State expresses intention to appeal acquittal of rape suspect

Friday, June 08, 2018

The State recently appealed against the acquittal of one Nino Jatta, a rape suspect who was recently acquitted and discharged by Justice Ebrima Jaiteh at the High Court in Banjul.

The suspect was on Monday, 28th of May 2018, acquitted and discharged by Justice Ebrima Jaiteh after the prosecution failed to prove the offence of rape against him.

Delivering judgment, the trial judge disclosed that the accused person was charged with a single count of rape, contrary to Section 121 of the Criminal Code, Cap 10:01, Volume 3, Laws of The Gambia and the particulars of offence alleged that on the 17th May 2014 at Madina Salam village in Kombo South District had unlawful carnal knowledge of an 18 years old girl (name withheld) without her consent.

The trial judge further disclosed that the accused person was arraigned before the court on the 21st day of June 2016 and he pleaded not guilty to the charge.

Justice Jaiteh asserted that the prosecution called six (6) witnesses and tendered medical report into evidence to prove the allegation leveled against the accused person who testified alone in his defence, tendered one exhibit marked as Exhibit D1 and denied he raped the alleged victim.

The trial judge revealed that at the close of the defence case, with the consent of both counsels, written briefs of arguments were ordered, exchanged and adopted.

Justice Ebrima Jaiteh averred that the prosecutrix (the alleged victim) in clear evidence complained that the accused person had carnal knowledge of her without her consent and with force by kicking her legs and she fell on the ground.

The trial judge further averred that it is the position of the law in Section 180 (2) of the Evidence Act 1994 which makes it statutorily mandatory for the court to seek for corroboration of the evidence of the prosecutrix in sexual offence cases.

He pointed out that it is now common ground that in all cases where the law provides that corroboration is necessary, a conviction of an accused can only be valid when there is such corroborative evidence.   The trial judge said the testimonies of Pw2, Pw3 and Pw6 under cross-examination admitted they did not see the accused raped the prosecutrix and the prosecutrix on this fateful day went with her brothers to pick cashew nuts from a farm in Madina Salam and one of the said brothers testified in this trial and the testimony of pw4, a brother to the prosecutrix who said he went with pw2 to look for her also said he saw the accused person on top of his sister and when the accused saw them, he ran away.

Justice Jaiteh disclosed that he perused the content of defense Exhibit D1 (pw4 statement made at the police station), noting that content of the statement was grossly inconsistent from the oral statement he gave before the court.

The trial judge declared that the two accounts of the event created doubts as to which of the statement of Pw4 is true or false, noting that the evidence of pw4 was corrupted and contaminated, which no reasonable tribunal could have acted upon.

Justice Jaiteh disclosed that Pw2 admitted before the court that she did not see the accused raped the prosecutrix thus discrediting the testimony of Pw4 that he and Pw2 saw the accused on top of the prosecutrix.

The trial judge said the provisions of Section 180 (2) of the Evidence Act were not complied with as a result of the inconsistencies of the prosecution witnesses and lack of corroboration of the prosecutrix evidence.

He said that these inconsistencies point to the fact that the prosecutrix was not sexually assaulted, noting that the testimony of the 5th prosecution witness who examined the prosecutrix was contradictory and inconsistent to the medical report she prepared.

Justice Jaiteh stated that where an accused person denied the allegation of rape, the evidence that the court must look for, is for instance semen or blood stains on the clothes and underwear of the prosecutrix.

He further stated that the police officers that were tasked in investigating the case failed to conduct any investigation, noting that the police woefully failed to collect and present the underwear or the clothes of the alleged victim (prosecutrix) for forensic or laboratory examination to determine if there were any semen strains traceable to the accused person or blood strains on the accused person’s clothes traceable to the prosecutrix. 

He pointed out that where there are doubts in the mind of the court as to whether or not it is the accused that committed the offence, such doubts should be resolved in favour of the accused.

Justice Jaiteh therefore declared that the prosecution failed to link offence committed to the accused with the certainty required by law as a result it failed to prove the essential elements of the offence of rape beyond reasonable doubt.

The accused person Nino Jatta was accordingly acquitted and discharged.

Meanwhile following the acquittal of Nino Jatta, the prosecution led by E.R. Dougan made an application pursuant to Section 285 (E) of the Criminal Procedure Code that the State intends to appeal the judgment.

The presiding judge granted the application and ordered that Nino Jatta be released on bail in the sum of D20, 000.00 and one surety in like sum.

He further ordered that the surety must to depose to an affidavit of means in like sum and must deposit his or her Identity Card with the principal registrar of the court.

Author: Bruce Asemota