On Trial – Episode 13

On Trial – Episode 13

© Onyinyechukwu Mbeledogu

The days rolled by quickly and then one of the dates fixed for continuation of hearing of Koje’s case arrived. Kaira had soaked herself deep into medical research and DNA mapping in order to be able to cross-examine the witness. She was fortunate to talk with a medical practitioner who was an expert on DNA. He had come recommended by his niece who was her friend. His medical practice was in the United States. In all the case she had prosecuted she hadn’t bothered with too much research into DNA because the expert was her witness.

When the case was called up, the professor took his place in the witness box and was reminded of his oath. It was time for his cross-examination. On the last adjourned date, he had educated the court and everyone present on how no two DNA samples could be the same even if their owners were identical twins.

‘What has your success rate been like, Professor,’ she asked softly.

’95%’ he replied proudly.

‘Can you refer to yourself as being infallible?’

‘No one is infallible.’

‘Now you’ve held this court that your success rate is 95%’

‘Yes

‘The 5% means that it hasn’t always been successful.’

‘Yes-’

‘And this could possibly be one of the exceptions,’ she cut in.

‘No. I conducted the test twice and the results were the same. Although there was no semen, we took vaginal swabs and pubic scrapes from the genitals of the Prosecutrix and by extracting samples from the Defendant, we were able to make a match.’

‘In your line of work, Professor, do you sit with the lab personnel while the extractions are carried out?’

‘No. It isn’t necessary. The samples are brought to my lab where the matchings are done.’

‘So you really don’t know the source until you are told.’

‘Objection my Lord,’ that came from the Prosecutor.

‘Objection overruled,’ the judge responded, and then to the witness. ‘Please answer the question.’

‘Yes,’ the professor replied.

‘It is then correct to say that there is the possibility that samples could be accidentally switched before they are brought to you.’

Her question didn’t indict his lab and so it was easy to get an honest answer from him.

‘Yes, that’s possible but lab technicians are usually careful-’

‘But not infallible. How many samples are usually taken?’

‘Three to four or thereabout.’

‘So that one could accidentally bring the same samples for tests to be run on them.’

‘Objection my Lord.’

‘Objection overruled.’

‘I-’

‘Yes or no, professor,’ she told the distinguished gentleman who was now struggling between being a good witness for the prosecution and just being a medical expert in the witness box there to do his job in that capacity.

‘It is possible.’

‘Correct me if I’m wrong. Two years ago, you testified before a court in Kaduna state with respect to a rape case and it turned out that none of the two samples you matched came from the Prosecutrix but were both extracted from the defendant after his arrest. That was the case of State v Aliyu.’

‘I-’ the professor physically squirmed in his seat and the prosecutor jumping on his feet to stop the question didn’t work.

‘I’m waiting professor.’

‘That was an error on the part of one of my technicians and I can assure you that he is no longer in my employment.’

‘The samples it turned out were samples extracted from the defendant after his arrest.’

‘Yes.’

The certified true copy of the judgment was admitted in evidence after arguments were made on its admissibility.

‘That would be all for the witness,’ Kaira announced.

She had succeeded in placing doubts in the mind of the court and that, to her, was a huge success. There was no re-examination and the witness was discharged. The prosecution called its sixth witness as PW6.

She owed her friend, Abdul, a drink for helping her discover the State v Aliyu case. They had been together at the Lagos campus of the law school and he was based in Kaduna. He had heard that she had accepted Quadri’s brief and had felt that case might be of help to her. He had been in court during the cross-examination of the medical expert.

* * * * *

The courts had begun to wind down gradually ahead of the Christmas holidays. The prosecution had closed its case and the defence was expected to open its case on the 16 of January 2017.

There were three defences available to Koje: one, he could plead that he hadn’t been to her apartment – but this wouldn’t fly as there was uncontroverted evidence, including his statement to the police, putting him at the scene of the crime including his statement to the police; secondly, he could plead consent, meaning that she had consented up until the time of penetration but he had pulled out the moment she protested. However, the bruises in her genital region and the evidence of the medical doctor that the bruises could have come from forced sex showed that the Prosecutrix hadn’t been aroused at the time of penetration which made consent a no no. Since Koje’s counsel had asked the question whether or not a woman who hadn’t had sex in a long time could have bruises whenever she finally had sex, he should have gone further to ask it if was possible for bruising or tearing to occur when the man in question was well endowed; thirdly, he could plead the defence of alibi. Alibi in this case meant that he would accept that he had been in the home of the Prosecutrix but add that he had left her home long before the rape occurred.

In her statement the Prosecutrix had stated that Koje had come to her apartment between 10pm and 11pm. Laide had been certain about the timeline because the 9 ‘0 Clock news had been over by the time she walked to the May-Weather Supermarket which was close to her house to pick up a bottle of perfume. According to Koje he had left her apartment before 10pm because he recalled stopping to pick up the suya he had paid for before walking into the supermarket earlier and had proceeded to the supermarket which closed by 10pm to pick up the provisions he had paid for earlier and a carton of chivita. There were still two or three customers in the supermarket at the time he had returned.

The fingerprint evidence already admitted by the court put Koje at the scene which he was not denying but the issue now was the timing – had he left the apartment before or after the acts for which he was standing trial?

From his late lawyer’s notes, Koje had only two witnesses – the suya seller and one of the salesgirls at the supermarket. Reading through their involvement in this whole shenanigan, Kaira found that their evidence was actually to establish a defence of alibi which was the best Koje could go for in the circumstances. Consent was a difficult defence to prove and she knew that first hand. The defence had claimed consent in Esther’s case but the prosecution had barely but fortunately been able to prove that consent had no place whatsoever in what had happened between Chief and Esther.

Koje was still hiding things from her and she believed that it would be risky to put him in the witness box for now. By law, he could not be compelled to give evidence but this time he had a case to answer, one which his chosen witnesses wouldn’t be in a position to answer. As she had predicted, there had been need wasting the time of the court by raising a no case submission. So far the prosecution had established that the Prosecutrix had indeed been assaulted. The picture of her swollen face and the report of the doctor who has seen her at the office had corroborated her story. However, the Prosecutor was yet to prove that the defendant was the one who assaulted her. Then again, this would easily be proved if the defendant was found guilty of rape.

Working with the recent decision of the Supreme Court in Adonike v State, the prosecution was bound to prove the following ingredients to establish the offence of rape:

1. that the accused had sexual intercourse with the Prosecutrix;

2. that the act of sexual intercourse was done without her consent or that the consent was obtained by fraud, force, threat intimidation, deceit, or impersonation;

3. that the Prosecutrix was not the wife of the accused;

4. that the accused had the mens rea, the intention to have sexual intercourse with the Prosecutrix without her consent or that the accused acted recklessly not caring whether the Prosecutrix consented or not;

5. that there was penetration.

Penetration was the most important ingredient of the offence. Sexual intercourse is deemed complete, upon proof of penetration of the p***s into v****a not matter how slight. Any other form of penetration was at best qualified under the offence of indecent assault which carried a lesser jail term. Emission was not a necessary requirement as in this case where the Prosecutrix alleged that Koje had forced himself on her and then pulled out as though he had just come to his senses. And the Prosecutrix need not have been injured in the course of the forced intercourse.

So far, ingredient (c) was the only ingredient that had been fully established by the Prosecution. The evidence of the Prosecutrix that she had non-consensual sex with Koje hadn’t been debunked so far. Corroboration of the evidence of the complainant in a rape charge was not required under law, however, a judge was in the absence of corroboration expected to warn himself of the risk of convicting on the uncorroborated evidence of the complainant which was why as a matter of practice, the prosecution was required to provide corroboration. Kaira had succeeded in raising doubts with regard to the DNA testing that had put Koje as the perpetrator of the rape.

But as it stood, Koje needed to take the stand and tell his own side of the story. He wasn’t a favourite presently as a lot of people especially on social media were rooting for the prosecution.

‘I thought I cannot be compelled to defend myself,’ Koje told her. ‘I told my other lawyer that I will not do it.’

They were in Kaira’s office.

‘The prosecution has built a strong case against you, Quadri,’ she told him without mincing words. ‘They have raised questions that only you can answer. Your evidence is needed.’

‘I have two witnesses,’ he reminded her.

‘Two witnesses who cannot answer the questions of what really went on inside Laide’s apartment. You told the police in the statement you made before them that you were in her home briefly and then left. Laide had told the court her own version of what happened including specific timelines, not it’s your turn to tell your own version. The court needs to be convinced that you were in her home but did not hurt her and that at the time you left, she was unharmed.’

‘You think the court would believe that after I had followed her to her house, I just shared a drink with her and disappeared?’ Koje snorted. ‘Even you believe that something happened between Laide and I that night.’

‘Like I’ve told you several times, my personal opinion is not important.’

‘Isn’t it?’ he challenged. ‘You expect me to get into the witness box and subject myself to questions I know I won’t be comfortable with and with the knowledge that my lawyer thinks I’m guilty?’

‘My personal opinion does not matter. After all you are paying Five Million Naira for me to take my personal opinion of you and shove it down my throat,’ she reminded him. ‘Besides, what the court is concerned about is your evidence before it and not what I or the prosecution thinks. You should know that if it wasn’t necessary for you to give evidence in your case, I would have spared you that. I have no idea what you are or would be like as a witness. For all I know, you might just mess up the whole thing.’

He glared at her.

‘The other two witnesses are there to corroborate the fact that you visited a supermarket and bought suya from the mallam in the area after you had left her apartment. Without your evidence, there would be nothing to corroborate.’

‘And if I choose to opt out, what then?’

‘It’s your decision. You’re paying me to give you the best defence in the circumstances and I cannot do that if you refuse to give evidence. I can’t compel you because you fall into the category of non-compellable witnesses. However, it is in your best interest to give evidence.’

‘I don’t want to do this.’

‘What are you afraid of?’

‘Having my words given a different interpretation.’

‘I’ll be there with you every step of the way. We would need to go through your evidence over and over again, and while we’re at it, I’ll go through a few questions with you that I feel the prosecution might ask you under cross-examination.’

She reached across her table and placed a palm over his hand.

‘We have to do this.’

He looked at the hand she had placed on his and she withdrew her hand immediately.

‘We have to do this,’ I repeated.

He shrugged.

‘I’ve prepared some questions and I demand total honesty.’

‘I hate it when you use that word as though I’m a big fat liar.’

‘That was not my intention but you have to admit that you’ve been telling me half-truths since we met. I need to push before you tell me anything useful. Like now, I know there are several things you still haven’t told me.’

‘Like what?’

‘If I knew the answer to that I wouldn’t have made the speculation now, would I?’ she returned.

‘You’re the one insinuating that I am not being completely truthful. So you should tell me why you think so.’

‘I know it and so do you. Let’s leave it at that.’

She took out a mini recorder and slot in a tape.

‘What is that for?’ he asked, eyeing the recorder suspiciously.

‘I thought it was obvious? I intend to record this aspect of our discussion.’

‘Oh no you don’t!’

‘What do you think I’m going to do with it? Sell it to the prosecution?’

‘Are you?’

She glared at him.

‘I am your counsel. You should be able to trust me.’

‘Oh so you want trust now, ba?’ he bit out. ‘Why should I trust you when you don’t trust me?’

‘There is no rule that says a counsel must trust his or her client but rather, a client is expected to have faith in his or her counsel. Besides, you haven’t given me any reason to trust you.’

‘I haven’t given you any reason to distrust me,’ he countered. ‘Have I ever come on to you? Have I ever laid my hands on you? Have I ever asked you out? No. And yet you and the others act like I’m a beast with insatiable desires.’

He leaned forward and she recoiled.

‘You see!’ he continued. ‘If you want my trust then you must be prepared to return it, Ms Madukaife.’

She flinched at his tone.

‘Please remind me. Why exactly did you pick me as your counsel?’

‘Because you’re good and because you were recommended.’

She looked at him for a long time.

‘Let’s get down to business,’ she finally said.

‘Not if you intend to record this.’

‘What’s the matter with you? If I had known you would be this difficult about my using a recorder, I would have hidden the tape recorder and simply pressed the record button.’

‘I would have heard the sound,’ he assured her. ‘Now lose it!’

To be continued

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