By Kemeseng Sanneh (KEXX)
The Banjul High Court presided over by Justice Basiru V.P. Mahoney has declared that the voluntary and cautionary statements of Fabakary Jawara (an alleged coupist) were inadmissible.
Jawara, together with four others are jointly standing trial for treason and related offences. The ruling came after the State applied to tender both statements (voluntary and cautionary statements) through prosecution witness 5, Sanusey Darboe. Darboe is a resident of Farato village and an Assistant Superintendent of Police (ASP).
The witness said he recognized the three of the accused persons adding he came to know them during the joint investigation at the NIA headquarters while serving in the panel. The witness said he obtained the cautionary and voluntary statements from Sanna Fadera, Ebrima Sannoh and Fabakary Jawara.
“After the joint interrogation, I took the first accused person (Sanna Fadera) to a room and told him that I’m about to take his cautionary statement and he need not to say anything unless he wish,” the witness stated.
The witness testified that Sanna Fadera decided to write his statement by himself and signed without any force in the presence of an independent witness. The witness said he also administered the voluntary statement from Sanna and charge him with three counts which he (Sanna) denied in the presence of an independent witness.
He (the witness) further testified that he wrote the second accused person (Ebrima Sannoh’s) statement and informed him that he is taking his cautionary statement. He said he read the cautionary warning to Sannoh and filled his details. The witness said Ebrima Sannah opted not to speak, adding that he will speak in court. The witness added that was what he indicated in the cautionary statement which Sannoh signed.
“I then obtained a voluntary statement from him Ebrima Sannoh and charge him on three counts,” the witness testified.
The witness testified that the 5th accused person Fabakary Jawara statement was recorded at the Police Anti-crime Unit in Banjul after the joint investigation. He testified that he informed Fabakary that he is about to write his cautionary statement, but before proceeding he read the cautionary warning to him.
“He opted to write his cautionary statement and fill in his personal information and wrote my name as the person who is administering the cautionary statement. He wrote the cautionary statement without any force and he signed it,” the witness testified.
He further testified that he obtained the voluntary statement from Fabakary Jawara and charged him with concealment due to the lack of an independent witness. He added that he went for weekends and on the following Tuesday, an independent witness was brought to the Anti-Crime Unit and Fabakary read the statement in the presence of the independent witness.
The prosecuting counsel then applied to tender the cautionary and voluntary statements from the three accused persons and there was no objection from the defense counsel for the tendering of the statements of Sanna Fadera and Ebrima Sannoh. The Defence only objected to that of Fabakary JAwara.
The application was opposed by Lawyer Lamin S. Camara on two grounds namely. On ground one, Camara said the statement being confessionary in nature, does not comply with Section 31 (2) of the Evidence Act which requires the statement to be recorded in the presence of an independent witness. Camara referred the court to the testimony of the witness who said the independent witness was not present. On the second ground, Lawyer Camara said the statement was not voluntarily obtained from the Accused (Fabakary Sannoh) as he was subjected to force or duress. He submitted that amounts to torture.
Counsel for the Prosecution, Abdul Maita Yusuf, in response to the objection sought to argue that requirement for making the statement in the presence of an independent witness as per Section 31 (2) of the Evidence Act only applies as opposed to the accused person himself. And on the second ground, that the evidence before the Court is that the statement was obtained voluntarily and in the absence of any counter-evidence, supersedes the submissions of counsel on the voluntariness of the statement which at best can only be determined in a voire dire (trial within a trial). In his reply on points of law, Lawyer Camara submitted that the language of Section 31 (2) of the Evidence Act is clear and applies to both when the accused wrote the statement himself or someone else wrote it. And that the conditions in Section 31 (2) are preconditions for the admissibility of a confessionary statement which must be fluid before the issue of voluntariness becomes necessary to determine.
Justice Mahoney cited the Evidence Act of 1994 which he said defines what a confession is and gives the conditions for the admissibility of a confession statement. He stated that conditions include the voluntariness of a confession.
He said the provisions relevant to the instant matter are Sections 31and 33 which are reproduced here for ease of reference:
Section 31 (definition) provides “(1) A Confession is a voluntary admission made at any time by a person charged with a crime, stating or suggesting the inference that he committed that crime. (2) A confession shall not be admissible if the statement was made by an accused while under arrest, in detention, or restriction 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 not being a member of the Police, Armed or Security Forces.”
Section 33 provides “A confession made by an accused person is irrelevant in a criminal proceeding if the making of the confession appears to the court to have been caused by any inducement, threat, or promise having reference to the charge against the accused person, proceeding from a person in authority and sufficient, in the opinion of the court, to give the accused person grounds which would appear to him reasonable for supposing that by making it he would gain any advantage or avoid any evil of a temporal nature.”
Justice Mahoney said a confession as defined in Section 31 (1) is a voluntary admission by someone charged with a crime stating or suggesting the inference that he committed that crime.
“The definition has been interpreted to mean that the confession must be a clear, unambiguous, and unequivocal admission of guilt,” he said.
In the instant case, the cautionary and voluntary statements of Fabakary Jawara, the 5th Accused, sought to be tendered appear to contain admissions of the offence of concealment of treason, one offence with which he is presently charged.
He said the statement is therefore a confession and for it to be admissible, it has to comply with Section 31 (2) of the Evidence Act.
“From the said provisions, the confession of an accused made while under arrest, in detention, or restriction by state agents shall not be admissible unless:
(a) The confession was voluntarily made,
(b) in writing,
(c) by the accused or someone on his behalf,
(d) signed or thumb printed by the accused, and (e) in the presence of an independent witness who is not a member of the security forces.”
He said the literal interpretation of Section 31 of the Evidence Act leaves no room for uncertainty.
“These are pre-conditions for the admissibility of confessional statements, particularly where the voluntariness is disputed,” Mahoney said.
He cited the Court of Appeal decision in Mballow & Bass v The State (1997-2001) GLR 1 where it was categorically stated that the confession must be made in the presence of the independent witness, that is, the process of recording and signing the statement must be made in the presence of the independent witness, whether or not the accused wrote the statement himself or someone else wrote it for him.
In the instant matter, the voluntariness of the statement has been challenged.
This normally calls for a suspension of the main trial and the holding of a mini-trial or voire dire to determine the voluntariness confessional statement, apart from voluntariness, have not be of the statement. of a However, where the pre-conditions for the admissibility satisfied, then the statement would be inadmissible.
“That is the position here. The statement was recorded in the absence of the independent witness as stated by PW5. That is an admission which requires no further proof,” he said.
He added: “There is no need for a mini-trial to determine the voluntariness of the statement or whether the confessional statement satisfies the conditions of Sections 31 and 33. The evidence before the Court is that it does not because the statement was not recorded in the presence of an independent witness.”
He said the statements are therefore inadmissible and are rejected. The Voluntary statement was marked Reject 1 and the cautionary statement was marked reject 2.
The case will be coming after the vacation.