By Kebba Jeffang
Mrs. Ndey Touray, a former nurse at Brikama Health Center (BHC) who was initially charged alongside three others who were later acquitted and discharged, was yesterday, Wednesday, 2nd July, 2014 convicted by Principal Magistrate Dayoh M. Small Dago on two counts while acquitted and discharged on one count.
In delivering his judgment, Principal Magistrate Small Dago recalled that the accused person was brought before the court some months ago together with three other accused persons and were charged with three counts of rash or negligence, giving false information to a public officer and official corruption.
The trial magistrate said in establishing their case, the prosecution called six witnesses and tendered four exhibits before closing their case.
He added that at this juncture, after the court found no iota of evidence against the other accused persons, namely Ensa Jarju, Adama Darboe and Fatou Sonko, they were acquitted and discharged. He said it is lawful to free any accused person upon the closure of the prosecution’s case when there is no evidence made out of him or her and it is because of that they were acquitted and discharged while Ndey Touray had to enter her defence.
Magistrate Dago on the first count of rash or negligence holds that the accused person is convicted since the prosecution has proven their case beyond reasonable doubt. He said both Isatou Sowe (PW2) who accompanied the complainant and Binta Bah (PW3, complainant) are material witnesses in the case since they were present, adding that both evidences were corroborated at a level that convinced the court. He said PW3 told the court that she accompanied Binta Bah to Brikama Health Center between the hours of 8pm to 11pm on the 23rd day of November 2013 when he was asked by the complainant’s husband to do so. He added that witness Sowe stated that when they got to the h centre at that time, they explained to the accused person (nurses) about the condition of PW3 who was about to deliver but that the accused person, Ndey Touray, asked them to walk around which they did. After a while, he continued, PW2 said she went to meet the nurse again but that similar answer was given on 3 different times.
The trial magistrate said the evidence of PW2 indicated that the complainant was later given a small bed on which she had her head against the wall whilst her legs were down after the numerous appeals she made were turned down.
The magistrate said PW2 told the court that “it was around 11pm that I was told that PW3 has delivered a baby boy. I was asked to inform her husband about it and that One Thousand Eight Hundred Dalasi (1, 800.00) has to be paid since the lady has no Gambian Identity Card.” She added that the husband could only pay D400.00 which was accepted.
The Principal Magistrate said Binta Bah (PW3), the complainant, has also narrated the same evidence which is corroborated with the evidence given by Isatou Sowe (PW2). He said the only difference is when PW3 narrated what had happened while she was delivering in the absence of PW2. She said she had made several calls on the accused person but to no avail until she delivered by herself and could not control the baby who fell down and cried only once, while the baby’s umbilical cord was still attached to her body. He said PW2 said after a short while the accused person (Ndey Touray) came and picked up the baby and went away with it. He said the accused person even said in her defence that she has heard the call but it was only once. He said he is also convinced that the manner is negligence by looking at the content of the Postmortem Report which was also tendered as exhibit. He said the report from Edward Francis Small Teaching Hospital indicated that the baby suffered from brain damage and fracture.
On count two, the accused person is not guilty of the charge of giving false information to a public officer. The trial Magistrate said in determining the case of false information, the prosecution has to prove that the information given is false and that it must also be given to a public officer. He said the false information in question is that on Exhibit A, (Parthograph Form) which indicated that the arrival of the complainant is 5pm and was shown to the C.I.D officer while it is supposed to be 8pm as previously stated by the complainant, Binta Bah. She was therefore acquitted and discharged on count two.
On the final count of official corruption charge, the accused is convicted for accepting D200.00 from the husband of the complainant even though she previously asked for D1, 800.00. He said the testimony of PW2 is that the accused person demanded that amount for the reason that the lady has no ID Card. He said her testimony further indicated that since the man could not afford that he ended up paying D400 of which D200.00 was later refunded due to the death of the baby. He therefore holds her guilty and was convicted.
In her plea of mitigation, the convict, Ndey Touray, asked for mercy as she has been working in the health sector for sixteen years without making such mistake. She added that both her father and mother died and she is a divorced and is taking care of her family.
Principal Magistrate Small Dago in handing down the final judgment, sentenced her to a jail term of sixteen months without hard labour on count one. On count two, she was asked to pay a fine of Ten Thousand Dalasi (10, 000.00) or in default to serve six months in jail concurrently.