Week 3 &4 Sources of Criminal Procedure Laws


OBJECTION TO FORMAL DEFECT ON THE FACE OF THE CHARGE

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2. OBJECTION TO FORMAL DEFECT ON THE FACE OF THE CHARGE


  • This objection ought to be made after the charge is read over to the accused person and before he pleads.

  • In Obakpolo v. The State, the SC held that an accused that pleads to a charge after it is read and explained to him, might not thereafter successfully raise an objection to a formal defect on the face of the charge. His plea to the charge is a submission to the jurisdiction.

  • Duplicity, ambiguity, misjoinder of offences, misjoinder of offenders. Note, where the defect is minor, it can be cured in court. However, where it is a major effect, the accused is discharged and the prosecution has to file a new charge

  • This should be done before the plead is taken: s167 CPL, s216(4) ACJL

3. OBJECTION TO DOUBLE TRIAL (plea of autrefois acquit/convict)



  • It can be raised at any time before judgment. An accused person, who can show that the he had been previously tried for the same offence by a court of competent jurisdiction and was either convicted or acquitted, can object to his subsequent trial for the same offence: S. 36(9) CFRN, s181 CPL, s223(1) CPCL.

  • A man is not to be prosecuted twice for the same offence: rule against double jeopardy


4. OBJECTION ON GROUND OF PARDON

  • Any person who had been pardoned of a criminal offence can raise a preliminary objection to his trial for the same offence: S. 36 (10) CFRN, s175 & 212 Constitution,

  • Okongwu v State: it is duty of the person pardoned to produce the certificate of pardon to prove it
  • Pardon is recommended by a Committee on prerogative of mercy. Therefore, where an accused person tenders an instrument of pardon in objection to his trial, and the Court is satisfied, the accused person will not be called upon to make a plea. The charge against him will be discharged.

5. OBJECTION ON GROUND THAT THE CRIMINAL CASE IS STATUTE



BARRED.

  • Once a crime is committed, it gives rise to a cause of action against the alleged offender.

  • Note only few cases where there are limitation period

  • Treason (2yr limitation period), sedition (6 months limitation period), custom offences (7yrs), defilement of girls under 13 and imbeciles (2months limitation period

EFFECT OF PRELIMINARY OBJECTIONS-If any of the objections are upheld, the accused will be discharged, if overruled the accused will be asked to take his plea.

FAILURE OF ACCUSED PERSON TO PLEAD DUE TO MALICE OR OTHERWISE-SECTIONS 220 CPL, S. 217 ACJL, S.188 CPCL

  • Where an accused person refuses to plead, it may be a deliberate act or an inadvertent act.

  • The Court’s duty is to conduct a preliminary investigation to find out the reasons for such refusal. – S. 220 and 223 of the CPL, S. 188 of the CPCL and S. 215-218 of the ACJL.

  • If the reason is not a preliminary objection, the Court will ask the accused to plead to the Charge failing which a plea of not guilty will be recorded.

S. 215 of the ACJL, S. 220 of the CPL, S. 188 of the CPCL and GAJI VS.STATE

  • The investigation MUST be a medical examination conducted by a MEDICAL OFFICER-R v. OGOR
  • If the medical investigation reveals that the accused person only stood mute out of malice (DELIBRATE ACT) the court shall enter a plea of not guilty for him and thereafter proceed with his trial – GAJI v THE STATE, YESUFU V. STATE (1972): the accused persons were charged for armed robbery and three of them behaved funny while in the dock (moving up and down and shaking their mouths). CT ordered for an investigation. The CT found that their muteness was out of malice and recorded a plead of not guilty


  • If the medical investigation (pursuant to S.223CPL; S.320CPCL) reveals that the accused person stood mute due to unsound mind (INADVERTENT ACT)(referred to as visitation of God) the court will discontinue the trial of the accused, and order that he be remanded in custody usually an Asylum, at the pleasure of the Governor.- S.223 & 224 CPL; S. 320 & 321 CPCL; 219 ACJL R V.OGOR; YESUFU V.STATE, ADAMA v DPP

THE PLEAS AVAILABLE TO AN ACCUSED PERSON

  1. Plea of Guilty

  2. Plea of not Guilty

  3. Plea of not Guilty by Reason of Insanity.

  4. Plea of pardon

  5. Plea of autrefois convict/acquit


NOTE(EXAMS)-There is no plea like ‘guilty with reasons’-AREMU V.COP

  1. PLEA OF GUILTY

SECTION 218 CPL, 213 ACJL, S. 187 (2) CPCL, S. 161 (2) CPCL

EFFECT OF THE PLEA-Where an accused person pleads guilty, the court may convict the accused person.

CONDITIONS FOR CONVICTION BASED ON A PLEA OF GUILTY

  1. The court must be satisfied that the accused understands the charge read to him. The basic ingredients constituting the offence must be explained to the accused.-Kayode v. State(mere affirmation of understanding without full meaning)-HELD WRONG(APPEAL ALLOWED.

  2. The court must record the plea of guilty made by the accused person as nearly as possible in the words used by him S. 218 CPL
  3. The Court would call upon the Prosecution to restate the fact of the offence and ask the accused whether his plea of guilty is to the facts as stated by the Prosecution: S. 213 ACJL; Osuji v. IGP


  4. The Court will not take or record the plea of guilty if the accused rescinds on the facts stated by the Prosecution. -S. 213 of the ACJL

  5. The plea of the accused must be unequivocal and unambiguous i.e. he must have intended to admit the offence- AREMU V. C.O.P (plea of guilty with reasons). CONVICTION QUASHED

  6. The facts stated by the Prosecution MUST contain all the ingredients of a charge to which the accused pleaded guilty -ABELE V. TIV NATIVE AUTHORITY (substituted sentence on appeal)

  7. If the offence can only be proved by EXPERT evidence, such evidence must be tendered before the accused can be convicted on the plea.

Example is in drug related offences that must be proved by expert evidence.

ESSIEN VS. KING, STEVENSON V.COP, ISHOLA VS. STATE. However, a decision by the CT of Appeal in Chukwu v FRN (2013) 12 NWLR (Pt 1369) 488. Case on unlawful possession of Indian hemp, which requires forensic evidence. The Ct held that since accused pleaded guilty, there is nothing in 218 CPL to suggest that the report of the expert must be made available before conviction. Therefore, they can be convicted without such forensic report. Tendering the evidence would be superfluous since we all know what marijuana is and what it smells like.

  1. Once the Court is satisfied that the accused intended to admit the truth of all the essential elements of the offence, it will convict and pass sentence on the accused.

ONOUHA VS. STATE. (mere admission of taking money NOT conclusive proof of stealing(CONVICTION QUASHED)

WHEN A PLEA OF GUILTY MUST BE SUBSTITUTED FOR PLEA OF NOT GUILTY


  1. Where an accused makes an unequivocal plea of guilty but subsequently produces evidence or makes statements denying liability for the offence charged-ONUOHA V IGP

  2. If an accused pleads guilty to the Charge in a capital offence, the plea of not guilty MUST be recorded.

S. 218 of the CPL, S. 215 of the ACJL, R. VS. The GUEST; OLABODE V. STATE;

RATIONALE-Court will not want an innocent person to die for an offence he did not commit; the prosecution must prove such allegations beyond reasonable doubt; the court must ensure all ingredients of the offence are present. It is better to allow 100 guilty persons to go free than to kill one innocent soul.



  1. Where an accused person pleads guilty to an offence not charged and prosecution refuses to drop earlier charge.

  2. Where a plea is ambiguous

  3. Where the accused rescinds on the facts stated by the Prosecution.

S. 213 of the ACJL

NOTE-An accused can appeal against his conviction notwithstanding his plea of guilty. ESSIEN VS. R.

RULES GUIDING PLEA OF GUILTY TO AN OFFENCE NOT CHARGED BY THE PROSECUTION

  • An accused may plead guilty to an offence not charged and plead not guilty to the offence charged with: s219 CPL, R v Kelly 1965. The Court may convict him on the offence not charged if the prosecution consents and drop the earlier Charge.

  • If the prosecution refuses, the Court will record not guilty and his trial will commence.
  • Upon trial, if the offence charged with fails, the Prosecution is barred from prosecuting the other offence pleaded guilty to but with which the accused was not charged.


S.214 of the ACJL and R VS. KELLY

WITHDRAWAL/CHANGE OF A PLEA

Plea of guilty can only be changed with the leave of the Court at any time before judgment. It may be by written application or orally. After conviction, he cannot apply to change his plea of guilty. R. V.GUEST. The process of taking a fresh plea must be followed.
NB-Once a plea of guilty is taken the court becomes functus officio -R V. GUEST. Functus officio is a branch of the doctrine of res judicata preventing the re-opening of a matter before the same court, tribunal or other statutory actor, which rendered the final decision in the absence of statutory authority.

  1. PLEA OF NOT GUILTY

  • Most popular plea in criminal trials.

  • Burden of proof here lies on the prosecution to establish the guilt of the accused beyond reasonable doubt-.S.135 EA 2011 EXCEPT when the accused has a burden of proving some particular facts-AREH V. COP.

EFFECT OF PLEA-The accused is deemed to have put himself upon his trial and that the Prosecution should prove his guilt beyond reasonable doubt.

S. 217 of the CPL, S. 188 and 189 of the CPCL and S. 212 of the ACJL.

  1. PLEA OF NOT GUILTY BY REASON OF INSANITY

S. 320-322 of the CPCL,

S. 217-219 of the ACJL,

S. 229-230 of the CPL,

R.VS. OGOR and

EKPE VS. STATE. EFFECT OF PLEA-It is to the effect that the accused person is not criminally liable for his acts or omission (lack of mens rea).


The court will determine three basic questions

i. Whether the alleged offence was indeed committed.

ii. Whether the accused committed the offence, and

iii. Whether he was insane at the time of committing the offence.

If the accused was sane at the commission of the offence, a plea of not guilty will be entered and the trial will proceed. If at the time of commission, the accused was insane, the CT will order that he be remanded in a mental asylum at the pleasure of the Governor: KARIMU V STATE, LOKE V STATE

OPTION OPEN TO COURT IF NO OFFENCE WAS COMMITTED BY THE ACCUSED-There will be no further inquiry.

OPTION OPEN TO THE COURT IF ACCUSED DID NOT COMMIT THE OFFENCE

If the accused did not commit the offence, then the question of his mental state at that time the offence was committed will not be relevant. At the conclusion of the trial, the court will order that the accused must be discharged and acquitted and thereby obviating the need to inquire into the mental state of the accused.



OPTION OPEN TO THE COURT IF ACCUSED COMMITED THE OFFENCE WHILE SANE.

If the court finds that the accused committed the offence and was sane at the time of the commission of the offence, the accused would have a verdict of guilt returned against him and he would be sentenced appropriately.


OPTION OPEN TO THE COURT IF ACCUSED COMMITED THE OFFENCE WHILE INSANE

If the court finds that the accused committed the offence but at the time of commission of the offence was insane, he would be found not to be guilty of reasons of insanity.

Hence, the accused would be detained at the pleasure of the Governor: S.230(1) CPL.

At the discretion of the governor, the accused shall be confined in a mental health, asylum, prison or other suitable place of safe custody-ADAMS V. D.P.P.

In KARIMU V. STATE, an accused was convicted without consideration of evidence of insanity at trial court. CA allowed the appeal and ordered custodial sentence (detention at pleasure of governor)


PLEA BARGAINING:

MEANING-It is a negotiated agreement between the Prosecution and an accused where the accused pleads guilty to a lesser offence or some Charges in exchange for some lesser sentence or a dismissal of other charges.

LEGAL FRAMEWORK It is only provided for statutorily in Lagos State Law and it applies to all kinds of offences.-S.75&76 ACJL. The AG has power to accept and consider plea bargain in the interest of justice; public interest etc-s.75ACJL. However the application is growing in practice since it has been employed by the EFCC in corruption cases- S. 14(2) EFCC Act. NB-compounding in S.339 PC is different from plea bargain.

TYPES OF PLEA BARGAIN

a. Charge bargaining (accused pleads guilty to the charge or part of charge or to a lesser offence and agreed to forfeit properties to the state).-S.76 ACJL.

b. Sentence bargain (accused may be told in advance what his sentence would be if he pleads guilty to the charge.NOTE-s.339 CPCL(COMPOUNDING)

The agreement may include compensation or restitution.



Tafa Balogun’s case (former IG of Police) – was sentenced to only 6 months for embezzling millions of naira.

PROCEDURE FOR PLEA BARGAIN IN LAGOS STATE

  1. A plea or sentence agreement may be entered by the prosecution (law officer),the defendant or his counsel-s.76(1) ACJL.
  2. The Prosecution must consult with the IPO (investigating police officer) and where feasible the victim as to the inclusion of compensation and restitution before an agreement is reached-S.76(2) ACJL


  3. The prosecutor if feasible shall give the defendant room to make representations as to the contents of the agreement-s.76(3) ACJL.

  4. The judge (before whom the case is pending) should not participate in the agreement leading to the plea bargain-s.76(5) ACJL

  5. The prosecution may inform the Court of contents of agreement with a view of seeking direction in general terms.

  6. The agreement must be in writing and signed by both parties and must contain the fact that the defendant has been informed of his right to:

  1. Remain silent

  2. Consequences of not remaining silent

  3. Not to make any confession or admission that can be used in evidence against him

  4. Full terms of the agreement: S.76(4)

  1. Terms of the agreement is presented to the court by the prosecution and court enters judgment S. 76(6)

  2. The court must confirm the correctness or voluntariness of the agreement from the defendant before entering it as judgment-s.76(7) &8

  3. If the judge is not satisfied, he will order the matter to proceed to trial-s.76(7)(b)

  4. If the judge imposes a higher sentence than agreed the defendant may agree OR withdraw from the agreement and a fresh trial would be commenced before another judge.-S.76(9)

  5. If there is a fresh trial, reference shall not be made to the agreement and it shall not be an admission of guilt: S.76(10z)

ADVANTAGES OF PLEA BARGAIN

  1. It saves cost of litigation
  2. It is good for the decongestion of the Courts and Penal institutions


  3. The State can recover especially in embezzlement cases, i.e. money and assets from the accused.

  4. The defendant/accused can avoid higher sentences

  5. Publicity is avoided.

RESTORATIVE JUSTICE

MEANING-This is a theory of justice that places emphasis on repairing the harm caused or revealed by criminal behaviour. It is a process of resolving crime by focusing on redressing the harm done to the victim.

AIMS OF RESTORATIVE JUSTICE

  • Heals victims’ wounds

  • Restores offenders to law abiding lives

  • Repairs harm done in inter personal relationships and the community

  • It seeks to involve all stakeholders and provide opportunities for those most affected by the crime to be directly involved

EXAMPLES OF RESTORATIVE JUSTICE PROGRAMS

  1. Victim/ offender mediation

  2. Family group conferencing

  3. Sentencing circles

  4. Consensus based decision making

  5. Victim/offender reconciliation Panels.

AT WHAT STAGE CAN INTERVENTION BE MADE

  1. Police investigation

  2. Prosecution level

  3. Court level

  4. Sentencing level

NOTE-S.347-348 ACJL- introduction of community service as a form of punishment for convicted offenders who have been tried summarily in lieu of sentence or fine.

Note: Practice Direction in High Ct in FCT: issued by Chief Judge of the FCT on 1st July 2014: Homicide, Armed Robbery, Kidnapping, Rape, Corruption, Money Laundering and such other offences as the Chief Judge may from time to time specify. It states that where the application for leave to prefer a charge is to be made before the CT, the accused must be present before the Court (prior to this, it was made ex parte). Even where the accused person is in Court, he cannot comment on the nature of the application, the application for leave must be accompanied by an affidavit stating that all the investigation into the matter has been conducted. Prosecutor must also state that all witnesses are ready and available to testify and he is ready to commence trial. Provision for pre-hearing protocols so where leave is granted and after arraignment, cases to be set down for pre-trial hearing within 14 days. Within 7 days of the last pre-trial hearing, the CT shall give judgment on all pre-trial issues. No application to be made at the pre-trial stage shall be taken at the trial. At the end of the pre-trial, the CT may issue directives as to the number of witnesses to be called, time for each party to present their case, expected duration of time and such other orders which in the opinion of the judge may facilitate expeditious dispensation of the matter

Practice Direction of the Federal High Court 2013: in respect of the same offences but no provision for pre-trial protocols. The offences of Terrorism, Kidnapping, Trafficking in persons, Rape, corruption, money laundering


See class exercise

Ama Kweku: should have recorded not guilty since it is a murder charge

Issue of jurisdiction to try a non-Nigerian.

Week 14: Trial 2: Trial Preparation and Evidence

What is case theory?

What is trial plan?

Need and purpose of case theory/trial plan

Are you the prosecution or defence counsel?

Nature of the case or defence

Note the implication of the FCT Practice Direction 2014 and the FHC Practice Direction 2013 on trial plan

Pre-trial and trial plan

Filing of charges/bail application

A-TRIAL PREPARATION

CASE THEORY

Case theory refers to the possible line of argument to be presented to the court.

The theory of the case is the most plausible explanation a party can adduce in his favour to meet a set of facts.
FACTORS INFLUENCING A GOOD CASE THEORY

i. What is the charge against the accused?

ii. What are the ingredients having regard to the statute creating the offence?

iii. What are the facts available to prove this offence?

iv. What are the basic principles guiding this offence?

v. Are there likely defences available to the accused in this case?

vi. Processes to ensure reluctant witnesses attend court
NB: Do not worry about the weaknesses in your case; rather trivialize them and allow your opponent to worry about them.

Defence counsel



  • Interview client when client is charged

  • From these facts given by client, it will indicate likely defences of your client
  • Don’t rely on evidence from client alone. See the IPO (investigating police officer) to know lapses of investigation process e.g. no due process followed (beating the client in the name of police interview)


  • NB: no two cases are the same

These practice Directions have the objective of speeding up processes of cases. They emphasise thorough preparation as adjournments may not be granted willingly.



Practice Direction of the High Ct FCT: Rule 4 states that (affect theory of case and trial plan): Duties of the prosecution and defence – the prosecution shall serve copies of the statement of the offence and documentary evidence 7 days before the trial. See other duties of the defence.

For criminal cases, pre-hearing protocol in the FCT. It refers to the number of witnesses, time allowed by each party, specific date and time for hearing, expected duration of trial and when judgement is expected. Thus trial plan must include witnesses and evidence (must be in writing and serve on the opposite party).

These Practice Directions refer to certain crimes – see the Practice Directions. NB- such other cases as the Chief Judge may from time to time specify
TRIAL PLAN:

Trial plan is an action plan prepared by a counsel showing how he intends to prove his case or establish his defence.


HOW TO DEVELOP A TRIAL PLAN FOR A PROSECUTION COUNSEL

STAGE ONE-

  • Examine the charge sheet

  • The law under which the charge is brought

  • List of witnesses

  • Proof of evidence

  • Exhibits and documents to be tendered

STAGE TWO-

  • Outline the ingredients of the offence

  • See whether what you have in the proof of evidence is enough to sustain the charge.




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