27 February 2013

Gambia: Rape Suspect Freed

Justice Emmanuel Nkea of the Special Criminal Court in Banjul, on Monday, February 25th 2013, acquitted and discharged one Sanna Kah, who was charged with a single count of rape, contrary to the Laws of The Gambia. The accused was charged with the offence of having unlawful carnal knowledge of an underage girl, a charge he denied.

The Special Criminal Court judge, delivering judgement on the case, said the prosecution alleged among others that on 2nd November 2011, one Dusu Nyang (PW1) noticed the victim moving on a nearby street with her inner pants in hand, bleeding with bloodstains all over her body. PW1 called the attention of her neighbour Juliet (PW3) who identified the victim as a neighbour living behind her house. She was taken to her mother who traced the blood drops up to a room said to be occupied by the accused. The accused was arrested and taken to the police. The victim identified the accused as the person who ravished her.

During the investigations, a medical doctor examined the victim and a report was issued "Exhibit B". The accused denied the charge both in his statements to the police and testimony before this court. He maintained that he has been framed up by PW4 as a result of a dispute arising from his refusal to allow PW4 establish an amorous relationship with one Fatou, a married lady living in the same compound with the him (accused).

According to Justice Nkea, at the end of the trial, both sides waived their rights to address court. He cited Section 121 of the Criminal Code, with regards to essential elements of rape, which have to be proved beyond reasonable doubt. He said it has to be proved as to whether there was unlawful sexual intercourse involving the victim, that the victim could not or did not consent and whether the accused participated in the unlawful sexual intercourse. The judge further said that the cited elements could be established by either direct or circumstantial evidence or upon the confession of the accused person as indicated in Ahmed V. the Nigerian Army 2011.

He added: "In the instant case, there was no eyewitness account of the alleged rape, thus eliminating all the prospects of any direct evidence in support of the indictment. The prosecution therefore relied heavily on circumstantial evidence in prove of the offence. Although I agree that circumstantial evidence is very often the best evidence, in that it is evidence of surrounding circumstances, which by coincidence is capable of proving a proposition with the accuracy of Mathematics. I also agree that circumstantial evidence must be narrowly examined so that a possibility of fabrication to cast suspicions on an innocent person is ruled out."

Justice Nkea said that to support a conviction in a criminal trial, circumstantial evidence must be completed and unequivocal. The judge said that it must be compelling and must lead to the irresistible conclusion that the accused is the culprit. He stated that the facts must be incompatible with the innocence of the accused and incompatible of explanation upon any other reasonable hypothesis than that of his guilt particularly as all doubt must be resolved in favour of the accused. Justice Nkea at that juncture said that the victim is sick and cannot speak loud and she is kind of dumb.

"She looked both mentally and physically unstable. She is a pupil at the St. John's School for the Deaf. She could not lead any concrete evidence even with the aid of her teacher and mother. As far as the first element of the offence is concerned the law is that where there was no eyewitness account of the alleged sexual offence, the Court can rely on circumstantial evidence to resolve the issue. Such evidence could include, medical evidence of the examination of the victim confirming the allegation of recent forcible coitus.

It is clear from the Medical Report "exhibit B" and the testimony of PW1, PW2 and PW3 that the victim was sexually manhandled. She was seen with her inner pants in hand with bloodstains all over her body. Therefore there is sufficient corroboration in support of the alleged sexual intercourse; as such the provisions of Section 180(2) of the Evidence Act have been satisfactorily complied with," he further explained.

The High Court judge concluded that the victim was sexually assaulted, which he shall hold as a fact and therefore resolved the first element in favour of the prosecution.

Further commenting on the case, Justice Nkea said the prosecution urged the court to question in affirmative and placed heavy reliance on the blood drops that were traced to the door of a room said to be occupied by the accused. The accused denied the charge and testified that he does not live in the compound, but rather watches over the property in the night.

He said he does not have a room of his own there but watches the property from a bench outside the door. He also added that he goes to the farm everyday including the date in question and only returns by 4pm, as such he could not have been the person who sexually assaulted the victim, if at all she was raped there.

The prosecution said the victim identified the accused as the person who defiled her. "Although the prosecution witnesses all conceded that there was no Identification Parade conducted inline with a legal authority on identification parade, but when the victim was asked in Chambers to properly identify who her assailant was, she seriously damaged and discredited her evidence because she could not identify her assailant.

Instead, she pointed at the Judge (that is my humble self). From this, I reached the conclusion that the victim could not have properly identified the person who ravished her and this I shall hold as a fact and in doing so I will not rely on this piece of evidence in favour of the prosecution. This raises doubt in my mind as to who the real culprit was," said Justice Nkea.

He said the charge was therefore not proven beyond reasonable doubt. "The law is settled that where the prosecution has failed to prove its case beyond reasonable doubts the accused is entitled to an acquittal. In view of the above cited, the accused is therefore discharged and acquitted of the charge," Justice Nkea concluded.

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