Barrister Sheriff K Jobe, counsel for Babucarr Njie yesterday addressed the lower court in Banjul after his client wrapped up his evidence in voire dire [mini trial] and urged the court to disregard or reject the statements sought to be tendered by the prosecution.
The accused Mr Njie is being tried on a single count for going into public with ammunition, charge he denied and was later bailed by the court after spending weeks in police custody.
The accused told the court that his statements were recorded under duress which prompted his lawyer to oppose the tendering of the cautionary and voluntary statements sought to be tendered by the police prosecutors and urged the court to investigate the matter before going further into the main trial. Magistrate Isatou Janneh-Njie disregarded the prosecution witnesses’ evidence in the mini trial and urged the defence to open their case in order to substantiate the allegation of torture.
Addressing the court after winding up their evidence on torture allegation, the defence urged the court to reject the statements sought to be tendered by the prosecution on the grounds that the evidence given by the prosecution witnesses under cross-examination were contradicted especially the independent witness, Fabakary Kinteh who admitted that he never saw the accused person until the day he signed the documents.
Barrister Jobe further submitted that the 2nd prosecution witness, Jali Senghore has told the court that he has cautioned the accused before obtaining statement from him in the presence of an independent witness but during cross-examination it was very glaring to the court that the witness refused to answer the question and was asked when the statements were obtained but he said he could not remember.
Lawyer Jobe protested that the evidence of the said witnesses was contradicted by the defence as how the said statements were obtained but the prosecution has failed to controvert the evidence of the defence, noting that the question before the court is whether the prosecution has proven beyond doubt that the said statements were obtained voluntarily in the presence of an independent witness.
Defence contended that it is the duty of the prosecution to give evidence that shows that the statements were obtained voluntarily while citing Section 33 of the Evidence Act to back up his submission.
He further submitted that Sections 31 and 32 of the Evidence Act has set out rules for the confessional statement to be admitted arguing that confessional statements cannot be admitted if it is not done in the presence of an independent witness.
“It is my submission that since the prosecution has woefully failed to give evidence that the statements were made voluntarily, made it inadmissible and I urged your worship to disregard the statements sought to be tendered by the prosecution on the basis that it violates the principle of common law, the manner and the way of obtaining extra judicial statements. So I urge the court in the interest of justice to refuse the said statements because they were not voluntarily obtained,” barrister Jobe submitted.
The prosecution at that point said he needs three days to reply in written form.
Hearing resumes April 13 for adoption of prosecution address.
By Baba Sillah, Standard Newspaper