A
normal argument often heard is that if a person has been arrested for
committing a crime, where is the need to defend him or her? Is there really a
case for proving that person not guilty of the offence committed when a major
part of the evidence suggests that the crime has been committed by that person?
A counsel
is a person who seems to be protecting the accused or even trying to set that
person free by producing evidence that contradicts what the prosecution has
presented before a court of law.
However,
it is important to remember that a counsel plays a very significant role in the
judicial system because otherwise every accused person would be straightaway
sentenced to imprisonment or death without being given a fair chance of
hearing, that being the fundamental right of every person, whether a criminal
or not. The absence of a counsel would then lead to providing the judiciary and
the police with unlimited power because anyone could be proved a criminal and
sentenced without a trial.
The
counsel is to check the truth of the case to verify if the accused is really
guilty of the crime. If the crime has been committed, he will formulate
sentencing programs tailored to a client’s specific needs, often helping
defendants avoid future brushes with the criminal justice system. But first and
foremost, he is the only person who can provide the accused with a
knowledgeable and objective perspective on the situation and what is likely to
happen should the case go to trial.
Thus,
the following arises –
Duty
of Prosecuting Counsel:
(a) He
is to be fair and impartial – His
interest primarily is to present the facts as they are, to see that justice is
done and not to secure a conviction – Enahoro v. The State
(1965) 1 All NLR 125. In R. v. Sugarman (1936) 25 Cr. App.
R. 109, the Criminal Appeal Court said:
"the business of the state counsel
is fairly and impartially to exhibit all the facts to the jury. The crown has
no interest in procuring a conviction but that the right person be convicted.
Where a counsel refuses on the real strength of his case and thinks he can
strengthen it by things collateral in a manner contrary to the law, he only
weakens his case and may prevent a verdict which ought to be obtained".
Here, questions are put to the accused on cross examination to show that he
received other stolen goods not in issue and no evidence was adduced. The judge
quashed the conviction on this ground.
(b)
He shall not withhold the existence of
any adverse decision on a point of law favourable to the accused – A counsel has the duty to disclose to
the accused person reasonable laws that will held in helping him. In Anani v. R (1951) 13
W.A.C.A. 196, the
court held that a counsel can do any of the following where an adverse decision
exists: (a) if the previous decision is by a lower court he may invite the
court to overrule it, (b) if by a court of coordinate jurisdiction, it is open
to him to distinguish the previous decision. In the case counsel insisted on a
submission which he had personally made in a previous case and had been
rejected. He did not refer to the existence of the previous authority.
(c)
Duty to make available to the accused
person evidence favourable to him – A
counsel has the duty to make available at all times evidence that will be
favourable to the accused – The State v. Odofin Bello (1967) NMLR 1.
Duty
of Defense Counsel:
(a)
He has a duty not to return the brief
of person charged with a capital offence – The
defence counsel owes no duty to return the brief of the accused charged with a
capital offence like murder – R. v. Uzorukwu
(1958) 3 FSC 14,
and he shall also
undertake the defence of an accused not withstanding his personal opinion on
the guilt of the accused person so that innocent persons are not convicted
without having the benefit of the available defence to them by the law.
(b)
He must undertake the defence of a person
charged with an offence, particularly a capital offence with reasonable skill
and attention – A defence counsel
should not be negligent in handling his client’s matters of law. In Sunday Udofia versus
State (1984) ANLR 444,
the accused was charged with murder - matricide. During the trial, the
counsel assigned to defend him was absent on seven occasions - during the
presentation of the prosecution's case and on three occasions during the
presentation of the defence. He neither cross-examined the prosecution
witnesses nor extracted any evidence from the appellant. The case was later
assigned to another counsel. Worse still, the counsel simply rested his case on
that of the prosecution. The appellant was convicted. But the Supreme Court
ordered a retrial. This is what Justice Oputa (JSC) said at p. 539:
"In every culture, the crime of
matricide is shocking, revolting and a bit unnatural. Normal people do not go
about killing their own mothers. Was the appellant insane? Why did he commit
such a heinous and unnatural crime?
What were his reasons if he was capable
of reasoning? These are some of the compelling questions which should normally
and naturally suggest themselves to the average lawyer called upon to handle
the defence in a case like this. Unfortunately, the counsel did none of
these things. "
It
should also be noted that it is not ideal nor professional for the defence
counsel moreso in a murder case to threaten withdrawal simply because he does
not know who will pay his fees. In Udo versus The State
(1988) 3 NWLR (pt. 82) 316,
the counsel assigned to the accused threatened withdrawal from the case. He was
unsure of who would pay his fees. But to worsen matters, when he was asked to
address the court, he simply said he would leave the matter to the court. But
much within expectation, the Supreme Court strongly rebuked this attitude. The
court felt such conduct was unbecoming of a gentleman at the Bar and it was
even honour in itself to be invited by the State to defend an accused person.
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