By Mamadou Dem
Lamin Camara, counsel for Sainey Marena, freelance Journalist, and Musa Sheriff, Editor in-Chief and Proprietor of the Voice Newspaper, yesterday, Thursday, 4 September, 2014 made a lengthy no case submission in the Conspiracy to Commit a Felony and Publication of False News trial of two journalists at the Banjul Magistrates’ Court.
In his submission before Magistrate Muhammed Krubally, the defence counsel said this is pursuant to Section 166 of the Criminal Procedure Code. “The application is to the effect that the prosecution has failed to establish a prima-facie against the accused persons and therefore we respectfully enjoined this Court to acquit and discharge the accused persons for the prosecution’s failure to meet the minimum benchmark required for the accused persons to enter their defence,” submitted the defence counsel.
Lawyer Camara further submitted that both accused persons are standing trial on ‘Conspiracy and Publication of false news’ and that the case relating to a no case submission is very clear in the sense that the prosecution is required to establish the offence charged i.e. ‘mens rea and actus rea’. He argued that the prosecution must advance evidence cogent and worthy of belief by the court or any other court for that matter and that the prosecution witnesses must not be thoroughly discredited under cross-examination.
“I submit on the contrary that this no case to answer should be upheld because regardless of the eight prosecution witnesses called by the prosecution, the prosecution woefully failed to establish the mens rea and actus rea of the offence,” said Lawyer Camara.
The defence counsel further argued that the prosecution has failed to advance cogent and reliable evidence worthy of believe by the court or any other tribunal to warrant the accused persons to enter their defence. He said, “The prosecution witnesses have been thoroughly discredited under cross-examination that no reasonable tribunal would believe in the testimonies.”
Counsel Camara submitted that for the offence of conspiracy to be sustainable against the accused persons, the prosecution must have proved the meeting of the minds of the accused persons for an illegal enterprise or through the meeting of the accused persons by a legal enterprise by illegal means.
For the offence of publication of false news, counsel added, the prosecution must prove that the offence was indeed false and the accused persons knew that it was false and have no reason to believe that it is true. “I respectfully submit that the proof of ingredients in count two is almost impossible because there is “no art to find the minds constructions on the face.”
The defence counsel cited the evidence adduced by prosecution witnesses, adding that the first prosecution witness and police officer testified that they investigated this matter and that what was reported on the Voice Newspaper (exhibit A) was false. “The statement of the second accused (Musa Sheriff) was never tendered in court,” he said.
Lawyer Camara told the Court that some of the witnesses testified that there are fifty eight green youth in Tanji but that none of them was present on the day of the rally, adding that Mafugi Ceesay, a reporter with the Voice, was never called as a witness to tell the court that the publication was false as alleged by Lamin Kanteh, the fourth prosecution witness.
After calculating the number of green youth mentioned by the prosecution witnesses, Lawyer Camara asked “Where are the 28 other green youth?”
He said “There is so much doubt, there is so many lacunae that no one can convict.”
Lawyer Camara, in his submission, told the Court that a summary of the prosecution witnesses is that they do not know where the rest of the other green youth was. “Where there is doubt in any case, the benefit goes to the accused persons,” he submitted.
At this stage, the defence counsel referred the court to Iyiola Omisore Versus the State, Court of Appeal decision contained in Nigerian Criminal Cases volume III 2008.
The defence finally submitted that the evidence of prosecution witnesses are tenuous, unreliable, discredited and unworthy of believe. “I therefore respectfully urged the court to uphold the no case submission, acquit and discharge the accused persons,” he concluded.
The case resumes on the 9th September (tomorrow) for the prosecution to reply to the defence’s no case to answer submission.