By Landing Ceesay
A 78-year-old man, Muhammed Jallow, has been sentenced to 20 years in prison by the High Court of the Gambia for raping a 13-year-old girl in 2020. The judge, Hon. Justice Ebrima Jaiteh, issued a stern warning to other rapists and said the court would not tolerate such heinous crimes.
Muhammed Jallow is charged with a single count of rape contrary to section 3(1)(a) of the Sexual Offences Act, 2013.
The prosecution claimed that on June 22, 2020, in Kombo North District of the West Coast Region of The Gambia, Muhammed Jallow engaged in unlawful sexual intercourse with a 13-year-old, thus committing an offense.
Muhammed Jallow appeared before the High Court on July 8, 2021, where he pleaded not guilty to the charges brought against him by the State.
To substantiate their case, the prosecution presented six witnesses and introduced three documents as evidence, marked as Exhibits P1, P2, and P3.
In his defense, Muhammed Jallow testified and called one witness.
While giving her testimony in court, the prosecutrix, also known as the victim, described the events that took place between her and the defendant on June 22, 2020.
The victim positively identified the defendant and recalled the incident that occurred on the aforementioned date. According to her account, on that day, she and her friend (whose name is withheld) were instructed by her friend’s mother to roast groundnuts. They went to the defendant’s compound to search for mangoes and found the defendant sewing.
The victim stated that her friend (whose name is withheld) complimented the defendant on the dress he was sewing.
Furthermore, the victim testified that the defendant instructed her to fetch a green tea kettle, locally referred to as “Barada,” from the room.
In her testimony, she recounted that upon entering the room, the accused confronted them while she was in the parlor and her friend was in the bedroom.
The victim testified that the accused proceeded to enter the room, instructing her to remove her garment, then forcibly pushed her onto the bed, where he proceeded to sexually assault her. She stated that he restrained her hands during the assault.
She described herself as crying during the ordeal, and when her friend arrived, the accused ceased his actions, leaving blood on the bedsheets. Allegedly, he threatened her, saying that if she reported the incident to her mother, he would inflict fatal harm upon her.
Following the incident, she and her friend returned home, where she remained silent about the assault. However, her friend disclosed the matter to someone in their community.
Subsequently, it was disclosed to her aunt by a neighbor in their compound.
The victim recounted that her compound mate confronted the accused individual, then proceeded to report the incident to the police. When questioned by the police about her witness, she identified her friend.
She stated that they visited the hospital where she underwent a medical examination.
Following the testimonies of the prosecutrix and other prosecution witnesses, the state concluded its case.
Subsequently, the defense presented a submission of no case to answer upon the closure of the prosecution’s case.
On November 21, 2022, the court rejected the submission and directed the defense to present its case.
In his defense, Muhammed Jallow, the accused, disclosed that he is a seventy-five-year-old tailor.
He explained that his late wife had remarried, and he had a five-year-old son. Jallow claimed that prior to the alleged incident, he had conflicts with his in-laws, who had taken away his wife and son.
He denied sending the prosecutrix to fetch Attaya materials and refuted engaging in sexual intercourse with her. Jallow asserted unfamiliarity with the complainant, stating he only encountered the prosecutrix in court.
During cross-examination, Jallow mentioned he is usually accompanied by his son and acknowledged the presence of mango trees and tenants in his compound, as well as his consumption of Attaya.
Despite admitting to speaking with a police officer named Abdul Aziz Jallow on a Monday, he denied making a statement to the police about the matter.
Following Jallow’s testimony, the defense called upon a second witness, DW2.
Upon DW2’s testimony, the court instructed both the prosecution and defense to submit their briefs of arguments.
Summary of Defence Counsel’s Brief of Argument
In their argument brief, Defense Counsel P.H. Jammeh succinctly presented the pertinent facts and summarized the evidence presented during the trial. They raised a pivotal question for consideration: whether the prosecution has sufficiently demonstrated the guilt of the accused beyond reasonable doubt.
Counsel Jammeh directed the court’s attention to Section 24 of the 1997 Constitution, emphasizing the presumption of innocence until proven guilty. Furthermore, they cited the precedent set in the case of Woolimington v DPP (1935) AC 462 and referenced Section 144(1) of the Evidence Act, along with the legal precedent established in the case of Bakary Daffeh v The State (2014/2015) GSLR P. 26.
Counsel Jammeh for the Defence outlined the offence of rape pursuant to section 3(1) & (2) of the Sexual Offences Act 2013.
The Defence Counsel further submitted that the prosecution’s evidence is fraught with inconsistencies and the medical report does not corroborate the charge alleged.
Counsel Jammeh refers to a plethora of case law authorities and submitted that the prosecution has woefully failed to prove the charge of rape against the accused person beyond reasonable doubt and urges the court to discharge and acquit the Accused person.
Summary of Prosecuting Counsel’s Brief of Argument
In her Argument brief, Counsel Fatoumatta Drammeh, representing the State, provided an introductory overview along with a summary of both the prosecution’s and defense’s oral testimonies before the court.
Counsel Drammeh also framed a key issue: whether the prosecution has sufficiently proven the accused person’s guilt of rape beyond a reasonable doubt.
Additionally, Counsel Drammeh conducted a legal analysis of sections 3(1) & (2) of the Sexual Offences Act 2013, citing the case of the State v Sorry Jallow (Criminal Case No HC218/17/CR/050/AO).
She directed the court’s attention to the testimony of the prosecutrix and referenced the law of Evidence by Hassan B. Jallow, Second Edition, page 81.
Furthermore, Counsel Drammeh invoked section 180(2) of the Evidence Act regarding corroboration, citing the medical certificate marked as Exhibit P3 and legal precedents such as Dawda Jallow v the State; Saikou Minteh v the State and Bakare v the State (1987) 1 NWLR PL 52 579, Oputa JSC.
She asserted that the Prosecution has sufficiently established its case beyond a reasonable doubt.
In responding to legal arguments, Counsel Drammeh contended that Exhibit P3 (Medical Certificate) lacked any mention of infection or self-inflicted injury.
Moreover, she argued that under section 7 of the Sexual Offences Act, corroboration is no longer required for offenses of a sexual or indecent nature.
Summary of Hon. Justice Ebrima Jaiteh’s Examination of the Evidence before the Court
“I have carefully listened and read through all the testimonies adduced by the prosecution’s witnesses in this trial. In as much as I have looked at the testimonies in detail, in order to ensure fairness, I will only limit my comments, my observations, and my findings to as it relates to the charge of Rape, contrary to section 3 (1)a) of the Sexual Offences Act, 2013. It is the cardinal principle in criminal cases that, the legal and evidential burden of proving every element of the offense beyond reasonable doubt lies on the prosecution,” Hon. Justice Jaiteh said.
Honorable Justice Jaiteh emphasized that whether through direct or circumstantial evidence, the prosecution is mandated by law to bear the legal burden of proving all the elements of the offense required to establish the guilt of the accused beyond a reasonable doubt.
Citing the precedent set forth in the case of WOOLMINGTON v DPP (1935) A.C. 462 HL at pages 481-482, as quoted by Honorable Justice M. M. Sey (JSC) of the Supreme Court of The Gambia, Honorable Justice Jaiteh underscored the importance of this legal principle.
Furthermore, Honorable Justice Jaiteh referenced the case of KADDY BOJANG V. THE STATE (Crim. Appeal No. 05/2012), where it was affirmed that:
“Throughout the web of the English criminal law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner’s guilt [subject to qualification involving the of insanity and subject also to any statutory exception]. If at the end of and on the whole of the case, there is reasonable doubt, created by the evidence given either by the prosecution or the prisoner, as to whether (the offence was committed by him), the prosecution has not made out the case and the prisoner is entitled to an acquittal. No matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England, and no attempt to whittle it down can be entertained,” Hon. Justice Jaiteh cited.
Hon. Justice Jaiteh said from the foregoing, it is clear that the prosecution must succeed on the strength of its own evidence and not be allowed to rely on the weakness of the defence or lies told by the accused as the basis or a conviction.
“I must clearly state that the victim’s lack of consent is not an element, and does not need to be established under the Sexual Offences Act 2013. Instead, the focus is on the presence of the coercive circumstances and conditions described above which, if established, will be sufficient for the penetration to amount to rape.
“To the extent that consent may play a role as a defence, consent cannot be inferred by reason of any word or conduct of a victim where one of these coercive conditions exists. As such, it is not necessary to show that the victim explicitly said no or resisted,” he said.
Honorable Justice Jaiteh elucidated on the matter of corroboration, highlighting that according to section 179 of the Evidence Act, 1994, corroboration entails independent evidence that allows for a reasonable inference confirming and bolstering the evidence to be corroborated. This evidence should connect the pertinent individual with the offense, claim, or defense at hand.
Furthermore, His Honor noted that Section 180(2) of the Evidence Act (aforementioned) mandates the court not to rely solely on uncorroborated testimony from a single witness, especially in cases of rape and other sexual offenses where complainants are involved.
Justice Jaiteh emphasized that Section 7 of the Sexual Offences Act 2013 abolishes what was traditionally known as the cautionary rule, indicating that the court should not handle the evidence of a complainant in criminal proceedings differently solely because the accused is charged with a sexual offense.
Expounding further, Justice Jaiteh explained that this implies that section 180 of the Evidence Act is no longer applicable to offenses of a sexual or indecent nature.
Lastly, His Honor underscored that Section 7 of the Sexual Offences Act 2013 aligns with international standards by removing the requirement to corroborate a witness’s testimony regarding sexual violence, thereby reflecting best practices internationally.
“What this court is obligated to do under section 7 of the Sexual offence Act is to be satisfied as to whether the evidence adduced is indeed convincing to connect the Accused to an offence. I must state clearly that the findings of PW6 were not debunked and uncontroverted under cross-examination. I therefore reached the conclusion that Pw1 was sexually penetrated.
“PW1 (the victim) led strong evidence and it was very consistent and steadfast as it was easy to graphically visualize from her testimony a true picture of how the Accused person lured her into his room, raped and threatened her. I believed upon the evidence of PW1 that she was raped by the Accused person, Muhammed Jallow. I must state straight away that I believe the evidence of PW1 in its entirety is truthful,” Hon. Justice Jaiteh said.
Honorable Justice Jaiteh emphasized that he remains unconvinced by the Defense Counsel’s arguments due to the reasons cited. Additionally, he pointed out that the testimony provided by the Accused is riddled with inconsistencies.
“The Accused testified that he did not know the prosecutrix and he first saw her in court and in another breath, he testified that the prosecutrix was born in CRR and not in Kombo. If the Accused did not know the prosecutrix, how did he know that the prosecutrix was born in CRR? From the foregoing reasons, this crucial element of sexual act has been established as required by law and the prosecution has proved the case of rape against the accused person beyond reasonable doubt, and this I shall hold as fact.
“From the totality of the adduced in this trial, the Prosecution has proved the charge of rape contrary to section 3 (1) (a) of the Sexual Offences Act, 2013 against the Accused person, Muhammed Jallow beyond a reasonable doubt. Accordingly, the Accused Person, Muhammed Jallow is hereby convicted on the single count of rape as charged. The convict Muhammed Jallow is hereby reminded of his right to appeal against the conviction,” Hon. Justice Jaiteh stated.
Plea In Mitigation/ Allocutus By Defence Counsel
Shortly after his client was convicted, Counsel P. H. Jammeh took the floor and begged Hon. Justice Ebrima Jaiteh of the High Court of the Gambia to temper Justice with mercy.
“I thank My Lord for the very well-considered judgment. What happened in this matter is very unfortunate. My Lord the convict is over 75 years old he has a serious health condition. My Lord, I would like you to take into consideration, the time the Convict spent in custody and I would urge My Lord to temper justice with mercy,” Counsel P. H. Jammeh pleaded to Hon. Justice Jaiteh.
Sentencing By Hon. Justice Ebrima Jaiteh
After considering the plea for leniency from the convict’s counsel, and noting that the convict is over 75 years old and suffering from a severe medical ailment, it is requested that the court exercise compassion in its judgment.
Honorable Justice Jaiteh sentenced the convict to 20 years of imprisonment.
“Before passing sentence, I find it expedient to state that the modern trend in the administration of criminal justice requires the court to give the offender the punishment which is proportionate to the offence, taking into consideration such factors as offence.
seriousness, protection of the public and mitigating circumstances See ARCHBOLD on Criminal Pleadings, Evidence and Practice (1999) at page 904: Emmins on Criminal Procedure (5″ Ed.) at pages 255-264.
“I have noted the seriousness of the offence committed and the particular Circumstances in which the convict committed the offences are so grave because he ravished a young girl who could not understand the impact of the act and he did not care how traumatizing it would be on the victim and her parents. This is a beastly display of manhood and very selfish way of satisfying greed for sex. The convict therefore is a real danger to women and girls in that neighbourhood. It is people like the convict who should be kept away from society for some time,” Hon. Justice Jaiteh said.
Honorable Justice Jaiteh emphasized that a convict who is over 75 years old and found guilty of rape should not receive any sympathetic consideration. Additionally, he expressed his strong disapproval, repulsion, and contempt towards the criminal who sexually assaulted a vulnerable young girl for their own sexual gratification.
“There is rampant upsurge of raping young girls now in the society and is deeply troubling and has the potential to create fear in women and to move freely in our society and therefore it must be discouraged. The society needs protection from this kind of people. I shall pass a deterring sentence. It is for this reason that I shall sentence the convict Muhammed Jallow as follows:
“The Convict Muhammed Jallow is hereby sentenced to 20 years imprisonment on the Count of Rape contrary to section 3(1)(a) of the Sexual Offences Act, 2013. This sentence should start from when the convict was first taken into custody. You are reminded of your right to appeal against this sentence. I make no further Order,” Hon. Justice Jaiteh delivered his judgment.