Sep 18, 2012, 1:34 PM
Having carefully gone through the evidence of the prosecution witnesses, and the no-case submission made by the defence counsel, and also the reply by the prosecution, it was her view that the sole issue for determination at this point was whether the prosecution had made a prima facie case requiring the accused person to be called to open his defence.
It was important to determine whether a prime facie case was made by the prosecutor or not.
To deal with what was indicated on the charge sheet as what the accused said, was different from what the prosecution witnesses said the accused actually said.
Magistrate Janneh added that it was clearly from the evidence presented that none of the prosecution witnesses stated that the accused person said: “Why not paste the said photo of H.E the President on the Sky?” as indicated on the charge sheet, but instead the witnesses stated that the accused person said: “If you like or wish, paste the photo of H.E the President on the Sky”.
She asked whether variance in the charge sheet, and the evidence presented before the court had any effect on the offence with which the accused was being tried for.
In her view, there was no variance because the accused was clear about the offence he was being charged with.
One must have regards to the real substance of the evidence presented and not be swayed by the form in which it may be dressed up, so far as it was clear to the accused as to what he was being tried for.
“The real flesh and bones are more important than the clothes with which they may be covered,” Magistrate Janneh stated.
A prima facie case was simply the establishment of a legally required rebuttable presumption.
To decide whether or not to uphold a no-case submission, the test to be applied was whether there was evidence which, if accepted, would provide evidence of each element of the charge.
Magistrate Janneh added that the statements uttered by the accused person: “If you like, you can paste this photo up to the Sky. I do not care about that,” and “the President cannot write because he does not write,” were uttered against the person of the President, and they had the tendency to excite disaffection and ill-will against the person of the President.
She said the statements in her opinion could also bring contempt, such as lack of respect or reverence against the person of the President.
“I therefore overrule the submission of no-case by the defence counsel on behalf of the accused person. I find that there is a prima facie case made out against the accused that is sufficient to call upon him to enter a defence. Accordingly, I call upon the accused person to enter his defence,” Magistrate Janneh told the court.
The case was adjourned to 25 March 2014.
Police prosecutor Sergeant 3560 Colley represented the IGP.