“The prosecution didn’t show any evidence as to any diplomatic channel the state is using to secure the attendance of the said witness,” Justice Jaiteh said yesterday.
During yesterday's court proceedings, the State Counsel filed an application seeking the court to grant them another adjournment with a view to enabling them bring from Senegal, the medical doctor who conducted the autopsy on (Baby Muhammed) to testify.
The state counsel in his submission argued that the medical doctor who is supposed to be PW8, is a public servant, so bringing him into the country requires a lot of bureaucracy and protocols, thus the state is doing everything possible in ensuring that he appears at the next adjournment date.
Meanwhile, the defence team led by C. Gaye objected to the state counsel’s application, saying: “We wish to submit that the state counsel didn’t provide any compelling reasons as to why the court should grant them an adjournment. The state counsel didn’t also tell the court the steps it had taken to secure the attendance of the witness. I therefore urge my lord, to refuse the application and to close their case since they are not ready to continue with the matter, thus we will be accordingly able to tell the court what our next step will be,” she said, citing Section 226 of the CPC to support her arguments.
In his ruling, Justice Jaiteh said: “Having carefully listened to the submission and “for and against” an adjournment, there is only one issue and that is whether the prosecution has provided compelling circumstances supported by good grounds. That’s the issue.”
According to him, the reason advanced by the prosecution is that the witness they intend to call resides outside the jurisdiction and he is a public servant and his movement involves bureaucracy and protocols.
“The prosecution didn’t show any evidence as to any diplomatic channel the state is using to secure the attendance of the said witness. I am mindful of the facts that the accused persons were first arraigned before the Kanifing Magistrate court on the 26th July 2022, and were subsequently remanded in prison custody pending their appearance before the High Court.”
“The accused first appeared before this honourable court on the 3rd of August 2022, and reappeared in the subsequent proceedings in court. If the state is actually serious and thought that PW8 is a material witness, they ought to have used the state diplomatic channel since July in order to secure the attendance of PW8. However, since July 2022 to date, the state has not shown this honourable court any efforts they have employed to secure the attendance of PW8,” he posited.
“In my view, the state has not provided any good and verifiable reasons to warrant this court to exercise its discretion. Discretion of the court must be exercised judicially and judiciously. In our instant case, there’s no judicious writing to warrant an adjournment. This, I shall hold as a fact. This is the third time that the state is seeking an adjournment on the grounds that they are working on getting PW8 in court.”
“In fact, the medical doctor who was supposed to be PW8 is not listed as a witness on the Bill of Indictment and there’s no summary of his evidence and the court doesn’t know the particulars of the witness the state sought to court. This case can’t be subjected to numerous adjournments while the accused persons are still remanded indefinitely. Justice is two ways traffic: For the state and for the accused person. The accused person can’t be admitted to bail and at the same time the case is stalled because the state is on a “fishing expedition” for witnesses.”
“From the foregoing, I am not persuaded and convinced by the submission of the prosecution in seeking an adjournment. The reasons for advances are not compelling as the state has more than three months to use the full machinery of state in order to secure the attendance of the witness from Dakar, Senegal, a neighbouring country.”
“For these reasons, I hereby resolve to rule in favour of the defence because the prosecution didn’t provide any compelling and verifiable reasons to warrant this honourable court to exercise its discretion and adjourn this matter. Since the state is unable to secure a witness in court, the proper action is to close the case of the prosecution. Therefore, the case of the prosecution is hereby closed.”
Reacting to the ruling, Defence Counsel C. Gaye, said: “My lord, thank you very much for that well considered ruling. In these circumstances since the case of the prosecution has been closed, the defence intends to file “a no case to answer submission.”
The case is adjourned to 17 November 2022 for the adoption of briefs.
