The High Court in Banjul, presided over by Justice Simeon Ateh Abi recently quashed the conviction and sentence imposed on one Sankung Jobarteh by the Banjul Magistrates’ Court.
Delivering judgment, Presiding judge Simeon Ateh Abi said the appellant was arraigned on one count of possession of prohibited drugs for the purpose of drug trafficking contrary to section 43(4) (e) of the Drug Control Act 2003.
He said the particulars of the offence alleged that the appellant on or about the 6th day of January 2013 at Sibanor in the West Coast Region had in his possession 3kg 640g of Cannabis sativa; the appellant pleaded not guilty to the charge.
Justice Abi asserted that the prosecution laid out their case by calling 4 witnesses and tendering several exhibits, while the appellant testified on his own behalf in defence.
In a judgment delivered on the 21st of January 2014, the trial 1magistrate convicted the appellant as charged and sentenced him to a fine of D1 million and an additional 10 years imprisonment. In default of the fine, the appellant would serve another two years imprisonment which is to run concurrently, with all the sentences beginning from the time the appellant was first arrested.
Justice S.A. Abi revealed that against the said judgment, the appellant filed a notice of appeal from prison on the 28th day of January 2014 raising two grounds.
He said in law, only material contradictions that go to the substance of the case can be resolved in favour of the accused, adding that cosmetic or assumed contradictions which do not occasion a miscarriage of justice cannot affect the guilt of the accused, citing the case of Isibor v state (2005) 1 NCC 221 @ 223-224 HELD 5.
From the record, he intimated, the appellant raised three issues about the statements. Firstly was the issue that the words are not his own; secondly that he was forced to thumbprint and thirdly that there was no independent witness.
He explained that if the trial magistrate could overrule the objection on the first ground, she ought to have ordered a trial within trial on the basis of the second and third legs of the objection raised by the appellant.
He indicated that the trial magistrate in her view erred in law when she admitted the statements without conducting a voir dire to determine the voluntariness of the statements admitted.
Justice Abi added that the trial magistrate effectively disregarded the entire evidence led by the appellant, noting that this was an improper evaluation of the evidence and thus occasioned a miscarriage of justice.
He said that in the instant case, the wrongful admission and reliance on exhibits A and A1 occasioned a miscarriage of justice entitling him to set aside the conviction and sentence passed on the appellant.
The appellate judge disclosed that the ownership of the bicycle, exhibit D, cannot be so difficult to prove. He explained that if the accused objected that he was not arrested with a bicycle and knew nothing about the bicycle which he was seeing for the first time when it was tendered, the prosecution ought to have called evidence as to the ownership of the bicycle.
Justice Abi revealed that the unresolved issues of the voluntariness of the statements of the appellant and the ownership of the bicycle which was allegedly used in carrying the drugs have left gaps in the prosecution’s case.
He further intimated that the law is clear that such doubts in the case of the prosecution ought to be resolved in favour of the accused and he so resolved the doubts in favour of the appellant.
Justice Simeon Ateh Abi declared that he found merit in the appeal and thereby set aside the conviction and sentence passed on the appellant by the trial magistrate Jackline Nixon Hakim.
The appellant, Sankung Jobarteh, was therefore acquitted and discharged.