“When I look at the documentary evidence before the court against both accused persons, it immediately seems to me that the prosecution has made out a prima facie case requiring all accused persons to enter a defence. And I rule, therefore, that the submission of no-case by counsel for the 1st and 2nd accused persons is hereby overruled,” presiding judge Justice Emmanuel Nkea declared.
“I find that there is a prima facie case made out against all the accused persons herein sufficient to call on them to enter a defence. And I call upon the accused persons to give their evidence in defence,” he said.
Alhagie Jobe was arraigned on a five-count charge of making an act with seditious intention, seditious publication, and possession of seditious publication, giving false information to a public servant, and reckless and negligent, while Mbye Bittaye was arraigned on a single count of making preparation to do an act with seditious intention.
Justice Nkea, in his ruling stated, among other things, that the ruling on a no-case submission was moved by the defence on behalf of both accused persons.
The summation of the arguments was that the evidence presented by the prosecution does not reveal any incriminating acts or omissions against the 1st and 2nd accused persons, he said.
“I listened carefully to K. Tom, the learned state counsel; who urged upon court to avert its mind to the fact, and rightly so too, that the test to be applied at this stage is not proof beyond reasonable doubt, but rather whether upon the evidence, there is need for the accused persons to offer an explanation to the charges made against them,” the judge said.
“I agree entirely with the state counsel, and as I held in a plethora of cases before, a prima facie case is simply the establishment of a legally required rebuttable presumption.
“It is a flexible evidentiary standard that measures the effect of evidence as meeting, or tending to meet, the prosecution’s burden of proof on a given issue sufficient to justify a conviction, provided that such evidence is not rebutted by the defence,” the judge stated.
“I affirm in this ruling that, in deciding whether or not to uphold a no-case submission, the test to be applied is whether there is evidence which, if accepted, would provide evidence of each element of the offence charged.
“As such where a court comes to the conclusion that the prosecution’s evidence taken at its highest is such that a court could not properly convict on it, it is its duty, on a submission being made, or suo motu to uphold the no-case submission,” he added.
He continued that where, however, the prosecution’s evidence was such that its strength or weakness depended on the view to be taken on other matters, and where on one possible view of the facts there was evidence on which a court could properly come to the conclusion that the accused person was guilty, then the court should allow the matter to be tried.
““The test, as I have pointed out, is whether the accused persons could lawfully be convicted, and a trial court at this stage is required to take into account all inferences, most favourable to the prosecution, which could reasonably be drawn from the primary facts.
“And even though there may be other inferences to be drawn by the court which are consistent with innocence, it does not follow from that, that the accused persons should be discharged,” he added.
“When I look at the documentary evidence before the court against both accused persons, it immediately seems to me that the prosecution has made out a prima facie case requiring all accused persons to enter a defence.
“And I rule, therefore, that the submission of no-case by counsel for the 1st and 2nd accused persons is hereby overruled,” said the Justice Nkea.
“I find that there is a prima facie case made out against all the accused persons herein sufficient to call on them to enter a defence. And I call upon the accused persons to give their evidence in defence,” he said.
The case was adjourned to 28 November 2013, for defence.
