One of the cardinal principles of criminal justice system is the presumption of innocent regardless of indictment before any court, barrister Lamin S Camara submitted as he led a team of lawyers before Justice Amina Saho-Ceesay for the release of suspects on bail.
Moving his motion on bail in a fully packed courtroom amid tight security, lawyer Camara argued that the presumption of innocent can only be taken away when it is rebutted or upon conviction of the suspect.
Lawyer Camara thereof referred the court to the prayers of all the applicants contained in the affidavit which he read out to the court to strengthen his submission.
According to the lead defence, the applications are supported by twenty-six paragraphs of affidavits in support which they relied on, arguing that the offences which the suspects are detained charged and arraigned are all bailable offences.
Lawyer Camara further contended that investigation into the case is concluded which is why the state filed new indictment which is a clear indication that they are ready and willing to prosecute the case.
The suspects, according to the lead counsel have put sufficient material before the court to grant them bail citing Sections 19 Sub (5) and 24 Sub (3) of the Constitution as well as Section 99 of the Criminal Procedure Code to back his argument.
The matter at that point was adjourned to Friday 14 February when the state is expected to reply and possibly ruling on bail.
The suspects are, Abdou Njie, Ebrima Kitim Jarju, Sheriffo Sonko, Hagi Suwaneh, Fanta Mballow, Karim Touray, Yankuba Darboe and Muctarr Ceesay.
According to the bill of indictment filed by the prosecutors, the suspects on January 26 at Sting Corner jointly and unlawfully took part in an unlawful assembly.
Police prosecutors further alleged that the suspects on the same day and place disregarded the proclamation made by the deputy Superintendent of police Alagie Jallow in the name of the president to disperse peacefully after the expiration of the proclamation and thereby committed and offence.
The bill of indictment further revealed that the suspect riotously assembled and unlawfully destroyed the students waiting shed by setting it ablaze.
The court was full to the capacity as the suspects were escorted by heavy riot police while loved ones, onlookers and family members chanting 3 years.
Counsel Rachael Y Mendy also for the accused persons informed the court they have filed a 26- paragraphed affidavit in support of their bail application, adding the4- paragraphed affidavit in opposition by the prosecution is defective because it contravenes Schedule One of the Evidence Act which according to her is a mandatory provision.
She averred that the prosecuting is conceding to their bail application as she told the court that there is nothing in the affidavit in opposition to their bail application that mentioned that the prosecution is objecting to the application.
“There is nothing in the affidavit in opposition denying the averments in our affidavit in opposition. The State is deemed to have admitted all the averments in the affidavit in support,” she said.
She said the last paragraph of the affidavit in opposition by the prosecution, paragraph four, it is mentioned that the bail application has been overtaken by events, saying “the averment that the bail application has been overtaken by events has no basis in law.”
She submitted that once a person is in custody, he or she can bring as many bail applications as possible irrespective of what stage the proceedings is. She told the court the averment by the prosecution does not mean they are opposing to the bail application. She urged the court to grant the accused persons bail saying there is nothing in the prosecution’s affidavit that opposed bail and therefore, they are conceding.
She submitted that the accused persons are presumed innocent until they are proven guilty and the burden of proving that the accused persons are not entitled to bail is on the prosecution.
“The prosecution in this case have failed to discharge that threshold. They have failed to provide this honourable court any fact or evidence which will convince this honourable court to refuse bail,” she said.
She said there is no formal indictment before the court. She said the purported indictment by the prosecution has not been given effect by the court as required by sections 115 and 116 of the Evidence Act. She said the two sections of the Evidence Act provide that indictments should be certified. She said once a document is filed and certified, it becomes a public document and it is from there the court can give effect to it.
In a counter argument, Lawyer Patrick Gomez who leads the prosecution team for the State said it is their position that the affidavit that they have filed did not violate paragraph seven of the First Schedule of the Evidence Act 1994. He told the court that their affidavit was signed and sworn to by a commissioner of oaths. In countering Lawyer Mendy’s submission, Lawyer Gomez said there is no requirement in law that the signature of the Commissioner of Oaths to be on the left side of the paper.
He said the defence argument that their affidavit was defective was inaccurate adding that even if it is defective, the court can still allow it as he relied on sections 87 and 88 of the Evidence Act. He said there is no argument from the defence that the affidavit was sworn to before a person duly authorised.
He said the law governing affidavit in opposition is clear in our jurisdiction. He added that it is settled that even a party did not file an affidavit in opposition does not in itself means that the party is conceding to the application.
He said averment four of the affidavit in opposition is sufficient to tell that they are opposing the bail application.
The number rises to nine after Bakary Camara alias Camaraba joined the seven men and one woman.
