By Kemeseng Sanneh (Kexx)
Principal Magistrate Muhammed Krubally of the Banjul Magistrate’s Court has on Thursday, 4 July admitted a flash drive containing an audio of a man speaking in Mandinka. He also admitted the certificate tendered by the prosecution.
Magistrate Krubally said the arguments were purely on admissibility or inadmissibility of documents as well as their relevance or irrelevance and whether the documents so tendered before the court passed the various tests as enshrined in the laws.
The Magistrate said the procedure used by the prosecution to tender the document and the process used by the witness in downloading the audio and putting it in a flash drive was proper.
He said it is good practice to admit the documents or evidence first especially when they passed the prerequisite guidelines of the law and then same will afford the opportunity to the defence, the court and any other to see, hear and rely upon since they will be under the safe custody of the court.
The Court ruled: “If the court rejects it, then same will mean that perhaps both the defence and the court will miss the opportunity to know its content.”
He reiterated the relevance of the audio content stored in the flash drive, “Moreso, in my opinion, since prosecution has applied to tender the said flash drive, the certificate prescribing the way and manner that same was prepared in dealing with the audio extracted from the black IPhone SE2 is indeed a genuine invitation to the court to see them and also listen to the said audio in order to reach a balance, fair and just conclusion of the matter. It is by virtue of the foregoing that the court shall find the said documents so relevant to admit thereby affording all sides’ reasonable opportunity to rely upon,” Magistrate Krubally said.
“The documents tendered by the prosecution are relevant and passed the general rule of relevance and admissibility,” the Judge said.
Lawyer Bory Touray said they are satisfied with the ruling. He sought for the prosecution to supply the defence with a copy of the flash drive, certificate and transcription of the audio.
Commissioner Sanneh handed over the copy of the flash drive, certificate and the transcription to the court. The defence was served.
After the ruling, the prosecution witness, Assistant Superintendent Mberry Touray, continued his testimony.
When asked whether if the audio is played he will be able to recognise it. The witness answered in the positive. Commissioner Sanneh sought the permission of the court to play the audio for the witness to listen to and tell the court whose voice it is.
Court ordered for the audio to be played in opened court – loud and clear. Commissioner Sanneh played the audio from his laptop and a man speaking Mandinka was heard saying: “I am here to respond to President Barrow nonsensical and rude comments.”
The prosecutor asked the witness whether that was the voice he downloaded in to the flash drive and he answered ‘yes’.
Lawyer Bory Touray in cross-examination asked the witness what medium did he used to arrive at the conclusion that that audio was a man’s voice. The witness replied that he used his phone to play the audio and that is it.
Lawyer Bory Touray asked whether the witness whether he has done training in voice identification. The witness replied in the negative, adding that it was obvious that it was the voice of a man.
The prosecutor then make an application for the IPhone tendered in court and marked as EXHIBIT C be returned to the witness since the voice he extracted from the phone is now contained in the flash drive before the court as exhibit. He added that the phone is a personal phone which the witness uses for his day to day activities.
Lawyer Touray objected to the application made by the prosecutor saying the phone is an item of exhibit already before the court. He added that the prosecution did not cite any law that provides that an exhibit can be withdrawn.
He said if the case is of any significance to them, let prosecution buy him a mobile phone otherwise the President can do so.
The presiding Principal Magistrate ruled the mobile phone of the witness is tendered and is in the custody of the court, and the court is unable to return phone at this stage of the trial.
The case was adjourned to Monday, 8 July 2024 for the evidence of prosecution witness 2 at 2:15 pm.
