INTRODUCTION
More often than not, suspect (accused) persons that are arrested
make statements which are usually taken and recorded by a police
officer to be used in their prosecution, when an accused person
admitted the commission of the crimes he is suspecting of, that
statement is called ‘confessional statement’. See section 17
ADMINISTRATION OF CRIMINAL JUSTICE ACT, 2015. In the other
vain, confessional statement defined as an admission made at any
time by a person charged with a crime stating or suggesting by
inference that he committed that crime. It is an oral or written
acknowledgement of guilt often including details about the crime by
an accused person. See section 28 of the Evidence Act 2011 and
black’s law dictionary 8th edition 9p. 317
Confessional statement is one of the three ways or methods
prosecutor uses to establish crime of accused and discharge the
burden (onus) of proving beyond reasonable doubt, the other two
methods are ‘direct eye witness account and circumstantial
evidence’. See EMEKA V. STATE(2001)14 NWLR(PT. 734)(666..
Any confessional statement obtained ‘voluntarily’ not
contrary to section 29(2) of Evidence Act is relevant and
admissible. However there are six tests as elaborated. In the locus
classicos case of R.V. SKYES(1913)8 C.A:R. P233 which later on
affirmed by the West African Court of Appeal in the case of
KANU V. KING(1952/55) 14 WACA P.30.
The text are;
1, is there anything outside the confession to show that it is
true?
2, is it corroborated?
3, are the relevant statement made in it of facts ,true as far
as they can be tested?
4, was the accused person one who had the opportunity of
committing the crime?
5, is the confession possible?
6, is it consent with other fact which been ascertained and
proved?
From the foregoing, a voluntary, positive, clear, direct and
unequivocal confessional statement is admissible. The instant
article is going to address the following questions:
i, what is a confessional statement is taken involuntarily.
ii, what if a voluntary confessional statement is inconsistence
with other evidence(eye witness and/or circumstantial
evidence).
iii, can a co-accused convict on the confessional
statement made by the other accuse
iv, is retracted confessional statement admissible.
v, must trial within trial be carried by court if confessional
statement’s voluntariness is questioned.
vi, must the police officer/ interpreter that take a
confessional statement be present to testify in court.
vii, can a prosecutor prove his case beyond reasonable doubt by
a confessional statement alone.
WHETHER OR NOT A CONFESSIONAL STATEMENT IS
ADMISSIBLE EVEN IF IS NOT VOLUNTARILY OBTAINED
Section 29(2)(a) of the Evidence Act provided the use of a
confessional statement made by defendant (accused) provided it was
not obtained ‘by oppression of the person who mad it’.(emphasis
supplied). Sub-section 5 of the instant section clearly explained
the word ‘oppression’ used in sub-section 2(a) as “torture, inhuman
or degrading treatment and the used of threat of violence whether
or not a mounting to torture.
In the FRN V. VICTOR OGALA &ANOR (unreported)
FCT/HC/6/13/GR/28/2009 Which was delivred on 2nd day of October
2012 . the prosecutor used both confessional statement of the
two accused (recorded separately) and the evidence of eye witness
to prove the two charges of arm robbery and conspiracy. But during
examination in chief in the course of trial within trial the
first accused admitted that; the police used iron to beat me…they
are four of them that beat me…” and the second accused stated that
“…he brought out a gun and he said he was going to shoot me …’
however the two accused were convicted and sentenced to 25 years
imprisonment with no option of fine, the court did not relied on
the said confessional statement. The presiding Judge per Hon.
Justice A.M Talba stated” upon a critical examination of the
evidence of the two accused persons I am of the view that the
statements of the accused persons Exhibits A and B here in
were obtained as a result of a ‘threat and torture’, therefore they
are not obtained ‘voluntarily’ the said statements were admitted
wrongly and accordingly Exhibits A and B are here by
expunged”(emphasis are mine).
In ASUQUO V. STATE (2018) LPELR-44052(CA) Per Oyewole JCA stated
thus “a confession however is only relevant if ‘freely and
voluntary’ made”(emphasis are mine).
The supreme Court also held in KAMILA V. STATE
(2018)LPELR-43603(SC) “I am mindful of the fact and it is even
settled law , that before a court convicts an accused person on his
confessional statement alone. It must ascertain whether such
confessional statement was voluntarily made…” Per SANUSI JSC
WHETHER OR NOT A CONFESSIONAL STATEMENT OBTAINED
VOLUNTARILY IS VALID IF IT IS INCONSISTENCE/CONTRADICTORY WITH
OTHER EVIDENCE
It is settled law that the duty of prosecutor in every
criminal trial is to prove the charge beyond reasonable doubt see
DIBIE V. THE STATE(2007)9NWLR(Pt1038) 30, and it is crystal clear
that wherever inconsistent/contradictory evidence use by
prosecution brings doubt and the doubt shall be in favour of the
accused.
The Supreme Court in EDUN & ANOR V.FRN (2019) LPELR 46947
(SC)Per Eko JSC held “… this court made it clear that the
prosecution would have failed to prove the guilt of the accused
person beyond reasonable doubt if they put before the court two
versions of the same incident or transaction”.
WHETHER OR NOT A CONFESSIONAL STATEMENT OF CO-ACCUSED IS
VALID AND EFFECTIVE TO CONVICT OTHER ACCUSED
Section 29(4) of the Evidence Act provides ”Where more persons
than one are charged jointly with an offence and a confession made
by one of such persons in the presence of one or more of the other
persons so charged is given in evidence, the court shall not take
such statement into consideration as against any of such other
persons in whose presence it was made unless he adopted the said
statement by words or conduct”.
In ISHOR V. STATE(2017)LPELR-440419CA) held inter alia “
The confession of a co-accused person can not be used to convict an
accused person unless he adopts it expressly or by implication’ Per
Ekanem JCA.
From the above authorities it was explained clearly that one can
only be convicted on confession he made himself or adopted the
statement made by his co-accused by words or
implication(conduct).
WHETHER OR NOT A RETRACTED CONFESSIONAL STATEMENT IS
ADMISSIBLE NOTWITHSTANDING
The term ‘retraction’ means the act of taking or drawing back;
the act of recanting or drawing of something e.g statement see
Black’s Law Dictionary 9th Edition 2009 at 1431.
Confessional statement are often retracted on ground of not
voluntarily taken, not properly recorded or not the accused
statement at all etc.
During trial, an accused person who desires to retract
his statement is bound with a duty to establish that his
confessional statement can’t be true or correct by showing any of
the following;
i, that he did not in fact make any such statement as
presented,
ii, that he was not correctly recorded,
iii,that he was unsettled mind at the time he made the
statement,
iv that he was induced to make the statement. See OSETOLA V. THE
STATE(2012)6 CSNJ 329 at 351.
Where an accused at the earliest opportunity denies having
made the statement may lead weight to his denial see AKPAN V.
STATE (1992)LPELR-1153 SC.
Accused who failed to establish any of the above principles his
statement is bound to be admissible despite the retraction.
In ESSIEN V. STATE (2018)LPELR 44035(CA) court of appeal held Per
Saulawa “indeed, the law is trite that retraction of confessional
statement does not automatically vitiate its’ admissibility as a
voluntary statement. The basic and fundamental requirement is that
ones a statement is prove to have been voluntarily made, it
is direct, unequivocal and clear admission by the accused that he
has committed the offence, is sufficient to sustain a
conviction. Afortiori, the fact that such confessional statement is
subsequently retracted by the accused in course of the trial
notwithstanding”.
Supreme court also in the of KAMILA V. STATE (supra) Muhammad
JSC canvassed that”… accused who disputes his confessional
statement may be still be convicted of the offence(s) which he is
charged if evidence abide outside the disputed confessional
statement.
WHETHER A TRIAL WITHIN TRIAL MUST CONDUCTED TO TESTIFY
THE VOLUNTARINESS OF A CONFESSIONAL STATEMENT
A trial within trial also name as ‘mini trial’ is a sub-trial
make by trial court while stay the proceeding of main trial in
order to assess the voluntariness of ta confessional statement in
question.
In ONUEWSII V. STATE (2018)LPELR-45010(AC) court of appeal
explains that “A trial within trial is done to prove the
voluntariness or otherwise of the making of the confessional
statement”. Per Awotoye JCA
Sanusi JSC stated the position of the law that; “The law is
trite and well settled too, that where there is dispute on whether
or not an accused person made the statement sought to be tendered
made same voluntarily, it is the duty of the trial Court to try the
voluntariness of such statement by conducting, a “trial within
trial” otherwise known as ‘mini trial”. OLAOYE V. STATE (2018)
LPELR-43601(SC)
WHETHER OR NOT THE POLICE OFFICER THAT RECORDED A
CONFESSIONAL STATEMENT MUST PRESENT TO TESTIFY IN
COURT
As it is oftentimes happen a police officer who wrote down a
statement of the an accused appear before court to testify for
cross-examination or other matter as court may deem fit for the
interest of justice but the question at hand is ‘can the statement
of an accused be admitted as evidence against him without
the police officer who recorded wrote or interpreted it come
and testify it before court.
I relay on section 49 of the evidence act which explained that
“Notwithstanding anything contained in this Act or any other law
but subject to this section, where in the course of any criminal
trial, the court is satisfied that for any sufficient reason, the
attendance of the investigating police officer cannot be
procured;
the written and signed statement of such officer may be admitted
in evidence by the
court if –
a. the defence does not object to the statement being admitted;
and
b. the court consents to the admission of the statement”.
In SEMAKA v. STATE (2018) LPELR-44001(CA) the learned counsel
for the appellants argued that” where an interpreter has been used
in the recording of a statement, the statement is inadmissible
unless the person who interpreted it is called as a with ness
as well as the person who wrote down the statement’ he relied
on OLAKEKAN V. STATE (2007)18 NWLR9pt. 746) 293. But the learned
counsel for the appellant did not raise the exceptional
circumstances as explained by section 49 (a&b) of the Evidence
Act. The Supeme Court in the case of FAMUYUIWA V. STATE(2017)
LPELR-43836(SC) affirmed the decision of the court of appeal in
which also affirmed the decision of the trial court, in which the
trial court admitted and convicted the accused on statement which
the police officer who wrote it down was not able to be procured in
order to testify it in the trial court.
In the FAMIYIWA case the police officer was transfered to
another state police command while handling the case and when the
need of the appearance of the confessional writer arise in the
trial court it was testified that the said police
officer was involved in an accident and consequently sustained
injuries on both of his arms. His D.P.O contended that he
did’t know the village he was taken for treatment.
In order to testify, the in ability for the prosecution
to procured the said police officer for testification a
latter was wrote to addressed the learned trial judge which was
signed by one assistant commissioner of police (the head of the
absent officer’s department ) which was consistent with section 50
of the evidence act which provided that “In the case of a
person employed in the public service of the Federation or of a
State who is required to give evidence for any purpose connected
with a judicial proceeding, it shall be sufficient to account for
his non – attendance at the hearing of the said judicial proceeding
if there is produced to the court either a Federal or State
Gazette, telegram,
an e – mail or letter purporting to emanate from the head of his
department, sufficiently explaining to the satisfaction of the
court his apparent default”.
From the foregoing authorities one may reached to conclude that
no confessional statement taken by police officer is admissible
without the officer appeared in court to be testified, except if if
his inability was satisfied with section 49 and 50 of the Avidence
Act
WHETHER OR NOT COURT CAN SORELY RELY ON CONFESSIONAL
STATEMENT ALONE TO MAKE A CONVICTION.
In the case of OLAOYE V. STATE (supra) per Peter Odili JSC
stated that “…once a confessional statement is deemed to be
positive, direct and unequivocal such a statement would be admitted
since it has been voluntarily made and when that is the case such a
‘confessional statement alone as evidence can sustain a conviction.
In such a case also there is no need for corroboration”. (emphasis
is mine) For the sake of corroboration, court
of appeal in the case of SULE v. STATE (2018) LPELR-46110(CA) per
Barka also stated “It is the position of the law that a
confessional statement which is direct and positive is good enough
to sustain a conviction even without corroboration”.
CONCLUSION
Confessional statement, as one of the three ways to prove
conviction in any criminal trial, necessited law to have very
defined and reprehensive principles and rules to the effect
of its’ admission in Nigerian courts. Our law is very ardent to
this genuine issue but need of emphasis should not however, be shun
aside. The principles need more than mere theoretical effect,
practical application of those principles ought to be clearly
recognized in our magistrates and area courts up to the Apex Court.
It is a seamless fact that the realization of those principles
would prevent any police officer or any other security agents from
torturing, in human or degrading treatment or forcing any suspect
(accused person) for the sake of taking statement, because of
assurance he had in mind himself that any statement obtained in
such manner are of no moment viz has no evidential value in
the eyes of the law.
ALKASIM ABUBAKAR (A.A.M.G),A student Of Law, Faculty Of
Law ABU, zaria-Kaduna,