Sahalatu Shazali V. The State (1988)
LawGlobal-Hub Lead Judgment Report
G. O. AGBAJE, J.S.C.
The appellant, Sahalatu Shazali, was arraigned in a Kano High Court on a charge of culpable homicide punishable with death under section 221(a) of the Penal Code and, in the alternative, on a charge of mischief by fire with intent to destroy a house punishable under section 337 of the same Penal Code.
The case was tried by Fernandez, J. The prosecution led evidence in support of the offences alleged to have been committed by the appellant. The appellant led no evidence at all for the defence. In short, the defence rested its case on the evidence adduced by the prosecution.
The learned trial Judge in his judgment delivered on 9th August, 1984 found the appellant guilty of culpable homicide punishable with death as charged, and, accordingly sentenced her to death. No verdict or sentence was returned by the learned trial Judge on the alternative charge of mischief by fire. Nothing turns on this on this appeal. So I will say nothing more about it.
The appellant appealed unsuccessfully against her conviction and sentence to the Court of Appeal, Kaduna Division, coram Wali, J.C.A. (as he then was) Maidama and Ogundere, JJ.C.A. In his lead judgment given on 31st March, 1987 and in which Wali, J.C.A. (as he then was) and Maidama, J.C.A. concurred Ogundere, J.C.A. said inter alia:-
First: “In this case the prosecution rested its case not so much on circumstantial evidence but on the confession of the appellant and the evidence of the two infant children of the appellant which learned trial Judge accepted in proof of the case. Although parts of her own statement and the evidence of P.W.3 and P.W.4 require some explanation from the appellant, she chose, as she is entitled to do under the law, to rest her case on that of the prosecution.”
Second: “In this case the appellant gave no explanation as to why she made no effort, as her son did, to force the door open to let her husband out of the burning loose, as the brigands she said she saw were out of sight, or made no effort to wake up her husband as she did for her children, before the house was on fire. Her actions therefore, corroborate her own confession and the evidence of her children PW3 and P.W.4. The only inference that one could draw is that the appellant deliberately planned the death of her husband, among other reasons, that the husband resented the several men which the appellant brought into the house in his absence in respect of which she was asked to visit a family friend to caution her in that regard.”
Third: The next question to consider, since we must accept both the good and the bad in her statement. is whether the conviction will hold in view of the fact that she said armed men stood over her and forced her to set fire to her room. Under Section 57 of the Penal Code. that is not a defence. It provides as follows:-
“57, Except culpable homicide and offences against the State punishable with death, no act is an offence which is done by a person who is compelled to do it by threats which at the time of doing it reasonably cause the apprehension that instant death to that person will otherwise he the consequence: Provided that the person doing the act did not, of his own accord or from apprehension of harm to himself short of instant death, place himself in the situation by which he because subject to such compulsion.”
Ogundere, J.C.A. then dismissed the appellant’s appeal to the Court of Appeal.
The appellant has now appealed further to this court against the judgment of the Court of Appeal Kaduna Division, dismissing her appeal to that court anti affirming her conviction and the death sentence passed on her by Fernandez. J. sitting at a Kano High Court.
In this court briefs of arguments were filed by the appellant and the respondent, the State. In the appellant’s brief of arguments filed on her behalf by her counsel. Mr. Ajala the issues arising for determination in this appeal have been identified as follows:-
“1. Whether, in a serious case of culpable homicide punishable with death, it is safe for the trial Court, as affirmed by the Court of Appeal, to conveniently rely on the evidence of P.W.3 Audu Shazali and P.W.4 Ibrahim Alhaji Shazali, 11 years and 13 years old respectively, and of tender years, who were the children of both the deceased and the appellant, in convicting the appellant accordingly, without warning itself of the danger and risk inherent in acting on such evidence, which was not corroborated.
- Whether the conduct of the appellant on the night of the incident was enough corroboration of the evidence of the children aforesaid.
- Whether the written statement of the appellant, admitted and marked as Exhibit B. was a confessional statement as such.
- Whether, in the absence of proof beyond reasonable doubt, of the essential elements of the offence as charged under Section 221(a) of the Penal Code and the particulars of the charge itself, does the facts of the case amount to circumstantial evidence cogent, compelling, complete, unequivocal and strong enough to lead to the conviction of the appellant.
- Whether, having regard to the totality of evidence before the Court and the circumstances of this case, the appellant is entitled to a conviction for a lesser offence of culpable homicide not punishable with death under Section 224 of the Penal Code.
- Whether the decision of the lower court can he supported, having regard to the evidence.”
The respondent, the State, in its brief of arguments filed by the learned Director of Public Prosecution, Kano State v. Borodo has, for its part, identified tilt’ issues arising for determination in this appeal as follows:-
“1. Whether it was proper in Law for the learned trial Judge to have inter alia believed and relied upon the evidence of P. W.3. Audu Shazali. P.W.4 Ibrahim Alhaji Shazali; 11 and 13 years old respectively.
- Whether the evidence of P.W.3 and P.W.4 needed corroboration in the circumstances of this case.
- Whether the conduct of the appellant on the night of the incident as shown in Exhibits A – D was enough corroboration of the evidence of P.W.3 and P.W.4.
- Whether the written statement of the appellant admitted and marked Exhibit B was a confessional statement in the circumstances of this case and the Court should convict the appellant based on the same. –
- Whether the circumstantial evidence in this case is cogent, compelling and unequivocal to warrant the conviction of the appellant by the trial Court.
- Whether the prosecution has proved its case against the appellant beyond reasonable doubt.
- Whether the decision of the two lower Courts can be supported having regard to the evidence adduced in this case.”
The issues said by the respondent in its brief of arguments as arising for determination in this appeal are no more than variations on the issues submitted by the appellant in her brief of arguments for determination in this appeal. So I will adhere to the latter issues in this judgment in the consideration of which I must necessarily touch on all the submissions in the respondent’s brief of arguments as to why the appellant’s appeal must fail.
Before I go into the consideration of the issues arising for determination in this appeal, I must state the case for the prosecution against the appellant. And since as I have said earlier on in this judgment the appellant rested her case on that of the prosecution it must be taken that the facts as presented by the prosecution in so far as they emerged from legal or admissible evidence are not in dispute and as was observed by this court in the Queen v. Ijoma (1962) 1 All N.L.R. 402 at 403 and more recently in Ali and anor. v. The State part 68 (1988) 1 N.W.L.R.1. at page 12 the appellant cannot now in the circumstances complain about the acceptance of the uncontradicted evidence by the learned trial Judge and about the fact that both the two lower courts acted on that evidence. It is however a different matter if the complaint of the appellant is about the issue to which the two lower courts put the uncontradicted evidence as it appears the appellant is now doing in this appeal.
The case for the prosecution put briefly is as follows: In the night of 11th/12th January, 1984, the appellant Sahalatu Shazali, and her husband, Alhaji Shazali Ibrahim and their four children, two boys and two girls – Ibrahim aged 13 years. Abdu 11 years, Umma 9 years and Hannatu 4 years – retired to bed in their matrimonial home at No. 330 Fagge ‘A’ Kano within the Kano Judicial Division. The house is in a large compound of about 5 or 6 houses, the matrimonial house being at one extreme end of the compound.
The building is made up of a bed room, a sitting room, a bath room, a separate toilet and a kitchen. The building has one entrance to it from outside with an iron door with lock and key to the entrance. There is equally one entrance to the big compound. The other houses in the compound are occupied by relations of Alhaji Ibrahim. Inside the house of Alhaji Ibrahim, there is a connecting door between the sitting room and the bed room both of which are on one side of the house with the sitting room nearer to the entrance. On another side of the house are the toilet and the kitchen with the latter adjacent to the bed room.
On the night in question Alhaji Shazali Ibrahim slept in the sitting room on a bed whilst his wife, the appellant slept in the same sitting room on the floor on a blanket spread on it. Their four children slept in the bedroom. Both the appellant and her husband retired to bed after 1a.m. on 12/1/84, the children having gone to bed much earlier than that. Later that night when all the other occupants were fast asleep, the appellant got up from where she was sleeping in the sitting room, went to the bed room where their children were sleeping, woke them up and asked them to leave the house and go aside because according to her thieves had entered their house. The children complied with this and whilst they were outside the house one of them, a boy, said he was feeling cold. So their mother, the appellant led them back into the house but this time put them in the kitchen. Whilst the children were in the kitchen, the appellant again told them to go out of the building but her reason now for this was that the thieves had set the house on fire. The children again went out. In fact there was a fire inside the house that night. It started from the bed room. Whilst the appellant and her children were then outside of the building, her husband, Alhaji Shazali Ibrahim, was still inside in bed and sleeping. The heat and smoke from the fire presumably woke him up. Then he started to call the names of his children who he thought were still inside the house. He tried to get out of the house but he could not open the door to the sitting room because it was locked. His eldest son, Ibrahim, having realised the plight of his father, tried unsuccessfully too to open the door and come to his aid. Alarms were raised which attracted neighbours to the scene. The door to the sitting room was eventually forced open. Shazali Ibrahim was carried in an unconscious state out of the sitting room which was then very hot and filled with smoke. He was rushed to Murtala Hospital Kano where he died at about 8a.m. 12/1/84. A post-mortem examination on the body of the deceased was carried out that morning. Medical evidence as to cause of death of the deceased was insufficient transportation of oxygen into the brain, a situation which may result from inhalation of extensive smoke. Other causes of that condition, according to the medical evidence, were strangulation, cancer of the lungs or brain tumour or indirectly, consumption of alcohol over a period of time. The medical evidence ruled out cigarette smoking as a possible cause of death.
In connection with the incident a report of burglary and arson by the burglary was lodged with the police, in the morning of 12/1/84. The police started their investigations into the report that same day by visiting the scene of the crime in the afternoon of that day, and the day after. At the scene, there was no evidence of any breaking and entry into the deceased’s house from outside. This made the police skeptical of the report of burglary. Then the appellant became a suspect. Statements under caution were taken from her on 14/4/84, 17/1/84, 25/1/84 in Hausa language, and English translations of them were made, I will refer to only the English versions in this judgment. There is no dispute at any stage of the proceedings in this case as to the correctness of the translations. They are Exh. A of 14/1/84, Exh. B. also of 14/1/84; Exh. C of 17/1/84 and Exh. D of 25/1/84. The story of the appellant as regards the fire in the deceased’s house that night was that she was forced under threat of violence to herself and her children, to pour petrol inside the bedroom and ignite it by the intruders into their house. She said the intruders were four and that they were sent by one Bendeeje to kill the deceased. The intruders according to the appellant’s statement saw to it that the appellant’s children were in safe places before the fire was started. Relations between the appellant and her deceased husband were not very cordial before the fire incident although the appellant maintained in her statements to the police that she felt no anxiety about it. The prosecution called Audu Shazali aged 11 years and Ibrahim Shazali aged 13 years both of whom gave sworn evidence as to what they saw and observed that night. The learned trial Judge having been satisfied from answers to questions from him to them that they each were sufficiently intelligent to be able to understand the questions put to them and to answer them rationally and furthermore they understood the nature of an oath.
These premises for the reception of their sworn evidence were not called into question in this appeal. So we are only concerned here with the treatment given to their sworn evidence. There is no dispute to their being put by the appellant out of the reach of harm from the fire before it was started by the appellant. They gave evidence that at the material time they saw no stranger in the house and heard no strange noises. And Ibrahim said that his mother the appellant did not help when he was trying unsuccessfully to open the door to the sitting room where his father slept and help him out of the burning house.
There was evidence from the prosecution that before the deceased returned to his house that night he had had some alcoholic drinks in the company of a girl-friend and other friends. At an identification parade by voice, arranged by the police the appellant picked one Badayi who she said the intruders said had sent them to kill the deceased. On the strength of the story of the appellant in her statement. Badayi and four others were arrested and interrogated, three of them were later charged in court. But the case against them was dropped when there was no evidence to support it. The prosecution also led evidence that there was a night watch on the premises of the deceased that night and that at least 10 persons were sleeping in the open space at the entrance to the deceased house that night.
It is on the above uncontradicted evidence that the Court of Appeal held in the manner. I have indicated earlier on in this judgment whilst affirming the judgment of the trial court.
I can now begin the consideration of the issues arising for determination in this appeal in the light of what I have hitherto been saying.
I start with issue (1) in the appellant’s brief of arguments i.e. whether or Court the learned trial Judge and the Court of Appeal were wrong in acting on the sworn evidence of P.W.1 and P.W.4, children of tender age in the absence of warning by the trial, judge of the danger of acting on such evidence. As regards the Sworn evidence of a child of tender age this court said in Sunday Akpan v. The State (1967) N.M.L.R. 185 at 187-188:-
The first ground of appeal argued by Mr. Cole for the appellant was that the learned trial Judge failed to warn himself of the danger of acting on the uncorroborated sworn evidence of children of tender years. Under Section 182 of the Evidence Law, if a child gives unsworn evidence then a person cannot be convicted on such evidence without corroboration. In this case, however, the learned trial Judge after questioning the boy the 1st prosecution witness, decided that he understood the nature of an Oath and allowed him to be sworn. In the case of a child who gives sworn evidence then if the child is an accuser in R v. Mitchel 36 Cr. App. R.79 it was held by the Court of Criminal Appeal that corroboration was needed …………………………..
In R v. Campbell (1956) 2 Q.B. 432 Goddard L.C.J. delivering the judgment of the Court of Criminal Appeal said:
The sworn evidence of a child need not as a matter of law be corroborated, but a jury should be warned, not that they must find corroboration, but that there is a risk in acting on the uncorroborated evidence of young boys or girls, though they may do so if convinced that the witness is telling the truth, and this warning should also be given where a young boy or girl is called to corroborate the evidence either of another child, sworn or unsworn or of an adult.”
In our view, when Goddard L.C.J. used the word ‘should’ in the con of the last case cited, he must be taken to have meant that it was a desirable practice that this should be done, not that it was so requirement so that if it was not done the appeal court must allow the appeal. It must in our view depend upon all the circumstance of any particular case whether in fact, if a Judge does not warn a jury or if sitting alone, does not warn himself of the risk involved in relying solely on the sworn evidence of a child under fourteen years, the court can be satisfied that there has been no miscarriage of justice.
It is to be noted that the appellant in her statements to the police put in evidence in this case said that whilst she was removing her children from the bedroom to places of safety, the intruders into their house that night hid themselves from view and most presumably kept silent where they were. So if P.W.3 and P.W.4. witnesses of tender age said they saw no strange faces or heard no strange voices in their house that night that is to be expected going even by the account of the appellant as to what happened that night. Again, the appellant in her statement said that the entrance door to the sitting room where her husband was sleeping that night was locked by- one of the intruders after the fire inside the house had been ignited. She did not say that she helped in trying to open the door. And surely the evidence of P.W.3 that he did not believe his mother’s story that thieves broke in the house is not evidence that his mother was not crying, not is it evidence that she did nothing to call for outside help as the appellant alleged in her statement and some prosecution witnesses testified to in court.
The conclusion I reach therefore is that the decision in Akpan v. The State (supra) as to the need for a court to warn itself of the danger of acting on the sworn evidence of children of tender age before acting on it is only of academic interest here for the appellant in her statement to the police and P.W.3 and P.W.4 in their evidence in court were at one as to what P.W.3 and P.W.4 saw and observed. If inspite of what I have just said the decision in Akpan v. The State (supra) is still being pressed on us by counsel for the appellant as authority that evidence of P.W.3 and P.W.4 must be corroborated I will then say the statements of the appellant to the police provide ample corroboration of the evidence of P.W.3 and P.W.4 in that the statements render it probable that their evidence was true (see R v. Baskerville (1916) 2 K.B.D. 658 at 665 which was quoted with approval by this court in R v. Olumide & 17 ors. (1964) N.M.L.R. 67.
I can easily dispose of issue 2 in the appellant’s brief of arguments by referring to what I have just said namely that I find corroboration of the evidence of P.W.3 and P.W.4 children of tender age in the statements of the appellant, put in evidence by the prosecution. In effect I uphold the submission of counsel for the respondent, the learned D.P.P. Kano State that the statements of the appellant to the Police were enough corroboration of the evidence of P.W.3 and p, WA. It is unnecessary to look for further corroborative evidence of their evidence in the form of the conduct of he appellant that night, when P.W.3 and P.W.4 were outside of the house and the house was burning.
I now come to issue 3 as to whether Exh. B, the appellant’s statement to the police was a confessional statement. The relevant portion of Exh. B is as follows:-
“That man brought out matches from his pocket, scratch the matches and threw into the room the fire started then the man hurry up towards toilet, when I saw the fire started burning I went to the kitchen and opened my children……………………………..it was then I saw that same man went and locked the door of the parlour while my husband was inside, I ran out shouting and calling on people that thieves have set fire.”
In his submissions on this issue counsel for the appellant referred to section 27(1) of the Evidence Act which says:-
“A confession is an admission made at any time by a person charged with a crime. stating or suggesting the inference that he committed that crime…
There is nothing in Exh. B stating or suggesting that the appellant ignited the fire that burned in the house that night.
However, the learned Director of Public Prosecutions, Kano State, for the respondent, in the respondent’s brief of arguments has drawn our attention to Exh. C another statement of the appellant tendered and admitted in evidence wherein the appellant said that having poured petrol into the bedroom she struck a match and threw it through an open window, most presumably from outside, into the room to ignite the petrol which was in fact ignited. The learned D. P. P. also reminded us that the appellant in Exh. C said she did this under duress exerted on her by the intruders. In so far as the appellant said in Exh. C that it was her hand that struck the match that ignited the petrol that she poured into the bedroom that night I am prepared to hold that Exh. C could be regarded as a confessional statement by the appellant to the fact of the fire in question being caused by her. It is not an admission of guilt of the offence charged, namely murder. Whether she was in the circumstances guilty of the offence will only be determined after her defence or plea of acting under duress had been determined. So I do not agree with the learned D.P.P. Kano State or the Court of Appeal, the lower Court, that even Exh. C is a confessional statement within the meaning of that expression in section 27(1) of the Evidence Act.
Having held that neither Exh. B nor Exh. C both of them statements of the appellant to the Police, was a confessional statement in the strict sense of that expression under section 27(1) of the Evidence Act and that the Court of Appeal was wrong in treating them as such, the question necessarily arises whether the latter has occasioned any miscarriage of justice. Miscarriage of justice in my view could only have occurred if the lower court properly directed as to the correct and true nature of the exhibits could not have reached the decision it reached in this cast.
Perhaps it is convenient to consider now in what way if any the consideration of the appellant’s plea of duress could have been prejudiced by the view of the court below that she had made a confessional statement. There is no doubt that the plea of duress received the attention of the two courts below and both courts held that because of the provisions of section 57 of the Penal Code which I have reproduced above duress is no defence in a case of culpable homicide like the one the appellant was facing. Counsel for the appellant has not specifically attacked this finding in any of the grounds of appeal in this case. However, there are the following submissions to us:-
“The appellant, respectfully submit, that in the circumstances of this case and hearing in mind Exhibit B. her written statement, the appellant ought to have the benefit of the combined provisions of Section 57 and 224 of the Penal Code and be convicted of a lesser offence of culpable homicide not punishable with death. To that end, this Honourable Court is, therefore, urged to apply the provisions of Section 217 of the Criminal Procedure Code Cap. 30, which provides:
“If in the case mentioned in Section 216 the accused is charged with one offence and it appears in evidence that he committed a different offence with which he might have been charged under the provisions of that Section, he may be convicted of the offence which he is shown to have committed although he was not charged with it.” See Agumadu v. R. (1963) 1 All N.L.R. 203; Queen v. Nwaugoagwu (1962) 1 ALL N.L.R. 294 at page 299, Adebayo v The Republic (1967) N.M.L.R. 391 at pages 393-394, The Queen v. Stephen Oji (1961) 1 All N.L.R. 262 at page 268 and Akwule “The Queen (1963) 1 ALL N.L.R. 193 at pages 201-202, to mention a few, where the Supreme Court of Nigeria invoked its power under Section 27(2) Supreme Court Act, No. 12 of 1960.
This Honourable Court is, therefore, urged to allow this ground of appeal, as there was a substantial miscarriage of justice in this case.”
It appears to me that counsel is now saying in the above submissions that the defence of duress in a case of culpable homicide if established will have the effect of reducing the offence charged to a lesser one. I have no doubt that counsel is mistaken in this submission. In the first place, under Section 57 of this Penal Code a defence of duress if upheld in the case to which it applies will result in the discharge and acquittal of the accused person of the offence charged. And in the second place, the defence does not, as both the two lower Courts found and I agree with them, apply to cases of culpable homicide like the one in hand.
I am therefore satisfied that the consideration of the plea of duress raised by the appellant cannot be and has in fact not been prejudiced by the view of the court below that the appellant made a confessional statement to the police.
What I have to consider next as regards the view of the Court of Appeal that the appellant made a confessional statement is whether the view has been prejudicial to the appellant in the assessment or evaluation of the totality of the evidence against the appellant. That is to say, having regard to the true nature of the statements of appellant to the police can it he said on the totality of the evidence adduced by the prosecution that it had proved its case against the appellant beyond reasonable doubt This, in my view, is what issues 4, 5 and 6 in the appellant’s brief are all about.
The prosecution relied on the statements of the appellant to the police and circumstantial evidence to establish it that it was the appellant who caused the death of the deceased with the intention of causing death.
It is the submission of counsel for the appellant that the medical evidence in this case did not establish conclusively the cause of the deceased’s death. I do not agree to this. Dr. Muktar Kura who performed the post mortem operation on the body of the deceased gave it as his opinion that the deceased died of insufficient transportation of oxygen into the brain, a condition which may he caused, inter alia, by excessive inhalation of smoke of any type.
The evidence, in this case was that the appellant went to bed apparently hale and hearty the night before his death and was brought out in the early hours of the morning unconscious from the room he slept which was filled with smoke from the fire burning there and was rushed to the hospital where he died shortly afterwards. The latter evidence taken along with the medical evidence as to cause of death of the deceased will leave no reasonable tribunal in any doubt that the deceased died as a result of the excessive smoke he inhaled whilst he was trapped in the room he slept that night. Again, there can be no doubt at all that the smoke came from the fire burning in the deceased’s house that night.
It is common ground in this case that there was a fire in the deceased’s house that night and that the deceased was trapped in the house with the fire burning there. The appellant admitted in Exh. C. one of her statements to the police, to being responsible for the fire albeit under duress. I have said that the plea of duress will not apply in a case of this nature, culpable homicide. I take it then that it is this admission of causing the fire which counsel for the appellant submits in the appellant’s brief must pass the tests laid down in Dawa v. The State (1980) 8-11 S.C 236 at 267-268 before the appellant can be rightly convicted on it. In that case Obaseki. J.S.C said at pages 267-268:-
“On the issue of weight to be attached to confessional statements retracted or not retracted, the tests to be applied and or followed were laid down in R v. Sykes (1913) 8 Cr. App. R. 233 and approved by the West African Court of Appeal in Kanu v. The King (1952/55) 14 WACA 30. and I regard them as sound and golden.
The questions a Judge must ask himself are:-
(1) Is there anything outside the confession to show that it is true
(2) Is it corroborated
(3) Are the relevant statements made in it of facts, true as far as they can be tested
(4) Was the prisoner one who had the opportunity of committing the murder
(5) Is his confession possible
(6) Is it consistent with other facts which have been ascertained and have been proved
If the confessional statement passes these tests satisfactorily, a condition founded on it is invariably upheld unless other grounds of objection exist. If the confessional statement fails to pass the tests, no conviction can properly be founded on it and if any is founded on it, on appeal, it will be hard to sustain.”
The circumstantial evidence adduced by prosecution was directed towards showing not only that the story of the appellant in Exh. B that intruders broke into the house and started the fire was completely false, but also that nobody besides the appellant could have caused the fire that night. There was uncontroverted evidence that when the police visited the scene of the crime on the noon of the day following the night of the fateful incident there was no evidence of any breaking and entry into the house from outside the previous night.
It was common ground that it was after the appellant had removed her four children to places of safety whilst the deceased was still sleeping in the house that the fire started. It was common ground that the appellant and her children passed through the room the deceased was sleeping on their way to places of safety and nothing was done by the appellant to even disturb the deceased in his sleep. It was common ground that the deceased was trapped in the house with the entrance door locked from outside and the appellant and her children outside and out of danger zone. It was alarms by the appellant and the appellant’s children whilst outside the house which alerted others to the fire inside the house for the first time.
The above is the gist of the evidence led by prosecution. The appellant offered no evidence in her defence. There were of course her statements to the police before the court. So it is necessary to examine the evidential value of the statements. The appellant’s statements to the police are admissible against her as admissions or confessions.
On the other hand the statements arc not admissible in her favour. In the latter instance the statements will be regarded as self serving statements as was decided in R v. Thompson reported in the Criminal Law Review January, 1975 at page 34. The statements in that case only fore-shadowed the defence of the appellant. Where the appellant’s statements contained statements in part admission and in part denial the statements are admissible not only of facts admitted but also of facts denied. See R v. Donaldson (1976) Criminal Law Review page 686.
It is in the light of the above authorities that I have come to the conclusion earlier on in this judgment that Exh. C, the appellant’s statement to the police is not an unqualified admission of guilt but an admission to having done the actus reus coupled with a denial of the mens rea in that the actus reus was done under duress. So subject to what I have just said the statements of the appellant to the police, any of them are not evidence in favour of the appellant. Accordingly the statements of the appellant that intruders broke into the house that morning and did certain things she mentioned are not evidence of those facts in this case.
The appellant as I have said earlier on in this judgment offered no evidence on her own behalf. So the evidence for the prosecution was uncontradicted. This evidence showed that there was no evidence of breaking and entry into the house from outside that night; that no strange faces were seen and no strange voices were heard in the house that night at all times material to this case; that the appellant moved her children out of the house that night and it was immediately after this that the fire started; that the appellant had the opportunity to commit the offence; that the relations between her and her husband, the deceased, were not cordial; that the appellant had intimate knowledge of the fire and its cause; and that the appellant confessed to having started the fire albeit under duress. The confession has not been retracted by the appellant.
As regards this confession the following passage from the judgment of Dixon, J., in the High Court of Australia in McKay v. The King (1935) 54 C.L.R.1 at 8 which was quoted with approval in Obosi v. The State (1965) N.M.L.R. 119 at 123 ought to be borne in mind too:-
The prisoner voluntarily, made an express acknowledgement of the commission of the criminal acts for which he was afterwards indicted. The circumstances in which he made the confession were such as to make it improbable that he would own his guilt for any other reason than a consciousness that it was in fact undeniable. No cause, rational or irrational, for his making a false confession appeared and no reasonable hypothesis could be suggested which would account for his acknowledgment of guilt if it were untrue.”
And with reference to the circumstantial evidence it must be remembered that it is settled law that for such evidence to ground a conviction it must be so cogent, compelling, complete and unequivocal that it points irresistibly to the guilt of the appellant and to no other person. See J. Lori & Anor. v. The State (1980) 8-11 S.C. 81 at 86-87, Teper v. The Queen (1952) A.C. 480 at 489. R v. Robertson (1913) 9 CAR 189 and Popoola v. Commissioner Police (1964) N.M.L.R. 1 all of them cited to us by counsel for both sides.
The facts proved by the prosecution which I have highlighted above tend to show that the confession of the appellant that she started the fire was the truth and in the words of Dixon. J. in the Australian case no reasonable hypothesis could he suggested which would account for her acknowledgment of having started the fire if it were untrue. And again the facts proved by the prosecution led to the irresistible conclusion that the appellant and no other person had the opportunity to cause the fire and was in fact the one who caused the fire.
I have held earlier on in this judgment that it was the smoke from the fire in the house that night that killed the deceased. The appellant started the fire knowing full well that the deceased was fast asleep inside the house then. She did not wake up the deceased, whilst she moved her children out of the house. The door to the house was subsequently found locked from outside. There was incontrovertible evidence that besides the appellant, the deceased and their children, there was no one around then. The irresistible conclusion is that it was the appellant who locked the door.
It is an elementary proposition of the criminal law that every person is taken to intend the natural and probable consequences of his or her act. See for instance R v. Dim 14 W.A.C.A. 154 at 155. The probable consequence of the fire started by the appellant in the house that night with the deceased sleeping and trapped inside it is that the deceased would at least inhale the smoke from the fire. So the appellant must be taken to intend this consequence.
In sum on the totality of the evidence adduced by the prosecution the latter had proved the guilt of the appellant beyond any reasonable doubt. So, although the appellant’s statements to the police are in my judgment incriminating statements described in error by the Court of Appeal as confessional statements, yet, since in fact there was other conclusive evidence of guilt of the appellant alongside the incriminating statements there is no miscarriage of justice as a result of this misdirection on the facts. See R v. Essien 5 W.A.C.A. 70 at 72.
So, the rest of the issues raised in the appellant’s brief must in my judgment be resolved against the contentions of the appellant.
In the result, the appellant’s appeal, in my judgment, fails. I hereby dismiss her appeal. Her conviction and sentence by the trial court and which were affirmed by the Court of Appeal are hereby further affirmed by me.
SC.53/1988
