Court frees suspect of 3 capital offences

Tuesday, July 31, 2018

The High Court in Banjul presided over by Justice Ebrima Jaiteh recently acquitted and discharged one Seedy Faye after the prosecution failed to prove the charges of murder, rape and incest against him.

The prosecution alleged in count one that the accused person between the years 2012 and 2013 in the Kanifing Municipality unlawfully caused the death of a newborn baby by doing an act to wit: strangled the baby with his hand with the knowledge that death would be the probable consequence of his act.

The prosecution alleged in count two that the accused person in the years: 2011 and 2014 in the Kanifing municipality had unlawful carnal knowledge of a seventeen year old girl without her consent.

The accused person is alleged in count three (3) of incest.

The prosecution further alleged in count three that the accused person between the years of 2011 to 2014 in the Kanifing Municipality had carnal knowledge of his biological daughter, age seventeen (name withheld).

Delivering judgment, the presiding judge disclosed that the accused person was arraigned before the court on the 9th of July 2014 and pleaded not guilty to all three counts.

He said the prosecution tendered the cautionary and voluntary statements of the accused which the court rejected in a mini-trial and the prosecution called four (4) witnesses and the accused testified alone in his defence.

He further said upon the closed of the defence case, the State’s counsel and the Defence’s Counsel waived their rights to address the Court.

The trial judge disclosed that after carefully reading through all the testimonies adduced by the prosecution’s witnesses and accused person in the trial, he found out that there was no eyewitness testimony that there was a death of a human being.

The trial judge further disclosed that there was no iota evidence placed before the court that there was a post mortem report carried out, meaning there was no dead body recovered during the course of the investigation. 

Justice Jaiteh pointed out that the accused strongly denied the allegation of Pw1 as false, as he has never lived with Pw1 and never strangled any baby to death.

Justice Jaiteh stated that the two statements made by Pw1 were at best contradictory and does created doubts in the mind of the court as to which statement is true or false.

He further stated that it was apparent on the face of the record before the court that Pw1 never reported to the police or any one that the accused killed her newborn baby.

The trial judge noted that there was no eyewitness account to prove that Pw1 was pregnant and gave birth to a baby, adding that one Mamanding Jaiteh, a former wife of the accused who raised the alarm to Pw2 that she does not trust the relationship between the accused and Pw1, was never called as a witness to unravel what transpired and be tested on her suspicion between the accused and Pw1.

Justice Jaiteh revealed that Pw4, one Inspector Nfansu Sowe and Pw5 an Assistant Commissioner of police in charge of Criminal Investigation in the Kanifing Municipality, testified in the trial that including a team of investigators visited the alleged crime scene and conducted search but could not find any piece of evidence incriminating the accused person.

Justice Jaiteh remarked that the failure of the prosecution to recover any evidence linking the accused to the alleged offences have raised serious doubts as to whether Pw1 gave birth and her child was killed.

He pointed out that the prosecution did not lead any credible, cogent and compelling evidence in support of the essential ingredient that there was a death of a person.

Justice Jaiteh disclosed that he did not believe in the evidence of Pw1 as a credible witness and therefore the prosecution failed to prove the actus reus of murder, which is whether there was a death of a person.

He noted that since the prosecution failed to establish the actus reus of the offence of murder, it would be worthless and will amount to an academic exercise in futility, if he tries to venture into the issue of mens rea, which is whether the death was caused with malice aforethought and that the accused participated in or caused the said death.

Justice Jaiteh accordingly held that the prosecution could not prove the charge of murder beyond all reasonable doubt against the accused person.

With regard to count 2, the offence of rape contrary to Section 121 of the Criminal Code, Cap 10, Volume 3, laws of The Gambia.

Justice Jaiteh disclosed that there was no eyewitness account of the alleged rape, thus eliminating all the prospects of any direct evidence in support of the indictment.

He pointed out that since there was no eyewitness account of the rape, and upon careful perusal of the case file, there was no medical report or evidence presented before the court showing injury to the private part or the part of the body of Pw1 that she may have occasioned in a struggle or semen strains on her cloths or cloths of the accused or on the place where the alleged rape have been committed.

Justice Jaiteh disclosed that there was no evidence placed before the court that Pw1 hymen was ruptured or there was a slight penile penetration of her vagina.

He further disclosed that no evidence was led to suggest that the accused had sexual intercourse with Pw1, adding that Pw1 did not report the matter to the police until when she was arrested.

The trial judge pointed out that there was no evidence of corroboration in support of the alleged sexual intercourse; as such the provisions of Section 180(2) of the Evidence Act have not been satisfactorily complied with.

Justice Jaiteh remarked that there was no sexual intercourse involving the accused and Pw1 and therefore declared that the charge of rape was not proven beyond reasonable doubt against the accused person.

With regard to count three (3), the offence of incest, contrary to Section 148 (1) of the Criminal Code, Cap 10, Volume 3, laws of The Gambia.

Justice Jaiteh disclosed that he held the same view that there was no sexual intercourse between the accused and Pw1, premised on the same evidence adduced and consequently concluded that count three was not proved beyond all reasonable doubt.

He remarked that the entire evidence adduced by the prosecution raises strong suspicion that the accused person is liable for murder, rape and incest as alleged by the prosecution but the law is very straight on suspicion no matter how strong or high it may be can never be a basis for conviction.

He cited the case of IKO versus The State (2001) 14 NWLR (Pt.732), 221) and held that the prosecution did not prove their case with the certainty required by law.

Justice Ebrima Jaiteh therefore remarked that it is trite law that where the prosecution fails to prove its case beyond reasonable doubts, the court must proceed with the discharge and acquittal of the accused person.

The accused person, Seedy Faye was accordingly acquitted and discharge in all the three counts respectively.

Author: Bruce Asemota