By Mamadou Dem Magistrate Samsideen Conteh of the lower court in Banjul Wednesday, 24th December, 2014 transferred the ‘aggravated homosexuality’ case of suspected homosexuals to the high court and ordered the accused persons to be remanded in prison custody.The accused persons are facing trial on a single count charge of ‘Aggravated Homosexuality’ contrary to Section 144A (1) (f) of the Criminal Code as amended by the Criminal Code (Amendment) Act 2014. During the course of the proceeding, Modou Lamin Bittaye, the third accused person, who is said to be an asthmatic patient, collapsed in court. While standing in the box, he complained to his counsel, Mr. Borry Touray, that he is suffering from an asthma attack. The lawyer then applied to the court for his client to be allowed to be seated and which was granted. However the condition of the accused worsens as he wheezed heavily, he collapsed on the floor and was eventually rushed to the hospital under the escort of NIA operatives. Barrister Touray represented Bittaye, the third accused, Mrs Combeh Gaye Coker, is representing Momar Sowe and Alieu Sarr, the first and second accused persons respectively. The particulars of offence on count one states that Momar Sowe at various times and dates and at diverse places in the Gambia and elsewhere within the jurisdiction of the court engaged in homosexual acts with Modou Lamin Conteh, Iker Nyan, Albert and Kebba Ceesay and thereby committed an offence. On Count two, the particulars of offence states that Alieu Sarr at various times and dates and at diverse places in the Gambia and elsewhere within the jurisdiction of the court, engaged in homosexual acts with Sheikh Bob, Mamond, Fallou Camara, Serigne Mboob and Modou Boy Jallow and thereby committed an offence. The third count states that Modou Lamin Bittaye, at various times and dates and at diverse places in the Gambia and elsewhere within the jurisdiction of the court, engaged in homosexual acts with Saloum Njie, Njanko Ceesay and Jibbou Jatta and thereby committed an offence. The trio, who denied any wrongdoing, was subsequently remanded in prison custody pending their appearance at the high court. Prior to the court ruling, Hadi Saleh Barkum, the Director of Public Prosecutions (DPP), applied for the accused persons to be remanded in prison custody as well as for the matter to be transferred from the lower court to the high court. He argued that this type of case is normally tried at the superior court. This application was objected to by Barrister Touray who argued that the lower court has the jurisdiction to handle all offences except treason and economic crime. He added that the court can also take judicial notice that the high court is on vacation. The defence counsel further told the court that allowing the state’s application for a transfer would mean that the matter will not be heard until after the vacation of the high court. “Secondly, I wish to make an application for the court to order the severance of the counts for the third accused to be tried separately with the first and second accused persons respectively,” he submitted. He argued that the alleged cases are not committed at the same time. He said “They are not offences of the same transactions, same and similarities, the dates, time and places have been omitted from the charge sheet,” he said. The counsel for the third accused further argued that the locus of the alleged crime was not identified, adding that the guiding law of jurisdiction of offences is permitted under Section 114 of the Criminal Code. He said they are not joined in the same counts but are tried together. “Let me echo with caution that Section 112 of the Criminal Code does not avail the prosecution in this case. There is only one offence before this court allegedly committed by different persons at diverse places and time,” he submitted. He continued: “Even from the particulars of offence, the testimonies are exclusive and information regarding the location and time has been suppressed.” He argued that if evidence or evidences are adduced during the course of trial which has the tendency of embarrassing them to the ingredient of the offences, the rest of the accused persons stand at trial for that embarrassment. He finally submitted that the state has the capacity for the severance of the charges and therefore urged the court for the trial to be conducted separately. Responding to the defence’s application, the DPP urged the court to transfer the case to the high court by virtue of Section 5 of the Criminal Procedure Code. He said the defence’s application should have been before the taking of the plea at the commencement of the case. He cited Section 161A and Section 218 of the CPC and urged the court to disregard the defence’s application and grant the prosecution’s prayers. Replying on points of law, Lawyer Touray submitted that the state’s submission that he does not identify the class of persons that should be joined amounts to a conjecture. He added that he was not applying for the amendment of the charges before the court. “The charges before the court are substantive charges and not a holding charge,” he concluded. Delivering the ruling, Magistrate Conteh, in addition to transferring the matter to the high court and remanding the accused persons, also ordered for the third accused to be tried separately. When the third accused person collapsed in court, his female relatives, who were also in the courtroom, were seen crying.]]>
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