POSU V. THE STATE: On best evidence and next best evidence in proof of crime. An insight into the decision of the Supreme Court therein.

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POSU V. THE STATE: On best evidence and next best evidence in proof of crime. An insight into the decision of the Supreme Court therein. Citation: (2021) 4 NWLR PT. 1767 AT 434. Courtesy: Moruff O. Balogun Esq.


Summary of Fact:
The appellant was charged with the offence of murder of one Abel Afolabi. The only eye witness called by the prosecution was PW1. He testified that without being provoked by the deceased, the appellant slapped the deceased and then stabbed the deceased on the chest. PWI stated he left the scene soon after the deceased was stabbed.

During cross-examination of PW1, his extra-judicial statement was tendered by the defense ostensibly to contradict his oral testimony in court and it was admitted in evidence as exhibit A without objection. In exhibit A, PWI stated that the appellant stabbed the deceased at the throat and that the deceased had died and was being revived before he let the scene, But the defense counsel who cross-examined PW1 did not draw his attention to the portion of exhibit A he intended to use to contradict PW1 with.

The prosecution also tendered in evidence the appellant’s extra-judicial statements as exhibits B and C. While exhibit B was admitted in evidence despite objection to its admissibility on grounds of its involuntariness and after a trial-within-trial, exhibit C was admitted in evidence without objection. In exhibit B, the appellant admitted stabbing the deceased with a knife, but stated he did not know which part of the body of the deceased he struck. In exhibit C he admitted stabbing the deceased on the chest.
Another of the prosecution witnesses, PW5 testified and presented a report (exhibit D) that the cause of death of the deceased was injuries from stab wounds.

In his oral testimony in court, the appellant stated that he saw some people fighting with the deceased, he went there, and met the deceased on the ground.

The trial court convicted the appellant of the offence of murder of the deceased and sentenced him accordingly. He appealed to the Court of Appeal, which dismissed his appeal. He further appealed to the Supreme Court where he argued that the trial court and the Court of Appeal relied on the extra Judicial statement of PWI (exhibit A) to respectively convict him and uphold his conviction notwithstanding the fact that it was inconsistent with the oral testimony of PWI. He also argued that there was contradiction in the prosecution evidence on the cause of death of the deceased and his responsibility for it.

Held: Unanimously dismissing the appeal.
The following issues were raised and determined by the Supreme Court.
On Best evidence and next best evidence in proof of crime:
In criminal trials especially where the identity of the accused person is in issue, the confessional statement of the accused person stating that he committed the offence is the best evidence to prove the charge, provided the statement was voluntary and he is aware of the consequences of his confession. The next best evidence is the evidence of an eyewitness provided the eyewitness is credible.

On Duty on trial court to examine eye witness evidence:
The trial court is expected to examine eyewitness testimony and must be satisfied that it is true. Once these two questions are answered positively the eyewitness testimony is true:
Was the accused person in a position to commit the offence?
Is there any other evidence which shows that the eyewitness is telling the truth?
In this case PW1 is the only eyewitness.
His testimony and his extra-judicial statement tell the same story that the deceased was stabbed by the appellant in his presence. Exhibit A did not contradict the testimony of PWI on material facts.
Further, the oral evidence of PW5 and exhibit D, which PW5 tendered were consistent on the fact that the deceased died of stab wounds. In addition, exhibits B and C are confessional statements of the appellant. In both of them, the appellant admitted stabbing the deceased with a knife. Both questions are easily resolved positively. PW1, the only eye witness was telling the truth when he said that the appellant stabbed the deceased in his presence. His evidence was cogent, compelling and conclusive of that fact.

On Ingredients of murder:
The ingredients the prosecution must prove beyond reasonable doubt to prove murder are:
(a) the death of a human being, the victim;
(b) that the death was brought about by the deliberate act of the appellant; and
(c) that the appellant knew that by his act, the death of the victim was the probable or natural consequence.
In this case, the prosecution proved all ingredients of murder against the appellant.

On Whether and when court can convict on evidence of single witness:
The evidence of a single witness, if found to be positive, unequivocal and credible, is sufficient to ground a conviction. In this case, PWI, who was an eye-witness to the crime, gave credible and positive evidence of how the appellant stabbed the deceased in the chest and how the deceased died soon afterwards. There was no evidence of any intervening event between the stabbing and the death of the deceased. The medical report tendered by PW5 confirmed the cause of death as stab wounds to the chest and other parts of the body. In the circumstance, without exhibit A, the evidence adduced by the prosecution proved its case proved beyond reasonable doubt that the appellant without being provoked, stabbed the deceased who died very soon afterwards. There was sufficient evidence before the court to ground the conviction.

On Determining cause of death and criminal responsibility for death of person:
The principle of causation dictates that an event is caused by the act proximate to it and in the absence of which the event would not have happened. Therefore, so long as the cause of death of a victim is traceable to the injury inflicted by an accused person, he would be held criminally responsible. In other words, the important consideration for determining criminal responsibility for death is whether death of the deceased was caused by the injuries he sustained through the act of the accused person, and not whether from the medical point of view, death was caused by such injuries.

On whether and when confessional statement of accused person can ground conviction:
A court can rely on the clear, direct, and positive confession of an accused by which he owns up committing the offence. Corroboration in this regard, though desirable, is not necessary. In this case, apart from the appellant’s own confession (exhibits B and C), which satisfy the conditions laid down in sections 27, 28 and 29 of the Evidence Act, further evidence abound that corroborated the confession and proved the act of the appellant that led to the death of the deceased.

On Purpose of Section 232 of Evidence Act:
The purpose of Section 232 of the Evidence Act is to checkmate double speak by witnesses in order to obtain truthful testimonies from them.

On Duty on appellant to establish judgment appealed against is perverse in order to succeed:
For an appeal to succeed, the appellant must demonstrate that the decision he appeals against is perverse. It is so if the decision does not evolve from the evidence on record or that the decision has taken into account irrelevant matters or excluded the obvious and by all or any of these lapses occasioned miscarriage of justice. In this case, exhibits B and C, the appellant’s confession, concurrently relied upon by the trial court and the Court of Appeal, showed clearly that the appellant stabbed the deceased.
In exhibit C, the appellant specifically admitted stabbing the deceased in the chest. The testimony of PW1 and PW5 traced the death of the deceased to the injury inflicted on him by the appellant. In the circumstances, the appellant’s contention that the concurrent decisions he appealed against were perverse was not supported by the evidence on record.

On Whether cause of death must be proved by medical evidence in every criminal case:
It is not in every case of homicide that medical evidence is imperative for proof of cause of death. In this case, even without any medical evidence, the proximate connection between the act of the appellant striking the deceased with a knife on the chest (as he admitted) and the deceased slumping and dying on the spot immediately, erased any reasonable doubt that it was the act of the appellant that caused the death of the deceased. Medical evidence, in the circumstance, is unnecessary.

On How to establish contradiction between previous written statement of witness and oral evidence of witness:
Under section 232 of the Evidence Act, it is sine qua non for the operation of the section that if it is intended to contradict a witness by a previous written statement, the witness attention must, before such contradictory proof is given, be called to those parts of the written statement which are to be used for the purpose of contradicting him. In this case, the defence counsel did not draw the attention of PWI to the portion of exhibit A he intended to use to contradict PWI with.

Moruff O. Balogun Esq.
Ijebu Ode, Ogun State.

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