TRIAL PREPARATION: BURDEN AND STANDARD OF PROOF

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BURDEN OF PROOF

The burden of proof, sometimes called onus of proof, may be described as the obligation which a witness bears to convince the Court or tribunal about the truth or existence or falsehood or non-existence of a fact that is called into question before the court. This in civil cases, is the establishing of a case either by preponderance of evidence or the burden of producing evidence whether at the beginning of the case or at any other period throughout the trial. It is mostly used in the sense of introducing evidence.

The basic principle underlying burden of proof is that he who asserts an allegation whether affirmatively or not must in order to succeed, prove same and not he who denies the allegation. This is available under sections 135 to 137 of the Evidence Act.

Section 135:

(1)   “Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.”

(2)   “When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person.”

Section 136:

“The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.”

Section 137:

(1)   “In civil cases the burden of first proving the existence or non-existence of a fact lies on the party against whom the judgment of the court would be given if no more evidence were produced on either side, regard being had to any presumption that may arise on the pleadings.”

(2)   “If such party adduces evidence which ought reasonably to satisfy a jury that the fact sought to be proved is established, the burden lies on the party against whom judgment would be given if no more evidence were adduced, and so on successively, until all the issues in the pleadings have been dealt with.”

(3)   “Where there are conflicting presumptions, the case is the same as if there were conflicting evidence.”

By the above sections, it means that the burden of proof is not static. It moves from one party to the other. Section 137(1) places the first burden on the party against whom the court will give judgment if no evidence is adduced on either side while subsection (2) moves it to the adverse party.

BURDEN OF PROOF IN CRIMINAL CASES

The Prosecution bears the general burden of proof to the end of the trial in Criminal cases.  There is no occasion when that burden shifts. This is fortified by the presumption of innocence of the accused person until the contrary is proved as provided for in Section 36 of the 1999 Constitution.  Since the guilt of the accused person cannot be ascertained until the end of the trial, the general burden does not shift to him in any way. 

To this end, it has now been commonly accepted that the exceptions to the general rule on the shifting of the general burden of proof in criminal cases both under the Evidence Act and in case law take effect only in relation to the evidential burden. Those exceptions deal with the burden of proving particular facts.

THE BURDEN OF PROVING EXEMPTIONS/ EXCEPTIONS OR QUALIFICATION

This provision is under section 143 of the Evidence Act. Where a statute creates an exception/exemption or qualification to a general penal provision, the onus is on the accused person to prove that the charge against him lacks merit. This is because his case belongs in the category of those persons excepted or exempted from punishment under the statute creating the offence. For example, if a person who is covered by diplomatic immunity is charged to court, he bears the burden to prove that he is in the category of those persons conferred with immunity from legal process under the Diplomatic Immunities Act; and not the responsibility of the Prosecution to establish this fact. That is, the prosecution need not prove this exception. In I.G.P v. Anozie (1954) 21 NLR 29, the appellant was charged in the Magistrate Court under section 143(2) of the Criminal Code for possessing seditious publication without lawful excuse. The trial Magistrate held that the Prosecution failed to establish lawful excuse and discharged the accused person. But on appeal, it was held that under section 143(2) of the Evidence Act, it was the accused who had the onus of proving lawful excuse.

BURDEN OF PROVING INTOXICATION OR INSANITY

This provision is under section 141(3)(c) of the Evidence Act. The burden of proving intoxication or insanity is on the accused person who alleges it as a defence to criminal responsibility. In respect of insanity, there is presumption of sanity in favour of every person who comes to Court but if an accused person alleges insanity in order to excuse his criminal responsibility, then the onus of proving insanity lies on him. 

In the same light, every person is presumed to be healthy and normal; normal in the sense that he has fed himself moderately but where he alleges intoxication as an excuse for criminal responsibility, it is right for him to prove that he took so much alcohol that overpowered his normal sense of reasoning leading him to commit the criminal misconduct – Onakoya v. R. (1959) 4 FSC 150.

BURDEN OF PROVING FACTS PECULIARLY WITHIN THE KNOWLEDGE OF THE ACCUSED PERSON

This provision is under section 142 of the Evidence Act. In the case of Christoper Otti v. IGP (1959) NRNLR 1, the accused person was charged with the offence of carrying on business as a moneylender without licence. It was held that he must be convicted unless he can show that he has a licence under the Moneylenders Act as this is a fact peculiarly within his knowledge. It is not the responsibility of the Prosecution to prove this fact. 

But in Joseph v. IGP (1957) NRNLR 170, the accused person was convicted of taking part in a public procession without Police permit contrary to Section 38(9) of the Police Ordinance (now Act). The Prosecution argued that the onus is on the accused person to show permit. The trial court agreed with the Prosecution and convicted the accused person but on appeal, the High Court of the Northern Region set aside the conviction and held that the onus is on the Prosecution because they were the licensing authority. So this fact cannot reasonably be a fact peculiarly within the knowledge of the accused person.

BURDEN OF PROVING ALIBI

Where the accused person sets up the defence of alibi, the general rule is that he bears the burden of proof. But if he raised that defence in the course of investigation, the prosecution bears the burden of investigating the truth.  Where the prosecution fails to investigate the defence of alibi, the accused person bears no burden of proving it at all. The Court is entitled to acquit him because a shadow of doubt has been cast on the case and whenever there is doubt in a criminal trial, that doubt must be resolved in favour of the accused person – Gachi and Anor v. State (1965) NMLR 333.

It should, however, be noted that the Prosecution can only investigate an alibi that is raised in the course of investigation and before the hearing commences. Where the accused person raises it for the first time in the Witness Box, he cannot turn round and say the Police should have investigated it, the failure of which he should have been discharged because at that stage, it is not practicable for the Police to investigate such a defence.

SPECIAL PLEA OF DOUBLE JEOPARDY

This can be seen in any of the two ways below –

1.      Autrefois convict

2.      Autrefois acquit.

AUTREFOIS CONVICT

Literally, autrefois convict means “formerly convicted”. Where the accused person alleges that he has been acquitted for a past offence, the onus is on him to so prove that he has been charged, convicted and acquitted in respect of such offence.

AUTREFOIS ACQUIT

Autrefois acquit means “formerly acquitted”. This is a special plea in bar to a criminal prosecution that the prisoner has already been tried for the same offence before a court of competent jurisdiction and has been acquitted. 

THE STANDARD OF PROOF

This deals with the quantum of proof. In other words, it is the province of standard of proof to find an answer to the question: how much evidence must a party adduce in order to discharge the burden of proof placed on him.  The answer to this question depends on whether the proceedings are criminal or civil. 

STANDARD OF PROOF IN CRIMINAL CASES

This provision is under section 138 of the Evidence Act. Section 138(1) of the Evidence Act provides that the standard of proof in Criminal cases must be proved beyond reasonable doubt.  In other words, since the prosecution bears the burden of proof and in order for it to discharge that burden, it must adduce evidence to establish the ingredients of the offence charged beyond reasonable doubt.

But proof beyond reasonable doubt does not mean proof beyond all manner of doubt.  Rather, it means the irreducible minimum of proof required in order to convince every reasonable man that the accused person is guilty of the offence charged. 

There may be some doubt but such doubt should be so immaterial that it cannot be borne out of the facts before the court – Akelezi v. State (1993) 2 SCNJ 19.

Where there is material or reasonable doubt, that doubt must be resolved in favour of the accused person – Bakare v. The State (1987) 1 NWLR (PT. 52) 579.

In order for the Prosecution to avoid reasonable doubt, it need not call all the witnesses in this world. One witness, or one piece of documentary evidence, or one piece of real evidence is sufficient to establish proof beyond reasonable doubt – Akelezi v. The State (supra).

The Prosecution bears the burden of proof and maintains the same standard even if the accused person where to keep quiet. It should be noted, however, that in preparing its case, the Prosecution must take into account possible defences open to the accused person and direct its energy towards preventing the accused person from relying on any of such defences. 

However, in exceptional situations, where the law places an obligation on the accused person to prove particular fact, all that the Prosecution is required to do in order to achieve the prescribed standard is to lead evidence to show that the crime was committed and that the accused person could have committed the crime. If the accused person fails to discharge his own onus of proof of a particular fact which may exculpate him, then the prosecution’s case would immediately transit from one of a prima facie case to that of proof beyond reasonable doubt.

For example, in the case of intoxication, if the onus were that of the Prosecution then it must call evidence to show that the accused person consumed some intoxicating beverage; it must show the place and circumstance where this was consumed and the space of time from the moment of consumption to the time the offence was committed. It must do all this in order to avoid reasonable doubt.

But by virtue of section 141(3) of the Evidence Act, it is the accused person who bears the burden to prove the defence of intoxication.  The principle in The State v. Akingbamiwa (1967) NMLR 355, is that the accused person is only required to lead evidence to show that he consumed some intoxicating beverage which most probably overawed his mind and mental faculty at the time the offence was committed.

ADMISSIBILITY OF EVIDENCE

A piece of evidence is admissible if it is relevant but inadmissible if it is irrelevant. Thus, it is only evidence of relevant facts that are admissible in evidence.

In Agunbiade v. Sasegbon (1968) NMLR 223 at 226 per Coker, JSC, the Supreme Court stated thus:

“Admissible evidence under the Evidence Act is evidence which is relevant and should be borne in mind that what is not relevant is not admissible”.

Section 6 of the Evidence Act provides that –

“Evidence may be given in any suit or proceeding of the existence or non-existence of every fact in issue and of such other facts as are hereinafter declared to be relevant, and of no others:

Provided that –

a.      the court may exclude evidence of facts  which though relevant or deemed to be relevant to issue, appears to it to be too remote to be material in all the circumstances of the case;

b.      this section shall not enable any person to give evidence of a fact which he is disentitled to prove by any provision of the law for the time being in force”.

The above section establishes both the inclusionary and exclusionary rules of evidence. By inclusionary, it means (i) facts in issue, and (ii) facts relevant to the facts in issue. Whilst, by exclusionary, it means that the court may not admit fact if the same is considered by the court too remote to be material.

Section 3 of the Evidence Act provides that one fact is said to be relevant to another when one is connected with the other in any of the ways referred to in the provisions of the Act relating to the relevancy of fact.( click on any picture or link at the right or left hand side for more insight, please follow us twitter or like our page on facebook)

MEANING AND PROCEDURE FOR PLEA BARGAINING

A plea bargain (also plea agreement, plea deal or copping a plea) is an agreement in a criminal case where by the prosecutor offers the defendant the opportunity to plead guilty, usually to a lesser charge or to the original criminal charge with a recommendation of a lighter than the maximum sentence.

A plea bargain gives criminal defendants the opportunity to avoid sitting through a trial risking conviction on the original more serious charge. For example, a criminal defendant charged with a felony theft charge, the conviction of which would require imprisonment in state prison, may be offered the opportunity to plead guilty to a misdemeanor theft charge, which may not carry jail time.

This information is absolutely vital for defendants trying to decide whether to accept a prosecutor’s offer of a “plea bargain.” This is important because there are many hidden implementations of pleading guilty which a self-represented defendant might never think about. A counsel has the responsibility of defending a legal system that guarantees the presumption of innocence and every citizen’s right to equal protection under the law.

Many criminal cases are resolved out of court by having both sides come to an agreement. This process is known as negotiating a plea or plea bargaining. In most jurisdictions it resolves most of the criminal cases filed.

Plea bargaining is prevalent for practical reasons. Defendants can avoid the time and cost of defending themselves at trial, the risk of harsher punishment, and the publicity a trial could involve. The prosecution saves the time and expense of a lengthy trial. Both sides are spared the uncertainty of going to trial. The court system is saved the burden of conducting a trial on every crime charged.

Either side may begin negotiations over a proposed plea bargain, though obviously both sides have to agree before one comes to pass. Plea bargaining usually involves the defendant's pleading guilty to a lesser charge, or to only one of several charges. It also may involve a guilty plea as charged, with the prosecution recommending leniency in sentencing. The judge, however, is not bound to follow the prosecution’s recommendation. Many plea bargains are subject to the approval of the court, but some may not be (e.g., prosecutors may be able to drop charges without court approval in exchange for a "guilty" plea to a lesser offense).

Other alternatives are also possible in the criminal justice system. Many states encourage diversion programs that remove less serious criminal matters from the full, formal procedures of the justice system. Typically, the defendant will be allowed to consent to probation without having to go through a trial. If he or she successfully completes the probation - e.g., undergoes rehabilitation or makes restitution for the crime - the matter will be expunged (removed) from the records.

A defendant cannot bargain on the issue of penalty which is exclusively determined by the presiding judge even though, it is the prosecutors that make sentence recommendation to the judge. The judge, however, is not bound to follow the prosecution’s recommendation. The judge must agree to the result of the plea bargain before accepting the plea. This implies that the judge reserves the prerogative to reject a bargain if he feels uncomfortable with it or if he is of the opinion that it was not intelligibly and voluntarily entered into by the accused. A guilty plea must be an informed choice entered into voluntarily by the defendant. Due process of law prohibits all the government from arbitrarily or unfairly depriving individuals of their basic constitutional rights to life, liberty, and property.

One of the major advantages of plea bargaining is that it helps prosecutors and the Courts in the effective administration of justice. In all criminal prosecutions, the accused shall enjoy the right to a speedy trial because justice delayed is justice denied. The right to speedy trial cannot be compromised or negotiated away.

Types of plea bargain

There are three types of plea bargaining, two of which are most commonly used. A “charge bargain” occurs when the prosecutor allows a defendant to “plead guilty to a lesser charge,” or to only some of the charges that have been filed against him while a “sentence bargain” occurs when a defendant is told in advance what his sentence will be if he pleads guilty. ( click on any picture or link at the right or left hand side for more insight, please follow us twitter or like our page on facebook)

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ROLES AND DUTIES OF REGISTRAR IN CRIMINAL TRIALS

He is to assist a judge in court, and the one in charge of calling of cases to be heard in court.

The registrar of the court is also to read out the allegations against an accused person, and to call the parties present.

ARRAIGNMENT

This is a process whereby the accused shall appear or be brought before the court, and the charge shall be read and explained to him to the satisfaction of the court by the registrar in the language he understands. He shall thereafter be asked to plead to the charge once the court is sure he understands the charge – section 215 of the CPA, section 187(1) of the CPC; and section 211(1) of the ACJL; Kajubo v. The State (1988) 1 NWLR (Pt. 73) 72; Ogunye v. The State (1999) 5 NWLR (Pt. 604) 548; Kalu v. The State (1998) 13 NWLR (Pt. 583) 531; Yahaya v. The State (2002) FWCR (Pt 93) P. 2044

VARIOUS OPTIONS OPEN TO AN ACCUSED PERSON ON ARRAIGNMENT

1.      Preliminary objection – He may raise a preliminary objection to the jurisdiction of the court to try him or to a defect in the charge. His objection shall be duly considered and if upheld, he shall be discharged. However, if overruled, then he shall be asked to plead. The accused person may also object to any defect in charge before pleading to it. He may also make any of the pleas as regards to autre fois acquit or autre fois convict. He may also object to the charge on the ground of failure to obtain leave to file the charge or information – Attorney General (Federation) v. Clement Isong (1986) 1 QLRN 75, where it was held that failure to obtain leave can cause the judgment to be set aside. Also, in Abacha v. The State (2002) SC 53 at 76, the court effectively held that failure to obtain leave of the court means that the ruling can be quashed on appeal.

2.      Refusal to plead – He may refuse to plead to the charge. He shall thereafter be asked by the court for his reasons.  Where the court is of the view that those reasons are not valid and the accused still refuses to plead, a plea of “not guilty" shall be entered on his behalf and the trial shall proceed. (Effect of this is that the prosecution must prove the plea of not guilty beyond reasonable doubt) – Gaji v. The State (1975) 5 S.C. 60; section 220 of the CPA; section 188 of the CPC; and section 215 of the ACJL.

3.      Stand mute – He may stand mute and the court shall call evidence (i.e, conduct an investigation) to determine whether his muteness is of malice or due to the visitation of God. If the Court finds that his muteness is of malice, a plea of not guilty shall be entered and the trial shall proceed – Yesufu v. The State ( 1972) 12 S.C. 143, where the accused person stood mute and the court called a prison warden and other inmates to ascertain whether the accused person was under attack, and evidence was given that Yesufu was a notorious criminal who spoke a lot while in the prison yard. This was also the case in The State v. Sawyer C.C.H.C.H/4/73 at page 11. However, if his muteness is of insanity, the trial shall not proceed and the accused shall be ordered to be detained until the pleasure of the Governor is known – R. v. Ogor (1961) 1 All NLR 70, where court read a plea of not guilty by mere looking at the accused, and the appellate court held that the court was wrong in judging the accused person by mere sight. It should however be noted that where the accused is found to be deaf and/or dumb, the court shall further take evidence to determine whether the accused can be made to understand and follow the proceedings. If so, trial shall proceed; if not, the accused shall be remanded in custody or released on bail until the visitation is over, or until the Governor's pleasure is known.

4.      Plea of guilty – The accused may plead guilty to the charge. Such a plea of guilty shall be recorded by the court as nearly as possible in the words used by the accused. If the court is satisfied that by the plea, the accused intends to admit the truth of the essentials of the offence, it may proceed to convict him on the plea – section 215 of the CPA, sections 187 and 161(2) of the CPC, and section 213 of the ACJL; Aremu v. The C.O.P (1980) 2 N.C.R. 315; Ahmed v. The C.O.P (1971) N.M.L.R..409; Osuji v. The Police (1965) L.L.R. 143; Idah v. The Police (1964) NMLR 103.

Elements that must be present before the court can convict on a plea of guilty:

                                           i.            The accused must not have said something contrary to the plea of not guilty

                                         ii.            The plea of the accused must not be ambiguous and must be unequivocal, otherwise the court shall not convict upon it – section 218 of the CPA, section 161(3) of the CPC,  and section 213 of the ACJL; Onuoha v. The Police (1956) N.NLR 96. A plea of guilty is equivocal where the accused states that the offence was committed out of mistake of fact. Thus the plea of guilty must be changed to a plea of not guilty

                                       iii.            Facts stated by the prosecution must support the charge to which the accused has pleaded guilty otherwise the court shall not convict. In Abele v. Tiv N. A. (1965) N.NLR 425, an accused person was arraigned for rioting , and two of the accused persons pleaded guilty, but it was found that the two accused persons were found with sticks as supplied by the prosecutor. On appeal, the court was of the view that although the accused person pleaded guilty, however from the facts given by the prosecution, what was found on them were mere sticks and not supposed dangerous weapons used for the offence.

                                       iv.            Where the plea of guilty is inconsistent with any statement made by the accused either to the police or in court, he shall not be convicted on his plea – R. v. The Middlesex Justice Exparte Rubens (1970) 54 Cr. App. Rep. 183.

                                         v.            Where the offence to which the accused has pleaded can only be constituted by expert evidence, such evidence must be tendered before he can be convicted on his plea – Stevenson v. The Police (1966) 2 All NLR 261, the accused person was charged with being in possession of Indian hemp and remaining in Nigeria illegally, and due to reason that expert evidence was not called, the court quashed the conviction; Ishola v. The State (1969) NMLR 259; Essien v. The King 13 W.A.C.A 6.

                                       vi.            Where the offence charged is a capital offence, a plea of not guilty shall be recorded notwithstanding a plea of guilty by the accused – Sanmabow v. The State (1967) N.M.L.R 314; section 187(2) of the CPC, and section 213(2) of the ACJL. A plea of guilty may be withdrawn with the leave of court at any time before conviction but not after – R. v.  The Guest (1964) 3 All E.R. 38, (1964) 1 W.L.R. 1273.

5.      Plea of not guilty – The accused may make a plea of not guilty in which case he shall be deemed to have put himself upon his trial – section 217 of the CPA, sections 188 & 189 of the CPC, and section 212 of the ACJL.

However, an accused may plead ‘not guilty’ to the offence charged but ‘guilty’ to another offence. Where the court can convict of the other offence, it may with the consent of the prosecution accept this plea and may proceed to convict the accused on it. If the court rejects the plea and proceeds to try the accused on the charge against him, but found him not guilty of that charge, it cannot convict him of that charge to which he has pleaded guilty – R. v. Kelly ( 1965) 9 Cr. App. Rep. 352; Wilson v. R. (1959) 4 F.S.C. 175, where the accused was convicted on rape and indecent assault and this was held to be wrong.

6.      Plea of not guilty by reason of insanity – The accused may plead not guilty by reason of insanity and the court shall proceed with trial and determine:

                                                     i.               whether the accused did commit the offence; and

                                                   ii.               whether he was insane at the time of committing the offence. If the accused is found not to have committed the offence, he shall be discharged and the court shall not decide the issue of insanity.

If he is found to have committed the offence and to be insane at the time of committing it, he shall be remanded in prison custody until the Governor's pleasure is known – sections 223 – 225 of the CPA, sections 320 – 322 of the CPC, and sections 217 – 219 of the ACJL; R. v. Ogor (1961) 1 All NLR 70.

7.      Plea of autrefois acquit or autrefois convict – This is also known as ‘bar plea’. The accused may make a special plea of autrefois acquit or autrefois convict which has been provided for in section 36(9) of the Constitution that: "No person who shows that he has been tried by a competent court for a Criminal offence and either convicted or acquitted shall again be tried for that offence or for a Criminal offence. having the same ingredients as that offence, save upon the order of a superior court". Also, in section 221 of the CPA, section 223 of the CPC, and sections 173 & 216(1)(a) of the ACJL. The issue of this special plea shall be tried by the court, and if found proved, the accused shall be discharged. If found not proved, the accused shall be asked to enter a plea and the court shall proceed with the trial. The doctrine of autrefois acquit or autrefois convict applies whether the previous acquittal or conviction is by a local court or foreign court – Treacy v. The Director of Public Prosecution 55 Cr. App. Rep. 113. However where an accused was absent and takes no part whatsoever in the foreign proceedings and he does not run the risk of prison or fine, nor exposed to any true danger or evil or jeopardy in respect of the foreign conviction, he cannot succeed on the plea of autrefois convict.

Elements of the special plea of autrefois acquit or autrefois convict:

a.    That the accused had previously been tried on a Criminal charge – R. v. Jinadu 12 W.A.C.A. 368; The Police v. Johnson (1959) L.L.R. 55.

b.   That the trial had taken place before a court of competent jurisdiction – R. versus Jinadu (supra); Umeze v. The State (1973) S.C. 22 1.

c.    That the trial ended with an acquittal or a conviction. (Thus, where trial was terminated by nolle prosequi, this plea of autrefois acquit or autrefois convict cannot be sustained.)

d.         That the Criminal charge for which the accused was tried was the same as the new charge against him, or that the new charge is one in respect of which the accused could have been convicted at the former trial although not charged with it – R. v. Noku 6 W.A.C.A. 203; R. v. Edu 14 W.A.C.A. 163; The Director of Public Prosecution (DPP)  v. Connelly (1964) 48 Cr. App. Rep. 183. "

Making and recording of plea:

Plea must be made by the accused and not by his counsel, unless the presence of the accused at the trial could be dispensed with – R. v. Pepple and Another  (1949) 12 W.A.C.A. 441. The plea must be recorded by the court before the trial can proceed – Sanmabo v. The State (1967) NNLR 314.

When the accused is charged with more than one offence, a plea must be obtained and recorded in respect of each offence – The Police v. Rosseck (1958) L.L.R. 73.

A valid arraignment in law would consist of the following –

1.      That the accused person who is to be tried should be physically present before the trial court unfettered;

2.      That the charge preferred against him shall be read and explained to him in the language he understands to the satisfaction of the judge by the registrar of the court;

3.      That the accused shall then be called upon to plead instantly to the charge; and

4.      That the plea of the accused shall also be instantly recorded by the judge.

The above requirements must co-exist and failure to comply with them will render the whole trial a nullity – Lufadeju v. Johnson (2007) 8 NWLR (Pt. 1037) 538 SC; Amanchukwu v. F.R.N (2007) 6 NWLR (Pt. 1029) 1 CA; Solala v. State (2005) 11 NWLR (Pt. 937) 460 SC; Chukwu v. State (2005) 1 NWLR (Pt. 908) 520, CA; Amala v. State (2004) 12 NWLR (Pt. 888) 520, SC; Ezeze v. State (2004) 14 NWLR (Pt. 894), CA; Umuolo v. State (2003) 3 NWLR (Pt. 808) 493, CA; Okeke v. State (2003) 15 NWLR (Pt. 842) 25, SC.

The requirements are also mandatory and not directory which is supported by section 36(6)(a) of the 1999 Constitution. Non-compliance with the requirements will warrant an order of re-trial as the trial will be vitiated and rendered a nullity – Dible v. State (2007) 9 NWLR (Pt. 1038) 30 SC.

However, the presence of an accused person can be dispensed with if the punishment that the offence carries does not exceed N100 or more than six months and if the accused is of unsound mind and prone to disturbing court proceedings – Ezeze v. State (supra).

The law requires that there where an accused does not understand a language in the course of his trial or proceedings, he shall be given a right to an adequate interpreter. Where an accused is represented by a counsel, and no objection is raised as to the failure of an interpreter during the trial or proceedings, it will not affect the trial or judgment of the court. But, it will vitiate the trial or judgment where the accused was not represented by a counsel and such failure of an interpreter has led to miscarriage of justice, and prejudiced the accused person also. – Udosen v. State (2007) 4 NWLR (Pt. 1023) 125 SC.

The general principle of law is that an offence shall be tried by a court having jurisdiction in the division or district where the offence was committed.

The exception to the above general principle is where such trial would not lead to miscarriage of justice or untold hardship on the part of the accused – Odock v. State (2007) 7 NWLR (Pt. 1033) 369 CA

Where there are more than one accused person in a criminal trial, their pleas must be individually and separately taken – Eyisi v. The State (2000) 12 SC (Part 1) 24 at 33.

However, by virtue of section 187(2) of the Criminal Procedure Code, if an accused person pleads guilty to a charge, the plea shall be recorded and he may in the discretion of the court, be convicted thereon. But, where the offence is punishable with death, the court shall enter a plea of not guilty on behalf of the accused person – Chukwu v. State (1994) 3 NWLR (Pt. 335) 640 SC; Amanchukwu v. F. R. N (supra). ( click on any picture or link at the right or left hand side for more insight, please follow us twitter or like our page on facebook)

ROLES AND DUTIES OF A COUNSEL IN CRIMINAL TRIALS

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.( click on any picture or link at the right or left hand side for more insight, please follow us twitter or like our page on facebook)

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ROLES AND DUTIES OF A JUDGE IN CRIMINAL TRIALS

The justice system is the mechanism that upholds the rule of law. Our courts provide a forum to resolve disputes and to test and enforce laws in a fair and rational manner. The courts are an impartial forum, and judges are free to apply the law without regard to the government's wishes or the weight of public opinion. Court decisions are based on what the law says and what the evidence proves; there is no place in the courts for suspicion, bias or favouritism. This is why justice is often symbolized as a blindfolded figure balancing a set of scales, oblivious to anything that could detract from the pursuit of an outcome that is just and fair

Judges play many roles. They interpret the law, assess the evidence presented, and control how hearings and trials unfold in their courtrooms. Most important of all, judges are impartial decision-makers in the pursuit of justice. We have what is known as an adversarial system of justice - legal cases are contests between opposing sides, which ensures that evidence and legal arguments will be fully and forcefully presented. The judge, however, remains above the fray, providing an independent and impartial assessment of the facts and how the law applies to those facts.

Many criminal cases - and almost all civil ones - are heard by a judge. The judge is the "trier of fact," deciding whether the evidence is credible and which witnesses are telling the truth. Then the judge applies the law to these facts to determine whether a claim has been established or whether there is proof beyond a reasonable doubt, in criminal cases, that the suspect is guilty.

If the defendant is convicted of a crime, the judge passes sentence, imposing a penalty that can range from a fine to a prison term depending on the severity of the offence.( click on any picture or link at the right or left hand side for more insight, please follow us twitter or like our page on facebook)

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