The High Court in Banjul, presided over by Justice Abdulahi Mikailu, has called upon one Musa Jallow to enter his defence in a rape trial before the said court. The presiding judge made this declaration in a ruling on a no-case-to-answer submission filed by the defence.

The accused, Musa Jallow is charged with the offence of rape, contrary to Section 121 of the Criminal Code, Cap 10, Volume III, Laws of The Gambia 2009. According to the particulars of the offence, the accused, Musa Jallow was alleged to have had an unlawful carnal knowledge of her stepdaughter (name withheld) under the age of 18 years without her consent sometime in the month of September 2011, at Jenun Kunda village in the Kombo East District of West Coast Region.

The prosecution called five witnesses in its efforts to prove the charge against the accused person and at the end of the prosecution case, the defence filed a no-case submission.

The evidence led by the prosecution germane to the charge are as follows:

The victim, PW11, testified that the accused had sexual intercourse with her on two different occasions, the first of which happened in a parlour during which she screamed but the accused told her not to do so. The victim further testified that she became pregnant as a result of the sexual intercourse she had with the accused.

PW11 testified that he and other investigators arrested the accused from Jenun Kunda and brought him to the Child Welfare Unit of the Gambia Police Force at the Police Headquarters in Banjul. The witness further testified that he also obtained cautionary and voluntary statements from the accused person, which were admitted in evidence as exhibits B and C, respectively. In exhibits B and C, the accused person admitted committing the offence with which he is charged, thereby corroborating the evidence of the victim (PW11).

The fifth prosecution witness

Furthermore, PW5 testified that he examined PW11 regarding her age and issued a report, which was admitted as exhibit “A” without objection from the defence. Exhibit ‘A’ however pegged the age of the victim at 17 years. PW5 further testified that he served as an independent witness during the recording of exhibits B and C in his testimony. He stated that exhibits B and C were volunteered by the accused person.

The sixth prosecution witness

PW6 testified that she took the victim (PW11) to RVTH for age determination and scanning. At the end of the scanning a pelvic ultra sound result was issued and this result was admitted in evidence without any objection from the defence.

In his ruling, the presiding judge disclosed that it is contended in the brief of argument filed on behalf of the accused person that the fact of the case did not show that the accused raped PW11, the victim. He further disclosed that it was their submission that there is no corroborative evidence implicating the accused in respect of the offence charged and that there is no eyewitness account of what transpired between the accused and PW11.

The judge pointed out that the defence counsel cited Section 179 of the Evidence Act listing the offence of rape as one of the cases that requires corroboration, adding that there is no evidence on record corroborating the evidence of PW11. He however noted that when a submission of no-case-to-answer is made on behalf of an accused person, the trial court is not thereby called upon at that stage to express any opinion on the evidence before it.

The judge further noted that the court is only called upon to take note and to rule accordingly that there is before the court no legally admissible evidence. Linking the accused person with the offence with which he is charged and if the submission is based on the discredited evidence such discredit must be apparent on the face of the record and if such is not the case, then the submission is bound to fail.

In his analysis, the judge stated that in thevictim’s (PW11) evidence, PW11 identified the accused person (a person she knows so well) as the person that fell on her and had sexual intercourse with her, and as the act went on PW11 screamed but the accused told her not to do so.

The presiding judge noted that the said evidence has not been discredited under cross-examination as to make it manifestly unreliable. The judge further noted that in the accused person’s purported statements, exhibits B and C, he confessed committing the offence charged which has sufficiently corroborated the evidence of PW11.

Justice Mikailu disclosed that the accused person admitted that there was penetration, PW11 who however identified the accused (her stepfather) as the person that sexually penetrated her without her consent has shown that there is a prima facie case of rape, which requires some explanation from him.

The presiding judge however over ruled the submission and called upon the accused person to enter his defence accordingly.