Ebrima Jaiteh of the High Court in Banjul has charged police officers to comply
with the judges’ rules so as to ensure justice and fairness in the country’s
criminal justice system.
Justice Ebrima Jaiteh made this declaration recently in a ruling predicated upon an objection raised by the defence counsel on the admissibility of the voluntary and cautionary statements of one Alagie Camara contesting the admissibility of these statements on grounds of involuntariness.
Alagie Camara is standing trial on a single count of murder contrary to Section 187 of the criminal Code Cap 10:01, Vol III, Revised Law of the Gambia, 2009.
The trial judge disclosed that in the mini-trial, the prosecution called three witnesses while the accused testified as a lone witness in his defence.
He said the issue of involuntariness was anchored on the alleged beatings meted on the accused by the police in the course of recording his statements.
The cardinal principles in criminal cases
Justice Jaiteh disclosed that it is the cardinal principle in criminal cases that the legal and evidential burden of proof lies on the prosecution.
He pointed out that the burden of proving the voluntariness of a confession lies on the prosecution and the standard of proof is beyond reasonable doubt.
Justice Jaiteh averred that the prosecution must prove that the applicable laws in obtaining confessional statements from accused persons as contained in Section 31(1) of the Evidence Act 1994 are complied with.
He cited Section 31(2) of the Evidence Act and noted that the purpose of section 31(2) of the Evidence Act is that every accused person has the right to write down his or her statement and if he or she cannot do so, he or she has the right to select someone else to write it for him or her.
Justice Jaiteh further noted that the accused must be informed by the police that he or she has that right, adding that the police officer should only write the statement down only with the consent of the accused.
He stated that there is a common law practice emanating from the judges’ rules, which has been made under Section 55(3) of the Courts Act as a subsidiary legislation in The Gambia: the judges’ rules (The Gambia) Cap 6:01 (Subsidiary) LN 54 of 1964.
Justice Jaiteh remarked that police officers should comply with the judge’s rules so as to ensure justice and fairness in our criminal justice system.
He noted that the most relevant rules to this question of cautionary statement before a person is actually charged are in rules 3, 4, and 9 of the said Judges’ Rules.
Justice Jaiteh disclosed that the policeman, Pw2, Omar Bah who obtained the cautionary and voluntary statements of Alagie Camara did not substantially follow the Judges Rules.
He said the policeman did not inform the accused the he has the right to write down his statement and if he cannot he has a right to select somebody else to write it for him.
Justice Jaiteh further said Pw2 did not ask the accused person when he allegedly read over the statements to him whether he wishes to make any alteration or addition.
The trial judge pointed out that the accused person is the declarant and upon careful perusal, the voluntary statement was not signed but thumb-printed.
Justice Jaiteh noted that the charge of murder contrary to Section 187 was at variance with the statement, which reads: “Yes I accepted the above charges that are made against me and that I stop Modou Manjang alias Modou Faal with a knife”.
Justice Jaiteh disclosed that the accused is standing trial on only one charge and not more and the sentence “I stop Modou Manjang with a knife” does not make sense and creates more doubt about the authenticity of the voluntary statement.
The trial judge stressed how an accused person could have admitted liability of murder when he only stopped the deceased with a knife?
He pointed out that the procedure of taking the cautionary statement was therefore wrong; and in according to section 10 of the Judges Rules may be inadmissible.
He said the accused denied the authorship of the cautionary statement and also denied thumb printing the cautionary statement. The trial Judge explained that one would have thought that in the midst of such controversy, the prosecution would have sought the assistance of a finger print expert to prove its authenticity but the prosecution failed to challenge to do so.
Justice Jaiteh referred to the Chief Justice of The Gambia, Hassan B. Jallow in his book “THE LAW OF EVIDENCE” Revised Second Edition at page 43 where it pointed out the effect of admission of a voluntary statement that: “..once the court decides that the statement of the accused is a confession and it was made voluntarily, the prosecution does not need to present any evidence to prove the fact in issue, that is the the guilty of the accused and a court can always convict an accused person on the basis of a voluntary statement alone…”
The trial judge said there was nowhere in the testimonies of the prosecution witnesses where evidence was adduced that upon arrest and detention of the accused person, he was inform of his right to consult a legal practitioner.
Justice Jaiteh revealed that section 19(2) of the 1997 Constitution states that “any person who is arrested or detained shall be informed as soon as reasonably practicably and in any case within three hours, in a language that he or she understands of the reasons for his or arrest or detention and of his or her right to consult a legal practitioner.”
He explained that the operative word in Section 19(2) of the 1997 Constitution is that the accused persons being arrested and detained has a right to consult a legal practitioner and the police must accord the accused under their custody this fundamental human right.
He further explained that the High Court is mandated as per the 1997 Constitution of The Gambia to respect and protect the fundamental human rights enshrined therein.
He cited Section 17(1) of the 1997 Constitution and noted that the High Court will not tolerate a violation of fundamental human rights by the Executive or its agencies.
He said none of the prosecution witnesses testified that they informed the accused of his right to consult a legal practitioner which he considers as a gross violation of the accused person’s fundamental human rights as entrenched in the 1997 Constitution citing Section 24(3) (a) of the 1997 Constitution.
Justice Jaiteh pointed out that the fundamental hallmark of our criminal justice system is that a person accused of committing an offence is cloaked with a presumption of innocence and in the instant case, the accused pleaded not guilty to the offence alleged and to ensure justice and fair hearing, it is proper to hear from the accused. The trial Judge revealed that to admit these extra judicial statements would amount to holding the accused person guilty or condemned him of murder without hearing from him.
Justice Jaiteh cited the address of Fafa E. M’bai, a legal luminary and a distinguish advocate to the Gambian Bar Association conference held on the 29th January 2010, when he refers to the words of the great Lord Denning, the Master who knows and said in the concluding paragraph of his book WHAT NEXT IN THE LAW? “We have to respect all that parliament has done and may do in the granting of powers and of rights and immunities but let us build a body of law to see that these powers are not misused or abused. We are told that the law and practice that no man should be condemned before being heard which finds fair hearing provisions in the Constitutions of democratic states is derived from Magna Carts 1215.
The concept of law or practice or principle of fair hearing is biblical when God asked Adam why he ate the apple: God: omnipotent, omnipresent and omniscient, very well knew he was given Adam the opportunity to be heard. Fair hearing is not only a constitutional right or a human right, it is like most constitutional human rights, a God given right…”
Justice Jaiteh disclosed that is for these and other reasons that the accused person must be accorded a fair hearing noting that the policeman who obtained extra judicial statements from the accused was only interested in getting an independent witness with no due regard to the constitutional right of the accused to consult a legal practitioner.
He pointed out that the prosecution did not substantially follow the judges’ rules and these extra judicial statements are in dispute as the accused denied the said statements.
He held that the prosecution must rely on the strength of their evidence and not the weakness or lies told by the accused as a basis for admitting these statements.
Justice Jaiteh underlined that the accused fundamental human rights of Alagie Camara was violated as per Section 19(2) of the 1997 Constitution and the prosecution has not substantially complied with the Judges Rules.
Justice Ebrima Jaiteh accordingly rejects the extra judicial statements marked as Exhibits “B1” and “B2” as reject 1 and 2 respectively.