CRIMINAL LAW – onus of proof – on who lays – in criminal cases the onus is on the prosecution to establish the guilt of the accused beyond reasonable doubt – the prosecution must discharge onus in order to secure conviction of accused – does not shift as it rests squarely on the prosecution throughout – only rests on accused to discharge on a balance of probabilities where the charge imports a presumption of guilty intent as exemplified in the case of being in recent possession of stolen property, when such proof rests upon facts peculiarly within the accused’s own knowledge

CRIMINAL LAW – murder – what prosecution must prove to secure conviction of accused

CRIMINAL PROCEDURE – proof of crime – three ways of proving of a crime are eye witnesses, confessional statements and circumstantial evidence – where no eye witness prosecution may take recourse to confessional statements and circumstantial evidence outside the confession to establish the guilt of the accused

CRIMINAL PROCEDURE – confessional statements – when court can convict an accused person on his confession alone – when it is unequivocal and true corroborative evidence outside confession not required – retraction of during trial immaterial – court can act on it to convict accused as same cannot be lightly made by an accused person against his own interest unless the confession is true

CRIMINAL PROCEDURE – confessional statements – required to be voluntary in order to be admissible

CRIMINAL PROCEDURE – confessional statements – desirable to test its truth against consistency with facts outside the confession – the six tests of truth of confessional statements enumerated

CRIMINAL PROCEDURE – trial-within-trial – contingent on challenging the voluntariness of a confession otherwise it is of no moment – the proper time to challenge voluntariness of confessional so as to ignite and conduct trial-within-trial process is when confessional statements is tendered – belated to raise objection at the defence stage of the proceedings after the prosecution has closed it case

CRIMINAL PROCEDURE – concurrent findings of lower courts – when Supreme Court may interfere – when the appellant has shown the grounds of convicting him as perverse or unsupported by evidence or when a miscarriage of justice has been thereby occasioned

EVIDENCE – Circumstantial evidence – requirements that it must meet before court can act on it to found conviction of an accused – it must possess the quality of being direct, positive, and compelling and irresistibly pointing to no other conclusion than the conclusion of the accused person’s participation in the perpetration of the crime alleged

EVIDENCE – witnesses – failure of prosecution to call a particular witness – not fatal to prosecution’s case – prosecution’s duty is to produce evidence necessary to establish its case

Précis

Foreword: The instant appeal SC. 203/2010 is of the same pedigree with SC. 204/2010, in that both appeals emanated from a joint trial of the appellant herein and one Ekpo Obongha Mbang, his co-conspirator accused in SC. 204/2010. Hence the issues for determination, briefs of argument, and the manner, in which the apex court disposed of both appeals &c., are selfsame.

The accused person/appellant and his co-accused were convicted and sentenced to death by the High Court for murder of one Mary Obongha Inah contrary to Section 319(1) of the Criminal Code, Laws of River State. Accused person/appellant pleaded not guilty to the charge at his arraignment.

The case of the prosecution us that the appellant and his co-accused shared with the deceased the sum of N10, 000 stolen by the deceased from her mother’s home, as the deceased’s mother alleged in her statement to the trial court. As a design to cover up their inglorious act, the appellant and his co-accused murdered the deceased by piercing her throat with a dagger on the neck. They then buried her remains in a shallow grave in an uncompleted building. All these transpired in the night.

The prosecution called six (6) witnesses and tended exhibits, including accused/appellant’s damning confessional statement (Exhibit G5) to prove the charge preferred against the accused (and his co-accused) each of who testified in own defence and called no witness. The confessional statement of accused/appellant gave such a detailed, vivid and graphic account of how the gruesome murder was enacted that the apex court was latter to adjudge that none other than the appellant himself as a participes criminis can by any means capable of happening or existing have the idea for the bloody details in Exhibit G5 to the degree contained therein. It is notable that the defence raised no objection to the admissibility of the confessional statement at the time it was tendered by the prosecution. It was during the trial, after the prosecution had closed its case, that the appellant, under the pretext of that the said confessional statement was extracted from him involuntarily, purported to retract same. However, apart from the confessional statement of the accused, the trial court found a plethora of circumstantial facts outside the confession tending to prove the truth of the confession and, on the basis of a combination of the confessional statement and circumstantial evidence, the trial court found both the accused/appellant and his co-accused guilty of murder and sentenced them to death by hanging.

The appeal of the appellant to the Court of Appeal against his conviction and sentence by the High Court was dismissed.

The appellant appealed further to the Supreme Court. At the Supreme Court the appellant claimed that the confessional statement ascribed to him was not made by him voluntarily, having been threatened by the Police Investigating Officer (IPO) to speak the truth and forcibly compelled to append his signature to the confessional staement. He also postulated that corroborative evidence outside the confession did not exist to put its truth to the test. The appellant’s counsel also contended that since the appellant retracted his confessional statement in the course of the trial proceedings, the confession was as a result rendered irrelevant and devoid of every weight or evidential value on which a court act to found the conviction of an accused, and consequently that the trial court was wrong in law to weigh, measure or ascribe any probative value to it as to make it count in finding the accused guilty of the offence alleged. Another contested question was the effect of the prosecution’s failure or omission to call the cyclist who conveyed the appellant, his co-accused and the deceased to the scene of the crime. In his summation, the appellant submitted that the prosecution had failed to prove its case beyond reasonable doubt and urged the apex court to uphold his appeal.

The Respondent, on his part, contended the appellant’s confessional statement was voluntarily made by the appellant and urged the apex court to reject the appellant’s assertion to the contrary. He said that in any event the appellant’s objection was belated and an after-thought not having been made at the appropriate time so as to put in motion the trial-within-trial process and that appellant’s retraction of the statement was for that reason of no materiality. He said ample evidence in the nature of proofed facts exists outside the confessional statements that are consistent with the confessions, and that the Court of appeal was right in law to have affirmed the trial court’s conviction of the appellant on the basis of it. He urged the apex court not to interfere with the concurrent findings of fact of the lower courts, and more so as appellant has not shown that same is perverse, unsupported by evidence or occasioned a miscarriage of justice. Respondent’s counsel finally urged the Supreme Court to dismiss appellant’s appeal and affirm the concurrent findings of the lower courts.

ISSUES [as formulated by the appellant and adopted by the Supreme Court]:

1. Whether from the circumstances of this case, the alleged confessional statements of the appellant – Exhibits G, G1 – G5 and especially exhibits G5 upon which the appellant was convicted and sentenced were voluntarily made and rightly admitted in evidence.

2. Assuming (without conceding) that the alleged confessional statements of the appellant were voluntarily made and rightly admitted in evidence, whether the trial court was right to have convicted the appellants on the strength of the said confessional statements, especially Exhibit G5 without putting into consideration the strength of Exhibits G, G1 – G4 which are other confessional statements allegedly made by the appellant and in the absence of any other independent corroborative evidence.

HELD, dismissing the appeal,

1. There can be no doubt that in criminal cases such as in the instant case the onus is on the prosecution to establish the guilt of the accused beyond reasonable doubt implying that unless the prosecution has discharged that onus it is not entitled to succeed. See Mandillas & Karaberies Ltd. V. Inspector general of police (1958) 3 F.S.C. 20. This principle agrees with the proposition of the law that one who asserts a disputed fact must prove it. There is no onus on the accused to establish his innocence. See Ogbewe V. Inspector-General of police (1958) WNLR 17. This burden on the prosecution does not shift as it rests squarely on the prosecution throughout. There is no onus on the accused but where the charge imports a presumption of guilty intent as exemplified in the case of being in recent possession of stolen property the burden on the accused is discharged on the balance of probabilities; that is, such proof rests upon facts peculiarly within he accused own knowledge. See Woolmington V. D.P.P (1935) A.C.462, 25 CR.APP.R>72 per lord Sankey and R.V. Adamu (1944) 10 WACA 161.

2. What seems to have emerged from the foregoing scenarios is that given the absence of any eye-witnesses to the crime in this case that is to say being one of the settled three ways of proving of a crime, the respondent has fallen back on the appellant’s confession alone and other circumstantial evidence outside the confession to establish the guilt of the appellant and rightly so on decided authorities. See Emeka V. The State (2001) 14 NWLR (Pt. 734) 666 at 683 G-H and Oka V. The State (1975) 9/11) Sc. 17.

3. In case of murder as here it is settled law that the prosecution is required to established as in the case of Kada V. The State (1991) 11/12 SC. 1 the following factors/ingredients:

i. The death of the deceased.

ii. That the voluntary act or omission of accused caused the death of the deceased.

iii. That the accused act resulted in the death of the deceased having been done with the intention of causing death or grievous bodily harm to the deceased.

iv. That the accused knew that death is the probable and natural consequences of his act or omission.

By Kada’s case it is settled that for the prosecution to succeed in a case as the instant one it must discharge the onus on it by proving the case beyond reasonable doubt based upon the foregoing factors which must co-exist.

4. An accused person can be convicted on his confession alone provided it is unequivocal as to the truth of the confession and this is so even without any corroborative evidence outside the confession not even where as here it is retracted. This rationale if founded and supported also by Akpa V. The state (2008) NWLR (pt. 1006) 72 at 100- 101. Therefore where a confession as a fact is unequivocal and true; I see no reason why a court cannot act on it as clearly it cannot be lightly made by an accused person against his interest unless the confession is true. See: Bature V. The State (1994) 1 NWLR (pt.320) 207.

5. For a voluntary confession to be admissible it is required to be voluntary. See R.V. Itule (1961) All NLR 462 at 465 per Brett Ag. C.J.F in this regard he said:

“A confession does not become inadmissible merely because the accused person denied having made it and in this respect a confession contained in a statement made to police by a person under arrest is not treated differently from any other confessions”.

6. For a confession to be relevant and so admissible it must be voluntarily made as the weight attached to a confession is unequivocal where the confession is voluntary and true. In the instant case the appellant has made Exhibit as although he has claimed he signed it by force. The point must be made that it is as latte as at the defence stage i.e. while testifying in his defence that he raised the question denying the confession as per exhibit G5.

7. On the backdrop of whether exhibit G has been voluntarily made vis-à-vis its retraction later on, the question that immediately springs to the mind is whether or not the appellant’s confession as per Exhibit G5 has been tested against the principles enunciated in Dawa v. the state (1980) 8/11 SC.236 at 267 – 268 (infra). The lower court having done so has rightly found that Exhibit G5 having been voluntarily made is admissible evidence against the appellant and I agree.

8. In the circumstances of the appellants challenge of the voluntariness of Exhibits G5 by force that a trial-within-trial ought to have been conducted to determine the admissibility of Exhibit G5; and that having failed to do so has made exhibit G5 inadmissible evidence against him and fatal to rely on it to convict him. To find these arguments in favour of the appellant will amount to standing the truth of this case on its head.

9. It is clear as conceded by the appellant and also as found by the lower courts that the process of trial-within-trial is contingent on challenging the voluntariness of a confession otherwise it is of no moment. As a matter of fact the tendering of exhibit G5 has not been challenged at the trial in the proper manner and time so as to ignite that process and besides the appropriate time to conduct a trial-within-trial as I have said is at the tendering of the confessional statements that is as per exhibits G, G1 – G5. The whole essence of resorting to the said process is to test the admissibility in evidence of a confession. So as can be seen here it is belated to have recourse to the process of trial-within-trial at the defence stage of the proceedings i.e. after the prosecution has closed it case at which stage the prosecution cannot reopen its case. It is therefore proper to do so at the point of tendering the statement, invariably during the prosecution’s case and not when the defence has opened or as in this case to be precise at time the appellant has commenced to testify in his defence. At that stage it is belated to raise the issue. See Nwachukwu V. The State (supra), Okaroh v. The State (1998) 3 NWLR (pt. 81) 241, Queen v. Eguabor (1962) 1 SCNLR 409 and Akpa v. the State (supra).

10. A trial within-trial as born out in the case of Nsofor v. The state (supra) is only resorted to in order to test the voluntariness of an accused’s confession where that has become an issue in the case. So also where as here the appellant has challenged exhibit G5 his confessional statement as not having been voluntarily made as he has otherwise been forced to sign exhibit G5. These issues are not properly raised during evidence in chief for the time. It cannot be said that the parties have, as it were, joined issues on the matter. What I am trying to say here is that a trial-within-trial as per Auta v. The State (supra) and Gbadamosi v. The State (supra) is simply the only process of determining the voluntariness or not and the same principle is applicable to the admissibility of the confession in the case of exhibit G5 in this matter. The objection to a confession is required to be raised at the tendering of the confessional statement. This is ordinarily so during presenting of the prosecution’s case at the main trial.

11. It is quite evident from the detailed, vivid and graphic account of the facts of the gruesome murder that none other than the appellant as a party in criminis can possibly do so vis-à-vis the gory details contained in Exhibit G5 as committing the crime in that manner. There can be no doubt in my mind that the appellant and his co-accused killed the deceased and that death is the probable consequence of their acts.

12. I think that in a case as the instant one in which the lower courts have made concurrent findings upon which an accused person has been rightly convicted and sentenced and has ultimately appealed the case to this court on the same grounds upon which the case has been contested in the two lower courts , that is, excepting any questions with grave consequences to the conviction, this court ought not to reopen the issue of the findings upon which the decision is founded unless and until the appellant has shown the grounds of convicting him as perverse or unsupported by evidence or even then has occasioned a miscarriage of justice. This court at this stage of the case cannot be expected to recommence the act of reviewing all over again questions of facts particularly. Most of the issues raised in this case hinge on issues of facts and mixed law and facts which the findings of both lower courts have clearly settled.

13. It is my conclusion that the two lower courts have applied the tests so eloquently discussed in Dawa v. State (supra) and that in considering the voluntariness of exhibit G5 and subsequent retraction they have raised and addressed the following questions:

I. Is there anything outside the confession to show that it is true?

II. Is it corroborated?

III. Are the relevant statements of facts made in it true as far as they can be tested?

IV. Was the prisoner one who had the opportunity of committing the murder?

V. Is his confession possible?

VI. Is it consistent with other facts which have been ascertained and hence been proved?

See: R.v. Sykes (1913) 8 CAR 233, approved by WACA in Kanu v. R. (1952/55) 14 WACA

14. Circumstantial facts and evidence are direct, positive, compelling and irresistibly pointing to no other conclusion than the conclusion of the appellant’s involvement in this crime. To my mind the confession being unequivocal and true as to every detail of the crime is voluntary as well as true and admissible in evidence and rightly acted on by the lower courts, as its retraction by the appellant is of no moment. Besides the confession is consistent with the facts outside the confessional statements.

15. The prosecution’s duty as a prosecutor is to produce evidence to prove its case and not failure to produce witnesses not necessary to establish its case. See: Musa Sadak & Anor. V. The State (1968) NMLR 208.

 

© Kodi Azuonye Esq. 2012