Determining the Veracity of a Retracted Confessional Statement

In the Supreme Court of Nigeria

Holden at Abuja
On Friday, the 14th day of June, 2024

Before Their Lordships
Mohammed Lawal Garba
Tijjani Abubakar
Jummai Hannatu Sankey
Moore Aseimo Abraham Adumein
Obande Festus Ogbuinya
Justices, Supreme Court
SC/CR/1161/2022

Between
THE STATE APPELLANT
And
RICHARD MOSES RESPONDENT
(Lead Judgement delivered by Honourable Justice Moore Aseimo Abraham Adumein, JSC)

Facts
The Respondent and two others (at large) were arraigned before the High Court of Kaduna State on a two-count charge of conspiracy to commit armed robbery and armed robbery punishable under Sections 6(b) and 1(2)(a)(b) of the Robbery and Firearms (Special Provisions) Act 2004.

The Respondent was alleged to have been part of a team of armed robbers that robbed the residents of Ungwan Hausawa and killed one Abubakar Garba Dankera on 10th March, 2018. The Respondent was arrested by the members of the Civilian Joint Task Force (J.T.F.) on his farm on the same date but taken to the police station on September 22, 2018.

During trial, the Appellant called two witnesses, PW1 and PW2. PW1—the Investigating Police Officer—testified that the robbery incident occurred on 10th March, 2028, but the Respondent was brought to the police station on 22nd September, 2018 by the Civilian J.T.F., also known as Yam Bula. He testified that the Respondent made a confessional statement, which the Respondent thumb-printed and counter-signed. The said confessional statement was tendered as Exhibit A. PW2 on his part. He testified that he had heard gunshots on the afternoon of 10th March, 2018, and one boy called him on the phone to inform him that the deceased Abubakar Garba Dankera was killed.

The Respondent, in his defence, claimed that he had been arrested by certain persons whom he did not know while he was on his farm, and he was kept in a private room for months. He claimed that he was tortured and forced to say that he and the two other accused persons at large perpetrated the robbery and killed the said Abubakar Garba Dankera, and that he was subsequently taken to the Police station where he denied the allegation against him. The Respondent denied making Exhibit A and testified that he only saw PW1 for the first time in court, and he was not taken before any superior officer for confirmation of the said confessional statement.

At the end of trial and after considering the evidence before it, the trial court convicted the Respondent as charged and sentenced him to death by hanging. Dissatisfied, the Respondent appealed to the Court of Appeal which found merit in the appeal and quashed the Respondent’s conviction and sentence. The Court of Appeal found that the trial court’s failure to order a trial-within-trial to eliminate the issue of involuntariness of the Respondent’s confessional statement and test its veracity before admitting it into evidence as Exhibit A was fatal to the Appellant’s case. Aggrieved, the Appellant appealed to the Supreme Court.

Issue for Determination
The Supreme Court adopted the lone issue distilled by the Respondent for the determination of the appeal as follows:

Whether the learned Justices of the Court of Appeal were right in allowing the appeal and quashing the conviction of the Respondent, for failure of the prosecution to prove beyond reasonable doubt the offences for which the Respondent was charged at the trial court.

Arguments
Counsel for the Appellant submitted that the conviction of an accused person can be based solely on a confessional statement, even without corroboration. Counsel further argued that a retracted confessional statement remains admissible in evidence and that the Appellant had proved beyond reasonable doubt the offences of conspiracy and armed robbery for which the Respondent was charged by the Respondent’s confessional statement (Exhibit ‘A’) and the evidence of PW2. Counsel submitted that there was no basis for the Court of Appeal to have interfered with the decision of the trial court.

In response, Counsel for the Respondent argued that the Appellant failed to establish that Exhibit “A” was made voluntarily, as required under Section 29(1) of the Evidence Act 2011. Counsel also argued that the trial court erred by not ordering a trial-within-trial to determine the voluntariness of Exhibit “A.”. It was also submitted that the Appellant failed to call one Danjuma Ibrahim Balarabe, a shopkeeper who was a vital witness, to testify on the amount of money referenced in the confessional statement. Relying on the decision in UZIM v STATE (2019) 14 NWLR (PT. 1693) 149, Counsel emphasised the significance of a vital witness and argued that the Appellant’s failure to call the said Danjuma Ibrahim Balarabe weakened its case.

Court’s Judgement and Rationale
Resolving the sole issue, the Supreme Court held that an accused person may be convicted solely based on his confessional statement if it is positive, direct, unequivocal, voluntarily made, and consistent with other ascertained facts. The Apex Court also held that the retraction of a confessional statement is neither inviolable nor sacrosanct, as a confession freely and voluntarily made can constitute proof of guilt and sustain a conviction, provided the court is satisfied with its truthfulness.

The Court reaffirmed the legal principle that the fact that an accused Defendant denies making a confessional statement does not render such an extrajudicial statement inadmissible merely because the accused person denies having made it. The Court held that what the trial court is expected to do in the circumstance, to determine the weight to be attached to the retracted confessional statement, is to test its truthfulness and veracity by examining the said statement in light of other credible evidence. The Supreme Court held that a trial court, when faced with a retracted confession, has to apply the six tests
laid down in R v. SYKES (1913) 8 CR. APP. R. 233 as follows:

(a) Whether there is anything outside that confessional statement to show that it is true;

(b) Whether it is corroborated;

(c) Whether the facts stated in it are true as far as it can be tested;

(d) Whether the accused person had the opportunity of committing the offence;

(e) Whether the accused person’s confession is possible; and

(f) Whether the confession is consistent with the other facts ascertained and proved at the trial.

The Court observed that the testimony of PW1, who claimed that the Respondent thumbprinted Exhibit A while he countersigned, was directly contradicted by the Respondent who testified that his first encounter with PW1 was in court and he was not taken before any Superior Police Officer in the case. The Supreme Court found that, however, there was no endorsement on Exhibit A showing that any Superior Police Officer or any one at all counter-signed it to confirm or verify that it was made by the Respondent; hence, there was no conclusive evidence establishing that the statement was made by the Respondent, and the trial court ought to have treated the said confessional statement with utter suspicion. The Court held that, based on the peculiar facts of the case and the circumstances of the arrest of the Appellant, it was desirable, in the face of the denial and retraction of the confessional statement, to look for some corroboration, no matter how slight, that made it likely that the confession was true. The Apex Court held that the evidence of PW1, who testified that the Respondent confessed while in the custody of the civilian J.T. F and the testimony of PW2 (who was not at the scene of the robbery), however, constituted hearsay evidence and were thus inadmissible.

The Apex Court held further, in agreement with the Court of Appeal, that the Civilian J.T.F., who arrested the Respondent on the date of the alleged robbery and kept him for more than half a year before handing him over to the Police, was a vital witness whose evidence would have assisted the trial court in its determination of the questions of the circumstances of the Respondent’s arrest, what transpired with the Respondent between 10th March 2018 (when he was arrested) and 22nd September 2018 (when he was taken to the Police), and whether he indeed made a confessional statement. The Court also held that the shopkeeper, Danjuma Ibrahim Balarabe, who was alleged to have been a victim of the robbery, was also a necessary witness for the prosecution in proving that an armed robbery took place and that he was robbed of the properties and sums of money as alleged.

The Supreme Court held that although the prosecution is not bound to call multiple witnesses to secure a conviction, the prosecution has a duty to call a vital witness whose evidence is critical or crucial in proving the guilt of a Defendant and failure to call such a witness is fatal to the prosecution’s case.

The Apex Court held that since the veracity of the confessional statement purportedly made by the Respondent was not established in the face of its denial and retraction by the Appellant, and also since vital witnesses such as the victim of the robbery and the JTF that first effected the Appellant’s arrest were not called to testify, the case of the Appellant rang hollow. The Court held that this is invariably so because the ingredients of the offence for which the Respondent was charged, to wit: (i) that there was a robbery; (ii) in which arms/weapons were used; and (iii) that the Respondent participated in the armed robbery, along with others, were not proved by any credible evidence, either direct, circumstantial or by a verified and reliable confessional statement.

Overall, the Apex Court held that the Appellant’s evidence at the trial court fell short of the required standard of proof beyond reasonable doubt expected in a criminal trial to warrant the Respondent’s conviction.

Appeal Dismissed.
Representation
Dr M. T. Adekilekun (having the Fiat of the Attorney-General of Kaduna State) for the Appellant.
Dr Nnaemeka Otagburuagu with Emmanuel Enemor and Chisanya Amadi for the Respondent.

Source: thenigerialawyer