High Court in Banjul presided over by Justice Oleidi Uduma recently quashed the
conviction and sentence imposed on Lang Conteh by the Banjul Magistrates’
The conviction and sentence was passed on the appellant by Magistrate O. Cham on 5 May 2016 and the appellant was charged with a single count of stealing contrary to Section 245 of the Criminal Code.
The appellant was sentenced to two years imprisonment in hard labour and to pay restoration of D1,538,804.94 in default to serve one year imprisonment with hard labour.
The appellant being dissatisfied with the decision of the Banjul Magistrates’ Court filed a notice of appeal and prayed that the High Court to allow the appeal, quash the conviction and sentence of the appellant and enter a verdict of acquittal and discharge of the appellant.
In her judgment, Appellate Judge disclosed that the appellant’s counsel filed a written brief of argument dated and filed on 28 November 2016 but did not formulate any issues on 25 pages written argument.
She pointed out that the appellant rather canvassed extensively on the suit and gave a detailed analysis on the 4 grounds of appeal and the particulars of error in law.
She further pointed out that in the appellant’s counsel brief of arguments, the appellant exposed serious errors in law and fact which raised proper questions over legitimacy of the conviction of the accused.
She said the appellant’s counsel urged the Honourable Court to quash the entire judgment, conviction and sentence, acquit and discharge the appellant accordingly.
The appellate Judge said the state Counsel for the respondent B. Jeng did not file any respondent’s brief of argument as ordered by the court as the counsel informed the court that she did not file and did not intend to do so.
The Judge noted that, rather the State Counsel, adopted the appellant’s brief of argument in totality and that the state respondent has carefully gone through the records of proceedings, the amended grounds of appeal and the appellant’s brief of argument and has no reason what so ever to oppose the appellant prayers to set aside the judgment of the subordinate court.
The Judge averred that the State Counsel urged the court to uphold the appeal and to grant all the prayers of the appellant as stated in the Amended Notice of Appeal dated 15 June 2016.
Justice Uduma revealed that the Appellant’s Counsel, A. Fatty canvassed that the magistrate erred in law in misapplying the principle of proof beyond reasonable doubt by shifting the burden of proof on the appellant.
The counsel added that section 144(1) of the Evidence Act 1994 requires the prosecution to prove their case beyond reasonable doubt and that Section 24 of the 1997 Constitution provides that every person who is charged with a criminal offence shall be presumed innocent until he or she was proved or has pleaded guilty.
Justice Uduma said the counsel submitted that going by that provision, the constitution clearly places the burden of establishing the guilt of the accused on the prosecution.
That this provision also means that the accused is presumed innocent of the offence until the prosecution satisfied the court that the accused is guilty of the offence charged and that the court must be satisfied that the prosecution has proved its case beyond reasonable doubt before convicting an accused.
The Appellate Judge declared that she totally concurs with the appellant counsel’s submission on the report that the appellant (then accused) received money from Col. Sanneh and that it was important to locate the said Col. Sanneh to throw light on the issue of the money he supposedly gave to the accused and that Col. Sanneh could not be found and unless the exact amount Col. Sanneh allegedly gave the accused was known it would be difficult to charge the accused.
Furthermore, the appellate judge said she also concurs with the appellant’s counsel that the prosecution’s failure or otherwise inability to call Sanneh as witness or any other witnesses who may have witnessed Col. Sanneh giving the accused money, dealt a fatal blow to the prosecution’s case.
Justice Uduma pointed out that she concurred with the appellant counsel’s submission in the appellant’s brief of argument that the standard of proof was proof beyond reasonable doubt and where there was doubt the same must be resolved in favour of the accused person and that the trial magistrate erred by not resolving the doubt in favour of the accused person.
Justice Uduma declared that it was settled law that where there was any doubt in a criminal trial, the doubt must be resolved in the favour of the accused citing the case of Batch Samba Faye versus The State.
The Appellate Judge accordingly acquitted and discharged the appellant.