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At Court Martial!

Opposing counsels spar over whether to tender accused statement

By Alusine Sesay

Opposing counsels at the ongoing Court Martial were yesterday engaged in an animated argument over whether the court should admit in evidence or not statement of the second accused, Frederick Johnson.

Judge Advocate Otto During could not rule in favour of either the defence or the prosecution as both sides sparred in the military court which is trying 14 soldiers for an alleged mutiny.

The bitter argument came after an application by Principal State Prosecutor, Gerald Soyei, that two prosecution witnesses – both police investigators – who interrogated the second accused, are at present outside the jurisdiction of Sierra Leone and that Rule 56 of the Court Martial Procedure Rule of 2003, gives him the leeway to tender the statement in court.

According to Soyei, Rule 56 states that in the absence of any witness, either the prosecution or the accused can admit a statement in court.

“The police officers that were involved in his (second accused) investigation have left the jurisdiction of the country, one in Ghana and the other in America. It is because they are out of the jurisdiction and also not practicable for them to testify in court, as there will be difficulty either by way of tracing them. I therefore submit that in the interest of justice, the prosecution admits or exhibits the statement of the second accused,” he said.

However, lead defence counsel, Julius N. Cuffie, vehemently objected to the application on law and fact, submitting that their objection was predicated on Rule 56, which he said stipulates the application of appropriate law.

He argued that the prosecution did not cite the appropriate law and that when a statement is taken from a suspect, the statement taker should comply with certain procedures as enshrined in the Judge’s Rules.

“That is, the suspect ought to be cautioned and questioned and in the process be told that he is not obliged to say anything and whatever he says will be used against him,” he said. “Further compliance of the Judge’s Rule by the investigator requires that the suspect be reminded of his right to a solicitor before the statement is taken and the suspect would be asked if he wishes that his solicitor be present before statement is taken.”

He argued that the law requires strict compliance to the Judge’s Rule with regards statement taking and that failure of an investigator to comply with one of the ambits of the said Rules renders the whole statement a nullity.

In the absence of a witness to be cross-examined, he posited, it cannot be proven in court whether the statement was taken on free volition of the suspect without coercion.

“Investigators must come to court and testify on oath. The veracity of the statement should be tested by cross-examination. The situation presented by the prosecution denies us the defence to subject the witness to rigorous cross- examination in the interest of justice,” he said.

Cuffie further pointed out that the prosecution mentioned names of investigators who cannot be cross-examined because they are absent, noting: “It is our submission that the court will only take judicial notice of the statement.
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It is not evidence before this court and no weight should be attached to it.”

Earlier, Judge Advocate During made a ruling in favour of the defence over the tendering of a certain document allegedly found at the premise of the 6th accused.

He said the defence had earlier argued that the search team failed to follow proper procedure as no search warrant was issued in respect of the sixth accused prior to his premise being searched, hence the document found in his premise should not form part of the evidence adduced in court.

According to the Judge Advocate, there was no evidence in court that the provision for the issuance of a search warrant was strictly complied with and that non-compliance casts doubt as to the authenticity of the said document.

Meanwhile, the Court Martial yesterday entered its 43rd day sittings out of 60 sittings envisaged, with the prosecution still presenting their cases.

The matter was adjourned to Wednesday, 20th August.

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