By Landing Ceesay
Justice Ebrima Jaiteh of the High Court of the Gambia has said that the “No Case To Answer” application filed by Sainabou Mbye and two others lacks merits.
Sainabou Mbye (1st accused), Cherno Mbye (2nd accused), and Kibilly Dembelly (3rd accused) are charged with two counts: namely; Manslaughter Contrary to section 186 and Exposing Children Contrary to section 210 all contrary to the Criminal Code of The Gambia, Cap. 10:01, Volume 3, Laws of The Gambia 2009.
The particulars of the offense alleged in count one are that the accused persons on the 4th day of July 2022 at Brusubi in the Kombo North District of West Coast Region of the Republic of The Gambia within the jurisdiction of the High Court “unlawfully” and with “negligence” left one Muhammed Mbye, a two-year-old, locked in the vehicle with Registration Number BJL 9392 Q for four hours and as a result of which caused his death and thereby committed an offense.
The particulars of the offense alleged in count two are that the accused persons on the 4th day of July 2022 at Brusubi in the Kombo North District of the West Coast Region of the Republic of The Gambia within the jurisdiction of the High Court while having the custody and care of one Muhammed Mbye, a two-year-old child, “neglected and exposed” him in a manner that caused “unnecessary” suffering and injury to his health when they (the accused persons) left him locked in a vehicle with Registration Number BJL 9392 Q for four hours and they thereby committed an offense.
On the 4 days of October 2022, the Accused persons were arraigned before Justice Ebrima Jaiteh of the High Court and they all pleaded not guilty to the offenses alleged by the State (Prosecution).
The prosecution called seven (7) witnesses and tendered seven (7) Exhibits which were admitted and marked as Exhibits “P1” to “P7” respectively. The prosecution intended to call their last witness, a Medical Doctor as PW8 from Dakar, Senegal, however, Justice Jaiteh said the Medical Doctor is not listed in the bill of indictment nor his summary of evidence provided as required under section 175C of the Criminal Procedure Code.
“The Prosecution sought for adjournment upon adjournment with no meaningful progress in procuring the attendance of called PW8 in Court land thus also failed to close their case despite informing this Court they would close their case if they could not secure the attendant of PW8,” Justice Jaiteh said.
On the 27th of October 2022, Justice Jaiteh closed the case of the prosecution for failure to provide their Eighth Prosecution Witness (PW8).
Arguments of Ida Drammeh Counsel for the 1st Accused Person
At the closed of the prosecution’s case, the defense opted for a “no case to answer” and written briefs of arguments were ordered, filed, exchanged and adopted by Justice Jaiteh.
Counsel Ida Drammeh for the 1st Accused person in her brief of argument restated the charge and the law on “no case” submission and submitted that the issue for determination is whether the prosecution has raised a prima facie case.
Counsel Drammeh referred the Court to the Practice Direction of Lord Parker reported in [1962] 1 ALL ER 448 and Blackstone’s Criminal Practice 2010 at D15.56 and the case of Galbraith 1981 1 WLR 1039.
It is the submission of Defence Counsel for the 1st Accused that on submission of “no case to answer” the judge must be satisfied that a prima facie case has been made out against each accused person and argued that the Judge does not have to find out at this stage that the prosecution has established the ingredients of the offense beyond a reasonable doubt.
Counsel Drammeh further argued that to establish a prima face case, the prosecution should offer credible evidence in support of each element of the crime.It is the submission of Counsel Drammeh that no reasonable tribunal will convict on the evidence so far laid before the Court and in any case, the witnesses have been so discredited by cross-examination that it would be unsafe to convict based on their evidence.
Counsel Drammeh equally argued that there was no evidence of any “unlawful act or omission” of the Accused persons, which caused death.
Counsel Drammeh urged the Court to upheld the submission of “no case” on the manslaughter charge.
With regards to the second count, Counsel for the 1st Accused submitted that there was no evidence of the elements needed to prove the offence alleged in section 210.
Counsel Drammeh argued that there was no evidence of any of the Accused causing the child unnecessary suffering” or “injury to his health.”
Counsel Drammeh further submitted that there was no evidence at all of the Accused persons “willfully assaulting, ill-treating, neglecting, abandoning, or exposing” the child in a manner likely to cause the child “unnecessary” suffering or “injury to his health.”
Counsel Drammeh for the 1st accused evaluated the testimonies of the prosecution witnesses and urged the Court to uphold the submission of “no case to answer” because the elements of the charges “have not been proved at all” and the prosecution witnesses have been discredited by cross-examination and their evidence cannot be relied upon.
Counsel Drammeh submitted that there is no prima face proof of the case as required to call for The Accused persons to enter their defence and asked, “what would they be entering a defence to?”
Arguments of Counsel Sagar C. T. Twum for the 2nd and 3rd Accused Persons.
Sagar C. and T. Twum counsels for the 2nd and 3rd accused persons aligned with the submissions and arguments made by Counsel for the 1st Accused Person.
Counsel Twum gave a summary of the evidence and elaborated on the elements of counts one and two respectively She submitted that the Accused persons inadvertently left the deceased in the vehicle because of the commotion and business of moving houses. This, she argued is not sufficient to satisfy the threshold of culpable or gross negligence and that the accused could not have foreseen that their omission would lead to the death of the deceased because it was not in their minds eye.
It is the submission of Counsel Twum that the accused persons did not even advert their minds at all and further submitted that the accused persons’ actions before the incident and reactions after show that they had high regard for the life of the deceased.
She argued that the accused persons did everything they could in their power and spared “no expenses” to save his life with the best available medical treatment available to them at the time.
Counsel for the 2nd and 3rd Accused persons submitted that the prosecution has failed to prove that the deceased was deliberately left or abandoned in the car with the intention of harming him and urged the Court to come to one and only possible verdict that the Accused have “no case to answer” and uphold the no case submission.
Arguments of the Prosecution on the “No Case To Answer” Submission
The Prosecution in their brief of argument on the no-case submission gave an introduction of the charges and a summary of the testimonies of the prosecution witnesses and formulated one issue for determination and that is whether the prosecution has made out a prima facie case against the accused persons in respect of the charges contained in the information.
Counsel for the Prosecution referred the Court to the guiding principle of the doctrine of “no case to answer” in criminal cases as laid down in the case of R. V Galbraith (1981) 73 CR. App. On pages 121, 127 and the case of Emeka Ekwunugo v Federal Republic of Nigeria SC
110/2000, Judgment delivered on the 11th of July 2008.
The Prosecution outlined the elements of count one and submitted that the 1st and 2nd Accused persons were sitting at the front of the
vehicle, whilst the 3rd Accused was sitting at the rear of the vehicle with the three children including the deceased, and the said vehicle is owned by the 1st Accused person.
Counsel for the Prosecution submitted that all three Accused persons alighted from the vehicle to assist the mini-truck to offload the household materials and move them into the new apartment.
Counsel for the Prosecution explained the relationship of the deceased with the accused persons and submitted that the accused persons were under a duty to ensure that the life and health of the three children including the deceased were protected.
The Prosecution further submitted that the Accused persons were under an obligation to ensure that they checked and make sure that the deceased and other children had alighted from the vehicle safely. That because the accused persons alighted from the vehicle, they ought to have averted their minds that the deceased was a two-year-old who could barely take care of himself or alight from the vehicle without the assistance of an adult.
The Prosecution argued that the accused persons were in breach of duty when they alighted from the vehicle without ensuring that the deceased being a two-year-old had been taken from the vehicle before closing the doors.
Counsel for the Prosecution refers the Court to the English case of R. Bateman (1925) 19 Cr. App. R. 8 and the definition of culpable negligence as provided in Black Stone’s dictionary, gin Edition at page 3284.
Counsel for the Prosecution argued that it is certainly foreseeable that leaving a child of tender age in a vehicle that has its windows wound up could cause serious injury or health hazards or even death.
The Prosecution further argued that a reasonable person would have known that leaving a child of two years would need the assistance of an adult to alight from a vehicle.
Counsel for the Prosecution submitted that the Prosecution Witness (PW6) and the mother of the deceased testified that the deceased is dead and her testimony has not been controverted, discredited or challenged by defence counsel under cross-examination.
The Prosecution referred the Court to the case of Antoine Banna v Ocean View Resort (2002-2008) GLR Vol. 1 page 3 holding 5.
The Prosecution submitted that the Accused persons in their cautionary statements confirmed the death of the deceased and it is an undisputed fact that the deceased has died.
Counsel for the Prosecution submitted that there is evidence that shows that the deceased died as a result of being locked in a vehicle which caused him to suffer from lack of oxygen and the act of leaving the deceased in the said vehicle was the responsibility of the Accused persons who “failed” in their duty of care towards him.
Counsel for the Prosecution urged the court to ask the accused persons to open their defence in relation to the charge of manslaughter.
With regards to count two, counsel for the Prosecution submitted that the cautionary statements of the accused persons shows that accused person is 30 years old, the 2nd and 3rd Accused persons are 24 years old and the deceased is 2 years old.
The Prosecution argued that the deceased and the other children in the vehicle were in the custody, charge or care of all the accused persons.
The Prosecution argued that the circumstances of the case show that the deceased boarded the 1st accused person’s vehicle and the vehicle was driven by the 2nd accused person and the 3rd accused was sitting at the back watching over the children including the deceased and the two other children at the back of the vehicle were the children of the 1st Accused person.
The Prosecution referred the Court to the cautionary statement of the 1st accused person where she stated that the deceased was
always with the 2nd accused person and that is why when she alighted from the vehicle, she thought the deceased was with the 2nd accused person.
The Prosecution submitted that the circumstances clearly indicates that the Accused person were in charge of the deceased and the two other children in the vehicle.
The Prosecution refers to the testimony of PW7 and argued that anyone regardless of age who does not have good oxygen concentration is likely to suffer from hypoxia and argued that there is evidence that the deceased was left in the vehicle by the accused persons for over four hours without access to oxygen.
The Prosecution further submitted that the acts were done “without” reasonable care being taken and thus “willful.”
Counsel for the Prosecution submitted that the accused person were impliedly in custody of the deceased at the time and they were “negligent” in discharging their duty to preserve “life or heath” of the deceased.
The Prosecution submitted that they have made a prima facie case against the accused persons in terms of count two.
The Prosecution submitted that they have presented evidence establishing the essential parts of the offences which have neither been discredited under cross-examination or is the evidence unreliable for the court to convict on it and argued that the Prosecution has presented before the court cogent land “reliable” prima facie evidence against the accused persons.
Counsel for the Prosecution urged the Court to refuse the application and call upon the Accused persons to enter their defence.
Defense Counsel Ida Drammeh’s Response on Points of Law
In replying to the Prosecution’s submission on points of law, Counsel for the 1st accused person, submitted that Dr. Edel Casellanos is not a lady but a man and argued that if the cautionary statements are sought to be used as confessions, they need to comply with section 31(2) of the Evidence Act.
Counsel Drammeh submitted that “unlawful act” needs to be proven and thus refers the case of R. Lang [1967] All ER1282.
Counsel Drammeh further submitted that the test required in R. Bateman (1925) is that of a duty of care owed by the defendant to the victim and there to be breach of that duty that cause the victim’s death.
Counsel argued that Seymour (1983) 2 A. C. 493 of the House of Lords is no longer appropriate to refer to negligence.
Counsel further refers to the Caldwell test of recklessness as negligence was reconsidered in light of the House of Lords judgment in R. Adomako (1995) 1 A.C. 171 HL, which approved the majority of the judgment in R. Prentice and others [1993] 4 All ER 935.
Counsel Drammeh argued that the principle in Banna case (supra) has no application to a criminal case.
Counsel Drammeh further submits that the Prosecution must put forth evidence, which supports all the essential elements of the offences with which the accused are charged; failure of which the accused must be discharged.
The Counsel for the 1st Accused argued that Prosecution has failed to prove the offence as charged under counts 1 and 2 of the information filed on the 1st of August 2022
and urged the court to discharge and acquit the Accused persons as there is no prima facie case established against them.
Justice Ebrima Jaiteh’s Ruling On the “No Case To Answer” Application
In delivering his ruling on the “No Case To Answer” application by the defense Counsels, Justice Jaiteh said the application lacks merits.
“I have carefully read written briefs of arguments on the issue of no case submission. It is my considered opinion that there is only one issue for determination, which is whether the accused persons have a case to answer In as much as I have looked at the testimonies, and the argument of the defence counsel in details in order to ensure fairness, I will only limit my comments, my observations, and my findings to the law as it relates to a no case submission in The Gambia,” Justice Jaiteh.
Justice further stated the starting point is Part VIl of the Criminal Procedure Code dealing with procedure in trials before the High Court and that Section 208 of the Criminal Procedure Code provides that:
“Subject to the provisions of this Code, the practice of the High Court in its criminal jurisdiction shall be assimilated as nearly as circumstances will admit to the practice of her Majesty’s High Court of Justice in it’s criminal jurisdiction and of Courts of Oyer and Terminer and General Goal Delivery in England”
Justice Jaiteh said by this provision, the court is entitled to use any procedure applicable in the High Court of Justice in England under similar circumstances subject to the provisions of the Criminal Procedure Code.
“Pursuant to this provision, it has been a common practice within this jurisdiction to make submissions of no case to answer under the circumstances applicable in England as established by Lord Chief Justice Parker in the Practice Note issued in that regard by the Queens Bench Division in (1962) 1 ALL ER 448 as follows:
“A submission that there is no case to answer may properly be made and upheld: a) When there has been no evidence to prove an essential element of the alleged charge; or b) When the evidence adduced by the prosecution has been so discredited as a result of, cross examination or is so manifestly unreliable that no reasonable court could convict on it” Justice Jaiteh stated.
Justice Jaiteh further said that nonetheless, in the instance case, he needs not deal with the credibility or not of the witness adduced by the prosecution or on the weight of their evidence.
Justice Jaiteh said the question he has to determine is whether the evidence produced by the prosecution has been discredited in cross-examination or whether the evidence adduced is manifestly unreliable that it would not be safe to convict.
The Presiding Judge further state that the question is whether the prosecution produced evidence to support an allegation on the offence charged? Or “Has the Prosecution established a prima, facie case against the accused person?”
In the case of GODWIN CHIANUGO V STATE (20061 1CLPR on page 71 it was held that a prima facie case “only means that there is a ground for proceeding but a prima facie case is not the same as proof which comes later when the court has to find whether the accused is guilty or not guilty and the evidence discloses a prima facie case when it is sufficient to prove the case against the accused.” (Emphasis added).
Justice Jaiteh said similarly, “a prima facie case is said to exist when there is evidence sufficient enough to support the allegation made in the absence of further evidence rebutting same.”
He said in the case of IGABELE as cited supra has outline “when a no case submission would be held to be where:(1) “There was no evidence to prove an essential element of the alleged offence, and (2) The evidence adduces has been so discredited as a result of cross-examination. (3) The evidence is so manifestly unreliable that no reasonable tribunal can safely convict on it and, further if, however, a reasonable tribunal can convict on evidence so far led, there is case for the accused to answer.” (emphasis added).
“The question I ask is that has the prosecution produced evidence to support allegations on the offences charged and to that I must
hasten to answer yes. Without wishing to go into evidence or facts of the case, I believe the evidence adduced by the prosecution is
such that it requires some explanation from the Accused persons of what actually happened in the vehicle with Registration Number BJL 9392
Q where the deceased (Muhammed Mbye) was
prosecution witnesses before this Honorable Court linking the Accused Persons to this case,” Justice Jaiteh stated.
Justice Jaiteh further stated that It is an undisputed fact that the accused persons and the deceased with two other children were in the same vehicle BJL9392Q and all of them alighted at their destination in Brusubi except for the deceased who was two years old at the material time.
Justice Jaiteh said the 6th prosecution witness (Fatou Ngoneh Mbye), the biological mother of the deceased testified that her son Muhammed Mbye is dead.
“There is ample evidence showing that the deceased was removed from the said vehicle unconscious and was rushed to Afrimed International Hospital in critical condition as he was in severe respiratory distress,” he said.
The presiding Judge further stated that there is evidence before the Court that the deceased was 2 years old, and the 1st accused is 30 years old and the 2nd and 3rd accused are 24 years of age.
Justice Jaiteh said the cautionary statements of the accused persons are also before the Court and on the face of the said cautionary statements, there was an independent witness.
Justice Jaiteh stated that the said cautionary statements were admitted into evidence without objection.
He said if the defence had any objection, it ought to have been made at the reception of the evidence as required by section 205 of the Evidence Act, 1994 and not thereafter.
Justice ruled that In the absence of an objection, the evidence contained in the cautionary statements are credible before court.
“Therefore, and in my view a prima facie case has been made out against the accused persons and the arguments on the submissions of no case to answer lacks merit and is hereby dismissed.The accused persons are now called upon to open their defence,” Justice Jaiteh ruled on the “No Case To Answer” application filed by the defense.