Prosecution urges court to ask Yankuba to open defence

Jun 3, 2020, 2:05 PM | Article By: Dawda Faye

A.M. Yusuf, state counsel, yesterday urged the High Court in Banjul before Justice Ebrima Jaiteh to ask Yankuba Touray, who is charged with murder, to open his defence. This followed the no-case submission made by Defence Counsel  Sissoho on behalf of Yankuba.

A.M. Yusuf told the court that the accused is facing a murder charge in respect of one Koro Ceesay. He said that several witnesses had been led and exhibits tendered. He noted that at the closure of the case of the prosecution, the defence made a no-case submission.

He further adduced that the defence stated that there was nothing before the court to warrant the accused to open his defence, adding that the defence made an application relying on Section 166 of the Criminal Procedure Code.

At this juncture, he cited Cap 5 of the CPC which includes Sections 166 and 175 of the CPC, noting that in order to lend friendship and unanimity and ministers of the temple of justice, they would not wish the court to dismiss the application of the defence.

He urged the court to listen to all the applications pursuant to Section 208 of the CPC which is relevant to a no-case submission. “There are several judicial authorities warning the court not to discharge an accused person after making a no-case submission. It is clear in the records that the evidence before the court requires some explanation from the accused,” he submitted.

He further argued that a submission of no-case to answer may only be properly made or upheld where there is no evidence to prove an element, adding that when the evidence of witnesses are so weak during cross-examination or they are unreliable, no reasonable tribunal can convict the accused.

He added that the evidence so far led established all the essential elements of the offence charged. He adduced that the witnesses had not been discredited during the course of cross-examination. “When a no-case is made, what is expected of the prosecution is to show that there is a prima facie case which will warrant the accused to enter his defence,” he submitted.

He further said that during the course of the trial, nine witnesses were called and those whose evidence were relevant were Ensa Mendy, Amat Jawla, Lamin Ndure and Alagie Kanyi, whose evidence he said was relevant and it led to the death of the deceased in Yankuba’s residence. He added that Alagie Kanyi had told the court that Yankuba Touray, Edward Singhateh, Peter Singhateh and three others beat the deceased to death in the residence of the accused.

He further stated that Alagie Kanyi also testified that after Koro Ceesay was killed, they left the body in the custody of Yankuba, Edward and Peter Singhateh, noting that there was nothing to the contrary before the court.  He said that at this stage the court should not attach weight to the evidence nor was it invited to consider the credibility of the witnesses.

He adduced that there is a case to answer and the charge against the accused which is murder. He submitted that the element of the offence of murder was whether the accused had caused the death or whether the cause of death was afterthought. He referred the court to the testimony of Alagie Kanyi. “The defence asked which of the beatings killed the deceased. I refer the court to Section 33 (A) of the Criminal Code. Has the evidence of the witnesses been discredited?  The evidence led before the court on the face of it is reliable,” he argued.

At this juncture, he referred to exhibit 3 which was tendered during cross-examination of Alagie Kanyi.  “The defence argued that there is no evidence of death of Koro Ceesay.  Alagie Kanyi had confirmed that Koro Ceesay had been killed. There is no law that death should be always confirmed by a scientific way,” he noted.

He countered that the testimonies of the witnesses were relevant because PW 2 and PW 3 confirmed that they were in the house of the accused at various times.  “Based on the argument of the defence, Koro Ceesay is dead. We urge the court to uphold our submission and to discountenance the submission of the defence, and call the accused to enter his defence,” he said.

On points of law, Counsel Sissoho countered that the prosecution stated that Section 166 of the CPC was not relevant in making a no-case submission, arguing that Section 166 of the CPC could be applied by the High Court or the Magistrate Court.

He challenged one of the Nigerian authorities cited by the prosecution. He said he did not agree with the state counsel. “The court should evaluate all the pieces of evidence of the witnesses. There must be a declaration of death,” he told the court.

Justice Jaiteh would on the 10th June, 2020, rule whether Yankuba has a case to answer or not.