CRIMINAL LITIGATION WEEK 16 (TRIAL 4; PRESENTATION OF CASE FOR THE DEFENCE)

• Isochukwu
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• Criminal Litigation

WEEK 16

TRIAL 4 (PRESENTATION OF THE CASE FOR THE DEFENCE)

MAKE AN OPENING ADDRESS FOR THE DEFENCE.

:: OPTIONS AVAILABLE TO AN ACCUSED PERSON AT THE CLOSE OF THE CASE FOR THE PROSECUTION: The accused may; make a no case submission, rest his case on that of the prosecution, open his defence (i.e. call evidence, raise the defence of alibi. See Generally Okoro v The State

:: NO CASE SUBMISSION: Section 302-303 ACJA.

Made if the accused is of the opinion that prosecution has insufficient or no evidence or if prosecution’s evidence has been impeached/discredited such that it is manifestly unreliable. R v Coker. Court should consider and rule[1] either upholding (therefore discharge and acquit the accused) or overruling the no case submission (if prima facie case has been made by prosecution).

A wrongly overruled no case submission and conviction thereto would be set aside on appeal irrespective of whether accused incriminates himself while participating in the case after the no case submission-Okoro v The State, Mumuni v The State.

MAKE A NO CASE SUBMISSION:

:: OPTIONS OPEN TO THE ACCUSED WHEN NO CASE SUBMISSION IS OVERRULED: where no case submission is overruled, the accused can (recall prosecution witness for further cross-examination before he) enters his defence.

:: THE ACCUSED RESTING HIS CASE ON THAT OF THE PROSECUTION: This is where the accused decides not to call any witnesses to testify for him in trial-Suleiman v The State[2]. He just allows the case to be decided purely on the evidence adduced by the prosecution. Section 36(11) constitutional right of accused to remain silent.

This would be a reckless move if the prosecution has made out a prima facie case-Babalola v The State.

:: RAISING THE DEFENCE OF ALIBI: here the accused is saying that he was at a place different from the scene of the crime at the time the crime was alleged to have been committed and therefore could not have been the one that committed the offence. He should give particulars of the place, date, time and who was with him and the alibi should be entered at the earliest opportunity-Mohammed v State. Akpan v State. This plea be investigated by police.

: OPENING HIS DEFENCE: Ordinarily; at the close of prosecution’s case, the court should discharge the accused if prosecution has not made out a prima facie case. But if prima facie case has been made out, accused should be called upon for his defence.

1. He may make a statement from the dock without being sworn and not liable to cross-examination.
2. He may give evidence from the witness box (in which case he would be sworn and can be cross-examined)
3. That he may not say anything[3]. Okoro v The State.

Next the court asks him if he has any witness to examine or other evidence to adduce-240 ACJL. The court should tell accused that he can do any of the above where he is not represented by counsel. If he is represented by counsel, his counsel is presumed to know and should proceed with the defence-Adio v The State.

Substantial compliance would suffice-288 CPL.

THE EX IMPROVISO RULE (i.e. WHEN PROSECUTION MAY BE ALLOWED TO CALL EVIDENCE IN REBUTTAL OF EVIDENCE OF THE DEFENCE): once defence has closed its case prosecution cannot call any more evidence/witnesses except the accused (in his defence) had raised new matters which the prosecution could not have envisaged/foreseen. In such case, the prosecution may (with leave of court) adduce evidence to rebut-Bala v The COP.

FINAL ADDRESSES FOR THE PARTIES: after accused has concluded his defence, he or his counsel may deliver a closing address which is a succinct summary of the facts and arguments and urge court to hold in its favour[4]. Next the prosecuting counsel shall address. The defence may only reply on points of law[5].

Failure to address would not vitiate the proceeding although both parties should be given the opportunity of a final address as addressing would assist the judge and accords more with fair hearing-Ndu v The State. Final address is also taken into account in computing time to give judgment under Section 294 CFRN.

The magistrate or judge(s) that presides should hear from arraignment to sentence with constant composition. Where there is a change or the judge is promoted or alteration in composition, the trial should restart de-novo (i.e. afresh)-Umukoro v State.

Although ACJA Section 396 entitles an elevated judge to continue to sit to conclude part-heard cases that were pending before him at the time of elevation.

MAKE CONCLUDING /FINAL ADDRESSES FOR THE PARTIES.

VISIT TO LOCUS IN QUO: PURPOSE AND PROCEDURE (Section 127 and proviso to S 76 EA) so as to inspect real evidence… physical observation of a thing/place where necessary to clear ambiguities and for just determination of the case. By Section 127(2); – the Court may adjourn and continue sitting at the locus OR – Attend the locus, inspect and return to court to continue sitting. Evidence of what transpired shall be given in court after the visit. Parties must be present and accorded fair hearing. Seismograph Service Nigeria Ltd V Ogbeni.

 

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[1] In its ruling, it should be confined to submissions and not be too lengty as to fetter its discretion-Odofin Bello v The State, Atano v AG Bendel.

[2] Although he is not precluded from addressing on the facts, law and veracity of witness.

[3] That fact that these have been intimated to the accused should be recorded.

[4] In Lagos and Abuja, the closing address should be in writing… then the parties merely adopt/emphasize and clarify written address already filed. A4, numbered serially and contain brief statement of facts, issues arising, succinct statement of arguments and authorities with full citation. Where a party/parties are absent court deem written address adopted

[5] Note however that where the accused did not call any witnesses or document (excluding witness of character), the defence does not have a right of reply except he is a Law officer (as law officer may decide to reply) S 202 CPL.