May 29, 2015, 12:08 PM
Ceesay applied for bail at the High Court following the dismissal of his bail application at the lower court.
Justice Abi also ordered for the accused to be arraigned within 7 days, failure which the accused may represent his application for bail for consideration.
Delivering his ruling on the bail application, Justice Simeone Ateh Abi said the applicant filed an originating summons on 6August 2015, praying for an order to be admitted to bail on such terms as the court may deem fit to make.
The originating summons was to ensure the applicant’s continued appearance in court to answer to the charge filed against him at the Banjul Magistrates Court.
He said the summon was supported by an affidavit of 32 paragraphs deposed to by the applicant himself, adding that defence counsel Combeh Gaye-Coker argued in support, whilst DPP SH Barkun argued in opposition.
“The law relating to grant of bail is fairly settled in this jurisdiction. The purpose of bail is to ensure the attendance of the applicant to stand his or her trial. Grant or refusal of bail is absolutely at the discretion of the court, which discretion must at all times be judicially and judiciously exercised.”
He added that though not exhaustive in themselves since one case of exercise of discretion could not be precedent for another, the court has generally accepted the following as necessary conditions to be considered in deciding whether or not to exercise its discretion in granting or refusing bail.
Those condition are: The nature of the offence and severity of the punishment; the quality of the evidence available; likelihood of the accused jumping bail; likelihood of the accused interfering with investigations or witnesses; the criminal record of the accused if any; and a likelihood of the repetition of the offence if granted bail.
“The learned DPP has said that since the applicant had said in her argument that Annexure A to the affidavit in opposition (which is the bill of indictment filed at the high court against the applicant) is not to be considered because the summons is brought relative to the charge at the Banjul Magistrate Court, which is exhibit AC1, to the affidavit in support, the necessary implication of that submission has been overtaken by events.
“It is not in doubt that Annexure A to the affidavit in opposition was filed after the filing of the originating summons. It has not been argued by the applicant that the state has no power to file it during the pendency of their application. I however agree with counsel Gaye-Coker that in so far as the charge pending before the Banjul Magistrate Court has not been withdrawn, this court cannot shut its eyes on it,” he added.
The mere fact that the applicant has not been called upon to plead to the fresh charges in Annexure A could not remove it from the consideration of the court in this application, the judge continued.
On whether the applicant is entitled to bail, Justice Abi said: “I must say that in point of fact and law, once the applicant is standing trial for an offence that is ordinarily bailable, he or she needs not specifically apply for bail, that being his or her entitlement. It is an entitlement that should only be denied for good reasons.”
Therefore, it behoves a respondent who opposes an application for bail to show good and sufficient reason why bail should be refused an applicant, who is not standing trial for a capital offence or an offence that carries a life-imprisonment term, Justice Abi went on.
He said some of the cardinal considerations in the applications for bail are the nature of the charges and severity of the punishment in the event that the applicant is convicted.
He said count 1, 2, 3, 4, 5 and 6 are brought under section 52(a) of the criminal code and a conviction, therefore, carries a minimum fine of D50,000 and maximum of D250,000 or imprisonment for not less than one year or both whilst count 7 carries a 2-year imprisonment.
He said both counsel agreed in oral submissions that the charges reflected in Annexure A to the affidavit in opposition are serious charges.
He said it was the submission of the learned DPP that the more serious the offences alleged against the applicant, the more likelihood of an applicant jumping bail if granted.
“I noted the fact that the applicant himself deposed to the affidavit in support personally, and has stated that the radio station he manages has a wide listener base. Whereas he has averred that he will not interfere with investigations or witnesses and he will not jump bail, I do not see any averment that if released on bail, the alleged offences, which border on the broadcast of certain information will not be repeated through the medium at the disposal of the applicant. If such a repetition is allowed to occur, it cannot be speculated what manner of effect it will have on the security of the nation.
“In view of the above, coupled with the undertaking of the learned DPP to expeditiously proceed with the hearing of the case against the applicant, I cannot at this stage exercise my discretion in favour of granting bail to the applicant.
“I will accordingly refuse the applicant bail at this stage; direct that the applicant remains in prison custody; and, order that the DPP proceed with the case against the applicant expeditiously,” he said.
“In view of the fact that the refusal of bail to the applicant in this instance is tied to the state’s position that they are ready and willing to proceed with the case, I will take cognizance of the fact that the applicant should not remain in custody, indeterminately, without the assurance of his being released on bail should the state fail to proceed with the trial as stated.
“I hereby additionally order that if the state fails to arraign the applicant within 7 days of this order. And in any event, not later than by Wednesday 26th August 2015, the applicant may represent his application for bail for consideration,” the high court judge declared.