By Nelson Manneh
Justice Ebrima Jaiteh of the Banjul High Court has dismissed Yankuba Touray’s application for the court to grant three of his witnesses virtual hearing.
Chief Justice, Hassan B. Jallow acting under powers conferred on him by the Constitution issued a direction allowing for remote hearing.
Counsel Abdoulie Sisoho wanted the court to issue an order granting leave to the defence witnesses Mamie Minteh Touray, Bakary Minteh and Mariama Minteh to give their oral testimonies in this case “remote hearing”.
He also made an application for the court to issue an order directing the Judicial Secretary to make the necessary arrangements with the IT Department of the Judiciary to provide the necessary equipment and machinery for the hearing of the witnesses remotely.
The State was served with the motion on notice but did not file an affidavit in opposition. The State however opposed the application on points of law.
“I hold the strong view that the failure to file an affidavit in opposition does not mean the party consented to the facts deposed to if the opposing party intends to oppose the application on grounds of law,” Justice Jaiteh held.
Counsel Sisoho brought this application pursuant to paragraphs 5 and 6 of Direction Number 3 of 2020 by the Chief Justice. It was the submission of Counsel Sisoho that Paragraph 9 of Direction 3 of 2020 gives this Court the power to choose any of the cases to be heard on virtual hearing. Counsel Sisoho argued that the intended witnesses live in England and one of the witnesses lives in Dakar, Senegal and because of travel expenses, WHO guidelines, and mandatory quarantine for persons entering in The Gambia, it would be time-consuming and there is no certainty that the Coronavirus would be over any sooner and this Court can take judicial notice of the State of Public Emergency in The Gambia.
In response, the Principal State Counsel for the State, Abdul Maita Yusuf submitted that the application of this nature is at the discretion of the court, but cautioned that the discretion should be exercised within the ambits of the law. Counsel Yusuf argued that the application offended the clear provision of Section 24 of the 1997 Constitution which mandated that all trials shall be held in public and this case does not fall under the exceptions as provided under section 24 of the 1997 Constitution. It is the submission of Counsel Yusuf that the Practice Direction and Regulation are made pursuant to the provision of a Statute and in the case of conflict, a Statute shall prevail and that Statute are made pursuant to a provision of the Constitution and any conflict between a Statute and the Constitution, the Constitution prevails. Counsel Yusuf argued that a Practice Direction cannot override the provision of a Statute and thus urged this Court not to grant the prayers sought on the motion on notice.
In replying on points of of law, Counsel Sisoho submitted that the Court has the sole discretion as per Paragraph 9 of Direction 3 of 2020. Counsel Sisoho further submitted that Section 24 of the Constitution would not be infringed, as the virtual hearing would be a public hearing.
Justice Jaiteh said the application was specifically made pursuant to Paragraphs 5 and 6 of Direction 3 of 2020. Paragraph 5 of the Direction Remote Court hearing may be conducted without the physical appearance of the parties, Counsel and members of the public. Paragraph 6 of the Direction Each Court shall subject to paragraph 9 of this Direction identify and prioritise emergency matters.
The Judge said paragraph 5 made it clear remote court hearing may be conducted without the physical appearance of parties, counsel and the members of the public adding this is necessitated due to the Coronavirus pandemic to safeguard the health and safety of the public and court personnel while continuing to conduct court business. The trial Judge said legislation must be read as a whole and not in isolation.
After reading the provisions of paragraphs 6, 7, 8 and 9, the learned Judge said it is worthy to emphasise that emergency matters and non- emergency matters that are contemplated under Direction 3 of 2020 does not in my view include the offence of Murder.
“In as much as Paragraph 7 of Direction 3 of 2020 gives this Court the discretion to hear virtual court hearings, that discretion is limited to emergency matters and other appropriate matters as provided under paragraphs 8 and 9,” Jaiteh said.
Justice Jaiteh said the exercise of discretion of a court can only be proper if it is judicial and judicious: judicial because it is in accordance with the law; judicious because it is based on some reason borne out by the facts before the court. He added that an exercise of discretion not based on any reason cannot be judicious and therefore cannot be proper. He detailed that such a decision resulting from such exercise is certainly arbitrary and baseless.
Yankuba Touray is charged with the offence of murder contrary to section 187 of the Criminal Code and the current application before the court is to permit the defence witnesses to give their evidence in chief and be cross-examined and re-examined by “remote hearing”.
Justice Jaiteh said the application does not in his view fall under the emergency and appropriate matters contemplated by the drafters of Direction 3 of 2020.
“I hold the strong view that bail applications, emergency child protection and ex-parte restraining orders does not fall under the same category with murder and therefore murder is not an emergency matter which is appropriate for virtual court hearing,” Justice Jaiteh said.
He pointed out that section 24 (2) of the 1997 Constitution provides that “all proceedings of every Court and proceedings relating to the determination of the existence or extent of civil rights or obligations before any other authority including the announcement of the decision of the court or other authority shall be held in public” and murder is not provided under the proviso.
“I must re-state that cross-examination is a right that can be equated with the right of fair hearing and limitation associated with video link cannot be overemphasised,” Justice Jaiteh held, as he dismissed the application.
The case was adjourned to the 28th July at 2 pm for the continuation of hearing.
