DAVID V THE PEOPLE OF LAGOS STATE: SIMPLIFYING THE BAIL PROCESS IN CRIMINAL PROSECUTION (2)
By Ebun-Olu Adegboruwa, SAN
THE ESSENCE OF BAIL
The facts of this case have brought to the fore an urgent and a compelling need for holistic reforms in the administration of the criminal justice sector and proper training for all institutions involved in the investigation of crime and criminal prosecution. The enactment of the Administration of Criminal Justice Act in 2015 was supposed to bring some reprieve to prosecutors and defendants alike but this has not been so, due to so many factors ranging from lack of funding, absence of institutional will to enforce the law, congestion in the courts, to absence of functional infrastructure. The view is still valid that prosecuting agencies and prosecutors in our clime deploy the criminal justice system as a tool of punishment and oppression, against the defendant at the behest and promoting of the complainant. There is always a desire by the nominal complainant to have the defendant incarcerated by all means and for long periods of time. There is a particular force that makes the complainant unsatisfied each time he sees the defendant walking around in the street as a free man. The culture of vengeance has crept ominously into the criminal justice system, resulting in persecution and not prosecution. Nigeria eagerly awaits the day when the prosecutor will be the one to apply for bail for the defendant in order to focus more on his due trial and possible conviction rather than secure his temporary remand. That should be the essence of bail pending trial or appeal. The moment a defendant spends one month or two years in custody before fulfilling the conditions imposed for his bail then the purpose of bail has been defeated. Even in charges with offences bearing the maximum punishment, bail is still available at the discretion of the court, based upon the facts and circumstances of each case. Agreed that each case may present very peculiar facts, but there must be some universal concept or principle agreeable to all stakeholders involved in criminal cases which should be applicable across board. In minor offences amounting to misdemeanour, bail should be a right that is granted automatically. In cases of felonies with some degree of seriousness, bail should be granted with minimal conditions that will guarantee the attendance of the defendant in court for his trial. In cases with capital offences, such as murder, kidnapping, terrorism, treasonable felony, etc, bail should be granted based on the discretion of the court. Except in very exceptional cases, the prosecutor should never oppose bail, as a matter of standing policy.
ENSURING DILIGENT PROSECUTION
What on earth can you do as a prosecutor or defence attorney if the facts of the case are against you, or your witnesses are not available and when they do appear in court after a long period of time, they collapse like a pack of cards in court when put in the witness box? A major factor in criminal law practice and procedure is the efficiency of the prosecution built upon painstaking forensic investigation by the law enforcement agency in charge of the case. The law puts the sacred onus on the prosecution to prove the ingredients of the offence with which the defendant has been charged, in the absence or weakness of which the court will find for the defendant. This case failed mainly because PW2, the investigating police officer, did not appear to conclude his testimony. This ugly scenario is not strange in criminal trials at all. Some defendants, faced with the severity of the charge against them, the weight of evidence and witnesses assembled by the prosecution and the likelihood of a conviction, devise other extra-judicial means to frustrate the trial. Naturally, some police officers get posted from one location to another as a routine procedure or they may be away on official assignments such as election monitoring, peace-keeping missions abroad, attending training school, writing promotion examinations, etc, but the IPO’s absence can also be manipulated by the defendant. In this case, the IPO had given his evidence in chief but he failed to appear for his cross-examination, the consequence of which was that his evidence was expunged and rendered weightless. It could also be true that the police officers fabricated the charges against the defendant upon his refusal to pay the sum of money demanded to secure the bail of the original suspect and being unable to defend his watery story, he absconded from his cross-examination. Whichever is true, the gap in this case is that the police failed to work together as a team, or else the absence of a single police officer should not defeat the case of the prosecution, as any other officer in the investigation team is competent to take the witness stand to narrate the story to the court. As is the case with the EFCC and other latter-day prosecuting agencies, the prosecution should front-load as many witnesses as possible since they are not bound to call all the witnesses. It is at best, a case of surplusage, which hurts no one in the course of trial.
Whether Retrial Will be Ordered Where Criminal Trial Declared a Nullity:
Where a criminal trial has been declared a nullity, an order of retrial is not automatic. The discretion of the court in deciding whether to order a retrial must be exercised judicially and judiciously after a consideration of the entire facts of the case.
The Burden and Standard of Proof of Crime and How it is Discharged:
The duty of the prosecution in any criminal trial is to establish the guilt or culpability of the accused person beyond reasonable doubt. In order to discharge the burden, it is required to establish every ingredient or essential element of the offence charged. This requirement is predicated on the accused person’s presumption of innocence as guaranteed by section 36 of the 1999 Constitution of the Federal Republic of Nigeria, 1999, (as amended). In the instant case, the finding of the Court of Appeal that the offences with which the appellant was charged and convicted by the trial court were not proved against him by the respondent was conclusive and the Court of Appeal should have discharged and acquitted him.
Proof of Crime and Resolution of Doubt in Criminal Trial:
Where there is a doubt as to the guilt of an accused person, the doubt must be resolved in favour of the accused.
Whether Court Can Convict on Evidence of Single Witness and Effect Where Commission of Crime not Proved:
Where the evidence adduced is credible, a conviction may be based on the evidence of a single witness. On the other hand, where, upon a consideration of the totality of the evidence before it, one of the ingredients of the offence is not proved or the court entertains some doubt as to the guilt of the accused, the doubt must be resolved in his favour as the prosecution would have failed to discharge the burden of proof placed on it. In the instant case, the Court of Appeal found that there was a breach of the appellant’s right to fair hearing arising from the inconclusive cross-examination of PW2, who was the investigating Police Officer from the Federal Special Anti-Robbery Squad; PW2, a key witness for the respondent, had abandoned the case before he was cross-examined by the appellant’s counsel which situation, as rightly found by the Court of Appeal, rendered the entire proceedings before the trial court a nullity. The absence of PW2 was not the fault of the appellant and he should not be made to suffer for the inability of the prosecution to provide witnesses to conclude evidence in proof of its case against the appellant. The Court of Appeal was wrong not to have discharged and acquitted the appellant instead of making an order for a re-trial
Duty on Court Not to Speculate:
Courts of law have a duty not to speculate.
The Effect of Finding of Court not Appealed:
In an appeal, a finding of court not appealed against is deemed accepted as correct and binding on the parties and the court. In this case, the finding by the Court of Appeal that the prosecution did not prove the ingredients of the offence required to secure a conviction was not appealed against by the respondent. The finding was deemed accepted as correct and binding on the respondent and the court.
NOTABLE PRONOUNCEMENT:
Need for Courts Not to be Forum for Oppression but Rather a Temple of Justice:
Per UMAR, J.S.C. at page 113, paras. C-D:
“The courts should not be a forum of oppression, rather a temple of justice and fairness where the individual rights of litigants are protected within the ambit of the law. It will counter the spirit of justice to continue to retry an accused in whom no guile is found for there must be an end to litigation.”
CONCLUSION
The injustice of this and other cases of its kind is that the police officers involved got away with their acts of injustice to the appellant, who spent a gruesome 17 years defending a trumped-up charge of armed robbery simply because he refused to pay the sums of money demanded for the bail of the suspect that he originally stood for as his surety. There will likely be other victims such as the appellant, who may still be in custody or facing trial at the instance of crooked police officers or investigators. The Police Service Commission and the other levels of authority in charge of the police should take this case as the justification for a drastic overhaul of the system to rid it of corrupt elements whose conduct dents the image of the force.
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