Trial-Within-Trial: Need To Abolish Same In Criminal Trials In Nigeria – By Mike Anyadiegwu, PhD.

Abstract

A trial-within-a-trial procedure is resorted to by a trial court when a defendant in a criminal trial protests to the admission of his confessional statement allegedly made by him to the police on the ground that the said statement was not and could not have been made voluntarily and that the said statement was obtained under duress or some threat of whatever nature or actual physical torture to his person. The main trial in the court is abated, and the defendant is made to face a mini trial, within the context of the main trial, to determine the veracity of the account of the defendant on whether his statement to the police was voluntary or not. The said mini trial is the same as the main trial since witnesses are called by both parties, and they are also being cross-examined as in the main trial. The trial court then writes a ruling at the conclusion of the mini-trial, either admitting the statement of the defendant or rejecting same, after which the main trial will resume. The above procedure is time-consuming and a big clog in modern criminal justice administration, which has the main objective of enhancing speedy, timely and efficient criminal trials in Nigeria.

INTRODUCTION

The Administration of Criminal Justice Act and laws of various states have boldly emphasised the need for quick dispensation of justice as one of its main objectives, including the timely conclusion of criminal cases. It follows that there are some practices and procedures which constitute stumbling blocks to speedy trials and quick dispensation of justice in the Nigerian criminal justice system. Modern criminal justice administration has, in effect, taken steps to abolish delays in criminal trials.

One practice that has received divergent opinions on its continued relevance to the modern criminal justice system is the “trial-within-a-trial” procedure. The Administration of Criminal Justice Act or laws of various states are silent on the relevance or otherwise of this time-consuming practice. It has been observed that the greatest challenge in criminal trials is the conduct of trial-within-trial since almost all defendants during trial usually make a volte face to deny an alleged confession that it was obtained under duress. It is important to know that when a confession is challenged on the ground that the defendant never made it at all, that question is a matter to be decided at the conclusion of the case, and the confession can properly be admitted when tendered by the prosecution. In such a case, a trial-within-a-trial is uncalled for. A trial-within-a-trial is required where the objection to the admission is that the defendant has made the said statement involuntarily. It is to test the voluntariness or otherwise of an alleged confessional statement made by a defendant. It must be noted that only the defendant is permitted in law to raise the issue of involuntariness or retraction, as the case may be, when the said statement is about to be tendered by the prosecution. A justice of rare breed, Hon Justice Peter Chudi Obiorah, JCA, made a notable pronouncement to that effect when he observed as follows:

I think it is wrong for a defence counsel to be the person who will inform the court how a confessional statement was obtained. The confessional statement was not made by the counsel. He was not there when it was made. Therefore, it does not lie in the mouth of a defence counsel to just get up in court and say that the statement of the defendant was obtained under duress. To allow the defence counsel to be the person to inform the court how the confessional statement was obtained is not only tantamount to counsel giving evidence from the bar, but such a statement from counsel will be afflicted with the virus of hearsay evidence, which in both instances are not permissible and admissible in law. It will also mean that a counsel, using his knowledge of the law, will always raise an objection based on duress when there is no justifiable ground for it in order to send the trial court on the long, time-wasting and tortuous journey of a trial-within-a-trial aimed at delaying the speedy trial of the substantive charge. The ideal thing is that when such a confessional statement is sought to be tendered in evidence, it will be shown to the defendant in the dock, who can admit to making the statement or deny singing the statement or that he signed under duress. It is the statement of the defendant that the trial court must record and then decide the next line of action depending on what defendant said“

TRIAL-WITHIN-TRIAL AS A CLOG TO MODERN CRIMINAL JUSTICE ADMINISTRATION.

Trial-within-trial is an old procedure and practice which enjoys approval in our criminal justice system. It was inherited from the English common law system, which guides the practice and procedures of courts in our country. The procedure is usually more often in criminal trials where a confessional statement of the defendant is sought to be tendered in evidence. The court has held that a trial-within-trial is sacrosanct in determining the voluntariness or otherwise of a confession. Any judgment reached without the conduct of a trial-within-trial in deserving circumstances will be set aside by the appellate court. This was the situation in that case, where the trial judge took the evidence of witnesses who testified during the main trial as including evidence for a trial-within-trial and gave a ruling on the voluntariness of confessional statement during the defendant during judgment. The Court of Appeal set aside the procedure adopted by the trial as irregular, and the Supreme Court affirmed the said judgment. The entire exercise of conducting another trial in a main trial undermines the cardinal objective of the Administration of Criminal Justice Act and the Laws of the state, which is intended to enhance the speedy dispensation of criminal cases. Again, it is to ensure the speedy conclusion of criminal trials that the ACJA and ACJL of states have abolished the stay of proceedings in criminal trials. Since no stay of proceedings shall be entertained by any court over any ruling delivered by a court after a trial-within-trial, it makes the whole exercise a waste of valuable time to conduct a trial-within-trial and deliver a ruling before concluding the main trial. It means that both parties will address the court twice on trial-within-trial, and yet another address after conclusion of the main trial. The court will have to take two separate adjournments to deliver a ruling and judgment in one criminal matter.  Some States like Anambra, Abia and Kano have taken bold steps to abolish a trial-within-trial in their states. Indeed, trial-within-trial is not contained in our Evidence Act nor any other enactment. It is a relic carried over from the common law criminal justice system of jury trials. Ogundare JSC opined that “a trial-within-trial is an offshoot of the jury system”.

I am not aware of any law that permits a jury trial today in Nigeria. The absence of a jury in any law enacted in Nigeria confirms my assertion that there is no jury law or Act in operation in Nigeria. Remove jury off goes trial-within-trial. We don’t even need any law to abolish it since it was just a matter of practice, which our judges adopted in the days when English law and practice held sway in our land. This opinion is supported by a long line of cases from our apex court.

The Chief Judge of a state is empowered to make a practice Direction to regulate practice and procedure of the high court subject  to the provision of any law made by the House of Assembly of the state.. The supreme court has held that a Practice Direction under the hands of the Chief Judge can  abolish  the practice of trial-within-trial  in a particular state or  court. Practice Direction and Rules of Court are subsidiary legislation, they both have the force of law. The court is enjoined to take judicial notice of subsidiary legislation as having the force of law.

Since, trial-within-trial procedure is not backed by the constitution or by a statutory provision or by the substantive Rules of court, it can be supplanted by the provisions of Practice Direction issued under the hands of the Chief Judge of a state. The high court or Magistrate Court in that state will be bound to follow the procedure stipulated therein for resolving a dispute over the admissibility of confessional statements in a criminal proceeding, and not the trial-within-trial procedure. It is true that trial-within-trial has been approved by the apex court but those case law authorities are applicable to the state where no such Practice Directions exist. Simply put, the case law on trial-within-trial binds states where there is no Practice Direction providing another mode of determining the voluntariness or otherwise of confessional statement made by a defendant.

In Anambra State, the Chief Judge of the state, Hon Justice O M Anyachebelu, FICMC, FCArb has made a Practice Direction prohibiting a trial-within-trial within the state . The practice Direction provide as follow:

Where a defendant in the course of his trial objects to his confessional statement on the ground that he did not make it voluntarily, the court shall record the objection and thereafter,

• The prosecution as part of its case shall proceed to lead evidence in proof that the confessional statement was made voluntarily.
• The defendant shall during his defence call or lead evidence in proof of the fact that he did not make the confessional statement voluntarily.
• At the conclusion of trial and in their final address , the prosecution and defendant shall be at liberty to make legal arguments on the admissibility or otherwise of the confessional statement
• The court shall in its judgement first rule on the admissibility or otherwise (admitting or rejecting) of the confessional statement before proceeding with the substantive judgement.

The beauty of the approach stipulated in the above Practice Direction is that it gives the appellate court the opportunity on appeal, in one breath, to consider the admissibility of the alleged involuntary confessional statement alongside the merit of the case, instead of one appeal on a ruling on trial-within-trial and another one on the merit of the case. It saves time and cost as well as reduces the number of appeals coming to the appellate Court. Note that the apex court has held that the provision of ACJA 2015 relating to the obtaining of a ,confessional statement must be complied with and any such confessional statement obtained not in compliance with the provision of ACJA will be inadmissible.

DISTINCTION BETWEEN RETRACTION OF CONFESSIONAL STATEMENT AND INVOLUNTARINESS.

Where however, the defendant denied making the alleged confessional statement or pleaded non est factum it is referred to as retraction of his confession and the procedure of trial-within-trial cannot be conducted in the circumstance. The court shall admit the statement in the case of retraction and determine the weight to be attached to it during judgement where the apex court held as follows:

A distinction is usually drawn as regards practice and procedure in relation to the admissibility of a confession in evidence between a confession objected to on the ground that it was not made at all by a defendant , in which case such a confession may be said to have been retracted, and a confession objected  on the ground that it was not voluntary in that although the defendant agreed to have made the confession , his complaint would be that he was forced or induced to make it. In the other case, what is attacked is the admissibility in evidence of the confession and therefore, a trial-within-trial must be held, the confession having been challenged on voi dire so as to determine whether or not the confession was voluntary.

Conclusion

Accordingly, a trial-within-trial is no longer permissible in morden criminal justice administration which is predicated on efficient and fast disposition of criminal cases. Hon Justice Peter Chudi Obiorah, JCA in Thompson v State (supra) succinctly captured it when he referred to a trial-within-trial as “a long, time-wasting and tortuous journey…. aimed at delaying the speedy trial of the substantive charge” It is hoped that steps  must be taken   to abolish the practice of trial-within-trial for both States and Federal courts in Nigeria. Abia, Kano and Anambra States are already blazing the trail in that regard. No doubt this will help to realize the objective of administration of criminal justice in Nigeria which is anchored on speedy disposition of criminal cases.

Source: BarristerNG