By Ousman A. Marong
The State Counsel in the trial of anti-government protesters “3 Years Jotna” leaders has told the court that the state is objecting to the bail application made by the defence lawyers.
Lawyer Patrick Gomez who represents the state has oppose the bail application submitted by the defense team before Justice Aminata Saho-Ceesay of the Banjul High Court on Tuesday.
The accused persons are facing trial on unlawful assembly, rioting after proclamation and rioters demolishing structures. They are yet to take their plea. They were first arraigned before the Kanifing Magistrate’s Court and the matter was adjourned to the High Court because the lower court lacks the power to try offences that attract life imprisonment sentences upon conviction.
Appearing before the high court on Tuesday, Defense Counsel Rachel Y. Mendy has informed the court that the defense have filed a 26- paragraphed affidavit in support of their bail application. She said the 4- 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. He 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,” Lawyer Mendy 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.
“The averment that the bail application has been overtaken by events has no basis in law,” she said.
She submitted that once a person is in custody, he or she can bring as many bail application as possible irrespective of what stage the proceedings is. She told the court that 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.
Lawyer Mendy 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 submitted.
The defense further submitted that there is no formal indictment before the court but a 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 also 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.
“The court cannot give effect to photocopies of documents as originals,” she said.
She said sections 87 of the Evidence Act is a general provision while section 93 (which is the First Schedule) is a specific provision and it is a mandatory provision. She relied on the recent Supreme Court case of Ya Kumba Jaiteh versus the Clerk of the National Assembly and others as said general provisions are inapplicable where there is a specific provision.
Lawyer Lamin S. Camara, a defense counsel also said the application for bail was premised on sections 19 (5) and 24 of the Constitution as well as section 99 (1) of the Criminal Procedure Code. He said the 1997 Constitution provides for the protection of liberty and dignity of people.
“One of the cardinal principles of our criminal justice system is the presumption of innocence regardless of the indictment before any court. This cardinal principle is enshrined in section 24 (3) of the Constitution,” he submitted.
Meanwhile, the court has adjourn the ruling on the bail application to Friday, 14 February.