One
Malick Mbenga was on 22 November 2018 acquitted and discharged by the High
Court in Banjul, presided over by Justice Ebrima Jaiteh after the prosecution
failed to prove the charge against him.
The
accused Malick Mbenga was charged with a single count of murder contrary to
Section 187 of the Criminal Code, Cap. 10: 01, Volume 3, Laws of The Gambia.
The
prosecution had alleged that the accused on the 18th February 2014 at Kololi
Njago, in The Gambia with malice afore thought, caused the death of one
Muhamed Shuaibu Jallow by stabbing him with a broken bottle in his neck.
The
accused was arraigned before the court on the 19th May 2014 and pleaded not
guilty and the prosecution called seven witnesses and tendered the cautionary
& voluntary statements, a broken bottle and a post mortem report.
In
his ruling yesterday, the trial judge stated that the following judges presided
over the trial and they were: Justice E.A. Amadi; Justice E.O. Otaba and
Justice Agboola. He said he was the fourth judge to preside over the trial.
He
disclosed that being the succeeding judge, it is not permissible by law that he
continues with the hearing of the case and adopt the proceedings to write the
judgment as encapsulated in Section 5(3) of the High Court Practice Direction
2013, which states that: “A succeeding judge shall not continue with the
hearing of a crime cause and shall not adopt the proceedings to write a
judgment. All such cases must be heard de novo.”
Justice
Jaiteh disclosed that premised on High Court Practice Direction, he ordered a
trial de novo in the case on the 23rd of October, 2018, and the accused person
was re-arraigned on the same charge of murder on the 30th of October, 2018 and
he pleaded not guilty.
He
further disclosed that the prosecution called the investigating police
officer,Yerro Saidy, as Pw1 who obtained the voluntary and cautionary
statements of the accused person, which were admitted into evidence and marked
as exhibits PDN1 & PDN2.
Justice
Jaiteh averred that the 2nd prosecution witness was Momodou Lamin Jammeh, a
senior laboratory scientist and head of Histopathology at Edward Francis Small
Teaching Hospital in Banjul. The post mortem report was tendered and admitted
into evidence and marked as Exhibit PDN3.
He
further averred that on the 8th of November, 2018, the prosecution applied to
the court for witness’ summons to be issued to the following persons:
Halimatou Difan of Kololi; Aminata Camara of Kololi Njago; Modou Lamin Kebbeh of
Kerr Serign and Omar Jammeh of Yundum, which was granted.
Justice
Jaiteh stated that the said witnesses never appeared in court to testify, as
they could not be traced. On the 21st of November, 2018, the case was set for
hearing of Pw3’s evidence in chief, but the prosecution informed the court that
he and the police have personally done all they could to bring the witnesses to
court but to no avail and thereby leave the matter at the mercy of the court.
Justice
Jaiteh revealed that the accused person’s counsel, S. Jallow did not object to
the prosecution’s submission that the matter be left at the mercy of the court.
The
trial judge stated that the cardinal principle in criminal cases is that the
legal and evidential burden of proving every element of the offence beyond
reasonable doubt lies on the prosecution, adding that the prosecution can do so
by either direct or circumstantial evidence. He further stated that the law
requires that in either case the prosecution bears the legal burden of proving
all the elements of the offence necessary to establish the guilt of the accused
beyond reasonable doubt, citing the case of WOOLMINGTON V DPP (1935) A.C
426,461.
Justice
Jaiteh pointed out that the prosecution has the up-shifting burden of proving
all the ingredients of the offence with which the accused has been charged.
He
cited The Gambia Court of Appeal case of Mamadou Jallow versus Commissioner of
Police (1960-1993) GLR 39 where it held in the case of Moses Jua versus State (2010) 2 MJSC 152 AT 170: “That reasonable doubt which justify an acquittal is a
doubt based on reason arising from evidence or lack of it. It is a doubt which
a reasonable man or woman might entertain. It is not a fanciful doubt; it is
not an imaginary doubt, it is a doubt where a prudent man will hesitate before
acting in matters of importance to themselves.”
Justice
Jaiteh stated that in applying this legal principle to the facts and
circumstances of the case, the prosecution’s submission that the matter be left
at the mercy of the court is baseless hence the prosecution cannot shift its
legal and evidential burden on to the court.
The
trial judge further stated that if the prosecution cannot bring witnesses to
court, they ought to have closed their case or withdrawn the charge until such
a time they could bring their witnesses to court but to say that they leave the
case at the mercy of the court is not supported by any legal principle known in
law.
Justice
Jaiteh accordingly, closed the case of the prosecution on the strength of the
evidence of the two prosecution’s witnesses, noting that no prima facie case
was made out from the evidence of the two prosecution witnesses, citing Section
238 of the Criminal Procedure Code.
Justice
Jaiteh disclosed that the accused denied the charge leveled against him by the
prosecution and also denied his confessional statement made to the police.
He
further disclosed that from the totality of the evidence adduced in the trial,
there is no sufficient evidence to suggest that the accused person committed an
offence.
Justice
Jaiteh declared that the accused is entitled to his freedom as there was no
substance in the evidence before the court and he was accordingly acquitted and
discharged.