Ebrima Jaiteh of High Court in Banjul on Tuesday 6th March, 2018 acquitted and
discharged one Musa Jallow following a ruling of a no case to answer submission
filed by the defence.
The accused person, Musa Jallow was charged with the offence of rape contrary to section 121 of the Criminal Code, Cap 10, Volume 3, Laws of The Gambia.
The particulars of offence alleged that the accused person on or about the 28th day of February 2014 at Farato village in Western Coast Region of the Gambia had unlawful carnal knowledge of a seven year old girl (name withheld) without her consent.
The accused pleaded not guilty to the charge when he was arraigned before the Court on the 29th day of April 2015.
Delivering his ruling on the no case submission filed by the defence represented by Legal Aid lawyer D.P. Candia, the trial Judge disclosed that the prosecution called four witnesses and tendered the accused person’s cautionary and voluntary statements to discharge the burden of proof required in the case.
Justice Jaiteh further disclosed that upon the close of the prosecution’s case, the defence raised a no case submission and State Counsel K. Mbye waived their right to address the court.
The trial Judge revealed that after perusing the brief of argument filed by the defence counsel D.P. Candia and after carefully reading through all the testimonies adduced by the prosecution witnesses in the case he considered that there was only one issue for determination, which is whether the accused person has a case to answer.
He held that the law on no case submission in this jurisdiction is governed by section 238 of the Criminal Procedure Code Cap 10:01, volume 111, Revised Laws of The Gambia 2009.
He stated that the section provides thus “when the evidence of the witnesses for the prosecution has been concluded and the statement or evidence (if any) of the accused person has been given in evidence, the court, if it considers that there is no evidence that the accused person or any one of several accused persons committed the offence, shall, after hearing the counsel for the prosecution and for the defence, record the finding of not guilty”.
Justice Jaiteh said the question he determined was whether the evidence produced by the prosecution was discredited in cross-examination or whether the evidence adduced was manifestly unreliable that it would not be safe to convict.
He cited the case of Ceesay V Commissioner of Police [1960-1993] GLR on page 111 and pointed out that the question is whether the prosecution produced evidence to support an allegation on the offence charged? Has the prosecution establish a prima facie case against the accused persons.
The trial Judge said he examined all the evidence, all the exhibits tendered and most importantly, exhibits “A” and “B” which are the voluntary and cautionary statements and on these two statements, the accused person made a total denial of the charge of rape.
Justice Jaiteh further said that none of the prosecution witnesses testified to the effect that the accused had sexual intercourse with the alleged victim.
The trial Judge pointed out that the victim was never called by the prosecution as a witness to testify as to the truth of whether or not any sexual intercourse took place.
He further pointed out that the third prosecution’s witness was Saikou Janneh who testified that the victim was taken to Edward Francis Small Teaching Hospital for medical examination to determine the age.
Justice Jaiteh disclosed that the age determination of the victim is immaterial of the offence alleged and he attached no weight to it (exhibit “AS”).
Justice Jaiteh further disclosed that there was no eyewitness account to prove that there was rape or an element of rape, adding that the prosecution did not tender any medical report of the alleged rape. The trial Judge noted that the third prosecution’s witness who lives in the same compound where the offence is alleged to have been committed raised serious doubts as to whether the offence alleged was committed and gave a damaging testimony to the prosecution’s case under cross-examination.
Justice Jaiteh disclosed that in light of the evidence adduced by the prosecution, the prosecution did not lead any credible, cogent, and compelling evidence in support of the charge of rape against the accused person.
Justice Jaiteh averred that he did not find any evidence or the evidence of the ingredients of the offence or elements of it that can sustain or even secure a conviction on the charge.
He revealed that since he did not find any prima facie case against the accused person on this charge how can the accused person be expected to offer any explanation on this offence.
Justice Ebrima Jaiteh consequently accepted the defence submission of no case to answer and the accused person, Musa Jallow was accordingly acquitted and discharged.