Justice Basirou V.P. Mahoney yesterday, Wednesday, ruled against the state following a clash between defence and state over section 92 of the Evidence Act.
The clash occurred when Prosecutor A.M. Yusuf wanted to re-examine the witness (Karamo Jatta) after cross-examination by Defence Counsel L.S. Camara.
"Mr Jatta in your general testimony, you said that you recorded your conversation with first accused," A.M. Yusuf said to the witness.
The witness, acknowledged that, explaining further that he could recall telling the court that he could remember 5 times.
"And what are those conversations about," Counsel Yusuf further asked? However, Defence Counsel Camara objected, saying that re-examinations scope is to clear doubts and ambiguities that arose during cross-examination.
He further stated that there is nothing in such circumstances that requires a re-examination, adding the question needed to be asked during the witness' evidence in chief (when he witness was first giving evidence.
The defence counsel referred the court to subsection 3 of section 192 of the country's Evidence Act, which states: "The re-examination shall be directed to the explanation of matters referred to in cross-examination, and if any matter is, by permission of the court, introduced in the re-examination, the other party may further cross-examine on that."
"My lord we object to the question in form of the re-examination," Counsel Camara submitted, adding that they also objected to the introduction of new matters by the prosecution.
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In his counter, Prosecutor A.M. Yusuf held that the objection by Defence Counsel Camara was misconceived, adding that subsection 3 of section 192 does not in any way disqualify his question. "So the issue of the conversation and how many was said during cross-examination; and my lord the witness was also further cross-examined as to why he did not record the meeting at Kafuta."
"My lord, it is in the interest of justice to allow the question, so that the court will have the opportunity to have an informed knowledge of the conversation."
Counsel Yusuf posited that the issue of the conversation between the witness and the first accused person is scattered all across the records, adding that if the issue of conversation is not raised, the court will be vulnerable to speculation on what the conversation was about.
Following these submission, the state prosecutor urged the court to allow them (prosecution) ask the question. This, he added would be in the spirit of justice, in the spirit of fair play as to what is before the court.
However, Justice Basirou V.P. Mahoney ruled in favour of Defence Counsel L.S. Camara, stating that the prosecution's question over what the conversation between the accused person Sanna Fadera and witness Karamo Jatta could not be asked in re-examination.
Another question concerning the content of the recorded audios in the witnesses' phone (exhibit P12) was also raised by State Counsel Yusuf. The defence also objected to that question, which the judge also later ruled in their favour.
The case resumes on Tuesday, 23rd of June.
