CRIMINAL LAW

DEFENSE OF INSANITY- NON-DIRECTION AND MISDIRECTION BY TRIAL JUDGE ON THE EVIDENCE OF INSANITY

BY 

Adebayo Adekola

LL.B, BL, ASM, ACIS 

1. INTRODUCTION

When an accused is arranged before a competent court of law, the accused has some rights, likewise defenses readily available to relieve him of criminal responsibility under the law. Such defenses are defense of alibi, lapses, insanity etc. However, as readily available as these Defenses are, the onus of establishing the existence of these Defenses is on the accused person. Although, these Defenses have their own established principles governing their prove before the law court, Insanity as a defense has been given a special treatment under the Nigeria legislation i.e Criminal Code, Administration of Criminal Justice Law of Lagos State, etc and the law courts have devotedly upheld the sacred defense of insanity without any dilution of the guiding principles of establishing same.

Aggrieved persons represented by the state in criminal matters and seeking remedy from the court of law have also come to realize the position of insanity as a defense in our law court and in most occasion rigorously pursue the task of ensuring justice is done as many accused have now come to think of insanity as an easy way to get away from being punished of their criminal acts. However, the court has warned that Defense Counsel should first and foremost know what type of evidence he needs before working hard to collect and present them. Defense Counsel can extract most of the evidence necessary by purposeful cross-examination the court added in UDOFIA V. STATE (1981) 11 SC 49.

In the light of the above, the trial courts examine all evidence presented before it in defense of insanity to avoid non direction or misdirection in giving a verdict of guilty or not guilty on the accused who has pleaded insanity as a defense. The Appellant court aren’t slow in pointing out the non direction and misdirection as the case may be and give out the necessary verdict based on evidence presented before the trial courts.

2. INSANITY AS A DEFENSE

Section 27 of the Criminal Code has created the presumption of soundness of mind. Under Section 28 of the Criminal Code, accused person affected by delusion can only be relieved of criminal responsibility,

1. If at time of committing the act or making the omission he is in such a state of mental disease or natural infirmity as to deprive him of capacity to understand what he is doing, or capacity to know that he ought not to do the act or make the omission.

Every person is presumed to be of sound mind until it is proved otherwise. And in proving otherwise, the time consideration is at time of committing the act or making the omission and not after the act or omission has come to past. The second angle to the above is the fact that the accused most be deprived of the capacity to understand what he is doing or capacity to know that he ought not to do the act or make the omission.

3. THE TYPES OF EVIDENCE TO ADDUCE

In NWOYE IGWEZE ONYEKWE V. THE STATE (1988) 1 N.W.L.R. 565 AT P.5791 the court detailed some of the types of evidence which defence counsel seeking to establish insanity as a defence would naturally like to adduce viz:

1. Evidence as to the past history of the accused. – In LOKE V. STATE (1985) 1 N.W.L.R 1 SC the Court accepted the Evidence of the mother of the accused. According to his mother, P.W 4, the nature of the illness was madness. She described his behavior as follows:-

‘’He was shouting…he used to shout and remove his shirt and trousers and go about the town in pants. That was why we concluded that he was made. His Uncle Olisa Anufe brought a native Doctor to treat the accused. By the time of the accident, the accused had not fully recovered. It appeared that he was getting better and that was why I allowed him to go to the farm. I told the police…the accused was suffering from madness’’

Coker J.S.C in allowing the appeal, quashing the conviction and sentence expressed his view that the trial judge failed to direct himself correctly on the evidence of insanity at the time of the commission of the act as adduced by the witnesses called by the Plaintiff. The Honorable Justice stated further thus.

‘’ His verdict is therefore unsafe and should be quashed…I order that the appellant is not guilty of the offence of murder by reason of insanity. I further order he be placed in custody at such place and during the pleasure of the Governor…’’ (italics supplied)

2. Evidence as to his conduct immediately preceding the killing of the deceased.- there were also evidence of the appellant’s brother, Anthony Jonny Loke (P.W.6) who testified that in April 1978 when he saw the appellant in their home, he was chained because he was sick. Said he :

‘’He was chained because he was sick. He was mad. The accused was still sick when he went to the farm on the day of the accident. His head was still not balanced’’ (italics supplied)

In the accused’s testimony before the court, he said:

‘’I went to one side of the road leading to the farm. At first I sat down. Later I stood up. When I stood up, one man was riding a bicycle. I raised up the cutlass in my hand up and cut the man. He fell down on the bicycle, on one side of the road‘’.

3. Evidence from Prison Warders who had custody of the accused and looked after him during his trial.

4. Evidence from Medical Officers and/or Psychiatrists who examined the accused.

5. Evidence of relatives about the general behavior of the accused and the reputation he enjoyed for sanity or insanity in his neighborhood.

6. Evidence showing that insanity appears in the family history of the accused.

I believe the needed evidence 3-7 above is self explanatory.

4. NON-DIRECTION AND MISDIRECTION BY TRIAL JUDGE ON THE EVIDENCE OF INSANITY

Where a trial court did not consider material pieces of evidence to determine the mental state of an accused at the time he committed the act, the appellate court will consider this as a non direction. And where the court misconceived the nature of evidence material to the defense, circumstances of the killing, nature of the killing, absence of motive and the abnormal conduct of the accused before, at, and after the killing, the imaginary statement of the accused after the killing, coupled with his mental antecedent before the act, it is doubtful whether he would have come to the decision that ‘’ there was nothing to suggest that account of the killing as given by the accused and his evidence in court is the account of a person who is of unsound mind is a misdirection.

In R V. IYANG (1946/49) XII WACA 5, a similar point on misdirection arose before the West African Court of Appeal. It was a case in which the defense was one of insanity. The trial judge regarded evidence of statement made by the appellant after the accident on being arrested and on the next day on being charged with murder, and the statement before the magistrate (which he erroneously considered coherent) as indicative of sanity rather than insanity. The court said;

‘’with respect we think that the learned Judge misdirected himself as to the inference to be drawn from the statements made on the day of his arrest and very soon after it and on the next day,’’

The Supreme Court further commented and queried

‘’the difficulty in this case is that no one can now say with any degree of certainty what verdict the learned trial Judge would have returned if he did not so seriously and materially misdirect himself’’.

ANIAGOLU, J.S.C agreeing with the judgment of his learned brother Coker J.S.C in LOKE V. STATE (supra) and allowing the appeal said

‘’ There was abundant evidence from which the insanity of the appellant was established. The trial judge accepted the evidence of the mother of the appellant, Catherine Onyioke (P.W 4) and the evidence of this woman was that the appellant was brought home from Lagos mad.

There was also the evidence of the appellant’s brother, Anthony Johnny Loke (P.W 6) who testified that in April 1978 when he saw the appellant in their home, he was chained because he was sick.

In spite of this evidence, the learned trial Judge held in his Judgement that:

‘’ there is no evidence that on 3/5/78 when the accused chopped off the head of Kaine Dike that he was suffering from any mental illness”

- A clear misdirection.

Under the first segment of section 28 of the criminal code the appellant , to avail himself of that part of section 28 could be shown to suffer from mental disease or natural mental infirmity leading to either of the three capacities;

i. Incapacity to understand what he is doing.

ii. Incapacity to control his actions

iii. Incapacity to know that he ought not to do the act or make the omission.

The available evidence in the proceedings was clearly to establish, in the very least, (i) and (ii) above but the learned trial judge without dealing, in his judgment, specifically with the various capacity simply held that:

‘’ The preponderance of the evidence in this case show that the accused does not come within the ambit of the section 28 of the criminal code of this state.’’

There was clearly a non-direction.

5. CONCLUSION

Where the defense of insanity so obviously appearing on the record was inadequately considered by the trial court, the court of appeal should not fall into same error otherwise on appeal to Supreme Court the sentence and conviction or otherwise of both the trial court and court of appeal will be set aside. 

EVIDENCE INSUFFICIENT ON A BALANCE OF PROBABILITIES.

Where evidence adduced by parties to a case before the court of law under the Nigerian legal System is insufficient on a balance of probabilities such evidence cannot meet the higher standard of proof of beyond reasonable doubt. In civil litigation, parties only do need to adduce evidence that will proof their case on a balance of probabilities while in criminal matters the prosecution most go beyond balance of probabilities and further into standard of proof of beyond reasonable doubt.

When evidence adduced in civil matters does not meet the standard of proof on the balance of probability; after the court has considered all the evidence before it, it is not convinced that it is probable that all the evidence leads credence to the case of the party adducing same. The evidence is said to be insufficient on a balance of probabilities.

However in criminal litigation, the evidence brought before the court in prosecution of the accused must be able to proof beyond reasonable doubt that the accused did commit the offense. When the evidence does not meet the standard of a balance of probability as contained in Section 135 of the Evidence Act, then the court need not go further as the required standard in criminal matter is standard of proof beyond reasonable doubt, otherwise there will be a miscarriage of justice. The Supreme Court in AGBI & ANOR V. OGBEH & ORS (2006) 7 SCM AT 1, PAGE 22 summed up this topic in these words-

“The court after quoting the opinion of the learned trial judge on the quality of evidence led before him, full of material contradictions and serious inconsistencies, his finding that there was no proof on the balance of probabilities is unimpeachable. This means that even though the court of Appeal held that the appellants were duty bound to prove the identity of the culprit beyond reasonable doubt, the quality of the evidence led by the appellants before the trial court was not even sufficient on the balance of probabilities under section 135 of the Evidence Act. In my view based on the evidence adduced by the appellants before the trial judge and the findings of the learned trial judge that the evidence adduced was insufficient proof even on the balance of probabilities make the issue of proof beyond reasonable doubt irrelevant. Even if the lower court made the mistake in supposing that the appellants were to prove the identity of the convict beyond reasonable doubt, such an opinion accepted by the trial court and this is clear in the record, and the court of Appeal was insufficient even in a situation where proof required is merely on balance of probabilities”.

Finally, the law court would not be wrong in putting on the prosecution a burden of proof under Section 138 of the Evidence Act i.e. proof beyond reasonable doubt instead of putting on the prosecution a burden of proof by preponderance of evidence or balance of probabilities under Section 135(1) of the Evidence Act. Thus any argument and submission by the prosecution contrary to the above will be irrelevant.