By Yankuba Jallow & Louis Jobe
Yankuba Touray’s Lawyer has on Thursday, 28th May told the high court that his client should walk free since the prosecution have failed to prove Touray’s guilt.
“Next week, he (Yankuba Touray) should walk free. He should work free because it is the law. There is no evidence,” Lawyer Sisoho told Justice Jaiteh.
The prosecution have closed their case after calling nine witnesses in support of their case. After closing their case, Lawyer A. Sisoho made a ‘no case to answer’ submission in which he beseeched the court to acquit and discharge Touray.
Sisoho relied on the Constitution and other relevant laws to make the application for the court to acquit and discharge Mr. Touray. He said the ‘no case submission’ was made because the prosecution failed to prove essential elements of the alleged crime (murder). He added that the prosecution witnesses have been discredited for giving inconsistent testimonies.
Sisoho said the prosecution has the duty to bring substantial evidence to prove their case but they have failed to discharge this burden.
Sisoho said the prosecution is persecuting Touray instead of prosecuting him.
“This is not prosecution but persecution. This is persecution to the highest order because he refused to testify before the TRRC. Why are they leaving necessary witnesses behind?” Sisoho quizzed.
Touray is facing trial for the murder of Ousman Koro Ceesay, an ex-Minister of Finance under the regime of the APRC who ruled The Gambia with decrees.
He said it was the duty of the prosecution to prove the death of Koro Ceesay and establish that Mr. Touray was the murderer. He said none of the witnesses have proved that Ousman Koro Ceesay was dead.
He explained that the prosecution failed to prove important elements of the crime (murder).
He said prosecution witnesses 2, 3 and 4 have all confirmed to the court that they never saw Yankuba Touray with Koro Ceesay.
He said the only witness who said he saw the two together was Alagie Kanyi, the sixth prosecution witness. He said Kanyi did admit before the court that he has given inconsistent testimonies as well as has admitted telling lies while giving his testimony before the court. Sisoho cited an example where Kanyi said in his testimony that on the day, around 8 pm onwards, he was at Cape Point and in another testimony, he said he was at the residence of Mr. Touray.
“This is a puzzle and this has to be cleared. The same witness made different statements,” Sisoho said.
Sisoho said the prosecution witnesses gave conflicting testimonies while they gave their evidence before the court. He pointed out that prosecution witnesses 2, 3 and 4 all said they were at the accused person’s home on the day at various time but they never saw Kanyi at the premises of Mr Touray. He said PW3 – Captain Amat Jangum said he was at the residence of Mr Touray at 8 pm adding that this time the accused person was still at the State House.
“All of them said they never saw the star-witness, Alagie Kanyi,” the Lawyer said.
He said PW2 – Ensa Mendy and PW4 – Lamin Ndour, Mr Touray’s former driver, both testified that they were with Touray at the State House on that day.
The senior lawyer said the prosecution’s case failed because there is no evidence. He added that the actus reus of Murder was missing and the prosecution hasn’t proven it.
“There is no decease. There is no weapon. Even if there are a decease and weapon, they (the prosecution) have not connected it to the accused person,” he said.
He said the prosecution called on irrelevant witnesses to prove their case adding they only brought them to waste the court’s time.
“There testimonies have no value to the case,” defence Counsel said.
Sisoho put forward that even if death occurs, the prosecution has the duty to prove that the action or actions of the accused person, as mentioned in the indictment, killed Koro Ceesay. He reminded the court that in the particulars of the indictment, it was mentioned that Koro Ceesay was killed by Mr. Touray using pestle-like object and other dangerous weapons.
“No stick, no weapon and no knife have been tendered before the court. Absolutely, no weapon has been tendered before this court connecting the accused person to the ownership of that weapon,” Sisoho said.
He explained that the actus reus (guilty act, which is necessary to prove murder, has not been proven.
“They (the prosecution) must prove that a weapon was used. The best evidence is the physical evidence for the court to see and determine whether that object is capable of killing or harming,” Sisoho said.
He said none of the witnesses, except Alagie Kanyi, has testified that he saw the accused person with the decease.
He said none of the witnesses from prosecution witness one to six have proved that Ousman Koro Ceesay is dead. He added that PW9, who is also a relative of Koro Ceesay, testified that the last day he saw Koro was a week before the 23rd day of June 1995.
“There is no evidence before this court that Koro Ceesay is dead,” Sisoho said.
He told the court that the prosecution hasn’t provided the court with an autopsy report adding it is the scientific and the best conclusive report of dead. He added that the exhibit that the prosecution tendered (which is a supposed autopsy report) did not ascertain whether or not it was the body of Koro Ceesay. He said the exhibit provided ‘presumed to be the body of Koro Ceesay.’
Counsel Sisoho said Prosecution Witness 9, who is a medical doctor, has not led any evidence stating the remains were kept for DNA analyses or other tests to be conducted in order to ascertain whether it was Ceesay’s remains.
Sisoho reminded the court of the testimony of Prosecution Witness 7, the Chief of Kombo North, Momodou L.K. Bojang who said one Ebrima Njie, the then mechanical superintendent of police, one Njie who was also known as 11-Njie and one Alieu Njie who was the police photographer were all present at the accident scene where Koro Ceesay purportedly died.
Sisoho said if it were not for persecution, the State would have brought them as witnesses because they are very relevant to the case. He added that even if these people are not alive, the files are there with the Government and the State could have provided the court with them. Sisoho said prosecution witnesses 1, 5, 7 and 9 wasted the court’s time.
He said Prosecution Witness 8 brought only exhibit 3 leaving other documents behind.
He said Alagie Kanyi has made several inconsistent statements regarding issues and timelines adding that Kanyi has confirmed that before the court.
He said Kanyi made inconsistent statements before the TRRC and this can be found in the TRRC report tendered before the court from pages 52 to 55.
Sisoho said Kanyi in one of the versions said Koro Ceesay was killed by Edward Singhatey.
“He (Kanyi) said as soon as the deceased (Koro Ceesay) walked in, Edward Singhatey hit him ‘vip’ ‘vip’ from the back and he was on the ground completely dead,” Sisoho said.
Lawyer Sisoho said in another version Kanyi told the TRRC all of them hit Koro Ceesay.
“He (Kanyi) did not say who killed Koro Ceesay. The doubt should be resolved in favour of the accused person,” he said.
Sisoho continued with his submission saying while under cross-examination, Kanyi was asked ‘did you kill Mr. Koro Ceesay? He said ‘no’ and when he (Kanyi) was asked again did the accused (Touray) kill Koro Ceesay? He (Kanyi) said ‘no’.
“In the second scenario, Kanyi said ‘I hit, Edward Singhatey hit, Yankuba Touray hit, Tumbul Tamba hit him until he die,” Sisoho said.
“Which is which?” Sisoho asked.
He told the court the prosecution is persecuting Touray because material evidences are with the State (at the hospital). He added that the prosecution left out material witnesses to the case.
“Material evidence mentioned by the prosecution witnesses is there with the State, but they failed to bring them,” Sisoho said.
Sisoho said Ensa Mendy has lied twice before the court which he (Mendy) confirmed.
“Ensa Mendy said he went with (Captain) Jangum on patrol but when I asked Jangum, specifically, he said he never went with Ensa Mendy on patrol,” Sisoho said.
“With all honesty and fairness, there is no case to answer. I urged the court to so hold and acquit and discharge Mr. Yankuba Touray,” Sisoho concluded.
The matter was adjourned to the 2nd day of June 2020 between 12 pm to 1:30 pm for the prosecution to reply to the ‘no case to answer’ submission by the defence lawyer.
So far, the prosecution have called nine witnesses and have tendered three sets of documents in support of their case. They also tendered a photocopy of an autopsy prepared by late Dr Oldfield.
