Lecture Notes On Criminal Procedure

UNIVERSITY OF THE GAMBIA
SCHOOL OF LAW
LAW 407 - CRIMINAL PROCEDURE
LECTURE NOTES - FINAL YEAR LAW
General Introduction
A trial is a judicial examination and determination of issues between the parties in

accordance with the law of the land. The issues between the parties may be civil or
criminal. Where the issues between the parties are criminal, then a criminal trial is being
undertaken by the court.
A criminal trial can be divided into three distinct but equally important phases; the pre-
trial phase, the trial phase and the post-conviction/acquittal phase (appeals). However,
these lectures have been structured into four distinctive parts. The General
Introduction; the pre-trial phase; the trial phase; and the appeals phase.
Part One: Foundational Issues in Criminal Law Practice
In the first part I present the foundational issues in criminal practice including the
conceptual (definition) and legal (sources) frameworks of criminal procedure law in the
Gambia; the two types of criminal trial systems, and that which is applicable to Gambia;
and the general rules governing criminal trials.
1.1. Conceptual Understanding of Criminal Procedure
Criminal procedures are the framework of laws and rules that govern the
administration of justice in criminal cases, starting with initial police contact and
continuing through arrest and or searches, investigation, trial, judgment, sentencing
and appeals. They serve as safeguards against the indiscriminate application of criminal
laws and the wanton treatment of suspected criminals, and are designed to enforce the
fair trial rights of suspected criminals.
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1.2. Sources of Criminal Procedure Laws in The Gambia
There is no single source of criminal procedure law in The Gambia. Rather, Gambia‟s
criminal procedure laws draws on three main sources; the Constitution, the Criminal
Procedure Code and other Acts of the National Assembly. This section, consequently,
will examine these three major sources of criminal procedure laws in The Gambia.
1.2.1. The 1997 Constitution: The Bill of Rights contained in Chapter IV of the 1997
Constitution provides an important starting point for understanding the practice of
criminal law in the Gambia. The Constitution in its section 19, 21, 23, 24 and 33 provides
important regulatory framework and affords practical bench marks for the investigation
and prosecution of crimes. Jointly, these sections provide the constitutional framework
of the rules governing criminal trial processes.
Section 19 protects the right to personal liberty by, inter alia, prohibiting arbitrary
arrests and detentions. First, a person cannot be subjected to arbitrary arrest and
detention.1 The concept of arbitrariness applies to both the law under which a person is
arrested and or detained to the application of the law. The term arbitrary would mean
an arrest or detention that includes elements of inappropriateness, injustice, and lack of
predictability and due process of law. An arrest or detention may be arbitrary if the law
is arbitrary or if the actions of the arresting police officer are arbitrary. Thus, an arrest or
detention which is lawful may nonetheless be arbitrary under section 19 of the
Constitution if the law under which the person is arrested and or detained is vague,
overbroad, or is in violation of other vested rights in the Constitution. For example, the
deprivations of liberty that is motivated by discrimination would constitute an arbitrary
act and therefore offend section 19(1) for violating the individual‟s right to freedom
from discrimination set out in section 33 of the Constitution.
1 Section 19(1) of the Constitution
2
Second, by virtue of section 19(2) of the Constitution, a person arrested, restricted or
detained is entitled to be informed within three hours, in a language he understands, of
the reasons of his arrest or detention and of his right to consult a legal practitioner.
Third, where a person is arrested upon reasonable suspicion of his having committed or
being about to commit a criminal offence and such a person is not released, he must be
brought before a court within seventy-two hours after the arrest,2 and that person shall
not be further detained save upon the order of court.3
Fourth, any person who is arrested and or detained is entitled to a fair trial within a
reasonable time otherwise that person should be released either unconditionally or
upon reasonable conditions.4 There are two issues involved here; the issue of fair trial
and the issue of reasonable time.
In Gamstar Insurance Company Ltd. v. Musa Joof,5 the Gambian Court of Appeal held
that the right to fair trial does not mean a right to a protracted trial. It means a
reasonable opportunity to present or state one‟s case within a reasonable time. This
definition was broadened in the case of Ousman Baldeh & Riad Azziz v. Tijan Jallow6
where the Gambia Court of Appeal went further to hold that a fair hearing (trial) is one
that does not contravene the principles of natural justice. In the GAMSTAR CASE
(Supra) the court held that what is reasonable time will depend on the peculiar
circumstances of each case.
The question of the right to a fair trial within a reasonable time of a person arrested for
committing a crime was considered by the Gambian Supreme Court (High Court) in the
case of Clarke & Garrison v. Attorney General.7 The applicants, United States citizens,
2 S. 19(3)(b) of the Constitution.

3 S. 19(4) of the Constitution
4 S. 19 (5) of the Constitution
5 2002-2008) 1 GLR, 103
6 (2002-2008) 2 GLR, 284
7 (1960-1993) GR, 448
3
were arrested on 4 February 1990. On 8 February, they were arraigned before a
Magistrate on several charges which included the cultivation of the plant cannabis
sativa, contrary to section 9(1) (c) of the Dangerous Drugs Act. The trial was abandoned
by the prosecution. The applicants were again arraigned before the same court on 2
April 1990 on the same charges. Proceedings were later terminated by the prosecution
entering a nolle prosequi. In June 1990, the applicants were again put before a Magistrate
court for trial on charges which did not include the charge of cultivation of cannabis.
The applicants were convicted on those other charges and sentenced to a fine.
Subsequently, on 7 January 1992, the applicants were again arrested by the Gambian
Gendarmeries and put before another Magistrate court for trial in respect of the drug
cultivation charge. Whilst the proceedings were pending, the applicants brought a
motion before the court for a declaration that their right to a fair trial within a
reasonable time had been infringed contrary to section 20(1) of the Gambia Constitution
(1970).
On the facts of the case, the court held that the applicants‟ right to a fair hearing within
a reasonable time had been infringed; that on giving a generous and purposive
construction to section 20(1) of the 1970 Constitution (the same more or less as section
19(3) (b) and (5) of the 1997 Constitution) the benefit of that section should accrue to any
person firmly accused of a criminal offence whether or not he had been charged before
a court. In effect, the court held that the time for calculating the period of unreasonable
delay should commence from the date of arrest and not the date the accused was put
before court.
On the issue of whether an accused person (such as the applicants) has been deprived
of his right to a fair trial within “a reasonable time”, the Court identified the following
guidelines gleaned from the decided cases: First, the four factors suggested by the
United States Supreme Court in Barker v Wingo, namely: (i) the length of the delay; (ii)
reasons given by the prosecution as justification for the delay; (iii) the responsibility of
the accused for asserting his rights; and (iv) prejudice to the accused. Second, in
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considering whether reasonable time has elapsed, regard must be had to the past and
current problems affecting the administration of justice in the particular country as
suggested by the Privy Council in both Bell v Director of Public Prosecutions and
Mungroo v R. Third, that what is “reasonable time” cannot be prescribed but must be
determined from case to case having regard to the circumstances of each case. The
Court also held that where there was no justification for the delay for a fair trial within a
reasonable time, the absence of mala fide on the part of the prosecution, would not make
such delay reasonable; and that it was unnecessary for an applicant for a declaration
under section 20(1) of the Gambia Constitution to prove mala fide on the part of the
prosecution. The reasoning in this decision is still good law under the current (1997)
constitutional dispensation.
Section 21 protects the right to security of the person by, inter alia, prohibiting inhuman
treatment such as torture or inhuman degrading punishment or other treatment. The
content of this right raises at least two issues directly related to the pre-trial phase and
sentencing stage of a criminal trial process.
First, it shall not be lawful for a criminal suspect to be subject to torture in any way
either during arrest or while in detention. The term “torture” would generally cover
any act which causes severe pain or suffering and is intentionally inflicted on a person
to obtain information or a confession, for an act that person has committed or is
suspected of having committed, or to intimidate or coerce that person, or for any reason
based on discrimination of any kind at the instigation of, or with the consent or
acquiescence of, a public official or other person acting in an official capacity. Torture
encompasses a variety of methods including severe beatings, electric shock, sexual
abuse and rape, prolonged solitary confinement, extreme hard labour, near drowning,
near suffocation, mutilation, and hanging for prolonged periods. Thus, while
reasonable force is required to compel submission to an arrest; no force than is
reasonable proportionate is in the circumstance will offend section 21.
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Second, in passing sentence on a convicted criminal, it shall not be lawful for the Court
to impose a punishment that is cruel or inhuman. In this regard the imposition of
corporal punishment of 30 strokes of cane on a 75 year old convict in terms of s. 30(1) of
the Criminal Code, will not only violate s. 30(2) (c) of the same Code, but would also
amount to cruel and inhuman punishment. Admittedly, the corporal punishment of
whipping the convict generally appears to be in conflict with the provisions of s. 21 of
the Constitution.
Section 23 protects the right to privacy by, inter alia, prohibiting searches of the person
or his home except as otherwise directed by a competent judicial authority or where
delays in obtaining such judicial directives may occasion grave prejudice and in strict
compliance with law that guarantees protection from abuses.8 The content of this right
raises at least two issues directly related to the pre-trial phase of a criminal trial process.
First, a search of a person or his home may only be conducted under the power of a
warrant issued by a competent judicial authority. Second, a warrantless search may
only be conducted if it can be demonstrated that delays in obtaining a warrant posed a
serious danger of prejudicing the object of the search.
Section 24 protects the right to fair trial by providing, inter alia, that, the accused be
informed immediately in a language he understands as to the nature of offence
charged;9 no person shall be convicted for criminal offence unless the offence is defined
and the penalty prescribed by law;10 an accused be afforded adequate facilities for his
defence;11 and the general question of the right of an accused person to be given reasons
by the trial court for convicting him of a criminal offence.12
8 Section 23 (2) (a) & (b) of the Constitution

9 Section 24(3) (b) of the Constitution
11 Section 24(3) (e) of the Constitution
12
6
Section 24 also provides the constitutional framework for the special pleas of autre fois
convict or autre fois acquit,13 and ‘pardon’,14 and captures the presumption innocence15
and the right from self incrimination16in criminal investigations and trials. In addition,
section 24 announces two important principles: the principle of legality and the
principle of non-retroactivity of crime. First, a crime is not a crime unless the law unless
otherwise expressly provided by law. Therefore, a person cannot be investigated and or
prosecuted for actions unless those actions were punishable as crimes under the laws of
The Gambia at the time such actions occurred. This also means that no penalty or
punishment can be imposed on a convicted person which is more severe in degree or
description than the maximum penalty that could have been imposed for that offence at
the time of the commission of the offence.17 The mandatory right to counsel in capital
offence cases18 further strengthens the fair trial rights of the accused.
The second principle, known as the principle of non-retroactivity of crime, means that
no ex-post facto laws or punishments are allowed. An ex-post facto law is one that is
passed by the National Assembly and which comes into force after a person takes
certain actions. For example, imagine that in June 2010, a man sells his cow to another
man for D10 000. Then, in October 2010, the National Assembly passes a law that says
that a cow may not be sold without certification from the Ministry of Livestock and
Fisheries that it is free of diseases. The penalty for selling the cow without this
certification is a fine of D5000. Under the principle that no ex-post facto laws may be
imposed, the man may not be charged with violating the law passed in October 2010
because his actions were not criminal in June 2010, which was when he committed
those actions. Therefore, a law cannot be applied retroactively to punish conduct that
was not criminal at the time of its commission.

15
Section 24 (3) (a) of the Constitution
18 See Proviso to section 24(3) (d) of the Constitution.
7
The same prohibition against ex-post facto laws applies to punishments. For example,
imagine that the law was passed in May 2010, rather than October 2010, so that it was in
force when the man sold the cow in June. Then, in July 2010, a month after the man has
been charged with selling the cow without the proper certification, the National
Assembly passes a new law changing the penalty from D5000 to D10 000. The man
cannot be made to pay the higher fine because the penalty codified in the law at the
time he committed the offense was only D5000.
The only exceptions to the rule of ex-post facto laws are when a law has been amended
to reduce the punishment for an offense or re-categorize the offense as a lesser offense
or when the law has been amended to no longer consider the actions a crime under the
laws of The Gambia.
Apart from the Constitution, as the main source of law, the power to pass laws that
regulates criminal trials is vested in the National Assembly;19 provided always that such
laws do not contravene any provisions of the Constitution.20 Acts of the National
Assembly are therefore another important source of Criminal Procedure Law in The
Gambia.
1.2.2. The Criminal Procedure Code (CPC): In addition to the Constitution, the other major
source of criminal procedure law in The Gambia is the Criminal Procedure Code Cap
(CPC) 11:01. The CPC is the single most encompassing piece of procedural penal
legislation in the Gambia. First enacted in 1933,21 the CPC has undergone numerous
amendments beginning in 193722 through 2005.23 The durability of the code is due
largely to its completeness, and to its thorough descriptions of the regulatory
framework for criminal law practice, addressing issues from the pre-trial phase through
the trial to the Appeal phases of criminal law practice. Although the CPC is structured
19 See section 100 of the 1997 Constitution.

20 See section 4 of the 1997 Constitution
21 Act No 26 of 1933
22
Act No 7 of 1937
23 Act No 5 of 2005
8
into ten parts; these various parts can be conveniently re-grouped under three major
parts, to correspond with the three distinctive phases of a criminal trials.
1.2.3. Acts of the National Assembly: In addition to the above sources, Acts of the
National Assembly also provides another source of criminal law practice in the Gambia.
Although the Criminal Procedure Code technically falls into this category, as it was
passed into law through a legislative process; it is placed in its own category for the
purposes of these lectures, because the other, more recent criminal procedure laws are
contained in one substantive penal `law or another passed by the legislature. Examples
of this type of legislative enactments include, inter alia, the Drug Control Act (DCA)
Cap 13:05, and the Economic Crimes (Specified Offences) Act (ECSOA) Cap 13:07.
While section 63 of DCA lays out the procedure for the use of covert monitoring devices
in the investigation of narcotic offences; sections 70, 71, 73 details out the procedures for
warrantless searches and arrests for narcotic related offences. Section 74 on its part
provides for post-seizure procedures.
With regards to the ECSOA, section 4 provides the rules for the detention and remand
of a person suspected of having committed an offence under the Act. While section 7
lays out the procedures for trial in absentia for offences under the Act, section 9 details
how trials under the Act should be conducted.
These are specific criminal procedure laws, which may sometimes function in harmony
with or differ from the common principles contained in the CPC. These pieces of
legislations, together with the CPC and the Constitution constitute the legal framework
for criminal law practice in The Gambia.
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1.3. Types of Criminal Trial Systems
There are basically two types of criminal trial systems. The adversarial system used in
common law countries including The Gambia is an alternative to the inquisitorial
system, common in civil law countries.
The inquisitorial system is generally described as a system that aims to get to the truth
of the matter through extensive investigation and examination of all evidence. The
adversarial system aims to get to the truth through the open competition between the
prosecution and the defence to make the most compelling argument for their case.
Critics of the adversarial approach argue that the pursuit of winning often overshadows
the search for truth.
1.3.1. The Accusatorial (Adversarial) System: Under this system, the court or the judge
plays a passive role during the trial. The court also plays no significant part in the case.
The trial is not an investigation into events or allegations but rather a hearing to decide,
within a complex set of rules; whether the accused is proved to be guilty of the
particular offence, with which he has been charged. The court plays the role of an
arbiter.
The judge does not embark on a judicial investigation. The courts are primarily
concerned with the issues for determination, that is, the decision of points as between
contesting parties. It is a contest between the parties. So the material must be placed
before the court by the parties themselves. The role of the court is to ensure that the
parties obey the rules of court. The judge is like a referee or an umpire. The
presumption of innocence of the accused and the fact that the burden of proof rest on
the prosecution throughout the trial are core features of this system.
The great advantage of the accusatorial system is that it enables the accused to test the
prosecution case. The judge‟s interventions must be limited to providing a framework
in which both parties present the case, which guarantees efficiency and fairness.
10
However, there are occasions when the judge could and indeed should intervene. For
example, if a witness gave an ambiguous answer, the judge should have it clarified as
briefly as possible. If he did not hear an answer, he could have it repeated so that he
could note it accurately. He could also intervene to curb verbosity. It is often said that
verbosity is always an enemy of clarity. The judge could intervene equally to curb
repetition and exclude irrelevance. If an accused is giving evidence, he must be allowed
to do so without being badgered and interrupted. This is on the grounds that must
people go into the witness box in a state of nervousness. They expect to receive cautious
hearing and the judge should not intervene in a hostile way.
1.3.2. The Inquisitorial System: This is a system under which the Presiding Judicial
Officer supervises the pre-trial investigations and preparation of the case. To a greater
extent, the court plays a significant part in the questioning of the witness at the trial and
in the decision as to what evidence should be considered by the court. Simply put, the
trial is much more investigative than a contest. The accused is presumed guilty and he
has to prove that he is not guilty. The burden of proof here is on the accused. He has to
show the court that he did not commit the crime, rather than that the prosecution
proving that he committed the offence for which he has been charged with.
It is sometimes called the continental system, in reference to the continent of Europe

which operates under the belief that a human being is on trial and that the acts of a
human being are highly complex. Therefore, to affix any criminal responsibility on the
accused person, it is not enough to inquire whether the person did or committed the act
alleged against him. The continental system wants to probe deeper to determine the full
criminal responsibility and certainty; that the crime is laid at the doorsteps of the right
perpetrator, it proposes to investigate the truth of the matter.
The inquisitorial system operates on the principle that once the parties have invoked the
jurisdiction of the court, it is the duty of the court to investigate the fact and law and
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give a decision according to the justice of the case and with regards to any public
interests that may be involved.
1.4. Rules Governing Criminal Trials in The Gambia
The administration of criminal justice in Gambia is governed by some general and

fundamental principles. For instance, justice must be administered in public; judgment
must be a reasoned one; such judgments or orders are enforceable throughout the
country; justice is free of charge, and justice is brought nearest the common man.
1.4.1. Justice must be administered in public: By s. 24 (2) of the 1997 Constitution, the
proceedings of every court including the announcement of the decision of the court or
other authority, shall be held in public. This requirement is complimented by s. 61 of
the CPC which specifically requires that all criminal trials be held in open court.
The court may however exclude persons from its proceedings or hear a case in camera of
its own motion or where it is expressly so provided by law. For example, the provisos to
section 24(2) of the Constitution and section 61 of the CPC both grant the trial court the
power to exclude from its proceedings persons other than the parties to the trial; where
their presence would prejudice the interests of justice, the interest of defence, public
safety, public order, public morality, the welfare of persons under the age of eighteen
years or the protection of the private lives of persons concerned in the proceedings.
A further exception to the general rule on public trials is provided by s. 72(1) (b) of the
Children‟s Act which requires that proceedings before the Children‟s Court should not
be held in public. Thus by virtue of s. 72(1) (f) of the Children‟s Act only members and
officers of the Children‟s Court; parties to the case before the Court, witnesses and other
persons directly concerned in the case; the parent or guardian of the child before the
Court; a Social Welfare Officer; a Probation Officer; and any other person whom the
Court authorizes, shall be present in proceedings before the Children‟s Court. Section 73
of the Children‟s Act goes further to punish the publication of any information that may
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divulge the identification of a child in any proceedings before the Children‟s Court,
except as otherwise directed by the Court.
1.4.2. The judgment must be a reasoned one: As a general rule of criminal law practice,
all judgments must set out the reasons upon which they are based; in fact and in law. It
also states that any breach of this provision renders the judgment null and void. The
reason is to avoid judgment, which may be arbitrary, capricious and whimsical.
1.4.3. Justice rendered free of charge: In the Gambia, criminal justice is administered
free of charge, subject only to the fiscal provision concerning stamp duty and
registration. This in effect means that the judges, magistrates, court clerks, Police
Officers, and prison officials who are all employed and remunerated by the state, must
not demand any fee. However, it does not mean that the litigants cannot pay cost of
damages or fines, neither are they exonerated from paying their lawyer, bailiff or public
notary.
1.4.4. Accessible Justice: The principle of accessible justice from a structural perspective
requires the decentralization of the system of administration of justice so that the court
system is readily made accessible to the common man, thereby reducing the cost of
litigation and maximizing justice out comes in given cases. The current judicial policy
that has already received the requisite political support is to decentralize the courts as
far as possible. Thus Magistrates Court are virtually in all Council Areas while District
Tribunals can be found in all Districts. The decentralization of the High Court is in
effective process with functional Divisions of the High Court in Brikama and Basse.
However, the realization of accessible justice has been mediated by such other factors as
poverty, illiteracy, ignorance, judicial delays, and the current limitation of the Legal Aid
Agency to fully carry out its mandate.
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Part Two: The Pre-trial Phase (Processes)
This Part deals with such crucial issues as the arrest of and searches on a suspected
criminal, the recording of statements from criminal suspects, and the decision whether
to press a charge or not. Compliance with the rules on arrest, searches, statement
recording and even how charges are framed are of huge importance to the eventual trial
process.
2.1. Criminal Investigations
A criminal investigation is the bedrock of the entire criminal trial process. It is an

examination of facts and/or circumstances, situations, incidents and scenarios, for the
purpose of rendering a conclusion of proof on the alleged commission of a crime. An
investigation must be based upon a complete and whole evaluation of facts and not
conjecture, speculation or supposition.
The investigative powers of the State in criminal matters in The Gambia are exercised
by the Director of Public Prosecution,24 through the Gambia Police Force,25 the National
Drug Enforcement Agency,26 the National Intelligence Agency27 and the Gambia
National Guard.28
A fundamental element in any pre-trial process is when and how to form the decision to
seize a person for the purposes of subjecting him or her to criminal investigations.
Neither the Criminal Code nor the CPC affords a definition of who a suspect is for the
purposes of criminal investigations and prosecutions in The Gambia. However, a
24
S. 85 of the Constitution
25
S. 4 Police Act
26
See s. 15(o) and Part III of the Drug Control Act
27
S. 3(e) National Intelligence Agency Act
28
S. 3 Gambia Armed Forces (Gambia National Guard Unit) Police Duties Regulations.
14
suspect is any person who is believed to have committed a criminal offence 29 or a
person who is believed to be in the process of committing an offence.
Criminal prosecutions officially begin with an arrest and or search of the suspect.
Generally, an „Arrest‟ and or „Search‟ Warrant is required before an officer may arrest
and or search a person or place, although a suspect may be lawfully arrested or
searched without a warrant. A police officer may only arrest and detain a person upon
reasonable suspicion that, that person has committed or is about to commit an offence. 30
2.2. Reasonable Suspicion
Although neither the Constitution nor the CPC provides a definition of what constitutes
reasonable suspicion, it will not be enough that there are grounds to support a
suspicion, such grounds must be reasonable in the circumstance having regards to the
facts available to the arresting officer. The test to be applied is that of a reasonable man
and a police officer or any other member of the disciplined force is required and
expected to better appreciate this than a private person. The case of DALLISON v
CAFFERY (1965) 1QB 348 at 371 is very instructive on this issue.
2.3. Arrest
An arrest consists of apprehending a person for the purpose of bringing him without
delay before the authority prescribed by law or by the warrant. In the event of a
resistance, or an attempt to evade the arrest, reasonable force may be applied, to the
extent that is proportionate to the resistance.31 Therefore, obedience needs no force on
the part of the arresting officer.
The notion of proportionality is complex and calls for the Police Officer‟s good
conscience in ensuring that the arrest is carried out in accordance with the law; without
29
Black’s Law Dictionary ed. Bryan A. Garner, (Eighth Edition), West Publishing Co, 1990, p 1480
30
See section 19(3) of the Constitution and section 15 (a) of the Criminal Procedure Code
31
S. 8 (2)&(3) C.P.C
15
any abuses. The arrest is carried out either by using a form of words that makes it clear
to the suspect that he is no longer free to come and go as he chooses, or physically
seizing or touching his person and telling him as soon as practicable thereafter that he is
under arrest. The suspect must be told the reason for his arrest even if it is obvious.
Once the arrest has been made, the suspect should be taken to the police station
forthwith, unless there are investigations to be carried out immediately in the presence
of the suspect.
However, any individual may, in case of a felony, committed flagrante delicto, or

where the suspect has damaged his property, arrest the offender.32 This is known in law
as a citizen‟s arrest. We should recall that the law protects the liberty or freedom of
movement of the individual and anyone who deprives the individual of this basic
freedom is liable for illegal detention or false imprisonment. Therefore, the private
person making the arrest must hand over the person so arrested to a police officer with
reasonable dispatch. Any undue delay in doing this exposes the private person to a suit
for illegal detention. Therefore, a citizen‟s arrest is well regulated in order to avoid
people taking the law into their hands.
Felonies and misdemeanors are deemed to be committed flagrante delicto when they
are in the course of being committed or when they have just been committed. 33 Under
no circumstances should any bodily or psychological harm be caused to the person
arrested. The proper application of the law and the execution of the function of the
police officer must be strictly followed.
2.4. Search and Seizure
Search and seizure is a legal procedure whereby a police officer or other authorities
and their agents, who suspect that a crime has been committed, conducts a search on
the person of a suspect or his property or the place where the crime is believed to have
32
S. 19 & 20 CPC
33
S. 15 C.P.C
16
been committed with a view to seize and confiscate any relevant evidence to the crime.
From a purely legal perspective, a search can be seen as any interference by the police
or any other law enforcement official with an individual‟s reasonable expectation of
privacy. On the other hand seizure consists of the taking into the possession of the
police officer of the thing being searched for from a person without his consent.
Upon a reasonable apprehension that material evidence connected with the commission
of an offence for which an arrest warrant has already been issued, any police officer
may search the dwelling or place of business, correspondence or communication of the
person so arrested or for whom the warrant of arrest has been issued and might seize
anything which might reasonably be used as evidence in any criminal proceedings.34
Although the acts of search and seizure amounts to an interference with the
constitutionally protected fundamental rights to privacy as enshrined in ss. 17(2) and 23
of the 1997 Gambian Constitution, it is nevertheless in the public interest that all
allegations of commission of crime be properly and fairly investigated and prosecuted.
It is therefore not in the public interest that persons reasonably suspected of committing
crimes escape investigation and prosecution for such crimes in the guise of the
observance of their fundamental right to privacy.
However, it is emphatically clear from the express provision of section 23 of the

constitution that, such search of the home, person, correspondence or communication of
the accused and the consequent seizure of his property should not be arbitrary. In this
regards the requirements for an arrest on a private premises are also relevant and must
be meticulously complied with.
According to section 13 (1) of the CPC, the body of a suspect may be searched by the
arresting officer, but if the arrest was carried by a private person, then the officer to
whom the suspect is handed over to can conduct the search. Therefore, it shall not be
lawful for a private person to search the body of another. In addition, search of a person
34
Section 93 (1) & (2)
17
should only be warranted if there are reasonable grounds to believe that the suspect has
about his person any stolen articles, instrument of violence, or tools or things connected
with the alleged offence. Any person found in a building or place liable to search may
also be searched.35 In any event, all searches must be conducted with strict decency such
that a woman can only be searched by another woman and the right to search a person
does amount to a right to search his private person.36
2.4.1. Search Warrant
This is a Court order directed to a police officer authorizing him to enter a private
property or any other place and conduct an examination therein in search of evidence of
the commission of a crime, for the proceeds of crime or property that the police suspect
may be used to commit a crime. The evidence obtained from the search may be used
for presentation in criminal prosecutions.
Police officers obtain search warrants by submitting affidavits and other evidence to a
judge or magistrate to establish Probable Cause to believe that a search will yield
evidence related to a crime. If satisfied that the officers have established probable cause,
the judge or magistrate will issue the warrant. Although a search warrant may be
issued and executed on any day including Sundays and other public holidays, it may
only be executed between 6 am and 6 pm safe otherwise authorized by the issuing
authority.37
2.4.2. Seizure
While a police officer executing a search warrant may seize and take into his possession
anything which he considers relevant in the prosecution of the said offence, a senior
police officer may also authorize in writing the seizure of any property or thing which
35
Section 9 of the CPC
36
Section 13 (2) of CPC
37
Section 95 CPC
18
he has cause to believe is stolen or unlawfully obtained and such property or thing shall
be dealt with as if it were seized under a warrant.38
Where a search is carried out on a person all articles safe wearing apparels found him
shall be taken including offensive weapons39 and placed in safe custody and a report
thereof must be made to the Court before whom the suspect is subsequently tried and
the Court shall make the necessary orders either releasing, restoring such property or
make such other orders as the justice of the case may require.40 However the property
must be returned to the person from whom it was seized if the investigation concludes
that there is no sufficient evidence to prosecute the suspect.
Although warrantless searches are permitted under section 23 (2) (b) of the
Constitution, the extreme urgency for resorting to this procedure must be
demonstrated. Like the case of arrest warrants, a warrantless search and seizure will not
invalidate the subsequent criminal proceedings. By virtue of section 3 of the Evidence
Act, the Court can admit any piece of evidence obtained under an improper search or
arrest if the same is shown to be relevant to facts in issue.
2.5. Police Station Inquiry
When a suspect is taken to the police station, an inquiry or hearing is conducted at the
level of the police station. By this process, witnesses are examined and witness
statements recorded from potential witnesses in the case. The suspect will also be
interrogated during which statements are recorded.
There are generally two categories of statements that can be recorded from those related
or involved in the crime depending on whether they are the victims or potential
witnesses on the one hand or the suspect on the other. Statements recorded from the
38
Section 93 (3) CPC
39
Section 13 (4) CPC
40
Section 13 (5) CPC
19
victim or other witnesses are referred to as „Witness Statements‟ while a „Cautionary‟
and „Voluntary Statements„ are recorded from the suspects. These two categories of
statements are jointly referred to as extra-judicial statements since they were not made
before a trial court.
In recording extra-judicial statements from suspects certain basic rules must be

observed and complied with.
The foremost rules that cover the taking of statements from suspects are called the
Judges’ Rules.41 They are a guide for investigating a crime, to ensure that suspects are
treated fairly. Although the Judges' Rules do not have the force of law, there must be
substantial compliance with these rules before an extra judicial statement of a suspect
can be admitted in evidence by a trial court. Thus, any statement taken from a suspect,
in a way which breaks these rules substantially, is likely to be rejected by a judge
conducting a criminal trial. While there are nine rules, the main purpose of them is to
ensure that any suspect who is going to make a statement to the recording officer must
be informed of their right to silence by way of the caution.
The right to silence and the right from self incrimination both protect suspects against
being forced to make statements which result in admissions of guilt. The suspect must
be informed that there is no legal obligation on him to say anything or to make a
statement. Therefore before the recording officer commences with the recording of any
statement from a suspect he must be cautioned. The following words must be spoken
by the recording officer before they are allowed to take a statement from a suspect:
“You are not obliged to say anything unless you wish to do so, but anything you say
will be taken down in writing and may be given in evidence.” These words are
known as the caution.
41
Cap. 6.01 Laws of The Gambia
20
The second rule that regulates the recording of extra judicial statements from suspects is
provided for by section 31(2) of the Evidence Act. This rule requires that all extra-
judicial confessional statements must be recorded in the presence of an Independent
Witness. And there must be strict compliance with this rule. Any non-compliance will
render such a statement inadmissible in the eventual trial.
The most important issue that surrounds a written confession (or statement) is the
voluntariness of the confession. The requirement of an Independent Witness is to attest
to the voluntariness of the statement. Extra-judicial confessions (whether oral or in
writing), made by a suspect, can only be proved against the suspect if they were free
and voluntary. To be free and voluntary a confession must not be influenced by hope or
fear, in the form of a threat, promise or inducement. Any such statement of confession
by a suspect will be held to be an involuntary confession.
If a suspect makes a statement to the recording officer after the caution has been
administered, then the contents of the statement can be used in any court case or trial
that results. Often, a statement by a suspect is a confession admitting his/her part in a
crime. If a suspect makes a confession in a statement, then the courts would look very
closely at the circumstances which surrounded the taking of the statement of
confession.
A very important difference between a statement being made involuntarily and a

statement taken in breach of the Judges‟ Rules is that, while an involuntary statement
must be excluded in a trial, the statement taken in contravention of the Judges‟ Rules
can be allowed by the judge (if he/she decides). In other words, the judge has discretion
to include or exclude statements in this regard.
2.6. Pressing a Charge
21
At the end of a police station inquiry, and if it appears to the Investigating Police Officer
(IPO) that there is sufficient evidence to warrant a prosecution, then charges will be
pressed.
2.6.1. Charges and Information
Although the CPC does not define what a charge or information is, it makes provision
on what a good and valid charge and information shall contain. 42 A charge has been
seen as an accusation of a crime by a formal complaint, indictment or information.43
The CPC provides that every charge or information shall contain, and shall be sufficient
if it contains, a statement of the specific offence or offences with which the accused
person is charged, together with such particulars as may be necessary for giving
reasonable information as to the nature of the offence charged. A charge or information
can therefore be defined as statement and particulars of specific offence or offences with
which a person is accused and tried before a court of law. And a charge sheet44 or bill
of indictment45 is a document containing the charges. The term charge is used to
describe either the entire charge sheet in a trial; or the statement and particulars of
specific offence (count) with which a person is charged. Thus, whilst every offence
stated in a charge sheet or information is called a charge or count, the entire charge
sheet may also be called a charge. The term charge or information is used
interchangeable in s.113 (a) (i) and (iv) of the CPC to mean a count in a charge sheet or
the entire charge sheet or information.
2.6.2. Form of a Charge or Information
42
S. 110 CPC
43
Blacks Law Dictionary
44
In the case of Magistrates’ Courts
45
In the case of the High Court
22
From the provision of s.110 of the CPC, a charge or information is intended to give in
clear terms reasonable information to the accused person of the offence for which he is
to be tried.
2.6.2.1. Charge/Information
The Charge Sheet or Information must take the following form:
(a) Heading (Jurisdiction of Trial Court)
(b) Reference (Suit) Number
(c) Parties
(d) Preamble (this applies to information only)
(e) Count (charges); and
(f) Date and Signature of the drafting authority
(i) Heading (Jurisdiction of Trial Court)
The charge sheet or information must commence with the heading. The heading
indicates the name of the trial court with jurisdiction to try the offence. Care must be
taken to ensure that a charge is properly headed to reflect the trial court within whose
territorial jurisdiction the offence was committed or to reflect the trial court with subject
matter jurisdiction over the particular offence to be tried. This is of crucial importance
because the issue of jurisdiction goes to the root of an action and any trial without
jurisdiction is a nullity in the eyes of the law.
Thus a charge sheet intended to be used in a trial at Basse Magistrates‟ Court should be
headed thus:
23
“IN THE BASSE MAGISTRATES‟ COURT
HOLDEN AT BASSE”
Whilst the heading of a charge sheet intended to be used at Brikama Magistrates‟ Court
should read thus:
“IN THE BRIKAMA MAGISTRATES‟ COURT
HOLDEN AT BRIKAMA”
The word HOLDEN is the old English expression for HOLDING and reflects the
geographical location (seat) of the court with territorial jurisdiction to hear the case.
The High Courts of The Gambia have both unlimited subject matter and territorial
jurisdictions to try criminal cases. Although there are currently High Court Divisions in
Basse and Brikama, it is not automatic that an offence which occurred in Brikama must
be tried by the Brikama Division of High Court. While it is prudent to do so, in practice,
it is the discretion of the Chief Justice to determine which Division of the High Court
would hear a particular criminal case.
As such it would not be appropriate for a drafting officer to anticipate the particular
Division of the High Court which should hear a case. It would be sufficient therefore,
for the drafting officer to merely indicate that the case would be heard by the High
Court.
Furthermore, where there are multiple indictable offences committed in the same
criminal transaction and it appears that some of these offences fall under the subject
matter jurisdiction of a subordinate court, it would be advisable that the charges be
brought before the High Court.
Information intended to be used at the High Court should therefore read thus:
24
“IN THE HIGH COURT OF THE GAMBIA”
(ii) Reference (Suit) Number
Every charge sheet or information must bear a reference (Suit) number otherwise
known as Charge or Case Number. Reference Number used in the Charge Sheet or
Information is usually given at the Court‟s Registry after filing. It is of administrative
importance and has by convention acquired the force of law. The charge or case
number as the case may be is stated at the top right hand corner of the charge sheet
immediately after the heading as indicated below;
“IN THE BANJUL MAGISTRATES‟ COURT
HOLDEN AT BANJUL
CHARGE/CASE NUMBER BMC/0001/12”
OR
“IN THE KANFING MAGISTRATES‟ COURT
HOLDEN AT KANFING
CASE NUMBER.......................”
OR
“IN THE HIGH COURT OF THE GAMBIA
CASE NUMBER.......................
25
(iii) Parties
The victim of a crime is not a party in criminal proceedings. He is a witness or nominal

complainant. The State is the Complainant whilst the alleged offender is the accused or
defendant in a criminal trial. The State is represented in criminal trials by the
Directorate of Public Prosecutions, the Police or the National Drug Enforcement Agency
(NDEA) pursuant section 133 of the Drug Control Act which allows the NDEA to
undertake prosecution in its name for drug related cases.
Thus, while the Directorate of Public Prosecutions can institute actions before any Court
with criminal jurisdiction in the Gambia, the powers of Police and the NDEA to
institute actions are restricted to the Magistrates Courts, with the NDEA further
restricted only to institute actions in drug related offences. Consequently, the party in a
criminal trial before a Magistrate‟s Court in which the state is represented would
depend on which of these prosecuting agencies has instituted the action.
If the action is instituted by the Directorate of Public Prosecution, the State Party would
be indicated as follows:
IN THE BANJUL MAGISTRATES‟ COURT
HOLDEN AT BANJUL
CASE No..........................
BETWEEN:
THE STATE .................................................................................. COMPLAINANT
AND
MOHAMMED KRUBALLY ............................................................. ACCUSED PERSON
26
Where the action is instituted by the Police the State Party would be indicated as
follows:
HOLDEN AT BANJUL
CASE No..........................
BETWEEN:
INSPECTOR GENERAL OF POLICE .......................................COMPLAINANT
AND
Where the action is instituted by the NDEA the State Party would be indicated as
follows:
HOLDEN AT BANJUL
CASE No..........................
BETWEEN:
NATIONAL DRUG ENFORCEMENT AGENCY ........................... COMPLAINANT
AND
27
Since, it is only the Directorate of Public Prosecutions or some other Office at the
Attorney General‟s Chambers which has powers to institute a criminal action in the
High Court, in case of Information the State Party would be indicated as follows:
IN THE HIGH COURT OF THEGAMBIA
CASE No..........................
BETWEEN
THE STATE .................................... ....................................................COMPLAINANT
AND
MOHAMMED KRUBALLY ................................................................ACCUSED PERSON
(iv)Preamble
The preamble must be captioned Information with the following words as indicated
below:
INFORMATION
The Honourable Court is informed by the Honourable Attorney General on behalf of

the State that Mohammed Krubally is charged with the following offence(s).
There is no preamble in case of a Charge Sheet. The word CHARGE is simply written
immediately after the parties‟ e.g.
28
HOLDEN AT BANJUL
CASE No..........................
BETWEEN:
NATIONAL DRUG ENFORCEMENT AGENCY ........................... COMPLAINANT
AND
CHARGE
Or
HOLDEN AT BANJUL
CASE No..........................
BETWEEN:
INSPECTOR GENERAL OF POLICE .......................................COMPLAINANT
AND
CHARGE
(v) Counts (Charges)
Next to the preamble is the count (charges) set out in two distinct paragraphs. The first
paragraph shall contain „STATEMENT OF OFFENCE‟ indicating the offence creating
and punishment section of the law that has been violated. The second paragraph shall
29
contain the „PARTICULARS OF OFFENCE‟ indicating with sufficient clarity the acts or
omission which has resulted to the alleged offence.
An example of information filed at the High Court in Banjul for an offence of rape
contrary to section 121 and punishable under section 122 of the Criminal Code Cap 10
Volume III of the Laws of the Gambia 2009 will state as follows;
IN THE HIGH COURT OF THE GAMBA
CASE No.......................
BETWEEN
THE STATE.......................................................................................COMPLAINANT
AND
INFORMATION

the State that Mohammed Krubally is charged with the following offence.
STATEMENT OF OFFENCE
Rape contrary to section 121 and punishable under section 122 of the Criminal Code
Cap 10 Vol.III Revised Laws of the Gambia 2009
PARTICULARS OF OFFENCE
Mohammed Krubally on or about the 15th day of November 2012 at Westfield in the
Kanifing Municipality of the Republic of the Gambia within the jurisdiction of this
30
Honourable court had unlawful carnal knowledge of Bintou Njie without her consent
and thereby committed an offence.
An example of a charge filed at the Banjul Magistrates‟ Court will go thus:
IN THE BANJUL MAGISTRATE‟S COURT
HOLDEN AT BANJUL
CASE No.......................
BETWEEN
THE STATE....................................................................................COMPLAINANT
AND
MOHAMMED KRUBALLY ..............................................................ACCUSED PERSON
CHARGE
31
(vi)Date and Signature
The charge or information shall finally be dated and signed by the prosecuting
authority. For example;
IN THE HIGH COURT OF THE GAMBA
CASE No.......................
BETWEEN
THE STATE..........................................................................COMPLAINANT
AND
INFORMATION

the State that Mohammed Krubally is charged with the following offence.
Dated this 10th day of December 2012
32
..........................
SAINABOU MENDY
PRINCIPAL STATE COUNSEL
OR
IN THE BANJUL MAGISTRATE‟S COURT

HOLDEN AT BANJUL
CASE No.......................
BETWEEN
INSPECTOR GENERAL OF POLICE..............................................COMPLAINANT
AND
CHARGE
Cap 10 Vol.III Revised Laws of the Gambia 2009.
Dated this 10th day of December 2012
......................................................................
OMAR JABANG
POLICE PROSECUTOR
33
2.6.3. Rules for Framing Charges
The drafting of charges is guided and regulated by four rules. These rules whilst
prescribing standards that must be attained by every charge admits some exceptions.
These four rules are governed by sections 110, 111, 112, and 113 of the CPC. The rules
are: (a) the rule against ambiguity; (b) the rule against duplicity; (c) the rule against
misjoinder of offenders; and (d) the rule against misjoinder of offences.
(a) Rule against ambiguity (section 113 CPC).
The rule is that all particulars required by law to be stated in a charge must be so stated.
The rule applies to count in a charge rather than the entire charge sheet. Since a charge
or information is intended to inform the accused person in clear terms the offence for
which he is to be tried, it must therefore be in certain and unambiguous terms. A charge
or information must therefore bear; the offence with which the accused is charged, the
written law and the section of the written law creating the offence, particulars of date
and place the offence was allegedly committed, the person against whom or thing, if
any in respect of which the offence was committed and the name of the accused person.
The rule against ambiguity admits no exception and it is rigid. However section 113 of
the CPC provides that a charge or information shall subject to the provision of the said
Code not be open to objection in respect of its form or contents if it is framed in
accordance with the rules mentioned below.
(b) Rule against Duplicity and Multiplicity
Duplicity and multiplicity are converse errors of pleading. With duplicity, more than
one crime is included in one count. With multiplicity, several counts are alleged, but
there is only one crime. A charge will therefore be bad for duplicity if it contains more
than one offence in the same count. An accused must accordingly be charged for each of
the offences committed by him separately in the charge sheet or information. Each
34
offence should be pressed in a separate count in the charge sheet (STATE VS LAMIN
WAA JUWARA Criminal appeal cases Digest at page 127)
The statutory prohibition against duplicitous in section 112 (2) of the CPC counts serves
several purposes, one of which is to guarantee pretrial notice of charges and thereby
permit preparation of an adequate defense.
Another function of the prohibition on duplicitous counts is to provide assurance

against double jeopardy. An indictment must allege with sufficient specificity to enable
the defendant, once convicted, to raise double jeopardy as a bar against subsequent
prosecutions.
When a charge is bad for duplicity an appellate court may quash the conviction
(KEBBA NJIE & 11 Ors VS STATE Criminal Appeal NO 14-25/88), where the defect
has occasioned a miscarriage of justice.
Exception to the Rule against Duplicity
Where a person is charged with Theft section (S.252 CC ) or stealing by person on public
service (S.257 CC) or stealing by clerk or servant (S.258 CC) or stealing by Director or
officer of Companies (S.259 CC) or stealing by agent (S. 60 CC), it shall be sufficient to
specify the gross amount of property in respect of which the offence is alleged to have
been committed and the dates between which the offence is alleged to have been
committed without specifying particular item or exact dates.
(c) Rule against Misjoinder of Offences
The general rule is that every accused should be charged separately and tried separately
for any offence alleged against him.
Exception to the Rule against Misjoinder of Offences
35
An indictment may contain more than one count of all the offences charged only if they
are founded on the same facts; or if they form or are part of a series of offences of the
same or a similar character.
Founded on the same facts: Offences would be founded on the same facts if they were
committed in a single incident, or as part of the same criminal transaction. One offence
can also arise from the same facts as another if one would not have been committed but
for the other.
Series of similar offences: For two offences to belong to a series of similar offences
there must be a „nexus‟ between them. For a nexus to exist, the offences must be similar
both legally and factually. It should be noted that two offences do not form a series
merely because evidence relating to one offence is uncovered during the investigation
into the other.
(d) Rule against Misjoinder of Offenders
The general rule is that every accused should be charged separately and tried separately
for any offence alleged against him.
For example, if at 11:00 pm on Saturday, the 20th of January 2009, Krubally, Mboge,
Darboe, Mendy, Jahateh, and Jabang simultaneously, but separately broke into the
premises of the Faculty of Law Kanifing and Krubally stole money from the Dean‟s
office, Mboge stole laptop, Darboe stole a law book in library, Mendy stole a rim of
paper, Jahateh stole a box of white board markers and Jabang raped a female student
who was reading in one of the classrooms. Upon their arrest, they should be charged to
court in separate charge sheets. It does not matter that all the offences were committed
at the same time and date and in the same premises or against the same institution. To
do otherwise, by charging all of them in separate counts in the same charge sheet or
one count in the same charge sheet will offend the rule on misjoinder of offenders.
36
Exceptions to the Rule against Misjoinder of Offenders
Section 111 of the CPC provides seven exceptions to the general rule against misjoinder
of offenders.
A count in an indictment can name more than one offender if it is alleged that there was
more than one participant, but also that there was joint participation (111 (a) CPC).
Where one person aided and abetted the other, he or she can either be charged
specifically with aiding and abetting the offence, or as a principal in the same charge
sheet (111 (b) CPC). Thus, several offenders may be charged together in the same charge
sheet notwithstanding the fact that their offences were not committed in the course of
the same transaction. Principal offenders may be tried together with other persons who
aided, abetted, counseled or procure the commission of the offence. In practice,
secondary participants are usually charged as principle offenders.
Persons accused of more than one offence of the same kind committed by them jointly
within a period of twelve months may be jointly charged and tried (section 111 (c)
CPC).
Persons accused of different offences committed in the course of the same transaction
may be jointly tried in one charge sheet (section 111 (d) CPC). It is also permissible to
join defendants in an indictment even if the defendants are not charged with the same
offence, provided that the offences are sufficiently linked so that they can properly be
joined. Whether two or more acts constitute the same transaction depends on the
proximity of time and place, continuity of action, and community of purpose or design
relative to particular acts.
Persons accused of an offence under chapter xxvi to xxxi of the Criminal Code and
person accused of receiving or retaining or assisting in the disposal or concealment of
property possession of which is alleged to have been transferred by any such offence
37
committed of the first named persons, or abetment or attempting to commit any such
last named offence may be tried together. The offence persons accused of this offence
committing related offences. For example, the offence of theft and stolen property are
related offences (section 111 (e) of CPC).
Persons accused of offences under section 297 and 298 of the criminal code or any of
those sections in respect of property the possession of which has been transferred by
one offence. Thus a person accused of receiving stolen property and receipt or
possession of property stolen abroad and of offences in respect of property the
possession of which was been transferred by one offence may be charged and tried
together. This shall apply to offences of extortion, criminal misappropriation and
receipt of proceeds of any of these offences.
Persons accused of any offence under chapter xxxvi of the criminal code relating to
counterfeit coin and persons accused of any other offence under the said Chapter
relating to the same coin or attempting to commit any such offence may be charged
together.
2.7. Prosecution of Criminal Cases
As already seen above, there are three agencies with prosecutorial powers in The
Gambia: the police, the NDEA; and the Directorate of Public Prosecution (DPP).
However, in the recent past a new unit in the Attorney General‟s Chambers; the
Directorate of Special Litigation (DSL) has also been given the addition function to
institute and prosecute criminal matters in all the courts in The Gambia.
2.7.1 Institution of Criminal Proceedings by the Police
The police are authorized by statute to initiate criminal proceedings. In addition to their
general powers under S.4 of the Police Act, S.28 of the same Act empowers a police
officer to conduct in person any prosecution before a court of summary jurisdiction
38
whether the information or complaint is laid in his or her name or not. Similarly section
69(1) (a) of the Criminal Procedure Code provides that Criminal proceedings may be
Instituted by a police officer bringing a person arrested with or without a warrant
before a Magistrate upon a charge.
From the foregoing, it seems that the police can only institute and prosecute criminal
cases before a Court of summary jurisdiction. As such a police prosecutor cannot
institute and prosecute criminal cases before the High Court. It is also submitted that a
police of the lowest rank may Institute Criminal Proceedings before a Magistrate‟s
Court or Court of summary jurisdiction.
2.7.2 Institution of Criminal Proceedings by the NDEA
The NDEA is empowered under section 133 of the Drug Control Act CAP 13:05 to
undertake prosecution in its name, of offences under the Drug Control Act. The phrase
in its name means that the title of the case shall be read as NDEA V. XYZ for instance.
This however does not derogate the powers of the DPP enshrined under section 85 of
the 1997 Constitution to take over and continue or discontinue criminal proceedings.
Even though the Agency is now empowered to investigate Crimes generally, it can only
institute Criminal Proceedings with respect to offences created under the Drug Control
Act.
The institution and prosecution of criminal offences created by other laws which have
been investigated by the NDEA could be prosecuted by the Police, the DPP, or DSL
It should be noted that the power to institute and prosecute criminal cases by the
Police, the NDEA and the DSL, is subject to the overriding Constitutional powers of the
DPP as enshrined in section 85 of the 1997 Constitution to take over and continue or
discontinue criminal proceedings.
39
2.7.3 Private Prosecutions
Section 69 (1)(c ) of the CPC allows a person other than a police prosecutor or public
prosecutor, to institute and prosecute criminal actions, this is otherwise known as
Private Prosecution. In this regard, a person may orally or in writing lodge a complaint
to a Magistrate (who has the jurisdiction to try and enquire into the alleged offence or
within the local limits of whose jurisdiction the accused is alleged to reside or be) if he
or she has reasonable and probable cause to believe that such a person has committed
an offence.
If orally made the complaint shall be reduced into writing and signed by the
complainant. And, if the Magistrate is satisfied from the complaint that prima facie
commission of the offence has been disclosed and that it is not frivolous or vexations,
he/she shall draw up or cause to be drawn a charge and shall sign the charge
containing statement of the offence alleged.
The Magistrate may at his discretion issue summons or warrant of arrest to compel the
appearance of the accused before his court or before any Court having the jurisdiction
to try the offence. Warrant shall not be issued at the first instance, unless the complaint
is supported by evidence on oath either oral or by affidavit evidence (section 69(5)
CPC).
The Court may instead of compelling the offenders to appear before it, refer the
complaint to the police for investigation or further investigation and who shall report
back their findings (section 69(6) CPC).
However, the police shall not arrest a person pursuant to section 69(5) unless the
alleged offence is a cognizable offence (section 69 (7) CPC). A cognizable offence is an
offence which on conviction may be punished by imprisonment for a term of one year
or more, or a fine exceeding D1000 or is declared by law as such or to be an offence for
which a person may be arrested without warrant (section 2 of the CPC).
40
2.8. Limitation of Time for Instituting Criminal Proceedings
As a general rule, when an offence is committed, there is an inextinguishable right to

institute criminal proceedings against the offender at any time. That is, the criminal
cause of action does not become time barred so as to extinguish the right of action.
However, there are a few statutory exceptions to this general rule. When an offence
creating statute provides that criminal action in respect of that offence(s) shall be
instituted within a specified time period, an action must be instituted within the said
specified time period. Otherwise the criminal cause of action would be statute barred
and thus the right of action extinguished. For example:
(a) Criminal proceedings in respect of offences under section 52 of the Criminal

Code (sedition) must be instituted within 6 months after the offence is
committed. See section 53 of the CPC. It should be noted, however, that where a
person commit an offence under section 52 CC from outside The Gambia or
where a person leaves The Gambia within six months of committing such an
offence, the prosecution for the offence may be begun within six months from the
date when the person first arrives in or returns to The Gambia after committing
the offence or leaving The Gambia, as the case may be.
(b) By virtue of section 174 of the CPC no offence, the maximum penalty of which
does not exceed a fine of D500 or imprisonment for a term of 6 months or both
such fine and imprisonment, shall be triable by a subordinate court, unless the
charge or a complaint relating to it is laid within 12 months from the time when
the matter of such charge or complaint arose except as otherwise provided by
law.
(c) Section 213 of the Customs Act, no proceeding civil or criminal shall be instituted
under the customs laws in respect of any act or omission done or made or
41
offence committed except within the period of seven (7) years from the day of
such act, omission or offence.
The issue of limitation of criminal action is fundamental. Where it is alleged by the

accused person that the criminal action instituted against him is statute barred it has to
be resolved before further steps are taken in the proceedings. In the computation of
time, the day on which the alleged offence was committed is excluded. Time begins to
run from the following day until the day when the criminal proceedings are instituted
against the accused person.
In Radcliffe v. Bartholomew (1892) 1 QB 161,a criminal action was instituted against

the accused under an Act which stipulated that criminal proceedings for offences
constituted under the Act must be instituted within one Calendar month. It was alleged
that the offence with which the accused was charged was committed on the 30th of May
and criminal proceedings were instituted on the 30th June. Counsel for the accused
raised a preliminary objection that the criminal action was statute barred because the
action was commenced outside the statutory period of one calendar month. The court
rejected counsel‟s contention and held that in reckoning the time within which an action
was to be instituted, the day on which the alleged offence was committed was excluded.
Therefore the objection was overruled. On a case stated to the English High Court, it
held that there was no difference in the reckoning of time for the institution of both civil
and criminal proceedings. In both types of proceedings, the day on which the cause of
action arose was excluded. Thus the English High Court affirmed the decision of the
lower court.
42
Part Three – The Trial Phase
This Part deals with the commencement of criminal proceedings, the different pleas
available to an accused person, the attendance of accused and counsel, the listing and
calling of witnesses, no case submissions, the conduct of voire dire, and judgment.
3. Commencement of Trial
Every criminal trial should commence with the arraignment of the accused person(s).
Arraignment is a formal reading of a criminal charge in the presence of the accused to
inform the accused of the charges against him and to elicit his response thereto. In
response to arraignment, the accused is expected to enter a plea.
3.1 Pre-Arraignment Measures
Before the accused person(s) can be arraigned, it is advisable that the following issues to
be looked into.
3.1.1. Jurisdictional Issues: The term jurisdiction is the authority granted to a formally
constituted legal body (court) to deal with and make pronouncements on legal matters.
Jurisdiction is therefore the authority to administer justice within a defined area of
responsibility and denotes the geographical area or subject-matter to which such
authority applies.
Courts may also have jurisdiction that is exclusive, or concurrent (shared). Where a
court has exclusive jurisdiction over a territory or a subject matter, it is the only court
that is authorized to address that matter. Where a court has concurrent or shared
jurisdiction, more than one court can adjudicate the matter. In cases where concurrent
jurisdiction exists, the State Party may attempt to engage in forum shopping, by
bringing the case to any of the courts with jurisdiction.
43
There are three main jurisdictional issues that should be considered before a person is
called upon to enter a plea to a criminal charge; territorial, subject matter and shared
jurisdictions.
(a) Territorial Jurisdiction Issue: Territorial jurisdiction is the authority confined to

a bounded space, including all those present therein, and events which occur
there. Where a person is accused of the commission of an offence by reason of
anything which has been done or of a consequence which has ensued, the offence
may be inquired into or tried by a court within the local limits of whose
jurisdiction the thing has been done or the consequence has ensued.46
In The Gambia, only the High Court have unlimited territorial jurisdiction to
commence criminal trials. The territorial jurisdiction of Subordinate Courts is
limited to the geographical limits of the area covered by that particular court.
Thus while the High Court has concurrent territorial jurisdiction with all
Subordinate Courts, the Subordinate Courts each has an exclusive original
territorial jurisdiction against each other for offences committed within the
geographical limits of that Court.
When an act is an offence by reason of its relation to any other act which is also
offence or which would be an offence or which would be an offence if the doer
were capable of committing an offence, a charge of the first-mentioned offence
may be inquired into or tried by a court within the local limits of whose
jurisdiction either act was done.47
46
S. 56 CPC
47
S. 57 CPC
44
When it is uncertain in which of several local areas an offence was committed or
when an offence is committed partly in one local area and partly in another, it
may be inquired into or tried by a court having jurisdiction over any of the local
areas. Again when an offence is a continuing one, and continues to be committed
in more local areas than one, or when an offence consists of several acts done in
different local areas, it may be inquired into or tried by a court having
jurisdiction over any of the local areas.48
Where an offender commits an offence in the course of a journey or voyage, the
offence may be inquired into or tried by a court through or into the local limits of
whose jurisdiction the offender passed in the course of that journey or voyage.49
When there is a doubt as to the appropriate court a matter is to be inquired to or

tried, the court having such doubt may, in its discretion, report to circumstances
to the High Court and the latter shall decide the court the matter should be
referred to. The decision of the High Court on such matters is final, unless where
the accused shows that no court in The Gambia has jurisdiction in the case.50
(b) Subject Matter Jurisdictional Issues: Subject Matter jurisdiction is the authority
over the subject of the legal questions involved in the case. In The Gambia, only
the High Court has unlimited subject matter jurisdiction in criminal proceedings.
Thus the High Court has the jurisdiction to commence criminal trials brought
pursuant to any law. The subject matter jurisdiction of Subordinate Courts has
been recently broadened by section 5 of the CPC to try all offences except the
offence of treason. Thus while the High Court has exclusive original jurisdiction
to try the offence of treason, it has concurrent jurisdiction with the Magistrates
Court to try any other offence known to law. However, the current practice is for
all capital offences to be tried in the High Court.
48
S. 58 CPC
49
S. 59 CPC
50
S. 60 CPC
45
Also, by virtue of Section 9 of the Economic Crimes (Specified Offences)
Act51 the jurisdiction of the Magistrates‟ Court is ousted to try Economic
Crimes.
3.1.2. Compliance with Requirement of a Fiat: In terms of Section 90 (3) of the
Criminal Code, a Court with criminal jurisdiction will not have jurisdiction to
try the offences created by sections 88, 89 and 90 of the Criminal Code unless the
prosecution has sought and had the prior written consent (fiat) signed by the
Honorable Attorney General.
3.1.3. Attendance of Accused Person: The accused person is required to appear in court
throughout his trial unless his personal attendance is dispensed with under s. 78 of the
CPC. Where the accused does not appear personally and pleads guilty in writing
pursuant to s.78 of the CPC, the court may proceed to convict him even in the absence
of the prosecutor or the accused‟s counsel. 52 The court cannot however proceed with a
case in the absence of the accused person if he or she is charged with a felony, unless he
or she consents.53 Thus, unless the accused person consents, the trial shall not take place
in his or her absence, unless he or she so conducts himself or herself as to render the
continuance of the proceedings in his or her presence impractical and the court has
ordered him or her to be removed and the trial to proceed in his or her absence. 54
3.1.4. Attendance of Counsel: For case before a subordinate court55, where the
prosecutor does not appear at the hearing of the charge, after having notice of the time
and place named for the hearing, the court shall discharge the accused person, unless
for some reason it thinks it proper to adjourn the hearing of the case until some other
51
Cap 13:07 Revised Laws of The Gambia 2009
52
See proviso to s. 160
53
S. 163 CPC read together with s. 24 (3) (f) of the 1997 Constitution
54
See s. 24 (3) (f) of the 1997 Constitution
55
This is found in Part V of the CPC which exclusively applies to cases before a subordinate court. Pat VA which
applies to the High Court does not have a similar provision
46
date, upon such terms as it thinks fit.56 Where both parties appear or the personal
attendance of the accused is dispensed with, the court shall proceed to hear the case.57
The CPC seems to be silent on the non-appearance of a defence counsel. The court must
face the issue with care, to ensure that the fair trial rights of the accused person are not
unduly violated. Thus, if counsel is unavoidably absent from court for cogent and
compelling reasons, the court should grant an adjournment to enable counsel to attend
court.58 The court may proceed with the trial where the absence is unjustified or
unreasonable. In the Nigerian case of Shemfe v C.O.P59, counsel of the accused sent a
letter to court seeking an adjournment. No reasons were advanced by counsel in the
letter. The prosecutor opposed the application for an adjournment on the ground that
several adjournments had been granted in the past and that the prosecution witnesses
were present in court to testify. The court preceded with the matter I the absence of
counsel. The accused conducted his defence and was convicted. On appeal against
conviction it was contended that the appellant was denied a fair trial, because of the
refusal of the trial court to grant an adjournment to enable counsel to appear for the
accused. The court dismissed the appeal. It held that the appellant had a fair trial and
that the failure of the appellant to be represented by counsel was not the fault of the
court but that of the defence counsel.
3.1.5. Mandatory Legal Representation: A person accused of an offence has a right to

the right to be defended by a counsel of his or her choice.60 Note, however, that it is
mandatory for legal aid to be provided at the expense of Government to children
involved in any criminal matter and accused persons charged with offences that carry
the death penalty or life imprisonment.61 Persons who earn not more than such
56
S. 160 CPC
57
S. 161 CPC. Note that this section only applies to trials before a subordinate court.
58
See Gopka v IGP [1961] 1 All NLR 423
59
1962 NNLR 87
60
See s. 159 of the CPC and s. 24 (3) (d) of the 1997 Constitution
61
See s. 30 of the Legal Aid Act, s. 24 (3) of the Constitution and s. 72 (1) of the Children’s Act
47
minimum wage as the Government may specify and desire legal representation in any
civil or criminal matter may be entitled to legal aid at a date to be fixed by the Attorney
General.62
3.1.6. Interpreter: The language of a Magistrates‟ Court or the High Court when
presiding over a criminal case shall be English.63 Where the accused does not
understand English he or she must be provided with an interpreter at the expense of the
state. S. 24 (3) (b) the 1997 Constitution provides that every person who is charged with
a criminal offence shall be informed at the time he or she is charged, in a language
which he or she understands and in detail, of the nature of the offence charged. S. 24 (3)
(f) further provides that every person charged with a criminal offence “shall be
permitted to have without payment the assistance of an interpreter if he or she cannot
understand the language used at the trial of the charge…”
The interpreter must correctly interpret to the accused person anything said in a
language that he does not understand. Simultaneously, there should be adequate
interpretation to the court of anything said by the accused. It is punishable for a court
interpreter to willfully make false statements during any judicial proceedings.64 Since
the charge is written in English, it has to be read in English and if the accused does not
understand English, it must be interpreted to the accused in a language he understands.
If the court interpreter or any officer of the court does not understand the accused‟s
language, then the proceedings should be adjourned until an interpreter is provided to
interpret the charge and the proceedings to the accused. Note that even though the
court interpreter or court clerk may assist in ascertaining whether the accused
understands the language of the court, it is the primary responsibility of the accused or
his counsel to bring to the notice of the court that the accused does not understand the
language of the court. If the trial court is not informed by the accused or counsel or his
62
See s. 30 (1) (b) of the Act.
63
S. 46 of the Courts Act
64
See s. 96 of the Criminal Code
48
counsel, the accused is estopped from complaining about having been denied the right
to an interpreter.65
In Ajayi v. Zaria Native Authority66, the appellant‟s counsel argued that the appellants
were denied a fair trial because the proceedings of the court, which were conducted in
Hausa, were not properly interpreted to the appellants. The appellants spoke and
understood English and Yoruba, and not Hausa, the language of the court. At various
stages of the proceedings, 5 interpreters were engaged. There was evidence that the
interpreters were incompetent, and in at least instances, misinterpreted the proceedings.
The Federal Supreme Court of Nigeria allowed the appeal on the ground that the
appellants did not have a fair trial because the proceedings of the court were
inadequately and incorrectly interpreted to them.
In The State v. Boka67, the respondent was acquitted of culpable homicide not
punishable with death. The State appealed against the acquittal. In allowing the appeal,
the Nigerian Court of Appeal held inter alia that failure of the trial judge to record the
language in which the charge was read and to certify that the proceedings were
interpreted to the respondent were a violation of the 1979 Constitution of Nigeria.
Compare the above cases with the case of The State v. Gwonto (supra). In this case, the
accused persons were charged and convicted before the Jos High Court. On appeal to
the Nigerian Court of Appeal, they appeal was allowed because of the failure to
interpret proceedings in Hausa for the benefit of the appellants. When the State further
appealed to the Supreme Court, it was held that the evidence on the record showed that
the respondents understood English, the language of the court. It was further held that
at any rate, neither the respondents nor counsel informed the trial court that they did
not understand the language of the court. If was held that the absence of notice to the
court by the accused persons or their counsel of their inability to understand the
65
See the Nigerian case of State v. Gwonto [1983] 1 SNCLR 142
66
1964 NNLR 61
67
1982 (1) NCR 85, especially at 85-96
49
language of the court, the accused persons were estopped from relying on the failure of
the court to provide them with an interpreted as a denial of fair trial to them.
3.2 The Accused Person‟s Plea
If the accused person is personally present, the substance of the charge shall be read
stated and explained to him in a language he fully understands and if he is not present,
to his counsel.68 Acceptable pleas vary among jurisdictions, but they generally include
"guilty", "not guilty", and the peremptory pleas (or pleas in bar) setting out reasons why
a trial cannot proceed or he may simply refuse to plead.
3.2.1. Standing Mute or Failure to Plead
As a general rule, where an accused or his counsel, as the case may be, refuses to plead,
or if he or she does not appear and the court decides to hear the case in his or her
absence under section 163(1) of the CPC, a plea of “not guilty” shall be entered in
accordance with section 164(4) if before a subordinate court or in accordance with
section 223 of the CPC if before a High Court, and the plea so entered shall have the
same force and effect as if the same had been actually pleaded.
3.2.2. Plea of Guilty69
If the plea is one of guilty, the plea shall be recorded nearly as possible in the words
used, or if there is an admission of guilt by letter under the provisions of subsection (1)
of section 78 CPC, the letter shall be placed on the record and the court shall convict the
accused person or pass sentence or make an order against him or her, unless there
appears to it sufficient cause to the contrary.
Where an accused person is arraigned on an information for an offence and can

lawfully be convicted on that information for some other offence not charged in the
68
S. 164 of the CPC for cases before a subordinate court and s. 216 for cases before the High Court
69
S. 164 (2) applies to trials before a subordinate court while s. 224 applies to trials before the High Court.
50
information, he or she may plead “not guilty” of the offence charged in the information
but “guilty” of the other offence and upon the plea of guilty the court may, with the
consent of the Attorney General, acquit the accused person of the offence with which he
or she is charged and convict him or her of the other offence to which he or she pleads
guilty.
Where an accused person pleads guilty pursuant to ss. 164 (2) and 224 of the CPC, the
following conditions must be fulfilled before the accused is convicted. Firstly, the court
dealing with the case must be clear that the accused understands the charge against
him.70
In Kebba Bojang v The State, the records of the Magistrate disclosed thus:
“Court: Charge read and explained to the accused in Mandinka.
Plea: Guilty.”
The Gambia Court of Appeal called the plea as recorded by the Magistrate the
shorthand way of stating what the accused stated in Mandinka. The Court of Appeal
further held that the accused plea as recorded by the Magistrate clearly violated s.164
(2) of the CPC because the word „guilty‟ could not have been the exact words by the
accused.
It is also not enough for an accused‟s plea to be recorded as „I admit it‟. In John v
Regina71 it was pointed out that these words do not without more constitute a sufficient
plea to a charge of an offence consisting of various ingredients. Thus the accused‟s plea
must reflect what the accused said in response to the ingredients of the offence put to
70
Note that section 24(3) (b) of the constitution provides that every person who is charged with a criminal offence
shall be informed at the time he or she is charged, in a language he understands and in detail, of the nature of the
offence charged
71
(1958) R & N 798, quoted in Kebba Bojang.v The State
51
him and his responses must accord with the said ingredients. Convictions in many
cases were quashed by the Court of Appeal based on this and other reasons.72
The court‟s record must therefore show that the substance of the offence charged is read
and explained to the accused in a language he understands. All the ingredients of the
offence charged must be put to him and he must understand them. If the explanation
does not portray all the ingredients of the offence when translated in the language the
accused understands, then the translation is not complete or full.
Plea taking therefore does not consist in just calling the accused to plead guilty or not
guilty when the charge is put to him.
Secondly, the court must hear the prosecution state the facts of the case. The accused
would then be asked to react to the facts as stated by the prosecution. He should be
asked whether he agrees or does not agree with the facts.73 Where the accused accepts
the facts as narrated, the Court should further invite the accused person to explain why
he did the act. This aspect is important because it may disclose a genuine legal defense,
in which case the Magistrate should enter a plea of not guilty. However, where the
explanations do not disclose any legal defense, the Court must then confirm the guilty
plea and then proceed to convict the accused accordingly.
Thirdly, the court must be satisfied that the accused intended to admit the commission
of the offence charged. The accused‟s plea must therefore be an unequivocal plea of
guilty. Where the accused elects to plead guilty, the trial Magistrate must record it and
immediately invite the prosecutor to state the brief facts of the case as alleged by the
prosecution. Where the prosecutor fails to, the trial Magistrate should invite him to deal
with certain issues which the Court believes to be material to the charge. It is not
acceptable for the prosecutor to merely inform the Court, as most police prosecutors
will want to, that they are adopting the facts as per the particulars of offence. It is
72
See Kebba Bojang v The State, Sarjo Danso v The State and Sulayman Ndure v The State Cr. App No. 45/95
73
Chomba JA in Sarr v The State 1995/96 GR 335
52
unacceptable because the particulars of offence may not fully disclose all the ingredients
of the offence under charge.
Where the accused enters an equivocal or ambiguous plea, the court must reject such a
plea and a conviction must not be entered against the accused on the basis of the plea.
Where an accused makes an unequivocal or unambiguous plea of guilty and denies at

any stage of the proceedings before being sentenced that he was criminally liable, the
court shouldn‟t convict based on his plea. This is because his denial of criminal liability
indicates that he did not intend by his plea to admit the charge against him.
In the Nigerian case of Onuoha v. Inspector General of Police74, the accused was
charged and convicted of stealing. He appealed against his conviction on the ground
that he did not intend to admit the charge and that he did not plead guilty. Evidence
before the appellate court showed that the accused the accused had pleaded not guilty
and a plea of guilty had been mistakenly recorded by the trial magistrate. When the
trial magistrate asked the accused if he took the money alleged to have been stolen, he
responded in the affirmative and was convicted by the magistrate for the offence. The
appellate court held that the accused‟s statement that he took the money did not
amount to an admission of theft. He could, as was the revealed in that case, have taken
the money in order to keep it safe for the complainant. Thus the trial court ought to
have questioned the accused further to elicit whether he intended to keep the money for
himself, in other words to steal it. It is only when the answers received by the court
showed that the accused intended to keep the money for himself that the court should
have convicted for stealing.75 The appeal was therefore allowed.
Fourthly, the facts stated by the prosecution and admitted by the accused must sustain
the charge against the accused. Therefore all the ingredients of the offence alleged must
be contained in the facts stated by the prosecution, before the court will convict on the
74
1956 NRNLR 96
75
See also R v Middlesex Justice, ex parte Rubens (1970) 54 Cr App R 83
53
accused‟s guilty plea. In the Nigerian case of Idan v. Police76, the facts stated by the
prosecution on a charge of receiving stolen property did not include the fact that the
accused knew or ought to have known that the property was stolen. On appeal against
conviction for receiving stolen property, the court held inter alia that the facts stated by
the prosecution could not sustain a charge or receiving stolen property. The appeal was
therefore allowed.
In Abele v Tiv Native Authority (another Nigerian case)77, the accused persons pleaded
guilty to a charge of brigandage and rioting, armed with deadly weapons. The
prosecution stated that the accused persons were armed with sticks. No sticks were
tendered in evidence. The accused persons were convicted on their pleas of guilty. On
appeal against conviction, on the charge of rioting armed with deadly weapons, the
court held that the facts merely disclosed the offence of rioting, not the offence rioting
armed with deadly weapons. Since no sticks were tendered in evidence, it was
impossible to state whether the sticks would qualify as deadly weapons. The court held
that the facts adduced by the prosecution could only sustain a conviction for rioting.
The court therefore substituted a conviction for rioting for that of rioting armed with
deadly weapons.
Where expert evidence is required to prove an offence, as in drug offences, 78 the court
must not convict an accused on his plea in the absence of such evidence. In the Nigerian
case of Stephenson v Police79, the accused pleaded guilty inter alia to a charge of being
in possession of Indian hemp and was convicted. On appeal against conviction, it was
held that the conviction could not stand because the plants alleged to be Indian hemp
were not tendered in evidence. Furthermore, there was no expert evidence, in the form
of a “Government chemist‟s report”, certifying the plants as Indian hemp. The appeal
was allowed and a retrial ordered.
76
(1964) NMLR 103
77
(1965) NMLR 425
78
See s. 83 of the Drug Control Act. See also s. 126 of the CPC
79
[1966] 2 All NLR 261
54
The prosecution must also prove that the thing to be used as evidence was kept in safe
custody before it was sent for scientific analysis, before the court can convict an accused
on a guilty plea. If there is any evidence that the evidence was tampered with or it was
substituted with something else, the court must not convict an accused on his guilty
plea even where there is expert evidence. In Isola v The State80, the accused was
convicted on his plea of guilty of being in possession of Indian hemp. The plant that
was recovered from the accused was taken to the police station, and sent to the forensic
laboratory for scientific analysis, after having been kept at the police station for 24
hours. On appeal against conviction, it was held that there was a real possibility of the
plant having being tampered with during the period it was kept at the police station.
Thus the absence of absolute authority certainty that it was the plant recovered from the
accused that was sent for scientific analysis led the court to appeal the appeal.
Where there is a doubt as to whether the thing found in the accused‟s possession was
that tendered in court, the doubt should be resolved in favour of the accused. Even if
the accused pleads guilty to the charge and admits the facts as stated by the
prosecution, the court shouldn‟t convict. In the Nigerian case of Essien v R81 (a WACA
decision), the accused was convicted on his plea of guilty of possession of forged
currency. Evidence showed that the currency notes tendered at the trial were in fact
genuine. There was, however, doubt as to whether the genuine currency was that found
in possession of the accused. The appellate court held that the doubt ought to be
resolved in favour of the accused. The court therefore assumed the currency found
with the accused was genuine and the appeal was allowed.
If the facts as stated by the prosecution and accepted as correct by the accused prove the
offence with which the accused is charged, the accused is convicted. The Court will
thereafter invite the prosecutor to say whether or not the accused person has any
80
(1969) NMLR 259. See also Offor v. The State (1968) NMLR 73; Ashake v The State [1968] 2 All NLR 198; Uwa v
Commissioner of Police (1972) ECSLR 727; Commissioner of Police v. Idu (1975) 5 ecslr 91; and Attorney General of
the Federation v. Dr. Clement Isong [1986] 1 QLRN 75, all cited in Doherty’s book at page 255
81
13 WACA 66
55
previous conviction. Unless the convict admits to them, the prosecutor must be required
to proof any previous conviction against him. The convict or counsel on his behalf
should then be invited to state any facts in mitigation. His plea in mitigation is then
taken and he is then sentenced.
3.2.3. Plea of not Guilty
After the accused pleads not guilty to the charge or charges preferred against him,
issues are joined between the accused and the prosecution. The prosecution must
adduce sufficient evidence to prove the guilt of the accused beyond reasonable doubt.
Where the case is being determined by a Magistrate Court, the court should proceed in
terms of section 164 and 165 of the CPC. Otherwise, the matter should proceed in terms
of section 221 of the CPC if being heard by the High Court.
The court shall proceed to hear such evidence as the prosecutor may adduce in support
of the charge. In this regard the prosecution shall call its witnesses and they shall be
examined-in-chief. The prosecution then calls witnesses to prove its case. Witnesses in a
criminal case “shall be examined upon oath82 and the court before which any witness
appears shall have full power and authority to administer the usual oath.” 83 Where a
witness objects to being sworn in and states the grounds for such objection to be either
that he or she has no religious belief or that the taking of an oath is contrary to his
religious beliefs, he shall be allowed to testify on affirmation instead of taking an oath.
The affirmation is as good as an oath.84
Thus evidence has to be given on oath unless the court believes a witness does not hold
any religious belief or that oath taking is against a witness‟s religious belief. In these
82
The form and manner in which an oath or affirmation may be taken is outlined in s. 186 of the Evidence Act.
83
S. 124 (1) of the CPC
84
S. 124 (2) of the CPC. It is clear from this provision that the failure to take an oath can only be based on two
grounds stated in s. 124 (2) (that one has no religious belief or that it is contrary to one’s religious beliefs to take
an oath). See also ss. 182 – 184 of the Evidence Act
56
two instances, the witness will be allowed to affirm before giving his evidence. A
witness must therefore take an oath before giving evidence unless the witness falls
under either of the following situations:
(i) Witness of tender years: Where, in any proceedings a child of tender years
called as a witness does not, in the opinion of the court, understand the
nature of the oath, his or her evidence may be received, though not given
upon, if, in the opinion of the court, he or she is possessed of sufficient
intelligence to justify the reception of the evidence, and understands the duty
of speaking the truth (section 124 (3) CPC).85
Note that a conviction cannot be based on the sole evidence of a child

pursuant to s. 124 (3) of the CPC. Such evidence must be corroborated by
some other material evidence in support thereof.
(ii) Witness is a non-believer or his religion forbids the taking of an oath: 86The
fact that evidence received was not given on oath and the reasons thereof has
to be recorded.87 Where a witness offers to give evidence on oath or
affirmation in any form common amongst, or held binding by, persons of the
race or persuasion to which he or she belongs, and not repugnant to justice or
decency, and not purporting to affect a third person, the court may, if it
thinks fit, tender such oath or affirmation to him.88While the prosecution is
required to list all its witnesses and provide a summary of evidence of all
such witnesses on an Information to the accused, this does not seem to be the
current practice with charges filed in the Magistrates‟ Courts.
S. 24 (3) (e) of the 1997 Constitution provides that every person who is charged with a
criminal Offence shall be afforded facilities to examine in person or by his or her legal
85
See also s. 185 of the Evidence Act
86
See s. 124 (2) of the CPC. See also s. 184 (1) and (2) of the Evidence Act
87
See s. 184 (3) of the Evidence Act
88
57
representative the witnesses called by the prosecution before the court and to obtain the
attendance and carry out the examination of witnesses to testify on his or her behalf
before the court on the same conditions as those applying to witnesses called by the
prosecution. The attendance of witnesses in court could be secured through a subpoena
issued by the court at the instance of the party wishing to call that witness.
The penalty for non-attendance of a witness is a fine not exceeding D200. The fine is
levied by attachment and sale of any property belonging to the witness and found
within the local limits of the court‟s jurisdiction. Where the fine cannot be recovered by
attachment and sale, the witness may be imprisoned for 15 days, unless the fine is paid
before the expiry of the 15 days. The High Court is also empowered to remit or reduce
any fine a subordinate court imposes on a witness.89
If, without sufficient cause, a witness does not obey a witness summons, the court may
issue a warrant for him to be arrested and brought before it on proof of proper service
of the summons.90 Where a court is informed on oath that a person might give material
evidence in a case and will not attend unless he is compelled to do so, the court may at
once issue a warrant for the arrest and production of the witness before it at a time and
place to be named in the warrant.91 Where a witness is arrested under a warrant, the
court may release him after he furnishes security, with or without sureties. If such
security is furnished, the court then orders the witnesses release from custody but
where security is not furnished, the court orders for his detention for production at the
hearing.92
Where the witness to be examined is a prisoner, a court presiding over a case may issue
an order to the officer in charge of the prison requiring him or her to bring the prisoner
89
S. 122 of the CPC
90
S. 118 of the CPC
91
S. 119 of the CPC
92
S. 120 of the CPC
58
before the said court for examination at a time to be named in the order.93 The officer in
charge of such a prison as aforesaid shall, on receipt of the court order, act in
accordance therewith and shall provide for the safe custody of the prisoner during his
absence from the prison for the purpose of being examined by the court.94
There are no statutory provisions regulating the order in which witnesses should be
called. Since the conduct of a criminal case is the duty of a prosecutor, it is his
responsibility to decide in what order witnesses should be called. In practice, the
prosecutor adopts a logical order so that his case would unfold easily before the court.
Normally, when the complainant is available, the prosecutor calls the complainant as
the first prosecution but there‟s a no law requiring the prosecutor to call the
complainant first. In homicide cases it is advisable for the prosecutor to call eye
witnesses to testify first before calling other witnesses. The prosecutor should therefore
call his witnesses in an order which will ensure that the evidence adduced is sequential.
3.2.3.1. Number of Witnesses
Before the accused is convicted, the court must make sure that the prosecutor calls
material witnesses to prove its case, whether their evidence will favour the
prosecution‟s case or not.95 If a court is satisfied that any person is likely to give material
evidence for the prosecution or defence, it may issue a witness summons for such a
person.96
93
94
95
See Marena v. State (infra), Ebrima Bajinka & anor v. The State GCA CRIM APPs 425/92 and Momodou Mbenga
v The State GCA CRIM APP NO. 11/92 (referred to in The Law of Evidence in The Gambia by Hassan Jallow, First
Edition at pages 165 - 167)
96
S. 117 of the CPC
59
Note that what the law requires from the prosecutor is for him to call sufficient
witnesses, not all material witnesses.97 Where the prosecution fails to call sufficient
witnesses to establish the case against the accused, the accused should be discharged
and acquitted. In Momodou Mbenga v. The State (supra), the appellant was convicted
for unlawful possession of drugs. The prosecution‟s case was that the drugs had been
discovered when a search squad raided the appellant‟s home. The drugs were said to
have been discovered by a particular police officer who was not called as a witness. At
the trial and on appeal the accused denied the charged and maintained the police officer
who allegedly caught him should have been called as a witness. The appeal was
allowed and the Court of Appeal held the case against the accused was not proved
beyond reasonable doubt because the accused was denied the opportunity to cross-
examine a key witness.98
Thus if there is a vital point in issue and there is one witness whose evidence will settle
it one way of the other, that witnesses out to be called by the prosecution. This however
does not mean that a host of witnesses must be called upon the same point.99 A court
should therefore always bear in mind that the number of witnesses called by the
prosecutor is within his discretion because there is no stipulated number of witnesses
required to be called to prove the accused‟s guilt.100
There are however instances in which a conviction cannot be based on the evidence of
one witness. At least two witnesses are required in order to secure the accused person‟s
guilt in the following instances: (a) Cases of rape and other sexual offences against
complainants;101 Cases of perjury;102 Cases of exceeding speed limit under the Motor
97
See Omar Sey v. The State (Criminal Appeal No. 11/93, ibid at page 167. See also the Nigerian case of Ali & anor
v. The State (1988) 1 SCNJ 17 and Opayemi v. The State (1985) 6 SC 347
98
See Marena v. The State 1960-1993 GR 96. See also R. v. Kuree (1941) 7 WACA 175, R v. Essien (1938) 4 WACA
112 at 113, Addae v. Commissioner of Police 11 WACA42, R v. Ansere (1958) 2 WALLR 285, WACA, Twumasi Ankrah
v. R (1955) 14 waca 673 and Yeboah v. R (1954) 14 WACA 484 – all cited in Marena’s case
99
See Mballow v. The State 1960-1993 GR 436
100
Onafowokan v The State (1987) 7 SCNJ 233
101
S. 180 (2) (a) of the Evidence Act
102
S. 180 (2) (d) of the Evidence Act
60
Traffic Act;103 Cases of sedition;104 and Cases treason, concealment of treason and
spying.105
It is also provided for in the Evidence Act and the CPC that an accused cannot be
convicted on the unsworn evidence of a child, without the independent evidence of
another witness.106
In a trial on Information before the High Court, the prosecutor does not have to call all
the witnesses whose names are listed on the back of the Information. All the
prosecution needs to do is to call enough material witnesses in order to establish its
case.107
However, that if a witness has some important evidence to give which could have tilted
the case one way or the other to the benefit or detriment of the accused, then if the
prosecution does not call that witness it has the duty to make him available to the
accused for the purposes of cross-examination. In the case of Omar Sey v The State
(supra) the Gambia Court of Appeal held that the prosecution had discharged its duty
by providing the name and regular address of a witness.
While there is a duty to call relevant witnesses, the court is also required, especially in
criminal cases, to afford the parties a reasonable chance of calling their witnesses. In the
case of Ebrima Sanusi v. C.O.P108, the Gambia Court of Appeal allowed the appellants
appeal and quashed his conviction because of the refusal of the trial magistrate to grant
the appellant an opportunity of calling witnesses in his defence amounted to a denial of
justice.
103
S. 180 (2) (e) of the Evidence Act
104
S. 54 of the Criminal Code
105
S. 38 of the Criminal Code
106
See s. 185 of the Evidence Act and s. 124 (3) of the CPC (supra)
107
See the Nigerian case of Adaje v. The State (1979) 6-9 SC 18 and the English case of Adel Muhammed El Dabbah
v. A.G. for Palestine [1944] AC 156
108
(1961) 3 All ER 457, cited in Hassan Jallow book (ibid) at page 167-168
61
The court may comment on the absence of the evidence given which might have been
given, including the failure of the prisoner to exercise his right to give evidence – if in
the discretion of the court such comment appears to be fair and just.109
In criminal cases, the court can suo motu call or recall witnesses110 in terms of section 123
of the CPC.
3.2.3.2. Examination of Witnesses
In the presentation of its evidence before the Court, each party may be allowed to elicit
evidence from its witnesses by way of questions and answers through a process known
as the examination-in-chief of a witness. During examination-in-chief, leading questions
may not be allowed.
After the examination-in-chief of a witness, the Court must then open up the witness to
cross-examination by the opposite party. Where the accused is unrepresented, the court
shall, at the close of the examination of each witness for the prosecution, ask the
accused whether he or she wishes to put any questions to that witness and shall record
his or her answer. It may be required of the Court to listen to the accused and assist in
framing his questions.
At the close of cross-examination, the Court will invite the party leading evidence to re-
examine the witness. Under re-examination leading questions are not allowed and
questions must relate to matters raised under cross examination.
109 th
See Archbold, 35 Edition, paragraph 584
110
See the Nigerian case of Police v. Olatilewa [1958] WRNLR 200 on the power of a court to recall witnesses. It
was held that his power was properly invoked by a magistrate because the witness was recalled in the interest of
justice and fairness in order to provide an omission on the record which was the failure to record the distance
travelled by the accused after a road accident. Compare with Onuoha v. The State (19890 2 NWLR (Pt. 101) 23
where a judge recalled 2 witnesses after the close of the case for the prosecution and the defence and asked them
a total of 13 questions. It was held that that amounted to an abuse of the court’s powers. See also Okorie v. The
Police 1966 LLR 134, where a magistrate recalled a witness to tender a statement made by another person who
was not present in court. It was held on appeal that the magistrate did not properly exercise his discretion.
62
By virtue of s. 225 of the Evidence Act, the court may put questions to witnesses or
order the production of a document. The power to call or recall witnesses and the
power to put questions to witnesses or order the production of a document does not,
however, mean the court should take over the conduct of a case. The accused is
presumed innocent until proven guilty and since the prosecution, not the court, is
required to prove the accused‟s guilt beyond reasonable doubt, the court should always
act as an impartial adjudicator or umpire. It should never descend to the arena of
conflict.
At the commencement of a trial, witnesses are ordered out of court and out of hearing
by the court officials. This is to ensure that evidence of one witness does not influence
the evidence of another witness. The law permits the parties to the case to remain in
court, even though they intend to give evidence for themselves as witnesses. 111
Where a witness remains in court after being ordered to leave or where a witness
remains in court because the court or the prosecution or the defence forgot to tell the
witness to leave before his evidence is taken in court, the refusal of a witness to comply
with the court order to be out of court and out of hearing does not render the evidence
of the witness inadmissible by the court. The presence of the witness in court would
merely go to the weight to be attached to his evidence by the trial court.112
When all witnesses for the prosecution have testified and the prosecutor informs the
Court of this, the Court must then close the case for the prosecution. After the close of
the prosecution‟s case, the Court must then evaluate the evidence on record with a view
to determine whether or not a prima facie case has been established, that is to say,
whether there is enough evidence on record to warrant the accused to enter his defense.
At the close of the prosecution„s case, the defence may raise a no case submission, rest
its case on the evidence adduced by the prosecution, or call evidence in defence.
111
See s. 190 of the Evidence Act
112
See Uwaezuoke v Amosu 19 NLR 57. See also the Nigerian case of Falaju v Amosu [1983] SCNLR 209
63
Where an accused elects to call evidence in defence, he shall be examined-in-chief and
crossed examined by the prosecution as well. If he has witnesses, they too shall be
examined-in-chief and crossed-examined in like manner. Unlike the prosecution, the
accused is not required to list out all its witnesses and provide a summary of their
evidence.
3.2.4 Plea of Autre fois Acquit and Autrefois Convict
This is a distinct plea provided for in section 164 (5) (a) of the CPC for criminal matters
before a subordinate court and section 222 of the CPC for matters before the High
Court. These pleas are also recognized by section 24 (6) of the 1997 Constitution. Where
the pleas of autrefois acquit or autrefois convict is invoked by an accused person, the trial
court shall as a preliminary matter first try the issue and if the accused does not prove
the plea113 he shall be required to plead to the charge.
For the plea autrefois acquit autrefois convict to succeed, the accused must have been tried
previously on a criminal charge. A trial for a breach of an internal regulation of an
association or body does not constitute a trial on a criminal charge. Thus in the Nigerian
case of R v Jinadu114 (a WACA decision), the accused was tried by a police Orderly
Room for a breach of police regulations. It was alleged that he used unnecessary
violence on persons in his custody. He was convicted and ordered to be downgraded in
rank by the Police Orderly Room. Subsequently, he was charged before a court and
convicted of offences of compelling action by assault, and assault. He raised the defence
of autrefois acquit autrefois convict. The trial court rejected his plea and he was
subsequently convicted. On appeal, it was held that the plea was rightly rejected by the
trial court because the charge before the Police Orderly room was not a criminal charge,
but a breach of regulation.115
113
The burden of proof here is on the accused.
114
12 WACA 368
115
Note the proviso to s. 24 (6) of the Constitution for members of a defence force tried under a service law
64
Where an accused pleads the defence, the former trial must be before a court of
competent jurisdiction.116 Thus if the court that presided over the case lacked
jurisdiction, the verdict of the court cannot be pleaded in a subsequent charge for the
same offence or for an offence for which the accused could have been convicted at the
first trial. In R v Hodge117, the accused was convicted of various offences by a
Magistrates‟ Court. The conviction was quashed on the ground that the magistrate had
no jurisdiction to try the offences. A fresh charge was preferred against the accused. In
answer to the charge, he pleaded autrefois acquit. The court rejected the plea and stated
that where a conviction is quashed on the ground that that the court below had no
jurisdiction to deal with the case, a plea of autrefois convict will not be available to the
accused.
For a plea under this head to succeed, the previous trial must have ended with an
acquittal or a conviction. Therefore, where the accused was merely discharged (as in
where, for example, the prosecution withdraws a case under s. 68 (1) of the CPC), the
trial has not ended in an acquittal or a conviction and consequently the plea of autrefois
acquit or autrefois convict will not stand.118
Where an accused is acquitted and discharged on the merit, the plea of autrefois acquit
can be invoked to a subsequent action based on the same facts. Thus where an accused
person is merely discharged following the quashing of the criminal proceedings for
being invalid, the plea of autrefois acquit will not stand. In the case of Donaldson v
Commissioner of Police119, the Gambia Court of Appeal dismissed the appellant‟s
appeal against conviction for forgery because the plea of autrefois acquit he raised was
not sustainable in that in his previous trial on the same charge of forgery, he was not
116
See s. 24 (6) of the Constitution
117
6 NLR 56
118
Note the provisions of ss. 64 and 68 of the CPC which clearly state that a discharge after a nolle prosequi under
s, 64 or a withdrawal under s. 68 (1) does not operate as a bar to any subsequent proceedings against an accused
person on account of the same facts. This would include (as stated in s. 68 (2) of the CPC) even instances where an
accused is acquitted under s. 68 (1) (b) following an application for withdrawal after he is called upon to make his
defence or even where a subordinate courts uses its discretion to acquit under the proviso in s. 68 (1) of the CPC
119
1960-1993 GR 1
65
acquitted of the offence but merely discharged, following the quashing of the committal
proceedings for being invalid.
Again, a discharge based on a no-case submission by counsel or the accused or suo motu
invoked by the court is a discharge on the merit.
For such a plea to succeed, the criminal charge for which the accused was tried should
be the same as the new charge against him or alternatively the new charge should be
one in respect of which the accused could have been convicted at the former trial,
although not charged with it.
Where the accused is charged with the same offence at the latter trial as the former trial,
this would be easy for him to prove. However, where the subsequent charge is not
identical to the earlier charge, the accused has to prove that if he had been charged at
the former trial with the subsequent offence, he may have been convicted. The accused
has to establish that some or all the ingredients of the offence charged at the first trial
could sustain a conviction for the subsequent charge, if he had been so charged at the
former trial. For example, if the accused is charged with the offence of assault causing
actual bodily harm and was convicted, he cannot subsequently be charged on the same
facts with the offence of assault. This is because the ingredients of the offence of assault
causing bodily harm include that of assault, and the accused could have been convicted
of assault at the former trial.
In R v. Noku120 (a WACA decision), the accused was acquitted of murder because the
prosecution failed to prove that it was the wound inflicted by the accused that caused
the death of the deceased. The accused was subsequently charged with the offence of
committing an act intended to cause grievous harm. He pleaded autrefois acquit to the
charge on the ground that he had been previously acquitted of a charge of murder. The
120
6 WACA 203
66
court rejected the plea holding that the accused could not have been convicted at the
former trial of the subsequent offence charged if he had been so charged.
In R v. Edu121, the court rejected the plea of autrefois acquit where the accused was
acquitted of stealing a postal packet, but was subsequently charged with negligently
losing the same packet.
In Connelly v. DPP122, it was held that the acquittal of the accused on a murder charge
did not bar a subsequent trial for aggravated robbery. The House of Lords held that the
appellant could not have been convicted of robbery at his trial for murder. Thus his plea
of autrefois acquit to the charge of aggravated robbery was rejected.
3.2.5. Plea of Pardon
This is a distinct plea provided for in section 164 (5) of the CPC for criminal matters
before a subordinate court and section 222 of the CPC for matters before the High
Court. This pleas is also recognized by section 24 (7) of the 1997 Constitution. Where the
plea of pardon is raised by an accused person, the trial court shall as a preliminary
matter first try the issue and if the accused does not prove the plea123 he shall be
required to plead to the charge.
Thus, if the accused proves to the satisfaction of the court (the burden of proving the
defence is on the accused) that a pardon has been granted and he or she produces the
relevant instruments of pardon, the plea must be sustained. This means the charge
would have to be dismissed and the accused acquitted. Where the plea is rejected, the
accused will be asked to plead to the charge against him.
121
14 WACA 163
122
(1964) 48 CR App. R 183
123
The burden of proof here is on the accused.
67
3.2.6. Plea to the Jurisdiction
The accused person may also challenge the jurisdiction of the court that is to try him. If
the court rules it has no jurisdiction, it should dismiss the charge and discharge the
accused. Note the provisions of s. 62 of the CPC on transfer of cases where a court does
not have jurisdiction. Note also that if an accused is discharged because the court rules
it does not have jurisdiction, he or she can be subsequently be rearrested and arraigned
before a court vested with jurisdiction.
3.2.7. Plea to Defects in the Charge
An accused person can object to the charge preferred him or her. He or she may state
that the charge contravenes any or a combination of the rules of drafting of charges. If
the plea of the accused is sustained, the accused may be discharged at that stage.124
Alternatively, the court may amend or permit the amendment of the original charge125
and proceed with the trial, provided that proceeding with the trial immediately after
the amendment would not prejudice the accused person.
It must, however, be noted that s. 161A of the CPC provides that an objection to a
charge or any formal defect on the face thereof shall be taken immediately after the
charge has been read over to the accused and not later. This section only applies to trials
before a subordinate court. S. 217 of CPC has a similar provision for criminal trials
before the High Court.
3.3. Refractory Witnesses
124
Note s. 69 (2) of the CPC which provides that “The validity of proceedings instituted or purported to be
instituted in pursuance of subsection 1 of this section shall not be affected by any defect in the charge or
complaint or by the fact that a summons or warrant was issued without any complaint or charge or, in the case of
a warrant, without a complaint on oath.”
125
Note s. 169 on amendment of charges for trials before a subordinate court and s. 218 of the CPC on
amendment of information for trials before the High Court
68
When a person, appearing either in obedience to a summons or by virtue of a warrant,
or being present in court and being verbally required by the court to give evidence:
refuses to be sworn or affirmed; having been sworn or affirmed, refuses to answer a
question put to him or her; refuses or neglects to produce a document or thing which he
or she is required to produce; or when lawfully required to do so refuses to sign his or
her deposition, without in any such case offering any lawful or reasonably sufficient
excuse for the refusal or neglect, the court may adjourn the case for any period not
exceeding eight days, and may in the meantime commit the person to prison, unless he
or she sooner consents to do what is required of him or her (section 125 CPC).
If such a person after being brought before the court at or before the adjourned hearing,
again refuses to do what s required of him or her, the court may, if it thinks fit, again
adjourn the case and commit him or her for the like period, and so again from time to
time until the person consents to do what is so required of him or her. 126 Nothing
contained in s. 125 of the CPC, however, affects the liability of the person to any other
punishment or proceeding for refusing or neglecting to do what is so required of him or
her, or shall prevent the court from disposing of the case in the meantime according to
any other sufficient evidence taken before it.127
3.4. Adjournments
The granting of an adjournment is discretionary and would depend on the

circumstances. A criminal cause before a court may be adjourned for several reasons.
Firstly, the court dealing with a criminal case may not sit on the day the matter comes
up. In that case the matter would automatically have to be adjourned and a new date
taken. Alternatively, the court may sit but decides to adjourn a matter for compelling
reasons.
126
127
69
Secondly, the prosecution may apply for an adjournment because the prosecution
witnesses are not available in court to enable the prosecutor to proceed with his case. In
that case an adjournment is granted to enable to witnesses to appear and testify so that
the case will be determine on the merits. Where there is evidence that the witnesses
might not be available, the court may decide not to adjourn a matter. In that case, if may
discharge the accused. It should also be noted that where a prosecutor who has notice
of the hearing fails to appear, the court can either adjourn the case or discharge the
accused, s. 160 CPC.128
Thirdly, the defence may apply for an adjournment in order to call defence witnesses.
The court will grant an adjournment for the defence to call its witnesses 129, especially if
the witness sought to be produced by the defence is a material one. However, where the
defence is guilty of negligence or laches in procuring the witness, and if there is a
reasonable expectation that the witness would not be produced on the next adjourned
date, then the court may deny an application for adjournment. In the Nigerian case of
Yanor v. The State130, the accused was charged and convicted on murder. During the
trial, several adjournments were granted at the request of the defence. This was to
enable counsel to secure the attendance of a material witness for the defence. At the
resumed resuming, the defence again applied for a further adjournment of the trial but
the application was rejected. The proceedings then continued and the accused was
convicted. On appeal it was argued that the failure of the court to grant the accused an
adjournment was a denial of a fair trial to the accused. The Nigerian Supreme Court
that the trial court properly exercised its discretion by refusing to further adjourn the
matter. The defence was granted several previous adjournments but the witnesses were
never produced and there was no likelihood of the witnesses being produced at all. The
128
Note that this provision only applies to criminal proceedings before a subordinate court.
129
See the Case of Sanusa v. Commissioner of Police 1960-1993 GR 42 where the Gambia Court of Appeal held that
denying the accused the opportunity to call witnesses in his defence amounted to a denial of justice.
130
[1965] 1 All NLR 193
70
appeal was therefore dismissed because the court held that a further adjournment of the
case would have delayed the dispensation of justice.
Where an accused person fails to appear, the court can proceed in his absence as if he
were present, provided he is not charged with a felony, s. 163 CPC.131
When deciding on an adjournment, the mandatory provisions of s. 162 CPC132 should

always be borne in mind. This section provides that criminal cases shall not be
adjourned beyond 15 days or if the accused is committed to prison, for not more than 7
days. However, for criminal matters before the High Court, no such time limit is
provided for. Adjournments of criminal matters before the High Court are governed by
s. 226 of the CPC.
3.5. Withdrawal of Part-Heard Cases
The prosecution can choose to discontinue any criminal proceedings at any stage before
judgment. This right can be exercised in two ways; either pursuant to section 64 of the
CPC or pursuant to section 68 of the CPC and the choice of procedure will determine
the consequential orders to be made by the Court.
Where the choice of procedure is exercised in terms of section 64 of the CPC, the State
Party is said to have entered a Nolle Prosequi. The power to enter a nolle by the State
Party is emboldened by section 85(1) (c) of the 1997 Constitution. By a combined
reading of section 85 (1) (c) of the 1997 Constitution and section 64 (1) of the CPC, the
law allows the DPP to discontinue a criminal matter in two ways; either by stating in
court or informing the court in writing of his intention to do so at any stage before
judgment is delivered…”
131
132
71
It is within the exclusive discretion of the Attorney General to decide on when to initiate
or discontinue a criminal matter in court. Once a nolle prosequi is entered, the trial
Court is immediately divested of the power to take any further steps in the matter (The
State v. Christopher Badjie No. 1 - Unreported). And a Court cannot question when and
how the Attorney General should exercise this power in criminal proceedings (The
State v. Abdoulie Conteh (2002-2008) 1 GLR 150).
Where a nolle is entered, the trial Court is required to discharge but not to acquit the
accused person.
However, where the procedure is taken in terms of section 68 of the CPC, the Court will
not only have to consent to the withdrawal, the prosecution is enjoined to adduce
reasons for such withdrawal. Withdrawal from prosecution under section 68 of the CPC
relates to criminal proceedings before a subordinate court and not the High Court. A
prosecutor may with the consent of the subordinate court or on the instruction of the
Attorney-General may withdraw from prosecution of an accused either generally (on all
the counts) or with respect to one or more offences in the charge.
The consequential order to be made by a subordinate court upon withdrawal from

prosecution under section 68 of the Criminal procedure Code depends on the stage of
the proceedings. If the withdrawal is made in the course of a trial before the accused is
called upon to make his or her defence, he or she shall be discharged in respect of the
offence or offences. Where the withdrawal is made after the accused from is called upon
to make his or her defence, he or she shall be acquitted in respect of the offence or
offences.
The proviso to section 68 of the CPC further provides that even where the withdrawal
takes place before the accused is called upon to make his defence; a subordinate court
may in its discretion order the accused to be acquitted if he is satisfied upon merits of
the case that such order is proper one. The magistrate must however endorse his reason
72
for so doing. The Court must ensure that the process is not allowed to give unfair
advantage to the prosecution. Thus, where evidence has been led by the prosecution,
the Court may insist to evaluate the available evidence on record and proceed to make
an order for acquittal where necessary. This may prevent the prosecution from bringing
the matter back to Court after repairing the loop holes in their case.
3.6. Conviction or Discharge and Acquittal
At the end of the trial the Court must either convict the accused or discharge and
acquit him for the offence under trial. Where the Court finds the accused guilty
as charged, the Court must proceed to convict him accordingly otherwise the
accused must be discharged and acquitted.
Upon conviction, the Court may impose a custodial or non-custodial sentence. In

addition to the above and from a combined reading of Section 31 (2) of the
Criminal Code and Section 145 of the CPC, the Court may also order
compensation for material loss or personal injury against the convict in default
whereof the convict may be ordered by to spend a further period in jail.
Where the Court finds that there is no sufficient incriminating evidence against
the accused person or when there are reasonable doubts in the prosecution‟s
case, the accused should be discharged and acquitted.
73

Lecture Notes On Criminal Procedure

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Lecture Notes On Criminal Procedure

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UNIVERSITY OF THE GAMBIA

A trial is a judicial examination and determination of issues between the parties in

Part One: Foundational Issues in Criminal Law Practice

1.1. Conceptual Understanding of Criminal Procedure

1 Section 19(1) of the Constitution

2 S. 19(3)(b) of the Constitution.

8 Section 23 (2) (a) & (b) of the Constitution

13 Section 24(6) of the Constitution

19 See section 100 of the 1997 Constitution.

It is sometimes called the continental system, in reference to the continent of Europe

1.4. Rules Governing Criminal Trials in The Gambia

The administration of criminal justice in Gambia is governed by some general and

2.1. Criminal Investigations

A criminal investigation is the bedrock of the entire criminal trial process. It is an

2.2. Reasonable Suspicion

However, any individual may, in case of a felony, committed flagrante delicto, or

2.4. Search and Seizure

However, it is emphatically clear from the express provision of section 23 of the

2.4.1. Search Warrant

2.5. Police Station Inquiry

In recording extra-judicial statements from suspects certain basic rules must be

A very important difference between a statement being made involuntarily and a

2.6. Pressing a Charge

2.6.1. Charges and Information

2.6.2. Form of a Charge or Information

The Charge Sheet or Information must take the following form:

(a) Heading (Jurisdiction of Trial Court)

(b) Reference (Suit) Number

(d) Preamble (this applies to information only)

(e) Count (charges); and

(f) Date and Signature of the drafting authority

(i) Heading (Jurisdiction of Trial Court)

“IN THE BRIKAMA MAGISTRATES‟ COURT

(ii) Reference (Suit) Number

“IN THE BANJUL MAGISTRATES‟ COURT

CHARGE/CASE NUMBER BMC/0001/12”

“IN THE KANFING MAGISTRATES‟ COURT

“IN THE HIGH COURT OF THE GAMBIA

The victim of a crime is not a party in criminal proceedings. He is a witness or nominal

IN THE BANJUL MAGISTRATES‟ COURT

THE STATE .................................................................................. COMPLAINANT

MOHAMMED KRUBALLY ............................................................. ACCUSED PERSON

IN THE BANJUL MAGISTRATES‟ COURT

INSPECTOR GENERAL OF POLICE .......................................COMPLAINANT

MOHAMMED KRUBALLY ............................................................. ACCUSED PERSON

IN THE BANJUL MAGISTRATES‟ COURT

NATIONAL DRUG ENFORCEMENT AGENCY ........................... COMPLAINANT

MOHAMMED KRUBALLY ............................................................. ACCUSED PERSON

IN THE HIGH COURT OF THEGAMBIA

THE STATE .................................... ....................................................COMPLAINANT

MOHAMMED KRUBALLY ................................................................ACCUSED PERSON

The Honourable Court is informed by the Honourable Attorney General on behalf of

NATIONAL DRUG ENFORCEMENT AGENCY ........................... COMPLAINANT

MOHAMMED KRUBALLY ............................................................. ACCUSED PERSON

IN THE BANJUL MAGISTRATES‟ COURT

INSPECTOR GENERAL OF POLICE .......................................COMPLAINANT

MOHAMMED KRUBALLY ............................................................. ACCUSED PERSON

(v) Counts (Charges)

IN THE HIGH COURT OF THE GAMBA

MOHAMMED KRUBALLY ................................................................ACCUSED PERSON

The Honourable Court is informed by the Honourable Attorney General on behalf of

An example of a charge filed at the Banjul Magistrates‟ Court will go thus:

IN THE BANJUL MAGISTRATE‟S COURT