Acting Chief Magistrate Melissa Robertson yesterday ruled the notes from the diary of Detective Corporal Suraj Singh inadmissible to evidence in the Preliminary Inquiry (PI) into the advocating a terrorist act charge against Oliver Hinckson.
State Prosecutor Sanjeev Datadin applied to the court for an adjournment after the magistrate had given her ruling. He stated that he would need time to decide whether the remaining evidence to be given by Singh, his last witness in the PI, would be admissible.
However, lead defence attorney Nigel Hughes told the court that “it appears as if the (prosecution’s) case is so challenged that they may need some time to decide whether or not they should discontinue the case. If that was the case, Hughes said, the defence would have no objection to the adjournment.
After further discussion, during which the magistrate suggested that Datadin take a few minutes to sort out his next course of action, the request was granted and the matter adjourned to next Tuesday.
Singh took the stand to give evidence on September 18, but when Datadin tendered notes that were extracted from Singh’s diary as evidence the defence objected, saying that the notes cannot be tendered since it constitutes secondary evidence and has been coloured by the witness’ prejudice.
The matter was then adjourned twice to allow Datadin to respond to the objection made by the defence. On October 2 the prosecutor laid over his response to the objection against the diary being admitted to evidence in the form of a written submission.
Hughes, lead defence attorney, responded to Datadin’s submissions last Thursday. He explained to the court that his response to the prosecution’s submissions would rely on his previous objection in which he had stated that Singh could not be asked to refer to the diary or its contents since neither had been tendered as evidence.
With the facts presented by both parties, as it related to whether or not the notes from Singh’s diary should be admitted to evidence, the magistrate had set yesterday’s date to rule on the matter.
Magistrate Robertson began yesterday’s hearing by first listing the reasons why she was ruling the diary evidence inadmissible. Among these are: no evidence that the questions Hinckson is alleged to have answered were recorded in the diary; no evidence that the accused was willing to bind himself to the evidence; no evidence that the document was signed (by the accused, the interrogating officer or any other officer present).
Further, she said that the principle of Res Gestae was irrelevant to the case. The prosecutor in his submissions on October 2 had stated that the “note is admissible as part of the Res Gestae”. However, the prosecution had objected to this.
Res Gestae (a Latin phrase meaning “things done”) is an exception to the rule against hearsay evidence. It is based on the belief that because certain statements are made naturally, spontaneously and without deliberation during the course of an event, they leave little room for misunderstanding/misinterpretation upon hearing by someone else (i.e. by the witness who will later repeat the statement to the court) and thus the courts believe that such statements carry a high degree of credibility.
(Source: an article on Res Gestae from the Criminal Law section of www.legalserviceindia.com)
Datadin had previously told the court the (diary) evidence being given in the witness’s testimony is not what the witness himself said but what he recorded of what Hinckson had said. During his arguments he had contended that because the recording of the questions asked and the answers given by Hinckson were a continuous act carried out by Singh there was no room for any misunderstanding/misinterpretation or fabrication.
However, Magistrate Robertson had also stated yesterday that the prosecution’s application of the Res Gestae principle to the case was “irrelevant and misconceived”.
Fight for bail
Hinckson was also given his pre-trial liberty last Thursday after repeated efforts by his attorneys since July. He was granted $1 million bail on the charge of advocating a terrorist act.
Magistrate Robertson had on July 11 granted the ex-army officer bail in the total sum of $1,175,000 on the four charges against him. He was granted $75,000 bail on a firearm and ammunition charge, $100,000 bail on the sedition charge and $1 million on the advocating the commission of a terrorist act matter.
However, Justice William Ramlal on July 14 had dashed Hinckson’s hopes of pre-trial freedom when he granted a motion against him being admitted to and released on bail, filed by the Attorney General’s Chambers that morning.
He had ordered that a rule nisi of certiorari be directed to Magistrate Robertson for her to show cause why a writ of certiorari should not be granted quashing her decision to admit Hinckson to $1 million bail on a charge of advocating a terrorist act.
Roger Yearwood, another of Hinckson’s attorneys, at last Thursday’s proceedings informed the court that the rule nisi of certiorari was made absolute by Justice Ramlal on that same morning and there was no longer anything preventing her from granting bail.
Hughes had also informed the court that his client was granted bail on the sedition matter in the High Court by Chief Justice Ian Chang. With the granting of bail on the firearm and ammunition charge unchallenged, Hinckson was finally allowed his pre-trial liberty when Magistrate Robertson granted bail in the advocacy matter last Thursday.
Hinckson was charged on March 11 with advocating the commission of a terrorist act and uttering seditious statements. The second charge stemmed from a statement he made during a press conference at City Hall.
