Tuesday, August 20, 2019

‘Prosecution’s Attempt To Add Witnesses Tantamount To Trial By Ambush’-Lawyer Chime


By Yankuba Jallow

Emmanuel E. Chime, Lawyer for Yankuba Badjie, the first accused person in the trial involving former Intelligence Chiefs, has told the Banjul High Court presided over by Justice Kumba Sillah-Camara, that the notice of additional witnesses filed by the prosecution, tantamount to trial by ambush.

Chime made this statement when objecting to the Notice of Additional Witnesses, filed by the prosecution, dated the 20th day of March 2018, and served to him by the Court’s process server.

Lawyer Chime reminded the Court of its stance on the issue of serving the Defence with processes; that it should not be served late in order to provide the Defence with adequate time to respond; that the stance of the Court has been always relegated (compromised) by the prosecution by serving the Defence late.

Continuing with his objection, Lawyer Chime said the Notice of Additional Witnesses which the prosecution sought, is prejudicial. He relied on Section 234 of the Criminal Procedure Code that once a trial begins only a witness can be called further as an additional witness; that the intention of parliament (National Assembly) in relation to calling of additional witnesses under section 234 of the CPC, is that additional witness shall not be more than one witness.

“If the list of additional witnesses were important ab initio, they would have been on the substantive list”, he said.

He reminded the Court that the prosecution has filed in their list of witnesses in Court on the 10th day of November 2017, and on the 29th day of January 2017, they filed in list of additional witnesses. “The act of accepting more than one witness to the substantive witnesses is null and void”, he said.

He said the procedure taken by the prosecution to file in list of additional prosecution witnesses lacks legal backing. Lawyer Chime relied on certain cases and statutory laws such as Mutail v USA and Section 234 of the CPC, to back his argument. He said Section 234 of the CPC repeatedly emphasises the word ‘witness’ and not ‘witnesses’.

“The Intention of parliament would have been witnesses if the additional witness should be more than one, but instead the law states witness”, he said. “The prosecution witnesses in the substantive list were itemised after investigations were conducted. The additional witnesses being presently called are prejudicial to the defence of the first accused person. The goal post was shifted when the defence wanted to score a goal, to the disadvantage of the defence”, he said.

He related the issue of additional witnesses as a contract where a machine could not complete a task that it was projected to do in-house and the owner of the house hires another person to complete the task.

“We wish to unequivocally state, that the right of first accused person is being toiled up against the provision of Section 234 of the CPC”, he said. “The additional witness sought to be called by the name Seedy Saidy Bah, is coming on board as an additional witness because his name was mentioned by the thirteenth prosecution witness, as a bid to plaster a wall that the machine (PW13) has failed to plaster. He has been called to remedy that development”, he said.

Counsel Chime further referred the Court to the case of Seafood V Asher (1962) by the Kings Bench Division, which matter was presided over by Lord Dening, and where it was stated that a judge has a duty to find out what the intention of parliament was. Lawyer Chime argued that a judge should find out the constructive course (intention) of parliament in enacting the law; that Section 234 of the CPC is very emphatic about the issue of calling a witness and Section 235 of the CPC is emphatic on the cross-examination of prosecution witnesses.

“In a nutshell, Section 234 of the CPC provides for on additional witness and it should not be more than one”, he said.

Meanwhile, PW13 has told the Court that he has never seen Solo Sandeng, after he left the cell.

The case was adjourned to today at 1pm for continuation.

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