Appeals Court Overturns Murder Ruling, Sends Case to Children’s Court Over Age Dispute

Judges of the Appeals Court ( PhotoCredit Keexs News)

The Gambia’s Court of Appeal has overturned a High Court ruling in a murder case involving a young defendant, citing errors in the trial court’s handling of age determination evidence and ordering the matter be transferred to the Children’s Court.

In a decision delivered by Justice B.V.P. Mahoney, with concurring opinions from Justices N. Salla-Wadda and K. Sillah, the appellate panel ruled that Yusupha Bodjan was a minor at the time of the alleged offence and therefore should not have been tried in an adult court.

Bodjan was charged with murder in October 2021 in connection with an incident that occurred on September 12 of that year. His trial began in June 2022, and questions surrounding his age soon became central to the case. His Legal Aid-appointed counsel argued that Bodjan was 17 at the time of the alleged offence.

The High Court ordered an age determination test, and in October 2022, a report by a dental surgeon estimated Bodjan’s age as 19 as of August 2022. However, Bodjan’s mother submitted a biometric birth certificate listing his date of birth as November 20, 2005. The trial judge dismissed the certificate, citing concerns over its issuance in the absence of the accused.

The dental expert, when summoned to testify, acknowledged that his estimate was based on visual analysis of dental eruption — a method he said carried a possible margin of error of six months. In May 2023, the trial judge ultimately ruled that Bodjan was 18 or older at the time of the alleged offence, thereby asserting the court’s jurisdiction.

Bodjan appealed the decision in November 2023. In its ruling, the Court of Appeal found that the trial court had misapplied the expert evidence, particularly the stated margin of error, and failed to resolve doubts in favor of the accused, as required under criminal law.

“In criminal law, where there is a doubt, it must be resolved in favour of the accused,” the appellate court noted in its judgment. It further cited the rule of lenity — a legal principle derived from English common law — which mandates that ambiguities in criminal statutes or evidence be interpreted in the manner most favorable to the defendant.

The appellate judges also referenced the precedent set in Mariama Conteh v. The State, a recent case which recognized a two-year margin of error in age estimation based on dentition. Applying that precedent, the panel concluded that Bodjan’s age at the time of the incident could not be definitively said to be 18 or above.

Describing the lower court’s decision as “unsupported by the evidence and perverse,” the Court of Appeal granted several key reliefs: it set aside the High Court’s ruling, declared Bodjan to have been under 18 at the time of the incident, and held that the lower court lacked jurisdiction over the case. The matter was ordered to be transferred to the Children’s Court for appropriate adjudication.