S v Kelly Jawara (CC 120 of 2016) [2020] SLHCSOD 1 (14 April 2020)

Key Facts

Issues

• Whether the victim, Kadiatu Tunkara, was a child (under 18 years) at the time of the alleged offence.
• Whether the prosecution provided corroboration to confirm the victim's testimony about the sexual penetration.
• Whether the prosecution proved the accused engaged in sexual penetration with the victim, Kadiatu Tunkara.
• Whether the accused, Kelly Jawara, had the intention to commit the act of sexual penetration with the victim.

Holdings

• The court found that the Prosecution failed to prove the first element of the offense (sexual penetration) due to material contradictions in the evidence, including discrepancies between the victim's account and witness testimony, absence of physical evidence like the torn skirt and photos, and the accused's denial supported by a witness. The judge concluded the Prosecution did not meet the burden of proof beyond reasonable doubt.
• The court determined the Prosecution did not establish the victim was a child at the time of the alleged offense, as the first element was unproven. The judge emphasized that all elements of a criminal offense must be proven separately beyond reasonable doubt, and failure to do so invalidates the entire case.
• The court concluded the Prosecution failed to meet the legal standard for conviction, leading to the accused's acquittal. The judge highlighted the malicious nature of the accusation linked to prior disciplinary actions against the victim and the Prosecution's failure to tender critical evidence like the committal warrant and photographs of the alleged crime scene.

Remedies

Legal Principles

• Corroboration is required in sexual offenses as a matter of practice, even if not explicitly mandated by the Sexual Offences Act, 2012. The court cited Archbold (1966) and R v Baskerville (1916-1917) AER 38 to emphasize the need for independent evidence implicating the accused.
• The prosecution must prove the accused's guilt beyond reasonable doubt in all criminal cases, as established in Woolmington v DPP (1935) AC 481. The court emphasized that this principle applies universally, including in this jurisdiction, and that the burden never shifts to the accused.
• The prosecution must establish the accused's intention (mens rea) to commit sexual penetration, which must be inferred indirectly from actions or statements. The court concluded the prosecution failed to prove this element due to conflicting evidence.
• The prosecution must prove the accused committed the physical act of sexual penetration (actus reus) as defined in Section 19 of the Sexual Offences Act, 2012. The court found material contradictions in witness testimony, undermining proof of this element.
• The standard of 'beyond reasonable doubt' was defined by Denning J in Miller v Minister of Pensions (1947) 2AER 372 as requiring a high degree of probability, not absolute certainty. The court applied this to conclude that the prosecution failed to meet the required standard in this case.

Precedent Name

• Woolmington v DPP
• The State v Moses Alieu Lansana
• Thomas v Jones
• Koroma v R
• Labour-Jones v R
• R v Baskerville
• Soluku Jermil Bockarie v The State

Cited Statute

• Sexual Offences Act, 2012 Act No. 12 of 2012
• Criminal Procedure Act (CPA)
• Criminal Procedure (Amendment) Act, 1981 Act No. 11 of 1981
• Criminal Procedure Act, 1965 Act No. 32 of 1965

Judge Name

Passage Text

• Based on the above findings, I hold the considered view that the Prosecution has failed to prove the case against the Accused, Kelly Jawara, for the offence of sexual penetration of a child contrary to Section 19 of The Sexual Offences Act, 2020, Act No. 12 of 2012. Consequently, I hereby acquit and discharge the said Accused of the said offence.
• Firstly, whilst Mustapha Rogers said he observed bruises around victim's neck when she returned to the class after the alleged sexual assault, the medical doctor who is an expert witness said she did not observe any physical injuries on the victim. She endorsed this same finding in Exhibit C2 under the heading 'Physical Injuries' that, 'No injuries seen' The Prosecuting State Counsel submitted in his Closing Address on this issue that the medical doctor did not observe any physical injuries on victim because the doctor did the examination on the 30th October, 2017 i.e. three days after the alleged incident. However, the Prosecution did not lead any evidence to support that submission.