Picture this: In a stuffy, poorly-lit cell room there is a murder suspect sweating in gallons; on a rickety wooden chair. Leaning over him is Mr Officer with the bald head and bulgy eyes. Mr Suspect asks for a pen and paper and with a bloodied hand he writes the story he just told Mr Officer: that he indeed killed the victim *insert murder weapon and gorier details*. Mr Officer is just a Constable so when DPO gets back from a state function, the following conversation ensues:
DPO: Saka how far, that suspect don talk?
Mr Officer: EH Oga he don talk o, in fact he over talk sef. Shey you go read the statement make I go bring am?
DPO: Abeg I no want read anything, Shebi you don sign am?
Mr Officer: But Sir e be like say that na the correct proto…
DPO: Ha Saka you Sabi protocol pass me, I no sign leave me.
Mr Officer: Okay Sir! Shaun Sir!
Wow just like that, a confession? Oga lawyer mutters to himself, he finds his hands full with this client of his. What in the world is he to do? A confession, in black and white, oh my gawd, the case is finished! Well pardon my melodramatics, of course it is not over. If Oga lawyer is an effiwe like you he will challenge the confessional statement. When you are asked questions on this they usually want to know what procedure follows after the challenge of confessional statement. So Oga lawyer will probably attack that bloodied piece of paper in the following ways:
- The most obvious: undue pressure in line with Section 29 Evidence Act (a.k.a TIPO*), the blood on the paper, the haggard way his client must look. What follows? It is a question of law so court must conduct a trial within trial. Trial within trial is just as it sounds- a mini trial just for that confession statement to determine whether it was voluntarily mad or not. It is by force o! Once you question a confessional statement under Section 29 of the Evidence Act, next thing is a trial within trial.
- Let’s say our suspect says it wasn’t him that wrote down the statement or that the signature at the bottom of the paper is not his. What does the court do? Because it is a question of fact (i.e did he do it or did they not do it?), the court will admit it to evidence, but will seek other evidence to corroborate it. It’s just like if you and your sibling are fighting over who ruined your mummy’s dress. You people will be shouting and casting blames on each other. Your mum won’t stop listening to you guys totally but she’ll probably know who to believe if your other sibling was an eyewitness or your wicked house help saw you or your sibling do the act a.k.a corroborative evidence. Consider the following:
Mr Suspect says that’s not his signature
Mr Suspect says he never made any statement
Mr Suspect says the handwriting was forged or is not his
All these throw punches at the confession statement but they are not TIPO matters so the court’s reaction would be to admit it to evidence and look for corroborative evidence.
Consider these as well:
Mr Suspect says they didn’t give him food for 3 days and promised him Chinese if he would ‘confess’
Mr Suspect says they nearly killed him
Mr Suspect was sleeping on bare floor, they promised him one thin mattress if he ‘starts talking’
Mr Suspect says they promised to give him a chance to call his lawyer if he said he was guilty
All these are TIPO allegation so the court will have to do a trial within trial.
Notice in the above scenario that Saka insisted that his boss should follow protocol. The protocol he was refering to was for a superior police officer to counter sign a confession statement. Does this affect the admissibility of the confession statement? No o, at all. Except you are trying to say the statement was involuntarily made, So that we do trial within trial. But other than that, the statement is okay, superior officer or not.
Please carefully look at the scenario to know whether a trial within trial will ensue or whether the court will just admit and seek corroborative evidence.When answering questions regarding confessional statement, PLEASE NEVER mention either Musa Sadua or Section 14 & 15 Evidence Act**. A confession is a special type of evidence and Musa Sadua does not apply to it, it has its own special segment in the law viz: 29-32 EA.
*Threat, Inducement, Promise or Oppression [See Section 29 Evidence Act]
*Musa Sadua v. The State: This case used to be authority for admitting illegally/improperly obtained evidence, say, when a police officer searches a premises without warrant or without due course. The position of the law in that case was that the lack of procedure ought not to affect the admissibility of the evidence. That position has been adjusted by Section 14 and 15 of the Evidence Act. Section 14 believes such evidence should generally be admissible unless the court thinks it would be undesirable to do so (the law lists some things to consider in Section 15) Go check it out.
Next post is on drafting in civil litigation. Oh! Hope you’re enjoying the holidays. Merry Christmas and Happy New Year!!!