In Mbye Njie’s trial: DPP, Defence argue over witness statement
Friday, September 21, 2012
The director of Public Prosecution (DPP), SH Barkun, and Lamin L.K Mboge, defence counsel for Mbye Njie, ex-director of Operation at the NDEA, Thursday failed to reach an agreement over tendering of a witness statement obtained from Saikouba Jammeh, (PW1), in the official corruption and theft charges case filed in by the state against the former NDEA official, at the Banjul Magistrates' Court, presided over by Magistrate Taiwo Ade Alagbe.
For over half an hour the two legal officers argued over the issue, with occasional intervention of the presiding magistrate. The defence counsel insisted on having what he called the first statement obtained from the said witness, Saikouba Jammeh in the year 2011, instead of the one obtained in 2012 and served to the defence.
wrangle erupted during the receiving of evidence-in-chief from the accused
person, Mbye Njie under the guidance of defence counsel Mboge, but when it came
to tendering of the witness statement received from PW1 Saikouba Jammeh, the
defence counsel insisted on seeing the 2011 statement made by the said witness
instead of the 2012 one presented in court. The defence counsel’s refusal to
have the 2011 statement tendered did go down well with the DPP, who insisted on
the defence to have the document tendered.
The DPP said he only saw the 2012 statement and not the 2011 one as alleged by the defence, adding that the said statement is currently with the defence counsel. He later made reference to Section 223 of the Evidence Act with respect to tendering of witness statements in a criminal trial. But still the defence counsel persisted and maintained that he should see the 2011 witness statement of PW1.
This prompted the presiding magistrate to intervene on legal procedures as contained in the cited Section 223 of the Evidence Act. The magistrate asked the defence why he refused for the statement in his possession not to be tendered and also whether the defence is hiding something from the sight of the court. Mboge replied in the negative and maintained his position, saying he has nothing to hide from the court.
“My lord I have nothing to hide from the court. All I am requesting is for the prosecutor to bring the earlier statement of PW1. The one he made in 2011, not the 2012. Once the prosecution produce this document, I will have no objection to have it tendered, but in the absence of the 2011 statement, I cannot tender this 2012 and I have nothing to do with the 2012 statement,” LK Mboge explained, and later handed the said 2012 statement to the DPP, saying he [the defence] does not want it.
However, the principal magistrate drew the attention of the defence to what he called the legal presumption in law, which sifted favour on the prosecution where as the defence refused to have a document tendered in court. The court later asked both sides as to where they would have seen the need to have the said PW1 recalled so as to clear doubt as to whether he made any such statement in 2011 as alleged by the defence. The matter was later adjourned for continuation of receiving of evidence from the accused.
Author: Sanna Jawara