Justice Uduma U. Oleidi of High Court in Banjul recently acquitted and discharged Alagie Kakay and Dodou Jabang after the court dismissed the Magistrate Court's decision.
Delivering the judgment, the appellate court judge stated that the convicts were charged on count one of conspiracy to commit offence contrary to the Drug Control Act 2003.
The particulars of offence stated that the duo on 12 August 2015 in the City of Banjul, conspired between themselves in dealing with 4 gram 50 mg of heroin, a prohibited drug.
In count two the particulars of offence stated that the convicts on 12 August 2015, in the City of Banjul, had in their possession 4g 50mg of heroin.
The appellants pleaded not guilty to the offence charged but they were convicted on 4 January 2016.
She said the appellants not satisfied with the judgment of the Banjul Magistrates' Court of 4 January 2016, filed an appeal to the high court.
The trial judge revealed that having carefully listened to the argument of 1st and 2nd appellants, who were not represented by counsels and the argument of the state counsel for respondent and after going through the record of proceedings and the judgment of the trial Magistrate, she was minded to raise only one issue: whether the trial magistrate evaluated the evidence of the appellants and all the prosecuting witnesses.
She disclosed that the Apex Court has in a plethora of cases held that an appellate court would not ordinarily interfere with the findings of fact made by the Lower Court except in certain circumstances such as where it was clear or established that such findings are perverse or are not supported by evidence or have not been arrived at as a result of proper exercise of judicial discretion or the trial court has taken an erroneous view of the evidence adduced before it.
The appellate judge revealed that as an Appellate Court, she was entitled to interfere with the findings of facts made by the trial court which she found to be perverse or not borne out of the records, citing the case of Joof vs State.
Justice Oleidi said there were a lot of discrepancies and contradictions in the prosecuting witnesses' testimonies, noting that there was nothing of fact in all the 7 prosecuting witnesses to corroborate with each other as to what transpired.
She pointed out that the evidence of PW3 and PW4 who said they found the substance in the window sill of the 1st Appellant's house did not corroborate the evidence of PW2 who was also at the side of the window.
She explained that she was of the view that those contradicting evidences and discrepancies of the prosecuting witnesses was enough to move the trial court not to convict the appellants on the two count charges of conspiracy to commit and offence contrary to Section 53(1) (a) of the Drug Control Act and possession of prohibited drugs for the purpose of drug trafficking contrary to Section 43 (4) (a) of the Drug Control Act 2003.
Justice Oleidi stated that it was a trite law that any doubt in a criminal trial should be resolved in favour of the accused, citing the case of Abdoulahi vs the State.
The Appellate Judge declared that having considered the above reasons she was of the conviction that the two appellants should be discharged and acquitted of the two counts of conspiracy contrary to Section 53 (1) (a) of the Drug Control Act and count two possession of prohibited drugs for the purpose of drug trafficking contrary to Section 43 (4) (a) of the Drug Control Act 2003.
Justice Uduma U. Oleidi accordingly quashed their conviction and sentence by the Banjul Magistrates' Court and they were thereby acquitted and discharged.