Magistrate Acquits Austrian Couple After Prosecution’s Own Witnesses Confirm Compliance With Court Order

A Banjul magistrate has acquitted and discharged two Austrian nationals charged with disobeying a lawful court order, ruling that the prosecution’s case had “collapsed” before the defence was even required to answer—with the charge ultimately undone by the testimony of the State’s own witnesses.

Magistrate Krubally delivered the ruling on June 10, 2026, acquitting Manuel Di Stofleth Mitterer and Angelika Mitterer of a single count of disobedience to a lawful order under Section 109 of the Criminal Offences Act 2025. He ordered the immediate return of their passports, laptop, cryptocurrency devices, and all other assets seized in connection with the matter.

The case originated from a criminal complaint lodged at the Serious Crime Unit of the Gambia Police Force by two individuals, Ebrima Tamba and a Mr. Marcell, who alleged fraud or theft against the couple. The Mitterers, Austrian nationals resident in The Gambia, had been living in Brufut Heights and held reported property interests in Kololi as well as shareholding stakes in local businesses.

Investigators led by Chief Superintendent Bakary Dibba and Superintendent Lamin Saidykhan focused their attention on a cryptocurrency account alleged to have been used in the disputed transactions—an account said to be accessible through a Microsoft laptop recovered from the couple’s home. When investigators requested access to the laptop, the couple declined, citing their constitutional right to privacy.

On July 21, 2025, the prosecution unit at Police Headquarters applied to the Banjul Magistrates’ Court by way of an ex parte motion, supported by a 25-paragraph affidavit. The court, presided over by Magistrate Krubally, granted all five reliefs sought, directing the couple to open or provide the password to their laptop, to allow police access to their cryptocurrency account, and to furnish investigators with the account address and wallet addresses. That order—admitted at trial as Exhibit A—would become the centerpiece of the subsequent prosecution.

The couple was served with the order while in police custody and charged on July 28, 2025, with jointly disobeying it by failing to provide access to their cryptocurrency account, its password, and its wallet addresses.

Both accused entered pleas of not guilty. The bail hearing that followed was vigorously contested. The prosecution, represented by Commissioner A. Sanneh, opposed bail on the grounds that the couple were foreign nationals with apparent intent to flee, claiming intelligence suggested they had attempted to leave the country on the morning of their arrest.

Senior Counsel S. M. Tambadou, appearing for the defence, countered that the couple had been voluntarily reporting to the Serious Crime Unit daily since July 9, 2025, and had previously been on police bail on related allegations—including stealing and conspiracy to steal—without any attempt to abscond. He further noted that the accused owned property in Kololi, held active business interests in the country, and had an eight-year-old daughter at home in the care of a friend, unaware of her parents’ whereabouts. The court granted bail at D100,000 each, with conditions requiring a responsible Gambian or Austrian surety.

When the matter was called for hearing on August 14, 2025, Senior Counsel Ida Drammeh filed a motion for the recusal of Magistrate Krubally. She argued that since it was the same magistrate who had made the ex parte order of July 21 — the alleged breach of which formed the basis of the charge — there existed a real likelihood of bias, as the court would, in effect, be judging whether its own order had been disobeyed.

The prosecution opposed the application as a dilatory tactic. Magistrate Krubally dismissed it, applying the objective test from the English case of R v Sussex Justices — whether a fair-minded and informed observer would perceive a real possibility of bias — and concluding that no such basis had been established. He noted that judicial officers routinely make interlocutory orders and thereafter preside over related proceedings, and that making the July 21 order was a routine judicial function conferring no personal or pecuniary interest in the trial’s outcome. He further cited the NIA Nine case and Halifa Sallah and Others v The State (2002/08 GLR Vol. 1) in support of his position.

When the prosecution opened its case, it called two witnesses: PW1, Chief Superintendent Bakary Dibba, and PW2, Superintendent Lamin Saidykhan. Both gave evidence in chief that the accused had refused to comply with Exhibit A and that investigators had been unable to access the cryptocurrency account or its transaction history.

However, the prosecution’s case began to unravel under cross-examination by Senior Counsel Tambadou.

PW2 — whose evidence proved most consequential — confirmed that the first accused had opened the laptop and that the second accused had provided a written password on a piece of paper. He further acknowledged that the second accused had produced a black box and a stick device used to access cryptocurrency accounts, both of which were now in police custody. He also confirmed that during a session at the police station, the accused had accessed the laptop — which was configured in German — and had printed a document connected to the cryptocurrency account directly from the browser, in the presence of investigators.

PW2 also revealed that at the time investigators sought to open the laptop, it was not connected to the internet. When invited to demonstrate access to the laptop in court, he said he could not do so because the battery had run down and he did not have the password with him.

Following PW2’s testimony, the prosecution closed its case without calling further witnesses.

Senior Counsels Tambadou and Drammeh filed a detailed written no-case submission dated April 27, 2026, invoking Section 215 of the Criminal Procedure Act 2025, which requires a court to dismiss and acquit where, at the close of the prosecution’s case, the evidence is insufficient to require a defence.

The submission turned on a precise reading of Exhibit A. Order 2 of the July 21 court order directed the accused “to open, allow or provide password to the said laptop” — language framed in the alternative, requiring compliance with any one of those three acts. Order 3 directed them to provide the cryptocurrency account address and wallet addresses to the police.

The defence argued that no order had been made requiring the couple to provide the password to the cryptocurrency account itself — only the laptop password and the wallet addresses. On that interpretation, the prosecution’s own witnesses had confirmed full compliance: the laptop had been opened and a password provided; the black box and stick device had been handed over; and a document from the cryptocurrency account had been printed in police presence. Whatever technical difficulties investigators subsequently encountered, counsel submitted, were their own problem — not the accused persons’. In pointed terms, the submission characterised the charge as the police having “visited their frustration and lack of ability to progress on the accused persons.”

Commissioner Sanneh filed an opposition, arguing that the accused had only partially complied by providing the laptop password while withholding the cryptocurrency account passwords specifically, and that partial compliance did not fulfil the court’s order. He also challenged the defence’s reliance on the 1962 Lord Parker Practice Note, arguing it had been revoked and was no longer applicable.

Senior Counsel Drammeh’s reply contested that characterisation, citing R v Galbraith [1981] 1 WLR 1039 for the proposition that the Parker principles had been refined rather than revoked. She also noted that the prosecution’s address had asserted, without any supporting evidence, that the Gambia Police Force maintained an IT unit staffed by personnel with master’s degrees capable of navigating cryptocurrency systems — a fact not placed before the court. Relying on Bala Ataguba v Commissioner of Police and Oduwole v David West, she submitted that an address cannot substitute for evidence and that the burden of proof remains with the prosecution throughout.

Magistrate Krubally framed his analysis around three questions: whether the accused had complied with the July 21 order; whether they had disobeyed it; and whether the prosecution had established a prima facie case requiring a defence. He resolved all three in favour of the accused.

On compliance, he found PW2’s cross-examination evidence — confirming that the laptop had been opened and a written password provided — to be unequivocal proof of compliance with Order 2 of Exhibit A. He further noted that the prosecution had never explained in oral evidence why the cryptocurrency account could not be accessed once the laptop was opened, or whether the account was even stored on the laptop. “I cannot conjecture and speculate upon that for determination,” he said.

On the question of disobedience, Magistrate Krubally drew on PW2’s concessions that the second accused had produced the black box and stick device and had printed a document from the cryptocurrency account’s browser in police presence, concluding that the accused had provided the password, opened the laptop, and furnished the cryptocurrency account access tools in order to comply with the order’s reliefs. He observed that the order had not required the accused to provide the password to the cryptocurrency account itself, and he declined to read in a requirement that was not there.

Applying the test from Ceesay v Commissioner of Police (1960–1993 GLR 110), in which the Court of Appeal held that a no-case submission should succeed where the prosecution’s case has “obviously collapsed,” Magistrate Krubally found that threshold met. Both prosecution witnesses had contradicted their own evidence in chief during cross-examination, and the evidence that had been used to build the charge had, in the end, dismantled it.

Invoking Lord Denning’s principle that one cannot build something on nothing and expect it to stand, and drawing further on Hunter v The Queen and Abdoulie Conteh v The State, Magistrate Krubally acquitted and discharged both accused of the charge under Section 109 of the Criminal Offences Act 2025.

Magistrate Krubally declared both accused free forthwith and ordered the return of all property and bonds held by the police and the court — including the Microsoft laptop, the cryptocurrency black box, the stick device, the passports of both accused, any security bonds, and all other assets seized in connection with the matter. Their sureties were discharged.

On the matter of the passports, the magistrate did not wait for the full verdict. He noted from the record that the laptop had been in police custody since July 9, 2025 — nearly a year — and that the passports of the accused had been held for an equally lengthy period without resolution, describing this as an unreasonable and unconstitutional infringement of their right to freedom of movement.

Before the ruling was complete, the court had already addressed an emergency application by Counsel Drammeh for the return of Angelika Mitterer’s passport on medical grounds. She presented documentary evidence that her client required surgery in Germany and needed to travel by June 12, 2026. The prosecution raised no objection, and the court ordered the immediate return of her passport.