Lamin S Camara, Attorney for Bubacarr Keita, alias "Bob" while moving a Motion accompanied with 45 paragraphs of Affidavit in support of the said motion told the court that one of the grounds contained in the motion is for the Bundung High Court to set aside its ruling on DNA examination.
He added that in the alternative they want a stay of execution of the said ruling pending the hearing and determination of the appeal filed at the Gambia Court of Appeal.
Mr. Keita is standing trial on a single count of rape, contrary to the laws of the Gambia, he pleaded not guilty as charged.
It would be recalled that Justice Momodou SM Jallow of the Bundung High Court on the 7th of July, 2022, granted an application from the State for a DNA test between the accused person, the deceased child, the sixteen year old rape survivor (PW8), and one Pa Modou Johm respectively.
During his submission on the motion filed by the defence, lawyer Camara said one of the requests stated in the motion is for the ruling of the Bundung High Court on the 7th July, 2022 to be set aside.
"My lord there is a motion before this court, dated on the 18th of July, 2022 and returned on the same day. The said motion is seeking for four prayers and prayers 1 and 2 are in the alternative to prayers 3 and 4," said Counsel.
It is the contention of the defence that the prosecution have not complied with the order of the court and are therefore wasting the time of the court. The court should thus set aside this ruling and proceed to the substantive matter.
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Camara said: "My lord it is the contention of the applicant that the order of the 7th of July, 2022 has still not been complied with by the respondent that sought the order from this honourable court, therefore they are wasting this court's time and it ought to be set aside and we proceed to the substantive matter."
The order that the defence are referring to is the order of the court to extract blood samples from baby Muhammed (son of the alleged rape survivor - now deceased) on 7th July, 2022 pursuant to the application of the prosecution. In short, the defence are submitting that the prosecution applied for an order which was granted by the court yet they did not comply with the order of the court.
Defence counsel pointed out that the prosecution claim that they have substantially complied with the court order and submitted that "compliance with an order of the court no matter how substantial, does not amount to full compliance of the court order."
He reminded the court that samples were taken from the accused Bubacarr Keita and Pa Modou Johm but not from Baby Muhammed for up to two weeks. He does not regard this as substantial compliance and submits that the prosecution are wasting the time of the court.
"My lord the respondent is in contempt with his own order sought. So, he who comes with equity must come with clean hands," he finally argued.
Meanwhile, the defence will continue their submissions on the motion on Monday 25th July, 2022.
