OUTCOMES

At the end of the lesson students would be able to:

1. Explain and discuss the burden and standard of proof, basis for admissibility of evidence in criminal trials, competence and compellability of witnesses
2. Develop a case theory/trial plan
3. Explain the types, issue and use of subpoena and witness summons
4. Prepare witnesses for trial
5. Prepare and deliver an opening address

 

There is a difference between the burden of proof and the standard of proof in a criminal trial. In a criminal trial the burden of proof is on the prosecution. There are two types of burden: 1) legal burden – this is the general burden and it doesn’t shift, its for the prosecution to prove its case on a standard, and 2) Evidential burden – the standard of evidential burden of proof is on the balance of probabilities.

The standard of that general burden of proof is proof beyond reasonable doubt.

 

In what circumstances would a party have the evidential burden of proof?

S131 EA- meaning of burden of proof

The defendant need not give any evidence because the general burden of proof is always on the prosecution but where the defence is going to rely on facts within his personal knowledge then he has an evidential burden to prove those facts.

Note s36(5) 1999 Const. this imposes the general burden of proof on the prosecution – Ibeh v state (1997) 1 NWLR (484)632; contrast s135 & 137 EA  - AREH V COP 1959

S 135(3) EA- Implication on the general burden of proof.There is Prima facie a case and duty on the defence to lead evidence or offer some explanation especially as to facts within peculiar knowledge.

Failure to explain will support inference of guilt – IGABELE V STATE

Evidence by accused is to raise doubts as to the guilt of accused, it does not shift the burden of proof. S 135(3) does not shift the burden of proof, the legal burden of proof is always on the prosecution.

S 140 EA – burden of proving facts within the knowledge of the person.

 

ALIBI- the evidential burden of proving alibi is on the person.

The prosecution will investigate but evidential burden of the accused; NJOVENS V STATE 1973

The number of witnesses to discharge is immaterial as long as there is proof – ALONGE V IGP (1959)

Ultimate (general) burden and evidential burden – contrast s.36(5) const& 137 EA

 

The prosecution is not bound to call a host of witnesses, a single witness may be sufficient to prove a case except where the case cannot be proved without the calling of evidence to corroborate the evidence of the other witness – s 200 EA . In some cases the statute provides for the number of witnesses that would be called.

There are three means of proof

• Direct evidence –
• Circumstantial evidence – this must point irresistibly to the guilt of the defence
• Voluntary Confession – it has to be voluntary otherwise it cannot be accepted as valid proof

 

Note that the prosecution has no duty to call a host of witnesses, see ADAJE V STATE; STATE V AJIE

 

 

CORROBORATION / DISCHARGE OF BURDEN

1. 200 EA

Discharge of this burden is not dependent on the number of witnesses except in specific cases. e.g. treason, perjury, road traffic offences, seditious words, s 200, 201,202, 203,204 EA

Material witness(s) to be called to prove:

• The commission of the offence
• That the accused committed it

S.203 – two things will serve as corroboration, the evidence of another eyewitness or the instrument that was used to record. The recording serves as the corroboration, that’s why the last sentence says shall not require further corroboration, so the mere presence of the official doesn’t remove the requirement for corroboration.

Any conviction based on the oral evidence of an FRSC official alone would be set aside, but if he was in possession of a recording device at the time of the commission of the offence which corroborates his own evidence, then a valid conviction can be made.

 

• Accomplice – who is? S.198(2)
• Competence & corroboration? S.198(1) – an accomplice is a competent witness against a defendant. The court only needs to warn itself but corroboration is not mandatory.
• Evidence of accomplice not corroborate that of another; independent evidence
• Judge’s warning to convict on uncorroborated evidence is mandatory – BELLO V STATE

 

A co-accused or a co-defendant presupposes that there is a pending charge and that is the name given to them upon arraignment.

An accomplice means that the person had knowledge of the offence and they participated in it, the only difference is that they are not charged for the offence.An accomplice would graduate into a co-accused the moment he is arraigned. They are not used interchangeably.

This distinction is important for corroboration – corroboration is not needed for an accomplice.

In s198(2) they draw a distinction between an accomplice and a defendant. An accomplice is not a co-defendant. If he wasn’t charged in the scenario then he remains an accomplice. The court only has the burden of warning itself, if convicting upon the uncorroborated evidence of an accomplice.

S199 says that the evidence of a co-defendant requires corroboration.

So while the evidence of an accomplice doesn’t require corroboration only warning, the evidence of a co-defendant requires corroboration.

 

Admissibility in

Admissibility depend on relevance

S 1- 3

 

IMPROPERLY OBTAINED EVIDENCE

S.14&15 EA

MUSU SADAU V STATE, KURUMA V QUEEN still good law?

S14 EA says that improperly obtained evidence shall be admissibleunless the court is of the opinion that the desirability of admitting the evidence is out-weighed by the undesirability of admitting evidence that has been obtained in the manner in which the evidence was obtained. This means the courts now have discretion.

Note s15 EA  - this contains the matters the court will take into account:

• The probative value of the evidence
• The importance of the evidence in the proceeding
• The nature of the relevant offence
• The gravity of the impropriety or contravention
• Whether the impropriety or contravention was deliberate or reckless
• Whether any proceeding has been or is likely to be taken in relation to the impropriety or contravention; and
• The difficulty, if any, of obtaining the evidence without impropriety or contravention of law.

 

Internet generated evidence

• Documents generated at internet is not a public document
• In proof reliance on s 84 and necessary foundation under s.84(2) & (4) EA.
• KUBOR V DICKSON
• AKEREDOLU V MIMIKO

Know & Learn s84 very well

Example – so you have to lay proper foundation before you tender the evidence from the FRSC official’s machine recording.

 

TAPE RECORDING

Document – s. 258

Necessary foundation

• Maker to testify except dead, not found etc.
• Taperecording authentic and original;
• Voice in tape that of the accused
• Tape always in custody of maker/witness and no possibility/ opportunity of tampering

Fed Poly Ede v Oyebanji (2012) LPELR 19696

 

COMPUTER GENERATED EVIDENCE

• Definition of document & computer in s 258 EA
• S84 EA
• Production of certificate containing the information in s.84(4) EA
• Certificate to be signed by person occupying responsible position in relation to operation of the computer
• KUBOR V DICKSON (2012)
• FRN V FANI KAYODE
• AKEREDOLU V MIMIKO (2013)
• DICKSON V SYLVA (2016) LPELR 41257
• ONWUZULIKE V STATE (2017) LPELR41889
• EYO V STATE (2017) LPELR 43332

 

There is no laid down procedure as to the format of the certificate of compliance, so you have to inquire of the format acceptable in that court before you go ahead

 

Typed of evidence

Oral evidence – s.125, 126

Real evidence – s 127

Documentary evidence – s 86, 88 & 125, 258

Hearsay evidence – s. 37, 38, 39,40

Circumstantial evidence – cogent, unequivocal, overwhelming and must lead to one conclusion, Cf Suspicion

 

COMPETENCE AND COMPELLABILITY

Competence: legal ability to give evidence. A competent person is allowed by law to give evidence

Compellability: legal obligation to give evidence. The person is obliged to give evidence.

Are all persons competent to testify? – s 175 EA. Yes, the law says that all persons are competent to testify unless the court considers that they are prevented from understanding the questions put to them, or from giving rational answers to those questions, by reason of tender years, extreme old age, disease, whether of body or mind, or any other cause of the same kind.

 

A defendant can not be compelled to give evidence in his trial – s 36(11) 1999 const. and in such situation the prosecution may comment on the failure to give evidence however such comment shall not suggest that the defendant failed to do so because he was, or that he is, guilty - s181 EA

 

Can the incompetence in s 175 EA be removed?

Note the person of unsound mind or a drunkard period of lucidity or effect of alcohol over. Every compellable witness is a competent witness but it is not every competent witness that is compellable.

 

Class scenario of a drunkard – he is competent to testify however he lacked the mental capacity at the stage of drunkenness so he cannot testify as to what happened in that state of drunkenness.

 

Can a compellable witness be compelled to answer all questions put to him? E.g. questions to show he has committed a crime other than that charged. s180(g) EA- the person is not bound to answer questions that lead to self-incrimination. 

 

Does a competent witness lose his competence because he listened to the testimony or part of other witnesses?No he doesn’t, but the weight to be attached is reduced. FALAJU V AMOSU (1983) 2 SCNJ 209; EKERETE V UDO (1926) 7 NLR 73

 

An accomplice is a competent witness – s 198 EA

What sanction for a compellable witness that refuses to give evidence?

• Contempt of court
• Arrest
• Contrast when may be excused from answering questions

 

There are two main types of subpoena

• Subpoena ad testificandum
• Subpoena ducestecum.

A subpoena and a witness summons have the same function. A subpoena is given for public official and in a magistrate court a subpoena would still be used to compel the attendance of a public official.

A witness called to court by virtue of a witness summons being issued to him can tender documents once the necessary foundations have been laid.

A subpoena is to be served by personal service.

 

S 250 ACJA – where a defendant  who is required to testify refuses to be sworn or produce documents the court will find another way to continue the proceedings as that particular witness cannot stop the proceeding from being concluded.

 S 230 CPC – an oath does not prejudice from testifying in court, so a witness that refuses to take an oath/affirmation isn’t stopped from testifying, however new legislation ACJA…..

S 251-254 ACJA – witness expenses, when they should be made and who will bear the witness expenses.

S221

 

COMPETENCE IN CRIMINAL CASES

s.180 EA – all persons charged (accused)

Convict is a competent witness – R V ONYUIKE (1941); IBRAHIM V STATE (1979)

Accomplice – s 198 EA

Child of tender years – s 175 EA – need for court to investigate whether sufficiently intelligent.

 

SPOUSES

When competent? – s 179 EA

Valid marriage – s 258 EA; 144 ACJL

Spouse of accused: can he or she give evidence for prosecution? – Competent and compellable – s.182(1)

Spouse of accused – can he or she give evidence for defence? – Competent and compellable on the application of accused – s182(2) – RV ADESHINA

 

Evidence of co-accused

s.199 EA

no corroboration but acted on with caution as a rule of practice

TAINTED WITNESS – a person who either

 

Compellability

The means of compelling the attendance of witnesses are by

• Subpoena
• Witness summons
• Warrant of arrest

 

Exceptions

Diplomats – s.1 DIPA .note that they can waive right

ZABUSKY V ISARELI AIRCARFT IND (20007) ALL FWLR PT 352 1759

Note s.10 of the DIPA

ISHOLA – NOAH V BRITISH HIGH COMMISSIONER 1980  8- 11 S.C 100

Dos this affect aliens? The act doesn’t cover aliens – they are both competent and compellable

If they cannot speak the language of the court, the court will provide an interpreter

 

The judge cannot turn himself to an interpreter – s. 188 EA; ELEBANJO V TIJANI

 

CASE THEORY

A line of argument which if accepted by the court, will lead to judgement being given in your favour.

A story, case hypothesis, appreciation of the case etc.

It is based on the facts and relevant law

Adaptation of story to the legal issues in the case – conclusion that client will win the case 

 

Focuses on building a line of argument against a background of facts sought to be presented and proved

Elements of successful theory:

• Theory
• Speaks to legal elements of case
• Simple
• Easy to believe

 

TRIAL PLAN

It shows the Graphic statement of how to actualise the case theory.

See sample trial plan 

 

Ethical consideration

 Note pre-trial interview is not for coaching a witness to tell lies or suppress the truth. The essence is to build up confidence but not invent a defence for the accused .

Prosecuting counsel not to seek to secure conviction at all cost – ODOFIN BELLO V STATE 1967

Rule 37 RPC

 

Opening address

It is a means of getting the judge to understand the case you are about to present.

Usually short summary of the case the prosecution or the defence will present based on the trial plan.

Contrast with final address

 S240 & 241 CPL;189& 192 CPC;268 & 269 ACJL, 300 ACJA

Order 8 practice direction on ACJA FCT courts

 

SECURING ATTENDNACE OF WITNESS

Subpoena:

• Subpoena ad testificandum
• Subpoena ducestecum