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WHEN A TRIAL-WITHIN-TRIAL IS TO BE CONDUCTED

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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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RETRACTED CONFESSIONAL STATEMENT IS STILL ADMISSIBLE

In ASIMI V. STATE (2016) LPELR – 40436 (SC), this Court per Rhodes Vivour JSC at Pp 14-15, para E-C stated succinctly thus: 22 “Once, an extra-judicial confession has been proved as in this case to have been made voluntarily and it is positive and unequivocal, amounting to an admission of guilt (such as the appellant’s confessional statement, Exhibit P6) a Court can convict on it even if the appellant retracted or resiled from it at trial. Such an afterthought does not make the confession inadmissible. It is desirable but not mandatory that there is general corroboration of the important incidents and not that retracted confession should be corroborated in each material particular.”

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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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A CONFESSIONAL STATEMENT IS THE STRONGEST EVIDENCE AGAINST AN ACCUSED

It is trite in law, that there is no evidence stronger than a person’s own admission or confession. The confessional statement made by an accused person is potent evidence in the hand of a prosecutor for proving a charge. It is the best and safest evidence on which to convict.

– M. Peter-Odili, JSC. Enabeli v. State (2021)

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FAILURE TO USE VIDEO RECORDING DURING RECORDING CONFESSIONAL STATEMENT

The use of the imperative word “shall” in the provision underscores its mandatory nature. The mischief sought to be curbed by the law includes such unsavory situations as where an alleged confession is extracted by torture and duress imposed on a defendant which led to the confession, to avoid miscarriage of justice and to reduce to the barest minimum the incidents of retractions and time consumed by trial within trial proceedings. Section 9(3) ACJL is a mandatory procedural law against infractions on the constitutional rights of a defendant as enshrined in Section 35(2) of the CFRN (as altered). Any purported confessional statement recorded in breach of the said provision is of no effect. It is impotent and worthless. See JOSEPH ZHIYA v. THE PEOPLE OF LAGOS STATE (2016) LPELR – 40562 Pp. 28-29 Paras G-B, ISMAILA FATOKI v. THE STATE- unreported judgment of the Court of Appeal in Appeal No. CA/L/1125/2011 delivered on 11/12/2015, FABIAN MATHEW v. THE STATE – unreported judgment of the Court of Appeal in Appeal No. CA/L/1126/2011 delivered on 11/12/2015, KINGSLEY AKHABUE v. THE STATE – unreported judgment of the Court of Appeal in Appeal No. CA/L/1056/2011 delivered on 11/12/2015, AGBANIMU v. FRN (2018) LPELR – 43924 (CA) Pp. 11-12 Paras E-A, ENECHE v. PEOPLE OF LAGOS STATE (2018) LPELR – 45826 (CA) Pp. 27-28 which are persuasive precedents of the Court of Appeal.

— H.M. Ogunwumiju, JSC. Friday Charles v. The State of Lagos (SC.CR/503/2020, Friday March 31 2023)

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TRIAL-WITHIN-TRIAL APPLIES ONLY TO VOLUNTARINESS OF CONFESSION

The rule with respect to conducting a trial within a trial operates only in cases of questioning the voluntariness or otherwise of confessions. It does not operate where an accused person denies making the statement or retracts.

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

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RATIONALE FOR HAVING VIDEO RECORDING DURING RECORD OF CONFESSIONAL STATEMENT

Usually, objections raised as to the admissibility of confessional statements pose one of the greatest challenges to criminal trials as it slows down the pace of the proceedings when there is a trial within trial. It is for this reason that Section 9(3) of the Administration of Criminal Justice Law of Lagos State 2011 and Section 17(2) and 15(4) of the Administration of Criminal Justice Act 2015 have been put in place to ensure that the Police and other agencies who have the power to arrest, obtain confessional statements from suspects without any form of oppression or illegality. The effect of the said provision is that every confessional statement must be recorded on video so that the said recording can be tendered and played in Court as evidence to prove voluntariness or a legal practitioner or any person as specified under Section 17(2) of the ACJA must be present. The essence of the video/audio-visual evidence is obviously so that the Court will be able to decipher from the demeanor of the Defendant and all other surrounding circumstances in the video if he or she voluntarily made the confessional statement. Alternatively, where a video facility is not available, the Police must take the confessional statement in writing and must ensure that while same was being taken, the Defendant had a Legal Practitioner of his choice present. However, over the years, it seems to me that these provisions are only existent on paper as the Police and other security agencies seldom comply with them. The current state of technology where most mobile phones have a recording application that would state the time and place of making the video if there is no official Police photographer at hand, makes the non-compliance inexcusable. My Lords, it is baffling, to say the least, that at this point in our criminal justice system, there is still failure to meet with minimum standards of Police investigation or interrogation that obtains in other jurisdictions.

— H.M. Ogunwumiju, JSC. Friday Charles v. The State of Lagos (SC.CR/503/2020, Friday March 31 2023)

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