By Lamin Njie
The defence in the rape trial of businessman Bubacarr Keita on Wednesday protested a notice by prosecution to have a new witness testify in the trial.
The prosecution had apprised the court of their intention to bring forward a new witness who was not listed among a list of at least five witnesses.
However on Wednesday, the defence told Judge Momodou SM Jallow the notice of additional summary filed by state prosecutors on Tuesday to enable the new witness testify was faulty.
“My Lord we will be objecting to this witness being called,” Keita’s lawyer Lamin Camara quickly said when the prosecuting lawyer Alasan Jobe told the judge the prosecution would like to call on Pa Modou Johm as its second witness.
According to Camara, the notice of additional summary ran counter to Section 175(D) and 175(C) of the Criminal Procedure Code.
“My Lord if you look at the notice of additional summary, it has all the hallmarks of trial by ambush. For the reason that… My Lord, these notices do not contain anything that can be called summary if your Lordship looks at the statements,” Camara argued.
He then continued: “What appears to be a summary is not even a summary. And with the permission of the court My Lord, can I draw your attention if you have one, to the summary of the statement of [witness]. Two lines. The summary of a statement, two lines. And with the permission of the court My Lord if I can read the summary. [It says] ‘this witness is a sister to the complainant, she will explain the nature of her relationship with the accused person when she was in the compound and everything she knows about the case’. Where is the summary, is that summary?”
Camara then told the judge even if the Criminal Procedure Code did not give the scope of the summary, the constitution guarantees one’s right to fair hearing.
“[It] says you need to put the accused person in a stead to know the evidence that is coming in,” Camara said. “And this summary, there is no statement attached. So what are you telling the defence? Nothing. That amounts to trial by ambush.”
Camara then told the judge the same applies in the case of Pa Modou Johm saying the proposed witness’s statement summary comes in just three lines.
“The witness is a former boyfriend of the complainant. He was questioned by the police at the time the case was reported. He will explain the nature of the relationship,” Camara said reading from the notice of additional summary.
“This is not a summary,” he insisted further.
He then said if the prosecution had attached the witness statements, they would not have objected “because we would have been given an opportunity to know what the witnesses are coming to say”.
“With no such statements, we have no idea of what these witnesses are coming to say. That amounts to trial by ambush which is not allowed in criminal proceedings,” Camara added.
Senior state counsel Alasan Jobe fired back that the defence lawyer made a ‘very bizarre’ objection.
“My Lord a summary is defined under the Merriam-Webster dictionary as ‘covering the main points succinctly’. That is one definition of what a summary is. Other definitions under the same dictionary is that summary is an ‘abstract or an abridgement’.
“My Lord a summary need not contain all relevant information. My Lord a summary is just an overview of something. My Lord we believe that we summary of evidence as contained in the documents we filed is exactly what the said witnesses are coming to talk about,” Jobe told the judge.
Jobe also addressed his opponent’s argument the proposed witnesses statement were not attached saying, “My Lord this is very surprising to us”.
He said: “Because it is not all witnesses who make statements at the police. My Lord oral evidence is as good as documentary evidence as far as it passes the test of relevance as provided for under Section 3 of the Evidence Act.
“My Lord the same mode of drafting the summary of evidence is the same mode of drafting summary of evidence as it is contained in the notice we filed. It’s the same mode of drafting we used in the bill of indictment, the same three lines that counsel for the defence is complaining is the same three lines that we have in the bill of indictment and he never objected to it.”
Jobe continued his argument by telling the judge he agrees with the defence counsel that the accusation leveled against the accused is very serious.
He however warned: “And the threshold to prove rape is very high and it behooves on the prosecution to call on any material witness that will help it in proving its case beyond reasonable doubt.”
Jobe then sparked another protest from the defence when he said for Pa Modou Jobe to testify was because the defence had made reference to his relationship with the complainant.
“Counsel for the defence is the very one who made reference to his relationship with the complainant,” Jobe said.
Camara blasted back: “Sorry My Lord, can we rectify that anomaly. That is a mis-statement, my learned friend is misdirecting the court, that is not true. I don’t know Pa Modou Johm, I don’t know him from Adam. I only asked PW1, ‘do you know one Pa Modou Johm’, she said ‘yes’. ‘Who is he?’ She said, ‘it’s the boyfriend’. Did I make that statement? It’s their witness who said he is the boyfriend to the complainant. So he is misleading the court.”
Jobe who waived his right to reply on points of law asked that the objection by the defence counsel could be sustained except the part they were trying to mislead the court.
“We do not intend to mislead the court,” Jobe clarified.
Jobe went ahead to explain that the testimonies of the proposed witnesses are so vital to their case that their exclusion will case an unfair prejudice to us.
“We therefore urge this honourable court to dismiss the objection and allow the witnesses to testify based on the notice we filed. In any case, we would like this honourable court to take cognizance of Section 175(C)(2) of the CPC,” Jobe then prayed.
The judge in an easily ruling said: “The Honourable court rules that no superior court of The Gambia would allow any trial by ambush in a criminal trial especially for a serious commission allegedly. The prosecution not having given any gist of what the testimony of their statements would be to avail the defence with the opportunity to prepare its case as in the instance clearings which having made in sufficient disclosure and being in one of such requirement, the honourable court would maintain defence counsel’s objection against the calling of the two named witnesses as notice filed from yesterday to beef up the in focal theme and serve such requisite witness statements as the prosecution wish to call with time given to or opportunity given to the defence to prepare against the prosecution’s case. That’s all.”
The prosecuting lawyer had earlier on brought to the attention of the court two typos on the notice of additional summary: the witness’s surname and Criminal Code. The lawyer said the witness’s surname should be ‘Johm’ and not ‘Jobe’ as written on the document and ‘Criminal Procedure Code’ instead of ‘Criminal Code’. The prosecution has agreed to amend the notice and file it again.
