Magistrate Krubally has acquitted and discharged two Austrian nationals charged with disobedience to a lawful court order, after finding that the prosecution’s own witnesses under cross-examination confirmed that the accused had in fact complied with the terms of the order against them.
The ruling, delivered today, June 10, 2026, brought to an end a prosecution that the presiding magistrate said had “collapsed” before reaching the defence stage.
The case emerged from a criminal complaint lodged at the Serious Crime Unit of the Police by two individuals, Ebrima Tamba and one Mr Marcell, who alleged fraud or theft against the two accused, Manuel Di Stofleth Mitterer and Angelika Mitterer, both Austrian nationals resident in the country. The couple had been living in Brufut Heights, with reported property interests including apartments in Kololi and shareholding stakes in businesses.
Investigators from the Serious Crime Unit, led by Chief Superintendent Bakary Dibba and Superintendent Lamin Saidykhan, said the complaint centred on a cryptocurrency account allegedly used in the course of the disputed transactions.
The account was said to be accessible via a Microsoft laptop recovered from the accused’s home. The investigators requested that the couple allow them access to the laptop, but the couple declined, citing their constitutional right to privacy.
On July 21, 2025, the prosecution unit at Police Headquarters applied to the Banjul Magistrates’ Court by way of an ex-parte motion supported by a 25-paragraph affidavit, seeking a series of court orders. Magistrate Krubally granted all five reliefs as prayed, directing the couple to open or provide the password to their laptop, to allow police access to their cryptocurrency account, and to provide the cryptocurrency account address and wallet addresses to investigators. The order, admitted at trial as Exhibit A, would become the central document in the subsequent criminal charge.
Following the grant of the court order, the couple were served with it while in police custody. The prosecution charged them on July 28, 2025, with one count of disobedience to a lawful order, contrary to section 109 of the Criminal Offences Act 2025, a misdemeanour carrying a maximum of two years’ imprisonment.
The particulars alleged that in July 2025, at the Serious Crime Unit at Police Headquarters in Banjul, the couple jointly disobeyed the court’s order of July 21 by failing to provide access to their cryptocurrency account, its password, and its wallet addresses.
Both accused entered pleas of not guilty when arraigned before Magistrate Krubally. The bail hearing that followed was intensely contested. The prosecution, represented by Commissioner A. Sanneh, opposed bail with the argument that the accused were foreign nationals with apparent intent to flee, arguing that intelligence had suggested they were preparing to leave the country and had made an attempt to do so that very morning.
The prosecution invoked section 127 of the Criminal Procedure Act and argued that granting bail risked interference with the investigation.
Senior Counsel S.M. Tambadou, appearing for the accused, countered. He pointed out that the couple had been voluntarily reporting to the Serious Crime Unit daily since July 9, 2025, and had been on police bail on previous charges, including allegations of stealing and conspiracy to steal without any attempt to abscond.
He told the court the accused had deep roots in The Gambia: they owned property in Kololi, held business interests in the country, and had an eight-year-old daughter at home in the care of a friend, unaware of where her parents were being held. The court granted bail at one hundred thousand dalasis each, with conditions requiring a responsible Gambian or Austrian surety.
When the case was called for commencement of hearing on August 14, 2025, the defence, through Senior Counsel Ida Drammeh, filed a motion seeking the recusal of the presiding magistrate, Krubally. She argued that since it was magistrate Krubally who had made the ex parte order of July 21, whose alleged breach formed the basis of the current charge, there existed a real likelihood of bias: the court would, in effect, be adjudicating whether its own order had been disobeyed.
The prosecution opposed the application, characterising it as a dilatory tactic unsupported by any factual demonstration of bias. In ruling on the motion, Magistrate Krubally dismissed it. He applied the objective test drawn from R v Sussex Justices, whether a fair-minded and informed observer would perceive a real possibility of bias and concluded that no such basis had been established.
He noted that judicial officers routinely make interlocutory orders and thereafter preside over related proceedings, and that the act of making the July 21 order was a routine judicial function that gave him no personal or pecuniary interest in the outcome of the trial. He further cited the NIA Nine case and Halifa Sallah and Others v The State (2002/08 GLR Vol. 1) in support of his position.
When the prosecution eventually opened its case, it called two witnesses: PW1, Chief Superintendent Bakary Dibba, commanding officer of the Serious Crime Unit; and PW2, Superintendent Lamin Saidykhan, an investigator on the case. Both witnesses gave evidence in chief that the accused had refused to comply with the court order, that despite being served with Exhibit A, they had not provided access to their cryptocurrency account.
PW1 testified that the laptop, which had been at the centre of the investigation, remained in police custody to the date of his testimony and that investigators had been unable to access the cryptocurrency account or its transactions. He identified Exhibit A in court and described the process by which investigators had sought and served the order on the accused.
PW2 went further, offering detailed evidence of the investigation. He said a theft complaint had been lodged by one Solomon Tamba and Mr Marcell. The laptop was recovered from the couple’s home and brought to the investigators.
He said the accused initially refused to open it, but eventually did so, providing a written password following which the laptop was opened. He maintained, however, that even after the laptop was opened, investigators could not access the cryptocurrency account.
Under cross-examination, however, PW2’s account became more complicated and damaging to the prosecution’s case. Senior Counsel Tambadou drew from the witness a series of admissions. PW2 confirmed that the first accused had opened the laptop. He confirmed that the second accused had provided a written password on a piece of paper.
He acknowledged that the second accused had also brought a black box and a stick device that was used to access cryptocurrency accounts, and that this box was in police custody. He further confirmed that during a session at the police station, the accused had accessed the laptop, which was in German and had printed a document connected to the cryptocurrency account from the browser.
He also acknowledged that at the time the laptop was opened, it was not connected to the internet, and that when asked to demonstrate access to the laptop in court, he could not do so, stating that the battery had run down and that he did not have the password with him.
After PW2’s testimony, the prosecution announced that it had closed its case and did not intend to call further witnesses. Senior Counsel Tambadou indicated his intention to file a written no-case submission.
In a detailed written submission dated April 27, 2026, Senior Counsels Tambadou and Drammeh argued that the prosecution had failed to establish a prima facie case. They invoked section 215 of the Criminal Procedure Act 2025, which obliges a court to dismiss and acquit where, at the close of the prosecution’s case, the evidence is insufficient to require a defence.
They cited the Nigerian Supreme Court decisions in Ubanatu v Commissioner of Police [2000] LPELR 3280 and Emedo & Ors v The State (2002) LPELR-1123, as well as the Queen’s Bench Practice Note of Lord Parker CJ from 1962, which has been cited with approval by Gambian and Ghanaian courts.
The defence’s core argument turned on a close reading of Exhibit A itself. Order 2 of the July 21 order directed the accused “to open, allow or provide password to the said laptop” It was framed in the alternative, requiring any one of those three acts. Order 3 directed them “to provide the cryptocurrency account address and its wallet addresses to the police.”
The defence argued, pointedly, that no order had been made requiring the accused to provide the password to the cryptocurrency account itself, only the laptop password and the wallet addresses.
On that reading, the defence submitted, the prosecution’s own witnesses had confirmed compliance: the laptop had been opened and a password provided; the black box and stick used to access the crypto account had been handed over; and a document connected to the cryptocurrency account had been printed from the browser in police presence.
Whether the police then had the technical capacity or knowledge to proceed further from that point, counsel argued, was the police’s problem, not the accused persons’. In the words of the submission, the police had “visited their frustration and lack of ability to progress on the accused persons by charging them with disobedience of a court order.”
The defence also relied on the Nigerian Supreme Court’s decision in Mufutau Akinpelu v Ebunola Adegbore & Ors [NSCQR Vol. 34, 2008], per Niki Tobi JSC, for the proposition that a person cannot be held liable for disobedience of a court order in respect of conduct that preceded the order, there being nothing to disobey at that point.
Commissioner Sanneh filed an opposition to the no-case submission, arguing that the prosecution had established all the essential elements of the offence. He identified the four elements required under section 109 of the Criminal Offences Act: the existence of a court order; that the order was made by a competent authority; that the accused persons were required to act under it; and that they disobeyed it.
He submitted that the accused had only partially complied, providing the laptop password but refusing to supply the passwords to the cryptocurrency account and wallet addresses specifically and that this partial compliance did not amount to fulfilment of the court’s order.
The prosecution also mounted a procedural argument, contending that the Lord Parker Practice Note of 1962 relied upon by the defence had been revoked and was no longer fashionable in criminal proceedings.
It cited a passage from Justice Nke in The State v Suntu Gibba & 13 Others (2013) and the Botswana decision of Vivier and Others v The State (1988) BLR 332, to the effect that at the no-case stage, the court’s inquiry is not whether it would convict, but whether there is some evidence on which a reasonable tribunal might convict.
Senior Counsel I. Drammeh’s reply on points of law contested the prosecution’s position on the Lord Parker Practice Note, arguing that its principles had not been revoked but refined most notably in R v Galbraith [1981] 1 WLR 1039.
She also pointed out that several of the prosecution’s submissions constituted facts not in evidence: the prosecution had asserted in its address that the Gambia Police Force had an Information Technology Unit with personnel holding master’s degrees capable of navigating cryptocurrency systems, yet no such evidence had been placed before the court.
Relying on Bala Ataguba v Commissioner of Police (CA/A/90/C/08) and Oduwole v David West (2010), she submitted that an address cannot substitute for evidence. The burden of proof, she emphasised, never shifts in a criminal trial: the prosecution carries it throughout, and the accused persons are presumed innocent until the contrary is proved.
Magistrate Krubally, in his ruling around three questions: whether the accused had complied with the court order of July 21, 2025; whether they had disobeyed it; and whether the prosecution had established a prima facie case requiring a defence. He resolved all three in favour of the accused.
On the first issue, Magistrate Krubally found that PW1 had confirmed in cross-examination that the accused opened the laptop following consultation with their counsel, and that PW2 had confirmed the second accused provided a written password.
Magistrate Krubally found that the evidence was unequivocal proof of compliance with Order 2 of Exhibit A. He also noted that the prosecution had never explained to the court in oral evidence why the cryptocurrency account could not be accessed once the laptop was opened, or whether the account was even on the laptop in question.
“I cannot conjecture and speculate upon that for determination,” he said.
On the second issue, Magistrate Krubally drew on PW2’s cross-examination evidence that the second accused had brought the black box and stick used to access the cryptocurrency account, and that the accused had printed a document from the cryptocurrency account’s browser in police presence.
Magistrate Krubally concluded: “In my view means that they have provided a password, to open the laptop, provided cryptocurrency account as well as the stick in order to meet or comply with the reliefs of the prosecution.”
He observed that no order had required the accused to provide the password to the cryptocurrency account itself and that the court order had not said so. He therefore resolved the second issue in favour of the accused persons as well.
On the third and final issue whether a pria facie case had been established Magistrate Krubally applied the test from Ceesay v Commissioner of Police (1960-1993 GLR 110), where the Court of Appeal held that a no-case submission should succeed if the prosecution’s case had “obviously collapsed.”
He found that this threshold had been reached. Both prosecution witnesses had contradicted their own evidence in chief during cross-examination. The evidence that had been used to build the charge had, in the end, dismantled it.
“It is an established adage that out of something comes nothing,” Magistrate Krubally said, invoking Lord Denning’s principle that you cannot put something on nothing and expect it to stand. He also drew on Hunter v The Queen and Abdoulie Conteh v The State for the proposition that proceedings without factual or reasonable basis may properly be permanently stayed.
Magistrate Krubally finally acquitted and discharged both Manuel Di Stofleth Mitterer and Angelika Mitterer of the charge under section 109 of the Criminal Offences Act 2025.
He declared them free forthwith, and ordered the return of all property and bonds held by the police and the court including the Microsoft laptop, the cryptocurrency black box, the stick device, the passports of both accused, any security bonds, and any other assets seized in connection with the matter. Their sureties were also discharged.
On the question of the passports in particular, Magistrate Krubally did not wait for the verdict to speak. He noted from the record that the laptop had been in police custody since July 9, 2025 nearly one year and that the passports of the accused had been held equally long without resolution.
He described that as an unreasonable and unconstitutional infringement of their right to freedom of movement. Before the ruling was even complete, he had already dealt with an emergency application by Counsel Drammeh for the return of the second accused’s passport on medical grounds.
She presented documentary evidence that Angelika Mitterer required surgery in Germany and needed to travel by June 12, 2026. The prosecution offered no objection. The court ordered the immediate return of her passport.
