May 10, 2012, 1:06 PM
Defence counsel, LK Mboge, recently addressed the court in defence of his clients, one Amadou Jallow and two others, who were charged with obtaining D1.7m by false pretence, before Magistrate Drammeh of the Kanifing Magistrates' Court.
Lawyer Mboge, in his address told the court that the accused persons pleaded not guilty to the charges. He stated that the complainant, Kemo Dibassy, was alleged to have been defrauded by the accused persons in the sum of D1.7m and 55m CFA, as contained in the particulars of offence on count two
He argued that the complainant said the second accused came to borrow from him the sum of 2m CFA and gave him the money on the same day.
According to counsel Mboge, the evidence of PW1 clearly shows that it is a civil matter between him and the accused person. He referred the court to Section 288 of the Criminal Code and posited that the evidence of PW1 contradicts the intention to defraud.
Lawyer Mboge further argued that the complainant himself went into a transaction outside the jurisdiction of the court. He added that PW1 alleged that the second accused had borrowed 46m CFA from one Lamin Jallow, arguing further that if Lamin Jallow had given the 46m CFA to the accused, it must have happened in a foreign land.
He further said that the entire transaction as narrated by PW1 shows that he entered into a legal transaction with the second accused, with his own knowledge. He submitted that PW1 in his evidence stated that he had given the second accused D150, 000 for washing the forged bank notes.
Lawyer Mboge submitted that the hands of PW1 were not clean, and that he is part and parcel of the contract, which according to counsel Mboge has backfired at him and he came to the law for redress. He indicated that "it is strite law that he who seeks the aid of the law for equity must come with clean hands."
"PW1 went to the police only after the whole transaction had failed, knowing fully well that he was participating in an illegal transaction," counsel Mboge submitted. Consequently, he added that the prosecution had failed to prove that the accused persons had defrauded PW1 of D1.7m and 46m CFA.
He indicated that the prosecution only tendered the voluntary statement of Amadou Jallow, which was obtained while the accused person was in custody.
According to him, PW2 (Buba Sanyang) evidence should be disregarded. As he stated the same witness had conceded that the statement was obtained while the accused was in custody. He challenged that no independent witness had been called to prove that the voluntary statement was done voluntarily. He then referred the court to the Criminal Code to further buttress his submission.
"There is doubt that the accused have conspired to commit any felony," the defence counsel submitted, and then urged the court to discharge and acquit the accused persons.
Prosecuting officer, Inspector Mballow, in his reply, submitted that the prosecution had proven its case beyond reasonable doubt. He argued that conspiracy could be committed within parties even if they are not together. Inspector Mballow submitted that by means of communication, the accused persons could be jointly charged for committing the offence.
He further stated that the voluntary statement of Amadou Jallow should not be disregard, as PW1 clearly stated that Amadou Jallow chose to record his statement while in custody.
He challenged further that the defence did not contest the voluntary statement of Amadou Jallow, requiring the court to enter into a trial within a trial. He submitted that the prosecution had discharged the burden on their shoulders to prove the case. Inspector Mballow further submitted that "the prosecution decides who to charge and who should not be charged."
At this juncture, he referred the court to Section 33 of the Criminal Code and urged the court to hold that the prosecution had proven its case beyond reasonable doubt and convict the accused persons.