By Nelson Manneh
Counsel Kimbeng T. Tah, who appeared for the State in the case of retired Captain Yankuba Touray has on Wednesday asked the Court not to allow the defendant to testify in his case.
He made the argument after Abdoulie Sisoho, the Counsel for Yankuba Touray on Wednesday 19th August 2020 applied for the court to allow his client to testify in his case.
Counsel Sisoho told the court that he has two more witnesses who are supposed to testify before the court, but they are abroad and could not make it and that is why he is applying for the court to allow the accused person to testify.
Counsel Abdoulie Sisoho initially 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.
Justice Ebrima Jaiteh of the Banjul High Court dismissed Counsel Abdoulie Sisoho’s application for the court to grant three of his witnesses’ virtual hearing.
Counsel Kimbeng T. Tah said if the accused person wanted to testify in his own case, he (the accused) should have been the first person to give his testimony as the first defence witness but cannot testify after two of the defence witnesses have already given their evidence before the court.
“If the accused person has shown the desire to testify before the court, he would have testified first and am sure that the Defence is aware of that,” he said.
The state Counsel argued that according to section 240 sub-section 4 of the CPC, an accused can open his defence and first testify but cannot give any evidence before the court after another witness has testified; adding that subsection 4 is a mandatory requirement.
“The witness is always present in court and has listened to the testimonies of the Defence witnesses who have testified before the court, the principle of law and natural justices supposed that a person who wants to testify in his own case should be the first Defence witness,” he said.
Counsel T. Tah argued that if the other Defence witnesses have not testified before the court, the State would not have objected to the application made by the defence, but in this circumstance, the accused was awarded his right to testify first as DW1 and therefore he can no longer testify in the case.
The court at this point adjourned the matter to today at 11 am for the defence to respond to the objection made by the prosecution for the accused person not to testify in the case.
53-year-old Touray was a long-serving Minister of Local Government and Lands. Retired Captain Touray was also a member of the Armed Forces Provisional Ruling Council (AFPRC) after they overthrew the PPP 30-year rule. The former military officer turned politician was accused of the murder of former Minister of Finance, Ousman Koro Ceesay under the AFPRC reign. The prosecution alleged that Touray (now a businessman) used a pestle-like weapon to murder Ceesay in June 1995 at his (Touray’s) residence. Touray denied any wrongdoing as he pleaded his constitutional immunity, but the court entered a plea of not guilty for him.