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kayjatta
2978 Posts |
 Posted - 01 Nov 2006 : 03:13:52
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The Daily Observer (Banjul)
October 30, 2006
Posted to the web October 30, 2006
Lamin Njie
Justice Agim on Friday 27th October 2006, delivered his ruling in the "voir dire" (trial-within-a-trial) involving Captain Yaya Darboe's confessional and cautionary statement at the Yundum military barracks.
In his ruling, Justice Agim said he has carefully considered the evidence given by both parties and that the evidence given by the second accused person, Captain Yaya Darboe and that of the fourth accused person, 2nd Lieutenant Pharing Sanyang are contradictory. He said the allegations of torture and duress meted out to the 2nd and 4th accused were not proven beyond reasonable doubts. Justice Agim further ruled that the evidence given by Mariama Bah, the wife of Captain Darboe, that she first met her husband at the High Court and during her cross examination, that she first met her husband at Mile Two are contradictory.
Furthermore, Justice Agim ruled that Mariama Bah, the second accused's wife said when she saw her husband, it was the right eye that was paining but later said that it was the left eye of her husband which was paining. "She contradicted herself", Justice Agim said. The court martial judge, Justice Agim said despite the fact that the medical doctor was invited by the defence to come and give evidence in court, the lenses were never shown to her, in spite of her claims that she treated the 2nd accused person's eyes on the 21st April 2006. He said no reason was given by the defence to that effect.
On the 4th accused person, 2nd Lt. Pharing Sanyang, Justice Agim stated that the claims made by him that he was stabbed with a bayonet and the head hit with a pistol was not proven by any medical reports.
On the independent witness, Justice Agim said, "It is not surprising for Lamin Cham, a detective of The Gambia Police Force to have access to Tijan Bojang's number for the simple reason that they both come from the same village, Sukuta. I do believe that the evidence of Abdoulie Sowe, a police officer of the Major Crime Unit of The Gambia Police Force and Tijan Bojang, the independent witness are factual.
Sitting continues on Thursday November 2nd, 2006.
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kayjatta
2978 Posts |
Posted - 01 Nov 2006 : 03:21:34
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Voir dire simply means "jury selection". It is the process through which the judge and the opposing attorneys agree on the composition of the jury.
I do not understand why this newspaper ( is it the daily observer?) keeps calling voir dire a "trial within a trial" , and certainly this case mentioned above looks like a full fledge trial and not a jury selection. Am I missing something here ?
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Dalton1
3485 Posts |
Posted - 01 Nov 2006 : 03:27:30
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quote:
Originally posted by kayjatta
Voir dire simply means "jury selection". It is the process through which the judge and the opposing attorneys agree on the composition of the jury.
I do not understand why this newspaper ( is it the daily observer?) keeps calling voir dire a "trial within a trial" , and certainly this case mentioned above looks like a full fledge trial and not a jury selection. Am I missing something here ?
They are better called "du'ul observer." Crack-head, Dr.Sajar Taal, old kent street activist with his errand boys. Get only the news part of it. |
"There is no god but Allah (SWT); and Muhammad (SAW)is His last messenger." shahadah. Fear & Worship Allah (SWT) Alone! (:
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kayjatta
2978 Posts |
Posted - 01 Nov 2006 : 03:32:58
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Dalton1 , is the 1 next to your name the valency or atomicity ? |
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Dalton1
3485 Posts |
Posted - 01 Nov 2006 : 03:41:53
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none. i enjoyed those topics in school though.
1, just a random addition to the name. J.Dalton was my nickname in HS, after the great Dalton, of atomic theory. It wasn't my performance in chemistry that crowned the name on me. it's a funny story that surrounds the nickname. (laugh!!) I was better in physics and maths than any other subject.
http://www.chemheritage.org/classroom/chemach/periodic/dalton.html |
"There is no god but Allah (SWT); and Muhammad (SAW)is His last messenger." shahadah. Fear & Worship Allah (SWT) Alone! (:
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Edited by - Dalton1 on 01 Nov 2006 03:57:59 |
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Nyarikangbanna
United Kingdom
1382 Posts |
Posted - 01 Nov 2006 : 11:13:59
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Keyatta, your definition of Voir dire might be an American definition which is alien to the Gambian legal system. The Gambia's legal system is based on common law Jurisprudence and as far as that jurisprudence is concern, Voire dire is a name taken from the form of oath prescribed at common law for testimony given on secondary issues within a trial. In most legal context, it means a trial within a trial.
In most cases, a Voir dire will be invoked only to determine the admissibility of certain principal evidences/testimonies. In this particular case, the issue is whether written testimonies or confessions purportedly obtained by way of torture can be adduced in court and be admissible. The secondary issue here is, whether those testimonies can be admitted by the court. The court will not normally admit an evidence if it is likely to lead to an unsafe conviction. In any given case, the facts have to be investigated and a judicial discretion would be exercised as to whether or not to admit the evidences.
The process is normally governed by the rules of evidence which in the case of the Gambia, are codified [my understanding is] by the Evidence Act.
Thanks
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I do not oppose unity but I oppose dumb union. |
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kondorong
Gambia
4380 Posts |
Posted - 01 Nov 2006 : 17:59:04
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| Very soon we will all have law degrees on bantaba. I am amazed how academic and professional discussions have been of late especially Kayjatta and Nyaringbanna. |
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Sanusi
70 Posts |
Posted - 01 Nov 2006 : 19:09:59
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| A Voire Dire is when the TRIAL JUDGE conducts an inquiry as to whether a certain piece of evidence should be admitted. Voire Dire's are normally held in situations where the defence objects to the admissibility of the accused's cautionary statement on the grounds that there were not lawfully obtained.As a result, VOIRE DIRES are commnoly known as a TRIAL WITHIN TRIAL because the main trial is suspended while a "trial" is held to decide whether a particular of evidence should be admissible. |
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kayjatta
2978 Posts |
Posted - 03 Nov 2006 : 02:20:45
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Hello guys:
I have to say that I am not familiar with Gambian law at all. However , i do not expect voir dire to be a different concept in the U.S. from the Gambia.
Before any trial (especially a criminal trial) the defense usually could opt for either a jury trial or a bench trial. In a jury trial the court must select potential jurors in a process called VOIR DIRE a word of French origin meaning "to speak the truth".
Each of the opposing attorneys could challenge and eliminate any potential juror either for "cause" or "peremtorily".
The jurors that the judge and the opposing attorneys agree on are then "impanelled". Jurors are only triers of fact ,only the judge is the trier of law .The judge in collaboration with the opposing attorneys will then create a document called "jury instructions" that guide the jury in their job of deciding on the points of facts of the case. When the jury came out with its findings the judge then applies the points of law to arrive at the decision of the court.
I do not wish to lecture law here , because i do not have any qualifications to do so , but any body can google (look on the internet search engines) for the meaning of voir dire and tell me what you find.Sanusi and Nyarikangbana what law dictionary are you using ?
There are many instances when issues arise during a trial that have to be decided before the trial can continue.For example when you are vacationing in the Gambia and a cop stop you for no apparent reason other than to suspect that you are a "semester" to get money from you. He than search your vehecle and found a small quantity of "weed". If thsi matter goes to court and you file a "motion to supress" the possession of "weed" as an evidence , this is an interlocutory issue that requires the courts decision before the case can proceed. The motion could be granted or denied. In many trials several motions are filed , but thses are not voir dire.
Voir Dire is jury selection , may be in the Gambia it is different . Is it so in U.k, and other countries too ? I am interested to know , please. |
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Sanusi
70 Posts |
Posted - 03 Nov 2006 : 19:06:57
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Mr Kayjatta
I beg to defer with your definition. I have now made some research and this is my findings-
Voir dire
A mini-hearing held during a trial on the admissibility of contested evidence. For example, a defendant may object to a plaintiff's witness. The court would suspend the trial, immediately preside over a hearing on the standing of the proposed witness, and then resume the trial with or without the witness, or with any restrictions placed on the testimony by the judge as a result of the voir dire ruling. In a jury trial, the jury would be excused during the voir dire.
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Sister Omega
United Kingdom
2085 Posts |
Posted - 03 Nov 2006 : 19:18:33
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Welcome back Sanusi, its been a lonnnng time!
Yes I agree with you Kons this thread diffinitely has the legal minds on board.
Peace
Sister Omega |
Peace
Sister Omega |
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Nyarikangbanna
United Kingdom
1382 Posts |
Posted - 04 Nov 2006 : 14:06:42
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Kayjatta, like Sanusi, I too beg to defer. As you have rightly pointed out the Phrase Voir dire is not an English Phrase. So we are not concern about its literal meaning here but the legal definition as known to the common law jurisprudences like the Gambia, UK and all other commonwealth nations. If you ask me what I know about the American Legal System. I would say ‘it is certainly not based on Sharia law and that is as far as I could go. However, that doesn’t mean that definitions of legal terminologies in America are radically different from commonwealth jurisdictions. The meaning would be the same but how the instruments are used in proceedings is likely to be different. Example, you said in America, the Voir dire instrument is used to make jury selection. You will agree with me that Jury selection is a secondary issue in a trial. The primary issue is always going to be the indictment[s] before the Court. Nevertheless, before the court can get to the primary issues in such cases, it would have to settle that jury selection first. So, there is always a link between the two but they still need to be dealt with separately especially if a jury is involved. This is because secondary issues are always about points of law which can only be heard by a tribunal of law which is the Judge, while primary issues are always a combination of facts and law. The Jury is only concern with facts and will receive directions from the judge on points of law. It is for this reason that a Voir dire is referred to as a ‘Trial within a Trial.’
In the United Kingdom [Her Majesty’s realm], Voir dire is not employed to effect jury selection. That is purely an administrative matter exercised by the Lord Chancellor’s Department. The jury is always selected before the trial begins. Under the rules of Disclosure, defence barristers will always eventually be aware of almost everything regarding the selection. That gives them the chance to raise objections if they have any, so that the defendant’s right to a fair hearing is not compromised. This would normally be dealt with before the matter goes to trial. Otherwise, the defence may seek a judicial review from the High Court on the grounds of procedural ultra vires or raise the matter with the trial judge during proceedings but this is extremely unlikely to happen because the Lord Chancellor would not allow any such thing to happen due to the potential adverse effect on the credibility of the Judiciary. It might erode public confidence and can open floodgates to political criticisms from the Shadow Attorney-General and his Army on the opposition bench in the Commons. If that happens the Lord Chancellor would probably be forced out of office.
In most common law jurisprudences like the Gambia and the United Kingdom, Voir Dire would only be employed mainly to determine the admissibility of certain evidences especially confessions, although it may still be employed to determine the competence of certain witnesses. The question of whether the evidence is admissible or not is a point of law and is only heard by a tribunal of law. The jury is always excluded. However, at common law, the Voir Dire is only a desirable tool. Prima facie, a defence counsel can still elect not to ask for a Voir Dire but to deal with the evidence by attacking its admissibility and weight altogether. The judge might still exclude such evidence on a submission being made to him. In UK, this position have now being overtaken by Section 76[2] of the Police and Criminal Evidence Act 1984 so that Voir dire will always be required whenever the admissibility of an evidence is disputed in a criminal proceeding.
Once a Voir Dire is invoked under Section 76 [2] above, the tribunal of facts [the jury] will retire to allow the tribunal of law [the judge] to determine the matter. This is done to protect parties’ rights to fair hearing. If the jury who are normally laymen, are to be exposed to the proceedings, that might prejudice the final verdict. That is why they are always excluded to allow the judge alone to hear the secondary evidence[s].
As for the Gambia, the present constitution once had a provision for trial by jury for capital offences but it was vaguely drafted. It didn’t provide any mechanism for jury selection. That was what Halifa Sallah asked Gambians to vote for in 1995 Referendum. Not a suprise, is it? The provision was first put to test in Lawyer Ousainu Darboe murder case and it was to be the only test ever. The man gave it a fatal shot from the witness box before Justice Ihekere of the High Court and that was end of story. The state had to abrogate it in order to allow that trial to proceed with a Judge sitting alone. As short as it is, that is the history of jury trial in the Gambia.
Kayjatta, I hope your desire is only to seek further clarification and I hope this have done it for you. In any case, your submission is hereby dismissed but with humour.
Thanks
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I do not oppose unity but I oppose dumb union. |
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kayjatta
2978 Posts |
Posted - 06 Nov 2006 : 17:45:11
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Thanks Sanusi , and especially Nyarikangbana for the informative analysis of Gambian and British law regarding this subject.
But I object to your dismissal of the case , because as a party you can't dismiss , only a judge can grant a motion of dismissal . But seriously this is good stuff , i mean educational.
Interestingly , with the exception of Louisiana , U.S. law is also largely based on English common law , also called case law.You know the original settlers here came from England who came with their set of laws (English case law) that continues to be a significant part of U.S. justice system today. Common law or case law is centered on the concept of "stares decisis" .
Yesterday , I ran into a friend of mine who also said that he thinks voir dire has a broader meaning and usage beyond my analysis.
You see some time in late 1994 to early 1995 , Babung Fatty was on trial in one of Jammeh's infamous commissions of inquiries when he addressed a Ghanian prosecutor as "my learned friend".The attorney went berserk and demanded Mr. Fatty an appology for using a previledge phrase reserved only for attorneys (legal experts).Mr. Fatty emediately appologized .So I am not gonna use that phrase here.
I do plead for a "nolo prosequi". |
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kondorong
Gambia
4380 Posts |
Posted - 06 Nov 2006 : 19:03:01
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Why dont you guys go and practice law. You certainly can do better than many counting the poles in the gambia.
Kayjatta are you the same as SS Daffeh? |
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kayjatta
2978 Posts |
Posted - 06 Nov 2006 : 19:17:00
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Kons. : I am not SSdaffeh.Pracice law in the Gambia ? I am not a lawyer yet .
I think Nyarikangbana and Sanusi should go back and practice in the Gambia. They clearly understand Gambian law better than I do. Don't you think ? |
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Nyarikangbanna
United Kingdom
1382 Posts |
Posted - 06 Nov 2006 : 19:47:07
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Hi kayjatta, thanks for your piece on the US legal system. That is very informative for me too. Cheers for that.
I also agree with you when you said you should not address me as 'My learned friend' because frankly, that cap doesn't fit me. To be precise, I am not a Lawyer, not even a Halifa Sallah self-style cat fat constitutional barrister. I am something else.
May I also take this opportunity to concur with you on your objection regarding my dismissal for reasons well pointed out by you. On that basis, that part of my submission is hereby withdrawn.
I couldn't understand what Kondorong means when he asked 'are you like Nyarikangbanna?' Anyway, thanks for that exchange. Quite educative, wasn't it?
Thanks |
I do not oppose unity but I oppose dumb union. |
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