By Amadou Jadama
ASP Mberry Touray, an IT officer at the police, yesterday testified in the ongoing sedition trial of opposition UDP executive member Ebrima Dibba before Principal Magistrate Muhammed Krubally of the Banjul court.
Touray said he was instructed by his superior, officer commanding, Superintendent Yusupha Saine to assist a CID officer investigate a WhatsApp audio he downloaded and later uploaded in a USB drive.
He later described the audio and the nature of downloading and the USB drive.
The prosecution applied to tender the USB flash drive and a certificate dated 10 June, and a mobile phone to be admitted into evidence.
However, defence lawyer AA Bensouda objected.
“First, in connection with the flash drive, we object on the basis of procedure as storage device purporting to contain file or files should be presented to the court so that defense counsel as well as the court can have an opportunity to view the content so that objection can be properly made.
The process we have today is equivalent to the prosecution attempting to tender a sealed envelope without the court or the accused seeing the document that is purported to be within the sealed envelope. We refer the court to the case of Alagie Sarjo Sissoho vs Northan Association Cooperation ltd 172 ER 1438,” Counsel Bensauda said.
He further submitted that where the prosecution tendered a flash drive, a video recording and audio recording, they must provide media devices in court so that the content be played to the hearing of the court and the other side for the objection to be raised if necessary.
“We do not know who is speaking, what is being said and in what language, what date the audio was made and fundamentally in compliance with section three of the evidence Act on relevance. Now relevance is the fundamental bedrock of admissibility. If it is inadmissible, it cannot be tendered. If it is not relevant it cannot be admissible and we cannot test the relevance if we did not see or hear the content of the document,” Bensouda stressed.
He further argued that it is a normal practice 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 the court to determine the relevance and you must illustrate the video or the audio to the seeing and hearing of the other side of the court for the same determination to be made.”
“Therefore, the prosecution has failed to comply with section 224 B, by failing to describe any single device in the production of the document, and we urge the court to reject the flash drive”, Bensouda said.
In replying to the defense’s objections, Commissioner A Sanneh, the lead prosecutor said counsel’s objection is baseless and misconceived and he urged the court to reject his objections.
However, the presiding magistrate adjourned the case to rule on it tomorrow at 2:15pm.
