Magistrate says soldier has no case to answer

Monday, August 21, 2017

Magistrate Isatou Janneh-Njie of the Banjul Magistrates’ Court on 18 August 2017, acquitted and discharged Babucarr Njie, a serving soldier who was found with a pistol at the King Fahd Mosque in Banjul.

This development followed the no-case submission filed by the defence counsel, Sheriff Kumba Jobe, stating that the prosecution did not prove the elements of the offence charged to warrant the accused to enter into his defence.

In her ruling, Magistrate Janneh-Njie stated that on 14 February 2017, the accused pleaded not guilty to the charge of going armed in public.

She posited that the prosecution alleged that on 10 February 2017, between the hours of 13:30 and 14:45 in the city of Banjul, the accused was found armed with a Helwan pistol with eight live rounds without lawful occasion in such a manner as to cause terror to members of the public.

To prove its case, she adduced, the prosecution called five witnesses and tendered exhibits in support of the charge against the accused.

She further posited that at the close of the case of the prosecution, the defence filed a no-case submission pursuant to section 166 of the CPC, adding that the defence’s brief of argument was dated 13 July 2017, and filed on 18 July 2017.

She said the prosecution filed a reply to the defence’s submission on 26 July 2017, adding that there was no need to reproduce the submissions of both parties but reference would be made to them where necessary in the course of the ruling.

To succeed on a charge against the offence of going armed in public, she stated, the prosecution must establish the following: going armed in public, without lawful occasion and in such a manner that causes terror to any person.

She adduced that having carefully gone through the entire evidence adduced by the prosecution, and having also carefully considered the briefs of arguments filed by both defence counsel and the prosecution, and also bearing in mind the elements highlighted above, it was her view that the sole issue for determination was whether the prosecution had made out a prima facie case requiring the accused to be called to open his defence.

She further posited that a prima facie case is simply the establishment of a legally required rebuttable presumption.

She adduced that it is a flexible evidentiary standard that measures the effect of evidence as meeting or tending to meet the prosecution’s burden of proof on a given issue sufficient to justify a conviction, provided that such evidence is not rebutted by the defence.

The presiding magistrate said from this definition, to decide whether or not to uphold a no-case submission, the test to be applied is whether there is evidence which, if accepted, would provide evidence of each element of the charge.

She stated that even if there was such evidence, it might be so lacking in weight and reliability that it was open to the court as a matter of discretion to dismiss the charge.

She further adduced that she would look at the evidence of the prosecution and see whether there was evidence establishing the elements of the offence charged as highlighted above.

She stated that it was important to point out that it was not her duty to weigh and evaluate evidence or decide who was telling the truth or who was lying, adding that she was also not required to conclude that what the prosecution adduced was unreliable.

At this juncture, she cited the evidence of the second prosecution witness and posited that what the evidence of the prosecution established was that the accused whilst going to King Fahd Mosque for Friday prayers was in possession of a bag containing a pistol.

She added that the question to ask was whether being in possession of a weapon equates to going armed in public as envisaged by section 79 of the Criminal Code.

She said that going armed in public conveys the notion of going armed openly, adding that the weapon was concealed in the bag the accused had and it was not observable by the public.

She stated that the manner in which the accused was in possession of the weapon was not such as to cause fear or terror to any person of reasonable firmness and courage.

She added that on the facts relied upon by the prosecution to sustain the charge against the accused, it was clear beyond doubt that the ingredients of the offence charge were not present.

She therefore said that she would not call the accused to enter his defence.

She accordingly acquitted and discharged him.

Babucarr Njie therefore walked out of the courtroom as a free man.

Author: Dawda Faye