11 January 2013

Gambia: Judges Rule Must Be Complied With - Justice Nkea

Justice Emmanuel Nkea of the Special Criminal Court in Banjul has emphasised the need for both the prosecutors and investigative officers to, at all times observe and implement the spirit and letter of the Judges Rule and Section 31 (2) of Evidence Act, Laws of The Gambia, especially on issues relating to recording and obtaining of both cautionary and voluntary statements from accused persons charged with criminal cases.

The Special Criminal Court judge's comment and observation came hard amidst argument and counter arguments between the Legal Aid Defence counsel Mrs Adimbe and the state prosecutor Mrs Jallow on tendering and admission of a cautionary and voluntary statement obtained from one Momodou Camara, a resident of Tujereng Village in Kombo South District. Camara is charged with rape, contrary to the Laws of The Gambia.

The issue came up following an application made by the state prosecutor to tender and admit in evidence both the cautionary and voluntary statements obtained from said accused person through the prosecution witness, Amadou Bah, a police officer attached to the Tujereng Police Station.

The state prosecutor at the end of receiving evidence from her witness, applied to tender the two statements she said she personally obtained from the accused through an assignment given to her by her Officer Commanding. However, the Legal Aid defence counsel objected to tendering of the documents on grounds of what she called none compliance with the Judges Rule and Section 31 (2) of the Evidence Act, Laws of The Gambia.

According to the defence counsel, the police officer earlier informed the court about circumstances relating to how the said statements were obtained. She said that they were not in compliance with the Judges Rule and the Evidence Act. As such she urged the presiding judge to reject the statements as per cited above. The prosecutor countered the defence and said the statements complied with the cited rules and urged the court to tender and admit them in evidence. However, the presiding judge intervened and made a clear interpretation of what the Judges Rule means. He also read Section 31 (1) of the Evidence Act, Laws of The Gambia.

According to Justice Nkea, the Judges Rule provides among others about the need for an independent witness to be present at the recording and obtaining of both the cautionary and voluntary statements from accused person (s) charged with criminal offences at all times. To that end, he said, the Judges Rule is meant to guarantee the spirit and purpose of fair trial devoid of allegations of statements obtained through force, torture, duress or promises made to the accused persons in lieu of making the statement (s). He added that such developments often lead to the conduct of a voire dire to determine the voluntariness of such statements.

The judge seized the opportunity to call on the investigators and prosecutors to always comply with the provisions of the Judges Rule and Section 31 (2) of the Evidence Act.

Evidence of the witness

The police officer earlier on declared himself as First Class police officer attached to the Tujereng Police Station. He identified the accused person in the dock and recalled 22nd September 2012, whilst on duty at the Tujereng Police Station, his Commanding Officer assigned him to obtain both the cautionary and voluntary statements from the accused person and he did it accordingly.

According to the witness, he at first read the cautionary wordings to the accused in Fula that he need not to say anything, but whatever, he said may be taken against him in court and the accused consented. The officer said both the accused and an independent witness called Abdou Bojang signed the statement as well as himself as the one who recorded it. He added similar procedure was followed in obtaining the voluntary statement.

Owing to the line of questions posed to the witness from the state prosecutor as to the exact method used in the recording of the said voluntary statement and whether it was done in the presence of an independent witness, the officer confessed an independent witness was called to sign a portion in the cautionary form, where an independent witness was supposed to sign.

According to him, it was after reading the cautionary wordings to the accused and in the process of filling the form, that he realised that there is a portion that requires the signature of an independent witness. He said this prompted him to call in an independent witness called Abdou Bojang to sign the gap and he did it. However, he said the independent witness was present during the recording of the voluntary statement and that the accused, the independent witness and himself signed it.

As such when the state prosecutor applied to tender the two documents, the Legal Aid defence counsel objected to the application as mentioned in the cited Judges Rule and Section of the Evidence Act. However, the presiding judge later ruled by admitting the voluntary statement as an exhibit and rejected the cautionary statement.

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