Ebrima Jaiteh of the High Court in Banjul has marked the cautionary and
voluntary statements of one Seedy Faye as rejected in ruling delivered upon an
objection raised by the defence counsel on the admissibility of the cautionary
and voluntary statements of the accused person.
It could be recalled that the accused person is charged with the offence of incest and murder.
The accused person contested the admissibility of these statements on grounds of involuntariness and in the mini-trial, the prosecution called two witnesses while the accused testified as a lone witness in his defence.
The issue of involuntariness was based on the alleged beatings meted on the accused by the police in the course of recording his statements.
Justice Jaiteh disclosed that Babucarr Jamanka, a resident of Bakoteh and a police officer testified as pw1 and that he recorded the cautionary and voluntary statements of the accused person in the present of an independent witness.
The trial Judge further disclosed that Jamanka testified that before he obtained the statements, the accused was not threatened, induced or beaten and the accused elected to write his cautionary statement and he adopted the same procedure he used in recording the voluntary statement.
Justice Jaiteh averred that Jamanka also testified that he cannot remember exactly the number of persons present but could remember that the accused, the independent witness were present. He denied beating and inducing the accused person to make these statements.
Justice Jaiteh further averred that PW2, Muhammed Jallow, a resident of Manjai and a businessman by occupation.
The trial judge disclosed that the accused person testified as defence witness, a resident of Kotu Lay out and a businessman by occupation and narrated how he was at his shop at Saffiedeen on the 7th of March, 2014.
Justice Jaiteh revealed that the witness further narrated his ordeal at the police station, how he met Babucarr Jamanka and three plain clothe officers who called themselves as NIA officers with one soldier called Lt. Mendy.
The trial judge said he testified how one of the NIA officers took an electric cable and electrocuted his private part and when he shouted, the NIA told him that he would die because they didn’t mind unless he does what they wanted him to do.
The trial judge further said the accused also narrated how one of the NIA officers removed a pistol and placed it on his head and said if he moved he would shoot him because they are killers and eventually the NIA officer hit him very hard on his jaws and two of his teeth were broken.
He stated that he does not know what was written on the documents and he is accused of murder and he does not know how the murder happened.
Justice Jaiteh said the accused testified that it was Lt. Mendy who held and pressed his hand on the document and Jamamka held the document and maintained that he did not thumb print the document free will.
The trial judge further said he denied that the independent witness was not present and he did not give a statement to the police.
Justice Jaiteh said the court ordered written briefs of argument and the said briefs were filed and served and explained that the mini-trial gave rise to only one issue, whether the prosecution has proved beyond reasonable doubt that Exhibits “A” and “B” were obtained voluntarily from the accused person having regard to the evidence on record?
He further explained that the burden of proving the voluntariness of a confession lies on the prosecution and the standard of proof is beyond reasonable doubt.
He pointed out that after a thorough perusal of the cautionary and voluntary statements recorded by Baboucarr C. Jamamka, he came to the conclusion if the recordings have complied with the statutory requirements pursuant to Section 31(2) of the Evidence Act.
Justice Jaiteh lamented the fact that he did not believe in the testimony of Bubcarr C. Jamamka (Pw1) as a credible witness.
The trial judge said the prosecution failed to call Bakary Njie as a witness to clarify this inconsistency and therefore consider this failure as a calculated act by the prosecution to exclude document from the trial, which is not in their favour.
The trial judge further said the accused person testified that there was no independent witness when he was being tortured and forced to thumb print the statements and that it was not enough for the investigating officer merely to state that a warning and caution was administered.
He pointed out that it is trite law that a disputed confession must not be admitted as part of the prosecution’s case, unless all witnesses, at least one of whom is a credible independent person, present at the taking of the confession, are called by the prosecution to testify as to voluntariness of the statements.
He cited the case of Mballow and Bass versus The State [1997-2001] GR 15, adding that he considered that the prosecution did not call all those present for purpose of cross-examination by the defence.
The accused was over 51 years old at the time of his arrest and detention at Bakoteh Police Station and he led strong evidence in an electrifying manner. He was very consistent and steadfast as it was easy to graphically visualize from his testimony a true picture of how he was threatened, assaulted and beaten several times.
Justice Jaiteh said he watched the accused broke down into tears as he narrated this crucial part of his ordeal to the full glare of the court were certainly no crocodile tears.
Justice Jaiteh said he believed the evidence of the accused that he did not give his statement free and voluntarily and pointed out that he believes the evidence of the accused in its entirety as truthful.
The trial judge stated that he was not persuaded by the arguments advanced by the prosecution and therefore declared that the prosecution has not discharged the burden of proving that the accused voluntarily thumb printed Exhibits “A” and “B”.
Justice Ebrima Jaiteh therefore found and held that Exhibits “A” and “B” were not voluntarily given by the accused person and was accordingly rejected and marked Exhibits “A” and “B” as reject 1 and 2 respectively.