28 January 2016

Gambia: German Convicted, Sentenced in 'Negligence Likely to Spread HIV' Case

The 52-year-old German national who was tried on a two-count charge of negligent act likely to spread infection of a disease dangerous to life, and common assault, this week, has been convicted and sentenced by Magistrate Momodou MS Jallow of the Banjul Magistrates' Court to pay a fine of D250, 000 or risk a year's imprisonment. Magistrate Jallow also sentenced Worl Christoph Karl to a fine of D50, 000 on count two with a decision of a 6 months imprisonment, should he default in the payment.

In yesterday's judgement, Magistrate Jallow also ordered the convict to pay a compensation amount of D20, 000 to the complainant, which if he defaults he will serve another 6 months imprisonment; both sentences to run concurrently. He also ordered for the convict's deportation to his country of origin immediately after paying the fines or completing the prison term.

According to the fact of the charges, Karl, believed to have known that he is living with HIV, unlawfully had sexual intercourse with a lady (name withheld) and wilfully, with malice, pushed the lady causing her to fall on the ground sometime in the month of January 2016 in Banjul and diverse places. He pleaded guilty to both counts when the charges were read to him.

On January 13th, Magistrate Momodou SM Jallow handed down ruling in a similar case in his court, in which he convicted and sentenced a British national called Robert Fuller to pay a fine of not less than D500, 000 after the court found him guilty on a two-count charge of unprotected sex with two women, while knowing he was HIV positive.

In the first hearing of Karl's case on Tuesday, the presiding magistrate adjourned to yesterday for the court to provide the convict with a German (Dutch) interpreter for him to better understand the proceedings of the court. At the commencement of the case yesterday, the convict's defence attorney, Pa Harry Jammeh, announced his representation of Karl and informed the court that he has had a comprehensive discussion with his client through the help of the German embassy staff.

Defence attorney Jammeh also told the court that his client was fully aware of the charges he was facing "and the way and manner in which the trial is being conducted. He has now given me the instructions to proceed with the case."

The Police prosecutor, Inspector Manga applied to tender the cautionary statement and the medical documents of Karl and the lady involved plus the national lab request form and the consent document in evidences. These were all admitted and marked as exhibits without objection of the defence counsel.

Defence attorney Jammeh in his plea of mitigation for the convict said in the face of the charge sheet and the facts as narrated by the prosecution, a by-stander is very likely to condemn the convict as wicked, heartless and selfish, adding that such analysis is sentimental, simplistic and subjective.

He mitigated for the court to apply the boldness required of it by law objectively, saying the offences under which Karl was charged appeared distasteful. "But the law in the area of the charge is governed by section 170 of the Criminal Code and that section is talking about a misdemeanour."

He further pointed out that his client has been living with HIV for 13 years and he has always acted responsibly. "But for this occasion and even in this case, he practiced safe sex by using condom. Karl has not wasted the court's time and at this material time he feels humiliated, disoriented and remorseful and looking at him, he is a vulnerable man who has congenital disease coupled with HIV."

According to the defence attorney, the facts in total are not as they appeared to be, but it is factual to say that the lady (complainant) capitalised on the vulnerability of the convict and notwithstanding, his client's action is regrettable. He begged the court to temper justice with mercy on his client.

The medical report of the lady, he added, specified that she tested negative and that goes to support the convict's assertion that they had safe sex and she benefited financially and materially from the enterprise. "Considering all these issues, imposing a custodial sentence on the convict will only make matters worse because he is a sick man who, without the appropriate, sophisticated and advanced form of medical treatment (which is not locally available), will die and that is the least desired circumstance."

After defence counsel Jammeh's plea submission, the presiding magistrate then handed down the sentences accordingly.

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