By Mamadou Dem
Magistrate Jacklin Nixon Hakim of the Banjul Magistrate’s Court yesterday 30th of October, 2014 upheld the prosecution’s application for one Ebrima Njie’s statement (PW5) be admitted in evidence as exhibit.
Delivering the ruling, the trial Magistrate stated that on the 23rd of this month, the prosecution sought to tender the said witness statement in evidence but the defence objected to its admissibility.
According to the trial Magistrate, the learned defence lawyer, Mrs. Hawa Sisay Sabally submitted inter alia that the statement of the aforementioned witness cannot be tendered whilst giving his Evidence-in-Chief as this is only allowed during cross-examination when the intention is to contradict his oral evidence on the statement he had earlier given.
Furthermore, she said counsel argued that there is nowhere in the Evidence Act which allows a witness to self-corroborate himself. During counsel submissions, she referred the court to Section 200 and 201 of the said Act. She posited that unless the examination is on contract, grant or other disposition of property, then the witness (PW5) could be allowed to give his evidence on that documentary evidence i.e his witness statement. The defence further referred the court to Section 38 and 39 of the Evidence Act which provides for exemption where documentary evidence may be tendered in evidence.
Counsel submitted that her client would be prejudiced if the document were to be admitted because it would allow the witness to read through the document which would lead the witness to give direct evidence which is not the intention of the aforementioned Act. She therefore urged the court to refuse the application and asked the witness to continue with his evidence in chief.
On the other hand, Police prosecutor, ASP Musa Camara argued that the objection is baseless and lacks merit. He told the court that counsel was referring to the procedures one adopts when a witness proves hostile which he said wasn’t the case.
The prosecuting officer then referred the court to Section 3 and 11 of the Evidence Act, 1994 which provides for relevancy and instances when facts not otherwise relevant become relevant; adding that the witness testimony and the facts contained in the document in the issue is virtually the same.
ASP Camara further argued that there is no law which prescribes against the admission of a witness’s statement through the witness himself and finally urged the court to overrule counsel’s objection and admit the document by invoking the provision of Section 3 of the Evidence Act.
Deciding on this issue, the trial Magistrate said having considered the continuous arguments and submissions and having extensively gone through the different provisions referred to by both counsel and the prosecution, she is inclined to agree with the learned defence counsel that Section 3 of the Evidence Act is a general provision and thus does not work in isolation but works with other specific provisions of the Evidence Act.
“However, having gone through Section 200 and 201, I am of the view that they do not preclude the prosecution from tendering a witness statement during their evidence in chief,” she declared.
She continued “The dictum is so apt that I shall adopt same in resolving the issue at hand. I wish to point out that the charges preferred against the accused is not one which requires corroboration listed under Section 180 of the Evidence Act.”
“I also wish to point out that a witness statement does not corroborate one’s oral testimony in court as corroboration is the independent confirmation of some fact,” said the Magistrate.
The trial Magistrate finally opined that the admission of PW5 statement won’t prejudice the accused; adding that no miscarriage of justice would be occasioned on the accused nor would she be prejudiced because her lawyer is opportuned to cross-examine the witness not only on his oral evidence in court but also on his extra judicial statement.
“In consequence thereof, I shall overrule Counsel’s objection and grant the prosecution’s application which will cause no injustice to the accused,” she stressed.
PW5’s witness statement was admitted and marked accordingly.
Meanwhile, the case continues on November 10th and 11th respectively.