10 July 2012

Gambia: Christopher Badjie Aquitted

The Special Criminal Court in Banjul, presided over by Justice Emmanuel Nkea yesterday, July 9th 2012 acquitted and discharged Christopher Badjie, of all counts preferred against him. The court further directs that the travel restrictions placed on him be withdrawn forthwith. Justice Nkea made these declarations following his judgement.

In his judgement, Justice Nkea disclosed that Christopher Badjie was initially charged with 19 counts of diverse criminal offences and these counts were by order of the said court, dated the 23rd February 2012, reduced to 17 counts. Namely, eight counts brought under Sections 17(1)(a)(II) and 19(1)(b)(I) of the Money Laundering Act, six counts brought under Sections 31 of the Immigration Act, two counts of forgery under Section 324 of the Criminal Code; and one count of uttering false documents under Section 328 of the Criminal Code.

Justice Nkea revealed that the prosecution has alleged in counts 1, 2, 3, 4, 5, 6, 16 and 17 that on various dates between 2006 and 2007, the accused transported money in the sum of 750, 000 pounds sterling into The Gambia from the United Kingdom, being money unlawfully obtained from Sandra Ryan.

That the accused acquired landed property in Bijilo with the proceeds of money unlawfully obtained outside The Gambia. That the accused with intent to defraud unlawfully obtained two gold wristwatches in the United Kingdom from Sandra Mary Ryan, respectively valued at 48, 100 and 33, 000 pounds sterling.

That the accused opened private accounts in his name with Trust Bank Ltd, Guaranty Trust Bank Ltd, ECO Bank Gambia Ltd, Access Bank Gambia Ltd, into which he deposited proceeds of his unlawful activities in Britain and other countries. In counts 7, 8, 9, 10, 11 and 12, the accused is alleged to have been found in possession of Gambian passport, number 098278; Gambian passport, number 157530; Gambian passport, number 00076845; Gambian National Identity Card, number 723463; Gambian National Identity Card, number 776056; and Gambian National Identity Card, number 338034.

In counts 13 and 14, the accused is alleged to have forged a South African international passport, number 418620971, and 456656840. In count 15, the accused is alleged to have uttered a forged South African International passport, number 418620971 to Immigration officials at the Banjul International Airport. The accused pleaded not guilty to all the charges.

The prosecution's case was led by two witnesses, and loads of exhibits were tendered in support of the charges. The accused did not testify in his defence but called one witness and tendered one exhibit in support of his defence.

Justice Nkea disclosed that the counsel on both sides waived their right to address the court. The judge further disclosed that the prosecution's case revolves around the testimony of PW2, Sandra Mary Ryan, a sales assistant with John Goodwin Shop in the UK.

Justice Nkea asserted that the role of PW1, Sukuta Jammeh was basically to tender the bulk of possible exhibits contained in the case docket, adding that he did not take part in the investigation in this case, the investigations having been carried out by Demba Sowe, Babucarr Jallow and Sheriff Wada. He further pointed out that after the investigations, the accused reported a case of theft against Demba Sowe and Babucarr Jallow, the two were charged and prosecuted before the Bundung Magistrates' Court where upon Babucarr Jallow was convicted.

Justice Nkea noted that testifying on behalf of the accused, Sheriff Wada (DW1) said he was part of the team that arrested and investigated the accused. The accused was arrested at the behest of Babucarr Jallow as a part of a wider conspiracy to dispose the accused of his money.

The presiding judge at this junction dealt with few preliminary issues before proceeding to the judgment proper. First, the right to remain silent throughout the trial as entrenched in Section 24(8) of the 1997 Constitution of The Gambia, which provides that no person charged with a criminal offence shall be compelled to give evidence at the trial. The second, that the burden to proof the guilt of an accused person is the duty of the prosecution except otherwise provided by statute, adding that the standard required is proof beyond reasonable doubts and not proof beyond a shadow of doubt or absolute certainty.

Justice Nkea after dealing with the above preliminary issues turned to the substance of the charges brought under Money Laundering Act, Immigration Act and those offences under the Criminal Code. Justice Nkea disclosed that the law under Section 19(1)(b)(I) of the Money Laundering Act, which forms the basis of count one, requires the prosecution to prove the following elements: (a) that the accused transported funds from a place outside The Gambia to a place in The Gambia; (b) that the transported funds were proceeds of an unlawful activity, and (c) that the transportation was designed to conceal or disguise the nature, location source, ownership or control of the said funds. The judge noted that these elements must all co-exist before the prosecution can sustain a conviction.

Furthermore, the judge disclosed that the offence under Section 17(1)(a)(II) of the Money Laundering Act under which counts 2, 3, 4, 5, 6, 16 and 17 were brought, also requires the prosecution to prove certain elements, adding that these constituent ingredients must also all co-exist before a conviction can be procured under this Section of the Law.

Justice Nkea disclosed that there is no evidence on record that the accused ever received the sum of 750, 000 pounds from PW2. Even if it were to be believed, which is not, that PW2 gave the entire mortgage sum of 485, 000 pounds sterling to the accused, it has not been explained how that sum rose to 750, 000 pounds as alleged in count one. At this point, the judge then asked about the amount of money the accused allegedly received from PW2. This question the judge said, was not answered by the evidence on record.

Justice Nkea pointed out that the allegation that the accused fraudulently or unlawfully obtained the sum of 750, 000 pounds sterling from PW2 Sandra Mary Ryan is not borne out by the evidence before the court and the issue of transporting such funds into The Gambia therefore does not arise. However, he therefore held as a fact that the prosecution has failed to prove the offence in count one with certainty required by law.

Justice Nkea revealed that the offences in counts 2, 3, 4, 5 and 6 are directly linked to the alleged fraudulent or unlawful activity perpetrated by the accused on PW2, which he had held to be unfounded. On counts 16 and 17, relating to the two gold wristwatches, Justice Nkea noted that the evidence of the prosecution in support of the said counts will not be relied upon, adding that the charges under these counts were not proved.

On the offences in counts 7, 8, 9, 10, 11 and 12 brought under Section 31(1) of the Immigration Act, the judge disclosed that the prosecution tendered a bunch of documents containing an application for Gambian passport, and an application for a change of names from Christopher Badjie to Christopher Bah.

Justice Nkea noted that the information contained in the said application is very legible, adding that the application for a change of name was processed and granted. Justice Nkea further noted that the application and approval process make the change of name and the eventual issuance of a new Gambian passport in the name of Christopher Bah lawful, adding that there is no evidence that the earlier Gambian passport held in the name of Christopher Badjie was irregularly obtained.

Justice Nkea also noted that the Gambian National Identity Cards referred to in counts 10 and 12 are directly related to counts 7, 8 and 9 and were therefore subjected to the same analyses. Justice Nkea revealed that the prosecution failed to lead any concrete evidence linking the accused to the offence contained in count 11, though there appears to be some suspicion, adding that suspicion has never been the basis for conviction in criminal matters.

The presiding judge said there was no evidence led in support of the forgery charges contained in counts 13, 14 and 15, adding that he has the conviction that these charges were abandoned in the process of prosecution. Justice Nkea further said that the evidence of DW1 who played a vital role in the arrest and investigations of the accused and in the prosecution and conviction of Babucarr Jallow was very crucial to the defence.

Justice Nkea noted that his evidence damaged any credibility that could have been placed on exhibits J12 and for the said reasons that he attached no weight to the purported cautionary and voluntary statement of the accused. Justice Emmanuel Nkea declared that the prosecution has failed to prove its case with certainty required by law in all seventeen counts, adding that the accused person Christopher Badjie or Christopher Bah is accordingly discharged and acquitted from all seventeen counts.

He however ordered that the travel restraints placed on the accused be forthwith withdrawn and also taking into account that there is a subsisting order freezing the bank accounts of the accused. He ordered that the said freezing order be vacated with immediate effect in regards to those bank accounts in the name of Christopher Bah.

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