By Mamadou Dem
Magistrate Fatou Darboe of the Banjul Magistrates’ Court yesterday, 14 January 2015 ordered Veronic Carayol, Deputy Commissioner of Enforcement at the Gambia Revenue Authority (GRA) to open her defence.
Ms. Carayol is standing trial on four counts of abuse of office, giving false information to public servant, unlawful publication and corrupt practices, contrary to the laws of The Gambia. She denies the charges.
Delivering the ruling on the no case to answer submission filed by the defence, the trial magistrate stated that the accused pleaded not guilty to counts 1, 2 and 4, whilst count 3 was referred to the Supreme Court for determination as to whether it was made in excess of legislative authority. She added that the plea of the accused on count 3 was not taken but the prosecution was tasked to prove their case against the accused in respect of the said counts.
According to the Magistrate, the prosecution called six witnesses and tendered a host of exhibits and that at the closure of their (prosecution) case, attorney for the accused (Hawa Sisay Sabally) made a ‘no case to answer’ submission.
She said the counsel for the accused person stated the elements of each offence charged under counts 1,2 and 4 respectively and argued that the crucial elements to establish a prima facie case on the counts were conspicuously missing and further relied on unreported cases of The State versus Mambury Njie and other authorities as well.
The defence, added the trial magistrate, concluded that the prosecution failed to establish a prima facie case against the accused person.
The ruling noted that in replying to the counsel’s ‘no case to answer’ submission, the prosecution argued that a no case to answer is acceptable pursuant to sections 166 and 167 of the Criminal Code, adding that if a case has been made out sufficiently to require the accused person to make a defence, he or she shall be called upon to defend himself or herself.
She said thereafter the counsel for the accused replied on points of law.
Magistrate Darboe said she has carefully gone through the briefs on the arguments filed by the defence, the prosecution’s reply as well as defence counsel’s reply on points of law.
“I have also gone through all the evidence adduced by the prosecution in proving their case against the accused person and the 7 exhibits tendered by the prosecution and the two exhibits tendered by the defence,” added Magistrate Darboe.
The trial magistrate noted that it seems that in deciding whether or not to uphold a no case submission, the test to be applied is whether there is evidence which, if accepted would provide evidence of each element of the charge. Even if there is such evidence, she added, it may be so lacking in weight and reliability that it is open to the court as a matter of discretion to dismiss the information.
The trial magistrate further stated that from the court records, the evidence of PW1, PW3 and PW5 are all connected to the particulars of offence and the elements brought out by counsel, adding, therefore admissible evidence has been led and a prima facie case has been made so the defendant has to open her case on count 1.
She said looking at PW1 and PW6 evidence and the elements of the offence, a prima facie case has been made and the accused has a case to answer on count two and four respectively.
“I am inclined to agree with the prosecution that once the prosecution has established the minimum required proof then such explanation is expected to be heard from the defendant, as such, she is required to be called to enter her defence,” ruled Magistrate Darboe.
The trial magistrate further ruled that “there are several decisions of this court warning against the discharged of accused persons after submission of no case to answer, particularly when it is clear from the evidence adduced that the facts disclosed some explanation which the accused has to make in view that the prosecution has so far established from the evidence.”
She said the facts before the court include the vehicle, G.R.A 63, which was used to carry the accused person’s sister’s employee, the accused gave information to public servant and the accused stated that she accepted unsolicited gift from the business community.
“Would it be out of place for the law to require the accused person to offer some explanation of the facts above? I do not think so,” she said.
Magistrate Darboe finally ruled that the no case submission is misconceived and therefore overruled and consequently ordered the accused to enter her defence.
The trial magistrate said she was persuaded by Magistrate Dawda Jallow’s ruling in state versus Njogu Bah wherein the learned Magistrate stated that “Any attempt to do a detail analysis of the evidence at this stage will be pre-emptive and as such prejudicial to both parties.” I therefore make no further analysis in this matter.”
However, the court ruled that the accused is entitled to appeal against the decision.
By Mamadou Dem