Magistrate
Isatou Janneh-Njie of the Banjul Magistrates’ Court on 18 August 2017,
acquitted and discharged Babucarr Njie, a serving soldier who was found with a
pistol at the King Fahd Mosque in Banjul.
This
development followed the no-case submission filed by the defence counsel,
Sheriff Kumba Jobe, stating that the prosecution did not prove the elements of
the offence charged to warrant the accused to enter into his defence.
In
her ruling, Magistrate Janneh-Njie stated that on 14 February 2017, the accused
pleaded not guilty to the charge of going armed in public.
She
posited that the prosecution alleged that on 10 February 2017, between the
hours of 13:30 and 14:45 in the city of Banjul, the accused was found armed
with a Helwan pistol with eight live rounds without lawful occasion in such a
manner as to cause terror to members of the public.
To
prove its case, she adduced, the prosecution called five witnesses and tendered
exhibits in support of the charge against the accused.
She
further posited that at the close of the case of the prosecution, the defence
filed a no-case submission pursuant to section 166 of the CPC, adding that the
defence’s brief of argument was dated 13 July 2017, and filed on 18 July 2017.
She
said the prosecution filed a reply to the defence’s submission on 26 July 2017,
adding that there was no need to reproduce the submissions of both parties but
reference would be made to them where necessary in the course of the ruling.
To
succeed on a charge against the offence of going armed in public, she stated,
the prosecution must establish the following: going armed in public, without
lawful occasion and in such a manner that causes terror to any person.
She
adduced that having carefully gone through the entire evidence adduced by the
prosecution, and having also carefully considered the briefs of arguments filed
by both defence counsel and the prosecution, and also bearing in mind the
elements highlighted above, it was her view that the sole issue for
determination was whether the prosecution had made out a prima facie case
requiring the accused to be called to open his defence.
She
further posited that a prima facie case is simply the establishment of a
legally required rebuttable presumption.
She
adduced that it is a flexible evidentiary standard that measures the effect of
evidence as meeting or tending to meet the prosecution’s burden of proof on a
given issue sufficient to justify a conviction, provided that such evidence is
not rebutted by the defence.
The
presiding magistrate said from this definition, to decide whether or not to
uphold a no-case submission, the test to be applied is whether there is
evidence which, if accepted, would provide evidence of each element of the
charge.
She
stated that even if there was such evidence, it might be so lacking in weight
and reliability that it was open to the court as a matter of discretion to
dismiss the charge.
She
further adduced that she would look at the evidence of the prosecution and see
whether there was evidence establishing the elements of the offence charged as
highlighted above.
She
stated that it was important to point out that it was not her duty to weigh and
evaluate evidence or decide who was telling the truth or who was lying, adding
that she was also not required to conclude that what the prosecution adduced
was unreliable.
At
this juncture, she cited the evidence of the second prosecution witness and
posited that what the evidence of the prosecution established was that the
accused whilst going to King Fahd Mosque for Friday prayers was in possession
of a bag containing a pistol.
She
added that the question to ask was whether being in possession of a weapon
equates to going armed in public as envisaged by section 79 of the Criminal
Code.
She
said that going armed in public conveys the notion of going armed openly,
adding that the weapon was concealed in the bag the accused had and it was not
observable by the public.
She
stated that the manner in which the accused was in possession of the weapon was
not such as to cause fear or terror to any person of reasonable firmness and
courage.
She
added that on the facts relied upon by the prosecution to sustain the charge
against the accused, it was clear beyond doubt that the ingredients of the
offence charge were not present.
She
therefore said that she would not call the accused to enter his defence.
She
accordingly acquitted and discharged him.
Babucarr
Njie therefore walked out of the courtroom as a free man.
