WOOLMINGTON V.

DPP, THE DEFENCE OF INSANITY, AND THE

QUESTION OF BURDEN OF PROOF UNDER THE LAW OF EVIDENCE:
Examining what constitute reasonable doubt

Jesufemi Love Ayodele

INTRODUCTION

The expression “burden of proof”, standing alone is self-explanatory; it is the obligation

to prove.1 In criminal trials the burden of proof is universally agreed to be of vital importance2,

and it standard is proof beyond reasonable doubt.3 This burden can be legal or evidential, the

legal burden is on the prosecution in criminal cases and it never shifts. 4 So far as it borders on

proof beyond reasonable doubt, we may ask; what happens when the prosecution has discharged

this burden? Does a discharge of it translate into automatic conviction? An attempt will be made

to give answers to these questions, as well as give the Nigerian position on the rule espoused in

the celebrated case of Woolmington v. DPP.5 This paper considers what constitute the defence of

insanity under Nigerian Law, and also examines how reasonable doubt can be deduced on behalf

of an accused person, using murder trials as a case study.

In his famous speech in Woolmington v DPP6, Lord Sankey opined thus:

"Throughout the web of the English Criminal Law one golden thread is
always to be seen that it is the duty of the prosecution to prove the
prisoner's guilt subject to... the defence of insanity and subject also to any

1
Adrian Keane: The Modern Law of Evidence (4th edition, Butterworths 1996) page 66
2
Roderick Munday: Book Review on The Burden of Proof, edited by Albert kiralfy. (1987) vol 46 no.3 CLJ <
http://www.jstor.org/stable/4507110 > accessed 15/02/2015
3
Adrian Keane op. cit. page 67
4
Woolmington v. DPP (1935) AC 462 HL; Okoh v. The State (2014) LPELR-22589 (SC); Obed v. The State (2014)
LPELR-23123 (CA)
5
[1935] AC 462 HL, per Lord Sankey.
6
supra
 statutory exception. If, at the end of and on the whole of the case, there is a
reasonable doubt, created by the evidence given by either the prosecution
or the prisoner... the prosecution has not made out the case and the
prisoner is entitled to an acquittal. No matter what the charge or where the
trial, the principle that the prosecution must prove the guilt of the prisoner
is part of the common law of England and no attempt to whittle it down can
be entertained."

It can be deduced from the above that in certain instances the evidential burden on the

prosecution might shift,7 as sometimes it might be required of the accused to prove certain fact8.

One of the most striking features of the English criminal law, which largely forms the basis of

the Nigerian criminal law, is its unwillingness to convict anyone of a crimes unless there is a

very high degree of probability of their guilt.9 What then does the phrase “beyond reasonable

doubt” means? An Australian Judge warns that:

“One embarks on a dangerous sea if he attempts to define with precision a

term… which is usually stated to a jury without embellishment as a well-

understood expression”10

In Lord Diplocks11 view that a case has been proven beyond reasonable doubt should be a matter

of discretion for the judge. It is to be assumed that a trial judge or magistrate has in mind the

7
See Akosa v. C.O.P. (1950) 13 WACA 43
8
See proviso to section 36 (5) of the 1999 constitution of the Federal Republic of Nigeria as amended. Hereinafter
called 199 constitution
9
L.J. Blom- Cooper: The Quantum of the Burden of Proof in Criminal Trials. (1969) vol.32 no.2, The Modern Law
Review. Page 220. < http://www.jstor.org/stable/1094561 > accessed 11/02/2015
10
Barton A.C.J. in Brown v. R (1913) 17 C.L.R 570
11
Walters v. R (1969) 2 WLR 60; see L.J. Bloom-Cooper op.cit. page 220
elementary principle that the prosecution must prove its case beyond reasonable doubt, and that

there is no need for him to expressly direct himself on the point.12

However, it is clear that proof beyond reasonable doubt does not mean proof beyond all

doubt, as; “the evidence of the prosecution must prove beyond reasonable doubt, not beyond the

shadow of any doubt that the person accused is guilty of the offence charged. Absolute certainty

is impossible in any human adventure including the administration of justice.” 13 Prove beyond

reasonable doubt is rooted in the presumption of innocence.14

The Evidence Act 201115 provides that the commission of a crime must be proven

beyond reasonable doubt.16 Under Section 135(2) of The Act; “the burden of proving that any

person has been guilty of a crime or wrongful act is, subject to Section 139 of this Act, on the

person who asserts it, whether the commission of such act is or is not directly in issue in the

action.” To discharge this burden, the prosecution must prove all necessary ingredient of an

offence. Since, proof beyond reasonable doubt is not proof to the hilt, and all essential

ingredients of the offence charged has to be established, and once this is done, it will be idle for

the defence to argue to the contrary.17 Thus in a murder trial, the necessary ingredient laid out in

Ogedengbe v. The State18 are: That the deceased died; that the death of the deceased was caused

by the accused; that the act or omission of the accused which caused the death of the deceased

was intentional with knowledge that death or grievous bodily harm was its probable

consequence.
12
I.G.P. v. Adelabu (1956) 1 F.S.C. 48; see also Okonkwo And Naish: criminal law in Niigeria (2nd edition,
Spectrum Books Ltd) page 94
13
Per Okoro J.S.C in Okoh v. The State (2014) LPELR-22589 (SC) referencing Mufutau Bakere v. The State (1987)
3 SC 1 at 32
14
Section 36(5) of the 1999 Constitution as amended
15
As amended
16
Section 135(1)
17
Per Fabiyi J.S.C in Adamu Saliu v. The State (2014) LPELR-22998 (SC)
18
(2014) LPELR-23065 (SC) per Peter- Odili J.S.C
 All these necessary ingredient can be established by: a confessional statement;

circumstantial evidence; or, evidence of eye witnesses.19 When the prosecution has relieved itself

of this burden, the accused person is not left without a way out, as the accused person then comes

under a burden of proving reasonable doubt.20 The Evidence Act does not give a guide on how

this should be done, but in all cases positive evidence has to be tendered and all necessary

objections raised.

RAISING REASONABLE DOUBT VIA THE DEFECE OF ALIBI

The word ‘alibi’ simply means “elsewhere”.21 This is a defence used by the accused

person to allege that at the time when the offence with which he is charged was committed, he

was elsewhere.22 This defence is usually raised at the earliest possible opportunity by the accused

person to a charge by the police at the investigation stage to enable the truth or falsity of the

allegation to be established.23 Alibi would seem to be the perfect defence, although may open a

wide field of temptation to the suspect and his witness.24 This is particularly why, not all alibi

needs be investigated where there is sufficient positive evidence that places the accused person at

the scene of the crime.25

The question becomes: how does the defence of alibi give rise to reasonable doubt?

When an accused person raises this defence, that he was somewhere else other than the locus

delicti at the time of the commission of the offence, and gives facts of his where about, the

19
See Ogedengbe v. The State (2014) LPELR-22065 (SC); see also Igabele v. The State (2006) 2 SC (pt. II) 61
20
Section 135(3) of the Evidence Act 2011.
21
Olatinwo v. The State (2013) LPELR-19979 (SC)
22
Ozaki v. the state (1990) 1 NWLR (Pt. 124) 92
23
See Adedeji v. The State (1971) 1 All N.L.R. 75; see also Adjo v. The State (1986) 2 N.S.C.C. 815
24
W. E. C. Avenagh: Review on Alibi by R. Gooderson (1978) vol. 18, No. 4. The British Journal of criminology,
page 421. < http://www.jstor.org/stable/23636148 > accessed 23/02/2015
25
Olatinwo v. The State (2013) LPELR-19979 (SC). See also Archibong v. State (2006) 14 NWLR (pt. 1000) 349;
Ibe v. The State (1992) NWLR (pt. 244) 642
prosecution is duty bound to investigate that alibi set up to verify its truthfulness or otherwise.26

The failure to do this will be fatal to the prosecution’s case, especially where there is no

sufficient evidence to connect the accused to the scene of the crime. Failure to investigate may

raise reasonable doubt and lead to the quashing of a conviction. 27 The court held in Ozaki v. The

State28 that:

“in my opinion, the alibi of the appellants not having been proved false, is

bound to create doubt in the mind of the learned trial judge as to the guilt

of the appellants and that doubt must be given in their favour. This, I

hereby do.”

The onus on the prosecution to prove its case beyond reasonable doubt, is added to once the

accused raises the defence of alibi. There is no onus on the accused to prove the alibi beyond that

of introducing the evidence of alibi;29 instead the prosecution must disprove it to successfully

establish the case against the accused.

OTHER INSTANCES WHERE REASONABLE DOUBT COULD BE DEDUCED

Reasonable doubt can be deduced through the prosecution’s case, where the prosecution

has not judiciously discharge the burden placed on it, the accused is entitled to the benefit of the

doubt. Also, the accused can raise objections to the admissibility of his alleged confessional

statement, and if successful may serve as establishing reasonable doubt on his behalf. Another

way is to attack the credibility of prosecution witnesses brought against him. A confessional

26
Okosi & Ors v. The State (1989) CLRN 29 at 48. See also Maikudi Alivu v. The State (2007) All FWLR (pt. 388)
1123
27
See Onafowakan v The State (1987) 2 N.S.C.C 1101
28
(1990) 1 NWLR (Pt. 124) 92
29
Bozim v. The State (1985) 2 NWLR (pt. 8) 465
statement can be objected to basically in two ways; firstly, that it was not made involuntarily. In

all cases, the court will not receive in evidence a confessional statement made by oppression of

the person who made it or, in consequence of anything said or done which affects the statements

credibility.30 When a confessional statement is objected to as being involuntary, the next huddle

is to conduct a trial-within-trial, and if a ruling is made in favour of the accused the confessional

statement is discountenanced with, and the trial goes on without it.31

Secondly, the accused person can retract his said confessional statement. The mere

retraction of a confessional statement by an accused person will not render it inadmissible, it may

only affect the weight to be attached to it where the accused denies making it at the earliest

opportunity.32 Where a confessional statement has been retracted it can still ground a conviction

provided there are other evidence adduced which are sufficient to corroborate the confessional

statement.33 It therefore follows that where no such supporting evidence exists to corroborate a

retracted confessional statement, no weight should be attached to it. Confessional statements are

of vital importance in any criminal trial basically because; they can sufficiently ground a

conviction. Where it is possible to make a trial judge discountenance of it during the course of

trial or, make it impossible to rely on though admitted in evidence, may be a situation of

reasonable doubt which ought to be held in favour of an accused person.

Reasonable doubt may also be found where the prosecution fails to tender in evidence

vital material necessary to their case. This might be failure to call a very vital witness to be

cross- examined. Reasonable doubt may be raised from the presumption of withholding

30
Section 29(2) of the Evidence Act 2011
31
See the dictum of Peter-Odili J.S.C in Ogedengbe v. the State (supra) on the issue of confessional statement
32
Per Kekere-Ekun, J.S.C. in Okoh v. The State (2014) LPELR-22589 (SC); see Abdullahi v. The State (2013) All
FWLR (pt.699) 1118
33
See the judgement of Onnoghen J.S.C. in Peter Iliya Azabada v. The State (2014) LPELR-23017 (Pp. 14-15) paras
G- D
evidence.34 Where the prosecution refuses or omits to tender in evidence the accused

confessional statement where same is shown to have been made, may be sufficient to raise

reasonable doubt, whether it is favourable or not.35 The court held in The People of Lagos State

v. Umaru36 thus:

“I think the tendering of the accused's statement made to the Police

[considered to be confessional] is very vital, necessary and fundamental

in grounding a conviction otherwise the conviction is defective and can be

quashed and any sentence premised upon it can equally be set aside.”

While Section 135(2) of the Evidence Act places the burden of prove in criminal matters

on the prosecution, it however, made it subject to Section 139 of the same Act. Section 139(3) of

the Evidence Act 2011 provides that: “nothing in Sections 135 and 140… shall, (c) affect the

burden placed on a defendant to prove a defence of intoxication and insanity.” The primary focus

in this paper is on the defence of insanity, which is also mainly relied on in Nigerian Courts and,

which will form the basis of the next discussion in this paper.

DEFENCE OF INSANITY

From time to time the criminal courts remind us of the wide gap that exists between the

legal view of insanity and the knowledge gained by psychiatrists in the century which has

elapsed since the formulation of the "rules in M'Naghten's case."37 This shows that what might

be legally needed to establish the defence of insanity might be different from what obtains in the

34
See Section 167(d)
35
O.P. Agboola and J.L. Ayodele: Objejctions to Confessional Statements: The Law as it is. <
http://www.everylawstudent.com/2015/01/objections-to-confessional-statements.html >
36
(2014) LPELR-22466 (SC)
37
The Defence of Insanity. (1938) vol.1 no. 4027, The British Medical Journal, page 599. <
http://www.jstor.org/stable/25369260 > accessed 11/02/2015
world of science. Criminal responsibility becomes even more difficult to define when it relates to

insanity,38 it is suggested hence that any definition for criminal responsibility should be

reasonably flexible to make room for changing standard and progress in knowledge. 39 The

relevant test for the defense of insanity was laid down in M’ Naghten’s case,40 where the House

of Lords held:

“Jurors ought to be told in all cases that every man is to be presumed to

be sane, and to possess a sufficient degree of reason to be responsible for

his crimes, until the contrary be proven to their satisfaction; and that to

establish a defense on the ground of insanity, it must be clearly proved

that, at the time of committing the act, the party accused was laboring

under such a defect of reason, from disease of the mind, as not to know the

nature and quality of the act he was doing, or, if he did know it, that he did

not know he was doing what was wrong.”

However, the concern here is on the Nigerian position on the law relating to insanity. The

issue of insanity may arise at two different stages, that is; before trial commences or during

trial.41 Where the judge perceives that the accused is of unsound mind and hence incapable of

making his defence, before the proceeding goes the judge may direct that his condition be

investigated.42 Section 28 of the Criminal Code43 provides:

“A person is not criminally responsible for an act or omission if at the

time of doing the act or making the omission he is in such a state of mental

38
Okonkwo And Naish: criminal law in Niigeria (2nd edition, Spectrum Books Ltd) page 129
39
Ibid.
40
(1843) 10 CI. & F. 200
41
Okonkwo and Naish, op. cit. page 132
42
Ibid; see R. v. Ogor (1961) 1 All N.L.R. 70; R v. podola (1960) 1 Q.B. 325
43
Cap C38 LFN, 2004
 disease or natural mental infirmity as to deprive him of capacity to

understand what he is doing, or of capacity to control his actions, or of

capacity to know that he ought not to do the act or make the omission.”

The Criminal Code spoke not only of ‘mental diseases’ but also of ‘natural mental

infirmity’. For a proper understanding of these terms, medical views will be necessary. It will be

much more difficult to ascertain what constitute mental diseases, as opposed to the physical

counterpart.44 It is suggested that a broad view should be taken as opposed to the narrower view,

to recognize that it covers many different types of mental abnormalities.45 Further, the Criminal

Code speaks of ‘natural mental infirmity’ not merely ‘mental infirmity’, and hence it can be

taken to mean such an infirmity which did not merely developed during one’s lifetime but, which

has been from birth. In any cases, one thing is certain; the addition into Section 28, takes the rule

further.

It appears that what is important is insanity at the time of commission of the unlawful act.

The fact that an accused is sane at his trial is irrelevant. Nor, does insanity at the time of trial

prove insanity at the time of the act,46 as it can be shown that the accused was at his lucid

intervals during the commission of the unlawful act. The law also requires that there was lack of

capacity, in that: capacity to understand what he was doing, capacity to know that he ought not to

do the act of make the omission and, capacity to control his actions.47 In all cases, that an

accused person is insane is a question of fact, and a burden to be discharged by proof in

evidence.

44
Okonkwo and Naish, op. cit. page 134
45
ibid
46
Ibid. page 136
47
See generally Okonkwo and Naish, op. cit. page 136- 139
 It is not the duty of the prosecution to establish that the accused person is sane. Every

person is presumed to be of sound mind and to have been of sound mind at any time which

comes in question, until the contrary is proved.48 Sanity is presumed on behalf of the prosecution

and it is for the accused person to rebut it. This burden on the defendant is not as heavy as that of

the prosecution. Section 137 of the Evidence Act states:

“Where in any criminal proceeding the burden of proving the existence of

any fact or matter has been placed upon a defendant by virtue of the

provisions of any law, the burden shall be discharged on the balance of

probabilities.”

When dealing with the defence of insanity, medical evidence becomes relevant. This is

brought forward by expert opinion evidence. Eyewitness evidence may also be relevant. The

behavior of the accused person prior to the time of commission of the offence will be in issue. 49

In M. A. Sanusi v. The State50 His Lordship Anagiolu JSC, commenting on what is expected in

evidence aimed at establishing and proving insanity, held that:

“positive act of the accused person, before and after the deed complained

of ; evidence by a doctor who examined and watched the accused over a

period of time as to his mental state; evidence of relatives who know the

accused person intimately relating to his behavior and change which had

come upon him; the medical history of the family which could indicate

hereditary mental affliction or abnormality, and such other facts and

48
Section 27 of the Criminal Code, Cap C38 LFn 2004
49
See imaseun v. The State (2014) LPELE-22193 (CA); see also Ejinma v. The State (1991) 7 SCNJ (pt.1) 318
50
(1984) 10 SC 166 at 177-78
 circumstance which will help the trial judge come to the conclusion that

the burden of insanity placed on the accused, has been discharged.”

While, in a judgment by Oputa JSC51, those other facts and circumstances may be:

evidence from prison warders who had custody of the accused and looked after him during his

trial; the reputation he enjoys for sanity and insanity in his neighbourhood, among others.52 From

the above it is clear that, the evidential burden in insanity is less compared to proving the guilt of

the accused person by the prosecution. All that is required is the preponderance of evidence or a

balance of probability.53

The reaction of the accused to the state of things as believed by him must be such that it

could be regarded as legitimate and natural reaction to such state of things for the defence of

insanity to avail the accused person.54 Although insanity is a general defence, it appears it is

mostly used in murder trials in Nigerian Courts. It important to note that, the defence of insanity

is different from the defence of intoxication. An accused person relying on the defence of

intoxication does not become worthy of the defence of insanity. The court has said:

“it is essential, from social and public stand point, to closely examine a

defence of insanity. It is necessary to recognize that there could be serious

evil consequence if men should act on self-induced intoxication and seek

to avoid to take legal consequences upon claim that they are insane.”55

When a plea of insanity is successful, the accused is entitled to an acquittal.56 An

acquittal in this sense does not mean the accused person should be discharged, as his freedom

51
In Onyejekwe v. The State (1988) 1 NWLR (pt.72) 565 at 579
52
See Edoho v. The State (2010) 4 SCNJ 100; see also; Karimu v. The state (1989) 1 NWLR (pt.96) 124; Ogbu v.
The State (1992) 10 SCNJ 88 at 99
53
See Edoho v. The State (2010) 4 SCNJ 100
54
See Nkanu v The State (1980) 3-4 SC 1; M. A. Sanuasi v. The State (1984) 10 SC 166
55
See imaseun v. The State (2014) LPELE-22193 (CA)
56
See Section 229-232 of the Criminal Procedural Act, Cap C41 LFN, 2004
can still be held under Section 35(1) (e) of the 1999 Constitution.57 The place of ‘reasonable

doubt’, is to create doubt in the mind of a judge, which can in most cases lead to the acquittal of

an accused person. A successful defence of insanity is not disproving the fact that the accused

committed a crime; it simple denies criminal responsibility on his behalf, reasonable doubt

covers not a criminal intent but also the criminal act, here the accused is simply saying; ‘I

committed the offence but, did not know what I was doing was wrong at the time’. Thus, a

successful plea of the defence does not raise reasonable doubt in favour of the accused.

Although, he may be guilty of the act, he cannot be convicted of the charge.

CONCLUSION

An attempt has been made in this paper to demonstrate how the evidential burden of

proof is never static even in criminal trials; this issue was discussed at length, while establishing

a link with the standard of proof in murder trial. We observed that while the prosecution has

discharged the legal and evidential burden placed upon it, the accused is not left without a way

out, which can be by raising reasonable doubt on his behalf or taking advantage of the defence of

insanity. While proof of guilt of an accused person is proof beyond reasonable doubt, proof of

insanity is on the preponderance of evidence.

The role of evidence in our legal system cannot be overemphasized, while it is conceded

that mere suspicion cannot ground a conviction, it therefore means that positive evidence must

be adduced in proof of facts before the court. And proof must be according to specification, that

is; either beyond reasonable doubt or, on the balance of probability as the case may be. This has

been the standard from time immemorial it is desirable that it remains so.

57
Cap C28, LFN 2004