Hon. Justice Sidi K. Jobarteh of the High Court of the Gambia
By Landing Ceesay
Hon. Justice Sidi K. Jobarteh of the High Court of the Gambia has discharged and acquitted Lamin Jobe, who was accused of raping a three-year-old girl from the West Coast Region.
Lamin Jobe was arraigned before the High Court on July 19, 2023, on one count of rape, contrary to section 3(1)(a) and section 3(2)(d) of the Sexual Offences Act 2013, and punishable under section 4(1)(iii)(bb) of the same Act.
The prosecution alleged that in June 2022, in the West Coast Region of the Gambia, Lamin Jobe intentionally engaged in a sexual act with a three-year-old girl under coercive circumstances, thereby committing an offence.
Jobe pleaded not guilty to the charge. To meet the legal burden of proof, the prosecution called five witnesses and tendered three exhibits. After the prosecution closed its case, the accused testified, called no witnesses, and tendered one exhibit.
Summary OF Prosecution’s Case
The mother of the victim testified as the First Prosecution Witness (PW1). She stated that she was in her sitting room when her daughter and granddaughter went out to play at Jarjue Kunda. After some time, her granddaughter returned, asking for her daughter. She informed her that she had gone out and had not returned. Soon after, her daughter returned, crying. When asked what was wrong, her daughter said that Baboucarr, a younger brother of the Accused (Lamin Jobe), had beaten her three times.
PW1 recounted that she comforted her daughter and noticed sperm on her legs. She then went to Jobe Kunda, where the Accused lived, and asked him about Baboucarr’s whereabouts. The Accused claimed that Baboucarr had traveled. PW1 accused him of raping her daughter, to which the Accused denied the allegation. She then called her husband, and they reported the incident to the police.
During cross-examination, PW1 acknowledged that she had not witnessed the events outside as she was indoors. She clarified that although her daughter had gone to Jarjue Kunda, the incident occurred at Jobe Kunda. She defended her recognition of the sperm, stating her familiarity as a married woman. Despite admitting that the liquid could have come from anyone, she affirmed her statement, which was entered as defense exhibit 1.
The victim’s elder sister testified as PW2. She recalled being in her room that morning while her younger sister and another girl played outside. When her sister returned crying, PW1 asked what had happened, and she mentioned “Pa Lamin.” PW1 noticed sperm on her sister’s leg and raised an alarm.
PW2 corroborated that they confronted the Accused at his compound, where he denied any wrongdoing and insulted PW1. They then involved their father, went to the police station, and she provided her statement, marked as exhibit A.
Under cross-examination, PW2 confirmed she had not witnessed the events outdoors and relied on her mother’s identification of the sperm stain. She clarified that her sister had named “Pa Lamin,” not Baboucarr.
The victim’s father, PW3, testified that he received a call from PW1 at work, informing him that their daughter had been raped by Lamin Jobe. He rushed home to find his daughter weak and observed bruises on her private parts. They reported the incident to the police, who escorted them to the Accused’s house, resulting in his arrest.
During cross-examination, PW3 emphasized that, besides his wife’s account, he had no personal knowledge of the incident, having been at work at the time.
Sergeant Ahmed Sabally, PW4, testified that the Accused was brought to his office on June 6, 2022, around 10 a.m. He conducted an interrogation and subsequently charged the Accused with the offense.
Sergeant Sabally stated that he informed the Accused of his rights and cautioned him before obtaining a cautionary statement.
According to Sergeant Sabally, the Accused denied the charge, and the cautionary statement was admitted as exhibit A.
He also mentioned accompanying the Accused to his residence, where he took a photograph. The residence was described as a single-bedroom apartment with a mattress on the floor. PW4 did not undergo cross-examination.
Dr. Lucass Jatta, a seasoned medical doctor with 15 years of experience, testified as PW5, the final prosecution witness. He recounted being on duty on June 6, 2022, when the alleged victim was brought in, alleging sexual abuse.
Dr. Jatta conducted an examination and documented injuries on a police form, which was admitted as exhibit B. The examination revealed blood stains on the vulva, a vertical laceration between the labia minora and labia majora, and a ruptured hymen with slight bleeding.
He noted that, based on his experience, the majority of such cases involve sexual exploitation. Dr. Jatta mentioned that other causes could include activities like using objects at school or physical exercises.
He prescribed medication for the child, who was subsequently discharged.
During cross-examination, PW5 clarified that activities such as bicycle riding, physical exercise, gymnastics, and falling could also cause a ruptured hymen.
Summary of Defence’s Case
The defendant, Lamin Jobe, testified as the sole witness in his defense. He recounted that on the day of the alleged incident, he woke up and began sweeping their compound. His neighbor’s wife approached him, requesting assistance to plug in her electric kettle as they had run out of prepaid electricity. After boiling the water, he returned the kettle to her and resumed sweeping.
Later, he proceeded to wash his clothes and heard a knock at his gate. Upon inquiry, he learned it was PW1 seeking Baboucarr. He informed her that Baboucarr was not present and was surprised when she accused Baboucarr of assaulting her daughter. The defendant questioned whether she had spoken to her daughter about the incident, to which PW1 claimed her daughter returned crying from Jarjue Kunda.
The defendant asserted that he had no knowledge of the alleged incident, explaining this to his elder brother who was asleep at the time. When the police arrived asking for Baboucarr, he informed them Baboucarr was not home. He denied PW1’s accusation of rape and mentioned previous issues between PW1 and his mother.
Under cross-examination, the defendant clarified distinctions between Jobe Kunda and Jarjue Kunda, confirmed his brother’s absence at work that day, and addressed the feasibility of hearing a child cry in their compound. He corrected earlier statements about room sharing and emphasized that the victim had never visited their home.
Following the defense’s conclusion, both parties filed briefs. The Prosecution, on April 30, 2024, referenced various legal precedents and statutes, urging conviction. The Defense submitted their brief on May 28, 2024, citing similar legal grounds and asserting the Prosecution had failed to substantiate their case, advocating for the defendant’s acquittal.
Hon. Justice Sidi K. Jobarteh’s Examination of the Evidence Adduced In Court
In delivering her judgement, Hon. Justice Jobarteh informed the court that she will not reproduce the full contents of the prosecution and defence briefs; however, she will refer to the relevant portions of the said briefs in the judgement.
“I have carefully listened and read through all the testimonies adduced by the prosecution’s witnesses and the defence in this trial. To better determine this matter, I shall formulate issues for determination going by the charge of rape against the Accused, contrary to section 3(1)(a) and section 3(2)(d) of the Sexual Offences Act 2013 as follows: A) That whether the Accused person acted intentionally and under coercive circumstances; and B) That whether the Accused person engaged in sexual act with the victim. I shall resolve the second issue before the first in this judgment,” Hon. Justice Jobarteh said.
Hon. Justice Jobarteh said before resolving the issues formulated above, she reminded herself of the cardinal principle in criminal cases that the legal and evidential burden of proving every element of the offence beyond reasonable doubt lies on the prosecution.
Hon. Justice Jobarteh said although the prosecution can do so by either direct or circumstantial evidence, the law requires that in either case the prosecution bears the legal burden of proving all the clements of the offence necessary to establish the guilt of the accused beyond reasonable doubt.
Hon. Justice Jobarteh cited the well celebrated case of WOOLMINGTON V DPP [1935] AC 462 HL at pp 481-482. She said the prosecution must succeed on the strength of its own evidence and not be allowed to rely on the weakness of the defence or lies told by the Accused as the basis for a conviction.
Hon. Justice Jobarteh further stated the prosecution she holds therefore has the unshifting burden of proving all the ingredients of the offence with which the accused has been charged with.
Under section 3(1) (a) of the Sexual offences Act, 2013, rape is defined as a person who intentionally, under coercive circumstances engages in sexual act with another person commits the offence of rape”, This definition of rape therefore presumes consent to be lacking where there is evidence of coercive circumstances, and proving the lack of consent of the victim is not a material element of the crime. Coercive circumstance for the purpose of rape is defined under section 2 of the Sexual Offences Act 2013 as follows: …for the purposes of sub-section (1) coercive circumstances” includes-
(A) the application of physical force to the complainant or to a person other than the complainant; (b) threats (whether verbally or through conduct) of the application of physical force to the complainant or to a person other than the complainant; (c) Threats (whether verbally or through conduct) to cause harm (other than bodily harm) to the complainant or to a person other than the complainant, under circumstances where it is not reasonable for the complainant to disregard the threats, (d) Circumstances where the complainant is under the age of sixteen years,” Hon. Justice Jobarteh said
Hon. Justice Jobarteh clarified that Section 2 of the Sexual Offences Act 2013 outlines a non-exhaustive list of coercive circumstances, with paragraph (d) being relevant in the current case.
Regarding the age of the alleged complainant, Hon. Justice Jobarteh established that being three years old constitutes a coercive circumstance in the context of rape.
Hon. Justice Jobarteh posed the question whether rape had occurred in this instance.
She reiterated that under Section 3 of the Sexual Offences Act 2013, rape occurs when a person under coercive circumstances engages in a sexual act with another person or induces another person to engage in a sexual act with the perpetrator or a third party.
Furthermore, Hon. Justice Jobarteh explained that a “Sexual Act,” as defined in Section 2 of the Sexual Offences Act, includes the insertion of a person’s penis into the vagina, anus, or mouth of another person, even to the slightest degree.
Hon. Justice Jobarteh said the Sexual Act also means the insertion of any other part of the body of an animal or any object into the vagina or anus of another person, except where such insertion is consistent with sound medical practices, carried out for proper medical purposes, or …cunnilingus or any form of genital stimulation, and Vagina” includes any part of the female genital organ”.
“Going by exhibit B which is the medical report of the victim, it is indicated under column 6 and 7 that there was blood stain visible on the vulva. There was also a vertical laceration between the labia majora and the labia minora about 2cm long and 0.3 cm deep. Her hymen was ruptured and there was slight blood coming from the hymen caruncle.
“It is evident from exhibit B that the victim’s vagina was not the same. PW5 in his evidence has indicated that, 75 percent of such cases are caused by sexual assault or exploitation. He further stated that it can also be caused through riding a bicycle, gymnastics or falling. He did not say conclusively that it was as a result of sexual assault but the case was reported to the hospital to be a sexual assault case,” Hon. Justice Jobarteh said.
Hon. Justice Jobarteh stated that according to the prosecution’s submission, exhibit B along with the testimonies of PW5 and PW1 constitute conclusive evidence that penetration occurred.
Regarding the defence’s argument, Justice Jobarteh noted their contention that the evidence regarding sexual intercourse remains inconclusive.
She emphasized that the defence maintains there is reasonable doubt in the prosecution’s case on this matter, advocating that such doubts should be resolved in favor of the Accused.
“I have carefully gone through the evidence on record. The testimony of PW1 is that her daughter went out to Jarjue kunda to play. She came back crying that Baboucarr beat her. Baboucarr is the younger brother of the Accused. As she put her on her lap to console her, she saw sperm on her leg. She undressed her and saw bruises on her vagina. When she went to the Accused house to ask after Baboucarr, the Accused told her that Baboucarr travelled.
“PW1 then said the Accused raped her daughter. I must say that there is no direct evidence on record that establishes the issue of penetration on the victim. The question that begs for an answer is whether there is circumstantial evidence that the court can rely on to resolve this issue. The court can conveniently rely on circumstantial evidence to resolve an issue or convict an accused person,” Hon. Justice Jobarteh said.
Hon. Justice Jobarteh emphasized that for a court to base its judgment on circumstantial evidence, it must be clear, compelling, and lead unequivocally to a single conclusion.
Regarding Exhibit B, Hon. Justice Jobarteh noted that while it indicates abnormalities in the victim’s vagina, it does not definitively prove that these were caused by penetration resulting in laceration and a ruptured hymen.
In adjudicating on PW5’s testimony, Hon. Justice Jobarteh acknowledged the possibility, raised as 25 percent by PW5, that the injuries could have stemmed from other activities such as falling, cycling, or gymnastics. Notably, the victim herself was not called as a witness, but PW1 testified that the victim reported being beaten and showed signs of distress upon returning from Jarjue Kunda. However, the substance observed on the victim’s leg, referred to as “sperm,” was not scientifically confirmed as such.
In conclusion, Hon. Justice Jobarteh concluded that the circumstantial evidence presented does not decisively support the case for the court to act upon.
“It leaves so many doubts in the mind of the court. It is a settled principle of law that when there is any doubt casted in the mind of the court, the same shall be resolved in favour of the Accused. This was the position of the Supreme Court in the case of Batch Samba Faye v. The State (2004-2015) GSCLR 3. Even if the court should resolve that the ruptured hymen was caused by penetration, the question is, did the Accused engage in sexual act with the prosecutrix?
“The identity of the Accused as the perpetrator of the alleged offence is also an issue. It is the position of the prosecution that the evidence on record suggests that it was only the Accused that was found in Jobe Kunda which positively identifies the Accused as the perpetrator. They referred the court to a plethora of cases where courts resolve the issue of identification of an accused. The defence argued that the evidence on record is so lacking in merit and does not disclose the Accused as the perpetrator. They heavily relied on the testimony of the prosecution witnesses,” Hon. Justice Jobarteh said.
Hon. Justice Jobarteh further ruled that PW1 testified the victim identified Baboucarr as the person who had assaulted her upon returning home in tears.
Justice Jobarteh emphasized that PW2 stated the victim had named Pa Lamin, and when PW1 and PW4 visited the Accused’s residence, they initially inquired about Baboucarr.
She concluded that this indicates the victim specifically named Baboucarr.
The accusation of rape against the Accused arose only after he claimed Baboucarr was absent from the compound when questioned by PW1. The prosecution argued in their brief that since the Accused was alone in the compound, it strongly suggests he committed the rape. They further asserted that his decision to launder his clothes that morning implied an attempt to destroy evidence. The victim had informed her mother that she intended to visit Jarjue Kunda.
The Accused resides in Jobe Kunda. PW1 visited the Accused’s residence solely because the victim mentioned Baboucarr. The Accused came under suspicion only because Baboucarr was not present in the compound.
“The Accused compound is Jobe Kunda. PW1 only went to the Accused house because the victim mentioned Baboucarr. The Accused was only pointed out because Baboucarr was not found in the compound. The Accused vehemently denied seeing or raping the prosecutrix. Exhibit A, the cautionary statement of the Accused is in line with the testimony of
the Accused. It is not confessional. Even if it was confessional, the court cannot rely on the same as it has not met the provision of section 31(2) of the Evidence Act 1994 and the Judges Rules,” Hon. Justice Jobarteh asserted.
Hon. Justice Jobarteh emphasized that no independent witness was present during the recording of the statement in question. She noted the lack of conclusive evidence linking the Accused to the person identified by the prosecutrix as her assailant. Justice Jobarteh also asserted that the Accused’s elder brother was asleep in the compound at the time, casting doubt on the prosecution’s position as speculative.
“It is now elementary law which needs no citation of the law that speculation and suspicion, no matter how strong, cannot secure a conviction against an accused person. I hold as a fact that the evidence on record did not establish the ingredients of the offence under section 3(1)(a) and section 3(2)\d) of the Sexual Offences Act 2013 and the issues formulated above against the Accused person. I hold the Accused Lamin Jobe, not guilty as charged and he is accordingly acquitted and discharged,” Hon. Justice Jobarteh adjudicated.