The criminal appeal case involving one Batch Samba Faye against the state resumed before The Gambia Court of Appeal on Tuesday, January 19, 2010.

Batch Samba Faye was convicted and sentenced to death on murder charge by Justice M.A. Paul on December 12, 2004. The convict was alleged to have fought and murdered one Malick Njok on December 6, 2003 at Wow Night Club at the Senegambia area of the Tourism Development Area (TDA). The prosecution called 9 witnesses and tendered the weapon used (knife) alleged to have been used by the convict and some of the witnesses testified that they saw him using the knife to stab the deceased, Malick Njok. The convict in his defence alleged that he killed the deceased in self-defence. During Tuesday’s Court of Appeal sitting, the appellant’s counsel, Lawyer Ida. Drammeh informed the court that all the exhibits in the case are lost.

Lawyer Drammeh argued that the exhibits are absolutely essential for the appeal and that her client is being denied the right of appeal if the exhibits are missing. In his rejoinder, DPP, Richard Chenge, urged that the appeal go on without the exhibits. DPP argued that before trial, an accused is presumed innocent until proven guilty and if exhibits are lost before trial is conducted, the accused is entitled to acquittal, because there is no evidence against the accused.

DPP further argued that since the accused had been tried and convicted by the High Court and sentenced to death, the presumption now is that of guilt. DPP submitted that if exhibits are lost at this stage, the appeal of the appellant should be heard and dismissed; noting that the appellant has nothing to support his appeal and the state will then be entitled to execute the sentence of death on the appellant.

In summary, DPP submitted that evidence lost before trial is to the advantage of the accused but evidence lost after the conviction is to the advantage of the state. The Gambia Court of Appeal, presided over by Justice E.A.Ota, Justice J.B. Kalaile and Justice Joseph Wowo adjourned the case to February 2, 2010 and ordered the Registrar of the High Court to explain the position of the exhibit as to why they cannot be found.