Kumba Jobe, defence counsel representing Babucarr Njie, a soldier who was found
with a pistol at the King Fahd Mosque, on 30 March 2017, made an oral address
before Magistrate Janneh-Njie of the Banjul Magistrates’ Court.
Addressing the court in a voire dire, the defence counsel stated that Babucarr Njie was charged with going armed in public.
He posited that the prosecution intended to tender cautionary and voluntary statements of the accused which the defence objected to, because they were not obtained voluntarily, adding that it was against the Evidence Act.
He adduced that since the court ordered for a voire dire to determine the voluntariness of the statements, the prosecution called two witnesses.
He said that Fabakary Kinteh, a prosecution witness, told the court that on 10 Fabruary 2017, he was at the police headquarters to serve as an independent witness.
He stated that he was present at the time of recording the statements.
The defence counsel further indicated that under cross-examination, his evidence was controverted and reduced to be unreliable.
He said the independent witness was told that he was not present at the time the statements were being recorded and admitted it, adding that he was an unreliable witness.
Counsel Jobe submitted that the independent witness said the statements were obtained between the hours of 2p.m and 3p.m.
He posited that Jally Senghore, the first prosecution witness, stated that he recorded the statements on 10 February 2017, and before doing so, he cautioned the accused in the presence of the independent witness.
He adduced that under cross-examination, it was very clear that Jally Senghore was evasive by refusing to answer the questions.
Counsel Jobe said he was asked when the statements were recorded and he said he could not remember.
He posited that the witness was asked about the working hours of the country and he said he did not know, in order to cover the time the statements were recorded.
Counsel Jobe stated that the entire evidence of Jally Senghore was controverted by the defence, and his evidence was unreliable.
He further indicated that the accused told the court how and the circumstances under which the statements were obtained, adding that the prosecutor failed woefully to cross-examine the accused.
Counsel Jobe submitted that the issue to be determined was whether the prosecution had proved beyond reasonable doubts that the statements were obtained voluntarily.
He stated that the prosecution failed or refused to adduce any material evidence before the court to prove that the statements were obtained voluntarily.
He cited section 33 of the Evidence Act to support his argument.
He said the combined effects went to show that the statements were obtained on 10 February 2017, around 10:42p.m, which was against the evidence of the prosecution, especially the independent witness.
He further posited that the issue of confession would come to play in the matter, citing the Evidence Act.
Counsel Jobe indicated that under no circumstances, a confessional statement was inadmissible if it was not made before an independent witness.
He submitted that the evidence of the defence revealed that the accused was threatened at the time the statements were obtained, which was not challenged by the prosecution.
He added that it was trite that a confessional statement was inadmissible when the author was under threat.
He posited that since the prosecution had failed to adduce evidence that the statements were obtained voluntarily, that rendered the statements involuntary.
Counsel Jobe urged the court to disregard the statements sough to be tendered, adding that it violated the manner in which they were recorded and also the Judge’s rule and all standard practice.
Prosecutor Bojang applied for an adjournment to enable him to file a written address.
The case was adjourned until 13 April 2017.