Nov 12, 2012, 9:54 AM
Janneh-Njie of the Banjul Magistrates’ Court yesterday rejected the cautionary
and voluntary statements in the case involving Babucarr Njie, a soldier found
with a gun at the King Fahd Mosque.
This followed the submission made by the defence counsel, Sheriff Kumba Jobe, that the cautionary and voluntary statements sought to be tendered by the prosecution were not obtained voluntarily.
In her ruling, Magistrate Janneh-Njie told the court the law governing the admissibility of confessional statements obtained from accused persons while under detention is section 31 (2) of the Evidence Act which provides that a confession shall not be admissible if the statement was made by an accused person while under arrest, in detention or restricted by state agents unless the confession was made in writing by the accused or someone on his behalf and signed or thumb-printed by the accused in the presence of an independent witness. Such witness cannot be a member of the police, army or security forces.
She said the only issue that stood out for determination was whether the statements were recorded in the presence of an independent witness in strict compliance with the provision of section 31 (2) of the Evidence Act.
At this juncture, she summarized the evidence of the first prosecution witness in a voire dire (trial within trial).
The witness, Fabakary Kinteh, serving as an independent witness, said the accused was not forced when his statements were recorded.
She stated that according to the accused, he was put in cuffs and was tied on the table.
She further quoted the accused saying the second prosecution witness, Jally Senghore, asked him to give a statement or something might happen to him, and that the statement was recorded at 22:41 hours. At the time of recording, Jally Senghore and one Manneh were present.
Magistrate Janneh-Njie stated that it was the accused who said the statements were recorded on Monday the 13 February 2017, and that was the time the independent witness was present.
She pointed out that on the face of the voluntary statement, it was indicated that the statement was recorded at 22:42 hours, and this corroborated the evidence of the accused as to the time the statements were recorded.
On the contrary, she posited, when the independent witness was asked under cross-examination, as to the time the statements were obtained, he said he could not remember exactly but it was after 1pm.
She adduced further that Jally Senghore also admitted during cross-examination that the statements were not obtained during the night but during the day.
She said that both Fabakary Kinteh and Jally Senghore alleged that the statements were recorded during the day and the accused was saying that it was recorded during the night which corroborated what was on the document itself.
She further told the court that considering the fact that the document indicated that the statements were recorded at 22:42 hours, she could not believe the evidence of both Fabakary Kinteh and Jally Senghore that the statements were recorded during the day.
She therefore concluded that the statements were recorded at 22:42 hours.
Magistrate Janneh-Njie stated that considering the discrepancy as to the time the statements at issue were obtained, the court was in doubt as to whether the said independent witness was present at the time the statements were recorded at 22:42 hours.
She adduced that in the light of the above, that the prosecution had failed to prove that the statements sought to be tendered were obtained in strict compliance with section 31(2) of the Evidence Act.
She consequently rejected the statements.
The case was adjourned until 8 May 2017.
Sgt Jaiteh held the brief for Sub-Inspector Bojang.