A trial -within-trial is a mini trial conducted to find out if the accused person made his confessional statement voluntarily or otherwise .In other words ,it is a trial convened to test the voluntariness of a confession by suspending the main trial in order to ascertain the allegations of involuntariness by the defence,however ,all the rules of criminal proceedings apply to it. Importantly ,the prosecution still bears the burden to call evidence to prove beyond reasonable doubt that the accused made a voluntary confession.
A trial-within-trial is usually convened at the point were the Prosecution seeks to tender the confessional statement made by the accused person and objection as to voluntariness of such statment is raised by the accused or Counsel representing him/her.It should be noted that the court can on its own motion subject a piece of confessional evidence to prove beyond reasonable doubt that the accused did make a confessional statement voluntary .SEE Section 29(1)-(3) of the Evidence Act 2011.
Before delving into the salient principles of trial -within-trial ,it is apt to consider the legal status of a confessional statement under the Nigerian Law:-
*First,a confessional statement when tendered and admitted in court forms part of the evidence of the prosecution-in proof of the charge against the accused.
*Secondly ,When a confession is free ,voluntary ,direct ,positive and unequivocal about the commission of an offence ,the accused person can be convicted based on same alone. See the case of Joseph Idowu Vs State (2000)12NWLR (pt .680)48 and Alarape Vs. State(2001)5NWLR (pt.705)79. In the case of Lawrence Oguno Vs. State (2013) Vol .224 LRCN (pt.2)214 at 244,paras F-P ,the Supreme Court ,per Alagoe ,JSC succinctly stated thus:-
" One of the test in ascertainment of voluntariness of
a confessional statement is whether there is anything
outside it to show that it was true"
The Court in Silas Ikpo & Anor Vs State(1995) further laid down six factors for determining the veracity or otherwise of of a confessional statement thus;-
1.Whether there is anything outside the confession to show that it is true.
2.Whether the statement is corroborated.
3. Whether the statement of fact made in the confessional statement can be tested as true.
4.Whether the accused person had opportunity of committing the offence charged.
5.Whether the confession of the accused person was possible .
6.Whether the confession was consistent with other facts which had been ascertained and proved in the matter.
It is worthy of note that a confessional statement that has not been read over and confirmed before a superior police officer will not ipso facto cease to be effective or be rendered inadmissible .Such a confirmation simply makes proof of the voluntariness of a confessional statement easier and no more.
SALIENT LEGAL PRINCIPLES OF TRIAL-WITHIN-TRIAL'IN CRIMINAL PROCEEDINGS IN NIGERIA.
(1) Admissibility of confessional statement must be raised timeously i.e as soon as it is tendered.See the case of Obinah John Vs State(2013)LPELR -22197(CA).
(2)When raising objections to confessional statement ,the accused must be specific in tenor or language of his objection .See the case of Sanni Abdullahi Vs State (2013) Vol .223 LRCN (pt.2)151.
(3) The duty to prove voluntariness of confessional statement lies solely on the prosecution .See the case of Kayode Babrinde Vs. state (2014) All FWLR (pt 717)606 at 672 ,paras D-G
(4)A trial-within-trial must only commence on one ground, which is the voluntariness or otherwise of the confessional statement of the accused.
(5) A trial-within-trial will not be conducted in any of the following cases;
a. When the accused alleges that his written statement was altered by the police
b.When the accused alleges that the statement was not properly or accurately recorded .
c.Where the statement is not signed (Accused is not challenging voluntariness but evidential value)
(6) Confessional statement is inadmissible if same was obtained from a "question and answer " session with the police.See the case of Jimoh Salawu Vs State(2009) LPELR -8867(CA)
(7) Where accused contends that he did not make confessional statement at all,trial-within-trial should not be conducted as same is a retraction .
(8) Trial -within-trial can not be conducted in the absence of an accused person.See the case of Lateef Vs FRN (2010)All FWLR (pt.539)1171 at 1190
(9) When the accused person contends that his confessional statement was not read all over to him at the police station ,this does not warrant a trial-within-trial.See the case of Owie V State (1985) 1NWLR (pt.3)470.
(10)When the accused contends that confessional statement was written for him to copy, trial-within-trial is uncalled for. See the case of Augustine Ibeme Vs State (2013) 10 NWLR (pt.1362)333.
(11)Only a maker of a confessional statement or his counsel can raise objection to its voluntariness .See the case of FRN Vs Babalola(2015)ALL FWLR (pt.785) 227.
(12)Objection to the Voluntariness of a confessional statement cannot be raised by the accused during his defence to invoke trial-within-trial.See the case of Obinah John Vs State(2013)LPELR-22197(CA)
(13)Where the accused person is merely disputing the correctness of the content of the confessional statement,trial-within-trial is not necessary.In this case the statement in issue should be admitted and marked as an Exhibit by the court .The accused person or counsel had an opportunity to revisit the statement and discredit the incorrect content during his defence.See the case of Nnabo Vs State (1992) 2NWLR (pt.226)716.
(14) Allegation by the accused that statement was not read to him in open court does not call for trial-within-trial.See the case of Anthony Nwachukwu Vs State (2004) ALL FWLR (pt 206) 526
(15) A later statement made by the accused person at the police station confirming that the earlier statement was voluntary does not dispense with trial-within-trial on the earlier statement.See the case of State Vs. Ajayi(1997)5NWLR (pt.505)382
(16) That the accused person was in court during trial-within-trial does not make him incompetent to testify in his defence in the same trial .See the case of State Vs Ajayi (Supra) .
(17) Allegation by the accused that he was not "himself " when he made the confessional statement is not a ground for trial -within-trial.See the case of Lt Commander Steve Obisi Vs. Chief of Army Staff (2004) All FWLR .(pt.215) 193.
(18) Failure to cross-examine an accused person during trial-withun-trial is an admission that the statement was not freely and voluntarily made.See the case of Adelarin Lateef Vs.FRN (2010)All FWLR (pt.539)1171.
(19)A trial-within-trial can not be terminated half way.A Judgement based on incomplete evidence cannot stand .See the case of State Vs. Gwangwan(2015) 13 NWLR (pt.1477)600
(20) Objection to admisibilty of confessional statement for reason of involuntariness cannot be raised at the address stage.NOTE: Confessional statement admitted and marked as exhibit can still be objected or attacked by counsel for the accused person at address stage but not for the purpose of igniting a trial-within-trial.
(21) Confessional statement need not be tendered through the IPO,same can be tendered through any witness for the Prosecution I.e any other officer who witness when the accused made his statement .See the case of Lawrence Oguno Vs.State(2013)15 NWLR (pt.1376)1
(22) Once an accused person as objected to a confessional statement ,it is wrong for the Judge to admit same "provisionally" or "conditionally" to be determined at final Judgment.NOTE: In Civil cases this procedure is perfectly in order.
(23)The Supreme Court has condemned the word "obtained" in relation to confessional statements .See the case of State Vs. Salawu (2011)8 NWLR (pt.1279) 580.
(24) Objection to the admissibility of confessional statement can not be raised for the first time on appeal.See the case of Oseni Vs. State (2012) 49 NSC QR 1190
................ (to be contd)
Umoru Theophilus Iko-Ojo is a Lagos based Legal Practitioner .
No comments:
Post a Comment