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.