THE STATE V. USMAN: On admissibility of translated version of extra-judicial statement where not tendered in court by interpreter. An insight into the decision of the Supreme Court therein

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THE STATE V. USMAN: On admissibility of translated version of extra-judicial statement where not tendered in court by interpreter . An insight into the decision of the Supreme Court therein. Citation: (2021)16 NWLR PT. 1801 AT 78. Courtesy: Moruff O. Balogun, Esq.

 

 

Summary of facts:
The respondent along with five other accused persons were at the High Court of Katsina State charged with the offence of armed robbery punishable under section 1(2)(6) of the Robbery and Firearms (Special Provisions) Act. The respondent was alleged to have robbed one Alhaji Ummaru Masanawa, the village head of Sabuwar Kasa, at Sabuwar Kasa village in Kafur Local Government Area of Katsina State of the sum of N30, 000.00.
The victim died of gunshot wounds inflicted during the robbery. The respondent and the other accused persons pleaded not guilty to the charge.
At the trial, eight witnesses testified for the appellant and exhibits were tendered and admitted in evidence. PW1, PW2 and PW6 were relatives of the victim who witnessed the robbery. From their evidence, it was clear that the deceased died. They gave were
eyewitness evidence regarding the robbery and the shooting of the deceased.
However, all of them stated categorically that they could not recognize any of the robbers. They did not link the respondent to the crime or scene of crime.

PW3, PW4, PW5, PW7 and PW8 were investigating police officers who investigated the crime and took statements from all the six accused persons. The evidence of PW3, who took the respondent’s statement, was to the effect that it was one Idris Abdullahi who gave the police the names of sixteen armed robbers operating in Kaduna and Katsina States, which included the respondent’s name and it was on the basis of that information that the respondent and the other accused persons were arrested and
subsequently charged to court. So, the only evidence against the respondent was the statement of Idris Abdullahi that he was one of several robbers in the Kaduna area.

The respondent’s confessional statement taken by PW3 and made in Hausa language was tendered and admitted as exhibit “9A”. The translated version in English language which was not signed by the respondent was tendered through PW3 and was admitted as exhibit “9B”. However, exhibits “9A” and “9B” showed that the respondent was making an additional statement to one or more statements already made by him. His evidence was that he was interrogated several times by the police.
The respondent testified for himself and did not tender any exhibit.
At the conclusion of trial, the trial court found the respondent and the other accused persons guilty, convicted them and sentenced them to death.

The respondent was aggrieved by the judgment of the trial court and he appealed to the Court of Appeal. The Court of Appeal in its judgment discharged and acquitted him.
Dissatisfied, the appellant appealed to the Supreme Court.


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Held (Unanimously dismissing the appeal):

The following issues were raised and determined by the Supreme Court:

On admissibility of translated version of extra-judicial statement where not tendered in court by interpreter –
The person or police officer who interpreted an extra-judicial statement must tender it in court so that, if necessary, the interpreter can be cross- examined on whether the interpreted statement is the correct interpretation of the original words as spoken by the accused person. The interpreted statement would be documentary hearsay and
inadmissible if it is not tendered in court by the interpreter.

The failure of the interpreter to sign the statement does not render it inadmissible
though it is desirable for the statement to be signed by the interpreter. In the instant case, PW3, the investigating police officer who took the statement of the respondent in Hausa language, was also the officer who interpreted it into English and tendered it in court. It was essential for PW3 to be present in court to tender both the original statement in Hausa language, exhibit “9A and the interpreted version, exhibit “9B”.

Exhibit “9B” would be documentary hearsay if it were not tendered in court by PW3.
The appropriate procedure was followed by the prosecution in that regard as PW3 tendered exhibit “9B”.

On whether translated version of confessional statement made in language accused understands must be signed by accused-
The interpreted version of a statement need not be signed by the accused person. Where the accused person is the maker of the original statement made in the language he understands and he has duly signed the statement, whether retracted or not, the
interpreted version made by another person need not be signed by the accused person who was not the maker. By the law of evidence, the interpreted version was made by the other person.

In other words, it is only essential that the accused person signs or thumbprints the confessional statement in vernacular, to lend credence to its voluntariness.
He needs not sign or thumbprints the interpreted version. The two statements each stand alone, the confessional statement made in the language of the accused person and the interpreted version made by a police officer or interpreter as being the correct version of the original. However, the maker of the interpreted version must tender it in court, failing which it would be regarded as mere documentary hearsay and inadmissible.

In the instant case, exhibit “9B”, the interpreted version of the statement of the respondent, was admissible and was so properly admitted by the trial court and
the Court of Appeal.

On admissibility of extra-judicial statement in language accused understands-
An extra-judicial statement made in the language the accused person understands is prima facie admissible unless successfully impugned as involuntary by a trial-within-trial. Also, the translated version in English language, the language of the court, though not signed by the accused person, is admissible through the writer of the translation, that is, the interpreter.

Per OGUNWUMIJU, J.S.C. stated as follows:

“In the circumstances of this case, the respondent’s statement made in the language he understood was signed by both himself and the I.P.O. The finding of the lower court, which I agree with is that the translated version in English language which is the language of the court was unsigned by the respondent. I am of the view that the respondent’s statement in exh. 9A was prima facie admissible unless successfully impugned as involuntary by a trial within trial. Also, the English translation not signed is also admissible through the writer of the said translation – That is the interpreter. Thus, exh. 9B, interpreted statement of the respondent is admissible and was so properly admitted by the trial court and the lower court.”

On nature of confessional statement and when can ground conviction –
A confessional statement is the best evidence to prove a crime. It is the evidence of the perpetrator describing why and how the crime was committed.
It proves both the mens rea and the actus reus.
However, such admission to be solely used to convict a defendant must be voluntarily made and must be a positive and direct admission of guilt.

On tests for determining veracity of confessional statement where retracted-
Where a confessional statement is retracted, the court must look for evidence outside the statement with which to evaluate the contents of the statement in order to arrive at the conclusion that the confession was both credible and probable, In other words, the retracted confession must pass the six credibility tests forming part of Nigerian criminal
jurisprudence. These are:
whether there is anything outside the confession to show that it is true;
whether it is corroborated;
whether the relevant statements made in it of facts are true as far as they can be tested;
whether the prisoner one who had the opportunity of committing murder;
whether his confession is possible;
whether it is consistent with other facts which have been ascertained and have been proved.

In the instant case, there was no scintilla of evidence linking the respondent to the commission of any crime except the retracted confessional statement.

On whether every error in judgment will lead to its reversal on appeal –
It is not every minor error that would lead to an otherwise sound and just judgment to be set aside. In other words, it is not every error of law or fact that would lead to the setting aside of an otherwise just judgment. The error must be one that has led to a gross miscarriage of justice. In the instant case, the Court of Appeal referred to exhibit “9B” as the statement of the respondent which was not signed by him and held same to be a worthless statement.

However, exhibit “9B” was the interpreted statement of the respondent which did not contain his signature and not the actual statement he made and signed, which was exhibit “9A”. If there was error in nomenclature of the exhibits, it did not go to the root of the determination or the appeal. The error in the judgment of the Court of Appeal was one which did not lead to a miscarriage of justice.

On when circumstantial evidence can ground conviction –
In a criminal case, the prosecution can rely on piece of circumstantial evidence only where it is compelling, cogent and irresistible enough to prove that the accused person participated in the commission of the offence with which he was charged and convicted.

On whether prosecution bound to call particular number of witnesses –
The prosecution is not bound to call any particular number of witnesses to discharge the burden placed on it by the law to prove its case against the accused person beyond reasonable doubt. The prosecution is only obliged to call witnesses whose evidence is vital to the determination of the case for the prosecution and whose evidence would settle vital points of facts one way or the other to remove any element of doubt in respect of the guilt of the accused person from the case of the prosecution. A single credible witness, who gives cogent eye-witness account of the incident, will suffice, even if he is charged with armed robbery.

On who is vital witness –
A vital witness is a witness whose evidence may determine the case one way or the other, and failure to call a vital witness is fatal to the prosecution’s case. In other words, a witness who knows something significant about a matter is a vital witness. The
prosecution is not obliged to call all listed witnesses and there is no need for a host of witnesses to get a conviction. However, where there is a particular vital witness whose evidence is very crucial and important to the case of the prosecution in proof of the guilt of the accused, then such a witness must be called as failure to do so would occasion a fatality in proof of the charge as it would produce, under section 167(d) of the Evidence Act, 2011, the presumption of withholding evidence suggestive of the fact that if that evidence were produced it would work against the prosecution and favour the accused. Put in another way, a vital witness that witness whose evidence is fundamental as it determines the case one or the other and failure to call that vital witness by the prosecution is fatal to this case.

Per OGUNWUMIJU, J.S.C. further stated :
“Even if Idris Abdullahi to whom the vehicle was traced had been merely an informant of the Police, where he witnessed a scene of crime and told the police, the prosecution would have been obliged to call him to give evidence.

Where he gave general information as in this case, the police would be obliged to investigate the veracity of the information before arresting the respondent. The respondent was arrested on the word of one Idris Abdullahi who was not charged or called to give evidence on oath.

No evidence linked the particular Ford owned by the respondent to the Ford vehicle owned by Danbuzu (also arrested but not charged). I agree with the Lower court that ldris Abdullahi and Danbuzu should have been called to supply the missing link between the respondent, the Ford vehicle which appeared from nowhere and was supposedly used to commit the offence and the commission of the offence. Idris Abdullahi might have been able to supply the evidence linking the respondent with the particular offence with which he could have been successfully charged and convicted.

Afterall, the charge of armed robbery is not at large, it must be related to a specific incident and date. I must commend the erudite and thorough lead judgment of Wambai, JCA”

Per AUGIE, J.S.C. also commented as follows:
“In this case, the only evidence against the respondent is the statement of a non-witness that he was one of the several robbers in the Kaduna area, and I have to agree with the respondent that the degree of his participation in the alleged armed robbery, could easily have been determined by calling the “Idris Abdullahi’, who gave his name as one of the armed robbers in the area. In this situation, where there was no evidence to link the respondent to the offence charged, the said Idris Abdullahi, who allegedly supplied the police with the information with which the respondent was arrested, is a vital witness, and he ought to have been called as a witness at the trial of the respondent.”

On whether prosecution bound to call all material witnesses-
In civil cases, the dispute is between the parties and the court merely keeps the ring and the parties need not call hostile witnesses. But in criminal cases, the prosecution is bound to call all the material witnesses before the court, even though they give
inconsistent accounts, in order that the whole of the facts may be before the court.

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