The Special Criminal Court in Banjul, presided over by Justice Emmanuel Nkea Thursday, 24th May, 2012 convicted and sentenced one Maimuna Badjie for the offence of concealment of birth, contrary to Section 207 of the Criminal Code, Laws of The Gambia.
The accused, Maimuna Badjie was charged with murder, contrary to Section 187 and 188 of the Criminal Code Cap 10:01 Vol 111; Revised Laws of The Gambia, 2009. In the particulars of offence, the state alleged that the accused murdered her newly born child by throwing the baby into a toilet in New Jeshwang, Kanifing Municipality on the 28th August 2011.
The accused pleaded not guilty to the offence and the prosecution adduced in evidence the testimonies of four witnesses and tendered four exhibits in support of the indictment, whilst the accused testified as a lone witness in her defence and did not tender any exhibit. In his judgement, Justice Nkea disclosed that the prosecution's case is that on the 28th August 2011, the police received a tip-off of a baby dumping case and two of the prosecution witnesses went to the scene, where the accused was identified and arrested as the culprit.
The police were informed that the baby was dumped into a toilet but the cadaver was later retrieved and buried beside the toilet by one Sulayman Badjie. The cadaver was exhumed by the police, and allowed a photographer to take snap shots of it. These pictures were in evidence as exhibit "A", whilst the cadaver was later taken to the RVTH by the police for post mortem and the autopsy report was admitted as exhibit C.
At the police, statements were recorded from the accused and the said statements were admitted in evidence as exhibits B and B1. The judge further disclosed that in her cautionary statement to the police, the accused admitted to have delivered the baby on 28th August 2011 between 4 and 5am and she stated further that the child died before being dumped in the toilet. The accused relied on her statement to the police as her defence.
Justice Nkea revealed that at the close of the case on the 22nd May 2012 both the prosecution and the defence waived their right to address the court. Justice Nkea noted that in a charge of murder, the prosecution must prove the following elements: There was death; that the accused person participated in or caused the said death; that the death was unlawful; that the death was caused with malice aforethought; and the prosecution must negate all the defences or possible defences raised by the evidence in the trial.
Justice Nkea asserted that murder is a very serious offence, which attracts such a serious penalty as the death sentence, adding that to succeed on this charge, the prosecution must lead copious, cogent, compelling and unequivocal evidence which points irresistibly to the accused as the person who committed the offence.
He pointed out that the law is settled on the duty of the prosecution to prove all the elements of the offence and that they do so by either direct or circumstantial evidence, but in either case the prosecution must succeed on the strength of its evidence and not on the weakness of the defence.
The presiding judge therefore revealed that there is copious and compelling evidence that the newborn baby died, adding that the evidence of all the prosecution witnesses all corroborated the fact that the baby is dead. The autopsy report described the cadaver to be in a state of severe decomposition and the evidence of the accused person herself further strengthens the fact that the baby is dead.
Justice Nkea disclosed that there is compelling evidence that the accused delivered of a child on the 28th August 2011, but also had the child died after it was born. That there is also evidence that the accused disposed of the cadaver of the deceased baby in a toilet, noting that the irresistible inference the court could draw from the said act is that the accused intended to secretly dispose of the cadaver and by doing so to conceal its birth.
Nkea further disclosed that he was satisfied that in the peculiar circumstances of the instant case, the accused was guilty of concealing the birth of a child and not of murder as charged. In her plea of mitigation, Lawyer Oleide Uduma informed the court that the convict is a first time offender of about 18 years old, adding that she had shown sufficient remorse. She reminded the court that she even collapsed before the court due to her poor health.
Lawyer Uduma promised the court that if she were given another chance, the convict would be reformed, urging the court to temper justice with mercy. She further urged the court to invoke Section 29 (2) of the Criminal Code in favour of the convict.
Passing sentence, Justice Emmanuel Nkea disclosed that in determining an appropriate sentence to be imposed on her, he noted that it is his duty to have regard, not only the nature of the crime she has committed and the interest of the society but also to her personality; age and the circumstances surrounding the commission of the offence. Nkea pointed out that as a young convict, she should not fall victim of an indiscriminate exercise of his discretion with regards to punishment.
The reason, Justice Nkea noted that the convict is a young person, whom he considered to be prima facie, immature and irresponsible. The presiding judge disclosed that he considered the convict as a first offender and a young person with much of her life still trying ahead of her.
Justice Nkea said he saw her collapse before him in the court once, indicating that her health is not the best and therefore sentence her to 8 months imprisonment commencing from the 22nd day of September 2011, being the date she was first remanded in custody by the Kanifing Magistrates' Court.
Source: http://allafrica.com/stories/201205290442.html
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