Thursday, October 17, 2019

Defence Urges Court not to admit Statements of the accused


By Mamadou Dem

Sheriff Kumba Jobe, attorney for Sergeant Babucarr Njie of the Gambia Armed Forces who was arrested by ECOMIG Soldiers at a mosque in Banjul yesterday, urged Principal Magistrate Isatou Janneh-Njie to reject both cautionary and voluntary statements sought to be tendered by the police.   

During the proceedings of this case, Barrister Jobe alleged that the said statements were obtained involuntarily which warranted the court to enter into a voire dire trial (trial within trial). The prosecution presented two witnesses under the voire dire and the accused testified as a lone witness in his defence.

The defence while making oral address to the court, urged the magistrate to disregard the documents sought to be tendered by the prosecution.

He submitted that the accused stand charged of a single count for going arm in public contrary to the laws of the Gambia. He said the prosecution in proving their case beyond reasonable doubt attempted to tender both the voluntary and cautionary statements of the accused person but he vehemently objected on grounds that they were not obtained voluntarily and in accordance with section 33 of the Evidence Act.

Barrister Jobe submitted that consequently the court ordered for a voire dire (trial within trial) to test the voluntariness of the statements. During the course of the voire dire, the prosecution called two witnesses, namely Mr. Fabakary Kinteh and Inspector Jally MI Senghore of the Major Crime Unit.

Fabakary Kinteh who claimed to be the independent witness adduced that he was at the Police headquarters to serve as independent witness in this matter and stated that he was present at the time of recording and signing of the statements. “Under cross-examination, this witness was controverted and unreliable,” said counsel.

The defence argued that the first prosecution witness under the voire dire (Kinteh) was very inconsistent in his evidence both in his evidence in-chief and cross-examination thereby making him unreliable witness. With regards to Inspector Jally MI Senghore’s testimony (Pw2) the defence expounded that under cross-examination it was very glaring and copious that the witness was ‘evasive’ by refusing to answer questions that everyone would have expected him to do so. He said when the witness was asked the date he obtained the statements, he responded that he can’t remember.

He submitted that the entire evidence of Pw2 was discredited and controverted by the defence  which makes it very difficult for the court to rely on; adding that  the defence called only a single witness who stand as the accused and he gave a chorological order and circumstances surrounding the way the statements were obtained from him.

The former State counsel further argued that prosecution while cross-examining his client failed woefully to discredit or controvert the evidence of the accused person. “Therefore the sole issue for determination before the court is whether the prosecution has proof that the statements were obtained voluntarily,” said counsel.

He said prosecution’s failure to adduce or present any material evidence to prove that the statements were made voluntarily alone disqualified the admissibility of the documents. “It was the duty of the prosecution to adduce evidence that the statements were obtained without inducement, threat or promise as contemplated under the provision of Section 33 of the Evidence Act,” said counsel.

The defence further referred the court to section 31 and 32 of the sme Act respectively and argued that under no circumstances a confessional statement should be admitted in court if it wasn’t made in the present of an independent witness. He added that another important point of the defence reveals that the accused was threaten at the time of making the statement which was not challenged by the prosecuting officer, Sub-Inspector Abdoulie Bojang.

“It’s a trite principle of law that statements made under threat by the maker are inadmissible.  It’s my submission therefore since the prosecution had failed to adduce that the statements were obtained voluntarily, we urge the court to disregard and reject the statements sought to be tendered by the prosecution on the basis that it violates the Evidence Act, Principle of Common Law as to the ways and manner of recording Extra Judicial Statements, The Judges Rules and all Standard Practice.”

“Therefore we urge the court in the interest of justice to refuse to admit the statements for the reasons that they were involuntarily obtained,” appealed counsel.

At this juncture, Sub-Inspector Bojang disclosed to the court that the prosecution will file written address replying to the defence submission. Consequently, the matter was adjourned to 13th April for adoption of prosecution’s address.

Sergeant Njie is standing trial for ‘Going arm in public’ contrary to the laws of the Gambia when he attempted to enter King Fahad mosque in Banjul with a pistol where President Barrow was observing a congregational prayer (Juma).



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