Kumba Sillah-Camara of the High Court in Banjul has ordered the State to
provide a mechanism to watch a document (hard drive) containing the video
recording of the UDP detainees at the defunct NIA.
Justice Camara made this declaration yesterday, 17 January 2018 in a ruling premised on the application made by the prosecution for the admissibility of a hard drive (document) as exhibit.
Justice Camara who admitted the document (hard drive) as I.D 1 pointed out that the document could only be admitted as Exhibit with the certainty that the evidence led by the 7th and 8th prosecution witnesses are contained in the document (hard drive).
She therefore ordered that on the next adjourned date, the state should provide a mechanism to watch the document.
The application for the document (hard drive) to be tendered as exhibit was made by lawyer L.S. Camara for the prosecution after the 8th prosecution witness, Assan Badjie identified the document (hard drive) as the very document he recorded.
This application was objected to by Lawyer C.E. Mene, counsel for the 1st accused, Yankuba Badjie who submitted that the said document cannot tendered through the witness.
He further argued that it is clear from the evidence of the witness (PW7) that the hard drive have been with the police since the 24 February, 2017.
He submitted that even though he has no objection to the document (hard drive) to be admitted for I.D purpose, he was objecting to the content of the hard drive without watching the content.
Lawyer Mene therefore urged the court to reject the document and mark it reject.
In his response, lawyer L.S. Camara submitted that the foundation for the tendering of the document was laid by the 7th and 8th prosecution witnesses.
He further submitted that the document was prepared by the 7th witness, Assan Badjie who was standing in the witness box under the supervision of the 8th prosecution witness.
He argued that both PW7 and PW8 can tender the document adding that there is no better person in the proceedings than the two witnesses.
Lawyer Camara further argued that the witness told the court that he did the video recording, took photographs of the UDP demonstrators, rendered the cassette to the computer and backed it up into a hard drive (document which he applied to tender).
He informed the court that the document was listed in the list of exhibits some of the defence team had been served with and that they have been accorded every opportunity to watch the document.
Lawyer Camara argued that it is trite law that one cannot go into the content of a document which has not been tendered or admitted.
He said the necessary precondition to going into the content of any document is for the document to be admitted.
Lawyer Camara submitted that the custody is proper, the foundation for the reception of the document was laid and that the document is relevant to the fact in issue and therefore urged the court to admit the document and thereafter the court can know the content of the document.
Replying on points of law, lawyer Mene submitted that the prerequisite for the admissibility of any document is relevance and that in order to determine that relevance, the court must look at the document.
He referred the court to section 22 of the Evidence Act adding that this section goes further to establish very detailed conditions precedent for the admissibility of computer generated documents.
He further argued that the submission of the prosecution that the court can go into the content of the document is a fly in the face of the law.
The presiding judge, Kumba Sillah-Camara in her ruling admitted the document (hard drive) as I.D 1 and ordered that on the next adjourned date, the state should provide mechanism to watch it to ascertain the veracity of the document so as to determine whether the court would admit same as exhibit.
The matter was then adjourned to the 22nd January, 2018 for further hearing.