By Kebba Jeffang
Lawyer Abdoulie Fatty, counsel for Ebrima Keita, Musa Fofana and Alasana Jallow, all from Sukuta in the West Coast Region of the country, urged the court to order a mini trial to determine the admissibility of the statements of his clients which the prosecution is seeking to tender as they were obtained involuntarily and in the absence of an independent witness during the investigation process as required by law.
He made this submission while objecting to the prosecution’s attempt to tender the cautionary and voluntary statements of his clients during the evidence in chief of the first prosecution witness Baboucarr Trawally.
Assistant Superintendent of Police (ASP) Amadou Keita appeared for the state in the proceedings on Tuesday, June 21, 2016 at Bundung Magistrates’ Court before Magistrate Momodou S. Jallow.
Addressing the court, counsel Fatty submitted that “following the arrest and detention of the 3 accused persons at the bulldozer based at Holgam in Kanifing, the event that took place during the investigation and before the statements were obtained showed that the whole process was flawed. Therefore, the statements obtained thereafter are inadmissible for the following reasons.”
He said it is the submission of the 1st accused person that during the process of investigation and writing of statements, a pistol was pointed at him and was threatened with violence. He said it was his complaint that he was threatened with death. He said the first accused wrote his own statements three times which were all being rejected as he denied any wrong doing. He said he was threatened and forced to include certain things in his statement. He said it was his submission that he was threatened to do so or risk detention for another month at the base.
“During the process, he was not only mentally tortured but physically beaten severely,” said the counsel.
In respect of the second accused person, counsel Fatty submitted that he was severely beaten by one Baboucarr Trawally, who is the first prosecution witness in this case. Furthermore, he said he was threatened with electrocution and a pistol pointed at him and also with death. He submitted that the officers had already written the statements of the accused who was threatened and forced to thumb print the said statements which he did not write.
The defence counsel further informed the court that his third client submitted that the officers wrote their own statements in his absence and when they called him, One Mbye Bojang, who he said served as an independent witness, forcibly pressed his hand on the statement. He said he was also forced to implicate the other accused persons but he refused to do so. He said the statement that he was forced to thumb print was neither his nor has he thumb printed it voluntarily.
Lawyer Fatty submitted that the primary test for admission of a document is its voluntariness while making reference to section 114 and 31 (2) of Evidence Act which provides that an independent witness who must not be a member of the armed, police and security forces must be present, noting that voluntariness is key. He said where confession is involuntary is when the statement is obtained by violence and fear of prejudice. He said in such case, then the so-called admission becomes inadmissible and it deserves to be rejected by the court for a reason that threat and violence are likely to influence the mind of the suspect which will force him to confess.
“It is the submission of the 1st, 2nd and 3rd accused persons that the so-called independent witness was not actually present at the material time when the statements were obtained. He said the independent witness, Mbye Bojang, only surfaced after the statements had already been obtained. It is my submission that the method employed by the officers before and during the obtaining of the statements is in direct violation of section 114 of the Evidence Act 1994. Never in this case was the submission voluntary because neither an independent witness was present nor had they thumb printed it at their will as required by law. The violation in this case is so blatant and fundamental and I urged this court to reject all these statements outright,” he submitted.
Lawyer Fatty said he is urging the honourable court to use its discretional power to order a mini trial to determine the voluntariness of the confession. “Because the violations are so fundamental that they cannot be remedied by any other means except for the court to reject the prosecution’s application and marked the document sought to be tendered rejected so that the proceedings can continue in the main trial without going through voire dire,” submitted defence counsel Fatty.
In reply to such submission, ASP Keita said he disagreed with the defence counsel that the documents sought to be tendered (cautionary and voluntary statements of the 3 accused persons) are involuntarily obtained. He referred the court to section 3, part 2, Cap1 of Evidence Act regarding the relevance and admissibility of documents.
“It is my submission that in any trial, the court is called upon to decide the facts in the issue, that is to say those principal facts which are necessary to prove in order to establish the claim or a defence. I refer the court to section 24 of the Evidence Act,” submitted the police prosecutor.
At this juncture, the trial magistrate adjourned the matter to 29th June 2016 at 10am for the state to continue with the reply to the defence counsel’s submission.