Court of Appeal Overturns Taxi Driver’s Acquittal in Rape and Robbery Case

The Gambia’s Court of Appeal has overturned the acquittal of taxi driver Ismaila Ndong on charges of rape, robbery, and indecent assault, ruling that the trial judge erred in dismissing the prosecution’s case without requiring the accused to present a defence.

In a judgment delivered by Justice A. Saho-Ceesay, a three-member panel found that Justice Francis Achibonga had improperly assessed the prosecution’s evidence when he upheld Mr. Ndong’s no-case-to-answer submission on February 28, 2023.

The appellate panel, comprising Justices B.V.P. Mahoney, who presided; K. Sillah and A. Saho-Ceesay, unanimously set aside the acquittal and ordered the case returned to the High Court for proceedings before a different judge.

The court declared that the prosecution’s appeal “succeeds in its entirety.”

Mr. Ndong faces a 20-count indictment involving allegations of rape, robbery and indecent assault against female passengers between November and December 2019.

Prosecutors allege that Mr. Ndong, who operated a yellow-and-green Mercedes-Benz taxi bearing registration number BJL 4176 R, acted alongside one or more accomplices in committing the offences.

Mr. Ndong has pleaded not guilty and denied the allegations.

During the original trial, the prosecution called 18 witnesses, including complainants and police officers. The testimony of one witness, identified as PW10, was subsequently struck from the record after she declined to continue giving evidence.

Police witnesses testified that officers from the Anti-Crime Unit intercepted Mr. Ndong at a checkpoint following intelligence concerning a taxi driver with dreadlocks. Officers reported recovering knives, screwdrivers, a wheel puller, and pieces of cloth from the vehicle.

In his February 2023 ruling, Justice Achibonga concluded that prosecutors had failed to establish sufficient evidence connecting Mr. Ndong to the alleged sexual offences.

He found that the prosecution had not presented evidence suggesting that Mr. Ndong personally engaged in sexual acts with any of the complainants.

On the robbery charges, the judge similarly determined that prosecutors had failed to establish that Mr. Ndong stole property from any complainant, an essential element of the offence.

Justice Achibonga consequently upheld the defence’s no-case submission on all counts, acquitting and discharging Mr. Ndong without requiring him to testify or present evidence.

The State challenged that decision on 14 grounds of appeal, including objections to the acquittals on counts 1 through 6, 9, 12, 13, 16, 17, 18, and 20.

In overturning the ruling, Justice Saho-Ceesay found that the trial judge had applied an excessively demanding standard of proof at a preliminary stage of the proceedings.

She said Justice Achibonga had evaluated the evidence as though delivering a final judgment, effectively requiring prosecutors to eliminate reasonable doubt before the accused could be called upon to answer the charges.

The Court of Appeal held that this approach amounted to a legal misdirection.

The appellate judges acknowledged weaknesses in the prosecution’s identification evidence, including the circulation of Mr. Ndong’s photograph on social media, inconsistencies surrounding an identification parade and concerns that witnesses may have influenced one another.

Those concerns, the court said, were “not without force.”

However, the judges concluded that such weaknesses should be assessed in determining the reliability and weight of the evidence at the conclusion of the trial, rather than serving as grounds for dismissing the case before the defence was heard.

The court also found that Justice Achibonga had failed to properly consider provisions of the Criminal Code governing criminal participation and shared responsibility.

Sections 23 and 24 of the code, which have since been repealed but were applicable when the alleged offences occurred, address aiding, abetting and common intention.

Under those provisions, the appellate court explained, an accused person need not personally carry out every element of an offence to be held criminally responsible.

The judges noted that prosecutors had presented evidence alleging coordinated conduct between Mr. Ndong and an accomplice, including claims that he drove the vehicle, issued instructions and exercised control over the complainants.

The court further rejected the trial judge’s position that the charges should have expressly identified Mr. Ndong as having aided and abetted the alleged offences, explaining that a person accused of participating in a crime may be charged as a principal offender.

Regarding the robbery allegations, the appellate judges found that Justice Achibonga had focused too narrowly on whether Mr. Ndong personally took property from the complainants.

The relevant question, the court held, was whether the evidence was sufficient to establish a case requiring an answer concerning his alleged participation in a joint criminal enterprise.

Despite reinstating the proceedings, the Court of Appeal emphasized that its ruling did not constitute a finding of guilt.

The judges said the prosecution’s evidence “may ultimately be accepted or rejected following a full trial,” but concluded that it was not so weak or discredited as to justify terminating the case at the no-case-to-answer stage.

The ruling means Mr. Ndong must now present his defence before a different High Court judge, who will determine the case after considering the evidence from both sides.

C.C. Njie, assisted by A. Gibba, represented the State, while K. Sanyang appeared for Mr. Ndong.