IN the last instalment we promised that an attempt will be made to point out the similarities between the proceedings in Oscar’s trial and what would have been, ‘had he been arraigned in a Nigerian Court’. An arraignment, according to Black’s Law Dictionary, is ‘the initial step in a criminal prosecution whereby the defendant is brought before the court to hear the charges and to enter a plea’.
It is the plea of the accused that vests the court with the jurisdiction to hear the case. In the instant case, the accused person applied for Bail soon after his arrest by the Police and despite the serious nature of the offence with which he is charged, he was released on bail by the court. Bail, according to the Black’s Dictionary, is the process by which a person is released from custody either on the undertaking of a surety or on his or her own recognizance.
The Dictionary recognizes that bail may also signify the release of a prisoner on security for a future appearance; especially the delivery of a person in custody to a surety. It ought to be remembered that the accused is in the instant case standing trial for murder and his bail application attracted very massive interest in the media.
Exceptional circumstances
In Nigeria, a court would not ordinarily release a person charged with murder on bail except upon the applicant convincing the court that exceptional circumstances exist which make it compelling to warrant the exercise of the court’s discretion in favour of such an applicant. Unlike in South Africa where a conviction for murder may land the convict in jail for life, such a convict would be sentenced to death in Nigeria.
It is the severity of the offence of murder that makes it rather difficult to release such offenders on bail. Perhaps, a high profile offender in recent times who was held in custody all through his trial is Al Mustapha who was charged with the murder of the late Kudirat Abiola, late wife of the late Chief M.K.O Abiola.
Al Mustapha was arraigned before a Judge sitting in the High Court of Lagos State in 1999 and after a trial lasting over a decade, was convicted. However, the conviction of the accused was recently quashed by the Court of Appeal and his sentence was set aside and thus his freedom was restored.
A situation in which a person charged with a heinous offence is kept in custody for over a decade is not close to a favourable advertisement for our criminal process nor does it speak well of the system of administration of criminal justice. In contrast, Oscar Pistrious, after his release on bail, knew exactly when his trial would commence and was afforded the opportunity to prepare for his defence. It is to the credit of his traducers that the case for the prosecution was made very quickly and rather efficiently and the ball is now in his court. How he approaches his defence is entirely within the purview of his learned counsel.
Perhaps, the thread that runs through South African as well as Nigerian law was noted by the Court of Appeal in Al-Mustapha v. State [2013] 17 NWLR (pt.1383) 350 which hled that it is the duty of the prosecution to prove its case, and not for the defence. The degree of proof, the court also noted, is that beyond reasonable doubt and nothing else.
Perhaps, there must be ordinary people who do not understand the hackneyed expression ‘beyond reasonable doubt’. The Court of Appeal in the above case explains it in a simple way. It is to the effect that ‘beyond reasonable doubt is the standard used to determine whether an accused person is guilty and it stems out of the compelling presumption of innocence inherent in our adversary system of criminal justice.
To displace this presumption; the evidence of the prosecution must prove beyond reasonable doubt, not beyond the shadow of any doubt, that the accused is guilty of the offence charged. Absolute certainty is impossible in any human adventure, including the administration of criminal justice. Proof beyond reasonable doubt means just what it says. It does not admit of plausible and fanciful possibilities but it admits of a high degree of probability’.
The court also emphasized that ‘reasonable doubt is the doubt that prevents one from being firmly convinced of a defendant’s guilt or the belief that there is a real possibility that the defendant is not guilty. It is not a mere possible doubt, because everything relating to human affairs, and depending on moral evidence, is open to some possible or imaginary doubt. It is that state of the case, which after the entire comparison and consideration of all the evidence, leaves the mind of the court in that condition that it cannot say it feels an abiding conviction, to a moral certainty, of the truth of the charge’.
In the context of Oscar Pistrious’ trial, it needs to be recalled that virtually every fact placed in evidence by the Prosecution has been challenged by the defence through very potent cross-examination. For instance, the Prosecution introduced in evidence excerpts from text messages exchanged between the accused and the deceased.
While the Prosecution created the impression of tension between the couple, the defence elicited under dexterous cross-examination, snippets of evidence that showed a fairly warm and loving relationship between them. Also in contention is the question whether Oscar Pistorius shot through the bathroom door, believing in the malevolence of an intruder or whether he released four gun shots in quick succession on his defenceless girlfriend, with no other intention than to kill her.
We have seen from the evidence before the court that Oscar Pistorius did not shot the deceased and then fled from the scene. He admits that he shoot her and once this reality dawned on him, he alerted security and took steps to resuscitate her. She died in his arms. Was this an elaborate hoax or a mistake? Oscar Pistorius will somehow help to unravel this when his defence unfolds from the 7th April, 2014.
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