Lamin Jobarteh, the Counsel for the applicant Musa Suso yesterday submitted at the High Court a motion regarding the summons of notice to produce a document, dated 3rd March 2009, that was supported by an affidavit.
According to Counsel Jobarteh, the application was predicated on Section 24-3c and Section 133 of the constitution that relates that "every person charged with a criminal offence should be given the necessary time and facility to prepare his or her defence".
Counsel Jobarteh, however, asserted that the required preparation cannot be done without time and facility accorded to the accused.
Lawyer Jobarteh elucidated that the particulars of the offence in count one named David Colley and
The particulars on count three, according to Counsel Jobarteh states the said mentioned names in count two except Ndey Conteh and Batch Fye, who were referred to in the particulars of count three in respect of a "dead bull that had been taken to Mile II Prison by David Colley".
He further stated that count four named Ben Jammeh, Burma Dibba and Sidia Jatta who were referred to in the particulars of the offence in connection to painting of trucks, and that statements have been obtained from all of them.
Foremost in this application submitted by the Counsel of the applicant is that there cannot be sufficient defence without the necessary facility and statement of the individuals referred to on each of the particulars of the offence as provided in Section 24- 3 (c ) of the constitution, which Counsel Jobarteh submitted would be tantamount to the breach of the principles of natural justice.
Lawyer Jobarteh further submitted an account of the charge sheet filed on notice to produce the statements made by the names mentioned in various particulars of offence, together with the report of the police investigation on Burama Dibba and David Colley, but the prosecution refused on the ground as argued by the police that the documents were classified.
He submitted further that he had been overruled several times on this issue, citing a case that such documents on the notice to produce touches on the national security. Lawyer Jobarteh further rebutted this claim, arguing that the recorded cassette tendered in court was played in open court to the hearing of the whole world.
He submitted that the motion in opposition filed by the respondent was calculated to mislead the court, which was sworn to by Superintendent Tijan Badgie, the prosecutor in this case at the Banjul Magistrate's Court.
Lawyer Jobarteh further submitted that looking at all the individuals who have all given their witness statements, he could not say whether it touches on the national security, adding that even the very police officer could not say how the statement touches on the national security.
In response, the Director of Public Prosecution, R.N Chenge informed the court that they had filed a motion in opposition, sworn to by one Tijan Badjie and they are relying on all the paragraphs contained therein. He said the trial in the magistrate court is provided in part (5) of the Criminal Procedure Code and that there is no where in the provision that in the magistrate court the prosecution should supply or file the statements or documents they are intending to use. He said it is the duty of the defence to show to the court that the documents they were asking for are the ones the prosecution intends to use.
DPP Chenge further submitted that if there is a provision in the CPC, which says at the trial in the magistrate court, the prosecution should supply the information to the defence. He urged the court to refuse the applicant's motion for notice to produce.
Hearing continues today.
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