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Legal Team’s Objection Overruled: Court Admits Audio Evidence in Ebrima Dibba Case

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Ebrima Dibba, Deputy National Organizing Secretary

By Landing Ceesay 

Principal Magistrate Muhammed Krubally of the Banjul Magistrates Court has dismissed the objection raised by Counsel A.A. Bensouda, the lawyer representing Ebrima Dibba, concerning the admissibility of an audio recording and admitted it into evidence.

Ebrima Dibba faces a single charge of sedition under section 52 subsections 1(b) and (c) of the Criminal Procedure Code.

The Inspector General of Police (IGP) alleged that in May 2024, Dibba recorded and published a WhatsApp audio accusing the President of being “greedy, immature, rude, and foolish,” with the intention to incite contempt against the President or the Government.

During the hearing on July 2, 2024, the Prosecution called their first witness, Assistant Superintendent Mberry Touray, to the stand. ASP Touray, second in command at the Information Technology Unit of the Gambia Police Force, has been with the unit for over a year.

In his testimony, ASP Touray explained to the court how he obtained an audio recording of a man speaking in the Mandinka language. He also mentioned that he stored the audio on a flash drive. When the Prosecution sought to tender the flash drive into evidence, Counsel Bensouda objected, arguing that proper procedure required the flash drive to be presented to the court first, allowing both the court and the defense to review its content before it could be tendered.

Counsel Bensouda contended that the Prosecution’s attempt to tender a sealed envelope without letting the Accused see its content was procedurally incorrect. He supported his argument by referring to the case of Alagie Sarjo Sissohor v. Northern Association Cooperation Ltd 172 1438.

In response, Commissioner A. Sanneh argued that Counsel Bensouda’s objections were baseless and misconceived, asserting that the Prosecution had established the foundation to determine the admissibility of the documents. Commissioner Sanneh referred the court to Section 22 of the Evidence Act and Section 3 on relevance.

After considering the arguments from both the Prosecution and the Defense, Principal Magistrate Krubally overruled Counsel Bensouda’s objections and admitted the audio into evidence.

“Having carefully listened to the prosecution’s witness and reduced same on written record, having equally done same for counsel for the Accused as his strong objection urging the court to disapprove the documents such as flash drive, the certificate and the black IPhone SE2 of the said witness so tendered by the prosecution, having further listened to and recorded the prosecution’s opposition to counsel’s objections and finally a replied on points of law by the defence counsel thereto I am indeed imbued to bring to light here under;  Should this court admit or reject the documents such as flash drive, the certificate and the black IPhone SE2 tendered by the prosecution to be admitted in evidence and be marked as exhibits?” Principal Magistrate Krubally asked. 

Principal Magistrate Krubally stated that the correct answer to this issue can be found in the testimony of the witness himself.

He highlighted the guidelines and cautions from statutes, particularly those in Section 3 of the Evidence Act 1994, Section 22 Subsection 4 (a, b, and c), Section 2 of the same Act, and Section 22 Subsection 5 and Section 3 in extenso, which both the defense and prosecution relied upon.

In addition, Principal Magistrate Krubally mentioned the case of Alagie Sarjo Sissihor v. Northern Association Cooperation as another point of reference.

He further noted that any other relevant statutes and precedents are also useful in determining this matter to reach a just conclusion.

Given that the arguments before the court revolve around the admissibility or inadmissibility of documents, their relevance or irrelevance, and whether the documents presented meet the statutory requirements, Principal Magistrate Krubally found it necessary to explain the definition of a document as per Section 2 of the Evidence Act of The Gambia 1994.

Section 2 defines a document as any material or object capable of retaining data, information, sound, or pictures, and that actually contains such information. This includes writing paper, film, photographs, tape recordings, inscriptions on tombstones or coffins, and compact discs. Each of these items constitutes a document due to the information recorded on them.

However, if an object is relevant solely as an object, it is considered real evidence. Different rules of admissibility apply to documentary evidence and real evidence. This definition of a document is detailed in Section 2 Subsection 1 of the Evidence Act.

“It is no doubt that what the prosecution has tendered before the court such as flash drive, a certificate and IPhone are all legally speaking documents. the testimony of PW1 herein stated that C I D Jibba played an audio for him containing a man’s voice speaking in Mandinka which was later sent to him via his whatsapp which he downloaded and later transferred in to his computer which then in used was in perfect condition and thereafter transferred same in to a flash drive and prepared a certificate to that effect. 

“Counsel representing the Accused said such manner of the prosecution’s witness was legally improper and failed to meet the tests of section 22 subsection 4 of the Evidence Act 1994 in its entirety. Prosecution on the other hand the prosecution argued and opposed counsel that prosecution’s witness herein acted in the right manner as cautioned by Section 22 of the Evidence Act in its entirety. Since both sides made reliance and referrals to the said section, again I find it plausible to reproduce such section 22 in its entirety for the sake of clarity here under,” Principal Magistrate Krubally stated. 

“Section 22 subsection 4 of the Evidence Act reads; 

a) Identifying the document containing the statement and describing the manner in which it was produced. 

b) Giving such particulars of any device involved in the production of that document as may be appropriate for the purpose of showing that document was produced by a computer.

(c) Dealing with any of the matters to which the conditions mentioned in subsection 2 relates and purporting to be silent by a person occupying a reasonable position in relation to the operation of the relevant device or the management of the relevant device (which ever is appropriate) shall be evident of any matter stated in the certificate and for the purposes of this subsection it shall be sufficient for a matter to be stated to the best of the knowledge and believe of the person stating it.”

Subsection 5 reads, 

“(a) Of the Evidence Act provides that information shall be taken to be supplied to a computer if it is supplied thereto in an appropriate form and whether it is to be supplied directly or (with or without human intervention) by means of an appropriate equipment.

(b) Where in the course of activities carried on by any individual or body, information is supplied with a view to its being stored or processed for the purposes of those activities by a computer operated otherwise then in the course of those activities, that information, if duly supplied to that computer, shall be taken to be supplied to it in the course of those activities. (c) A document shall be taken to have been produced by a computer whether it was produced by it directly or (with or without human intervention) by means of an appropriate equipment.”

Principal Magistrate Krubally stated that according to section 22, subsection 5 (a), (b), and (c), it is indisputable based on the record and the evidence from the prosecution’s witness that the audio received from CID Jibba was downloaded onto his phone via WhatsApp, transferred to his computer (considered an equipment), then transferred to a flash drive, and finally, a certificate was prepared.

Principal Magistrate Krubally further noted that these actions, in his opinion, fulfill the requirements of section 22, subsection 4, as well as section 22, subsection 5.

“As I stated inter-alia, both sides relied on relevance and cited Section 3 of the Evidence Act 1994 herein as general guidelines for admissibility of documents. This being the status quo again just as I did inter-alia, I am minded to reproduce section 3 of the Evidence Act hereunder; 1. As a general rule the excerpt as otherwise prescribed by an Act of the National Assembly all evidence which is sufficiently relevant to an issue before the courts is admissible, while evidence which is irrelevant or insufficiently relevant is not admissible. 2. A fact is said to be relevant to another when it is connected with the other in any of the ways referred to in the provisions of this Act relating to the relevancy of facts,” he stated. 

Principal Magistrate Krubally explained that the general rule regarding the admissibility of evidence is based on its relevance or irrelevance, subject to the court’s absolute and reasonable discretion.

He noted that the documents presented by the prosecution through their witness, considering their relationship to the legal guidelines, should be interpreted accordingly for the proper determination of truth and justice.

Principal Magistrate Krubally addressed Counsel Bensouda’s objection to the admissibility of a certificate prepared by the prosecution’s witness. The objection focused on the specific method and manner in which the witness prepared the certificate, particularly regarding the audio received from C.I.D. Gibba.

Counsel Bensouda argued that the certificate was improper and did not meet a fundamental requirement, as the witness failed to state that the information was to the best of his knowledge and belief. This omission rendered the certificate irrelevant and invalid, failing to meet the standards of Section 22, subsection 4 of the Evidence Act.

In response, Principal Magistrate Krubally highlighted Commissioner A. Sanneh’s strong opposition, emphasizing that the witness holds a Master’s degree in computer software engineering and is an expert who detailed how he received the audio from C.I.D. Gibba.

Principal Magistrate Krubally stated that Commissioner Sanneh asserted that the witness’s procedure fully complied with Section 22, subsection 5, particularly subsection C, of the Evidence Act.

“The excerpt of the wordings of the prosecution’s witness exactly couched in the certificate he prepared and now so tendered in court for admission in evidence which counsel for the Accused vehemently objected and urged the court to reject same because it did not disclose that the procedure he undertook was not to the best of his knowledge and believe.

“Frankly yes I find that the witness omitted that version that the procedure he undertook was to the best of his knowledge and believe but the fundamental and realistic question here should be- whether in the light of such omission to b contained in the certificate shall be rendered by the court invalid? I think not. Other than that, all other requirements have been fully furnished in the certificate by the witness which if placed on one side of the scale will outweigh this single statement. Of course I am not saying same is of less significance but I am saying should not affect the justice of this case at this stage,” Principal Magistrate Krubally said. 

Principal Magistrate Krubally elaborated on the potential consequences of admitting the documents the Prosecution sought to tender.

“In conclusion, if I am to decide whether the documents so tendered by the prosecution through its witness herein PW1 such as Flash Drive, The Certificate dated 10th June 2024 as well as the black IPhone should be admitted in evidence as the wishes of the said prosecution or whether same shall be disapproved and rejected as counsel for the Accused wish, I come flow to the finality in this matter that for admissibility of documents in court. It is good practice to admit the documents or evidence first especially when they passed the prerequisites and guidelines of the law and then same will afford the opportunity to the defence. 

“The court and any other to see, hear and rely upon since they will be under the safe custody of the court. This being my honest opinion in particular having thoroughly consulted reliable statutes especially those relied upon by both counsel for the accused and the prosecution. So hold that although, I wholeheartedly appreciated defence counsel’s reasonable and fair battle by raising opposition against the admissibility of such documents with his legal reasons highlighted herein, I must preface that same was not indeed necessary at this stage,” Principal Magistrate Krubally said. 

Principal Magistrate Krubally also stated that it will be appropriate in the circumstance to really know the undisclosed content of the flash drive after its admission herein. 

“However, if the court rejects it then same will mean that perhaps both the defence and the court will miss the opportunity to know its content. That is why with its relevance it will be prudent to be quite curious of the audio content stored in the flash drive. Moreso, in my opinion, since prosecution has applied to tender the said flash drive, the certificate prescribing the way ad manner that same was prepared in dealing with the audio extracted from the black IPhone SE2 is indeed a genuine invitation to the court to see them and also listen to the said audio in order to reach a balance, fair and just conclusion of the matter. It is by virtue of the foregoing that the court shall find the said documents so relevant to admit thereby affording all sides reasonable opportunity to rely upon,” he ruled. 

Principal Magistrate Krubally stated that the documents presented by the prosecution are pertinent and meet the general standards of relevance and admissibility outlined in Section 3 of the Evidence Act 1994. Additionally, they fulfill the requirements specified in Section 22, subsections 4(a), (b), (c), and subsections 5(a), (b), (c) of the same Act.

“In the light of these legal and factual basis herein, defence counsel’s objections are accordingly over ruled and I hereby admit the Flash Drive, silver coloured with red writing on it in evidence and marked Exhibit A. The certificate as computer generated evidence dated 10th June admitted in evidence and marked as Exhibit B. The Black Coloured IPhone SE2 admitted in evidence and marked as Exhibit C,” Principal Magistrate Krubally ruled. 

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