By Muhammed Barrow
Chief Yaya Jarjusey was on Friday cross-examined by Lawyer Bory S. Touray in a ‘WhatsApp’ audio trial of Kassim Fadera. Fadera is alleged to have insulted the District Chiefs in a WhatsApp audio.
When the case was called on the 28 December 2018 before Magistrate Peter Adoh Che Esq at the Mansakonko Magistrates Court in the Lower River Region, Lawyers Bory S. Touray and Abdoulie Fatty appeared for the accused person whereas CPL 3999 Secka announced appearance for the Inspector General of Police.
Jarjusey aged 60, in his testimony told the court that upon receiving the ‘WhatsApp’ audio, he informed the chiefs of other Districts and later reported the matter to the police.
“What did you report at the police station?” asked the prosecutor.
“I told the police that Kasim Fadera insulted us (the chiefs). After that the police sent for his arrest,” he replied.
Jarjusey avowed that he transferred the audio into a CD (which was admitted and marked as an Exhibit) because his phone’s speaker isn’t loud. He maintained that he has the audio on his phone.
After identifying the CD before the court, Jarjusey said the voice on the CD is the voice of the accused person because the accused mentioned his name including his father’s name too on the said audio.
Prosecutor Secka requested to play the audio, then it was played and interpreted to the court in English.
After playing the audio, the witness (the Chief) said the voice heard was that of the accused person.
Lawyer Borry S Touray intervened to say that the accused’s name was never captured in the audio, rather it is Fadera Dembajang that is mentioned.
An argument arose between the prosecutor and the lead counsel about the name mentioned as the second name. The lead counsel denied and referred to it as a family name instead.
Lawyer Borry S Touray described the CD as an item otherwise he referred to it as secondary evidence. He continued to argue that there is evidence from PW1 that someone sent him the audio for him to listen and therefore even the version he has in his phone is secondary evidence to a lesser degree. He further submitted that now that an audio can be processed by means of a computer every cellular phone especially those that are used today is a computer device.
In addition, the lead counsel further mentioned that it is only primary evidence that can be admitted as evidence and therefore, referred the court to sections 98 and 100 of the Evidence Act.
Lawyer Touray argued that the person in the recorded CD didn’t introduce himself as Kasim Fadera and that the phrase that they kept hearing from this audio are words of praise to anybody bearing the surname Fadera in a Mandinka customary way. Lawyer Borry S Touray further raised the question, who is this person from the Fadera lineage? He submitted that no foundation has been laid to relate identifying the utterer of the words in the audio and PW1 (the chief) has not explained whether he is a voice expert as stated in Section 101 (2) of the Evidence Act. Meanwhile, he described it as not classic secondary evidence but even though that may be secondary but he would advise the police for next time to engage the cellular companies which might be somehow recognized. It is only the cellular companies, not the Gambia Police Force that may authenticate and there is no IPO for this particular case, he submitted.
Jarjusey said he was appointed as a Chief in 1997 and he succeeded Malou Yarboe who also took it from Buwa Kinteh.
The magistrate adjourned the matter till on the 18 January 2019 for continuation.
