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Criminal Law- Murder--Evidence-Extra-judicial confession-Confirmatory circumstances.

The facts were these: Feeling was high between the village of the appellants and the village of the deceased owing to a land dispute. The deceased was riding on the carrier at the back of a bicycle pedalled by another, in the dark; he was struck a cutting blow and fell. A number of persons were detained as suspects, among them the appellants. The second appellant said to someone, in the hearing of the first, that the first had told him he had cut someone with a matchet. They were arrested; the first appellant told the police it was an accident. Both were cautioned and made statements that owing to one of their own people having been wounded, they were out to take vengeance on anyone of the deceased's people; and they gave a full account of killing the deceased. The first appellant also showed the police a blood-stained matchet at his house as the one he had used. The appellants were taken before a Superior Officer of Police, who verified from each that he assented to his confession and had made it after a caution he understood and of his own free will. The first appellant added, " I was hot when I made it ", the second, " the man Philip (viz. first appellant) killed is my in-law".

The first appellant gave evidence. He failed to explain what he meant by " hot" so as to affect the value of his statement, which read as a sensible and deliberate account. He denied making it, though he admitted putting his thumb to a statement, but, he said, it was not the one read; he also said that before the Superior Officer he denied making the statement read to him. The second appellant gave evidence to the same effect about his own statement. The trial Judge, however, held that each had made the statement attributed to him and confirmed it before the Superior Officer of Police; the Judge believed the Crown witnesses but not the appellants.

Each appealed on the ground that it was wrong to convict him on his confession alone. For the Crown it was submitted that a confession properly proved was enough. There were, however, some facts in the Crown evidence which helped as corroboration: that someone of the appellants' village had been wounded; that the appellants set out at night with matchets; the blood-stained matchet shown by one of them to the police; the wound on the deceased, etc. (stated in the penultimate para. of the judgment on appeal infra).

Held: The confession of murder in each case was free and voluntary and in itself fully consistent and probable, and the inculpating statements were corroborated by several facts testified to by witnesses for the Crown-which showed that the confessions were true.

Per curiam: It is desirable to have, outside the confession, some evidence. be it slight, of circumstances which make it probable that the confession was true.

Cases cited:-

(1) Rex v. Ajayi Omokaro, 7 W.A.C.A. 146.

(2) Rex v. Sykes, 1913, 8 Cr. A.R. 233.

Appeal by convicted persons: No. 3665. [pg 30]

Coussey, J.A. The two appellants were jointly charged with the murder of Joseph Ogbe on or about the 1st day of February, 1951, at Umuahia Ubete Ngwa, in the Aba Judicial Division and each was convicted on the 18th October, 1951. The only ground of substance argued by Counsel for the appellants is additional ground 1: namely, that the learned trial Judge was wrong in law in convicting each appellant on his uncorrobated confession in a trial for murder.

The facts, as testified to, are that there was an existing land dispute between the village of the deceased man and that of the appellants which had reached a climax shortly before the death of the deceased, by the appearance of a surveyor in the locality to survey the land in dispute.

On the night in question the deceased asked Matthew Oguro Nka to go with him to Abala, the village of the deceased's brother. Late that night Matthew made a report to the first Crown witness and he went and saw the deceased lying dead.

The second Crown witness, Matthew Okoronka, testified to taking the deceased on his bicycle to Abala. On the return journey, he says it was dark and raining, and the deceased, who was riding at his back on the carrier of the machine, was struck by someone whom the witness did not see. The deceased fell off and died almost immediately. He says he heard footsteps at that moment going into the bush. He took the body to the first Prosecution witness.

The fourth Crown witness, a relative of the deceased, states that he, and many others of their village, were detained by the police as suspects for two days and then a Chief, tired of being detained, said that anyone who had knowledge of the murder should disclose it. This witness says he had seen the two appellants talking together suspiciously and he asked them what it was about. The second appellant then said, in the hearing of the first appellant, that the latter had told him he had cut someone with a matchet. The appellants were arrested and the first appellant told the police that it was an accident.

Constable David Ike cautioned both appellants after their arrest and they each volunteered statements which were taken down in writing, the first appellant making a supplementary statement which was ·also taken down in writing. These statements give a full and circumstantial account of the killing of the deceased and show, if true, that both appellants were engaged in a common enterprise to revenge upon any member of the party opposed to their village in the law suit, because Akai Dienne, a member of their village, was alleged to have been wounded earlier by someone of the deceased's party.

After his statement, according to Constable Ike. the first appellant showed him a matchet at his house and told him it was the one he had used in striking the deceased. It was blood-stained. It was not, however, examined pathologically before the trial, as it should have been. to determine if the stains were of human blood.

The appellants were each taken before a European Assistant Superintendent of Police who gave evidence at the trial and who produced the written questions and answers at an enquiry which he conducted to establish, as the answers do establish, that the appellants understood the cautions and that they then voluntarily made statements of their own free will.

The accused then each assented sentence by sentence to the statements as they were read to them. Asked b~ the Assistant Superintendent if they wished to add or alter anything in their statements the first appellant answered, " I was , hot' when I made it ", while the second appellant answered in turn, " the man Philip (first accused) killed j" my in-law". The expression" hot" used by the first appellant pay mean that he was confused or excited when he made his· confession. He failed, at the trial, to explain the use of the word so as to affect the statement as being the emanation of a weak mind or of one under great excitement. Indeed, it has every appearance of a considered account, deliberately related.

At the trial the appellants did not call witnesses but the first appellant in his evidence denied making the statements produced. He says he told the police he did not know anything about it. In cross-examination he stated that he did put his thumbprint to a statement, but it is not that which was read out at the trial. .

Before Mr. Slay, the Assistant Superintendent, he says he shouted out that what was read was not what he had said.

The second appellant at the trial said he signed a statement to the police, but it was not the one read. He, also, said he denied to the Assistant Superintendent making the statement and that he, too, shouted.

In his judgment, the learned Judge after reviewing the above facts found that on the evidence he believed the witnesses for the prosecution and that he believed the informer, the witness Otuonye Ekpo, after considering with great caution his evidence, as it was corroborated. The learned Judge further found that he could not believe the evidence of the appellants and that their statements were voluntarily made and correctly recorded and confirmed by them later to a superior officer after each appellant's statement had been read over to him.

Mr. Kaine, for the first appellant, has submitted that the statement of the second appellant incriminating the first appellant is not evidence against the first appellant, while Mr. Piper, for the second appellant, also submits that the statement of the first appellant is not evidence against the second appellant. The result is, they contend, that each appellant has been convicted upon his confession alone, which is insufficient in law, without corroboration, and that there is no corroboration.

It was submitted by learned Counsel for the Crown on the authority of Rex v. Ajayi Omokaro (1), that a confession alone, properly proved is a sufficient ground in law for a conviction without further corroboration. According, however, to Wills on Circumstantial Evidence, 7th Edition, page 120, the cases in support of this doctrine are not decisive, as in all of them there appears to have been, outside the confession, some evidence, though slight, of confirmatory circumstances and the contrary view may now be accepted as settled law. Thus in Rex v. Sykes (2), a case cited in the course of the argument, Ridley, J., observed, .• The case is undoubtedly peculiar, and requires consideration because it consists of two halves, neither of which would be sufficient alone to justify a conviction. It would have been unsatisfactory to convict on the evidence had it not been assisted by the confession, and probably it would have been unsatisfactory if the conviction rested on the confessions only, without the circumstances which make it probable that the confessions were true", and further on the learned Judge suggests the tests to be applied to a man's confession-Is there anything outside it to show it is true? Is it corroborated? Are the statements made in it of fact, true as far as they can be tested? Was the prisoner one who had the opportunity of committing the murder? Is his confession possible? Is it consistent with other facts which have been ascertained and which have been, as in this case, proved?

It hag. been observed already that the learned Judge found that the statements were made voluntarily and later confirmed b~ each appellant. In our view these statements were'il0t merely lawfully obtained but obtained in entire accordance with the spirit of the Judges' Rules. Corroboration by an eye-witness cannot be obtained in all cases of murder. A voluntary confession of guilt, if it be fully [pg 32] consistent and probable, is justly regarded as evidence of the highest and most satisfactory nature wherever there is independent proof that a criminal act has been committed by someone

In this case the corpus delicti is that an injury was inflicted upon the deceased and in circumstances showing that it was criminally inflicted. This is established by the Crown witness at the back of whose bicycle the deceased was riding when he was struck down. The enquiry then proceeds to who struck down the deceased. Here the inculpatory statements of the appellants are corroborated by several facts testified to by the witnesses for the prosecution; e.g. the alleged wounding of Akai Dienne giving cause for retaliation upon the deceased's party; the setting out of the appellants at night, both armed with matchets; the wait at the roadside; the two persons on the passing bicycle; the blow at the man behind; the flight of the two appellants; the matchet shown by first appellant to the constable; the first appellant's expression of remorse-and finally, the medical evidence of a lacerated wound across the root of the neck on the left side of the body which, in the doctor's opinion, could be caused by a matchet. It is a wound that a person striking out at a passing cyclist might well inflict on the left side and not squarely at the back of the neck.

Considering the confessions, then, together with all the other evidence in the case, they are in my opinion consistent with and not contradicted or discredited by other evidence; in other words, they state the truth as to the responsibility of· the appellants for the death of the deceased. For these reasons the appeal must be dismissed.