Nigerian Criminal Law Jurisprudence;
The Phrase ‘Trial within Trial’ is
apposite in our Criminal Justice System. It is resulted to in order to
determine the admissibility or otherwise of a confessional statement made by an
accused person extra judicially. According to section 20 Evidence Act[2],
an admission is a statement whether oral or documentary which suggests any
inference as to any fact in issue or relevant facts made by an accused person
under circumstances required by the Evidence Act to make it admissible.
A confession is an admission made at
anytime by a person charged with a crime, stating or suggesting the inference
that he committed the crime[3].
It is noteworthy that confessional statement most times are made
extra-judicially and can be used in evidence by the prosecution against the
Defendant/ Accused person in the Court, in so far as it is relevant to the
matter in issue in the proceedings and it is not excluded by the court.
Trial within Trial as the name
implies is a Preliminary Trial / Quest within the Substantive / Main trial. It
is resulted to where a Defendant/Accused Person objects to the voluntariness of
a confessional statement upon it being sought to be tendered by the
prosecution.
The law remains trite that where the
voluntariness of a confessional statement is in issue, the proper thing for the
Court to do is to stop further proceedings and determine the question of
voluntariness before taking any other step by way of admitting or rejecting the
statement sought to be tendered[4].
This procedure is referred to a “Trial within Trial”.
The defendant / Accused Person have
been advised that the proper time to raise objections to the voluntariness of a
confessional statement is when the statement in question is sought to be
tendered in evidence[5].
Upon entering a trial within trial, the
onus of proving the voluntariness of the confessional statement rest on the
prosecution[6].
It has been held in plethora of cases that the proper procedure is for the
prosecution witness to lead evidence first on how the statement was obtained,
recorded (application of the Judges
Rule) etc. After the prosecution has testified to establish voluntariness,
the Defence will be allowed the opportunity to cross examine the witness and
the prosecution will also be allowed to re-examine the witness. It is noteworthy
that if the Defence so desires, evidence can be led by him to establish the
ground of objection[7].
The Standard of proof remains beyond reasonable doubt.[8]
Furthermore, a Trial Within Trial
being one simply meant to determine an interlocutory point of admissibility of
a piece of evidence, whichever way the ruling goes, it does not terminate the substantive
trial or proceedings. The ruling of the Court is to state; whether the
statement was made voluntarily (without any form of coercion, oppression,
torture, force) etc, or Involuntary (as a result of torture, coercion,
oppression, force etc.) Where the ruling is the former, the confessional
statement is admitted and marked as “Exhibit----“.
Where the ruling is the latter, the confessional statement is not admitted in
evidence, it is marked “tendered but
rejected” and cannot be considered in determining the justice of the case.
Whatever be the outcome of the Trial within Trial, the substantive trial
continues[9]
However, where a Defendant/Accused
Person denies the authorship / making of the confessional Statement sought to be
tendered by the prosecution, this amounts to RETRACTION and the court is not bound, compelled or required to
conduct a trial within trial. In this instance, the statement is admitted and
marked so. However, the Court is
cautioned with regards the weight to be attached to such retracted confessional
statement in the final dispensation of justice.
In conclusion, it is necessary to reiterate that the need to conduct a
Trial within Trial only arises where the defendant/Accused Person owns up to
the confessional statement but contends its voluntariness. It brings the
admissibility or otherwise of the confessional statement into issue, while a
RETRACTION only goes to the weight to be attached to such confessional
statement as such is admissible abinitio.
[1] By.
Olusegun Olanrewaju Mabawonku.
[2]
2011
[3]
Section 28 Evidence Act 2011
[4] R
v. Onabanjo (1936) WACA 23; Emeka v. The State (2001) 14 NWLR (Pt.734).
[5]
Alarape v. State (2001) 2 SCNJ 162; Eke v. State (2011) ALL FWLR Pt. 566 pg.
430
[6]
Section 29 (2)b, (3) of the Evidence Act 2011, Oseni v. State (2012) 5 NWLR Pt.
1293 pg.351
[7]
Recourse shall be made to the provision of Section 210 – 247 of the Evidence
Act on Examination of Witness.
[8]Section
135(1) of the Evidence Act 2011.
[9]
Practical Approach to Criminal Litigation (3rd Edition) J. A Agaba.
