Jan 18, 2013, 12:24 PM
According to him, the sentence would commence from March 2006, when the convicted person was first taken into custody.
However, the court acquitted and discharged his co-accused, Abdoulie Njie, of all the charges preferred against him.
Delivering the judgment, Justice Nkea stated that by the amended information dated and filed on 15 November 2011 pursuant to consent to prosecute dated 9 August 2011, the accused persons were jointly and severally charged with three counts and two counts of concealment of treason against both the accused persons and one count of perjury against the 2nd accused.
He added that challenged by the plea of the accused persons, the state adduced evidence in the testimonies of three witnesses and tendered four exhibits in support of the indictment.
The accused persons each gave sworn evidence as the lone witness in their defence and no exhibit was tendered by the defence, he said.
He said the brief facts of the case are that in March 2006, there was an attempted coup alleged to have been masterminded by the then chief of defence staff, Colonel Ndure Cham and others.
Others were arrested, investigated, and tried for their involvement in the treason plot, while some were convicted and sentenced accordingly, and others were discharged and acquitted, he added.
“It is alleged in counts 1 and 2 that both accused persons having had knowledge of the fact that Ndure Cham, Alieu Lowe, Hon Dembe Dem and others intended to state a coup to overthrow the democratically elected government of The Gambia failed to inform a Minister, a Magistrate, a Police Officer or a member of the Armed Forces, as they failed to take reasonable step to prevent the commission of the said offence,” he added.
In count 2, he went on, the 2nd accused was alleged to have given false testimony in a criminal case No, HC/208/06/Cs/37/A.
The prosecution case was centered on documentary evidence being the police statements of the accused persons recorded during investigations and part of the Court Proceeding in Criminal Case No.HC/208/06/Cs/37/A, the judge said.
He said the 1st accused made two statements to the police and these statements were in evidence as exhibits, and the 2nd accused on his part made three statements to the police and they were received in evidence after a voire dire as exhibits.
“It is trite law and well settled that documents tendered in court must demonstrate their purport and worth either ex-facie or through a witness,” Justice Nkea adduced.
“The sum total is that the prosecution failed to prove that the 2nd accused gave false testimony in a judicial proceeding when he testified in Criminal Case No HC/208/06/Cs/37/A,” the judge stated in his judgment.
“Thus it could not also be established that the 2nd accused knowingly gave false testimony and that false testimony related to a material fact at issue in that proceeding. Thus the prosecution failed to prove every element of the offence of perjury in count 3 against the 2nd accused, and on this count, I would acquit him,” he declared.
He said on count 1 and 2, which was the offence of concealment of treason, the prosecution must establish beyond reasonable doubt that the accused persons, knew that Ndure Cham, Alieu Lowe and Hon. Demba Dem and others intended to commit treason, and that the accused persons failed to use other reasonable endeavours to prevent its commission.
“I have reproduced the above pieces of evidence to expose the fact that even though the 1st accused got information about the 2006 treason plot, he made an honest and genuine effort to inform not just any member of the armed forces, but the commander of state guard,” he said.
The recording officer, who testified as PW1 did not lead any evidence to show that he investigated these allegations by the 1st accused and found them to be false, he stated.
He said PW1 did not lead any evidence to suggest that he confronted the 1st accused with Serign Modou Njie to confirm or otherwise deny these assertions. Commander Serign Modou Njie was also never called as a witness in this case.
The effect was that these pieces of evidence remain uncontroverted as they were never challenged either by cross-examination or by any other piece of evidence on record, he added.
“The law as we know is that uncontroverted and unchallenged evidence shall be taken as establishing the truth of the facts alleged. I must therefore hold as established facts that the 1st accused, Abdoulie Njie, after knowing of the 2006 treason plot did inform Serign Modou Njie, the then Commander of State Guard, and this I hold as a fact,” Justice Nkea said.
“Having informed the Commander of State Guard, I am satisfied that the 1st accused acted within the law by informing a member of the armed forces, and this I shall also hold as a fact,” said the judge.
From the above, it was clear to him that the charges in counts 1 and 2 were not borne out by the evidence on record as far as they relate to the 1st accused person, and for those reason, he acquitted him on both counts.
As for the 2nd accused, Alieu Lowe, he added, there was evidence in exhibit “C-C1” that he was present when Alieu Jobe was informing the 1st accused of the impending coup.
Furthermore, the evidence in exhibits “A-B” shows that the 2nd accused had a close family relationship with Alieu Jobe and that at the behest of Alieu Jobe, he had gone to Gunjur on 21 March 2006 where he met with, and gave D5, 000 to Colonel Ndure Cham near the small mosque.
“He would join this fugitive soldier in a taxi down to Brikama and would later spend the night with him at Farato,” he said.
There was, therefore, compelling and cogent pieces of circumstantial evidence to complement the fact that the 2nd accused had full knowledge of the treason plot, he added.
“In the particular circumstances of this case, it seems to me that the 2nd accused knew that Colonel Ndure Cham was involving in the treason plot, and these I shall hold as facts,” the judge indicated.
It was for these above reasons that he reach the conclusion that the 2nd accused knew that there was a treason plot by Ndure Cham and others, and that he failed to inform a minister, a magistrate, a police officer, or a member of the armed forces just as he failed to endeavour to prevent the commission of the said offence, he said.
“As a result of the foregoing, I am satisfied that the prosecution had proved its case with certainty required by law on counts 1 and 2 as it affects the 2nd accused person,” stated the judge.