VITIATING FACTORS OF A CONFESSIONAL STATEMENT
·
INVOLVEMENT OF COURT IN
CHALLENGING CONFESSIONAL STATEMENT
·
CONFESSIONAL STATEMENT AGAINST A
CO-ACCUSED
·
RETRACTION OF CONFESSIONAL
STATEMENT.
VITIATING FACTORS OF CONFESSIONAL
STATEMENT
By
virtue of Section 29(2) Evidence Act
provides for vitiating factor that affects confessional statement, it provides thus;
If
in any proceeding where the prosecution proposes to give in evidence confession
made by the defendant, it is represented to the court that the confession was
or may have been obtained;
a) By
oppression of the person who made it or;
b) In
consequence of anything said or done which was likely in the circumstance
existing at the time, to render unreliable any confession which might be made
by him in such consequence, the court shall not allow the confession to be
given in evidence against him except in so far as the prosecution proves to the
court beyond reasonable doubt that the confession (notwithstanding that it may
be true) was not obtained in a manner contrary to the provisions of this
section.
The act itself went
further to define ‘OPPRESSION’ to mean ; torture, inhuman or degrading treatment
and the use of threat of violence whether or not amounting to torture. SEE
SECTION 29(5).
In
R V PRIESTLY: The word OPPRESSION was defined to mean something that tends to
sap or has sapped the free will which must exist before a confession is
voluntary.
Although, Section 31 of the Evidence Act 2011 went further to state when a
confession that was considered relevant cannot be vitiated by the way it was
obtained. It hence clarifies that a confession that is relevant will not become
irrelevant by the fact that it was made under a promise of secrecy, or in
consequence of a deception practiced on the defendant for the purpose of
obtaining it, or when he was drunk, or because it was made in answer to
questions which he need not have answered, or because he was not warned that he
was not bound to make such statement and that evidence of it might be given.
This above provision was affirmed
in the case of IGBINOVIA V STATE
(the case was discussed in PART 1) the supreme court opined that confessional
statement cannot become inadmissible only for reason of the concealment of the
status of the disguised Policeman who was fed with such valuable information
INVOLVMENT
OF COURT IN CHALLENGING CONFESSIONAL STATEMENT
The rule
is that when a Counsel fails to raise the objection when a confessional statement
is tendered, the accused can’t raise it again. The 2011 Evidence Act makes the
Learned Trial Judge to be more actively involved in the admission of a statement
from the very beginning. The provision of Section 29(2)(b);
In
consequence of anything said or done which was likely in the circumstance
existing at the time, to render unreliable any confession which might be made
by him in such consequence, the court
shall not allow the confession to be given in evidence against him except in so
far as the prosecution proves to the court beyond reasonable doubt that the
confession (notwithstanding that it may be true) was not obtained in a manner
contrary to the provisions of this section.
Furthermore, the provision of
Section 29(3) EVIDENCE ACT:
In
any proceeding where the prosecution proposes to give in evidence a confession
made by a defendant, the court may of its own motion require the prosecution,
as a condition of allowing it to do so to prove that the confession was not
obtained as mentioned in either subsection (2)(a)(b) of this section.
CONFESSIONAL STATEMENT
AGAINST CO-ACCUSED
GENERAL RULE: By virtue of Section 27 (2)
EVIDENCE ACT it provides that confession, if voluntary are deemed to be
relevant facts as against the persons who make them only.
This provision
was affirmed in the case of OZAKI V
STATE were the court held that it is
an error in law to convict the accused on the statement of another accused to
the police. It is a travesty of justice and gross violation of all known rules
of evidence. Same thing was affirmed in BENJAMIN OYAKHIRE V STATE LER (2006) SC 188/2000 were the court held that the settled
principle is that a statement made by an accused person to the police may
amount to admission of the offence for which the he his charged and such
statement and the facts admitted therein are admissible only against the maker
of the stamen and NOT against a co-accused
EXCEPTION:
COMMISSIONER
OF POLICE V UDE
It was held that an exception to
the rule that a confessional statement is not admissible against a co-accused
is where an accused person is confronted with confessional statement of another
co-accused that he participated in the commission of the offence and such
accused person fails to deny the allegation either before or at the trial. In such
circumstance, by the non-denial of the allegation he is deemed in law to have
adopted by conduct , the contents of the confessional statement of the other
co-accused person.
BENJAMIN OYAKHIRE V STATE
The court held that were the
accused goes into the witness box and repeats on oath the content of his
statement to the police, they become evidence for all purposes, admissible in
law and can be acted upon by the court against a co-accused.
RETRACTION OF CONFESSIONAL STATEMENT
In SULE V SULE, where the accused denies
the confessional statement, this is called RETRACTION.
Retraction
of confessional statement was described in the case of DANIEL NSOFOR V THE STATE (LER [2004] S.C 218/2002: The court held
that it is well settled law that where the objection to the admissibility of
accused statement is merely that it was not read over to him and on the ground
that he did not make it but not that it was not voluntarily made, he was coerced
or induced to make it….. this is RETRACTION.
Furthermore
the court listed ways RETRACTION may arise:
·
Where
the statement is not signed
·
Where
the accused denies that the signature belong to him
·
Where
the accused alleges that the statement was not properly or accurately recorded
·
Where
the accused alleges that he did not make the oral confession.
The
question is what happens when the accused raises the objection?
Firstly,
in KAZEEM V STATE, the court held
that where an accused wishes to resile out of his confessional statement he
must establish that his earlier statement can not be true or correct by showing
the following;
·
That
he was not correctly recorded
·
That
he in fact did not make the statement
·
That
he was unsettled in mind at the time he made the statement.
The court
will also need to apply these test as stated in KAZEEM V STATE: The court discussed the test to be applied in
determining weight to be given to a retracted confessional statement;
·
Is
there anything outside the confession to show that is true
·
Is
it corroborated
·
Are
the relevant statements made in the fact so far as can be tested
·
Does
the accused person have the opportunity to commit the offence charged
·
Was
the confession possible
·
Is
it consistent with other facts which have been ascertained and have been
proved.
On a
final note in SULE V SULE it was held that a confession does not become
inadmissible merely because an accused person denies having made it. And also
the court need not conduct a trial within trial when the objection raised is of
denial and not voluntariness. This was
affirmed in DANIEL NSOFOR & ORS V THE STATE were the court held that the
role with respect to conducting trial within trial operates only in questioning
the voluntariness of confession, it does not apply to question of weight to be
attached to them. This was also affirmed in the case of FBN V BORISADE.
N.B FOR THE PURPOSE OF BAR FINAL
MR KANU TOLD US EXPRESSLY THAT RETRACTION, ACCUSED IS DENYING THE STATEMENT NOT
VOLUNTARINESS SO NO NEED FOR TRIAL WITHIN
TRIAL…….IF YOU READ THE CASE OF ADISA V THE STATE (2015 CASE FOR THAT
MATTER) THE SUPREME COURT HELD THAT WHERE THE ACCUSED RETRACTS HIS STATEMENT THE
TRIAL COURT SHOULD CONDUCT TRIAL WITHIN TRIAL…… WELL BRO AGABA AND LAW SCHOOL
HOLDS A DIFFERENT VIEW.
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