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A TRIAL WITHIN TRIAL IS CONDUCTED WHERE A CONFESSIONAL STATEMENT IS CHALLENGED ON VOLUNTARINESS

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The law is trite that in circumstance where the prosecution seeks to tender the confessional statement of an accused person and it is objected to and challenged on the ground that it was not made voluntarily, a trial within trial is conducted for the sole purpose of finding out if the statement was made voluntarily or whether the confessional statement was extracted from the accused by force or threat of punishment or by any form of inducement. If at the end of the trial within trial the trial Judge is satisfied that the confessional statement was not voluntary, such a statement is not admissible in evidence. If on the other hand the statement is adjudged voluntarily made, it is admitted in evidence. In both cases the trial Judge should rule on it accordingly and that brings the trial within trial to an end and the main trial continues. SeeIbeme v The State (2013) 10 NWLR (pt 1362) 333, Solola & Anor v State (2005) 11 NWLR (pt 937) 460, Federal Republic of Nigeria v Iweka (2013) 3 NWLR (pt 1341) 285.

— J.I. Okoro, JSC. Chibuike Ofordike V. The State (SC.695/2016, 2019)

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CONFESSIONAL STATEMENT BECOMES PROOF

Be it noted that a confessional statement becomes proof of an act when it is true, positive and direct. – Onu JSC. Peter v. State (1997)

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WHEN A TRIAL-WITHIN-TRIAL IS TO BE CONDUCTED

When a trial Court is confronted with a statement made by an accused person which is confessional, there are two situations that may arise. The accused person may object to the admissibility of the statement on the ground that it was not voluntarily made; that it was procured by means of torture, inducement or fear. In such circumstances, it is the duty of the court to conduct what is commonly referred to as a “trial within trial” to determine if indeed the statement was voluntarily made, Where the accused person denied making the statement at all, a trial within trial is unnecessary. The Court would be at liberty to admit the statement in evidence and at the conclusion of the case determine the probative value to attach to it.

– Galadima, JSC. Kingsley v. State (2016)

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ADMISSIBILITY OF A CONFESSIONAL STATEMENT

Olalekan v. State (2001) LPELR-2561(SC) 4, 50-51, F-A, where Onu, J.S.C. held as follows: “This Court has held times without number that the statement of an accused is not inadmissible merely because it is taken down in a different language from the language of the person making it. See Queen v. Baba Haske (1961) 1 All NLR 330 at 333.” (Emphasis supplied).

At page 37, A-C of the same Report, Karibi-Whyte, J.S.C. also stated as follows: “The general proposition is well settled that where an interpreter has been used in the recording of a statement, the statement is inadmissible unless the person who interpreted it is called as a witness as well as the person who wrote it down.”

Again, at pages 55-57 of the same Report, Uwaifo, J.S.C. made his findings in extension as follows: “I have read the reasons given by my learned brother Ogundare, J.S.C. for dismissing this appeal on 20 September, 2001. I wish however, to express my views briefly on whether Exhibit A was properly admitted at the trial. Sgt Linus Patricks (PW6) was the officer who recorded the statement of the appellant. The appellant spoke in Yoruba language and PW6, acting through an interpreter, Aremu Adeosun (PE3), recorded the statement in English language. That was how Exhibit A, the said statement, came into existence. Now, PW3 testified that he interpreted between PW6 and the Appellant. Thereafter, he read the statement as written in English language by interpreting it to the Appellant who agreed that it was correctly recorded. He said the Appellant thumb-printed Exhibit A and he, the interpreter, signed it, as did PW6, the recorder of the statement… At the trial Court, no objection was taken to the voluntariness of the statement, or any other objection at all… The objection now taken in this Court is that the statement (Exhibit A) is hearsay evidence… With the greatest respect, what I understand the authorities in this country to establish is that where an interpreter has been used in taking down a statement, both the person who wrote down the statement and the person who interpreted it must be called as witnesses. In the case of the person who recorded the statement, he would, of course, state in evidence the procedure he took in the process. That was done in the present case. As for the person who interpreted, he would need to be presented as a witness to testify that he interpreted. It is then open to the defence to cross-examine them… I am therefore satisfied that the prosecution called the necessary witnesses who gave sufficient evidence in the present case to make Exhibit A admissible… The objection that it was hearsay is not well founded and I overrule it.”

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CONFESSIONAL STATEMENT: VOLUNTARINESS VS DISOWNING

Where it is alleged that a confessional statement was obtained under duress or as a result of threat or inducement, the Courts have developed the practice of conducting a trial within trial 18 (TWT) or mini trial to ascertain the voluntariness of the statement. The onus is on the prosecution to prove that it was freely and voluntarily made … On the other hand, where the accused outrightly disowns the confession and asserts that he did not make the statement at all, it would be admitted in evidence and considered alongside other evidence led at the trial to determine its probative value.

– Kekere-Ekun JSC. Berende v. FRN (2021)

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A RETRACTED CONFESSIONAL STATEMENT MUST BE CORROBORATED TO BE ADMISSIBLE

The Respondent subsequently retracted Exhibits C & C 1. A retracted confessional statement is nonetheless admissible in evidence. The practice however is to look for some corroborative evidence outside the confession which makes the fact of the making of the confession credible and reliable before the Court relies on it to convict the accused, the maker. This practice which has come to be known as the “SYKE’S RULE”, following R. v. SYKES (1913) 8 Cr. App Report 233, has since become part of our criminal law jurisprudence, it having been cited with approval in several cases including UBIERHO v. THE STATE (2005) 5 NWLR (pt. 919) 644; FABIYI v. THE STATE (2015) LPELR 24834 (SC). The Rule ensures that the trial Court must properly satisfy itself that the retracted confession was infact made truly and voluntarily by the accused person.

— Ejembi Eko, JSC. State v Sani Ibrahim (2019) – SC.1097/2016

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CONFESSIONAL STATEMENT IS THE BEST EVIDENCE

Confessional statement is the best evidence to ground conviction and, as held in a number of cases, it can be relied upon solely where voluntary. The criminal guilt of an accused person could be established by confessional statement, circumstantial evidence and evidence of an eye witness. A confessional statement of the Appellant that was free and voluntary led to the crystallisation of the procedure stipulated under Section 156 and 157 of the CPC, which 17 were duly applied as held above. A confessional statement does not become inadmissible even if the accused person denied having made it. This has been the settled position in our jurisprudence of criminal justice.

— S.D. Bagel, JSC. Mohammed v. COP (2017) – SC.625/2014

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