Lawyer Bensouda Objects to Admissibility of Ebrima Dibba’s Audio

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By Kemeseng Sanneh (Kexx)

Senior Lawyer Abdul Aziz Bensouda has objected to the admissibility  of an audio recording contained in a flash drive. Police Commissioner Abdoulie Sanneh said Lawyer Bensouda’s objection was a futile exercise.

The prosecution witness, Assistant Superintendent (ASP) Mberry Touray, said the flash drive contained an audio of a man speaking in Mandinka. ASP Touray said he has a master’s degree and his area of specialisation is software engineering. He added that he works in the police IT Unit.

Commissioner of Police Abdoulie Sanneh, Deputy Commissioner of  Police M. Jarju, Superintendent Almameh Manga, Assistant Superintendent Yaya S. Colley and Assistant Superintendent Fatou F. Kujabi appeared for the Inspector General of Police. Senior Lawyer Abdul Aziz Bensouda, Lawyer Ya Kumba Jaiteh and Senior Lawyer Borry S. Touray represented Ebrima Dibba..

ASP Mberry Touray recounted that in June 2024 while in his office he was instructed by his officer commanding, Superintendent Yusupha Saine to assist a CID Officer in an investigation. He said one CID Gibba came to his office with a WhatsApp audio, which was sent to his phone, transferred and downloaded into his computer. He added that the audio was transferred into a USB flash drive as he prepared a certificate since it was computer generated. 

ASP Touray explained that the computer he used was his office computer and it was in a good condition at the time of processing the audio.

Commissioner Sanneh made an application to the court to tender the flash drive, certificate and the iPhone. The certificate was dated 10th June 2024. 

This was when Lawyer Bensouda indicated his objection. Lawyer Aziz Bensouda said  a storage device purported to contain files or files should be presented to the court so that the defendant as well as the court could have an opportunity to view the content. Counsel Aziz Bensouda further argued that the prosecution tendered a sealed envelope without the court or the defendant seeing the document.

Counsel Bensouda referred the court to the case of Alagie Sarjo Sissoho vs Northern Association Cooperation Ltd where the prosecution tendered a flash drive, a video recording and an audio recording. The court in that case asked the prosecution to provide the media devices in court so that the content be played to the hearing of the court and the other side for objections to be raised, if necessary.

Lawyer Bensouda submitted that the defence did not know who was speaking in the audio, what he was saying, the language he was speaking and what day the audio was made.  

Bensouda made strides in his arguments about relevance and admissibility as he made a citation from Section 3 of the Evidence Act. Counsel Bensouda said it is a normal practice exercise in Common Law jurisdiction time and time that if you wish to tender a statement in hard copy, in video format or in audio format, you must produce a hard copy for the other side or for the court to determine the relevance and you must illustrate the video or the audio to the seeing and hearing of the other side in the court. He added that if that is not done, the document whether hard copy or in storage must be rejected. 

Bensouda said the prosecution failed to lay a proper foundation for the admissibility of the documents. He added that there should have been a transcription accompanying the storage device and that transcript would indicate who is speaking and in what language he/she is speaking and if it had been translated in English, who the translator is and the date of the translation. He said the prosecution did not produce that.

He asked the court not to allow a sealed envelope to be admitted in evidence because the contents were not made known. He said the court must not allow the flash drive purporting to have file or files with unknown names, unknown format, unknown duration, unknown speakers to be admitted. He submitted that if the Court allows it, it will be akin to denial of fair hearing.

On the issue of the certificate, Lawyer Bensouda said it was signed, but the person did not indicate that he made it to the best knowledge and belief. He said the document has a fundamental flaw as it failed to comply with section 22 of the Evidence Act.

Commissioner Sanneh said the objection of Counsel Bensouda was baseless, misconceived and should be disregarded and rejected. Commissioner Sanneh relied on section 22 of the Evidence Act saying that a proper foundation was laid by them. He also replied on the issue of relevance as captured in section 3 of Evidence Act 1994. He said it is established in practice that one cannot disclose the content of a document that is not before the court until it is admitted in evidence.

Commissioner Sanneh said the court has to look at the evidence first before discussing it and it is clear that the witness made it clear to the court that a man’s voice, who was speaking Mandinka language. He made references to the certificate to counter the argument of Counsel Bensouda.

Commissioner Sanneh said the most interesting part of the certificate is that it was signed by the witness and is dated. He added that Counsel Bensouda should have objected to something different and not the certificate. He said the witness mentioned the flash drive and the Whatsapp number of CID Gibba’s phone and his phone through which whatsapp audio was sent. 

Commissioner Sanneh argued that prosecution complied with the Evidence Act. He said the witness clearly stated that CID Gibba supplied him with audio and he downloaded it in his computer which at the time was in good condition.

He explained that the certificate does not state the content of the audio, but it stated the procedure. He pointed out that the witness is a Master’s Degree holder and an expert when it comes to downloading from a computer.

Commissioner Sanneh argued that before confirming whether it is Ebrima Dibba speaking or not, they have to play the audio first to know.

He said the things he applied to tender were all relevant to the case. Commissioner Sanneh urged the court to overrule the submission of defence for their failure to advance cogent and compellable reasons to the court. 

The case was adjourned to Thursday, 4 July 2024 for ruling at 2:15 pm.