Thursday, June 1

Court rejects Defense Application to Presume Accused as Minor

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By Mama A. Touray

Justice Isatou Janneh of the Kanifing High Court last Wednesday rejected defense Council, Tamsir B Jallow’s application for the court to presume the second accused as a minor in the ongoing Binta Gassama murder case.

Through his application, Counsel Tamsir B Jallow told the court that they (the defense) have an application which is pursuant to section 2331 of the Children’s Act and that the said application is brought on behalf of the second accused for the issue of his age to be settled in the same attachment in the exhibit.

Counsel Tamsir referred the court to the cautionary and voluntary statement filed by the State as their bill of indictment argued in the cautionary statement the age recorded by the state is 18yrs and in the voluntary statement, they recorded 17yrs.

He added that the issue of determining the age is fundamental as it is one of the most important when it comes to trial.

He said the juvenile justice system is there where minors could be tried and that according to the definition of a child by law, a child is someone under the age of 18yrs and that 204 of the Children’s Act clearly stated that children can only be subjected to the juvenile justice system even though there is an exception as provided of the children’s Act.

“My Lady the court has the power to presume the age of the second accused, the evidence that the State tends to rely on and is telling the court that it is an error, we are arguing that it is not an error, it is our position that second accused is a minor and we want the court to presume that he is a minor and treat him as such.”

He went on to say that all documents obtained during the investigation were presented before the court. “I refer my Lady to the cautionary statement obtained by Ousman Colley which indicated that the accused is 18 years and it stated he is charged with conspiracy to commit a felony I also refer my lady to another statement taken by Fatou Bojang in November 2022, and that is where 17 years was recorded for the 2nd accused where he was charged with murder by Ousman Colley.”

However, State Counsel Mariama Singhateh, argued that the argument made by the defense Counsel Tamsir B Jallow has no foundation and that this is a way to delay the trial.

“The Children’s Act will only stand with proper documentation, and we request the court to reject the submission made by the defense for the trial to continue.” 

She further argued that whatever information that is presented by the State was said by him (the second accused), she stated that the second accused first told them on 6th September 2022, that he is 18yrs, the following month in November he said he is 17yrs.

“This may as well be a play by the second accused not to face a major Charge knowing the consequences of the offense allegedly committed and the court cannot presume the age of the accused because age is a factor,” she argued.

Justice Isatou Janneh in her ruling said she found herself to be in favor of the State that the court does not have the power to presume the age of the second accused, and later ordered for the second accused to be taken to the Edward Francis small teaching hospital for determination of his age.

Meanwhile, when the case resumed in court on Tuesday, the case was called in the absence of the defense counsel. State Counsel M. Singhateh told the court that on the last adjourned date the court made an order for examination of the second accused to determine the age and that she asked the Prison Warders if they had taken the accused to the hospital but they responded negatively and that they were unable to effect the order made during the last adjourned date.

Justice Isatou Janneh later asked the court to give an order to the prison escort which was received by Officer Edi Correa that the second accused should be taken to the hospital for the determination of his age.

The first and second accused were charged with three counts, Conspiracy to commit a felony, Murder, and Robbery.

According to the three particulars of their offense, the two accused on or about the 4th day of September 2022 within the Kanifing Municipality allegedly conspired to rob, Binta Gassama in her compound and strangled her to death. 

The particulars continued that the two accused allegedly caused the death of Binta Gassama, a 62-year-old woman by suffocating her to death.

And lastly that they allegedly Robbed Binta Gassama (now deceased) and made away an iPhone, a tablet, a Samsung mobile phone, a router, a power bank, a car key, jewelry, a headphone, and other belongings.

The matter was adjourned to the 11th May 2023, at 2 pm for a hearing of the result.