by an approach to the high court.
After the formalities of Hinckson’s bail were sorted out by his attorneys he took a walk around the courtyard then promptly left the compound and entered a waiting car.
Continuation of PI
Last Thursday the Preli-minary Inquiry (PI) into the advocating a terrorist act charge against Hinckson was adjourned to Tuesday so that the defence lawyers could respond to Datadin’s written submission.
The submission was laid over to the defence in response to their objection to diary testimony. However, Hughes was absent from the proceedings on Tuesday and the matter was adjourned to yesterday for him to reply to Datadin’s submissions.
Hughes explained to the court that his response to the prosecution’s submissions would rely on his previous objection in which he had stated that Detective Corporal Suraj Singh could not be asked to refer to the diary or its contents since neither had been tendered as evidence. This would be impermissible, he had stated.
In Datadin’s response to the objection, Hughes said, he referred to two points: the principle of Res Gestae (Latin for facts relevant to the case and admissible in evidence) and the question of admitting the notes in Singh’s diary to evidence.
Res Gestae, he contended, does not relate or apply to the prosecution’s circumstance because it applies to the incident in question and only applies to the criminal cause of action that gave rise to the charge.
The attorney went on to explain that if there was a case of murder and the victim managed to make an oral statement before dying, the statement given was close to the incident and there was no opportunity for fabrication.
Therefore, he pointed out, the questioning of his client by the interrogating officer, Trevor Reid, and the recording of those answers can not be legally classified as Res Gestae.
Responding to Datadin’s second point Hughes commenced by quoting the first and second paragraphs under the heading “Confession” in the prosecution’s submission which stated:
“The prosecution respectfully submits that the Judges’ Rules are not law and are only guidelines as to what ought to be done in criminal prosecution; see Phipson on Evidence 11th Edition paragraph 805. Further, the breach of the Judges’ Rules does not render the evidence obtained inadmissible.”
The purpose of the Judges’ Rule, the attorney said, is to protect the suspect/accused from hearsay evidence hostile to him which is alleged to have emanated from him. Such alleged statements/ admissions, Hughes said, cannot be tendered into evidence without first ascertaining that they were obtained voluntarily from the accused.
“The admission into evidence of any admission or statement alleged to have been made by the accused to the police under interrogation,” Hughes stated, “can only be done after the court has been satisfied that the admission has been made freely and voluntarily.”
It is a legal obligation of the court, Hughes stressed, to be satisfied that statements/ admissions, if made by the accused, were made freely and voluntarily.
He further highlighted that the accused is not obligated to say anything and must be made aware of the right to remain silent and that if that right is violated then the police can record and use anything said against them.
Hughes said that it is clear that the Judges’ Rules have been breached. According to him, 3b of the rule states that any questions asked and answers given must be recorded in full and signed by the accused and if he refused then it must be signed by the interrogating officer. Further, he explained, another section of the rule states that during the recording of an interrogation if two or more police officers are present when the statements are taken then the evidence, that is the statements, should be signed and co-signed.
“Oliver Hinckson at the time refused to sign that record,” Hughes said referring to the diary extract. “There-fore, how can they ask the court to admit the extract to evidence?”
The diary extract, the attorney further stated, was not signed by neither Reid nor Singh.
In his brief oral response to the defence’s submission Prosecutor Datadin stated that Hinckson had said: “It’s okay but I am not signing.”
Datadin said that in the PI facts are being taken to determine whether there is enough evidence for the accused to stand trial in the High Court. “How can this court then be aware of the facts if the defence is objecting to evidence (the diary extract) being presented?” he questioned.
The matter has been adjourned to next Thursday for Magistrate Robertson to make her ruling.
