By Kebba Jeffang
The state prosecutor B. Jaiteh on Thursday, 19th May, 2016 at the high court in Banjul applied under section 123 of the Criminal Procedure Code (CPC) to effect an amendment on the indictment bill in order to add 2 new accused persons with additional charges.
The application was granted by the presiding judge Justice Basiru Mahoney.
The court also granted bail to the two accused persons. Both accused persons were allowed to work on the fulfillment of their bail condition.
The state representative in the proceedings was B. Jaiteh whilst defence lawyers Musa Bachilly and Ebrima Kijera appeared for the accused persons.
Prosecutor Jaiteh, at this point, applied that they wished to recall their witnesses who had already testified in the case in pursuance of Section 123 of the Criminal Procedure Code (CPC). He said this will avail the opportunity to the defence as some of their clients are new in the trial.
However, Counsel Bachilly in objecting to such an application told the court that it is for the accused persons to apply for the witnesses who have already testified to be recalled for further examination. “It is my submission that the prosecution cannot apply to recall its witnesses who have already testified in court,” he submitted.
Also objecting, Counsel E. Kijera said Section 123 is a matter of discretion to the court. “It depends on us to apply to recall those witnesses but not for the prosecution,” he added.
At this juncture, the judge opined that it should be an opportunity for the defence if the prosecutor applies to recall the witnesses since the case has started with 3 people. “What do we do now?” asked the presiding judge.
In response, Lawyer Kijera said they will apply for the records of the past proceedings and if there is need for them to recall the witnesses they will make such an application. “We are aware of the legal implications but at this moment, it is not necessary,” said the defence counsel.
Lawyer Bachilly also added that if any evidence laid so far has an implication on any accused persons, then they will apply under Section 169 to recall the witnesses who have already testified. “We do not understand the prosecution’s application of recalling witnesses. Recall for what?” he asked.
The state counsel told court that the application under Section 123 is for further examination. He said some amendments have been made which prompted further evidence from the investigative panel.
“We therefore want to ask the court to use its powers to allow us recall witnesses for further examination, considering the additional charges. We urged your lordship to allow the application in the interest of fair hearing. The defence counsels have not laid any reasonable ground for the court to disregard the application,” said the state counsel.
However, Lawyer Bachilly said they have provided the court with the law and the prosecution should not be given the opportunity to examine the witnesses. He pointed out that recalling witnesses will bring in fresh evidence and will also take the case backward.
At this juncture, the trial judge said he will not deny or rule on the objection of the application. He said he will instead allow both parties to come with their formal arguments to address the court on whether the witnesses should be recalled or not.
Meanwhile, Counsel Bachilly, who is holding brief for Lawyer Lamin S. Camara, applied for bail for Joseph Gabidon, the 4th accused person.
In moving the application, the defence counsel said “May I apply for bail for the 4th and 6th accused persons under section 19th of the Constitution and 99 of CPC respectively. The charge against the 4th accused is a bailable offence. He is a Gambian who is ready to guarantee his appearance during the proceedings of this case. He is only involved in count one and pleaded not guilty to the said count. He has not been convicted or arraigned before in any of the court in this jurisdiction and anywhere in the world other than this trial and that he was first arraigned before Justice Abi of this high court and was granted bail, so meaning he is not at flight risk.”
He therefore urged the court to grant the 4th accused bail without putting down harsh conditions. He said he enjoins the court not to impose a stringent condition and that if he allowed bail, he urged the court to give one week to enable him to sort out his bail requirement before taking him to remand as the day is already late for him to conclude the process.
Applying for the 6th accused person, Matarr Bah, Lawyer Kijera submitted that he is applying under sections 19 of the Constitution and 99 of the CPC. He said the accused is charged with economic crime which is a bailable offence.
“He is an active member of the civil service and he is on police bail. He is currently on a nation-wide tour with the President but due to the respect he has for this honourable court, he has to come back to answer to the charges against him. He is not a flight risk either. I will ask this court to grant him bail and give him until next week to settle his bail condition and not to be remanded right away,” submitted counsel Kijera.
However, in his response, the state counsel said he left the matter to the discretion of the court.
The trial judge therefore granted bail to the 4th accused person in the sum of 2.5 million dalasis with 2 sureties and ordered him to submit his travelling documents with the registrar of the court.
As for the sixth accused, court granted him bail in the sum of 1 million dalasis with 2 sureties. He too is ordered to submit his traveling documents to the registrar.
The trial judge also granted the request for the accused persons to be given one week to finalise the process of fulfilling their bail conditions and gave them until next week Thursday, 26th May to conclude the bail conditions.
Consequently, the matter was at this juncture adjourned to 26th May 2016 for both parties to make addresses on the issue of whether or not to recall the prosecution witnesses who have already testified.