Admissibility of a Retracted Statement of an Accused Person
“RETRACTION OF A CONFESSIONAL STATEMENT, HAS NOTHING TO DO WITH ITS ADMISSIBILITY..... WHERE AN ACCUSED PERSON SAYS HE DID NOT MAKE THE CONFESSION, A TRIAL COURT IS ENTITLED TO ADMIT IT IN EVIDENCE, AND DECIDE AT THE CONCLUSION OF THE TRIAL, WHETHER OR NOT HE HAD MADE IT”
Facts
Sometime in 2002, the Appellant and three other accused persons, killed a certain Sunday Usue (deceased), severing his head and some body organs. When one of the accused persons was arrested with the human head, he informed the Police that four of them, including the Appellant, killed the deceased for money- making rituals. The headless body of the deceased was later found without a heart and genitals, at the River Benue Bank, Guma Local Government Area, Benue State. Three of the accused persons were consequently, arraigned before the High Court of Benue State, and charged with the offences of conspiracy and culpable homicide punishable with death.
During the trial, the Prosecution called four witnesses, including PW3, who recorded the statement made by the Appellant to the Police. The Prosecution sought to tender the Appellant’s statement through PW3, but the Appellant’s counsel objected on the ground that the statement was not made voluntarily. The trial court ordered trial-within-trial, and overruled the objection. In his defence, the Appellant testified that, as at March 2002, he was living at Lado in Cameroon and that he only returned to Nigeria in the year 2005, when he was arrested by the Police. The Appellant called a certain Isa Ajidokun (DW6) who testified that the Appellant stayed with him at Lado in Cameroon, but the trial court did not believe him. The court held that, the accused persons, including the Appellant, in their confessional statements all presented similar account of how they planned, killed and decapitated the deceased. They were, therefore, sentenced to death by hanging.
The Appellant’s appeal against the decision to the Court of Appeal was unsuccessful, leading to the further appeal to the Supreme Court.
Issues for Determination The Supreme Court considered the following issues for the determination:
(i) Whether the Court of Appeal was right to have affirmed the decision of the trial court admitting the extra judicial statements of the Appellant - Exhibit 2 - as evidence, and regarding same as confessional statements in spite of the retraction by the Appellant;
(ii) Whether the Court of Appeal was right to have affirmed the decision of the trial court, that the prosecution proved its case beyond reasonable doubt against the Appellant as to warrant his conviction for the offences charged, having regard to the totality of evidence before the Court.
Arguments In arguing the first issue, the Appellant’s counsel stated that, Exhibit 2 was not corroborated. He argued that, the admissibility of a confessional statement does not mean automatic ascription of weight or probative value to it, as it must pass the tests stated in R v SYKES (13) 18 Cr. App. 233. He cited the case of OGUNYE v STATE (1999) 5 NWLR (Pt. 604) 548 on the importance of determining the actual maker of the confessional statement when the issue is raised, and submitted that, confessional statements without corroboration should be taken with a pinch of salt. He also contended that, the Court of Appeal should have been more cautious since the Appellant denied the truth of several statements in Exhibit 2, and the Prosecution failed to discredit or contradict him. Further, he argued that, the courts cannot convict on speculation, however strong, and certain conditions must be in place, for any evidence to be considered corroborative of an admitted confessional statement - ORISA v STATE (2018) LPELR-43896 (SC). He stated that, none of the evidence of the Prosecution’s witnesses could be deemed to be corroborative of his alleged confessional statement and sufficient to secure a conviction, relying on the decision in AFOLABI v C.O.P (1961) SCNLR 307 in contending that Exhibit 2 is not a confessional statement, as the Appellant denied committing the offences alleged against him therein.
The Respondent, on the other hand, argued that the court can convict an accused person even upon a retracted confessional statement, if there are other independent corroborative evidence to give credence to the retracted confessional statement. The Respondent’s counsel cited EJINIMA v STATE (1991) LPELR-1067 (SC). He argued further that, Exhibit 2 was admitted after a trial–within–trial and that the decision of the trial court, which was not challenged on appeal, remains binding. He also argued that, the Appellant did not challenge other aspects of PW3’s evidence at trial. He stated that even if Exhibit 2 was expunged from the records, the unchallenged evidence of PW3 can ground the Appellant’s conviction. Citing OBINECHE & ORS v AKUSOBI & ORS (2010) LPELR-2178 (SC), counsel contended that the unchallenged evidence of PW3 corroborates the confession, and the trial court was thereby right, to rely on Exhibit 2 in convicting the Appellant.
On the second issue, the Appellant argued that, in respect of the offence of culpable homicide punishable with death, the lower courts ought to have considered all the defences raised by the Appellant, however illogical - C- DUCHECHI ORISA v STATE (2018) 11 NWLR (Pt. 1631) 453. Counsel posited that the trial court made allusions to a medical report (Exhibit 3) which is corroborated by Exhibit 2, and submitted that, an alleged confessional statement whose validity is in contention, cannot corroborate a medical report, especially when the medical doctor who issued the medical report is not called as a witness. He further argued that the decomposed body was not positively identified, since the person who identified it was not called as a witness, despite being a vital witness.
On the other hand, the Respondent submitted that, the facts in respect of the plans of the accused persons to kill the deceased, killing and decapitation of the deceased and the Appellant’s confessional statement, are all established and affirmed by the Court of Appeal. He contended that the defence of alibi relied on by the Appellant must be raised timeously and extra judicially, not during the defence at the trial. He argued that, the Appellant had not shown reasonable grounds to warrant overturning the concurrent findings of the lower courts.
Court’s Judgement and Rationale Determining the first issue, the learned Justices held that, although a free, voluntary, direct and positive confession if duly made and satisfactorily proved is sufficient to warrant conviction, a more abiding principle of law is that, it is better to find some evidence outside the confession, however slight, of circumstances that make it probable that the confession is true. The court relied on QUEEN v ITULE (1996) 2 SCNLR 183, R v SKYES (supra) amongst other cases. An objection to a confessional statement on the ground of involuntariness, is not the same thing as a retraction of same, on the ground that the statement was never made in the first place. Retraction of a confessional statement, has nothing to do with its admissibility. It stated that, when an Appellant enters the witness box and retracts his statement, he raises the issue as to the weight to be attached to the statement thereby. Thus, the law is settled that, where an accused person says he did not make the confession, a trial court is entitled to admit it in evidence, and decide at the conclusion of the trial, whether or not he had made it. But, where he agrees that he made the confession, but that he was forced or tortured to make it, he attacks the admissibility and so, trial-within-trial must be held, to determine its voluntariness.
In this case, the trial court took the right step by conducting a trial-within-trial to determine the voluntariness of Exhibit 2, which was found to be purely a confessional statement, sufficient to support a conviction, though the court still relied on other corroborative evidence before it. Confessional statements of the accused persons only binds the makers, and each of the three confessional statements linked the accused persons with the agreement to kill and the unlawful killing of Sunday Usue.
On the second issue, it was held that once the defence of alibi is properly raised by an accused person during investigation, it is the duty of the Police to investigate the defence, and for the prosecution to disprove same. Nonetheless, for a defence of alibi to be worthy of investigation, it must be precise and specific in terms of the place that the accused was and the person(s) he was with, and possibly what he was doing there at the material time - OCHEMAJE v STATE (2008) 15 NWLR (Pt. 1109) 57. The Appellant here did not inform the Police at the earliest opportunity, that he was elsewhere when the deceased was killed, to enable the Police investigate the said alibi, and the trial court did not believe the Appellant and DW6 that the Appellant was at Lado, Cameroon when the deceased was killed. It follows that, the defence of alibi was not properly raised by the Appellant and the suggestion about failure of the lower courts to consider other defences raised by the Appellant, was without merit.
Further, on proof of the crime by the Prosecution, the Supreme Court held that, failure to call the brother of the deceased who identified the body and the medical doctor who issued Exhibit 3, was not fatal to the Prosecution’s case, as the identity of the body examined by the medical doctor was not in doubt. Where the totality of the Prosecution’s evidence showed unmistakably that the body on whom a doctor performed a post-mortem examination was that of the deceased, a separate witness, though desirable, is not a necessity - ENEWOH v STATE (1990) 4 NWLR (Pt. 145) 469. Where the identity of the deceased can be inferred from the circumstances of the case, then direct evidence is not essential. In this case, there was overwhelming evidence indicating that the headless body recovered from the River bank and properly identified before taken for post mortem examination, was that of the deceased, and the cause of death as stated in the medical report, was consistent with the Appellant’s confession.
Based on the foregoing, the Supreme Court affirmed the judgement of the Court of Appeal, including the conviction and death sentence.
Appeal Dismissed.
Representation Dr. Agada Elachi, Esq. with Johnson Ochai, Esq. for the Appellant.
Eko Ejembi Eko, Esq. for the Respondent.
Reported by Optimum Publishers Limited (Publishers of the Nigerian Monthly Law Reports (NMLR))