A Puzzle from the Past
Last week, I was studying a criminal case file, in which a policeman (XY) was convicted and sentenced to life imprisonment, for killing a man at a checkpoint, and injuring another. XY claimed that he was framed to take the fall, by his fellow policemen who were on the beat with him, because he was a stranger to them, having just been transferred to join them a couple of days before the incident, and because they found Dollars in the vehicle in which the deceased was one of the passengers, which they wanted to keep for themselves. His examination-in-chief and the evidence tendered during the trial, contradicted XY’s statement which he made at the police station (also tendered as an exhibit at the trial). XY claimed that his initial statement was obtained under duress, that he was beaten and forced to make it.
As I continued to peruse the file, I had a nagging feeling that, the other policemen may not be as innocent as they professed to be. I remember as a new wig in the early 1990s, handling a criminal matter with my senior, in which I was able to prove that the Police had framed my client, the accused person, because he was proving to be an obstacle to some illegal money making scam they had going on; my client was eventually, discharged and acquitted.
Questions As an avid watcher of the Crime Channel on DSTV, I sort of fancy myself as a ‘mini investigator’, and so, many questions crossed my mind about this police investigation like, did the eyewitness accounts match the evidence? Were any bullets retrieved from the body of the deceased or shell casings from the scene of the accident? Were there independent eyewitness accounts aside from those of the people involved in the incident? Was it true as XY had claimed, that the passengers in the car were criminals as he suspected them to be, who had succeeded in bribing his colleagues with their Dollars? Why was it only the weapon that purportedly belonged to XY, that was taken for ballistic examination? Why were the weapons of all the other policemen present on the scene, not taken for the same expert tests? What did the autopsy report say? I also wondered whether XY had had adequate legal representation, and if the prosecution had proved its case beyond reasonable doubt.
Trial-within-trial In XY’s statement (which he claimed was given involuntarily), even though he didn’t confess to killing the deceased, he confessed to firing his weapon twice, once in the air, and once to nowhere specific. He also exonerated his colleagues, saying they ran away when they heard gunshots, and then contradicted himself, saying that none of them fired their weapons, and subsequently, in the same statement, that he didn’t know whether they fired their weapons. It was the contention of the Prosecution that, it was the shot that XY fired, that killed the deceased and wounded a second person.
My dear Colleagues, shouldn’t XY’s counsel have objected to the admissibility of his statement based on the voluntariness or otherwise of it, and a trial-within-trial first held, before the main trial proceeded? Afterall, Section 28 of the Evidence Act 2004 (EA) (the law applicable at the time of the case), made confessions obtained under duress, irrelevant to criminal proceedings. However, such objection must be raised timeously, and cannot be raised subsequently by an accused person, while presenting his/her defence during the trial, to invoke a trial-within-trial - Obinah John v State 2013 LPELR-22197 CA, as XY attempted to do subsequently, during his examination-in-chief, when he stated that he made the statement under duress, having been beaten up mercilessly and forced to make it, and that he in fact, did not fire any shot the night of the incident.
Proof beyond reasonable doubt Section 138(1) of the EA provides that, proof of the commission of a crime, must be beyond reasonable doubt – Adekoya v State 2012 3SC Part 111 at 36, and when this is done, the burden of proving reasonable doubt shifts to the accused person (Section 138(3) EA). While the prosecution called four witnesses (I’m not saying that the requirement of proof beyond reasonable doubt was satisfied), I saw no real attempt on the part of XY’s counsel to satisfy the burden of proof of reasonable doubt. Only XY was called as a witness, to testify in his own defence. Not even a feeble attempt to bring in one character witness, to testify as to XY’s good character, which is relevant in criminal proceedings (Section 68 EA). XY also stated in his testimony, that he was attacked by the passengers accompanying the deceased, and he blacked out. When he came to, he was taken to the hospital by another policeman, for his injuries to be attended to. I wondered why, if his testimony was true, XY’s counsel didn’t call the Good Samaritan policeman, to testify on XY’s behalf.
In Miller v Minister of Pensions 1947 2 AELR 372 (a popular authority used in the UK and Nigeria), Lord Denning stated that proof beyond reasonable doubt, does not mean proof beyond all shadow of doubt or to the tilt. In State v Onyeukwu 2004 14 NWLR Part 813 at 340, the court held that, it was sufficient just to establish the guilt of the accused person by credible, cogent, reliable and believable evidence. None of the policemen testified to seeing XY shoot the victim. They all claimed to have heard a shot, and taken to their heels to take cover. It was the other occupants of the car in which the deceased was one of the occupants, that stated that it was XY who shot the deceased, and the bullet travelled through the deceased and hit another occupant of the car, injuring him. The person that claimed he was injured, did not submit any medical report, to substantiate the fact that he had suffered a gunshot wound, and was treated at the hospital. Neither was any police report of the gunshot injury, which I imagine, would have been required to get the gunshot wound treated in the hospital, presented as evidence to the court. XY claimed that, he had been asked to search the car the deceased was a passenger in, and he saw a weapon in the car.
Elements of Proof beyond reasonable doubt in a Murder Case
XY was charged for murder contrary to Section 319(1) of the Criminal Code Law of Lagos State 2003, to which he pleaded not guilty.
To prove the case beyond reasonable doubt, the Prosecution had to prove that 1) the deceased died 2) that the death of the deceased was caused by XY and 3) that the act of XY that caused the death of the deceased was intentional, with knowledge that death or grievous bodily harm would be the probable consequence of the act – Ogedengbe v State 2014 12 NWLR Part 1421 at 338.
The photos of the deceased’s corpse, admitted as exhibits, left no one in doubt that, the deceased had died, and the first element had been proven.
The second element, was however, not an open and shut case. The bullet(s) that killed the deceased, was never found, so no one could say conclusively, that it was the bullet from XY’s weapon that killed the deceased. There were at least four other policemen at the scene, with AK 47 rifles. Who is to say that it wasn’t one of the others, who fired the fatal shot? All the policemen including XY, testified to applying for and receiving 22 bullets. In XY’s initial statement, he said he fired two shots, while he denied firing any shot in court. The ballistics report certified that, there were 21 bullets in the gun purported to belong to XY, when it was brought to him for testing. There should have been 20 bullets and not 21 left, if two shots were fired, and 22, if indeed, XY didn’t fire at all. XY claimed that it was not his weapon, that was taken to ballistics. There was no proper evidence led by the Prosecution, to show that the weapon that was taken to ballistics, was actually the weapon that had been assigned to XY. The weapons of all the other armed policemen that were at the scene of the incident, were not taken for testing, to conclusively rule them out as the killers.
I also found it odd that, all the other policemen seemed to have copied each other’s statements almost word for word, from how they started the day, to the end. It was over- corroboration! Even the gospels in the Bible, are not word for word.
Fanciful Possibilities Were my doubts unreasonable doubts, or reasonable enough to show that the Prosecution did not satisfy the second element of proof, and therefore, could not have satisfied the third element? All in all, I wondered whether the Prosecution had satisfied the burden of proof beyond reasonable doubt, and whether XY’s counsel could have done a better job at defending him. In Miller v Minister of Pensions (Supra), Lord Denning went on to say that: “The law would fail to protect the community, if it admitted fanciful possibilities to deflect the course of justice, if the evidence is so strong as to leave only a remote possibility, which can be dismissed with one sentence”.
My dear Colleagues, what do you think? Are my fears simply ‘fanciful possibilities’ or are they enough to qualify as material contradictions, which should have been resolved in favour of XY? Were the eyewitness reports from only those who were involved in the incident, strong and reliable enough so “as to leave only a remote possibility” that XY didn’t commit the murder?
“I REMEMBER AS A NEW WIG IN THE EARLY 1990S, HANDLING A CRIMINAL MATTER WITH MY SENIOR, IN WHICH I WAS ABLE TO PROVE THAT THE POLICE HAD FRAMED MY CLIENT, THE ACCUSED PERSON....”