Abdou Karim Jaiteh
A High Court judge in Banjul on Wednesday ordered the former junta member and one-time minister, Yankuba Touray to open his defence and tell his side of the story as the no-case submission made by his lawyer lacked merit.
The ruling came following a heated debate between the defence and the prosecution on no-case to answer submission after the prosecution declared the closure of their case fortnight ago.
Delivering his ruling after going through the arguments of both the prosecution and the defence, the trial judge intimated that he has listened keenly to the oral arguments on the issue of no case submission.
Justice Jaiteh observed that in his opinion, there is only one issue for determination which is, whether the suspect, has a case to answer, adding that in as much as he looked at the testimony, and the argument of the defence counsel in details in order to ensure fairness, he would only limit his comments, observation and findings to the law as it relates to no case submission in The Gambia.
After citing Sections and the relevant Provisions of the law earlier cited by the parties with regard to a no case, Justice Jaiteh observed that to determine there is no case to answer may properly be made and upheld, when there has been no evidence to prove an essential element of the alleged charge, or when the evidence adduced by the prosecution has been so discredited as a result of cross-examination or is so manifestly unreliable that no reasonable court could convict on it.
The practice of submission of no case to answer according to the presiding judge is known to the High Court in this jurisdiction and is widely used pursuant to Section 208 of the Criminal Procedure Code and the Practice Note of Lord Chief Justice Parker as applicable in England.
In this instance case, the trial Justice Jaiteh further observed that he needed not no deal with credibility of the witnesses or weight their evidences, noting that the question he has to determine is whether the evidence produced by the prosecution has been discredited in cross-examination or whether the evidence adduced is manifestly unreliable that it would not be safe to convict.
“A submission of no case was also a powerful reinforcement of the right of the accused to silence conferred upon him by the law. The question is, has the prosecution produced evidence to support an allegation of the offence charged, has the prosecution established a prima facie case against the accused person,” Justice Jaiteh observed as he cited the case of one Ceesay versus the Commissioner of Police in 1960-1993 to back up his verdict.
The trial judge further upheld that the question he should also asked himself is whether the prosecution has produced evidence to support an allegation of the offence charged and to that, he must hasten to answer in the positive.
“I believe the evidence adduced by the prosecution is such that it requires some explanation from the accused person of what actually happened at his house in Kololi on the fateful day in question. I must state clearly that the prosecution has adduced direct and circumstantial evidence before this honourable court linking the accused person to this case.
Therefore, a prima facie case has been made out against the accused person and the argument on the submission of no case to answer lacks merit and is hereby dismissed and the accused person is now called upon to open his defence,” Justice Jaiteh upheld, before adjourning the case to next week for defence.
The suspect, Yankuba Touray is being tried on a single count of murder since last year for his alleged participation in the murder of Ousman ‘Koro’ Ceesay, the late junta finance minister who mysteriously died 25 years ago. Since his arrest and subsequent arrest last year, Mr Touray is in detention at the state central prison at mile 2. He however denied any responsibility.