Oct 2, 2015, 12:33 PM
Magistrate E. Jaiteh of the Brikama Magistrates’ Court recently convicted and sentenced one Mamadi Sabally to a fine of D10,000 in default to serve three years in prison.
Mamadi Sabally, who was found guilty of obtaining money by false pretence, was also ordered to pay D335,000 to the complainant in default to serve 5 years in prison.
The particulars of offence were that in January 2014, at Sukuta village in the West Coast Region, with intent to defraud, he obtained D335,000 from one Ebrima Samura.
Delivering the judgment, the presiding magistrate stated: “I have carefully followed the proceedings and read the testimonies adduced in the trial where the prosecution alleged that the accused, Mamadi Sabally, obtained money by false pretence.”
It is the cardinal principle in criminal cases that the legal and evidential burden of proving every element of the offence beyond reasonable doubt lies on the prosecution, he said.
Although the prosecution could do so by either direct or circumstantial evidence, the law requires that in either case, the prosecution bears the legal burden of proving all the elements of the offence necessary to establish the guilt of the accused beyond reasonable doubt, he added.
From the foregoing, he went on, it was clear that the prosecution must succeed on the strength of its own evidence, and not allowed to rely on the weakness of the defence or lies told by the accused as the basis for a conviction.
“I, therefore, hold the strong view that to succeed the prosecution must lead copious, cogent, compelling and unequivocal evidence which are unshakable pointers to the accused as the man who committed the offence. The prosecution, therefore, has the unshifting burden of proving all the ingredients of the offence with which the accused has been charged.”
The accused person receiving D335,000 from Ebrima Samura was not in dispute, and the accused admitted to receiving D335,000, because the 2nd and 3rd prosecution witnesses corroborated the testimony of PW1 that the accused received the D335,000.
The fourth defence witness, Bunja Fofana, testifying for the accused, admitted that he introduced the accused to the complainant and that the accused was paid D335,000 for a sale of land to the complainant.
“Consequently, I hold that the prosecution has proved the actus reus of section 288 of the Criminal Code with the certainty required by law,” the magistrate said.
The accused admitted to selling a plot of land to the complainant, Ebrima Samura, for D335,000 at Paradise Estate and failed to surrender the title deeds to the said land, he continued.
“In light of the foregoing, I reach the conclusion that Mamadi Sabally is not the owner of the plot of land he purportedly sold to Ebrima Samura, and this I shall hold as a fact. I am of the view that Mamadi Sabally acted under false pretence in order to have obtained the sum of D335,000 from Ebrima Samura.
“In the circumstances, I am, therefore, satisfied that the prosecution has sufficiently established the constituent elements of the offence as charged.
“I am further satisfied that the prosecution has proved their case beyond reasonable doubt and, therefore, I find Mamadi Sabally guilty as charged and convict him accordingly,” the magistrate declared.
“I have listened carefully to the defence counsel’s plea of leniency on behalf of the convict, and I have also considered the fact that the convict is a first-time offender.
“The convict is the breadwinner of his family and with his life in front of him. I shall hold all these factors as mitigating circumstances in favour of the convict.”
He said if he was minded to temper justice with mercy, the convict should be taught a lesson, nonetheless, to deter others in his position.
It was for this reason that he shall sentence the convict, Mamadi Sabally, to a fine of D10,000 on or before but not more than 7 days from the day of this judgment, and in default to serve three years in prison with hard labour.
The convict, Mamadi Sabally, must pay compensation to Ebrima Samura in the sum of D335,000 being the sum he fraudulently appropriated under false pretences within two weeks, in default to serve an addition of five years in prison with hard labour.
He said that in the event that the convict defaulted, after 5 years the convict should still pay Ebrima Samura the sum of D335,000.
The above compensations must be paid on or before but not later than 3 months from the date of the judgment, he said.
“I hereby order that the convict, Mamadi Sabally, be admitted to bail in the sum of D345,000 with one Gambian surety who must swear to an affidavit of means. The said surety must deposit his or her original national ID card with the registrar of the court,” he added.
In default of payment of the fines, all sentences should run consecutively, he stated.